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HomeMy WebLinkAboutResolution - 2016-R0299 - License Agreement - TTU - City Bank Coliseum - 09/01/2016lotion No. 2016-RO299 No. 2.5 :tuber 1, 2016 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for and on behalf of the City of Lubbock a License Agreement by and between the City of Lubbock and Texas Tech University for use of the City Bank Coliseum, 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 Council. Passed by the City Council on September 1, 2016 DANIEL M. POPE, MAYOR ATTEST: Rebe ca Garza, City S cretary APPROVED AS TO CONTENT: 44 Councgtir Jell Unthth, District 3 i Ti9• ..TOFORM: kqwm�,�� BBS. Lie Agrmn4TrU-Elly BunkCdiseum 8J1.16 Resolution No. 2016-RO299 COLISEUM LICENSE AGREEMENT This license agreement (the "License" or "Agreement") is between the City of Lubbock, Texas (hereinafter referred to as "City") and Texas Tech University (hereinafter referred to as 171.1") on the following terms and conditions. RECITALS WHEREAS City is the owner of the City Bank Coliseum ("Coliseum"), and the land upon which it is situated (the "Property" or "Facility"); and WHEREAS due to recent weather-related events, certain equipment and activities of TTU's athletic department must be relocated from its present location, and TTU desires to license the right to use the Facility to accommodate said equipment and activity relocation. NOW, THEREFORE, it is mutually agreed by and between City and TTU as follows: I. LICENSE TTU is hereby granted a non-exclusive license to use the Property for (i) storage of certain equipment as approved in advance by City and related to athletic training; and (ii) the use of the Facility by student athletes and others affiliated with the Texas Tech University athletic department for training purposes, and no other purposes without the written consent of City. TTU shall be responsible for removing its equipment on final termination of this License. To the extent TTU fails to remove such equipment and City resources are used to do so, TTU shall reimburse the City for the actual cost of those resources within 30 days of receipt of an invoice for such costs. II. TERM The term of this License shall be effective beginning on the date that it is executed by all parties and continuing through August 31, 2017. TTU may request to extend the term for all or any portion of one or more TTU academic terms, provided that each extension of this License must be approved In writing and by a resolution adopted by the Lubbock City Council. III. CONSIDERATION In consideration for this License, and for the duration and any extensions thereof, TTU shall pay to City an amount equal to Three Thousand Seven Hundred Fifty dollars ($3,750.00) per month. Payments shall be in a form acceptable to the City, and are due on or before the V business day of Coliseum Ucense Agreement — Texas Tech University Page 1 of 10 each month. All payments shall be made to: City of Lubbock P.O. Box 2000 Lubbock, Texas, 79457 or such other place as City may designate by written notice to TTU. IV. LIMITATIONS ON USE AND OCCUPATION OF PROPERTY TTU, TTU's students, employees, agents, representatives, and invitees, in the course of performing under this License and when on the Property, shall NOT: a. drink alcoholic beverages; b. smoke; c. use, possess, sell or dispense any illegal drugs or medicines; d. engage in disorderly conduct; e. use the Property in a way other than is reasonably necessary for conducting the contemplated training activities; f. allow anyone to come onto the Property, without a TTU athletics department employee on site; g. commit or permit any act or acts in or on the Property or in any manner that will create liability or that will cause a cancellation of any insurance policy covering the Property, TTU, TTU's students, employees, agents, representatives, and invitees; h. keep, leave, store or use personal property or permit any such product or article to be kept, held, stored, used, or sold in or on the Property, except as to that equipment having been approved in advance by City; I. maintain, commit, or permit the maintenance or commission of any nuisance on the Property; Coliseum Ucense Agreement—Texas Tech University Page 2 of 10 j. use the Property for any unlawful purpose; k. permit anything to be done in or about the Property that will in any way conflict with any law, ordinance, rule, or regulation affecting the occupancy and use of the Property, that has been or may be enacted or promulgated by any public authority; I. commit, or cause to be committed, any waste on the Property; m. obstruct or interfere with the rights of City's employees, or injure them; or n. allow the premises to be used for any unlawful purpose. o. obstruct the halls or ramps of the building or surrounding premises, nor the sidewalks, entrances, or lobby thereof, or used for any other purposes other than ingress or egress. Any prohibited action taken by TTU, its students, employees, agents, representatives, and invitees shall be a breach of this agreement justifying immediate termination of this License by City. TTU acknowledges and agrees that City reserves the right to schedule other events for the Coliseum; provided, however, that such events may not interfere with the activities of TTU permitted under this License, and TTU will not surrender Facility to City during the term of this License except on the dates for the following previously scheduled events as set forth in Exhibit A, which is incorporated by this reference. For the dates and activities listed on Exhibit A, and for future events with written notice by City to TTU at least 60 days before the date of the event, TTU agrees to surrender the Facility to City and to relocate any property of TTU to predesignated areas in the Facility. City, through its Civic Center Director, police officers, fire fighters, and other designated representatives, shall have the right at any time to enter any portion of the Coliseum for any business or health and safety purpose whatsoever; provided, however, the exercise of such rights of entry shall not unreasonably interfere with TTU's activities permitted under this License. The Property shall at all times be under the charge and control of the Civic Center Director. No additional locks or bolts of any kind shall be placed on any of the doors or windows by Coliseum License Agreement — Texas Tech Univers" Page 3 of 10 TTU. TTU shall, on the termination of this License, deliver to City any keys to any space within the Coliseum, either furnished to or otherwise procured by TTU, and in the event of the loss of any keys furnished, TTU shall pay to City replacement cost of the keys. City shall have the right to remove any person or persons from the Property, including any employees or students of TTU for any lawful reason, including reasonable health and safety concerns. In the event of the exercise of this authority, to the extent permitted by Texas law and except to the extent such claims arise from the negligence or intentional misconduct of the City, its employees, representatives, or agents, TTU hereby waives any and all claims for damages or contribution against City and its officers, elected officials, or employees on account thereof. V. NOTICE A. Whenever notice from TTU to City or City to TTU is required or permitted by this License, and no other method of notice is provided, such notice shall be given by (1) actual delivery of the written notice to the other party by hand, (2) facsimile, or other reasonable means, including electronic mail (in which case such notice shall be effective upon confirmation of delivery), or (3) by depositing the written notice in the United States mail, properly addressed to the other party at the address provided in this article, registered or certified mail, return receipt requested, in which case such notice shall be effective on the third business day after such notice is so deposited. B. TTU Address. TTU address and numbers for the purposes of notice is: Attn: Mr. Kirby Hocutt, Director of Athletics Texas Tech University Box 43021 Lubbock, Texas 79409 With copies to: Texas Tech University Contracting Box 41094 Lubbock, Texas 79409-1094 purchasing.contracting@ttu.edu C. City's Address. The City's address and numbers for the purposes of notice is: City of Lubbock Attn: City Manager Coliseum Ucense Agreement—Texas Tech University Page 4 of 10 . P.O. Box 2000 Lubbock, TX 79457 (806) 775-2016 (tel.) (806) 775-3924 (fax) With copies to: City Attorney P.O. Box 2000 Lubbock, Texas 79457 (806) 775-2222 (tel.) (806) 775-3307 (fax) D. Change of Address. Either party may change its address or numbers for purposes of notice by giving written notice to the other party, referring specifically to this License, and setting forth such new address or numbers. The address or numbers shall become effective on the 15th day after such notice. VI. NONASSIGNABLE This License is not assignable, and any attempt to assign this License will be grounds to terminate the License. VII. TERMINATION If either party wishes to terminate this License, it is understood that written notice shall be given to the other party at least thirty (30) days prior to the end of the then current TTU academic term , unless otherwise stated herein. VIII. CITY'S DUTIES City will maintain the Property and make all necessary repairs, except that TTU will make all repairs to the Property occasioned by its negligent, willful, wanton, grossly negligent or reckless use of the Property, and except as set forth in paragraph IX., a., below. IX. TTU's DUTIES TTU, its agents or representatives shall, with regard to the Property: a. repair any and all damage to the Property caused as a result of the actions of its Coliseum License Agreement — Texas Tech University Page 5 of 10 students, employees, agents, representatives, and invitees, and arrange for repairs at a mutually agreed time; and b. assure that its students, employees, agents, representatives, and invitees keep the Property clean, sanitary, and free from all accumulations of debris; and C. dispose from the Property all debris and garbage in a clean and sanitary manner; and d. properly use and operate all electrical, gas, and plumbing fixtures based on appropriate training from City staff for special fixtures; and e. deny any person on the premises with TTU's permission to willfully or wantonly destroy, damage, or remove any part of the Property or the facilities, equipment, or appurtenances. TTU, its agents or representatives shall, with regard to its activities on the Property: a. control and supervise all training and learning experiences; and b. assign students to only those times and areas of the Property where there is a qualified supervisory person directly responsible for student performance; and c. provide a list to the City of the approximate number of students that will be using the Property and the dates involved; and d. assist in the orientation of the students to the Property and clear channels of administration for the use of equipment as necessary for training purposes; and e. require that a student whose conduct or training performance is reasonably expected to damage the Property leave the Facility. X. MUTUAL DUTIES City and TTU will jointly resolve any matter wherein the City desires to exclude any person from the Property. The provisions of this section notwithstanding, in all other matters which are the subject of this License, the parties hereto hereby expressly state that it is their intent that each party Coliseum Ucense Agreement—Texas Tech University Page 6 of 10 shall maintain separate and distinct control over its duties under this License. XI. DEFAULT AND TERMINATION Should City or TTU's respective agents or representatives default in the performance of any provision of this License, and not correct the default within ten (10) TTU business days after notice of the default, the nondefaulting party may declare this License, and all rights and privileges and interests created by it, to be terminated. Upon nondefaulting party's electing to terminate, this License shall cease and come to an end as if the day of nondefaulting party's election were the day originally fixed in this License for its expiration, provided that, should defaulting party cure all defaults within the ten (10) TTU business day notice, this License shall not be canceled. Nondefaulting party may, in its discretion, allow defaulting party more than ten (10) TTU business days to cure defaults if such time is, in the opinion of nondefaulting party, reasonably necessary or shortened where stated herein. XII. NONDISCRIMINATION ITU, for itself, its representatives, and agents, as a part of the consideration hereof, does hereby agree that no person on the grounds of race, color, national origin, disability, religion, sex, sexual orientation, or gender identity shall be excluded from participation in, denied the benefit of, or be otherwise subjected to discrimination in the use of the Property. XIII. TORT ACTION IMMUNITY To the extent allowed by the laws and the Constitution of the State of Texas, each party waives all claims, releases, indemnifies and holds harmless the other party, its agents, representatives, elected officials, and employees, in both their public and private capacities, from any and all liability, claims, suits, demands or causes of action which may arise as a direct result of the acts or omissions of the parties under this License, including, and TTU is responsible for, injuries or damages due to TTU's negligence or intentional misconduct in the supervision and training of its students, employees, agents, representatives, and invitees in the Facility under the License. It is the express intention of the parties hereto, both TTU and the City of Lubbock, that the indemnity provided for in this paragraph is not indemnification by one party of the other from the consequences of that party's own acts or omissions. It is further understood and agreed that TTU's students, employees, agents, representatives, Coliseum license Agreement—Texas Tech University Page 7 of 10 and invitees using the Facility are not employees of the City, and are not entitled to any benefits, such as those covered by the Workmen's Compensation Act. XIV. IMMUNITY It is expressly understood and agreed that, in the execution of this License, neither party waives, nor shall be deemed hereby to waive, any immunity or defense that would otherwise be available to it against claims arising in the exercise of governmental powers and functions. XV. RESOLUTION This License shall be executed by the duly authorized official(s) of the party as expressed in the approving resolution or order of the governing body of such party, a copy of which is attached hereto, or, if approval of the governing body is not required under a party's governing rules and regulations, evidence of such party's signature authority, and this License shall remain in effect until rescinded by resolution or order of such governing body and notice of that action is transmitted in writing to all other parties to this License. XVI. ENTIRE AGREEMENT This License embodies the complete agreement of the parties hereto, superseding all oral or written previous and contemporary agreements between the parties relating to matters herein and, except as otherwise provided herein, cannot be modified without written agreement of the parties. XVII. VENUE The parties to this License agree and covenant that this License will be enforceable in Lubbock County, Texas; and that if legal action is necessary to enforce this License, exclusive venue will lie in Lubbock County, Texas. XVIII. SEVERABILITY If any of the terms, sections, subsections, sentences, clauses, phrases, provisions, covenants, conditions or any other part of this License are for any reason held to be invalid, void or unenforceable, the remainder of the terms, sections, subsections, sentences, clauses, phrases, provisions, covenants, conditions or any other part of this License shall remain in full force and effect and shall in no way be affected, impaired or invalidated. Coliseum Ucense Agreement — Texas Tech University Page 8 of 10 XIX. APPLICABLE LAW This License is entered into subject to the City Charter and Ordinances of the City of Lubbock as they may be amended from time to time and is subject to and is to be construed, governed, and enforced under all applicable State of Texas and Federal law. Situs of this License is agreed to be Lubbock County, Texas, for all purposes including performance and execution. XX. NON -WAIVER It is further agreed that one or more instances of forbearance by the parties hereto in the exercise of their rights herein, shall in no way constitute a waiver of any such rights. XXI. JOINT VENTURE It is the intent of the parties hereto that nothing herein shall be construed to create a joint venture between the City of Lubbock and TTU. XXII. MODIFICATION AND SUPPLEMENTATION This License may be modified or supplemented at any time by advance mutual written consent. IN WITNESS WHEREOF, the parties hereto have caused this License to be executed by: CITY OF LUBBOCK, TEXAS: TEXAS TECH UNIVERSITY: —4� C--) / DANIEL M. P PE, MAYOR JENNIFE L G . AGING DIRECTOR OF 9/111 y 9-x-16 DATE DATE Coliseum License Agreement — Texas Tech University Page 9 of 10 ATTEST: .PSC -ems Rebe a Garza, City Secretary APPROVED AS TO CONTENT: ame oomis, City Manager APPROVED AS TO FORM: MitcKII SatteKvbite, Fidt Assistant City Attorney Coliseum license Agmemens — Texas Tech University Page 100110 EXHIBIT A City of Lubbock City Bank Coliseum License Agreement with Texas Tech University Date Event 9/3/2016 TTU Home Football 9/14-15/2016 Parkridge Pregnancy Center 23rd Annual 9/17/2016 TTU Home Football 9/29/2016 TTU Home Football 10/ 15/2016 TTU Home Football 10/22/2016 TTU Home Football 10/30/2016 For King & Country - Concert 11/5/2016 TTU Home Football 11/20/2016 Redline Cheer 12/17/2016 Mardi Gras Spirit Events 1/20-21/2017 American Cheer Power 2/9-12/2017 Monster X Tour 3/254/3/2017 ABC Rodeo 4/8/2017 TTU Spring Game U:\Civic Center\Col Aud\Copy of Coliseum Schedule access to venue 2016 Move -out by based on Move -in on based on Status 5:00 pm on that date 8:00 am on that date Internal arrangements to be finalized Confirmed 09/13/16 09/16/16 Internal arrangements to be finalized Internal arrangements to be finalized Internal arrangements to be finalized Internal arrangements to be finalized Confirmed 10/29/16 10/31/16 Internal arrangements to be finalized Confirmed 11/19/16 11/21/16 Confirmed 12/16/16 12/18/16 Confirmed 01/19/17 01/22/17 Confirmed 02/08/17 02/14/17 Confirmed 03/24/17 04/05/17 Hold Internal arrangements to be finalized September 1, 2016 Sheila Kidwell Senior Associate General Counsel Texas Tech University System PO Box 42021 Lubbock, TX 79409-2021 Ms. Kidwell, I have enclosed the original contract (three originals enclosed) for the license agreement between Texas Tech and the City of Lubbock. Please obtain original signatures and then return these documents to our office. It is my understanding that Mitch Satterwhite has emailed you an electronic copy as well. Should you all desire to have a document with original signatures, please feel free to keep one of the enclosed packets. Thanks, Teresa Grimaldo Deputy City Secretary City of Lubbock