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HomeMy WebLinkAboutResolution - 2015-R0041 - Shared Parking And License Agreement Iwth YWCA - 01/22/2015No. 2015-R0041 Item No. 5.11 January 22, 2015 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 Shared Parking and License Agreement by and between the City and the YWCA of Lubbock, Texas, a non-profit corporation, for the parking of motor vehicles for use by both the City and the YWCA for their respective facilities, 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 January 22, 2015. in! WME-1151mm 11111. ) I M, ATTEST: Rebe as Garza City ecretary APPROVED AS TO CONTENT: Director, Parks and Recreation APPROVED AS TO FOR Laura P att Assistdrit City Attorney Resolution - YWCA Parking Lot License Agreement 12.4.14 Resolution No. 2015-R0041 SHARED PARKING AND LICENSE AGREEMENT This License Agreement (the "Agreement') is made and entered into by and between the YWCA of Lubbock, Texas (the "YWCA"), a non-profit corporation, and the City of Lubbock, Texas, a Home Rule Municipal Corporation of Lubbock County, Texas (the "City"). RECITALS WHEREAS, the City owns an interest in, or otherwise controls the lands, or a portion of certain property on a 0.7720 acre tract of land, located in the Southwest Quarter of Section 7, Block E-2 of the City of Lubbock, Lubbock County, Texas, as recorded in the Real Property Records, Lubbock County, Texas, more particularly described in the survey in Exhibit "A" attached hereto and incorporated as if fully set forth herein, (the "Property"); and WHEREAS, the Property may not contain sufficient parking for motor vehicles for City - owned facilities around the Property; and WHEREAS, the YWCA owns property and facilities adjacent to the Property and is in need of additional parking for use of its facilities; and WHEREAS, the YWCA desires to construct a parking lot located on the Property, (the "Parking Lot") and pay for the construction of the Parking Lot for use by both the City and the YWCA for their respective facilities; WHEREAS, the Parties desire, upon the conditions and covenants set forth below, to construct the Parking Lot for the parking of motor vehicles for the mutual benefit of the Parties. NOW THEREFORE, the YWCA and City agree as follows: (1) 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 Property to the YWCA for the sole purpose of constructing and jointly utilizing the Parking Lot with the City, for the sole purpose of parking motor vehicles. The use of the Property granted herein is limited to the City and its citizens and the patrons and members of the YWCA. (2) The term of this license is five (5) years beginning on the date of the execution of this Agreement by the City, and ending on the fifth anniversary of such date (the "Primary Term"), unless terminated sooner as provided in this Agreement. For the consideration herein expressed, the City is hereby granted an option to extend the term of this Agreement, upon identical terms and conditions of this YWCA - Parking Lot License Agreement 12.19.14 Page 1 of 8 Section 1.02. Term. The term of this license is five (5) years beginning on the date of the execution of this Agreement by the City, and ending on the fifth anniversary of such date (the "Primary Term"), unless terminated sooner as provided in this Agreement. For the consideration herein expressed, the City is hereby granted an option to extend the term of this Agreement, upon identical terms and conditions of this Agreement, for three (3) additional successive option periods of five (5) years each (the "Option Period"). This Agreement shall terminate without further notice when the Primary Term or Option Period, whichever is applicable as specified in Section 1.02 expires, and the YWCA shall immediately vacate the Lands. Any holding over by the YWCA after that term expires, except as provided otherwise in this Agreement, shall not constitute a renewal of this Agreement, or provide the YWCA any rights whatsoever under this Agreement and/or to the Lands. ARTICLE Il Improvements and Use of Lands Section 2.01. Construction. No construction of any permanent structures, improvements, buildings or fixtures or of any type or kind, including, but not limited to, additions or alterations to existing structures by the YWCA, shall be permitted. Section 2.02. Use of Lands. The YWCA may utilize the Lands in accordance with the Agreement for the purposes of the Activities. Such utilization includes the use of playground equipment and open space located on the Lands. The YWCA shall be solely responsible for the use, condition, losses, and risks associated with any equipment owned the YWCA, including, but not limited to, toys, play or sports equipment, tools, temporary shelters, tents, chairs, or tables in the YWCA's operation of the Activities contemplated by the Agreement. YWCA License Agreement Leftwich Park 12.3.14 Page 2 of 14 Section 2.03 Permits. The YWCA shall be solely responsible for, and shall be required to, obtain any and all permits required by federal, state or local law in conducting the Activities. Such permits shall include, but not be limited to, food establishment permits, zoning permits, and day camp or day care licensing permits. Section 2.04. Use of Temporary Shelters and/or Tents. The YWCA is permitted to utilize tents or other similar type of temporary shelter on the Lands solely for the purposes of conducting the Activities contemplated by this Agreement. The YWCA shall get approval from the City on the type, location, and number of such tents or temporary shelters to be utilized prior to building, locating, or using such tents or temporary shelters on the Lands. Section 2.05. Restoration and Maintenance of the Lands. The YWCA shall be responsible for the retrieval and removal of any and all trash and debris created on the Lands as a result of the Activities. Any such trash and debris shall be disposed in the proper receptacles as provided by the City. The YWCA shall further restore any and all turf that becomes damaged, beyond reasonable wear and tear of such turf, on the Lands by virtue of the Activities and any other activities associated with the YWCA's use of the Lands. The YWCA shall obtain prior approval from the City prior to the YWCA's use of any motor vehicle upon the Lands and shall restore all damaged turf that results from any motor vehicle use on the Lands. ARTICLE III Operations of YWCA Section 3.01. Access of Public. Entrances to the Lands shall be open to the general public within reasonable hours as designated by the City. The YWCA shall not permit any discrimination in its use of the Lands because of race, color, sex, religion, national origin, physical handicap or disability. YWCA License Agreement Leftwich Park 12.3.14 Page 3 of 14 Section 3.02. Utilities. The YWCA shall be responsible for providing and/or furnishing all utilities required for the Activities to the Lands 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 use of the Lands. Such utilities shall include, without limitation, water, telephone, electricity, gas, power, sewage disposal and rubbish removal. Section 3.03. Taxes. The YWCA 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 pursuant to any activity contemplated by this Agreement, if any. Section 3.04. Prohibition on Encumbrance. The YWCA shall not encumber any interest in the license granted herein, the Lands 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, the YWCA shall not cause or permit any mechanic's liens or any other liens to be filed against the license granted herein, the Lands, 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 the YWCA or any contractors or subcontractors of the YWCA. 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 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. The YWCA shall furnish to the City any YWCA License Agreement Leftwich Park 12.3.14 Page 4 of 14 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. Section 3.07. Early Termination. The City retains the right to terminate the Agreement at will, for any reason or no reason, by providing written notice to the YWCA. In the event that the YWCA desires to terminate this Agreement, for any reason or no reason, the YWCA may, by providing one (1) year written notice of such termination to the other party, terminate this Agreement. ARTICLE IV Insurance, Indemnity and Release Section 4.01. Indemnity and Release. THE YWCA 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, YWCA License Agreement Leftwich Park 12.3.14 Page 5 of 14 THE ACT OR OMISSION OF THIRD PARTIES. THE YWCA 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, THE YWCA 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 THE YWCA'S INDEMNITY IN THIS SECTION. THE CITY, AND ITS RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND AGENTS, SHALL NOT BE LIABLE, AND THE YWCA 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 THE YWCA, 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, YWCA License Agreement Leftwich Park 12.3.14 Page 6 of 14 OR FORM, THE UNENFORCEABILITY 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. Section 4.02. Insurance. The YWCA 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 the YWCA has indemnified the City, as provided in Section 4.01 hereof. A Certificate of Insurance specifying each and all coverages shall be submitted to the City prior to the execution of this Agreement. The YWCA 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. The YWCA 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 on a primary and non-contributory basis in such policy. B. Automotive Liability Insurance. The YWCA and all contractors and/or subcontractors of the YWCA and all contractors and/or subcontractors hired by the YWCA shall have auto 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 on a primary and non-contributory basis in such policy. YWCA License Agreement Leftwich Park 12.3.14 Page 7 of 14 C. Worker's Compensation Insurance. The YWCA shall elect to obtain worker's compensation coverage pursuant to Section 406.002 of the Texas Labor Code. Further, the YWCA shall maintain said coverage throughout the term of this Agreement and shall comply with all provisions of Title 5 of the Texas Labor Code to ensure that the YWCA maintains said coverage. The policy must be endorsed to include a waiver of subrogation in favor of the City of Lubbock. ARTICLE V Warranties, Covenants, and Representations of the YWCA Section 5.01. Existence. The YWCA is a corporation duly organized, validly existing and in good standing under the laws of the State of Texas, and is duly qualified to cavy on its business in the State of Texas. Section 5.02. Power. The YWCA 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 the YWCA. ARTICLE VI Events of Default and Remedies Section 6.01. Default. An "Event of Default" shall exist if any one or more of the following events shall occur: (a) Any representation or warranty made by the YWCA 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) The YWCA shall default, in any way, manner, or form, in the performance of any of the covenants, provisions and/or terms of this Agreement; YWCA License Agreement Leftwich Park 12.3.14 Page 8 of 14 (c) The YWCA shall (i) apply for or consent to the appointment of a receiver, custodian, trustee, intervener, 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) The YWCA shall default in the payment of any material indebtedness of the YWCA and/or the YWCA. 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 the YWCA and/or the YWCA shall reimburse the City any and all sums provided by the City to the YWCA and/or the YWCA 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 the YWCA 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. YWCA License Agreement Leftwich Park 12.3.14 Page 9 of 14 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: For the City: City Secretary City of Lubbock P.O. Box 2000 Lubbock, Texas 79457 With copy to: Bridget Faulkenberry Director, Parks and Recreation P. O. Box 2000 Lubbock, Texas 79457 (806) 775-2671 Fax: (806) 775-3240 For the YWCA: Glenda Mathis Executive Director YWCA of Lubbock, Texas 3101 35th Street Lubbock, TX 79413 Phone: (806) 792-2723 x3233 Fax: (806) 771-3262 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 YWCA License Agreement Leftwich Park 12.3.14 Page 10 of 14 mailed, on the third day after it is mailed as aforesaid. Any parry 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 the YWCA. The YWCA 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 the YWCA 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. The YWCA shall comply with all applicable federal, state and local rules, regulations, statutes, laws and ordinances governing, in any way, manner, or form the Activities contemplated herein, 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. 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 performable in YWCA License Agreement Leftwich Park 12.3.14 Page l I of 14 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. Section 7.15. Right to Exercise Remedies. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, YWCA License Agreement Leftwich Park 12.3.14 Page 12 of 14 the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the former shall control. Section 7.16. Public Information. This Agreement is public information. To the extent, if any, that any provision of this Agreement is in conflict with Tex. Gov't. Code Ann. Chapter 552 et seq., as amended (the "Texas Public Information Act") the same shall be of no force and effect. Section 7.17. No Personal Liability. Nothing in this Agreement is construed as creating any personal liability on the part of any employee, officer or agent of any public body that may be a party to this Agreement. Section 7.18. Sovereign Immunity Acknowledged and Retained. THE PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT NO PROVISION OF THIS AGREEMENT IS IN ANY WAY INTENDED TO CONSTITUTE A WAIVER BY ANY PARTY OF ANY IMMUNITIES FROM SUIT OR LIABILITY THAT A PARTY MAY HAVE BY OPERATION OF LAW. THE PARTIES RETAIN ALL GOVERNMENTAL IMMUNITIES. YWCA License Agreement Leftwich Park 12.3.14 Page 13 of 14 Section 7.19. License Agreement. The intent of this Agreement is to grant a license to the YWCA 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 the YWCA 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 GL N C. R013ERTSON, MAYOR Date executed: January 22, 2015. ATTEST: Reb cca Garza, City ecretary _. APPROVED AST CONTENT: Bridget Faulkenberry, Director, Parks and Recreation SWtant City Attorney YWCA OF LUBBOCK, TEXAS BY: y/L(Z� Name: �/ender 1 afh�s Title: i fi v G/2E Z Date executed: /L/'f YWCA License Agreement Leftwich Park 12.3.14 Page 14 of 14