HomeMy WebLinkAboutRES 04-068 RESOLUTION NO, 04-068
BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF BEAUMONT:
THAT the City Manager be, and he is hereby, authorized to execute all documents
necessary, specifically including a License Agreement, in order for the Beaumont Police
Department to continue to maintain a Police Substation at Parkdale Mall. The License
Agreement is substantially in the form attached hereto as Exhibit "A".
PASSED BY THE CITY COUNCIL of the City of Beaumont this the 301h day of
March, 2004.
r.
1 n s - NWor Evelyn M. Lord -
�A 0
LICENSE AGR RMFNT
Revised: 6/01/03
Deal Type:Inline
Unit: H-848
Agreement Type:Renewal
THIS LICENSE is made this day of 200_,by and between Parkdale Mall
Associates by CBL&Associates Management Inc.,its managing agent,("Licensor") and City of Beaumont,a(n)
Government incorporated in the state of 17K,having offices at 225 College Beaumont T�77701 Attn:Kyle Hayes
Phone:409-880-3801,Fax:409-880-384 ("Licensee").
It is understood and agreed that this Agreement is,and is intended to be a License,granting the
Licensee permission to engage in certain acts upon the Licensor's premises,subject to the terms,
conditions and limitations set forth herein. Licensor does not grant Licensee any permanent interest in
Licensor's premises,land,building or other realty whatsoever,nor shall any other relationship between the
parties,including,but not limited to that of landlord and tenant be implied or created by virtue of this
Agreement. The License granted by this Agreement may not be sold,assigned,transferred,mortgaged,
pledged or transferred by Licensee.
In consideration of the agreements set forth herein the parties agree:
1. License Area, Licensee's rights,duties and obligations under this Agreement shall be limited
to the specific area containing approximately 799.8 square feet of floor area,as identified on Exhibit A,
attached hereto and made a part hereof("License Area"), in Parkdale Mall Beaumont Tom,(The
"Shopping Center"). Licensee shall have no right to use any other area of Licensor's premises,other than
common areas open to the general public.
2. Duration, Licensee's rights under this Agreement shall commence on the earlier of: (a)
10 1 Z2003 (b) or the day Licensee opens (the"Commencement Date"),and shall end on 9230/2004(the
"Expiration Date"),unless the License referenced in this Agreement is revoked earlier by Licensor.
Licensor shall not be liable to Licensee in damages or otherwise for any delay in the Commencement
Date,regardless of cause.
I licensor or Licensee may revoke this License at any time,with or-without cause,and with sixty days
advance written notice
3. Use: The License Area shall be occupied and used by the Licensee solely for the purpose of
u5e of r raises Space H-8481 as a police department substati n for shift changes,report_wn'ting phone
work etc The premises shall not be used as a iatl. as approved by mall management,and for no other
Purpose whatsoever.
Licensee shall store and/or stock in the License Area only such merchandise as Licensee is
permitted to offer for sale in the License Area pursuant to this License. Licensee shall not violate
applicable federal, state,and local laws prohibiting the sale or display of products,which infringe on the
trademarks or copyrights of others.
4. D B A:Licensee shall occupy and use the License Area under the trade name of City of
Beaumont which shall not be changed without Licensor's prior written consent.
5• Fees: Licensee shall pay Licensor,without notice,demand or setoff,at the property office or
such other location as Licensor may specify,by certified check or money order on or before the start
date of this agreement, and on the first da y of each month thereafter:
Start Date End Date Fee Total Fee
(i) Minimum Fee(s): 10/1/2003 10/31/2003 $1.00 $1.00
In addition to the Total Minimum Fee set forth above,Licensee shall pay to Licensor,the following fees
in accordance with the schedule set forth below:
Description Fee FrcQuencv Start Date
Additional End Date
Fees :
(u)
1
EXHIBIT "A"
6. Damage DeDOSit: Licensee deposits herewith the sum of due upon Licensee
execution unless otherwise noted (Waived) as a damage deposit which shall be applied towards fees
and other charges due under this Agreement and as a surety for the performance by Licensee of the
terms of this License under which Licensee may be in default or for any sum which Licensor may
expend by reason of Licensee's default in respect of any of the terms of this License including any
damages which may result to the License Area. Within thirty(30)days after the expiration of the term
of this License there shall be an accounting with payment to Licensor or reimbursement to Licensee,
as the case may be, of the aforesaid sum. In the event this License is terminated, the damage deposit
will be returned to Licensee after deducting any sums due Licensor.
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9• Relocation- Licensor reserves the right to move,relocate,adjust or substitute the
Area,in Licenser's sole discretion. Licensor shall make every reasonable effort to do sou License
to be least disruptive to Licensee's business operations. such a way as
10. Revocation- The License granted by virtue of this Agreement may be revoked by Licensor,
in Licensoe's sole discretion for any reason,including,but not limited to the Specific Grounds for
Revocation as set forth in Paragraph 14 hereof,upon not less that twenty-four(24)hours notice to
Licensee. Licensee shall not be entitled to reimbursement or compensation for any purported damages
or losses sustained as the result of any such revocation by Licensor.
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'Licensee is self insured for all general and automobile liability and will hold Licensor harmless for all
claims arising from Licensee's use of the leased premises.
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13. Liability of Licensor: Licensor shall not be responsible or liable for, and Licensee hereby
expressly waives,all claims against Licensor for injury to persons or damage to Licensee's property on the
License Area, regardless of the cause. Licensee's property in the License Area or the Shopping Center
shall be there at Licensee's sole risk. Licensor, its agents, and employees shall not be liable for, and
Licensee waives, all claims for loss or damage to Licensee's business or damage to person or property
sustained by Licensee or any person claiming by, through or under Licensee resulting from any accident
or occurrence in, on, or about the License Area or any other part of the Shopping Center, including,
without limitation, claims for loss, theft, or damage resulting from (i) equipment or appurtenances
becoming out of repair; (ii) injury done or occasioned by wind or weather; (iii) any defect in or failure to
operate, for whatever reason, any sprinkler, heating, or air-conditioning equipment, electric wiring or the
installation thereof,gas, water, or steam pipes, stairs, porches, railings, or walks; (iv) broken glass; (v) the
backing up of any sewer pipe or downspout; (vi) the bursting, leaking, or running of any tank, tub,
washstand, water closet, waste pipe, drain, or other pipe; (vii) the escape of steam or water; (viii) water,
snow, or ice being upon or coming through the roof, skylight, trap door, stairs, doorways,windows,walks,
or any other place upon or near the Shopping Center; (ix) the falling of any fixture,plaster, tile, stucco, or
other material; (x) any act,omission,or negligence of other licensees or any other persons or occupants of
the Shopping Center or of adjoining or contiguous buildings,of owners of adjacent or contiguous property,
or the public, or by operations in the construction of any private,public, or quasi-public work; or (xi) any
other cause of any nature. To the maximum extent permitted by law, Licensee agrees to use and occupy
the License Area, and to use such other portions of the Shopping Center as Licensee is herein given the
right to use,at Licensee's own risk.
14. Specific Grounds for Revocation: If, (a) Licensee fails to perform any of the terms,
conditions, or covenants of this License; or (b) in die event there shall be filed by, or against, Licensee in
any court pursuant to any statute, either of the United States or any State, a petition (i) in bankruptcy, (ii)
alleging insolvency, (iii) reorganization, (iv) appointment of a receiver, (v) any arrangement of the
bankruptcy acts, or a similar type of proceeding; or (c) Licensee fails to pay, when due, any payment
required hereunder;or(d) Licensee abandons or vacates the License Area;or (e) in the event of any other
default by Licensee; then in any such event Licensee's rights hereunder shall cease and, Licensor may at
its option (1)have the right to immediately revoke and terminate this License,and upon demand Licensee
agrees to immediately surrender possession of the License Area to the Licensor; (2) make demand for
immediate payment of all current and future rent and any other monetary obligations due hereunder; (3) re-
enter the License Area and remove all persons and/or any property therefrom, by any suitable action or
proceeding at law. All rights and remedies of Licensor herein or at law and in equity are cumulative. If
Licensor, at its sole discretion, determines it is necessary to engage attorneys to enforce Licensor's rights
hereunder, Licensee will reimburse Licensor for reasonable attorney's fees and court costs. With respect
to any litigation arising out of this License Agreement, Licensee hereby expressly waives the right to a trial
by jury and the right to file noncompulsory countersuit or crossclaim in Licensor.
15. Obligations Upon Revocation: Upon service of the notice required by above Paragraph 10,
Licensee shall: (a)remove all of Licensee's property,including,but not limited to inventory and trade
fixtures from Licensor's premises within the time period set forth in the notice; (b)upon demand of
Licensor,pay all current and future charges due under this Agreement;(c)reimburse Licensor for all
reasonable attorney fees and court costs incurred as the result of Licensor enforcing its rights under this
Agreement. Licensor's rights and remedies under this Agreement are cumulative and Licensor's failure to
assert any claim allowed under this Agreement at any time shall not be construed as a waiver of the same.
16. Da_maw This License shall be revoked automatically if any portion of the License Area
is damaged by fire or other peril, regardless of the cause. Licensee shall have no recourse against
Licensor as a result of damage due to fire or any other peril.
17. Liabili • There shall be no personal liability of Licensor with respect to this License. If
a breach by Licensor occurs, Licensee shall look solely to the equity of Licensor in the Shopping Center
for the satisfaction of Licensee's remedies.
1$• Provisions- Licensor is or may be a party to certain documents, as amended from time to
time, with a mortgagee or beneficiary of Licensor, department stores, mall tenants, and others. This
License is subject and subordinate to all the provisions in those documents,as amended from time to time.
19• Terms of Agreement: This License contains all the covenants, promises, agreements,
conditions, and understandings between Licensor and Licensee. There are no other, either oral or
written,between them other than those set forth in this License.
20. Obligation upon Expiration: Upon the Expiration Date of this Agreement,Licensee shall
immediately remove all of Licensee's property, including, but not limited to inventory and trade fixtures
from Licensor's premises and otherwise return the License Area to the same condition as it existed at the
Commencement Date hereof. If Licensee shall fail to do so, Licensor shall be entitled to additional fees
equivalent to one hundred twenty-five percent (125 1/o) of the total Minimum Fee specified in Paragraph 5
hereof, assessed in daily increments as one-thirtieth (1/30) of the total monthly amount. Licensee shall
also reimburse Licensor for any court costs and reasonable attorney fees incurred as the result of
Licensee's failure to vacate the License Area upon the Expiration Date as set forth in Paragraph 2 hereof.
21. Liabilily of Licensor- The term "Licensor" means only the owner or mortgagee in
Possession for the time being of the building in which the License Area is located or the owner of a
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leasehold interest in said building and/or the land thereunder so that in the event of sale of said building
and/or an assignment of this License by Licensor, and/or a demise of said building and/or the land,
Licensor shall be and hereby is entirely freed and relieved of all obligations of Licensor hereunder and it
shall be deemed without further agreement between the parties and such purchaser(s), assignee(s), or
lessee(s) that the purchaser, assignee, or lessee has assumed and agreed to observe and perform all
obligations of Licensor hereunder.
It is specifically understood and agreed that there shall be no personal liability of Licensor (nor
Licensor's agent,if any)in respect to any of the covenants,conditions,or provisions of this Agreement;in
the event of a breach or default by Licensor of any of its obligations hereunder,Licensee shall look solely
to the equity of the Licensor in the Shopping Center for the satisfaction of Licensee's remedies.
In addition hereto, it is specifically understood and agreed that Licensor's rights, privileges,
duties, and obligations may be administered by Licensor's designee, including, but not limited to,
Licensor's agent,and that such designee shall have the full authority of Licensor hereunder to perform all
of Licensor's functions hereunder including, but not limited to, the execution of this License and any
other related documentation.
22. Non-Waiver Provision: The failure of Licensor to insist upon performance of any
of the terms,conditions,and covenants hereof shall not be deemed to be a waiver of any rights or remedies
that Licensor may have and shall not be deemed a waiver of any subsequent breach or default in the terms,
conditions,and covenants herein contained.
23. Binding Agreement This Agreement may not be modified in any manner other than by a
written agreement signed by Licensee and Licensor, or any successor, designee, or assignee of Licensor.
The terms, conditions and covenants set forth herein shall inure to the benefit of and be binding upon
Licensee and Licensor,or any successor,designee or assignee of Licensor.
24. Design Requirements: All costs and expenses (including permits or licenses)
attributable to the construction of the License Area by Licensee shall be borne by Licensee. Licensee
shall not commence construction of the License Area without first obtaining Licensor's approval of the
location and design,not prior to the execution of this License. Design criteria for the construction of the
License Area are:
a. The kiosk/pushcart structure shall be limited to counter units with no overhead
obstructions that inhibit the visibility of tenants, licensees or other occupants in the
Shopping Center. Counter units shall not exceed 48"in height.
b. The kiosk/pushcart structure,if located in an open floor area,shall not be anchored into
the floor or other part of the Shopping Center structure. An area width of no less than
twelve feet (12'0") minimum shall be maintained on all sides of the kiosk/pushcart
subject to traffic flow.
C. Water service and special HVAC Systems are not available. Heating, venting, and Fire
Protection Systems shall be that which is provided to common areas in the Shopping
Center.
d. Design criteria for all signs to be utilized at the License Area, kiosk/pushcart size,
construction, finish materials, and special equipment shall be evaluated specifically for
each individual licensee. Licensee shall submit plans for Licensor's review and
approval prior to construction and shall include pictures of any existing units of
Licensee's.
e. Licensee shall prepare its plans and perform all work to comply with all applicable
governing statutes,ordinances,regulations,codes,and insurance rating boards, and shall
apply for all necessary permits. Licensor's approval of Licensee's plans shall not
relieve Licensee of its obligation to complete the development in accordance with this
License, nor does it relieve Licensee from complying with laws, rules, regulations, and
requirements of local governing authorities. Certificates of occupancy and waivers of
lien from Licensee's contractor,all subcontractors and material men shall be filed with
Licensor upon completion of work.
f Set up and tear down of kiosks/pushcarts shall take place when the Shopping
Center is not open for business, unless Licensor has agreed otherwise in writing.
For in-line space, set up may take place during mall hours, as long as it does not
interfere in any manner,including noise or dust,with mall business and the comfort
of the patrons. A black drape or equivalent, provided by Licensee, must be
covering the entire storefront, as to keep the interior design concealed until ready
for business.
25. Remits:If there are any licenses,authorizations,or permits required by any governmental agency
or authority for the type of activity to be carried on at or for the use of the License Area, Licensee shall be
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responsible for obtaining such. No unlawful activities shall be permitted in the use of the License Area.
The consumption or sale of alcoholic beverages on or from the License Area shall not be permitted.
26. Visual Merchandisin • Licensee shall comply with the visual merchandising standards of
Licensor. Licensee understands and agrees to implement visual merchandising recommendations of
Licensor and change visual merchandising presentation as requested by Licensor.
27. Operating Requirements:Licensee shall observe all Operating Rules for the Shopping Center
and Licensee's occupancy therein which Licensor may promulgate from time to time, including but not
limited to:
a. Licensee shall use and occupy the License Area in a careful, safe and proper
manner and shall keep the License Area in a clean and safe condition in accordance
with this License,local ordinances,and the directions of public officers.
b. All signage located in and upon the License Area shall be approved by
Licensor prior to installation or placement. All signs,placards, banners,pennants,
or other advertising matter shall be prepared in a professional manner and in no
event shall be handwritten. Licensee shall display an approved sign depicting its
approved trade name.
Sign Criteria: Signs are to be furnished and installed by Licensee and
approved by an agent for Licensor. Licensee's sign contractor
or architect must submit a black and white rendering (specifying
PMS colors) of Licensee's sign prior to approval. Licensee's
sign shall be located within the limits of Licensee's storefront
and shall not project more than 8" beyond the storefront if the
Shopping Center is an enclosed mall, and not more than 12"
beyond the storefront if the Shopping Center is a strip center.
Sign Size:
Malls:
Up to 30'storefront: Capitals 18"
Lower Case 12"
30'-1" and greater: Capitals 24"
Strip Centers: Lower Case 18"
Up to 30'storefront: Capitals 24"
Lower Case 18"
30-1"and greater: Capitals 30"
Lower Case 24"
The length of Licensee's sign shall be limited to 70% of Licensee's
storefront.
C. Licensee shall not display merchandise on or outside the boundaries of the
kiosk/pushcart structure. The outside areas immediately adjoining the License Area
shall be kept clear at all times by Licensee,and Licensee shall not place nor permit
any obstructions,garbage,refuse,merchandise,or displays,or racks,in such areas.
d. All loading and unloading of goods shall be done only at such times, in the
areas,and through the entrances designated for that purpose by Licensor.
e• All garbage and refuse shall be kept in the kind of container specified by
Licensor, and shall be placed and prepared for collection in the manner and at the
times and places specified by Licensor. If Licensor shall provide or designate a
service for picking up refuse and garbage, Licensee shall use same at Licensee's
cost. Licensee shall pay the cost of removal of any of Licensee's refuse and
garbage, and maintain all common loading areas in a clean manner satisfactory to
the Licensor. Licensee shall use any trash compactor Licensor provides for the
general use of Licensee or licensees in a designated area of the Shopping Center.
Notwithstanding the foregoing provision, if Licensee qualifies as a generator of
medical waste, then Licensee shall be solely responsible for causing compliance
with all federal, state and local laws, whether existing now or established in the
future, relating in any way to the storage, containment, treatment, transfer,
transportation and disposal of medical waste (including the use of licensed medical
waste management companies), and shall hold Licensor harmless for Licensee's
noncompliance or violations thereof. For purposes hereof, "medical waste" means
any solid, semisolid or liquid waste, which is generated in the diagnosis, treatment
(e.g., provisions of medical services) or immunization of human beings or animals,
in research pertaining thereto, or in the production or testing of biologicals.
"Generator" means any person or entity whose act or process produces medical
waste as hereinbefore defined. ;
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f No loudspeakers, televisions, phonographs, cd players, DVD players, cassette
players,radios,flashing lights, or other devices shall be used in a manner so as to be
heard or seen outside of the License Area. No electronic or communication devices
shall be used in the License Area or in connection therewith which interrupt or
interfere with the use and enjoyment of electronic or communication devices of
other occupants of the Shopping Center or of the neighborhood in which the
Shopping Center is located.
g•
Licensee shall not conduct or permit any fire, bankruptcy, relocation,
liquidation, retirement, moving, auction, or "going out of business" sale (whether
real or fictitious) in the License Area, or utilize any unethical method of business
operation. Licensee shall not use the License Area as a clearance, outlet or
wholesale center.
h. Licensee shall not carry on any trade or occupation or operate any instrument
or equipment, which emits an odor or causes a noise discernible outside of the
License Area.
1• Licensee shall not distribute any handbills or other advertising matter in the
Shopping Center or on automobiles parked in the parking areas of the Shopping
Center.
j• Licensee and Licensee's employees shall not park their cars in those portions
of the parking area designated for customer parking by Licensor. If Licensee or
Licensee's employees'park in portions of the parking area designated for customer
parking,Licensor may,in addition to its other remedies,have such cars removed at
Licensee's expense.
k. Licensee and Licensee's employees shall maintain a neat and appropriate
appearance and dress,and are expected to operate in a dignified,ethical,manner.
1. Licensee shall display its customer sales return policy.
M. Licensee shall not permit loitering at the License Area.
n. Licensee shall furnish Licensor with emergency telephone numbers and a
forwarding address.
o• Due to the lack of on-site storage facilities, acquisition of outside storage shall
be Licensee's responsibility.
P. Licensee shall be solely responsible for policing its location against theft, loss,
or damage to its kiosk/pushcart and/or merchandise. Under no circumstance shall
Licensor be held liable for such theft,loss,or damage.
28. Conduct- Licensee shall at all rimes during its occupancy of the License Area
provide sufficient supervision and maintain adequate control of its employees,guests,and invitees.
29• Removal• Licensee shall at the Expiration Date or earlier revocation of this
License remove its goods and effects, repair any damage caused by such removal, and peaceably yield up
the License Area clean and in good order, repair, and condition. Personal property of Licensee not
removed within two (2) days of such Expiration Date or earlier revocation shall become the property of
Licensor,at Licensor's option without liability to Licensee therefore.
30. Conduct and AUterationa• Licensee shall not harm the License Area, commit waste,
create nuisance, make any use of the License Area which is offensive in Licensor's sole opinion, nor do
any act tending to injure the reputation of the Shopping Center. Licensee shall not make alterations or
additions to the License Area,nor permit the making of holes in the walls,partitions,ceilings,or floors,nor
permit the painting or placing of exterior signs, placards, or other advertising media, banners, pennants,
awnings, aerials, antennas, or the like in or on the License Area, without the prior written consent of
Licensor which may be withheld in Licensor's sole discretion. Licensee shall comply with all laws,
ordinances, orders, and regulations affecting the use or occupancy of the License Area. Licensee shall not
violate applicable federal and state laws prohibiting the sale or display of products, which infringe on the
trademarks or copyrights of others.
31. Condition of Licence a a Licensee has inspected the License Area, and accepts it "as
is" with no representation or warranty by Licensor regarding the condition of the License Area or its
suitability for Licensee's use or occupation thereof. Licensor has no obligation to repair the License Area
unless the obligation is set forth in this License.
32• Hours of Operation The License Area shall remain open for business at all times
designated by Licensor. Licensee shall operate in the entire License Area continuously and
uninterruptedly while this License is in effect,and in a 15rst class manner.
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33. Hazardous Material: Licensee shall not cause or permit any hazardous material to be
brought upon,stored,kept,used,or discharged on or about the License Area.
34. Access to License Area: Licensor may enter the License Area at any time.
35. Condition of License Area: Licensee shall maintain, at its sole cost and expense, the
License Area in good condition and make all necessary replacements and repairs to the License Area except
for structural repairs. In addition to all other remedies of Licensor, if Licensee does not complete its
obligations to repair and maintain the License Area, of if Licensor, in the exercise of its sole discretion,
determines that emergency repairs are necessary, or repairs or replacement of any portion of the License
Area or the Shopping Center are made necessary by any act, omission, or negligence of Licensee or its
agents, employees, contractors, or assignees, then in any such event, Licensor may make such repairs,
maintenance, or replacements without liability to Licensee for any loss or damage that may accrue to
Licensee,its merchandise, fixtures,or other property,or to Licensee's business by reason of such repair,
maintenance,or replacement. Upon completion of any such repair,maintenance,or replacement Licensee
shall pay upon demand, as additional fees, Licensoe's costs for making such repairs, maintenance, or
replacements together with Licensoe's administrative costs related thereto which amount shall equal 1.5
times the total cost of the repair,maintenance, or replacement. Furthermore, Licensee shall immediately
notify Licensor of any defects or unsafe conditions in the common areas immediately adjacent to the
License Area.
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IN WITNESS WHEREOF,the parties have executed this Agreement on the day and year first above
written,each acknowledging receipt of an executed copy hereof.
LICENSOR:
Parkdale Mall A-mciates,by CBL&Associates
Management,Inc.,managing agent
By:
Print Name: Kurt Lundgreen
Its:Authorized SiMato r
Date:
LICENSEE:
Ci�of Beaumont
74-W000278
By:
Print Name, Kyle Hayes
Its:
Date:
7
City of Beaumont
Police Substation
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