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HomeMy WebLinkAboutResolution - 2020-R0380 - License Agreement with Texas Tech, McCullogh Substation Mural ProjectResolution No. 2020-RO380 Item No. 6.20 October 27, 2020 RESOLUTION WHEREAS, the City of Lubbock is a Texas home rule municipal corporation, which operates a municipally owned electric utility, Lubbock Power & Light ("LP&L"); WHEREAS, LP&L owns and operates that certain electrical substation ("McCullough Substation"), located on City of Lubbock property on Lot 1, Elgin Avenue kub Addition to the City of Lubbock, Lubbock County, Texas (the "Lands"), more particularly described in Exhibit A attached to the License Agreement; WHEREAS, Texas Tech University ("TTU") is a Texas public institution of higher education in the State of Texas; WHEREAS, TTU and LP&L desire to license the Site (defined more particularly in the License Agreement, attached hereto) on the Lands to permit: (i) TTU students above the age of 18, (ii) TTU professors, and (iii) TTU administrative staff, of or assigned to the School of Art, (collectively denominated as "Permittees") to create, paint, and engage in activities related to the installation of a mural ("the Activities") created using designs submitted by students of Hutchinson Middle School, on the south -facing exterior wall of the McCullough Substation ("Mural") through the attached License Agreement (herein so called); NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the City Council of the City of Lubbock hereby approves that certain License Agreement by and between the City of Lubbock, acting by and through Lubbock Power & Light, and Texas Tech University, as attached hereto and incorporated herein as though set forth fully herein in detail, for purposes of Permittees installing a Mural. BE IT FURTHER 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 that certain License Agreement by and between the City of Lubbock, acting by and through Lubbock Power & Light, and Texas Tech University, as attached hereto and incorporated herein as though set forth fully herein in detail, on behalf of the City of Lubbock. BE IT FURTHER RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT, consistent with the terms of the License Agreement, only Permittees are authorized to participate in the Activities. Anyone under the age of eighteen (18) is not permitted to participate in the Activities on the Site. Passed by the City Council this 27th day of October 020. Daniel M. Pope, Mayor ATTEST: Reb cca Garza, City S e APPROVED AS TO CONTENT: David McCalla, Director of Electric Utilities APPROVED AS TO FORM: iaLP&L General Counsel RESOLUTION WHEREAS, the City of Lubbock is a Texas home rule municipal corporation, which operates a municipally owned electric utility, Lubbock Power & Light ("LP&L"); WHEREAS, LP&L owns and operates that certain electrical substation ("McCullough Substation"), located on City of Lubbock property on Lot 1, Elgin Avenue Sub Addition to the City of Lubbock, Lubbock County, Texas (the "Lands"), more particularly described in Exhibit A attached to the License Agreement; WHEREAS, Texas Tech University ("TTU") is a Texas public institution of higher education in the State of Texas; WHEREAS, TTU and LP&L desire to license the Site (defined more particularly in the License Agreement, attached hereto) on the Lands to permit: (i) TTU students above the age of 18, (ii) TTU professors, and (iii) TTU administrative staff, of or assigned to the School of Art, (collectively denominated as "Permittees") to create, paint, and engage in activities related to the installation of a mural ("the Activities") created using designs submitted by students of Hutchinson Middle School, on the south -facing exterior wall of the McCullough Substation ("Mural") by grant of license to TTU through the attached License Agreement (herein so called); NOW, THEREFORE, BE IT RESOLVED BY THE ELECTRIC UTILITY BOARD OF THE CITY OF LUBBOCK: THAT the Electric Utility Board of the City of Lubbock hereby approves that certain License Agreement by and between the City of Lubbock, acting by and through Lubbock Power & Light, and Texas Tech University, as attached hereto and incorporated herein as though set forth fully herein in detail, for purposes of Permittees installing a Mural. BE IT FURTHER RESOLVED BY THE ELECTRIC UTILITY BOARD OF THE CITY OF LUBBOCK: THAT the Chairman of the Electric Utility Board is hereby authorized and directed to execute that certain License Agreement by and between the City of Lubbock, acting by and through Lubbock Power & Light, and Texas Tech University, as attached hereto and incorporated herein as though set forth fully herein in detail, on behalf of the City of Lubbock, acting by and through Lubbock Power & Light. BE IT FURTHER RESOLVED BY THE ELECTRIC UTILITY BOARD OF THE CITY OF LUBBOCK: THAT, consistent with the terms of the License Agreement, only Permittees are authorized to participate in the Activities. Anyone under the age of eighteen (18) is not permitted to participate in the Activities on the Site. BE IT FURTHER RESOLVED BY THE ELECTRIC UTILITY BOARD OF THE CITY OF LUBBOCK: THAT this resolution shall be null and void if the City Council of the City of Lubbock does not approve a similar resolution approving the License Agreement within thirty (30) days of this resolution. Passed by the City Council this 20th day of October, 2020. Dan Odom, Chairman ATTEST: e Greg ylor, oard Secretary APPROVED AS TO CONTENT: David McCalla,75irector of Electric Utilities APPROVED AS TO FORM: Jerd S t , LP&L General Counsel STATE OF TEXAS § COUNTY OF LUBBOCK § LICENSE AGREEMENT This License Agreement (the "Agreement") is entered into on this ZA day of C , 2020 ("Effective Date"), between the City of Lubbock, a Texas home rule municipal corporation ("City"), acting by and through Lubbock Power & Light ("LP&L"), and Texas Tech University, a Texas Public institution of higher education of the State of Texas ("TTU") (individually denoted as "Party" and collectively as "Parties"). RECITALS WHEREAS, LP&L is a home rule municipal corporation operating under the charter of the municipality and the laws of the State of Texas; and TTU is Texas public institution of higher education operating under the general laws of the State of Texas; WHEREAS, LP&L owns and operates that certain electrical substation ("McCullough Substation"), located on that certain real property described on Exhibit "A" attached hereto ("the Lands"); and WHEREAS, TTU and LP&L desire to permit: (i) TTU students above the age of 18 ("Students"), (ii) TTU professors, and (iii) TTU administrative staff, of or assigned to, the School of Art, (collectively denominated as "Permittees") to create, paint, and engage in activities related to the installation (the "Activities"), at TTU's sole expense, of a Mural (defined herein below) created using designs submitted by students of Hutchinson Middle School, on that certain south -facing exterior wall of the McCullough Substation ("Wall"), by grant of license to TTU (the "Project"). NOW THEREFORE, the following agreement is entered by and between LP&L and TTU: ARTICLE I LICENSE 1.1. License. In consideration of the mutual covenants and promises of this Agreement, LP&L hereby grants, upon the terms and conditions set forth in this Agreement, the non-exclusive right to encroach upon, occupy, and use the portions of the Lands to TTU and Permittees for the limited purpose of accessing the Wall, roughly depicted in Exhibit "B" ("Site"). 1.2. Compensation. It is agreed that there shall be no compensation paid by LP&L to TTU or Permittees for the creation, installation, and/or repair of the Mural, or for any expense or cost associated with the Project. 1.3. Acceptance of Site. TTU agrees to accept the Site in its present condition and "as is" with respect to matters that might affect the use of the Site. TTU also agrees that no representation, statement, or warranty, express or implied, has been made by or on behalf of LP&L as to the condition of the Site or as to the uses that may be made of the Site. 1.4. Use of Site. The Site for which the license is granted shall be used by TTU and Permittees for the sole and exclusive purpose of engaging in the Activities, subject to the terms of this Agreement, and for no other purpose without the prior written consent of LP&L. ARTICLE II TERM AND TERMINATION 2.1. Term. The term of this license is for four (4) years, consisting of an initial Primary Term and an Upkeep Period (both defined later herein) ("Term"). The Primary Term begins on the Effective Date and ends on the first anniversary of such date or until such date the Mural is completed and accepted by LP&L as set forth in Section 5.5 "Mural Acceptance", whichever period is shorter (the "Primary Term"), unless terminated sooner as provided in this Agreement. Upon expiration of the Primary Term, this Agreement shall continue for a period of three (3) years ("Upkeep Period"), unless sooner terminated by mutual agreement of the Parties or as provided in this Agreement. Any holding over by TTU and Permittees after the Term expires, except as provided otherwise in this Agreement, shall not constitute a renewal of this Agreement, or provide TTU or Permittees any rights whatsoever under this Agreement and/or to the Site or Lands. ARTICLE III MURAL SPECIFICATIONS 3.1. Artistic Freedom. Subject to the requirements of this Article III, TTU and Permittees acknowledge this Agreement affirms the rights of TTU and Permittees to include content in the Mural that is not commercial, obscene, or indecent. 3.2. Commercial Content. The Mural shall not include an advertisement or be commercial in nature. Murals shall not contain copy, lettering, symbols, or references directly to the promotion of any product, business, brand, organization, service, cause or place. Murals may contain limited commercial elements so long as they are not considered commercial speech with the purpose of promoting a commercial transaction. 3.3. Obscene and Indecent Content. The Mural shall comply with City ordinances prohibiting indecency and obscenity in public. 3.4. Mural Approval. The design of the art mural shall be subject to the approval of the Director of Electric Utilities or his designee, and the Mayor pro Tem of the City of Lubbock or his designee ("Mural"). In no event may the design or installation of LICENSE AGREEMENT — Texas Tech University Page 2 Mural: (i) be located within three feet (3') of the top of the Wall, or (ii) paint over or partially obscure any safety placard on the Wall; provided, however, LP&L may in its sole discretion, relocate any such safety signs if a suitable placement can be located. 3.5. Configuration and Dimensions. The Mural shall be of the same configuration and dimensions as the scale rendition preliminarily approved as provided in the Section 3.4 "Mural Approval". ARTICLE IV SITE USE AND RESTRICTIONS 4.1. Site Access. Subject to all the terms and conditions set forth in this Agreement, including without limitation Section 4.2 "TTU Management of Permittees", only TTU, Permittees, and LP&L personnel may enter the Lands and/or Site for the purpose of the Project. 4.2. TTU Management of Permittees. TTU and Permittees shall fully cooperate with and observe, and ensure that Permittees observe, the terms of this Agreement, all directives issued by any and all LP&L personnel, if any, and all written instructions issued to TTU and Permittees to the extent permitted by Texas law. Such written instructions to TTU and Permittees include the following: 4.2.1. TTU and Permittees will exercise due care and diligence while engaging in the Activities on the Site and will follow all instructions by LP&L personnel with regard to safety and procedure to the extent permitted by Texas law; 4.2.2. TTU and Permittees may not enter, or extend painting implements, articles, or body limbs, beyond the beyond the Wall into the McCullough Substation area; 4.2.3. TTU and Permittees shall not place or leave implements and/or equipment on any road or sidewalk; 4.2.4. TTU and Permittees may not touch active or downed lines, whether personally or by use of equipment and/or implement; 4.2.5. TTU and Permittees may not approach closer than 10 feet (10') of an overhead electric distribution line; and 4.2.6. TTU and Permittees may not enter the Site before LP&L personnel have arrived or remain on the Site after LP&L personnel have departed. LP&L will use best efforts to ensure LP&L personnel can accommodate the schedule of Pennittees. LICENSE AGREEMENT - Texas Tech University Page 3 4.2.7. Prohibited items and implements. The following items, articles, implements and other instruments are strictly prohibited from the Lands and the Site: 4.2.7.1. Aerosol paint, spray paint, or any other water -based, pressurized paint; and 4.2.7.2. Aluminum or other metal ladders, or metal scaffolding. TTU shall provide an acknowledgment form, attached hereto and incorporated herein as Exhibit C, which outlines the foregoing instructions ("Acknowledgement Forms") to Permittees, no more than one (1) week before TTU and Permittees enter the Site to commence the Project. TTU shall provide LP&L with the corresponding Acknowledgement Forms) for each Permittee upon LP&L's request, subject to any redactions to the extent permitted under state or federal law. 4.3. Right of Entry. Nothing in this Agreement shall be construed to prohibit the right of entry by LP&L, in, on, over and/or across the Site, at any and all times, and for any and all purposes, and LP&L expressly reserves the right to enter the Site to conduct any and all activities as LP&L deems reasonably necessary. ARTICLE V INSTALLATION 5.1. Time of Installation. TTU shall begin installing the Mural on the Wall as soon as reasonably practicable after this Agreement's execution. 5.2. Notice of Entry. TTU shall provide advance notice in writing to LP&L of the date and time TTU intends to enter the Site to install the Mural or effectuate repairs and/or maintenance thereto. In no event may TTU or the Permittees enter the Site unless: (i) LP&L provides its consent to the notice, (ii) LP&L schedules personnel to be on the Site for the installation, maintenance, or repairs of the Mural, and (iii) LP&L personnel are present at the Site for the installation, maintenance, or repairs of the Mural on the noticed date and time. In the event LP&L is unable to provide personnel to for the installation, repair, or maintenance of the Mural or LP&L personnel are not present at the Site on the noticed date and time: (i) TTU shall not permit Permittees to enter or remain on the Site, and (ii) LP&L and TTU may reschedule another date and time for the installation, maintenance, or repairs of the project in accordance with this Section. 5.3. Materials. Tech Terrace UNIT Neighborhood Association shall furnish, and solely bear the expense of providing, all paints, materials, tools, and equipment necessary for the creation and installation of the Mural. Such materials are subject to the limitations provided in Sections 4.2.7, 4.2.7.1, and 4.2.7.2 "Prohibited Items and Implements." LICENSE AGREEMENT - Texas Tech University Page 4 5.4. Landscape Protection and Removal. To the extent reasonably practicable under the circumstances, TTU shall take care to protect any landscaping on the Site during installation. If installation requires the removal of any landscaping on the Site, TTU shall be responsible for replacing the landscaping after completing installation. Prior to removing or altering any landscaping on the Property, TTU shall first acquire LP&L's consent to such removal or alteration. 5.5. Mural Acceptance. The Mural shall be deemed accepted and received by LP&L upon TTU's receipt of written acceptance from LP&L's Director of Electric Utilities and the City Mayor Pro Tem. ARTICLE VI MAINTENANCE AND REPAIRS 6.1. Mural Maintenance. 6.1.1. LP&L has the right to, but shall have no obligation to maintain or repair the Mural. Specifically, LP&L has the right, but not the obligation, to remove or repair the Mural in the event the Mural is vandalized, defaced, painted over in part, or otherwise fallen into a state of disrepair. 6.1.2. In the event the Mural is vandalized, defaced, painted over in part, or otherwise fallen into a state of disrepair, in either the Primary Term or the Upkeep Period, LP&L may notify TTU of the need for repairs and identify the actions necessary to repair the Mural, and TTU shall effectuate such repairs to restore the Mural to the originally approved design, or present a detailed schedule of repair should a longer time period be necessary, within fourteen (14) days of such notice. 6.2. Access. LP&L hereby grants TTU a right of access to the Site after the Primary Term and through the Upkeep Period to create the Mural and to perform maintenance and repairs required pursuant to this Agreement, and otherwise to ensure the Mural remains in good condition while this Agreement is in force. The license shall continue until the end or termination of the Upkeep Period and may be unilaterally revoked by LP&L at any time, for any reason, in which event TTU will no longer have any obligation to maintain the Mural or effectuate repairs thereto. Without limitation or waiver of the Parties' rights or obligations under this Agreement, all repairs and maintenance performed by TTU in accordance with this Article shall comply with the "Notice of Entry" requirements in Section 5.2, and "Management of Permittees" and "Prohibited Items and Implements" Sections 4.2 through 4.2.7.2. ARTICLE VII DEFAULT AND REMOVAL 7.1. Default. An Event of Default (herein so called) exists if any one or more of the following events occur: LICENSE AGREEMENT — Texas Tech University Page 5 7.1.1. Any representation or warranty made by TTU or LP&L in this Agreement shall prove to be untrue or inaccurate in any material respect as of the date on which such representation or warranty was made; 7.1.2. TTU fails to provide notice and secure LP&L consent to its entry onto the Site before Permittees enter the Site; 7.1.3. TTU permits any Permittee to remain on the Site after LP&L personnel have departed the Site or after LP&L personnel are no longer at the Site. 7.1.4. TTU fails to provide LP&L with an Acknowledgement Form after LP&L has made such a request for any Permittee who has entered the Lands and/or Site in accordance with Section 4.2 "TTU Management of Permittees." 7.1.5. TTU permits anyone who is not a Permittee, as defined herein, or under the age of eighteen (18) to enter upon the Site, unless there is a separate agreement, signed by both parties, permitting otherwise. 7.2. Remedies Upon Event of Default. If an Event of Default has occurred, LP&L may, at its option. (i) declare this Agreement, and all rights and interests created by it, terminated, and (ii) pursue and enforce any rights of LP&L as provided under or pursuant to any applicable law or this Agreement. 7.3. Termination for Convenience. LP&L and TTU shall have the right to terminate this Agreement at any time and for any reason for LP&L's or TTU's convenience. 7.4. Removal. LP&L may remove the Mural: 7.4.1. If an Event of Default by TTU has occurred. 7.4.2. If, in the sole discretion of LP&L, the Mural is not installed in a workmanlike manner. If the reason for the unworkmanlike manner of the Mural installation is due to action or inaction of LP&L, in which case LP&L shall bear the expense of removal. 7.4.3. If LP&L reasonably determines that the Mural is harming the Lands or limiting LP&L's ability to use the Lands or McCullough Substation for the purpose for which it is intended; provided that LP&L shall provide TTU with sixty (60) days' notice that LP&L intends to remove the Mural at the end of the notice period. LP&L shall bear the expense of any such removal. LICENSE AGREEMENT — Texas Tech University Page 6 7.4.4. If the Mural is not completed by the end of the Primary Term or does not substantially conform to the design approved pursuant to Section 3.4 "Mural Approval". 7.4.5. If, during the Tenn and after thirty (30) days from the date of LP&L's notification to TTU of the need for maintenance or repair, TTU has not performed the actions identified by LP&L as necessary in accordance with Section 6.1.2., LP&L may perform any necessary maintenance, removal of graffiti, repairs, or may remove the Mural, at its sole election. 7.4.6. At any time after the receipt and acceptance of the Mural, for any reason, at LP&L's sole discretion. LP&L shall bear the expense of any such removal. 7.5. Loss of Mural. In the event of fire, accident, strike, delays, floods, acts of God, Force Majeure, or other unforeseen causes beyond the reasonable control of the parties that necessitates the loss of the Mural, the Parties, to the extent permitted by Texas law, hereto release the other from any and all obligations herein contained and from any and all damages that result or may result from the loss of the Mural, other than as specified herein. ARTICLE VIII INSURANCE AND INDEMNIFICATION The City of Lubbock agrees that TTU, as an agency of the state of Texas, may self - fund against the potential risks regarding or related to this Agreement. To the extent applicable, the Parties reserve all their rights to relief under The Texas Tort Claims Act with respect to property damage, personal injury and death proximately caused by the wrongful act or omission of a Party's employee acting within the scope of employment. ARTICLE IX INTELLECTUAL PROPERTY 9.1. Ownership. Upon completion and installation of the Mural and upon final acceptance by LP&L, title shall pass to LP&L, its successors and assigns, and LP&L shall own all rights in the Mural except as specified below. 9.2. Third Party Infringement. TTU represents and warrants that the Mural is the sole work of TTU or Permittees and does not infringe the intellectual property rights of any third parties. LP&L is not responsible for any third party infringement of TTU's copyright or for protecting TTU'S intellectual property rights. Further, TTU agrees to indemnify LP&L against any claims brought against LP&L alleging that the Mural infringes the intellectual property rights of any third parties. LICENSE AGREEWENT — Texas Tech University Page 7 9.3. Trademark. In the event that uses by LP&L and TTU of the Mural creates trademark, service mark or trade dress rights in connection with the Mural, LP&L shall have an exclusive and irrevocable right in such trademark, service mark, or trade dress. ARTICLE X REPRESENTATIONS AND WARRANTIES 10.1. TTU Representations. 10.1.1. Power. TTU has the power to enter into and perform this Agreement and all activities contemplated hereby. 10.1.2. Authorization. The execution, delivery and performance of this Agreement and the activities contemplated hereby have been duly and validly authorized by all requisite action on the part of TTU. ARTICLE XI MISCELLANEOUS 11.1. Media. TTU and LP&L agree that either Party may photograph the Mural without the consent of the other Party; provided however, that LP&L shall not photograph Permittees. Notwithstanding the foregoing, TTU and LP&L agree that the Mural and/or Permittees may be video recorded or photographed in accordance with Texas law by news organizations or Hutchinson Middle School authorities and that neither Party shall be held liable for such permitted video recording or photographing. 11.2. Limitation of Liability. TO THE EXTENT PERMITTED BY TEXAS LAW, UNDER NO CIRCUMSTANCES SHALL ONE PARTY TO THIS AGREEMENT BE LIABLE TO THE OTHER PARTY, INCLUDING PERMITTEES, PROFESSORS, TEACHING ASSISTANTS, INDIVIDUALS OR CONTRACTORS AFFECTING REPAIRS, OR OTHER TTU EMPLOYEES, FOR ANY ACTUAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, INDIRECT, OR INCIDENTAL DAMAGES, INCLUDING BUT NOT LIMITED TO EXPENSES, PENALTIES, COSTS, LOSSES, DAMAGES, CLAIMS OR JUDGMENTS (INCLUDING ATTORNEY'S FEES) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE ACTIVITIES PERFORMED IN CONNECTION WITH THIS AGREEMENT, OR THE RELATED TO THE PROJECT, REGARDLESS OF WHETHER A CLAIM OR DEMAND MADE BY THAT PARTY IS BASED ON CONTRACT, TORT, OR OTHERWISE. 11.3. Intentionally Omitted. 11.4. COVID-19 Disclaimer. TO THE EXTENT PERMITTED BY TEXAS LAW, IN NO EVENT SHALL LP&L BE RESPONSIBLE FOR OR LIABLE TO TTU, PERMITTEES, INCLUDING WITHOUT LIMITATION, PROFESSORS, STUDENTS, TEACHING ASSISTANTS, INDIVIDUALS EFFECTING REPAIRS TO MURAL, OR LICENSE AGREEMENT - Texas Tech University Page 8 ANY CONTRACTORS OR EMPLOYEES OF TTU FOR ANY ACTUAL, SPECIAL, CONSEQUENTIAL, PUNITIVE DAMAGES, OR INDIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO COSTS, LOSSES, DAMAGES, EXPENSES, CLAIMS OR JUDGMENTS (INCLUDING ATTORNEY'S FEES) ARISING OUT OF OR IN CONNECTION WITH THE CONTRACTION, DIAGNOSIS, OR TREATMENT OF THE NOVEL CORONAVIRUS COVID-19 ON THE SITE. TTU AGREES THAT IT WILL BE RESPONSIBLE FOR MANAGING TTU AND PERMITTEES WITH RESPECT TO COVID-19 PRECAUTIONS AND WILL APPLY ITS COVID-19 GUIDELINES, AVAILABLE AT http://www.ttu.edu/commitment/students/health/ FOR PERMITTEES ENGAGING IN THE ACTIVITIES IN THE SITE AT ALL TIMES. 11.5. Survival. The provisions contained in Article 7 "Default and Removal" Article 9 "Intellectual Property," and Section 11.2 "Limitation of Liability" shall survive the Term and/or termination of this Agreement. 11.6. No Joint Enterprise. Nothing in this Agreement shall be construed to imply a joint venture, partnership, or principal -agent relationship, and neither party shall have any right or authority to assume or create any obligations or make any representations or warranties on behalf of the other party, or to bind the other party in any respect whatsoever. 11.7. Captions. The captions for the articles and sections in this Agreement are inserted in this Agreement strictly for the parties' convenience in identifying the provisions to this Agreement and shall not be given any effect in construing this Agreement. 11.8. Assignability. Neither party may assign this Agreement without the prior written approval of the other party. 11.9. Successor and Assigns. This Agreement binds and inures to the benefit of LP&L (and the City, as applicable) and TTU, and in the case of LP&L and the City, their respective successors, legal representatives, and assigns, and in the case of TTU, its permitted successors and assigns. 11.10. Construction and Venue. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. THIS AGREEMENT IS PERFORMABLE IN LUBBOCK COUNTY, TEXAS. THE PARTIES HERETO HEREBY IRREVOCABLY CONSENT TO THE SOLE AND EXCLUSIVE JURISDICTION AND VENUE OF THE COURTS OF COMPETENT JURISDICTION OF THE STATE OF TEXAS, COUNTY OF LUBBOCK, FOR THE PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS THAT ARE CONTEMPLATED HEREBY. 11.11. Severability. If any provision of this Agreement is ever held to be invalid or ineffective by any court of competent jurisdiction with respect to any person or circumstance, the remainder of this Agreement and the application of such provision to LICENSE AGREEMENT — Texas Tech University Page 9 persons and/or circumstances other than those with respect to which it is held invalid or ineffective shall not be affected thereby. 11.12. Amendment. No amendment, modification, or alteration of the terms of this Agreement shall be binding unless such amendment, modification, or alteration is in writing, dated subsequent to this Agreement, and duly authorized and executed by TTU and LP&L. 11.13. Entire Agreement. This Agreement, including Exhibit "A," Exhibit "B," and Exhibit "C," attached hereto, contains the entire agreement between LP&L and TTU, and there are no other written or oral promises, conditions, warranties, or representations relating to or affecting the matters contemplated herein. 11.14. Compliance with Applicable Law. TTU and LP&L shall comply with all applicable federal, state, and local rules, regulations, statutes, laws and ordinances governing, in any way, manner or form the construction activities contemplated herein, the creation and installation of the Mural, and/or any other aspect of the Activities described in this Agreement. 11.15. Documents Owned by LP&L. The complete and approved final layout drawings and specifications prepared by TTU as part of the Project hereunder, shall become the property of LP&L when LP&L has received and accepted the Mural. TTU may make copies of any and all work products for its files. 11.16. Notice of Waiver. A waiver by either LP&L or TTU of a breach of this Agreement must be in writing and duly authorized to be effective. In the event either Party shall execute and deliver such waiver, such waiver shall not affect the waiving Party's rights with respect to any other or subsequent breach. 11.17. Third Party Activities. Nothing in this Agreement shall be construed to provide any rights or benefits whatsoever to any party other than LP&L and TTU. 11.18. Trafficking. Under Section 2155.0061, Texas Government Code, and to the extent applicable, LP&L and TTU certify that the individual or business entity named in the Agreement is not ineligible to receive the specified Agreement and acknowledges that the Agreement may be terminated and payment withheld if this certification is inaccurate. 11.19. Notices. Notices or other communications required by this Agreement will be sufficiently made or given if mailed by certified First Class United States mail, postage pre -paid, or by commercial carrier (e.g., FedEx, UPS, etc.) when the carrier maintains receipt or record of delivery, addressed to the address stated below, or to the last address specified in writing by the intended recipient. Notices are deemed received within ten (10) days of mailing by reputable express carrier, or by registered or certified mail, and are deemed received the day of delivery in the case of delivery in person. LICENSE AGREEMENT — Texas Tech University Page 10 LP&L: Lubbock Power & Light 1314 Ave. K, P Floor ATTN: Matt Rose Lubbock, Texas 79401 (806) 775-3581. TTU: University Outreach and Engagement Box 41047 Lubbock, TX 79409-1047 With a copy to: Texas Tech University Procurement Services Attn: Contract Administration PO Box 41094 Lubbock, TX 79409 contracting@ttu.edu 11.20. Force Majeure. "Event of Force Majeure" means an event beyond the control of LP&L or TTU which prevents or makes a Party's compliance with any of its obligations under the Agreement illegal or impracticable, including but not limited to: act of God (including, without limitation, fire, explosion, earthquake, tornado, drought, and flood); war, act or threats of terrorism, hostilities (whether or not war be declared), invasion, act of enemies, mobilization, requisition, or embargo; rebellion, insurrection, military or usurped power, or civil war; contamination or destruction from any nuclear, chemical, or biological event; riot, commotion, strikes, go slows, lock outs, or disorder; epidemic, pandemic, viral outbreak, or health crisis; LP&L power outage, electric generation failure, or other critical event requiring the participation of LP&L Site personnel; or directive of governmental authority. No Party will be considered in breach of the Agreement to the extent that performance of their respective obligations is prevented or made illegal or impracticable by an Event of Force Majeure that arises during the term (or after execution of the Agreement but prior to the beginning of the term). A Party asserting an Event of Force Majeure hereunder ("Affected Party") will give reasonable notice to the other party of an Event of Force Majeure upon it being foreseen by, or becoming known to, Affected Party. In the event of an Event of Force Majeure, Affected Party will endeavor to continue to perform its obligations under the Agreement only so far as reasonably practicable. 11.21. License Agreement. The intent of this Agreement is to grant a license to TTU to utilize the Site 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 Site, or as conveying to TTU any interest in the real property comprising the Lands or Site. LICENSE AGREEMENT — Texas Tech University Page I EXECUTED as of the Effective Date hereof. THE CITY OF UBBOCK, acting by and throug th City Council DANIEL M. POPE, MAYOR ATTEST: Bec Garza, City Sec eta APPROVED AS TO CONTENT: JarrepKAtkinson, City Manager APPROVED AS TO FORM: � k Hunter Harrison, LP Electric Utility Attorney CITY OF LUBBOCK, acting by and through Electric Utility Board Dan Odom, Chairman ATTEST: Greg T lor, WA Secretary LICENSE AGREEMENT - Texas Tech University Page 12 APPROVED AS TO CONTENT: c (;�a - 7A�M- David McCalla, Director of Electric Utilities APPROVED AS TO FORM: Hunter Harrison, LP&L Electric Utility Attorney TEXAS TECH UNIVERSITY 51 Name: Title: LICENSE AGREEW[ENT Texas Tech University Page 13 APPROVED AS TO CONTENT: c David McCalla, Director of Electric Utilities APPROVED AS TO FORM: . rd--- -- 4 � Hunter Harrison, LP&L Electric Utility Attorney TEXAS TECH UNIVERSITY signature: Q b6= I. 0ct 2 02013:a9 CD7f Email: jennifer.adling@ttu.edu Title: Chief Procurement Officer Oct 23, 2020 LICENSE AGREEMENT — Texas Tech University Page 13 Ot HJBIT A Oil ti L ­71 H y df tr ft m LU z J LLI SUBSTATION BOUN EXHIBIT B McCULLOUGH SUBSTATION LUBBOCK, TEXAS McCULLOUGH SUBSTATION 'ATION WALL SUBSTATION LICENSE AREA /, /, 31 ST ST As required by SECTION 1. Chapter 2051. SUBCHAPTER D. GEOSPATIAL PRODUCTS of the Government Code, the City of Lubbock hereby provides notice that the data on this map was created by the City of Lubbock. Any data that appears to represent property boundaries is for informational purposes and may not have been prepared for or be suitable for legal, engineering, or surveying purposes. It does not represent an on -the -ground survey and represents o ly the approximate relative location of property boundar es. LUMOLK e.m wn�xme .wc EXIHIBIT B : McCULLOUGH SUBSTATION LICENSE HyE , .1 MET 1 A t EXHIBIT C ACKNOWLEDGMENT FORM ACKNOWLEDGEMENT OF RULES REGARDING PARTICIPATION IN MCCULLOUGH MURAL PROJECT 1, _ , agree to adhere to the following guidelines: • 1 will follow all instructions by LP&L personnel with regard to safety and procedure to the extent permitted by Texas law; • 1 will not enter, or extend painting implements, articles, or body limbs, beyond the mural wall into the McCullough substation area; • 1 will not place or leave implements and/or equipment on any road or sidewalk; • 1 will not touch active or downed lines, whether personally or by use of equipment and/or implement; • I will not approach closer than 10 feet (10') of an overhead electric distribution line; • 1 will not enter the Site before LP&L personnel have arrived or remain on the Site after LP&L personnel have departed; • I will not have any of the following items at the McCullough Substation: aerosol paint; spray paint; any other water -based pressurized paint; aluminum or other metal ladders; or metal scaffolding. I AGREE I WILL NOT BRING AEROSOL PAINT, SPRAY PAINT OR OTHER WATER -BASED PRESSURIZED PAINT OR ALUMINUM OR OTHER METAL LADDERS OR METAL SCAFFOLDING ON THE PAINTING SITE OR NEAR THE SUBSTATION. I FURTHER UNDERSTAND THAT OTHER RISKS ENTAILED BY THE MURAL PROJECT INCLUDE RISK OF EXPOSURE TO COVID-19. AS SUCH, I AGREE TO UPHOLD AND OBSERVE TEXAS TECH'S GENERAL GUIDELINES TO PREVENT AND/OR HINDER THE SPREAD OF COVID-19. Texas Tech's General Guidelines for COVID-19 are found here: http://www.ttu.edu/commitment/students/health/. I understand that failure to follow safety instructions may lead to my removal from the premises. 1 also understand and agree that if I experience serious health problems, suffer an injury, or am otherwise in a situation that raises significant health and safety concerns, then TTU may contact my parents or any other person whose name I have provided as my "emergency contact" I understand that TTU ordinarily will not initiate such contact without first having a discussion with me. By signing below, I certify that I am age I8 or older, and acknowledge that I have read entirely and understand this Acknowledgement of Risk and Consent to Participate in the McCullough Mural Project, and that 1 elect to participate. Signature EMERGENCY CONTACT INFORMATION: Name Relationship Date Telephone (home): Telephone (cell):