HomeMy WebLinkAboutResolution No. 2016-020CITY OF THE COLONY, TEXAS
RESOLtiTION NO. 2016- o2.0
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
THE COLONY, TEXAS, AUTHORIZING THE CITY MANAGER
TO EXECUTE A LICENSE AND USE AGREEMENT BY AND
BETWEEN THE CITY OF THE COLONY AND METRO
RELIEF, INC.; PROVIDING AN EFFECTIVE DATE
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF THE COLONY, TEXAS:
Section 1. That the City Council of the City of The Colony, Texas, has duly
reviewed and considered the License and Use Agreement by and between the City of
The Colony and Metro Relief, Inc. for the purpose of allowing use of 0.7334 acres of
land located at 6301 Main Street, The Colony, Texas to be used as a Community
Garden for the benefit of the residents of the City of The Colony.
Section 2. That this License and Use Agreement, attached hereto as Exhibit
"A", is found to be acceptable and in the best interest of the City and its citizens, and the
City Manager is hereby authorized to execute the Agreement on behalf of the City of The
Colony, Texas, with the terms and conditions as stated therein.
Section 3. That this resolution shall take effect immediately from and after
its passage.
PASSED AND APPROVED by the City Council of the City of The Colony,
Texas, this 1 S` day of March, 2016.
A ES
Christie Wilson, TRMC, City Secretary
APPROVED AS TO
City Attorney
v
Jo McCourry, Mayor
ity of The Colony, Tex a
LU:
7- E X Pte'
THE STATE OF TEXAS §
COUNTY OF DENTON §
LICENSE AND USE AGREEMENT
THIS LICENSE and USE AGREEMENT(4ereinafter referred to as "Agreement") is
made and entered into on this the � �'�day of r , 2016, by and between the CITY OF
THE COLONY, TEXAS, a Texas home -rule municipality (hereinafter referred to as the
"City"), acting by and through its City Manager, and METRO RELIEF, INC., a Texas non-
profit corporation (hereinafter referred to as "Metro Relief'), acting by and through its duly
authorized representative.
WHEREAS, City is the owner of an approximately 5.801 acres tract of land consisting
of Lot 1, Block A, Denton County Government Center Addition in the S.E. Hayes Survey,
Abstract No. 648, an addition to the City of The Colony, Denton County, Texas (hereinafter
referred to as the "Leased Property"); and
WHEREAS, the City has leased the Leased Property to Denton County, excluding the
property generally located at 6303 Main Street, The Colony, Texas, and the approximately
31,948.22 square feet or 0.7334 acres of land to be used as a garden by Metro Relief, as
generally described and/or depicted in Exhibit A of this Agreement, which is attached hereto and
incorporated herein for all purposes (hereinafter referred to as the "Licensed Property"); and
WHEREAS, Metro Relief desires to use the Licensed Property, as generally described
and/or depicted in Exhibit A of this Agreement for the purposes set forth more fully below; and
WHEREAS, the City through this Agreement desires to convey to Metro Relief a license
for use of the Licensed Property for the purposes set forth more fully below; and
WHEREAS, the City finds and determines the granting of this Agreement is in the best
interest of the City of The Colony, Texas.
NOW, THEREFORE, for and in consideration of the foregoing premises and other
good and valuable consideration, the receipt and adequacy of which are hereby acknowledged,
City and Metro Relief covenant and agree as follows:
SECTION 1. FINDINGS INCORPORATED.
The foregoing recitals are hereby incorporated into the body of this Agreement and shall
be considered part of the mutual covenants, consideration and promises that bind the parties.
SECTION 2. TERM.
This Agreement shall be effective as of the Effective Date of this Agreement, and shall
continue thereafter until February 28, 2017, unless terminated sooner under the provisions
hereof. This Agreement shall automatically renew for successive terms of one (1) year each on
the anniversary date of the Effective Date unless either Party gives written notice to the other
Party of its intent to terminate this Agreement at least thirty (30) days prior to the expiration of
the then current term.
SECTION 3. DEFINITIONS.
The following words shall have the following meanings when used in this Agreement.
(a) Agreement. The word "Agreement" means this Agreement, together with all exhibits
and schedules attached to this Agreement from time to time, if any.
(b) City. The word "City" means the City of The Colony, Texas, a Texas home -rule
municipality, whose address for the purposes of this Agreement is 6800 Main Street, The
Colony, Texas 75056.
(c) Effective Date. The words "Effective Date" mean the date of the latter to execute this
Agreement by and between Metro Relief and City.
(d) Event of Default. The words "Event of Default" mean and include any of the Events of
Default set forth below in the section entitled "Events of Default."
(e) Licensed Property. The words "Licensed Property" means the approximately 31,948.22
square feet or 0.7334 acres of land as generally described and/or depicted in Exhibit A of
this Agreement, which is attached hereto and incorporated herein for all purposes, and
generally located at 6301 Main Street, The Colony, Texas.
(f) Metro Relief. The words "Metro Relief' mean Metro Relief, Inc., a Texas non-profit
corporation, and its successors, whose address for the purposes of this Agreement is P.O.
Box 560962, The Colony, Texas 75056.
(g) Permitted Purposes. The words "Permitted Purposes" mean use of the Licensed
Property for the purpose of supplying the Metro Relief Food Pantry with fresh,
wholesome vegetables by providing a space for The Colony residents to rent seasonal
garden plots to grow their own vegetables; for the provision of instructional/educational
classes and workshops on gardening, nutrition and other related topics of interest.
(h) Term. The word "Term" means the term of this Agreement as specified in Section 2 of
this Agreement.
SECTION 4. LICENSE.
(a) Licensed Property.
(1) The City, being the present owner of the Licensed Property, for and in consideration
of the foregoing, which is expressly made a part of this Agreement, and in
consideration of approval of its request, is hereby gives authorization and grants to
Metro Relief during the Term of this Agreement a license to use the Licensed
Property for the Permitted Purposes. Metro Relief acknowledges that Metro Relief
has inspected the Licensed Property, and on the basis of such inspection Metro
Relief accepts the Licensed Property, and any improvements situated thereon, as
suitable for the purposes for which the same are licensed, in their present
condition.
(2) The City conveys a license to the Metro Relief to use the Licensed Property in an
as -is condition and does not make any representations regarding the suitability of
the Licensed Property for Metro Relief's requirements or the Permitted Purposes.
(3) Neither Metro Relief nor the Metro Relief's affiliates, employees, agents, or
representatives shall cause (i) any activity to occur in respect of the Agreement or
the Licensed Property that constitutes waste or public or private nuisance, (ii) any
explosive substances or materials to be stored, released, generated, placed,
handled or used within the Licensed Property, (iii) any trailers or recreational
vehicles to be parked within the Licensed Property without the prior express
written consent of the City, or (iv) any party to live or reside within the Licensed
Property.
(4) Without the prior written consent of City, neither Metro Relief nor the Metro
Relief's affiliates, employees, agents, or representatives shall cause (i) any
buildings, structures or other improvements to be constructed, erected or installed
within the Licensed Property, or (ii) any heavy machinery or equipment to be
operated or stored within the Licensed Property except with respect to any heavy
machinery or equipment normally and customarily used in performing the
Permitted Purposes.
(5) Metro Relief shall keep (and shall cause the Metro Relief's affiliates, employees,
agents, or representatives to keep) the Licensed Property free from and shall
promptly discharge any liens arising from any work performed, material
furnished, obligations incurred or any other thing done or permitted by Metro
Relief and/or the Metro Relief's affiliates, employees, agents, or representatives
in respect of the Agreement or the Licensed Property; provided that Metro Relief
(or a Metro Relief party) may dispute any such lien so long as Metro Relief (or
such Metro Relief party) first posts a bond for such lien in the amount required
under and otherwise in accordance with all applicable laws.
(6) If Metro Relief fails to comply with or defaults under any obligation set forth in
this Section 4 of the Agreement during the Term of this Agreement, then, after
sending written notice to Metro Relief describing in detail the failure of Metro
Relief to comply with any obligation under this Agreement and allowing for a ten
(10) day cure period, City may (but shall not be obligated to) cure such failure at
Metro Relief's sole cost and expense, and Metro Relief shall, upon demand, pay
to City all reasonable costs incurred by City during the Term of this Agreement in
curing such failure together with interest thereon at the rate of ten percent (10%)
per annum from the date so paid until fully reimbursed.
(7) Metro Relief acknowledges that the City has leased the Leased Property to
Denton County for its use for Denton County business. Accordingly, Metro
Relief agrees that the parking of automobiles by Metro Relief s employees and
patrons during normal business hours (Monday through Friday, 8:00 a.m. to 5:00
p.m.) shall be confined to the approximately 62 foot by 114 foot parking lot
adjacent to the Municipal Building No. 5, located at 6303 Main Street, and as
generally depicted in Exhibit A of this Agreement, which is attached hereto and
incorporated herein for all purposes.
(b) Maintenance of Licensed Property.
(1) During the Term of this Agreement, Metro Relief shall, at its sole cost and
expense, maintain the Licensed Property in good condition, working order and
repair. Without limiting the generality of the foregoing sentence, Metro Relief
shall keep the Licensed Property clean and free from any trash, rubbish, debris,
waste, weeds, brush and/or explosive materials.
(2) During the Term of this Agreement, the City shall not have an obligation to the
Metro Relief to (i) maintain, improve, alter, or repair the Licensed Property, or (ii)
furnish any utilities to the Licensed Property, including but not limited to
electricity, gas, water or telephone service. Metro Relief shall pay the cost of any
such utilities furnished to the Licensed Property. Metro Relief shall be entitled to
use the water supplied to Municipal Building No. 5, located at 6303 Main Street,
The Colony, Texas, and shall pay the cost of said water used by Metro Relief.
(3) If Metro Relief fails to comply with or defaults under any obligation set forth in
this Section 4 of this Agreement during the Tenn of the Agreement, then, after
sending written notice to Metro Relief describing in detail the failure of Metro
Relief to comply with any obligation under this Agreement and allowing for a ten
(10) day cure period, City may (but shall not be obligated to) cure such failure at
Metro Relief's sole expense, and Metro Relief shall, upon demand, pay to City all
reasonable costs incurred by the City in curing such failure together with interest
thereon at the rate of ten percent (10%) per annum from the date so incurred until
fully reimbursed.
(c) Improvement of Licensed Property.
(1) Metro Relief shall not cause or permit any further alterations, modifications, or
any other improvements (each, an "Alteration") to be made, constructed or
installed within the Licensed Property without the prior written consent of City,
with such approval not to be unreasonably withheld, conditioned or delayed.
(2) If City grants its written consent to any Alteration, Metro Relief shall not cause or
permit work to begin with respect to such Alteration unless and until City has
reviewed and granted written approval of all plans and specifications for such
Alteration, with such written approval not to be unreasonably withheld,
conditioned or delayed. Upon City's written approval, such Alteration shall be
deemed to be a "Permitted Alteration."
(3) Any work performed in connection with any permits and approvals and/or
Permitted Alteration shall be performed in accordance with all of the terms and
conditions contained in this Agreement, including but not limited to the terms and
conditions set forth in this Section 4 of the Agreement. Any approval by City is
for the sole benefit of City and neither Metro Relief nor any other party may rely
on such approval by Metro Relief for any purpose whatsoever, including, but not
limited to, whether the plans and/or specifications meet or exceed customary
industry standards or any applicable laws.
(d) Rent. In consideration for this Agreement, Metro Relief shall pay to City the sum of
$1.00 per year and other good and valuable consideration during the Term of this
Agreement. One (1) such yearly installment shall be due and payable on or before the
Effective Date of this Agreement.
(e) City Reservation of Right to Use and/or Convey Licensed Property. City hereby
reserves the right, during the Term of this Agreement, without any requirement of notice
to or consent of Metro Relief, to (i) grant, sell, lease, transfer, option, convey or dispose
of all or any portion of or interest in the Licensed Property, (ii) grant any easement(s),
servitude(s), restriction(s), mortgage(s), deed(s) of trust, security instrument(s), oil/gas
and hydrocarbon lease(s), operating agreements, surface and subsurface lease(s),
license(s), encumbrance(s) or lien(s) affecting all or any portion of or interest in the
Licensed Property, and/or (iii) develop the Licensed Property; provided, however, none
of the foregoing may unreasonably interfere with the use of the Licensed Property by
Metro Relief for the purposes set forth within this Section 4 of the Agreement during the
Term of this Agreement.
(fj Taxes. Metro Relief shall be liable for all taxes levied or assessed against the Licensed
Property arising from Metro Relief's Permitted Purposes, if any.
SECTION 5. TERMINATION OF AGREEMENT.
City may terminate this Agreement at any time in the event of any default by Metro
Relief and the failure of Metro Relief to cure such default on or before ten (10) days after
delivery by City of written notice of such default to Metro Relief in accordance with the notice
provisions set forth below, whereupon the Agreement shall immediately and automatically
terminate without the necessity for any further action by either Party. Further the Parties may
terminate this Agreement without default by providing the other party sixty (60) days advance
written notice of the intent to terminate this Agreement.
SECTION 6. INDEMNITY CLAUSE.
CITY SHALI. NOT BE LIABLE TO METRO RELIEF OR TO METRO RELIEF'S
EMPLOYEES, AGENTS, INVITEES OR VISITORS, OR TO ANY OTHER PERSON,
FOR ANY INJURY TO PERSONS OR DAMAGE TO THE LICENSED PROPERTY ON
OR ABOUT THE LICENSED PROPERTY OR ANY ADJACENT AREA OWNED BY
CITY CAUSED BY THE NEGLIGENCE OR MISCONDUCT OF METRO RELIEF,
METRO RELIEF'S EMPLOYEES, SUBTENANTS, AGENTS, INVITEES, METRO
RELIEFS OR CONCESSIONAIRES OR ANY OTHER PERSON ENTERING THE
LICENSED PROPERTY UNDER EXPRESS OR IMPLIED INVITATION OF METRO
RELIEF, OR ARISING OUT OF THE USE OF THE LICENSED PROPERTY BY
METRO RELIEF, AND THE CONDUCT OF :METRO RELIEF'S BUSINESS, OR
ARISING OUT OF ANY BREACH OR DEFAULT BY METRO RELIEF IN THE
PERFORMANCE OF METRO RELIEF'S OBLIGATIONS UNDER THIS
AGREEMENT OR ARISING OUT OF ANY RELEASE OF HAZARDOUS MATERIALS
BY METRO RELIEF, METRO RELIEF'S EMPLOYEES, AGENTS, INVITEES OR
ANY OTHER PARTY UNDER THE CONTROL AND DIRECTION OF INVITEE; AND
METRO RELIEF HEREBY AGREES TO INDEMNIFY AND HOLD CITY HARMLESS
FROM ANY LOSS, EXPENSE OR CLAIMS ARISING OUT OF SUCH DAMAGE OR
INJURY. METRO RELIEF SHALL NOT BE LIABLE FOR ANY INJURY OR
DAMAGE CAUSED BY THE NEGLIGENCE OR MISCONDUCT OF CITY, OR CITY'S
EMPLOYEES OR AGENTS.
SECTION 7. INSURANCE.
(a) At all times during the term of this Agreement, Metro Relief shall maintain in effect the
following insurance coverages in amounts not less than the following minimum limits:
(i) comprehensive general liability insurance, including but not limited to products -
completed operations and contractual liability coverage, with limits of not less than
$250,000.00 per occurrence and $500,000 in the aggregate for bodily injury and property
damage. The City shall expressly be named as an additional insured. Such insurance
shall specifically identify this Agreement and contain express conditions that the City is
to be given written notice at least thirty (30) days prior to any modification or termination
of coverage. Such insurance coverage shall be primary to and not contributing with any
other insurance and shall contain a waiver of subrogation in favor of the Metro Relief.
(b) The obligation to maintain the insurance coverages set forth in this Section 7 of the
Agreement shall not in any way limit or diminish any of Metro Relief s other obligations,
responsibilities or liabilities under this Agreement.
SECTION 8. MISCELLANEOUS PROVISIONS.
The following miscellaneous provisions are a part of this Agreement:
(a) Amendments. This Agreement constitutes the entire understanding and agreement of the
parties as to the matters set forth in this Agreement. No alteration of or amendment to
this Agreement shall be effective unless given in writing and signed by the party or
parties sought to be charged or bound by the alteration or amendment.
(b) Applicable Law and Venue. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas, and all obligations of the parties created
hereunder are performable in Denton County, Texas. Venue for any action arising under
this Agreement shall lie in the state district courts of Denton County, Texas.
(c) Assignment. This Agreement may not be assigned without the express written consent
of the other party.
(d) Binding Obligation. This Agreement shall become a binding obligation on the
signatories upon execution by all signatories hereto. Metro Relief warrants and represents
that the individual or individuals executing this Agreement on behalf of Metro Relief has
full authority to execute this Agreement and bind Metro Relief to the same. The City
warrants and represents that the individual executing this Agreement on its behalf has full
authority to execute this Agreement and bind it to the same.
(e) Caption Headings. Caption headings in this Agreement are for convenience purposes
only and are not to be used to interpret or define the provisions of the Agreement.
(f) Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and all of which shall constitute one and the same
document.
(g) Hold Harmless. Metro Relief shall indemnify and hold harmless the City, its officials,
officers, employees, and agents from and against any claims, demands, damages,
liability, expenses (including attorney's fees), fines, penalties, suits, proceedings, actions,
and causes of action of any and every kind and nature arising or growing out of, or in any
way connected with Metro Relief, Metro Relief's officers, employees, participants,
agents, invitees, or guests use of the subject property, except for claims, demands,
damages, expenses (including attorney's fees), fines, suits, proceedings, actions and
causes of action arising from the negligent or willful act or omission of the City or its
contractors, agents, or employees.
(h) Insurance. Metro Relief shall furnish a Certificate of Insurance showing City as
additional insured and/or the owner or lessee of any premises used by the named insured
but only in respect to accidents arising out of the operations of the named insured at the
site.
(i) Legal Construction. The provisions of this Agreement are hereby declared covenants
running with the property and are fully binding on all successors, heirs, and assigns of
:Metro Relief who acquires any right, title, or interest in or to the property or any part
thereof. Any person who acquires any right, title, or interest in or to the property, or any
part hereof, thereby agrees and covenants to abide by and fully perform the provisions of
this Agreement with respect to the right, title or interest in such property.
(j) Notices. Any notice or other communication required or permitted by this Agreement
(hereinafter referred to as the "Notice") is effective when in writing and (i) personally
delivered either by facsimile (with electronic information and a mailed copy to follow)
or by hand or (ii) three (3) days after notice is deposited with the U.S. Postal Service,
postage prepaid, certified with return receipt requested, and addressed as follows:
if to Metro Relief: Metro Relief
P.O. Box 560962
The Colony, Texas 75056
Attn: Jason Kelley, Executive Director
if to City: Troy Powell, City Manager
City of The Colony
6800 Main Street
The Colony, Texas 75056
copy to: Jeff Moore, City Attorney
Brown and Hofineister, L.L.P.
740 East Campbell Road, Suite 800
Richardson, Texas 75081
(k) Severability. If a court of competent jurisdiction finds any provision of this Agreement
to be invalid or unenforceable as to any person or circumstance, such finding shall not
render that provision invalid or unenforceable as to any other persons or circumstances.
If feasible, any such offending provision shall be deemed to be modified to be within the
limits of enforceability or validity; however, if the offending provision cannot be so
modified, it shall be stricken and all other provisions of this Agreement in all other
respects shall remain valid and enforceable.
(1) Termination. Either party may terminate this Agreement after a thirty (30) day written
notice has been provided to each party to this Agreement.
(m) Time is of the Essence. Time is of the essence in the performance of this Agreement.
[The Remainder of this Page Intentionally Left Blank]
EXECUTED this IS'�day of ftAtA•, , 2016.
CITY OF THE COLONY, TEXAS,
A Texas home -rule municipality
4
AT'
Christie Wilson, City Secretary
CITY'S ACKNOWLEDGMENT
STATE OF TEXAS
COUNTY OF DENTON
This instrument was acknowledged before me on the � day of CfA(7(�
2016, by Troy Powell, City Manager of the City of The Colony, Texas, a Texas home -rule
municipality, on behalf of said municipality.
My Commission Expires:
r 1AV1
m.
•afl.•
EXECUTED this day of , 2016.
METRO RELIEF, INC.,
A Texas non-profit corporation
By: v
Name: j
las&i t.41
Title:�-
METRO RELIEF'S ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF DENTON §
This instrument was acknowledged before me on the
by 'Ta Son 14.1 , exec tty6 D, eec�r of Meta
corporation, on behalf of said corporation.
My Commission Expires:
5 Z� Zolq —
ri r -
day of �r',, ! , 2016,
Relief, Inc., a Texas non-profit
Notary Public, State of Texas
HHII// l
PAMELA K. DE SANTIAGC'
0**j'� = Notary Public, State of Tex. , a
_�.:%�T:�r My commission Expires
`%;;; May 2a, 2019
Exhibit A
Legal Description and/or Depiction
of the
Licensed Property