HomeMy WebLinkAboutORD 3030 Granting Franchise to FPFII Edloe, LLCCity of West University Place
Harris County, Texas
ORDINANCE NUMBER 3030
AN ORDINANCE GRANTING TO FPFII EDLOE, LLC THE RIGHT, PRIVILEGE AND FRANCHISE TO
MAINTAIN, OCCUPY AND REPAIR PORTIONS OF AN EXISTING BUILDING WITHIN PORTIONS OF
TWO STREETS IN THE CITY OF WEST UNIVERSITY PLACE, HARRIS COUNTY, TEXAS; PROVIDING
TERMS AND CONDITIONS CONTROLLING THE USE OF SUCH STREETS; PROVIDING FOR A RENTAL
CHARGE; AND CONTAINING FILINGS AND OTHER PROVISIONS RELATING TO THE SUBJECT.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WEST UNIVERSITY PLACE, TEXAS:
Section 1. The City of West University Place, Texas, (herein sometimes called "City,"
which term includes the City's successors and assigns) does hereby grant unto FPFII Edloe, LLC,
herein called "Grantee" (which term includes the Grantee's successors, as permitted under this
ordinance), the right, privilege and franchise to maintain, occupy and repair certain portions of
the building located at the northeast corner of University Boulevard and Edloe Street, 3642
University Boulevard, West University Place. Texas, but only those portions which: (i) are now
existing and now owned by Grantee and (ii) are now located within the street right of way or
easement of University Boulevard or Edloe Street (said portions being referred to herein as the
"subject structure"). The portions of such streets to which this franchise applies are illustrated
on that certain survey map entitles "0.448 Acre Situated in the Allen C. Reynolds League, Abstract
No. 61 of Harris County, Texas," dated February 24, 2020, and sealed by George Collison
Registered Professional Land Surveyor of the State of Texas (No. 4461), which map is attached
hereto as Exhibit "A".
Section 2. Grantee shall maintain the subject structure so as not to interfere
unreasonably with traffic over the public thoroughfares of the City. Any public road, highway,
street, lane, alley or other public place disturbed by Grantee in maintaining or repairing the
subject structure shall be restored immediately after the completion of the work in accordance
with the City's ordinances, rules and regulations, as amended from time to time. In all cases
where work requires the exercise of skill as in the laying or relaying of pavement or sidewalks,
the Grantee shall employ skilled workers familiar with the execution of work. Whenever deemed
necessary by the City, it shall have the right to designate its engineer, building official or other
person to superintend and supervise the filling of said public roads, highways, sidewalks, streets
or other public ways, the relaying or refilling of the sidewalks and pavements and all other -repairs
and replacements of the pavements, sidewalks and other grounds so disturbed for the
maintenance or repair, all of which shall be at the expense of the Grantee.
Section 3. (a) Grantee shall pay as rental to the City the sum of $1,200.00 per year,
in advance, provided that after the first payment, each subsequent annual payment shall be
increased by a factor of two and one-half percent (2.5%).
(b) The annual payment for the first year (2022) shall be due on June 1,
2022. The second and each subsequent annual payment shall be due on June 1st of each
subsequent year.
(c) Each payment shall be made at the principal office of the City, without
demand, on or before its due date.
Section 4. (a) At all times when this ordinance is in effect, the Grantee shall maintain
in effect public liability insurance with the following features and coverages: (i) limits of liability
of at least S1,000,000 per occurrence, (ii) the City added as an additional insured party, and (iii)
a waiver of subrogation in favor of the City. The Grantee shall submit proof of such insurance
with its acceptance of this franchise and annually thereafter, before expiration or renewal.
(b) In addition to insurance, THE GRANTEE SHALL DEFEND, HOLD
HARMLESS AND INDEMNIFY THE CITY AND ITS OFFICERS, AGENTS, EMPLOYEES AND
CONTRACTORS ("PROTECTED PARTIES") FROM AND AGAINST ALL CLAIMS AND LIABILITIES
FOR INJURY TO OR DEATH OF ANY PERSON, PROPERTY DAMAGE AND ANY OTHER DAMAGE
OR LOSS: (A) ARISING OUT OF OR CONNECTED WITH THE SUBJECT STRUCTURE OR (B) WHICH
WOULD NOT HAVE OCCURRED BUT FOR THE PRESENCE OF THE SUBJECT STRUCTURE WITHIN
THE RIGHT OF WAY OR EASEMENT AREA. THIS INDEMNITY APPLIES TO CLAIMS BASED UPON
ANY CAUSE OF ACTION OR THEORY, IRRESPECTIVE OF CAUSE OF ORIGIN, WHETHER BREACH
OF CONTRACT, TORT, PERFORMANCE, NON-PERFORMANCE, INTENTIONAL ACT, STRICT
LIABILITY OR NEGLIGENCE (SOLE OR JOINT, ACTIVE OR OTHERWISE) OF THE PROTECTED
PARTIES. GRANTEE INTENDS FOR THIS TO DEFEND, INDEMNIFY AND HOLD HARMLESS THE
PROTECTED PARTIES FROM THE CONSEQUENCES OF THEIR OWN SOLE OR JOINT
NEGLIGENCE.
Section 5. (a) The Grantee agrees that if the City, at any time, in its sole
discretion, determines that it is necessary to move, remove, change or alter the subject structure,
the City (i) may notify the Grantee as provided in Chapter 19 of the Code of Ordinances, in which
case the Grantee shall take the actions required by Chapter 19, and (ii) shall be privileged to move,
remove, change or alter the subject structure, or cause it to be done. In either case, the City shall
not be obligated in any manner to restore the subject structure, but, instead, any restoration shall
be made by the Grantee at its sole cost and expense.
(b) THE GRANTEE RELEASES THE PROTECTED PARTIES FROM ANY AND ALL
CLAIMS AND LIABILITY FOR LOSS OF OR DAMAGE TO THE SUBJECT STRUCTURE RESULTING FROM:
(A) ANY SUCH REMOVAL OR ALTERATION OR (B) THE PRESENCE OR MALFUNCTIONING OF CITY
FACILITIES (OR ANY OTHER CITY OPERATION) WITHIN THE RIGHT OF WAY OR EASEMENT. THIS
RELEASE APPLIES TO ALL CLAIMS (PRESENT AND FUTURE, KNOWN AND UNKNOWN) BASED UPON
ANY CAUSE OF ACTION OR THEORY, IRRESPECTIVE OF CAUSE OR ORIGIN, WHETHER BREACH OF
CONTRACT, TORT, PERFORMANCE, NON-PERFORMANCE, INTENTIONAL ACT, STRICT LIABILITY
OR NEGLIGENCE (SOLE OR JOINT, ACTIVE OR OTHERWISE) OF THE PROTECTED PARTIES.
GRANTEE INTENDS FOR THIS TO RELEASE THE PROTECTED PARTIES FROM THE CONSEQUENCES
OF THEIR OWN SOLE OR JOINT NEGLIGENCE.
Section 6. Nothing herein contained shall ever be held or considered as conferring
upon Grantee any exclusive rights or privileges of any nature whatsoever.
Section 7. (a) This ordinance shall be subject to and governed by the Home Rule
Charter of the City and all applicable regulations, ordinances, laws and constitutions, in existence
or later adopted, and the Grantee shall comply with them. Nothing in this ordinance shall ever
be construed to be a permit, license, permission or waiver of any requirement of the zoning
ordinance, Chapter 6 or 19 of the Code of Ordinances or any other ordinance of the City, but
instead, the Grantee understands that all such other ordinances must be complied with, in
addition to the requirements of this ordinance.
(b) If the City proposes an official plan for off-street parking to serve
the business district along Edloe Street (near the subject structure), the Grantee agrees to meet
and confer with the City and to take reasonable steps, as may be requested by the City to help
implement the plan, if it is adopted.
Section 8. If Grantee fails to perform any of its duties under this ordinance, the City
may, at its option, terminate the rights of the Grantee. In the event of such termination, all of the
remaining payments of Grantee shall become immediately due.
Section 9. This franchise is for the sole use and benefit of Grantee; this franchise may
be assigned or transferred to any subsequent purchaser of the subject structure or the abutting
property upon written notice to the City. A change of name by Grantee, a merger by Grantee
with another firm or acquisition of Grantee by another firm shall not be deemed to be a transfer
within the meaning of this Section.
Section 10. This ordinance shall take effect upon adoption and continue and remain in
effect for a ten (10) year period ending at noon on May 31, 2032 (unless sooner terminated),
provided that this ordinance shall not take effect unless Grantee: (i) signs and files acceptance of
this ordinance with the City Secretary of the City on or before the 301h day following the day that
this ordinance is finally adopted (or within such longer period of time as the City Council of the
City may prescribe), and (ii) makes the initial payment when due. This franchise shall
automatically terminate if Grantee fails to make the annual payment required by this ordinance.
This ordinance shall automatically renew for a 10 -year period at the end of the original and any
subsequent 10 -year periods, unless terminated by either party.
Section 11. All prior franchise ordinances and parts of such ordnances in conflict
herewith are hereby repealed to the extent of the conflict only.
Section 12. If any word, phrase, clause, sentence, paragraph, section or other part of
this ordinance or the application thereof to any person or circumstance, shall ever be held to be
invalid or unconstitutional by a court of competent jurisdiction the remainder of this ordinance
and the application of such word, phrase, clause, sentence, paragraph, section or other part of
this ordinance to any other persons or circumstances shall not be affected thereby.
Section 13. The City Council officially finds, determines and declares that a sufficient
written notice of be date, hour, place and subject of each meeting at which this ordinance was
discussed, considered or acted upon was given in the manner required by the Texas Open
Meetings Law, as amended, and that each such meeting has been open to the public as required
by law at all times during such discussion, consideration and action. The City Council ratifies,
approves and confirms such notices and the contents and posting thereof.
PASSED AND APPROVED ON FIRST READING on the 91h day of May , 2022.
PASSED AND APPROVED ON SECOND READING on the 23rd day of May ' 2022.
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ACKNOWLEDGMENT
THE STATE OF TEXAS §
COUNTY OF HARRIS §
This instrument was acknowledged before
Sample, Mayor of the City of West University Plac(
ECo,Wns
THELMA A GILLIAM
Notary ID #5633255
My Commission Expires
February 10, 2024
(S
THE STATE OF TEXAS §
A
COUNTY OF HARRIS §
n )te dam' --day of May 2022, by Susan
municipal corporation.
Notary Public in and for the State of Texas
My Commission Expires: �� /v ow -Al
ACKNOWLEDGMENT
This instrument was acknowledged before me on theA-74— day of May 2022, by
an authorized representative of F"oe, LLC for and on behalf of said
Corporatica.
Notary Public in and for the State of Texas
THELMA A GILLIAM My Commission Expires: 6!�Ihall 9-Y
Notary ID #5633255
My Commission Expires
February 10, 2024
A st: Signed: 29 or
City Secretary (Seal) Qa vy�o r
Recommended:
A ved as to form: By:
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FPFII Edloe, LLC
Name, Title: _ r°�' ► "�1►� a�
Date: 5 2 2 Z
Acting City Manager
Olson &Olson, LLP, City Attorney