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HomeMy WebLinkAboutResolution - 2013-R0279 - License Agreement - Civil Lubbock Inc. - 09/10/2013Resolution No.2013-R0279 September 10,2013 Item No.5.12 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 with Civic Lubbock, Inc., and related documents. Said License 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 on September 10,2013 ATTEST: X-L — Rebecca Garza,City Secretar APPROVED AS TO CONTENT: Freddy Chavez/Civic Services10irector APPROVED AS TO FORM: Chad Weaver.Assistant City Attorney vw:ccdocs/RES.Agrmt-Civic Lubbock. Inc. August 22. 2013 GKEN C.ROBERTSON,MAYOR Resolution No.2013-R0279 LICENSE AGREEMENT THE STATE OF TEXAS COUNTY OF LUBBOCK This agreement is entered into on the 10th day of September2013. by and between the City of Lubbock, a home rule municipal corporation (hereinafter called "City")and Civic Lubbock, Inc., a Texas non-profit corporation (hereinafter called "Corporation"). WITNESSETH WHEREAS,the City and the Corporation did heretofore on the 21st day of, September 2005 enter into an Agreement wherein the City granted to Corporation a license for the use of the City Bank Auditorium/Coliseum,the Lubbock Memorial Civic Center,and the Wells Fargo Amphitheatre;and WHEREAS,it is the desire of the City and Corporation to enter into a new Agreement establishing therelationshipbetweenthe City and the Corporation; NOW THEREFORE: BE IT RESOLVED BY THE CITY AND THE CORPORATION AS FOLLOWS: 1.This agreement supersedes and takes the place of the Agreement entered into by and between the City and Corporation on the 21st day of September,2005, including all amendments thereto,andanyandall prior agreements between theCityand the Corporation;and upon execution this Agreement shall establish and govern the relationship between the City and Corporation. 2. In consideration of the Corporation's service to the community in the enhancement of public art and the Corporation's commitment to its cultural and educational programs, the City hereby grants to Corporation a license for all food, beverage and other concession sales in or surrounding the City Bank Auditorium/Coliseum,Lubbock Memorial Civic Center, Wells Fargo Amphitheatre, BuddyHollyCenter, Buddy& MariaElena HollyPlaza,Silent WingsMuseumand other designated municipal facilities as mutuallydeterminedby the City and Corporation.The City also grants to Corporation all commissions collected from catering fees collected at the Lubbock Memorial Civic Center and all merchandise fees collected at the Lubbock Memorial Civic Center and City Bank Auditorium/Coliseum. 3.Corporation agrees that for and in consideration of such license,herein granted,that Corporation shall pay: a) City a commission of five percent (5 %)of food and soft drink adjusted gross sales at the City Bank Auditorium/Coliseum, Wells Fargo Amphitheatre and Lubbock Memorial Civic Center and other mutually determined municipal facilities for the term of this agreement. The food and soft drink concession sales commission shall be paid by Corporation to the City on a quarterly basis with the first such payment being due on the 10th day of January in each fiscal year,and a similar payment on the 10l day after each succeeding quarter during the term of this Agreement. b) City a commission of five percent (5 %)of alcoholic beverages gross sales at the City Bank Auditorium/Coliseum,Lubbock Memorial Civic Center, Wells Fargo Amphitheatre,Buddy Holly Center, Buddy & Maria Elena Holly Plaza, Silent Wings Museum and other mutually determined municipal facilities for the term of this agreement. This commission shall be paid by Corporation to the City on a quarterly basis with the first such payment being due on the 10th day of January in each fiscal year,and a similar payment on the 10th day after each succeeding quarter during the term of this Agreement. 4.Corporation agrees to pay all operational expenses associated with such concession rights or sales, including, but not limited to, all salaries of full or part-time staff employees engaged in such sales.Routine maintenance of all concession areas included in this license shall not be considered an operational expense and shall be borne by the City at no cost to the Corporation. In addition, the City agrees to employ such full-time staff as may be necessary and appropriate to assist the Corporation in carrying out the duties and responsibilities of the concessions and accounting functions of the Corporation.Salaries and benefits of such full-time concession employees shall be reimbursed to the City by the Corporation on a quarterly basis. 5. In consideration of Corporation's desire to expand its programs and in addition to the license heretofore granted, the City does hereby further grant to Corporation a license to operate and manage all box office operations reasonably necessary for events scheduled by the City in the Lubbock Memorial Civic Center, City Bank Auditorium/Coliseum,Wells Fargo Amphitheatre and in other mutually agreed venues.This license authorizes the Corporation to undertake ticket sales for events scheduled by the City in its facilities; utilize the box office areas within the City Bank Auditorium/Coliseum,Lubbock Memorial Civic Center,and the Wells Farso Amphitheatre;and establish charges for ticketing services in City facilities and other venues in the region which may request ticketing services for their scheduled events. 6.Corporation agrees to pay all operational expenses associated with such box office services, including, but not limited to, all salaries of full or part-time staff employees engaged in such sales.Routine maintenance of all box office areas included in this license shall not be considered an operational expense and shall be borne by the City at no cost to the Corporation. In addition, the City agrees to employ such full-time staff as may be necessary and appropriate to assist the Corporation in carrying out the duties and responsibilities of the box office and accounting functions of the Corporation. Salaries and benefits of such full-time box office employees shall be reimbursed to the City by the Corporation on a quarterly basis. 7. The Civic Lubbock, Inc. Board shall have a minimum of two standing sub-committees:1) the Museum and Arts Standing Sub-Committee;and 2) the Cultural Arts Grant Review Standing Sub-Committee.Each sub-committee shall elect a chairperson and vice-chairperson,one of whom shall be chosen from the Directors on that committee. Public representatives for each committee shall be appointed by the City Council. The Museum and Arts Standing Sub-Committee shall be composed of four Directors appointed by the Corporation,and three representatives of the arts community appointed by the City Council to serve two successive three-year terms or until successors are appointed.Responsibilities of this committee include serving as an advisory board for the Silent Wings Museum and the Buddy Holly Center. The President of the Corporation or his designee shall serve as an ex officio member of this committee. The Cultural Arts Grant Review Standing Sub-Committee shall be composed of three Directors appointed by the Corporation, plus two members at-large appointed by the City Council to serve two successive three-year terms or until successors are appointed. This committee shall be responsible for developing the guidelines for the Cultural and Arts Grant Program funded by the Hotel Occupancy Tax,accepting applications,and making recommendations to the Corporation board to present to the City Council for grant recipients twice each year. The President of the Corporation or his designee shall serve as an ex officio member of this committee. The Corporation may,from time to time and at its sole discretion,establish other committees to assist with projects and purposes associated with the Corporation's mission. Committee members appointed by the Corporation may consist of Directors of the Corporation and members of the community whose expertise would enhance the project and/or purpose for which the committee is intended. 8. At the Corporation's expense,Corporation agrees to conduct an annual audit of its book of accounts by an independent auditor and provide a copyof the final audit to the City each year during the term of this Agreement. The audit shall be completed no later than the 30th day of December of each year this Agreement is in force. The copy shall be provided to the City within 60 days after completion. 9. If the audit presented by the Corporation to the City identifies a cash fund balance, after payment of the total considerations hereinabove mentioned and excluding all expenses incurred or encumbered, the Corporation is hereby authorized to retain such fund balance as follows: a.The first one hundred thousand dollars of such cash fund balance shall be retained by Corporation as a reserve fund for the performance of its obligations and duties herein set forth; b. Any fund balance remaining after the contribution to a reserve account as mentioned above is satisfied shall be placed in a reserve to fund activities relative to the purposes of the Corporation as stated in its Charter. 10. The Coiporation hereby agrees to prepare and submit to the City a budget for the upcoming fiscal year beginning October 1 of each year. The Corporation shall prepare this budget on forms satisfactory to the City and shall present this budget to the City Council prior to the beginning of each fiscal year. 11.The Corporation agrees to use its best efforts to foster, promote, and present cultural and educational programs, attractions and entertainments for the general intellectual and physical improvement and welfare of the people of the City of Lubbock and the surrounding area which shall add to the quality of life of the citizens of the City of Lubbock in accordance with the Corporation's Charter.This will include,but is not limited to,sponsoring such programs,attractions,and entertainments and matters incidental hereto,including,but not limited to the Walk of Fame projects,development and implementation of a local grant program for events held in the Civic Center, Amphitheatre and Auditorium/Coliseum,sponsorship and co-sponsorship of national touring productions and events held in the Lubbock Memorial Civic Center and City Bank Auditorium/Coliseum and public art programs in or on property owned and operated by the City. 12. It is understood by both parties that Corporation receives no direct or indirect monetary benefit from advertising or sponsorship revenues generated by the operation of the facilities or events scheduled in the facilities.It is also understood that Coiporation has no right or authority to control, either directly or indirectly, any programming or booking decision at the Lubbock Memorial Civic Center,City Bank Auditorium/Coliseum and the Wells Fargo Amphitheatre.These functions are handled and controlled by the City. It is also understood that Corporation is not subject to the direction or control,either directly or indirectly,by the City as the facility owner and operator,event producer,or any upper tier member of the alcoholic beverage industry as to the quantities or brands of alcoholic beverage products purchased and/or sold by Coiporation. 13. In consideration of the Corporation's services to be rendered pursuant to the Agreement,the City does hereby grant the Coiporation the right to use any and all of the above mentioned or agreed upon City facilities for its business meetings.The Coiporation,however,will be required to schedule its meetings at times that are mutually agreeable to both the City and the Coiporation. 14. The Coiporation agrees to secure and maintain during the term of this Agreement general liability insurance, with the City named as an additional insured on a primary and non-contributory basis,in the amount of $2,000,000.00 which shall include products/completed operations and advertising insurance; liquor liability insurance in the amount of $1,000,000.00; and crime insurance with an employee dishonesty form in the amount of $1,000.00.In addition,Coiporation shall elect to obtain workers' compensation coverage pursuant to Section 406.002 of the Texas Labor Code and shall maintain said coverage throughout the term of this Agreement. Each policy shall be endorsed to waive all rights of subrogation against the City by reason of any payment made of claims under the above coverage. 15. 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. 16. The term of this Agreement shall be for five years from the date of execution of this Agreement. After the initial five year term, this Agreement may be extended by mutual agreement of the parties expressed in writing upon a year-to-year basis. 17.In the event that this Agreement terminates at any time after the initial five year guaranteed tenn,then in such event the Coiporation shall nevertheless be authorized to undertake and fulfill all existing obligations and contracts necessary and essential for the conclusion of the Coiporation's business.The Corporation further agrees to cooperatewith the City to insurean orderly transitionof all services and facilities subject to this Agreement upon its termination. EXECUTED this 10th CIVIC LUBBOCK,INC: ^M&By PRESIDENT ATTEST: Tv^ Secretary day of September .,2013. CITY OF Rebecpa Garza,City Secreifery\ •:PP\V.'STOC i-\T: Freddy Chavez,Civic Servtees Director TO FORMA.rrKU'V tL)A3IU Chad Weaver Senior Attorney