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HomeMy WebLinkAboutResolution - 2015-R0177 - License Agreement - Diestas Del Llano - 05/28/2015Resolution No. 2015-R0177 Item No. 7.11 May 28, 2015 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 Fiestas del Llano of Lubbock, Texas, 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 May 28 2015. ATTEST: GLE ROB TSON, MAYOR Garza, City Secretary TO Councilman, District 1 AS TO FORM: r` -S.Lic Agmnt-Fiesta del Llano 19.15 Resolution No. 2015-R0177 LICENSE AGREEMENT THE STATE OF TEXAS § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF LUBBOCK This License Agreement (the "Agreement") is entered into on this 28th day of May 2015, between the City of Lubbock, Texas (the "City"), a Texas Home Rule Municipal Corporation, and Fiestas del Llano of Lubbock, Texas ("Licensee"), a non-profit corporation. RECITALS WHEREAS, Licensee desires to use the facility commonly known as the Landwer- Manicapelli House (the "Landwer House") in Mackenzie Park, a park owned and operated by the City (the "Park") to facilitate public use of the Landwer House (the "Activities"); and WHEREAS, it is the belief of the City and Licensee that said use of the Landwer House would be beneficial to the citizens of the City of Lubbock and constitute a valuable public service; and WHEREAS, the City Council of the City of Lubbock hereby declares the maintenance and operation of the Landwer House and the facilities herein licensed to the Licensee to be a park purpose; and WHEREAS, Licensee desires to utilize the Landwer House for purposes of the Activities on that certain real property generally described on Exhibit "A" attached hereto (the "Lands"), including the ability to set up tents, tables and chairs. The term "Lands" shall include the Landwer House and any other fixture upon the above-described 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 Licensee, for the sole purpose of conducting the Activities on the Lands. Section 1.02. Term. The term of this license is twenty (20) years beginning on the date of the execution of this Agreement by the City, and ending on the twentieth anniversary of such date (the "Primary Tenn"), unless terminated sooner as provided in this Agreement. This Agreement shall terminate without further notice when the Primary Tenn or Option Period, whichever is applicable as specified in Section 1.02, expires, and Licensee shall immediately vacate the Lands. Any holding over by Licensee after that term expires, except as provided otherwise in this Agreement, shall not constitute a renewal of this Agreement, or provide Licensee any rights whatsoever under this Agreement and/or to the Lands. Section 1.03. Termination. This Agreement may be terminated by mutual agreement of the parties at any time. This Agreement may be terminated by either party upon ninety (90) days' written notice to the other party. Section 1.04. Fees. The City does permit Licensee to charge reservation fees for the extended use of the Landwer House by individuals or groups of the general public for a set period of time in order to provide revenue for the maintenance and repair of the Landwer House and the Lands. Licensee shall obtain the City's approval of any such reservation fees and the amounts established for such reservation fees prior to charging said reservation fees. ARTICLE II Improvements and Use of Lands Section 2.01. Construction. No construction of any permanent structures, improvements, buildings or fixtures or of any type or kind, including, but not limited to, additions or alterations to existing structures by Licensee, shall be permitted without prior written agreement by the City. Section 2.02. Use of Lands. Licensee may utilize the Lands in accordance with the Agreement for the purposes of the Activities. Such utilization includes the use of the Landwer House on the Lands. Licensee shall be solely responsible for the use, condition, losses, and risks associated with any equipment owned by Licensee, including, but not limited to, toys, play or sports equipment, tools, temporary shelters, tents, chairs, or tables in Licensee's operation of the Activities contemplated by the Agreement. Section 2.03 Permits. 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 the Activities. Such permits shall include, but not be limited to, food establishment permits, zoning permits, and day camp or day care licensing permits. Section 2.04. Use of Temporary Shelters and/or Tents. Licensee is permitted to utilize tents or other similar type of temporary shelter on the Lands solely for the purposes of conducting the Activities contemplated by this Agreement. Licensee shall get approval from the City on the type, location, and number of such tents or temporary shelters to be utilized prior to building, locating, or using such tents or temporary shelters on the Lands. Section 2.05. Restoration and Maintenance of the Lands. Licensee shall be responsible for the retrieval and removal of any and all trash and debris created on the Lands as a result of the LICENSE AGREEMENT — Fiestas del Llano Page 2 of 10 Activities. Any such trash and debris shall be disposed in the proper receptacles as provided by the City. Licensee shall further restore any and all turf that becomes damaged, beyond reasonable wear and tear of such turf, on the Lands by virtue of the Activities and any other activities associated with Licensee's use of the Lands. Licensee shall obtain prior approval from the City prior to Licensee's use of any motor vehicle upon the Lands and shall restore all damaged turf that results from any motor vehicle use on the Lands. Section 2.06. Maintenance and Use of the Landwer House. Licensee is responsible and shall make any and all necessary repairs and replacements to the Landwer House, of any type or nature, and perform all maintenance of the Landwer House. Further, Licensee shall pay for any and all costs of such repairs, replacements, and/or maintenance. If a repair of the Landwer House is major and/or would cause significant structural changes to the Landwer House, Licensee shall notify the City of such repair and obtain written permission from the City to complete the repair prior to beginning such repair. Further, Licensee shall specifically abide by the terms of Section 2.01 of this Agreement in conducting any construction projects or alterations to the Landwer House. Section 2.07. Ownership of Buildings and Improvements. Any and all buildings, walkways, parking lots, fences, entrances and any other structures, fixtures, or improvements constructed, placed, located and/or maintained on any part of the Lands during the term to this Agreement shall be considered part of the real property and must remain on the Lands and, subject to the terms of this Agreement, become property of the City, from and after the termination of this Agreement. ARTICLE III Operations of Licensee Section 3.01. Access of Public. Entrances to the Lands shall be open to the general public within reasonable hours as designated by the City. Licensee shall not permit any discrimination in its use of the Lands because of race, color, sex, religion, national origin, physical handicap or disability. Further, Licensee shall be bound by the provisions of the United States or State of Texas Constitutions in the same manner as the City in its operation of and use of the Lands and the Landwer House. Section 3.02. Utilities. Licensee shall be responsible for providing and/or furnishing all utilities required for the Activities to the Lands and shall bear any and all expenses of any kind or nature for the providing of same to the Lands and the utilization of same in connection with the use of the Lands. Such utilities shall include, without limitation, water, telephone, electricity, gas, power, sewage disposal and rubbish removal. Section 3.03. Taxes. Licensee shall pay and discharge all charges, including without limitation, personal property taxes, gross receipts taxes, general and special assessments, and LICENSE AGREEMENT — Fiestas del Llano Page 3 of 10 other charges of similar nature which may be levied or assessed against the Lands pursuant to any activity contemplated by this Agreement, if any. Section 3.04. Prohibition on Encumbrance. Licensee shall not encumber any interest in the license granted herein, the Lands 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, Licensee shall not cause or permit any mechanic's liens or any other liens to be filed against the license granted herein, the Lands, 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 Licensee or any contractors or subcontractors of Licensee. Section 3.05. Richt 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 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 to conduct any and all activities the City deems necessary. Licensee 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 3.06. 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 3.06 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. I\� .weld:►T] Insurance, Indemnity and Release Section 4.01. Indemnity and Release. LICENSEE 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, 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. LICENSEE 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 LICENSE AGREEMENT — Fiestas del Llano Page 4 of 10 APPLICABLE, RESULTING FROM ANY SUCH SUITS, CLAIMS, AND/OR ADMINISTRATIVE PROCEEDINGS OR ANY MATTERS RESULTING FROM THE SETTLEMENT OR RESOLUTION OF SAID SUITS, CLAIMS, AND/OR ADMINISTRATIVE PROCEEDINGS. IN ADDITION, LICENSEE 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 LICENSEE'S INDEMNITY IN THIS SECTION. THE CITY, AND ITS RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND AGENTS, SHALL NOT BE LIABLE, AND LICENSEE 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 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, 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 4.02. Insurance. Licensee shall procure and carry, at its 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 operations in connection with this Agreement, including, but not limited to, all aspects, operations and/or occurrences to which Licensee has indemnified the City, as provided in Section 4.01 hereof. A Certificate of Insurance specifying each and all coverages shall be submitted to the City prior to the execution of this Agreement. Licensee 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. Licensee shall have comprehensive general liability insurance, with limits of $1,000,000.00 combined single limit in the aggregate and per occurrence. The City shall be named as an additional insured on a primary and non-contributory basis in such policy. B. Automotive Liability Insurance. Licensee and all contractors and/or subcontractors of Licensee and all contractors and/or subcontractors hired by Licensee shall have auto liability insurance, with limits of $1,000,000.00 combined single limit in the aggregate and per occurrence. The City shall be named as an additional insured on a primary and non-contributory basis in such policy. LICENSE AGREEMENT — Fiestas del Llano Page 5 of 10 C. Worker's Compensation Insurance. Licensee shall elect to obtain worker's compensation coverage pursuant to Section 406.002 of the Texas Labor Code. Further, Licensee shall maintain said coverage throughout the term of this Agreement and shall comply with all provisions of Title 5 of the Texas Labor Code to ensure that Licensee maintains said coverage. The policy must be endorsed to include a waiver of subrogation in favor of the City of Lubbock. ARTICLE V Warranties, Covenants and Representations of Licensee Section 5.01. Existence. Licensee is a corporation duly organized, validly existing and in good standing under the laws of the State of Texas, and is duly qualified to cavy on its business in the State of Texas. Section 5.02. Power. Licensee has the corporate power to enter into and perform this Agreement and all activities contemplated hereby. Section 5.03. 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 Licensee. ""40140"1% against it before the expiration of thirty (30) days after such judgment becomes final; or (d) Licensee shall default in the payment of any material indebtedness of Licensee. 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 and Licensee shall reimburse the City any and all sums provided by the City to Licensee under the Agreement, or otherwise; (ii) assert an action for damages, including, but not limited to, recovery of any and all sums provided by the City to Licensee under the Agreement, or otherwise, and any and all other damages available to the City under this Agreement and/or pursuant to law or equity; and/or (iii) 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 parry to whom such notice or communication is directed at the address of such party as follows: City: James Loomis City Manager P. O. Box 2000 Lubbock, Texas 79457 Telephone: (806) 775-2235 Facsimile: (806) 775-3240 LICENSE AGREEMENT — Fiestas del Page 7 of 10 Licensee: Fiestas Del Llano c/o Sam Harper 5701 County Road 6170 Lubbock, Texas 79415 Telephone: (806) 789-5013 Facsimile: (806) 747-8629 Any such notice or other communication shall be 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 7.02. Section 7.03. Assipnment/Sublet. This license is personal to Licensee. Licensee shall not assign or sublet this license. Any attempt to assign or sublet this license shall terminate the license granted herein. Section 7.04. Com. 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 Licensee 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. Licensee 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, 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. Section 7.07. Time of the Essence. Time is of the essence of this Agreement. Section 7.08. 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. 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. LICENSE AGREEMENT — Fiestas del Llano Page 8 of 10 Section 7.12. Attorneys' 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 attorneys' 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. Section 7.14. Captions. Section captions are for convenience only and shall in no way affect the interpretation of this Agreement. Section 7.15. Right to Exercise Remedies. 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 set forth herein 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 document, the former shall control. Section 7.16. License Agreement. The intent of this Agreement is to grant a license to Licensee 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 Licensee any interest in the real property comprising the Lands. Executed and effective as of the date of the execution hereof by the City of Lubbock. CITY OF LUBBOCK, TEXAS GLEN QVROBEATSON, MAYOR Date executed: May 28, 2015 ATTEST: Reb cca Garza, City Secre LICENSE AGREEMENT — Fiestas del Llano Page 9 of 10 FIESTAS DEL LLANO BY: Name: Title: President Date executed: APPROVED TO CONTENT: Victor Hernandez, Councilman, District 1 APPROVED AS TO FORM: Amy L. Sim , *0 u�tytprQdtorney LICENSE AGREEMENT — Fiestas del Llano Page 10 of 10 OFA o N J U {1 opCD 4 _- � !�' ' • N_'AXgON'AVE r�h Or a. - (p Q C a = m n o OFA o N J U {1 - _ N NIVERSITYAVE F.MYjzs I w o , m x C 4 _- � !�' ' • N_'AXgON'AVE r�h Or a. - _ N NIVERSITYAVE F.MYjzs I w o , m x