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HomeMy WebLinkAboutResolution No. 2016-032CITY OF THE COLONY, TEXAS RESOLUTION NO. 2016-o 32- A 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS, AUTHORIZING THE CITY MANAGER TO EXECUTE AN ENCROACHMENT/LICENSE AGREEMENT FOR USE OF CITY PROPERTY BY AN ADJACENT PROPERTY OWNER GENERALLY LOCATED AT 3 HOLDEN CIRCLE; 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, hereby approves an Encroachment/License Agreement for use of city property by an adjacent property owner generally located at 3 Holden Circle. Section 2. That a true and correct copy of the Agreement is attached hereto and incorporated herein as "Exhibit A". Section 3. That the City Manager is authorized to execute an Encroachment/License Agreement for use of city property by an adjacent property owner generally located at 3 Holden Circle. Section 4. 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 17th day of May, 2016. AT ST: r' Tina Stewart, Interim City Secretary APPROVED AS TO FORM: Jeff Moore,'Pity Attorney a• -L-- -" eZlz��, J McCourry, :Mayor ity of The Colony, Texa bf.ft-�N SEAQ •TEXAS ENCROACHMENT / LICENSE AGREEMENT STATE OF TEXAS § COUNTY OF DENTON § THIS ENCROACHMENT / LICENSE AGREEMENT (hereinafter referred to as the "Agreement") is made by and between JOHN W. SMITH (hereinafter referred to as the "Developer"), and the CITY OF THE COLONY, TEXAS, a Texas home -rule municipality (hereinafter referred to as the "City"). WHEREAS, the Developer is the owner of Lot 2, Block 246 of the Colony No. 28 addition, an addition located within the City of The Colony, Denton County, Texas, and having a street address of 3 Holden Circle, The Colony, "Texas (hereinafter referred to as the "Property"); and WHEREAS, the City owns property adjacent to and contiguous with the Property; and WHEREAS, the Developer has encroached upon the City's property by constructing and installing a building, patio, and fence over the City's property (hereinafter referred to as the "Improvements"); and WHEREAS, the City and Developer desire to enter into this Encroachment/License Agreement to address the Developer's installation of Improvements on the City's property (hereinafter referred to as the "Licensed Property"). 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 Developer covenant and agree as follows: Section 1. Incorporation of Premises. The findings set forth above are incorporated into the body of this Agreement as if fully set forth herein. Section 2. Effective Date. This Agreement shall be effective as of the date of execution of this Agreement by the last of the Parties to do so (hereinafter referred to as the "Effective Date"). Section 3. Grant of License for Improvements. The City, being the present owner of the Licensed Property, which is adjacent to Developer's 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, hereby gives authorization and grants to Developer a perpetual license to construct, install, and maintain subject to the limitation herein, the Improvements located on the Licensed Property, within the easements and/or right-of-way as depicted in Exhibit A of this Agreement. Developer shall be solely responsible for the construction, maintenance, and installation of the Improvements on the Licensed Property, as set forth herein. The Developer, its successors and assigns must maintain said Improvements located on the Licensed Property in good repair and shall ensure that the Improvements do not lean more than five percent (5%) from vertical. The City agrees to give Developer written notice when and if it determines it necessary to construct any additional facilities or verbal notice if the repair of the existing facilities within the Licensed Property is an emergency. Upon receipt of such notification, Developer shall be responsible, as Developer's sole cost and expense, to remove the Improvements from the Licensed Property. The City shall not have any responsibility for damage or removal to any Improvements or any portion thereof, which remains on the Licensed Property after such notification. upon completion of any such work by the City, Developer, at its sole cost and expense, may replace said improvements on the Licensed Property. Section 4. Insurance. The City shall not be responsible for any damages to the Improvements located on the Licensed Property occurring from the failure of the City's facilities beyond the reasonable control of the City. Developer shall maintain adequate liability insurance with the City as a named beneficiary to insure reconstruction or repair of such Improvements in the event of damage or disrepair. Section 5. Indemnity Clause. DEVELOPER, ITS SUCCESSORS AND ASSIGNS DO HEREBY RELEASE, INDEMNIFY AND HOLD HARMLESS THE CITY, ITS OFFICERS, AGENTS, EMPLOYEES, AND THIRD PARTY REPRESENTATIVES (COLLECTIVELY REFERRED TO AS "CITY") FROM ANY AND ALL CLAIMS, DAMAGES, CAUSES OF ACTION OF ANY KIND WHATSOEVER, STATUTORY OR OTHERWISE, PERSONAL INJURY (INCLUDING DEATH), PROPERTY DAMAGE AND LAWSUITS AND JUDGMENTS, INCLtiDING COURT COST, EXPENSES, AND ATTORNEY'S FEES, AND ALL OTHER EXPENSES ARISING DIRECTLY OR INDIRECTLY FROM THE DEVELOPER'S PERFORMANCE OF THIS AGREEMENT. Section 6. Removal of Improvements. If the City determines based upon acceptable engineering standards the Improvements pose a hazard to the public or may interfere or impede traffic safety in anyway, or the City's facilities, the Improvements must be removed, at sole cost of the Developer, its successor and assigns. Section 7. Event of Default. In the event Developer is in default of any of its obligations hereunder, before pursuing any remedy for such default, the City shall notify the other party, specifying the alleged default, and allow the Developer, its successors and assigns thirty (30) days ("Default Period") within which to cure such default. Upon expiration of the Default Period, if the default is not cured, City reserves the right to terminate this Agreement, and the Improvements must be removed from the Licensed Property, at sole cost of the Developer, its successors and assigns. Section 8. Miscellaneous Provisions. The following miscellaneous provisions are a part of this Agreement: parties as to the matters set forth in this Agreement. No alteration of or amendment this Agreement shall be effective unless given in writing and signed by the party 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 accordance with the laws of the State of Texas, and all obligations of the parties creat hereunder are performable in Denton County, Texas. Venue for any action arising un( this Agreement shall lie in the state district courts of Denton County, Texas. (c) Assignment. 'Phis Agreement may be assigned without the expressed written consent the other party. (d) Attorney's Fees. In the event any person initiates or defends any legal action proceeding to enforce or interpret any of the terms of this Agreement, the prevailing pa in any such action or proceeding shall be entitled to recover its reasonable costs a attorney's fees (including its reasonable costs and attorney's fees on any appeal). (e) Binding Obligation. This Agreement shall become a binding obligation on ' signatories upon execution by all signatories hereto. City warrants and represents that individual executing this Agreement on behalf of City has full authority to execute t Agreement and bind City to the same. Developer warrants and represents that individual executing this Agreement on Developer's behalf has full authority to exec this Agreement and bind it to the same. (f) Caption Headings. Caption headings in this Agreement are for convenience purpo- only and are not to be used to interpret or define the provisions of the Agreement. (g) File in Deed Records. This Agreement may be filed in the deed records of Deni County, Texas. (h) Severability. The provisions of this Agreement are severable. If any paragraph, secti, subdivision, sentence, clause, or phrase of this Agreement is for any reason held b: court of competent jurisdiction to be contrary to law or contrary to any rule or regulat: have the force and effect of the law, the remaining portions of the Agreement shall enforced as if the invalid provision had never been included. [The Remainder of this Page Intentionally Left Blank] r •.,0 i AL �,TEXAg� ATTEST: G2�A_a4_ Tma Stewart, Interim City Secretary STATE OF TEXAS COUNTY OF DENTON CITY: CITY OF THE COLONY, TEXAS A Texas home -rule municipality y roy . Powel City Manager ACKNOWLEDGMENT This instrument was acknowledged before me on this the / ? day of _ , 2016, by Troy C. Powell, City Manager for the City of The Colony, Texa4 a Texas home -rule municipality, on behalf of said municipality. /'` �~ ``O`'pY PUB�L DIANNE I. JOHNSON Notary Public. State of Texas '• ' My Commission Expires January 09, 2018 ACKNOWLEDGMENT STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on this the --� 2016, by John W. Smith. :Notary Public, State of a- ,';o�DIANNE I SON .�� Notary Pubic. State of Texas My Commission Expires January 09, 2018 JI \\ \ Exhibit A Legal Description and/or Depiction of the Licensed Property ,r EXHIBIT FOR PROTRUSION Being a portion of a tract of land situated in the R.P. Hardin Survey, Abstract No. 61 1 , Denton County, Texas, same being that tract of land conveyed to The City of The Colony, by deed recorded in Volume 1824, Page 160, Deed Records, Denton County, Texas, and being more particularly described as follows: COMMENCING at a 1/2 inch iron rod found for corner, said corner being the South corner of Lot 1, Block 246, of The Colony No. 28 an Addition to the City of The Colony, Denton County, Texas, according to the Map thereof recorded in Cabinet D, Page(s) 28, Map Records, Denton County, Texas, and the West corner of Lot 2 or said Addition, and in the Northeast line of Avocet Way (50 foot right—of—way); South line of said Lot 2, THENCE South 46 degrees 26 minutes 01 seconds East, along the Northeast line of said Avocet Way, a distance of 36.32 feet to a point for corner, said corner being in the Northeast line of said Avocet Way, and the South corner of said Lot 2; THENCE North 88 degrees 46 minutes 55 seconds East, along the South line of said Lot 2, a distance of 85.12 feet to a point for corner, said corner being on the South line of said Lot 2, and on the Northerly line of said City of The Colony tract; THENCE South 01 degrees 13 minutes 05 seconds East, a distance of 13.95 feet to a point for corner; THENCE South 88 degrees 46 minutes 55 seconds West, a distance of 71.07 feet to a point for corner, said corner being in the Northeast line of said Avocet Way; THENCE North 46 degrees 26 minutes 01 seconds West, along the Northeast line of said Avocet Way, a distance of 19.80 feet to the POINT OF BEGINNING, and containing 1,089 square feet or 0.03 acres of land. OF -�� .... a 4v�L�1A�1K GENERAL NOTES: 1) BEARINGS ARE BASED ON PLAT RECORDED IN CAB. D, PG. 28, UNLESS OTHERWISE NOTED. THOMAS 'WAcf O� • ' Q R.P.L.S. ^�,�F.►Ey© �, -3: CBG Surveying, Inc. SHEET 1 OF 2 PLANNING • SURVEYING JOB NO. 1607376-1 12025 Shiloh Road Suite 230 Dallas, Texas 75228 DRAWN BY: WTH P 214.349.9485 • F 214.349.2216 DATE: 05/09/16 www.cbgdfw.com EXHIBIT FOR PROTRUSION WOOD— DECK AVOCET WAY • ' •50' R.O.W. d 2.0 �A • ! !! Wd• a S, . c d .,..! 12.7' O N /ONESTORY 5Q• �r� % I FRAME P01 y� N Gov NI s p 0 °1$�k• .��Oh °' LOT G O• SPA 2 6"OOD DECK �y S 01013'05" E $t 13.95' M — S 46'26'01" E < 36.32' 20' 10' 0 20' 40' SCALE: 1 " = 20' HOLDEN CIRCLE 50' R.O.W. GENERAL NOTES: 1) BEARINGS ARE BASED ON PLAT RECORDED IN CAB. D. PG. 28, UNLESS OTHERWISE NOTED. THOMAS ) R.P.L.S. N0. 5 _ CBG Surveying, Inc. PLANNING • SURVEYING 12025 Shiloh Road Suits 230 Dallas, Texas 75228 P 214.349.9485 4 F 214.349.2216 www.cbgdfw.com SHEET 2 OF 2 JOB NO. 1607376-1 DRAWN BY: WTH DATE: 05/09/16