Loading...
HomeMy WebLinkAboutStreetscape Sublicense Agreement with MDCCITY OF MERIDIAN STREETSCAPE SUBLICENSE AGREEMENT WITH MERIDIAN DEVELOPMENT CORPORATION This STREETSCAPE SUBLICENSE AGREEMENT ("Sublicense Agreement") is made and entered into this 1 k day of (� o� v Sr 2015 ("Effective Date"), by and between the Meridian Development Corporation, an urban renewal agency organized under the laws of the State of Idaho (hereinafter "Sublicensee"), and the City of Meridian, a municipal corporation organized under the laws of the State of Idaho ("City") (collectively, "Parties"). WHEREAS, on August 7, 2012, City and the Ada County Highway District ("ACHD") entered into a Master License Agreement for Regulation and Maintenance of Sidewalk Facilities in the Meridian City Core ("ACHD Master Agreement"), by which agreement ACHD granted to City a limited license to regulate and control the size, placement, operation, and maintenance of movable and non-movable structures and objects upon ACHD sidewalks in the Meridian City Core, any area bordered on the north by E. Carlton Avenue, on the south by E. Ada Street, on the west by N. Meridian Road, and on the east by N. East Third Street; WHEREAS, pursuant to the authority granted by the ACHD Master Agreement, City has adopted, as part of the Meridian City Code, regulations and standards for encroachments placed on sidewalks in the City Core, including the requirement that encroachments placed in the street furnishing zone first obtain a City of Meridian Streetscape Sublicense; WHEREAS, MDC wishes to place a kiosk in the street furnishing zone at the southeast corner of E. Idaho Street and 2nd Street, as depicted in Exhibit A hereto; WHEREAS, the City Council of the City of Meridian hereby finds that entering into this Sublicense Agreement with MDC will protect the public safety and downtown Meridian's charm, character, and unique atmosphere; NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged and agreed, and in consideration of the mutual promises and covenants herein contained, and in consideration of the recitals above, which are incorporated herein, Sublicensee and City agree as follows: 1. Nature of Sublicense. Pursuant to the terms, conditions and limitations of this Sublicense Agreement, City hereby grants to Sublicensee an exclusive license to utilize a portion of the street furnishing zone portion of the sidewalk at the southeast corner of E. Idaho Street and 2nd Street, for the purpose of installing a four-sided, free-standing informational kiosk, attached to the sidewalk by four (4) bolts on the inside of the steel frame, as depicted in Exhibit A hereto ("Improvement"). 2. Term of Sublicense. This license will commence on the Effective Date, and will continue until terminated by City or by Sublicensee. CITY OF MERIDIAN STREETSCAPE SUBLICENSE AGREEMENT PAGE I 3. Incorporation of ACHD Master Agreement. The terms and conditions of the ACRD Master Agreement, and all addenda thereto, are incorporated herein by reference, as though set forth in this Sublicense Agreement in their entirety. 4. Incorporation of City Improvement Standards and Code. The applicable provisions of the City of Meridian Improvement Standards, and of Meridian City Code, including, without limitation, Meridian City Code section 8-1-4, regarding requirements for encroachments in the street furnishing zone, or any future iteration thereof, are incorporated herein by reference, as though set forth in this Sublicense Agreement in their entirety. Ownership. Sublicensee shall maintain ownership of the Improvement throughout the term of this Agreement. Installation. Any and all costs associated with the installation of Improvement shall be borne by Sublicensee, at no cost to City. Any and all costs and expenses associated with any construction or installation of Improvement thereon, shall be at the sole cost and expense of Sublicensee. If the sidewalk is damaged as a result of the installation of the Improvement, Sublicensee shall correct such deficiency and restore the sidewalk to the same condition it was in prior thereto, at Sublicensee's sole cost and expense. If Sublicensee shall fail or neglect to commence such correction and restoration within seven (7) days of notification thereof, City may proceed to do so, in which event Sublicensee agrees to reimburse City for the costs and expenses thereof. Notwithstanding the provisions of this paragraph, should an emergency exist, related to the Sublicensee's activity or the condition of the Improvement, which threatens the stability or function of the sidewalk or public safety, City shall have the right to immediately perform any necessary emergency repairs on Sublicensee's behalf and at Sublicensee's sole expense. Maintenance. At Sublicensee's sole cost and expense, Sublicensee shall maintain the Improvement in good condition and repair and as required to comply with applicable laws, City policies, and sound engineering practices. Any and all costs associated with the maintenance of Improvement shall be borne by Sublicensee, at no cost to City. Any and all costs and expenses associated with the repair and maintenance of the sidewalk, or the restoration of the sidewalk and surrounding area at the termination of this Agreement, shall be at the sole cost and expense of Sublicensee. If the sidewalk is damaged by the performance by Sublicensee of maintenance, or by the failure or neglect to perform such maintenance, regardless of cause, Sublicensee shall correct such deficiency and restore the sidewalk to the same condition it was in prior thereto, at Sublicensee's sole cost and expense. If Sublicensee shall fail or neglect to commence such correction and restoration within seven (7) days of notification thereof, City may proceed to do so, in which event Sublicensee shall reimburse City for the costs and expenses thereof. Notwithstanding the provisions of this paragraph, should an emergency exist, related to the condition of the Improvement, which threatens the stability or function of the sidewalk or public safety, City shall have the right to immediately perform any necessary emergency maintenance or repairs on Sublicensee's behalf and at Sublicensee's sole expense. CITY OF MERIDIAN STREET SCAPE SUBLICENSE AGREEMENT PAGE 2 8. Termination. Following termination, the City Attorney's Office shall notify Sublicensee of such termination in writing, and shall mail such notice to Sublicensee at the mailing address set forth herein. Termination of this Sublicense Agreement shall constitute revocation of the sublicense granted hereunder. Such termination and revocation shall be effective immediately upon mailing to Sublicensee. a. Termination by City. Cause for termination by City shall include: I Any term or condition of the Sublicense Agreement or any standard or provision of law is violated and Sublicensee fails or refuses to cure such breach or default within ten (10) days of written notice thereof; 2) It is found, after issuance, that the sublicense was issued pursuant to falsified, inaccurate, or incomplete information on the application therefor; 3) The Improvement, its placement, or any component thereof varies materially from the agreed-upon site plan or other representation; 4) The Improvement is found to be inconsistent with City's obligations under the ACHD Master Agreement or other ACHD requirement; 5) Termination is in the best interest of City. b. Termination by Sublicensee. Sublicensee may terminate this Sublicense Agreement upon thirty (30) days' written notice to City of termination. In the event of termination of this Agreement, Sublicensee shall remove the Improvement and restore the sidewalk to good, safe condition, as determined by City, at Sublicensee's sole expense, by the date of termination or such later date as established by City. If Sublicensee shall fail or neglect to timely commence such restoration, City may proceed to do so, in which event Sublicensee shall reimburse City for the costs and expenses thereof. Sublicensee shall be liable for any damages and any costs, including legal expenses and attorneys' fees, incurred by City in recovering and restoring the sidewalk to good, safe condition following Sublicensee's termination. This provision shall survive the termination of this Agreement. 9. Acceptance as is. Sublicensee acknowledges that Sublicensee has inspected the sidewalk where the Improvement is to be installed and does hereby accept same as being in good and satisfactory order, condition, and repair. It is understood and agreed that City makes no warranty or promise as to the condition, safety, usefulness or habitability of the sidewalk, and Sublicensee accepts the sidewalk "as is." By granting this license, City does not in any way bar, obligate, limit, or convey any warranty with regard to any action relating to operation or modification of the sidewalk. 10. Assignment. It is expressly agreed and understood by and between the parties hereto, that Sublicensee will not have the right to assign, transfer, hypothecate or sell any of its rights under this Sublicense Agreement. CITY OF MERIDIAN STREETSCAPE SUBLICENSE AGREEMENT PAGE 3 11. Hold harmless. For purposes of or in furtherance of this Agreement, each party and each of its employees, agents, contractors, officials, officers, servants, guests, and/or invitees, shall save and hold harmless the other party from and for any and all losses, claims, actions, judgments for damages, or injury to persons or property and losses and expenses caused or incurred by either party or any employee, agent, contractor, official, officer, servant, guest, and/or invitee thereof. 12. Insurance. Sublicensee shall maintain, and specifically agrees that Sublicensee will maintain, throughout the term of this Agreement, liability insurance in the minimum amount as specified in the Idaho Tort Claims Act set forth in Title 6, Chapter 9 of the Idaho Code. The limits of insurance shall not be deemed a limitation of the covenants to indemnify and save and hold harmless City; and if City becomes liable for an amount in excess of the insurance limits herein provided, Sublicensee covenants and agrees to indemnify and save and hold harmless City from and for all such losses, claims, actions, or judgments for damages or liability to persons or property. Sublicensee shall provide City with a certificate of insurance or other proof of insurance evidencing Sublicensee's compliance with the requirements of this paragraph. In the event the insurance minimums are changed, Sublicensee shall immediately submit proof of compliance with the changed limits. 13. Attorneys' Fees. Sublicensee shall be liable to City for all damages and costs, including legal expenses and attorneys' fees, suffered or incurred by City in the enforcement of any of the terms, covenants or conditions of this Agreement. 14. Transfer of license. If City should lose the right to sublicense the sidewalk to which the Improvement is affixed, this Agreement shall be voidable upon transfer of license, at ACHD's option. As may be practicable under the circumstances, City shall provide written notice to ACIID of the existence of this Sublicense Agreement. 15. Notices. All notices to be provided under this Agreement shall be in writing and addressed as follows: If to Sublicensee: Meridian Development Corporation C/O Borton-Lakey Law Offices 141 E. Carlton Ave. Meridian, Idaho 83642 If to City: City of Meridian 33 E. Broadway Avenue Meridian, Idaho 83642 Notices shall be in writing and either personally delivered or sent by registered or certified U.S. mail, postage prepaid, return receipt requested to the party to be notified at the address specified above, or such other address as either party may designate in writing. Notice shall be deemed to have been given upon deposit in the U.S. mail, or upon personal delivery to the parry above specified. 16. No waiver. Either Party's waiver on one or more occasion of any breach or default of any term, covenant or condition of this Agreement shall not be construed as a waiver of any subsequent breach or default of the same or a different term, covenant or condition, nor shall CITY OF MERIDIAN STREETSCAPE SUBLICENSE AGREEMENT PAGE 4 such waiver operate to prejudice, waive, or affect any right or remedy that Party may have under this Agreement with respect to such subsequent default or breach by the defaulting Party. 17. Exhibits. All exhibits attached hereto and the recitals contained herein are incorporated herein as if set forth in full herein. IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed the day, month and year first set forth above. ME DEVELOPMENT CORPORATION: C Im Escobar, Chairman Dave 1W Tammy of SEAL Alfie TAE ASUT' Attest: CITY OF MERIDIAN STREETSCAPE SUBLICENSE AGREEMENT PACE 5