HomeMy WebLinkAboutContract 42764CITY SECRETARY 2
CoN UCT No.
AGREEMENT
FOR MAINTENANCE AND LANDSCAPING SERVICES
THIS AGREEMENT is made and entered into this � 0 day of
k)DX( Ll_ N 2012, by and between the City of Fort Worth, a home rule municipal
corporation situated in Tarrant, Denton, Parker, and Wise Counties, Texas (hereinafter referred
to as "City ") and Cook Children's Medical Center (hereinafter referred to as "CCMC "), acting
by and through the duly authorized officer, its Vice President — Facilities & Ancillary Services.
SECTION 1
DESCRIPTION OF PROPERTY
1.01 The City and CCMC hereby agree that CCMC will provide, furnish, and perform the
services specified herein on City -owned medians and right -of -ways (hereinafter called the
"Project Sites ") located on Cooper Street and Seventh Avenue as further described in this
Agreement in Exhibit "A ", attached and incorporated into this Agreement.
SECTION 2
DUTIES AND RESPONSIBILITIES
2.01 CCMC shall commence, carry on, and provide such services in accordance with this
Agreement and its attachments and all applicable laws. In providing such services, CCMC shall
take such steps as are appropriate to ensure that the work involved is properly coordinated with
any related work performed by the City or the City's authorized representative.
2.02 CCMC represents that it has or will secure, at its own expense, all materials, supplies,
machinery, equipment, tools, superintendence, labor, personnel, insurance, and other accessories
and services necessary to provide maintenance of the following elements, all of which are to be
installed pursuant to Construction Contract No. 01744 between CCMC and PayneCon, Inc. dba
Payne Concrete, which contract is the subject of Community and Facilities Agreement Contract
No. 42346 between CCMC and the City of Fort Worth Transportation and Public Works
Department (such Construction Contract and Community and Facilities Agreement Contract are
referred to herein as "Contracts "):
a. Maintain landscaping.
b. Maintain special sidewalk and pavement treatments.
2.03 In the event that any City -owned property, such as utilities, equipment, turf, etc., are
damaged or destroyed during watering, or maintenance of the landscape improvements due to
negligence or acts of omissions of CCMC, CCMC shall be responsible for all repairs or
replacements.
2.04 In the event CCMC, its successor or assigns, fails to maintain the areas described in
Section 2.02 in a manner satisfactory to the City, City shall provide written notice of the non-
compliant conditions to CCMC. its successor or assigns. CCMC. its successors or assigns, shall
make anN necessary repairs to the reasonable satisfaction of the City within thirty (30) days of
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receipt of such written notice or, if such repairs are not reasonably able to be completed within
thirty (30) calendar days, CCMC shall have, within that period, begun work on such repairs and
shall diligently pursue them to completion, provided, however, that if the non-compliant
conditions creates a condition which noses an immediate threat to life health or property such
repair shall be completed within thirty (30) days of receipt of written notice If CCMC, its
successors or assigns, does not make such repairs as provided herein, the City may enter upon
the Project Sites and take whatever steps necessary to correct the non - compliant conditions and
to charge the costs of such repairs to CCMC, its successors and assigns.
2.05 In the event the City pursuant to this Agreement, performs any work of any nature, or
expends any funds in performance of said work for labor, use of equipment, supplies, materials,
and the like, CCMC, its successors or assigns, shall reimburse the City upon demand, within
thirty (30) days of receipt there of for all actual costs incurred by the City hereunder. In the event
that CCMC or its successors or assigns fails to pay the City for the costs incurred under this
section, the City shall impress a lien for the costs of such work upon other lots owned by CCMC.
Such lien shall be perfected by filing in the office of the County Clerk of Tarrant County, Texas
an affidavit identifying the property to be charged with such lien, stating the amount thereof, and
making reference to this Agreement.
2.06 In the event the City performs any work of any nature, or expends any funds in
performance of said work, on any of the areas requiring maintenance by CCMC as described in
Section 2.02, the City shall return those areas to their original condition upon completion of the
work.
SECTION 3
TERM OF AGREEMENT
This Agreement shall be recorded among the land records of Tarrant County, Texas, and shall
constitute a covenant running with the land, and shall be binding on CCMC, its administrators,
executors, assigns, heirs and any other successors in interest with respect to the Project Sites.
SECTION 4
TITLE AND CONSTRUCTION
4.01 The Parties acknowledge that the Improvements to be maintained as provided in this
Agreement are the subject of the Contracts and that all necessary reviews, approvals, consents,
inspections and modifications of such Improvements, if any, have been or will be made pursuant
to those Contracts. Subject to the provisions of the Contracts, CCMC shall retain ownership of
the landscaping plants, special sidewalk and pavement pavers located in the City right -of -way
pursuant to the Contracts.
SECTION 5
RIGHT OF ACCESS
5.01 City does not relinquish the right to control the management of the Project Sites, or the
right to enforce all necessary and proper rules for the management and operation of the same.
City through its Manager. Transportation and Public Works Director. police and fire personnel.
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and other designated representatives, has the right at any time to enter any portion of the Project
Sites (without causing or constituting a termination of the use or an interference of the use of the
Project Sites by CCMC) for the purpose of inspecting and maintaining the same and doing any
and all activities necessary for the proper conduct and operation of public property; provided this
shall not authorize or empower City to direct the activities of CCMC or assume liability for
CCMC's activities.
5.02 The City will have the right but not the obligation to make routine inspections of the
Project Sites. In the event the City observes non - compliance of an area, CCMC will be notified
and given a reasonable period of time to correct the area in accordance with Section 2.04 of this
Agreement.
5.03 CCMC shall inspect the areas described in Section 2.02 and submit an inspection report
to the City periodically as requested by the City. The purpose of the inspection is to assure safe
and proper functioning of the areas described in Section 2.02. The inspection shall cover the
entire areas described in Section 2.02, and portions thereof which need maintenance or
replacement to perform their design function shall be noted in the inspection report along with
the corrective actions to be taken.
SECTION 6
INDEMNIFICATION
6.01 CCMC, ITS SUCCESSORS OR ASSIGNS, AGREES TO DEFEND, INDEMNIFY
AND HOLD THE CITY, ITS OFFICERS, AGENTS, VOLUNTEERS, 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, INCLUDING DEATH, THAT MAY RELATE TO, ARISE OUT OF OR BE
OCCASIONED BY (i) CCMC'S BREACH OFANY OF THE TERMS OR PROVISIONS OF
THIS AGREEMENT OR (ii) ANY NEGLIGENT ACT OR OMISSION OR INTENTIONAL
MISCONDUCT OF CCMC, ITS OFFICERS, AGENTS, ASSOCL4 TES, EMPLOYEES,
CONTRACTORS (OTHER THAN THE CITY) OR SUBCONTRACTORS, RELATED TO
LANDSCAPE MAINTENANCE 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 CCMC
AND CITY, RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED COMPARATIVELY
IN ACCORDANCE WITH THE LA WS OF THE STATE OF TEXAS. NOTHING HEREIN
SHALL BE CONSTRUED AS A WAIVER OF THE CITY'S GOVERNMENTAL
IMMUNITYAS FURTHER PROVIDED BY THE LAWS OF TEXAS.
6.02 CCMC, its successors or assigns, co,.'enants and agrees that City shall in no way nor
under am circumstances be responsible for any property belonging to CCMC, its members.
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employees, agents, contractors, subcontractors, invitees, licensees, or trespassers, which may
be stolen, destroyed, or in any way damaged, and CCMC hereby indemnifies and holds
harmless City from and against any and all such claims. The City does not guarantee police
protection and will not be liable for any loss or damage sustained by CCMC, its members,
employees, agents, contractors, subcontractors, invitees, licensees, or trespassers on any of the
premises.
6.03 It is further agreed that the acceptance of this Release shall not constitute a waiver by
the City of Fort Worth of any defense of governmental immunity, where applicable, or any
other defense recognized by the Statutes and Court decisions of this State.
SECTION 7
INSURANCE
7.01 CCMC shall not commence work under this Agreement until it has obtained all the
insurance required under the contract and the City has approved such insurance. CCMC shall be
responsible for delivering to the City CCMC's certificate of insurance for approval. CCMC shall
indicate on the certificate of insurance whether or not its insurance covers subcontractors. The
insurance coverage required herein shall include the coverage of all subcontractors, or such
subcontractors shall provide to CCMC documentation of insurance reasonably equivalent to that
required of CCMC, according to the liability exposures related to the subcontractors services
and /or materials.
A. Commercial General Liability Insurance: CCMC shall procure and maintain during the
life of this contract and any extension period, a commercial general liability insurance
policy in the amount not less than $1,000,000 covering each occurrence.
B. Worker's Compensation Insurance: CCMC shall procure and maintain during the life of
this contract and any extension period, Workers' Compensation and Employers'
Liability insurance coverage with limits consistent with statutory benefits outlined in
the Texas Workers' Compensation Act (Art. 8308 — 1.01 et seq. Tex. Rev. Civ. Stat.)
and minimum policy limits for Employers' Liability of $100,000 each
accident/occurrence, $100,000 each disease per employee and $500,000 disease
policy limit.
C. Automobile Insurance: CCMC shall procure and maintain, during the life of this contract
and any extension period, a comprehensive bodily injury and property damage
automobile liability policy in the amount not less than $1,000,000.00 for each
accident. This policy shall cover any automobile used by CCMC within the scope of
this contract.
7.02 The insurance specified in 7.01. hereof shall comply with the following requirements:
a. The City of Fort Worth, its Officers, Employees, and Volunteers shall be named as an
Additional Insured on CCMC's Insurance Policies. The additional insured status
does not apply to Worker's Compensation policies.
b. Any failure on the part of the City to request required insurance documentation shall
not constitute a waiver of the insurance requirements specified herein.
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c. Each insurance policy shall be endorsed to provide the City a minimum thirty (30)
days notice of cancellation, non - renewal, and /or material change in policy terms or
coverage. A ten -day notice shall be acceptable in the event of non - payment of
premium.
d. Wavier of rights of recovery (subrogation) in favor of the City of Fort Worth.
e. Except for workers' compensation, all insurance programs and policies shall have
written approval of Risk Management.
f. If insurance policies are not written for specified coverage limits, an Umbrella or
Excess Liability insurance for any differences is required. Excess Liability shall
follow form of the primary coverage.
g. Unless otherwise stated, all required insurance shall be written on the "claims made
basis ".
h. The City, at its sole discretion, reserves the right to review the insurance
requirements and to make reasonable adjustments to insurance coverages and their
limits when deemed necessary and prudent by the City based upon changes in
statutory law, court decision or the claims history of the industry as well as of the
contracting party to the City of Fort Worth. The City shall be required to provide
prior notice of ninety (90) days.
i. Deductible limits, or self - funded retention limits, on each policy must not exceed
$10,000.00 per occurrence unless otherwise approved by the City.
j. City will not be responsible for the direct payment on insurance premium costs for
CCMC's insurance.
k. CCMC's insurance policies shall each be endorsed to provide that such insurance is
primary protection and any self - funded or commercial coverage maintained by City
shall not be called upon to contribute to loss recovery.
1. While the Agreement is in effect, CCMC shall report, in a timely manner, to the City
any known loss occurrence that could give rise to a liability claim or lawsuit or which
could result in a property loss.
m. Upon the request of City, CCMC shall provide complete copies of insurance policies
required by these contract documents.
n. Insurance certificates satisfactory to the City must be received before CCMC
can begin work. Failure to supply and maintain such insurance shall be a
breach of contract.
SECTION 8
LIABILITY
8.01 This Section intentionally omitted.
SECTION 9
INDEPENDENT CONTRACTOR
9.01 CCMC shall perform all work and services hereunder as an independent contractor and
not as an officer, agent, servant or employee of the City. CCMC shall have exclusive control of,
and the exclusive right to control the details of the work performed hereunder, and all persons
performing same, and shall be solely responsible for the acts and omissions of its officers,
agents, employees and subconsultants (or suhcontruclors). Nothing herein shall be construed as
creating a partnership or joint venture between the ('It,, an CCMC, its officers. agents.
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employees and subconsultants (or subcontractors), and doctrine of respondent superior has no
application as between the City and CCMC.
SECTION 10
LICENSES AND PERMITS
10.1 CCMC shall comply with all federal, state and local laws, rules and regulations as, well
as with all regulations, restrictions and requirements of the police, fire and health departments
now or hereafter in effect which are applicable to its operations. CCMC shall obtain and keep in
effect at its own cost and expense all licenses, permits, and taxes incurred or required in
connection with this Agreement and its operations hereunder.
SECTION 11
LIENS
11.01 CCMC, its successors or assigns, agrees that it shall do no act nor make any contract that
may create or be the foundation for any lien upon or interest in the City's property, and any such
contract or lien attempted to be created shall be void. Should any purported lien on City property
be created or filed, CCMC, its successors or assigns, at its sole expense, shall liquidate and
discharge same within thirty (30) days after notice from City to do so.
SECTION 12
TERMINATION AND DEFAULT
12.01 Subject to the provisions of Section 12.02 below, in the event CCMC fails to comply
with any of the terms and conditions of this Agreement, City shall have the right, and without
further notice, to declare this Agreement immediately terminated and to enter into and take full
possession of the Project Sites save and except such personal property and equipment as may be
owned by CCMC. In the event of such cancellation of this Agreement by the City, all rights and
privileges of CCMC hereunder shall cease and terminate.
12.02 CCMC shall be notified by written correspondence of CCMC's failure to comply with
any of the terms and conditions of this Agreement. CCMC shall have thirty (30) calendar days
from the date of written correspondence to correct deficiencies or, if such deficiencies are not
reasonably able to be corrected within thirty (30) calendar days, CCMC shall have, within that
period, begun work on such corrections and shall diligently purse them to completion.
12.03 Upon termination, the parties shall be released from all obligations contained in this
Agreement except for the indemnification requirements found in Section 6 of this Agreement.
12.04 Termination notice shall be considered rendered when placed in the United States Postal
Service for delivery to the other party in accordance with Section 14.
SECTION 13
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NON- DISCRIMINATION/DISABILITIES
13.01 CCMC, in its maintenance, occupancy, or use of said the Project Sites shall not
discriminate against any person or persons because of race, age, gender, religion, color, national
origin, sexual orientation, or disability.
SECTION 14
NOTICES
14.01 Any notice required shall be sufficient if deposited in the U.S. Mail, postage prepaid and
addressed to the other party as follows:
CITY
City of Fort Worth
Transportation & Public Works Department
George Behmenesh
1000 Throckmorton
Fort Worth, Texas 76102
With copy to:
City Attorney's Office
1000 Throckmorton
Fort Worth, Texas 76102
CCMC
Stan Davis
Cook Children's Medical Center
8017 th Avenue
Fort Worth, Texas 76104
With copy to:
Mr. Jason Williamson
Dunaway Associates, LP
550 Bailey Avenue, Suite 400
Fort Worth, Texas 76107
SECTION 15
VENUE AND JURISDICTION
15.01 This Agreement shall be governed by the laws of the State of Texas. Venue for any
action brought to interpret or enforce, or arising out of or incident to, the terms of this Agreement
shall be in Tarrant County, Texas or the United States District Court for the Northern District of
Texas, Fort Worth Division.
SECTION 16
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SUBLETTING AND ASSIGNING
16.01 CCMC agrees that it will not subcontract or assign all or any part of its rights, privileges
or duties hereunder without the prior written consent of the City and any attempted subcontract
or assignment of same without such prior consent of the City shall be void except that CCMC
may, without prior written consent, assign any or all of its rights, privileges or duties hereunder
to an affiliate (defined as an entity under common control with CCMC) or to an authorized
Public Improvement District whose boundaries include the Project Site ( "Allowed Assignment ").
In the event of an Allowed Assignment, CCMC will notify the City within thirty (30) days of
such assignment. If notice of an Allowed Assignment is not provided within thirty (30) days to
the City such assignment shall be void.
16.02 Subject to the limitations contained herein, the covenants, conditions and agreements
made and entered into by the parties hereunder are declared to be for the benefit of and binding
on their respective successors, representatives and permitted assigns, if any.
SECTION 17
WAIVER, SECTION HEADINGS, AND SEVERABILITY
17.01 It is agreed that in the event any covenant, condition or provision herein contained is held
to be invalid by any court of competent jurisdiction, the invalidity of such covenant, condition or
provision shall in no way affect any other covenant, condition or provision herein contained,
provided however, that the invalidity of any such covenant, condition or provision does not
materially prejudice either CCMC or City in connection with the rights and obligations contained
in the valid covenants, conditions or provisions of this agreement.
17.02. The waiver by the City of any default or breach of a term, covenant or condition of this
Agreement shall not be deemed to be a waiver of any other breach of that term, covenant or
condition or any other term, covenant or condition of this Agreement, regardless of when the
breach occurred.
17.03 The headings in this Agreement are inserted for reference only, and shall not define or
limit the provisions hereof.
SECTION 18
ENTIRE UNDERSTANDING
18.01 This written instrument including all Attachments, Schedules, and Exhibits attached
hereto constitutes the entire Agreement by the parties hereto concerning this Agreement and the
obligations of the parties and any prior or contemporaneous oral or written agreement that
purports to vary from the terms hereof shall be void. This Agreement cannot be modified or
amended without the written consent of all the parties hereto and attached and made a part of this
Agreement.
18.02 Neither this Agreement nor any provision hereof may be modified except by an
instrument in writing, signed by the parties. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
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IN WITNESS WHEREOF, the parties have executed this Agreement in multiples.
CITY OF FORT WORTH COOK CHILDREN'S MEDICAL CENTER
By: � �i�._... By:
Fernando Costa
Assistant City Manager
Date: 9 / Date:
Recommended for Approval:
�'J' W
ougl W. Wiersig
Director, T /PW
Approved as to Form and Legality:
ll 1
Douglas W. Black
Assistant City nay
NO M &C REQUIRED
Stan E. Davis
Vice President — Facilities and Ancillary
Services
Att 4ov..�..��n4
poFo 00000 a,
p X00 o0 1
�p G�
R nald Gonzales 0 0-4
Assistant City Secretary �¢ 0
00 00000 T b
OFFICIAL RE,C'0`i-p?
iy
Page 9 of 10
IN WITNESS WHEREOF, the parties have executed this Agreement in multiples.
CITY OF FORT WORTH
C
Fernando Costa
Assistant City Manager
Date:
Recommended for Approval:
George Behmanesh
Assistant Director, T /PW
Approved as to Form and Legality:
Douglas W. Black
Assistant City Attorney
Attest:
Ronald P. Gonzales
Assistant City Secretary
Page 9 of 10
COOK CHILDREN'S MEDICAL CENTER
By: • & 1t4
Stan E. Davis
Vice President — Facilities and Ancillary Services
Date:
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 j!&� V1 tCk d 5 , known to me to be the person
whose name is subscribed to the foregoing instrument, and acknowledged to me that he /she
executed the same for the purposes and consideration therein expressed, as the act and deed of
the City of Fort Worth, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this aOV-� day of
20_LL_
*44. t►nrp ALICE ESSA Notary Public t * STATE 4F TEXAS �Y • Exp.07 /09/2012
STATE OF TEXAS
COUNTY OF TARRANT
— cAt'- L.-, —
Notary Public in and for the State of Texas
BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas,
on this day personally appeared Stan E. Davis, known to me to be the person whose name is
subscribed to the foregoing instrument, and acknowledged to me that he /she executed the same
for the purposes and consideration therein expressed, as the act and deed of the Grantee, and in
the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of
,2 0.
9 P. EV01W
LS M� MM EXPIP
S
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Page 10 of 10
otary Public in and for the State m -- --
CITY sE- CRETAR I
FT. WORTH, TX
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NOTE.•
STREET TREES AND LANDSCAPING
TO BE PLACED IN RIGHT -OF -WAY.
AND MAINTAINED BY COOK
CHILDREN'S MEDICAL CENTER.
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MAINTENANCE
ODUNAWAY 0 20 40 AGREEMENT EXHIBIT
COOPER STREET PAVING IMPROVEMENTS
550 Bailey Avenue • Suite 1 - F • Fort Worth,
5.7437 Texas 76107 FOR COOK CHILDREN'S MEDICAL CENTER
Tel: 817.335.1121 •Fax: 817.335.7437 SCALE: 1�= 20 ft.
(TXREG. F -1114)
DUNAWAYq 2007389