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HomeMy WebLinkAboutResolution - 2015-R0435 - Deed Without Warranty - College Baseball Foundation - College Baseball HOF - 12/17/2015Resolution No. 2015-RO435 Item No. 5.13 December 17, 2015 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock a Deed Without Warranty transferring 7.86 acres located at 1502 Mac Davis Lane, Lubbock, to the College Baseball Foundation for the public purpose of construction and operation of the National College Baseball Hall of Fame. Said Deed Without Warranty is attached hereto and incorporated in this Resolution as if fully set forth herein and shall be included in the minutes of the Council. Passed by the City Council on December 17, 2015 '2015 GL C. koT3EKTSON, MAYOR ATTEST: Re ecca Gazza, City Secret )VED AS TO, ONTE Loomis, City Manager APPROVED AS TO FORM: Linda L. Chamales, Economic Development Attorney Le: cilya[Mmda/Res- CBF Deed December 1, 2015 Resolution No. 2015-RO435 DEED WITHOUT WARRANTY DATE: GRANTOR: City of Lubbock, Texas P.O. Box 2000 Lubbock, TX 79457 GRANTEE: College Baseball Foundation GRANTEE'S MAILING ADDRESS 2524 82nd Street Lubbock, Texas 79423-2250 CONSIDERATION: Grantor and Grantee expressly stipulate that Grantee shall utilize the Property solely in a manner that promotes a public purpose of the Grantor. Grantor and Grantee stipulate that the consideration of public purpose use by Grantee is the sole consideration to be received by Grantor for the conveyance of the Property by Grantor and that such consideration is sufficient in all respects. PROPERTY (INCLUDING ANY IMPROVEMENTS): The Property Description is attached as Exhibit "A" The Property is conveyed to Grantee, and Grantee's successors and assigns for so long as the Property is used to promote a public purpose of the Grantor. If the Property ceases to be so used, all rights, title, and interest conveyed by this instrument shall automatically revert to and vest in Grantor, and Grantor's successors and assigns, without the necessity of any further act on the part of or on behalf of the Grantor, it being the Deed Without Warranty intent of Grantor to convey a fee simple determinable estate to the Grantee. For the purposes hereof, "public purpose" of the Grantor shall mean a College Baseball Hall of Fame Museum. REPRESENTATIONS AND WARRANTIES OF GRANTEE: Grantee warrants and represents that it is a non-profit organization, as that term is defined in the Texas Local Government Code Section 253.011(a). Grantee represents and warrants to Grantor that it has made an independent inspection and evaluation of the Property and the title to same and acknowledges that Grantor has made no statements or representations concerning the present or future value of the Property, the state of title of the Property, the condition, including the environmental condition of the Property, or the anticipated income, costs, or profits, if any, to be derived from the Property. FURTHER, GRANTOR MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESSED, STATUTORY, OR IMPLIED, INCLUDING, BUT WITHOUT LIMITATION, AS TO THE DESCRIPTION, TITLE, INCLUDING WITHOUT LIMITATION, THE EXISTENCE OF LIENS AGAINST THE PROPERTY, THE VALUE, QUALITY, PHYSICAL AND ENVIRONMENTAL CONDITION OF THE PROPERTY AND/OR MATERIALS CONTAINED OR LOCATED IN, ON OR UNDER THE PROPERTY AND/OR IMPROVEMENTS LOCATED THEREON, THE NATURE OF THE PAST OR HISTORIC USE OF THE PROPERTY, MERCHANTABILITY OR FITNESS FOR PURPOSE OF ANY OF THE PROPERTY. Grantee further acknowledges that, in accepting this Deed Without Warranty, it has relied solely upon its independent evaluation and examination of the Deed Without Warranty 2 Property, and public records relating to the Property and the independent estimates, computations, evaluations and studies based thereon. Grantor makes no warranty or representation as to the accuracy, completeness or usefulness of any information furnished to Grantee, if any, whether furnished by Grantor or any other third party. Grantor, its officers, employees, elected officials, independent contractors, and agents assume no liability for the accuracy, completeness or usefulness of any material furnished by Grantor, or any of its officers, employees, elected officials, independent contractors and/or agents, if any, and/or any other person or party. Reliance on any material so furnished shall not give rise to any cause, claim or action against Grantor, its officers, employees, elected officials, independent contractors and/or agents, and any such reliance shall be at Grantee's sole risk. THE CONVEYANCE OF THE PROPERTY SHALL BE ON A "WHERE IS", "AS IS", AND "WITH ALL FAULTS" BASIS, AND SHALL BE WITHOUT REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESSED, STATUTORY OR IMPLIED, INCLUDING, BUT WITHOUT LIMITATION, AS TO TITLE, INCLUDING, BUT NOT LIMITED TO THE EXISTENCE OF LIENS AGAINST THE PROPERTY, THE DESCRIPTION, PHYSICAL AND ENVIRONMENTAL CONDITION OF THE PROPERTY AND/OR MATERIALS CONTAINED OR LOCATED IN, ON OR UNDER THE PROPERTY AND/OR IMPROVEMENTS LOCATED THEREON, THE NATURE OF THE PAST OR HISTORIC USE OF THE PROPERTY, QUALITY, VALUE, FITNESS FOR PURPOSE, MERCHANTABILITY OR OTHERWISE. Grantee has satisfied itself as to Deed Without Warranty 3 the title, type, condition, quality and extent of the property and property interests which comprise the Property it is receiving pursuant to this Deed Without Warranty. Grantor, for the consideration and subject to the reservations and exceptions to conveyance, grants, sells, and conveys to Grantee the Property, to have and to hold it to Grantee and Grantee's successors and assigns forever, without warranty, express or implied, statutory or otherwise, and all warranties that might arise by common law and the warranties created by Section 5.023 of the Texas Property Code (and all amendments and successors thereto) are expressly excluded. EXECUTED THIS l7th DAY OF December 2015. GRANTOR: CITY OF LUBBOCK GLE 1K. KOBERTSON, MAYOR ATTEST: Re ecca Garzas, City Secreta y APJT,OVED AS, TO C_WENT: ead4 Loomis, City Manager APPROVED AS TO FORM: Linda L. Chamales, Economic Development Attorney Deed Without Warranty 4 State of Texas County of Lubbock § This instrument was acknowledged before me on this L�Pday o�, 2015 by Glen C. Robertson, as Mayor of the City of Lubbock. o".- 0W DErj "'I,',, F * iZcn� ¢ne 9 'FOf� Deed Without Warranty LIJ�A4h'cju� No y Public, State of Texas M commission expires: GRANTEE: College Baseball Foundation at 4j,-- — By: Mike Gustafson Title: President/CEO HUGO REED AND ASSOCIATES, INC. 1601 AVENUE N I LUBBOCK. TEXAS 79401 18061763-5642 1 FAX 8061767-3991 TEXAS REGISTERED ENGINEERING FIRM F-760 �IQ� TEXAS LICENSED SURVEYING FIRM 100676.00 METES AND BOUNDS DESCRIPTION of a 7.861 acre tract of land, being a portion of Lot 1, Block 1, Memorial Center Addition to the City of Lubbock, Lubbock County, Texas, according to the map, plat and/or dedication deed thereof recorded in Volume 1349, Page 521 of the Deed Records of Lubbock County, Texas (DRLCT), being further described as follows: BEGINNING at a 1/2" iron rod with cap found in the North right-of-way line of Mac Davis Lane as dedicated by plat recorded in Volume 5, Page 384, DRLCT, and the East right-of-way line of Avenue '0" as dedicated by plat recorded in Volume 1349, Page 521, DRLCT, same being the original most Southerly Southwest comer of said Lot 1 and the most Southerly Southwest corner of this tract; THENCE Northwesterly, along said East right-of-way line, along a curve to the right, said curve having a radius of 25.00 feet, a central angle of 117°15'50", tangent lengths of 41.01 feet, a chord distance of 42.69 feet and a chord bearing of N. 29040' 52" W. to a 1/2" iron rod with cap found at a point of reverse curvature, at the most Westerly Southwest comer of this tract; THENCE Northeasterly, continuing along said East right-of-way line, along a curve to the left, said curve having a radius of 488.00 feet, a central angle of 27°15'50", tangent lengths of 118.35 feet, a chord distance of 230.03 feet and a chord bearing of N. 15°19'09" E. to a 1/2" iron rod with cap found at a point of tangency; THENCE N. 01 °41'14" E., continuing along said East right-of-way line, a distance of 352.08 feet to a 1/2" iron rod with cap found in the South right-of-way line of Marsha Sharp Freeway as described in Volume 7235, Page 120 of the Official Public Records of Lubbock County Texas, at the most Westerly Northwest comer of this tract; THENCE N. 51 °46'45" E., along said South right-of-way line, a distance of 52.43 feet to a 1/2" iron rod with cap found at a point of intersection, at the most Northerly Northwest comer of this tract; THENCE Southeasterly, continuing along said South right-of-way line, along a curve to the left, said curve having a radius of 1362.77 feet, a central angle of 06°09'49", tangent lengths of 73.37 feet, a chord distance of 146.53 feel and a chord bearing of S. 85°05'37" E. to a 1/2" iron rod with cap found at a point of tangency; THENCE S. 88°10'31' E., continuing along said South right-of-way line, a distance of 405.49 feet to a 1/2" iron rod with cap found at the Northeast corner of this tract; THENCE S. 01*41'14" W. a distance of 481.34 feet to a 1/2" iron rod with cap set for the most Easterly Southeast comer of this tract; THENCE N. 88°18'46" W. a distance of 84.07 feet to a "MAG" nail with washer set for a point of curvature; THENCE Southwesterly, along a curve to the left, said curve having a radius of 277.56 feet, a central angle of 63°50'14", tangent lengths of 172.89 feet, a chord distance of 293.50 feet and a chord bearing of S. 59°46'07" W. to an "X" cut in concrete set in the North right-of-way line of said Mac Davis Lane, for the most Southerly Southeast comer of this tract; THENCE N. 88°18'46" W., along said North right-of-way line, a distance of 290.80 feet to the Point of Beginning. Contains 7.861 acres Surveyed on the ground November 30, 2015 Brent Carroll Registered Professional Land Surveyor No. 5410 State of Texas PROPOSED LOT 1-A, BLOCK 1 MEMORIAL CENTER ADDITION TO THE CITY OF LUBBOCK, LUBBOCK COUNTY. TEXAS I J Q MARSHA SHARP _ _ _!y e _ _ .On1ifi3Y_ _ _�•afl5Yh5%i--- -518'IOHfE- - � Rtaro3Eo LOT 1-q �M 1 7.861 ACRES FREEWAY 9 8 •r r.' ca•ss9•oaorx u.or � -_ j.� NBB'16aaY2 a•'2' c n�' 8 a•` t g 9% 6111•1lYY KI Of - OIm269 Pry • 290 PO .. _ ___ .. -. di, _. .�. „ ....,. :MAC DAWSLANE 0Pound 7? Iron loo w cap al Fond lz 11011 m oSel 10 lion loo With ap '-Sal nailw mMer ]Sel cross cut On ..to F O Z Not to Scale SECOND AMENDMENT TO COMMITMENT AGREEMENT This SECOND AMENDMENT TO COMMITMENT AGREEMENT ("SECOND AMENDMENT") is made and entered into by and between the City of Lubbock, (the "CITY"), a Texas municipal corporation, and the College Baseball Foundation ("the CBF"), a Texas nonprofit organization, acting by and through their respective and duly authorized officers and officials. WITNESSETH: WHEREAS, the CITY and CBF entered into a Commitment Agreement June 24, 2010, authorized by City of Lubbock Resolution No. 2010-RO300 (the "COMMITMENT AGREEMENT"), for the transfer of a portion of City -owned property across from the Civic Center in Lubbock, Texas, consisting of approximately five (5) acres, bounded by the Marsha Sharp Freeway on the North, Avenue O on the West, and Mac Davis Lane on the South which includes the grassy area facing Mac Davis Lane excluding the parking lot, the area containing the Civic Center Power Plant, and the road surrounding the Power Plant, for the purpose of building The National College Baseball Hall of Fame; and WHEREAS, the CITY and CBF amended the terms of the COMMITMENT AGREEMENT to increase the real property transferred to include the parking lot facing Mac Davis Lane in order to provide parking for the new facility, on September 10, 2015 by Resolution No. 2015-R0308; and WHEREAS, CBF has provided a new property description and survey for the property described in Resolution No. 2015-RO308 which should be incorporated into the COMMITMENT AGREEMENT; WHEREAS, the CITY and CBF now desire to make a SECOND AMENDMENT extending the date before which construction must begin; NOW, THEREFORE, the CITY and CBF agree to the following terms in this SECOND AMENDMENT: 1. Exhibit "A," containing the real property description is hereby deleted and replaced by the attached Exhibit "A." 2. Exhibit "C" entitled "SURVEY" is hereby deleted and replaced by the attached Exhibit 11C.11 3. That the termination date in the Recitals, in Article III, paragraph 3.2, and in Article IV, paragraphs 4.1 and 4.3 shall be extended ninety days from December 31, 2015 to April 1, 2016, during which time representatives of the College Baseball Foundation will be granted access to the property under a license agreement with the City negotiated with the City Attorney and approved by the City Manager. Second Amendment to CITY/CBF Commitment Agreement Page I I move that the City Council authorizes the Mayor to execute a deed without warranty transferring 7.86 acres located at 1502 Mac Davis Lane to the College Baseball Foundation for the public purpose of construction and operation of the National College Baseball Hall of Fame on the following conditions: 1. That prior to executing the deed, the Mayor shall execute an amendment to the Commitment Agreement that authorizes the transfer of the deed to include the following terms: (a) That the termination date shall be extended ninety days from December 31, 2015 to April 1, 2016, during which time representatives of the College Baseball Foundation will be granted access to the property under a license agreement with the City negotiated with the City Attorney and approved by the City Manager. (b) That the April 1 deadline may be extended an additional nine months if by March 30, 2016, the College Baseball Foundation has provided the City Manager with the following documentation: (i) The total cost of the completed project including the museum, the event center, and the baseball field; (ii) A projected timeline with fund raising milestones for the total project cost; (iii) Copies of architectural and engineering drawings for the completed project; and (iv) A projected construction timeline. 2. That upon compliance with the terms of the Commitment Agreement as amended, the Mayor may sign the deed 3. That this authorization for execution will only be availaW@-through December 31, 2016 4. That the April 1, 2016 deadline extension provided in Term 3 above may be extended an additional nine months to December 31, 2016, if by March 30, 2016, the College Baseball Foundation has provided the City Manager with the following documentation: a. The total cost of the completed project including the museum, the event center, and the baseball field; b. A projected timeline with fund raising milestones for the total project cost; c. Copies of architectural and engineering drawings for the completed project; and d. A projected construction timeline. 5. That upon compliance with the terms of the Commitment Agreement as amended, the Mayor may sign the Deed. This authorization for execution will only be available through December 31, 2016. Approved by City Council December 17, 2015. Executed on Afvuq,2016 CITY OF LUBBOCK ATTEST: R eeca Garza, City gaary AP OVED;O ONTENT:wool Loomis, City Manager Second Amendment to CITY/CBF Commitment Agreement Page 2 COLLEGE BASEBALL FOUNDATION aL.A-y-- Dr. Mike Gustafson, President/CEO APPROVED AS TO FORM: Justin Pruitt, s tat t C ty Attmey cityatt— Justin — Contracts & Amendments — 2016— CBF— Second Amendment January 4, 2016 Second Amendment to CITY/CBF Commitment Agreement Page 3 'im- UI O m O N N 0 HUGO REED AND ASSOCIATES, INC. 1601 AVENUE N I LUBBOCK, TEXAS 79401 10061763-36421 FAX 8061763-3891 TEXAS REGISTERED ENGINEERING FIRM F-760 ' TEXAS LICENSED SURVEYING FIRM 100676-00 LAND SURVEYORS CIVIL ENGINEERS METES AND BOUNDS DESCRIPTION of a 7.861 acre tract of land, being a portion of Lot 1, Block 1, Memorial Center Addition to the City of Lubbock, Lubbock County, Texas, according to the map, plat and/or dedication deed thereof recorded In Volume 1349, Page 521 of the Deed Records of Lubbock County. Texas (DRLCT), being further described as follows: BEGINNING at a 1/2" iron rod with cap found in the North right-of-way line of Mac Davis Lane as dedicated by plat recorded in Volume 5, Page 384, DRLCT, and the East right-of-way line of Avenue "0" as dedicated by plat recorded in Volume 1349, Page 521, DRLCT, same being the original most Southerly Southwest corner of said Lot 1 and the most Southerly Southwest corner of this tract; THENCE Northwesterly, along said East right-of-way line, along a curve to the right, said curve having a radius of 25.00 feet, a central angle of 117"15'50", tangent lengths of 41.01 feet, a chord distance of 42.69 feet and a chord bearing of N. 29'40'52" W. to a 1/2" iron rod with cap found at a point of reverse curvature, at the most Westerly Southwest corner of this tract; THENCE Northeasterly, continuing along said East right-of-way line, along a curve to the left, said curve having a radius of 488.00 feet, a central angle of 27015'50", tangent lengths of 118.35 feet, a chord distance of 230.03 feet and a chord bearing of N. 15019'09" E. to a 1/2" Iron rod with cap found at a point of tangency; THENCE N. 01 °41'14" E., continuing along said East right-of-way line, a distance of 352.06 feet to a 1/2" iron rod with cap found in the South right-of-way line of Marsha Sharp Freeway as described in Volume 7235, Page 120 of the Official Public Records of Lubbock County Texas, at the most Westerly Northwest comer of this tract; THENCE N. 51'46'45" E., along said South right-of-way line, a distance of 52.43 feet to a 12' iron rod with cap found at a point of intersection, at the most Northerly Northwest comer of this tract; THENCE Southeasterly, continuing along said South right-of-way line, along a curve to the left, said curve having a radius of 1362.77 feet, a central angle of 06"0949", tangent lengths of 73.37 feet, a chord distance of 146.53 feet and a chord bearing of S. 85"05'37" E. to a 1/2" iron rod with cap found at a point of tangency; THENCE S. 88°1031" E., continuing along said South right-of-way line, a distance of 405.49 feet to a 1/2" iron rod with cap found at the Northeast comer of this tract; THENCE S. 01 *41'14"W. a distance of 481.34 feet to a 12" iron rod with cap set for the most Easterly Southeast comer of this tract; THENCE N. 88018'46" W. a distance of 84.07 feet to a "MAG" nail with washer set for a point of curvature; THENCE Southwesterly, along a curve to the left, said curve having a radius of 277.56 feet, a central angle of 63"50'14", tangent lengths of 172.89 feet, a chord distance of 293.50 feet and a chord bearing of S. 59046'07"W. to an "X" cut In concrete set in the North right-of-way line of said Mac Davis Lane, for the most Southerly Southeast comer of this tract; THENCE N. 88"18'46" W., along said North right-of-way line, a distance of 290.80 feel to the Point of Beginning. Contains 7.861 acres Surveyed on the ground November 30, 2015 Brent Carroll Registered Professional Land Surveyor No. 5410 State of Texas PROPOSED LOT 1-A, BLOCK 1 MEMORIAL CENTER ADDITION TO THE CITY OF LUBBOCK. LUBBOCK COUNTY, TEXAS 0 -FowA JW im to, with oop S -Found Irr I= = -SWl?bannodw Cap --Sot rotes washer 9 -Sot =58 cut on cod t. Not W Scak HUGO REED AND ASSOCIATES, INC. MARSHA SHARP FFEEWA Y -------------- it LOT 8L(Xt( I 7.861 ACRES yl s 71 t. m, ...-AfAC DA LAIVE 0 -FowA JW im to, with oop S -Found Irr I= = -SWl?bannodw Cap --Sot rotes washer 9 -Sot =58 cut on cod t. Not W Scak HUGO REED AND ASSOCIATES, INC. CITY OF LUBBOCY, TEXAS LICENSE AGREEMENT FOR USE BY THE NATIONAL COLLEGE BASEBALL HALL OF FAME This license agreement (the "License") is between the City of Lubbock, Texas, a Texas municipal corporation (the "City"), and the National College Baseball Hall of Fame, a Texas nonprofit organization (the "CBHOF"), on the following terms and conditions: WHEREAS City is the owner of the following described real property (the "Property"): The land, appurtenances, fixtures, and any and all equipment located on that undeveloped portion of Lot 1, Block 1, Lubbock Memorial Civic Center Addition in the City of Lubbock, Lubbock County, Texas generally bordered by 4" Street on the north (excluding the Physical Plant property bordered by the north curb line of the Plant's driveway), Avenue O on the west, Mac Davis Lane on the south, and the Buddy Holly Hall of Performing Arts on the east. WHEREAS CBHOF desires to exercise certain privileges upon the Property. NOW, THEREFORE, it is mutually agreed by and between City and CBHOF as follows: I. LICENSE CBHOF is hereby granted a non-exclusive license to use the Property to conduct preliminary construction activities including, but not limited to, surveying and soil sampling. H. TERM The term of this License shall be effective beginning on the date that it is executed by all parties and continuing through March 31, 2016 (the "Term"). Thereafter, any extension of this License must be approved in writing and by a resolution adopted by the Lubbock City Council. III. CONSIDERATION In consideration of the mutual covenants herein contained, and other good and valuable consideration, the parties enter into this License. IV. LIMITATIONS ON USE AND OCCUPATION OF PROPERTY CBHOF or CBHOF's agents, representatives, contractors, and personnel, in the course of performing under this License, shall NOT: a. engage in disorderly conduct; b. use the Property in a way other than is reasonably necessary to perform the purposes of this License; c. allow anyone not associated with CBHOF or CBHOF's agents, representatives, contractors, and personnel, to come onto the Property, without prior approval of the parties hereto; d. commit or permit any act or acts in or on the Property or in any manner that will create liability or that will cause a cancellation of any insurance policy covering the Property, CBHOF, or CBHOF's agents, representatives, contractors, and personnel; Page I e. keep, leave, store or use personal property or permit any such product or article to be kept, held, stored, used, or sold in or on the Property unless approved in writing by the City; f. maintain, commit, or permit the maintenance or commission of any nuisance on the Property; g. use the Property for any unlawful purpose; h. permit anything to be done in or about the Property that will in any way conflict with any law, ordinance, rule, or regulation affecting the occupancy and use of the Property, that has been or may be enacted or promulgated by any public authority; i. commit, or cause to be committed, any waste on the Property; j. obstruct or interfere with the rights of City's employees, or injure or annoy them; or k. allow the premises to be used for any improper, immoral, unlawful, or objectionable purpose. Any prohibited action taken by CBHOF or CBHOF's agents, representatives, contractors, and personnel shall be a breach of this agreement justifying immediate termination of this License by City. V. NOTICE Whenever notice from CBHOF to City or City to CBHOF is required in writing by this License, and method of notice by electronic mail is not requested or preferred, such written notice shall be given by (1) actual delivery of the written notice to the other party by hand, (2) facsimile, or other reasonable means (in which case such notice shall be effective upon delivery), or (3) by depositing the written notice in the United States mail, properly addressed to the other party at the address provided in this article, registered or certified mail, return receipt requested, in which case such notice shall be effective on the third business day after such notice is so deposited. CBHOF Dr. Mike Gustafson — Executive Director 2524 82nd Street Lubbock, Texas 79423 806.749.2233 gusi VIII. CITY'S DUTIES City will maintain the leased Property and CBHOF will make all repairs to the leased Property occasioned by its use of the Property, whether such use is intentional or negligent, willful, wanton, grossly negligent or reckless, and except as City and CBHOF may have expressly agreed otherwise in this license. IX. CBHOF'S DUTIES CBHOF or CBHOF's agents, representatives, contractors, and personnel shall, with regard to the Property: a. repair any and all damage to the Property caused as a result of CBHOF's or CBHOF's agents', representatives', contractors', or personnel's actions and arrange for immediate repairs at a mutually agreed time; b. assure CBHOF or CBHOF's agents, representatives, contractors, and personnel keep the Property clean, sanitary, and free from all accumulations of debris; c. dispose from the Property all debris and garbage in a clean and sanitary manner; d. properly use and operate any electrical, gas, and plumbing fixtures as needed that may be located on the Property and keep them as clean and sanitary as their condition permits; and, e. deny any person on the premises with CBHOF's or CBHOF's agents', representatives', contractors', or personnel's permission that CBHOF reasonably believes might willfully or wantonly destroy, damage, or remove any part of the Property or the facilities, equipment, or appurtenances. CBHOF or CBHOF's agents, representatives, contractors, and personnel shall, with regard to its activities on the Property: a. Coordinate with City staff to ensure no City activity on the Property is interrupted by CBHOF's or CBHOF's agents', representatives', contractors', or personnel's action under this License; b. assure observance of the City's written policies and procedures; c. assure the City that CBHOF and CBHOF's agents, representatives, contractors, and personnel are covered by City -approved liability insurance for the Term of the License and provide to the City Secretary and the City's Risk Management Department a certificate of such coverage; d. assure the City that CBHOF and CBHOF's agents, representatives, contractors, and personnel have signed the release attached and incorporated by reference as Exhibit "A" prior to entering the Property and provide to the City Secretary a copy of the release; and, e. provide certificates of insurance and/or coverage against claims for personal injury, death or property damage occurring in connection with acts or omissions of CBHOF or CBHOF's agents, representatives, contractors, and personnel while engaging in any activity on the Property. Such insurance requirements cannot be waived and shall be no less than: i. General liability at $500,000; ii. Auto Liability at $500,000; and iii. Workers Compensation Coverage at the statutory limits. Page 3 All insurance or coverage required under this Agreement shall include a waiver of subrogation in favor of the City, and shall not be subject to cancellation or reduction of coverage or other modifications during the Term of this License. Additionally, the City shall be included as an additional insured on a primary & non-contributory basis for the General Liability and Auto Liability, with waivers of subrogation on all coverages. For any activity planned on the Property that is authorized under this License, CBHOF shall: a. provide a list to the City of the approximate number of CBHOF's agents, representatives, contractors, or personnel that will be using the Property and the dates involved; b. ensure that CBHOF's agents, representatives, contractors, and personnel adhere to clear channels of administration for the use of the Property; c. require that any CBHOF's agents, representatives, contractors, or personnel withdraw from any activity associated with the Property whose conduct or training performance may have a detrimental effect on the City's staff or Property; d. require that any CBHOF's agents, representatives, contractors, or personnel withdraw from any activity associated with the Property who has failed to have the requisite insurance throughout the Term of this License; and, e. replace all City goods and supplies used while on the Property. X. MUTUAL DUTIES City and CBHOF will jointly resolve any matter wherein the City desires to summarily exclude from the Property any person who is deemed undesirable or is deemed dangerous or disruptive to City's employees or property. The provisions of this section notwithstanding, in all other matters which are the subject of this License, the parties hereto hereby expressly state that it is their intent that each party shall maintain separate and distinct control over its duties under this License. XI. DEFAULT AND TERMINATION Should CBHOF or CBHOF's agents, representatives, contractors, or personnel default in the performance of any provision of this License, and not correct the default within ten (10) days after notice of the default, the City may declare this License, and all rights and privileges and interests created by it, to be terminated. Upon City's electing to terminate, this License shall cease and come to an end as if the day of City's election were the day originally fixed in this License for its expiration, provided that, should CBHOF or CBHOF's agents, representatives, contractors, or personnel cure all defaults within the ten (10) day notice, this License shall not be canceled. The City may, in its discretion, allow CBHOF or CBHOF's agents, representatives, contractors, or personnel more than ten (10) days to cure defaults, if such time is, in the opinion of the City, reasonably necessary or shortened where stated herein. XII. NONDISCRIMINATION CBHOF for itself, its agents, representatives, contractors, and personnel, as a part of the consideration hereof, does hereby agree that no person on the grounds of race, color, national origin, or disability shall be excluded from participation in, denied the benefit of, or be otherwise subjected to discrimination in the use of the Property. Page 4 XIII. TORT ACTION IMMUNITY CBHOF hereby waives all claims, releases, indemnifies and holds harmless the City of Lubbock, Texas, its agents, representatives, elected officials, and employees, in both their public and private capacities, from any and all liability, claims, suits, demands or causes of action which may arise as a direct result of the use of the Property by CBHOF or CBHOF's agents, representatives, contractors, or personnel. It is the express intention of the parties hereto that the indemnity provided for in this paragraph is not indemnification by CBHOF of the City of Lubbock from the consequences of the City of Lubbock's own acts. It is further understood and agreed that CBHOF and CBHOF's agents, representatives, contractors, or personnel are not employees of the City, and are not entitled to any City benefits, such as those covered by the Workmen's Compensation Act. XIV. IMMUNITY It is expressly understood and agreed that, in the execution of this License, the City does not waive, nor shall be deemed hereby to waive, any immunity or defense that would otherwise be available to it against claims arising in the exercise of its governmental powers and functions. XV. ENTIRE AGREEMENT This License embodies the complete agreement of the parties hereto, superseding all oral or written previous and contemporary agreements between the parties relating to matters herein and, except as otherwise provided herein, cannot be modified without written agreement of the parties. XVI. VENUE The parties to this License agree and covenant that this License will be enforceable in Lubbock County, Texas; and that if legal action is necessary to enforce this License, exclusive venue will lie in Lubbock County, Texas. XVII. SEVERABILITY If any of the terms, sections, subsections, sentences, clauses, phrases, provisions, covenants, conditions or any other part of this License are for any reason held to be invalid, void or unenforceable, the remainder of the terms, sections, subsections, sentences, clauses, phrases, provisions, covenants, conditions or any other part of this License shall remain in full force and effect and shall in no way be affected, impaired or invalidated. XVIII. APPLICABLE LAW This License is entered into subject to the City Charter and Ordinances of the City of Lubbock as they may be amended from time to time and is subject to and is to be construed, governed, and enforced under all applicable State of Texas and Federal law. Situs of this License is agreed to be Lubbock County, Texas, for all purposes including performance and execution. XIX. NON -WAIVER It is further agreed that one or more instances of forbearance by the parties hereto in the exercise of their rights herein, shall in no way constitute a waiver of any such rights. Page 5 XX. JOINT VENTURE It is the intent of the parties hereto that nothing herein shall be construed to create a joint venture between the City of Lubbock and CBHOF or CBHOF's agents, representatives, contractors, or personnel. XXI. MODIFICATION AND SUPPLEMENTATION This License may be modified or supplemented at any time by advance mutual written consent. IN WITNESS WHEREOF, the parties hereto have caused this License to be executed by: CITY OF LUBBOCK, TEXAS: G . RO E TSON, MAYOR - .�r.+r 1kWJW*1 ATTEST- Reb ca Garza, City Secretar APPROVED AS TO CONTENT Scott Snider, Assistant City Attorney APPROVED AS TO FORM: A Justin It, Assistant tity Attorney Page 6 NATIONAL COLLEGE BASEBALL HALL OjF�FAME: WWW AZ✓ DR. MIKE GUSTAFSfON, EXECUTIVE DIRECTOR riz-gb� DATE Exhibit "A" WAIVER AND RELEASE OF ALL CLAIMS This Waiver and Release of All Claims (the "Release") is entered into between the City of Lubbock, Texas (the "City") and the undersigned Participants (the "Participants"). DEFINITIONS "City" includes the City of Lubbock, Texas, its officers, employees, City Council, attorneys, agents, servants, and all other persons, natural and corporate, in privity with them. "Participants" shall include those persons, including without limitation the National College Baseball Hall of Fame, its agents, representatives, contractors, and personnel who participate in any activity associated with the Property that is the subject of that certain License Agreement entered between the City and the National College Baseball Hall of Fame. RELEASE IN CONSIDERATION OF THE USE OF THE PROPERTY, AS SET FORTH AND DESCRIBED IN THE SAID LICENSE AGREEMENT, THE UNDERSIGNED PARTICIPANT DOES RELEASE, ACQUIT AND FOREVER DISCHARGE THE CITY FROM ANY AND ALL CLAIMS OR CAUSES OF ACTION ARISING OUT OF THE USE OF THE ABOVE DESCRIBED PROPERTY BY THE UNDERSIGNED PARTICIPANT. IT IS INTENDED BY THIS RELEASE TO RELEASE ALL CLAIMS OF ANY KIND WHICH THE UNDERSIGNED PARTICIPANT HAS OR MAY HAVE AGAINST THE CITY OF LUBBOCK IN CONSIDERATION FOR THE USE OF THE PROPERTY. Undersigned Participant warrants that this Release has been read and is fully understood; that Participant has the legal authority and competence to execute this Release; that Participant executes this Release of his or her own free will and accord without any reliance on any representation of any kind or character not expressly stated herein; and that this Agreement is valid and binding on Participant and shall survive the termination of the said License Agreement. 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