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HomeMy WebLinkAboutResolution - 2013-R0132 - License Agreement - YWCA - Use Open Space, Leftwich Park - 05/01/2013Resolution No. 2013-RO132 May 1, 2013 Item No. 5.13 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 YWCA, a non-profit corporation, for use of open space in Leftwich Park, and 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 this May -1, __013__ _ - 2013. 4 GJ C. ROBERTSON, MAYOR ATTEST: ReRa Garza, City Secretary APPROVED AS TO CONTENT: Randy Truesdell ommunity Services Director APPROVED AS TO FORM: Amy L. ity Attorney r" Res Agrmnt YWCA License Agrmnt 4 18 13 4 18 13 Resolution N0. 2013-RO132 LICENSE AGREEMENT This License Agreement (the "Agreement") is entered into on this 1st day of May , 2013, between the City of Lubbock, Texas (the "City"), a Texas Home Rule Municipal Corporation, and YWCA of Lubbock, Texas ("YWCA"), a non-profit corporation. RECITALS WHEREAS, YWCA desires to use the open space and playground in Leftwich Park, a park owned and operated by the City (the "Park") to conduct activities for the summer camp operated by YWCA for the supervising and education of minor children (the "Activities"); and WHEREAS, it is the belief of the City and YWCA that said use of the Park would be beneficial to the citizens of the City of Lubbock; and WHEREAS, YWCA desires to utilize the playground and open space for purposes of the Activities on that certain real property described on Exhibit "A" attached hereto (the "Lands"), including the ability to set up tents, tables and chairs; 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 YWCA, for the sole purpose of conducting the Activities on the Lands. Section 1.02. Term. The term of this license is five (5) years beginning on the date of the execution of this Agreement by the City, and ending on the fifth anniversary of such date (the "Primary Term"), unless terminated sooner as provided in this Agreement. For the consideration herein expressed, the City is hereby granted an option to extend the term of this Agreement, upon identical terms and conditions of this Agreement, for one (1) additional successive option period of five (5) years each (the "Option Period"). 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 YWCA shall immediately vacate the Lands. Any holding over by YWCA after that term expires, except as provided otherwise in this Agreement, shall not constitute a renewal of this Agreement, or provide YWCA any rights whatsoever under this Agreement and/or to the Lands. 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 YWCA, shall be permitted. Section 2.02. Use of Lands. YWCA may utilize the Lands in accordance with the Agreement for the purposes of the Activities. Such utilization includes the use of playground equipment and open space located on the Lands. YWCA shall be solely responsible for the use, condition, losses, and risks associated with any equipment owned YWCA, including, but not limited to, toys, play or sports equipment, tools, temporary LICENSE AGREEMENT -- Page 2 shelters, tents, chairs, or tables in YWCA's operation of the Activities contemplated by the Agreement. Section 2.03 Permits. YWCA 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 2.03. Use of Temporary Shelters and. or Tents. YWCA 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. YWCA 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 2.04. Restoration and Maintenance of the Lands. YWCA shall be responsible for the retrieval and removal of any and all trash and debris created on the Lands as a result of the Activities. Any such trash and debris shall be disposed in the proper receptacles as provided by the City. YWCA 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 YWCA's use of the Lands. YWCA shall obtain prior approval from the City prior to YWCA'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. ARTICLE III Operations of YWCA LICENSE AGREEMENT -- Page 3 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. YWCA shall not permit any discrimination in its use of the Lands because of race, color, sex, religion, national origin, physical handicap or disability. Section 3.02. Utilities. YWCA 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. YWCA 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 Lands pursuant to any activity contemplated by this Agreement, if any. Section 3.04. Prohibition on Encumbrance. YWCA 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, YWCA 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 YWCA or any contractors or subcontractors of YWCA. LICENSE AGREEMENT -- Page 4 Section 3.05. 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 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. YWCA 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. ARTICLE IV Insurance, Indemnity and Release Section 4.01. Indemnity and Release. YWCA 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, LICENSE AGREEMENT -- Page 5 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. YWCA 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 FROM THE SETTLEMENT OR RESOLUTION OF SAID SUITS, CLAIMS, AND/OR ADMINISTRATIVE PROCEEDINGS. IN ADDITION, YWCA 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 YWCA'S INDEMNITY IN THIS SECTION. THE CITY, AND ITS RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND AGENTS, SHALL NOT BE LIABLE, AND YWCA 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 YWCA, ON ANY THEORY OF LEGAL LIABILITY, INCLUDING, BUT NOT LIMITED TO, THE NEGLIGENCE, OF LICENSE AGREEMENT -- Page 6 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. YWCA 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 YWCA 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. YWCA 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. YWCA shall have comprehensive general liability insurance, with limits of $1,000,000.00 combined single limit in LICENSE AGREEMEN T -- Page 7 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. YWCA and all contractors and/or subcontractors of YWCA and all contractors and/or subcontractors hired by YWCA 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. C. Worker's Compensation Insurance. YWCA shall elect to obtain worker's compensation coverage pursuant to Section 406.002 of the Texas Labor Code. Further, YWCA 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 YWCA maintains said coverage. The policy must be endorsed to include a waiver of subrogation in favor of the City of Lubbock. ETM I[a]91Wl Warranties, Covenants and Representations of YWCA Section 5.01. Existence. YWCA 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. Section 5.02. Power. YWCA 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 YWCA. ARTICLE VI Events of Default and Remedies Section 6.01. Default. An Event of Default (herein so called) shall exist if any one or more of the following events shall occur: LICENSE AGREEMENT -- Page 8 (a) Any representation or warranty made by YWCA 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) YWCA shall default, in any way, manner or form, in the performance of any of the covenants, provisions and/or terms of this Agreement; (c) YWCA shall (i) apply for or consent to the appointment of a receiver, custodian, trustee, intervener, 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) YWCA shall default in the payment of any material indebtedness of YWCA and/or YWCA. 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 YWCA and/or YWCA shall reimburse the City any and all sums provided by the City to YWCA and/or YWCA under the Cooperative Agreement, or otherwise; (ii) assert an action for damages, including, but LICENSE AGREEMENT -- Page 9 not limited to, recovery of any and all sums provided by the City to YWCA under the Cooperative 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 party to whom such notice or communication is directed at the address of such party as follows: City: Randy Truesdell Community Services Director P. O. Box 2000 Lubbock, Texas 79457 (806) 775-2235 Fax: (806) 775-3240 LICENSE AGREEMENT -- Page 10 YWCA: Glenda Mathis Executive Director 3101 35th Street Lubbock, TX 79413 (806) 792-2723 x3233 Fax: (806) 771-3262 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 7.02. Section 7.03. Assignment/Sublet. This license is personal to YWCA. YWCA 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 YWCA 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. YWCA 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 LICENSE AGREEMENT -- Page I I 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. Section 7.14. Captions. Section captions are for convenience only and shall in no way affect the interpretation of this Agreement. LICENSE AGREEMENT -- Page 12 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 YWCA 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 YWCA 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 BY: , GLEK C. ROBERTSON, MAYOR Name: Title: President Date executed: May 1 201 Date executed:Jq�.3 ATTEST: Rebe ca Garza, City Secret LICENSE AGREEMENT -- Page 13 APPROVED AS TO CONTENT: Randy Truesdell,- ommunity Services Director APPROVED AS TO FORM: Amy S ssi ity Attorney YWCA -license agrmnt 4.18 13 LICENSE AGREEMENT -- Page 14 No Text