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Home My WebLink AboutResolution - 2023-R0410 - Park Land License Agreement With Alstrom Angels - 08/22/2023Resolution No. 2023-R0410 Item No. 6.28 August 22, 2023 RESOLUTION WHEREAS, the City of Lubbock (the "City") and Alstrom Angels, a 501 (c)(3) non-profit charity, entered into a Park Land License Agreement, on March 23, 2021, and a copy of such City of Lubbock Park Land License Agreement is attached hereto as `"Exhibit 1" and is incorporated in this Resolution as if fully set forth herein; WHEREAS, the City and Alstrom Angels desire to amend said License Agreement with regard to fees, the prohibition on encumbrances, and the time within which construction must be completed, in order for Alstrom Angels to obtain financing to complete construction of Milestones Development & Play Park; and WHEREAS, the Amendment to Park Land License Agreement dated March 23, 2021, is attached hereto and incorporated in this Resolution as if fully set forth herein; and NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: SECTION 1. THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute, on behalf of the City of Lubbock, the Amendment to Park Land License Agreement dated March 23, 2021, between the City of Lubbock and Alstrom Angels, a 501 (c)(3) non-profit charity, and all related documents. Said Amendment 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. SECTION 2. THAT the City Nlanager of the City, or his designee, shall have the authority to execute any necessary documents regarding subordination of the City's security interest in temporary improvementslfixtureslequipment and other property of Alstrom Angels for the purpose of Alstrom Angels securing financing for its business operations. Passed by the City Council on Au�ust 22, 2023 ___ T Y P �, AYOR ATTE T: Courtney Paz, City Secr ary APPROVED AS TO CONTLNT: - `�1 �� -- Brooke Witcher, Assistant City Manager APl'ROVED AS TO FORM: Rachael Foster, s'stant City Attorney ccdocs IIIRES.Amendment to License Agmt. Alstrom Angels-Milestones 8.1.23 Resolution No. 2023-R0410 AMENDMENT TO PARK LAND LICENSE AGREEMENT DATED MARCH 23, 2021 This Amendment is made as of the 22naday of August , 2023 by and between the City of Lubbock, Texas (the "City"), a Texas home rule municipal corporation, and Alstrom Angels, a 501 (c)(3) non-profit charity, ("Licensee"), (each a"Party," and collectively being the "Parties"). RCCITALS WHE�t�;AS, the City and Licensee previously entered into a Park Land License Agreement dated March 23, 2021, Resolution No. 2021-RO110 ("License Agreement"); and WHERI:AS, the City and Licensee desire to amend said License Agreement with regard to Compensation, Fees, and Other Charges, Covenants and Conditions, and Construction, in order for Licensee to obtain financing to complete construction of the Licensed Premises; and NOW THE]�EFOI�E, the City and Licensee desire to adjust Section 3, Paragraph A, Section 4, Paragraph I, and Section 7, Paragraph A, of the License Agreement between the Parties dated March 23, 2021, to read as follows: SECTION 3. COMPENSATION, FF.ES, AND OTHEH CHAHGES A. Consideration. In consideration of the rights and privileges to be granted to the Licensee by the City, the Licensee shall pay to the City an amount equal to FIVE HiJNDRI :D AND XX/100 dollars ($500.00) per month, for access and use of the Licensed Premises. Such fee shall be paid monthly in advance, due and payable on the first of each month beginning on the first day of the first month following the opening of the Licensed Premises to the public. This fee shall be effective for the first year of the Primary Term that the Licensed Premises is open to the public. Each additional year subsequent to the first year that the Licensed Premises is open to the public, the overall annual rate shall be increased by three percent (3.0%). As reflected in the monthly payment above, for the first year of this License that the Licensed Premises is open to the public, the annual rate shall be SIX THOUSAND AND XX/100 dollars ($6,000.00). Said adjustment shall be for each year of the remaining years of the Primary Term. After the completion of the Primary Term, and for each Option Period, the City shall reconsider the Licensee's annual rate. Additionally, after the completion of the Primary Term, and for each Option Period, the City shall reconsider the Licensee's insurance obligation and may increase said coverage requirements if deemed necessary by the City to maintain a satisfactory level of protection. SECTION 4. COVENANTS AND CONDITIONS I. Prohibition on Encumbrance. The Licensee shall not encumber any interest in the Licensed Premises, the Park, or this License in any way, manner or form, including, but not limited to, by deed of trust, mortgage, or any other security instrument. However, the City shall agree to subordinate its security interest in temporary improvements/fixtures/equipment and other property of Licensee (except for any permanent improvements, which become the property of the City upon termination of the License) to Licensee's lenders for the purpose of Licensee securing financing for its business operations, including without limitation financing for the acquisition or repair of any temporary improvements/fixtures/equipment. The City Manager of the City, or his designee, shall have the authority to execute any necessary documents regarding said subordination, including, but not limited to, a Landlord's Release and Consent. Further, the Licensee shall not cause or permit any mechanic's liens or any other liens to be filed against the Licensed Premises, the Park, or this License by any reason of any work, labor, services, or materials supplied and/or performed or claimed to have been supplied and/or performed to, by or for the Licensee or any contractors or subcontractors of the Licensee. SECTION 7. CONSTRUCTION A. Mandatory Construction. In consideration for the granting of this License, the Licensee agrees to construct at the Licensed Premises the Facility with all the necessary appurtenances and improvements reasonably necessary for the purpose of the Facility. Construction of the Facility shall be commenced within six (6) months of the date of execution of this License by both parties and be completed within forty-eight (48) months from the date of the commencement of construction. The City, at its sole option, may grant a longer period for completion of the construction. In the event that the Licensee fails to commence or complete construction of the Facility within the time frames set forth in this License, and no extension for completion has been approved by the City, this License shall immediately terminate, and title to all buildings, fixtures, or structures, whether owned by the Licensee or not, and whether completed or not, excluding trade fixtures, furnishings, equipment, and other personal property which may be removed without material injury to the Licensed Premises according to the provisions of this License, shall automatically vest in the City. During the construction and installation of the Pacility, the Licensee shall maintain financial surety favorable to the City in the amount of one hundred percent (100%) of the total construction cost of the Facility in the event that said construction cost exceeds one hundred thousand dollars ($100,000), and the Licensee shall maintain a payment bond in the amount of one hundred percent (100%) of the total construction cost in the event that said construction cost exceeds fifty thousand dollars ($50,000). All bonds shall be submitted on forms supplied by the City and executed by an approved surety company authorized to do business in the State of Texas. It is further agreed that this Lease shall not be in effect until such sureties are so Amendment to Park Land License Agreement- Alstrom Angels 7.26.23 Page 2 of 3 furnished. The Licensee shall provide the surety required in this Section within thirty (30) days of the execution of this License. All other portions of the original License Agreement shall remain in place and are not altered by this Amendment. IN WITNESS WHEREOF, each Party hereto has caused this Amendment to be executed on behalf of such Party by an authorized representative as of the date first set forth above. CTTY OF ' • r' : .�i�� • • ' ATTEST: Courtney Paz, City e retary APPROVED AS TO CONTENT: � LJI J' Brooke Witcher, Assistant City Manager APPROVED AS TO FORM: Rachael Foster, ss tant City Attorney Amendment to Park Land License Agreement- Alstrbm Angels 7.26.23 Page 3 of 3 Resolution No. 2021-RO 110 E x h i b i t 1 CITY OF LUBBOCK PARK LAND LICENSE AGREEMENT This CITY OF LUBBOCK PARK LAND L[CENSE AGREEMENT (the "License") is made this 23rd day of March , 2021, by and between the City of Lubbock, a Texas municipal corporation (the "City"), the owner of Bill McAlister Park (the "Park"), and Alstrom Angels, a SO1 (c)(3) non-profit charity, (the "Licensee"). The purpose of this License is for the City to grant the Licensee the exclusive use over certain space at the Park for the construction and operation of Milestone Development & Play Park (the "Facility") to provide children of all ability levels with a stimulating environment that will allow them to play, learn, and shaze experiences together embracing the true spirit of inclusion, creating an atmosphere of acceptance and understanding of everyone, according to terms and conditions agreeable to the parties as set forth herein. SECTION 1. PRENIISES AND PRIVILEGES A. Premises. According to the terms, conditions, and covenants of this License, the City hereby allows the exclusive use by Licensee of a specific portion of land at the Park for the construction and operation of a Facility. The specific portion of land over which Licensee has exclusive use under this License is more particularly described in the attached Exhibit "A" (the "Licensed Premises"). B. Surveu The Licensee shall provide the City with a boundary survey of the Licensed Premises, prepared by a registered land surveyor duly licensed in the State of Texas, within thirty (30) days after the execution of this License (the "Survey"). The cost of the Survey shall be paid by the Licensee. Any acreage amounts or descriptions of the Licensed Premises set forth in this License are estimates only and shall be subject to the acreage and description provided in the Survey. Upon completion of the Survey, it shall be attached to this License as Exhibit "B." C. Use of the Licensed Premises. The purpose of this License is for the Licensee to construct, install, maintain, and operate a Facility. The Facility on the Licensed Premises shall be constructed according to the plans and specifications prepared by an architect or engineer registered in the State of Texas and approved by the City as outlined in this License (the "Plans and Specifications"). The Plans and Specifications shall be attached to this License as Exhibit "C." All equipment used in the construction, operation, and maintenance of the Facility shall be subject to approval by the City for safety and recreation purposes. The Licensee shall first secure the written consent of the City Manager or his designee before the Licensee engages in any activity or use of the Licensed Premises not specifically authorized under this License. D. Covenant of Title. Authoritv. and Quiet Possession. The City represents and warrants that the City has, and shall maintain, full title to the Licensed Premises. The City has the right of lawful entry onto the Licensed Premises to perform the City's obligations, as required under this License or by any contract, law, or regulation, for the Primary Term of this License, and any Options period. The City further covenants that if the Licensee shall discharge the obligations to be performed by the Licensee under this License, then the Licensee shall have and enjoy, during City ot LuWwck Park Laed Liceaae Agreement - AI�trBm Mgels hage 1 the Primary Term of the License, and any Option period, quiet and undisturbed possession of the Licensed Premises. The representations, covenants, and wamants provided in this Section are subject to the covenants and conditions set forth in this License. E. Costs of Development. This License, in every sense, shall be without cost to the City for the development, maintenance, and improvement of the Licensed Premises. It shall be the sole responsibility of the Licensee to develop, keep, maintain, repair, and operate the entirety of the Licensed Premises and all improvements and facilities placed thereon at the Licensee's sole cost and expense. SECTION 2. COIVIlVIENCEMENT AND TERM OF LICENSE A. E,Q`'ective Date. The effective date of this License shall be the date the parties execute this License. B. Term of the License. The primary term of this License shall begin on the date this License is approved by the City Council of the City and executed by the parties, and shall continue for ten (10) years unless sooner terminated or extended (the "Primary Term"). The Licensee shall timely and peaceably vacate the Licensed Premises upon the end of the Primary Term, unless this License is extended for an Option Period. C. O�tion Period. At the expiration of the Primary Term of this License and the Licensee not being in default in any payments required to be paid and obligations required to be conducted by the terms of this License, the Licensee shall have an option to renew the License for four (4) additional, five (5) year terms (each an "Option Period"). Each Option Period shall be based upon the conditions specified herein and upon the payment schedule and increase as stated in this License. The Licensee shall give to the City notice of its intent to exercise an Option Period in writing on or before one hundred eighty (180) days prior to the end of the Primary Term. The City shall have the sole discretion and authority to grant an Option Period following the timely reyuest of the Licensee. The Licensee shall timely and peaceably vacate the Licensed Premises upon the end of the Option Period, unless the Licensee extends this License through an additional Option Period. D. Propertv Ownership Upon Expiration or Termination. As consideration for the Option Period, the Licensee agrees that upon the expiration of such Oprion Period, or due to termination of the License by the City because of default after the Option Period begins, all permanent improvements and structures located on the Licensed Premises, and any alteration to any permanent improvement or structure located on the Licensed Premises, regardless of whether such improvement or structure was located on the Licensed Premises upon the execution of this License, excluding personal property which may be removed without material injury to the Licensed Premises shall become the property of the City. In order to continue operations at the Facility after this License is expired or terminated, the City shall receive and take ownership of trade fixtures, furnishings, equipment, and other operational property on the Licensed Premises. City of Lubbock Park Land Licenae Agreemeot - Alatram Angels Psge 2 SECTION 3. COMPENSATION, FEES, AND OTHER CHARGES A. Consideration. In consideration of the rights and privileges to be granted to the Licensee by the City, the Licensee shall pay to the City an amount equal to FIVE HUNDRED AND XX/100 dollars ($500.00) per month, for access and use of the Licensed Premises. Such fee shall be paid monthly in advance, due and payable on the first of each month beginning on the first day of the first month following the effective date of this License. This fee shall be effective for the first three years of the Primary Term. Each additional year subsequent to the first three (3) years of this License, the overall annual rate shall be increased by three percent (3.0%). As reflected in the monthly payment above, for the fust three (3) years of this License, the annual rate shall be SIX THOUSAND AND XX/100 dollars ($6,000.00). Said adjustment shall be for each yeaz of the successive seven (7) years of the Primary Term. After the completion of the Primary Term, and for each Option Period, the City shall reconsider the Licensee's annual rate. Additionally, after the completion of the Primary Term, and for each Option Period, the City shall reconsider the Licensee's insurance obligation and may increase said coverage requirements if deemed necessary by the City to maintain a satisfactory level of protection. B. Delinguent Pavment/Place of Pavment. The Licensee agrees that all monthly payments are due and payable and shall be paid by the Licensee without demand or notice in writing from the City. All amounts paid by the Licensee and received by the City after the fifteenth (15�') day after the due date will be delinquent and shall include an additional monetary charge which shall be equal to five percent (5%) of the monthly fee amount due for each day that the fee remained unpaid. Failure of the Licensee to pay any fee or the five percent (5%) monetary charge on a delinquent fee shall constitute the Licensee's default of this License. C. All payments made hereunder by the Licensee shall be made to the City of Lubbock, Texas at the of�ices of the City of Lubbock, Attn: Director of Parks and Recreation, unless notified in writing to the contrary by the City. The Licensee agrees to pay the City for all costs of collection, including but not limited to, attorney's fees, in the event of default occurring by the Licensee for non-payment of rates, fees, and charges as stated herein. D. Utilities. The Licensee agrees to pay all charges for gas, water, electricity, telephone service, trash collection, solid waste, and other utiliries used on or furnished to the Licensed Premises. E. Taxes. The Licensee shall pay and release all charges, including without limitation, personal property taxes, goss receipts taxes, general and special assessments, and other charges of similar nature which may be levied or assessed against the Licensed Premises pursuant to any activity contemplated by this License. F. Annual Certified Statement. For each year during the Primary Term and during any Option Period, the Licensee, at its own cost and expense, shall provide to the City a statement of gross receipts for the previous year prepared by an independent certified public accountant certifying that such statements have been prepared in accordance with generally accepted accounting principles and under the terms and conditions of this License. Said statements shall include gross receipts itemized for each subcategory as follows: City ot Lubboek Park Land �.icenae Agreement - Alstrbm Mge1a Page 3 (1) General Sales, including Admissions Sales (2) Room Rentals and Events (3) Food and Beverage Sales (4) Miscellaneous Such statement of gross receipts shall be in a form approved by the City Manager of the City of Lubbock, or his designee. G. De inition of Gross Receipts. The term gross receipts, as used in this License, means the total dollar value of all receipts received by the Licensee which are derived from, arise out of, or become payable on account of the Licensee's business, and all business transactions conducted at or from the Licensed Premises by or for the account of the Licensee. Gross receipts are both cash and credit, regardless of when paid, on all orders of goods and services, including but not limited to receipts received for the use of the Facility and other general sales, room rentals, private events, food and beverage sales, alcohol sales, and miscellaneous sales. The following shall be excluded or deducted, as the case may be, from the computation of gross receipts: (1) Any and all retail sales taxes, excise taxes, restaurant taxes, bar or entertainment taxes, or related direct taxes collected by the Licensee in the course of making such sales, and thereafter remitted to any governmental agency. (2) Receipts Gom the sale or trade-in value of any equipment used upon the Licensed Premises and owned by the Licensee. (3) Employee meals and complimentary goods or services, if included in gross receipts. H. Books and Records oi the Licensee. The Licensee shall maintain such books and records in accordance with generally accepted accounting principles as would normally be examined by an independent certified public accountant pursuant to such standards in performing an audit of the Licensee's gross receipts. Such books or records shall contain records of all the Licensee's receipts in connection with its operations in a form consistent with good accounting practice and shall contain itemized records of all goss receipts by such categories of sales as aze specified herein above (or such other categories as the City may require from time to time) and of all other receipts derived by the Licensee from its operations. The Licensee may keep the books and records at its corporate office, provided that such books shall be made available to the City, at the Licensed Premises, or a mutually agreed upon site, upon the City's request. I. Bankruptcv. The Licensee agrees not to file any petition by or on the behalf of the Licensee seeking protection under the federal bank�uptcy laws or similar relief under any law or statute of the United State or any State thereof without first giving the City reasonable advance notice in writing of such filing. SECTION 4. COVENANTS AND CONDITIONS A. Non Discrimination. The Licensee, for itself, its personal representatives, and its permitted assigns, as a part of the consideration hereof, does hereby covenant and agree that: Cfty of Lubbock Psrk Land Wcenae Agreement - AlstrSm Mgels page 4 (1) No person, on the grounds of race, color, sex, religion, or national origin, shall be excluded from participation in, denied the benefits of, or otherwise subjected to, discrimination on the Licensed Premises; and (2) That in the construction of any improvements on, over, or under the Licensed Premises, and the furnishing of services thereon, no person, on the grounds of race, color, sex, religion or national origin, shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination; and (3) That the Licensee shall at all times use the Licensed Premises in compliance with all non-discrimination laws, either in effect at the present time or those promulgated in the future, of the United States of America, the State of Texas, and the City or their successors. B. Abide bv All Laws. The Licensee agrees to abide by all laws, statutes, ordinances, rules, and regulations of Federal, State, local, and other duly constituted public authorities having jurisdiction over the Licensee or the Licensed Premises. The Licensee agrees to conduct all activities on the Licensed Premises in accordance with the standards now established or that may be reasonably established later by any competent and lawful authority. Notwithstanding anything contained herein to the contrary, it is expressly understood and agreed that the rights granted under this License are non-exclusive, and the City herein reserves the right to grant similar privileges to another licensee on any other part of the Pazk. C. Permits. The Licensee shall be solely responsible for, and shall be required to obtain, any and all permits required by Federal, State, or local law in conducting its operations on the Licensed Premises. Such permits shall include, but not be limited to, Texas Alcoholic Beverage Commission licenses or permits, food establishment permits, and zoning permits. D. Ci�ployees. The Licensee shall not pernut any City employee or elected official to invest or otherwise hold a financial interest in this License or the constructed Facility and its operations. During the Primary Term or any Option Period of this License, the Licensee shall not hire or employ, on either full-time or part-time basis, any person that is employed by the City. E. Non Assignment & Sublicensing. The Licensee shall not transfer or assign this License, or any part hereof, or interest herein, or sublicense any portion of the Licensed Premises, except with the prior written approval of the City Manager or his designee, which approval shall not be unreasonably withheld. Any other attempted transfer, assignment, or sublicense shall be void and shall confer no rights upon any third person. No assignment or sublicense shall relieve the Licensee of any obligation under this License unless otherwise agreed to in writing by the City. Notwithstanding the foregoing, this section shall not be interpreted to preclude the assignment of this License to a parent, subsidiary, or merged company, if such parent, subsidiary, or merged company assumes all rights and obligations of this License. Written notice of such assumption shall be provided to the City by the parent, subsidiary, or merged company at least thirty (30) days prior to the effective date of such assignment. City of Lubbock Park Land Lkeo�e Agreement - Alstr�m Mgela Page 5 F. Acceptance of the Licensed Premises. The Licensee agrees to accept the Licensed Premises on an AS IS, WHERE IS basis; further, the City hereby disclaims, and the Licensee accepts such disclaimer, as to warranty, either express or implied, of the condition, use, or fitness for purpose of the Licensed Premises. The Licensee assumes full responsibility to make any repairs, at its own expense, as may be necessary for the safe and efficient use of the Licensed Premises, and to furnish any equipment necessary to properly maintain the Licensed Premises. G. Maintenance of the Licensed Premises bv the Licensee. The Licensee agrees to be responsible for all maintenance and repair of all items on the Licensed Premises including buildings, structures, grounds, pavements, utilities, grass cutting, landscaping, trash collection and removal, and all other maintenance requirements that may arise. The Licensee agrees that the Licensed Premises, and a buffer area extending twenty feet (20') out from the perimeter of the Licensed Premises, together with all improvements, shall be maintained in a safe, clean, and attracrive condition at all times. The Licensee shall provide a complete and proper arrangement for the adequate sanitary handling and disposal, away from the Licensed Premises, of all trash, garbage, and other refuse caused as a result of the Licensee's activities. The Licensee shall provide and use approved receptacles for all such garbage, trash, and other refuse. The Piling of boxes, cartons, barrels, or other similar items in an unattractive or unsafe manner, on or about the Licensed Premises, shall not be permitted. The Licensee herein agrees not to utilize, or permit others to utilize, the Licensed Premises for the storage of wrecked or disabled automobiles, vehicles of any type, or any other equipment or items which would distract from the appearance of the Licensed Premises. Additionally, all landscaped areas on the Licensed Premises will be maintained in accordance with the provisions contained herein, including without limitation, the condition to maintain a landscaping buffer around the perimeter of the Licensed Premises. Any failure to maintain the Licensed Premises according to the provisions of this License or any damage caused to any property of the City by any act, omission, or negligence of the Licensee, its employees, invitees, suppliers, or furnishers of service shall be repaired and restored to the condition exisring prior to damage either, at the City's election, by the Licensee at the Licensee's sole expense in accordance with the Plans and Specifications approved by the City, or repaired by the City, in which case, the Licensee shall pay the City, as additional fee, the expense of repair thereby incurred. The Licensee shall not undertake any maintenance or repair on the Licensed Premises involving structural change, alteration, or rebuilding until detailed plans and specificarions prepared by an architect or engineer registered in the State of Texas have fust been approved in writing by the City. Such approval shall not be unreasonably withheld. H. Utilitv Connections. Licensee shall be solely responsible for any and all costs associated with obtaining electrical service, water utilities, and wastewater utiliries including any connection fees as established by the City. The Licensee agrees to pay all subsequent charges for gas, water, electricity, telephone service, trash collection, solid waste, and other utilities used on or fumished to the Licensed Premises. City ot Lubboek Park Land License Agreement - AlstrFim Mgels Page 6 I. Prohibition on Encumbrance. The Licensee shall not encumber any interest in the Licensed Premises, the Park, or this License in any way, manner or form, including, but not limited to, by deed of trust, mortgage, or any other security instrument. Further, the Licensee shall not cause or permit any mechanic's liens or any other liens to be filed against the Licensed Premises, the Park, or this License by reason of any work, labor, services, or materials supplied and/or perfonned or claimed to have been supplied and/or performed to, by or for the Licensee or any contractors or subcontractors of the Licensee. J. Ri�oiEntrx. Nothing contained in this License shall be construed to prohibit the right of entry by the City, in, on, over, or across the Licensed Premises, at any and all times, and for any and all purposes, and the City expressly reserves the right to enter upon the Licensed Premises, and any and all improvements located thereon, subject to the conditions stated herein, to conduct any and all activities the City deems necessary. The Licensee shall furnish to the City any and all keys or instructions necessary to allow the City's right of entry reserved and described herein. K. Ri�ht of Inspection. The City shall have the right to enter the Licensed Premises for inspection at reasonable times, and to make written request that repairs be made to the Facility as may be necessary for the safe and efficient use of the Facility; or, at the City's option, the City shall have the right to make repairs, additions, or alterations as may be necessary for the safety or preservation of the Licensed Premises at the Licensee's expense. L. Control of the Citv. The City shall retain all authority placed in it which is 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. M. Texas Parkr and Wildlife Department Approval. All terms of this License are contingent upon the approval of the Texas Parks and Wildlife Division (the "TPWD"). The City reserves the right to require subsequent TPWD approval if this License is amended or if the use of the Licensed Premises changes in any way. SECTION 5. INSURANCE AND INDEM1vIFICATION A. Contractor's Insurance. During the Primary Term or any Option Period of this License, the Licensee shall require its primary contractor (the "Contractor") and all other contractors employed for the construction of the Facility, improvements, or additions, on the Licensed Premises to procure and carry, at its cost and expense, 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 License, including, but not limited to, all aspects, operations and occurrences to which the Licensee has indemnified the City in this License. A Certificate of Insurance specifying each and all coverages shall be submitted to the City prior to the execution of this License. The Licensee shall provide to the City proof of the below described insurance on or before thirty (30) 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 City of Lubboek Park Lsnd License Agreement • Alttrbm Mgela Page 9 specified herein, of ternunation of any such policy sixty (60) days before such terniination is to be et%ctive; 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) Commercial General Liability Insurance. The Contractor and any other contractor or subcontractor of the Licensee or the Contractor shall have commercial general liability insurance with either a minimum limit of one million dollars ($1,000,000.00) bodily injury per person, one million dollazs ($1,000,000.00) bodily injury per occurrence, and one million dollars ($1,000,000.00) property damage; or two million dollars ($2,000,000.00) combined single limit coverage. The City and the Licensee shall be named as an additional insured on a primary and non-contributory basis in such policy. (2) Professional Liability Insurance. The Contractor and any other contractor or subcontractor of the Licensee or the Contractor hired to perform architectural or design services shall have Professional Liability Insurance with limits of one million dollars ($1,000,000.00) combined single limit. The City shall be named as an additional insured on a primary and non-contributory basis in such policy. (3) Automotive Liabi[ity Insurance. The Contractor and any other contractor or subcontractor of the Licensee or the Contractor shall have auto liability insurance with limits of one million dollars ($1,000,000.00) combined single limit. The City shall be named as an additional insured on a primary and non-contributory basis in such policy. (4) Worker's Compensation and Employers Liability Insurance. The Contractor and any other contractor or subcontractor of the Licensee or the Contractor shall elect to obtain worker's compensation coverage pursuant to Section 406.002 of the Texas Labor Code. Further, the Contractor and any other contractor or subcontractor of the Licensee or the Contractor shall similarly maintain Employer's Liability Insurance with coverage limits of one million dollars ($1,000,000.00). Said coverage shall be maintained throughout the Primary Term or any Option Period of this License and shall comply with all provisions of Title 5 of the Texas Labor Code to ensure that the Licensee maintains said coverage. The policy must be endorsed to include a waiver of subrogation in favor of the City. (5) Builder's Risk Insurance. The Contractor and any other contractor or subcontractor of the Licensee or the Contractor shall maintain builder's risk insurance written on an alI risk basis with valuation at replacement cost for the full value of improvements. B. Licensee Insurance. The Licensee shall procure and carry, at its sole cost and expense, through the Primary Term and any Option Period of this License, insurance protection as hereinafter specified, in form and substance satisfactory to the City, camed with an insurance company authorized to transact business in the State of Texas, covering all foreseeable aspects and operations in connection with this License, including, but not limited to, all aspects, operations, or occurrences to which the Licensee has indemnified the City in this License. A Certificate of Insurance specifying each and all coverages shall be submitted to the City prior to the execution of this License. The Licensee shall provide to the City proof of the below-described insurance on or before thirty (30) days prior to the expiration date of City of Lubboek Park Land Licease Agreemeot - Alrt�m Angels Page 8 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 et�ective; 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) Commercial General Liabi[ity Insurance. The Licensee shall have commercial general liability insurance and such coverage must have either a minimum limit of one million dollars ($1,000,000.00) bodily injury per person, one million dollars ($1,000,000.00) bodily injury per occurrence, and one million dollars ($1,000,000.00) property damage; or two million dollars ($2,000,000.00) combined single limit coverage. The City and the Licensee shall be named as an additional insured on a primary and non-contributory basis in such policy. (2) Automotive Liability Insurance. The Licensee shall have auto liability insurance, with limits of one million dollars ($1,000,000.00) combined single limit. The City shall be named as an additional insured on a primary and non-contributory basis in such policy. (3) Worker's Compensation and Employers Liability Insurance. The Licensee shall elect to obtain worker's compensation coverage pursuant to Section 406.002 of the Texas Labor Code. Further, the Licensee shall similarly maintain Employer's Liability Insurance with coverage limits of one million dollars ($1,000,000.00). The Licensee shall maintain said coverage throughout the Primary Term and any Option Period of this License and shall comply with all provisions of Title 5 of the Texas Labor Code to ensure that the Licensee maintains said coverage. The policy must be endorsed to include a waiver of subrogation in favor of the City. C. Destruction of the Premises. If the Licensed Premises shall be partially destroyed by any casualty insurable under the Licensee's insurance policy, the Licensee shall, upon receipt of the insurance proceeds, repair the same. If the Licensed Premises shall be damaged as a result of a risk which is not fully covered by the Licensee's insurance, the Licensee shall either (a) repair or rebuild the damaged improvements to the extent of available insurance proceeds, or (b) terminate this License and assign the insurance proceeds to the City. If the Licensee fails to repair or rebuild the damaged improvements to the extent of available insurance proceeds or terminate this License and assign any insurance proceeds to the City, the City shall have the right to ternunate this License. D. Independent Contractor. During all times that this License is in effect, the parties agree that the Licensee is, and shall be deemed to be, an independent contractor and operator and not an agent or employee of the City with respect to their acts or omissions hereunder. It is mutually agreed that nothing contained herein shall be deemed or construed to constitute a partnership or joint venture between the parties hereto. E. Indemnitv and Release. THE LICENSEE SHALL INDEMIVIFY AND HOLD HARMLESS, TO THE FULLEST EXTENT PERMITTED BY LAW� THE CITY� AND THE CITY'S RESPECTIVE OFFICERS, EMPLOYEES� ELECTED OFFICIALS, AND AGENTS (COLLECTIVELY, THE ��INDEMNIFIED City of Lubbock Park Laad Licease Agreement - Al�triim Aagelr Page 9 PARTILS"�� FROM AND AGAINST ANY AIVD ALL LOSSES� DAMAGES� CLAIMS� OR LIABILITIES� OF' ANY KIND OR NATURE� WHICH ARISE DIRECTLY OR INDIRECTLY FROM� OR ARE RELATED TO� IN ANY WAY, MAIVNER, OR FORM TO, THE ACTIVITIES CONTEMPLATED IN THIS LICENSE, 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. THE LICEfYSEE FURTHER COVLNANTS AND AGREES TO DEFEND ANY SUlTS OR ADMINISTRATIVE PROCEEDINGS BROUGHT AGAINST THE INDEMNIFIED PARTIES ON ACCOUNT OF AIYY SUCH CLAIM� AND TO PAY OR RELEASE THE FULL AMOUNT OR OBLIGATION OF ANY SUCH CLAIM INCURRED BY� ACCRUING TO� OR IMPOSED ON THE INDEMNIFIED PARTIES, AS APPLICABLE, RESULTING FROM ANY SUCH SUITS� CLAIMS, OR ADMINISTRATIVE PROCEEDINGS. IN ADDITION� THE LICENSEE SHALL PAY TO THE INDEMNIFIED PARTIES, AS APPLICABLE, ALL ATTORNEY'S FEES INCURRED BY SUCH PARTIES IN ENFORCINC THE LICENSEE'S INDEMNITY IN THIS SECTION. THE INDEMNIFIED PARTIES SHALL NOT BE LIABLE FOR� FROM, OR AGAINST, AND THE LICENSEE HERBY RELEASES THE INDEMNIFIED PARTIES FOR� FROM, AIYD AGAINST, ANY LOSSES, DAMAGES, CLAIMS, OR LIABILITIES TO THE LICENSEE, ON ANY THEORY OF LEGAL LIABILITY� INCLUDING� BUT NOT LIMITED TO� THE NEGLIGENCE� OF ANY TYPE OF DEGREE OR FAULT� OF THE CITY ARISING FROM� OR RELATED TO, IN ANY WAY� NIANIYER� OR FORM, THE UNENFORCEABILITY OR VOIDANCE, FOR ANY REASON, OF ALL OR ANY PORTION OF� THIS LICENSE. THE INDEMNITY AND RELEASE PROVIDED HEREIN SHALL SURVIVE THE TERMINATION OR VOIDAIYCE OF THIS LICENSE. SECTION 6. TERMINATION A. If the Licensee does not timely pay all sums due to the City when such sums become due and payable according to provisions of this License, or if the Licensee shall abandon, or cease operation of, the Licensed Premises for a period of thirty (30) days or more, or if the Licensee is not performing any terms, provisions, covenants, or conditions of this License, then the Licensee shall be in default. In said event of default, the City may immediately, or any time thereafter, terminate this License by giving the Licensee ten (10) days' notice in writing of the default. If default continues for more than twenty (20) days after notice, the City shall have the right to cancel this License. Provided, however, that as to those actions or cucumstances which the Licensee should do, discontinue doing, or conect which create a danger or are derogatory to the planned activities for the Licensed Premise, the dangerous or derogatory actions or circumstances shall be cured by the Licensee immediately, without notice by the City. Conditions or cucumstances creating a dangerous situation or which are or may be derogatory to planned activities for the Licensed Premises shall be conclusive as to the Licensee if the determination that they aze such is made by the City or any governmental body with jurisdiction. The term derogatory as herein used, shall mean those things that do or reasonably appear to hinder the planned activities for the Licensed Premises. B. In case of any default which continues for more than twenty (20) days after notice is given as herein required, the City may, at its option, instead of canceling this License, take possession City ot Lubbock Psrk Land Licease Agreement - AlstrSm Mgels Page 10 of the License� Premises and relet the same for the account of the Licensee, and the Licensee shall be liable to the City for the amount of fee payable hereunder for the remainder of the Primary Term and any Option Period, less the net amount received by the City on account of such reletting, such net amount to be the total amount received by such reletting, less necessary costs and expenses, including without limitation, the expense of renovating, repairing, and advertising incurred in connection with the reletting of the Licensed Premises. The Licensee hereby grants, and at all times the City shall have, a contractual lien on the Licensee's property in the Licensed Premises to secure the performance of all of the Licensee's obligations hereunder which contractual lien shall be in addition to all liens provided as a matter of law. The Licensee may remove its personal property, including improvements thereon, within twenty (20) days of the notice by the City of default and the City's request to remove same. After such time, the City, in addition to the other rights or remedies it may have, shall have the right to remove all persons and property from the Licensed Premises. Such property shall become the property of the City. C. THE L[CENSEE HEREBY WAIVES ALL CLAIMS FOR DAMAGES WHICH MAY BE CAUSED BY THE RE-ENTRY OF THE CITY AND THE TAKING OF POSSESSION OF THE LICENSED PREMISES OR REMOVAL OR STORACE OF THE FURNITURE AND PROPERTY AS HEREIN PROVIDED� AND WILL SAVE THE ClTY HARMLESS FROM ANY LOSS� COSTS� OR DAMAGES OCCASIONED BY THE CITY THEREBY� AND NO SUCH RE-ENTRY SHALL BE CONSIDERED OR CONSTRUED TO BE FORCIBLE ENTRY. NO SUCH RE-ENTRY OR TAKING POSSESSION OF THE LICENSED PREMISES BY THE CITY SHALL BE CONSTRUED AS AN ELECTION ON 1TS PART TO TERMINATE THIS LICENSE UNLESS A WRITTEN NOT[CE OF SUCH INTENTION BE GIVEN TO THE LICENSEE OR UNLESS THE TERMINATION IS DECREED BY A COURT OF COMPETENT JURISDICTION. D. Waiver of Statutory Notice to Ouit. In the event the City exeroises its option to cancel this License upon the happening of any or all of the events set forth herein, a notice of cancellation shall be sent to the Licensee, and upon such cancellation, the Licensee hereby agrees that it will promptly surrender possession of the Licensed Premises to the City. E. Surrender of Premises. The Licensee covenants and agrees that it will, at the termination of this License, in whatever manner such termination may be brought about, promptly surrender and deliver the Licensed Premises to the City in the same condition as it existed at the time of execution of this License, excepting ordinary wear and tear. The Licensee, having paid all fees and not in default thereof, shall be given a reasonable time, not to exceed twenty (20) days after the termination of this License, to remove all of the Licensee's personal property according to the provisions outlined in this License. F. Non-Waiver for Breach. No acceptance of fees by the City after it is due, and no delay on the part of the City in enforcing any obligation of the Licensee, shall be construed as a waiver or any default then, theretofore, or thereafter existing in the performance of any other obligation undertaken by the Licensee. No lawful ternunation of this License shall release Licensee from responsibility or liability to the City for fees theretofore due and unpaid nor from the performance of any of the covenants, agreements, or stipulations by the Licensee herein undertaken to be kept and performed. G. Attornev Fees. If it becomes necessary for the City to secure the services of an attorney in order to collect any amount due hereunder, or to enforce any of the provisions hereof, the City ot Lubbock Park Land Licenae Agreemeof - Alatrom Mgels Page 11 Licensee agrees and binds itself to pay the City reasonable attorney's fee and court costs, which shall beaz interest from the date of its accrual at the legal rate for judgments. SECTION 7. CONSTRUCTION A. Mandatory Construction. In consideration for the granting of this License, the Licensee agrees to construct at the Licensed Premises the Facility with all the necessary appurtenances and improvements reasonably necessary for the purpose of the Facility. Construction of the Facility shall be commenced within six (6) months of the date of execution of this License by both parties and be completed within twenty-four (24) months from the date of the commencement of construction. The City, at its sole option, may grant a longer period for completion of the construction. In the event that the Licensee fails to commence or complete construction of the Facility within the time frames set forth in this License, and no extension for completion has been approved by the City, this License shall immediately ternunate, and title to all buildings, fixtures, or structures, whether owned by the Licensee or not, and whether completed or not, excluding trade fixtures, furnishings, equipment, and other personal property which may be removed without material injury to the Licensed Premises according to the provisions of this License, shall automatically vest in the City. During the construction and installation of the Facility, the Licensee shall maintain financial surety favorable to the City in the amount of one hundred percent (100%) of the total construction cost of the Facility in the event that said construction cost exceeds one hundred thousand dollars ($100,000), and the Licensee shall maintain a payment bond in the amount of one hundred percent (100%) of the total construction cost in the event that said construction cost exceeds fifty thousand dollars ($50,000). All bonds shall be submitted on forms supplied by the City and executed by an approved surety company authorized to do business in the State of Texas. It is further agreed that this Lease shall not be in effect until such sureties are so furnished. The Licensee shall provide the surety required in this Section within thirty (30) days of the execution of this License. B. Construction of Improvements. Within sixty (60) days of the execution of this License, the Licensee shall provide to the City Manager or his designee, the City, and any other appropriate agencies, preliminary Plans and Specifications prepared by an architect or engineer registered in the State of Texas. The preliminary Plans and Specifications shall be subject to approval in quality and design by the City Manager or his designee. Such approval shall not be unreasonably withheld. The preliminary Plans and Specifications shall be in accordance with the various building ordinances, electrical codes, and the uses and purposes contemplated by this License, and that the same will not constitute a fire or safety hazard or interference in the use of the remainder of the Park by the general public. The Licensee shall not implement or commence any change in the preliminary Plans and Specifications without the express written approval of the City Manager or his designee, which approval shall not be unreasonably withheld. The City shall approve or disapprove said modified preliminary Plans and Specifications within ten (10) business days after submission by the Licensee, otherwise such Plans and Specifications shall be deemed approved. Any request for changes to the preliminary Plans and Specifications shall be submitted for approval to the City prior to the commencement of any work relating to implementation of the same. All approvals are City o! Lubbock Park Land Licenae Agreemenf - Alatriim Mgels Page 1Z without recourse or the assumption of liability by the City or the reviewing engineer. All improvements and alterations made by the Licensee on the Licensed Premises are subject to approval by the City, in wriring, prior to construction. The Licensee shall construct the Facility at its sole expense, and obtain all necessary construction and utility permits required by law. The Licensee shall provide copies of all required permits and licenses to the City. All construction shall meet all federal, state, and local construction, building, and sign code requirements. All construction and installation made by the Licensee pursuant to this agreement, and the operation thereof, including electrical wiring and lighting, shall meet the highest industry standards to ensure the safety, health, and well-being of patrons. The Licensee shall submit for approval to the City Manager or his designee the final Plans and Specifications prepared by an architect or engineer registered in the State of Texas for improvements to be constructed by the Licensee on the Licensed Premises within ninety (90) days of the execution of this License, unless otherwise approved in writing by the City. The Licensee shall have the right to enter upon the Licensed Premises and commence the construction of improvements immediately upon the approval of the Plans and Specifications by the City, provided that all other requirements of this License have been met. It is stipulated that Licensee shall be responsible for construction of all improvements to Licensed Premises necessary to create and maintain a quality Facility, including without limitation, construction of all utility improvements and connections within the Licensed Premises. Promptly after completion of the construction of the Facility, the Licensee shall furnish to the City a set of "as-builY' drawings from a duly certified architect or engineer registered in the State of Texas. C. Materials and Workmanshio. The Facility shall be constructed using materials and workmanship of the best quality and grade that can be furnished. The fact that the Plans and Specifications may fail to be sufficiently complete in some detail will not relieve the Licensee of full responsibility for providing those materials and workmanship of the best quality and grade and for protecting them adequately until the Facility is completely constructed. The presence or absence of a representative of the City on the Licensed Premises during the construction of the Facility will not relieve the Licensee of full responsibility of complying with this provision. D. Guarantees. All equipment and materials used in the construction and maintenance of the Facility shall be guaranteed against defective materials and workmanship. Prior to the commencement of construction, the Licensee shall furnish to the City, a written general guarantee which shall provide that the Licensee shall remedy any defects in the work, and pay for any and all damages of any nature whatsoever resulting in such defects, when such defects appear within two (2) years from date of final acceptance of the work as a result of defective materials or workmanship, at no cost to the City. The obligations contained herein apply to all products and services provided by the Licensee, its contractors, its sub-contractors, and any other third party involved in the creation or development of the Facility, and the products and services to be delivered to the City under this License. Failure to comply with any of the obligations contained herein may result in the City ot Lubboek Park Land License Agreement - Alsfrlim Mgels Page 13 City availing itself of any of its rights under the law and under this License including, but not limited to, its right pertaining to termination or default. The warranties contained herein are separate and discrete from any other warranties specified in this License, and are not subject to any disclaimer of warranty, implied or expressed, or limitation to the Licensee's liability which may be specified in this License, its appendices, its schedules, its annexes, or any document incorporated into this License by reference. E. Alterations or Improvements to Premises. The Licensee covenants and agrees that it will make no structural alterations, material changes, or additions in, on, or to the Licensed Premises without the prior written consent of the City. Such alterations or changes as are approved by the City and shall be made at the Licensee's expense. Except as herein provided, all permanent improvements and fixtures installed by the Licensee shall become the property of the City in accordance with the terms and provisions of this License, unless otherwise agreed to in writing by the parties. F. Automatic Vesting Upon Expiration or Termination. Upon expiration or termination of this License, title to all buildings, fixtures, or structures, whether owned by the Licensee or not, and whether completed or not, excluding trade fixtures, furnishings, equipment, and other personal property which may be removed without material injury to the Licensed Premises according to the provisions of this License, shall automatically vest in the City. G. Protection of Subsurface Lines and Structures. It shall be the Licensee's responsibility to prosecute the work contemplated by this License in such a way as to exercise due care to locate and prevent damage to all underground pipelines, utility lines, conduits, or other underground structures which might or could be damaged by the Licensee during the Primary Tenn and any Option Period, including the construction of the Facility. The City agrees that it will furnish to the Licensee the location of all such underground lines and utilities of which it has knowledge. However, such fact shall not relieve the Licensee of its responsibilities aforementioned. All such underground lines or structures cut or damaged by Licensee during the prosecution of the work contemplated by this License shall be repaired immediately by the Licensee to the satisfaction of the City at the Licensee's expense. H. Barricades and Safety Measures. The Licensee shall, at its own expense, furnish and erect barricades, fences, lights, and danger signals, and shall take such other precautionary measures to protect persons, property, and the work, as may be necessary. The Licensee will be held responsible for all damage to the work due to the failure of barricades, signs, and lights to protect it, and when damage is incurred, the damaged portion shall be immediately removed and replaced by the Licensee at his own cost and expense. I. Explosives. The use of explosives will not be pernutted unless written permission to do so is obtained from the City. In all cases where written permission is obtained for the use of explosives, the Licensee shall assume full responsibility for all damage, which may occur as a direct or indirect result of the blasting. In addition, in all cases where explosives are authorized to be used, the Licensee shall use utmost care so as not to endanger life or property, and the Licensee shall further use only such methods as are currently utilized by persons, fums, or corporations engaged in similar type of construction activity. Explosive materials shall not be stored or kept at the construction site. In all cases where explosives are City of Lubbock Park Land Lieeose Agreemeot - Natriim Mgels Page 14 to be used during the construction of the Facility contemplated by this License, it shall be the duty of the Licensee to no6fy each utility company having structures above or below the ground in proximity to Licensed Premises, and such notice shall be given sufficiently in advance to enable the companies to take such steps as they may deem necessary to protect their property from injury. Such notice, however, shall not relieve the Licensee of responsibility for any damage resulting from his blasting operations. SECTION 8. OPERATIONAL CONDITIONS A. Hours of Operation. The City Manager or his or her designee shall approve the Licensee's hours of operation and may change such hours as needed. B. Ouality of Service. It is an express condition of this License the Licensee maintains a high standard of product quality and service. Questions or complaints regarding the quality of its products or services, whether raised by patrons' complaints or on the City's own initiative or otherwise, shall be submitted to the Licensee for response. C. Complaints bv the Public. In the event that the Licensee or the City receive any written complaint concerning the Licensee's operations at the Licensed Premises, the Licensee shall promptly respond to such complaint in writing within ten (10) days of its receipt. Without further notice of demand, the Licensee shall keep a copy of each such complaint and the Licensee's written response for a period of one (1) year from the date of the complaint and shall make the complaint and the written response available to the City upon its request. D. Personnel. The Licensee shall hire and control its persor►nel at no expense to the City. For purposes of this License, under no circumstances will employees or agents of the Licensee be considered City employees. The Licensee shall ensure all personnel receive sufficient training regarding operations and maintenance standards in accordance with the provisions of this License. E. Si�ns. The Licensee may, at its own expense, install and operate necessary and appropriate identification signs on its Licensed Premises in compliance with the City of Lubbock Code of Ordinances. All signs located on the Licensed Premises, excluding signs location on the Licensee's buildings, are subject to the approvaf of the City Manager or his designee, which consent shall not be unreasonably withheld. F. Safetv Instruction. The Licensee shall provide sut�icient safety instructions to users and employees of its facilities to ensure the well-being and safety of the patrons. Such instructions are subject to the approval of the City Manager or his designee, which consent shall not be unreasonably withheld. G. Pricin . The Licensee shall maintain price structures for the use of the Facility in a manner competitive with similar operations within the area, and such pricing structures shall be approved by the City Manager or his designee. Questions or complaints regarding the pricing of the Facility, whether raised by patrons' complaints or on the City's own initiative or otherwise, may be submitted to the Licensee for response. The City Manager or his designee shall approve all items of inerchandise held for sale to the public by the Licensee prior to the items being offered for sale by the Licensee. City of Lubbock Park Land Licenu Agreemeot - Aletrlim Angele Page l5 H. Landscaping. All areas within the Licensed Premises not utilized by structures, parking spaces, or vehicular way shall be landscaped by the Licensee. A landscaping plan is to be included along with the Plans and Specifications for approval by the City. No initial landscaping is to be undertaken by the Licensee before written approval is obtained from the City Manager or his designee. Landscaping material shall be waterwise and shall be chosen for its permanence, attractiveness, and ease of maintenance. Landscaped areas, including the buffer area extending twenty (20) feet out from the perimeter of the Licensed Premises, shall be kept and maintained at all times. I. Covenant Against Waste and Nuisance. The Licensee covenants and agrees that it shall not use the Licensed Premises in any manner that will constitute waste, and that it shall not cause or permit any unlawful conduct, unreasonable annoyance or nuisance to exist or arise in the course of, or as a result of, its use of the Licensed Premises. The Licensee shall not permit any activity or omission which constitutes or results in unlawful conduct, unreasonable annoyance, or nuisance at, in, or on the Licensed Premises. SECTION 9. NIISCELLANEOUS A. License is BindinQ on Successors, Assi ns.�Etc. All covenants, agreements, provisions, and conditions of this License shall be binding upon and inure to the benefit of the City and the Licensee, jointly and severally, and their legal representatives, successors, assigns, grantees, and assignees. No modification of this License shall be binding upon either party unless it is in writing and is signed by both parties. B. Protection of Park. The City reserves the right to take any action it considers necessary to protect the Pazk, together with the right to prevent the Licensee from erecting, or permitting to be erected, any building or other structure on or adjacent to the Park which, in the opinion of the City, would limit the usefulness of the Park or constitute a hazard to the general public. The City reserves the right to fiuther develop the Park as the City sees fit regardless of the desires of the Licensee, and without any hindrance or interference from the Licensee. The City expressly reserves the right to grant to other persons, additional licenses and privileges even though the purposes for which such additional licenses and privileges are given are the same and duplicates of those contained in this License. The City reserves the right to restrict and designate parking areas for all areas of the Park. C. Subordination. This License shall be subordinate to provisions of any existing or future agreements entered into by and between the City and the Federal or State government for the improvement, operation, or maintenance of the Park; provided, that if such agreements restrict the operation of the Licensed Premises, appropriate rate reductions shall be negotiated between the City and the Licensee. D. Liens A�ainst the Citv. In accordance with the laws of the State of Texas, the Licensee understands and agrees that, for itself, and as a condition of doing business with the Licensee, the Licensee's contractors, suppliers, vendors, tenants, agents, and any other person shall not levy any lien against the real property of the City. E. Entire A�reement. This License constitutes the entire understanding between the parties and as of its effective date supersedes all prior or independent agreements between the parties City ot Lubbock park Land Lkence Agreement - AlrtrSm Mgels Page 16 covering the subject matter of this License. Any change or modifications to this License shall be in writing signed by both parties. F. Notice. Any norice given to either party shall be hand-delivered or sent by registered or certified mail, return receipt requested, postage prepaid, addressed to: For t6e Licensee: Alstrom Angels Attn: Cassie Johnston Executive Director 5121 69�' Street Ste. B 1 Lubbock, Texas 79424 Telephone: 806.701.5290 Cell: 806.786-4903 For the City: City of Lubbock Attn: City Secretary P.O. Box 2000 Lubbock, Texas, 79457 Telephone: 806.775.2061 Facsimile: 806.775.3983 With copy to: Attn: Parks Department Director P.O. Box 2000 Lubbock, Texas 79457 G. Headings and Titles. The headings and subtitles contained in this License are for the purpose of clarification and in no way are determinarive of the intent and purposes of the License or the conditions stated herein. H. Severabilitv. If any part, provision, term, condition, obligation, or portion of this License is found to be illegal or void by a court of final jurisdiction, the entire License shall not be void, but the void provision shall be struck and the remainder of this License shall continue in full force and effect as nearly as possible in accordance with the original intent of the parties. I. Force Majeure. The City shall not be required to perform any term, condition, or covenant in this License so long as such performance is delayed or prevented by force majeure, which shall mean any act of God, civil riot, tlood, action of the State or Federal government, and any other cause not reasonably within the control of the City. J. 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 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 contained in this License 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 License, the former shall control. K. Venue and Applicable Law. This License is subject to all present and future valid laws, orders, rules, ordinances, and regulations of the United States of America, the State of Texas, the parties, and any other regulatory body having jurisdiction. This License shall be construed and governed according to the laws of the State of Texas. The sole venue for any action, controversy, dispute, or claim arising under this License shall be in a court of appropriate jurisdiction in Lubbock County, Texas, exclusively. Ctty of Lubbock Park Land Liceau A�eement - AlstnGm Mgels Page 17 L. Public Information. This License is public information. To the extent, if any, that any provision of this License is in conflict with Tex. Gov't. Code Ann. Chapter 552 et seq., as amended (the "Texas Public Information Act") the same shall be of no force and effect. M. No Third-Party Benefciaries. This License is entered solely by and between, and may be enforced only by and among the parties. Except as set forth above, this License shall not be deemed to create any rights in or obligations to any third parties. N. No Personal Liabilitv. Nothing in this License is construed as creating any personal liability on the part of any employee, officer, elected official, or agent of any public body that may be a party to this License. O. Immunities Acknowled�ed and Retained. EACH PARTY EXPRESSLY ACKNOWLEDGES AND AGREES THAT NO PROVISION OF THIS LICENSE IS IN ANY WAY INTENDED TO CONSTITUTE A WAIVER BY A PARTY OF ITS IMMUNITIES FROM SUIT OR LIABILITY THAT IT MAY HAVE BY OPERATION OF LAW. THE CITY RETAINS ALL OF ITS GOVERNMENTAL IMMUNITIES. EXECUTED IN TWO COUNTERPARTS� EACH OF WHICH SHALL HAVE THE FORCE AND EFFECT OF AN ORIGINAL, THIS 23rd DAY OF March , 2021. � , �- - CITY OF LUBBOCK, TEXAS DANIEL M. POPE, YOR ATTES'i': Reb a Garza, City Secre ry Cky of Lubbock Park Land License Agreement - Aktrgm Mgefa Page 18 C�s��P. l oh �ns � Name [Pnr►t] APPROVED AS TO CONTENT: J�'�artwD�t t1 !� k�-�,t�L Brooke Witc er, Assistant City Manager APPROVED AS TO FORM: Rya roo , ssis t City Attomey City of Lubbock Park Lend Licenae Agreement - Alstriim Mgels Page 19 Exhibit A— Descrintion of the Licensed Premises City ot Lubbock Park Land Licenae Agreement - AlrtrBm Mgels Page 20 1 tl�l��i�� li! :: ��t'� �It 't� �� . � �;i;�;j� ;�I �i ;�I��t� �� ;I +�;j'��''� j�' ��; I��,,;, j� j1�i i�! � 11 i1,1af�� i ,�� ii :'�> ;�� l �! 1 �11 r� ! t��f �� t� .y; , ,, ;�;,,, �� ,� ,� . 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I - '�Q �-•,--=�1i.__e�'—��151 att •-� _.. �YI1 �' t,_ , �'. ,Si _ y��.M1. p �'I's . t-1-� �4�ti'. .� 'l l� - �t:i s a �t , �• it r I 1 � ` Q 9 m i Exhibit B — Survey of the Licensed Premises City of Lubbock Park Land License Agreement - Alstrdm Angels Page 21 Exhibit C — Plans and Saecifications for the Facility City of Lubbock Park Land License Agreement - Alstrdm Angels Page 22 Preliminas Site Plan Page 1 of 1 Minutes Parks and Recreation Board Meeting City of Lubbock Parks and Recreation October 25, 2016 Park Board Members Present: Susan Tomlinson, Beth Bridges, Peter Laverty, John Forburger, Jane Nagy, Jim Douglass, Michael Zant Park Board Members Absent: Ann Horkey, John Aguilar Staff Present: Scott Snider, Assistant City Manager Bridget Faulkenberry, Parks and Recreation Director Johnny McLellan, Recreation Services Manager Stewart Gerhart, Park Operations Manager Leslie Morgan, Management Assistant Council Present: Sheila Patterson Harris Juan Chadis Item 1: Call to Order At 12:13pm, Susan Tomlinson, Chair, called the meeting to order. Item 2: Approval of Minutes • Susan Tomlinson asked for a motion to approve the minutes of the September 27th, 2016 regular meeting. Peter Laverty made a motion to approve and Beth Bridges seconded the motion. Motion passed 8-0. ACTION ITEM Item 3.1: Consider a request for recommendation for construction of a Milestones Play Park on McAlister Park property: Cassie Johnston and Melissa Dudley with Alstrom Angels presented. • Alstrom Angels, a non-profit organization, requested board recommendation to move forward with asking City Council to approve use of park land for 20,000 square foot indoor playground. a Beth Bridges made motion to approve request and Jane Nagy seconded. Motion passed 8-0. Item 3.2: Consider a request for recommendation for exercise equipment to be installed in Buddy Holly Recreation Area: Christy Martinez with Los Hermanos Familia presented. • Los Hermanos Familia seeks board recommendation to ask City Council for the money to install gym equipment that will be purchased through outside donations. o Susan Tomlinson called for a motion. o Peter Laverty made motion to pass recommendation on to City Council. o John Forburger seconded and motion passed 8-0. WORK SESSION Item 4.1: Parks and Recreation Department updates • Bridge at Mae Simmons Park is installed. ADA compliance is underway • November meeting moved to November 2911 due to Thanksgiving holiday • Park events for October/November presented Ad ourn With no further discussion the meeting adjourned at 1:14pm Attest, Leslie Morgan, Management Assistant