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HomeMy WebLinkAboutResolution - 2017-R0398 - World Ventures Foundation And Nancy Lieberman Charities - 10_26_2017Resolution No. 2017-RO398 Item No. 6.13 October 26, 2017 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for and on behalf of the City of Lubbock, a License Agreement and related documents to utilize Mae Simmons Community Center and Park basketball court for the purpose of installation of a Dream Court, by and between the City of Lubbock and the World Ventures Foundation and Nancy Lieberman Charities of Dallas, Texas. 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 City Council. Passed by the City Council on October 26, 2017 DANII:L M. POPE, MAYOR ATTEST: A k Rebe ca 'arza, City Secret APPROVED AS TO COLNT: fte<sv-,� _ colt Snider, Assistant City Manager APPROVED AS TO FORM: Jelli Leisure, Assistant City Attorney RES. LicenseAgrmtDreamCourt U8.23.17 Resolution No. 2017-R0398 LICENSE AGREEMENT THIS LICENSE, entered into this 261hday of ()Ctnber , 2017, between the City of Lubbock, Texas, a Texas Home Rule Municipal Corporation ("City") through its Parks and Recreation Department, and World Ventures Foundation (WVF) and Nancy Lieberman Charities (NLC), collectively ("Licensees"). WITNESSETH WHEREAS, the Licensees desire to promote the sport of basketball, community, and police and community relations; and, WHEREAS, the Licensees desire the right and privilege to place a Dream Court at Mae Simmons Community Center and Park, which is owned by the City; and, WHEREAS, the Licensees are willing to provide the equipment necessary for a Dream Court basketball court, and are willing to install such equipment and paint the basketball court; and, WHEREAS, the City desires to make the sport of basketball available to the public at Mae Simmons Community Center and Park and is honored to be a recipient of a Dream Court, and finds that it is in the public interest for the Licensees to do so. NOW, THEREFORE, in consideration of the terms and conditions hereinafter set forth, to be kept and performed by the respective parties, IT IS AGREED AS FOLLOWS: LICENSE GRANTED In consideration of the mutual covenants and terns of this License, and of other good and valuable consideration, the City hereby grants, upon the terms and conditions set forth in this License, a license to Licensees for the sole purpose of installing new basketball court equipment and painting the basketball court, at Mae Simmons Community Center and Park in accordance with the terms and provisions set forth herein. Mae Simmons Community Center and Park is owned by the City, and located East 23rd Street, in the City of Lubbock, Texas. The work to be performed by W`VF for the installation of the Dream Court will be that as described in Exhibit "A", attached hereto and incorporated herein. Further, the design of the Dream Court installed at Mae Simmons Community Center and Park shall be as depicted in Exhibit "B", attached hereto and incorporated herein. Page 1 of 9 2. LICENSE TERM The tenn of this license shall be for 90 days beginning on the date of the execution of this License by the City and ending on the ninetieth day, unless renewed or terminated sooner as provided in this License (the "Primary Term'). 3. OWNERSHIP OF IMPROVEMENTS Any and all improvements constructed, placed, and located on any part of Mae Simmons Community Center and Park basketball court during the term to this License shall be considered part of the real property and must remain at Mae Simmons Community Center and Park. Further, subject to the tenns of this License, said real property becornes property of the City, from and after the tennination of this License. 4. MAINTENANCE The City shall be responsible for any maintenance after the Dream Court has been installed and painted. 5. ADVERTISING The Licensees shall have the right to procure and display advertising upon the surface of the Dream Court in accordance with the rendering provided as Exhibit "B". The Licensees shall not, in procuring, installing, or displaying advertisement, violate any person's right to privacy or infringe upon trademarks, trade names, copyrights, or proprietary rights of any person. It is understood and agreed that any approval by the City of advertising material shall not constitute a waiver of the Licensees obligations concerning such violation or infringement. Tile Licensees agree to indemnify and hold the City harmless with respect to all claims alleging such violations, without cost to the City. 6. ACCESS During the term of this License, and any renewals thereof, the City grants the Licensees access to Mae Simmons Community Center and Park basketball court for the purpose of installing and painting the Dream Court during normal park hours, except when the area of the park containing the equipment is reserved to a group for exclusive use, when the City is performing a maintenance function requiring closure of the park, or during an unforeseen emergency. The Licensees agree that the Dream Court at Mae Simmons Community Center and Park will be available to the public at no charge during normal park hours, except when the City has reserved the area for exclusive use. Page 2 of 9 7. LOCATION OF EQUIPMENT The Licensees agree that the location of any improvements must be approved by the City. 8. COMPLIANCE WITH APPLICABLE LAWS The Licensee shall comply with all applicable federal, state and local laws, statutes, ordinances, rules and regulations relating, in any way, manner or form, to the activities under this License, and any amendments thereto during the course of installing and painting the Dream Court at Mae Simmons Community Center and Park 9. INDEMNITY AND RELEASE LICENSEES SHALL INDEMNIFY AND SAVE HARMLESS THE CITY OF LUBBOCK AND ITS ELECTED OFFICIALS, OFFICERS, AGENTS, AND EMPLOYEES FROM ALL SUITS, ACTIONS, LOSSES, DAMAGES, CLAIMS, OR LIABILITY OF ANY HIND, CHARACTER, TYPE, OR DESCRIPTION, INCLUDING WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ALL EXPENSES OF LITIGATION, COURT COSTS, AND ATTORNEY'S FEES, FOR INJURY OR DEATH TO ANY PERSON, OR INJURY TO ANY PROPERTY, RECEIVED OR SUSTAINED BY ANY PERSON OR PERSONS OR PROPERTY, TO THE EXTENT ARISING OUT OF, RELATED TO OR OCCASIONED BY, THE NEGLIGENT ACTS OF ARCHITECT/ENGINEER, ITS AGENTS, EMPLOYEES, AND/OR SUBCONSULTANTS, RELATED TO THE PERFORMANCE, OPERATIONS OR OMISSIONS UNDER THIS CONTRACT AND/OR THE USE OR OCCUPATION OF CITY OWNED PROPERTY. THE INDEMNITY OBLIGATION PROVIDED HEREIN SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS LICENSE. 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, WITHOUT LIMITING THE INDEMNITY PROVIDED HEREIN. TO PAY OR DISCHARGE THE FULL AMOUNT OR OBLIGATION OF ANY SUCH CLAIM INCURRED BY, ACCRUING 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, LICENSEES SHALL PAY TO THE CITY, THE CITY'S RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND/OR AGENTS, AS APPLICABLE, REASONABLE AND NECESSARY ATTORNEY'S FEES INCURRED BY SUCH PARTIES IN ENFORCING LICENSEE'S INDEMNITY IN THIS SECTION. THE CITY, AND ITS RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND AGENTS, SHALL NOT BE LIABLE, AND Page 3 of 9 LICENSEE HEREBY RELEASES THE CITY, AND ITS RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND AGENTS, FOR, FROM AND/OR AGAINST ANY AND ALL LOSSES, DAMAGES, CLAIMS OR LIABILITIES TO LICENSEE, ON ANY THEORY OF LEGAL LIABILITY, INCLUDING, BUT NOT LIMITED TO THE NEGLIGENCE, OF ANY TYPE OR DEGREE, OR FAULT, OF THE CITY, AND/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 LICENSE. THE INDEMNITY AND RELEASE PROVIDED HEREIN SHALL SURVIVE THE TERMINATION OR VOIDANCE OF THIS LICENSE. 10. INSURANCE Licensees shall procure and carry, at its sole cost and expense through the life of this License 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 License, including without limitation, the indemnity obligations set forth herein. Licensees shall obtain and maintain in full force and effect during the tern of this License public liability insurance 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 policy will be written on an occurrence basis, subject to the following minimum limits of liability: Public Liability: Per Occurrence Single Limit: $1,000,000 The City shall be listed as a primary and noncontributory additional insured with respect to the Public Liability and shall be granted a waiver of subrogation under- the policy. Licensees shall provide a Certificate of Insurance to the City as evidence of coverage. The Certificate shall provide 30 day's notice of cancellation. A copy of the additional insured endorsement and waiver of subrogation attached to the policy shall be included in the Certificate. If at any time during the life of the License or any extension hereof, Licensees fail to maintain the required insurance in full force and effect, Licensee shall be in breach hereof and all work under the License shall be discontinued immediately. Notwithstanding anything contained herein to the contrary, the public liability policy shall be maintained at Licensees' sole cost and expense. The retroactive date shall be no later than the commencement of the performance of this License and the discovery period (possibly through tail coverage) shall be no less than 10 years after the completion of the Services provided for in this License. The provisions of this Article shall survive the termination or expiration of this License. Page 4 of 9 11. DEFAULT In the event the Licensees shall fail to perform any of the obligations called for herein on its part to be performed, and upon receiving written notice of such deficiency by the City, and upon the Licensees' failure to cure such deficiency within fifteen (15) days after receipt of such notice, then the City may, by written notice to the Licensees, terminate this License. 12. 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. 13. NOTICE Any notice required or permitted to be given herein must be given in writing and must be personally delivered, delivered by telephone 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: Attn: Bridget Faulkenberry City of Lubbock P.O. Box 2000 Lubbock, TX 79457 Telephone: 806-775-2671 Licensees: Attn: Gwyneth Lloyd World Ventures Foundation 5100 Tennyson Parkway Plano, TX 75024 Telephone: 972-805-5242 Attn: Nancy Lieberman Nancy Lieberman Charities P.O. Box 261233 Plano, TX 75026 Telephone: 972-473-2121 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 Page 5 of 9 mailed, on the third day, after it is mailed. Any party may change its address for purposes of this License by giving notice of such change to all other parties pursuant to this section. 14. RENEWAL This License may be renewed for one additional ninety (90) day term, by written agreement between the City and Licensees, in order to complete any work not completed in the Primary Term. 15. ASSIGNABILITY This license is personal to Licensees. Licensees shall not assign or sublet this license, without the consent of City. Any attempt to assign or sublet this license, without the consent of City, shall terminate the license granted herein. 16. CONTROL OF CITY The City shall retain all powers placed in it, which are non -delegable. No provision of this License shall be construed as delegating any non -delegable right, power or duty of the City, and in the event of a conflict between this section and any other term or provision of this License, this section shall control and such conflicting term or provision shall be void and of no force and effect. 17. RELATIONSHIP OF THE PARTIES The relationship between the City and Licensees is at all times solely that of licensor and licensee, and may not be deemed, in any event, a partnership or a joint venture. 18. CONSTRUCTION AND VENUE THIS LICENSE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. THIS CONTRACT IS PERFORMABLE IN LUBBOCK COUNTY, TEXAS. THE PARTIES HERETO HEREBY IRREVOCABLY CONSENT TO THE SOLE AND EXCLUSIVE JURISDICTION AND VENUE OF THE COURTS OF COMPETENT JURISDICTION OF THE STATE OF TEXAS, COUNTY OF LUBBOCK, FOR THE PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS LICENSE OR THE ACTIONS THAT ARE CONTEMPLATED HEREBY. 19. NON -ARBITRATION The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court Page 6 of 9 27. TERMINATION OF LICENSE License may be terminated for any reason, by the City upon 60 days written notice to Licensees. 28. LICENSE The intent of this License is to grant a license to Licensees to utilize Mae Simmons Community Center and Park basketball court solely for the purposes described herein. This License shall not be construed, in any way, manner or form, as a lease of Mae Simmons Community Center and Park basketball court or as conveying to Licensee any interest in the real property comprising Mae Simmons Community Center and Park basketball court. IN WITNESS WHERE OF, the parties hereto have executed this License the day and year first above written. EXECUTED and effective as of the date of the execution by the City of Lubbock. CITY OF LUBBOCK, TEXAS BY: _ DANIEL M. POPE, MAYOR ATTEST: 0-'a Reb ca Garza, City Secretar BY: Gwyn Ll9 d, President &Executive Director World Ventures BY: Nancy ieberr� 1 trities sident & Nancy Lieberm Page 8 of 9 of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, this provision shall control. 20. SEVERABILITY If any provision of this License is ever held to be invalid or ineffective by any court of competent jurisdiction with respect to any person or circumstance, the remainder of this License, and the application of such provision to persons and/or circumstances other than those with respect to which it is held invalid or ineffective, shall not be affected thereby. 21. LICENSES SUPERSEDED This License constitutes the parties' sole License and supersedes any prior understandings or written or oral Licenses between the parties with respect to the subject matter hereof. 22. AMENDMENT No amendinent, modification, or alteration of this License is binding, unless in writing, dated subsequent to the date of this License, and duly executed by the parties. 23. CAPTIONS Section captions are for convenience only and shall in no way affect the interpretation of this License. 24. ENTIRE AGREEMENT This Contract, including Exhibit "A" and "B" attached hereto, contains the entire agreement between the City and Licensees, and there are no other written or oral promises, conditions, warranties, or representations relating to or affecting the matters contemplated herein. 25. BINDING EFFECT This License shall inure to the benefit of and he binding upon the parties hereto, their respective successors, heirs, devisees, and assigns. 26. TIME OF ESSENCE Time is of the essence in this License and all obligations shall be performed in a timely manner. Page 7 of 9 APPROVED S TO ONTE uvr�7:) V\/\, Scott Snider, Assistant City Manager Page 9 of 9 r x 4. 2501 IV ui 46 b bockLLI ,4 �pA RTI�'i� CERTIFICATE OF INTERESTED PARTIES FORM 1295 1 of 1 Complete Nos. 1- 4 and 6 if there are interested parties. Complete Nos. 1, 2, 3, 5, and 6 if there are no interested parties. OFFICE USE ONLY CERTIFICATION OF FILING Certificate Number: 2017-247292 Date Filed: 08/09/2017 Date Acknowledged: 08/09/2017 1 Name of business entity filing form, and the city, state and country of the business entity's place of business. Lubbock Boys' & Girls' Club, Inc. Lubbock, TX United States 2 Name of governmental entity or state agency that is a party to the contract for which the form is being filed. City of Lubbock 3 Provide the identification number used by the governmental entity or state agency to track or identify the contract, and provide a description of the services, goods, or other property to be provided under the contract. 13566 Park land for new Boys & Girls Club 4 Name of Interested Party City, State, Country (place of business) Nature of interest (check applicable) Controlling I Intermediary Lubbock Boys & Girls Club, Lubbock, TX United States X 5 Check only if there is NO Interested Party. ❑ 6 AFFIDAVIT I swear, or affirm, under penalty of perjury, that the above disclosure is true and correct. Signature of authorized agent of contracting business entity AFFIX NOTARY STAMP / SEAL ABOVE Sworn to and subscribed before me, by the said this the day of 20 , to certify which, witness my hand and seal of office. Signature of officer administering oath Printed name of officer administering oath Title of officer administering oath Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version Vl.n.w.; CERTIFICATE OF INTERESTED PARTIES FORM 3.295 10f l Complete Nos. 1- 4 and 6 if there are interested parties. OFFICE USE ONLY Complete Nos. 1, 2, 3, 5, and 6 if there are no interested parties. CERTIFICATION OF FILING Certificate Number. 1 Name of business entity filing form, and the city, state and country of the business entity's place of husmess. 2017-247292 Lubbock Boys' & Girls' Club, Inc. Lubbock, TX United States Date Filed: 08109/2017 2 Name of governmental entity or state agency that is a party to the contract for which the form is being filed. City of Lubbock Date Acknowledged: 3 Provide the identification number used by the governmental entity or state agency to track or identify the contract, and provide a description of the services, goods, or other property to be provided under the contract 13566 Park land for new Boys & Girls Club 4 Name of Interested Party City, State, Country (place of business) Nature of interest (check applicable) Controlling I Intermediary Lubbock Boys & Girls Club, Lubbock, TX United States X 5 Check only if there is NO Interested Party. a 6 AFFIDAVIT I swear, or affirm, under penalty of perjury, that the above disclosure is true and correct. JUSTIN BARRETT POWER~� Notary Public •r ;f= STATE OF TEXAS NOTARY ID M 13071496.7 My Comm. Expires 06 24-202o Signature o authorized agent of can actipg business entity AFFIX NOTARY STAMP / SEAL ABOVE to and subscribed before me, by the said If17Gr rt( , this the Sworn to day ofhu�Lk4- 20 to certify which, witness my hand and seal of ffice. ro4o Signature of officer administering oath Printed name of officer administering oath Title of officer ad inistering oath Forms nrovided by Texas Ethics Commission www.ethics.state.tx.us Version V1.0.883