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HomeMy WebLinkAboutContract 52785 J CSC No.52785 SEP �� 2019 t`CSiCRzp0N LICENSE AGREEMENT BIKE SHARING STATION AT GATEWAY PARK This LICENSE AGREEMENT is made and entered into by and between the CITY OF FORT WORTH, a home rule municipal corporation ("City"), acting herein by and through its duly authorized Assistant City Manager and FORT WORTH BIKE SHARING, a domestic nonprofit corporation ("Licensee"), acting herein by and through its duly authorized President and Chief Executive Officer, regarding the real property located at Gateway Park, 751 Beach Street, Fort Worth, Texas, 76111. RECITALS WHEREAS, the City owns a piece of property known as Gateway Park (the "Park") located at 751 Beach Street, Fort Worth, Texas, 76111. The location and boundaries of the Park are more particularly described in the attached Exhibit"A" which is incorporated herein for all purposes; and WHEREAS, Licensee desires use a portion of the Park(the"Licensed Premises") to install and maintain certain improvements for the purpose of a Bike Sharing Station; and WHEREAS, the City has determined that the Licensee's desired use of the Park fulfills a park purpose by increasing recreational opportunities in the Park and promoting the use of bicycles and parks; and WHEREAS, the City desires to grant Licensee a license to use a portion of the Park under the terms and conditions set forth in this Agreement; NOW, THEREFORE,the City and Licensee agree as follows: AGREEMENT 1. City, in consideration of the covenants and agreements contained herein, to be kept and performed by Licensee, hereby grants permission to Licensee to use portions of the space in the City's Park to install and allow to remain, certain improvements for the purpose of one bike sharing station("Improvements") as described in and at the location shown on Exhibit `B" — Licensed Premises, but only to the extent shown thereon. Upon completion of the Improvements, Licensee agrees to be responsible for maintaining the Improvements and the Licensed Premises. Licensee shall not expand or otherwise cause the Improvements to further infringe in or on City's Park beyond what is specifically described in the Exhibit(s) attached hereto. OFFOAL RECORD CITY SECRETARY License Agreement FTPMFtTH,T➢( Bike Sharing Station at Gateway Park 2. All installation, maintenance and operation in connection with this Agreement shall be performed in strict compliance with this Agreement and the City's Charter, Ordinances and Codes,and in accordance with the directions of the City's Director of the Park & Recreation Department, or his or her duly authorized representative. Licensee further agrees that, in accordance with Section 24-5 of the Code of the City of Fort Worth, it shall not display any advertising matter on the Improvements. Licensee shall submit all plans and specifications to the applicable Director or his or her duly authorized representative prior to the installation of the Improvements. Licensee shall notify the City's Director of the Park & Recreation Department, or his or her duly authorized representative, at least three (3) business days prior to initiating any activity within the Park. Licensee shall not commence installation of the Improvements until receiving written approval by the Director or his or her duly authorized representative, but such approval shall not relieve Licensee of responsibility and liability for concept, design and computation in the preparation of such plans and specifications. 3. Upon completion of the installation of the Improvements, there shall be no other use of the surface area of the Park, except as described herein and depicted on Exhibit «B 4. Licensee, at no expense to the City, shall make proper provisions for the relocation and installation of any existing or future utilities affected by such use of the Park including the securing of approval and consent from any affected utility companies and the appropriate agencies of the State of Texas and its political subdivisions, including the City. In the event that any installation, reinstallation, relocation or repair of any existing or future utility or improvements owned by, constructed by or on behalf of the public or at public expense is made more costly by virtue of the installation, maintenance or existence of the Improvements and their use, Licensee shall pay to City an additional amount equal to such additional cost as determined in the reasonable discretion of the Director of the Park & Recreation Department, or his or her duly authorized representative. The Licensee shall not operate any equipment in the Park within forty- eight (48) hours of a rain event. The Licensee shall not bring any heavy equipment onto the Park, including, but not limited to, vehicles (except for areas designated for vehicles such as parking lots). The Licensee agrees that it shall not cut, clear or remove any vegetation as a part of it efforts to install the Improvements. 5. Upon prior written notice to Licensee, except in the case of an emergency, Licensee agrees that City may enter and utilize the referenced areas at any time for the License Agreement Page 2 of 11 Bike Sharing Station at Gateway Park purpose of installing, repairing, replacing, or maintaining improvements to its public facilities or utilities necessary for the health, safety and welfare of the public or for any other public purpose. City shall bear no responsibility or liability for any damage or disruption or other adverse consequences resulting from the Improvements installed by Licensee, but City will make reasonable efforts to minimize such damage. In the event that any installation, reinstallation, relocation or repair of any existing or future utility or improvements owned by, constructed by or on behalf of the public or at public expense is made more costly by virtue of the construction, maintenance or existence of the Improvements and use, Licensee shall pay to City an additional amount equal to such additional cost as reasonably determined by the Director of the Park & Recreation Department, or said Director's duly authorized representative. 6. The term of this Agreement shall be for five(5) years commencing on August 26, 2019 and ending on August 25, 2024. This Agreement is executed by City. City shall have the option, in its sole discretion, to renew this Agreement under the same terms and conditions for up to two (2) five-year renewal periods. However, this Agreement shall terminate upon Licensee's non-compliance with any of the terms of this Agreement. City shall notify Licensee in writing of the non-compliance, and if not cured within thirty(30) days, this Agreement shall be deemed terminated unless such non-compliance is not susceptible to cure within thirty(30) days, in which case this.Agreement shall be deemed terminated in the event that Licensee fails to commence and take such steps as are necessary to remedy the non-compliance within thirty (30) days after written notice specifying the same, or having so commenced, thereafter fails to proceed diligently and with continuity to remedy same. 7. Upon termination of this Agreement, Licensee shall, at no expense to City, remove the Improvements encroaching on the Park, and restore the Park to a condition acceptable to the Director of the Park & Recreation Department, or his or her duly authorized representative, in accordance with then-existing City specifications. It is understood and agreed by Licensee that if this Agreement terminates and Licensee fails to remove the Improvements and restore the Park, Licensee hereby gives City permission to remove the Improvements along with any supporting structures, restore the Park, and assess a lien on the Property for the costs expended by the City in taking such actions. 8. It is further understood and agreed between the parties hereto that the Park to be used and encroached upon as described herein, is held by City as trustee for the public; that City exercises such powers over the Park as have been delegated to it by the Constitution of the State of Texas or by the Texas Legislature; and that City cannot contract away its duty and its legislative power to control the Park for the use and benefit License Agreement Page 3 of 11 Bike Sharing Station at Gateway Park of the public. It is accordingly agreed that if the governing body of City at any time during the term hereof determines in its sole discretion to use or cause or permit the Park to be used for any other public park purpose, whether presently contemplated or not, that this Agreement shall terminate upon sixty (60) days' written notice to Licensee. In the event this Agreement is terminated under this Section 8, Licensee shall perform the obligations regarding removing the Improvements and restoring the Park described in Section 7. 9. Licensee agrees and acknowledges that this Agreement is solely for the purpose of permitting Licensee to install, maintain and locate the Improvements over or within the described Park and is not a conveyance of any right, title or interest in or to the Park nor is it meant to convey any right to use or occupy any property in which a third party may have an interest. Licensee agrees that it will obtain all necessary permissions before occupying such property. 10. Licensee agrees to comply fully with all applicable federal, state and local laws, statutes, ordinances, codes or regulations in connection with the installation, operation and maintenance of the Improvements, encroachment and uses. 11. Licensee agrees to pay promptly when due all fees, taxes or rentals provided for by this Agreement or by any federal, state or local statute, law or regulation. 12. Licensee covenants and agrees that it shall operate hereunder as an independent contractor as to all rights and privileges granted hereunder and not as an officer, agent, servant or employee of City, and Licensee shall have exclusive control of and the exclusive right to control the details of its operations, and all persons performing same, and shall be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors, subcontractors, licensees and invitees. The doctrine of respondeat superior shall not apply as between City and Licensee, its officers, agents, servants, employees, contractors and subcontractors, and nothing herein shall be construed as creating a partnership or joint enterprise between City and Licensee. 13. LICENSEE COVENANTS AND AGREES TO INDEMNIFY, AND DOES HEREBY INDEMNIFY, HOLD HARMLESS AND DEFEND CITY, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES, AND ELECTED OFFICIALS FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR PROPERTY License Agreement Page 4 of 11 Bike Sharing Station at Gateway Park DAMAGE OR LOSS AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH, THE INSTALLATION, MAINTENANCE, OCCUPANCY, USE, EXISTENCE OR LOCATION OF THE IMPROVEMENTS AND ENCROACHMENT AND USES GRANTED HEREUNDER, WHETHER OR NOT CAUSED, IN WHOLE OR IN PART, BY ALLEGED NEGLIGENCE OF OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES, ELECTED OFFICIALS, OR INVITEES OF THE CITY; AND LICENSEE HEREBY ASSUMES ALL LIABILITY AND RESPONSIBILITY FOR SUCH CLAIMS OR SUITS. LICENSEE SHALL LIKEWISE ASSUME ALL LIABILITY AND RESPONSIBILITY AND SHALL INDEMNIFY CITY FOR ANY AND ALL INJURY OR DAMAGE TO CITY PROPERTY ARISING OUT OF OR IN CONNECTION WITH THE IMPROVEMENTS AND ANY AND ALL ACTS OR OMISSIONS OF LICENSEE, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES, INVITEES, OR TRESPASSERS. 14. While this Agreement is in effect, Licensee agrees to furnish City with a Certificate of Insurance naming City as certificate holder, as proof that it has secured and paid for a policy of public liability insurance covering all public risks related to the proposed use and occupancy of park property as described or depicted in Exhibit "A." The amounts of such insurance shall be not less than: $1,000,000 Commercial General Liability with the understanding and agreement by Licensee that such insurance amounts may be revised upward at City's option and that Licensee shall so revise such amounts promptly following notice to Licensee of such requirement. Such insurance policy shall not be canceled or amended without at least thirty (30) days prior written notice to the Risk Manager of the City of Fort Worth. A copy of such is attached as Exhibit "C" and incorporated herein for all purposes. Licensee agrees to submit a similar Certificate of Insurance annually to City on the anniversary date of the execution of this Agreement. Licensee agrees, binds and obligates itself, its successors and assigns, to maintain and keep in force such public liability insurance at all times during the term of this Agreement and until the removal of all encroachments and the cleaning and restoration of the Park. All insurance coverage required herein shall include coverage of all Licensees' contractors and subcontractors. 15. In any action brought by the City for the enforcement of the obligations of the Licensee, City shall be entitled to recover interest and reasonable attorney's fees. License Agreement Page 5 of 11 Bike Sharing Station at Gateway Park 16. Licensee covenants and agrees that it will not assign all or any of its rights, privileges or duties under this Agreement without the prior written approval of the City, and any attempted assignment without such written approval shall be void. Foreclosure by a secured lender of Licensee or assignment to a secured lender by Licensee in the event of default or otherwise shall not require City approval provided that said lender notifies City in writing within sixty (60) days of such foreclosure or assignment and assumes all of Licensees' rights and obligations hereunder. However, no change of ownership due to foreclosure or assignment to any secured lender of Licensee shall be effective as to City unless and until written notice of such foreclosure or assignment is provided to City. 17. THE PARTIES AGREE THAT THE DUTIES AND OBLIGATIONS CONTAINED IN PARAGRAPH 8 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. 18. Any cause of action for breach of this Agreement shall be brought in Tarrant County, Texas. This Agreement shall be governed by the'laWs of the State of Texas. 19. This Agreement shall,be binding upon the parties hereto, their successors and assigns. [SIGNATURES ON FOLLOWING PAGE] License Agreement Page 6 of 11 Bike Sharing Station at Gateway Park This AGREEMENT may be executed in multiple counterparts, each of which shall be considered an original, but all of which shall constitute one instrument. CITY OF FORT WORTH: FORT WORTH BIKE SHARING: Tennifor Grissom Fernando Costa(Sep 13,2019) Jennifer Grissom(Sep 12,20191 By: By: Fernando Costa Name: Jennifer Grissom Assistant City Manager Title: Executive Director RECOMMENDED BY: / David Creek(Sep 13,2019) David Creek,Acting Director Park&Recreation Departmerit FORT�,�,o. ATTEST: _ �' APPROVED AS TO FORM AND LEGALITY: * •�.. tt ��� p►� Matt Murray(Sep 13,201 Mary J. Kayser Matt Murray City Secretary Assistant City Attorney Contract Authorization: M&C:None Required Form 1295: N/A E CORD TARY'H,TX License Agreement Page 7 of 11 Bike Sharing Station at Gateway Park Contract Compliance Manager: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract,including ensuring all performance and reporting requirements. -aM i f1i a i var(Sep13,2019) By: Name: Michael Tovar Title: District Superintendent OFFICIAL RECORD aTY SECRETARY FT. wORTH,TX License Agreement Page 8 of 11 Bike Sharing Station at Gateway Park EXHIBIT A BIKE SHARE KIOSK LOCATION GATEWAY PARK AREA= 4� i =9� ` 4 4 Page 9 of 11 EXHIBIT B LICENSED PREMISES Existing Parking Lol Existing Perking Lot Ez's6ng Sklewalk 34'"^ �"— 1' ExWng Sidewalk —6' Infill exksft grass area Wth new concrete Pad Exletkp Tral N License Agreement Page 10 of 11 Bike Sharing Station at Gateway Park