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HomeMy WebLinkAboutResolution - 2022-R0322 - Contract 16734 with South Plains College and ATDSResolution No. 2022-R0322 Item No. 5.11 July 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 Personal Property License Agreement for the use of City owned vehicles by South Plains College's ("SPC") Professional Driver Training Program, operated by and through Career Education Inc., d/b/a ATDS ("ATDS"), a licensed third -party testing center registered with the Texas Department of Public Safety, by and between the City of Lubbock, SPC and ATDS, 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 July 26, 2022 T AYNE, R ATTEST: Rebec a Garza, City Secre APPROVED AS TO CONTENT: Assistant City Manager APPROVED AS TO FORM: Ryan B oke, Assis ant City Attorney RES.Personal Property License Agreement-SPC & ATDS 7.15.22 Resolution No. 2022-R0322 PERSONAL PROPERTY LICENSE AGREEMENT THIS AGREEMENT is entered into on this day of , 2022, by and between the City of Lubbock, Texas (the "City") a Texas ome Rule Municipal Corporation, South Plains College ("SPC"), and Career Education Inc., d/b/a ATDS ("ATDS"), SPC and ATDS collectively referred to herein as "Licensees." WHEREAS, SPC offers and provides a Professional Driver Training Program (the "Program"), operated by and through ATDS, a licensed third -party testing center registered with the Texas Department of Public Safety; and WHEREAS, SPC's driving school is registered and approved by the Federal Motor Carriers Safety Administration and is listed on the Training Provider Registry; and WHEREAS, students enrolled in the Program can obtain a CDL-B (Bus and Non - Combination Truck) License upon successful completion of the Program; and WHEREAS, the City desires to enroll City employees in the Program so that they may obtain CDL-B Licenses in order to operate certain City vehicle, including, but not limited to, City Garbage Collection Vehicles; and WHEREAS, the City further desires to provide Licensees with certain City vehicles in order to train City employees specifically with City vehicles. 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 to the personal property described in this Agreement and attached hereto as Schedule "A" (the "Property"). Article II Term of License Section 2.01. Term. The term of this Agreement is one year (the "Primary Term") beginning on the date of execution of this Agreement by all Parties, unless terminating sooner as provided in this Agreement. This Agreement may be renewed annually upon the mutual agreement of the Parties. The City and/or Licensees may elect to not extend the term of this Agreement in their sole discretion. Section 2.02. Termination. This Agreement will terminate without further notice when the term specified in §2.01 expires, and any holding over by Licensees after that term expires will not constitute a renewal of the Agreement or give Licensees any rights under the Agreement with regard to the Property. The City retains the right at its election to cancel and revoke this Agreement, with or without cause, at any time. Section 2.03. Holdover. If Licensees holds over and continues in possession of the Property after the Lease term (or any extension) expires, Licensees shall be considered to be possessing the property at will, subject to all the terms of this Lease. Article III Use of Property Section 3.01. Rights of Licensee. Licensees are entitled to the use, operation, possession, and control of the Property during the Agreement term, provided Licensees are not in default of any provision of the Agreement, and subject to any security interest the City may have given or may give to any third party during the Agreement term. Licensees shall employ and have absolute control, supervision, and responsibility over any operators or users of the Property. Section 3.02. Duties of Licensee. (a) Licensees must use the Property in a careful and proper manner. Licensees agree that the Property will be used in accordance with any applicable vendor's or manufacturer's manuals or instructions, by competent and fully qualified personnel only. Licensees agree to reimburse the City in full for all damage to the Property arising from any misuse or negligent act by Licensees, its employees, or its agents. (b) Licensees shall not permit any Property to be operated or used in violation of any applicable federal, state, or local statute, law, ordinance, rule, or regulation relating to the possession, use, or maintenance of the Property. Licensees will indemnify and hold the City harmless from all liabilities, fines, forfeitures, or penalties for violations of any statute, law, ordinance, rule, or regulation of any duly constituted public authority. Section 3.03. Limitation of Use. Licensees represent and warrant that the Property will be used strictly for the training and education purposes of City employees only. Licensees shall not permit any other person to use or train with or on the Property except for the use of Licensees and City employees. Article IV Maintenance, Repairs, and Alterations Section 4.01. Licensee Obligations. Licensees assume all obligation and liability concerning possession of the Property, and for its use, operation, condition, and storage during the Agreement term. Section 4.02. City Obligations. The City shall, at the City's expense, maintain the Property in good mechanical condition and running order, including reasonable wear and tear resulting from the ordinary use of the Property. The City shall, at the City's expense, provide all parts, mechanisms, and devices required to keep the leased Property in good repair, condition, and running order. Section 4.03. Alterations. Licensees shall not make any alterations, additions, or improvements to the Property without the prior written consent of City. Section 4.04. Accessions. All installations, additions, replacements, and substitutions of parts or accessories with respect to any of the Property under this Agreement constitute accessions. All accessions become part of the leased Property, are thus owned by the City and are subject to the terms of this Agreement. Article V Expenses Section 5.01. Operating Expenses. Licensees agree to pay for all expenses of operating the leased Property, including but not limited to fuel bills, and all other charges in connection with the operation of the Property. Section 5.02. Other Expenses. The City shall be responsible for any costs associated with license fees, registration fees, and all other non -operational charges in connection with the Property. The City shall be liable for any fees for licenses, registrations, permits, certificates of title, and other certificates as may be required for the lawful operation of the leased Property. Article VI City's Right of Inspection and Repair Section 6.01. Inspections. The City has the right to enter the premises where the licensed Property is located or operated for the purpose of inspecting the Property in order to ascertain its condition and manner of use. Such an inspection may be made by the City at its discretion, but only during Licensees' regular business hours. Section 6.02. Repair Remedy. If the City's inspection of the licensed Property, as described in Paragraph 6.01, reveals that any Property covered by this Agreement is not being properly maintained or utilized according to the provisions of this Agreement, the City has the right, but not the obligation, to have the Property repaired or maintained. Article VII Ownership Section 7.01. No Sale or Security Interest Intended. This Agreement constitutes a license of the Property described in Schedule A, and is not a sale or the creation of a security interest in the Property. The City at all times retains sole ownership and title to the Property, and Licensees do not have and will not, at any time, acquire any right, title, equity, or other interest in the Property, except the right to possession and use as provided for in this Agreement. Section 7.02. Identification Markings. The City has the right to place and maintain, on the exterior or interior of each piece of Property, any identifying markings deemed necessary by the City. Article VIII Indemnification and Liability Section 8.01. Risk of Loss and Liability Assumed by Licensees. Licensees assume all risk and liability for the loss of or damage to the Property, for the death of or injury to any person or property of another, and for all other risks and liabilities arising from the use, operation, condition, possession, or storage of the Property. Nothing in this Agreement authorizes Licensees or any other person to operate any of the Property so as to impose any liability or other obligation on the City. Section 8.02. Licensees' Duty to Indemnify. Licensees agree to indemnify, defend, and hold harmless the City, its agents, officers, and employees from all claims, loss, or damage the City may sustain for any of the following reasons: (a) Loss of, or damage to, any of the Property by any cause. (b) Injury to, or death of, any person, including but not limited to agents or employees of Licensees. (c) Damage to any property arising from the use, possession, selection, delivery, return, condition, or operation of the Property. Section 8.03. Liability for Fines and Penalties. Licensees have sole liability for, and must reimburse the City for, all expenses, losses, liabilities, fines, penalties, and claims of every type, including reasonable attorney's fees, imposed by any governmental or regulatory agency or entity by virtue of Licensees' use or operation of the Property, or because of the failure by Licensees to perform any of the Agreement terms. Section 8.04. Payment of Stipulated Loss Value. If the Property becomes lost, stolen, destroyed, or damaged beyond repair, Licensees shall pay the City, in a form acceptable to the City, the Stipulated Loss Value as set forth in Schedule A. This Agreement will terminate at the time of such payment with respect to that item of the Property for which payment is made. After paying the Stipulated Loss Value, Licensees are entitled to the Property on an as -is basis, without warranty by the City, express or implied, for any matter concerning the Property. Section 8.05. Obligations Survive Agreement Term. The indemnities, assumptions of risk, liabilities, and obligations of Licensees arising under this Agreement will continue in effect after the termination of the Agreement, regardless of the reason for termination. Section 8.06. Obligations Satisfied by Insurance. The indemnities, assumptions of risk, liabilities, and obligations of Licensees arising under this Agreement may be excused only to the extent that they are covered by the insurance policies described in Article 10 of this Agreement. Any payment received by the City from an insurance carrier shall be set off against the obligations described in this Article 8. Article IX Incidental Duties in Case of Accident, Loss of, or Damage to Property Section 9.01. Notification to City. If any of the Property under this Agreement is damaged, lost, stolen, or destroyed as a result of its operation, use, maintenance, or possession, Licensees shall promptly notify the City of the occurrence and shall file all necessary accident reports, including those required by law and those required by interested insurance companies. Section 9.02. Cooperation in Defense of Claims. Licensees and their employees and agents must cooperate fully with the City and all insurers providing insurance under this Agreement in the investigation and defense of all claims or suits. Licensees must promptly deliver to the City all papers, notices, and documents served on, or delivered to Licensees or their employees and agents in connection with any claim, suit, action, or proceeding at law or in equity commenced or threatened against Licensees or the City concerning the Property. Article X Insurance Section 10.01. Licensees' Obligation to Maintain Casualty Insurance. Licensees agree to maintain insurance in full force and effect against loss, theft, damage, or destruction of the Property. This insurance is at Licensees' sole cost and expense, but must name the City as an insured, additional insured, or loss payee. The insurance must be in an amount not less than $1,000,000 occ/$2,000,000 aggregate. Section 10.02. Licensees' Obligation to Maintain Liability Insurance. Licensees agree to carry public liability and property damage insurance, issued by an insurance carrier admitted to do business in the State of Texas with a Best's Rating of A-VII or better, insuring the interests of the City, Licensees, and their authorized agents and employees against all claims that may arise during the term of this Agreement that are in any way connected with the ownership, possession, operation, or use of the Property. [Add, if excess liability coverage desired] Lessee also agrees to carry, at Lessee's sole cost and expense, excess liability umbrella coverage in the amount of $1,000,000 occ/$2,000,000 aggregate. Section 10.03. Licensees' Obligation Regarding Workers' Compensation Insurance. Licensees' are responsible for any workers' compensation insurance that may be required under state law. Section 10.04. Insurance Certificate. Licensees agree to have insurers furnish to the City, no later than five (5) business days prior to the date on which the Property is delivered to Licensees, and no later than five (5) business days prior to the expiration date of any existing insurance, a certificate evidencing the insurance coverage required under Paragraphs 10.01, 10.02, and 10.03. The insurance policies must provide that the insurer will not cancel or materially modify the insurance except on thirty (30) calendar days advance written notice to the City. Section 10.05. Failure to Insure. Any failure on the part of the Licensees to procure, maintain, or renew the required insurance constitutes a default. In the event of such a default, the City may, but is not obligated to, obtain insurance for Licensees and at the expense of Licensees, without prejudice to any other rights the City may have under this Agreement. Licensees further agree to indemnify and hold harmless the City, its agents, officers, and employees from and against loss, liability, and expense, including reasonable attorney's fees, because of Licensees' failure to comply with any teens, provisions, and conditions of any insurance policy insuring the City and Licensees, or because of Licensees failure to comply with the terms and provisions of this Article. Article XI Circumstances Constituting Default by Licensees Section 11.01. The City may, at its option, declare Licensees in default by giving Licensees written notice of default on the occurrence of any of the following events: (a) Failure by Licensees to perform any of its obligations as set forth in this Agreement. (b) Expiration or cancellation of any insurance policy to be paid for by Licensees as provided for in Article 10 of this Agreement. (c) Involuntary transfer of Licensees' interest in this Agreement by operation of law. (d) Licensees' assignment of any interest in this Agreement. (e) Institution by or against Licensees of any proceedings in bankruptcy or insolvency, or the reorganization of Licensees under any law, or the appointment of a receiver or trustee for the goods and chattels of Licensees, or any assignment by Licensees for the benefit of creditors. Article XII Rights, Remedies, and Obligation on Default Section 12.01. City's Rights and Remedies. 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, this provision shall control. If the Lessee defaults, and if a notice of default is given as specified in Article 11 and the default remains uncorrected for five (5) business days, the City may exercise any one or more of the following remedies: (a) Termination of the Agreement and Licensees' rights under this Agreement as to any or all items of Property. (b) Repossession of the Property without legal process, free of all rights of Licensees in and to the Property. By this provision, Licensees expressly authorizes the City or the City's agent to enter any premises owned or controlled by Licensees, or Licensees' agents and assigns, where the Property is located for the purpose of repossessing and removing the Property. Licensees specifically waive any right of action Licensees might otherwise have arising out of the entry and repossession, and releases the City from any claim for trespass or damage caused by reason of the entry, repossession, or removal. Any repossession of one particular item under this Agreement with respect to which Licensees are in default does not constitute a termination of this Agreement as to any other items of equipment, unless the City expressly so notifies Licensees in writing. Section 12.02. Licensees' Obligation for City's Costs and Attorney's Fees. If Licensees default, Licensees shall reimburse the City for all reasonable expenses of repossession and enforcement of the City's rights and remedies. Notwithstanding any other provisions of this Agreement, if the City places all or any part of the City's claim against Licensees in the hands of an attorney for collection, Licensees shall pay the City's reasonable attorney's fees. Section 12.03. Remedies Cumulative. The remedies of the City set forth in this Article are cumulative to the extent permitted by law and may be exercised partially, concurrently, or separately. The exercise of one remedy does not preclude the exercise of any other remedy. Section 12.04. Failure to Enforce Not Waiver. Any failure or delay on the part of the City to exercise any remedy or right under this Agreement is not a waiver. The failure of the City to require performance of any of the terms, covenants, or provisions of this Agreement by Licensees will never constitute a waiver of any of the rights under the Agreement. No single or partial exercise by the City of any remedy or right precludes any other or further exercise of that remedy or right or the exercise of any other rights or remedies. No forbearance by the City to exercise any rights or privileges under this Agreement is a waiver, but all rights and privileges continue in effect as if no forbearance occurred. Section 12.05. Forfeiture of Licensees' Interest on Default. If Licensees default for any reason and this Agreement is terminated and the Property repossessed, Licensees and Licensees' successors in interest shall have no right, title, or interest in the Property, its possession, or its use. Article XII Sale or Encumbrance Section 13.01. Sale or Disuosal Prohibited. Licensees may not part with possession or control of the Property. Nor may Licensees sell, mortgage, or attempt to sell or mortgage any of the Property. Licensees may not otherwise dispose or attempt to dispose of any of the Property or any interest under this Agreement. On the occurrence of any of these events, Licensees will be in default. Section 13.02. Encumbrance Prohibited. Licensees may not pledge, encumber, create a security interest in, or permit any lien to become effective on any of the Property. On the occurrence of any of these events, Licensees will be in default. Licensees must promptly notify the City of any liens, charges, or other encumbrances of which Licensees have knowledge. Licensees must promptly pay or satisfy any obligation from which any lien or encumbrance arises. Licensees must deliver to the City appropriate satisfactions, waivers, or evidence of payment of any lien or encumbrance. Article XIV Return of Property on Expiration of Agreement Section 14.01. Licensees' Duty to Return. On the expiration of the Agreement, or on any earlier termination of this Agreement, Licensees must return any item or all of the Property to the City in good repair, condition, and working order, less normal wear, tear, and depreciation. All Property required to be surrendered must be returned in the manner specified by the City at the time of expiration or termination. Section 14.02. Failure to Return Property. If Licensees fail or refuse to return the Property to the City at the expiration of the Agreement term or at some earlier termination of this Agreement, the City has the right to take possession of the Property without legal process, free of all rights of Licensees in and to the Property. By this provision, Licensees expressly authorize the City or the City's agent to enter any premises owned or controlled by Licensees, or Licensees' agents and assigns, where the Property is located for the purpose of repossessing and removing the Property. Licensees specifically waive any right of action Licensees might otherwise have arising out of the entry and repossession, and releases the City from any claim for trespass or damage caused by reason of the entry, repossession, or removal. Article XV General Provisions Section 15.01. 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 15.02. 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: Brenda Haney, Director of Solid Waste P.O. Box 2000 Lubbock, TX 79457 Phone: (806) 775-2335 South Plains College Attn: Dr. Robin Satterwhite, President 1401 S. College Ave. Levelland, TX 79336 Career Education Inc., d/b/a ATDS Attn: Robert Hunt, ATDS School Director 124 Truckers Ln Elm Mott, TX 76640 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 15.02. Section 15.03. No Assignment. This Agreement 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 Agreement, without such consent shall terminate the Agreement granted herein. Section 15.04. 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 15.05. Relationship of Parties. The relationship between the City and Licensees 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 15.06. 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 15.07. Time. Time is of the essence of this Agreement. Section 15.08. 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 15.09. 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 15.10. Prior 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. other provision of this Agreement, and this Agreement shall be construed as if it had not included the invalid, illegal or unenforceable provision. Section 15.10. Prior 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 15.11. 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 15.12. Captions. Captions are for convenience only and shall in no way effect the interpretation of this Agreement. Section 15.13. Representations. Licensees represent and warrant to City (i) that they possess the legal authority to enter into this Agreement and have 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 15.14. License Agreement. The intent of this Agreement is to grant a License to Licensees to utilize the Property 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 Property, or as conveying to Licensees any interest in the Property. AGREED TO AND ACCEPTED this Z� day of 32022. CITY,PF+�BBOCK SOUTH PLAINS COLLEGE: A YOR Dr. Robin Satterwhite, President ATTEST: CAREER EDUCATION INC. DBA ATDS: Rebe ca Garza, City Sec et pn LL�t Ro6eVt Hunt, ATDS School Director AS TO Wo Fr lin, P.E., iv' ion FXrector of Public Works APPROVED AS TO FORM: