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HomeMy WebLinkAboutContract 52539 RECsed L` 4.-11-19 CITY SECRETARY �- N Jl1L 2 2019 �, CONTRACT NO. 5�J 3 w CM O�SOaj\N Ytt LICENSE AGREEMENT y �s License Agreement ("License") is made and entered into this, the r�day of , 2019 ("Effective Date"), by and between LWP Mallard, LLC ("Licensee"), and the City of Fort Worth, a Texas municipal corporation, acting by and through its duly authorized Assistant City Manager, Jesus J. Chapa ("Licensor"). WHEREAS, Licensor is the owner of the property known as 8300 Heron Drive, as more particularly described on Exhibit A, made apart hereof and attached hereto for all purposes ("Premises"); . WHEREAS, Licensee is the owner of property adjacent to the Premises, known as 8274 Heron Drive and 8308 Heron Drive, as more particularly described on Exhibit B, ("Licensee's Property"); WHEREAS, Licensee has performed and plans to perform substantial improvements to Licensee's Property, to, among other things, prevent erosion of the shoreline and maintain and preserve the integrity and value of the land thereon; WHEREAS, Licensee has requested from Licensor the right to enter the Premises to maintain, improve, and preserve the Premises in order to protect and preserve Licensee's Property and the improvements to Licensee's Property, including, but not limited to, preventing shoreline erosion on the Premises from compromising the improvements to the shoreline of Licensee's Property; and WHEREAS, Licensor agrees to license the Premises to Licensor on the terms and conditions set forth herein. SECTION 1. Grant of License. For and in consideration of the License Fee (as hereinafter defined) to be paid under this License, Licensor grants unto Licensee an exclusive license (subject to Licensor's reserved rights as set forth herein), without express or implied warranty, to the Premises for the permitted uses set forth in Section 2(a). This grant of license does not convey any property interest in the Premises to Licensee, and all property rights and ownership are hereby expressly retained by Licensor. SECTION 2. Use of Premises. (a) Permitted Uses. Licensee may use the Premises only to provide maintenance to and preservation of the Premises, at Licensee's sole cost and expense, provided that the Premises must be maintained and preserved in its natural state, without temporary or permanent structures or improvements; provided, however, that Licensee may (i) improve and maintain the shoreline subject to the requirements of Section 2(c) and Section 5; (ii) maintain forestry located on the Premises in accordance with City of Fort Worth Urban Forestry ordinance, and (ill) mow and maintain the Premises. The uses set forth in the preceding sentence shall collectively be referred to herein as the "Permitted Uses". (b) Prohibited Uses. Any use that is not a Permitted Use is prohibited. Other than the construction of the planned retaining wall similar to what is in plue OFFICIAL RECORD CITY SECRETARY FT. WORTH,TX adjacent lots described in Exhibit "B" in order to reduce the shoreline erosion, nothing shall be allowed to be placed, stored, or remain on the Premises, including but not limited to, structures, improvements, piers, docks, fixtures, machinery, equipment, or personal property of any kind. Licensee may not use pesticides, herbicides, fertilizers, or Hazardous Materials (as hereinafter defined) on the Premises. (c) Shoreline Improvements. No improvements, either permanent or temporary, shall be allowed to be constructed, installed or placed on the Premises other than improvements to the shoreline described above. The shoreline improvements must abut the lakefront property line of the Premises and shall not extend onto the Premises or into the waters of Lake Worth for such distance as to deny access to said waters by adjoining land licensors. Construction plans must be submitted for approval by Property Management Director and Water Department Director prior to constructing any shoreline improvements. Such shoreline improvements shall be constructed and repaired by Licensee only at Licensee's sole discretion and cost, subject to the requirements of Section 5. (d) Damage. Licensee shall not damage the Premises in any way. If any damage occurs to the Premises, Licensor, in its sole discretion, may require Licensee to make necessary repairs or provide maintenance to restore the Premises to its current condition. If Licensee fails to make the repairs or maintenance required by Licensor, Licensor reserves the right to make the repairs or maintenance and bill Licensee for the reasonable cost of such repairs. If Licensee fails to pay the billed amount, Licensor may pursue all legal remedies to collect the amount due. (e) Licensor's Access. Licensor reserves the right to enter the Premises at any time and for any reason, without notice, for inspection of the Premises. Licensor reserves the right to perform maintenance, repairs, improvements, and alterations to any or all of the Premises, at any time and for any reason. Licensor is not responsible for security to the Premises and shall have no liability hereunder for any theft, burglary, or other damage to Licensee's property on the Premises. SECTION 3. Term. This License shall be begin on July 5, 2019 and end onJuly -5, 2024 ("Term"), unless a prior termination is effected by either Licensor or Licensee under the termination provisions of this License. This License shall automatically renew annually for one (5) year- renewal terms, unless either Licensor or Licensee gives the other party not less than 60 days written notice of its election to terminate, as set forth in Section 9(d). SECTION 4. License Fee. Licensee shall pay Licensor a license fee in the amount of$100.00 per year ("License Fee") commencing on or about the commencement of the Term. The License Fee shall be payable to Licensor at the location of notice set forth in Section 14. The License Fee shall be made to Licensor on the first day of the Term and a like payment on or before the anniversary of the commencement day of the Term, and upon the commencement of each renewal term. Licensee may pay the License Fee for the entire Term in one lump sum amount. - 2 - SECTION 5. Improvements and Repairs. (a) The parties agree that this License does not create an obligation in or requirement on Licensee to perform any maintenance, repairs, improvements, or alterations to the Premises or on behalf of Licensor, but rather provides Licensee the permission to perform such maintenance, repairs, improvements, or alterations to the Premises at Licensee's sole discretion and cost as outlined in Section 2(c). This License is not a service contract between Licensor and Licensee. (b) Upon Licensee's election to perform any shoreline improvements as allowed under Section 2(c) or repairs thereto, the following requirements shall be met by Licensee: (1) Licensee shall not make any improvements, repairs, or alterations to the shoreline without the prior written consent of Licensor, except that minor repairs and alterations necessary to maintain existing improvements in a useful state of repair and operations do not require Licensor's consent. (2) Plans and specifications for the improvements, repairs, or alterations to the shoreline shall be provided to Licensor in the format requested by Licensor, and shall be subject to the written approval of Property Management Director and Water Department Director hereunder. Approval by Property Management Director and Water Department Director of any plans and specifications shall not constitute or be deemed (i) to be a release by Licensor of the responsibility or liability of Licensee or any of its contractors, officers, agents, employees and subcontractors, for the accuracy or the competency of the plans and specifications, including, but not limited to, any related investigations, surveys, designs, working drawings and other specifications or documents, or (ii) an assumption of any responsibility or liability by Licensor for any negligent act, error or omission in the conduct or preparation of any investigation, surveys, designs, working drawings and other specifications or documents by Licensee or any of its contractors, officers, agents, employees and subcontractors. (3) All improvements, repairs, or alterations will be made by a licensed and insured contractor, and shall be performed in a good and workmanlike manner. All materials used shall be of a high quality, and of materials that do not compromise, reduce or diminish the quality of the water of Lake Worth in any way. (4) Licensee will not cause or permit any mechanics' liens or other liens to be filed against the land or any improvements on the Premises by reason of any work, labor, services, or materials supplied or claimed to have been supplied to Licensee or anyone holding the Premises or any part of them through or under Licensee. If such a mechanic's lien or materialman's lien is recorded against the Premises or any improvements thereon as a result of Licensee's actions, Licensee must either cause it to be removed or, if Licensee in good faith wishes to contest the lien, take timely action to do so, at Licensee's sole expense. LICENSEE WILL INDEMNIFY LICENSOR AND HOLD IT HARMLESS FROM ALL LIABILITY FOR DAMAGES OCCASIONED BY THE LIEN OR THE LIEN CONTEST AND WILL, IN THE EVENT OF A JUDGMENT OF FORECLOSURE ON THE LIEN, CAUSE THE LIEN TO BE DISCHARGED AND REMOVED BEFORE THE JUDGMENT IS EXECUTED. - 3 - (c) Any improvements, repairs, or alterations made to the Premises shall become the property of Licensor upon termination or expiration of the term. (d) Licensee shall keep the Premises in good, clean, attractive, and sanitary condition in compliance with all applicable laws, ordinances, and regulatory provisions. SECTION 6. Insurance. Licensee agrees to insure the Premises. Such insurance shall provide protection for liability, fire and property loss on any improvements on the Premises on, and including, the Premises. Licensee shall carry the following insurance coverage with a company that is licensed to do business in Texas or otherwise approved by the Licensor: (a) Commercial General Liability (1) Combined limit of not less than $1,000,000 per occurrence or $2,000,000 in the aggregate. (2) Defense costs shall be outside the limits of liability. (b) Automobile Liability Insurance covering any vehicle used in providing services under this License, including owned, non-owned, or hired vehicles, with a combined limit of not less than $1,000,000 per occurrence. (c) If workers' compensation is applicable to Licensee's business, Statutory Workers' Compensation and Employers' Liability Insurance requirements per the amount required by statute. (d) General Insurance Requirements: (1) All applicable policies (other than the worker's compensation policy) shall name Licensor as an additional insured thereon, as its interests may appear. The term Licensor shall include its employees, officers, officials, agents, and volunteers in respect to the contracted services. (2) All applicable policies shall include a Waiver of Subrogation (Right of Recovery) in favor of the City of Fort Worth. (3) A minimum of ten (10) days' notice of cancellation or reduction in limits of coverage shall be provided to the Licensor.Ten(10)days'notice shall be acceptable in the event of non-payment of premium. Notice shall be sent to the Risk Licensee, City of Fort Worth, 200 Texas Street, Fort Worth, Texas 76102, with a copy to the City Attorney at the same address. (4) The insurers for all policies must be licensed and/or approved to do business in the State of Texas. All insurers must have a minimum rating of A- VII in the current A.M. Best Key Rating Guide, or have reasonably equivalent financial strength and solvency to the satisfaction of Licensor's Risk Management Office. If the rating is below that required, written approval of Licensor's Risk Licensee is required. - 4 - (5) Any failure on the part of Licensor to request required insurance documentation shall not constitute a waiver of the insurance requirement. (6) Satisfactory evidence that Licensee has obtained all required insurance shall be delivered to and approved by Licensor's Risk Management Division prior to execution of this License. Licensor assumes no liability or financial obligation for the acquisition or maintenance of such insurance; all costs incurred during the course of insuring the Premises shall be borne solely by the Licensee. Licensor is basically a self-funded entity and as such, generally, it does not maintain a commercial liability insurance policy to cover premises liability. Damages for which Licensor would ultimately be found liable would be paid directly and primarily by Licensor and not by a commercial insurance company. SECTION 7. Liability and Hold Harmless. LICENSEE COVENANTS AND AGREES NOT TO HOLD LICENSOR LIABLE FOR ANY AND ALL CLAIMS OR SUITS FOR PROPERTY DAMAGE, PERSONAL INJURY,OR ANY OTHER TYPE OF LOSS OR ADVERSE CONSEQUENCE RELATED IN ANYWAY TO THE EXISTENCE OF THIS LICENSE OR THE USE OR OCCUPANCY OF THE PREMISES, REGARDLESS OF WHETHER THE ACT OR OMISSION COMPLAINED OF RESULTS FROM THE ALLEGED NEGLIGENCE OR ANY OTHER ACT OR OMISSION OF LICENSOR, LICENSEE, OR ANY THIRD PARTY. THIS SECTION" 7 SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THIS LICENSE FOR A PERIOD OF ONE YEAR. SECTION 8. Hazardous Materials. (a) During the Term, Licensee shall not cause or permit any Hazardous Material (as defined herein) to be released, emitted or disposed upon, about or beneath the Premises by Licensee, its agents, employees, contractors, or invitees. (b) To the extent that any Environmental Damages occur during the Term as a result of Licensee's action, Licensee shall indemnify, defend, hold harmless Licensor from and against any and all Environmental Damages caused by Licensee that arise from (1) the presence upon, about or beneath the Premises of any Hazardous Materials or any chemical substance requiring remediation under any federal, state or local law, regulation or policy or (2) the breach of any provisions of the License. "Environmental Damages" shall mean (1) all claims, judgments, damages, penalties, fines, costs, liabilities and losses, (2) all costs incurred by Licensor in connection with investigation of Hazardous Material, upon, about or beneath the Premises resulting from Licensee's actions, (3) the preparation of studies or reports and the performance of any cleanup, remediation, removal or governmental agency or political subdivision necessary for Licensor to make full economic use of the Premises, or otherwise required under this License. Licensee's obligation under this Section 8 shall survive the expiration of the License for a period of one year. (c) In addition to the obligation to indemnify, Licensee shall at its sole cost and expense, promptly take all actions required by any federal, state or local governmental - 5 - agency or political subdivision or necessary for Licensor to make full economic use of the Premises as a result of the presence of Hazardous Material caused by Licensee. Such actions shall include, but not be limited to, (1) the investigation of the environmental condition of the Premises, (2) the preparation of studies or reports, and (3) the performance of any cleanup, remediation, removal or restorative work. Licensee shall take all action necessary to restore the Premises to the condition existing prior to Licensee's introduction of Hazardous Material upon, about or beneath the Premises, notwithstanding any lesser standard of remediation allowable under applicable law or governmental policies. Licensee shall obtain the Licensor's written approval from the City prior to undertaking any activities required by this Section 8, which approval may not be unreasonably withheld so long as the actions would not potentially have a material adverse effect on the Premises. Licensee's obligations under this Section 8 shall survive the expiration of this License. (d) Hazardous Material shall mean any material or substance (1) defined as a hazardous substance pursuant to the Comprehensive Environmental response, Compensation and Liability Act (42 U.S.C. Section 9601 et seq.) and any amendments; (2) defined as a hazardous material in the Hazardous Materials Transportation Act (49 U.S.C. Section 1801 et seq.); (3) defined as a"hazardous waste"pursuant to the Federal Conservation and Recovery Act (42 U.S.C. Section 9601 et. seq.) SECTION 9. Default, Termination, Funding and Non-Appropriation. (a) Licensor Default. A default by Licensor shall exist if Licensor breaches any of the terms contained in this License. Upon a default by Licensor, Licensee, as its sole remedy, may terminate this License. (b) Licensee Default. If Licensee defaults in the performance or observance of any covenant or agreement of this License, which default is not cured within seven (7) days after the giving of notice thereof by Licensor, then Licensor may, at Licensor's option, either (1) terminate this License upon not less than thirty (30) days prior written notice or (ii) cure the Licensee's default. The cost of the cure of Licensee's default pursuant to this Section 9(b) shall be payable by Licensee to Licensor within seven (7) days after the date of Licensee's receipt of written demand therefor by Licensor. Such costs must be actually and reasonably incurred and must not exceed the scope of Licensee's default. Such costs must be reasonably documented and a copy of such documentation shall be delivered to Licensee with the written demand for reimbursement. Nothing contained in this Section 9(b) shall create or imply the existence of any obligation by Licensor to cure any Licensee default. (c) Failure to Remove Prohibited Property. If Licensee does not cure a default related to the failure to remove a prohibited structure, improvement, or personal property as required herein on the Premises within the time period allowed for cure in Section 9 (b), such structure, improvement, or personal property shall become Licensor's property and Licensor shall have the right to remove the structure, improvement, or personal property and dispose of same by any method it so chooses. - 6 - (d) Termination. (1) This License shall terminate immediately, without necessity of action by either party, upon the sale or transfer of Licensee's Property. (2) After the end of the Term, either party may terminate this License by giving the other party not less than 60 days'written notice. Upon the termination of this License, neither party shall have any further obligation or liability to the other under this License. Licensee shall be bound by the terms, covenants, and conditions expressed herein until Licensee surrenders the Premises, regardless of whether the date of surrender coincides with the date of termination of the License. (3) Licensor may terminate this License at any time during the Term with written notice to Licensee, if Licensor, determines a public necessity for the Premises. SECTION 10. Damage or Destruction. (a) Notice. If the improvements on the Premises,if any, should be damaged or destroyed by fire, tornado, or other property loss, Licensee shall promptly give written notice thereof to Licensor. Licensor, in its sole discretion, will assess any damage to the improvements and if there is substantial damage to the improvements, decide whether to allow Licensee to continue use of the Premises under this License. If there is no damage to any improvements, then Licensee will have the right to continued use of the Premises for the balance of the Term. (b) No Refund of License Fee. License Fee to be paid by Licensee under this License shall not be refunded in the event any improvements on the Premises are damaged or destroyed and, as a result thereof, Licensor determines not to allow Licensee to use the Premises. SECTION 11. Surrender of Premises. Upon the termination of this License for any reason whatsoever, Licensee shall surrender possession of the Premises in the same or better condition as the Premises were in upon delivery of possession under the License, reasonable wear and tear excepted. Licensee shall remove all its personal property on or before the termination of the License; and Licensee shall be responsible for repairing any damage to the Premises caused by the removal such items. Licensee shall not remove any improvements made pursuant to Section 2(c). SECTION 12. Acceptance of Premises. Licensee acknowledges that Licensee has fully inspected the Premises, and on the basis of such inspection Licensee hereby accepts the Premises as suitable for the purposes for which the same are licensed. SECTION 13. Prohibition of Assignment or Sublicense. Licensee shall not assign or sublet this License. Any attempted assigning or sublicense shall be null and void and not binding on Licensor and, notwithstanding anything herein to the contrary, this License shall immediately terminate. - 7 - SECTION 14. Notices. Notices required to be made under this License shall be sent to the following persons at the following addresses, provided, however, that each party reserves the right to change its designated person for notice, upon written notice to the other party of such change: All notices to Licensor shall be sent to: City of Fort Worth Attn: Lease Manager /Sr. Land Agent for Lake Worth Property Management, Lease Section 200 Texas Street Fort Worth Texas 76102 As well as to: City of Fort Worth Attn: Kevin Gunn Assistant City Manager for Property Management 200 Texas Street Fort Worth, Texas 76102 As well as to: City of Fort Worth City Attorney's Office Attn: Leann Guzman 200 Texas Street Fort Worth, Texas 76102 License payment to be made at: City of Fort Worth Attn: Property Management , Lease Section 200 Texas Street Fort Worth, Texas 76102 All notices to Licensee shall be sent to: Ken Broadie 1517 Shady Oaks Lane Fort Worth, TX 76107 As well as to: J. Walker Holland Holland, Johns & Penny, LLP 306 West Th Street— Suite 500 Fort Worth, TX 76102-4982 - 8 - All time periods related to any notice requirements specified in this License shall commence upon the terms specified in the section requiring the notice. The notice shall be deemed effective two business days after the date when deposited in United States mail postage prepaid, certified mail, return receipt requested, addressed to the other party as set forth above.. SECTION 15. Compliance with Laws. Licensee, at its expense, shall comply with all applicable environmental, air quality, zoning, planning, building, health, labor, discrimination, fire, safety, and other governmental or regulatory laws, ordinances, codes, and other requirements applicable to the Premises. Licensee shall also obtain all permits or approvals necessary for use of the Premises for the intended purposes. Licensee shall cause the Premises to be continuously in compliance with all codes or laws applicable to Licensee's use. SECTION 16. Entire Agreement. This License shall constitute the entire agreement of the Licensor and Licensee regarding the subject matter of this License, and shall supersede any prior agreements, either oral or written, pertaining to the Premises. SECTION 17. Waivers. One or more waivers of any covenant, term, or condition of the License by either Licensor or Licensee shall not be construed as a waiver of a subsequent breach of the same covenant, term, or condition. The consent or approval by either Licensor or Licensee to or of any act by the other party requiring such consent or approval shall not be deemed a waiver or render unnecessary consent to or approval of any subsequent similar act. SECTION 18. Choice of Law and Venue. This License and the relationship created hereby shall be governed by the laws of the State of Texas. Venue for any action brought to interpret or enforce the terms of the License or for any breach shall be in Tarrant County, Texas. SECTION 19. Invalidity of Particular Provisions. If any provision of this License is or becomes illegal or unenforceable because of present or future laws or any rule or regulation of any governmental entity, the remaining parts of this License will not be affected. SECTION 20. Governmental Powers. It is understood that by execution of this License, Licensor does not waive or surrender any of it governmental powers. SECTION 21. Captions; Cross References. The headings and captions contained in this License are inserted for convenience of reference only, and are not to be deemed a part of or to be used in construing this License. The captions in no way define, describe, amplify, or limit the scope or the intent of this License or any of the provisions of this License. All references in this License to articles, sections, or subsections thereof refer to the corresponding article, section, or subsection of this License unless specific reference is made to such articles, sections, or subsections of another document or instrument. - 9 - IN WITNESS WHEREOF, the parties have executed this License to be effective as of this -6'—day of T V1- 2019 in Fort Worth, Tarrant County, Texas. Licensee: Licensor: LWP Mallard, LLC CITY OF FORT�7VORTH J By: By: Kevin Gun Name:Kenneth Broadie Assistant City Manager Manager APPROVED AS TO FORM AND LEGALITY: Leann Guzfhan Sr. Assistant City Attorney Form 1295: Not applicabl of-.F'Q/Q V ATTEST: , C ;0 By:- Mary K14ser City SecretaryrgS'. CONTRACT COMPLIANCE LICENSEE: By signing, I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. ?'>� i -/�- 17— Name: icky Salaza Title: Sr. Land Agent OFFICIAL RECORD CITY SECRETARY - 10 - FT. WORTH,TX Revised LG/bm 4.-11-19 EXHIBIT A Premises Being Lot MR, Block 30, LAKE WORTH LEASES ADDITION, Fort Worth, Tarrant County, Texas, also known as 8300 Heron Drive, Fort Worth, Texas Revised LG/bm 4.-11-19 EXHIBIT B Licensee's Property Lot 12R& 14R, Block 30, LAKE WORTH LEASES ADDITION, Fort Worth, Tarrant County, Texas, also known as, 8274 Heron Drive, and 8308 Heron Drive, Fort Worth, Texas M:\03\031031.01\