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HomeMy WebLinkAboutResolution - 2011-R0311 - Refurbishing JI Allison House - 07_14_2011Resolution No. 2011—RO311 July 14, 2011 Item No. 6.5 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for and on behalf of the City of Lubbock, a License Agreement for the restoration and refurbishing of the JI Allison House, by and between the City of Lubbock and Civic Lubbock, Inc., and related documents. Said License Agreement is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council on July 14, 2011 TOM MARTIN, MAYOR ATTEST: Rebe a Garza, City Secretary APPROVED AS TO CONT T: yvl Scott Snider, Assistant City Manager Community Services APPROVED AS TO FORM: Chad Weaver, Assistant City Attorney vw:ccdocs/RES.Agreement-CLI, Inc. May 25, 2011 Resolution No. 2011—R0311 LICENSE AGREEMENT THIS License Agreement (the "Agreement") is entered into this 14th day of July, 2011, between the CITY OF LUBBOCK, TEXAS (the "City"), a Texas Home Rule Municipal Corporation, and Civic Lubbock Inc. ("CLI"), a Texas nonprofit corporation, acting by and through their respective and duly authorized officers and officials. RECITALS WHEREAS, CLI is a nonprofit corporation created by the City Council in 1956 to foster and promote educational, cultural and entertainment programs, to include the visual and performing arts, for the citizens of Lubbock and the surrounding area; with donations and grants from interested and caring citizens, organizations and charitable foundations; and WHEREAS, CLI desires to support the restoration and display of Allison's boyhood home ("Allison House"); and WHEREAS, it is the belief of the City and CLI that the Allison House will honor Buddy Holly and the Cricket's musical legacy, as an example of historic architecture, and serve as a tribute of the landmark where Buddy Holly and JI Allison wrote the hit song That'll Be the Day; and WHEREAS, CLI desires to restore and refurbish the Allison House, in substantial compliance with Exhibit "A", over and on that certain real property located in the parking lot of the Buddy Holly Center at 1801 Crickets Avenue and on that certain real property located near the Lubbock Power & Light Plant #2 and further described on Exhibit "B" and "B-1", attached hereto (the "Lands") ; and WHEREAS, for the promotion of cultural and historical purposes for the citizens of the City and visitors to Lubbock, CLI and the City now desire to enter into this Agreement. ARTICLE I License Section 1.01. License. In consideration of the mutual covenants and agreements of this Agreement, and of other good and valuable consideration, the City hereby grants upon the terms and conditions set forth in this Agreement, a license on and over the Lands to CLI, for the sole purpose of restoring and refurbishing the Allison House. The restoring and refurbishing of the Allison House in conformance with Exhibit "A" shall herein be referred to as the "Allison House Project". Section 1.02. Term. The term of this license is two years, beginning on the date of the execution of this Agreement by the parties, and ending on the second anniversary of such date or until such date the restoration of the Allison House is completed and accepted by City as set forth herein, whichever period is shorter (the "Primary Term"). Public Safety Memorial License Agreement Page 1 This Agreement will be automatically extended upon identical terms and conditions, for one (1) additional successive period of (1) year, unless either party notices the other of intent to terminate the Agreement sixty (60) days prior to the end of the Primary Term or any of the Optional Terms, as applicable, or as otherwise provided in this Agreement. This Agreement shall terminate without further notice when the Primary Term or Option Terms, whichever is applicable as specified in Section 1.02, expires, and CLI shall immediately vacate the Lands. Any holding over by CLI after the term expires, except as provided otherwise in this Agreement, shall not constitute a renewal of this Agreement, or provide CLI any rights whatsoever under this Agreement and/or to the Lands. It is expressly understood by the parties that the Allison House is currently the sole property of the City and that CLI does not have any right, title or interest in the Allison House. The license granted herein is exclusively to the Lands for a term set forth above and no ownership interest is being or has been conveyed to CLI in the Allison House or the Lands. The Allison House shall and does remain the sole property of the City. Section 1.03. Moving the Allison House. CLI shall be fully responsible for moving the Allison House to the Buddy Holly Center as shown on Exhibit "B" from its present location. CLI shall comply with all state and federal statutes, regulations, rules and orders and all City of Lubbock ordinances related, in any way, manner or form to the moving or relocation of buildings. CLI shall obtain all necessary permits as required under any local, state or federal law prior to moving the Allison House. ARTICLE II Improvements CLI shall restore and refurbish the Allison House in accordance with this Article and this Agreement and in compliance with all State and Federal laws, statutes and regulations and local ordinances. Section 2.01. Acquisition of Funds. CLI shall obtain, on or before August 1, 2011 (the "Fund Date"), sufficient funding (from any and all available sources), and submit proof of same to City, to restore and refurbish the Allison House, as described in this Agreement. In the event CLI is unable to obtain funding sufficient to restore and refurbish the Allison House in substantial compliance with Exhibit "A" in the time frame herein set forth, CLI may request an extension of time from the City, and the City may, in its discretion, allow additional time for funding the project. In the event CLI shall not acquire such funding, and submit proof of same to the City, within the Fund Date, or any extensions thereto, this Agreement shall automatically terminate without further action by City and CLI shall, upon same, immediately vacate the Lands. As stated herein, "sufficient funding" shall be no less than the total amount required to refurbish the Allison House as described herein. Section 2.02. Construction — Site Plan. On or before one (1) month after the Fund Date, CLI shall submit to the City a detailed Site Plan (herein so called), which shall detail all Public Safety Memorial License Agreement Page 2 aspects of the Allison House Project, including the general appearance of all permanent improvements thereon, including, but not limited to, buildings, exterior fencing, and landscaping. The Site Plan is attached hereto as Exhibit "C". The Site Plan is subject to review and approval by the City, and if required by law, any other entities. Any such entity, after consultation with CLI, may request any changes, amendments or corrections to the Site Plan. In the event the parties cannot mutually agree on such changes, such dispute may be appealed to the City Council of City. The City Council of City may direct whatever changes to the Site Plan it deems necessary or advisable. Section 2.03. Construction. CLI shall place and refurbish and restore upon the Lands, all structures as depicted in the Site Plan, on or before the end of the term of this agreement. However, if CLI is unable to complete construction within such time, CLI may apply for an extension of time from the City, and the City may, in its discretion, allow additional time for the Allison House Project. Section 2.04. Surety. Any and all contracts that CLI may enter into with third parties to facilitate the restoring and refurbishing and/or location of the Allison House or any activities contemplated by this Agreement shall contain the requirement that such third parties adequately bond their performance under said contract, naming the City as a co -beneficiary or co -secured. The original of said bonds are to be in a form approved by City prior to the commencement of any activities of any kind by such third parties. The City Manager of the City shall take action to approve or disapprove the bond within 15 days of submission. Section 2.05. Ownership of Improvements. Any and all improvements to the Allison House made by CLI during the term of this Agreement shall be considered part of the real property and remain property of the City, from and after the termination of this Agreement. Section 2.06. Approval of Project by City. The Allison House Project shall be deemed completed only upon inspection and approval by City. When CLI considers the Allison House Project complete, it shall notify the City in writing and City shall then conduct an inspection of the Allison House Project. If, after inspection, the City finds deficiencies or any issues with the Allison House Project, the City shall then submit a list of such deficiencies and/or issues to CLI. CLI shall then remedy all such deficiencies and/or issues with the Allison House Project within thirty (30) days. After completion of such remedies, CLI shall timely notify the City of completion and the City shall again timely conduct inspections of the Allison House Project. If after inspection, the City finds that the Allison House Project is complete and satisfactory to the City, the City shall notify CLI of the City's acceptance of the Allison House Project. The City's acceptance of the Allison House Project shall be within its sole discretion. All maintenance costs associated with the Allison House Project incurred subsequent to the City's acceptance of the Allison House Project will be borne by the City. Public Safety Memorial License Agreement Page 3 ARTICLE III Operations of CLI Section 3.01. Utilities. The City shall be responsible for providing, furnishing and connecting all utilities to the location as set forth in Exhibit "B" and any and all improvements located thereon and shall bear any and all expenses of any kind or nature for the providing of same to that location and the utilization of same in connection with the operation of the Allison House. Such utilities shall include, without limitation, water, sewer and electricity. Section 3.02. Prohibition of Encumbrance. CLI shall not encumber any interest in the license granted herein, the Lands, the Allison House, and/or this Agreement, in any way, manner or form, including, but not limited to, by deed of trust, mortgage or any other security instrument. Further, CLI shall not cause or permit any mechanic's liens or any other liens to be filed against the license granted herein, the Lands, the Allison House, and/or this Agreement by reason of any work, labor, services or materials supplied and/or performed or claimed to have been supplied and/or performed to, by or for CLI or any contractor or subcontractors of the CLI Section 3.03. Audit. CLI shall keep complete and accurate records, books and accounts according to generally accepted accounting principles, and the City shall have the right to examine and audit said records at any reasonable time. Section 3.04. Control of City. The City shall retain all authority placed in it which is non -delegable. No provision of this Agreement shall be construed as delegating any non - delegable right, power or duty of the City, and in the event of a conflict between this Section 3.04 and any other term or provision of this Agreement, this Section 3.04 shall control and such conflicting term or provision shall be void and of no force and effect. ARTICLE IV Operation Funds Section 4.01. Operation Funds. CLI shall at all times maintain adequate funding to complete the Allison House Project in accordance with the terms hereof. This Section shall be construed consistently with Section 2.01. ARTICLE V Insurance, Indemnity and Release Section 5.01. Indemnity and Release. CLI SHALL INDEMNIFY AND HOLD HARMLESS, TO THE FULLEST EXTENT PERMITTED BY LAW, THE CITY, AND CITY'S RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND/OR AGENTS FROM AND AGAINST ANY AND ALL LOSSES, DAMAGES, CLAIMS OR LIABILITIES, OF ANY KIND OR NATURE, WHICH ARISE DIRECTLY OR INDIRECTLY, OR ARE RELATED TO, IN ANY WAY, MANNER OR FORM, THE ACTIVITIES Public Safety Memorial License Agreement Page 4 CONTEMPLATED HEREUNDER, CLI' S OCCUPATION OF THE LANDS OR OTHER CITY OWNED LANDS, OR THE OMISSION OF THE ACTIVITIES CONTEMPLATED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, LOSSES, DAMAGES, CLAIMS OR LIABILITIES ARISING FROM OR RELATED TO, IN ANY WAY, MANNER OR FORM, THE ACT OR OMISSION OF THIRD PARTIES. CLI FURTHER COVENANTS AND AGREES TO DEFEND ANY SUITS OR ADMINISTRATIVE PROCEEDINGS BROUGHT AGAINST THE CITY AND/OR THE CITY'S RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND/OR AGENTS ON ACCOUNT OF ANY SUCH CLAIM, AND, WITHOUT LIMITING THE INDEMNITY PROVIDED HEREIN, TO PAY OR DISCHARGE THE FULL AMOUNT OR OBLIGATION OF ANY SUCH CLAIM INCURRED BY, ACCRUING TO, OR IMPOSED ON THE CITY, OR THE CITY'S RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND/OR AGENTS, AS APPLICABLE, RESULTING FROM ANY SUCH SUITS, CLAIMS, AND/OR ADMINISTRATIVE PROCEEDINGS OR ANY MATTERS RESULTING FROM THE SETTLEMENT OR RESOLUTION OF SAID SUITS, CLAIMS, AND/OR ADMINISTRATIVE PROCEEDINGS. THE INDEMNITY AND RELEASE PROVIDED HEREIN SHALL SURVIVE THE TERMINATION OR VOIDANCE OF THIS AGREEMENT. Section 5.02. Insurance. CLI shall procure and carry, at its cost and expense through the life of this Agreement, insurance protection as hereinafter specified, in form and substance satisfactory to the City, carried with an insurance company authorized to transact business in the State of Texas, covering all foreseeable aspects and operations in connection with this Agreement, including, but not limited to, all aspects, operations and/or occurrences to which CLI has indemnified the City, as provided herein and including the moving and relocation of the Allison House to the Buddy Holly Center location as set forth in Exhibit "B". A Certificate of Insurance specifying each and all coverages shall be submitted to the City prior to the initiation of the Allison House Project. CLI shall provide to the City proof of the below described insurance on or before fourteen (14) days prior to the expiration date of each expiring policy, and cause each required policy to require the insurer to (i) give notice to the City, as specified herein, of termination of any such policy sixty (60) days before such termination is to be effective; and (ii) contain a waiver of any and all of the insurer's rights to subrogation that any such insurer or insurers may acquire by virtue of payment of any loss under such insurance. A. Comprehensive General Liability Insurance. CLI shall have comprehensive general liability insurance, with limits of $1,000,000.00 combined single limit in the aggregate and per occurrence. The City shall be named as an additional insured in such policy. B. Owner's Protective or Contingent Public Liability Insurance and Property Damage Liability Insurance. CLI and/or its contractor(s) shall obtain an Owner's Protective or Contingent Public Liability Insurance policy in the amount of, for bodily injuries, including accidental death and/or property damage of $1,000,000.00 combined single limit. This insurance coverage shall include coverage against casualty or damage, including, but not limited to, damage caused Public Safety Memorial License Agreement Page 5 by fire and/or vandalism, to the Allison House located on the Lands, and shall name the City as an additional insured. C. Worker's Compensation Insurance. CLI, throughout the period described above, and all contractors hired by CLI to perform work at any site on the Lands, throughout the course of the job, shall maintain worker's compensation insurance coverage in accordance with the statutory requirements of the State of Texas. D. Builder's Risk Insurance. CLI and/or its contractor(s) shall have Builder's Risk Insurance in the amount of one hundred percent (100%) of the prices of each contract relating to the construction activities contemplated in Article II, above, and the insurance shall name the City as an additional insured. The insurance specified in 6.02 D does not have to be provided after completion of the construction of the Allison House Project. ARTICLE VI Warranties, Covenants and Representations of CLI Section 6.01. Existence. CLI is a non-profit corporation duly organized, validly existing and in good standing under the laws of the State of Texas, and is duly qualified to carry on its business in the State of Texas. Section 6.02. Power. CLI has the corporate power to enter into and perform this Agreement and all activities contemplated hereby. Section 6.03. Authorization. The execution, delivery and performance of this Agreement and the activities contemplated hereby have been duly and validly authorized by all requisite corporate action on the part of CLI ARTICLE VII Events of Default and Remedies Section 7.01. Default. A. Default of CLI An Event of Default (herein so called) shall exist if anyone or more of the following events shall occur: 1. Any representation or warranty made by CLI in this Agreement shall prove to be untrue or inaccurate in any material respect as of the date on which such representation or warranty is made; 2. CLI shall default, in any way, manner or form, in the performance of any of the covenants, provisions and/or terms of this Agreement; 3. CLI shall (i) apply for or consent to the appointment of a receiver, custodian, trustee, intervenor, or liquidator of itself or of all or a substantial part of its Public Safety Memorial License Agreement Page 6 assets, (ii) voluntarily become the subject of a bankruptcy, reorganization or insolvency proceeding or be insolvent or admit in writing that it is unable to pay its debts as they become due, (iii) file a petition or answer seeking reorganization or an arrangement with creditors or to take advantage of any bankruptcy or insolvency laws, (iv) become the subject of an order for relief under any bankruptcy, reorganization or insolvency proceedings, or (v) fail to pay any money judgment against it before the expiration of thirty (30) days after such judgment becomes final; or 4. CLI shall default in the payment of any material indebtedness of the Allison House Project. B. Default of City. An Event of Default (herein so called) shall exist if: 1. City shall default in the performance of any of the covenants, provisions and/or terms of this Agreement. Section 7.02. Remedies upon Event of Default. A. Remedies of City. If an Event of Default of CLI shall have occurred and be continuing, then the City, at its option may (i) declare this Agreement, and all rights and interest created by it, terminated; (ii) assert an action for any and all damages available to the City under this Agreement and/or pursuant to law or equity; and (iii) pursue and enforce any rights of the City as provided under this Agreement pursuant to any applicable law or equity, or otherwise. In the event the City elects to terminate this Agreement as provided herein, this Agreement shall cease as if the day of the City's election to terminate was the day originally fixed in this Agreement for its expiration. The remedies provided to the City by law, equity, this Agreement or otherwise are cumulative, to the extent permitted by law. The exercise by the City of the remedies provided herein shall not constitute an election of remedies, and the City, irrespective of its exercise of remedies as provided herein, or a portion thereof, shall be entitled to exercise, concurrently or otherwise, any and all remedies available to it by law, equity, this Agreement or otherwise. B. Remedies of CLI If an Event of Default of City shall have occurred and be continuing, then CLI may, as its sole and exclusive remedy, terminate this Agreement. ARTICLE VIII Miscellaneous Section 8.01. No Waiver. No failure to exercise, and no delay in the exercise on the part of the City, of any right hereunder shall operate as a waiver thereof, nor shall any single or Public Safety Memorial License Agreement Page 7 partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right. The rights of the City hereunder shall be in addition to all other rights provided by law. Section 8.02. Notice. Any notice required or permitted to be given herein must be given in writing and must be personally delivered, delivered by telephone facsimile, or mailed by prepaid certified or registered mail to the party to whom such notice or communication is directed at the address of such party as follows: CITY OF LUBBOCK: Lee Ann Dumbauld, City Manager P.O. Box 2000 Lubbock, Texas 79457 Telephone: 806-775-2001 Fax: 806-775.2051 Fax: 806-775-2051 CIVIC LUBBOCK INC. Civic Lubbock Inc. attn: William Lowell, Chair 1501 Mac Davis Lane Lubbock, Texas 79401 Telephone: 806-775-2242 Fax:806-775-3240 Any such notice or other communication shall deemed to have been given (whether actually received or not) on the date it is personally delivered or delivered by telephonic facsimile, or, if mailed, on the third day, after it is mailed as aforesaid. Any party may change its address for purposes of this Agreement by giving notice of such change to all other parties pursuant to this Section 9.02. Section 8.03. Assignment/Sublet. This license is personal to CLI. CLI shall not assign or sublet this license without the express written consent of the City. Any attempt to assign or sublet this license, without such consent, shall terminate the license granted herein. Section 8.04 City. Unless otherwise provided herein or required by law and/or local ordinance, charter or code, any action required or permitted to be taken by "the City", shall be taken by the City Manager of the City of Lubbock or any party designated by him or her. Section 8.05 Relationship to Parties. The relationship between the City and CLI is at all times solely that of license and licensee, and may not be deemed, in any event, a partnership or a joint venture. Section 8.06. Compliance with Applicable Law. CLI shall comply with all applicable federal, state and local rules, regulations, statues, laws and ordinances governing, in any way, manner or form the construction activities contemplated herein, the operation of the Allison House, the occupation of the Lands, and/or any other aspect of the activities described in or contemplated by this Agreement. Section 8.07. Time of the Essence. Time is of the essence of this Agreement. Section 8.08. Texas Law/Venue. This Agreement is to be construed under Texas law and applicable federal law, without regard to conflict of law rules that would direct application of the laws of any other jurisdiction, and all obligations of the parties created by this Agreement are Public Safety Memorial License Agreement Page 8 performable in Lubbock County, Texas. Venue for any action brought pursuant to this Agreement, or any activity contemplated hereby, shall lie exclusively in Lubbock County, Texas. Section 8.09. Partial Invalidity. Except as otherwise provided herein, if any one or more of the provisions contained in this Agreement are for any reason held to be invalid, illegal, or unenforceable in any respect, the invalidity, illegality, or unenforceablility will not affect any other provision of this Agreement, which shall be construed as if it had not included the invalid, illegal or unenforceable provision. Section 8.10. Agreements Superseded. This Agreement constitutes the parties' sole agreement and supersedes any prior understandings or written or oral agreements between the parties with respect to the subject matter hereof. Section 8.11. Amendment. No amendment, modification, or alteration of this Agreement is binding, unless in writing, dated subsequent to the date of this Agreement, and duly executed by the parties. Section 8.12. Attorney's Fees. If, as a result of either party's breaching this Agreement, the other party employs or uses an attorney or attorneys to enforce its rights under this Agreement, and prevails in such enforcement, then the breaching party shall pay the other party the reasonable attorney's fees and costs incurred to enforce this Agreement. Section 8.13. Exhibits. The Exhibits which are referenced in, and attached to this Agreement, are incorporated in and made a part of this Agreement for all purposes. Section 8.14. Captions. Section captions are for convenience only and shall in no way affect the interpretation of this Agreement. Section 8.15. License Agreement. The intent of this Agreement is to grant a license to CLI to utilize the Lands solely for the purposes described herein. This Agreement shall not be construed, in any way, manner or form, as a lease of the Lands or as conveying to CLI any interest in the real property comprising the Lands. Public Safety Memorial License Agreement Page 9 EXECUTED and effective as of the date first above written. CITY OF LUBBOCK, TEXAS CIVIC LUBBOCK, INC. ("C TOM ARTIN, MAYOR Title: ATTEST: Qglte_�� C--� — Reb ca Garza, City Secretary APPROVED AS TO CONT T: Vv1 Scott Snider, Assistant City Manager 4VJ0 1i ULX-VA,&A , Brooke Allison, Director of Municipal Museums APPROVED AS TO FORM: Chad Weaver, Assistant City Attorney vw;CityAtt/Chad/Contracts-Agreements/Uase Agreement-CLI May Is. 2011 Public Safety Memorial License Agreement Page 10 Resolution No. 2011-RO311 Exhibit A Renovations for Allison House — completion time of twelve (12) months Exterior • Power wash, repair, replace, and paint siding • Remove shingles, repair and/or remove decking material and install new shingles • Replace front porch and garage unit Interior • Remove hardwood flooring and install new wood floor system • Repair/replace floor joist system • Remove existing gypsum board, replace with new • Plaster, tape and bed, paint wall surfaces • Install wall paper in specific areas • Replace trim work to match existing • Install new kitchen cabinets and counter tops • Repair existing electrical system to make operable • Install new fixtures where required • Install new electric heating/cooling system • Installation of new electrical service in garage to provide service to newly added items • Replace faucets and finish out fixtures as necessary • Installation of mop sink and water heater for maintenance purposes • Repair all windows to be functional • Repair all existing doors, porch supports and rails • Install ADA accessible requirements for public access • Install exterior fencing and gates • Install concrete footing foundation for structure, concrete sidewalks as needed • Install new garage door + ! } �. Y.�."� •;,yam.. r .! / • �y { �. .._ " CIF. } x ��_ r -• . CRICKET AVE� �+�';... ran•.-", ,�;: 1' ". r J'' �✓ �_ _. __. I { r 1 [� � � lit. • ' r !r r- . �.,� � �. A ' . �+ � 'r - wood I ue it + y ` u A 1 Ir ' AVE F • , -IT.`.', �?I y; •�.'`.�i'-'.1 _ +^•_Swl•�:_'P.':�.•�:� �. •...fl:itu=::K i No Text 18th Street .. _ - �. .•may �"_�-_ - - .. . i •vw.� Wr y Lt—.I u n W 2 W I { LL 7 G Q k ' k f Resolution No. 2011—R0311 CEDAR ELM LIGUSTRUM ARBORVITAE