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HomeMy WebLinkAbout2005-38Ordinance 2005-38 Adoption of Adelphia Franchise Extension Agreement ~. Adopted: October 18, 2005 Effective: October 18, 2005 TOWN OF PULASHI, VIRGINIA ORDINANCE 2005-38 AUTHORIZING AGREEMENT ENTITLED "LICENSE" BY AND BETWEEN THE TOWN OF PULASHI AND CONMAT GROUP, LC WHEREAS, the Town Council of the Town of Pulaski has considered the best interest of its citizens and has determined that development of the Town of Pulaski Business Park is compatible with the health, safety and welfare of its citizens; and _.~. WHEREAS, Conmat Group, LC is constructing a facility on land to be purchased by said entity from the Town of Pulaski, upon prior approval by this Council regarding said purchase; and NOW THERFORE BE IT ORDAINED that the agreement attached hereto and expressly made a part hereof entitled "License" is hereby accepted and the Town Manager or his designee is hereby authorized to execute same on behalf of the Town of Pulaski. This ordinance is effective upon adoption and is hereby adopted this 18`h day of October, 2005 by recorded vote of the Town Council of the Town of Pulaski as follows: Jeffrey S. Worrell -Aye Lane R. Penn -Aye Daniel Talbert, Jr. -Aye John T. Bolen -Aye Bettye H. Steger -Aye Joel B. Burchett, Jr. -Aye THE TOWN OF PULASKI, VIRGINIA By: Charles L. Wade, Mayor ATTEST: Patricia Cruise, Clerk of Council LICENSE This License is dated the 22"d day of July, 2005, by and between the TOWN OF PULASKI, VIRGINIA ("Licensor"), and CONMAT PROPERTIES, L.C., a Virginia limited liability company ("Licensee"). WHEREAS, the Town Council of the Town of Pulaski, Virginia, has approved by adoption of Ordinance 2005-29 the sale of approximately 5.28 acres in the Town Business Park (as shown on Exhibit A, the "Property") to Conmat Group, Inc., to which Conmat Properties, L.C. is a related party and assignee/designee, WHEREAS, the property to be acquired is in the process of being subdivided and otherwise prepared for closing of such sale, and WHEREAS, it is in the best interest of Licensor and Licensee that Licensee obtain pre- closing occupancy of the Property, to commence site preparation and installation of its ready-mix concrete facility, NOW, THEREFORE, in consideration of the sum of One Dollar ($1.00) and other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Licensor grants with General Warranty to Licensee, its successors and assigns: (a) the exclusive right, privilege and license to access, grade, improve and use the Property for the purpose of site preparatiod and installation of a permanent ready-mix concrete facility and necessary appurtenances thereto (the "Facility"), on the Property from the date of this License to and including the date of closing of the purchase by Licensee of the Property from Licensor, and (b) the non-exclusive right, privilege and license to grade, install and use a temporary roadway to serve the Property, in a location crossing Lot 4 and otherwise which is mutually acceptable to Licensor and Licensee in their reasonable discretion, and (c) the non-exclusive right, privilege and license to install and use a drainage pipe in a mutually agreeable location under the existing roadway to facilitate storm water drainage from "Lot 2" to "Lot 18". In addition, Licensor agrees to grant to Licensee or utility companies, as the case may be, such reasonable easements for electrical service, water service, sanitary service, telephone service and other utilities within the Business Park as maybe necessary to operate the Facility on the Property. This License is subject to all existing easements, rights-of--way, covenants, encumbrances and restrictions of record, and is further subject to the following conditions: A. The Facility shall remain the property of Licensee. Licensee shall have the right to inspect, rebuild, remove, repair, improve, and make such changes, alterations, additions to or extensions of its Facility as are consistent with the purpose expressed herein. All construction, maintenance, equipment and facilities shall comply with all applicable laws, ordinances, codes and regulations. B. In the event that closing of the purchase of the Property does not occur due to any reason other than a default by Licensor, Licensee shall restore the Property as nearly to its original condition as practicable, including removal of the Facility. 1 C. Licensee shall at Licensor's election pay for or repair any injury to any of Licensor's land, structures, roads, fences, and other improvements caused by the negligence or willful misconduct of Licensee, its employees, agents or contractors. Licensee shall notify Licensor immediately of any such injury, and Licensee shall make said payment or repair within thirty (30) days after such election by Licensor. D. This license shall remain in effect until the earlier of (1) closing of the purchase of the Property by Licensee from Licensor, or (2) termination of the contract of purchase due to a default by Licensee, in which case Licensee shall have a reasonable period of time to remove the Facility from the Property. E. Licensee agrees to indemnify, protect, defend, and hold Licensor and its employees, Mayor and Town Council members, its agents and/or contractors, (collectivel'y, the "Indemnified Parties") harmless from and against any and all liabilities, demands, actions, causes of action, suits, claims, losses, damages, costs, and expenses (including, without limitation, reasonable attorneys' fees, court costs, and litigation expenses) suffered or incurred by any of the Indemnified Parties as a result of or in connection with any activities of Licensee (including activities of any of Licensee's employees, consultants, contractors, or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, or injury to persons or property resulting from such activities in connection therewith, unless caused by the negligence or willful misconduct of an Indemnified Party. Furthermore, Purchaser agrees to maintain and cause any of its representatives or agents conducting any preparation of the Property for construction to maintain and have in effect commercial general liability insurance with limits of not less than One Million and 00/100 Dollars ($1,000,000.00)for, including, but not limited to, personal injury, including bodily injury and death, and property damage per occurrence, naming Licensor as additional insured parties. Licensee shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Licensor. ENTIRE AGREEMENT It is agreed between the parties hereto that this Agreement is the entire understanding of the parties and that no negotiations or verbal or written agreements exist, but that all such agreements are hereby merged into this document. No modification of the Agreement shall be allowed unless in writing and signed by the parties hereto. FURTHER DOCUMENTS Each party agrees to execute any and all documents, instruments, or further writings or documents which maybe necessary or appropriate to effectuate the terms of this Agreement. SEVERABILITY If a Court of competent jurisdiction at any time holds that a portion of this Agreement is invalid, the remainder shall not be affected thereby and shall continue in full force and effect. 2 VOLUNTARY EXECUTION The parties acknowledge that they are entering into this agreement freely and voluntarily and that no coercion, force, pressure or undue influence has been used in the execution of this agreement, either by the other party hereto or by any other person or persons; that they have ascertained and weighted all facts and circumstances likely to influence their judgment herein; that they have sought or had the opportunity to seek and obtain legal advice independently of each other or have freely waived such opportunity; and that they clearly understand and assent to all provisions hereof. All questions pertinent thereto, have been fully and satisfactorily explained to them; that the terms embodied in this agreement is in all respects acceptance to them, and that accordingly they assent to all the provisions hereof. - INTERPRETATION This agreement shall be interpreted in accordance with the laws of the State of Virginia. _m,.. ATTORNEY'S FEES, MEDIATION AND ARBITRATION Mediation shall be entered into by the parties in an attempt to settle any disputes under this agreement. If mediation is unsuccessful, then the parties agree to binding arbitration to be held in Pulaski, Virginia. The costs of such arbitration shall be borne by the non prevailing party. If an arbitrator and/or mediator cannot be agreed upon by the parties, then the parties agree that the Circuit Court of the County of Pulaski shall select the arbitrator and/or mediator. WITNESS the following signatures and seals. Licensor: TOWN OF PULASKI, VIRGINIA By: Title• Town Manager Licensee: CUNMAT PROPERTIES, L.C., A Virginia limited liability company ~,o ® 1 By: /(- ~ Title: Manager 3 STATE OF VIRGINIA _ CITY/COUNTY OF 1 The foregoing instrument was acknowledged before me in the aforesaid jurisdiction this ,~ Q day of , 2005, by John J. Hawley, as Town Manager of the Town of Pulaski, Virginia, on its behalf. My commission expires: -gr 3 ~ [~ ~ Notary Public ~.~. STATE OF VIRGINIA ` CITY/COUNTY OF ~'~`'° The oregoing instrument was cknowledged before me in the afo 'd jurisdiction this ~~'~ay of , 2005, ~Y ~ ~' . (~--- , as of Conmat P perties, L.C., on its behalf. My commission expires: ~ ~~. ~~~~ Notary Public 4 I, Patricia Cruise, Clerk of Council, certify that the forgoing Ordinance 2005-38 Authorizing Agreement Entitled "License" by and Between the Town of Pulaski and Conmat Group, LC is a true and correct copy as adopted by the Pulaski Town Council at their regular meeting on October 18, 2005. ~~,. r Patricia Cruise, Clerk~of Council TC/dordinancelcertification 2005-38