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Ordinance No. 13,883ORDINANCE NO. 13,883 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE AND THE CITY CLERK TO ATTEST TO A LICENSE AGREEMENT WITH GOOSE CREEK LIVE -WORK, L.L.C., TO ALLOW A BLADE SIGN AT 612W. TEXAS AVENUE TO PROTRUDE INTO THE RIGHT-OF-WAY; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. ***************************************************************************** BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes and directs the City Manager and City Clerk of the City of Baytown to execute and attest to a License Agreement with Goose Creek Live -Work, L.L.C., to allow a blade sign at 612 W. Texas Avenue to protrude into the right-of-way. A copy of said License Agreement is attached hereto, marked Exhibit "A" and incorporated herein for all intents and purposes. Section 2: This ordinance shall take effect immediately from and after its passage by the City Council of the City of Baytown. A INTRODUCED, READ, and PASSED by the City of Baytown, this the 27th day of September, 2018. A' S LETICIA BRYSCH, JCity APPROVED AS TO FORM: ACIO RAMIREZ, SR., Ci P ttorney of the City Council of the cobfs0l\legal'Karen\Files�City Council\Ordinances\2018\September 27\GooseCreekLive-WorkLicenseAgreement.doc ►"M Exhibit "A" LICENSE AGREEMENT STATE OF TEXAS § COUNTY OF HARRIS § This License Agreement (this "Agreement") is made and entered into effective the day of . 20_, by and between the CITY OF BAYTOWN, a home -rule municipality in Harris and Chambers Counties, Texas, (hereinafter referred to as "City') and GOOSE CREEK LIVE -WORK, L.L.C., a Texas limited liability company ("GCLW '). WITNESSETH: In consideration of the mutual covenants, payments, responsibilities and duties herein contained, the City and GCLW agree as follows: 1. PROPERTY. Subject to the terms and conditions herein, the City hereby grants to GCLW for GCLW's non-exclusive use certain portions of the W. Texas Avenue right-of-way, located at least nine feet (9') above ground level, as more particularly depicted in Exhibit "A," which is attached hereto and incorporated herein for all intents and purposes (the "Property'). 2. USE. 2.1 Permitted use. Throughout the tern hereof and subject to the conditions specified herein, GCLW shall use the Property only for the installation, repair and maintenance of one 24" wide x 54" tall sign, which shall project 34" onto the Property (the "Sign"). The Sign shall be securely attached to the multi -family complex, which contains at least thirty-four (34) dwelling units and which is located at 612 W. Texas Avenue, Baytown, Texas, and more particularly described as Lot 2, Block 3, Pruett Estates Section 2, Harris County, Texas (the "Structure"). Any use of the Property not specified in this Section 2.1 is expressly prohibited and shall constitute an Event of Default. 2.2 Limitation of use. GCLW understands and agrees that, at all times during the term of this Agreement, the Structure must be operational and must house the use specified in this Section 2.1. Failure to operate the Structure in accordance with such Section 2.1 shall constitute an Event of Default. 2.3 Non permitted uses. GCLW understands and agrees that nothing shall be erected on, over or above the Property other than the Sign, which shall meet and be maintained to meet the requirements of all applicable codes of the City. GCLW also understands and agrees that, without the express, prior written consent of the City Manager, GCLW shall not disturb the existing pavement or any improvements on the Property. Chanter 380 Economic Development Agmment. Page I 2.4 Removal of Sign. The City reserves the right to require GCLW to remove the Sign or any portion thereof erected on the Property for any reason at any time. Except as otherwise provided in Section 2.5, GCLW shall complete any such removal immediately within thirty (30) days after written notice from the City. The removal shall be at GCLW's sole cost and expense. At no time shall the City be liable for such costs. 2.4.1 Failure to timely remove the Sign shall constitute an Event of Default. 2.4.2 Additionally, the City shall have the right to remove the Sign or any portion thereof, which is not timely removed by GCLW, and assess the costs of the same plus an administrative fee of 10% of such cost to GCLW. GCLW shall pay the costs and the fee within thirty (30) days of receiving an invoice therefor. Failure to timely pay the invoiced amount shall constitute an Event of Default, and the City shall have the right to place a lien on GCLW's property for the associated cost and administrative fee, which lien shall accrue interest at the rate of twelve percent (12%) per annum or the maximum rate permitted by law. 2.5 Emergency removal. The City reserves the right to remove, remedy or otherwise abate any condition on the Property that the City believes, in the sole discretion of the City Manager, is a safety hazard or a nuisance. Additionally, the City may require GCLW to remove, remedy or otherwise abate any such condition on the Property within forty-eight (48) hours. The removal, remedy and/or abatement concerning the Property shall be at GCLW's sole cost and expense. At no time shall the City be liable for such costs. 2.5.1 Failure of GCLW to remove, remedy or abate the condition identified shall constitute an Event of Default. 2.5.2 Should the City remove, remedy or abate a hazardous or nuisance condition, GCLW shall be responsible for all costs thereof plus an administrative fee of 10% of such cost. 2.5.3 GCLW shall pay the costs and the fee within thirty (30) days of receiving an invoice therefor. Failure to timely pay the invoiced amount shall constitute an Event of Default, and the City shall have the right to place a lien on GCLW's property for the associated cost and administrative fee, which lien shall accrue interest at the rate of twelve percent (12%) per annum or the maximum rate permitted by law. 3. TERM. The term of this Agreement will be for ten (10) years, and will commence upon the effective date first referenced hereinabove ("Commencement Date") and will terminate Chanter 380 Economic Development Agreement Page 2 ten (10) years after the issuance of the certificate of occupancy for the Structure, unless sooner terminated as provided in this Agreement. 4. CONSIDERATION. 4.1 Maintenance. From and after the Commencement Date, GCLW shall be responsible for year-round maintenance of the Sign, the Structure, and the property on which the Structure is located. Failure to timely provide such maintenance shall constitute an Event of Default. 4.2 No warranties. In consideration for the privilege of use of the Property, GCLW specifically assumes any and all liability that may arise due to any site or property defects or other defects arising out of or relating to the Property and/or the Sign. GCLW accepts the Property as is, in the condition in which it is found. The City hereby disclaims, and GCLW hereby accepts the City's disclaimer, of any warranty, express or implied, of the conditions or fitness for use of any portions of the Property. 5. STANDARDS. 5.1 GCLW may only use the Property for the purposes specified in Section 2 hereof. 5.2 GCLW shall, at its expense, comply with all present and future federal, state, and local laws, ordinances, rules and regulations, including, without limitation, laws and ordinances relating to health, and other radiation and safety requirements in connection with the Property. 5.3 GCLW will maintain the Property in a sanitary, safe and clean condition. GCLW also agrees to clean all areas on the Property if and when the use of the Property results in or creates the need for such cleaning. GCLW further agrees and covenants that the Property shall at all times be subject to inspection by the City. However, the City has no duty to inspect the Property. 5.4 GCLW shall be responsible for the safety and protection of all persons and personal property on the Property. 6. DEFAULT, TERMINATION OR EXPIRATION. 6.1 Cure period for Events of Default. It shall be a default if GCLW fails to pay any sums to the City when due and does not cure such default within ten (10) days; or if GCLW fails in the performance of any other covenant or condition of this Agreement and does not cure such other default within thirty (30) days after written notice from the City specifying the default. 6.2 Events of Default. In addition to those previously identified, an Event of Default shall include, but not be limited to, the following: a. GCLW abandons or vacates the Property; Chanter 390 Economic Development Agreement Page 3 b. GCLW is adjudicated bankrupt or makes any assignment for the benefit of creditors; C. GCLW becomes insolvent or GCLW reasonably believes itself to be insolvent; d. GCLW attempts to assign or transfer this Agreement in whole or in part, or any interest in this Agreement or any rights under this Agreement without the prior written consent of the City, which consent may be withheld for any reason or no reason; or e. GCLW fails to comply with any provision in this Agreement. 6.3 City's right to remove the Sign. In the event of a default, the City shall have the right, at its option, in addition to and not exclusive of any other remedies the City may have by operation of the law or in accordance with this Agreement, without any further demand or notice, to remove the Sign from the Property, and declare this Agreement at an end, and in which event GCLW shall immediately pay the City a sum of money equal to any amount necessary to compensate the City for all damages caused by GCLW's failure to perform its obligations under this Agreement, including attorneys' fees to enforce the terms and conditions of this Agreement. The Sign shall be deemed abandoned if not removed prior to the termination date, and the City may use or dispose of the same at its discretion without liability. 6.4 GCLW's right to remove the Sign. After obtaining all applicable permits (if any), GCLW shall have the right, at its option, to remove the Sign from the Property, and declare this Agreement at an end, and in which event GCLW shall immediately pay the City any sums which remain outstanding at the time of the termination.. 6.5 City's right to terminate for redevelopment of the Property. This Agreement may be terminated by the City if the City decides, in its sole discretion and for any reason, to redevelop and/or to sell the Property. The City will give notice to the extent possible, but no less than thirty (30) days' notice to GCLW will be provided unless an emergency condition exists as determined in the sole discretion of the City Manager. 6.6 GCLW's obligations upon termination or expiration. GCLW shall remove the Sign from the Property on or before the termination or expiration date, and shall repair to the satisfaction of the City any damage to the Property and the Structure at GCLW's sole cost and expense. In the event that the Sign is not so removed to the satisfaction of the City, the Sign shall become the property of the City and GCLW shall have no fiuther rights thereto. The City shall not be liable for the removal or for any damage which may be caused by such removal. Furthermore, any and all damage to the Property or the Structure, whether caused by removal or by GCLW's use of the Property, shall be at GCLW's sole cost and expense and the City shall not be liable for the same. Chapter 380 Economic DeveloRment Agreement Page 4 6.7 No arbitration. Notwithstanding anything to the contrary contained in this Agreement, the City and GCLW hereby agree that no claim or dispute between the City and GCLW arising out of or relating to this Agreement shall be decided by any arbitration proceeding including, without limitation, any proceeding under the Federal Arbitration Act (9 U.S.C. Sections 1-14), or any applicable State arbitration statute, including, but not limited to, the Texas General Arbitration Act, provided that in the event that the City is subjected to an arbitration proceeding notwithstanding this provision, GCLW consents to be joined in the arbitration proceeding if GCLW's presence is required or requested by the City for complete relief to be recorded in the arbitration proceeding. 7. INDEMNIFICATION, RELEASE, AND INSURANCE. 7.1 Disclaimer of liability. The City shall not at any time be liable for injury or damage occurring to any person or property from any cause whatsoever arising out of GCLW's construction, maintenance, repair, use, operation, condition of the Property and/or any improvements thereon. 7.2 Assumption of risk GCLW undertakes and assumes for its officers, agents, contractors and subcontractors, employees, customers and the public (collectively "GCLW" for the purpose of this section), all risk of dangerous conditions, whether patent or latent, obvious or undiscoverable, and regardless of whether the City should have known of such dangerous conditions, if any, on or about the Property. 7.3 No liens. GCLW agrees that no claim or lien may be filed against the Property for work, labor, materials or supplies provided or supplied to GCLW, concerning the installation, construction, operation, maintenance or use of the Property or the Sign. Should such claim or lien be filed, GCLW, upon the written request of the City, shall cause such claim or lien covering the Property to be discharged or bonded within thirty (30) days following such request to the satisfaction of the City Manager. 7.4 INDENINIFICATION. GCLW AGREES TO AND SHALL INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS, AGENTS AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS, AND LIABILITY OF EVERY KIND, INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS, AND ATTORNEY'S FEES, FOR INJURY TO OR DEATH OF ANY PERSON, OR FOR DAMAGE TO ANY PROPERTY, ARISING OUT OF OR IN CONNECTION Chanter 380 Economic Development AgmmenL Page 5 WITH WORD DONE AND/OR THE SERVICES PERFORMED BY GCLW PURSUANT TO THIS AGREEMENT, THE CONDUCT OR MANAGEMENT OF GCLW'S ACTIVITIES, OR FROM ANY ACT OR OMISSION BY GCLW, ITS AGENTS, SERVANTS, EMPLOYEES, SUBCONTRACTORS, GUESTS, OR INVITEES, ON OR ABOUT THE PROPERTY SUBJECT TO THIS AGREEMENT, WHERE SUCH INJURIES, DEATH OR DAMAGES ARE CAUSED BY (n THE JOINT NEGLIGENCE OF THE CITY AND ANY OTHER PERSON OR ENTITY AND/OR (11) THE SOLE OR JOINT NEGLIGENCE OF GCLW, ITS OFFICERS, AGENTS, CONTRACTORS, EMPLOYEES, INVITEES AND/OR GUESTS. IT IS THE EXPRESS INTENTION OF THE PARTIES HERETO, BOTH GCLW AND THE CITY, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY GCLW TO INDEMNIFY AND PROTECT THE CITY FROM THE CONSEQUENCES OF (n THE CITY'S OWN NEGLIGENCE, WHERE THAT NEGLIGENCE IS A CONCURRING CAUSE OF THE RESULTING INJURY, DEATH OR DAMAGE AND/OR (In THE NEGLIGENCE OF GCLW, ITS OFFICERS, AGENTS, EMPLOYEES, INVITEES AND/OR GUESTS. FURTHERMORE, THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL HAVE NO APPLICATION TO THE CITY FOR ANY CLAIM, LOSS, DAMAGE, CAUSE OF ACTION, SUIT AND LIABILITY WHERE THE INJURY, DEATH OR DAMAGE RESULTS FROM THE SOLE NEGLIGENCE OF THE CITY, UNMMD WITH THE FAULT OF ANY OTHER PERSON OR ENTITY. In the event that any action or proceeding is brought against the City by reason of any matter from which the City is indemnified herein, GCLW further agrees and covenants to defend the action or proceeding by legal counsel acceptable to the City. It is expressly agreed and understood by the parties hereto that the indemnity provided in this section shall survive the expiration or earlier termination of this Agreement. 7.5 Release. GCLW assumes full responsibility for any work that it or its officers, contractors, agents or volunteers perform on the Property as well as for the use of the Property and hereby releases, relinquishes and discharges the City, its officers, agents, and employees from all claims, demands, and causes of action of every Chapter 380 Economic Development Agreement, Page 6 kind and character, including the cost of defense thereof, for any injury to or death of any person (whether they be either of the parties hereto, their employees, or other third parties) and any loss of or damage to property (whether the property be that of either of the parties hereto, their employees, or other third parties) that is caused by or alleged to be caused by, arising out of, or in connection with this Agreement. This release shall apply regardless of whether said claims, demands, and causes of action are covered in whole or in part by insurance. 7.6 Insurance. Throughout the term of this Agreement, GCLW shall maintain insurance coverage of the type and amount hereinafter indicated. GCLW shall provide to the City's Risk Manager an insurance certificate evidencing the following coverage in the minimum limit indicated hereinbelow: o Commercial General Liability General Aggregate: $2,000,000 Per Occurrence: $1,000,000 ■ The City, its officials and employees are to be added as additional insureds to this commercial general liability policy. ■ A wavier of subrogation in favor of the City shall also be required on such policy. ■ Coverage shall be broad form CGL. ■ No coverage exclusions shall be deleted from standard policy without notification of individual exclusions being attached for review and acceptance. Prior to or upon the execution of this Agreement and before commencing any of the work, GCLW shall file with the City valid Certificates of Insurance and endorsements acceptable to the City. Such certificates shall contain a provision that coverages afforded under the policies will not be canceled, suspended, voided, or reduced until at least thirty (30) days' prior written notice has been given to the City via certified mail, return receipt requested. Prior to the end of each coverage period during the term of this Agreement, new Certificates of Insurance must be filed with the City evidencing continuation of coverage. The following are general requirements, which are applicable to the required policy: o All insurance coverage required herein, except for workers' compensation insurance, shall be written by a carrier with an A.M. Best Rating of A- or higher in accordance with the current Best Key Rating Guide. o Only insurance carriers licensed and admitted to do business in the State of Texas will be accepted. Chapter 380 Economic Development Agreement. Page 7 o Deductibles shall be listed on the Certificate of Insurance and are acceptable only on a per -occurrence basis. o Claims -made policies will not be accepted. o The City, its officers, agents and employees are to be added as "Additional Insureds" to the policy. The coverage shall contain no special limitation on the scope of protection afforded to the CITY, its officers, agents or employees. o A waiver of subrogation in favor of the City must be included. o Upon request, certified copies of all insurance policies and/or certificates of insurance shall be finished to the City at no cost to the City. 8. ACCEPTANCE OF PROPERTY. By taking possession of the Property, GCLW accepts the Property in the condition existing as of the Commencement Date. The City makes no representation or warranty with respect to the condition of the Property, and the City shall not be liable for any latent or patent defect in the Property. 9. NOTICE. All notices or demands are deemed to have been given or made when delivered in person or mailed by certified, registered, or express mail, return receipt requested, postage prepaid, United States mail, and addressed to the applicable party as follows: CITY: CITY OF BAYTOWN Attention: City Manager P.O. Box 424 Baytown, TX 77522 GCLW: Goose Creek Live -Work, L.L.C. Attn: Managing Member P.O. Box 239 Baytown, TX 77522 10. CONSTRUCTION. Both parties have participated fully in the review and revision of this Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply to the interpretation of this Agreement. 11. ASSIGNMENT. Neither party to this Agreement may assign their rights, duties or interests without first obtaining the written consent of the other party. Chapter 380 Economic Development Agreement. Page 8 12. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure to the benefit of the parties, their respective successors, personal representatives and assigns. 13. MISCELLANEOUS. 13.1 Authority. Each party has the full power and authority to enter into and perform this Agreement, and the person signing this Agreement on behalf of each party has been properly authorized and empowered to enter into this Agreement. The persons executing this Agreement hereby represent that they have authorization to sign on behalf of their respective entities. 13.2 Entire agreement. This Agreement constitutes the entire agreement and understanding of the parties and supersedes all offers, negotiations, and other agreements of any kind. There are no representations or understandings of any kind not set forth herein. Any modification of or amendment to this Agreement must be in writing and executed by both parties. 13.3 No property right granted. This Agreement does not establish any real property rights, franchises or other rights whatsoever in real estate to GCLW. This Agreement provides limited rights to use and limited rights for access to facilities subject to revocation upon the terms and conditions of this Agreement. 13.4 Binding effect. This Agreement shall be binding on and inure to the benefit of the parties and their respective successors and assigns. 13.5 Assignment. Except as otherwise provided in this Agreement, neither party may assign, transfer or mortgage all or part of its rights and obligations to a third party without the prior written approval of the other party. Any assignment made without such approval shall be deemed an Event of Default and subject to Article 6 hereof. 13.6 Interpretation. Each of the parties has been represented by counsel of their choosing in the negotiation and preparation of this Agreement. Regardless of which party prepared the initial draft of this Agreement, this Agreement shall, in the event of any dispute regarding its meaning or application, be interpreted fairly and reasonably and neither more strongly for, nor against any party. 13.7 Choice of law and venue. This Agreement and the performance hereof shall be governed, interpreted, construed and regulated by the laws of the State of Texas. Any litigation concerning this Agreement shall be conducted in Harris County, Texas, and the parties hereby agree to the venue and personal jurisdiction of these courts. Chapter 380 Economic Development Agreement Page 4 13.8 Right of access. The City reserves the right to enter upon and have access to any portion of the Property and the Structure at any and all times on any matters relating to this Agreement. 13.9 Non -Waiver. Failure of either party hereto to insist on the strict performance of any of the agreements contained herein or to exercise any rights or remedies accruing hereunder upon default or failure of performance shall not be considered a waiver of the right to insist on and to enforce by an appropriate remedy, strict compliance with any other obligation hereunder to exercise any right or remedy occurring as a result of any future default or failure of performance. 13.10 No consent to litigation. By this Agreement, the City does not consent to litigation or suit, and the City hereby expressly revokes any consent to litigation that it may have granted by the terms of this Contract or any other contract or agreement, any charter, or applicable state law. Nothing herein shall be construed so as to limit or waive the City's sovereign immunity. 13.11 Remedies cumulative. No right or remedy granted herein or reserved to the City is exclusive of any other right or remedy herein by law or equity provided or permitted, but each shall be cumulative of every other right or remedy given hereunder. No covenant or condition of this Agreement may be waived without consent of the City. Forbearance or indulgence by the City shall not constitute a waiver of any covenant or condition to be performed pursuant to this Agreement. 13.12 Severability. If any of the terms, sections, subsections, sentences, clauses, phrases, provisions, covenants or conditions of this Agreement are for any reason held to be invalid, void or unenforceable, the remainder of the terms, sections, subsections, sentences, clauses, phrases, provisions, covenants or conditions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated. 13.13 No third party beneficiaries. This Agreement shall not bestow any rights upon any third party, but rather, shall bind and benefit GCLW and the City only. 13.14 Construction. The article and section headings are used in this Agreement for convenience and reference purposes only and are not intended to define, limit or describe the scope or intent of any provision of this Agreement and shall have no meaning or effect upon its interpretation. 13.15 Agreement read. The parties acknowledge that they have read, understand and intend to be bound by the terms and conditions of this Agreement. 13.16 Multiple originals. It is understood and agreed that this Agreement may be executed in a number of identical counterparts, each of which shall be deemed an original for all purposes. Chapter 380 Economic Development Aeoement. Page 10 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year opposite their signatures. CITY OF BAYTOWN, TEXAS RICHARD L. DAVIS, City Manager (Date) ATTEST: LETICIA BRYSCH, City Clerk APPROVED AS TO FORM: IGNACIO RAMIREZ, SR., City Attorney GOO CRE K7WOML.L.C. CHRISTOPHER PRESLEY Member Manager (Date) ARTHUR A. PRESLEY, JR Member Manager (Date) Chapter 380 Economic Development Agreement. Page 11 STATE OF TEXAS COUNTY OF �� (" § Before Ocvu ]vuthe undersigned notary public, on this day personally appeared Christopher Presley, Ihe Managing Mm6r of Goose Creek Live -Work, L.L.C. known to me proved to me on the oath of _ or proved to me through his current {description of identification card or other document issued by the federal government or any state government that contains the photograph and signature ofthe acknowledging person} (check one) to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed that instrument for the purposes and consideration therein expressed. Given under my hand and seal of office this_. STATE OF TEXAS COUNTY OF day of � , 2018. _Gt��_L ��= Notary Public in and for ihAtate of Texas My commission expires: Before me, , the undersigned notary public, on this day personally appeared Arthur A. Presley, Jr., the Member Manager of Goose Creek Live -Work, L.L.C. known to me proved to me on the oath of or proved to me through his current {description of identification card or other document issued by the federal government or any state government that contains the photograph and signature of the acknowledging person) (check one) to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed that instrument for the purposes and consideration therein expressed. Given under my hand and seal of office this _day of _ , 2018. Notary Public in and for the State of Texas My commission expires: robfs0l Icpl\Knrenll=ilcs%C'onunct i\Goose Creek Live -work Liceive L.iccnse-doc Chanter 380 Economic Develooment Agreement. Pale 12 ' - T Provide & Install (1) Internally Illuminated D/F Blade Signs..... Armature Is 1" Alum Rectangle Tube Construction finished MAP Brushed Alum welded to 24"x 16"x 1/2" Alum mounting Plate.... Armature has w/ 1" Black Reveal.... Tenant Slgn is 6" Deep Alum Construction Painted Black .... Faces are Routed & Backed w/ White Acrylic. Mounted to Existing Wall w/ Thru M x a 0