HomeMy WebLinkAboutRES 09-052 RESOLUTION NO. 09-052
BE IT RESOLVED BY THE CITY COUNCIL
OF THE CITY OF BEAUMONT:
THAT the City Manager is hereby authorized to execute a License Agreement and all other
documents necessary for the Southeast Texas Auto Theft Task Force to maintain a kiosk
at Parkdale Mall. The agreement is substantially in the form attached hereto as Exhibit"A"
and made a part hereof for all purposes.
PASSED BY THE CITY COUNCIL of the City of Beaumont this the 17th day of
February, 2009.
U
, - Mayor Becky Ames -
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MCFNSRAGREEME NT
RMU
Revised: 10/2/2008
Project ID# 100451
Lease ID#:
Deal Type:RMMU
Unit: T-46
Agreement Type: New
THIS LICENSE is made this_day of 200_,by and between PARKDALE MALL.LLC.by ChL
&Associates Management Inc its man&je ag ag= ("Licensor' and Southeast Texas Auto Theft Task
Force.a(n)Government Entity incorporated in the state of Texas having offices at 2430 W.Cardinal
Drive Suite Beaumont- TX 77705 Attn: Authorized Signatory Phone: 409-673-5447•Fax;
("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 48 square feet of floor area,as identified on Exhibit A,
attached hereto and made a part hereof("license Area), in Parkdale Mall.Beaumont,TX,(The
"Shopping Centee)located at 6155 Eastex Freeway,Suite 200,Beaumont,TX 77706-6797(Payment
remittance address: Parkdale Mall,LLC, P.O.Box 74942,Cleveland,OH 441944942). 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)
11/21/2008 or(b)the day Licensee opens(the"Commencement Date"),and shall end on+2 1 1
(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.
3. ILM- The License Area shall be occupied and used by the Licensee as approved by mall
management solely for the purpose of Static Display of public informative material regarding Auto
Theft and for no other purpose whatsoever.
4. D/B/A: Licensee shall occupy and use the License Area under the trade name of
Southeast Texas Auto Theft Task Force 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,and the first day of each month-thereafter:
unit Start Date End Date F= Total Fee
(i)Minimum Fee(s): T-46 11/21/2008 \7x $0.00 $0.00
6. Damage Deposit: 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.
If Licensee shall fail to make any payment to Licensor when due,Licensee shall pay Licensor a
late charge of$100.00 per day for so long as the failure continues.
7.
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EXHIBIT "A"
8. Relocation: Licensor reserves the right to move,relocate,adjust or substitute the License
Area,in Licensors sole discretion. Licensor shall make every reasonable effort to do so in such a way as
to be least disruptive to Licensee's business operations.
9. Revocation: The License granted by virtue of this Agreement may be revoked by Licensor,in
Licensor's sole discretion for any reason,including,but not limited to the Specific Grounds for Revocation
as set forth in Paragraph 13 hereof,upon not less than 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.
10. Insurance
the term of this Agreement, eammereial general liability insurance ineluding eantmet" liftbility and
ametim. Any insuranee paheies reqttired hereunder shad!name Ueensof,aftd any designees of Lieenser,
Licensee is self-insured.
11. Indemnity: Starting an the date Lieensee first uses er oeeupies the Lieense Area
Lieensee shall 4nderemify and hold Lieenser, its parents, subsidiaries ftfid affiliates harrmess from ftfld
agaiftst all elaimg,aetiefts,liens,demands,expenses,ftnd.udgments fat-loss,dftmage,or injury to preperty
12. 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;(rv)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.
13. Specific Grounds for Revocation: If,(a)Licensee fails to perform any of the terms,
conditions,or covenants of this License;or(b)in the 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 @ in bankruptcy,(ii)
alleging insolvency,(iii)reorganization,(w)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
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to any litigation arising out of this License Agreement,licensee hereby expressly waives the tight to a trial
by jury and the right to file noncompulsory countersuit or cross claim against Licensor,
14. Obligations Upon Revocation: Upon service of the notice required by above Paragraph 9,
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 tights 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.
15. Damage: 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.
16. Liability: 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.
17. 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.
18. 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.
19. 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%)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.
20. Liability 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
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,
l icensor'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.
21. 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.
22. BindingAgreement 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.
23. Design Requirements: All costs and expenses(including permits or licenses)attributable to
the construction of the License Area by licensee shall be bome by Licensee. Licensee shall not
commence construction of the License Area without first obtaining Licensor's approval of the location
and design,nor prior to the execution of this License. Design criteria for the construction of the License
Area are:
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
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from Licensee's contractor,all subcontractors and material men shall be filed with licensor upon
completion of work.
24. Permits: 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 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.
25. 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 dean and safe condition in
accordance with this license,local ordinances,and the directions of public officers.
b. 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.
C. 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.
d. 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.
e. 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.
f 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.
g. Licensee shall not permit loitering at the License Area.
h. Licensee shall furnish Licensor with emergency telephone numbers and a
forwarding address.
i. Licensee shall be solely responsible for policingits location against theft,
loss,or damage. Under no circumstance shall Licensor be held liable for such
theft,loss,or damage.
26. 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
l icensor's option without liability to Licensee therefore.
27. Conduct and Alterations: 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,
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awnings,aerials,antennas,or the like in or on the License Area,without the prior written consent of
Licensor which may be withheld in l icensor'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.
28. Condition of license Area: 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.
29, 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.
30. Access to License Area: Licensor may enter the License Area at anytime.
31. 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,or 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,licenser's costs for making such repairs,
maintenance,or replacements together with l icensor'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.
32. Cftft&dMfiWiW- Licensee and its agents and empleyees shall keep and hold in 9trie
eenfideftee all of the terms of this 6eertse Agreement ine6ding but not 61tited to!the arnatint and/or
mamer efpwfrnent of fees mtd A items of additional eharges ineluding the formulations thereof-,the use of
the Lieense Area�the duration of the lieense;and all other terrag and eenditions herein.
33. Nonprohibited Transaction Representation: licensee hereby represents and warrants
to Licensor that Licensee is not and shall not become,a person or entity with whom Licensor is restricted
from doing business with under regulations of the Office of Foreign Asset Control("OFAC')of the
Department of the Treasury(including,but not limited to,those named on OFAC's Specially Designated
and Blocked Persons list)or under any statute,executive order(mcluding,but not limited to,the September
24,2001,Executive Order Blocking Property and Prohibiting Transactions With Persons Who Commit,
Threaten to Commit,or Support Terrorism),or other governmental action and is not and shall not engage
in any dealings or transaction or be otherwise associated with such persons or entities.
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_LLC by CBL&
Associates Management_Inc.,its manarinP
aunt
By.
Print Name:Kurt Lund=en
Its:Authorized Signatory
Date:
LICENSEE:
Southeast Texas Auto Theft Task Force
FIN: 74-W000278
By.
Print Name:Authorized Signatory
Date:
S