HomeMy WebLinkAboutContract 55258 SC No. 55258
FORT WORTH,
ADDENDUM TO SERVICE AGREEMENT
THIS ADDENDUM TO SERVICE AGREEMENT("Addendum")is made and entered into by
and between the CITY OF FORT WORTH ("City"), a home-rule municipal corporation of the State of
Texas, acting by and through its duly authorized representative, and KINGS III OF AMERICA, LLC a
Texas Limited Liability Company("Contractor"),acting by and through its duly authorized representative.
WHEREAS the City has purchased property commonly known as "100 Energy Way Plaza"
located at 100 Energy Way,Fort Worth, TX 76102(the"Property") from Hertz Fort Worth Energy Way,
LP(the"Seller"); and
WHEREAS, Seller and Contractor are currently parties to an agreement for the provision of
elevator monitoring services at the Property on a month-to-month basis (the"Service Agreement")which
is attached hereto as Exhibit A; and
WHEREAS Seller has agreed to assign and City has agreed to assume certain contracts,including
the Service Agreement,relating to the operation of the Property; and
WHEREAS, Contractor consents to the assignment of the Service Agreement to City and
Contractor agrees to the terms and conditions of this Addendum.
NOW, THEREFORE, in consideration of the covenants and agreements contained in this
Addendum, City and Contractor hereby agree as follows:
The Addendum to Service Agreement documents shall include the following:
1. This Addendum; and
2. Exhibit A—The Service Agreement(collectively,the"Agreement").
Notwithstanding any language to the contrary in the attached Service Agreement, City and
Contractor hereby stipulate by evidence of execution of this Addendum by a representative of each party
duly authorized to bind the parties hereto,that the parties hereby agree that the provisions in this Addendum
shall be applicable to the Service Agreement as follows:
1. Addendum Controlling. If any provisions of the attached Service Agreement conflict
with the terms herein, are prohibited by applicable law, or conflict with any applicable rule,
regulation or ordinance of City,the terms in this Addendum shall control.
2. References. City and Contractor agree that any references to the Owner in the Service
Agreement shall be construed to mean the City of Fort Worth and that all rights, benefits, duties and
obligations of Owner shall inure to the City as if the Service Agreement were originally executed between
City and Contractor,except to the extent modified by this Addendum. City and Contractor also agree that
all rights,benefits,duties,and obligations of Contractor in the Service Agreement shall inure to Contractor
OFFICIAL RECORD
Addendum to Service Agreement CITY SECRETARY
FT. WORTH, TX
City Secretary Contract No.
as if the Service Agreement were originally executed between City and Contractor, except to the extent
modified by this Addendum. Section 210) of the Service Agreement is hereby deleted and shall have no
force or effect.
3. Term. The Agreement shall become effective upon the signing of the Agreement (the
"Effective Date") and shall expire 30 days after the Effective Date (the "Expiration Date"), unless
terminated earlier in accordance with the provisions of this Agreement. The Agreement shall renew
automatically under the same terms and conditions for successive 30-day periods,each a"Renewal Term,"
unless City or Contractor provides the other party with notice of non-renewal at least 30 days before the
expiration of a Renewal Term or unless terminated as provided herein.
4. Compensation. City shall pay Contractor in accordance with the fee schedule or pricing
included in the Service Agreement and in accordance with the provisions of this Agreement. In no event
shall the total payment made under this Agreement by City to Contractor exceed the amount of Fifty
Thousand Dollars ($50,000.00)per year. Contractor shall not perform any additional services or bill for
expenses incurred for City not specified by this Agreement unless City requests and approves in writing the
additional costs for such services. City shall not be liable for any additional expenses of Contractor not
specified by this Agreement unless City first approves such expenses in writing.
5. Termination.
a. Convenience. Either City or Contractor may terminate the Agreement at any time
and for any reason by providing the other party with 30 days written notice of termination.
b. Breach. If either party commits a material breach of the Agreement, the non-
breaching Party must give written notice to the breaching party that describes the breach in
reasonable detail. The breaching party must cure the breach ten(10) calendar days after receipt of
notice from the non-breaching party,or other time frame as agreed to by the parties.If the breaching
party fails to cure the breach within the stated period of time, the non-breaching party may, in its
sole discretion, and without prejudice to any other right under the Agreement, law, or equity,
immediately terminate this Agreement by giving written notice to the breaching party.
C. Fiscal Funding Out.In the event no funds or insufficient funds are appropriated by
City in any fiscal period for any payments due hereunder, City will notify Contractor of such
occurrence and the Agreement shall terminate on the last day of the fiscal period for which
appropriations were received without penalty or expense to the City of any kind whatsoever,except
as to the portions of the payments herein agreed upon for which funds have been appropriated.
d. Duties and Obligations of the Parties. In the event that the Agreement is terminated
prior to the Expiration Date, City shall pay Contractor for services actually rendered up to the
effective date of termination and Contractor shall continue to provide City with services requested
by City and in accordance with the Agreement up to the effective date of termination. Upon
termination of the Agreement for any reason, Contractor shall provide City with copies of all
completed or partially completed documents prepared under the Agreement.In the event Contractor
has received access to City information or data as a requirement to perform services hereunder,
Contractor shall return all City provided data to City in a machine readable format or other format
deemed acceptable to City.
6. Attorneys'Fees,Penalties,and Liquidated Damages. To the extent the attached Service
Agreement requires City to pay attorneys' fees for any action contemplated or taken, or penalties or
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City Secretary Contract No.
liquidated damages in any amount, City objects to these terms and any such terms are hereby deleted from
the Service Agreement and shall have no force or effect.
7. Law and Venue.The Agreement and the rights and obligations of the parties hereto shall
be governed by,and construed in accordance with the laws of the United States and state of Texas,exclusive
of conflicts of laws provisions. Venue for any suit brought under the Agreement shall be in a court of
competent jurisdiction in Tarrant County, Texas. To the extent the Service Agreement is required to be
governed by any state law other than Texas or venue in Tarrant County,City objects to such terms and any
such terms are hereby deleted from the Service Agreement and shall have no force or effect.
8. Sovereign Immunity.Nothing herein constitutes a waiver of City's sovereign immunity.
To the extent the Service Agreement requires City to waive its rights or immunities as a government entity;
such provisions are hereby deleted and shall have no force or effect.
9. Liability and Indemnification. To the extent the Service Agreement requires City to
indemnify or hold Contractor or any third party harmless from damages of any kind or character, City
objects to these terms and any such terms are hereby deleted from the Service Agreement and shall have
no force or effect.
1. LIABILITY-CONTRACTOR WILL BE LIABLE AND RESPONSIBLE
FOR ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE AND/OR
PERSONAL INJURY,INCLUDING DEATH, TO ANYAND ALL PERSONS, OFANY
KIND OR CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT
CAUSED BY THE NEGLIGENT ACT(S) OR OMISSION(S), MALFEASANCE OR
INTENTIONAL MISCONDUCT OF CONTRACTOR, ITS OFFICERS, AGENTS,
SERVANTS,EMPLOYEES, CONTRACTORS, OR SUBCONTRACTORS.
2. GENERAL INDEMNIFICATION - CONTRACTOR HEREBY
COVENANTS AND AGREES TO INDEMNIFY,HOLD HARMLESS AND DEFEND
CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND
AGAINST ANY AND ALL CLAIMS OR LAWSUITS OF ANY KIND OR
CHARACTER, WHETHER REAL OR ASSERTED, FOR EITHER PROPERTY
DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO
CONTRACTOR'S BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR
PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS,
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, TO THE
EXTENT CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS OR
MALFEASANCE OF CONTRACTOR, ITS OFFICERS, AGENTS, SERVANTS,
EMPLOYEES, CONTRACTORS, OR SUBCONTRACTORS.
3. INTELLECTUAL PROPERTY INDEMNIFICATION —
Contractor agrees to defend, settle, or pay, at its own cost and expense, any claim or
action against City for infringement of any patent, copyright, trade mark, trade
secret, or similar property right arising from City's use of the software and/or
documentation in accordance with this Agreement, it being understood that this
agreement to defend, settle or pay will not apply if City modifies or misuses the
software and/or documentation. So long as Contractor bears the cost and expense of
payment for claims or actions against City pursuant to this section, Contractor will
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City Secretary Contract No.
have the right to conduct the defense of any such claim or action and all negotiations
for its settlement or compromise and to settle or compromise any such claim;
however, City will have the right to fully participate in any and all such settlement,
negotiations, or lawsuit as necessary to protect City's interest, and City agrees to
cooperate with Contractor in doing so. In the event City, for whatever reason,
assumes the responsibility for payment of costs and expenses for any claim or action
brought against City for infringement arising under this Agreement, City will have
the sole right to conduct the defense of any such claim or action and all negotiations
for its settlement or compromise and to settle or compromise any such claim;
however, Contractor will fully participate and cooperate with City in defense of such
claim or action.City agrees to give Contractor timely written notice of any such claim
or action,with copies of all papers City may receive relating thereto.Notwithstanding
the foregoing, City's assumption of payment of costs or expenses will not eliminate
Contractor's duty to indemnify City under this Agreement. If the software and/or
documentation or any part thereof is held to infringe and the use thereof is enjoined
or restrained or, if as a result of a settlement or compromise, such use is materially
adversely restricted, Contractor will, at its own expense and as City's sole remedy,
either: (a) procure for City the right to continue to use the software and/or
documentation; or (b) modify the software and/or documentation to make it non-
infringing, provided that such modification does not materially adversely affect
City's authorized use of the software and/or documentation; or (c) replace the
software and/or documentation with equally suitable, compatible, and functionally
equivalent non-infringing software and/or documentation at no additional charge to
City; or(d)if none of the foregoing alternatives is reasonably available to Contractor
terminate this Agreement, and refund all amounts paid to Contractor by City,
subsequent to which termination City may seek any and all remedies available to City
under law.
4. ENVIRONMENTAL INDEMNIFICATION - Contractor does hereby
release,indemnify,reimburse,defend and hold harmless the City of Fort Worth from
and against any and all environmental damages and the violation of any and all
environmental requirements resulting from the cleaning, handling, collection,
transportation,storage and disposal of hazardous waste by contractor resulting in an
act of omission of environmental violation. Environmental Damages shall mean all
claims, judgments, damages, losses, penalties, fines, liabilities (including strict
liability),encumbrances,liens,costs,and expenses of investigation and defense of any
claim, whether or not such claim is ultimately defeated, and of any good faith
settlement or judgment,of whatever kind or nature,contingent or otherwise,matured
or unmatured, foreseeable or unforeseeable, including without limitation reasonable
attorney's fees and disbursements and consultant's fees, any of which are incurred as
a result of handling,collection,transportation,storage,disposal,treatment,recovery,
and/or reuse of waste pursuant to this contract, or the existence of a violation of
environmental requirements pertaining to, and including without limitation:
Damages for personal injury and death, or injury to property or natural resources;
Fees incurred for the services of attorneys, consultants, contractors, experts,
laboratories and all other costs in connection with the investigation or remediation of
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City Secretary Contract No.
such wastes or violation of environmental requirements including, but not limited to,
the preparation of any feasibility studies or reports of the performance of any
cleanup, remediation, removal, response, abatement, containment, closure,
restoration or monitoring work required by any federal, state or local governmental
agency or political subdivision, or otherwise expended in connection with the
existence of such wastes or violations of environmental requirements, and including
without limitation any attorney's fees, costs and expenses incurred in enforcing this
contract or collecting any sums due hereunder; and liability to any third person or
governmental agency to indemnify such person or agency for costs expended in
connection with the services provided under this agreement.
10. Confidential Information. City is a government entity under the laws of the State of
Texas and all documents held or maintained by City are subject to disclosure under the Texas Public
Information Act. To the extent the Service Agreement requires that City maintain records in violation of
the Texas Public Information Act, City hereby objects to such provisions and such provisions are hereby
deleted from the Agreement and shall have no force or effect.In the event there is a request for information
marked Confidential or Proprietary, City shall promptly notify Contractor. It will be the responsibility of
Contractor to submit reasons objecting to disclosure of the information. A determination on whether such
reasons are sufficient will not be decided by City,but by the Office of the Attorney General of the State of
Texas or by a court of competent jurisdiction.
11. No Boycott of Israel. If Contractor has fewer than 10 employees or this Agreement
is for less than $100,000,this section does not apply. Contractor acknowledges that in accordance with
Chapter 2271 of the Texas Government Code, the City is prohibited from entering into a contract with a
company for goods or services unless the contract contains a written verification from the company that it:
(1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. The terms
"boycott Israel" and "company" has the meanings ascribed to those terms in Section 2271 of the Texas
Government Code. By signing this Agreement, Contractor certifies that Contractor's signature
provides written verification to the City that Contractor: (1)does not boycott Israel; and(2)will not
boycott Israel during the term of the Agreement.
12. Immigration Nationality Act. Contractor will verify the identity and employment
eligibility of its employees who perform work under this Agreement,including completing the Employment
Eligibility Verification Form(I-9). Upon request by City, Contractor will provide City with copies of all
I-9 forms and supporting eligibility documentation for each employee who performs work under this
Agreement. Contractor will adhere to all Federal and State laws as well as establish appropriate procedures
and controls so that no services will be performed by any Contractor employee who is not legally eligible
to perform such services. CONTRACTOR WILL INDEMNIFY CITY AND HOLD CITY
HARMLESS FROM ANY PENALTIES,LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF
THIS PARAGRAPH BY CONTRACTOR, CONTRACTOR'S EMPLOYEES,
SUBCONTRACTORS,AGENTS, OR LICENSEES. City,upon written notice to Contractor,will have
the right to immediately terminate this Agreement for violations of this provision by Contractor.
13. Right to Audit. Contractor agrees that City shall, until the expiration of three (3) years
after final payment under the Agreement, have access to and the right to examine any directly pertinent
books, documents, papers and records of Contractor involving transactions relating to the Agreement.
Contractor agrees that City shall have access during normal working hours to all necessary Contractor
facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance
with the provisions of this section. City shall give Contractor reasonable advance notice of intended audits.
Addendum to Service Agreement Page 5 of 9
City Secretary Contract No.
14. Electronic Signatures. This Agreement may be executed by electronic signature, which
will be considered as an original signature for all purposes and have the same force and effect as an original
signature.For these purposes,"electronic signature"means electronically scanned and transmitted versions
(e.g.via pdf file or facsimile transmission)of an original signature,or signatures electronically inserted via
software such as Adobe Sign.
15. Severability. If any provision of this Agreement is held to be invalid, illegal or
unenforceable,the validity, legality and enforceability of the remaining provisions will not in any way be
affected or impaired.
16. Force Majeure. City and Contractor will exercise their best efforts to meet their respective
duties and obligations as set forth in this Agreement,but will not be held liable for any delay or omission
in performance due to force majeure or other causes beyond their reasonable control, including, but not
limited to, compliance with any government law, ordinance, or regulation; acts of God; acts of the public
enemy; fires; strikes; lockouts; natural disasters; wars; riots; epidemics or pandemics; government action
or inaction; orders of government; material or labor restrictions by any governmental authority;
transportation problems;restraints or prohibitions by any court,board,department,commission,or agency
of the United States or of any States;civil disturbances;other national or regional emergencies;or any other
similar cause not enumerated herein but which is beyond the reasonable control of the Party whose
performance is affected(collectively, "Force Majeure Event"). The performance of any such obligation is
suspended during the period of, and only to the extent of, such prevention or hindrance, provided the
affected Party provides notice of the Force Majeure Event, and an explanation as to how it prevents or
hinders the Party's performance, as soon as reasonably possible after the occurrence of the Force Majeure
Event,with the reasonableness of such notice to be determined by the City in its sole discretion.The notice
required by this section must be addressed and delivered in accordance with Section 19 of this Agreement.
17. Non-Discrimination Covenant. Contractor, for itself, its personal representatives,
assigns, contractors, subcontractors, and successors in interest, as part of the consideration herein, agrees
that in the performance of Contractor's duties and obligations hereunder, it will not discriminate in the
treatment or employment of any individual or group of individuals on any basis prohibited by law.IF ANY
CLAIM ARISES FROM AN ALLEGED VIOLATION OF THIS NON-DISCRIMINATION
COVENANT BY CONTRACTOR, ITS PERSONAL REPRESENTATIVES, ASSIGNS,
CONTRACTORS, SUBCONTRACTORS, OR SUCCESSORS IN INTEREST, CONTRACTOR
AGREES TO ASSUME SUCH LIABILITY AND TO INDEMNIFY AND DEFEND CITY AND
HOLD CITY HARMLESS FROM SUCH CLAIM.
18. Signature Authority. The person signing this Agreement hereby warrants that they have
the legal authority to execute this Agreement on behalf of the respective party, and that such binding
authority has been granted by proper order,resolution, ordinance or other authorization of the entity. This
Agreement and any amendment hereto, may be executed by any authorized representative of Contractor.
Each party is fully entitled to rely on these warranties and representations in entering into this Agreement
or any amendment hereto.
19. Notices. Notices required pursuant to the provisions of this Agreement will be
conclusively determined to have been delivered when (1) hand-delivered to the other party, its agents,
employees, servants or representatives, (2) delivered by facsimile with electronic confirmation of the
transmission,or(3)received by the other party by United States Mail,registered,return receipt requested,
addressed as follows:
Addendum to Service Agreement Page 6 of 9
City Secretary Contract No.
To CITY: To CONTRACTOR:
City of Fort Worth
Attn: Assistant City Manager Kings III of America, LLC
200 Texas Street 751 Canyon Drive, Suite 100
Fort Worth,TX 76102-6314 Coppell, TX 75019
Facsimile: (817)392-8654 Facsimile: (972) 906-7031
With copy to Fort Worth City Attorney's Office at
same address
(signature page follows)
Addendum to Service Agreement Page 7 of 9
City Secretary Contract No.
Executed this the day of ,2021.
CITY:
City of Fort Worth Contract Compliance Manager:
By signing I acknowledge that I am the person
responsible for the monitoring and administration
-19 of this contract,including ensuring all
By'PlsJ.Cha a Jan 02110:43 CST performance and reporting requirements.
Name-61esus J. Chapa
Title: Deputy City Manager
A&n,H, Slu eao-
Date: By: Alan H.Shuror(Jan 19,202117:21 CST)
Name: Alan Shuror
Approval Recommended: Title:Sr.Administrative Services Manager
Approved as to Form and Legality:
Stovo cooko
By: Steve Cooke(Jan 20,202109:20 CST)
Name: Steve Cooke
Title: Property Management Director By: �`
�d4vnnp�� Name: Matthew A.Murray
Attest: a 5 F°00000' � Title: Assistant City Attorney
'Cy ° dd
a~° °G��0 Contract Authorization:
�v° o=d
By: 0M&C: Not required
p�4� °�, 040`mod Ordinance No. 24 61-04-2020
°°°°°
Name: Mary Kayser �TnEXAoo
Title: City Secretary
CONTRACTOR:
KINGS III OF AMERICA,LLC
ZGta ti/vP;is
By: Delta Morris(Jan 19,202117:00 CST)
Name:Delta Morris
Title: Ustomer Retention Manager
Date: 1/19/21
OFFICIAL RECORD
Addendum to Service Agreement CITY SECRETARY
FT. WORTH, TX
City Secretary Contract No.
EXHIBIT A-SERVICE AGREEMENT
Addendum to Service Agreement Page 9 of 9
SERVICE AGREEMENT
THIS AGREEMENT("Agreement")is made on the pate and effective as of the Effective Date by and between Owner and Contrac-
tor(each,a"Party"or collectively,the"Parties").Owner hires Contractor to provide and Contractor agrees to provide the Services
for the Property. For and in consideration of the mutual agreements of the Parties and other good and valuable consideration,the re-
ceipt and sufficiency of which are hereby acknowledged,the Parties,intending to be legally bound,agree as follows:
1. DeMltlotts.
Unless the context otherwise indicates,the following words or phrases have the respective meanings:
DATE: 01/A`2020 EFIFLCTNE 02/01/2020
DATA'.:
OWNIE : Hertz Fort Worth Energy Way,LP CONTRACTO14 Kings M Emergency Communications
ADDRESS% 100 Energy Way ADO74M 750 Canyon Drive,Suite 100
Fort Worth,TX 76102 Coppell,TX 75019
CONTACT: Name:Greg Wingate CONTACT: Name: Line Benavides
Address: 100 Energy Way,Suite 100 Address:Same as above
Fort Worth,TX 76102 Phone: 972-906-7095
Phone: 817-886-3109 Fax: 972-906-7031
Fax: N/A Email: lbenavkks@kingsifi.com
Email: gwingate@herbWuup.com
Wuup.com
TERM: gig,; A-Scope&Schedule of Work
(eback one) A- Compensation
Begm L)aix 02/01/2020 A- General Coalitions
End Dow: 01/31/2021 (month to month)
COhOTN13ATION: see Exhibit A pROPIRTY; Name: Energy Way
(&sii�hl&,NaMseD Address(es): 100 Energy Way
Fort Worth,TX 76 t02
SERVXT&: 13 Security D Janitorial D Laodatape O Parking/Gsrage Cl Window Cleaning
Sae,lgZW*A Malat. Manag.
0 Snow/lee E3 Uniform Rental Other:Elevator Monitioring
Removal
2. Term. 4. Sebedule of Service.
Unless terminated,this Agreement shall commence on the Begin Contractor agrees to perform the Work as indicated under
Date,continue for the Term,and will automatically be extended "Schedule of Work"on Exhibit A(the"Schedule"),
for successive 30-day periods alter the End Date. 5, Compensation.
3. Scope of Work. Owner agrees to pay Contractor compensation for the Work as
During the Term,Contractor agrees to perform the Services and indicated on Exhibit A(the"Compensation'.
supply those goods and materials("Good )as indicated under 6. Personnel and Contractor Employees.
"Scope of Work" on Exhibit A and pursuant to the General
Conditions, if any, attached as Exhibit A (collectively the (a) Contractor agrees to provide adequate personnel to cause
"Worst") in a safe, professional, and competent manner. 1f the completion of all Work in accordance with the Schedule. All
Goods arc supplied as part of the Work,the Goods shall be new such personnel shall be employees,subcontractors or independ-
and unused and shall be suitable for the purposes intended. ent contractors of the Contractor and, in this Agreement, are
referred to collectively as "Personnel" and individually as a
"Contractor Employee".
t
(b) All Personnel shall be trained and supervised by Can. (b) Contractor shall obtain and shall maintain,at its sale cost
tractor in accordance with accepted industry prior ixa,shall have and expense,at all times during the Term,all licenses,permits,
all required licenses and shall adhere to the reasonable rules and and other authorizations from governmental authorities or
regulations as established from time to time by Owner for the boards,necessary to enable it to perform the Work.
conduct of independent contractors om the Property Contractor (c) Contractor will diligently safeguard the health and well-
shall provide at all times competent,adequate,and knowledgea- being of all persons on or about the Property,including without
ble supervision of all Wort performed at the Property and all limitation all licensers,tenants,guests.and invitees of Owner in
t
Personnel performing or supplying the Work shall be competent,
adequate and knowledgeable. In the performance or supplying he performance or supplying of the Work. Contractor will
of the Work.neither Contractor oar any Personnel shall interfere promptly remove all.materials anchor equipment and Tools used
or with respect to the e
with the operations of fhvper rr °Y expended in the performance or supplying of tlx Wank
�. promptly upon the completion thereat or if applicable upon the
(c) Contractor shall provide ail hand tools, specialty tools, completion of the portion of the Work that will be performed or
and equipment(hereinafter called the"fools')for performance supplied at any particular time. During performance or supply-
or supplying of the Work. ing of the Work,Contractor shall take all necessary steps to se-
(d) The Parties agree that Owner shall not have the right to cure the equipment,materials,and Tools used in connection with
supervise, terminate or otherwise discipline any of the Person- the Work to prevent interference with respect to access to and
nel. However,Owner shall have the right to require or ask any use of the Property or the creation of any dangerous conditions
Contractor Employee to leave the Property or cease a particular for Any ot)>a Pig using the Property.
activity if Owner believes that such Contractor Employee is act- (d) Contractor will ensure that the Personnel will neither
ing or failing to act in a manner that might cause danger to lick lorry weapons of any type nor be under the influence of intoxi-
or property or is otherwise engaging in conduct that may be un- cants or controlled substances on or about the Property.
lawful or inconsistent with the character and nature of the Prop. g, iRsarance and Fidelity Bonds,
erty. Contractor further agrees that Owner shall have the right,
Con-
within 2 days of the Effective Date of Notice to the Contractor, (al Owner may, upon written notice thereof, require Can-
to require that any Contractor Employee not be permitted to en- tractor,at its sole cost and expense,to provide and maintain dur-
ter upon the Property in connection with the performance or ing the Term,a fidelity or surety bond in the minimum amount
supplying ofthe Work. of S1.000,000,on forms and with bonding companies acceptable
to Owner, under which the bonding company agrees to rei
(e) Contractor rmr-
agrees to adhere to Owner's Code of Busi- burse Owner for any logs, damage or expense which either of
ness Conduct and Ethics,if any. such parties may suffer or sustain due to the fi sud,dishonesty,
(f) Contractor shall use reasonably diligent efForts to verify forgery, theft, larceny, embezzlement, wrongful conversion or
that any Contractor Employee who has access to the Property in abstraction, misapplication, misappropriation or any other dis-
the performance of the Work does not have any record of crimi- honest or criminal act or omission of Contractor or Contractor's
nal convictions,other than minor traffic violations. No Contrae- employees or agents. Contractor shall submit such band to
for Employee that has any such record shall be admitted to the Owner for approval(if such a bond is required hereunder)prior
Property to perform any of the Work without the prior written to the commencement of any Work hereunder.
consent of Owner. Owner reserves the right to independently (b) Contractor and all Personal who or which are tubcon-
verify the background of any such individuals and to require tractors or independent contractors of the Contractor shall,until
Contractor to replace(or require any such Personnel to replace) completion of the Work,procure and maintain at its or their ex-
any Contractor Employee that does trot tweet the standards set
forth in this Agreement. Pam, thefollowing insurance coverages with a company or
companies acceptable to Owner that are authorized to do busi-
(g) Contractor shall not,and Contractor shall require that all new in the jurisdiction in which the Property is located in the
Personnel shall not,disclose any information regarding the oper- following minimum amounts:
ation of the Property,the Owner's operations therein,the opera- 1) b
tions of any occupant of the Property or the operations of Owner its which shall fully comply with all Sete andFederal require-
to which Contractor or such Personnel have access through per- meats applying to this insurance; which shall include Broad
formance of the Work hereunder,and which a reasonable person Form all states and voluntary compensation endorsements.
would consider to be confidential or proprietary, to any third (2) Employer's La�. Limits of not less than
parties or use such information for any purposes other than the S1,000,000 per accident,S1,000.000 per disease and S1,000,000
perfornmance.of Work hereunder,except to the extent that Con-
tractor or such Personnel reasonably believes that it is required policy limit on disease
to do so according to applicable law and promptly notifies Own (3) Comprehensive GoneW. Liability. (Including per-
er, sonal injury,owner's and contractor's protective Iiability,explo-
7. Compliance with!Laws;I.kuerrserde;Safety. sion, collapse and underground damage liability endorsement
(s) All of the Work shah) be performed in accordance with (commonly called X,C and U hazard),products,completed op-
licablc Federal State and local laws, codes, regulations moms' bleaker ooatractual and booed form property carnage
all applicable gu coverage, providing primary (and not contributing) coverage,
and ordinances including, but not limited to the Fair labor and containing cross-liability and severability of interest clauses)
Standards Act, the State and Federal Occupational Safety and Limit of Liability
(health Acts, and any and all Environmental Laws. All Wont Bodily Initry $3,000,000 each occurrence
shall meet or exceed local industry standards and practices.
2
S3,000,000 in the aggregate Laws(as defined below). If any claim,action or proceeding is
A Mpertv Demme $3,000,000 each occurrence brought against Owner by reason of any Claims,Contractor up.
$3,000,000 in the aggregate on written demand.from Owner shall defend the same at Con-
tractor's expense by counsel reasonably satisfactory to Owner.
(4) Comprehensive Automobile Liability (Including 10.Hazardous Materlals.
coverage for hired and non-owned automobiles; providing pri-
mary (and not contributing) coverage, and containing cross- Contractor shall identify to Owner. in advance of delivery of,
liability and severability of interest clauses) any Hazardous Materials incorporated in or associated with the
Li i f L' iI' Work provided hereunder and shall, in any event, use and dis-
pose of all such Hazu*w Materials utilized,transported, Ben-
Bodily In' S1,000,000 each person emted or released in connection with the Work, in accordance
S1,000,000 each occurrence with all Environmental Laws and any other applicable laws,
Pfr petty Damage $1,000,000 each ooemence rules and regulations. Prior to,and in connection with the deliv-
ery of any Hazardous Materials to the Property,the Contractor
(c) Contractors performing construction work, must also shall complete and deliver to Owner, in accordance with appli-
provide "all risk" builders risk property insurance for the full cable laws, rules and regulations, a material safety data sheet
replacement cost of the Work on a completed value basis,nam- with respect to such Hazardous Materials. "Hazardous Materi-
ing Owner as a loss payee,as its interest may appear,providing als"shall mean any substance which is controlled,regulated or
primary(and not contributing)coverage,and including a waiver prohibited under any Environmental law. "Environrnentani
of all rights of subrogation against.Owner. Law(s)"shall mean any local,State and Federal law relating to
(d) Contractor shall fumish to Owner, before commencing the environment and environmental conditions.
any Work,and annually if applicable,one or more cartificates of 11.Property of the Contractor.
insurance indicating(1)the types and amounts of insurance re-
quired under this Agreement, (2) the insurance company or All property of any kind,owned,hired, supplied the Con-
companies carrying said coverages,(3)the effective and expwi a- tractor or any Personnel,not intended to b b e incorporated into or
tion dates of the policies,(4)that Owner,any managing agent of nude a part of the Work shall be maintained whether off-site or
Owner and their respective corporate affiliates are named as ad- on-site,at the sole risk of Contractor or such Personnel and no
ditional insureds,(5)that 60 days'advance written notice will be such party shall have the right to look to or hold Owner or any
given to Owner of any materiad change in or cancellation of a managing agent of Owner responsible in any manner for its
policy and(6)that each carrier of any such insurance waives any safekeepin&
right of subrogation that it may have against Owner with respect 12.Independent Contractor.
to any loss covered by such insurance irrespective of the negli- (a) Contractor shall for all purposes under this Agreement
gence or willful misconduct of Owner, any managing agent of be an independent contractor of the Owner and not an agent or
Owner or any of their tenants, contractors, employees. guests, employee of either the Owner or any managing agent of Owner
invitees or agents, and nothing in this Agreement shall be construed as creating any
9. Indemnity, other relationship between the Parties including,but not limited
Contractor shall defend, indemnify, and hold Owner, and its to,a partnership,an agency relationship,or a joint venture. Nei-
directors, officers., employees, agents, contractors (other than ther Contractor nor Contractor's Personnel shall be deemod for
Contractor),invitees,concessionaires and licensees(collectively any purpose to be employees or agents of Owner or any manag-
'Ow oar's Agents'l harmless from and against any and all lia- ing agent of Owner.
bility, loss, claims, demands, damages or expenses, including (b) No Contractor Employee shall be entitled as a result of
attorneys' fees,whether for personal injury,theft,property dam- this Agreement to any of the benefits under any employee bene-
age or otherwise (collectively"Clalms'")arising from Contrac- fit plan Owner or any managing agent of Owner presently has in
tor's or Contractor's directors,officers,employees,agents,con- effect or may put into effect in the future. Contractor or its Per-
tractors. invitees, concessionaires and licensees (collectively sonnel, as the case may be, shall be solely responsible for the
"Contractor's Agents")performance or non-performance of the payment of any salaries, wages,benefits, and other compensa-
Work or firm any act or omission (whether negligent or inten- tion or payments due to any person or entity in connection with
tional)by Contractor or Contractor's Agents in or about the Pro- the Work(other than the payment of the Compensation} with-
ject, and shall further defend, indemnify and hold Owner and holding or payment of all applicable Federal, State and local
Owner's Agents harmless from and against any and all Claims personal income taxes, social security taxes, and other payroll
arising from any breach or default in the performance of any taxes with respect to the employees of Contractor or its Person-
obligation on Contractor's or Contractor's Agents' part to be nel,as well as any taxes or contributions imposed by applicable
performed hereunder, or to the extent caused by the negligence Federal or State unemployment or worker's compensation act(s).
or willful misconduct of Contractor or Contractor's Agents. 11m Contractor and its Personnel mgwtively have the sole authority
liability of the Contractor under the foregoing indemnity shall and responsibility to hire, fore, and otherwise control their re-
extend to and include any testing, response, and remediation spective employees.
costs incurred by Owner or any managing agent of Owner in 13.Publicity;Use of Marks
connection with a release,discharge or generation of Hazardous
Materials(as defined below)on,within or in the vicinity of,the Contractor shall not idea*,either expressly or by implication,
Property by the Contractor or any Personnel in violation of the Owner,any managing agent of Other or any their respective
terms of this Agreement or in violation of any Environmental corporate affiliates or use any of their trademarks,trade names,
3
service marks, other proprietary marks,or the Work performed 1S.I■specdon.
hereunder in any advertising,press releases,publicity matters or Contractor acknowledges that Contractor has inspected the
other promotional materials without the prior written consent of property, and is not aware of any conditions which could ad-
Owner and/or any managing agent of Owner. versely affect its ability to perform the Work in accordance with
14.1dentMcation Credentials. this Agreement and accepts the Property in its present condition.
Owner, at its sole discretion, may require Contractor and any 19.Defaslt.
Personnel to exhibit identification credentials to gain access to in the event that the Contractor fails to perform any of its obliga-
the Property. Contractor shall cause all of such parties to reimm tions under this Agreement and such failure continues for 10
all identification credentials to Owner upon the sooners of(a)the days after the Effective Bate of Notice from the Owner describ-
tetmination of such party or its employer with respect to the ing such failure, then, in addition to any other rights that the
Work, (b) the End Daft, or(c) the date of termination of this Owner may have hereunder to terminate this Agreement,Owner
Agreement shall have the right to gh pursue any remedies available at law or in
ULNotlees. equity against the Contractor for such failure.
All notices required or permitted under this Agreement shall 20.Terinfution of Agreement
be in writing and shall be delivered personally,by recognized (a) This Agreement may be terminated with respect to all or
overnight courier service,or by certified mail,return receipt re- a portion of the Property upon 30 days' written notice ftnm
quested to the Parties' addresses. Either party may notify the Owner to the Contractor at any time without Any cause whatso.
other in writing of a change of address for the purpose of this ever,including,without limitation,Owner's transfer of its own-
Section, which change of address shall be effective on the 10& ership interest in any or all of die Property.
day after the Effective Date of Notice. The tam "Effective (b) in addition, Owner may terminate this Agreement,as it
Date of Notlea<"shall mean and refer to(1) in the case of per-
sonal delivery,the date that a notice is actually delivered to the pertains to any or all of the Property,effective immediately upon
respective Party's address, (2) in the case of overnight courier giving written notice to Contractor that the(t)Contractor failed
service, I business day after the notice is deposited with such to timely and/or fully perform or supply the Work for any ma-
service for delivery on such following business day,and(3} in son,including,but not limited to labor disputes;(2)the Property
the case of certified mail, the first date of attempted delivery, suffered damage as a result of fire or other casualty;(3)Contrac-
refusal or rejection. tor's employees or their allies picketed any property including
1b.Assignment. any Property owned and/or managed by Owner or any of its af-
a} This A f ilistes resulting in the disruption in operation of said Property or
( greement, any portion of the Work or the Com- inconvenience to the tenants or occupants thereof;(4)Contractor
ppesation shall not be assignable by Contractor without Owner's is in default of this Agreement beyond any applicable notice and
prior written consent. cure provisions;or(5)Owner has transferred or will transfer its
(b) Without its consent but upon written notice to Contras interest in tie Property, Upon termination of the Agreement and
tor,Owner may assign this Agreement to the transferee of Own- subject to Subsection 21(i),neither patty shall have any obliga-
er's interest in any or all of the Property ("Transferee"), in tion to the other beyond the effective date of the termination.
which case, at Owner's election, Contractor shall enter into an (c) In the event this Agreement is terminated with respect to
agreement with the Transferee upon the same terms and condi- a portion,but not all,of the Property,the definition of Property
bons as stated in this Agreement,except that if Property includes and Scope of Services and Compensation sit forth in Exhibit A
more than one Building,the definition of Property Scope ofSer- shall be revised to remove the terminated Property and refer-
vices and Compensation set forth in Exhibit A shall be revised ences to the terminated Property in this Agreement shall be of no
to include only those Buildings in which Owner transferred an further force or effect after the effective date of such termina-
interest to the Ttansferee. If the Closing Date does not coincide lion
with the billing period established in Exhibit A for the trans- (d) If the termination of this Agreement is in connection
ferrei property, then Contractor shall prorate any changes for with Owner's transfer of an interest in the Property,then provid-
such month. In the event of any such transfer,Owner atoll,with ed that Owner has given Contractor written notice of such termi-
respect to each Property transferred,be automatically frond and nation,Owner may specify that the effective date of termination
relieved of all liability with respect to its performance under this shall not be a specified date,but shall be the data of the closing
Agreement which may accrue from an after the effective date of of such transfer of Owner's interest(the"Clnatag Date"), sub-
such transfer. ject to Owner's obligation to promptly notify Contractor of such
17.Lien Chums. closing when the same occurs.
Contractor shall not create or permit to remain against the 21.Other.
Property any lien, encumbrance, or other like Charge,either by (a) This Agreement shall be construed and interpreted under
action or inaction of Contractor or say Personnel. Contractor the laws of the state in which the Property is located and venue
shall sign, execute and deliver,or cause to be signed,executed shall lie in the County in which the Property is located. The
and delivered,such partial and final lien waivers with respect to titles of sections and subsections herein have been inserted as a
the Work as Owner shall from time to time requim Contractor matter of convenience of reference only and shall not control or
shall,at its own expense,within 10 days of written notice from affect the meaning or construction of any of the terms or provi-
Owner,cause any liens or outer encumbrances placed against the sions of this Agreement. All references to the singular shall in-
Property or any interest therein,arising out of the Wodc, to be clude the plural,and vice versa.
removed of record or otherwise bonded off,
4
(b) Except as otherwise expressly provided herein,all rights, (i) The agreements of the Contractor set forth in Section
powers, and privileges conferred hereunder upon the Parties 6(c),6(d} 9, 11, 13, 14, and 17 shall survive the expiration or
shall be cumulative and in addition to those other rights,powers, early termination of the Term.
and remedies hereunder and those available at law or in equity. 0) No parties other than Owner and Contractor shall be en-
All such rights, powers, and remedies may be exercised sepa- titled to rely on any parry's performance hereunder or to enforce
rately or at once,and no exercise of any right,power,or remedy the terms and provisions hereof
shall be oonstni ed to be an election of remedies or shall preclude
the future exercise of any or all other rights,powers,and rerne. M If either Party brings suit against the right of the other to
dies granted hereunder or available at law or in equity,except as recover any sums due under this Agreement,or for any breach of
expressly provided in this Agreement, any provision of this Agreement,or for any other relief under it,
then all costs and expenses of the same, including reasonable
(c) Neither the failure of either Party to exercise any power attorneys'fees and costs,incurred by the prevailin the
given such Party nor to insist upon strict compliance by the other suit shall be paid by the other Party. gY in
with its obligations under this Agreement,nor any custom (lj Owner And Contractor each hereby waive their respec-
ar practice of the Parties at variance with the terms of this rive rights to trial b
Agreement shall constitute a waiver of either Party's tight to y jury of any cause of action,claim,counter-
demand exact compliance with the terms of this Agreement claim,or cross-complaint in Any action,proceeding,and/or hear.
(d) This Agreement contains the entire agreement of the Par- ing brought by either Owner against Contractor, or CormacWr
t against Owner, as to any matter whatsoever arising out of or in
ties with respect to the Property and with respect to the Work, any way connected with this Agreement, the relationship of
and no representations, inducements, promises, or agreements, Contractor and Owner, Contractor's use or occupancy of the
oral or otherwise,between the parties not embodied or mcorpo- P%ject, any claim of injury or damage, or the enforcement of
rated in this Agreement by reference shall be of any force or any remedy under any law,statue, or regulation, emergency or
effect.The parties acknowledge that all prior agreements,repro- otherwise, now or hereafter in effect. However, Owner and
sentations and negotiations concerting the subject matter of this Con or agree that this waiver shall not be effective where the
Agreement, or collateral to it, are dammed superseded by the execution of this Agreement to the extent they are not Icgef of such waiver would be to invalidate in whole or in
mcorpo- P&M or to limit or impair in any manner any policy of insurance
rated in it and that this Agreement shall be deemed to be inte- in force for the benefit of Owner or Cont actor or to limit or im-
grated. The parties further acknowledge that if the tantss of this pair any rights,remedies or coverage afforded thmnmder.
Agreement conflict with the terms of any exhibits attached here-
to,the terns of this Agreement shall apply. (m)QEAC Certification. Contractor represents that it is not
e) This A now and had never been listed or named as,nor has it ever acted
( Agreement shall be binding upon and shalt insure to directly or indirectly for or on behalf or any person, group or
the benefit of the Parries and their respective personal represent- entity or nation named in any.Executive Order or by the United
atives,successors,and assigns. States Treasury Department or any other state or federal agency
(f) No amendment to this Agreement shall be binding on a as a terrorist, or a "Special Designated National and Blocked
Party unless the amendment is in writing and is executed by the Person," or other banned or blocked person, entity, nation, or
Party against whom enforcement of the amendment is sought. transaction pursuant to any law,order,rule,or regulation that is
(g) Time is of the essence ofthis Agreement. enforced or administered by the Office of Foreign Assets Con.
(h) This Agreement may be executed in several counter- trol("OFAC")or any other state or federal agency.
parts, each of which shall be deemed an original, and all such (n) The Exhibits attached to this.Agreement are incorporated
counterparts together shall constitute one and the same instru- in it, in the event of any inemsistency between such Exhibits
ment, and this Agreement,this Agreement shall control.
IN WITNESS WHEREOF,Owner and Contractor,have executed this Agreement under seal as of the day and year firm above writ-
ten.
CONTRACTOR; OWNER
KiNGs iIt EMERGENCY Commu cAmNs HERTZ FORT wORTmt ENERGY WAY,LP
A DELAWARE LmtTED PARTmsw
Y: By:
Name:
Its: in
Its:
S ✓io� � "
5
EXHIBIT A
SCOPE&SCHEDULE OF WORK
MGSII[[
ICY C01MMUNWJ41"
2020
Scope of Work
Acet # 46000
Kings III of America provides 24-hour monitoring/dispatch and full maintenance of the
emergency elevator phones system for the property listed below.
Pier 1 Imports Building—100 Energy Way suite 1.00 Fort Worth Texas 76102
Compensation
12 ADA Code Compliant emergency elevator phones at a monthly rate of$403.20 billed
quarterly plus applicable tax for at total annual cost billed quarterly of S1,3 U6.
Una Benavides 1/20/2020-CustMA Retention Cmrdinatar
6