Loading...
HomeMy WebLinkAboutResolution - 2001-R0395 - License Agreement With Deca Sports, Inc.To Expand Park Use - 10/11/2001Resolution No. 2001-R0395 October 11, 2001 Item No. 25 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock, a License Agreement between the City of Lubbock and Deca Sports, Inc., and all related documents. Said Agreement is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council this 11th day of October , 2001. 1V� WINDY SIT;i ON, MAYOR ATTEST: Rebecca Garza, City Secretary APPRO ED AS CONTENT: Rand ruesdelf Parks and Recreation Manager ALS:cp ccdocs/Deca-Hocky.res September 17, 2001 Resolution No. 2001-RO395 October 11, 2001 Item No. 25 LICENSE AGREEMENT This License Agreement (the "Agreement") is entered into on this 11th day of October , 2001, between the City of Lubbock, Texas (the "City"), a Texas Home Rule Municipal Corporation and Deca Sports, Inc., a Texas corporation ("Company") and RECITALS WHEREAS, the City desires to expand the public uses of certain park properties; WHEREAS, Company purposes to provide recreational activities and opportunities to the residents of the City by providing roller hockey activities; and WHEREAS, Company desires to execute a license with the City in order to conduct roller hockey activities over and on that certain real property described on Exhibit "A" attached hereto (the "Property"); and WHEREAS, for the purposes of the promotion of recreational opportunities for the citizens of the City, Company and the City now desire to enter into this Agreement; NOW THEREFORE, the parties do hereby agree as follows: ARTICLE I License Section 1.01. License. In consideration of the mutual covenants and agreements of this Agreement, and of other good and valuable consideration, the City hereby grants, upon the terms and conditions set forth in this Agreement, a license on and over the Property for the purpose of conducting roller hockey games, practices, recreational use and workshops. However, the City reserves the right to schedule other related events on the Property. Section 1.02. Term. The term of this license is one (1) year beginning on the date of the execution of this Agreement by the City, and ending on the one year anniversary of such date (the "Primary Term"), unless terminated sooner as provided in this Agreement. For the consideration herein expressed, Company is hereby granted an option to extend the term of this Agreement, upon identical terms and conditions of this Agreement, for one (1) additional year (the "Option Period"), if not less than six (6) months prior to the termination of the Primary Term, if Company serves the City with written notice. This Agreement shall terminate without further notice when the Primary Term or Option Period, whichever is applicable, as specified in Section 1.02 expires, and Company shall immediately vacate the Property. Any holding over by Company after that term expires, except as provided otherwise in this Agreement, shall not constitute a renewal of this Agreement, or provide Company any rights whatsoever under this Agreement and/or to the Property. ARTICLE II Improvements Section 2.01. Improvements. Upon the execution of this Agreement, City will provide Company access to the Court, for a mutually agreed upon time frame, for the sole LICENSE AGREEMENT -- Kevin Baker Page 2 purpose of permitting Company to make the following improvements to the Court at Company's sole cost and expense: (i) Company agrees and covenants to resurface the current floor in preparation for a permanent smooth surface as approved by the City. (ii) Company shall provide, at its sole cost and expense, appropriate floor coverings that will make the Court floor presentable and usable for roller hockey. Court. (iii) Company shall provide, at its sole cost and expense, goals and nets for the Section 2.02. Approval of Construction. No construction of any type or kind, including additions or alterations to existing structures or structures completed, or caused to be completed, by Company and/or placement or location of improvements, including all matters described in Sections 2.01 may be commenced, unless the plans, specifications and proposed location of such construction and/or location of improvements have received the City's, and if required by the City or by law, any other entities' or parties', including, but not limited to, the State of Texas prior written approval, as described below. The City, and any other parties having the right of approval, as described herein, shall review all plans submitted under this Section 2.02, and provide to Company, in writing, any required changes or corrections that must be made, that the City, and any other parties having the right of approval, as described herein, may deem necessary, in their sole discretion. Any required changes or corrections shall be made and the plans resubmitted to the City, and any other parties having the right of approval, as described LICENSE AGREEMENT -- Kevin Baker Page 3 herein, prior to the commencement of such construction, addition or alteration of any building or location of improvement. No such construction, addition or alteration of any building or location of improvement shall be commenced unless and until the plans are finally approved by the City and any other parties having the right of approval, as described herein. The failure to receive the approval described herein shall not excuse the performance by Company of any activity or covenant described in this Agreement. Minor repairs and/or alterations necessary to maintain existing structures and improvements located upon the Property in a useful state of repair and operation does not require submission and approval, as described herein. The City and/or any of the parties having the right of approval, as described herein, shall have the right at all times to observe any and all activities described in this Article II. Notwithstanding the approval by the City and/or any of the parties having the right of approval, as described herein, of any plans and specifications, and/or the observation rights of the City and/or any of the parties having the right of approval, as described herein, such approval and/or observation shall not relieve Company from any or all of its obligations hereunder. All activities described in this Article II shall be at the sole cost and expense of Company. Section 2.03. Suretv. Any and all contracts that Company may enter into with third parties to participate in the construction and/or location of improvement activities contemplated by this Agreement shall contain the requirement that such third parties adequately bond their performance under said contract, naming the City as a co - LICENSE AGREEMENT -- Kevin Baker Page 4 beneficiary or co -secured. The original of said bonds are to be suitable in form to the City and submitted to the City prior to the commencement of any activities of any kind by such third parties. Section 2.04. Ownership of Buildings and Improvements. Any and all buildings, improvements, additions, alterations and fixtures constructed, placed, located and/or maintained on any part of the Property during the term of this Agreement, including, but not limited to, the complete Court floor, the backstops, and the side-walls are considered part of the real property and must remain on the Property and, subject to the terms of this Agreement, become property of the City, from and after the termination of this Agreement. Section 2.05. Equipment Owned by Company at End of Agreement Company shall provide, as soon as possible, but in no event later than the first roller hockey event to be played in the Court, a list of equipment to be used for roller hockey events, paid for and owned by Company. Said list is attached hereto as Exhibit `B." Section 2.06. Removal of Improvements. Company may, upon the termination of this Agreement, and only upon such event, remove the property not owned by the City, as set forth by law and/or Sections 2.04 and 2.05, herein. Notwithstanding the right of removal granted herein, Company shall repair any and all damage to any buildings or improvements on the Property resulting from such removal. Any and all of such items not removed by Company on or before ten (10) days after the termination of this Agreement, shall, at the option of the City, either (i) become the property of the City; or (ii) be removed by the City at Company's sole cost and expense. In the event the City LICENSE AGREEMENT -- Kevin Baker Page 5 shall elect to remove such property, the City shall owe no duty to protect such property, and shall in no event be liable to Company for loss, damage or destruction of same. The City may dispose of any such property in any manner it desires in its sole discretion and retain any proceeds received therefor. ARTICLE III Operations of Company Section 3.01. Access of Public. Entrances to the Property shall be open to the general public within reasonable hours as designated by Company and approved by the City. Company shall not permit any discrimination in its operation of the Property because of race, color, sex, religion, national origin, physical handicap or disability. Section 3.03. Play/Practice schedule. The Property will be available for Company's use pursuant to City laws and ordinances. Section 3.05. Taxes. Company shall pay and discharge all charges, including without limitation, personal property taxes, gross receipts taxes, general and special assessments, and other charges of similar nature which may be levied or assessed against the Property, the Company, and/or any activity contemplated by this Agreement, if any. Section 3.06. Oversight. Company shall provide at least one (1) full-time employee of good character to be present on the Property during all hours that the Company is conducting its activities on the Property. Section 3.07. Fees. The City and Company agree that there will be a fee for roller hockey lessons and league play on the Court. Lesson fees shall be collected by Company. Company shall have the obligation to hire and pay all roller hockey LICENSE AGREEMENT -- Kevin Baker Page 6 instructors and have sufficient supervisory personnel to insure safe and efficient operation of the Court. Company shall be allowed to initially keep roller hockey revenues generated by Company until such time Company recovers funds expended by Company on repairs to the Court. At such time that Company recovers all said amounts expended on repairs to the Court, then Company shall pay to the City fifteen percent (15%) of all roller hockey gross revenues received by Company. Said payment to the City shall be made within fifteen (15) days after the end of each month. Company shall keep complete and accurate records, books and accounts according to customary and accepted business practices and generally accepted accounting principles, and the City shall have the right to examine and audit said records, books and accounts at any reasonable time. Company shall furnish the City an annual audit of its books by a certified public accountant, such audit report to be furnished to the City on or before ninety (90) days after the end of each fiscal year of Company. Section 3.08. Reporting. During the term of this Agreement, Company shall provide City with quarterly reports on the participation in Company's activities on the Property. Section 3.09. Prohibition on Encumbrance. Company shall not encumber any interest in the license granted herein, the Property, the improvements described herein, and/or this Agreement, in any way, manner or form, including, but not limited to, by deed of trust, mortgage or any other security instrument. Further, Company shall not cause or permit any mechanic's liens or any other liens to be filed against the license granted herein, the Property, the improvements LICENSE AGREEMENT -- Kevin Baker Page 7 described herein, and/or this Agreement by 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 Company or any contractors or subcontractors of Company. Section 3.10. Right of Entry --City. Nothing contained in this Agreement shall be construed to prohibit -the right of entry by the City, in, on, over and/or across the Property, at any and all times, and for any and all purposes, and City expressly reserves the right to enter upon the Property and any and all improvements located thereon to conduct any and all activities the City deems necessary. Company shall furnish to the City any and all keys and/or instructions necessary to allow the City's right of entry reserved and/or described herein. Section 3.11. Control of Citv. The City shall retain all authority placed in it which is non -delegable. No provision of this Agreement 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 3.11 and any other term or provision of this Agreement, this Section 3.11 shall control and such conflicting term or provision shall be void and of no force and effect. ARTICLE IV Maintenance and Repair Section 4.01. Maintenance and Duty to Repair. At all times during the term of this Agreement, Company shall keep and maintain, or cause to be kept and maintained, all improvements to the Court floor. Company shall maintain the Court in a good state of LICENSE AGREEMENT -- Kevin Baker Page 8 appearance and repair, to be determined by the City, in its sole discretion, at Company's sole expense. ARTICLE V Insurance, Indemnity and Release Section 5.01. Indemnity and Release. COMPANY SHALL INDEMNIFY AND HOLD HARMLESS, TO THE FULLEST EXTENT PERMITTED BY LAW, 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 OR FORM, THE ACTIVITIES CONTEMPLATED HEREUNDER, OR THE OMISSION OF THE ACTIVITIES CONTEMPLATED HEREUNDER. COMPANY 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 LICENSE AGREEMENT -- Kevin Baker Page 9 FROM THE SETTLEMENT OR RESOLUTION OF SAID SUITS, CLAIMS, AND/OR ADMINISTRATIVE PROCEEDINGS. IN ADDITION, COMPANY SHALL PAY TO THE CITY, THE CITY'S RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND/OR AGENTS, AS APPLICABLE, ALL ATTORNEYS' FEES INCURRED BY SUCH PARTIES IN ENFORCING COMPANY'S INDEMNITY IN THIS SECTION. THE CITY, AND ITS RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND AGENTS, SHALL NOT BE LIABLE, AND COMPANY 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 COMPANY, 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, MANNER OF FORM, THE UNENFORCEABILITY OR VOIDANCE, FOR ANY REASON, OF ALL OR ANY PART OF THIS AGREEMENT. THE INDEMNITY AND RELEASE PROVIDED HEREIN SHALL SURVIVE THE TERMINATION OR VOIDANCE OF THIS AGREEMENT. Section 5.02. Insurance. Company shall procure and carry, at its sole cost and expense through the life of this Agreement, 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 LICENSE AGREEMENT -- Kevin Baker Page 10 (a) Any representation or warranty made by Company in this Agreement shall prove to be untrue or inaccurate in any material respect as of the date on which such representation or warranty is made; (b) Company shall default, in any way, manner or form, in the performance of any of the covenants, provisions and/or terms of this Agreement; (c) Company shall (i) apply for or consent to the appointment of a receiver, custodian, trustee, intervenor, or liquidator of itself or of all or a substantial part of its assets, (ii) voluntarily become the subject of a bankruptcy, reorganization or insolvency proceeding or be insolvent or admit in writing that it is unable to pay its debts as they become due, (iii) file a petition or answer seeking reorganization or an arrangement with creditors or to take advantage of any bankruptcy or insolvency laws, (iv) become the subject of an order for relief under any bankruptcy, reorganization or insolvency proceedings, or (v) fail to pay any money judgment against it before the expiration of thirty (30) days after such judgment becomes final; or (d) Company shall default in the payment of any material indebtedness of Company. Section 6.02. Remedies upon Event of Default. If an Event of Default shall have occurred and be continuing, then the City, at its option may (i) declare this Agreement, and all rights and interests created by it, terminated; (ii) assert an action for damages available to the City under this Agreement and/or pursuant to law or equity; and/or (iii) LICENSE AGREEMENT -- Kevin Baker Page 12 pursue and enforce any rights of the City as provided under or pursuant to any applicable law or this Agreement. In the event the City elects to terminate this Agreement as provided herein, this Agreement shall cease as if the day of the City's election to terminate was the day originally fixed in this Agreement for its expiration. ARTICLE VII Miscellaneous Section 7.01. No Waiver. No failure to exercise, and no delay in the exercise on the part of the City, of any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right. The rights of the City hereunder shall be in addition to all other rights provided by law. Section 7.02. Notice. Any notice required or permitted to be given herein must be given in writing and must be personally delivered, delivered by telephonic facsimile, or mailed by prepaid certified or registered mail to the party to whom such notice or communication is directed at the address of such party as follows: City: Company: Director of Parks and Recreation Kevin Baker P. O. Box 2000 Lubbock, Texas 79457 (806) 775-2235 Fax: (806) 775-3240 Any such notice or other communication shall deemed to have been given (whether actually received or not) on the date it is personally delivered or delivered by LICENSE AGREEMENT -- Kevin Baker Page 13 telephonic facsimile, or, if mailed, on the third day after it is mailed as aforesaid. Any party may change its address for purposes of this Agreement by giving notice of such change to all other parties pursuant to this Section 9.02. Section 7.03. Assignment/Sublet. This license is personal to Company. Company shall not assign or sublet this license. Any attempt to assign or sublet this license shall terminate the license granted herein. Section 7.04. City. Unless otherwise provided herein or required by law and/or local ordinance, charter or code, any action required or permitted to be taken by "the City", shall be taken by the City Manager of the City of Lubbock or any party designated by him or her. Section 7.05. Relationship of Parties. The relationship between the City and Company is at all times solely that of licensor and licensee, and may not be deemed, in any event, a partnership or a joint venture. Section 7.06. Compliance with Applicable Law. Company shall comply with all applicable federal, state and local rules, regulations, statutes, laws and ordinances governing, in any way, manner or form the construction activities contemplated herein, the operation of the Property, and/or any other aspect of the activities described in this Agreement, including, without limitation those regarding to access of the facilities by handicapped persons and the storage, display and alteration of antiquities. Section 7.07. Time of the Essence. Time is of the essence of this Agreement. Section 7.08. Texas LawNenue. This Agreement is to be construed under Texas law, without regard to conflict of law rules that would direct application of the laws of LICENSE AGREEMENT -- Kevin Baker Page 14 any other jurisdiction, and all obligations of the parties created by this Agreement are performable in Lubbock County, Texas. Venue for any action brought pursuant to this Agreement, or any activity contemplated hereby, shall lie exclusively in Lubbock County, Texas. Section 7.09. Partial Invalidity. If any one or more of the provisions contained in this Agreement are for any reason held to be invalid, illegal, or unenforceable in any respect, the invalidity, illegality, or unenforceability will not affect any other provision of this Agreement, which shall be construed as if it had not included the invalid, illegal or unenforceable provision. Section 7.10. Agreements Superseded. This Agreement constitutes the parties' sole agreement and supersedes any prior understandings or written or oral agreements between the parties with respect to the subject matter hereof. Section 7.11. Amendment. No amendment, modification, or alteration of this Agreement is binding, unless in writing, dated subsequent to the date of this Agreement, and duly executed by the parties. Section 7.12. Attorney's Fees. If, as a result of either party's breaching this Agreement, the other party employs or uses an attorney or attorneys to enforce its rights under this Agreement, then the breaching party shall pay the other party the reasonable attorney's fees and costs incurred to enforce this Agreement. Section 7.13. Exhibits. The exhibits which are referenced in, and attached to this Agreement, are incorporated in and made a part of this Agreement for all purposes. LICENSE AGREEMENT -- Kevin Baker Page 15 Section 7.14. Captions. Section captions are for convenience only and shall in no way affect the interpretation of this Agreement. Section 7.15. License Agreement. The intent of this Agreement is to grant a license to Company to utilize the Property solely for the purposes described herein. This Agreement shall not be construed, in any way, manner or form, as a lease of the Property or as conveying to Company any interest in the real property comprising the Property. Executed this 11th day of CITY OF LUBBOCK, TEXAS - 4W I N D AYS • 0• ATTEST: Rebecca Garza, City Secretary APPROVED AS TO CONTENT: y Ra y Truesdel , Parks & Recreation Manager AS TO FORM: October , 2001. COMPANY: KEVIN BAKER LICENSE AGREEMENT -- Kevin Baker Page 16 Resolution No. 2001-RO396 October 11, 2001 Item No. 26 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for and on behalf of the City of Lubbock an Amendment to the Lease and Management Agreement between the City and Lubbock Regional Arts Center, Inc., a copy of which Amendment is attached hereto, and any associated documents, which Amendment shall be spread upon the minutes of this Council and as spread upon the minutes of this Council shall constitute and be a part hereof as if fully copied herein in detail. Passed by the City Council this 11th day of October WINDY SI ON, MAYOR ATTEST: AQ, 1)'6 e% - — )��_ ?-A Rebecca Garza, City Secretary APPROVED AS TO CONTENT: Tommy G zalez, A istant ity Manager APPROVED AS TO FORM: Wnald G. Vandiver, First Assistant City Attorney DDres/LRACamend.res October 2, 2001 , 2001.