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HomeMy WebLinkAboutResolution - 2005-R0252 - License Agreement - The Rotary Club Of Lubbock - Meditation Area, Huneke Park - 06_23_2005Resolution No. 2065-RO252 June 23, 2005 Item 21 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 between the City of Lubbock and The Rotary Club of Lubbock. 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 23rd day of June 2005. 'MARC Mc OUGAL, MAYOR ATTEST: APPROVED AS TO CONTENT: — Z"'X�/ R dy rues 11 Community ,Services Director APPROVED AS TO FORM: Assistant City Attorney mVccdocs/License Agreement -Rotary Clubses June 13, 2005 Resolution No. 2005-RO252 CONTRACT NO. 6151 LICENSE AGREEMENT FOR THE CONSTRUCTION OF A MEDITATION AREA AT HENRY HUNEKE PARK THIS Agreement dated the 23rd day of June, 2005, is by and between The Rotary Club of Lubbock, a Texas not for profit corporation ("Rotary"), and the City of Lubbock, Texas, a Texas home rule municipal corporation ("City"). WHEREAS, City owns Henry Huneke Park, located at 82"d Street and Nashville Avenue within the City of Lubbock; WHEREAS, Rotary desires to construct a meditation area in Henry Huneke Park ("Project"); WHEREAS, City desires that said Meditation Area 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 Rotary, 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 project. Section 1.02. Term. The term of this License is ninety (90) days, beginning on the date of the execution of this Agreement by the City, and ending ninety (90) 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, Rotary 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 features, and any walkways appurtenant or attendant to such project. Rotary 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 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. Rotary shall construct, or cause to be constructed, and locate upon Henry Huneke Park, all structures as depicted in the Site Plan, on or before ninety (90) days after the effective date of this Agreement. Rotary shall clean and restore Henry Huneke Park to the extent it has been affected the by above described construction, to its original condition, as is reasonably practicable, and vacate Henry Huneke Park on or prior to the terminatLn of this Agreement. Section 2.03. Approval 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. Ownership. Any and all improvements constructed, placed, located and/or maintained on any part of Henry Huneke Park by Rotary or 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. Rotary and 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 operations in connection with this Agreement, including without limitation, the indemnity obligations set forth herein. Rotary and its contractors 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 License Agreement for the Construction of Meditation Area at Huneke Park Page 2 of 7 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. Rotary and its contractors 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. Rotary and its contractors shall elect to obtain worker's compensation coverage pursuant to Section 406.002 of the Texas Labor Code. Further, Rotary and its contractors 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 Rotary and its contractors maintain said coverage. Any termination of worker's compensation insurance coverage by Rotary and its contractors, or any cancellation or nonrenewal of worker's compensation insurance coverage for Rotary and its contractors 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, Rotary and its contractors fail to maintain the required insurance in full force and effect, Rotary shall be in breach hereof and all work under the Agreement shall be discontinued immediately. Rotary 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, INCLUDING WITHOUT LIMITATION, CLAIMS, DEMANDS, DAMAGES, COSTS, LIABILITIES AND EXPENSES, CAUSED, IN WHOLE OR IN PART, BY THE NEGLIGENCE, OF ANY KIND, TYPE OR DEGREE, OF CITY and including reasonable attorney's fees, as a result of, related to, or arising from, Rotary's and its contractor's use or occupation of City owned lands, and/or any matter related to Rotary's operations or omissions under this Agreement. License Agreement for the Construction of Meditation Area at Huneke Park Page 3 of 7 Article IV Events of Default/Remedies Section 4.01 a. City's Defaults/RotM'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 Rotary to perform hereunder; Rotary 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. Rotary's Defaults/City's Remedies. In the event Rotary 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 Rotary, exercise any right or remedy available to it by law, contract, equity or otherwise, including without limitation, specific performance and/or the right to `..rminate this Agreement. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. Article V Miscellaneous 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 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) 775-268o Office (806) 775-2687 The Rotary Club of Lubbock Attn: Jerry Bell 1603 Loop 289 West Lubbock, TX 79416 Facsimile: (806) 785-0198 Office (806) 785-3030 License Agreement for the Construction of Meditation Area at Huneke Park 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 Rotary 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 Rotary 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. Compliance with Applicable Law. Rotary 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 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 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 subject matter hereof. License Agreement for the Construction of Meditation Area at Huneke Park Page 5 of 7 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. Captions. Captions are for convenience only and shall in no way effect the interpretation of this Agreement. Section 5.13. Representations. Rotary 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 Rotary as to all terms hereof; and (ii) that the party executing this Agreement on behalf of the Rotary possesses all authority necessary to legally bind Rotary as to all terms hereof. Section 5.14. License Agreement. The intent of this Agreement is to grant a License to Rotary 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 Rotary 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 day of , 2005. TRHE ROTARY CLUB OF LUBBOCK JE . BELL, PRESIDENT License Agreement for the Construction of Meditation Area at Huneke Park Page 6 of 7 CITY OF LUBBOCK, TEXAS ATTEST: Reb cca Garza, City Secretary APPROVED AS CONTENT: R dy Tru dell Communjfy Services Director APPROVED AS TO FORM: M. Knight,_- Assistant City Attorney Cityatt/John/Licenses/LicenseAgreement Rotary Club License Agreement for the Construction of Meditation Area at Huneke Park Page 7 of 7