HomeMy WebLinkAboutRes 2012-05-05 License Agreement with A & H Investments - Interurban R-O-W.pdfCITY OF ANNA, TEXAS
RESOLUTION NO. 2012-05-05
A RESOLUTION OF THE CITY OF ANNA, TEXAS APPROVING A LICENSE AGREEMENT
WITH A & H INVESTMENTS INC. TO USE A PORTION OF THE INTERURBAN STREET
RIGHT-OF-WAY
WHEREAS, the City of Anna, Texas (the "City") and A & H Investments Inc. ("Licensee")
desire to enter into a License Agreement to use a portion of the Interurban Street Right -of -
Way (the "Agreement); and
WHEREAS, the City Council of the City of Anna, Texas finds that approval of the Agreement
is in the best interests of the citizens of Anna;
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ANNA,
TEXAS THAT:
Section 1. Recitals Incorporated
The recitals set forth above are incorporated herein for all purposes as if set forth in full.
Section 2. Approval of Agreement
The Council hereby approves the Agreement, attached hereto as EXHIBIT 1, incorporated
herein for all purposes and authorizes the City Manager to execute same on its behalf.
PASSED AND APPROVED by the City Council of the City of Anna, Texas, on this 22nd day
of May 2012.
ATTEST:
N tha Wilkison, City Secretary
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RES. 2012-05-05 License Agreement — Interurban r -o -w
APP VED:
Mike Crist, Mayor
PAGE 1 OF 1
05-22-12
RIGHT-OF-WAY USE LICENSE AGREEMENT
RIGHT-OF-WAY USE LICENSE AGREEMENT (this "License") is entered into this 22ntl day of May, 2012
(the "Effective Date") between the City of Anna (the "City'), a Texas municipal corporation, and A&H
Investments, Inc. ("Licensee"), a Texas corporation with its principal business at 219 East White Street,
Anna, Texas 75409.
WHEREAS, the City owns right-of-way, as hereinafter defined, suitable for the placement of
Outdoor seating for a restaurant and parking, as hereinafter defined; and,
WHEREAS, Licensee seeks to provide outdoor seating and additional parking to patrons within
the Anna Downtown Redevelopment District, and it is in the best interests of City to provide a limited use
license agreement regarding said right-of-way upon the terms set forth in this License.
NOW THEREFORE IT IS AGREED AS FOLLOWS:
Property and Improvements.
(a) The City owns or otherwise controls all or a part of that certain real property known
as Interurban Street right-of-way between Fourth Street and Fifth Street (hereinafter
referenced as the "Property"), which is shown on the attached Exhibit A, incorporated
herein by reference for all purposes.
(b) The City hereby agrees to license to Licensee the use of a portion of the Property,
subject to the terms of this License. The License allows the Licensee to place seating
and parking improvements as depicted in the sketch attached as Exhibit B (the
"Improvements"), incorporated herein by reference for all purposes. The
Improvements shall be constructed and maintained in compliance with the City's
building codes and other applicable construction standards and specification.
2. Term. The term of this License shall be ten years (the "Term"), commencing on the
Commencement Date of this License, subject to earlier termination as provided for under
this License. This License shall terminate at the end of the Term unless before then the
parties agree in writing to extend this License for an additional period of time.
3. Use.
(a) Licensee agrees that the following priorities of use, in descending order, shall apply
in the event of any conflict during the Term, and Licensee's use and rights under this
License shall be subordinated accordingly.
(i) The City.
(ii) Public safety agencies, including law enforcement, fire, and ambulance services,
that are not part of the City.
(b) Licensee's use of the City's Property shall be limited to the Improvements shown on
Exhibit B. Licensee shall at all times act and be in compliance with all federal, state,
local laws and regulations. If for any reason Licensee's use fails to comply with any
federal, state or local law and Licensee fails to bring its use within compliance within
30 days of written notice of such noncompliance, this License shall be terminated as
provided herein, unless sooner authorized by such applicable law. The City agrees to
reasonably cooperate with Licensee in obtaining, at Licensee's sole expense, all
additional government -required licenses and permits for Licensee's use of the
Property.
4. Installation Maintenance. and Operation of Improvements.
(a) Licensee's installation and/or construction of the Improvements including the
installation of any personal property and construction of any structures or other
improvements shall be done according to plans submitted by Licensee and approved
by the City, and no equipment or property shall be subsequently relocated without
the City's approval.
(b) All utilities will be buried unless otherwise approved by the City in writing.
(c) Licensee shall have sole responsibility for the maintenance, repair, and security of its
improvements, and shall keep the same in good repair and in safe condition at all
times. All of Licensee's improvements and personal property, will be the responsibility
of Licensee.
(d) All of Licensee's operations on the Property shall comply with any applicable noise
and nuisance ordinances of the City.
5. Reasonable Approval. Both parties shall not unreasonably withhold or delay
approvals required under this License.
6. Licensee Defaults.
Not by way of limitation, the parties hereto understand and agree that the occurrence of
any one or more of the following events shall constitute an "Event of Default" hereunder
by Licensee:
(i) The failure by Licensee to observe or perform any of the covenants or provisions
of this License to be observed or performed by the Licensee, where such failure
shall continue for a period of 20 days after written notice thereof is received by
the Licensee from the City;
(ii) The failure by Licensee and its establishment to be in compliance with all
applicable federal, state, and local laws.
If there occurs an Event of Default by Licensee, in addition to any other remedies
available to City at law or in equity, City shall have the option to terminate this License
and all rights of Licensee hereunder. No waiver of any rights under this License shall
occur unless the waiver is set forth in a duly authorized written document properly
adopted and signed by the party granting the waiver and delivered to the other party. Any
waiver of any right under this License shall not be deemed a waiver of any other rights
under this License.
Termination and Suspension.
(a) Except as otherwise provided herein, this License may be terminated as follows:
(i) By City, upon a default by the Licensee of any covenant or term herein,
which default is not cured within 20 days of receipt of written notice of default
to the Licensee;
By City, if Licensee's use of the Property is or becomes illegal under any
federal, state or local law, judicial ruling, rule or regulation;
By City, if the City requires use of the Property for any public improvement
including but not limited to street improvements and construction or
relocation of utility infrastructure.
(iv) By City if ownership or operational control of the Property is transferred to
another entity.
(v) By Licensee, if it is unable to obtain or maintain any license, permit, or other
governmental approval necessary for the construction and/or operation of the
Licensee business, after pursuing such license, permit, or other approval with
due diligence;
(b) This License shall be considered suspended temporarily if the City determines that
maintenance or repairs must be performed to the Property.
(c) In the event of an emergency concerning public health and safety, the City may
facilitate removal of Licensee's Property at any time and by any means the City
determines to be necessary to avoid or defend against potential death, injury, or
damage to property. This may include without limitation requiring Licensee to remove
same without notice or with very short notice, depending on the circumstances.
(d) The City shall not in any manner be liable for any expense or damages whatsoever,
including without limitation consequential damages, loss of use, loss of profits, or any
other costs, claims or expenses arising out of, related (directly or indirectly) to or in
connection with: (1) the removal of any of Licensee's Property in accordance with
this License; (2) the City suspension or termination of this License in accordance with
the provisions of this License, which shall not be considered a breach of this License;
or (3) any finding or determination that the City's rights to the Property are inferior to
or subject to a superior or conflicting claim of ownership, control, or possession of
any part of the Property.
(e) Upon termination of this License for any reason, Licensee shall remove the
Improvements including any remaining part of Licensee's property from the Property
within 30 days after the date of termination, and shall restore the Property to the
condition it was in on the Commencement Date of the term of this License ordinary
wear and tear excepted, all at Licensee's sole cost and expense. Any such property
which is not removed by end of said 30 -day period shall become the property of City.
8. Insurance.
(a) Licensee shall provide Comprehensive General Liability Insurance coverage,
including premises/operations coverage, independent contractor's liability, completed
operations coverage, contractual liability coverage, and City will be held harmless for
acts of outside vendors in a combined single limit of not less than $1,000,000 per
occurrence, and $5,000,000 aggregate, and name City as an additional insured on
such policy or policies. Licensee may satisfy this requirement by an endorsement to
its underlying insurance or umbrella liability policy.
(b) Neither party shall be liable to the other (or to the other's successors or assigns) for
any loss or damage caused by fire or any of the risks enumerated in a standard "All
Risk" insurance policy, and, in the event of such insured loss, neither party's
insurance company shall have a subrogated claim against the other.
(c) Licensee shall provide to City, prior to the Commencement Date of this License,
evidence of the required insurance in the form of a certificate of insurance issued by
an insurance company licensed to do business in the State of Texas, which includes
all coverage required above. Said certificate shall also provide that the coverage may
not be cancelled, expired, or materially changed without 30 days prior written notice
to City.
9. Notices. All notices, requests, demands, and other communications hereunder shall be in
writing and shall be deemed given if personally delivered or mailed, postage prepaid,
certified mail, return receipt requested to the following addresses:
If to City, to:
City Manager
City of Anna
P.O. Box 776
Anna, TX 75409
If the Licensee, to:
10. Representations and Warranties.
a) Notwithstanding any other provision in this Agreement, the City makes no warranty
and does not represent that (1) it has full right, power, and authority to execute this
License; or (2) to the best of its knowledge, it has good and unencumbered title to the
Property free and clear of any liens. Such matters are at the risk of Licensee and City
licenses under this License only that part of the Property that it may be found to justly
own and possess in a manner enabling it provide this License free from conflicting
claims.
11. Assignment. This License may not be sold, assigned, or transferred by Licensee without
the written consent of the City.
12. Third Parties. This License is granted strictly to the Licensee and its provisions are not
intended in any manner to benefit any third party.
13. Miscellaneous.
(a) This License constitutes the entire agreement and understanding of the parties
relating to the subject matter of this License, 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 License must be in writing and executed by both parties.
(b) The parties understand and agree that this is a License for use of the City's
Property and is not a contract for goods or services as governed under Texas
Local Government Code § 271.151, et. seq.
(c) This License shall be construed in accordance with the laws of the State of
Texas. Exclusive jurisdiction over and venue for any claim related directly or
indirectly to this License shall lie in Collin County, Texas.
(d) If any term of this License is found to be void or invalid, such invalidity shall not
affect the remaining terms of this License, which shall continue in full force and
effect.
(e) Licensee waives all rights and remedies under law and equity to bring a claim or
cause of action against the City that arises out of, relates (directly or indirectly)
to, or is in connection with this License, including but not limited to any claim or
cause of action available under the Uniform Declaratory Judgment Act (" UDJA") ,
except that Licensee reserves the right to seek specific performance of the City's
duties under this License other than by a claim brought under the UDJA.
(f) This License is subject to all zoning approvals and building and other applicable
permits.
DULY AUTHORIZED SIGNATURES:
City of Anna, Texas
By:
Philip Sanders
City Manager
Date:
("Licensee")
By:
(Printed Name)
Its:
(Title)
Date:
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Anna, TX