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HomeMy WebLinkAboutResolution - 2011-R0236 - License Agreement - Keep It Good In The Hood LLC - 05/31/2011Resolution No. 2011-RO236 May 31, 2011 Item No. 5.18 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 License Agreement between the City of Lubbock and "Keep it Good in the Hood, LLC", ("KIGH"), a non- profit organization, and related documents. Said Agreement 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 this May 31 , 2011. <-/-- _Z,7� TOM MARTIN, MAYOR ATTEST: ,Q, &_� Rebec a Garza, City ecreta APPROV � AS TO CONT T: Ran y Truesdell, Parks and Recreation Director Resolution No. 2011-R0236 AGREEMENT This Agreement (the "Agreement") is entered into on this 31st day of May , 20 1 � between the City of Lubbock, Texas (the "City"), a Texas Home Rule Municipal Corporation, and "Keep It Good in the Hood, L.L.C. ("KIGH"), a non-profit organization of the State of Texas. I..A W4ff11X,V00 WHEREAS, KIGH desires to build a memorial (the "Memorial") in Tech Terrace Park (the "Park"); and WHEREAS, KIGH desires to build the Memorial to honor Lee and Marjorie Manning who were two individuals who contributed much of their life's work to the KIGH neighborhood; and WHEREAS, it is the belief of the City and KIGH that the Memorial will enhance the Park and permit the citizens of Lubbock to better utilize the Park; and WHEREAS, KIGH desires to build, improve, and maintain the Memorial over and on that certain real property described on Exhibit "A" attached hereto (the "Lands"); NOW THERFORE: 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 KIGH, for the sole purpose of building and placing the Memorial on the Lands. Section 1.02. Term. The term of this license is sixty (60) days beginning on the date of the execution of this Agreement by the City (the "Primary Term"), unless terminated sooner as provided in this Agreement. This Agreement shall terminate without further notice when the Primary Term expires, and KIGH shall immediately vacate the Lands. Any holding over by KIGH after that term expires, except as provided otherwise in this Agreement, shall not constitute a renewal of this Agreement, or provide KIGH any rights whatsoever under this Agreement and/or to the Lands. ARTICLE I1 Improvements Section 2.01. Approval of Construction. No construction of any type or kind, including additions or alterations to existing structures or structures completed, or caused to be completed, by KIGH and/or placement or location of improvements, including all matters described in this Article Il, may be commenced, unless the plans, specifications and proposed location of such construction and/or location of improvements have received the City's, and if required by the City or by law, any other entities' or parties', including, but not limited to, the State of Texas, Texas Parks and Wildlife Department and Texas Historical Commission, prior written approval, as described below. KIGH shall, at its own expense, engage a licensed architect or engineer to prepare plans and specifications for the construction, addition, location or alteration of any building or improvement. KIGH shall submit a copy of detailed working drawings, plans and specifications that are stamped by the above-described architect or engineer to the LICENSE AGREEMENT -- Page 2 City for its approval not less than thirty (30) days before such construction or location of improvements is scheduled to commence. The City, and any other parties having the right of approval, as described herein, shall review all plans submitted under this Section 2.02, and provide to KIGH, in writing, any required changes or corrections that must be made, that the City, and any other parties having the right of approval, as described herein, may deem necessary, in their sole discretion. Any required changes or corrections shall be made and the stamped plans resubmitted to the City, and any other parties having the right of approval, as described herein, prior to the commencement of such construction, addition, alteration or location of any improvement. No such construction, addition, alteration or location of any improvement shall be commenced unless and until the stamped plans are finally approved by the City and any other parties having the right of approval, as described herein. The failure to receive the approval described herein shall not excuse the performance by KIGH of any activity or covenant described in this Agreement. Minor repairs and/or alterations necessary to maintain existing structures and improvements located upon the Lands in a useful state of repair and operation does not require submission and approval, as described herein. The City and/or any of the parties having the right of approval, as described herein, shall have the right at all times to observe any and all activities described in this Article H. Notwithstanding the approval by the City and/or any of the parties having the right of approval, as described herein, of any plans and specifications, and/or the observation rights of the City and/or any of the parties having the right of approval, as described herein, the City assumes no liability or responsibility for the architectural or LICENSE AGREEMENT -- Page 3 engineering design or for any defect in any building or improvement constructed from such plans or specifications, nor shall such approval and/or observation relieve KIGH from any or all of its obligations hereunder. KIGH. All activities described in this Article II shall be at the sole cost and expense of Section 2.43. Sure!y. Any and all contracts that KIGH may enter into with third parties to participate in the construction and/or location of improvement 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 suitable in form to the City and submitted to the City prior to the commencement of any activities of any kind by such third parties. Section 2.04. Ownership of Buildings and Improvements. Any and all buildings, improvements, additions, alterations and fixtures constructed, placed, located and/or maintained on any part of the Lands during the term of this Agreement are considered part of the real property and must remain on the Lands and, subject to the terms of this Agreement, become property of the City, from and after the termination of this Agreement. ARTICLE III Operations of KIGH Section 3.01. Access of Public. Entrances to the Lands shall be open to the general public within reasonable hours as designated by KIGH and approved by the City. LICENSE AGREEMENT -- Page 4 KIGH shall not permit any discrimination in its operation of the Memorial because of race, color, sex, religion, national origin, physical handicap or disability. Section 3.02. Utilities. KIGH shall be responsible for providing and/or furnishing all utilities to the Lands 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 the Lands and the utilization of same in connection with the operation and maintenance of the Memorial. Such utilities shall include, without limitation, water, telephone, electricity, gas, power, sewage disposal and rubbish removal. Section 3.03. Taxes. KIGH shall pay and discharge all charges, including without limitation, personal property taxes, gross receipts taxes, general and special assessments, and other charges of similar nature which may be levied or assessed against the Lands, the Memorial, and/or any activity contemplated by this Agreement, if any. Section 3.04. Prohibition on Encumbrance. KIGH shall not encumber any interest in the license granted herein, the Lands, the improvements described herein, 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, KIGH shall not cause or permit any mechanic's liens or any other liens to be filed against the license granted herein, the Lands, the improvements described herein, 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 KIGH or any contractors or subcontractors of KIGH. Section 3.05. Right of Entry --City. Nothing contained in this Agreement shall be construed to prohibit the right of entry by the City, in, on, over and/or across the Lands, at LICENSE AGREEMENT -- Page 5 any and all times, and for any and all purposes, and City expressly reserves the right to enter upon the Lands and any and all improvements located thereon, subject to the conditions stated herein, to conduct any and all activities the City deems necessary. KIGH shall furnish to the City any and all keys and/or instructions necessary to allow the City's right of entry reserved and/or described herein. Section 3.06. 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 3.06 and any other term or provision of this Agreement, this Section 3.06 shall control and such conflicting term or provision shall be void and of no force and effect. ARTICLE IV Insurance, Indemnity and Release Section 4.01. Indemnity and Release. KIGH SHALL INDEMNIFY AND HOLD HARMLESS, TO THE FULLEST EXTENT PERMITTED BY LAW, THE CITY, AND CITY'S RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND 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 CONTEMPLATED HEREUNDER, 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 LICENSE AGREEMENT -- Page 6 THIRD PARTIES. KIGH 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 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. IN ADDITION, KIGH SHALL PAY TO THE CITY, THE CITY'S RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND/OR AGENTS, AS APPLICABLE, ALL ATTORNEYS' FEES INCURRED BY SUCH PARTIES IN ENFORCING KIGH' INDEMNITY IN THIS SECTION. THE CITY, AND ITS RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND AGENTS, SHALL NOT BE LIABLE, AND KIGH HEREBY RELEASES THE CITY, AND ITS RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND AGENTS, FOR, FROM AND/OR AGAINST ANY LOSSES, DAMAGES, CLAIMS OR LIABILITIES TO KIGH, ON ANY THEORY OF LEGAL LIABILITY, INCLUDING, BUT NOT LIMITED TO THE NEGLIGENCE, OF ANY TYPE OF DEGREE, OR FAULT, OF THE CITY, ARISING FROM OR RELATED TO, IN ANY WAY, MANNER OF FORINT, THE UNENFORCEABILITY LICENSE AGREEMENT -- Page 7 OR VOIDANCE, FOR ANY REASON, OF ALL OR ANY PART OF THIS AGREEMENT. THE INDEMNITY AND RELEASE PROVIDED HEREIN SHALL SURVIVE THE TERMINATION OR VOIDANCE OF THIS AGREEMENT. ARTICLE V Warranties, Covenants and Representations of KIGH Section 5.01. Existence. KIGH is a 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 5.02. Power. KIGH has the corporate power to enter into and perform this Agreement and all activities contemplated hereby. Section 5.03. 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 KIGH. ARTICLE VI Events of Default and Remedies Section 6.01. Default. An Event of Default (herein so called) shall exist if any one or more of the following events shall occur: (a) Any representation or warranty made by KIGH 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; (b) KIGH shall default, in any way, manner or form, in the performance of any of the covenants, provisions and/or terms of this Agreement; LICENSE AGREEMENT -- Page 8 (c) KIGH 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 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 (d) KIGH shall default in the payment of any material indebtedness of KIGH and/or KIGH. Section 6.02. Remedies upon Event of Default. If an Event of Default shall have occurred and be continuing, then the City, at its option may (i) declare this Agreement, and all rights and interests created by it, terminated and KIGH and/or KIGH shall reimburse the City any and all sums provided by the City to KIGH and/or KIGH under the Cooperative Agreement, or otherwise; (ii) assert an action for damages, including, but not limited to, recovery of any and all sums provided by the City to KIGH under the Cooperative Agreement, or otherwise, and any and all other damages available to the City under this Agreement and/or pursuant to law or equity; and/or (iii) pursue and enforce any rights of the City as provided under or pursuant to any applicable law or this Agreement. LICENSE AGREEMENT -- Page 9 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. ARTICLE VII Miscellaneous Section 7.01. 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 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 7.02. Notice. Any notice required or permitted to be given herein must be given in writing and must be personally delivered, delivered by telephonic 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: KIGH: Randy Truesdell Parks and Recreation Director P. 0. Box 2000 Lubbock, Texas 79457 (806)775-2235 Fax: (806) 775-3240 Cyd Seideman 3202 20'h Street Lubbock, Texas 79410 (806) 797-7081 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 LICENSE AGREEMENT -- Page 10 party may change its address for purposes of this Agreement by giving notice of such change to all other parties pursuant to this Section 7.02. Section 7.03. Assignment/Sublet. This license is personal to NIGH. KIGH shall not assign or sublet this license. Any attempt to assign or sublet this license shall terminate the license granted herein. Section 7.04. Com. 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 7.05. Relationship of Parties. The relationship between the City and KIGH is at all times solely that of licensor and licensee, and may not be deemed, in any event, a partnership or a joint venture. Section 7.06. Compliance with Applicable Law. NIGH shall comply with all applicable federal, state and local rules, regulations, statutes, laws and ordinances governing, in any way, manner or form the construction activities contemplated herein, the construction, operation and maintenance of the Memorial, and/or any other aspect of the activities described in this Agreement, including, without limitation those regarding to access of the facilities by handicapped persons and the storage, display and alteration of antiquities. Section 7.07. Time of the Essence. Time is of the essence of this Agreement. Section 7.08. Texas LawNenue. This Agreement is to be construed under Texas 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 LICENSE AGREEMENT -- Page I I 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 7.09. Partial Invalidity. 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 unenforceability 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 7.10. 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 7.11. 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 7.12. 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, then the breaching party shall pay the other party the reasonable attorney's fees and costs incurred to enforce this Agreement. Section 7.13. 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 7.14. Captions. Section captions are for convenience only and shall in no way affect the interpretation of this Agreement. LICENSE AGREEMENT -- Page 12 Section 7.15. License Agreement. The intent of this Agreement is to grant a license to KIGH 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 KIGH any interest in the real property comprising the Lands. Executed and effective as of the date of the execution hereof by the City of Lubbock. CITY OF LUBBOCK, TEXAS TOM MARTIN, MAYOR Date executed:. Mav 31. 2011 ATTEST: 1) tta'.e� '--� Rcbe a Garza, City Secretary KEEP IT GOOD IN THE HOOD, LLC BY: Name: Cyd 'deman Title: Registered Agent Date executed: It APPROVE S CO T: Randy 1ruesdell, Parks and Recreation Director APPROVED AS TO FORM: Amy x , A ity Attorney Amy AGREEMENT -- Page 13 Resolution No. 2011-Ro236 META- I-EAPT MOUNTED ON STAINLESS STEEL POST RON BENCH PR OVDEO BY THE PRATHER FAMILY RECESS POR GRANFrE INLAY CONC26TE FOOTING IO" ALL THREAD BOLT 8 f;� BENCH LEGS TO BE COUNTER SUNK IN CONCRETE MEMORIAL EAST ELEVATION SCALE- V2--f-O' t2- X 24- X H/4' ENGRAVED BLACK GRANVr: 12' X W X 1-1/4' ENGRAVED BLACK GRANITE STARLESS STANLESS STEEL POST BENT AND - = ----- ------------ -- -------------------- - -- - COUNTER SUNK STEEL PROVIDE AMPLE RENFORCNG BARS N GRANITE POST BENT CONCRETE VERTICALLY AND HORIZON7ALLY PAVERS SET ANDWITH IfT TILE COUNTER FOUNDATION DETAIL SPACERS SUNK SCALE 117 -11 -0 - METAL HFA27 MOUNTED ON STANLESS STEEL POST IRON BENK',H P20VIDFD BT THE PRATHER FAMILY RECESS FOR GRANITE Ntl1f7 CONCRETE FOOnNG SLOPE /B' 17 --- --^-------------- -------------- ----------- b� -- -- -------------------- STAINLESS -------- ----, MEMORIAL LOCATION ej NO SCALEWS 49 NOTE, t. PLEASE FOLLOW ASTM STANDARDS TO ENSLRE PROPER CONCRETE STRENGTk 2. SLAB SHOULD BE MONIOLI7kC TO AVOID EXPANSION JOINTS. r------------------ I I I I .I 1 I I 1 1 I I PROVIDE AMPLE 1 REIN POPCING BARS N 1 1 CONCRETE VERTICALLY I I AND H10RiZCN7ALLY I ° I I I I L ----------------J FOUNDATION PLAN SCALE- V7•f-O' 12" X 24' X 1-114' GR ENAVED LIGHT GRAVTE NOTE AFTER PAVERS ARE SET REMOVE SPACERS AND CAULK WITH BLACK SILICONE PAVER DETAIL SCALEvT-r-c" STANLESS STEEL POST BENT AND COUNTER SUNK ALL. THREAD BOLT E BENCH LEGS TO BE COLNTER SUNK N CONCRETE MEMORIAL SOUTH ELEVATION SCALE V74 -O' MEMORIAL LOCATION ej NO SCALEWS 49 NOTE, t. PLEASE FOLLOW ASTM STANDARDS TO ENSLRE PROPER CONCRETE STRENGTk 2. SLAB SHOULD BE MONIOLI7kC TO AVOID EXPANSION JOINTS. r------------------ I I I I .I 1 I I 1 1 I I PROVIDE AMPLE 1 REIN POPCING BARS N 1 1 CONCRETE VERTICALLY I I AND H10RiZCN7ALLY I ° I I I I L ----------------J FOUNDATION PLAN SCALE- V7•f-O' 12" X 24' X 1-114' GR ENAVED LIGHT GRAVTE NOTE AFTER PAVERS ARE SET REMOVE SPACERS AND CAULK WITH BLACK SILICONE PAVER DETAIL SCALEvT-r-c" PLAN 4,01 SCALE V2--P-O' « 4 . RECESS FOR . . . . . . . • . FLUSH GRANITE - • • - ° INLAY . . + . . .��„ a SL TERRACE ° •4 .UH" @, PAR . K e ---d ° a4 .. ` , . ` ..... 4 ° • • ' • • « « . , •ROH BEIVG.H• « • .t„FTAL HEART . PROVIDED BY THE - - - MOUNTED • , , PRATHER FAMLY• • ON STANLESS. . . . . . . . STEEL POST . 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