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HomeMy WebLinkAboutResolution - 2003-R0130 - License Agreement With Remington Park Neighborhood Association - 03/27/2003Resolution No. 2003—RO130 March 27, 2003 Item No. 37 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, by and between the City of Lubbock and Remington Park Neighborhood Association 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 27th ATTEST: Rebecca Garza, City Secretary APPROVED AS TO CONTENT: Ran y,. ruesdel Parks and Recreation Director APPROVED AS TO FORM: lf'y Amy Sins, ssistant City Attorney mliccdoc/Remington Park Assn.res February 13, 2003 day of March ?nn*I Resolution No. 2003-R0130 March 27, 2003 Item No. 37 LICENSE AGREEMENT This License Agreement (the "Agreement") is entered into on this 27th day of March , 2003, between the City of Lubbock, Texas (the "City"), a Texas Home Rule Municipal Corporation, and, Remington Park Neighborhood Association ("RPNA") a not for profit corporation acting by and through their duly authorized officers and officials, RECITALS WHEREAS, RPNA has received a grant from the United States Fish and Wildlife Service in the amount of $17,886.00 for the purpose of developing a migratory bird habitat at the playa lake located at 73rd Street and Albany Avenue (the "Project"); and WHEREAS, the Project shall improve that certain real property owned by the City and described on Exhibit"A" attached hereto (the "Lands") NOW THERFORE: 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 Lands to RPNA, for the sole purpose of conducting the Project. Section 1.02. Term. The term of this license is one 1 ear beginning on the date of the execution of this Agreement by the City, and ending one (1) year from said date (the "Primary Term"), unless terminated sooner as provided in this Agreement. This Agreement shall terminate without further notice when the Primary Term expires, and RPNA shall immediately vacate the Lands. Any holding over by RPNA after that term expires, except as provided otherwise in this Agreement, shall not constitute a renewal of this Agreement, or provide RPNA any rights whatsoever under this Agreement and/or to the Lands. ARTICLE II Improvements Section 2.01. RPNA shall expend the amount of $17,886.00 as received by the U.S Fish and Wildlife Service to develop the Lands as a migratory bird habitat. RPNA shall do the following work on the lands: a. Planting of buffalo grass sprigs on the flat areas with the highest elevations (adjacent to the houses). b. Incorporate blue and side oats grama into the buffalo grass on the edge of the flat area and sloping down into the wetland area. c. On the slopes, plant a diverse native species mix including mid and tall grasses (plains bristlegrass, switch grass, Indian grass, little bluestem), forbs (annual or Maximmilian sunflower, Englemann daisy, coreopsis, coneflowers, bee balm/horse mint, bundleflower), and a few shrubs (4 - wing salt bush, aromatic sumac). d. Adjacent to the wetland and in the drainage areas moist -soil plants will be planted including Japanese millet and smartweeds. e. Remove plastic erosion control material. f. Grade slopes to smooth surface and prepare site for plantings. g. Install erosion material (Geojute) on slopes to control erosion. LICENSE AGREEMENT — Remington Park Neighborhood Association. Page 2 h. The RPNA plans to provide the labor and materials for the improvements. Section 2.02. Approval of Work. No work of any type or kind completed or caused to be completed by RPNA may be commenced, unless the plans, specifications and proposed location of such work has 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, Texas Parks and Wildlife Department, the Texas Historical Commission, the United States Fish and Wildlife Service and the United States Army Corps of Engineers, prior written approval, as described below. No such work 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. Section 2.03. Surety. At the discretion of the RPNA, any and all contracts that RPNA may enter into with third parties to participate in the work 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- 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. The parties agree that there will be no structures constructed on the Lands. LICENSE AGREEMENT — Remington Park Neighborhood Association. Page 3 ARTICLE III Operations of RPNA Section 3.01. Access of Public. As the Lands are posted no trespassing,RPNA shall not permit the access of unauthorized persons on the Lands RPNA shall not permit any discrimination in its operation of the Project, as defined in the recitals above, because of race, color, sex, religion, national origin, physical handicap or disability. Section 3.02. Prohibition on Encumbrance. RPNA shall not encumber any interest in the license granted herein, the Lands, 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, RPNA shall not cause or permit any mechanic's liens or any other liens to be filed against the license granted herein, the Lands, the improvements 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 RPNA or any contractors or subcontractors of RPNA. Section 3.03. Right of Entry--CitX. Nothing contained in this Agreement shall be construed to prohibit, upon reasonable notice to RPNA, the right of entry by the City, in, on, over and/or across the Lands, at any and all times, and for any and all purposes, and City expressly reserves the right to enter upon the Lands and any and all improvements located thereon, subject to the conditions stated herein, to conduct any and all activities the City deems necessary. RPNA 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. LICENSE AGREEMENT — Remington Park Neighborhood Association. Page 4 Section 3.04. Control of City. 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 3.04 and any other term or provision of this Agreement, this Section 3.06 shall control and such conflicting term or provision shall be void and of no force and effect. ARTICLE IV Operation Funds Section 4.01. Accounting and Audits. RPNA shall keep complete and accurate records, books and accounts according to customary and accepted business practices and generally accepted accounting principles to the extent said records, books and accounts are required to be maintained by the United States Fish and Wildlife Service. If such record keeping is required by the United States Fish and Wildlife Services, then the City shall have the right to examine and audit said records, books and accounts at any reasonable time. RPNA shall furnish the City an annual audit of its books by a certified public accountant if such audit is required by the United States Fish and Wildlife Services. Such audit report, if required, shall be furnished to the City on or before ninety (90) days after the end of each fiscal year of RPNA. ARTICLE V Insurance, Indemnity and Release Section 5.01. Indemnity and Release. RPNA releases City from and agrees to indemnify and hold City harmless against any claims, demands, damages, costs, and expenses, including reasonable attorney's fees for defending the claims and demands, for LICENSE AGREEMENT — Remington Park Neighborhood Association. Page 5 injury or damage to the person or property of RPNA or any other party arising out of any use or occupancy of the leased premises, INCLUDING CLAIMS OR DEMANDS BASED ON THE NEGLIGENCE OF THE CITY, OR THE CITY'S RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND AGENTS, as well as claims based on the conduct of the RPNA, the RPNA's agents, contractors, employees, subtenants, concessionaires, invitees, or licensees. If any action or proceeding is brought against City by reason of any such claim, RPNA, on notice from City, will defend the action or proceeding at RPNA's cost and by counsel acceptable to City. The City, and its respective officers, employees, elected officials and agents, shall not be liable, and RPNA 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 RPNA, on any theory of legal liability, 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. The indemnity and release shall relate only to the project activities that are subject to this agreement. Section 5.02. Insurance. RPNA and/or its contractors shall procure and carry, at its sole cost and expense during the term of any construction of the Project, 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 the construction contemplated under this Agreement, including, but not limited to, all aspects, operations and/or LICENSE AGREEMENT — Remington Park Neighborhood Association. Page 6 occurrences to which RPNA has indemnified the City, as provided in Section 5.01 hereof. A Certificate of Insurance specifying each and all coverages shall be submitted to the City no later than fifteen (15) days prior to the commencement of construction activities. RPNA shall provide to the City proof of the below -described insurance on or before fourteen (14) days prior to the expiration date of each expiring policy, and cause each required policy to require the insurer to (i) give notice to the City, as specified herein, of termination of any such policy sixty (60) days before such termination is to be effective; and (ii) contain a waiver of any and all of the insurer's rights to subrogation that any such insurer or, insurers may acquire by virtue of payment of any loss under such insurance. A. Comprehensive General Liability Insurance. RPNA and/ or its contractors shall have comprehensive general liability insurance, with limits of $300,000.00 combined single limit in the aggregate and per occurrence. The City shall be named as an additional insured in such policy. B. Worker's Compensation. RPNA's contractor is a sole proprietor and shall not employ persons other than family member who are exempt from Worker's Compensation Insurance as attested to in Exhibit `B". C. Auto Liability Insurance. RPNA and/or its contractors shall have Auto Liability Insurance with limits of $500,000.00 combined single limit in the aggregate and per occurrence. The City shall be named as an additional insured in such policy. ARTICLE VI Warranties, Covenants and Representations of RPNA Section 6.01. Existence. RPNA is a corporation duly organized, validly existing and in good standing under the laws of the State of Texas, and is duly qualified to carry on its business in the State of Texas. LICENSE AGREEMENT— Remington Park Neighborhood Association. Page 7 Section 6.02. Power. RPNA has the corporate power to enter into and perform this Agreement and all activities contemplated hereby. Section 6.03. Authorization. The execution, delivery and performance of this Agreement and the activities contemplated hereby have been duly and validly authorized by all requisite corporate action on the part of RPNA. ARTICLE VII Events of Default and Remedies Section 7.01. Default. An Event of Default (herein so called) shall exist if any one or more of the following events shall occur: (a) Any representation or warranty made by RPNA 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) RPNA shall default, in any way, manner or form, in the performance of any of the covenants, provisions and/or terms of this Agreement; (c) RPNA shall default in the payment of any material indebtedness of RPNA and/or RPNA. Section 7.02. Remedies upon Event of Default. If an Event of Default shall have occurred and be continuing, then the City, at its option may declare this Agreement, and all rights and interests created by it, terminated and RPNA; and/or 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. LICENSE AGREEMENT — Remington Park Neighborhood Association. Page 8 ARTICLE VIII. Miscellaneous Section 8.01. 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 4 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 8.02. 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: Randy Truesdell Parks and Recreation Director P. O. Box 2000 Lubbock, Texas 79457 (806) 775-2235 Fax: (806) 775-3240 Remington Park Neighborhood Association: Wayne Taack, President 5327 69th Street Lubbock, Texas 79424 (806)794-1620 Any such notice or other communication shall deemed to have been given (whether actually received or not) on the date it is personally delivered or delivered by telephonic facsimile, or, if 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 8.02. LICENSE AGREEMENT — Remington Park Neighborhood Association. Page 9 Section 8.03. Assignment/Sublet. This license is personal to RPNA. RPNA shall not assign or sublet this license. Any attempt to assign or sublet this license shall terminate the license granted herein. Section 8.04. 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 8.05. Relationship of Parties. The relationship between the City and RPNA 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 8.06. Compliance with Applicable Law. RPNA shall comply with all applicable federal, state and local rules, regulations, statutes, laws and ordinances governing, in any way, manner or form the activities contemplated herein, the development of the Project, and/or any other aspect of the activities described in this Agreement, including, without limitation those regarding to all requirements related to wetlands, playa lakes and/or wildlife and migratory birds. Section 8.07. Time of the Essence. Time is of the essence of this Agreement. Section 8.08. Texas Law/Venue. This Agreement is to be construed under Texas law, without regard to conflict of law rules that would direct application of the laws of any other jurisdiction, and all obligations of the parties created by this Agreement are performable in Lubbock County, Texas. Venue for any action brought pursuant to this Agreement, or any activity contemplated hereby, shall lie exclusively in Lubbock County, Texas. LICENSE AGREEMENT — Remington Park Neighborhood Association, Page 10 Section 8.09. 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 8.10. 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 8.11. 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 8.12. 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. Section 8.13. Ca t>�. Section captions are for convenience only and shall in no way affect the interpretation of this Agreement. Section 8.14. License Agreement. The intent of this Agreement is to grant a license to RPNA to utilize the Lands solely for the purposes described herein. This Agreement shall not be construed, in any way, manner or form, as a lease of the Lands or as conveying to RPNA any interest in the real property comprising the Lands. LICENSE AGREEMENT — Remington Park Neighborhood Association. Page 11 Executed and effective as of the date of the execution hereof by the City of Lubbock. ;CITYOF LUBBOCK, AS REMINGTQ�N, PARK NEIGHBORHOOD ASSOCIAT v BY: AIDC MCDOU AL, MAYOR Nam '.- ¢ �—gg �� C14 Title: p/ 7 Date executed: March 27, 2003 Date executed: /Z D -a ATTEST: Re ecca Garza, City Secretary APPROVED AS TO CONTENT: Ran'Vruesdell,Tarks and Recreation Director LICENSE AGREEMENT — Remington Park Neighborhood Association. Page 12