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HomeMy WebLinkAboutResolution - 2005-R0161 - License Agreement - Atmos Energy Corporation - Memorial Construction - 04/15/2005April 14, 2 Item 41 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 for the Construction of Memorial, by and between the City of Lubbock and Atmos Energy Corporation. Said 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 14th day of April 2005. i A -.'� MA ­RC McDOUOA-L,• • ATTEST: Rebecca Garza, City Secretary 13 APPROVED AS TO CONTENT: RanOf Trues 11, Community Services Director APPROVED AS TO FORM: Richard K. Casner, First Assistan ity Attorney mUccdocs/LicenseAgreement-McCoolMemorial. res April 14, 2005 LICENSE AGREEMENT FOR THE CONSTRUCTION OF MEMORIAL THIS Agreement dated the 14th day of April, 2005, is by and between Atmos Energy Corporation, a Texas and Virginia corporation ("Constructor"), and the City of Lubbock, Texas, a Texas home rule municipal corporation ("City"). WHEREAS, City owns Henry Huneke Park, located at 82°a Street and Nashville Avenue within the City of Lubbock; WHEREAS, Constructor, as part of its participation with the Lubbock Chamber of Commerce Foundation and others in the promotion of a project to construct a memorial in Henry Huneke Park ("Memorial Project") in honor of Willie McCool, an astronaut who lost his life in the space shuttle tragedy occurring in February of 2003, desires to construct or cause to be constructed the Memorial Project on behalf of the project participants; WHEREAS, City desires that said memorial 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 Constructor, 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 the Memorial Project. Section 1.02. Term. The term of this License is thirty(30) days, beginning on the date of the execution of this Agreement by the City, and ending thirty (30) days after such date. Article II Improvements Section 2.01. Site Plan. On or before ten (10) days after the effective date of this Agreement, Constructor shall submit to the City a detailed Site Plan (herein so called), including the specific location and appearance of all permanent improvements 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. Constructor shall submit a copy of the Site Plan to the City not less than fifteen (15) days prior to commencement of any construction activities. The Site Plan is subject to review and approval by the City and the Parks and Recreation Board of the City, or their successors, and if required by law, any other parties or entities, including without limitation, the State of Texas, and the Texas Parks and Wildlife Department. Any such parties may request reasonable 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. Constructor shall construct, or cause to be constructed, and locate upon Henry Huneke Park, all structures as depicted in the Site Plan, on or before thirty (30) days after the effective date of this Agreement. Constructor shall clean and restore Henry Huneke Park to the extent it has been affected by the above described construction, to its original condition, as is reasonably practicable, and vacate Henry Huneke Park on or prior to the termination of this Agreement. Section 2.03. A roval 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, and if required by law, any other parties, including without limitation, the State of Texas and the Texas Parks and Wildlife Department. All construction activities shall be conducted and completed in compliance with all applicable permits, ordinances, regulations and statutes now or hereinafter existing. The City, and any other party having the right of approval as described herein, shall have the right at all times to observe any and all activities described in this Article II. Section 2.04. Owners Any and all improvements constructed, placed, located and/or maintained on any part of Henry Huneke Park by Constructor 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. Article III Insurance/Indemnity Section 3.01. Insurance and Indemnity. Any and all contractors of Constructor performing any activities on City owned lands (collectively the "Insurers"), it being expressly stipulated that Constructor shall perform all construction activities hereunder by and through its contractors, shall procure and carry, at their sole cost and expense through the life of 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 License Agreement for the Construction of Memorial Page 2 of 7 operations in connection with this Agreement, including without limitation, the indemnity obligations set forth herein. The Insurers shall obtain and maintain in full force and effect during the term of 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. The Insurers shall 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. The Insurers shall elect to obtain worker's compensation coverage pursuant to Section 406.002 of the Texas Labor Code. Further, the Insurers shall maintain said coverage throughout the term of this Agreement and shall comply with all provisions of Title 5 of the Texas Labor Code to ensure that Insurers maintain said coverage. Any termination of worker's compensation insurance coverage by Insurers, or any cancellation or nonrenewal of worker's compensation insurance coverage for Insurers 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 the life of the Agreement or any extension, the Insurers fail to maintain the required insurance in full force and effect, Constructor shall be in breach hereof and all work under the Agreement shall be discontinued immediately. Constructor 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, and including reasonable attorney's fees, as a result of, related to, or arising from, Constructor's and/or its contractor's use or occupation of City owned lands, and/or any matter related to Constructor's and/or its contractor's operations or omissions under this Agreement. License Agreement for the Construction of Memorial Page 3 of 7 Article IV Events of Default/Remedies Section 4.01 a. City's Defaults/Constructor's 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 Constructor to perform hereunder; Constructor 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. Constructor's Defaults/City's Remedies. In the event Constructor 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 Constructor, 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 maybe exercised concurrently. Article V Miscellaneous Section 5.01. No Waiver. No failure to exercise, and no delay in the exercise on the part of either party hereto, 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: Randy Truesdell, Community Services Director P.O. Box 2000 Lubbock, TX 79457 Facsimile: (806) 775-2686 Atmos Energy Corporation LV4"-,{c, & ,(�; -I � I Facsimile: -q0G 1,� S t � License Agreement for the Construction of Memorial Page 4 of 7 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 Constructor 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. Section 5.05. Relationship of Parties. The relationship between the City and Constructor for purposes of this agreement 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 5.06. Com liance with Applicable Law. Constructor 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 Invalidily. 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 Superceded. This Agreement constitutes the parties' sole agreement and supercedes any prior understandings or written or oral agreements between the parties with respect to the express subject matter hereof. This License Agreement for the Construction of Memorial Page 5 of 7 Agreement does not amend, alter, supercede or modify the rights of either party under the Franchise Agreement (Ordinance No. 2004-00024). 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 parities. Section 5.12. Cations. Captions are for convenience only and shall in no way effect the interpretation of this Agreement. Section 5.13. Representations. Constructor represents and warrants to City (i) that it possesses the legal authority to enter into this Agreement and has taken all actions necessary to legally bind Constructor as to all terms hereof; and (ii) that the party executing this Agreement on behalf of the Constructor possesses all authority necessary to legally bind Constructor as to all terms hereof. Section 5.14. License Agreement. The intent of this Agreement is to grant a License to Constructor to utilize Henry Huneke Park 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 Henry Huneke Park, or as conveying to Constructor 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 14.th day of April , 2005. ATMOS ENERGY CORD TION 3 By: a� Name: Clay Cash Title: Vice President, West Texas Division License Agreement for the Construction of Memorial Page 6 of 7 CITY OF LUBBOCK, TEXAS , 0 A�" - " / -fvftc MC L, MAYOR W_aW-W Reb cca Garza, City Secretary APPROVED AS TO CONTENT: Randy Trueseervices I Community Director ' ' 1 TJZ) X.IVVC6l.oil] .�UI Richard K. Casner, First Assistant City Attorney ml/Cityatt/Richard/LicenseAgreement.McCool Memorial.Atmos April 11, 2005 License Agreement for the Construction of Memorial Page 7 of 7