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HomeMy WebLinkAboutContract 34870� � `� ��C�iE 1 d���� ►�1 ���` � �F���� �9� � �J AGREEMENT � ��� �a_� This Agreement is made effective as of the �.� day of ��� �� ,��;�� �-, <: , 200 �- , by and between MOBILE EXPRESS CAPITAL CORPORATION, a Texas Corporation (hereinafter referred to as "MECC"), acting by and through its duly authorized representative and the CITY OF FORT WORTH, a home rule municipal corporation situated in Tarrant, Denton, and Wise Counties, Texas (hereinafter referred to as "City") acting by and through its duly authorized Assistant City Manager, on the terms and conditions set forth below: WITNESSETH: WHEREAS, the City of Fort Worth owns and operates the Fort Worth Convention Center located at 1201 Houston Street, Fort Worth, Texas (the "FWCC" or "Premises"); and WHEREAS, the Fort Worth Convention Center hosts a wide range of events, including conventions, conferences, corporate meetings, sporting events, concerts, trade shows, banquets, consumer shows and other events, all of which attract a large number of visitors to the Convention Center; and WHEREAS, the City of Fort Worth desires to make available Automated Teller Machine Services, ("ATM") to visitors and users of the Fort Worth Convention Center; and WHEREAS, the City of Fort Worth desires to utilize the services of MECC to supply ATM services to it users of the Fort Worth Convention Center at no cost to the City; and WHEREAS, MECC has expertise in the installation and operation of ATMs and is willing to place an ATM in the Convention Center for the purpose of supplying services to users of the Fort Worth Convention Center. � ,� �� -.; _� � � � r�;:;,.-�� .`.�'�� �.::,�;� � ,5� . � J, ,° � J J � ��. . ��. ._r.� ,�, MECC AGREEMENT PAGE 1 12. I 5.06 NOW, THEREFORE, for and in consideration of the premises and the mutual covenants hereinafter recited, the receipt and sufficiency of which are hereby acknowledged, the parties mutually agree as follows: Article I 1.01 Placement of ATM's. City hereby grants MECC the exclusive right to place up to two (2) ATMs in a location(s) within the Fort Worth Convention Center. Such location(s) shall be determined by the Director of Public Events for the City of Fort Worth. 1.02 Permits and Approvals. MECC shall be responsible for obtaining any and all required permits, waivers and approvals that may be necessary for the placement of such ATM at the designated Convention Center Location. 1.03 Compliance. MECC shall comply with all federal, state, and local laws, statutes including all ordinances, charter provisions, rules and regulations of the City of Fort Worth; including all rules, regulations andlor requirements of the City of Fort Worth Police and Fire Departments; in connection with this Agreement and use of said Premises and any other regulations of any municipal authority of the City of Fort Worth. MECC will not do or suffer to be done anything on said Premises during the terms of this Agreement in violation of any such laws, statutes, ordinances, rules, regulations, charter provisions, directives or requirements. If the City calls the attention of MECC to any such violation on the part of said MECC or any person employed by or admitted to said Premises by MECC, MECC will immediately desist from and correct such violation and/or vacate the Premises. MECC shall comply with all federal, state, and local laws, statutes including all ordinances, charter provisions, rules and regulations of the City of Fort Worth; including all rules, regulations and/or requirements of the City of Fort Worth Police and Fire Departments; in connection with the this Agreement and use of said Premises and any other regulations of any municipal authority of the City of Fort Worth. 1.04 Maintenance and Repairs. MECC shall be responsible for all maintenance of the ATM. including but not limited to Armored Car Service. City agrees to contact MECC within twenty-four (24) hours of becoming aware of the need for maintenance or repairs. MECC agrees to respond to such service calls within three (3) business days by arranging for the appropriate qualified technician to respond to the problem. MECC will be responsible for the labor charges and expenses including replacement parts and components necessary in making such repairs. MECC covenants and agrees that it shall take the FWCC as it finds it. MECC agrees that it has examined the FWCC prior to the execution of this Agreement and is satisfied with the physical condition of the premises for the purposes related to this Agreement. MECC MECC AGREEMENT PAGE 2 12.15.06 shall restore and yield said FWCC, equipment, and all other properties belonging to the City back to the City at the termination of this Agreement in good or better condition as existed at the commencement of this Agreement and in which MECC found them. MECC will pay the costs of repairing (to its condition immediately preceding the occurrence of such damage) any damage that may be done to the Premises or any of the fixtures, or structures by any act of MECC or any of MECC's employees, agents, officers, or anyone visiting the Premises upon the invitation of MECC. The City and MECC shall mutually determine whether any damage has occurred, the amount of the damage, the reasonable costs of repairing the damage, and whether, under the terms of the Agreement, MECC is responsible. City shall be the sole judge of the quality of the maintenance and/or damage of the premises, fixtures, or structures by MECC. Any damage by MECC incident to the exercise of privileges herein granted shall be repaired or replaced by the MECC to the reasonable satisfaction of the City within thirty days of receipt of written notification from the City. City does not relinquish the right to control the management of the FWCC, or the right to enforce all necessary and proper rules for the management and operation of the same. City, through its Public Events Director, police and fire personnel and other designated representatives, has the right to enter and inspect the exterior of the ATM and perform all activities necessary for the proper conduct and operation of the FWCC; provided this shall not authorize or empower City to direct the activities of the MECC or assume liability for MECC's activities. 1.05 MECC shall be responsible for providing and installing all supplies that are used and needed by the ATM at no cost to the City. 1.06 FWCC Space. City shall provide the space for all FWCC locations in which the ATM will be located rent-free and will be solely responsible for providing the customary and routine security currently provided at the FWCC. 1.07 Requirements of ATM Locations. City and MECC agree that the ATM will be located in an area within the FWCC that currently provides access to electricity and telephone cabling. City, at its sole discretion, may provide any other wiring necessary as requested by MECC. Any additional electrical or utility service required by MECC shall be furnished at the sole expense of the MECC. MECC must obtain written approval from the City of Fort Worth Public Events Director prior to placing any permanent utility improvements on the premises of the FWCC. Any permanent utility improvements shall become the property of the City. City shall be responsible for all electrical costs associated with the operation of the ATM. MECC shall be required to use the City's exclusive vendor of telecommunication and data services for the telecommunication and or data needs of the ATM. 1.08 ADA and ABA. City shall have the responsibility of ensuring that the FWCC is compliant with any Americans With Disabilities Act of 1990 ("ADA") �n� Arl���tPrt7i�?t_�_ � �� �,� ,� � ,�� _; fl� � �>=eb ���s ��_�z'.J �,�� _ �� .� c��',•; � � ! '; . `_ ', , � lr �,,:1: 'c , �� :�,�,, ��,,\' a MECC AGREEMENT PAGE3 -'� 12.15.06 ! �... —._a,. _.___ „_ . . _ Barriers Act ("ABA") requirements. MECC shall be responsible for meeting any ADA and ABA requirements for the ATM unit. 1.09 ATM Advertising. MECC shall have the right to place signage on the ATM that identifies that MECC is the owner and operator of the ATM. MECC shall have no other advertising rights within FWCC. City shall approve reasonable identification advertising that MECC wishes to place on the ATM. Article II 2.01.1 Delivery and Installation of ATM. MECC shall be responsible for the delivery and installation of the ATM. Delivery shall be at a time and date agreed to by the City. 2.02 Insurance. A. MECC will secure and furnish City with a certificate of insurance for coverage and in an amount specified by standard policies and procedures of the Risk Management Department of the City during the term of this contract to include, at a minimum, the following: Commercial General Liability (CGL) $ 500,000 each occurrence $1,000,000 aggregate limit B. Coverage shall include but not be limited to the following: premises operations, independent contractors, products/completed operations, personal injury, and contractual liability. Insurance shall be provided on an occurrence basis, and be as comprehensive as the current Insurance Services Office (ISO) policy. C. The City of Fort Worth shall be named as an Additional Primary Insured in the body of the policy (s), or in an Addendum thereto. Said insurance shall provide coverage for the claims arising from the condition of the Leased Premises (Facilities) and the act(s) and omisions(s) of the officers, servants, or employees of the City. City reserves the right to review and adjust insurance requirements at any time during the term of this Agreement. Certificates of Insurance shall be delivered to the City of Fort Worth, Public Events Department 1201 Houston Street, Fort worth, Texas 76102, evidencing all the required coverages, including endorsements. D. The insurers for all policies must be licensed/approved to do business in the State of Texas and have a minimum rating of A:VII in the current A.M. Best Key Rating Guide or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. MECC AGREEMENT 12.15.06 PAGE 4 E. MECC hereby waives subrogation rights for loss or damage against City, its officers, agents and employees for personal injury (including death), property damage or any other loss. F. MECC shall not do or permit to be done anything in or upon any portion of the Premises, or bring or keep anything therein or thereupon which will in any way conflict with the conditions of any insurance policy upon the Premises or any part thereof, or in any way increase the rate of fire insurance upon the Premises or on property kept therein, or in any way obstruct or interfere with the right of the other tenants of the Premises, or injure or annoy them. G. The City may terminate this Agreement immediately upon the failure of MECC to provide acceptable documentation of insurance as required by this Agreement. 2.03 Indemnification. MECC AGREES TO DEFEND, INDEMNIFY AND HOLD THE CITY, ITS OFFICERS, AGENTS SERVANTS AND EMPLOYEES, HARMLESS AGAINST ANY AND ALL CLAIMS, LAWSUITS, ACTIONS, COSTS AND EXPENSES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO OWNER'S BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY, INCL UDING DEATH, THAT MAY RELATE TO, ARISE OUT OF OR BE OCCASIONED BY (i) MECC'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR (ii) ANY NEGLIGENT ACT OR OMISSION OR INTENTIONAL MISCOND UCT OF MECC, ITS OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES, CONTRACTORS (OTHER THAN THE CITY) OR SUBCONTRACTORS, RELATED TO THE TERMS OF THIS AGREEMENT OR THE PERFORMANCE OF THIS AGREEMENT; EXCEPT THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL NOT APPLY TO ANY LIABILITY RESULTING FROM THE SOLE NEGLIGENCE OF THE CITY OR ITS OFFICERS, AGENTS, EMPLOYEES OR SEPARATE CONTRACTORS, AND IN THE EVENT OF JOINT AND CONCURRENT NEGLIGENCE OF BOTH MECC AND CITY, RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED COMPARATIVELY IN ACCORDANCE WITH THE LA WS OF THE STATE OF TEXAS. Article III 3.01 Initial Term. This Agreement shall have an initial term of twelve (12) months beginning on the date of execution of this agreement. Renewal. After the Initial Term has ended, this agreement may be extended for (2) one-year periods at the sole discretion of the City. 3.02 Termination. Notwithstanding the above, either party may terminate this Agreement, with or without cause upon thirty (30) days written notice to the other party. MECC AGREEMENT 12.15.06 , -��_ __-,_ �, - � .._.. _, r���;'i � r'�' �;y� '�., i r � �� � � i PAG�' �" ; �l'_ '��Ic �i-1,�; ''� ! u. .. �:r:":6�!'' �IS •F � .y u � 3.03 Force Majeure. If the FWCC or any portion thereof shall be destroyed or damaged by fire or other calamity so as to prevent the use of the Premises for the purposes and during the periods specified in this Agreement or if the use of the Premises by Licensee shall be prevented by act of God, strike, lockout, material or labor restriction by any governmental authority, civil riot, flood, or any other like cause beyond the control of the City, then this contract shall terminate and MECC hereby waives any claim against City for damages by reason of such termination. Article IV General Provisions 4.01 Exclusivitv. During the Initial Term and the Renewal Term of this agreement, MECC shall have the exclusive right to provide ATM services in the Convention Center. 4.01 Independent Contractor. The doctrine of respondeat superior shall not apply as between MECC and City and nothing contained in this Agreement shall be deemed to constitute City and MECC as partners or joint venturers with each other, nar shall the MECC be considered an agent, representative or employee of the City. MECC shall have the exclusive control of and the right to control its employees and the details of its operation on the Premises and shall be solely responsible for the acts and omissions of its officers, agents, employees, contractors and subcontractors. 4.02 Notice. Any notice under this Agreement must be in writing and delivered by personal delivery, overnight courier, or certified mail, return receipt requested, and shall be deemed given upon personal delivery, one (1) business day after deposit with an overnight courier or five (5) days after deposit in the United States Mail as set forth above. Notices must be sent to a party at its address as set forth below or such other address as the party may specify in writing by notice pursuant to this section. MECC Arthur McMahan Mobile Express Capital Corporation President 4120 International Pkwy Suite # 2200 Carrollton, TX 75007 CITY OF FORT WORTH Fort Worth Convention Center Attn: Kirk Slaughter 1201 Houston Street Fort Worth, Texas 76102 MECC AGREEMENT PAGE 6 12.15.06 With copv to: City Attorney's Office 1000 Throckmorton Street Fort Worth, Texas 76102 4.03 Severability. Each of the provisions included in this Agreement is separate, distinct and severable from the other and remaining provisions of this Agreement, and the invalidity or unenforceability of any provision, shall not affect the validity or enforceability of any other provision or provisions hereunder. Further, if any provision is ruled invalid or unenforceable by a court of competent jurisdiction because of a conflict between such provision and any applicable law or public policy, such provision shall be redrawn to be valid and enforceable to the extent required for such provision to be consistent with such law or public policy. 4.04 Assi n�ent. The parties hereto may not assign any rights or delegate any duties under the Agreement without the written consent of the other party. 4.05 Entire Agreement. This Agreement, together with the exhibits, constitute the entire agreement between the parties, and there are no representations, warranties, covenants and agreements between the parties other than those set forth or provided for herein, and any prior or contemporaneous oral or written agreement which purports to vary from the terms hereof, shall be void. 4.06 Amendment. This Agreement may not be amended or cancelled except by written instrument signed by all parties. 4_07 Governing Law. Venue shall be in the state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. 4.08 Authoritv. Each party hereto represents and warrants that it has valid authority to execute this Agreement and has obtained all necessary authorizations to undertake the obligations contained in this Agreement. 4.09 Rule of the Construction. The parties hereto acknowledge that each party and its legal counsel have reviewed this Agreement, and the parties hereby agree that normal rules of construction to the effect that any ambiguities are to be resolved against the drafting party, shall not be employed in the interpretation of this Agreement, or any amendments or exhibits thereto. 4.10 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument, and in making proof hereof, it shall not be necessary to produce or account far more than one such counterpart. [Signature Pages Follow] MECC AGREEMENT PAGE 7 12.15.06 � EXECUTED on this the day of , 200�. CITY OF FORT n % By: Assistant Cit� ATTEST: By: City Secretary `�� l�d� ���, :�„_'�{�,I��$�� APPROVED AS TO FORM AND LEGALITY: Assistant City Attorney STATE OF TEXAS COUNTY OF TARRANT MECC: : C� � f Name: ,���"�rl�r %i`�� , �n ��i��:;� Title: % �2. � S �JE•'�-�� � � BEFORE ME, the undersigned auth rity, a Notary Public in and for the State of Texas, on this day personally appeared __�T, ��c� r��:e:«;,��`�F- , Assistant City Manager, know to me to be the person whose name is su�iscribe to the foregoing instrument, and acknowledged to me that the same was the act of the City of Fort Worth and that he executed the same as the act of the said City of Fort Worth for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN LTNDER MY HAND AND SEAL OF OFFICE, this the �� day of �; .�- , 20�. ,.�aYP�e�,�, MARIA S. SR�N�M�Z �� NOTAF�Y PUBLI� y STATE C?F TEXAS '� oF t��e My Comm. Exp.12•14•2009 MECC AGREEMENT 12.15.06 Not'arv Public in and for the __ �� -- - -_ , .5� J� � � J . � �:_i �,'✓ r�' i ( '= , A ^ ^ \7�i1 �Af'i�'�8�-'�L1�4�`,� f U� �, .,',C: �'�snl �!'��`',( i STATE OF TEXAS COUNTY OF TARRANT BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared;�Ykl�x;Y 1�iC�1c�,��lC�4f) , and authorized representative for MECC known to me to be the person whose name is subscribe to the foregoing instrument, and acknowledged to me that the same was the act of MECC and that she executed the same as the act of the said MECC. for the purposes and consideration therein expressed and in the capacity therein stated. _ GIVEN UNDER MY HAND �'a \^1�,��,��'� �� , 200�. �� _',,, u� ,,,, -''�z�''¢�� M. TOMLIN �:'"� "= NiY COMMISSION EXPIRES `"�; , �''*���� October 17, 2007 `` �°n,�y,. '�,,,.,,�:`w,:: �.�. MECC AGREEMENT 12.15.06 f�� AND SEAL OF OFFICE, this the ��(�_ day of � , ---- -- � �� � _ � (i�i� ��,� � � Notary Public in nd for the State of Texas �''f���t��.�e� °�'�,1��� � 1:5\; ✓�.�� r i�'�1 �,�5f�� IGr�[ir �C;1���� � `�i��G�E 4 '� �` � �, . �'. : n t ^ '� r�i � �'jj�� , ����( : �'. .. , , d.� :<:o i