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HomeMy WebLinkAboutOrd 1812 - 3642 University ORDINANCE NUMBER 1812 AN ORDINANCE GRANTING TO 3642 UNIVERSITY PARTNERS, LP THE RIGHT, PRIVilEGE AND FRANCHISE FOR A PERIOD NOT TO EXCEED TEN YEARS 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 FINDINGS AND OTHER PROVISIONS RELATING TO THE SUBJECT. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WEST UNIVERSITY PLACE: Section 1. The City of West University Place, Texas (herein sometimes called UCity/f which term includes the City's successors and assigns) does hereby grant unto 3642 University Partners, LP, herein called uGranteeJ) (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, 3646 University Boulevard, Houstonl 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 entitled "0.4448 Acre Situated in the A.C. Reynolds Survey, A- 61 of Harris County, Texas,u dated November 5, 2004, and sealed by Daniel King, Registered Professional Land Surveyor of the State of Texas (No. 4764), which map is on file in the office of the City Secretary of the City. 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, highwaYf 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 such work. Whenever deemed necessary by the City, it shall have _ the right to designatelts engineer, building official or other person to superintend and supervise the refilling 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 $750~OO per year, in advance, provided that after the first payment, each subsequent annual payment shall be multiplied by a cost adjustment factor calculated by dividing "Au by 1t8," where: l'A' is the index value of the uConsumer Price Index for An Urban Consumerst U.S. City Average, AU Items (19671 Day' as published in the Monthly Labor Review by the Bureau of Labor Statjstics of the Department of Labor of the United States of America CtndexlJ)1 appricable to the third month jmmediateJy preceding the month in which the payment is due; and US" is the varue of such rndex applicabJe to the third month preceding the month in which thjs ordinance is fi na lIy ad 0 pted ~ The prod uct of the injti al an n ua I paym e nt I multi pi ied by the appropriate cost adjustment facto r, s hall be the amount that the Grantee shall pay for each subsequent year. (b) The annual payment for the first year (2005) shall be due on the tenth day following the day this ordinance is finally adopted~ The second and each subsequent annual payment shall be due on the first day of the year to which it corresponds. For example, the second annual payment (for 2006) shall be due on the first day after the first anniversary of the date this ordinance is finally adopted. (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 shall maintain in effect public liability insurance with the following features and coverages: (i) lim its of liability of at least $1 ,000,000 per occu rrence, (ii) the City added as an additional insured party, and (Hi) 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 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 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 shalf 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 RESUL TI NG FROM: (A) ANY SUCH REMOVAL OR ALTERATION OR (8) 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 cr considered as conferring upon Grantee any exclusive rights or privileges of any nature whatsoever. Section 7. (a) This ordinance shalf 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 CitYl 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, and it is not transferable or assignable. A change of name by GranteeJ a merger by Grantee with another firm or an 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 and continue and remain in effect for a period ending at noon on the tenth anniversary of the date this ordinance is finally adopted (unless sooner terminated), provided that this ordinance shall not take effect unless Grantee: (i) signs and files a written acceptance of this ordinance with the City Secretary of the City on or before the 30th 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), such acceptance being in the form attached hereto, and (ii) makes the initial payment when due. :This franchise shall automatically terminate (sooner than the tenth anniversary of the date this ordinance is adopted if sells or transfers its interest in the subject structure or the abutting property. Section 11 ~ All prior franchise ordinances and parts of such ordinances 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, shalf ever be held to be invalid or unconstitutional by any 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 the 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 ~~~ ~ ,JooJ". PASSED AND APPROVED ON SECOND READING, FINALLY ADOPTED AND SIGNED on tfJ~ /~~S- ./ Recommended: Att Signed: ~ Approved as to legal form: City ACCEPTANCE OF FRANCHISE To the City of West University Placef Texas: 3642 University Partners, LP ~ for itself, its successors and assigns, hereby accepts the above and foregoing ordinance and agrees to be bound by all of its terms and provisions. 3642 University Partners, LP James K. Reid, By: its general partner ' THE STATE OF TEXAS ~ COUNTY OF HARRIS S I, the duly appointed, qualified and acting City Secretary of the City of West University Place, Texas, do hereby certify that the above and foregoing Acceptance was received and filedjn~9ffice of ~h.e Cit~ecretary of the City of West University Place, Texas, on ~~l.-'~ ~ . EXECUTED under my hand and the official seal of the City of West University Place, Texas, at said City. r~ ___h _ . D~:~~: . / City Secretary