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HomeMy WebLinkAbout01-10-13-2c - Resolution - 01/10/2013 RESOLUTION NO. ONO-/3-2c, A RESOLUTION MAKING CERTAIN FINDINGS OF FACT AND AUTHORIZING THE MAYOR OF THE CITY OF COLLEGE STATION TO EXECUTE A LICENSE AGREEMENT BETWEEN THE CITY OF COLLEGE STATION AND APPLICANT, HEATH PHILLIPS INVESTMENTS, LLC, PERTAINING TO THE ENCROACHMENT OF A STRUCTURE LOCATED IN COMMON AREA, THE BARRACKS II SUBDIVISION, PHASE 100, MORE COMMONLY KNOWN AS COMMON AREA AT 750 DEACON DRIVE WEST, INTO THE EASEMENT. WHEREAS, the City of College Station, has received an application for a license to encroach into a utility easement; WHEREAS, the City of College Station has enacted Ordinance No. 1645 regulating, controlling and governing encroachments; WHEREAS, in order for a license to be granted by the City Council of the City of College Station, the Council must make certain findings of facts; WHEREAS, after hearing the application of HEATH PHILLIPS INVESTMENTS, LLC, to encroach into the easement, the City Council of the City of College Station, finds the following facts: 1. That through no fault of the present property owner, a portion of the structure was constructed in the utility easement. 2. That there are no utilities which would be interfered with by the utilization of the property in its present status. 3. That there are no utilities which would interfere with the utilization of the property in its present status. 4. That the structure intrudes into the easement to such a degree that it is not economically feasible to remove the part of the structure within the easement. 5. That the land use in the neighborhood appears to be stable and the use to which this property is being put is not likely to change within the foreseeable future and is similar to the use to that of the neighborhood; WHEREAS, the City Council after hearing the application and finding the specific facts as stated above now concludes and finds that: 1. The fact that the structure was constructed within the easement through no fault of the present property owner and that it is not economically feasible to remove the part of the structure within the easement area does constitute special circumstances and conditions affecting the property which if not take into consideration would deprive the applicant of the reasonable use of his property. 2. The fact that the land use is not likely to change within the foreseeable future and that it is not economically feasible to remove the part of the structure within the easement does provide a basis for granting the license necessary for the preservation and enjoyment of the substantial property right of the applicant. Resolution No. Q / -/0 -/3 - 24 Page 2 3. The fact that the use of the easement area by the property owner does not interfere with the utilities or access to the utilities and is not detrimental to the public health, safety or welfare or injurious to the property in the area; and WHEREAS, the applicant agrees to accept the terms of the License Agreement as presented to him; now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF COLLEGE STATION: I. That the Mayor is hereby authorized to execute on behalf of the City of College Station a License Agreement with HEATH PHILLIPS INVESTMENTS, LLC, pertaining to the encroachment of a portion of a structure located in Common Area, The Barracks II Subdivision Phase 100, more commonly known as Common Area at 750 Deacon Drive West, into the easement area. The terms of said License Agreement are as set forth in the form which is attached hereto as Exhibit "A" and incorporated herein by reference for all purposes. II. That this resolution shall be effective immediately upon adoption. PASSED and APPROVED this 10 day of January, 2013. ATTEST: APPROVED: SHERRY HBURN, City Secretary NANCY :" RRY, Mayor APPROVED: Civt/a 4 gam rc; City Attorney LICENSE AGREEMENT THE STATE OF TEXAS * * KNOW ALL MEN BY THESE PRESENTS: COUNTY OF BRAZOS That the City of College Station (hereinafter referred to as "LICENSOR "), acting through the undersigned official who is so empowered by resolution of the City Council to so act in consideration of the agreement made herein by HEATH PHILLIPS INVESTMENTS, LLC, (hereinafter referred to as "LICENSEE "), owner of Common Area, The Barracks II Subdivision Phase 100, College Station, Texas, according to the plat recorded in Volume 10785, Page 163 of the Official Records of Brazos County, Texas, hereby grants a license to the said LICENSEE to permit a portion of a structure located on Common Area, The Barracks II Subdivision Phase 100, College Station, Texas, to encroach upon the easement, as shown on Exhibit "A" attached hereto and incorporated herein by reference for all purposes, owned and occupied by the City of College Station, Brazos County, Texas, but such improvements shall be at all times under and not in contact with any electric, water, sewer, or other utility, or equipment, or interfere in any way with such utility, including any drainage structures which are servicing the improvements and other property, and subject to the following terms and conditions: Neither the granting of the license, nor any related permit, constitutes an abandonment by LICENSOR of its property, easement or easements, or any other rights in and to the above - described property. LICENSEE expressly stipulating and agreeing by LICENSEE's acceptance of this license that LICENSEE neither asserts nor claims any interest or right of any type or nature whatsoever, legal, equitable or otherwise in or to LICENSOR's property. LICENSEE hereby expressly covenants, stipulates and agrees, without limitation, to indemnify and defend the LICENSOR and hold it harmless from any and all liability, claim, cause of action, and cost, including attorneys' fee, and including any acts or omissions of the LICENSOR, its officers, agents, and employees, which may grow out of or be attributable to the granting by the LICENSOR of said license and any supplemental license which may hereafter be issued in connection herewith including any inspections which may be conducted in connection with or pursuant to said license or any supplemental license. LICENSEE, at its own expense, shall restore or cause to be restored the subject property to as good a condition as existed prior to construction of the improvements which are the subject of this License Agreement. LICENSEE shall pay all costs of relocation of any public utilities or facilities that may be incurred as a result of the proposed construction or actual construction. LICENSEE agrees to comply with all laws and ordinances in the construction and maintenance of said improvements. LICENSOR retains the right, but not the obligation, to enter upon the land to which this license applies and at LICENSEE's expense to remove any structure or improvements or alterations thereon upon the determination by LICENSOR that such removal is necessary for exercising LICENSOR's rights or duties in regard to said easement, or for protecting persons or property, or public interest in regard to said easement. This license, until its expiration or revocation, shall run with the title to the above - described real property, and the terms and conditions hereof shall be binding upon subsequent owners or holders thereof. LICENSEE shall cause any immediate successors in interest to have factual notice of this License Agreement. ahlp: lagen- callin review11 -10 -13 (deadline 12.26.12) Iholleman dr s & deacon dr w license to encroach13- attachment 3- exhibit a - license agreement final.doc 1/8/2013 This license shall expire automatically upon removal of the improvements located upon the property pursuant to this license, and shall expire as to any portion of said improvements upon the removal, whether or not all of the proposed improvements are removed. This license is revocable by the LICENSOR upon the occurrence of any of the following conditions or events: A. LICENSEE or its successors or assigns have failed to comply with the terms of the granting of the license; or B. The improvements located thereon or any portion of them interfere with the rights of the LICENSOR or the public in or to LICENSOR's property; or C. The use of the licensed area becomes necessary for a public purpose; or D. Said improvements or a portion of them constitute a danger to the public which is not remediable by maintenance or alteration of the said improvements; or E. Said improvements or a portion of them have expanded beyond the scope of the license; or F. Maintenance or alteration necessary to alleviate danger to the public has not been made within a reasonable time after the dangerous condition has arisen. This license shall be effective upon the acceptance of the terms hereof by the LICENSEE, as indicated by the signature of LICENSEE. The license shall be filed of record in the Official Records of the County Clerk of the Brazos County Courthouse. APPROVED this the day of , 2013. APPROVED: APPROVED: HEATH PHILLIPS INVESTMENTS, LLC CITY OF COLLEGE STATION, LICENSEE LICENSOR BY: BY. r ' -1 HEATH PHILLIPS, President NANCY BEERY, Mayor ATTEST: SHERRY C HBURN, City Secretary - 2 - ahlp:lagen-callin review11 -10 -13 (deadline 12.26.12)Iholleman dr s & deacon dr w license to encroach13- attachment 3- exhibit a - license agreement frnal.doc 1/8/2013 STATE OF TEXAS ) ) CORPORATE ACKNOWLEDGMENT COUNTY OF BRAZOS ) This instrument was acknowledged before me on the day of , 2013, by , as Mayor of the City of College Station, a Texas Municipal Corporation, on behalf of said Corporation. Notary Public in and for the State of TEXAS STATE OF TEXAS ) ) CORPORATE ACKNOWLEDGMENT COUNTY OF BRAZOS ) This instrument was acknowledged before me on the day of 2013, by as of on behalf of said Notary Public in and for the State of Texas - 3 - ahlp:lagen-callin review11 -10 -13 (deadline 12.26.12)Iholleman dr s & deacon dr w license to encroach13- attachment 3- exhibit a - license agreement frnal.doc 1/8/2013