HomeMy WebLinkAboutResolution No. 06-073
CITY OF THE COLONY, TEXAS
RESOLUTION NO. 06- ()13
A RESOLUTION OF THE CITY OF THE COLONY, TEXAS,
AUTHORIZING THE MAYOR TO ENTER INTO A LICENSE
AGREEMENT WITH JASON S. SMITH ET UX FOR THE USE
AND OCCUPANY OF A PORTION OF CITY PROPERTY
LOCATED IN SLAY/BAKER PARK; ATTACHING THE
APPROVED FORM OF CONTRACT AS EXHIBIT A; AND
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 A LICENSE AGREEMENT WITH JASON S. SMITH ET UX FOR THE USE
AND OCCUPANY OF A PORTION OF CITY PROPERTY LOCATED IN
SLAY/BAKER PARK.
Section 2. That a true and correct copy of the Agreement is attached hereto
and incorporated herein, as exhibit A.
Section 3.
of the city.
That the Mayor is authorized to execute the Agreement on behalf
Section 4.
passage.
That this resolution shall take effect immediately from and after its
PASSED AND APPROVED by the City Council of the City of The Colony,
Texas, this 21st day of August, 2006.
Dillard, Mayor
of The Colony, Texas
STATE OF TEXAS ~
~
COUNTY OF DENTON ~
LICENSE AGREEMENT
THIS AGREEMENT is made by and between City of The Colony, Texas (hereinafter
referred to as "CITY") and Jason S. Smith et ux (hereinafter collectively referred to as
"LICENSEE") acting by and through their authorized representatives.
WITNESSETH:
WHEREAS, LICENSEE owns the real property improvements located at 5613 Painter
and being more particularly described in Exhibit "A", attached hereto and incorporated herein as
set forth in full; and
WHEREAS, LICENSEE constructed or caused to be constructed a fence (hereinafter
referred to as the "IMPROVEMENTS") which encroaches upon City park land commonly
known as Slay Baker Park located at 5600 Baker Drive, as shown on the attached survey plat
marked Exhibit "B" and incorporated herein for all purposes; and
WHEREAS, LICENSEE has requested the CITY allow the use and occupancy of that
portion of the CITY owned park land for LICENSEE IMPROVEMENTS;
NOW THEREFORE, in consideration of the covenants contained herein and other
valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties
agree as follows:
1. Purpose: CITY hereby grants LICENSEE a revocable license for the purpose of
maintaining and using the fence (the "PERMITTED IMPROVEMENTS") encroaching the CITY
owned park land and being more particularly depicted on the map marked Exhibit "B" attached
hereto and incorporated herein for all purposes.
2. Term: The term of this License shall be perpetual, subject, however, to termination by
the CITY as provided herein.
3. Non-exclusive: This License is nonexclusive and is subject to any existing facilities
located in, on, under or upon the property owned by CITY, any utility or communication
company, public or private, to all vested rights presently owned by any company, public or
private for the use of the CITY owned park land for facilities presently located within the
boundaries of the CITY owned park land and to any existing lease, license, or other interest
granted by CITY to any individual, corporation or other entity, public or private.
4. Environmental Protection: LICENSEE shall not use or permit the use of the property
for any purpose that may be in violation of any laws pertaining to the health of the environment,
including without limitation, the comprehensive environmental response, compensation and
liability act of 1980 ("CERCLA"), the resource conservation and recovery act of 1976
("RCRA"), the Texas Water Code and the Texas Solid Waste Disposal Act. LICENSEE warrant
LICENSE AGREEMENT - PAGE 1
68720
that the PERMITTED use of the property will not result in the disposal or other release of any
hazardous substance or solid waste on or to the property, and that it will take all steps necessary
to ensure that no such hazardous substance or solid waste will ever be discharged onto the
property or adjoining property by LICENSEE. The terms "hazardous substance and waste" shall
have the meaning specified in CERCLA and the term solid waste and disposal (or dispose) shall
have the meaning specified in the RCRA; provided, however, that in the event either CERCLA
or RCRA is amended so as to broaden the meaning of any term defined thereby, such broader
meaning shall apply subsequent to the effective date of such amendment; and provided further, at
the extent that the laws of the State of Texas establish a meaning for hazardous substance,
release, solid waste, or disposal which is broader then that specified in the CERCLA or RCRA,
such broader meaning shall apply. LICENSEE shall indemnify and hold CITY harmless against
all costs, environmental clean up to the property and surrounding CITY property resulting from
LICENSEE' use of the property under this License.
5. Mechanic's liens not permitted: LICENSEE shall fully pay all labor and materials used
in, on or about the property and will not permit or suffer any mechanic's or material man's liens
of any nature be affixed against the property by reason of any work done or materials furnished
to the property at LICENSEE' instance or request.
6. Future City use: This License is made expressly subject and subordinate to the right of
CITY to use the property for any public purpose whatsoever. In the event that CITY shall, at any
time subsequent to the date of this Agreement, at its sole discretion, determine that the relocation
or removal of the PERMITTED IMPROVEMENTS shall be necessary or convenient for CITY's
use of the property, LICENSEE shall at the sole cost and expense make or cause to be made such
modifications or relocate said PERMITTED IMPROVEMENTS as not to interfere with the
CITY's or CITY's assigns use of the property. A minimum of thirty (30) days written notice for
the exercise of the above action shall be given by CITY and LICENSEE shall promptly
commence to make the required changes and complete them as quickly as possible or reimburse
CITY for the cost of making such required changes.
7. Duration of License: This License shall terminate and be of no further force and effect
III the event LICENSEE shall discontinue or abandon the use of the PERMITTED
IMPROVEMENTS or in the event LICENSEE shall remove the PERMITTED
IMPROVEMENTS from the property or upon termination by CITY whichever event first
occurs; or, in the event that the City abandons the property, then this agreement shall be of no
further effect.
8. Compliance with laws: LICENSEE agrees to abide by and be governed by all laws,
ordinances and regulations of any and all governmental entities having jurisdiction over the
LICENSEE.
9. Indemnification: LICENSEE shall defend, protect and keep CITY forever harmless and
indemnified against and from any penalty, or any damage, or charge, imposed for any violation
of any law, ordinance, rule or regulation arising out of the use of the property by the LICENSEE,
whether occasioned by the neglect of LICENSEE, its employees, officers, agents, contractors or
assigns or those holding under LICENSEE. LICENSEE shall at all times defend, protect and
LICENSE AGREEMENT - PAGE 2
68720
indemnify and it is the intention of the parties hereto that LICENSEE hold CITY harmless
against and from any and all loss, cost, damage, or expense, including attorney's fee, arising out
of or from any accident or other occurrence on or about the property causing personal injury,
death or property damage resulting from use of property by LICENSEE, its agents, employees,
customers and invitees, except when caused by the willful misconduct or negligence of CITY, its
officers, employees or agents, and only then to the extent of the proportion of any fault
determined against CITY for its willful misconduct or negligence. LICENSEE shall at all times
defend, protect, indemnify and hold CITY harmless against and from any and all loss, cost,
damage, or expense, including attorney's fees arising out of or from any and all claims or causes
of action resulting from any failure of LICENSEE, their officers, employees, agents, contractors
or assigns in any respect to comply with and perform all the requirements and provisions hereof.
10. Action upon termination: At such time as this License may be terminated or canceled
for any reason whatsoever, LICENSEE, upon request by CITY, shall remove all PERMITTED
IMPROVEMENTS and appurtenances owned by it, situated in, under or attached to the CITY
park land and shall restore such property to substantially the condition of the property prior to
LICENSEE' encroachment at LICENSEE sole expense.
11. Termination: This Agreement may be terminated in any ofthe following ways:
a. Written agreement of both parties;
b. By CITY giving LICENSEE thirty (30) days prior written notice;
c. By CITY upon failure of LICENSEE to perform its obligations as set forth in this
Agreement;
d. By the City abandoning any interest in the park land.
12. Notice: When notice is permitted or required by this Agreement, it shall be in writing
and shall be deemed delivered when delivered in person or when placed, postage prepaid in the
United States mail, certified return receipt requested, and addressed to the parties at the address
set forth opposite their signature. Either party may designate from time to time another and
different address for receipt of notice by giving notice of such change or address.
13. Attornev's fees: Any signatory to this Agreement, who is the prevailing party in any
legal proceeding against any other signatory brought under or with relation to this Agreement
shall be entitled to recover court cost and reasonable attorney's fees from the non-prevailing
party.
14. Governinl! law: This Agreement is governed by the laws of the State of Texas; and
venue for any action shall be in Denton County, Texas.
15. Bindinl! effect: This Agreement shall be binding upon and inure to the benefit of the
executing parties and their respective heirs, personal representatives, successors and assigns.
16. Entire Al!reement: This Agreement embodies the entire agreement between the parties
and supersedes all prior agreements, understandings, if any, relating to the property and the
LICENSE AGREEMENT - PAGE 3
68720
matters addressed herein and may be amended or supplemented only by written instrument
executed by the party against whom enforcement is sought.
17. Recitals: The recitals to this Agreement are incorporated herein by reference.
18. Leeal 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
LICENSEE who acquire 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.
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EXECUTED thls;':::-""'/'> day of '--.> i'~.. Ulf ,;;.d<.J'.i' , 2006.
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CITY OF THE COLONY, TEXAS
BY:~~~~OR
ATTEST,.:, (1.' :
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By: !:, ' o,,:{- t , i/~.j, l.,,~~~ (Jj L'~"'l''''
CHRISTY WILSON, CITY SECRETARY
ACCEPTANCE ACKNOWLEDGED BY:
LICENSEE:
By:
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JASON-8:SMITH
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By:
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LICENSE AGREEMENT - PAGE 4
68720
CITY'S ACKNOWLEDGMENT
STATE OF TEXAS ~
~
COUNTY OF DENTON ~
This instrument was acknowledged before me on the,-.J..l)~~y of(.lL[.:~!'1 ,f cr,f';
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2006, by John Dillard, Mayor of the City of The Colony, Texas, a Texas municipality,>on behalf of
said municipality.
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SURVEY PLAT
NO. ------~~l~-E.~I.NJ~~.fL~1R~~I__.___ ; IN THE ----~rr..9f.-lli~_.9.Q~Q~y__.h , TEXAS, DESCRIBED AS FOLLOWS:
lOT -....J... .~ ,BLOCK "'n ..!~L .... , _.. "'. ..... .T!iL~QkQ~Yl'lQ,. ,;1~. __, .___....__ __, ,
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A' ADDITION TO THE . ---- -------- -.QL1L Qf.JHLQQi,~Y..J).~~I9tL __. ",.. __._ '''.. COUN I Y, rEXAS ACCORDING
TO MAP OR PLAT THEREOF RECORDED IN -Q~IK(IJL , E~~__~~_ OF THE P!:.~I RECORDS OF Q~~I~ COUNTY, TEXAS
NOTE: THE BEARINGS SHOWN HEREON ARE BASED ON THE ABOVE -REFERENCED, RECORDED MAP OR PLAT.
LEGEND. RLo BUIWNG LINE; CM.o CONIROLllNG MONUMENT. cO",.o CONCRE1f. DRDCJo OEm RECORDS, DENTON COUTNY, TEXAS. End.
LR.= FOUND IRON ROD; Pg= PAGE; R.OW,= RIGHT-OF-WAY; U.G.C.E.= UNDERGROUND CABLE EASEMENT; VoL= VOLUME
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First American Title Insurance Company
TO IHE LIENHOLDERS AND/OR THE OWNERS Of THE PREMISES SURVlYED AND TO ."-Lr:"!<,,-...C1IC.~~",,~~l~::-_Q!~~
THE UNDERSIGNED DOES HEREBY CERTIFY THAT THIS SURVEY WAS THII:; nAY IJAnr ml TIJr ""."",,, __ _
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