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HomeMy WebLinkAboutResolution - 2011-R0559 - Agreement - Michael Conkling - Disco Golf Course - 12/14/2011Resolution No. 2011-80559 December 14, 2011 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 .ute for and on behalf of the City of Lubbock an Agreement, for a Disc Golf Course teen the City of Lubbock and Michael Conkling, and related documents. Said -ement is attached hereto and incorporated in this resolution as if fully set forth herein shall be included in the minutes of the City Council. by the City Council this 14th day of December , 2011. TOM MARTIN, MAYOR ATTEST: v,ca Garza, City Secretau ROVED AS TO CONTENT: Iruesdell, Director of Community Services VED AS TO FORM: ■ Attorney AS/ccdo&Lic Agrmt COL&Michel Conkling.res 10.7. 11 Resolution No, 2011-RO559 LICENSE AGREEMENT THIS LICENSE, entered into this 14th day of December , 2011, between the City of Lubbock, Texas, a Texas Home Rule Municipal Corporation, hereinafter referred to as "City," and the Michael Conkling, hereinafter referred to as "Licensee." WITNESSETH WHEREAS, the Licensee desires to promote the sport of Disc Golf; and, WHEREAS, the Licensee desires the right and privilege to place a Disc Golf Course at Mae Simmons Park, which is owned by the City; and, WHEREAS, the Licensee is willing to provide the equipment necessary for a Disc Golf Course, and is willing to maintain such equipment and disc golf course; and, WHEREAS, the City desires to make the sport of Disc Golf available to the public at Mae Simmons Park, and finds that it is in the public interest for the Licensee to do so. NOW, THEREFORE, in consideration of the terms and conditions hereinafter set forth, to be kept and performed by the respective parties, IT IS AGREED AS FOLLOWS: LICENSE GRANTED 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 to Licensee for the sole purpose of placing and maintaining the elevated baskets, tee pads, tee/rule signs, benches, portable toilets, parking barriers and litter receptacles necessary for a 24 -hole Disc Golf Course, hereinafter referred to as "Disc Golf Course", at Mae Simmons Park in accordance with the terms and provisions set forth herein. Mae Simmons Park is owned by the City, and located generally at East 19`" Street and Canyon Lakes Drive, as depicted on Exhibit "A" in the City of Lubbock, Texas. 2. LICENSE TERM The term of this license shall be for ten years beginning on the date of the execution of this Agreement by the City, and ending on the tenth anniversary of such date, unless terminated sooner as provided in this Agreement (the "Primary Term"). This Agreement shall terminate without further notice when the Primary Term expires, and Licensee shall immediately vacate the Mae Simmons Park. 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 Mae Simmons Park. 3. OWNERSHIP OF IMPROVEMENTS Any and all improvements constructed, placed, located and/or maintained on any part of Mae Simmons Park during the term to this Agreement shall be considered part of the real property and must remain in Mae Simmons Park and, subject to the terms of this Agreement, become property of the City, from and after the termination of this Agreement. 4. MAINTENANCE The Licensee agrees to maintain the appearance and general condition of the disc golf course to the satisfaction of the City. The Licensee agrees to repair or replace equipment that has been broken, vandalized, or otherwise rendered unusable, within 30 days of notification by the City, at no cost to the City. The Licensee agrees to reimburse the City for damage to any City property that occurs during the installation or maintenance of the equipment. Failure to maintain the disc golf course to the satisfaction of the City will result in termination of the License Agreement. ADVERTISING The Licensee shall have the right to procure and to install, affix, maintain and replace appropriate signs displaying advertising matter upon the elevated baskets, tee pads and tee/rule signs. All advertising shall be subject to the City's right to accept or reject the same, including the right to accept or reject sponsors and advertising content, to ensure that any advertising placed upon the equipment is appropriate in connection with the use of the Mae Simmons Park. Signs shall be in good taste and not promote alcohol, tobacco or nudity. The Licensee shall not, in procuring, installing, displaying, or replacing any advertising material, violate any person's right to privacy or infringe upon trademarks, trade names, copyrights, or proprietary rights of any person. It is understood and agreed that any approval by the City of advertising material shall not constitute a waiver of the Licensee obligations concerning such violation or infringement. The Licensee agrees to indemnify and hold the City harmless with respect to all claims alleging such violations, without cost to the City. The parties agree that all advertising matter contained upon the elevated baskets, tee pads, tee/rule signs is owned by the Licensee and shall remain the property of the Licensee, and shall be subject to removal by the Licensee at any time. 6. ACCESS During the term of this Agreement, and any renewals thereof, the City grants the Licensee access to Mae Simmons Park for the purpose of installing and maintaining the Disc Golf Course during normal park hours, except when the area of the park containing the equipment is reserved to a group for exclusive use, when the City is performing a maintenance function requiring closure of the park, or during an unforeseen emergency. The Licensee agrees that the Disc Golf Course at Mae Simmons Park will be available to the public at no charge during normal park hours, except when the City has reserved the area for exclusive use. 7, LOCATION OF EQUIPMENT The Licensee agrees that the location of any improvements included the elevated baskets, tee pads, tee/rule signs, benches, parking barriers and litter receptacles must be approved by City. 8. LAWS AND REGULATIONS The Licensee, during the course of installing, maintaining, or using the Disc Golf Course at Mae Simmons Park, shall be responsible for compliance with all laws, orders, and regulations of federal, state, and municipal authorities, and with any direction of any public officer, pursuant to law. 9. 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/OR 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, LICENSEE'S OCCUPATION OF THE LANDS OR OTHER CITY OWNED LANDS, 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 AND/OR CAUSED OR CONTRIBUTED TO, IN ANY WAY, MANNER OR FORM, BY THE NEGLIGENCE, OF ANY TYPE OR DEGREE, OR FAULT OF CITY, ITS RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND/OR AGENTS. 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, WITHOUT LIMITING THE INDEMNITY PROVIDED HEREIN, 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, LICENSEE SHALL PAY TO THE CITY, THE CITY'S RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND/OR AGENTS, AS APPLICABLE, REASONABLE AND NECESSARY ATTORNEY'S 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 AND ALL LOSSES, DAMAGES, CLAIMS OR LIABILITIES TO LICENSEE, ON ANY THEORY OF LEGAL LIABILITY, INCLUDING, BUT NOT LIMITED TO THE NEGLIGENCE, OF ANY TYPE OR DEGREE, OR FAULT, OF THE CITY, AND/OR ARISING FROM OR RELATED TO, IN ANY WAY, MANNER OR 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. 10. INSURANCE During construction, Licensee's insurance shall contain broad form contractual liability with a combined single limit of a minimum of $500,000 each occurrence and in the aggregate and shall include the following: • Bodily Injury and Property Damage • Broad Form Contractual Liability • Personal Injury and Advertising Injury • Fire legal liability • Products and completed operations Licensee shall provide a Certificate of Insurance to the City of Lubbock as evidence of the required insurance coverage. The Certificate will provide 30 days notice of cancellation. A copy of the required endorsements and waivers of subrogation shall be included in the certificate. Licensee's general liability insurance policy through policy endorsement must include wording, which states that the policy shall be primary and non-contributory with respect to any insurance carried by City of Lubbock. The certificate of insurance must reflect that the above wording is included in evidenced policy. The policy must be endorsed to include a waiver of subrogation in favor of the City of Lubbock. 11. DEFAULT In the event the Licensee shall fail to perform any of the obligations called for herein on its part to be performed, and upon receiving written notice of such deficiency by the City, and upon the Licensee's failure to cure such deficiency within fifteen (15) days after receipt of such notice, then the City may, by written notice to the Licensee, terminate this License Agreement. 12. 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. 13. NOTICE Any notice required or permitted to be given herein must be given in writing and must be personally delivered, delivered by telephone 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: Community Services Director P.O. Box 2000 Lubbock, Texas 79457 Telephone: (806) 775-2687 Fax: (806) 775-2686 Licensee: Michael Conkling 2400 Glenna Goodacre Blvd, Apt. 2324 Lubbock, Texas 79401 Telephone: (806) 683-3004 Email: mconkling88@hotmaii.com 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. 14. ASSIGNMENT/SUBLET This license is personal to Licensee. Licensee shall not assign or sublet this license, without the consent of City. Any attempt to assign or sublet this license, without the consent of City, shall terminate the license granted herein. 15. 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. 16. DESTRUCTION OF REAL PROPERTY AND FIXED ASSETS The Licensee shall be responsible for removal, and repair of all real property or fixed assets of this License that are partially destroyed by fire or other causes. 17. CONTROL OF CITY The City shall retain all powers 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 and any other term or provision of this Agreement, this section shall control and such conflicting term or provision shall be void and of no force and effect 18. 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. 19. TEXAS LAWNENUE 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. 20. 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. 21. 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. 22. 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. 23. CAPTIONS Section captions are for convenience only and shall in no way affect the interpretation of this Agreement. 24. ANY 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. 25. BINDING EFFECT This agreement shall inure to the benefit of and be binding upon the parties hereto, their respective successors, heirs, devisees, and assigns. 26. TIME OF ESSENCE Time is of the essence in this agreement and all obligations shall be performed in a timely manner. 27. TERMINATION OF AGREEMENT Agreement may be terminated for any reason, by the City, upon 60 days written notice to Licensee. 28. LICENSE AGREEMENT The intent of this Agreement is to grant a license to Licensee to utilize Mae Simmons Park solely for the purposes described herein. This Agreement shall not be construed, in any way, manner or form, as a lease of Mae Simmons Park or as conveying to Licensee any interest in the real property comprising Mae Simmons Park. IN WITNESS WHERE OF, the parties hereto have executed this License Agreement the day and year first above written. EXECUTED and effective as of the date of the execution by the City of Lubbock. CITY OF LUBBOCK, TEXAS TOM MARTIN, MAYOR ATTEST: Rebe ca Garza, City Secret APPROVED AS TO CONTENT: Rand Truesdell Director of Community Services BY: Name: Michael Conkling Title: f.3,,:rder APPROVED AS TO FORM: Am ms, ss9:1city Attorney as/Lic Agrmt-SimmonsDiseGolfCourse.res 10.7.11 Resolution No. 2011-RO559 Exhibit A 4J •' lam_ -a�j !� s �x�,i � : • � L�,.� 4 t` L# ` 3 I