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HomeMy WebLinkAboutResolution - 2003-R0491 - License Agreement For Use Of Former Fire Station - Eddie Dixon Of Lubbock - 10_23_2003Resolution No. 2003-RO491 October 23, 2003 Item No. 48A 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 by and between the City of Lubbock and Eddie Dixon of Lubbock, Texas, for use of the former fire station located at 2202 Avenue X, 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 Council. Passed by the City Council this ATTEST: Retie ca Garza, City Secretary APPROVED AS TO CONTENT: Harlan Sta T� Manager APPROVED AS TO FORM: Richard K. Casner First Assistant City Attorney Ke/ccdocs/LicenseAgreement.Artist.reso October 15, 2003 23rd day of ctober , 2003. ARC fMCDOUGAL, MAYOR Resolution No. 2003—RO491 October 23, 2003 Item No. 48A LICENSE AGREEMENT This License Agreement (the "Agreement") is entered into on this 23rd day of October 2003, but effective November 1, 2003, between the City of Lubbock, Texas (the "City"), a Texas home rule corporation, and Eddie Dixon (the "Artist"). RECITALS WHEREAS, the City currently owns and operates the former fire station located at 2201 Avenue X, Lubbock, Texas, 79411 (the "Center"), and being located upon the lands described in Exhibit "A", attached hereto (the "Lands"); WHEREAS, the Center is now vacant and provides no recreational opportunities or activities to the residents of the City; WHEREAS, the Artist desires to perform certain services and/or functions regarding art sculpting and art display activities at the Center; WHEREAS, it is the belief of the City and the Artist that the activities contemplated herein will provide recreational and educational activities and opportunities to the youth of the City; and WHEREAS, for the purposes of the promotion of recreational opportunities of the citizens of the City, the City and the Artist now desire to enter into this Agreement. ARTICLE I Section 1.01. Term. The term of this Agreement shall be ten (10) years, beginning on the date of the execution of this Agreement by City, and ending on the loth annual anniversary of such date (the "Primary Term"), unless terminated sooner as provided in this Agreement. License Agreement — Artist Page 1 of 15 For the consideration herein expressed, the City reserves and is hereby granted an option to extend the term of this Agreement for five (5) successive option periods of one (1) year each. Each option may be exercised by providing notice to the Artist on or before ten (10) days before the expiration of the Primary Term, or option period, whichever is applicable. Upon termination or expiration of this Agreement, Artist shall immediately vacate the Center and the Lands. Any holding over by the. Artist, except as provided otherwise in this Agreement, shall not constitute a renewal of this Agreement, or provide Artist any rights whatsoever under this Agreement and/or to the Center or Lands. Section 1.02. Consideration. In consideration for the granting of this Agreement, Artist shall design, construct and deliver to the City, on or before January 1, 2007, for its use at a location of its choice, one (1) sculpture production item (the "Production Item") comparable in value to the "Knight of the Llano Estacado" currently on display at City's Civic Center, depicting an historical event, person(s), or place(s). Artist shall consult with the City and Civic Lubbock, Inc. in the planning preparations of the Production Item, including, without limitation, the subject of the Production Item and the location of the placement of the Production Item upon completion. The City or Civic Lubbock, Inc. shall pay the necessary casting fees for the Production Item (the "Casting Fees") up to a maximum amount of forty thousand dollars ($40,000.00). The initial design of the subject Production Item shall be completed sometime in the year 2005. The City shall pay the Casting Fees in the City's October 1, 2005 —September 30, 2006, fiscal budget year. License Agreement — Artist Page 2 of 15 i 2jM�_ 4I ARTICLE II Section 2.01. aerations. Artist shall operate and maintain the Center as his workshop and studio and to provide recreational and educational activities and opportunities to the citizens of the City. The recreational activities and opportunities shall include, but shall not necessarily be limited to, the following: 1. Artist shall conduct one (1) workshop each year of this Agreement with no less than twenty (20) students per workshop on various sculpting and other art related techniques. 2. Artist shall provide various opportunities to the youth of the City to view sculpting and other art work activities of the Artist. 3. Artist may invite persons to the Center for various demonstrations and/or lecturing events. Section 2.02. Improvements. Artist shall make no alterations, modifications, or improvements to the Center or to the Lands without the prior written consent of the City. In the event any such modification, alteration, or improvement is approved by City, as provided herein, such modification, alteration, or improvement shall become the property of the City upon the termination of this Agreement. Section 2.03. Ownership of Center. The Center, and any other buildings, improvements, additions, alterations, modifications and fixtures constructed, placed, located and/or maintained, if any, on any part of the Lands during the term of this License Agreement — Artist Page 3 of 15 Agreement, are considered part of the real property and shall remain on the Lands, and and/or become property of the City, from and after the termination of this Agreement. Section 2.04. Access of Public. The Center and the Lands shall be open to the general public, as described in Section 2.01, above, as designated by the Artist. The Artist shall not permit any discrimination because of race, color, sex, religion, national origin, physical handicap or disability. Section 2.05. Utilities and Maintenance. The Artist shall be responsible for providing and/or furnishing all utilities to the Center and shall bear any and all expenses regarding the utilization of same in connection with the operation of the Center, as set forth herein. Except as provided herein, the Artist shall make all necessary repairs and replacements to the Center, of any type or nature, and perform all routine minor maintenance of the Center. The City shall provide maintenance for the major structural issues, the HVAC system and the roof of the Center. The Artist shall perform maintenance of all other systems not expressly the responsibility of the City, as provided herein. Section 2.06. Prohibition on Encumbrance. The Artist shall not encumber the License granted herein, the Lands, and/or the Center, in any way, manner or form. Further, the Artist 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 the Center or other improvements 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 Artist or any contractors or subcontractors of the Artist. License Agreement — Artist Page 4 of 15 { Section 2.07. Right of Entry — City. The City shall have the right of entry, in, on, under, over and/or across the Lands, at any and all times, and for any and all purposes. The City, with the consent of the Artist, may have the right of entry upon and in the Center, said consent not to be unreasonably withheld. Section 2.08. Maintenance. At all times during the term of this Agreement, the Artist shall keep or cause to be kept the Center and the Lands, including the parking facilities, in a good state of appearance, and of sufficient cleanliness and organization to be utilized for the purposes described herein, as determined by the City, in its sole discretion. Further, the Artist shall take each and every action necessary to prevent the deterioration and/or destruction, of any kind or type, to the Center, ordinary wear and tear excepted. Section 2.09 Security. The Artist shall take any and all actions necessary to protect the improvements and persons who enter upon the Center and/or Lands. The Artist shall inspect, on as frequent a basis as necessary, the Center and the Lands to identify and remedy all premise defects upon the Center and/or Lands. In the event the City possesses the obligation to perform maintenance in the area upon which the premise defect is discovered by the Artist, the Artist shall notify the City of such premise defect in writing, no later than twenty-four (24) hours after such discovery. ARTICLE III Section 3.01. Indemnity and Release. THE ARTIST SHALL INDEMNIFY AND HOLD HARMLESS, TO THE FULLEST EXTENT PROVIDED BY LAW, THE CITY, AND THE CITY'S RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND AGENTS, FROM AND AGAINST ANY AND ALL LOSSES, License Agreement — Artist Page 5 of 15 C� 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, THE OMISSION OF THE ACTIVITIES CONTEMPLATED HEREUNDER, OR THE ARTIST'S OCCUPATION OF THE CENTER AND/OR LANDS, 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 THIRD PARTIES AND/OR CAUSED OR CONTRIBUTED TO THE NEGLIGENCE OR FAULT OF ANY KIND, TYPE, OR DEGREE OF CITY, ITS RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS, AND/OR AGENTS. ARTIST 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, OCCURRING 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, ARTIST SHALL PAY TO THE CITY, THE CITY'S RESPECTIVE OFFICERS, EMPLOYEES, ELECTED License Agreement — Artist Page 6 of 15 2Uo3- i��G! OFFICIALS AND/OR AGENTS, AS APPLICABLE, REASONABLE AND NECESSARY ATTORNEY'S FEES INCURRED BY SUCH PARTIES IN ENFORCING THE ARTIST'S INDEMNITY IN THIS SECTION. THE CITY, AND ITS RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS, AND AGENTS, SHALL NOT BE LIABLE, AND ARTIST 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 ARTIST, ON ANY THEORY OF LEGAL LIABILITY, INCLUDING, BUT NOT LIMITED TO THE NEGLIGENCE, OF ANY KIND, TYPE OR DEGREE, OR FAULT, OF THE CITY OR ARISING FROM OR RELATED TO, IN ANY WAY, MANNER, 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 3.02. Insurance. Artist shall procure and carry, at his 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 Artist has indemnified the City, as provided in Section 3.01, hereof. A Certificate of Insurance specifying each and all coverages shall be submitted to the City prior to the execution of this Agreement. Artist shall provide to the City proof of License Agreement — Artist Page 7 of 15 2�U:�2-�LoLA i 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. Artist shall have comprehensive general liability insurance, with limits of $500,000.00 combined single limit in the aggregate and per occurrence. The City shall be named as an additional insured in such policy and policy shall contain a Waiver of Subrogation. B. Property Insurance Coverage. Artist shall obtain a Property Damage Insurance policy in the amount for property damage sufficient to cover personal property contained in the Center. This insurance coverage shall include coverage against casualty or damage, including, but not limited to, damage caused by fire and/or vandalism to any personal property located on the Lands. Such policy shall contain a Waiver of Subrogation. C Property Damage Insurance. City shall obtain a Property Damage Insurance Policy in the amount, at a minimum, of the value of the Center. This insurance coverage shall include coverage against casualty or damage, including but not limited to, damage caused by fire and/or vandalism to the Center and any other buildings located on the Lands. License Agreement — Artist Page 8 of 15 200 0412A ARTICLE IV Section 4.01 Default. An Event of Default (herein so called) shall exist if any one or more of the following events occur: (a) The Artist shall default, in any way, manner or form, in the performance of any of the covenants, provisions and/or terms of this Agreement; (b) The Artist shall (i) apply for or consent to the appointment of a receiver, custodian, trustee, intervener, or liquidator of himself or of all or a substantial part of his assets, (ii) voluntarily become the subject of a bankruptcy, reorganization or insolvency proceeding or be insolvent or admit in writing that he is unable to pay his debts as they become dues, (iii) file a petition or answer seeking reorganization or an arrangement with creditor 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 him before the expiration of thirty (30) days after such judgment becomes final. Section 4.02. Remedies upon Event of Default. If an Event of Default shall have occurred and be continuing, then the City may (i) declare this Agreement, and all rights and interests created by it, terminated; and (ii) pursue and enforce any rights of the City as provided under or pursuant to any applicable law or this Agreement. License Agreement — Artist Page 9 of 15 LA R 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. The remedies provided to the City by law, equity, this Agreement or otherwise, are cumulative, to the extent allowed by law. The exercise by the City of the remedies provided herein shall not constitute an election of remedies, and the City, irrespective of its exercise of remedies as provided herein, or a portion hereof, shall be entitled to exercise, concurrently or otherwise, any and all remedies available to it by law, equity, this Agreement or otherwise. ARTICLE V 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 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 5.02. 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: Harlan Stauffer, or Successor Facilities Manager P.O. Box 2000 Lubbock, Texas 79457 Telephone: (806) 775-3078 Facsimile: (806) 775-3267 Artist: Name: Eddie Dixon Mailing Address: 7806 I-27 Lubbock, Texas 79404 Telephone: (806) 787-1821 Facsimile: (806) 762-5002 License Agreement — Artist Page 10 of 15 i With copy to: Sid Beach, or Successor Maintenance Supervisor P. O. Box 2000 Lubbock, Texas 79457 Telephone: (806) 775-2276 Facsimile: (806) 775-3267 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 party may change its or his 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. Assi nment. The Artist shall not assign this Agreement, the Center, the Lands, or any rights granted by this Agreement. Any attempt to assign this Agreement, the Center, the Lands, or any rights granted by this Agreement, shall terminate this Agreement. 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 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 the Artist shall not be deemed, in any event, a partnership or a joint venture. Section 5.06. Compliance with Applicable Law. The Artist 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, the operation License Agreement — Artist Page 11 of 15 qOO�) -U)49 i of the Center, and/or any other aspect of the activities described in or contemplated by this Agreement. Section 5.07. Time of the Essence. 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 laws, 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 Lubbock County, Texas. Section 5.09. 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 5.10. Agreements Superseded. This Agreement constitutes the parties' sole agreement and supersedes any prior understandings or written or oral agreement 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. 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 License Agreement — Artist Page 12 of 15 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 5.13, Exhibits. The exhibits which are referenced, and attached to this Agreement, are incorporated in and made a part of this Agreement for all purposes. Section 5.14. Captions. Section captions are for convenience only and shall in no way affect the interpretation of this Agreement. Section 5.15. License Agreement. The intent of this Agreement is to grant a license to the Artist to utilize the Lands and Center 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 Center or as conveying to the Artist any interest in the real property comprising the Lands. License Agreement — Artist Page 13 of 15 1v-;S— &4 l Executed and effective as of the date of the execution hereof by the City of Lubbock. CITY OF LUBBOCK OUGAL, MAYOR ATTEST: " Rebecca Garza, City Secretary APPROVED AS TO CONTENT: Harlan Stauffer, Facilit' anager APPROVED AS TO FORM: Richard K. Casner First Assistant City Attorney License Agreement — Artist Page 14 of 15 Resolution No. 2003—R 0491 EXHIBIT "A" The South thirty (30) feet of Lots Ten (10), Eleven (11), and Twelve (12) and all of Lots Thirteen (13), Fourteen (14), and Fifteen (15), Block Fifty -Seven (57), McCrummens Second Addition to the City of Lubbock, Lubbock County; Texas. RKC:ke/cityatt/Richard/LICENSE AGREEMENT.Artist October 14, 2003 License Agreement — Artist Page 15 of 15