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HomeMy WebLinkAboutContract 56173 CSC No.56173 COVID-19 TESTING SITE LICENSE AGREEMENT BETWEEN THE CITY OF FORT WORTH AND THE FORT WORTH TRANSPORTATION AUTHORITY THIS LICENSE AGREEMENT("Agreement')is made and entered into by and between the CITY OF FORT WORTH, a home rule municipal corporation of the State of Texas ("Licensee" or "Lily") and the FORT WORTH TRANSPORTATION AUTHORITY D/B/A TRINITY METRO, a regional transportation authority under Chapter 452 of the Texas Transportation Code ("Licensor'). WHEREAS, Licensor is the owner of a certain parking lot property near the North Side TEXRail Station and located at 3001 Decatur Ave., Fort Worth, TX 76106; and WHEREAS, due to the COVID-19 outbreak, the City has determined that extraordinary and immediate measures must be taken in order to ensure the health and safety of the citizens of the City of Fort Worth and the surrounding area; and WHEREAS, in order to minimize the spread of COVID-19, the City requires additional outdoor space to install temporary "pop-up" COVID-19 testing and vaccination sites throughout the City; and WHEREAS,in support of the City's mission to protect the health and safety of the citizens of Fort Worth and the surrounding area and to minimize the impacts of COVID-19, Licensor has offered to license a portion of Licensor's property to the City; and WHEREAS, City and Licensor wish to set forth the terms by which the City may use a portion of Licensor's property for installing and operating an outdoor COVID-19 testing or vaccination site. NOW,THEREFORE,in consideration of the covenants and agreements contained in this Agreement, Licensor and Licensee hereby agree as follows: Licensed Premises; Use of Premises. For and in consideration of the agreements of the parties expressed herein, Licensor does hereby grant to Licensee the use of a portion of outdoor space located at 3001 Decatur Ave.,Fort Worth, TX 76106 (the"Premises") as set forth in greater detail in Exhibit A,which is attached hereto and incorporated herein for all purposes. The Premises will be open to the public and will be used solely by Licensee as necessary to combat the continuing COVID-19 pandemic, including use as a temporary COVID-19 vaccination, testing, staging, or storage site(the"Testing Program').Licensor shall retain the right to use the Premises to the extent that Licensor's use does not interfere with Licensee's use of the Premises for the Testing Program. OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX COVID-19 Testing Site License Agreement between the City of Fort Worth and FWTA Page 1 of 11 1. Term and License Fee. 1.1. Term. Unless terminated earlier pursuant to the terms herein, the initial term of this Agreement shall be effective beginning on the loth day of August, 2021 ("Effective Date") and ending on February 9th, 2022 ("Term"). The City will provide COVID-19 testing at the Premises in accordance with the schedule set forth in Exhibit B, which is attached hereto and incorporated herein for all purposes, and at other dates and times as may be agreed upon by the parties. The Term may be extended by the written mutual agreement of the parties. 1.2. License Fee. Nothing herein shall constitute an obligation of City funds. Neither party shall owe any amount of money for any reason whatsoever to the other party for services rendered in connection with this License Agreement. City shall not be liable nor owe any payment, fee, cost, penalty, or money for any other reason whatsoever to Licensor. City and Licensor expressly agree and stipulate that this License Agreement is based on valuable consideration and an exchange of promises that will be independently beneficial to both parties. Specifically, Licensor agrees that the City will provide a benefit to Licensor by encouraging the health and well- being of citizens in the City of Fort Worth and the surrounding area. Licensor has accepted this as valuable consideration for its obligations under this License Agreement. Additionally,City agrees that the Licensor will provide a benefit to City by providing the City with the use of the Premises in accordance with this License Agreement. 2. Licensor's Duties and Responsibilities. In addition to any other duties and responsibilities set forth in this License Agreement, Licensor shall: 2.1. If reasonably possible, provide restroom facilities for Licensee staff, contractors, volunteers, and partners. 2.2. Provide parking at the Premises sufficient to serve the purpose of the Testing Program, including, but not limited to,parking for City staff, contractors, and partners. 2.3. Permit City to bring into the Premises any equipment, including signage, and supplies reasonably necessary to further the purposes of the Testing Program. 2.4. If necessary,provide staff to lock and unlock the Premises and arm and disarm any security system. 2.5. Designate a Licensor employee to serve as the point of contact for logistic and reporting requirements. The initial point of contact shall be: Wayne Gensler Email: Wayne.Gensler@ridetm.org Phone: 817.215.8000 COVID-19 Testing Site License Agreement between the City of Fort Worth and FWTA Page 2 of 11 2.6. As soon as is reasonably practical, notify Licensee,through its point of contact, of any unforeseen closure of the Premises. 2.7. Allow Licensee to photograph, video, graphically depict and publicly display the Premises and other documentation of the Testing Program for any non-commercial purpose whatsoever. 2.8. Notify Licensee, through its point of contact, of all complaints received related to Licensee's use of the Premises. 3. Licensee's Duties and Responsibilities.In addition to any other duties and responsibilities set forth in this License Agreement, Licensee shall: 3.1. Manage and operate all aspects of the Testing Program and provide security and traffic control for the Testing Program in compliance with all laws, in a safe and neat condition, and as otherwise deemed reasonably necessary in the sole judgement of the Licensee. 3.2. Provide a Testing Program Coordinator to help oversee implementation and supervision of the Testing Program and work collaboratively with Licensor in the delivery of the Testing Program services. Among other things, City's Testing Program Coordinator will communicate with Licensor on issues related to the Testing Program, including the installation and removal of any City equipment necessary for the operation of the Testing Program. 3.3. Designate a point of contact and Testing Program Coordinator for Testing Program administration and logistics. The initial point of contact and Testing Program Coordinator shall be: Cody Whittenburg Email: Cody.Whittenburg@fortworthtexas.gov Phone: 817.392.5455 3.4. Each day, assemble and install all necessary equipment for the operation of the Testing Program and remove all equipment and clean-up before leaving the Premises. 3.5. Upon the conclusion of the Term,Licensee shall return and restore the Premises to their condition upon the Effective Date,reasonable wear and tear excepted. 4. Condition of the Premises. LICENSEE EXPRESSLY ACKNOWLEDGES AND AGREES IT HEREBY ACCEPTS THE PREMISES,AS IS,WHERE IS,AND WITHOUT ANY WARRANTIES OF WHATEVER NATURE, EXPRESS OR IMPLIED, IT BEING THE INTENTION OF THE LICENSOR AND LICENSEE TO EXPRESSLY NEGATE AND EXCLUDE ALL WARRANTIES EXPRESS OR IMPLIED, IN FACT OR BY LAW, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTY OF SUITABILITY, AND THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE,CONTAINED IN OR CREATED BY ANY APPLICABLE LAW OF THE STATE OF TEXAS. COVID-19 Testing Site License Agreement between the City of Fort Worth and FWTA Page 3 of 11 5. Security Deposit. Licensor and Licensee each acknowledge and agree that no security deposit for the Premises has been received by the Licensor from Licensee, and therefore, the Licensor shall have no obligation to refund any such amounts to Licensee upon the termination of this Agreement. 6. Utilities and taxes. All utilities and taxes related to the Premises will be paid by the Licensor. 7. Repairs and Maintenance. If deemed necessary or desirable by Licensor, any such repairs(including structural repairs) or general maintenance shall be Licensor's sole responsibility and expense. Licensee shall maintain the Premises as necessary to serve Licensee's purposes hereunder. Notwithstanding the foregoing, Licensor shall not be obligated to make any repair necessitated by the negligence of Licensee or by any breach of this Agreement by Licensee. Notwithstanding anything to the contrary,Licensee shall be liable for any damage to the Premises caused by Licensee or its employees, agents, invitees, or representative's use or operation of the Premises pursuant to this Agreement. 8. Alterations and Improvements. Licensee shall make no alterations or improvements to the Premises without the prior written consent of the Licensor. Any Licensee improvements approved by the Licensor and made by Licensee after the Effective Date which remain on the Premises after the termination of this Agreement may become the property of the Licensor and may be disposed of as the Licensor may determine with no liability or obligation to Licensee. Alternatively, Licensor may instruct Licensee to remove such improvements and return the Premises to their prior condition. COVID-19 Testing Site License Agreement between the City of Fort Worth and FWTA Page 4 of 11 9. Insurance. 9.1. The Licensor shall have no contractual obligation to insure the Premises or any of Licensee's personal property located thereon or therein. 9.2. Licensee is a self-funded entity and as such may not maintain a commercial liability insurance policy to cover premises liability. Damages for which Licensee would ultimately be found liable would be paid directly and primarily by the Licensee and not by a commercial insurance company. 10. Indemnification. Licensee, to the extent allowed by Texas law and without waiving its sovereign immunity, agrees to defend, indemnify and hold harmless Licensor, its officers, agents and employees from and against any and all claims, demands, causes of action, loss, damage, liabilities, costs and expenses (including attorney's fees and court costs) of any and every kind or character,known or unknown, fixed or contingent, for personal injury (including death),property damage or other harm for which recovery of damages is sought or suffered by any person or persons, including claims based on strict liability, arising out of or in connection with: (i) Licensee's actions or omissions, or the actions or omissions of its officers, agents, associates, employees,contractors, invitees, or subcontractors related to the existence of the Testing Program on the Premises; except that the indemnity provided for in this paragraph shall not apply to any liability resulting from the sole negligence of Licensor, its officers, agents, or employees or separate contractors, and in the event of joint and concurrent negligence of both Licensor and Licensee, responsibility and indemnity, if any, shall be apportioned comparatively. Nothing contained herein shall ever be construed so as to require Licensee to assess, levy and collect any tax to fund its obligations under this paragraph. Article XI Section 5 of the Texas Constitution provides that a city is prohibited from creating a debt unless the city levies and collects a sufficient tax to pay the interest on the debt and provides a sinking fund. The City of Fort Worth has not and will not create a sinking fund or collect any tax to pay any obligation created under this section. 11. Assignment or Encumbrance. 11.1. Without the prior written consent of the Licensor, which may be withheld in the Licensor's sole discretion,Licensee may not mortgage,pledge,encumber or assign this Agreement or sublet the Premises, in whole or in part, to any person, firm, or corporation. Any attempted sublease or assignment without such consent shall be void and of no effect. 11.2. Licensee agrees to prevent any mechanic's, materialmen's, laborer, or any other lien from being placed upon all or any portion of the Premises or improvements thereto. In addition to any other indemnity obligations of Licensee herein, Licensee agrees to hold harmless the Licensor Indemnified Parties from and against any and all liabilities for damages occasioned by such liens,to the extent allowed by law. 12. Defaults and Remedies. COVID-19 Testing Site License Agreement between the City of Fort Worth and FWTA Page 5 of 11 12.1. Licensee's failure to perform or observe any covenant or condition of this Agreement shall, if continuing for thirty (30) days after written notice thereof to Licensee, constitute an"Event of Default"hereunder. 12.2. This Agreement and the term and estate hereby granted and the demise hereby made are subject to the limitation that if and whenever any Event of Default shall occur, the Licensor may, at its option, terminate this Agreement, in which event Licensee shall surrender possession of the Premises to the Licensor, and in connection therewith the Licensor may enter upon and take possession of the Premises and expel or remove Licensee after Licensee receives notice of such Event of Default. 12.3. In the event the Licensor elects to terminate this Agreement by reason of an Event of Default,then,notwithstanding such termination, Licensee shall be liable to the Licensor for the sum of any indebtedness accrued to the date of such termination. 13. Termination. Either party may terminate this agreement without cause by providing fourteen (14) days' written notice to the other party. 14. Notices. 14.1. All notices to the Licensor shall be sent to: Wayne Gensler,Vice President& Chief Operating Officer Trinity Metro 801 Cherry Street, Suite 850 Fort Worth, TX 76102 14.2. All notices to Licensee shall be sent to: City of Fort Worth Maribel Martinez Office of Emergency Management 200 Texas Street Fort Worth, TX 76102 With a copy to: City of Fort Worth City's Attorney Office 200 Texas Street Fort Worth, Texas 76102 COVID-19 Testing Site License Agreement between the City of Fort Worth and FWTA Page 6 of 11 14.3. Mailing of all notices under this Agreement shall be deemed sufficient if mailed certified, return receipt requested and addressed as specified herein to the other party's address. All time periods related to any notice requirements specified in this Agreement shall commence upon the terms specified in the section requiring the notice. In the absence of any such provision, notice shall be deemed effective on the earlier of actual receipt or three (3) days after mailing. 15. No Options or Rights of First Refusal. It is expressly agreed and acknowledged that this Agreement is limited to the Premises. Licensee shall have no rights to use from the Licensor any lands other than this Premises, and all options or rights of first refusal in and to any portion of the Premises, if any, are hereby expressly terminated. 16. Entire Agreement; Modification. This Agreement shall constitute the entire agreement of the Licensor and Licensee, and shall supersede any prior agreements, either oral or written, pertaining to the Premises. This Agreement cannot be changed or modified orally,but only by an instrument in writing signed by both parties. 17. Waivers. One or more waivers of any covenant, term, or condition of this Agreement by either the Licensor or Licensee shall not be construed as a waiver of a subsequent breach of the same covenant,term, or condition. The consent or approval by either the Licensor or Licensee to or of any act by the other party requiring such consent or approval shall not be deemed a waiver or render unnecessary consent to or approval of any subsequent similar act. 18. No Partnership. No provisions of this Agreement shall be deemed or construed to constitute a partnership or joint venture. Licensee shall have no express or implied right or authority to assume or create any obligations on behalf of or in the name of the Licensor. 19. Choice of Law; Venue. This Agreement and the relationship created hereby shall be governed by the laws of the State of Texas. Exclusive venue for any action brought to interpret or enforce the terms of this Agreement or for any breach shall be in Tarrant County, Texas. 20. Construction. Paragraph headings used in this Agreement are intended for convenience only and not necessarily to describe the intent of a particular Paragraph and therefore shall not be construed as limiting the effect of any provision of this Agreement. 21. No Waiver of Immunity. Nothing in this Agreement shall be deemed or construed as to waive either parry's sovereign or governmental immunities. 22. Charitable Immunity. Licensor agrees that if it is a charitable organization, corporations, entity or individual enterprise having, claiming or entitled to any immunity, exemption (statutory or otherwise) or limitation from and against liability for damage or injury to property or persons under the provisions of the Charitable Immunity and Liability Act of 1987, C.P. R.C., § 84.001 et seq., or other applicable law, that Licensor hereby expressly waives its right to assert or plead defensively any such immunity or limitation of liability as against Licensee. 23. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. COVID-19 Testing Site License Agreement between the City of Fort Worth and FWTA Page 7 of 11 24. Effectiveness. This Agreement shall be binding upon the Licensee only when signed by its Assistant City Manager and shall be of no force and effect until so executed. 25. Time is of the Essence. Time is of the essence of this Agreement and each and every provision hereof. (Signature Pages Follow) COVID-19 Testing Site License Agreement between the City of Fort Worth and FWTA Page 8 of 11 EXECUTED this day of , 2021. LICENSEE: LICENSOR: CITY OF FORT WORTH, a home-rule FORT WORTH TRANSPORTATION municipal corporation of the State of Texas AUTHORITY D/B/A TRINITY METRO I�c1.J4�G.� wAyne acnslev Valerie Washington(Aug 12,2021 21:05 CDT) WAyne GEnsler(Aug 11,202115:33 CDT) Valerie Washington Wayne Gensler City Manager Vice President& COO APPROVAL RECOMMENDED: L By: MaribelMa-T—(Aug 11,202121:41 CDT) Name: Maribel Martinez Title: Emergency Management Coordinator 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. -rG By. J in Cox(Aug 12,202119: CDT) Name: Justin Cox Grants Manager/OEM APPROVED AS TO FORM AND LEGALITY: By: _"z—. 4.7 Matthew Murray Assistant City Attorney ATTEST: � a a� on a Ronald P. Gonzales /•oij 00 4 Acting City Secretary �t�g g 2 d ° ° Form 1295: Not 00000 M&C Not Required fired ����nEXASoAp OFFICIAL RECORD CITY SECRETARY COVID-19 Testing Site License Agreement FT. WORTH, TX between the City of Fort Worth and FWTA Page 9 of 11 Exhibit"A" Premises WC 0 � r ' S r `M r •k • d l ti" u�l� i .CaS � — L9t5.S1U COVID-19 Testing Site License Agreement between the City of Fort Worth and FWTA Page 10 of 11 Exhibit`B" Schedule Times and dates may vary based on community need, facility availability, and mutual agreement of the parties. COVID-19 Testing Site License Agreement between the City of Fort Worth and FWTA Page 11 of 11