13-R-67 - SAWS Water Tank Construction AgreementRESOLUTION NO. 13-R-67
A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF
SCHERTZ, TEXAS AUTHORIZING A FIRST AMENDMENT TO A
TEMPORARY LICENSE AGREEMENT FOR THE ACCESS TO AND
USE OF CITY PROPERTY AS A STAGING AREA FOR THE
CONSTRUCTION OF THE SAN ANTONIO WATER SYSTEMS (SAWS}
WATER TANK AND RELATED FACILITIES AND OTHER MATTERS
IN CONNECTION THEREWITH
WHEREAS, the City staff of the City of Schertz (the "City") has recommended that the
City authorize a first amendment to an agreement with Archer Western Construction, LLC, to
grant an extension to the Agreement until October 31, 2013. Said agreement relates to the access
to and use of City property located adjacent to Schertz Parkway and Buffalo Drive and behind
the existing City ball fields and fronting Dietz Creek for the construction of the San Antonio
Water Systems (SAWS) Water Tank and Related Facilities; and
WHEREAS, the City Council has determined that it is in the best interest of the City to
authorize a first amendment and grant an extension to the agreement with Archer Western
Construction, LLC attached hereto as Exhibit A (the "Agreement").
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS
THAT:
Section 1. The City Council hereby authorizes the City Manager to execute and
deliver the Agreement with Archer Western Construction, LLC in substantially the form set forth
on Exhibit A.
Section 2. The recitals contained in the preamble hereof are hereby found to be rue,
and such recitals are hereby made a part of this Resolution for all proposes and are adopted as a
part of the judgment and findings of the City Council.
Section 3. All resolutions, or pants thereof, which are in conflict or inconsistent with
any provision of this Resolution are hereby repealed to the extent of such conflict, and the
provisions of this Resolution shall be and remain controlling as to the matters resolved herein.
Section 4. This Resolution shall be construed and enforced in accordance with the
laws of the State of Texas and the United States of America.
Section 5. If any provision of this Resolution or the application thereof to any person
or circumstance shall be held to be invalid, the remainder of this Resolution and the application
of such provision to other persons and circumstances shall nevertheless be valid, and the City
Council hereby declares that this Resolution would have been enacted without such invalid
provision.
EXHIBIT A
FIRST AMENDMENT TO TEMPORARY LICENSE AGREEMENT
A-1
Section 6. It is officially found, determined, and declared that the meeting at which
this Resolution is adopted was open to the public and public notice of the time, place, and subject
matter of the public business to be considered at such meeting, including this Resolution, was
given, all as required by Chapter 551, Texas Government Code, as amended.
Section 7. This Resolution shall be in force and effect from and after its final
passage, and it is so resolved.
PASSED AND ADOPTED, this 27'h day of August, 2013.
CITY O RT ,TEXAS
Mayor, Michael R. Carpenter
ATTEST:
l~f 1
Il\ l f
\ Cl
City Secretary, Brenda ennis
(CITY SEAL)
FIRST AMENDMENT TOTEMPORARY LICENSE AGREEMENT
This First Amendment toTemporary License Agreement(the "A~reement") is entered into betweenthe
City of Schertz, Texas, a Texas municipal corporation {the "Licensor".), and Archer Western Construction,
LLC, an Illinois limited liability company (the "Licensee"}, to be effective as of the 31st day of August, 2013 {the
"Effective Date"). The Licensor and Licensee are collectively referred to herein as the "Parties" and are each a
"Party"
RECITALS:
WHEREAS, in October 2011, Licensor sold that certain real property located in
Guadalupe County, Texas and mare particularly described on Exhibit "A" attached hereto and
incorporated herein for all purposes (the "Water Tank Property") to the City of San Antonio,
acting through the San Antonio Water System Board of Trustees ("SAWS") for the construction
of a water tank and related facilities {the "Proiect"); and
WHEREAS, the construction of the Project on the Water Tank Property serves a public
purpose and benefits area citizens, including the citizens of the City of Schertz, Texas; and
WHEREAS, SAWS contracted with Licensee to construct the Project on the Water Tank
Property; and
WHEREAS, Licensor is the owner of that certain real property located in Guadalupe
County, Texas and more pat-ticularly depicted as the "Requested Space" on Exhibit "B" attached
hereto and incorporated herein for all purposes (the "Staein~ Area"}, which Staging Area is
located adjacent to the Water Tank Property; and
WHEREAS, Licensee requested that Licensor granta license for certain rights of access
to and use of the Staging Area for the temporary purposes of locating two (2} office trailers and
storing materials and tools, all related to the construction of the Project on the Water Tank
Property (collectively, the "Sta in Activities"), and the Parties entered into that certain
Temporary License Agreement, dated effective as of August 21, 2013 (the "License
Agreement"}, setting forth the tetTns of the license; and
WHEREAS, granting the license to Licensee to utilize the Staging Area for the Staging
Activities as set forth in the License Agreement selves a public purpose and was essential to
facilitating the construction of the Project on the Water Tank Property; and
WHEREAS, the ter7rr of the License Agreement ends on August 31, 2013 (the "Or~i~inal
Termination Date"}; and
WHEREAS, Licensee's construction activities in connection with the construction of the
Project are taking longer than projected, and Licensee's need to utilize the Staging Area for the
Staging Activities will continue beyond the Original Terrrrination Date; and
WHEREAS, Licensee has requested that Licensor extend the term of the license through
October 31, 2013 (the "Extended Termination Date") to continue facilitating the construction
of the Project on the Water Tank Property; and
So6G9649.1 Page 1
WHEREAS, Licensor relied upon the Original Termination Date in preparing its plans
for the development of the Licensor's new baseball complex project; and
WHEREAS, Licensor acknowledges that granting an extended license to Licensee
tluough the Extended Termination Date to utilize the Staging Area for the Staging Activities will
continue to serve an important public purpose and is essential to continuing to facilitate the
construction of the Project on the Water Tank Property; and
WHEREAS, it is critical that the license terminate no later than the Extended
Te1mination Date to avoid further delays and expenses to Licensor associated with the new
baseball complex project; and
WHEREAS, Licensor and Licensee desire to enter into this Agreement to set forth their
understanding and agreement regarding the foregoing.
AGREEMENT:
NOW, THEREFORE, for and in consideration of the public purposes served by this
Agreement and the mutual covenants and agreements herein made, and other good and valuable
consideration, the receipt and suff ciency of which consideration are hereby acknowledged,
Licensor and Licensee do hereby covenant, stipulate, and agree as follows:
1. Ca italized Te17r1s. All capitalized terms used herein and not otherwise defined herein shall
have the meanings ascribed to them in the License Agreement.
2. Extension of Term of Tem orary License• No Interest Conveyed. The termination date of
the License Agreement set forth in Paragraph 11 of the License Agreement is hereby
extended to 11:59 p.m. Central Time on the Extended Termination Date. THE PARTIES
EXPRESSLY AGREE THAT NOTHING CONTAINED IN THIS AGREEMENT IS
INTENDED TO, NOR SHALL IT BE CONSTRUED TO, GRANT TO LICENSEE
ANY ESTATE, TITLE, OR INTEREST IN THE STAGING AREA OR WATERLINE
PATH.
Extension Fee. In consideration of entering into this Agreement, Licensee shall pay an
extension license fee to Licensor in the amount of Seven Thousand Five Hundred and
No/100 Dollars ($7,500.00), and this Agreement shall not be effective until such fee has been
received by Licensor.
4. Unlawful Detention. If Licenseehas not fully vacated the Staging Area by 11:59 p.m. Central
Time on the Extended Termination Date, Licensee shall be guilty of an unlawful detention of
the Staging Area and shall be liable to Licensor for damages for use of the Staging Area
during the period of such unlawful detention at a rate equal to One Thousand and No/100
Dollars {$1,000.00) per day (the "Daily Penalty"), plus any consequential damages suffered
by Licensor. IN THE EVENT OF SUCH UNLAWFUL DETENTION, LICENSEE
SHALL INDEMNIFY AND HOLD LICENSOR HARMLESS FROM AND AGAINST
ANY AND ALL CLAIMS, SUITS, PROCEEDINGS, LOSSES, DAMAGES,
LIABILITIES, COSTS, AND EXPENSES, INCLUDING, WITHOUT LIMITATION,
ATTORNEYS' FEES, ASSERTED AGAINST OR INCURRED BY LICENSOR, AS A
50669649.1 Page 2
RESULT OF SUCH UNLAWFUL DETENTION. Notwithstanding the foregoing,
Licensor shall be entitled to such other remedies and damages provided at law or in equity,
including, without limitation, the immediate rightto reenter and repossess the Staging Area
and to remove all persons and property therefrom by summary proceedings, ejectment, or
any other legal action or in any lawful manner Licensor determines to be necessary or
desirable, and Licensee shall be liable far all costs and expenses incurred by Licensor in
connection with such actions, including, without limitation, reasonable attorneys' fees.
Licensor shall be under no liability whatsoever by reason of any such reentry, repossession,
or removaLTHE PARTIES EXPRESSLYACKNOWLEDGE AND AGREE THAT ANY
CONTINUED USE OF THE STAGING AREA BY LICENSEE FOLLOWING THE
EXTENDED TERMINATION DATE IS REASONABLY ANTICIPATED TO CAUSE
LICENSOR SUBSTANTIAL HARM, INCLUDING, WITHOUT LIMITATION,
ADDITIONAL DELAYS AND EXPENSES INCURRED DUE TO THE DELAY IN
THE DEVELOPMENT OF THE LICENSOR'S NEW BASEBALL COMPLEX
PROJECT. THE PARTIES FURTHER ACKNOWLEDGE AND AGREE AS TO
THE DIFFICULTY AND INCONVENIENCE OF ASCERTAINING AND
MEASURING THE ACTUAL DAMAGES, AND THE UNCERTAINTY THEREOF,
AND AGREE THAT THE DAILY PENALTY SHALL IN ALL CASES
CONSTITUTE THE MINIMUM AMOUNT OF LIQUIDATED DAMAGES TO BE
PAID TO LICENSOR IN THE EVENT OF ANY SUCH UNLAWFUL DETENTION.
5. Effectiveness of License Agreement. Except as madified by this Agreement, all the tei7ns of
the License Agreement shall remain unchanged and in full force and effect.
6. Modification or Amendment. This Agreement or any provision hereof may be amended,
modified, ar waived only by written instrument duly signed and approved by the Parties or
their successors or assigns.
7. Applicable Law; Venue. This Agreement shall be construed and interpreted in accordance
with the laws of the State of Texas. Venue for any action concerning this Agreement shall be
exclusively in the State District Court of Guadalupe County, Texas. The Parties agree to
submit to the jurisdiction of said court.
8. InvaIidity.In the event any one or more of the provisions contained in this Agreement shall
for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity,
illegality, or unenforceability shall not affect other provisions, and it is the intention of the
Parties that in lieu of each provision that is found to be illegal, invalid, or unenforceable, a
provision shall be added to this Agreement which is legal, valid, and enforceable and is as
similar in terms as possible to the provision found to be illegal, invalid or unenforceable to
the extent that it does not deprive the Parties of the beneft of the bargain and only to the
extent permissible by law.
9. Binding Effect; Assignment. This Agreement shall apply to and be binding on the heirs,
successors, executors, administrators, and assigns of the Parties hereto. Notwithstanding the
foregoing, Licensee may not transfer, assign, convey, or encumber its interest in this
Agreement without the prior signed written consent of Licensor. Licensor, however, may
50669b49.1 Page 3
transfer, assign, convey, or encumber its interest in this Agreement without obtaining
Licensee's consent.
10. Headings. The descriptive headings of the paragraphs and sections contained in this
Agreement are inserted for convenience only and shall not control, affect, limit, expand, or
modify the meaning or construction of any of the provisions hexeof.
11. Authority. The execution, delivery, and perfoi7nance by Licensee of this Agreement have
been duly authorized by all necessary action and will not violate the organizational
documents of Licensee. The execution of this Agreement by Licensee does not require any
consent or approval that has not been obtained, including, without limitation,the consent or
approval of any governmental or quasi-gavernmental authority.
12. Recitals• Exhibits. The recitals and exhibits are incorporated herein by reference as matters
of contract and not mere recitals and exhibits.
13. Counterparts. This Agreement may be executed in multiple counterarts, and such
counterparts, when taken together, shall have the full force and effect of an original, fully
executed instrument.
14. List of Exhibits.
Exhibit "A" Legal Description of the Water Tank Property
Exhibit "B" Depiction of the Staging Area
Signatures and acknowledgements of the Parties on the following pages ]
SOb69549.1 Page 4
SIGNATURE PAGE TO
FIRST AMENDMENT TOTEMPORARY LICENSE AGREEMENT
The Parties hereto have executed this Agreement as of the dates set forth below to be effective as
of the Effective Date.
CITY OF SCHERTZ, TEXAS
By:
John C. essel,
City Manager
THE STATE OF TEXAS §
COUNTY OF GUADALUPE §
This instrument was acknowledged before me on the ~ ry~}'~~ day of
,lam ~~ 2013, by John C. Kessel, the City Manager of the Citty of Schertz,
Texas, n behalf of said City.
Se ~ OQN L~~1.nc~a_ p~ C
NA R. SCHMOEK I ` `-~C~~?-r--a~a~,~
NOTARY PUBLIC E! Notary Public in and for the State of Texas
h"IY Commistion ~ tEXAS
ores os•oI.2aI6
Signatures and acknowledgments continue on the following page ]
sos69s~9.i S-1
SIGNATURE PAGE TO
FIRST AMENDMENT TO TEMPORARY LICENSE AGREEMENT
ARCHER WESTERN CONSTRUCTION, LLC,
an Illinois limited liability company
By:
Nam :' c~~ Lin ~-m
Titl . f
THE STATE OF 'cQA'.~.5
COUNTY OF ~r~~f
This instrument was acknowledged befor me on the ~ 9 day of u~~ ,
2013, by ~o~ Lirld~il~~ ,the ~c~- ~i~tc~S,~-~ o Archer Western
Construction, LLC, an Illinois limited liability company, on behalf of said limited liability
company.
[ Seal ]
`\~~~~~aunii~rr~~r
ti ``~`` ~~RAPI~ p~~~~~``/
~j4 Y G •,
• ~~n`.
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Notary Public in and for the State of Texas
50669644.1 S-2
Exhibit "A"
Legal Description of the Water Tank Property
2.00 acres of land, situated in t11c G. Malpaz Survey No. 67, Abstract No. 221 and being a portion of that
certain 64,288 acre tract of land conveyed to the City of Schertz in Valurne 1997, Page 267 of tha pfficial
Public Records of Guadalupe County, Taxas.
~ Continued an the following page ]
so664sa9.1 Exhibit "A", Page 1
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Exhibit ~B"
Depiction of the Staging Area
See Attached]
50669b~9.1 Exhibit `B", Page Z
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