Ordinance No. 12,243ORDINANCE, NO. 121,243
AN ORDINANCL,' OF J, HF" CITY COUNCIL OFTJ ff`� CITY OF 13 AYTO WN,
TEXAS, AUTTIORtZING AND t)[REC-HNG THE CITY MANAGFR "YO
I, FIC I.I II, AND TI-11" CITY CLLRK TO ATTFIST TO A LICENSE
AGRI-ENIENT WITH G13 13K)SCIFINCI],"S C0R,P0f?j\TION FOR THE
CONSTRUCTION OF AN I I ACRE, WI`111ANDS RESTORATION AND
AND
MlTI&kTION PROJECT AT THH,' BAYTOWN NATURL' CJ',,,N'TER;
PROVIDING FOR T111"
* *.1,** * ** * * * * * * * * * * * * * * * * * * * * * * * * * * * * * 1, * * * * *, * * * * * * * * 00 * * * * * * * * * * * * * * 4, * *** *4,**** *
Bl" IT ORDAINED BY THL' CITY COUNCIL 01' CITY OF BAY`I'ONVN,
ITI'XAS:
Section 1: TlUlt the City COL11161 Or the City Or 13a)"IOW11, 1'exas, het-cby authorizes
and directs the City Manager to exec Ute, ' 111d the City Clerk to attest to at License Agr-eement with
G13 Biosciences Corpoi-ation Im the constniction or an I I acre wetlands restmation and
initigation pw.ject at the Baytown NatUIV Center. A copy ol'the agreement is attachcd hereto,
marked Exhibit "A,"and made a p.,lrt hereof forall intents and IMI-11O.SCS.
Section ']'his ordinance shall take 01'ect immediately "the M alid (41cr its passage by
I " City COMICil of the City orBaytown.
INTRODUCF,I), READ and PASSFID by thearfirniatiw�,4)�ote of' the City C'ouncil 01, the
("it), of'Baytown this tile 25"' of" April, 2013.
S T] lF,-N 11. L)OM."ARLOS, Nlaior.
AI I'
7,
APPROW-11) AS TO, [0M
NACJ0 RAMIRF'14 SR., City,, amney
Exhibit "A"
LICENSE AGREEMENT
STATE OF TEXAS §
COUNTY OF HARRIS §
THIS LICENSE AGREEMENT is made this day of , 2013, 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 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 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 term 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 during the term of this Agreement.
License Agreement Page 1
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 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 make 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 Construction. After the Director'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 construction efforts thereafter in a diligent manner until
the Project is completed and accepted by the Natural Resources Trustee Program.
2.06 Ins2ection. 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. Failure to pay when due
shall result in interest being assessed against the delinquent amount at the rate specified
in Section 2251.025 of the Texas Government Code.
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 determined in its sole discretion.
License Agreement. Page 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 shaU 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
License Agreement, Page 4
and/or performance be by Licensee, its agents, representatives, volunteers, employees or
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 CO 00 0212 07.
• 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:
License Agreement Page 5
4.06
• 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.
• 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.
Mucamity.
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
License Agreement. Page 6
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. 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 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 terns 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
License Agreement Page 7
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.
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 terns 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.
License Ammement. Page 8
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.
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 Authoft. 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 , 2013 (the "Effective
Date ").
CITY OF BAYTOWN
By:
ROBERT D. LEIPER, City Manager
ATTEST:
LETICIA BRYSCH, City Clerk
APPROVED AS TO FORM:
IGNACIO RAMIREZ, SR., City Attorney
License Agreement Page 9
EXECUTED ON this the f ''day of ` r, -{ ` '� , 2013.
LICENSEE:
By:
(Signature)
(Printed Name)
Nc� -'k:` (Title)
STATE OF TZXA9— §
1
(� „-,1 ; v §
COUNTY OF HARKS §
Before me, the undersigned notary public, on this day personally
appeared .the V
of on behalf of such corporation
known to me;
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.
Given under my hand and seal of office this 'lea _ day of 2013.
Notary Public in and for the State of
My commission expires: L '
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