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HomeMy WebLinkAboutResolution - 2009-R0150 - License Agreement - Agriculture Heritage Museum Inc. - 04/09/2009Resolution No. 2009-RO150 April 9, 2009 Item No. 6.5 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK-. THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute on behalf of the City of Lubbock a License Agreement and any associated documents by and between the City of Lubbock and Agriculture Heritage Museum, Inc., (doing business as American Museum of Agriculture), which L1CCn>e Agreement is attached hereto and which shall be a part of this Resolution as if fully copied herein in detail. Passed by the City Council this 9th day of April , 2009. TOM MARTIN, MAYOR ATTEST: op — Rebe - ,a Garza, City Secretary APPRW/E�% O CONTENT: Paul R. Beane City Council Member, District 4 APPROVED AS TO FORM: r D6'h Vandiver, 6-liIy Attorney DDres/ AgMusNcwCon09Res :March 18. 2009 Resolution No. 2.009—RO150 LICENSE AGREEMENT THIS License Agreement (the "Agreement") is entered into on this 9th day of April, 2009, between the CITY OF LUBBOCK, TEXAS (the "City"), a Texas Home Rule Municipal Corporation, and the AGRICULTURE HERITAGE MUSEUM, INC., doing business as American Museum of Agriculture ("AHM"), a Texas nonprofit corporation, acting by and through their respective and duly authorized officers and officials. WHEREAS, AHM is a nonprofit corporation founded in 2001, with donations and grants from interested and caring citizens, organizations and charitable foundations, and is achieving its goal of locating, acquiring, restoring, preserving and displaying historic agriculture related artifacts (the Artifacts") WHEREAS, it is the belief of the City and AHM that the public display of said Artifacts will provide recreational and educational activities and opportunities to the residents of the City and encourage tourism to the City: WHEREAS, AHM desires to acquire and exhibit the Artifacts to the public (the: "Museum Project") over and on that certain real property described on Exhibit "A" attached hereto (the "Lands") WHEREAS, for the purpose of the promotion of recreational and educational opportunities for the citizens of the City, the promotion of tourism industry in the City, and furthering Economic Development and Recreation, Parks, Entertainment and Cultural Affairs goals as established in "Goals for Lubbock — A Vision Into the 21" Century." AHM and the City now desire to enter into this Agreement. ARTICLE I License Section 1.01. License. In consideration of the mutual covenants and a-recments 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 AHM, for the sole purpose of constructing, maintaining and operating the Museum Project. Section 1.02. Term. The term of this license is fifty (50) years beginning on the date of the execution of this Agreement by the City, (the "Primary Term"), unless terminated sooner as provided in this Agreement. For the consideration herein expressed, AHM is hereby granted an option to extend the term of this Agreement, upon identical terms and conditions of this Agreement, for one (I) additional option period of forty —nine (49) years (the "Option Period"). This Agreement shall terminate without further notice when the Primary Term or Option Pel"iod, whichever is applicable as specified in Section 1.02 expires, and AHM shall immediately vacate the Lands. Any holding over by AHM after that term expires, except as provided otherwise in this Agreement, shall not constitute a renewal of this Agreement, or provide AHM any rights whatsoever under this Agreement and/or to the Lands. ARTICLE 11 Improvements It is the goal and obligation of AHM to construct, manage and operate the Museum Project described in the following Articles. AHM, acting through its governing Board of Directors, shall construct, manage and operate the improvements in compliance with all State and Federal laws, statutes and regulations and local ordinances. In addition, unless the consent and/or approval of the City and other parties is required herein, or by law, AHM shall cooperate with the City, and the Texas Historical Commission in the establishment, maintenance and management of the Museum Project. Section 2.01. Acquisition of Funds. AHM hereby warrants that it has obtained fundis,- in excess of One Million Dollars ($1,000,000.00) (from any and all available sources), to construct, operate and maintain the Museum Project, as described in this Agreement. Section 2.02. Construction — Fencing. Notwithstanding anything to the contrary, prior to, or concurrent with, the placing or location of any Artifact upon the Lands, AHM shall construct fencing surrounding the boundaries of the Lands, or, if approved by the City, such approval being within the discretion of the City, that portion of the Lands wherein the .Artifacts are located, of' sufficient hei,ht and design to exclude unauthorized persons from entering the Lands. Section 2.03. Contruction — Site Plan. On or before March I, 2010, AHM shall submit to the City a detailed Site Plan (herein so called) of the Lands, which shall include an archeological surrey of the Lands, a site plan indicating the planned development phases of the project, a Phase I Environmental Assessment, and elevation drawings of the building or buildings proposed in the first development phase of the Project. The Site Plan shall detail all major aspects of the Museum Project, including the proposed location and general appearance of all permanent improvements thereon, including, but not limited to, buildings, interior fencing, and landscaping,. The permanent improvements shall consist of, at a minimum, the collection of agriculture implements and artifacts presently owned by the Historical Commission of Lubbock County, Texas, and being described on Exhibit "B", attached hereto. The Site Plan is subject to review and approval by the City and the Parks and Recreation Board of the City, or their successors, and, if required by law, any other parties or entities, including without limitation, the State of Texas and the Texas Historical Commission. Any such parties, after consultation with AHM, may request any changes, amendments or corrections to the Site Plan. In the event the parties cannot mutually agree on such changes, such dispute may be appealed to the City Council of City. "file City Council of City may direct whatever changes to the Site Plan it deems necessary or advisable. Except as stated otherwise, "Site Plan" as used in this Agreement shall mean and refer to the Site Plan, as approved as described herein. Section 2.04. Construction. AHM shall construct, or cause to be constructed, and locate upon the Lands, all permanent fencing not constructed as per Section 2.02, parking areas and exhibit building as depicted in the Site Plan, commencing on or before March I, 2013. Further, AHM shall construct, or cause to be constructed, all weather pathways or walkways for use by the visiting public upon the Lands suitable for viewing the Museum Project. Section 2.05. Approval of Construction. No construction outside of that depicted or otherwise included in the Site Plan of any type or kind, including without limitation, additions or altcration, or 3 structures completed, or caused to be completed, by AHM and/or placement or location of improvements upon the Lands, shall be commenced unless the plans, specifications and proposed location oi' such modified construction and/or location of the improvements have received the prior written approval of the City, and if required by law, any other parties, including without limitation the State of' Texas and the Texas Historical Commission. AHM shall, at its own expense, engage a licensed architect and, if required in AHM's sole discretion, a professional engineer to prepare plans and specifications for the construction, addition, location or alteration of any building or improvement, and all construction and alteration of any building or improvement shall be conducted and completed in compliance with all applicable permits, ordinances, and statues now or hereinafter existing. AHM shall submit a copy of detailed working plans, drawings, and specifications to the City not less than thirty (30) days prior to the commencement of such activities. The City, and any other parties having the right of approval, as described herein, shall review all plans submitted by AHM and provide to AHM, in writing, any required changes or corrections that must be made that the City and or other parties having the right of approval, as described herein, may deem necessary in their sole discretion. The failure to receive the approval described herein shall not excuse the performance by AHM of any provision and/or activity described and/or required in this Agreement. The City, and other parties having the right of approval, as described herein, shall have the right at all times to observe any and all activities described in Article Il. Neither the City nor other parties having the right of approval as described herein shall have any liability or responsibility for the architectural or engineering design or for any defect in any building or improvement constructed from the plans or specifications described herein, nor shall such approval and/or observation relieve AHM I'rom any or all of its obligations provided herein. Minor repairs and/or alterations necessary to maintain existing structures and improvements located upon the lands in a sound state of repair does not require submission and approval as described herein. Section 2.06. Surety. Any and all contracts that AHM may enter into with third parties to participate in the construction and/or location of improvement activities contemplated by this Agreement shall contain the requirement that such third parties adequately bond their performance under said contract, naming the City as a co -beneficiary or co -secured. The original of' said bonds arc to be suitable in form to the City and submitted to the City prior- to the commencement of any activities of -any kind by such third parties. Section 2.07. Ownership of Buildings and Improvements. Any and all buildings, walkways, parking lots, fences, entrances and any other structures or improvements, except as provided below, constructed, placed, located and/or maintained on any part of the Lands during the term to this Agreement which are included on the Site Plan 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. Those items, which are included on Exhibit "B", located and/or maintained on any part of the Lands during the term of this Agreement are considered temporary improvements and not a part of the real property, and shall remain the property of AHM from and after the termination of this Agreement. Section 2.08. Removal of Improvements. Upon termination of this Agreement, AHM may remove all property included on Exhibit "B", and AHM shall repair any and all damage to any buildings or improvements on the Lands resulting from such removal. Any and all of such items not removed by AHM on or before ninety (90) days after the termination of this Agreement, shall, at the option of the City, either (i) become the property of the City: or (ii) be removed and disposed of by the City at AHM's sole cost and expense. In the event the City shall elect to remove such property, the City shall owe no duty to protect such property, and shall in no event be liable to AHM for loss, damage or destruction of same. The City may dispose of' any such property in any manner it desires in its sole discretion and retain any proceeds received therefor. ARTICLE III Operations of AHM 5 Section 3.01. Security. AHM shall take any and all actions necessary to prevent the entry of unauthorized persons in, on and/or over the Lands. Such actions shall include, but are not limited to, the fencing of the Lands sufficient to exclude the entry of unauthorized persons. Section 3.02. Access of Public. From and after the placement of Artifacts on the Lands. entrances to the Lands shall be open to the general public within reasonable hours as designated by AHM and approved by the City. Section 3.03. Utilities. AHM shall be responsible for providing, furnishing and connecting all utilities to the Lands and any and all improvements located thereon 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 �N ith the operation of the Museum Project Such utilities shall include, without limitation, water.. telephone, electricity, gas, power, sewage disposal and rubbish removal. City shall provide, at its expense, water and sewer service to the pad site for the main museum building as depicted in the Site Plan for connection thereto by AHM. Section 3.04. Taxes. AHM shall pay and discharge all charges, including without limitation, personal property taxes, gross receipt taxes, general and special assessments, and other charges of similar nature which may be levied or assessed against the Lands, the Museum Project, and/or any activity contemplated by this Agreement, if any. Section 3.05. Oversight. AHM shall provide at least one (I ) full-time employee or volunteer to be present on the Lands during all hours that the Museum Project is open to the public. Section 3.06. Fees and Concessions. The license granted herein includes the grant of a concession to AHM to sell goods and/or merchandise relative or related to the Museum Project tthe "Concession Items") on the Lands. Section 3.07. Prohibition of Encumbrance. AHM shall not encumber any interest in the license granted herein, the Lands, the improvements described herein, and/or this Agreement, in any way, manner of form, including, but not limited to, by deed ol'trust, mortgage or any other Security insuIument. 6 Further, AHM shall not cause or permit any mechanic's liens or any other liens to be filed against the license granted herein, the Lands, the improvements described herein, 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 AHM or any contractor or subcontractors of AHM. Section 3.08. Right of Entry — City. Nothing contained in this Agreement shall be construed to prohibit the City's right of entry, and the City expressly reserves the right of entry, in, on, over and/or across the Lands, at any and all times, and for any and all purposes. Notwithstanding the above, the City shall only enter the building located upon the Lands, in an event of emergency. with the prior consent of AHM or in furtherance of the City's municipal govermnental functions. Section 3.09. Audit. AHM shall keep complete and accurate records, books and accounts according to generally accepted accounting principles, and the City shall have the right to examine and audit said records at any reasonable time. Section 3.10. Control of Citv. 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 3.10 and any other term or provision of this Agreement, this Section 3.10 shall control and such conflicting term or provision shall be void and of no force and effect. ARTICLE IV Operation Funds Section 4.01. Solicitation of Funds. AHM shall, during the effective term of this Agreement, utilize its best efforts to solicit funds from various sources, including, but not limited to, memorials, honorariums, grants, membership dues, concessions and gifts in kind, or any other like sources to be utilized in the creation, construction, operation and maintenance of the Museum Project. ARTICLE V Maintenance and Repair Section 5.01. Maintenance and Duty to Repair. At all times during the term of this Agreement, AHM shall keep and maintain, or cause to be kept and maintained, all buildings and improvements, including, but not limited to, Artifacts erected and/or located on the Lands, and the landscaping, including, but not limited to, lawns, grasses, flowers, and flower beds, shrubs and trees, in a good state of appearance and repair, to be determined by the City, in its sole discretion, at AHM's sole expense. ARTICLE VI Insurance, Indemnity and Release Section 6.01. Indemnity and Release. AHM 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, AHM'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. AHM 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 E� 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 SUIT, CLAIMS, AND/OR ADMINISTRATIVE PROCEEDINGS. IN ADDITION. AHM 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 ARM'S INDEMNITY IN THIS SECTION, THE CITY, AND ITS RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND AGENTS, SHALL NOT BE LIABLE, AND AHM 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 AHM, 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. Section 6.02. Insurance. AHM shall procure and carry, at its cost and expense through the lite of this Agreement, and the period of time described in Section 2.08 above, 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 AHM has indemnified the City, as provided in Section 6.01 hereof. A Certificate of Insurance specifying each and all coverages shall be submitted to the City prior to the execution of this Agreement, 9 except as it relates to the required Builder's Risk Insurance, of which said Certificate shall be submitted no later than fifteen (15) days prior to the commencement of construction activities. AHM shall provide to the City proof of the below described insurance on and 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, AHM shall have comprehensive general liability insurance, with limits of $1,000,000.00 combined single limit in the ag-regate and per occurrence. The City shall be named as an additional insured in such policy. B. Owner's Protective or Contingent Public Liability Insurance and Propertt, Dainagc Liability Insurance. AHM and/or its contractor(s) shall obtain an Owner's Protective or Contingent Public Liability Insurance policy in the amount of, for bodily injuries, including accidental death and/or property damage of $1,000,000.00 combined single limit. This insurance coverage shall include coverage against casualty or damage. including, but not limited to, damage caused by (ire and/or vandalism, to any and all buildings and/or other improvements located on the Lands, and shall name the City as an additional insured. C. Worker's Compensation Insurance. AHM, throughout the period described above, and all contractors hired by AHM to perform work at any site on the Lands, throughout the course of the job, shall maintain worker's compensation insurance coverage in accordance with the statutory requirements of the State of Texas. D. Builder's Risk Insurance. AHM and/or its contractor(s) shall have Builder's Risk Insurance in the amount of one hundred percent (100%) of the prices of each contract relating to the construction activities contemplated in Article II, above, and the insurance shall name the City as an additional insured. ARTICLE V11 Warranties, Covenants and Representations of AHM Section 7.01. Existence. AHM 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 7.02. Power. AHM has the corporate power to enter into and perform this Agreement and all activities contemplated hereby. 10 Section 7.03. Authorization. The execution, delivery and performance of this Agreement and the activities contemplated hereby have been duly and validly authorized by all requisite corporate authorities on the part of AHM. ARTICLE VIII Events of Default and Remedies Section 8.01. Default. A. Default of AHM. An Event of Default (herein so called) shall exist if any one or more of the following events shall occur: Any representation or warranty made by AHM 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: 2. AHM shall default, in any way, manner or form, in the performance of any of the covenants, provisions and/or terms of this Agreement; 3. AHM shall (i) apply for or consent to the appointment of a receiver. custodian, trustee, intervenor, 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 J udgment becomes final, or 4. AHM shall default in the payment of any material indebtedness of AHM to City. B. Default of City. An Event of Default (herein so called) shall exist if: City shall default in the performance of any of the covenants, provisions and/or terms of this Agreement. Section 8.02. Remedies upon Event of Default. A. Remedies of City. If an Event of Default of AHM shall have occurred and be continuing, then the City, at its option may (i) declare the Agreement, and all rights and interest created by it, terminated; (ii) assert an action for any and all damages available to the City under this Agreement and/or pursuant to law or equity; and (iii) pursue and enforce any rights of the City as provided under this Agreement pursuant to any applicable law or equity, or otherwise. 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 lixcd in the Agreement for its expiration. The remedies provided to the City by law, equity, this Agreement or otherwise are cumulative, to the extent permitted by law. The exercise by the City of the remedies provided herein shall not constitute an election of remedies, and the City, irrespective of its exercise of remedies as provided herein, or a portion thereof, shall be entitled to exercise, concurrently or otherwise, any and all remedies available to it by law, equity, this Agreement or otherwise. B. Remedies of AHM. If an Event of Default of City shall have occurred and be continuing, then AHM may, as its sole and exclusive remedy, terminate this Agreement. ARTICLE IX Miscellaneous Section 9.01. 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 9.02. Notice. Any notice required or permitted to be given herein must be given in writing and mist 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: Director of Parks and Recreation P.O. Box 2000 Lubbock, Texas 79457 12 AHM: Executive Director of AHM P. O. Box 505 Lubbock. Texas 79408 Telephone: (806)775-2235 Fax: (806) 775-3240 Telephone: (806)239-5796 Fax: (806)775-1357 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 telephone facsimile, or, if mailed, on the third day, after it is mailed as aforesaid. Any party may change its address for purposes of the Agreement by giving notice of such change to all other parties pursuant to this section 9.02. Section 9.03. Assignment/Sublet. This license is personal to AHM. AHM shall not assign or sublet this license. Any attempt to assign or sublet this license shall terminate the license granted herein. Section 9.04. 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 Citv Manager of the City of Lubbock or any party designated by him or her. Section 9.05. Relationship to Parties. The relationship between the City and AHM is at all times solely that of license and licensee, and may not be deemed, in any event, a partnership or a joint venture. Section 9.06. Compliance with Applicable Law. AHM shall comply with all applicable federal, state and local rules, regulations, statures, laws, and ordinances governing, in any way, manner or form the construction activities contemplated herein, the operation of the Museum Project, the occupation of the Lands, and/or any other aspect of the activities described in or contemplated by this Agreement, including without limitation, those regarding to access of the facilities by handicapped persons and the storage, display and alteration of antiquities. Section 9.07. Time of the Essence. Time is of the essence of this Agreement. Section 9.08. Texas Law/Venue. This Agreement is to be construed under Texas law and applicable federal 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. 13 Section 9.09. Partial Invalidity. Except as otherwise provided herein, 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 provisions of this Agreement, which shall be construed as if it had not included the invalid, illegal or unenforceable provision. Section 9.10. 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 9.11. 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 9.12. 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, and prevails in such enforcement, then the breaching party shall pay the other party the reasonable attorney's fees and costs incurred to enforce this Agreement. Section 9.13. 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 9.14. Captions. Section captions are for convenience only and shall in no way afTect the interpretation of this Agreement. Section 9.15. License Agreement. The intent of this Agreement is grant a license to AHM 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 AHM any interest in the real property comprising the Lands. EXECUTED and effective as of the date of the execution by the City of Lubbock. 14 CITY OF LUBBOCK, TEXAS Agriculture Heritage Museum, Inc. TOM MARTIN. MAYOP, AT"LEST: c:Q a�o Rebe ca Garza, City Secretary AP/RCD O CONTENT: Paul R. Beane Council Member, District Four APPROVED AS TO FORM: 1 Don Vandiver Acting City Attorney Dan Taylor-, Presiden 15