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HomeMy WebLinkAboutResolution - 2022-R0209 - License Agreement with LubbockExperience, Inc - Civic ParkResolution No. 2022-R0209 Item No. 7.28 April 26, 2022 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 construction of a Civic Park in Downtown Lubbock located at 1301 Broadway Avenue, by and between the City of Lubbock and Lubbock Experience Inc., a 501(c)(3) nonprofit organization, and all 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 ATTEST: Reb t ca Garza, City Secr fry APPROVED AS TO CONTENT: APPROVED AS TO FORM: Ry n Broa e, As tstant City Attorney RES.License Agreement -Civic Park 4.11.22 April 26, 2022 DANIEL M. POPE, MAYOR Resolution No. 2022-RO209 LICENSE AGREEMENT FOR THE CIVIC PARK THIS Agreement dated the 26th day of April , 2022, is by and between the Lubbock Experience, Inc. ("Licensee"), and the City of Lubbock, Texas, a Texas home rule municipal corporation ("City"). WHEREAS, on June 9, 2020 the City Council adopted an updated Downtown Master Plan which included a recommendation for a Civic Park (the "Park") at 1301 Broadway Avenue in Downtown Lubbock; and WHEREAS, on September 28, 2021, the City Council approved the Park project to be located at 1301 Broadway utilizing the Wind + Water design as created by TBG Partners and as recommended by the Central Business District Tax Increment Financing Reinvestment Zone Board; and WHEREAS, City owns a 1.84 acre tract of right-of-way generally located between Avenue L on the East, 131h on the South, Avenue M on the West, and Broadway on the North within the City of Lubbock; and WHEREAS, Licensee wishes to construct a Civic Park in Downtown Lubbock that will serve as a community gathering space; and WHEREAS, City and Licensee desire that the construction of said Park and any improvements or additions thereto, be constructed upon the terms, provisions and conditions set forth herein. Article I License Section 1.01. License. In consideration of the mutual covenants and agreements of this Agreement, and for good and valuable consideration as set forth herein, the City hereby grants to Licensee, upon on the terms and conditions set forth in this Agreement, a license on and over the 1.84 acre tract of right-of-way generally located between Avenue L on the East, 13`h on the South, Avenue M on the West, and Broadway on the North within the City of Lubbock, being all of Lots 1-20, Block 130, and including all currently dedicated and previously closed alleys located within the limits of said Block 130, Original Town of Lubbock, Lubbock County, Texas, according to the map, plat, and/or dedication deed thereof recorded in Volume 5, Page 384 of the Deed Records of Lubbock County, Texas and being more particularly described in attached Exhibit "A" ("Licensed Premises"), for the sole purpose of constructing the Park. Section 1.02. Term. The term of this License shall be for three (3) years from the date of execution, or upon completion and acceptance of the Park by the City, whichever event occurs first. This contract shall be effective following the full demolition and removal of existing structures at the site. The City shall determine the date of completion of demolition and removal and notify Licensee of said effective date. The City retains the right at its election to cancel and revoke this License, with or without cause, upon thirty (30) days notice to Licensee. Article II Improvements Section 2.01. Site Plan. Prior to commencement of any construction activities, Licensee shall submit to the City a detailed Site Plan (herein so called), including the specific location and appearance of all permanent improvements which have been, or are proposed to be constructed on the Licensed Premises, including but not limited to, landscaping, design of subject statutes, displays and bases for such statutes, structures, water features, and any walkways appurtenant or attendant to such exhibit. Licensee shall submit a copy of the Site Plan to the City prior to commencement of any future construction activities. The Site Plan is subject to review and approval by the City. The City may request 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 the City. The City Council of the City may direct whatever changes to the Site Plan it deems necessary or advisable. Except as stated otherwise, "Site Plan" as used in this Agreement, shall mean and refer to the Site Plan, as approved as described herein. Section 2.02. Construction. Upon City approval as described below in Section 2.03, Licensee shall construct, or cause to be constructed, and locate upon the Licensed Premises, all structures as depicted in the Site Plan, on or before 720 days after approval of the Site Plan. Licensee shall clean and restore the Licensed Premises to the extent it has been affected the by above described construction, to its original condition, as is reasonably practicable, and vacate the Licensed Premises on or prior to termination of this Agreement. Section 2.03. Approval of Construction. No construction of any kind or type shall be commenced unless plans, specifications, sufficient funding, and the proposed location of such construction and/or location of the improvements have received the approval of the City. Sufficient funding shall mean those funds necessary to complete construction through the initial level of completion as approved by the City. All construction activities shall be conducted and completed in compliance with all applicable permits, ordinances, regulations and statutes now or hereinafter existing. The City shall have the right at all times to observe any and all activities described in this Article II. Section 2.04. Ownership. Any and all improvements constructed, placed, located and/or maintained on any part of the Licensed Premises by Licensee or pursuant License Agreement for the Civic Park Page 2 of 7 to the rights granted herein during the term of this Agreement shall be considered part of the real property comprising the Licensed Premises and shall become the property of the City immediately upon the location of such improvements on the surface of the Licensed Premises. Licensee may, upon the termination of this Agreement, and with the written approval of the City, remove the property not owned by the City, as set forth by law or above herein. Notwithstanding the right of removal granted herein, Licensee shall repair any and all damage to any buildings or improvements on the Licensed Premises resulting from such removal. Any and all such items not removed by Licensee on or before ten (10) days after the termination of this Agreement, shall, at the option of the City, either (1) become the property of the City; or (2) be removed by the City at Licensee's sole cost and expense. In the event the City shall elect to remove such property, the City shall owe no duty to protect such property, and shall in no event be liable to Licensee for loss, damage or destruction of same. The City may dispose of any such property in any manner it desires in its sole discretion and retain any proceeds received therefor Section 2.05 Maintenance. The Licensee shall be responsible for all maintenance related to the Project, landscaping, and any other structures located within the Site Plan or Licensed Premises. Licensee shall ensure that all equipment and structures used for or in relation to the Park are in good, safe, and operable condition. Licensee shall strictly adhere to the landscaping and maintenance standards as provided by the Parks and Recreation Department. Article III Insurance/Indemnity Section 3.01. Insurance and Indemnity. Licensee shall require that its contractors procure and carry, at their sole cost and expense through the duration of any construction and/or maintenance activities authorized by this Agreement, insurance protection as hereinafter specified, in form and substance satisfactory to City, carried with an insurance company authorized to transact business in the State of Texas, covering all aspects and risks of loss of all operations in connection with this Agreement, including without limitation, the indemnity obligations set forth herein. Licensee to require that its contractors obtain and maintain in full force and effect during any construction and/or maintenance activities authorized by this Agreement, commercial general liability and automobile liability coverage with insurance carriers admitted to do business in the State of Texas. The insurance companies must carry a Best's Rating of A-VII or better. The policies will be written on an occurrence basis, subject to the following minimum limits of liability: Commercial General Liability: Combined Single Limit: $1,000,000 Per Occurrence License Agreement for the Civic Park Page 3 of 7 Automobile Liability: Combined Single Limit for any auto: $1,000,000 Per Occurrence The City shall be listed as a primary additional insured and shall be granted a waiver of subrogation under the policies. Licensee shall require their contractors to provide a Certificate of Insurance (the "Certificate") to the City as evidence of coverage. The Certificate will provide thirty (30) days notice of cancellation. A copy of the additional insured endorsement and waiver of subrogation attached to the policy will be included in the Certificate. Licensee shall require their contractors shall elect to obtain worker's compensation coverage pursuant to Section 406.002 of the Texas Labor Code. Further, Licensee and its contractors shall maintain said coverage throughout any construction and/or maintenance activities authorized by this Agreement and shall comply with all provisions of Title 5 of the Texas Labor Code to ensure that Licensee and their contractors maintain said coverage. Any termination of worker's compensation insurance coverage by Licensee's contractors, or any cancellation or non -renewal of worker's compensation insurance coverage for Licensee's contractors shall be a material breach of this Agreement. The City shall be granted a waiver of subrogation under this policy. If at any time during any construction and/or maintenance activities authorized by this Agreement or any extension, Licensee's contractors fail to maintain the required insurance in full force and effect, Licensee shall be in breach hereof and all work under the Agreement shall be discontinued immediately. Licensee, and their contractors, shall indemnify and hold City and City's elected officials, officers, agents and employees harmless, to the fullest extent permitted by law, from and against any and all claims, demands, damages, costs, liabilities and expenses, INCLUDING WITHOUT LIMITATION, CLAIMS, DEMANDS, DAMAGES, COSTS, LIABILITIES AND EXPENSES, CAUSED, IN WHOLE OR IN PART, BY THE NEGLIGENCE, OF ANY HIND, TYPE OR DEGREE, OF CITY and including reasonable attorney's fees, as a result of, related to, or arising from, Licensee and their contractor's use or occupation of City owned lands, and/or any matter related to Licensee's operations or omissions under this Agreement. City shall have the right to inspect all insurance documents required by this license upon demand and all such insurance shall be subject to final approval by City. Article IV Events of Default/Remedies Section 4.01 a. City's Defaults/Licensee's Remedies. In the event the City shall default in the performance of any term or provision of this Agreement for any reason other than failure License Agreement for the Civic Park Page 4 of 7 by Licensee to perform hereunder; Licensee may, if said default shall be continuing after five (5) days notice of such default is delivered to the City, as its sole and exclusive remedy, terminate this Agreement. b. Licensee's Defaults/City's Remedies. In the event Licensee shall default in the performance of any term or provision of this Agreement for any reason other than failure by the City to perform hereunder; the City may, if said default shall be continuing after five (5) days notice of such default is delivered to Licensee, exercise any right or remedy available to it by law, contract, equity or otherwise, including without limitation, specific performance and/or the right to terminate this Agreement. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. Article V Miscellaneous Section 5.01. 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 further exercise thereof or the exercise of any other right. Section 5.02. Notice. Any notice required or permitted to be given hereunder must be given in writing and delivered by telephonic facsimile, or mailed by pre -paid, 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 Attn: W. Jarrett Atkinson, City Manager P.O. Box 2000 Lubbock, TX 79457 Phone: (806) 775-2671 Experience Lubbock, Inc. Attn: John Osborne 1500 Broadway, Suite 600 Lubbock, TX 79401 Phone: (806) 749-4500 Any such notice or other communication shall be 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 third day after it is mailed. 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 5.02. Section 5.03. No Assignment. This License is personal to Licensee and may not be assigned or sublet without the express written consent of the City. Any attempt to License Agreement for the Civic Park Page 5 of 7 assign or sublet this License, without such consent shall terminate the License granted herein. Section 5.04. Cam. Unless otherwise provided herein or required by law and or local ordinance, charter or code, any action required or permitted to be taken herein by "the City", shall be taken by the City Manager of the City of Lubbock or any party designated by him or her. Section 5.05. Relationship of Parties. The relationship between the City and Licensee 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 5.06. Compliance with Applicable Law. Licensee 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 and/or any other aspect of the activities described in or contemplated by this Agreement. Section 5.07. Time. Time is of the essence of this Agreement. Section 5.08. 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 performable in Lubbock County, Texas. VENUE FOR ANY ACTION BROUGHT PURSUANT TO THIS AGREEMENT, OR ANY ACTIVITY CONTEMPLATED HEREBY, SHALL LIE EXCLUSIVELY IN THE COURTS OF LUBBOCK COUNTY, TEXAS. Section 5.09. Partial Invalidity. Except as otherwise may be 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 unenforceability will not effect any other provision of this Agreement, and this Agreement shall be construed as if it had not included the invalid, illegal or unenforceable provision. Section 5.10. Prior Agreements Superceded. This Agreement constitutes the parties' sole agreement and supercedes any prior understandings or written or oral agreements between the parties with respect to the subject matter hereof. Section 5.11. 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 5.12. Captions. Captions are for convenience only and shall in no way effect the interpretation of this Agreement. License Agreement for the Civic Park Page 6 of 7 Section 5.13. Representations. Licensee represent and warrant to City (i) that it possesses the legal authority to enter into this Agreement and has taken all actions necessary to legally bind Licensee as to all terms hereof; and (ii) that the party executing this Agreement on behalf of the Licensee all authority necessary to legally bind Licensee terms hereof. Section 5.14. License Agreement. The intent of this Agreement is to grant a License to Licensee to utilize the Licensed Premises solely during the times and for the purposes described herein. This Agreement shall not be construed in any way, manner or form as a lease of the Licensed Premises, or as conveying to Licensee any interest in the real property comprising the Licensed Premises. IN WITNESS WHEREOF, the parties have executed this Agreement by their duly authorized representatives this 26th day of April , 2022. CITY OF LUBBOCK, TEXAS te'-4 DANIEL M. POPE, MAYOR ATTEST: P I uef' , X—�' Re cca Garza, City9—ecrdtary APPROVED AS TO CONTENT: `- W. Jarre t nson, City er APPROVED AS TO License AgArnent-Civic Park 4.26.2022 City Attorney LUBBOCK EXPERIENCE, INC. • • :•., :,.. 1 .. D License Agreement for the Civic Park Page 7 of 7