Ordinance No. 12,439ORDINANCE NO. 12,439
opk 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 BAY AREA
HOMELESS SERVICES, INC.; 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 to execute and the City Clerk to attest to a License Agreement with Bay Area
Homeless Services, Inc. A copy of said 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 frq�m and after its passage by the
City Council of the City of Baytown. r
INTRODUCED, READ and PASSED by the affirmative voe bf the City Council of the City of
Baytown this the 12'h day of December, 2013. L �
APPROVED AS TO FORM:
ACIO RAMIREZ, SR., City A omey
Mayor
R:\Karen\Files \City Counci1\0rdinwms\2013\Dcwmber 12\ LicenseAgreementwithBayAreaHomelessSemimOrdinmm .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 BAY AREA
HOMELESS SERVICES, INC., a Texas non - profit corporation (hereafter referred to as "BAHS ").
WITNESSETH:
In consideration of the mutual covenants, payments, responsibilities and duties herein contained,
the City and BAHS agree as follows:
1. PROPERTY.
Subject to the terms and conditions herein, the City hereby grants to BAHS for BAHS's exclusive
use certain portions of the alleyway connecting Colorado Street and Market Street, which alleyway
runs parallel to and between Minnesota Street and Wisconsin Street, 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 BAHS shall use the Property solely as open space in connection with a homeless family
shelter facility to be built on adjacent property. BAHS understands and agrees that at all
times during the term of this Agreement the facility shall be available to citizens of
Baytown who desire to participate in BAHS's program, which houses families and
prepares adult participants to seek employment opportunities. BAHS understands and
agrees that nothing shall be erected on the Property, other than suitable barricades, fencing
and signage meeting the requirements of all applicable codes of the City and approved by
the City Manager. BAHS also understands and agrees that, without the express, prior
written consent of the City Manager, BAHS shall neither disturb the existing pavement on
the Property nor construct any sidewalk on the Property. .
2.2 Any use of the Property not specified herein is expressly prohibited and shall constitute an
Event of Default.
2.3 BAHS shall be required to erect barricades, signage and fencing as approved by the City
Manager ("Permitted Improvements "). The barricade and fence erected shall be the
property of the City upon expiration or termination of this Agreement; however, BAHS
shall have the obligation to maintain the same throughout the term of this Agreement.
2.4 The City reserves the right to require BAHS to remove the Permitted Improvements or any
portion thereof erected on the Property for any reason at any time. BAHS shall complete
any such removal within sixty (60) days after written notice from the City. The removal
License Asmement. Page 1
shall be at BAHS'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 Permitted Improvements or
any portion thereof, which is not timely removed by BARS, and assess the costs of
the same plus an administrative fee of 10% of such cost to BAHS. BAHS shall pay
the costs and the fee within sixty (60) days of receiving an invoice therefor. Failure
to timely pay the invoiced amount shall constitute an Event of Default.
3. TERM.
The term of this Agreement will be for twenty (20) years, and will commence upon the effective
date first referenced hereinabove ("Commencement Date ") and will terminate twenty (20) years
thereafter, unless sooner terminated as provided in this Agreement.
4. CONSIDERATION.
4.1 From and after the Commencement Date, BAHS shall be responsible for year - round
maintenance of Property, including, but not limited to, (i) watering, mowing and trimming
of the Property; and (ii) maintaining the Permitted Improvements, which shall meet all
applicable codes of the City.
4.2 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 BAHS to remove, remedy or
otherwise abate any such condition on Property within forty-eight (48) hours. The
removal, remedy and/or abatement concerning Property shall be at BAHS's sole cost and
expense. At no time shall the City be liable for such costs.
4.3.1 Failure of BAHS to remove, remedy or abate the condition identified shall
constitute an Event of Default.
4.3.2 Should the City remove, remedy or abate a hazardous or nuisance condition, BAHS
shall be responsible for all costs thereof plus an administrative fee of 10% of such
cost.
4.3.3 BAHS shall pay the costs and the fee within sixty (60) days of receiving an invoice
therefor. Failure to timely pay the invoiced amount shall constitute an Event of
Default.
4.4 In consideration for the privilege of use of the Property, BAHS 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. BAHS accepts the Property as is, in the condition in
which it is found. The City hereby disclaims, and BAHS hereby accepts the City's
License Augement Page 2
disclaimer, of any warranty, express or implied, of the conditions or fitness for use of
any portions of the Property.
5. STANDARDS.
5.1 BAHS may only use the Property for the purposes specified in Section 2 hereof.
5.2 BAHS 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 BAHS will maintain Property in a sanitary, safe and clean condition. BAHS 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. BAHS 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 BAHS shall be responsible for the safety and protection of all participants of its programs
as well as others on the Property.
6. CONTINGENCIES.
BAHS's use of the Property is contingent upon (i) its maintaining the Property in the manner
described herein so as to meet all applicable statutes, regulations, rules and ordinances and (ii) its
ownership of the property to both the north and the south of the Property. Should these
contingencies not be met, the City shall have the right to terminate this Agreement in accordance
with Section 7.2 of this Agreement.
7. TERMINATION OR EXPIRATION.
7.1 BAHS shall pay the City a late payment charge equal to five percent (5 %) for any payment
not paid when due. Interest on delinquent payments shall be accrued at one percent (1 %)
per month until paid. It shall be a default if BAHS fails to pay any sums to the City when
due, and does not cure such default within ten (10) days; or if BAHS 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
complained. In addition to those previously identified, an Event of Default shall include,
but not be limited to the following:
a. BAHS abandons or vacates the Property;
b. BAHS is adjudicated bankrupt or makes any assignment for the benefit of creditors;
c. BAHS becomes insolvent or BAHS reasonably believes itself to be insolvent;
d. BARS 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. BAHS fails to comply with any provision in this Agreement.
License Agreement, Page 3
7.2 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 eject all persons and
equipment and removable items from the Property not desired by the City, and declare this
Agreement at an end, and in which event BAHS shall immediately pay the City a sum of
money equal to any amount necessary to compensate City for all damages caused by
BAHS's failure to perform its obligations under this Agreement, including attorneys fees to
enforce the terms and conditions of this Agreement. All equipment and removable
property 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.
7.3 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 sixty (60) days' notice to BAHS will be provided unless an
emergency condition exists as determined in the sole discretion of the City Manager.
7.4 Upon termination or expiration of this Agreement for any reason, BAHS shall remove its
personalty 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 at BAHS's sole cost and
expense. In the event that BAHS's equipment is not so removed to the satisfaction of the
City, any such property or facilities shall become the property of the City and BAHS shall
have no further rights thereto. Additionally, if BAHS fails to remove any fence erected and
repair any damage to the Property, the City may do so at BAHS's sole cost and expense.
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, whether caused by
removal or by BAHS's use of the Property shall be at BAHS's sole cost and expense and
the City shall not be liable for the same.
8. INDENINIFICATION, RELEASE, AND INSURANCE.
8.1 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 BAHS's construction, maintenance,
repair, use, operation, condition of the Property and/or any improvements thereon.
8.2 Assumption of Risk.
BAHS undertakes and assumes for its officers, agents, contractors and subcontractors,
employees, participants and volunteers (collectively "BARS" 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.
8.3 No Liens.
BAHS agrees that no claim or lien may be filed against Property for work, labor, materials
or supplies provided or supplied to BAHS, concerning the installation, construction,
`l. operation, maintenance or use of the Property or the Permitted Improvements. Should such
License Agreement, Page 4
claim or lien be filed, BARS, upon the written request of the City, shall cause such claim
or lien covering the City's property to be discharged or bonded within thirty (30) days
following such request to the satisfaction of the City Manager.
8.4 INDEMNIFICATION.
BAHS 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
WITH WORK DONE AND /OR THE SERVICES
PERFORMED BY BAHS PURSUANT TO THIS
AGREEMENT, THE CONDUCT OR MANAGEMENT OF
BAHS'S ACTIVITIES, OR FROM ANY ACT OR OMISSION
BY BAHS, 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
BAHS, ITS OFFICERS, AGENTS, CONTRACTORS,
EMPLOYEES, INVITEES AND /OR GUESTS. IT IS THE
EXPRESSED INTENTION OF THE PARTIES HERETO,
BOTH BAHS AND THE CITY, THAT THE INDEMNITY
PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY
BAHS 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 THE (II) THE
NEGLIGENCE OF BAHS, 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
License Agreement, Page 5
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, BAHS 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.
8.6 RELEASE. BAHS 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.
8.7 INSURANCE. Throughout the term of this Agreement, BAHS shall maintain insurance
coverage of the type and amount hereinafter indicated. BAHS shall provide to the City's
Risk Manager an insurance certificate evidencing the following coverage in the minimum
limit indicated hereinbelow:
a. General Liability (GL)
General Aggregate: $1,000,000
Per Occurrence: $1,0009000
a. The City, its officials and employees are to be added as
Additional Insured to this general liability policy.
9. ACCEPTANCE OF PROPERTY.
By taking possession of the Property, BAHS accepts the Property in the condition existing as of
the Commencement Date. The City makes no representation of 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.
10. 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 Agmment. Page 6
CITY: City of Baytown
Attention: City Manager
P.O. Box 424
Baytown, TX 77522
BAHS: Bay Area Homeless Services, Inc.
Attention: President
P.O. Box 4130
Baytown, TX 77522
11. 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.
12. ASSIGNMENT.
Neither party to this Agreement may assign their rights duties or interests without first obtaining
the written consent of the other party
13. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and inure to the benefit of the parties, their respective
successors, personal representatives and assigns.
14. NUSCELLANEOUS.
14.1 The City and BAHS represent that each, respectively, has full right, power, and authority to
execute this Agreement.
14.2 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.
14.3 This Agreement does not establish any real property rights, franchises or other rights
whatsoever in real estate to BAHS. 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.
14.4 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.
14.5 The City reserves the right to enter upon and have access to any portion of the Property at
any and all times on any matters.
License A,greemenk Page 7
14.6 One or more instances of forbearance by the City in the exercise of its rights herein shall in
no way constitute a waiver thereof.
14.7 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.
14.8 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.
14.9 This Agreement is entered into subject to the Charter and ordinances of the City, as they
may be amended from time to time, and is subject to and is to be construed, governed and
enforced under all applicable State of Texas and Federal laws.
14.10 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.
14.11 This Agreement shall not bestow any rights upon any third party, but rather, shall bind and
benefit BARS and the City only.
14.12 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
EXECUTED on the .L Y da of 11A kr , 2013.
BAY AREA HOMELESS SERVICES, INC.
BY C-
TaA 9_ Q , A I �a 1 , President
STATE OF TEXAS §
COUNTY OF HARRIS §
License Agreement, Page 8
Before me, (z-MW O- v the undersigned notary public, on this
day personally appeared h4 a Cl L wroo the President of Bay Area Homeless
Services, Inc., known to me to be the person whose name is subscribed to the foregoing instrument and
acknowledged to me that he executed the same with full authority and for the purposes and consideration
therein expressed.
SUBSCRIBED AND SWORN before me this ( day of �10 Y Q nA" t7tz� 2013.
JEANENE R. YOUNG
Notary Pubic. State of Texas
My Comndssion Expires
DECEMBER 07, 2016 ; Quoit JLYU ' Q U h
.
EXECUTED on the day of -22013.
CITY OF BAYTOWN, TEXAS
M
ATTEST:
LETICIA BRYSCH, City Clerk
APPROVED AS TO FORM:
IGNACIO RAMIREZ, SR., City Attorney
License Aereement, Page 9
ROBERT D. LEIPER, City Manager
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