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2020-24ORDINANCE NO.2020-24 AN ORDINANCE APPROVING AND AUTHORIZING A LICENSE AGREEMENT BETENE THE CITY OF FAIRFAX AND THE CITY OF FAIRFAX ECONOMIC DEVELOPMENT AUTHORITY FOR THE USE OF CERTAIN PARKING SPACES LOCATED ON PROPERTY OWNED BY THE CITY AND LOCATED AT 10367 MAIN STREET AND HAVING TAX MAP NO.57-4-02-124 WHEREAS, the City of Fairfax, Virginia (the "City") is the owner of certain real property with improvements thereon (a public parking Iot) located at 10367 Main Street (commonly known as the former Amoco property), and more particularly described as Tax Map No. 57-4-02-124 (the "Property"); and WHEREAS, the City desires to license a portion of such Property to the City of Fairfax Economic Development Authority. NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF FAIRFAX, VIRGINIA, HEREBY ORDAINS: 1. That the form of the License Agreement attached to this ordinance is approved. 2. That the City Manager is authorized, on behalf of the City, to finalize and execute the License Agreement, with any non -substantive changes as may be negotiated by the City Manager, with the approval of the City Attorney. This Ordinance shall become effective as provided by law. INTRODUCED: July 14, 2020 PUBLIC HEARING: July 28, 2020 ENACTED: July 28, 2020 ATTEST: City Clerk VOTE: Councilmember Harmon Aye Councilmember Lim Aye Councilmember Miller Aye Councilmember Ross Aye Councilmember Stehle Aye Councilmember Yi Aye Mayor Date 1 LICENSE AGREEMENT THIS LICENSE AGREEMENT (this "Agreement'). dated as of the 16 rk day of ,4-c,6-v5r— , 2020, is between the CITY OF FAIRFAX, VIRGINIA, a Virginia municipal corporation ("Licensor"), and the CITY OF FAIRFAX ECONOMIC DEVELOPMENT AUTHORITY, a body politic ("Licensee"). Licensor and Licensee are sometimes hereinafter jointly referred to as the "Parties" and individually as a "Party." RECITALS: WHEREAS, Licensor is the owner, in fee simple, of a certain parcel of real estate, with improvements thereon, and appurtenances thereto, located at 10367 Main Street (commonly known as the former Amoco property), located in Fairfax City, Virginia, and more particularly described as Tax Map No. 57-4-02-124 (the "City Parcel"); WHEREAS, Licensee has requested permission from Licensor to use a portion of the City Parcel for the Permitted Use (as defined below); and WHEREAS, by this Agreement, the Parties desire to memorialize the granting of such permission and the terms thereof. WITNESSETH: For and in consideration of ten dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: 1. License Grant. Licensor hereby grants to Licensee the right and license to use, upon the terms hereinafter provided, a portion of the parking lot located on the City Parcel, said portion comprising nine (9) parking spaces, in the location and area shown on the exhibit attached hereto as Exhibit A (the "Licensed Area"), together with the right of ingress and egress to and from the Licensed Area over, upon and across the City Parcel, including any driveway entrance of the City Parcel, for the Term (defined below), subject to the rights reserved by Licensor herein, to use, solely for the Permitted Use. Licensee accepts the Licensed Area in its "AS IS" condition. 2. Permitted Use; Required Sub -License Provisions. (a) Licensee is permitted to use, on a temporary and exclusive basis, the Licensed Area solely for parking by permitted sub -licensees of Licensee pursuant to the terms of a sub -license or equivalent agreement meeting the terms of Subsection 2(b) hereof (the "Permitted Use"). This Agreement is not intended to afford Licensee with any other rights to use the Licensed Area and any other use, without the express written permission of Licensor, is prohibited. (b) For the purposes of this Agreement, a permitted sub -licensee of Licensee is The GMS LLC and specifically its tenants. Prior to entering into any sub -license agreement or equivalent with this permitted sub -licensee, Licensee will obtain the written approval of the City Manager and the City Attorney as to the conformance of such document(s) with the provisions of this Agreement. Any other proposed sub -licensee or user of the Licensed Area pursuant to the terms of this Agreement shall be in the sole, and absolute, discretion of the City. (c) Required provisions in any sub -license entered into by Licensee pursuant to the provisions of this Agreement shall include (and Licensee agrees to be equally bound by each and all of the following to the extent applicable): a. Any sub -licensee or permitted user of the Licensed Area shall comply with all applicable laws, rules, orders, ordinances and regulations of any governmental authority. b. Exclusive use of the Licensed Area by any sub -licensee or permitted user shall be exercised only during the hours of 8:00 AM to 6:00 PM daily. c. No sub -licensee or permitted user of the Licensed Area may engage in, perform, or permit others to engage in or to perform, any work in the Licensed Area, excepting Licensee's or sub -licensee's obligations in the Licensed Area required by Subsection 6, below. d. No sub -licensee or permitted user of the Licensed Area may use the City Parcel, or any portion thereof, lying outside of the boundaries of the Licensed Area, or perform vehicle maintenance or repair within the Licensed Area, except for ingress and egress as provided above. Specifically, no sub -licensee or permitted user of the Licensed Area shall park vehicles or otherwise use any other areas of the surface parking lot, or any other location on the City Parcel. Notwithstanding the foregoing, this Agreement shall not limit the ability of customers and invitees of any sub -licensee or permitted user to use the remainder of the City Parcel for parking as otherwise permitted by law. e. No sub -licensee or permitted user of the Licensed Area may store, use, or bring (or allow others to store, use, or bring) into the Licensed Area or the City Parcel, any hazardous or toxic wastes or substances, including asbestos, regulated by the most stringent applicable federal, state or local environmental, health, and safety laws, regulations, ordinances, or standards, onto the Licensed Area during the License Term. The applicable sub -licensee or permitted user shall, at its sole cost and expense, promptly remediate any and all environmental contamination within the Licensed Area, which contamination is caused or permitted to be caused by such sub -licensee or permitted user. The obligations under this subsection shall survive the expiration or earlier termination of this Agreement. 3. Term. The term of this Agreement (the "Term") shall begin on Av6-U'5T- 10 2020, after approval of the License by the City Council (the "Commencement Date") and shall continue for a period of five (5) years ("Initial Term"), unless sooner terminated or extended hereunder or as provided in this Agreement. Either Licensor or Licensee shall have the right to terminate this Agreement upon written notice one -hundred eighty (180) days in advance of the proposed termination date. Notwithstanding anything else in this Agreement to the contrary, it is expressly agreed and acknowledged that this Agreement shall terminate, without the need for any additional action by the parties hereto, co-terminously with the expiration or sooner termination of any permitted sub -license hereunder. 4. License Fee. Licensee shall have no obligation to pay any license fee or other compensation to Licensor with respect to the Permitted Use or this Agreement. 5. Maintenance. Either Licensee or its permitted sub-licensee(s), as applicable, shall maintain, keep clean and free of litter and debris, and repair the Licensed Area, including without limitation any improvements thereon, as necessary to keep the Licensed Area and its improvements, in safe and satisfactory operating condition and in compliance with applicable law. Notwithstanding the foregoing, Licensor shall, in its sole discretion, repave, perform pothole repairs, and perform snow removal within the Licensed Area at Licensor's sole expense. Licensee, or its permitted sub -licensees) as applicable, shall nonetheless be responsible for a pro-rata share of the cost of maintenance expenses for the Licensed Area (in proportion to the total maintenance expenses of the City for the City Parcel), together with the entirety of any costs incurred by Licensor in repairing damage to the Licensed Area caused by Licensee or its permitted sub- licensee(s), as applicable. fi. Alterations. Neither Licensee nor its permitted sub-licensee(s) shall make any alterations or install any improvements to the Licensed Area, or the remainder of the City Parcel, without Licensor's written approval, which may be withheld in Licensor's sole discretion. 7. No Warranties of Licensor of Condition; Suitability. Licensor makes no representations or warranties whatsoever with respect to the condition of the Licensed Area or the property or any part thereof, its fitness for Licensee's purposes, its security, or any other matter. 8. Sims. Neither Licensee nor its permitted sub-licensee(s) may display signs on or about the Licensed Area without Licensor's written consent, which Licensor may withhold in its sole discretion. Notwithstanding the foregoing, signage evidencing the Permitted Use (and the exclusive provisions as to timing) may be installed with prior Licensor approval as to the nature of such signage, and at no cost to Licensor, which consent shall be in Licensor's reasonable discretion. 9. Compliance with Laws, and Rules. Licensee shall comply (and shall cause its permitted sub -licensees) to comply) with (i) all applicable laws in its use of the Licensed Area and of the City Parcel and (ii) all reasonable rules and regulations adopted by Licensor, upon notice to Licensee, for the use of the Licensed Area and the City Parcel. No provision of this Agreement is intended or shall be construed to relieve Licensee from its independent obligation to obtain all required federal, state, and local permits and to comply with all applicable federal, state, and local laws, ordinances, and regulations, to the extent applicable. 10. Security and Vehicle Towin . Licensor shall have no obligation to police the Licensed Area or to tow vehicles therefrom. Licensee or its permitted sub -licensees) shall be solely responsible for any necessary towing, in its sole discretion, and shall provide all security measures necessary for the protection of its personnel and property. 3 11. Insurance. (a) Commercial General Liability Insurance. Licensee shall maintain throughout the Term, at its sole expense, a policy of commercial general liability insurance ("Licensee's Insurance Policy") from an insurance carrier satisfactory to Licensor, providing coverage for claims arising from or in connection with Licensee's use of the Licensed Area for personal injury, death, property damage, or loss suffered by any person or entity, with coverage limits of at least One Million dollars ($1,000,000.00) per occurrence. The insurance policy coverage limits shall not in any way limit Licensee's liability to Licensor under or in connection with this Agreement. (b) General Policy Reguirements. Licensee's Insurance Policy must: (i) be issued on an occurrence (not claims -made) basis; (ii) contain an endorsement that such policy shall remain in full force and effect, notwithstanding that the insured has released its right of action against any Party before the occurrence of a loss; (iii) provide that the actions or omissions of any insured Party shall not invalidate the coverage afforded to any other insured Party or otherwise adversely affect the rights of any insured Party under the policy; (iv) add as additional insureds Licensor and its elected and appointed officials and officers, and any other persons or entities designated by Licensor upon notice to Licensee; (v) provide that such policy is primary to any insurance available to, or carried by, Licensor or Licensor's additional insureds and that the insurance of Licensor and Licensor's additional insureds shall be noncontributing thereto; (vi) issued by an insurance company licensed to do business in the Commonwealth of Virginia; and (vii) provide that it may not be canceled, non -renewed, suspended, voided, or reduced in coverage or in limits except after thirty (30) days' prior written notice to Licensor except in the event of any nonpayment of premium, in which event the minimum termination notice shall be ten (10) days. (c) Evidence of Insurance. Before the Commencement Date, and thereafter at least ten (10) days before the expiration date of Licensee's Insurance Policy, Licensee shall furnish to Licensor a certificate of insurance indicating that such policy is in full force and effect and meets the applicable requirements of this Agreement. (d) Subrogation Waiver. Licensee's insurers may not exercise any right of subrogation against Licensor, any corporate entity or governmental or political subdivision or authority affiliated with Licensor, any contractor, employee, officer, principal, member, partner, agent, or elected or appointed official of any of the foregoing, or the successors and assigns of any of them (collectively, the "Licensor Group") relating to or arising from this Agreement. Licensee's Insurance Policy and all other liability policies, any Licensee excess policies, any Licensee workers' compensation policies, and all other liability policies maintained by Licensee must waive the insurer's right of subrogation against the Licensor Group. (c) Self -Insurance. At its option, in lieu of maintaining Licensee's Insurance Policy, Licensee may participate in a self-insurance pool, provided that such insurance meets the minimum coverage amounts stated above and that the pool is funded in accordance with requirements established by a professionally -licensed actuary. 4 12. Licensor's Right of Entry. Licensor reserves the right to enter upon the Licensed Area at any time, without notice in order to (i) inspect the Licensed Area, (ii) perform any obligation or exercise any right or remedy of Licensor under this Agreement or applicable law, (iii) make repairs, alterations, improvements, or additions to the Licensed Area or to other portions of the City Parcel that Licensor deems necessary or desirable, at Licensor's expense (unless Licensor performs an obligation of Licensee's under this Agreement, or as otherwise provided in this Agreement), (iv) perform work necessary to comply with laws, ordinances, rules, or the regulations or requirements of any public authority or insurance underwriter, (v) prevent waste or deterioration in connection with the Licensed Area or the City Parcel, (vi) avoid, stop, or remediate the disposal, discharge, or release of any hazardous substances, or for any other good reason and (vii) for ingress and egress to other portions of the City Parcel. 13. Agreement Violations. (a) Violations by Licensee. (i) Default. A "Default" means a violation of this Agreement by Licensee or its permitted sub-licensee(s) that continues uncured for more than thirty (30) days after Licensor notifies Licensee or its permitted sub-licensee(s) of the violation, including a reasonably -detailed statement of the factual basis thereof, provided that if the violation is not reasonably susceptible to cure in thirty (30) days, then no Default shall be deemed to have occurred by reason of such violation so long as Licensee or its permitted sub -licensees) commences curing the violation within thirty (30) days after receiving the notice of violation, and thereafter diligently pursues the cure to completion. (ii) Tennination. In addition to any other remedies available to Licensor under this Agreement or applicable law, Licensor may terminate this Agreement upon notice given at any time following any Default. (iii) Cure b Licensor. If Licensee or its permitted sub -licensee fails to perform any of its obligations under this Agreement, then upon at least ten (10) days' notice (or reasonable shorter notice in emergencies), whether or not a Default has occurred, Licensor may perform on Licensee's or its permitted sub -licensee's, as applicable, behalf any action necessary to cure the failure. Licensee or its permitted sub -licensee, as applicable, shall reimburse Licensor for the full cost of Licensor's action (including without limitation reasonable attorneys' fees). Payment shall be due within five (5) days after Licensor's written demand. Licensor's remedies under this section are in addition to any other remedies available under this Agreement or under applicable law. (b) Violations by Licensor. Licensor shall not be deemed to have breached this Agreement based on a violation of any provision hereof unless Licensor is notified of the violation, including a reasonably -detailed statement of the factual basis thereof, and Licensor fails to cure the violation within thirty (30) days after receiving such notice. Notwithstanding the foregoing, if the violation is not reasonably susceptible to cure within thirty (30) days, then Licensor shall not be deemed to have breached this Agreement by reason of such violation so long as Licensor commences curing the violation within thirty (30) days after receiving the notice of violation and thereafter diligently pursues the cure to completion. 14. Licensee Duties upon Termination. Upon the termination of this Agreement, Licensee shall vacate the Licensed Area and remove all of Licensee's property therefrom (and cause its penmitted sub -licensee to do the same, as applicable), and, except as otherwise approved by Licensor in writing, return it to Licensor in the same condition as when received, reasonable wear and tear excepted. 15. Temporary or Permanent Closure by Licensor of Licensed Area. Licensor may close the Licensed Area and the City Parcel, or any portion thereof, for the time reasonably necessary to protect the health and safety of any person or to meet Licensor's obligations under applicable law. Except in exigent circumstances, Licensor shall give Licensee and any permitted sub -licensee at least thirty (30) days' notice before closing the Licensed Area pursuant to this section. 16. Notices. All notices or other communications hereunder shall be in writing and shall be either hand -delivered, sent by commercial courier (such as Federal Express), or sent by United States registered or certified mail, return receipt requested, at the following addresses: If to Licensor: City of Fairfax, Virginia 10455 Armstrong Street Fairfax, Virginia 22030 Attn: City Manager With a copy to: City of Fairfax, Virginia 10455 Armstrong Street Fairfax, Virginia 22030 Attn: City Attorney If to Licensee: City of Fairfax Economic Development Authority 10455 Armstrong Street Fairfax, Virginia 22030 Attn: Chair Notices to any sub -licensee shall be to an address and contact provided, from time to time, by Licensee to Licensor. Either Party may, by notice given at least five (5) days before such change becomes effective, designate new addresses to which notices shall be sent. All notices shall be deemed effective upon receipt. 17. Time is of the Essence. Time is of the essence with respect to all dates and deadlines in this Agreement. 18. Force Majeure. Each Party shall be excused from performing any obligation or undertaking provided for in this Agreement (other than Licensee's obligation to vacate the Licensed Area upon the termination of this Agreement), and such Party's failure to perform shall not constitute a breach of this Agreement for so long as such performance is prevented or delayed, retarded, or hindered by circumstances beyond such Party's control (including without limitation an act of nature, fire, earthquake, flood, explosion, action of the elements, war, invasion, insurrection, riot, mob violence, sabotage, pandemic, general shortage of or inability to procure labor, equipment, facilities, materials, or supplies in the open market, failure of electronic or computer operated equipment, failure of transportation, strike, lockout, action of labor unions, a taking, requisition, laws, orders of government or civil or military authorities, or any other similar cause, including reasonable delays for adjustments of insurance). 19. Limitation of Liabilit . Licensee assumes all risk of harm to its personnel or property arising from the use of the Licensed Area or the City Parcel. Licensor shall not be liable to Licensee or to any person or entity for any loss, bodily injury, death, or property damage arising from or relating to Licensee's use of the Licensed Area or the City Parcel or to any interruption, obstruction, or cessation of access to the Licensed Area. Neither Party shall be liable to the other for special, consequential, or punitive damages arising from or relating to this Agreement or to any breach hereof. Licensee shall cause any permitted sub-licensee(s) to agree to the same limitation of liability with respect to Licensor. 20. No Permanent_ Rights. Licensor and Licensee acknowledge that this Agreement is for Licensor to grant a license, as mere permission, to Licensee for Licensee's use and benefit subject only to the Permitted Use. The Parties agree that there is no intention whatsoever to grant to Licensee, to its successors in title or interest, or to any other person or entity any permanent rights or legal interests, of any kind, in the Licensed Area or in the City Parcel. 21, No Partnership, Joint Venture, Lease, or Easement, Use by Licensor. The Parties agree that nothing contained in this Agreement shall be deemed or construed as creating a partnership; joint venture; the relationship of landlord and tenant between Licensor and Licensee; or an ownership, leasehold interest, easement, or other property right in any portion of the Licensed Area. 22. Role of Parties; No Waiver. The execution of this Agreement on behalf of Licensor shall neither constitute nor be deemed to be governmental approval of any actions or interests contemplated herein, or any other governmental approval or consent required to be obtained by Licensee. Whenever, in this Agreement, Licensor is required to join in, consent, give its approval, or otherwise act under this Agreement, it is understood that such obligations are meant to apply to Licensor acting in its capacity as a licensor. Nothing in this Agreement shall be construed to waive any of Licensor's powers, rights, or obligations as a governing authority or local governing body, whether or not affecting the Licensed Area, including but not limited to its police power, right to grant or deny permits, right to collect taxes or fees, or any other power, right, or obligation whatsoever. Nothing in this Agreement shall be construed to release Licensee from its independent obligation to strictly comply with all applicable laws, ordinances, regulations, and permits. Likewise, the execution of this Agreement on behalf of Licensee shall neither constitute nor be deemed to be governmental approval of any actions or interests contemplated herein, or any other governmental approval or consent required to be obtained by Licensor. Whenever, in this Agreement, licensee is required to join in, consent, give its approval, or otherwise act under this Agreement, it is understood that such obligations are meant to apply to Licensee acting in its capacity as a licensee. Nothing in this Agreement shall be construed to waive any of Licensee's powers, rights, or obligations as an economic development authority. Nothing in this Agreement 7 shall be construed to release Licensor from its independent obligation to strictly comply with all applicable laws, ordinances, regulations, and permits. 23. Delegation of Authority to Cit. Manager. Except to the extent prohibited by law, Licensor's City Manager or his or her designee is hereby authorized to grant or withhold, on behalf of Licensor, any consents and approvals that Licensee is required to obtain from Licensor, or that Licensor may provide, under this Agreement. In addition, Licensor's City Manager is hereby authorized by Licensor to terminate this Agreement in the event that Licensee fails to comply with the terms of this Agreement. This specific authority shall not be construed to limit the general authority invested by law in Licensor's City Manager to manage public property and to perform acts related thereto. 24. No Waiver of Sovereign Immunit . Neither anything contained in this Agreement, nor any action taken by any of the Parties pursuant to this Agreement, nor any document which arises out of this Agreement shall constitute or be construed to waive the sovereign immunity of Licensor or Licensee, including their elected and appointed officials, commissioners, officers, and employees. 25. Appropriation of Funds. All of Licensor's obligations under this Agreement are subject to appropriation of funds by the City Council, for the specific purpose of satisfying the payment and performance of such obligations. If funds are not appropriated for the specific purpose of satisfying the obligations of the City Council, as Licensor under this Agreement, at the beginning of any one of the City Council's fiscal years during the Term, then this Agreement shall become null and void and shall terminate on the last day of the City Council's fiscal year for which appropriations were received for such purpose, without any termination fee or other liability whatsoever to Licensor. The Parties agree that, notwithstanding any provision in this Agreement to the contrary, this section shall supersede any and all obligations imposed by any other provisions of this Agreement. No subsequent amendment to this Agreement shall abrogate, diminish, or compromise the full legal effect or implication of this section. 26. No Rights in Third Parties. Except as otherwise provided herein, no provision of this Agreement shall create in the public, or in any person or entity other than those signing this Agreement as parties hereto, rights as a third -party beneficiary hereunder, or authorize any person or entity, not a party hereto, to maintain any action for personal injury, property damage, or breach of contract pursuant to the terms of this Agreement or otherwise. 27. License Assignment or Transfer. Licensee's rights under this Agreement are personal to Licensee. Without Licensor's written consent, which may be withheld in Licensor's sole discretion, (i) this Agreement is non -transferable and non -assignable by Licensee and (ii) no sublicense may be granted by Licensee to others. Notwithstanding the foregoing, Licensee is expressly authorized to enter into a sub -license agreement with one or more parties for the Licensed Area, provided this Agreement remains in full force and effect, and subject to the terms hereof. 28. No Indemnification. Notwithstanding any other term or provision of this Agreement to the contrary, neither Party shall have any obligation to explicitly or implicitly indemnify or hold harmless the other Party or any third party, parties, or person from any liability whatsoever. 8 29. Severability. If any term or provision of this Agreement shall be finally determined by a court of competent jurisdiction to be invalid or unenforceable, then the remainder of this Agreement, other than those terms or provisions which are held to be invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforced to the fullest extent permitted by law. 30. Approval of Agreement by Licensor. This Agreement shall not become effective unless and until this Agreement is signed by Licensee, the City Council approves this Agreement, and this Agreement is signed on behalf of Licensor. If this Agreement is not approved by the City Council and executed by an authorized person, then no liability whatsoever shall accrue to Licensor or Licensee, and Licensor and Licensee shall have no obligations whatsoever to each other arising from this Agreement. 31. Survival. Expiration or termination of this Agreement, for any cause, shall not: (a) release either Party from any liability that, at the time of termination, has accrued or that may thereafter accrue with respect to acts or omissions made prior to such termination; or (b) affect the survival of any right or obligation of either Party which is expressly or implicitly stated in this Agreement to survive the termination hereof. 32. Entire Agreement/Applicable Law. This Agreement contains the entire agreement of the Parties with respect to the subject matter hereof. The Parties expressly acknowledge and represent that they have not relied on any oral or written representations, warranties, promises, statements, covenants, or agreements, express or implied, direct or indirect, given or made by or on behalf of the other, except for representations, if any, that are expressly contained herein. This Agreement may be modified only by a written agreement signed by both Parties. No waiver of any provision of this Agreement is binding upon either Party hereto unless reduced to writing and signed by such Party. This Agreement shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of Virginia. All legal actions instituted by Licensor or Licensee concerning this Agreement shall be filed solely in the Fairfax County General District or Circuit Court and in no other court. 33. Incorporation of Recitals. The recitals are incorporated into this Agreement by this reference. CITY OF FAIRFAX CITY, VIRGINIA Approved as to form: City Attorney LICENSEE: U09nse Agreement City to EDA,20200810 FINAL 4834-200&1143, v. 1 FAIItFAX CITY ECONOMIC DEVELOPII N UTHORITY By: 11