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CM-08-05-117DATE: April 28, 2008 SUBJECT: City Manager Action - May 2, 2008 ITEM: Action authorizing the City Manager to execute a License Agreement for Use of Right of Way between Capital Excavation Company and the City for the RM 620 Turnaround project. Department: Transportation Services Staff Person: Thomas G. Martin, P.E., Director Justification: To facilitate the construction of the RM 620 Turnaround project, the contractor has requested the placement of a construction trailer in the City's Right -Of -Way at the end of West Liberty Avenue, adjacent to IH 35. Funding: Cost: N/A Source of funds: N/A Outside Resources: Capital Excavation Company Texas Department of Transportation (TxDOT) Background Information: The RM 620 Turnaround project is a TxDOT managed project that will construct improvements to IH 35 with a turnaround bridge structure and other associated improvements in order to improve roadway capacity and other issues involving the closure of the McNeil Road Ramps with IH 35. Public Comment: N/A LICENSE AGREEMENT FOR USE OF RIGHT OF WAY THE STATE OF TEXAS COUNTY OF WILLIAMSON THIS LICENSE AGREEMENT FOR USE OF RIGHT OF WAY (this "Agreement") is made and entered into as of April _, 2008 (the "Effective Date") between the City of Round Rock, a Texas home rule municipality ("Licensor"), and Capital Excavation Company, a Texas corporation ("Licensee") (collectively, the "Parties") and is as follows: RECITALS A. Licensor is the owner of certain right of way at the western end of W. Liberty Avenue where it intersects with the right of way of IH 35. B. Licensee has a contract with the Texas Department of Transportation ("TxDot") to construct certain improvements to IH 35 near the aforesaid intersection of W. Liberty Avenue andIH35. C. Licensee is in need of a site to locate two temporary construction offices during the construction of the aforesaid improvements. D. Licensee desires to obtain a grant from Licensee of a license to use a portion of said right of way as shown in Exhibit A, attached hereto and incorporated herein, (the "Licensed Property"). AGREEMENT NOW, THEREFORE, for and in consideration of the sum of $1,600 paid upon execution of this Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each of the Parties, and the covenants and agreements of the Parties hereto to be performed hereunder, the Parties hereby agree as follows: 1. Grant. Licensor hereby grants to Licensee, its employees, contractors, successors, administrators, and permitted assigns, a non-exclusive license to use the Licensed Property at Licensee's sole cost and expense for the purpose of locating two temporary buildings for use as construction offices for Licensee and the Texas Department of Transportation, and for no other purposes, together with the right and privilege at any reasonable time or times of ingress and egress to the extent necessary for the foregoing purposes. Specifically, the Licensed Property shall not be used as a construction yard for the storage of construction vehicles, materials, and equipment. Licensee may at its own expense erect fencing as it deems necessary or desirable. Licensor reserves the right to full use and enjoyment of the Licensed Property and such use shall not unreasonably hinder, conflict, or interfere with the exercise of Licensee's rights hereunder. License Agmt- Capital Excavation- 04-10-08 (00136269) CM -0E3-05--11'1 Within ten (10) days of the termination of this Agreement for any reason, Licensee agrees to remove the temporary buildings, fencing, and any and all other personal property located on the Licensed Property, and to return the Licensed Property to its original condition. 2. Term. The initial term of this Agreement will expire on August 15, 2009, or when the construction of the IH 35 improvements is complete, whichever first occurs (the "Term"). 3. Compliance with Laws. Throughout the Term, Licensee shall, at Licensee's sole cost and expense, comply with all applicable statutes, ordinances, rules, regulations, orders, and requirements regulating Licensee's use of the License granted herein. Licensee shall not use or permit the use of the License granted herein in any manner that would tend to create waste or a nuisance. 4. Assignment. Licensee may not assign its interests under this Agreement without the prior written consent of Licensor. 5. NO REPRESENTATIONS OR WARRANTIES. LICENSOR MAKES NO IMPLIED OR EXPRESS REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER REGARDING THE LICENSE PROPERTY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF CONDITION, TITLE, HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALL SUCH REPRESENTATIONS AND WARRANTIES, AS WELL AS ANY IMPLIED WARRANTIES, ARE HEREBY EXPRESSLY DISCLAIMED. 6. INDEMNITY. LICENSOR SHALL NOT BE LIABLE TO LICENSEE OR LICENSEE'S OFFICERS, EMPLOYEES, LICENSEES, AGENTS, GUESTS, INVITEES OR CONTRACTORS, OR ANY THIRD PARTY FOR ANY DAMAGE TO PERSON OR PROPERTY PROXIMATELY CAUSED BY ANY ACT, OMISSION OR NEGLECT OF LICENSOR OR LICENSOR' OFFICERS, EMPLOYEES, LICENSEES, AGENTS, GUESTS, INVITEES OR CONTRACTORS (COLLECTIVELY, THE "LICENSOR PARTIES") AS A RESULT OF THE LICENSOR PARTIES EXERCISING ITS RIGHT UNDER TO THE LICENSE PROPERTY OR LICENSEE OR LICENSEE'S OFFICERS, EMPLOYEES, LICENSEES, AGENTS, GUESTS, INVITEES OR CONTRACTORS (COLLECTIVELY, THE "LICENSEE PARTIES"). FURTHER LICENSEE AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS LICENSOR AND ITS AFFILIATES, PARTNERS, REPRESENTATIVES, DIRECTORS, OFFICERS, AGENTS, EMPLOYEES, AND CONSULTANTS (THE "INDEMNIFIED PARTIES") FROM ALL CLAIMS, DEMANDS, ACTIONS, SUITS, DAMAGES AND LIABILITIES OF ANY KIND WHATSOEVER, INCLUDING, WITHOUT LIMITATION, PROPERTY DAMAGES, PERSONAL INJURIES AND ATTORNEYS' FEES, ARISING FROM LICENSEE'S, OR ANY ONE OR MORE OF THE LICENSEE PARTIES', EXERCISE OF THEIR RIGHTS UNDER THIS AGREEMENT AND/OR ARISING FROM THE USE OF THE EASEMENT PROPERTY BY LICENSEE OR ANY ONE OF MORE OF THE LICENSEE PARTIES. LICENSEE AGREES TO PREVENT ANY LIEN FROM ATTACHING TO THE EASEMENT PROPERTY, AND AGREES TO INDEMNIFY License Agmt- Capital Excavation- 04-10-08 (00136269) AND HOLD HARIVILESS THE INDEMNIFIED PARTIES FROM SAME. THIS PROVISION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. 7. Termination. Notwithstanding anything to the contrary in this Agreement, if Licensee fails or refuses to comply with the terms, conditions and provisions of this Agreement, Licensor may, upon ten (10) days' prior written notice and demand for cure, terminate this Agreement. 8. Notice. Any notice or other communication given in connection with this Agreement must be in writing and will be deemed effective if hand delivered or sent by certified mail, return receipt requested, postage prepaid, and addressed to the party in question at its address below: If to Licensor: City of Round Rock Attn: Jim Nuse, City Manager 221 E. Main St. Round Rock, Texas 78664 with a copy to: Sheets & Crossfield, P.C. Attn: Stephan L. Sheets 309 E. Main St. Round Rock, Texas 78664 If to Licensee: Capital Excavation Company Attn: Josh Ealand, Project Coordinator 3901 S. Lamar suite 260 Austin, TX 78704 9. Governing Law, Performance, and Venue. This Agreement will be governed by and construed in accordance with the laws of the State of Texas. All obligations created in this Agreement are performable in Williamson County, Texas. The parties agree that venue for any action brought under this Agreement will be in Williamson County, Texas. 10. Severability. If any provision contained in this Agreement is for any reason be held by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any respect, that invalidity, illegality, or unenforceability will not affect the remaining provisions of this Agreement and, in lieu of each illegal, invalid, or unenforceable provision, a provision that is as similar in terms to the illegal, invalid, or unenforceable provision as is possible, and is legal, valid, and enforceable, will be added to this Agreement. 11. Entire Agreement. This Agreement constitutes the only agreement between the parties regarding the subject matter of this Agreement and supersedes any prior understanding or written or oral agreements between the parties relating to the subject matter. Any changes or additions to the terms of this Agreement must be in writing and signed by both Licensor and Licensee. License Agmt- Capital Excavation- 04-10-08 (00136269) 12. No Waiver. Except for an express, written waiver signed by Licensor, no action or inaction by Licensor with respect to any provision of this Agreement, including Licensor's failure to enforce any provision of this Agreement, will constitute a waiver of that or any other provision of this Agreement. No express written waiver by Licensor of one provision of this Agreement will constitute a waiver of any other provision. There are no third -party beneficiaries of this Agreement. 13. Binding Effect; Counterparts and Facsimile Signatures. This Agreement will be binding upon and inure to the benefit of Licensee and Licensor and their respective successors, assigns, and legal representatives. This Agreement may be signed in multiple counterparts which, when taken together, will be deemed a single binding document. A facsimile signature will be enforceable and binding in the same manner as an original signature. 14. Captions. The captions in this Agreement are for reference only and do not modify or affect this Agreement in any manner. 15. Warranty of Authority. Each party warrants and represents to the other that the person signing this Agreement on its behalf has been duly authorized and empowered to do so, that its governing body has taken all action necessary to approve this Agreement, and that this Agreement is a lawful and binding obligation of such party. LICENSOR: CITY OF ROUND ROCK, TEXAS By: Nam : im Nuse Title: ity Manager LICENSEE: CAPIT EXCAV By: Cv N e: James E. Bradley Title: President License Agmt- Capital Excavation- 04-10-08 (00136269) EXHIBIT A West Liberty Avenue at I H 35 ROW License Agmt- Capital Excavation- 04-10-08 (00136269) (2)