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Ordinance No. 11,106ORDINANCE NO. 1 1 .1 06 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 AT "1'F_ST TO A LICENSE AGREEMENT WI "I-H GB BIOSCIENCES CORPORATION FOR THE CONSTRUCTION OF AN I I ACRE WETLANDS RESTORATION AND MITIGATION PROJECT AT THE BAYTOWN NATURE CENTER; 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 to execute and the City Clerk to attest to a License Agreement with GB Biosciences Corporation for the construction of an I I acre wetlands restoration and mitigation project at the Baytown Nature Center. A copy of the agreement is attached hereto - marked Exhibit "A," and made a part hereof 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 alTirmative votef f the City Council of the City of Baytown this the 23`d of April, 2009. s STE ATT ST: ra P VTO c , KAY IE ARNEL , City C161% .i' c'TC3'NACIO RAMIREZ, SR., Cit ttorney I- I-.-EFONCARLOS, Mayor '� cohsry 1 \legal \Karen \Files'.City Council\Ordinances�2009\April 7`.Autlaoriu LicenseAgreeracn[i WetlandsE' raj ect.doc LICENSE AGREEMENT STATE OF TEXAS § COUNTY OF HARRIS § THIS LICENSE AGREEMENT is made this day of . 2009, by and between CITY OF BAYTOWN, TEXAS, a home -rule municipal corporation located in Harris and Chambers Counties, Texas (the "City") and GB Biosciences Corporation, a Delaware Corporation ("Licensee "). WITNESSETH: WHEREAS, the City is the owner of the land located in Baytown, Texas, more particularly described in Exhibit "A" (the "Premises "); and WHEREAS, in undertaking compliance with a pending consent decree, Licensee desires to perform a wetlands restoration and mitigation project on the Premises at the Baytown Nature Center (the "Project "); and WHEREAS, the City has agreed to allow the Premises to be the site of such wetland restoration and mitigation project by Licensee; NOW THEREFORE, for and in consideration of the of the mutual covenants contained herein and other good and valuable consideration, the receipt whereof is hereby acknowledged, the parties hereto agree as follows: 1.01 Grant of License. Licensee shall have the privilege, license, and authority to enter upon the Premises at all reasonable times during the tern of this Agreement to make such alterations and improvements to the Premises to construct the Project in accordance with the plans and specifications approved by the City. 1.02 No Interference. a. The City agrees not to construct any buildings or structures on the Premises which could, in the opinion of Licensee, interfere with the construction of the Project. b. The City agrees not to grant any additional or future easements, licenses, leases or other rights of use or possession of the Premises during the term of this Agreement as would or may interfere or conflict with the Project or the activities of Licensee or its designees pursuant to this Agreement. 1.03 Restrict Access. For reasons of safety and avoidance of liability, Licensee shall have the right, but not the obligation. except as required by law, to prohibit access to the premises by members of the public at Licensee's discretion daring the term of this Agreement. License Agreement. Page I The foregoing is not intended to limit the right of inspection of the Premises from time to time by the City's authorized representatives. 1.04 Warranty of Title. The City warrants that it has good and valid title to the Premises and the lawful authority to execute this Agreement. 1.05 Disclaimer of Warranties. The City represents that it has no knowledge of any latent defects affecting the Premises that would inhibit or prevent the successful completion of the Project. Except for the foregoing representation, the City makes no warranty or representation of any kind concerning the condition of the Premises or its fitness or suitability for the intended purpose. The parties understand that Licensee has personally inspected the Premises; knows the condition; finds the Premises fit and suitable for the intended use; accepts the Premises "as is," with all faults. II. 2.01 Designees. The rights granted and obligations of the Licensee contained herein may also be exercised by Licensee's agents, subcontractors and invitees (collectively the "Designees "), subject to the terms of this Agreement. 2.02 Design of Project. Licensee agrees that it has employed or will employ at its own cost and expense employ one or more professional engineers to design the Project. 2.03 Compliance with Laws. Licensee agrees to comply with all applicable laws, rules or regulations of applicable governmental authorities in order to snake the Project meet or exceed the applicable laws, rules or regulations set by all applicable governmental authorities. 2.04 Plans and Specifications. Licensee shall be obligated to submit plans and specifications for the construction of the Project (the "Plans and Specifications ") to the Director of Parks and Recreation (the "Director "), for approval and/or for required revision and approval by the Director. Licensee shall obtain Director's approval prior to the commencement of construction of the Project. 2.05 Constriction. After the City Engineer's final approval of the Plans and Specifications submitted by Licensee in accordance with Section 2.04, Licensee shall be obligated to begin the construction of the Project in accordance with the approved plans and specifications and continue such constriction efforts thereafter in a diligent manner until the Project is completed and accepted by the Natural Resources Trustee Program. 2.06 Inspection. Upon request, Licensee shall provide an update on the status of the Project to the Director and shall allow the Director and his designees to inspect the same at all reasonable times. License Agreement, Page 2 2.07 Liens. Licensee shall pay all costs and expenses of Project construction, including, not by way of limitation, the costs of all materials, labor and electricity used in connection with such construction and all license, permit or inspection fees that may be charged in connection with such work. In the event that a lien is filed against the Premises for work completed by Licensee, its contractors or subcontractors, Licensee shall immediately use its best effort to remove such lien within ten (10) days after the lien is placed on the Premises. In the event that a lien remains on the property after the expiration of ten days, Licensee shall execute a bond for the sum of one hundred percent (100 %) of the total lien amount, in standard forms for this purpose, guaranteeing that such lien shall be released from the City's property. Such bonds must be submitted to and approved by the City in order for the Licensee to be in compliance with this provision. In no event shall Licensee have the right, authority or power to bind the City or any interest of the City in the Premises for any claim for labor or material or for any other charge or expense incurred in connection with the Project. 2.08 Title to Improvements. The legal title to the Project and all appurtenances related thereto shall at all times be vested in the City; and Licensee shall have no claim thereto. As such, Licensee shall have no right or privilege to remove or interfere with any part or portion of the Project once constructed, except as necessary to exercise its maintenance responsibilities. 2.09 Damage. At its own cost and expense, Licensee shall repair or replace any damage or injury done to any portion of the Project or property within the Baytown Nature Center caused by Licensee, its officers, agents, employees, invitees or visitors within ten (10) days of the date on which damage or injury occurred. If the City Manager of the City of Baytown (the "City Manager ") in his sole reasonable discretion, determines that any portion of the Project is not being repaired and/or replaced in accordance with this Agreement, the City Manager shall so notify Licensee in writing and require Licensee to perform the identified work forthwith and continue diligently therewith until completion. If more than ten days (10) are required to complete the repair or replacement, then the City may, at its option, extend such period. If the condition persists after the expiration of ten (10) days from the date of the notice or, if applicable, from the expiration of any extension granted, the City Manager may declare Licensee in default and terminate this Agreement and seek any other appropriate remedy which may be available to the City, including, but not limited to, making such repairs or replacements at Licensee's sole cost and expense. It is understood if such repairs or replacements are made by the City, Licensee agrees to pay the cost thereof to the City on demand. III. 3.01 Initial Term. This initial term of Agreement shall remain in effect until the Project is completed and accepted by the Natural Resources Trustee Program or for a period of 365 calendar days from the effective date of this Agreement, whichever is occurs first. If the Project has yet to be completed by the expiration of this Agreement, the City may renew the Agreement for a period to be detennined in its sole discretion. License Agreement, Pagc 3 3.02 Maintenance Term. After the expiration of the initial term as specified in Section 3.01, this Agreement shall remain in effect only for the purpose of maintaining the Project for the period of time specified in the Consent Decree. IV. 4.01 Non - Waiver. Failure of the City to declare any default immediately upon occurrence thereof, or delay in taking action in connection therewith, shall not waive such default, but the City shall have the right to declare any such default at any time and take such action as might be lawful or authorized hereunder, either in law or in equity. 4.02 Default by Licensee. The City shall have the right to declare Licensee in default and immediately terminate the Agreement without notice, unless otherwise specified herein, or exercise any other rights or remedies available hereunder or as a matter of law if Licensee: (a) Defaults in the timely performance of any obligation imposed upon Licensee hereunder and does not cure the default within fifteen (15) days (unless another period of time is specified herein) after written notice describing the default in reasonable detail has been given Licensee or, if the City Manager in his sole discretion, determines that the default cannot reasonably be cured within the fifteen (15) day period, if Licensee does not commence curative work within the fifteen (15) day period and prosecute the work to completion with diligence; (b) Institutes proceedings, whether voluntary or otherwise, under the provisions of the Federal Bankruptcy Act or any other federal or state law relating to bankruptcy or insolvency; or (c) Makes any assignment of this Agreement without the written approval of the City. Should the City terminate this Agreement for cause, the City will be relieved of its obligations hereunder. Additionally, should this Agreement be terminated, the City shall be entitled to seek all other relief which may be allowed by law. Any and all defaults declared by the City shall be final and binding upon Licensee. 4.03 Remedies Cumulative. All rights and remedies of the City and/or Licensee under this Agreement shall be cumulative and none shall exclude any other rights or remedies allowed by law. 4.04 Amendments. This Agreement may not be altered, changed or amended, except by an instrument in writing, signed by both parties hereto. 4.05 Insurance. Throughout the term of this Agreement, Licensee at its own expense shall purchase. maintain and keep in force and effect insurance against claims for injuries to or death of persons or damages to property which may arise out of or result from Licensee's operations and/or performance of the work under this Agreement, whether such operations and/or performance be by Licensee, its agents, representatives, volunteers, employees or License Agreement, Page 4 subcontractors or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable. Licensee's insurance coverage shall be primary insurance with respect to Licensee and its officers and agents. as well as with respect to the City, its officers, agents and employees. Any insurance or self - insurance maintained by the City, its officials, employees or volunteers shall be considered in excess of Licensee's insurance and shall not contribute to it. Further, Licensee shall require that its contractors and subcontractors maintain sufficient insurance coverage and shall furnish separate certificates and endorsements for each subcontractor. All coverages for contractors and subcontractors shall be subject to all of the requirements stated herein. The following is a list of standard insurance policies along with their respective minimum coverage amounts required in this Agreement: (1) Workers' Compensation Policy • Statutory amounts required by Texas law. • Employer's Liability of $500,000. (2) Commercial General Liability Policy; • General aggregate of $2,000,000. • Contractors Protective Liability of $500,000. • Products and Completed Operations Aggregate of $1,000,000. • Personal and Advertising Injury of $1,000,000. • Minimum of $1,000,000 per occurrence. • Fire Damage of $50,000. • Property Damage of $1,000,000 each accident and $2,000,000 aggregate. • Coverage shall be at least as broad as ISO CG 00 01 10 93. • No coverage shall be deleted from the standard policy without notification of individual exclusions being attached for review and acceptance. (3) Business Automobile Liability Policy, which shall include the following: • Combined Single Limits of $1,000,000. • Coverage for "Any Auto." Certificates of Insurance provided to the City all 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. The following are general requirements which are applicable to all policies: • General Liability and Automobile Liability 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. License Agreement, Page 5 4.06 • Only Insurance Carriers licensed to do business in the State of Texas will be accepted. • Claims -made policies will not be accepted. • With respect to the Project, the City and its officers and employees are to be added as "Additional Insureds" to all commercial general liability and business automobile liability policies. The coverage shall contain no special limitation on the scope of protection afforded to the City. • A waiver of subrogation in favor of the City with respect to Workers' Compensation Insurance must be included. • Upon request, certified copes of all insurance policies, declaration pages and/or certificates of insurance shall be furnished to the City at no expense to the City. inaerrinity. LICENSEE 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 ATTORNEYS' FEES FOR INJURY TO OR DEATH OF ANY PERSON, OR FOR DAMAGE TO ANY PROPERTY, ARISING OUT OF OR IN CONNECTION WITH THIS CONTRACT AND /OR THE SERVICES PERFORMED HEREUNDER, WHERE SUCH INJURIES, DEATH OR DAMAGES ARE CAUSED BY THE SOLE OR JOINT NEGLIGENCE OF LICENSEE OR THE JOINT NEGLIGENCE OF THE CITY AND ANY OTHER PERSON OR ENTITY. IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH LICENSEE AND THE CITY, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS AN INDEMNITY BY LICENSEE TO INDEMNIFY, PROTECT AND DEFEND THE CITY FROM THE CONSEQUENCES OF THE CITY'S OWN NEGLIGENCE, WHERE THAT NEGLIGENCE IS A CONCURRING CAUSE OF THE INJURY, DEATH OR DAMAGE AND FROM THE CONSEQUENCES OF LICENSEE'S OWN NEGLIGENCE, WHERE THAT NEGLIGENCE IS THE SOLE OR CONCURRING CAUSE OF THE INJURY, DEATH, OR DAMAGE. FURTHERMORE, THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL HAVE NO APPLICATION TO THE CITY FOR ANY CLAIM, License Agreement, Page 6 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. FURTHERMORE, THE INDE`INITY 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 OF THE INDEMNITIES PROVIDED FOR HEREIN, LICENSEE FURTHER AGREES AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE CITY. This indemnity contained in this section shall survive expiration or earlier termination of this Agreement. 4.07 Release. 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 Agreement or any other contract or agreement, any charter, or applicable state law. Nothing contained herein shall be construed in any way so as to waive in whole or part the City's sovereign immunity. Licensee assumes full responsibility for its obligations under this Agreement performed hereunder and hereby releases, relinquishes, discharges, and holds harmless 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 Licensee's work to be performed hereunder. This release shall apply with respect to Licensee's work regardless of whether said claims, demands, and causes of action are covered in whole or in part by insurance. 4.08 No Arbitration. Notwithstanding anything to the contrary contained in this Agreement, the City and Licensee hereby agree that no claim or dispute between the City and Licensee 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, Licensee consents to be joined in the arbitration proceeding if Licensee's presence is required or requested by the City. License Agreement, Page 7 4.09 Assignment. Licensee shall not assign this Agreement without first obtaining the written consent of the City, which consent shall not be unreasonably withheld. 4.10 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, return receipt requested, or by hand - delivery, addressed to the respective parties as follows: CITY City of Baytown Attn: City Manager P.O. Box 424 Baytown, TX 77522 LICENSEE Ms. Pat Stavola General Counsel Syngenta Crop Protection, Inc. PO Box 18300 Greensboro, NC 27419 4.11 Binding Effect. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of the City and Licensee and their respective successors and assigns. 4.12 Time of the Essence. Time is of the essence in this Agreement and the time for commencement and completion of the Project are essential terms of this Agreement. 4.13 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal, state and local laws and regulations, and all judicial determinations relative thereto. 4.14 Choice of Law and Venue. This Agreement is declared to be a Texas contract, and all of the terms thereof shall be construed according to the laws of the State of Texas. The place of making and the place of performance for all purposes shall be Baytown, Harris County, Texas. 4.15 Ambiguities. In the event of any ambiguity in any of the terms of this Agreement, it shall not be construed for or against any party hereto on the basis that such party did or did not author the same. 4.16 Complete Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. 4.17 Duplicate 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. License Aireement, Page 8 4.18 Headings. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. 4.19 Gender and Number. The pronouns of any gender shall include the other genders, and either the singular or the plural shall include the other. 4.20 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. 4.21 Agreement Read. The parties acknowledge that they have read, understand and intend to be bound by the terms and conditions of this Agreement. 4.22 Authority. The officers executing this Agreement on behalf of each party hereby confirm that such officers have full authority to execute this Agreement and to bind the party he /she represents. EXECUTED ON this the _ day of , 2009 (the "Effective Date "). CITY OF BAYTOWN By: GARRISON C. BRUMBACK, City Manager ATTEST: KAYTHIE DARNELL, City Clerk APPROVED AS TO FORM: IGNACIO RAMIREZ, SR., City Attorney License Agreement. Page 9 EXECUTED ON this the K day of Aer 1 1 2009. 1V 0k7-11 CQeQ4 -1N,,9 STATE OF § GUI L F)Rt) § COUNTY OFFS § LICENSEE: By: (Si ature) (Printed Name) /�e "damt (Title) Before me, _' -endo— RI)eU the undersigned notary public, on this day personally appeared —Z-,p i,n P,', l e u , the of G E) -ii n sc i er e-s 0-prnD meL-�—i .nn , on behalf of such corporation ✓ known tome; proved to me on the oath of or proved to me through his/her 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 /she executed that instrument for the purposes and consideration therein expressed. 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