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HomeMy WebLinkAboutResolution - 2002-R0257 - Amendment Of License Agreement - National Windmill Project, Inc. - 06_26_2002Resolution No. 2002-RO257 June 26, 2002 Item No. 51 I�7�►'��]7IiY ����►1 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 an Amendment of License Agreement, providing for amendments to the License Agreement, dated on or about January 22, 1998, by and between the City of Lubbock and the National Windmill Project, Inc., a Texas nonprofit corporation, doing business as American Wind Power Center, and any associated documents. Said Amendment of License Agreement provides consent of the City of Lubbock for the partial assignment of the License Agreement to the Agriculture Heritage Museum, Inc., and 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 this 26th day of ATTEST: Rebecca Garza, City Secretary7P APPROVED AS TO CONTENT: �-��", Corbin Pemberton, Communvity Projects Manager Parks and Recreation Department APPROVED AS TO FORM: Richard K. Casner, Natural Resources Attorney Resolution No. 2002-RO257 June 26, 2002 Item No. 51 AMENDMENT OF LICENSE AGREEMENT WHEREAS, on or about January 22, 1998, the City of Lubbock, Texas (the "City"), a Texas home -rule municipal corporation and the National Windmill Project, Inc. ("NWP"), a Texas nonprofit corporation, entered into that certain License Agreement (the "Agreement") providing for a license to NWP to occupy certain lands of the City for the display and exhibition of windmills to the public; WHEREAS, the Agreement provides that the license granted therein is personal to NWP and that NWP has no power to assign or sublet the license; WHEREAS, NWP is doing business as American Wind Power Center; WHEREAS, NWP and the City desire to amend the Agreement, to provide, among other things, the power to NWP to assign and sublet the license, as per, and only as per, the terms of the Sublicense attached hereto as Exhibit "A"; NOW THEREFORE, NWP and the City agree to amend the Agreement as follows: 1. Section 9.03 is deleted in its entirety, and the following shall be substituted therefore: Section 9.03. Assignments -- Sublet. This license is personal to NWP. NWP shall not assign or sublet this license, except to Agriculture Heritage Museum, Inc., a Texas nonprofit corporation, upon the terms and provisions and for the period of time set forth in the Sublicense, attached hereto as Exhibit "A". Any attempt to assign or sublet this license, other than as set forth on Exhibit "A", shall terminate the license granted herein. Nothwithstanding anything to the contrary herein, upon sublicense of this Amendment to License Agreement — AgMuseum Page 2 of 3 Agreement, as set forth herein, NWP shall remain responsible and liable for each and every obligation under the Agreement. 2. Except as expressly amended hereby, the terms, conditions, and provisions of the Agreement shall remain as originally set forth. EXECUTED AS OF THE 26th CITY OF LUBBOCK, TEXAS as ATTEST: Rebecca Garza, City Secretary day of June , 2002. APPROVED AS TO CONTENT: P�,Jo D Corbin Pemberton, Community Projects Manager Parks and Recreation Department APPROVED AS TO FORM: A~, e(�I' �' � Richard K. Casner, Natural Resources Attorney RKC/ke/ccdocs/LeaseAmend.AGMu seum. Res June18,2002 NATIONAL WINDMILL PROJECT, INC., doing business as AMERICAN WIND POWER CENTER BY. Name: ®%� ' /Iw'f /il5 Title: A'w e-Too, Amendment to License Agreement — AgMuseum Page 3 of 3 Resolutlon No. 2002—RO257 EXHIBIT "A"' SUBLICENSE THIS SUBLICENSE is made at Lubbock, Lubbock County, Texas, between the Agriculture Heritage Museum, Inc. ("Sublicensee" or "AHM"), P.O. Box , Lubbock, Texas 79 , and "the National Windmill Project, Inc., a Texas nonprofit corporation, doing business as the American Wind Power Center, Inc., a Texas nonprofit corporation ("AWPC"), 1701 Canyon Lake Drive, Lubbock, Texas 79403. 1. Sublicense and Description of Property and Use and Operation of Premises. AWPC grants to Sublicensee, and Sublicensee accepts from AWPC the property (the "sublicensed premises" or the "premises") located in Lubbock County, Texas, and as described on Exhibit A for the purpose of operating an agriculture museum, attached hereto. Also, Sublicensee will use the premises only as provided in Exhibit A, attached hereto and will operate in accordance with all restrictions and requirements set forth therein. 2. Term. The sublicense term is for five (5) years, beginning on , 200_, and ending on , 200_, provided that, this sublicense will terminate earlier in the event of a surrender, forfeiture, or other ground for termination of the License Agreement dated January 22, 1998 (the "Agreement"), between the National Windmill Project, Inc. as Licensee, leasing the property described above and the City of Lubbock, Texas ("Owner"). A copy of the Agreement is attached as Exhibit B. AHM will have an option of one five (5) year renewal, as provided in this Section 12 0) below. 3. Rent. For the sublicense term, Sublicensee will pay AWPC as annual rent the amount of $10.00 as well as other good and valuable consideration. Such arranged rent to be paid upon the execution of this sublicense and the anniversary date thereof of every subsequent year of the term. 4. Assumption Agreement and Covenants (a) Sublicensee will comply with all of the provisions of the Agreement that are to be performed by AWPC as Licensee, or by the Sublicensee, during the sublicense term, but the rent provisions of the Agreement will not apply to Sublicensee. Paragraph 3, above, governs Sublicensee's payment of rent. (b) If the Agreement is canceled or terminated before its expiration date and before the expiration date of this sublicense or any extensions and renewals, or if the Agreement is surrendered, whether voluntarily, involuntarily, or by operation of law, this sublicense will automatically and immediately terminate. (c) The provisions of the Agreement are fully incorporated into this sublicense. The Sublicensee agrees to be bound to the AWPC by the Agreement and to assume toward AWPC the same role and perform all of the obligations and responsibilities that AWPC by the Agreement assumes toward the Owner, and to indemnify and hold harmless AWPC from any claim or liability under the Agreement except for AWPC's paying rental to the Owner as the Agreement provides. The relationship between the Sublicensee and AWPC under this sublicense is the same as that Agriculture Heritage Museum - Sublicense — Page 1 between the AWPC and the Owner under the Agreement. If there is any conflict between the terms and conditions of the Agreement and this Sublicense, the terms and conditions of the Agreement shall control. 5. INDEMNITY AND RELEASE. SUBLICENSEE SHALL INDEMNIFY AND HOLD HARMLESS, TO THE FULLEST EXTENT PERMITTED BY LAW, THE CITY OF LUBBOCK (THE "CITY") AND CITY'S RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND AGENTS, FROM AND AGAINST ANY AND ALL LOSSES, DAMAGES, CLAIMS OR LIABILITIES, OF ANY KIND OR NATURE, WHICH ARISE DIRECTLY OR INDIRECTLY, OR ARE RELATED TO, IN ANY WAY, MANNER OF FORM, THE ACTIVITIES CONTEMPLATED HEREUNDER OR THE AGREEMENT OR THE OMISSION OF THE ACTIVITIES CONTEMPLATED HEREUNDER OF THE AGREEMENT, INCLUDING, BUT NOT LIMITED TO, LOSSES, DAMAGES, CLAIMS OR LIABILITIES ARISING FROM OR RELATED TO, IN ANY WAY, MANNER OR FORM, THE ACT OR OMISSION OF THIRD PARTIES AND/OR CAUSED OR CONTRIBUTED TO, IN ANY WAY, MANNER OR FORM, BY THE NEGLIGENCE OR FAULT OF CITY, ITS RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND/OR AGENTS. SUBLICENSEE FURTHER COVENANTS AND AGREES TO DEFEND ANY SUITS OR ADMINISTRATIVE 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 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, SETTLEMENT OR RESOLUTION OF SAID SUITS, CLAIMS, AND/OR ADMINISTRATIVE PROCEEDINGS. IN ADDITION, SUBLICENSEE 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 SUBLICENSEE'S INDEMNITY IN THIS SECTION. THE CITY, AND ITS RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND AGENTS, SHALL NOT BE LIABLE, AND SUBLICENSEE HEREBY RELEASES THE CITY, AND ITS RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND AGENTS, FOR, FROM AND/OR AGAINST ANY LOSSES, DAMAGES, CLAIMS OR LIABILITIES TO SUBLICENSEE, ON ANY THEORY OF LEGAL LIABILITY, INCLUDING, BUT NOT LIMITED TO THE NEGLIGENCE, OF ANY TYPE OR DEGREE, OR FAULT, OF THE CITY, ARISING FROM OR RELATED TO, IN ANY WAY, MANNER OR FORM, THE UNENFORCEABILITY OR VOIDANCE, FOR ANY REASON, OF ALL OR ANY PART OF THE AGREEMENT OR THIS SUBLICENSE. The indemnity and release provided herein shall survive the termination or voidance of this Agreement. Agriculture Heritage Museum - Sublicense — Page 2 6. Siltns. Sublicensee may erect or attach to the building such signs as it considers proper and necessary with the prior written consent of the AWPC and Owner. Sublicensee may remove any sign placed by Sublicensee on or about the exterior of the premises when this Agreement expires or terminates; any damage to the building or premises resulting from the removal will be repaired at Sublicensee's sole cost and expense. 7. Furniture and Fixtures. Except as otherwise provided herein, all furniture and fixtures and equipment placed in the premises by Sublicensee will remain Sublicensee's property, subject to AWPC's rights as provided by law. Sublicensee may, when the sublicense term expires, remove the Sublicensee's furniture and fixtures if removal is done so as not to damage the premises. 8. Assignment and Subletting (a) Sublicensee shall not assign or sublease the premises or any part of them. (b) This license may be assigned, however, with the written approval of AWPC, in whole or in part, notwithstanding the foregoing, to any corporation into or with which Sublicensee may be merged or consolidated or to any corporation that is a majority -owned subsidiary, parent, or affiliate of Sublicensee. It is agreed that under such circumstance, the written approval of AWPC will not be unreasonably withheld. (c) If there is such an assignment, the assignee will agree in writing to assume all the terms and covenants of this sublicense to be performed by Sublicensee. A duplicate original of that agreement will be delivered to AWPC and Owner within ten (10) days following the date of its execution or its effective date, whichever is earlier. Sublicensee's liability under this sublicense, and that of any assignee of this sublicense, will survive any assignment or sublicensing and such liability will be unaffected by any extension of time that AWPC may grant to any assignee or sublicensee for paying rent or other changes due under this sublicense, or for performing any other term or covenant of this sublicense. 9. Default (a) AWPC may terminate this sublicense upon the happening of any one, or more, of the following events: (i) Sublicensee's making an assignment for the benefit of its creditors; (ii) The levying on or against Sublicensee's property of a writ of execution or attachment that is not released or discharged within thirty (30) days; (iii) The institution in a court of competent jurisdiction of proceedings for the reorganization, liquidating, or involuntary dissolution of Sublicensee, or for its adjudication as a bankrupt or insolvent, or for the appointment of a receiver of the Sublicensee's property, if the proceedings are not dismissed, and any receiver, trustee, or liquidator appointed therein is not discharged within thirty (30) days after the proceedings are instituted; Agriculture Heritage Museum - Sublicense — Page 3 (iv) Sublicensee's doing or permitting to be done any act that creates a mechanic's lien or claim against the land or building of which the premises are a part; and (v) Sublicensee's failure to comply with any terms, condition or covenant of this Agreement. (b) Upon any termination of this sublicense agreement, AWPC may re-enter the premises, with or without process of law using such force as necessary, and remove all persons and chattels. AWPC will not be liable for damages or otherwise by reason of re-entry or termination of the terms of this sublicense. Notwithstanding any termination by AWPC, Sublicensee's liability for complying with the provisions under this sublease will not be relinquished, diminished, or extinguished for the balance of the sublicense term. Sublicensee will pay any additional sums as the court may adjudge reasonable as attorney's fees in any suit or action instituted by AWPC to enforce this sublicense, or the collection of the rent due AWPC if AWPC prevails in the suit or action. Any property belonging to Sublicensee or any persons holding by, through, or under Sublicensee, or otherwise found upon the premises, may be removed and stored in any public warehouse at the cost of and for the account of Sublicensee. Should Sublicensee abandon, vacate, or surrender the premises or be dispossessed by process of law, any personal property left on the premises maybe deemed abandoned, at AWPC's option. (c) If Sublicensee breaches this agreement, AWPC may immediately or at any time thereafter, without notice, cure the breach for the account and at the expense of Sublicensee. If AWPC at any time, by reason of the breach, must pay, or elects to pay, any sum of money or do any act that will require paying any sum of money, or must incur any expense, including reasonable attorney's fees, in instituting or prosecuting any action or proceeding to enforce AWPC's rights under this sublicense, the sums paid by AWPC, with interest at the rate of twelve percent (12%) annually from the date of payment, will be considered additional rent and will be due from Sublicensee to AWPC on the first day of the month following payment of the respective sums of expense. (d) All AWPC's rights and remedies enumerated in this sublicense are cumulative and will not exclude any other right or remedy allowed by law. These rights and remedies may be exercised and enforced concurrently, whenever necessary. If AWPC is in default under the sublicense, AWPC will have reasonable and adequate time to cure the default after written notice to AWPC by Sublicensee. Additionally, AWPC has all of the rights and remedies hereinunder that Owner has under the Agreement. 10, Eminent Domain. If any public authority takes the whole or any part of the premises under the power of eminent domain, then the sublicense term will cease with respect to that part from the date that its possession is required for any public purpose. If a portion of the premises is taken so that the remaining portion will not be reasonably adequate for operating Sublicensee's business, Sublicensee may elect either to terminate this license or to remain in possession of the remainder of the premises. Agriculture Heritage Museum - Sublicense — Page 4 11. Compliance with Agreement (a) AWPC and Sublicensee acknowledge that AWPC is a licensee of the premises pursuant to the Agreement, which Agreement is attached hereto as Exhibit `B." Sublicensee agrees that Sublicensee shall perform all of AWPC's obligations under the Agreement during the term hereof, to the extent such obligations are applicable to the premises, except that the obligation to pay the rental under the Agreement shall be deemed satisfied upon Sublicensee's payment of the rentals provided for herein. This sublicense shall be subordinate to the provisions of the existing Agreement, or any modifications thereto. (b) In the event this Sublicense is terminated for the reasons set forth in paragraph 2, Sublicensee waives any claims or suits against the AWPC, and the City of Lubbock, Lubbock County, Texas or agency thereof arising out of such termination. 12. Miscellaneous Provisions (a) Texas Law to Apply. This agreement will be construed under Texas law, and all obligations of the parties are performable in Lubbock County, Texas. (b) Parties Bound. This agreement will bind and inure to the benefit of the parties and their respective heirs, executors, administrators, legal representatives, and permitted successors and assigns, except as this agreement otherwise specifies. (c) Legal Construction. If any one or more of the provisions of this agreement is for any reason held invalid, illegal, or unenforceable in any respect, that invalidity, illegality, or unenforceability will not affect any other provision of this agreement, which will be construed as if it had never included the invalid, illegal, or unenforceable provision. (d) Prior Agreements Superseded. This agreement constitutes the sole agreement of the parties and supersedes any prior understandings or written or oral agreements between the parties respecting the subject matter. (e) Attorney's Fees. If any action at law or inequity, including an action for declaratory relief, is brought to enforce or interpret this agreement, the prevailing party is entitled to recover reasonable attorney's fees from the other. The fees may be set by the court in the trial of the action or may be enforced in a separate action for that purpose, and the fees will be in addition to any other relief that may be awarded. (f) Specific Performance. The parties declare that it is impossible to measure in money the damages that will accrue to either party, their heirs, executors, administrators, legal representatives, successors, or assigns by reason of a failure to perform any of the obligations under this agreement. Therefore, if a party, its heirs, executors, administrators, legal representatives, successors, or assigns institute any action or proceeding to enforce this sublicense, any person against whom the action or proceedings are brought agrees that specific performance may be sought and obtained for any breach of this agreement. Agriculture Heritage Museum - Sublicense — Page 5 (g) Counterparts, One Agreement. This agreement and all other copies of it, insofar as they relate to the rights, duties, and remedies of the parties, will be considered one agreement. This agreement may be executed concurrently in one or more counterparts, each of which will be considered an original, but all of which together will constitute one instrument. (h) Notice. Unless this sublicense provides otherwise, any notice, tender, or delivery to be given by either party to the other may be effected by personal delivery in writing or by registered or certified mail, postage prepaid, return receipt requested, and will be considered received as of three days after mailing. (i) Time of Essence. Time is of the essence in this agreement. 0) Option to Renew. Sublicensee has the option to renew this sublicense for one additional term of five (5) years from the expiration of this sublicense under the same terms and conditions hereof. Sublicensee must give sixty (60) days written notice of its intent to exercise such option. (k) Insurance. Sublicensee shall procure and carry, at its cost and expense through the life of this sublicense insurance protection as hereinafter specified, in form and substance satisfactory to the City, carried with an insurance company authorized to transact business in the State of Texas, covering all foreseeable aspects and operations in connection with this sublicense, including, but not limited to, all aspects, operations and/or occurrences to which Sublicensee has indemnified the City, as provide in Paragraph 5 hereof. A Certificate of Insurance specifying each and all coverages shall be submitted to the City prior to the execution of this sublicense, except as it relates to the required Building Risk Insurance, of which said Certificate shall be submitted no later than fifteen (15) days prior to the commencement of construction activities. Sublicensee shall provide to the City proof of the below described insurance on or before fourteen (14) days prior to the expiration date of each expiring policy, and cause each required policy to require the insurer to (i) give notice to the City, as specified herein, of termination of any such policy sixty (60) days before such termination is to be effective; and (ii) contain a waiver of any and all of the insurer's rights to subrogation that any such insurer or insurers may acquire by virtue of payment of any loss under such insurance. 1. Comprehensive General Liability Insurance. Sublicensee shall have comprehensive general liability insurance, with limits of $1,000,000.00 combined single limit in the aggregate and per occurrence. The City shall be named as an additional insured in such policy. 2. Owner's Protective or Contingent Public Liability Insurance and Property Damage Liability Insurance. Sublicensee and/or its contractor(s) shall obtain an Owner's Protective or Contingent Public Liability Insurance policy in the amount of, for bodily injuries, including accidental death and/or property damage of $1,000,000.00 combined single limit. This insurance coverage shall include coverage against casualty or damage, including, but not limited to, damage caused by fire and/or vandalism, to any and all buildings and/or other improvements located on the premises, and shall name the City as an additional insured. Agriculture Heritage Museum - Sublicense — Page 6 3. Worker's Compensation Insurance. All contractors hired by Sublicensee to perform work at any site on the premises shall maintain throughout the course of the job worker's compensation insurance coverage in accordance with the statutory requirements of the State of Texas. 4. Builder's Risk Insurance. Sublicensee and/or its contractor(s) shall have Builder's Risk Insurance in the amount of one hundred percent (100%) of the prices of each contract relating to construction activities on the premise, if applicable, and the insurance shall name the City as an additional insured. (1) Maintenance on the road between AWPC and AHM will be shared, with each party maintaining the road on its property. AHM shall maintain the road which provides the main access from Canyon Lakes Drive to the AHM facility. If AHM desires to update the parking lot and entry for ADA requirements, unless otherwise required by applicable law, as defined in Exhibit "A", it is AHM's election and responsibility to do so. (m) AHM shall maintain the building located on the premises. Improvements to the building and site which are of a permanent nature and attached to the building will become the property of the AWPC. The AHM will pay all utility bills for the building on the premises. 13. The parties hereto expressly agree and acknowledge that this Sublicense requires the consent, and is being entered into with the consent, of the City of Lubbock and that the City of Lubbock would not so consent absent the inclusion of the terms and provisions hereof. The City of Lubbock is an intended beneficiary of this Sublicense and is entitled, but not required, to enforce any and all of the provisions of this Sublicense. Dated , 2002. SUBLICENSOR: AMERICAN WIND POWER CENTER By: By: Name: Name: Title: Title: SUBLICENSEE: AGRICULTURE HERITAGE MUSEUM, INC. Agriculture Heritage Museum - Sublicense — Page 7 Resolution No. 2002—RO257 EXHIBIT A DESCRIPTION OF PREMISES and USE OF PREMISES [Restrictions and Requirements] To Sublicense between AWPC, as Sublandlord, and the Ag Heritage Museum, Inc., as Sublicensee. 1. PREMISES (a) The premises consist of that property described as the following parcel. The parcel being eight (8) acres consisting of (b) Condition. Sublicensee has inspected the premises and accepts the premises, in an "as is" condition, on the date hereof and agrees that the AWPC shall have no obligation to improve, repair, restore, refurbish or otherwise incur any expense in improving and/or changing the condition of the premises at such time or thereafter. Sublicensee acknowledges that its representatives have visited the premises, inspected the site and all appurtenant facilities, and has otherwise become fully acquainted with conditions relevant to the premises and other operation. Sublicensee acknowledges that this Sublicense is without any warranty, whatsoever. Sublicensee expressly waives any and all such warranties with respect to all defects, whether apparent or latent, visible or not, and regardless of whether Sublicensee is aware of such defects. Sublicensee has examined the premises and is fully satisfied with its condition. In addition, Sublicensee relieves, releases and discharges AWPC from any and all demands, claims, or causes of action which AWPC may have arising under Government Acts of the Department of Natural Resources, the Texas Environmental Quality Act, the Resource Conservation and Recovery Act, the Superfund Amendments and Reauthorization Act of 1986, the Toxic Substance Control Act and/or any other federal, state or local law concerning, affecting or regulating hazardous, toxic or harmful substances or the environment. 2. USE (a) Permitted Use. The permitted use of the Leased Premises shall be for administrative office space and for the display of antique farm equipment and exhibits which interpret the history of agriculture on the South Plains. On or before April 1, 2002, AHM shall display thirty (30) types of antique agricultural implements to the public. For the duration of the sublicense, no fewer than thirty (30) antique agricultural implements will be displayed as part of the exhibit. AHM acting through its governing Board of Directors shall manage and operate the exhibit in compliance with all State and Federal laws, statutes and regulations and local ordinances. In addition, unless the consent and/or approval of the City of Lubbock and other parties is required herein, AHM shall cooperate with and seek input from the City of Lubbock, Texas, Parks and Wildlife Department and the Texas Historical Commission and the American Wind Power Center in the establishment, maintenance and management of the exhibit. Agriculture Heritage Museum - Sublicense — Page 8 (b) Prohibited Activities. Sublicensee agrees not to use the premises for, or carry on or permit any offensive, noisy or dangerous activities or any nuisance or anything against public policy. Sublicensee will not leave the premises unoccupied or vacant. Sublicensee further agrees not to use or permit the use of the premises for any purpose, which would increase existing rates of insurance or cause cancellation of any insurance policy carried by the AWPC or Sublicensee. Sublicensee agrees to comply with and conform to all laws, ordinances, rules and regulations, whether municipal, state, federal and/or governmental authority (including ordinances and restrictions as may from time to time be adopted by the AWPC for the operation of the facility) and any and all requirements or orders of any municipal, state, federal or other governmental board or authority, present or future, relating to the condition, use and occupancy of the premises (the "Applicable Law"). (c) Sanitation and Pollution Control. Sublicensee shall, at its sole expense, at all times maintain and operate the premises in a strictly sanitary condition and in accordance with the medical waste storage and removal, health, water pollution, and water contamination laws of the State of Texas, and the permits, rules, regulations and ordinances of the State Department of Public Health and of the state and local water pollution control boards, and of all other public agencies having jurisdiction over the premises. In order to protect members of the public and the ecological balance to prevent damage to the flora in the area, no chemical of any nature shall be used on, or in connection with, the operation of the premises, except upon the prior written approval of AWPC, in its sole discretion, as to the type of chemical and its method of use and applications. (d) Not a Commitment. This Sublicensee authorizes use of land, facilities, and movables on property that is owned by the City of Lubbock. The Sublicensee understands and acknowledges that this Sublicense is not and does not constitute a commitment by the City of Lubbock or AWPC's to the ultimate disposal of the premises in whole or in part to the AWPC or to the Sublicensee. (e) Limited Sublicense. It is understood that nothing herein contained shall be construed in any manner to grant Sublicensee the right to the use of the lands and facilities of the AWPC, other than those premises specifically sublicensed to Sublicensee hereunder. 3. OPERATION OF FACILITIES (a) Operations Plans. Without liability, cost or expense to AWPC and for the full term of this Sublicense, Sublicensee generally shall maintain and operate the buildings, facilities, and grounds described herein in a manner consistent in quality equivalent to other similar operations in the area. Upon request by AWPC, Sublicensee shall submit to AWPC for review and approval in writing an annual budget and operational plan dealing with Sublicensee's proposals for handling and organization of matters such as: research operations, personnel activities, and level of environmental impact, if any, as a result of Sublicensee's operations. Sublicensee agrees to implement and diligently pursue said operational plans. Sublicensee further agrees not to materially depart there from without the prior consent of AWPC, which consent shall not be unreasonably withheld. (b) Weeds, Pests, Etc. Sublicensee shall make diligent effort to prevent the spread of all noxious weeds, rodents, and other vertebrate pests on the premises during the term hereof, and to take reasonable measures to protect the premises from the infestations of insects, spiders, mites, ants, snails, and other such pests. Sublicensee agrees to make a diligent effort to prevent infestations of Agriculture Heritage Museum - Sublicense — Page 9 organisms that may produce diseases in plants or animals, and that come into or develop on the premises during the term hereof. (c) Failure to maintain. Should Sublicensee fail, after five (5) days' notice from AWPC of the need thereof, to perform its obligations required hereunder, AWPC, in addition to all other forces or contractors, may, but shall not be so obliged, enter upon the premises, and perform Sublicensee's obligations it has failed to do, using any equipment or materials on the premises suitable for such purposes. Sublicensee shall forthwith on demand reimburse AWPC for its costs incident hereto. It is hereby understood and agreed by Sublicensee that AWPC does not have any duty nor shall it be called upon to make improvements, replacements or repairs whatsoever to the premises or improvements/exhibits placed thereon. 4.. LIENS Sublicensee shall keep the premises and any improvements thereon free from any and all liens arising out of any work performed, materials furnished, or obligations incurred by Sublicensee, its employees, agents and contractors, and Sublicensee agrees to reimburse AWPC for any attorneys' fees incurred in defense of proceedings to enforce or foreclose such liens. 5. TAXES (IF APPLICABLE TO LICENSEE AND ITS OPERATIONS) (a) Sublicensee's Obligation to Pay. During the term of this Sublicense, Sublicensee hereby agrees to pay, prior to delinquency, all taxes and assessments (including both general and special) levied or assessed against the premises and in connection with the premises and Sublicensee's operation thereof, including without limitation, taxes or Sublicensee's possessory interest hereunder or in the premises, and taxes and assessments on all structures, improvements, and fixtures now or hereafter existing on the premises, and on any personal property situated in, on, or about the premises, or in on, or about any structures or improvements thereon, it being understood, however, that Sublicensee may pay any such taxes and/or assessments under protest, and without liability, cost or expense to AWPC, in good faith contest the validity or amount thereof. In the event Sublicensee shall be unsuccessful in any such contest, such taxes and any interest and/or penalties resulting therefrom shall be forthwith discharged by Sublicensee prior to execution, Sublicensee hereby agrees to hold AWPC harmless from all costs, expenses, interest and penalties that may result from Sublicense's said contest. (b) Proration at end of Sublease. Sublicensee's tax liability as above provided shall be prorated on the basis of 365 days a year included in the Sublicense term at its beginning and end. Such proration for the beginning year shall be as of the "Effective Date." (c) Additional Taxes. If at any time during the Sublicense term under the laws of the State of Texas or any political subdivision thereof, a tax or excise on rents or any other tax, however described, is levied or assessed against Sublicense on the rent or any portion thereof payable hereunder, Sublicense covenants to pay and discharge such tax or, excise or rents on or before the Agriculture Heritage Museum - Sublicense — Page 10 last day upon which same, or any installment thereof if the same be paid in installments, may be paid prior to delinquency. 6. UTILITIES, ETC. (a) Consumption. AWPC shall be responsible for providing all utilities to the boundary of the premises. Sublicensee shall pay for all utilities consumed on the premises. The Sublicensee shall purchase, install and maintain all meters at its own cost and expense. (b) Trash. The prompt, efficient collection and disposal of trash, clippings and refuse is essential to the proper maintenance of buildings and facilities, and Sublicensee shall be responsible for such collection and disposal from the premises at its own expense and in accordance with Applicable Laws or ordinances. Sublicensee shall not pile or store (except temporarily awaiting prompt collection in service areas out of public view and approved by AWPC) clippings, trimmings, cans, barrels, used equipment (excluding such used equipment which constitutes a portion of Sublicensee's collection of antique farm equipment), scrap or other similar debris on or about the premises, or suffer the same to occur. 7. SURETY PROVISIONS An irrevocable letter of credit (issued by a bank approved by AWPC) or a cash deposit insuring to the benefit of AWPC is not required under this sublicense. 8. ENVIRONMENTAL Sublicensee acknowledges all of the environmental requirements and disclosures set forth herein and in the Agreement. All environmental provisions in the Sublicense are incorporated herein. Sublicensee also acknowledges that the part of the premises may be in environmentally protected status such as wetlands or otherwise. Sublicensee will take all steps necessary to comply with these designations. No parking fees shall be charged for parking on the premises without the prior written approval of AWPC. (a) Management and Staff. The management, improvement, maintenance and operation of the premises and all its facilities and services shall be under the control of persons familiar with the business and shall be under the immediate supervision and direction of a local manager representing, and subject to, the direction and control of Sublicensee. The Sublicensee shall, at the time of execution of this Sublicense, and subsequently at least annually, provide the AWPC with the name of the member of Sublicensee's management who shall be responsible for the operation of the facilities under this Agreement. At such time as the management official in charge shall change, Sublicensee shall notify AWPC in writing of the name of his replacement. Agriculture Heritage Museum - Sublicense — Page 11 All personnel employed by Sublicensee shall be adequate in number to assure a first-class operation comparable to the operation of AWPC and similar facilities in surrounding metropolitan areas. (b) Non -Discrimination. Fair and equal use of the premises and facilities, and hiring, treatment and advancement of employees by Sublicensee shall not in any manner be denied or abridged on the basis of race, color, religion, ancestry, national origin, place of residence or membership or non -membership in any club, organization or other association, or in any other arbitrary or discriminatory manner. SUBLICENSOR: AMERICAN WIND POWER CENTER By: Name: Title: SUBLICENSE: AGRICULTURE HERITAGE MUSEUM, INC. By: Name: Title: Agriculture Heritage Museum - Sublicense — Page 12 Resolution No. 2002-RO257 EXHIBIT B LICENSE AGREEMENT