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HomeMy WebLinkAboutResolution - 2003-R0508 - Contract With South Plains College - 11_06_2003Resolution No. 2003-RO508 November 6, 2003 Item No. 44 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 Contract by and between the City of Lubbock and South Plains College, and any other related documents. Said Contract 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 6th day ATTEST: ty Secretary APPROVED AS TO CONTENT: APPROVED AS TO FORM: gs/ccdocs&Cityatt/John/COL-S PCollege.res-3 October 20, 2003 Resolution No. 2003-RO508 November 6, 2003 Item No. 44 CONTRACT FOR USE OF FIRE DEPARTMENT TRAINING FACILITIES This Agreement is made this 6th day of November , 2003, by and between the City of Lubbock, hereinafter referred to as "City," and the South Plains College, hereinafter referred to as "South Plains," on the following terms and conditions. RECITALS WHEREAS City is the owner of the following described real property (the "Property"): the buildings, land on which the building is situated, drill tower, burn pits and fixtures and all else known as the "Lubbock Fire Training Facility" located at 1515-East Ursuline, Lubbock County, Texas, including the furniture, furnishings, and equipment on the premises. WHEREAS South Plains desires to exercise certain privileges upon the Property. NOW, THEREFORE, it is mutually agreed by and between City and South Plains as follows: I. LICENSE South Plains shall have the right to use the property to train its students for basic fire suppression certification. II. TERM The term of this Agreement shall extend from October 1, 2003, through September 30, 2008. Thereafter, any extension of this contract must be approved by a resolution adopted by the Lubbock City Council. 1 2L�3-��og III. CONSIDERATION In consideration for this license, South Plains shall transfer to the City all of it's right title and interest in a certain 1985 Oshkosh Fire Truck, VIN #lOT6L5BE1E10250069, Texas Exempt License # 778-218. In addition, South Plains shall lease protective clothing for each student at a cost of Eighty-five dollars and no/100 ($85.00) per student, per semester or One hundred seventy dollars and no/100 ($170.00) for two semesters. South Plains shall also provide as necessary, the actual costs of the following items for each student: Firefighting boots Suspenders Nomex hoods Gloves All payments shall be made to the City of Lubbock Fire Department at P.O. Box 2000, Lubbock, Texas, 79457 or such other place as City may designate by written notice to South Plains. IV. LIMITATIONS ON USE AND OCCUPATION OF PROPERTY South Plains, South Plains' students, faculty, agents, representatives and personnel shall NOT: (a) drink alcoholic beverages; nor (b) smoke; nor (c) use, possess, sell or dispense any illegal drugs or medicines; nor (d) engage in disorderly conduct; nor (e) use the Property in a way other than is reasonably necessary for conducting the basic fire suppression certification training exercises; nor 2 (f) allow anyone not in the South Plains program, such as family members or friends of training participants, to come onto the Property, without prior approval of the parties hereto; nor (g) commit or permit any act or acts in or on the Property or in any manner that will create liability or that will cause a cancellation of any insurance policy covering the Property, South Plains, South Plains' students, faculty, agents, representatives or personnel; nor (h) keep, leave, store or use personal property or permit any such product or article to be kept, held, stored, used, or sold in or on the Property; nor (i) commit any waste on the Property; nor (j) maintain, commit, or permit the maintenance or commission of any nuisance on the Property; nor (k) use the Property for any unlawful purpose; nor (1) permit anything to be done in or about the Property that will in any way conflict with any law, ordinance, rule, or regulation, affecting the occupancy and use of the Property, that has been or may be enacted or promulgated by any public authority; nor (m) commit, or cause to be committed, any waste on the Property; nor (n) obstruct or interfere with the rights of City's employees, or injure or annoy them; nor (o) allow the premises to be used for any improper, immoral, unlawful, or objectionable purpose. Any prohibited action taken is an automatic breach of this agreement justifying immediate termination by City. N V. NOTICE A. General. Whenever notice from Contractor to City or City to Contractor is required or permitted by this Contract and no other method of notice is provided, such notice shall be given by (1) actual delivery of the written notice to the other party by hand, (2) facsimile, or other reasonable means (in which case such notice shall be effective upon delivery), or (3) by depositing the written notice in the United States mail, properly addressed to the other party at the address provided in this article, registered or certified mail, return receipt requested, in which case such notice shall be effective on the third business day after such notice is so deposited. B. Contractor's Address. Contractor's address and numbers for the purposes of notice are: are: South Plains College Rob Blair Attn: Box 4 1401 S. College Ave. Levelland, Texas 79336 C. City's Address. The City's address and numbers for the purposes of notice City of Lubbock Attn: Steve Hailey, Fire Chief 1515 E. Ursuline Lubbock, Texas 79403 D. Change of Address. Either party may change its address or numbers for purposes of notice by giving written notice to the other party, referring specifically to this Contract, and setting forth such new address or numbers. The address or numbers shall become effective on the 15th day after such notice is effective. 4 VI. NONASSIGNABLE This contract is personal to South Plains. It is not assignable and any attempt to assign this contract will terminate the contract. VII. TERMINATION If either party wishes to terminate this Agreement, it is understood that written notice shall be given to the other party at least thirty (30) days prior to the end of the semester, unless otherwise stated herein. VII. CITY'S DUTIES City will maintain the leased premises and make all necessary repairs, except that South Plains will make all repairs of the leased premises occasioned by its negligent, willful, wanton, grossly negligent or reckless use of the Property, and except as City and South Plains may have expressly agreed otherwise in this license. IX. SOUTH PLAINS' DUTIES A. South Plains, its agents or representatives must, with regard to the Property: (1) repair any and all damage to the Property caused as a result of its students, personnel, agents or representatives' actions and arrange for immediate repairs at a mutually agreed time; and (2) assure that its students, personnel, agents or representatives keep the Property clean, sanitary, and free from all accumulations of debris; and (3) dispose from the Property all debris and garbage in a clean and sanitary manner; and 5 2003- (LO609 (4) properly use and operate all electrical, gas, and plumbing fixtures and keep them as clean and sanitary as their condition permits; and (5) deny any person on the premises with South Plains' permission to willfully or wantonly destroy, damage, or remove any part of the Property or the facilities, equipment, or appurtenances. B. South Plains, its agents or representatives must: (1) control and supervise all training and learning experiences; and (2) assure observance by students, personnel and faculty of the City's written policies and procedures; and (3) assign students to only those times and areas of the Property where there is a qualified supervisory person directly responsible for student performance; and (4) assure the City that the students and faculty are covered by liability insurance for the duration of the contract and provide to the City Secretary a certificate of coverage; and (5) assure the City that the students and faculty have signed the release, which is attached and incorporated by reference as Exhibit "A," for the prior to entering the Property and provide to the City Secretary a copy of the release; and (6) provide liability insurance coverage against claims for personal injury, death or property damage occurring in connection with acts or omissions of its administrative personnel, faculty staff members and students while participating in the Program at the City. The limits of such insurance shall not be less than $500,000.00 per 6 2063 - 02 609 occurrence for personal injury or death and not less than $250,000.00 for each person pursuant to § 101.023 of the Texas Tort Claims Act. All insurance required under this Agreement will name the City of Lubbock, Texas, as an additional insured. No such policy shall be subject to cancellation or reduction of coverage or other modifications except upon at least ninety (90) days prior written notice to the City; and (7) provide a list to the City of the approximate number of students that will be using the Property and the dates involved; and (8) assist in the orientation of the students to the Property and clear channels of administration for the use of equipment and records as necessary for teaching purposes; and (9) require that a student withdraw whose conduct or training performance may have a detrimental effect on the City's staff or Property; and (10) require that a student withdraw who has failed to have the requisite insurance throughout the duration of the program or failed to sign a release prior to entering the Property; and (11) replace all goods and supplies used while on the Property. X. MUTUAL DUTIES City and South Plains will jointly resolve any matter wherein the City desires to summarily exclude from the Property any person who is deemed undesirable or is deemed dangerous or disruptive to City's employees or property. The provisions of this section notwithstanding, in all other matters which are the subject of this agreement, the 7 parties hereto hereby expressly state that it is their intent that each party shall maintain separate and distinct control over it's duties under this agreement. XI. DEFAULT AND TERMINATION Should City or South Plains' respective agents or representatives default in the performance of any provision of this Agreement, and not correct the default within ten (10) days after default, the nondefaulting party may declare this Agreement, and all rights and privileges and interests created by it, to be terminated. Upon nondefaulting party's electing to terminate, this Agreement shall cease and come to an end as if the day of nondefaulting party's election were the day originally fixed in this Agreement for its expiration, provided that, should defaulting party cure all defaults within the ten (10) day notice, this Agreement shall not be canceled. Nondefaulting party may, in its discretion, allow defaulting party more than ten (10) days to cure defaults if such time is, in the opinion of nondefaulting party, reasonably necessary or shortened where stated herein. XII. NONDISCRIMINATION South Plains, for itself, its representatives, and agents, as a part of the consideration hereof, does hereby agree that no person on the grounds of race, color, national origin, or disability shall be excluded from participation in, denied the benefit of, or be otherwise subjected to discrimination in the use of the Property. XIII. CITY'S LIABILITY To the extent allowed by the laws and the Constitution of the State of Texas, South Plains waive all claims, release, indemnify and hold harmless the City of Lubbock, Texas, its Fire Department, agents, and employees, in both their public and private capacities, from any and all liability, claims, suits, demands or causes of action which may arise as a direct result of the negligent use by agents and employees of South Plains Q 2003- rc-0,5o� of the City of Lubbock facilities. It is the express intention of the parties hereto, both South Plains and the City of Lubbock, that the indemnity provided for in this paragraph is not indemnity by South Plains to indemnify and protect the City of Lubbock from the consequences of the City of Lubbock's own negligence. It is further understood and agreed that the South Plains' students assigned to and participating in the training program are not employees of the City and are not entitled to any benefits, such as those covered by the Workmen's Compensation Act. XIV. IMMUNITY It is expressly understood and agreed that, in the execution of this Contract, neither party waives, nor shall be deemed hereby to waive, any immunity or defense that would otherwise be available to it against claims arising in the exercise of governmental powers and functions. XV. RESOLUTION This agreement shall be executed by the duly authorized official(s) of the party as expressed in the approving resolution or order of the governing body of such party, a copy of which is attached hereto, and this agreement shall remain in effect until rescinded by resolution or order of such governing body and notice of that action is transmitted in writing to all other parties to this agreement. XVI. ENTIRE AGREEMENT This Contract embodies the complete agreement of the parties hereto superseding all oral or written previous and contemporary agreements between the parties relating to matters herein and, except as otherwise provided herein, cannot be modified without written agreement of the parties. XVII. VENUE The parties to this Contract agree and covenant that this Contract will be enforceable in Lubbock County, Texas; and that if legal action is necessary to enforce this Agreement exclusive venue will lie in Lubbock County, Texas. XVIII. SEVERABILITY If any of the terms, sections, subsections, sentences, clauses, phrases, provisions, covenants, conditions or any other part of this Contract are for any reason held to be invalid, void or unenforceable, the remainder of the terms, sections, subsections, sentences, clauses, phrases, provisions, covenants, conditions or any other part of this Contract shall remain in full force and effect and shall in no way be affected, impaired or invalidated. XIX. APPLICABLE LAW This Agreement is entered into subject to the City Charter and Ordinances of the City of Lubbock and as they regulate the operations of its fire department, as they may be amended from time to time and is subject to and is to be construed, governed and enforced under all applicable State of Texas and Federal law. Situs of this Agreement is agreed to be Lubbock County, Texas, for all purposes including performance and execution. XX. NON -WAIVER It is further agreed that one or more instances of forbearance by the parties hereto in the exercise of their rights herein, shall in no way constitute a waiver of any such rights. 10 XXI. JOINT VENTURE It is not the intent of the parties hereto and nothing herein shall be construed to create a joint venture between The City of Lubbock and South Plains College. XXII. MODIFICATION AND SUPPLEMENTATION This Agreement may be modified or supplemented at any time by mutual written consent. This Agreement replaces that Agreement between South Plains and City authorized by the City Council and executed on August 6, 2003. by: In witness whereof, the parties hereto have caused this Agreement to be executed CITY OF L WE MAYOR SO Lo Dr. Gary 15. McDaniel, President Date: November 6, 2003 Date: &A 15 , ; 003 ATTEST: Rebecca Garza, City Secretary APPROVED AS TO CONTENT: APPROVED AS TO FORM: �ohn. Knight, ;��-sistanttorney JMK:sh L:\Cityatt\John\SouthPlains-COL-3.Agmt October 13, 2003 11