ORDER N0.28803 KERRVILLE CHRISTMAS LIGHTING CORPORATION Came to be heard this the 13~' day of September 2004 with a motion made by Commissioner Williams, Seconded by Commissioner Baldwin, the Court unanimously approved by a vote of 4-0-0 the annual agreement between the Kerrville Christmas Lighting Corporation and the Kerr County Commissioners Court. COMMISSIONERS' COURT AGENDA RE VEST ~ ~~ ~ ~~ PLEASE FURNISH ONE ORIGINAL AND NINE COPIES OF THIS REQUEST AND DOCUMENTS TO BE REVIEWED BY THE COURT. MADE BY: William H. Williams OFFICE: Commissioner, Pct. 2 MEETING DATE: September 13, 2004 TIME PREFERRED: SUBJECT: (PLEASE BE SPECIFIC) Consider, discuss and approve proposed agreement between the Kerrville Christmas Lighting Corporation and the Court in reference to the installation, storage and take down of the Christmas lights on the courthouse during the holiday season. EXECUTIVE SESSION REQUESTED: (PLEASE STATE REASON) NAME OF PERSON ADDRESSING THE COURT: Comm., Pct. 2 ESTIMATED LENGTH OF PRESENTATION: IF PERSONNEL MATTER -NAME OF EMPLOYEE: Time for submitting this request for Court to assure that the matter is posted in accordance with Title 5, Chapter 551 and 552, Government Code, is as follows: Meeting scheduled for Mondays: THIS REQUEST RECEIVED BY: THIS REQUEST RECEIVED ON: 5:00 P.M. previous Tuesday. All Agenda Requests will be screened by the County Judge's Office to determine if adequate information has been prepared for the Court's formal consideration and action at time of Court Meetings. Your cooperation will be appreciated and contribute towards you request being addressed at the earliest opportunity. See Agenda Request Rules Adopted by Commissioners' Court. License Agreement This agreement, made the 13th day of September, 2004, by and between Kerr County, Texas (hereinafter "County" or "Licensor") and Kerrville Christmas Lighting Corporation (hereinafter "KCLC" or Licensee"). WHEREAS, Licensor is the owner of the property, commonly known as the Courthouse Square, the block of land and improvements located at 700 Main Street, Kerrville, Kerr County, Texas, and WHEREAS, Licensee, a 501(c)(3) corporation, desires to erect, install, maintain, operate, display, and remove certain seasonal holiday displays upon the above-described property, NOW, THEREFORE, it is agreed as follows: Licensor hereby grants and demises unto Licensee, its members, and lighting project designees the right to erect, install, maintain, operate, display, and remove certain seasonal holiday displays upon the above-described property between the dates of October 23, 2004 and January 16, 2005. All communication between Licensee and Kerr County employees, Kerr County Supervision and Corrections community service workers shall be through the Kerr County Facilities Manager, currently, Mr. Glenn Holekamp. Ken County employees and Kerr County Supervision and Corrections community service workers shall be supervised and directed either by their departmental supervisor, community service manager or community service supervisor, as appropriate or through the Kerr County Facilities Manager or his designee. Any lighting displays to be affixed to the Courthouse proper shall be installed by persons designated by and under the supervision of the Ken County Facilities Manager or his designee and will be installed at a time agreed upon by Kerr County Facilities Manager or his designee and Licensee. This license is personal to Licensee. It is nonassignable and any attempt to assign this license will terminate the license privileges granted to Licensee hereunder. This license agreement is terminable by either party at will by the giving of actual notice to the other party. LICENSOR: err County Judge LICENSEE: -~~ President, Kerrville Christmas Lighting Corporation Kerrville Christmas Lighting Corporation Judge Pat Tinley Kerr County Commissioners Court 700 Main Street Kerrville, TX 78028 Dear Judge Tinley, August 17, 2004 This week on the 19 of August, the Kerrville Christmas Lighting Corporation will hold its 6~' meeting of 2004. The KCLC is trying to stay on track for a successful Christmas lighting in November as we have done the past eight years. We have ordered two new displays, extended our electrical grid, contracted for new signs to credit out sponsors and spent a considerable amount of money to raise additional funds. Our action has been positive but we do need a final approval from the Commissioners Court to proceed as necessary to reach our usual celebrated lighting activity around Thanksgiving. I regret that I must bother you again with this subject but the KCLC Board agreed to proceed as we have in past years unless the Ken County Court s~ecifica.lly denies our activity. To this end, I have attached a copy of my original letter of May 25 for your review and ask that the Commissioners Court at least give the KCLC something in writing to acknowledge and approve our request. Any suggestion for changes by the Court will be appreciated, but our first workday at the Court House is scheduled for October 23~. May we please have a response to this request before our September meeting on the 16'x. Resp tfully, Dic Lehman President Kerrville Christmas Lighting Corporation DRAFT Presented to Court by the Corporation 2004-5 ANNUAL AGREEMENT BErvv~v THE KERRVII.LE CHRISTMAS LIGHTING CORPORATION THE KERR COUNTY COMIVIISSIONERS COURT the Commissioners Kerrville Lighting The purpose of this agreement is to establish the rules as to how, when and where the Kerrville Christmas Lighting Corporation will operate in the installation and removal of the Christmas lights and displays during the October 2004 -January 2005 time frame. The Kerrville Christmas Lighting Corporation (KCLC), being anon-profit 501(c)3 corporation chartered in the State of Texas to raise funds and provide Christmas lighting within the State of Texas and specifically Kerr County, agrees to the following: 1. The KCLC will raise funds to purchase Christmas lights and decoration for the courthouse lighting. 2. The KCLC will install lighting on the trees and lamp poles on the courthouse grounds with the help of community volunteers 3. The KCLC will set up the Christmas displays on the courthouse grounds and make the final electrical connections to same 4. The KCLC will raise funds to improve the electrical grid and establish where such electrical outlets are needed 5. The KCLC will provide the county with the electrical upgrade layout for inclusion in the county's "Master Plan" 6. The KCLC will design and layout the displays and decorations in order to match electrical requirements to existing electrical service 7. The KCLC will hook up all electrical connections on the displays that have animated controls 8. The KCLC will maintain all displays and lights 9. The general understanding is that KCLC will not install any major Christmas displays or lights more than two weeks before the weekend prior to Thanksgiving 10. The KCLC will adhere to the following installation dates for 2004: a. October 16, 2004 Install lights on trees & lamp poles b. October 23, 2004 Continue to install light on trees & lamp poles & start the installation of the fountain tree c. October 30, 2004 Continue to install lights on trees, lamp poles, shrubs and fountain tree d November 6, 2004 Supervise and direct the installation of Christmas displays by Community Service workers, continue work on the fountain tree and installing lights on trees. e. November 13, 2004 Hook up all displays and install lights on emrance of courthouse and replace light bulbs f. November 17, 2004 Have dry run -checking all displays & lights g. November 20, 2004 Lights On h. January 8, 2005 Take down date 11. The KCLC will monitor the displays and lights during the season to make sure they are operating and replace bulbs as required 12. The KCLC will remove the lights and displays on the "take down date" and place in storage and repair as required with the help of volunteers and community service The Kerr County Commissioners' Court agrees to do the following: 1. Provide storage space for Christmas lights and displays in the courthouse 2. Start the installation of string lights on the courthouse and annex and the setting up of the displays no less than two weeks before designated turn on dates, which is the Saturday prior to Thanksgiving. 3. Install the string lights on the courthouse and annex and replace bunged out bulbs as the lights are being installed KCLC will provide the bulbs 4. Install the Christras displays under the direction and supervision of the KCLC S. Provide a minimum of X5,000 in the 2004 budget for funding the KCLC's fixed cost 6. Pay all utility bills 7. Provide insurance coverage for KCLC and the volunteers to the same extent as that provided for Community Service Workers 8. Provide the power lines to each display using KCLC extension cards, but not hook up any display that have animated controls 9. Add all new under ground electrical installation to the "Master Plan" from information provided by KCLC 10. Supervise the installation of all electrical lines and connections 11. Take down the string tights on the courthouse and annex on the take down date and store same in the old jail 12. Provide community service to assist in the installation and take down of displays on the dates outlined on page 1, #10 Agreed and accepted by the following: President, Kerrville Christmas Lighting Corporation date Judge, Kerr County Commissioners' Court date "age a.. _ Kerr Countv Judcte/Commissioners' Court From: "KTC" To: "Bill Williams" Cc: "Pat Tinley" ; "Kerr County Commissioners' Court" ; "Kathy Mitchell" ; "Jonathan Letz" ; "Dave Nicholson" ; "Buster Baldwin" Sent: Wednesday, September 08, 2004 4:31 PM Attach: Lighting contract memo.doc; KCLC License .doc Subject: License agreement draft and comments upon KCLC's proposed agreement. Commissioner Williams: I have attached a draft of a license that I think would work fine for the lighting agreement. I have also attached a copy of my memo containing responses to the KCLC draft agreement provided, as you requested. There was a lot of detail in the proposed KCLC draft agreement that we really do not need to address, for example, when installation of certain types of display would be commenced. It seems to me that all we should care about is that the work shall commence no earlier than a certain date and shall all be put away by another date. I submit that all work should be done only with the approval and coordination of Mr. Holekamp. Issues relating to improvements in the grid, the cost relating thereto, the costs of electricity, and the county's purchase of some sort of insurance for the KCLC are fiscal matters that need not be addressed in an agreement relating to the use of county land. Church/state separation issues aside, I think it could be argued that the County receives a benefit from funding the grid improvements and from paying display-related electrical costs in the community's enjoyment of the seasonal holiday display. There are also likely measurable economic benefits in attracting shoppers to the county and in retaining county shoppers with the displays. I have spoken with Mr. Holekamp and Mr. Dan Edwards, the community service supervisor. Mr. Holekamp is not in a position to contract that any amount of courthouse storage space shall be made available to KCLC. This space is premium space and must always be devoted to essential county uses over optional uses. It is likely that it will be fine to store some amount of lights in the courthouse only so long as space is available but we should not contract away our option to use county space for county purposes. Mr. Edwards advises me that the community service workers will be under either his or his designee's direction and supervision or under Mr. Holekamp's direction and supervision. There is already insurance in place that would cover the KCLC workers from harm encountered while working on this project as volunteers to the same degree that community service workers would be covered. It is my current belief that there is no coverage that would protect KCLC or Kerr County from third party liability claims due to negligent installation of holiday displays by KCLC workers. Mr. Tomlinson is currently investigating this coverage and I intend to verify this coverage as soon as I am able. Let me know if you have any questions or suggested modifications to the license agreement. Sincerely, David Motley Kerr County Attorney 9/8/2004 Memorandum To: Commissioner Williams From: David Motley Date: September 8, 2004 Subject: Christmas lighting agreement Your request was for me to review and comment upon a proposed courthouse lighting agreement between Kerr County and the Kerr County Christmas Lighting Corporation (hereinafter KCLC). I would note that the working copy I was provided was somewhat different from the copy Ms. Mitchell is using to submit the agenda item for the next court meeting. The comments provided are not strictly related to legal issues. On page 1, item number 9; I prefer a definition of the term. "major Christmas displays or lights." On item l Ob, is the "fountain tree" a "major Christmas display?" On item l Od, there is no timeframe associated with "continue work on the fountain tree and installing lights on trees." I am assuming that the major Christmas displays will be installed during the two weeks before the weekend preceding Thanksgiving...the agreement does state that such work will not be done before that weekend but not affirmatively when it will be done. It is my belief that community service workers may not be supervised and directed by KCLC volunteers in their efforts. In item 4, again, same comment re: supervision and direction of community service workers. Our insurance already covers the KCLC workers to the same extent as it would community service workers for their injury, etc. There is no known liability insurance coverage in place, which would provide protection to Kerr County or to KCLC for losses due any KCLC worker's negligence in installing or maintaining the lighting. On page 2, item number 1, the county should only agree to provide some space and to the extent it is available at the discretion of the facilities manager. It may be that at some point during the year there emerges an urgent need to store items in the area where lights are stored. I am unsure whether the allocation of $5,000.00 in item 5 on page 2 is allowable. It is questionable whether such improvements in the courthouse square electrical grid are a benefit to the public or to the county. There is certainly a benefit to the public in the area of enjoyment of and celebration of the season and that may be enough to support this expenditure. In any event, for county liability purposes, such improvements on county property should not be planned or accomplished without the approval of and oversight by the facilities manager. I would be hesitant to approve the county's payment of electrical bills for this project without knowing what the obligation will be. The same comment about whether or not the payment of electrical bills is in the public interest vs. the public's enjoyment of the seasonal display applies to the payment of the electrical bills attributable to this display. DM/s cc: Judge Tinley Commissioner Baldwin Commissioner Letz Commissioner Nicholson Glenn Holekamp Dan Edwards License Agreement This agreement, made the day of September, 2004, by and between Ken County, Texas (hereinafter "County" or "Licensor") and Kerrville Christmas Lighting Corporation (hereinafter "KCLC" or Licensee"). WHEREAS, Licensor is the owner of the property, commonly known as the Courthouse Square, the block of land and improvements located at 700 Main Street, Kerrville, Kerr County, Texas, and WHEREAS, Licensee, a 501(c)(3) corporation, desires to erect, install, maintain, operate, display, and remove certain seasonal holiday displays upon the above-described property, NOW, THEREFORE, it is agreed as follows: Licensor hereby grants and demises unto Licensee, its members, and lighting project designees the right to erect, install, maintain, operate, display, and remove certain seasonal holiday displays upon the above-described property between the dates of October 23, 2004 and January 16, 2005. All communication between Licensee and Kerr County employees, Kerr County Jail trusty workers, and Kerr County Supervision and Corrections community service workers shall be through the Kerr County Facilities Manager, currently, Mr. Glenn Holekamp. Kerr County employees, Kerr County Jail trusty workers, and Kerr County Supervision and Corrections community service workers shall be supervised and directed either by their departmental supervisor, sheriff' s department designee or jail designee, community service manager or community service supervisor, as appropriate or through the Ken County Facilities Manager or his designee. Any lighting displays to be affixed to the Courthouse proper shall be installed by persons designated by and under the supervision of the Ken County Facilities Manager or his designee and will be installed at a time agreed upon by Kerr County Facilities Manager or his designee and Licensee. This license is personal to Licensee. It is nonassignable and any attempt to assign this license will terminate the license privileges granted to Licensee hereunder. This license agreement is terminable by either party at will by the giving of actual notice to the other party. LICENSOR: Kerr County Judge LICENSEE: President, Kerrville Christmas Lighting Corporation