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HomeMy WebLinkAboutResolution - 2008-R0288 - Contract To Provide The Use Of Fire Training Facility - South Plains College - 08_12_2008Resolution No. 2008—RO288 August 12, 2008 Item No. 5.40 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the City Manager 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 between the City of Lubbock and South Plains College to provide the use of the "Lubbock Fire Training Facility" to train students for basic fire suppression certification. 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 12th day of August 2008. eel7�'OA� TOM MARTIN, AYOR ATTEST: Rebecca Garza, City Secretary APPROVED AS TO FORM: City Attorney gs/ccdocs/SPC Fire Training Fac.res 7/29/08 Resolution No. 2008—RO288 CONTRACT FOR USE OF FIRE DEPARTMENT TRAINING FACILITIES This agreement (the "Contract") is made this 12th day of August , 2008, by and between the City of Lubbock, Texas, 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, including furniture, furnishings, and any and all equipment on the premises, and all else known as the "Lubbock Fire Training Facility" located at 1515-East Ursuline, Lubbock County, Texas. 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 be effective from October 1, 2008, through September 30, 2009. Thereafter, any extension of this contract must be approved in writing and by a resolution adopted by the Lubbock City Council. Time is of the essence. III. CONSIDERATION In consideration for this license, South Plains shall pay City $500.00 per month, payable on or before the first day of each quarter, beginning October 1, 2008, and ending September 30, 2009. In addition, South Plains shall lease clothing from City for each student at a cost of Fifty dollars and no/100 ($50.00) per student, per semester, or One hundred dollars and no/100 ($100.00) for two semesters. South Plains shall also reimburse City 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, in the course of performing under this contract, shall NOT: (a) drink alcoholic beverages; (b) smoke; (c) use, possess, sell or dispense any illegal drugs or medicines; (d) engage in disorderly conduct; (e) use the Property in a way other than is reasonably necessary for conducting the basic fire suppression certification training exercises; 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; (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; (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; (i) commit any waste on the Property; 0) maintain, commit, or permit the maintenance or commission of any nuisance on the Property; (k) use the Property for any unlawful purpose; (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; (m) commit, or cause to be committed, any waste on the Property; (n) obstruct or interfere with the rights of City's employees, or injure or annoy them; or (o) allow the premises to be used for any improper, immoral, unlawful, or objectionable purpose. 3 Any prohibited action taken is an automatic breach of this agreement justifying immediate termination by City. 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: Attn: Mr. Rob Blair South Plains College Box 4 1401 South College Avenue Levelland, Texas 79336 C. City's Address. The City's address and numbers for the purposes of notice City of Lubbock Attn: Rhea Cooper, Fire Chief 1515 East Ursuline Lubbock, Texas 79403 (806) 775-2630 (tel) (806) 775-3510 (fax) 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. VI. NONASSIGNABLE This contract is not assignable, and any attempt to assign this contract will be grounds to 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. VIII. 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 5 (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 (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 G "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 occurrence for personal injury or death and not less than $250,000.00 for each person pursuant to § 101.02") 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 7 (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 parties hereto hereby expressly state that it is their intent that each party shall maintain separate and distinct control over its 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. 8 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 waives all claims, releases, indemnifies and holds harmless the City of Lubbock, Texas, its Fire Department, agents, representatives, elected officials, 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 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 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 9 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 f❑+ 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 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. XXI. JOINT VENTURE It is the intent of the parties hereto that nothing herein shall be construed to create a joint venture between the City of Lubbock and South Plains College. XXII. MODIFICATION AND SUPPLEMENTATION This contract may be modified or supplemented at any time by advance mutual written consent. [THE REMAINDER OF THIS PAGE LEFT BLANK INTENTIONALLY] In witness whereof, the parties hereto have caused this contract to be executed by: CITY OF LUBBOCK 4�z , ��e' TOM MARTIN, MAYOR Date: August 12, 2008 ATTEST: RebeLlca Garza, City Secretary A OVE AS TO CONTENT: ea Cooper, ire Chief �.,, � ► � ems+ �!: � S03UTY PLAINS COLLEGE 4414� . - 09W IN W. SHARP, PRE DENT Date: 6.& lor 12 Resolution No. 2008-RO288 Exhibit "A" WAIVER AND RELEASE OF ALL CLAIMS This Waiver and Release of All Claims (Waiver) is entered into between the City of Lubbock, Texas (City) and the Undersigned Participants (Participants). DEFINITIONS City shall include the City of Lubbock, Texas, its representative officers, City Council, attorneys, agents, servants, officers, employees and all other persons, natural and corporate, in privity with them. Participants shall include those persons participating in fire training, including but not limited to students, staff and faculty, conducted pursuant to that certain License Agreement entered between the City and South Plains College (South Plains), pursuant to the terms of which, South Plains was granted a license for the use of fire training facilities owned or operated by City for the purpose of training its students (Participants) for basic fire suppression certification. RELEASE IN CONSIDERATION OF THE USE OF THE FIRE TRAINING FACILITIES, AS DESCRIBED IN THE SAID LICENSE AGREEMENT, THE UNDERSIGNED PARTICIPANT DOES HEREBY RELEASE, AND BY THESE PRESENTS DOES HEREBY ACQUIT AND FOREVER DISCHARGE THE CITY OF LUBBOCK, ITS REPRESENTATIVE OFFICERS, CITY COUNCIL, ATTORNEYS, THEIR AGENTS, SERVANTS, OFFICERS, EMPLOYEES, AND ALL PERSONS, NATURAL OR CORPORATE, IN PRIVITY WITH THEM FROM ANY AND ALL CLAIMS OR CAUSES OF ACTION ARISING FROM THE USE OF THE ABOVE DESCRIBED FIRE TRAINING FACILITY BY THE UNDERSIGNED. IT IS INTENDED BY THIS AGREEMENT AND RELEASE TO RELEASE ALLCLAIMS OF ANY KIND WHICH THE UNDERSIGNED PARTICIPANT HAS OR MAY HAVE AGAINST THE CITY OF LUBBOCK IN CONSIDERATION FOR THE USE OF THE SAID FIRE TRAINING FACILITY. THE UNDERSIGNED PARTICIPANT HEREBY AGREES TO WAIVE, RELEASE AND INDEMNIFY THE CITY OF LUBBOCK, EACH OF ITS REPRESENTATIVE OFFICERS, REPRESENTATIVES, AGENTS, CITY COUNCIL, ATTORNEYS, EMPLOYEES AND PERSONS IN PRIVITY WITH THEM FOR ANY AND ALL CLAIMS ARISING FROM THE UNDERSIGNED PARTICIPANT'S OR THE CITY'S NEGLIGNECE, GROSS NEGLIGENCE AND/OR INTENTIONAL OR MALICIOUS ACTS. The Undersigned Participant further assumes responsibility for any and all medical and/or chiropractic bills, subrogation claims and all claims incurred as a result of the use of the said fire training facility by the Undersigned Participant. THE UNDERSIGNED PARTICIPANT FURTHER AGREES TO INDEMNIFY AND HOLD HARMLESS THE CITY OF LUBBOCK, ITS AGENTS, OFFICERS, EMPLOYEES AND REPRESENTATIVES FROM THE FAILURE TO PAY SUCH MEDICAL BILLS AND/OR CHIROPRACTIC BILLS AND SUBROGATION CLAIMS. The terms of this Waiver and Release of All Claims are contractual and not merely recitals. Undersigned Participant warrants that this Waiver and Release of All Claims has been read and fully understood. This Waiver and Release of All Claims covers all claims known or unknown, present or future, resulting from the use of the fire training facility by the Undersigned Participant. Undersigned Participant has the legal authority and is legally competent to execute this Waiver and Release of All Claims. Furthermore, Undersigned Participant signs same of his or her own free will and accord without any reliance on any representation of any kind or character not expressly stated herein. This Agreement is valid and binding on all parties until rescinded in writing. This Waiver and Release of All Claims shall survive the termination of the said License Agreement. Witness Witness Print Name Signature Date Company or Department