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Home My WebLink AboutResolution No. 08-063 CITY OF THE COLONY, TEXAS RESOLUTION NO. 08-063 A RESOLUTION OF THE CITY OF THE COLONY, TEXAS, APPROVING THE TERMS AND CONDITIONS OF AN ENCROACHMENT / LICENSE AGREEMENT BETWEEN THE CITY OF THE COLONY AND CB MF 5 LAND, LTD., TO PERMIT THE INSTALLATION OF FIFTEEN (15) PRIVATELY OWNED AND MAINTAINED STREET LIGHTS WITHIN PUBLIC RIGHTS-OF-WAY WITHIN THE CITY OF THE COLONY, AS INCORPORATED HEREIN AND ATTACHED HERETO AS EXHIBIT "A"; AUTHORIZING THE CITY MANAGER TO EXECUTE THE AGREEMENT; PROVIDING AN EFFECTIVE DATE WHEREAS, the City and CB MF 5 LAND, LTD., desire to enter into this Agreement whereby the City authorizes the installation of fifteen (15) privately owned street lights within city rights-of-way; and WHEREAS, by entering into this Agreement CB MF 5 LAND, LTD. is solely responsible for the construction, maintenance, removal and replacement of the streetlights. 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 between the City of The Colony and CB MF 5 LAND, LTD., to permit the installation of fifteen (15) privately owned and maintained street lights within public rights-of-way. Section 3. That the City Manager is authorized to execute the Encroachment I License Agreement on behalf of the City. Section 4. That a copy of the Encroachment/License Agreement IS incorporated herein, and attached hereto as Exhibit A. Section 5. 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 18th day of AU1!:Ust. 2008. Dillard, Mayor of The Colony, Texas cL.J ~~ Christie Wilson, TRM ,CIty Secretary APPROVED AS TO FORM: ENCROACHMENT / LICENSE AGREEMENT STATE OF TEXAS ~ ~ COUNTY OF DENTON ~ THIS ENCROACHMENT AGREEMENT is made by and between CB MF 5 LAND, LTD., a Texas limited partnership (hereinafter called "Developer"), and the THE COLONY, DENTON COUNTY, TEXAS, a Texas Home Rule Municipal Corporation (hereinafter called the "City"). WHEREAS, the City is the owner of the Sumner Street and Arbor Hills Way dedicated rights-of-way situated in The Colony, Denton County, Texas, being depicted as described in Exhibit A, an addition to The Colony (hereinafter called the "Property"); and WHEREAS, Developer proposes to construct light poles and luminaries ("Improvements") within the said rights-of-way as depicted on Exhibit A, attached hereto and made a part hereof for all purposes, which such Improvements will encroach upon the such right-of-way ("Encroachment") and has requested the City to allow such Encroachments; and WHEREAS, the pertinent departments within the City have reviewed Developer's request and recommend approval thereof, subject to Developer's agreement to be solely responsible for the construction, maintenance, removal and replacement of the Improvements as set forth herein. NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS: 1. The City, being the present owner of the 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 license to place and maintain, subject to the limitation herein, the Improvements within the easements and/or rights-of-way as defined herein. Developer shall be solely responsible for the construction, maintenance, removal and replacement of the Improvements as set forth herein. The Developer, its successors and assigns must maintain the private lights such that no more than twenty percent (20%) may be inoperable at any point and time. Developer, its successors and assigns shall ensure that poles do not lean more than five percent (5%) from vertical. 2. 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 rights-of-way is an emergency. Upon receipt of such TM 29765.76.000 notification, Developer, its successors and assigns shall be responsible, at Developer's, its successors' and assigns' sole cost and expense, to remove the Improvements from the rights-of-way. The City shall not have any responsibility for damage to any improvements, or any portion thereof, which remain in the rights-of-way after such notification. Upon completion of any such work by the City, Developer, at its sole cost and expense, may replace the Improvements in the rights-of-way. 3. The City shall not be responsible for any damages to the Improvements occurring from the failure of the city's facilities beyond the reasonable control of the City. Developer, its successors and assigns shall maintain adequate liability insurance with the City as a named beneficiary to insure reconstruction or repair of such encroachment in the event of damage or disrepair. 4. 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, INCLUDING COURT COST, EXPENSES AND ATTORNEY'S FEES, AND ALL OTHER EXPENSES ARISING DIRECTL Y OR INDIRECTLY FROM THE DEVELOPER'S PERFORMANCE OF THIS AGREEMENT. 5. 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 any way, the improvements, at sole cost of Developer, its successors and assigns, must be removed. 6. 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, at sole cost of Developer, its successors and assigns, must be removed. 7. In the event that the City brings an action or proceeding for an alleged breach or default of, or any other action arising out of, this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees in addition to any court costs incurred and in addition to any other damages or relief awarded. This provision will survive the termination of this Agreement. 8. This Agreement shall be binding upon Developer, its successors and assigns, and shall be a covenant running with the land, and shall be recorded in the Deed Records of Denton County, Texas, as notice to all subsequent owners. TM 29765.76.000 EXECUTED this ~ay of #~008. CITY OF THE COLONY, TEXAS By: 9~~ Dale Cheatham, City Manager ACCEPTED AND ACKNOWLEDGED CB MF 5 LAND, LTD., a Texas limited partnership By: Henry GP, L.L.C., a Texas limited liability company General Partner TM 29765.76.000 ACKNOWLEDGMENT STATE OF TEXAS ) ) COUNTY OF DENTON ) This instrument was acknowledged before me on this ~ day of ~. , 2008, by Dale Cheatham, City Manager of the City of The Colony, a Texas home rule municipality, on behalf of said municipality. ~""~"""""""""""~ I ""'11"",, I. l! ll;~~~..;,~!;~<. CHRISTIE NEU WilSON I I ~-;~*k} Notary Public Slale 01 Telas i 1\ oI'j';;"",""."\.",~ My Com mission Explre5 11-22-09 i "",,!'m,~\,"'" I ""~""""""""""'~~ J!J~~ ~ uJ~~ Notary Public, State of Texas My commission expires: II-d~-oq TM 29765.76.000 ACKNOWLEDGMENT STATE OF TEXAS ) ) COUNTY OF DENTON ) 110'/ . This instrument was acknowledged before me on this day of I~U 2008, by Kenneth D. Mabry, Manager of Henry GP, L.L.c., a Texas limited Ii ility company, the General Partner of CB MF 5 Land, Ltd., a Texas limited partnership, on behalf of said limited partnership. \\\\\\\Ii\\IlIHllI'IIJ/II, '\\\\\\ tJ A "It~.f. ", 1>-" . G 1_<. ~ ~ .........,. 0 ~~ j" <l:1~...."\~RY p;.....1,..-"\, "'l.t.J' 0*<9 .~'" I Q i:' : ~ \ ~ \ ~ : -' Co ,: "-J ~ - . ~ ~. ~ %. .... (' OF"\.(.i- ..' i ~ . ('" . "" %. 0 '..~PIRE.S .... ~ ~ <l ......... -:::;.' 'llllllll . 30_ 20'\ 0 """", '('1I!1/1/11 II l!I1\\"\\\\ t~~k () /J1\ Notary Public, State of, My commission expires: L--f/3;J) I\) TM 29765.76.000