Ordinance No. 14,218ORDINANCE NO. 14,218
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 HAROLD I. MARIS TO ALLOW AN AWNING AT
207 W. DEFEE AVENUE TO PROTRUDE INTO THE RIGHT-OF-WAY; AND
PROVIDING FOR THE EFFECTIVE DATE THEREOF.
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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 Harold I. Maris to allow an awning at 207 W. Defee 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.
INTRODUCED, READ, and PASSED by the affirmative vote of the City Council of the
City of Baytown, this the 261h day of September, 2019.
l
BRANDON CAPETILLO, Mayor
ATT T:
TIT
BRYSCH, City eidrk
APPROVED AS TO FORM:
NACIO RAMIREZ, S City Attorney
R: Karewfiles.City Council Ordinances\2019 September 26\MarisLicenseAgreement.doc
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 HAROLD I. MARIS, the owner of the property located at 207 W. Defee, Baytown,
Harris County, Texas (hereinafter both singularly and collectively referred to as "Owner").
WITNESSETH:
In consideration of the mutual covenants, payments, responsibilities and duties herein
contained, the City and Owner agree as follows:
1. PROPERTY.
Subject to the terms and conditions herein, the City hereby grants to Owner for Owner's
non-exclusive use certain portions of the W. Defee Street right-of-way, located at least
eight feet and one inch (8' 1 ") 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 term hereof and subject to the conditions specified
herein, Owner shall use the Property only for the installation, repair and
maintenance of the following, which shall be securely attached to the Structure,
which shall house the operation of a retail use with three (3) commercial spaces
and which is located at 207 W. Defee Street, Baytown, Harris County, Texas, and
more particularly described as Lot 19 and Tract 20A, Block 18, Goose Creek,
Harris County, Texas (the "Structure"):
One forty -foot (40') long non -lit awning, which shall protrude
above the Property no more than sixty-four inches (64") into the
Property from the fagade of the Structure, as more particularly
described and depicted in Exhibit "B," which is attached hereto
and incorporated herein for all intents and purposes (the
"Awning").
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. Owner understands and agrees that at all times during the term
of this Agreement, the Structure must be operational and must house the uses
License Agreement, Page 1
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 Not permitted uses. Owner understands and agrees that nothing shall be erected
on, over or above the Property other than the Awning, which shall meet and be
maintained to meet the requirements of all applicable codes of the City. Owner
also understands and agrees that, without the express, prior written consent of the
City Manager, Owner shall not disturb the existing pavement on the Property.
2.4 Removal of Awning. The City reserves the right to require Owner to remove the
Awning or any portion thereof erected on the Property for any reason at any time.
Except as otherwise provided in Section 2.5, Owner shall complete any such
removal immediately within thirty (30) days after written notice from the City.
The removal shall be at Owner's sole cost and expense. At no time shall the City
be liable for such costs.
2.4.1 Failure to timely remove the facilities shall constitute an Event of Default.
2.4.2 Additionally, the City shall have the right to remove the Awning or any
portion thereof, which is not timely removed by Owner, and assess the
costs of the same plus an administrative fee of 10% of such cost to Owner.
Owner 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 Owner'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, which the City believes, in the sole discretion
of the City Manager, is a safety hazard or a nuisance. Additionally, the City may
require Owner 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 Owner's sole cost and expense. At no time
shall the City be liable for such costs.
2.5.1 Failure of Owner 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, Owner shall be responsible for all costs thereof plus an
administrative fee of 10% of such cost.
2.5.3 Owner shall pay the costs and the fee within thirty (30) days of receiving
an invoice therefor. Failure to timely pay the invoiced amount shall
License Aereement, Page 2
constitute an Event of Default and the City shall have the right to place a
lien on Owner'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
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, Owner shall be
responsible for year-round maintenance of the Awning, 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, Owner
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
Awning. Owner accepts the Property as is, in the condition in which it is
found. The City hereby disclaims, and Owner 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 Owner may only use the Property for the purposes specified in Section 2 hereof.
5.2 Owner 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 Owner will maintain Property in a sanitary, safe and clean condition. Owner 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. Owner 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 Owner shall be responsible for the safety and protection of all persons and
personal property on the Property.
License Agreement, Page 3
6. DEFAULT, TERMINATION OR EXPIRATION.
6.1 Cure period for Events of Default. It shall be a default if Owner fails to pay any
sums to the City when due and does not cure such default within ten (10) days; or
if Owner 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. Owner abandons or vacates the Property;
b. Owner is adjudicated bankrupt or makes any assignment for the benefit of
creditors;
C. Owner becomes insolvent or Owner reasonably believes itself to be
insolvent;
d. Owner 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
C. Owner fails to comply with any provision in this Agreement.
6.3 City's right to removal of the Awning. 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 Awning from the Property,
and declare this Agreement at an end, and in which event Owner shall
immediately pay the City a sum of money equal to any amount necessary to
compensate City for all damages caused by Owner's failure to perform its
obligations under this Agreement, including attorneys' fees to enforce the terms
and conditions of this Agreement. The Awning 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 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 Owner will be provided
unless an emergency condition exists as determined in the sole discretion of the
City Manager.
6.5 Owner's obligations upon termination or expiration. Upon termination or
expiration of this Agreement for any reason, Owner shall remove the Awning
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
License Agreement, Page 4
Owner's sole cost and expense. In the event that the Awning is not so removed to
the satisfaction of the City, the Awning shall become the property of the City and
Owner shall have no further 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 Owner's use of the Property, shall be at Owner's sole cost and expense; and the
City shall not be liable for the same.
6.6 No arbitration. Notwithstanding anything to the contrary contained in this
Agreement, the City and Owner hereby agree that no claim or dispute between the
City and Owner 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, Owner consents to be joined in the
arbitration proceeding if Owner'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 Owner's construction, maintenance, repair, use, operation, condition of the
Property and/or any improvements thereon.
7.2 Assumption of risk. Owner undertakes and assumes for its officers, agents,
contractors and subcontractors, employees, customers and the public (collectively
"Owner" 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. Owner agrees that no claim or lien may be filed against Property for
work, labor, materials or supplies provided or supplied to Owner concerning the
installation, construction, operation, maintenance or use of the Property or the
Awning. Should such claim or lien be filed, Owner, 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 INDEMNIFICATION.
OWNER AGREES TO AND SHALL INDEMNIFY, HOLD
HARMLESS AND DEFEND THE CITY, ITS OFFICERS,
License Agreement, Page 5
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
WITH WORK DONE AND/OR THE SERVICES
PERFORMED BY OWNER PURSUANT TO THIS
AGREEMENT, THE CONDUCT OR MANAGEMENT OF
OWNER'S ACTIVITIES, OR FROM ANY ACT OR
OMISSION BY OWNER, 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 (I) THE JOINT NEGLIGENCE
OF THE CITY AND ANY OTHER PERSON OR ENTITY
AND/OR (II) THE SOLE OR JOINT NEGLIGENCE OF
OWNER, ITS OFFICERS, AGENTS, CONTRACTORS,
EMPLOYEES, INVITEES AND/OR GUESTS. IT IS THE
EXPRESS INTENTION OF THE PARTIES HERETO, BOTH
OWNER AND THE CITY, THAT THE INDEMNITY
PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY
OWNER TO INDEMNIFY AND PROTECT THE CITY
FROM THE CONSEQUENCES OF (I) THE CITY'S OWN
NEGLIGENCE, WHERE THAT NEGLIGENCE IS A
CONCURRING CAUSE OF THE RESULTING INJURY,
DEATH OR DAMAGE AND/OR (II) THE NEGLIGENCE OF
OWNER, 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,
UNMIXED 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, Owner further agrees and
License Agreement, Page 6
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. Owner assumes full responsibility for any work that it or its officers,
contractors, agents or volunteers performs 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
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, Owner shall maintain
insurance coverage of the type and amount hereinafter indicated. Owner 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 waiver 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, Owner 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:
License Agreement, Page 7
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.
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 furnished to the City at no cost to the City.
8. ACCEPTANCE OF PROPERTY.
By taking possession of the Property, Owner 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:
License Agreement, Page 8
CITY: CITY OF BAYTOWN
Attention: City Manager
P.O. Box 424
Baytown, TX 77522
OWNER: HAROLD 1. MAR1S
P.O. Box 8414
Baytown, TX 77522-8414
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.
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 Owner. 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.
License Agreement, Page 9
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.
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,
License Agreement, Page 10
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 Owner 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.
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
License Agreement, Page I I
11AROLD LMARIS
q-17 -ry
Date)
STATE OF TEXAS
COUNTY OF gy=,44 "fr.,
Before me, the undersigned notary public, on this day
personally appeared HAROLD 1. MARIS, the owner of the Property,
known to me
proved to me on the oath of or
r/ proved to me through his current ArIYU-5 4 LVNiL
{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 thisn_day of rll}tf , 2019.
`��,'pY pie � DENISE SWAIM
--
Notery Public. State of Texas
Notary Public in and for the State of Texas
ry
Comm. Expires 03-07-2022
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License Aareement, Page 12
Exhibit "A"
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EXHIBIT "B"
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