HomeMy Public PortalAbout2011_10_11_R124 - License Agreement with NVRPA for Raflo ParkThe Town of
Leesburg,
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RESOLUTION NO. 2011 -124
PRESENTED October 11, 2011
ADOPTED October 11, 2011
A RESOLUTION: AUTHORIZING THE TOWN MANAGER TO EXECUTE A LICENSE
AGREEMENT BETWEEN THE TOWN OF LEESBURG AND THE
NORTHERN VIRGINIA REGIONAL PARK AUTHORITY FOR TRAIL
AMENITIES TO BE INSTALLED AT RAFLO PARK
WHEREAS, the Town of Leesburg, Virginia ( "Town ") desires to install amenities along the
W &OD Trail owned by the Northern Virginia Regional Park Authority ( "NVRPA ") at Raflo Park
on Harrison Street, those amenities being described on "Exhibit A" of the License Agreement; and
WHEREAS, the amenities to be installed include a portable toilet, air machine, kiosk, picnic
table, bench, drinking fountain, a stone surface and landscaping; and
WHEREAS, these amenities will be added to the amenities previously installed by the Town
such as the gazebo, picnic tables and bike racks; and
WHEREAS, the Town Attorney and the Parks and Public Space Planner have negotiated a
License Agreement with the NVRPA to allow the Town to install the amenities; and
WHEREAS, this License Agreement will also encompass the gazebo and other amenities
previously installed on NVRPA owned property; and
WHEREAS, the term of the License Agreement will run for twenty (20) years with
renewable ten (10) year terms; and
WHEREAS, the NVRPA Board of Directors has approved the License Agreement and has
waived all fees; and
WHEREAS, the terms contained in the License Agreement are reasonable and equitable and
will benefit the Town and the citizens of Leesburg.
THEREFORE, RESOLVED, by the Council of the Town of Leesburg in Virginia that the
Town Manager shall execute the License Agreement with the Northern Virginia Regional Park
-2-
A RESOLUTION: AUTHORIZING THE TOWN MANAGER TO EXECUTE A LICENSE
AGREEMENT BETWEEN THE TOWN OF LEESBURG AND THE
_ NORTHERN VIRGINIA REGIONAL PARK AUTHORITY FOR TRAIL
AMENITIES TO BE INSTALLED AT RAFLO PARK
Authority dated October 2011.
PASSED this 11th day of October, 2011.
n C. mstattd, Mayor
Town of Leesburg
ATTEST:
Clerk of C c 1
P: \Resolutions \Resolutions 2011 \1011 Authorizing a License Agreement with NVRPA for Raflo Park.doc
LICENSE AGREEMENT'
THIS LICENSE AGREEMENT ("Agreement "), made this --{ "' day of
20 t't , by and between the NORTHERN VIRGINIA REGIONAL PARK
AUTHORITY, a body corporate and politic (the "Authority "), and the TOWN OF
LEESBURG (the "Licensee ").
WHEREAS, the Authority owns certain real property (the "Property "), consisting of a
trail extending from Arlington County to Purcellville, Virginia, on which the Authority
operates and maintains a Park, including related facilities, for the public's use and enjoyment,
also known as the W&OD Railroad Regional Park; and
WHEREAS, Licensee desires to construct and maintain certain facilities and
improvements on a portion of the Authority's Property; and
WHEREAS, Licensee acknowledges that the paramount use of the Property is for the
public's use and enjoyment and that the construction and operation of Licensee's facilities
and improvements on the Property must not adversely affect the Property's paramount use
for park purposes; and
WHEREAS, the Authority is willing to license to Licensee use of portions of the
Property on the terms and conditions set forth herein.
NOW THEREFORE, the Authority and Licensee, in consideration of payments
hereinafter stipulated and the mutual covenants hereinafter contained, hereby agree as
follows:
Definitions
As used in this Agreement:
"Licensed Premises" means that portion of the Property as shown on the plan titled,
Town of Leesburg Raflo Park, W &OD Trailside Amenities prepared by W. Ference, dated 8-
2011 attached hereto as Exhibit A, on which Licensee is authorized, pursuant to this
Agreement, to construct, install, operate, and maintain certain facilities and improvements
specified herein.
"Park" means that portion of the Property on which the Authority maintains and
operates recreational facilities and related improvements, whether existing as of the date of
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this Agreement or established thereafter, for the public's use and enjoyment.
"Property" means that property owned by the Authority, extending from Arlington
County to Purcellville, Virginia, together with adjacent parcels owned by Authority, on
which the Authority operates and maintains a public park, including trails and related
facilities for the public's use and enjoyment, a portion of which is shown on Exhibit A
hereto.
"Trail" means that portion of the Property as shown on Exhibit A hereto, which the
Authority maintains and operates as a trail or path, both paved and unpaved, for the public's
use and enjoyment, including barricades, bridges, signs, benches, fountains, and related
improvements.
2. License Grant
a. Authority hereby grants a nonexclusive license to Licensee, for the
term and upon the conditions, covenants, and agreements hereinafter set forth, to use the
Licensed Premises for the purposes of constructing, installing, operating and maintaining
certain Town park facilities and improvements on the Property associated with the Town's
Raflo Park as described on Exhibit A and in the locations shown on Exhibit A, hereby
incorporated into this Agreement by reference.
b. It is a specific prerequisite to Licensee's use of the Licensed Premises
pursuant to this Agreement that the Property at all times shall be used and maintained in a
safe and reasonable manner satisfactory to the Authority.
c. The rights or privileges herein granted to Licensee shall be subject to
the rights and or interests held by others in and to the Property as of the date of this
Agreement. The Authority makes no representations or warranties, express or implied,
concerning the extent of such outstanding rights held by others and shall have no
responsibility for conflicts with others as a result of this Agreement. The Authority makes no
warranties with respect to the Property but gives Licensee a license to use such rights in the
Property that the Authority has in the Property.
d. Nothing contained in this Agreement shall be interpreted to create
anything other than a license and this Agreement shall specifically not create any right, title
or interest in the Property, nor shall it create an easement or a leasehold interest.
Term
a. Unless terminated in accordance with paragraph 3b or c, the term of
this License shall be twenty (20) years from the date hereof, and thereafter shall be automati-
cally renewed for additional ten (10) year periods not to exceed a total term of ninety (90)
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years, unless either party provides the other party written notice of its intention not to renew
this License at least six (6) months prior to any expiration date of this Agreement.
b. Should Licensee abandon or remove its facilities and improvements
constructed on the Licensed. Premises this License shall terminate forthwith at the election of
the Authority.
C. The Authority may terminate this Agreement for the Licensee's failure
to comply with the terms hereof, provided the Authority gives the Licensee written notice of
the violation and a reasonable time, not to exceed thirty (30) days, to rectify it to the
satisfaction of the Authority.
d. Licensee shall, within three (3) months after the expiration or earlier
termination of this Agreement remove Licensee's facilities and improvements from the
Licensed Premises. Licensee shall assume full responsibility for all costs and expenses
incurred in connection with such removal of its facilities and improvements. Licensee shall
leave the Property in a clean condition acceptable to the Authority. In the event Licensee
does not, within the required period of time, remove its facilities and improvements, then the
Authority may remove the same at the cost and expense of Licensee, or the Authority may, at
its option, allow said facilities and improvements to remain on the Property, in which event
Licensee shall be deemed to have abandoned such facilities and improvements and
relinquished to the Authority all right, title and interest thereto and said facilities and
improvements shall be and become the property of the Authority.
e. Expiration or earlier Termination of this License shall not relieve or
release Licensee from any liability or obligation that may have been incurred or assumed by
Licensee hereunder prior to such expiration or termination.
4. Payments
a. Upon execution of this Agreement, Licensee shall pay Authority a
license administration fee of _- WAIVED -_ Dollars ($- WAIVED). The parties hereto
agree that the administration fee shall be adjusted, whether upward or downward, to reflect
the Authority's actual costs in administering this License. Said adjustments shall be made
monthly until the time of final Construction Deposit return pursuant to paragraph 5 hereof,
and any outstanding fees shall be refunded or billed, as appropriate, to the Licensee.
Licensee agrees to pay such bills within thirty (30) days of receipt of appropriate
documentation from the Authority.
b. As further compensation, Licensee shall pay Authority a use fee of
WAIVED- Dollars ($_- WAIVED -�, per year payable in advance on the
first day of July for each year of this Agreement. On the first day of July of each year and
while the License remains in effect, the annual use fee shall be increased by four percent
(4 1/o) over the previous twelve month period as shown on Exhibit C attached hereto, which
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contains the Annual Use Fee Summary Sheet. The annual use fee shall be adjusted when
necessary to reflect future additional crossings or terminated crossings and Exhibits A and C
shall be updated for each adjustment. The annual use fee shall be prorated for any partial
period at the beginning or end of the term of this License as shown on Exhibit C. All fees
due Authority shall be paid when due to the address in the Notices section 6 below, or to
such other place as Authority may designate in writing to licensee.
C. Licensee agrees and covenants to pay all taxes including, but not
limited to, leasehold interest taxes, assessments, use and occupancy taxes, charges for public
utilities, excises and levies, levied on the Licensed Premises that arise out of Licensee's
construction, maintenance, or operation of any facilities or improvements on the Licensed
Premises.
5. Construction Deposit
Upon execution of this Agreement, Licensee shall place on deposit with the
Authority a cash deposit (the "Construction Deposit ") in the amount of _-WAIVED -
Dollars ($WAIVED). The Construction Deposit shall be in the form of a certified or
cashier's check payable to the Authority. The purpose of said Construction Deposit shall be
to provide reimbursement to the Authority for any and all expenditures including, but not
limited to, attorney's fees, restoration costs and, if applicable, Liquidated Damages, as
defined in Paragraph 9 of Exhibit B attached hereto, necessary to enforce the terms of this
Agreement. The Authority may withdraw and expend such funds from the Construction
Deposit as it may deem necessary to enforce the Licensee's obligations under this
Agreement, and if the funds shall become exhausted, Licensee will immediately replenish the
Construction Deposit. The Authority will hold the Construction Deposit for six months
following completion of construction (as determined by the Authority) of Licensee's
facilities and improvements on the Licensed Premises and restoration to the Authority's
satisfaction of any of the Property disturbed during such construction. Upon satisfaction of
all requirements under this Section 5, the Authority will return to the Licensee the
Construction Deposit less any amounts used by the Authority pursuant hereto.
6. Notices
Any notice pursuant to this Agreement shall be given in writing by (a)
personal delivery, or (b) reputable overnight delivery service with proof of delivery, or (c)
United States Mail, postage prepaid, registered or certified mail, return receipt requested, sent
to the intended addressee at the address set forth below, or to such other address or to the
attention of such other person as the addressee shall have designated by written notice sent in
accordance herewith, and shall be deemed to have been given at the time of personal
delivery, the first business day after deposit with an overnight delivery service or as of the
date of first attempted delivery if sent by registered or certified mail. For purposes of this
Section, the term `Business Day" shall mean a day on which commercial banks are not
authorized or required by law to close in the Commonwealth of Virginia. Unless changed in
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accordance with the preceding sentence, the addresses for notices given pursuant to this
Agreement shall be as follows:
To AUTHORITY:
Northern Virginia Regional Park Authority
5400 Ox Road
Fairfax Station, Virginia 22039
Attention: Director of Planning and Development
To LICENSEE:
Town of Leesburg
Parks and Recreation Department
50 Ida Lee Drive, NW
Leesburg, Virginia 20176
Attention: Director
7. Terms Incorporated by Reference
The General Terms and Conditions for License Agreements, Part B, dated
December 2, 2009, is attached hereto as Exhibit B and is hereby incorporated into this
Agreement by reference.
Special Conditions
Notwithstanding any other provisions of this Agreement to the contrary, the
following special conditions shall apply:
a. Licensee shall install any utility conduits and cables under and across
the Trail parallel with the crossing roadways at a minimum depth of thirty -six inches.
Licensee shall install the utility conduits and cables by means of boring or tunneling from
staging areas (bore pits) located outside the limits of the Trail. Licensee shall install any
cables under and across the Property in a permanent sleeve or conduit which extends beyond
the Property so that future access for removal, repair, or replacement of the cables will be
from outside the Property. The construction areas, including placement of spoils, and bore
pits shall be separated from the Property by safety fencing. Licensee shall place appropriate
signs on the Property warning Trail users of construction ahead. Licensee shall not operate
any tools or equipment on the Trail, nor shall Licensee's personnel or vehicles block or
disrupt the Trail, or block Trail users' sight distance to the roads at any time during
construction.
b. Licensee shall provide all contractors on the project with a copy of this
License Agreement and shall ensure that all construction personnel abide by the restrictions
of boring and surface access and other provisions contained herein.
C. In any discrepancy between the approved construction drawings and
this Agreement, this Agreement and exhibits prevail with respect to the Property.
d. In the event any of the utility agencies which have existing facilities on
the Property require an observation pit while any other cable and conduits are bored across
said existing facility, then Licensee shall employ appropriate warning signs, fencing, and
flashing lights to protect the public from excavated areas. In no event shall Licensee
excavate within the surface of the Trail or within five feet on either side of the Trail.
Licensee shall obtain the Authority's written approval of any utility test hole locations and
size on the Property prior to the Licensee performing any work. Only hand- portable
equipment shall be used and one person shall be stationed at each test hole until covered to
ensure the safety of Trail users. Disturbed areas shall be restored promptly to their original
or better condition in compliance with compaction, seeding, landscaping and other applicable
standards and specifications established by the Authority.
C. Access to the Licensed Premises shall be from existing roadways and
not along the Authority's Trail. No motorized vehicles shall be operated on, along, over or
across the Trail.
f. This License includes Licensee's operation and maintenance of its
pre- existing facilities on Authority's Property, including without limitation the gazebo,
wooden benches, trash receptacles, bicycle racks, signs, light fixtures and associated electric
outlets and boxes.
g. Failure of Licensee to comply with any provision of paragraphs 8 a, b,
d, e, and f above shall be deemed to be a violation of this Agreement subjecting the Licensee
to the Liquidated Damages provided for in Paragraph 9 of Exhibit B and to such other
remedies as may be available to the Authority. In addition, the Authority shall have the right
to correct any conditions that pose a safety hazard to users of the Trail, and the costs of such
corrective actions shall be paid by Licensee to the Authority within thirty (30) days of receipt
of appropriate documentation from the Authority.
h. Notwithstanding Section 3b, future public park facilities may be
included by amendment to this Agreement. Future facilities shall be subject to specific
approval of the Authority pursuant to its policies, criteria and standards at the time of the
amendment. Upon execution of any amendment, Licensee may be required to pay the
Authority an additional license administration fee and Construction Deposit.
C.1
IN WITNESS WHEREOF, the parties hereto for themselves and their successors and
assigns have executed this License Agreement on the date and year first written above,
LICENSEE:
TOWN OF LEESBURG
By:
Name: —7) e4"
Title;
AUTHORITY:
NORTHERN VIRGINIA REGIONAL, PARK AUTHORITY
By: -)-vlij
Name: Todd E. Hafnei' �
Title: Director of Planning and Development
M
EXHIBIT B
NORTHERN VIRGINIA REGIONAL PARK AUTHORITY
GENERAL TERMS AND CONDITIONS
FOR
LICENSE AGREEMENTS
December 2, 2009
1. Definitions
All capitalized terms in this General Terms and Conditions shall have the
same meaning as set forth in the License Agreement ( "Agreement ").
2. Construction
a. Construction Plans and Specifications
(1) Construction of Licensee's facilities and improvements on the
Property shall be restricted to the Licensed Premises and shall be performed strictly in
accordance with plans and specifications approved in writing by the Authority. Licensee
shall not deviate from or make changes to the construction plans and specifications
approved by the Authority without the Authority's prior written approval. Only those
facilities and improvements reflected on the approved construction plans and specifica-
tions shall be established on the Property. Licensee shall strictly adhere to any limitations
or restrictions on construction methods or techniques as set forth in the approved .
construction plans and specifications, in the License Agreement, and any Exhibits thereto.
After completion of the initial construction of the facilities and improvements on the
Property, Licensee shall not construct additional facilities and improvements on the
Property without specific written approval of the Authority, which written approval, if
given, may constitute a separate license or an amendment to the Agreement.
(2) Licensee is hereby placed on notice of an existing agreement
between Virginia Electric and Power Company ( "VEPCO ") and the Authority which
provides, in part, that the Authority shall not grant any right to use the Property for certain
purposes without Virginia Power's prior written approval. Licensee shall be responsible
for obtaining Virginia Power's approval, and shall not enter or commence any work on
the Property until such written approval is obtained and a copy of said approval is
provided to the Authority by Licensee. The license granted by this Agreement shall be
contingent until the written approval of VEPCO is obtained and provided to the
Authority.
(3) Failure of Licensee to comply with any provision of
subparagraphs 2a(l) or (2) above shall be deemed to be a violation of the Agreement
subjecting the Licensee to the liquidated damages provided for in Paragraph 9 hereof and
to such other remedies as may be available to the Authority.
b. Construction Schedule
(1) Licensee shall submit to Authority for approval a proposed
construction schedule, indicating when construction will begin and be completed and
construction milestones. Licensee also shall provide Authority a list of the names of all
contractors and subcontractors who will work on the Licensed Premises.
(2) Licensee shall perform construction only in accordance with
the approved construction schedule. Licensee shall notify Authority immediately of any
changes to the approved schedule. Such changes shall be subject to the prior written
approval of the Authority.
(3) Licensee shall provide notice to Authority at least two (2)
business days before entering the Property to perform any construction.
(4) Failure of Licensee to comply with any provision of
subparagraphs 2b(1) (2) or (3) above shall be deemed to be a violation of this Agreement
subjecting the Licensee to the liquidated damages provided for in Paragraph 9 hereof and
to such other remedies as may be available to the Authority.
C. Confining Construction Activity. During construction, Licensee
and its contractors and subcontractors shall confine all construction activity, including
access and storage, within the applicable areas specified on the approved plans and any
exhibits thereto. Failure of Licensee to comply with any provision of this subparagraph
shall be deemed to be a violation of the Agreement subjecting the Licensee to the li-
quidated damages provided for in Paragraph 9 hereof and to such other remedies as may
be available to the Authority.
d. Excavation
(1) Licensee shall not make or begin any excavation or other
subsurface activity on the Property without first obtaining information concerning the
possible location of any underground facility from each and every public utility,
municipal corporation, or other person having the right to bury underground facilities on
the Property.
(2) Licensee shall not make or begin any excavation or other
subsurface activity on the Property without having all underground facilities located by
suitable markers or other means by the owners of such underground facilities or other
qualified or authorized persons.
(3) Obtaining the information required by subparagraphs (1) and
(2) of this paragraph does not excuse Licensee from making all excavation or other
subsurface activity in a careful and prudent manner.
(4) In the event of any damage to or dislocation of any
underground facility in connection with the excavation or other subsurface activity,
Licensee shall immediately notify the owner of such facility and shall immediately cease
all work in the affected area until repairs are complete. Any such incident shall be
reported immediately to the Authority, and no further excavation or subsurface activity
shall be done until permission is granted by the Authority.
(5) All excavation or other subsurface activity made by Licensee
shall be properly safeguarded for the prevention of accidents. All excavated or tunneled
areas shall be filled in or adequately secured at the end of each work day.
(6) Failure of Licensee to comply with any provision of
subparagraphs 2d(l), (2), (3), (4) or (5) above shall be deemed to be a violation of the
Agreement subjecting the Licensee to the liquidated damages provided for in Paragraph 9
hereof and to such other remedies as may be available to the Authority.
e. Inspection of Construction.
(1) The construction of Licensee's facilities and improvements is
subject to the Authority's inspection at all places and all reasonable times to ensure strict
compliance with the terms of the Agreement.
(2) Authority inspections are for the sole benefit of the Authority
and do not constitute or imply acceptance of any work as conforming with the
requirements of the Agreement. The presence or absence of an Authority inspector does
not relieve Licensee from any contract requirement, nor is the inspector authorized to
change any term or requirement of this Agreement without the written authorization of
the Authority's representative.
3. Maintenance and Operation
a. Licensee shall be responsible for maintaining and operating all
facilities and improvements established by it on the Property, and shall perform such
maintenance and operations in a manner and at such frequency as necessary to keep the
Property safe and to protect against damage to the Property and adjoining properties.
b. Prior to commencement of any scheduled maintenance, or of any
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operation activity that requires entry onto the Property, Licensee shall submit a proposed
maintenance or operation plan and schedule to the Authority for approval. The plan and
schedule, as a minimum, shall provide a description of work to be performed, a
description of equipment, vehicles, work techniques and methods to be used in
connection with the maintenance or operation activity, a schedule of when maintenance
or operation work will occur with an estimate as to the length of time required to perform
the work, and such other information as the Authority may need in order to evaluate the
proposed maintenance or operation activity.
C. Licensee shall perform maintenance and operation of the facilities
and improvements strictly in accordance with plans and schedules that have been
approved in writing by the Authority. Licensee shall not deviate from or make changes to
the maintenance or operation plans and schedules approved by the Authority without the
Authority's prior written approval.
d. Licensee shall provide notice to Authority at least forty -eight (48)
hours before entering the Property to maintain or operate Licensee's facilities; except in
the case of an emergency where Licensee cannot provide the required advance notifica-
tion, Licensee shall notify Authority as soon as practicable.
e. Licensee shall confine all maintenance and operation activities,
including access and storage, within the applicable areas specified in the approved
maintenance and operation plans.
f. Licensee shall avoid disturbing the Property and any improvements
thereon while maintaining or operating Licensee's facilities and improvements. To the
extent any disturbance does occur, Licensee shall restore such disturbed areas in
accordance with the requirements set forth in Paragraph 4.
g. Failure of Licensee to comply with any provision of subparagraphs
3a, b, c, d, e or f above shall be deemed to be a violation of this Agreement subjecting the
Licensee to the liquidated damages provided for in Paragraph 9 hereof and to such other
remedies as may be available to the Authority.
h. The Authority agrees to consider and, at its discretion, grant
appropriate blanket approvals for scheduled maintenance or operation activities. In such
event, Licensee shall be required only to provide the required advanced notification prior
to commencing scheduled maintenance or operations for which the Authority previously
has granted a blanket approval.
i. In addition to any other condition which the Authority may require
in consideration for approval of any maintenance or operation plan, if any maintenance or
operation activity of Licensee would disturb or disrupt the land or any improvement on
the Property, or would interfere with the Authority's or public's use and enjoyment of the
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Property, the Authority may impose upon Licensee reasonable charges and bonding (over
and above any other payments or bonding required under the License Agreement) to
cover its costs of reviewing, approving, administering, overseeing and inspecting the
maintenance or operation activity, and to ensure the safety and well being of the public
and the proper and timely restoration of the Property.
4. Restoration
a. Licensee shall, as soon as practicable after the completion of any
construction, operation or maintenance activities, restore all areas disturbed during such
activities. These areas shall be restored in kind to a condition substantially the same as
that which existed prior to Licensee's performing such activities, and shall be restored to
the satisfaction of the Authority, taking into consideration aesthetics as well as structural
or design integrity.
b. Disturbed areas must be backf-illed and compacted consistent with
the original conditions. Where subsoil is tamped, the disturbed area will be filled to a
level in kind. Disturbed areas will be reseeded or sodded in kind. Seeding required for
restoration shall be of a mixture approved by the Authority. Any subsequent settling of
disturbed areas will be repaired in kind. Licensee shall be responsible for any erosion
which may occur as a result of Licensee's use of the Licensed Premises, and Licensee
shall restore any eroded area until stabilized.
C. In the event any asphalt paths on the Trail are cut or are otherwise
damaged or disturbed, repairs shall be made in accordance with the following minimum
requirements:
(1) pavement shall be saw cut and shall have straight, clean edges;
(2) all debris shall be hauled from the Property;
(3) the disturbed area shall be backfilled with approved material
compacted to ninety -five percent (95 %) of theoretical density as determined by standard
proctor.
(4) a minimum of six inches (6 ") of VDOT type 21 -A aggregate
base shall be placed and compacted;
(5) base shall be prime coated at the rate of .3 gallons per square
yard with VDOT type MC -70 or RC -250 liquid asphalt; all existing asphalt edges shall be
cleaned and tack coated;
(6) a minimum of two inches (2 "), or the depth of the existing
asphalt, whichever is greater, of VDOT type SM -9.5 hot -mix asphalt shall be placed and
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properly compacted;
(7) all adjacent stone or turf shoulder shall be backfilled flush with
the pavement edge and said turf areas seeded in accordance with the requirements in sub-
paragraph 4b above; and
(8) the standard minimum dimensions for patched or replaced
asphalt shall be a square the width of the Trail by an equal length.
d. If the disturbed area is on a part of any path in use by the public,
Licensee shall immediately restore the disturbed area with a temporary patch until the
asphalt can be permanently restored in accordance with the requirements of this
paragraph 4. Failure of Licensee to comply with any provision of this subparagraph shall
be deemed to be a violation of this License Agreement subjecting the Licensee to the
liquidated damages provided for in paragraph 9 hereof and to such other remedies as may
be available to the Authority.
e. The Authority may restore any areas in case of neglect by Licensee.
Licensee shall pay the cost of such restoration, including the cost of inspection and
supervision.
S. Approvals
Whenever the License Agreement requires Iicensee to submit plans,
specifications, schedules or other items to the Authority for approval, the Authority shall
review and approve, disapprove, or take other appropriate action with reasonable
promptness after receipt of the required submittal. The Authority's approval of any
submittal shall not be deemed to be a waiver of any requirement of the Agreement unless
such waiver is explicit and in writing and specifically references the requirement of this
Agreement that is being waived.
6. Access
Licensee shall enter and exit the Property during the term of the License
Agreement only at those places and by those means specified on the approved
construction plans and specifications and in the Agreement, including the attached
exhibits. Failure of Licensee to comply with any provision of this Paragraph shall be
deemed to be a violation of this Agreement subjecting the Licensee to the liquidated
damages provided for in Paragraph 9 hereof and to such other remedies as may be
available to the Authority.
7. General Responsibilities of Licensee
a. Compliance with Applicable Laws and Regulations. Licensee shall
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construct, operate, and maintain its facilities and improvements in accordance with all
applicable federal, state, and county laws, orders, rules, and regulations existing on the
date of the Agreement or enacted thereafter affecting Licensee's use of the Property, and
Licensee shall assume all costs, expense, and responsibility in connection therewith.
b. Manner of Performance. Licensee shall construct, operate, and
maintain its facilities and improvements in an orderly and workmanlike manner. The
safety of the general public, Licensee's employees and all property shall be of paramount
importance whenever or wherever Licensee operates on the Licensed Premises.
C. Permits. Prior to commencement of any work Licensee shall
secure and pay for all permits and government fees, licenses, and inspections necessary
for the proper construction, operation, and maintenance of Licensee's facilities and
improvements.
d. Storage of Hazardous Materials. Licensee shall not store
flammable, explosive, or other hazardous materials on the Property, and no materials
shall be piled higher than fifteen (1.5) feet above ground level.
e. Interference. Licensee's facilities and improvements shall be
constructed, operated, and maintained in a safe and proper manner so as not to endanger
the general public, interfere with the public's use and enjoyment of the Park, Trail and
Property, or interfere with any improvements on the Property.
f. Licensee's Personnel. Except as otherwise specifically authorized
in the Agreement, Employees of Licensee and its agents and contractors shall comply
with all regulations governing the use of the Trail and Property in effect as of the date of
the Agreement or enacted thereafter.
g. Vehicles. Licensee shall operate on the Property only vehicles and
equipment approved by the Authority. No vehicles or other equipment shall be operated
on any trail, whether paved or unpaved, unless prior written approval has been granted by
Authority.
h. Failure of Licensee to comply with any provision of subparagraphs
7a, b, c, d, e, f or g above shall be deemed to be a violation of this License Agreement
subjecting the Licensee to the liquidated damages provided for in paragraph 9 hereof and
to such other remedies as may be available to the Authority.
WarrantX
Licensee warrants that Licensee has inspected the Property and accepts it
in its present "as is" condition. The Authority makes no representation or warranties,
express or implied, concerning the condition of the Property and shall have no
14
responsibility for repairs and maintenance during the term of the Agreement.
Liquidated Damages
a. At the sole and absolute discretion of the Authority, if Licensee
fails to comply with ANY requirement of paragraphs 2a(1) or (2); 2b(1), (2) or (3); 2c;
2d(1), (2), (3), (4) or (5); 3a, b, c, d, e or f; 4d; 6; or 7a, b, c, d, e, f or g hereof, Licensee
shall, in place of actual damages, pay to the Authority, as fixed, agreed, and liquidated
damages for each day such failure to comply continues, the sum of Five Hundred Dollars
($500.00) (the "Liquidated Damages "); provided, however, that the Authority will not
assess Liquidated Damages for any violation beyond the control of the Licensee, its
employees, agents, contractors, invitees or representatives. Licensee shall pay any
Liquidated. Damages promptly upon receipt from the Authority of a written notice
assessing such damages.
b. The assessment of Liquidated Damages pursuant to this Paragraph,
(or the Authority's election not to assess Liquidated Damages), does not restrict the
Authority's power to terminate the Agreement or otherwise enforce its terms.
C. On the third anniversary of the Agreement and every three years
thereafter during the term of the Agreement, the Liquidated Damages shall be increased
by five percent (5 %).
10. Authority's Use of the PropertX
Nothing in the License Agreement shall be construed to prevent the
Authority from repairing, altering, relocating, or constructing existing and additional
Trails or other facilities on the Property. The Authority shall do such work, insofar as
practicable, in a manner not to obstruct, injure, or prevent the free use and operations of
Licensee's facilities and improvements. If any property of the Licensee shall interfere
with Authority's planned alteration, relocation, or construction, Licensee shall remove
such property at such time and in a manner as shall reasonably be directed by the
Authority so that such property shall not interfere with the work of the Authority. Such
removal or replacement of Licensee's property shall be at the expense of Licensee.
Authority agrees to cooperate with Licensee and to use its best efforts to accomplish any
alterations, relocations, or construction of the Trail and Property in a manner least
intrusive to the privileges of Licensee under this License Agreement.
11. Authority's and Licensee's Representatives
a. The Authority and Licensee shall each designate a representative
who shall have the duty to coordinate all aspects of Licensee's use of the Licensed
Premises and have the authority to render decisions and bind the parties upon matters
which necessitate input or decisions. Any change of a party's representative shall be
15
made in writing, and any such change shall not be effective until receipt of the writing by
the other party. The Authority hereby designates its Director of Planning and
Development as its representative.
b. The Authority's representative shall, at all times, have access to
Licensee's construction, operation, and maintenance work whenever and wherever it is in
preparation or progress.
12. Maintenance of Records
Licensee shall keep accurate maps and records, including the approved
as -built construction plans and specifications, of its facilities and improvements located
on the Property and shall make available to the Authority such maps and records when
requested.
13. Safety
a. Licensee shall take adequate precautions (i) to insure the safety of
the general public as well as Licensee's and Authority's employees, (ii) to protect the
Property, and (iii) to assure safe operation of Licensee's facilities and improvements
including, but not limited to, marking any temporary changes to the Trail and providing
snow fences and other barricades.
b. Whenever Licensee's facilities and improvements or related
construction, operation, or maintenance activities of Licensee create a serious hazard to
public safety or welfare, Licensee shall take all reasonable actions to abate immediately
the hazard and shall immediately notify the Authority and any other affected parties of
such incidents. The Authority shall have the right to direct Licensee to halt any
construction, operation, or maintenance activity for noncompliance with the provisions of
this Agreement or when the Authority believes it to be necessary to protect the public's
welfare or safety.
C. The Authority shall have the right, without notice to Licensee, to
correct any condition in case of an emergency.
14. Indemnification
Licensee agrees to be responsible, if in accordance with applicable law and
without waiving its grant of sovereign immunity, for the acts and negligence of its
officers, agents and employees which cause injury to persons or damage to property
provided that funds are available for such purposes. Notwithstanding the provisions of
this clause, Licensee shall not be liable for property damage or personal injuries caused
solely by the negligence or willful misconduct of the Authority.
16
15. No Waiver
Nothing contained in the Agreement shall be deemed to waive the
requirements of the various codes, regulations, resolutions and statutes regarding permits,
fees to be paid, or manner of construction, operation, or maintenance.
16. Assignment
No assignment, conveyance, apportionment, transfer or sublicense by
Licensee of the Agreement or any rights hereunder as to any other parties (other than to its
customers in the regular course of business) shall be made without the prior written consent
of the Authority, which consent may be given or withheld in the Authority's sole discretion.
17. Entire Agreement
The Agreement (and any exhibits hereto) embodies the entire agreement
between Authority and Licensee. It is not to be modified or terminated except as
provided herein or by any written agreements signed by the authorized representatives of
both parties. If any provision herein is invalid, it shall be considered deleted herefrom
and shall not invalidate the remaining provisions.
18. Attorney's Fees
In the even the Authority retains counsel to enforce its right or protect its
interests pursuant to the Agreement, whether or not any formal action is instituted, the
Licensee shall, in addition to and not in lieu of Liquidated Damages, be responsible for all
such fees and related costs incurred by the Authority.
19, Applicable Law
The parties agree that the laws of the Commonwealth of Virginia will govern
the License Agreement.
17
LICENSEE:
TOWN OF LEESBURG
By:_
Name: I . _-
Title: ... ....
Title: 41 P'),Czc� elf
AUTHORITY:
NORTHERN VIRGINWREGIONAL PARK AUTHORITY
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By: 77�-idc. L�'�- —
Name. Todd E. Haffi& i"
Title: Director of Planning and Development
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