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HomeMy WebLinkAboutContract 28240����� �������� _ � . . ��������� �� ... LICENSE AGREEMENT � -- -- ' THIS LICENSE �,GREEMENT("License") is made and entered into as o� t�is ,�,,_ day of ., _��� _�, •, 2002, by and between KIMSWARD CORP,, a Delaware corporation ("Licensor"} and THE CITY OF FORT WORTH ("Licensee"j, a municipal corporation situated in th� City of Fart Wnrth, Tarrant County, Texas, by and t�rough iis duly autharized Assista�t City Manager Lihby Watson. � WITNESSET�I: A. That MW 7th & Carrall, LLC, a Delaware limited liability cornpany ("Owner') is the owner of certain real pzoperty located at 2b00 West 7`� Street, Fort Worth, Texas (the "Land") which is improved with that certain building containing approximately 63,b01 square feet of floor area (the "Building"; khe Land, the Builcling and any other improvements lacated on �he Land, callectively, the "Property"). The Property is Iegally desc�ibed on Exhibit A attache� hereto. . B. Licensor and Licensee her�by acknowledge and agree thai, on December 28, 2000, Owner commenced a voluntary petition under Chapter 11 of the Bankruptcy Code, lI U.S.C. Sectaons 101 (the "Bankruptcy Corle"). This License is being entered into in accordance with, pursuant to the authority grantecl by, arid subject to all of the terms and provisions of that ce�-tain 4RDER UNDER 11 U.S.C. SECTIONS 105, 3b3, 365 AND 1146(C) �1ND FED. R. BANKR. P. 2002, 6044 AND 6a0b (I) AUTHQRIZING THE DEBTORS TO ENTER INTO SALE AGREEMEN'T PUR�UANT TO WHICH. THE RIGHT TO SELL OR ASSIGN THE DEBT(�RS' INTERESTS IN ALL OR SUB�TANTIALLY ALL OF THEIR REAL PROPERTY WTLL BE S�LD FREE AND CLEAR OF CLAIMS, LIENS AND ENCUNrBRANCES, (II} APPROVIlVG A PROCESS FOR THE SUBSEQUENT SALE OR ASSUNiPTION AND ASSIGNIVIENT OF SUCH REAL PROPERTY TO DESIGNEES, AND (III) GRANTING OTHER RELIEF dated March 1, 2D01 which has been enterec� by the United States Bankruptcy Court, District of Delaware, Case I'Ja, 00-4667 (the "Bank�uptcy Court"), as such Order has been amended or madi�ed by various stipulations agreed to at the Banktuptcy Court hearing to apprave the Designation Rights Agreement (hereafter defined} {collecti�ely, the "Designution Rights Order"), which Designation Rights Order, among other things, authoriz�d and appr4ved that certain Designation Rigkzts Agreement dated as of Febn.iary 23, 2001 {the "Designation Rights Agreemerat"} among Kimsward Corp„ successar in interest by assignment to KRC Acq�isition Corp., Montgomery Ward, LLC, Montgomery Ward Development, LLC, T�e 535, LLC, MW 7th & Carroll, LLC, Brandywine DC, LLC and ANiW Realty, LLC. C. That for and in cansideration of the.mutual covenant� hereinafter set forth and other good and valuable consideration t�e sufficiency of which , are hereby ackrjowledged, Licensor hereby grants to Licensee the exclusive right to enter upon and use, for the pu�poses set forth below, c�rtain gzemises located at tI�e Property, which are more fully described below, as upan and subject to the �ollowing covenants, conditions and provisions: hereaf. ss�srzs.s7 1. Re�itals. The reciti� set forth above is fully incorporated herein and made a part , � .�� � �6T�{ � � � . �� � t;• I . ,.'j�r 2. Premises. The premises {the "Premises") shall consist of a certain portion of the Land and the Building as depicted on Exhibit B attached herero and made a�art hereof. 3. Term: License Fee. The tennn of this License shall commence on December 1, 2002 (the "Commencement Date") and ihereafter shall continue ior seven {7} months tYuough and including .�une 30, 2003 (the "Term"), unless sooner terminaied in accordance with the terms o� this License. Li�ensee shaU pay to Lessar a"License Fee" in equal monthly installments of $5,000.00, in advance, on the first {1st} day of each manth of the term of the License in lawful money of khe United States payable to Kirnsward Corp. and deli�exed care of Kimco Realty CoYporation, 3333 New Hyde Park Road, Suite 100, New Hyde Park, New Yorlc 11042, Attention: Noreen Mo�ris ar to such ather persons ar at such ather places as Licensor may frQm time to time desigtaate in wi7ting, provided, however, fihat the payment of License Fee fo�r tY►e first rnonth duzing the term of tY�e License shall be paid by Lic�ns�e to Licensor on the Commencement Date. Upon written notice to Licensor delivered at least �hirty (30} days prior to the expiration of the Term, Licensee will have the option to extend ihe Term of this License on a rnonth ta month basis on and subject to all o1f the terms and canditians af this License. Licensor agrees to perrnit Licensee to remain in the Premises on such a month-to-month basis, which shall be terminable on fifteen (].5) days priar written notice given by either party to the other party, 4. Use. Licensee shall have the right ta use the Premises from time to time, duning the term of this License, for the �torage and assembIy of recycling cantainers and garbage containers a�d other uses which are reasonably related and incident�.l thereto (the "Permitted Use"). Licensee shall not use the Premises for any use or purpose other than the Permitted LTse. Licensae agrees to conduct its activities on the P�•emises so as io comply with (i) aIl covenants, restric�ions and encurnbrances app�icable to the Premises and (ii} all Iaws, staEutes, ordinances, and other govei-nmental regulations. Licensee will nat allow the Premises ta be used �or any purpose that will increase the rate of insurance thereon, nor for any purpose other than that pe�mitted under this License without Licensor's prior wrikten cansent, and will not overload floars, nor permit the Preznises to be used for any unlawful purpose or in violation of any of the covenants and conditions of this License ar for any purpose that would ir�jure the reputation of the Property, or disturb or unreasonably interfere with the use of or access to the balance of the Property by Licensor ar any other tenant, licensee or other occupant thereof. Licensor represents to Licensee that, as of the date hereof, there are no leases or licenses affecting the Preznises. 5. Canformitv to Law; Renair and Maintenance. Licensee rs usiz�g the Premises in "as is", "with aIl faults" conditioz�, without any representa�ion ar �arranty of any kind �rom Licensor, and acknawledges and agrees that Licensor has no obligation to make any improvernents, repairs, replacements or alterations in the Premises. Licensee, at its sole cost and expense, shalI make all repairs and replacements made necessary by its negligence and shall prarnptIy make all repairs and replacer�ents to the interior non-structural portions of the Premises so as to maintain the Premises in good order and repair, in a clean and healthful condition and in confarmity with all laws, ordinances, rules and regulations of duIy canstituied authorities applicable thereto.. Licensee shall i�e responsible for providing such security for t�e Pr�mises as Licensee, in its reasonable judgrr�ent, determines is necessary. 6. Intentiona�ly amitted. - :Jr � -2- ; (878229.5) . " � 7. Notice. Any and all notices herein required, desired, or pz'avrded ior shall be in writing and shall be given to the respecti�e parties by: {i} facsimile followed by overnight delivery service or (ii) a nationally recognfzed overnight couri�r service, at the following facsimile number� and addresses; (a) Licensor: clo Kimco Realty Carporation 3333 New Hyde Park Road su�r� zaa New Hyde Park, NY 110�2-fl020 Attn: Ray Edwaz-ds Facsimile Number: {516) 869-7117 with a copy to: Altheimer Sz Gzay 10 S. Wacker Drive Suite 4000 Chicago, Illinais 60b06 Attn: Corey E. Light, Esq. Facsimile Number: (312} 71.5-4800 {b) Licer�see: Department of Environmental Management 1Q00 Throckmorton Street Fort Worth, Texas 761D2 Attn: Brian Boerner Facsimile Number: (817) 871-6359 with a copy to: Solid Waste Management �4100 Columbus Trail Fort Worth, Texas 76133 Attn: Kim Mote Facsimile Number: (817) 871-�193 A notaee shall be deemed to have been �iven (i} on th� date facsimile transmission a� such notice is made (provided canfi��at�on of such transmissian is obtained from the sending facsimile rnachine at the time of such transmission) �if given by facsimile and (ii) on the first business day following the sending of such natice by overnight caurier if given by overnight courier, Either party may change its facsiznile number or address far the p�ipose of notices by giving prior written notice tn the ather party in accotdance herewith. 8. Insuran�e. Licensee represents and warrants to Licensor that it is self-insured. A Statement of Self-Insurance is attaehed hereto and made a part hereaf as Exhibit C. 9. Return of Possession. Upon the termination of this License, Licensee sha11 (i) yield up and surrender said Premises to Licensor in good condition and repaiar, ordinary wear and tear and other unavoidable casualt� excepted, with any work, aIteratian� csa� .��r�u�.���n��ti perform�d upon or made ta the Premises by Licensee or its agents or e�nplc��� �,����i� ���,�r of this License further altered or removed so as to return and resfiore the Prer�is�� ������t�n -3- ' . ,, � i _� . {a�sz2s.5} �--- prior to the performance or making of such woz'k, al�erations or imgrovements by Licensee ar its agents or emplqyees, {ii) suz-x'ender to Licensor all keys, any key cards, and any parking stickers ar cards, and {iii) remove all trade fixtures and �ersonal property placed at or upon (ar pez�mitted to be placed at oz- upon} the Premises by Licensee or its agents or employees. I� Licensee shall fail to perform any such repair ar restoration work, or �aiI to remave any such items from the Premises, Licensor may da so (but Licensor shall have no obliga�ion to do so), and Licensee shall pay Licensor the cost thereof (along with interest on such amounts at the greater of either the Frizzie Rate on the day of such expenditure or 12% per annum) upon demand. AlI praperty rexnoved from the Prernises by Licensor pursuant to any provisions of this License or any law may be handled, disposed of or stored by L'zcensar in Licensor's discretion at Licensee's sole cost and expense, arnd Licensor shal� in no event be responsible for the value, preser�ation or sa%keeping thereof. . 10. Hazardous MateriaMs. Licensee shall not keep or use or allor�v to be kept or used on the Fze�ises, any hazardous wastes, in�la�nmable, or explosive liquids or maiarials. l.l. Utilities. Througho�xt the term of this License, Licensee shall, wit�in ten (1Q) days following receipt of a bill therefor from Licensor, pa� to Licensor, {ar dir.ectly to the utiiity coznpany if the Preanises is separately metered and if directed to do so by Licensor), the amflunt af a11 assessmenrs and charges far water, gas, sewer charges, electricity and any ather utility services furnished to the Premises during the, tez7m of this License. Should such assessments and charges far such atility services furnished to the Premises be includ�d in a bill or bills for utality services furnished to the �ntize Praperty, Licensor shall, in t%e use of its reasonable discretion, determine the amount of such bill or bills which are attributable to the Premises. I2. Alterations, Additions and �rnprovements, No alterations, additi�ns or improvernents shall be made to any part of the Prernises withaut khe prior written cansent of Licensar. Any such work by Licensee sha11 be performed in a good and warkmanlike manner, with first quality, new �aterials and shall be completed to Licensor's satisfaction. Any p�rtnitted alterations, additians or improvements shall conform to a11 applicab�e construction, building and fire codes of the jurisdictian in which the Premises are.located, and all other laws, ordinances, rul�s and regulatians agplicable thereto. 13. Liens. Licensee will not perrnit any mechanic's lien, or any ather liens, to be placed upon the Building or any other part of the Premises and in case of the filing of any such lien, will promptly take all aetions necessary ta causc� zt to be released including, withaut lirnita�i�on, p�ying any underlying obligation secured by such lien. If default in payment thereof sha11 conti�tue far five (5} days after written notice thereof frarn Licensor to Licensee, Licensor may �but shall have na obligation to) pay such underlying abligation or any portion thereof without inquiry therefor as to the validity thereof and any aanount so paid including expenses and interest on such amoe�nts at the g7reater of either the Priz�ne Rate on the day of such expenditure or 12% per annum, sha�l be repaid to Licensor by Licensee immedia�ely upon rendition of a bill therefor �.o Licensee. Licensor shall have a lzen on all o� fihe property flf Licensee on khe Premises as security.for the perfarmance af Che covenants and canc�tions of this License. -4- r� �a�s22s.s� . .. 14. Miscellaneous. (a) This License contains the entire agreemer�t of the parties with respect to the subject matter hereof and shall extend ta the benefit of and �e hinding upon the parties and their res�ective successors and assigns. No waiver of any breach or violation af any of the covenants, conditions or pravisions hereof shall be construed as a waiver of any other oF subsequent breach oz' vialation of the same or any ather covenant, condition or provision hereof. (b) This License may be executed in countezpai�ts, each of which, shall be deemed to be an originai and a11 0� which shalI together canstitute one and the s�zn�e instrument. Facsiznile signature pages of Chis License shall be valid and binding as ariginal signa.tures and shall be deemed an agreement of ihe respective parties to fully execute and deliver original signed copies of this License. (c) Tf any provisian of this Licens� ar the applicatipn thereof ta any person or cizcumstance is ar shall be deemed to be illegal, invalid or unenforceable, the z'emaining provisians hereof st�all remain in full :force and effect and this License shall be interpreted as if such illegal, invalid or un�nfozceable provision did not exist herein. (d} Time is of the essence of this License and each provision thereof. (e} The terms and provisions of this License sha11 be governed and construed in accardance with the laws of the state in which Che Property is lacated. (fl The titlas and headings contained herein are for convenience only. [REMA�NDER QF THIS PAGE INTENTIONALLY LEFT BLANK; SIGNATURE BLOCKS CONTAINED QN NEXT PAGE] �, � �i � 'i��j � , I -5- ' __ ,� �_ � {s�azzs.$) IN WITNESS WHEREOF, the parties hereto have caused this License to be execuCed as of the day and year abave written. LICEI�TSOR; KIMS�VARD CORP., a Delaware corporat�on ,} s y: , �'�z� ��l [:�.�`� � . Name: �/ � � 1- : � ;.1: r � � , � T �j� � � � � ,_ .� A�S' i i t �.�ii �� \ i LYCEIVSEE: THE CITY �F FORTH WORTH, a municipal co�poration : Name: Libby Watson Its: Assistant City Manager APPROVED AS TO FORM AND LEGALITY: Assistant City Attorney City 5ecretary Gloria Pearsan �� REQUIRED ?`� �+� }���� � I-� : ,��,,. �, . (878229.5) IN WITNESS WHEREOF, the parti�s hereto have caused this License to ba executed as of the day and year above written. LICE�T�OR: LICEl�TSEE: KIMSWAR� CORP., a Delawar� carporation THE C�I"�' OF FORT WQRTH, a mun�jpal corpora�ieFn By: Name: Its: By, ,�; i, �. , _ ' _ Name: Libby Watson Its: Assisiant City Manag�;r APPROVED AS TO FORM AND LEGALITY: �� �i. �io� A��ant City �ttorney , ��`: �-�__ `�'� .� _. _ , ' '__ ity Secr�tary Glpria Pearson Contract Au�.ho�i��atian - --����...�. - -- - � ~--- y ---- ���� � 1 r'._ �4 . Jlu�_ . r- ??4� a�►SM�ii 6- . . ` (878229.5} EXHIBIT A LEGAL DESCRIPTION OF THE PR�PERTY LO'I' �, BX.00K �, MON�G�MERY WARD AND C,O. ADDITION TQ THE CFTY OF �ORT WOR'1'H, TARRANT CUUNTY, T�XAS, ACCO1tDING '1'O 'THE PI.AT RECORD�D IN VOLUME 388-13$, PAGE �, DEED RECORDS OF TARRANT COUNTY, TEXAS. �� (878229.5} EXHISIT B SEE ATTACHED : (878229.5} BEc-16-20�2 i0�47 RLTHEIMER & GRAY—CHICAGO 3i2 71S 49�e P.02 e F I I �rt7�ExsiERct>7 Aaalkla � �� I S�.vLr .]da-4 A+t�C' r7p � y Y I r . a4 f � � _� e�� �1 � �� j �;� W,�,. . � ��; y aoor ia ; ,n.,' � . n I .� ,.i'� $ 1 --� � I 11 �.�...��� I 1 � , � �£ � � ! T r � �c�F�°o�` ur� ni � ---- ',�+i,�, I , /' f� E .,� � -� �rQ � %/ fr �t�rit� Jiiiun,ininix��+ ��"�t ;;� � , ., . , 1 117H ~ �J �. � � , • . f ' , ' +�,�� 5'�1'�• �+ ��� w�r _ .r V �a • � '+ �\"° J f'7 ~� S tl� �Nl � .' . R � l�?� �' � rr.�.3 V � � ' ��' � I r ' ' . . , r „�,�,: ,e.' �.� �/i� �r �% '� �` �// � . � � iq°°� ° ti F aw { ' � � / . �r 1 J 'r '� �� . / , � � u ' '•' ' ' � �aT L 81,odf f �.. � y� � '� �, vtxaa� sa r7c� 4�� c ���, . � � _ ,(� : � _ � � ' li .�z.�ce� �� ' ��- � :��: ,� „__ ! 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I ; —��� i ;'q''• ' � � //' +� � � ��� � � � � ._....___J r �;%�,ti4�� � ' � � - ,► �� � II�'J ,..� "y'�-��4i(['��^^� ��� R � . I I , i � � � � i f � f -�--�-�-�.-�-a � . i I � � �r � ,;�;• ��:�:,.� •.�.4:� ,. , � i " r ' �' �..R'• 1N4RH1Fl� N QI: � ^,-..___++�� I „� ��..-� ' - 'c•'��e�,,e,#;p�af�s�ryaib }I: 5LY1N SF. '�. J// � ' � � �`f � � j�� - �j ---��--��� s oA� d'.�L^ }�i, '' �/� �/ �yj-, - .���:��+#fr..1. i :� �/ /� / �y�"- i� '+•��� °�'-r1 ' I �R� ,�� s / � ` 1 , �m' I` � � 1 � � .. 4a:r J _ � Ck � ':, �� � �Y i' . � —__---•_•.--`� �� 'f �wS : j �J p k" =�v�J+r�s..:e � - '" rf ,a �J''• �-� � I 4n � � � i � �+ " '�` - ._ . . . ..� , � ; � ,.s. _, ' � '� � � , �� ---� � ' " --�o .' ..1 � � � � O�Ir. Vf�+ R471ui���1: . � �� �� +"�F� E939 g 6iS.G7' � �ruE..d a.wGrd rr pe � ' , C`�€d�`.-�%'."xf ��;iT -SEi�FYi7d 5 '�"`�'°'� : CJ pm•sne A� � `�x n•s'� � ��M �� 6�ir.Yt.�m v.M51m.7a .. .., kwnv. Wo., qaasm I sacK �+1ov � pwlr�a �p nr p�411m4 s ' - ' �' � .,.,, .. . - ..- . -- � +��� - � , � „ �� ^ TOTAL P.02 EXHIBIT C Navember 14, 2002 Kimco Realty Carparation 3333 New Hyde Park Rad, Suite 100 New Hyde Park, New York 11042-0020 Attention: Ray Edwards RE: Request for Proof o�Insurance City af Fort Worth's Self funded Insurance Program Dear Mr. Edwards: Please aacept this correspond�nce pursuant to your request for docezmentation of the City of Fort Wo�rtkt's z�surance pragram. The City of Fort Worth is basically a self funded entity and as such does not maint.a.in a commercial policy of generai liability insurance andlor auto liability insurance. D�mage for which the City of Fort Worth wauld ultimately be found liable wvuld be paid directly by the City of Fort V�orth and nat by a commercial insurance cnmpany. City owned praperiy is covered under the City of Fort Worth Fire anc� Ex�ended coverage program by a cammercial i.�suranee policy. Statufiary workers' compea�sat�on insurance, covezage is self- £unded ta the $SOQ,000.00 reten�ion limit per incident aver which commercial cove'rage res}�ands with no upper cap; and, employer's liability coverage is rnainta.ined at the $1,000,0OO.OQ policy limit. In �he even� there are any questions xegarding the City of Fvrt Worth's insurance program or if I may be of additional assisia�nce, please contact me at the address provided, ar phone direct to 817-871-77� 1. Thank you far your time and attentian to this matter. Bath are appreciated, On behaif of the City of Fart Worth, w� look forward to yaur continued interesfi and coaperation. Sincerely, Sue Haup� Risk Manager cc: Brian Boerner Kim Mote � ts�sazs.s� City of Fo�t Y�orih9 �"'exas M�yo�r �nd �ounci[ Co��u�i��-t«� DAiE REF�R�NC� NUMBER LOG NAME PAGE 1213102 ��� g��� 52SPaCE 1 of 1 SllBJECT AUTHORIZE A LICENSE AGREEMENT WITH KIMSWARD CORP�RATION FOR WAREHOUSE SPACE AT 2600 WEST 7TH STREET F�R THE ENVIRONMENTAL MANAGEMENT DEPARTMENT RECOMMENDATION: It is recommenr�ed that the Ciiy Council: 1. Authorize the City Manager to execute a license agreement for a lease with Kimsward Corporation for warehouse space laca#ed at 2600 West 7th S�reet for use by the 5olid Waste Di�ision of ihe Environmental Management Department as cart storage and staging area during implementat�on of the new solid waste service plan; and 2. Authorize lease payment in the amount of $35,000 o�er the term of the lease fram Decembar 1, 2002, thraug� June 30, 2003. D15CUS510N: lJnder the terms of t�e license agreement, t�e facility will be used for storage and assembly of recycling and garbage carts as they are received from the manufac#urer. The property to be leased is the former Montgomery Ward building. The term of the lease is s��en months, which is the expected time frame for delivery af the carts as the new garbage service plan is implemented. Should if b� necessary, #he I�ase can be extended an a month-to-monfh basis. The monthfy rental #ee is $5,000. �ISCAL 1NF'ORMATIONICERTIFICATION: The Finance Director certifies that funds are available in the current budget, as appropriated, of the SaEid Waste Fund. �.W:k Submitfed for Ci[y iVIanagcr's oe��� by: LiUby Watson Originating Department Head: Srian Boerner Additional Information Con#act: Brian Baerner � FYIiVD I ACCOUI�T I � (to) � 6183 � � 8079 I (from) PE64 539120 � 8079 I CENTER 0525002 I AMOUNT $3D,OOO.OD CITY SECRE7'ARY APPRQVED I2143/42