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HomeMy WebLinkAboutResolution - 2019-R0059 - Purple Heart - Huneke Park - 02/25/2019Resolution No. 2019-R0059 Item No. 7.19 February 25, 2019 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 and maintenance of the Regional Monument of Courage at Henry Huneke Park in Lubbock, Texas, by and between the City of Lubbock and the Military Order of the Purple Heart, Chapter 0900, and Ancile "Al" White VFW Post 2466, 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 Februa r 25. 2019 DANIEL M. POPE, MAYOR ATTEST: Rib t Garza, City Secret +,—) APPROVED AS TO CONTENT: Brooke Witcher, Assistant City Manager APPROVED AS TO FORM: - Xt_� - Ry n $ oke, Assistant City Attorney RES-License Agreement -Monument of Courage 1,29.19 Resolution No. 2019-R0059 LICENSE AGREEMENT FOR THE REGIONAL MONUMENT OF COURAGE THIS Agreement dated the 2ith day of February , 2019, is by and between the Military Order of the Purple Heart, Chapter -0900 and Ancile "Al" White VFW Post 2466 ("Licensees"), and the City of Lubbock, Texas, a Texas home rule municipal corporation ("City"). WHEREAS, City owns Henry Huneke Park, located at 82"d Street and Nashville Avenue within the City of Lubbock; and WHEREAS, Licensees wish to construct a Regional Monument of Courage in Henry Huneke Park ("Project') in honor of the men and women wounded in service to their country in times of armed conflict and honoring the veterans of Lubbock and the surrounding area; and WHEREAS, City desires that the construction of said Project 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 Licensees, upon on the terms and conditions set forth in this Agreement, a license on and over Henry Huneke Park for the sole purpose of constructing and maintaining the Project. Section 1.02. Term. The term of this License shall be for five (5) years from the effective date hereof, and shall be automatically extended for successive five (5) year terms not to exceed twenty (20) years in any event unless either party shall give written notice of termination to the other party before the expiration of the first, second or third five (5) year term, as the case may be. The City retains the right at its election to cancel and revoke this License, with or without cause, upon thirty (30) days notice to Licensees. Article I1 Improvements Section 2.01. Site Plan. Prior to commencement of any construction activities, Licensees 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 Henry Huneke Park, including but not limited to, landscaping, design of subject statues, displays and bases for such statues, and any walkways appurtenant or attendant to such exhibit. Licensees 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. Licensees shall construct, or cause to be constructed, and locate upon Henry Huneke Park, all structures as depicted in the Site Plan, on or before 180 days after approval of the Site Plan. Licensees shall clean and restore Henry Huneke Park to the extent it has been affected the by above described construction, to its original condition, as is reasonably practicable, and vacate Henry Huneke Park on or prior to the 180'b day following the initiation of construction. Section 2.03. Approval of Construction. No construction of any kind or type shall be commenced unless plans, specifications and the proposed location of such construction and/or location of the improvements have received the approval of 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 Henry Huneke Park by Licensees or pursuant to the rights granted herein during the term of this Agreement shall be considered part of the real property comprising Henry Huneke Park and shall become the property of the City immediately upon the location of such improvements on the surface of Henry Huneke Park. Licensees 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, Licensees shall repair any and all damage to any buildings or improvements on the Henry Huneke Park resulting from such removal. Any and all such items not removed by Licensees 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 Licensees' 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 Licensees 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 License Agreement for the Regional Monument of Courage Page 2 of 7 Section 2.05 Maintenance. The Licensees shall be responsible for all maintenance related to the Project, landscaping, and any other structures located within the Site Plan. Licensees shall ensure that all equipment and structures used for or in relation to the Project are in good, safe, and operable condition. Licensees 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. Licensees 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. Licensees shall 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: $500,000 Per Occurrence Automobile Liability: Combined Single Limit for any auto: $100,000 Per Occurrence The City shall be listed as a primary additional insured and shall be granted a waiver of subrogation under the policies. Licensees 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. Licensees 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 Licensees and their contractors maintain said coverage. Any termination of worker's compensation insurance coverage by Licensees' contractors, or any cancellation or non -renewal of License Agreement for the Regional Monument of Courage Page 3 of 7 worker's compensation insurance coverage for Licensees' 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, Licensees' contractors fail to maintain the required insurance in full force and effect, Licensees shall be in breach hereof and all work under the Agreement shall be discontinued immediately. Licensees, 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 KIND, TYPE OR DEGREE, OF CITY and including reasonable attorney's fees, as a result of, related to, or arising from, Licensees and their contractor's use or occupation of City owned lands, and/or any matter related to Licensees' 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/Licensees' 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 by Licensees to perform hereunder; Licensees 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. Licensees' Defaults/City's Remedies. In the event Licensees 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 Licensees, 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. License Agreement for the Regional Monument of Courage Page 4 of 7 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: Bridget Faulkenberry, Director of Parks and Recreation P.O. Box 2000 Lubbock, TX 79457 Phone: (806) 775-2671 Military Order of the Purple Heart, Chapter 0900 Attn: Steve Oien, Commander P.O. Box 64266 Lubbock, TX 79464 Phone: (707) 592-4598 Ancile "Al" White, VFW Post 2466 Attn: Benny Guerrero, Commander P.O. Box 3126 Lubbock, TX 79452 Phone: (806) 747-2668 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 Licensees and may not be assigned or sublet without the express written consent of the City. Any attempt to assign or sublet this License, without such consent shall terminate the License granted herein. Section 5.04. City. Unless otherwise provided herein or required by law and or local ordinance, charter or code, any action required or permitted to be taken herein by "the City", shall be taken by the City Manager of the City of Lubbock or any party designated by him or her. License Agreement for the Regional Monument of Courage Page 5 of 7 Section 5.05. Relationship of Parties. The relationship between the City and Licensees is at all times solely that of Licensor and Licensees, and may not be deemed in any event, a partnership or a joint venture. Section 5.06. Compliance with Applicable Law. Licensees 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 Su erceded. 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. Section 5.13. Representations. Licensees 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 Licensees as to all terms hereof; and (ii) that the party executing this Agreement on behalf of the Licensees all authority necessary to legally bind Licensees terms hereof. Section 5.14. License Agreement. The intent of this Agreement is to grant a License to Licensees to utilize Henry Huneke Park solely during the times and for the License Agreement for the Regional Monument of Courage Page 6 of 7 purposes described herein. This Agreement shall not be construed in any way, manner or form as a lease of Henry Huneke Park, or as conveying to Licensees any interest in the real property comprising Henry Huneke Park. IN WITNESS WHEREOF, the parties have executed this Agreement by their duly authorized representatives this nth day of Fehniary`, 2019. MILITARY ORDER OF THE PURPLE HEART, CHAPTER 0900 By: 04;0 Name: Title: ` CITY OF LUBB K, TEXAS DANIEL M. POPE, MAYOR APPROVED AS TO CONTENT: Brooke Witcher, Assistant City Manager APPROVED AS TO FORM: Ry BB oke, Assis ant City Attorney License Agreement -Regional Monument of Courage 12919 ANCILE "AL" WHITE VFW POST 2466 By: Name Title: ATTEST: Rebec Garza, City Secret License Agreement for the Regional Monument of Courage Page 7 of 7