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HomeMy WebLinkAboutContract 31749 CITY SECRETARY, CONTRACT NO. STATE OF TEXAS § COUNTY OF TARRANT § LICENSE AGREEMENT This LICENSE AGREEMENT is made and entered into this the day of jgra , 2005, by and between the CITY OF FORT WORTH, a home rule municipal corporation of the State of Texas, located within Tarrant, Denton, and Wise Counties, Texas (Hereinafter referred to as the "CITY") and THE CHILD CARE ASSOCIATES (also known as The Day Care Associates), a legally constituted non-profit entity, (hereinafter referred to as "CCA"). RECITALS WHEREAS, Child Care Associates is the owner of certain real property abutting certain real property owned by the City of Fort Worth consisting of 7 acres of dedicated parkland known as Lincoln Park; and WHEREAS, improvements consisting of fenced playground areas and playground equipment were placed and constructed by CCA at their North Fort Worth child care center for recreational purposes; and WHEREAS, it has recently been discovered that, although verbal approval was given by the Parks Advisory Board on January 21, 1971, no written agreement between the City and CCA was ever executed; and WHEREAS, the City has been requested to allow CCA to allow the encroachment to continue, said portion being integral to the continued use of the child care center for recreational purposes; and WHEREAS, the amount of space occupied by the playground and equipment is approximately .24 acres or 3.5 percent of the total parkland at Lincoln Park; WHEREAS, City agrees to permit the encroachment pursuant to the terms of this License Agreement; NOW THEREFORE, in consideration of the mutual covenants herein expressed, the parties agree as follows: AGREEMENT 1 SECTION 1. LICENSED PREMISES 1.01 For and in consideration of the rental payments to be paid under this license and the agreements f the parties expressed herein, Licensor does hereby grant to Licensee permission and license to maintain an encroachment consisting of fenced playground and playground equipment consisting of approximately 10,640 square feet on the City-owned property described as follows: All of Lot 11 and a portion of Lot 12 in Block 174B of the M.G. Ellis Addition which is approximately .24 acres of Lincoln Park more particularly described by Exhibit "A" that is attached hereto and made a part hereof. The property described shall be referred to herein as the "Licensed Premises." SECTION 2. RENTAL 2.01 Licensee shall pay Licensor an annual rental of One Dollar ($1.00), the first payment shall be due and payable upon execution of this License Agreement and thereafter on or before June 1 st of each annual license term. SECTION 3. TERM OF LICENSE AGREEMENT 3.01 The license term shall be for ten (10) years commencing June 1, 2005, and terminating May 31, 2015, unless a prior termination is effected by either party pursuant to the termination provisions expressed herein. Licensee, with the consent of the Licensor, may renew the License Agreement for two additional five (5) year terms upon written notice to Licensor prior to expiration of the primary term. The terms of this license shall continue to govern and control the relationship of the parties during any renewal period unless amended in writing by the parties and incorporated and attached to this Agreement. SECTION 4. TITLE AND CONSTRUCTION 4.01 Licensee agrees that Licensee has examined the Licensed Premises prior to the execution of this Agreement and is satisfied with the physical condition of the Licenses Premises. Licensee's taking possession of the Licensed Premises shall be conclusive evidence of its receipt of the Licensed Premises in a safe and sanitary condition and in good repair, except for those conditions which the Licensee provides City written notice of before the execution of this Agreement, and those conditions, if any, which Licensee could not be reasonably expected to identify. . Licensee hereby acknowledges that it has fully inspected the Licensed Premises and is relying solely upon its own investigation of the condition of the licensed premises and not on any information provided by the Licensor. Licensor shall deliver the Licensed Premises in an "AS- 2 IS" CONDITION WITH ALL FAULTS, AND WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED. 4.02 Licensor has not made, does not make, and specifically disclaims any representations, guarantees, covenants, agreements or warranties (express or implied) of any kind or character as to the nature, quality, condition, availability, merchantability, suitability or fitness of the licensed premises for any particular activity, use or purpose including without limitation those activities, uses or purposes contemplated herein. SECTION 5. MAINTENANCE 5.01 Licensee shall be solely responsible for the maintenance of the encroachments and that portion of the Licensed Premises that contain the encroachments at Licensee's sole cost and expense. Licensee shall comply with any City standards of maintenance and shall, at all times, maintain the licensed premises in a safe condition. 5.02 Licensee shall restore and yield said Licensed Premises, equipment, and all other properties belonging to the City back to City at the expiration or termination of the lease term of this Agreement in good or same condition as existed at the commencement of this Agreement and in which Licensee found them, ordinary wear and tear (including damage by acts of God or other causes beyond the control of Licensee) excepted. SECTION 6. IMPROVEMENTS, REPLACEMENTS, ADDITION, AND REMOVALS 6.01 Licensee will not do or permit to be done any injury or damage to any of the Licensed Premises, or part thereof, or permit to be done anything which will damage or change the finish or appearance of the Licensed Premises or the furnishings/equipment thereof or any other property belonging to the City by the erection or removal of equipment or any other improvements, alterations or additions. Licensee shall not commit nor allow any waste to be committed on the licensed premises, nor shall Licensee maintain, commit or permit the maintenance or commission of any nuisance on the licensed premises or use the licensed premises for any unlawful purpose. 6.02 Subject to ordinary wear and tear, Licensee will pay the costs of repairing (to its condition immediately preceding the occurrence of such damage) any damage which may be done to the Licensed Premises by any act of Licensee or any of Licensee's employees, agents, officers, or anyone visiting the Licensed Premises upon the invitation of the Licensee including the patrons of the attraction or function for which Licensee hereby is leasing the Licensed Premises. The costs of repairing any damage to the Licensed Premises shall be immediately due and payable by the Licensee upon Licensee's receipt of a written invoice from the City. Costs of repairing shall be those costs reasonably necessary to repair the damage to the Premises. 6.03 Licensee shall not construct any further improvements or structures on the licensed premises without the prior written consent of Licensor. 3 6.04 No decorative or other materials shall be nailed, tacked, screwed or otherwise physically attached to any part of the Licensed Premises or to any of the furnishings or fixtures of the City without the consent of the City. SECTION 7. RIGHT OF ACCESS 7.01 In leasing the Licensed Premises, City does not relinquish the right to control the management of the Licensed Premises, or the right to enforce all necessary and proper rules for the management and operation of the same. City, through its Manager, police and fire personnel and other designated representatives, has the right at any time to enter any portion of the Licensed Premises (without causing or constituting a termination of the privilege or an interference for the possession of the Licensed Premises by the Licensee) for any purpose, provided this shall not authorize or empower City to direct the activities of the Licensee or assume liability for Licensee's activities. 7.02 Licensor reserves the right to enter upon the licensed premises at all reasonable times for the purpose of inspecting the premises or otherwise using the premises, provided that any such entry does not conflict with Licensee's rights hereunder. SECTION 8. USE OF PREMISES, COMPLIANCE WITH LAW; EASEMENTS 8.01 Licensee covenants and agrees that it shall not engage in any unlawful use of the Licensed Premises. Licensee further agrees that it shall not permit its officers, agents, servants, employees, contractors, subcontractors, patrons, licensees or invitees to engage in any unlawful use of the Licensed Premises and Licensee immediately shall remove from the Premises any person engaging in such unlawful activities. Unlawful use of the Licensed Premises by Licensee itself shall constitute an immediate breach of this Lease. Licensee agrees to comply with all federal, state and local laws; all ordinances, rules and regulations of Licensor; all rules and regulations established by the Director; and all rules and regulations adopted by the City Council, as such laws, ordinances, rules and regulations exist or may hereafter be amended or adopted. If Licensor notifies Licensee or any of its officers, agents, employees, contractors, subcontractors, licensees or invitees of any violation of such laws, ordinances, rules or regulations, Licensee shall immediately desist from and correct the violation. 8.02 City assumes no responsibility for said personnel and Licensee hereby expressly releases and discharges City from any and all liability for any property damage or loss and/or personal injury, including death, caused by the negligence of said personnel which arises our of or in connection with, directly or indirectly (1) the occupancy and/or use of the Licensed Premises and (2) any and all activities conducted thereon that are sustained by reasons of occupancy of said Licensed Premises under this Agreement. Nothing herein shall be construed as creating principal/agent, or employer/employee relationship between the City and Licensee's subcontracted personnel. 4 8.03 Within thirty days of the execution of this Agreement, Licensee shall install at least one gate in the fenced area of the Licensed Premises. The gate(s) may be locked during the business hours of 6:00 a.m. to 6 p.m. Monday through Friday but shall remain open and unlocked during non-business hours of the Child Care Associates Center, to include weeknights after 6 p.m. and during all times on the weekends (Friday at 6 p.m, through Monday at 6 a.m.) to allow access by the general public to the Licensed Premises, including the park area and the playground equipment. 8.04 Licensee is responsible for insuring that the gates are unlocked and open during non- business hours as described in (a) above. Failure of the Licensee to unlock and open the gates during non-business hours shall be grounds for immediate termination of this Agreement. 8.05 At the execution of this Agreement or the installation of the fence, whichever occurs first, the Licensee shall provide the City a master key to all the locks on the fence gate(s) on the Licensed Premises. SECTION 9. EVENTS OF DEFAULT BY LICENSEE,REMEDIES OF CITY,AND TERMINATION 9.01 In the event it becomes necessary for the Licensor to utilize the licensed premises for any municipal purpose, Licensor, its sole discretion and for any cause, may terminate this Agreement by giving Licensee written notice of termination thirty days (30) days prior to the intended termination date. 9.02 In the event of breach of any of the terms and conditions of this Agreement by Licensee, Licensor may terminate this license by giving Licensee written notice of termination; provided, that Licensee shall have thirty (30) days opportunity to cure any such default from the date of such notice, and in the event such default is cured within said thirty (30) day period, this agreement will continue in effect. Termination of this Agreement will occur if the default continues by the defaulting party for a period of thirty (30) days after the notifying party informs the defaulting party in writing of the default and its intention to declare this Agreement terminated, except as otherwise set out in this Agreement. 9.03 In the event CCA fails or refuses to fully perform and satisfy all of its covenants and obligations, whether expressed or implied, the CITY may terminate this Agreement, enter and obtain possession of the premises and remove CCA without notice to CCA and without being deemed guilty of trespass and without any liability whatsoever on the part of the CITY. Such removal and termination shall not relieve or release CCA from any liability or obligation unto the CITY previously incurred under this lease agreement. CCA hereby grants a lien to the CITY upon all personal property belonging to CCA in or on the demised premises as a possessory pledge to secure the timely performance by CCA of all of its obligations hereunder. In the event of default by CCA, the CITY is and shall be empowered and authorized to seize and hold all of the personal property belonging to CCA in the above-described premises to secure such performance. Pursuant to said seizure, CITY is authorized to sell same at public or private sale and to apply the proceeds thereof first to pay the expenses of sale and to pay all amounts due the 5 CITY hereunder, holding the balance remaining, if any, subject any Order pertaining to CCA. A copy of this Agreement shall be the only warrant required. 9.04 In the event this Agreement is terminated, it shall be the duty of Licensee to remove any portions of the encroachment on the licensed premises, at Licensee's sole expense, within thirty (30) days if directed to do so by Licensor. If the Licensee shall fail to remove and restore the licensed premises, Licensor may retain title to equipment or proceed to perform such removal and restoration and may bill Licensee for the cost thereof, which bill for cost shall be paid within thirty (30) days of receipt by Licensee. Licensee agrees that it shall not be entitled to any reimbursement for the cost or value of any improvements, structures, or personal property located on the licensed premises and retained or removed by Licensor pursuant to this agreement. SECTION 10. INDEMNIFICATION 10.01 TO THE EXTENT PERMITTED BY LAW, CCA COVENANTS AND AGREES TO AND DOES HEREBY INDEMNIFY, HOLD HARMLESS AND DEFEND, AT ITS OWN EXPENSE, CITY, ITS OFFICERS, VOLUNTEERS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR PROPERTY LOSS OR DAMAGE AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF THE WORK AND SERVICES TO BE PERFORMED HEREUNDER BY CCA, ITS OFFICERS, AGENTS, EMPLOYEES, SUBCONTRACTORS, LICENSEES OR INVITEES,WHETHER OR NOT CAUSED, IN WHOLE OR IN PART, BY THE ALLEGED NEGLIGENCE OF THE OFFICERS, VOLUNTEERS, EMPLOYEES, OF THE CITY; TO THE EXTENT PERMITTED BY LAW, CCA LIKEWISE COVENANTS AND AGREES TO, AND DOES HEREBY, INDEMNIFY AND HOLD HARMLESS CITY FROM AND AGAINST ANY AND ALL INJURIES, DAMAGE, LOSS OR DESTRUCTION TO PROPERTY OF CITY DURING THE PERFORMANCE OF ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, WHETHER ARISING OUT OF IN WHOLE OR IN PART, ANY AND ALL ALLEGED ACTS OR OMISSIONS OF OFFICERS,OR EMPLOYEES OF CITY. 10.02 CCA and CITY agree to notify the other promptly upon the receipt of any claim or lawsuit brought in connection with any injury, death or damages on the premises. CCA and the CITY agree to make its officers, agents, and employees available at all reasonable times for any statements and case preparation necessary for the defense of any claims or litigation for which the CITY or CCA may be responsible hereunder. 10.03 Nothing herein shall be deemed to constitute a waiver of any immunity or affirmative defense, which may be asserted by CCA or the CITY as to any claim of any third party. 10.04 Nothing herein shall be construed in any manner, to create a cause of action for the benefit of any person not a party to this Agreement, or to create any rights for the benefit of any person not a party to this Agreement not otherwise existing at law. 6 SECTION 11. INSURANCE REQUIREMENTS 11.01 Prior to the time Licensee is entitled to any right of access to or use of the Licensed Premises and at the execution of this Agreement, Licensee shall procure, pay for and maintain the following insurance written by companies approved by the State of Texas and acceptable to City. The insurance shall be evidenced by delivery to City of executed certificates of insurance and/or certified copies of policies as determined by City. 11.02 Licensee covenants and agrees to obtain and keep in force during the term of this Agreement, Comprehensive General Liability Insurance, Including Personal Injury Liability, Independent Contractors Liability and Contractual Liability covering, but not limited to, the liability assumed under the indemnification provisions of this Agreement, with limits of liability for bodily injury (including death) and property damage of not less than One Million Dollars ($1,000,000). Coverage shall be a Combined Single Limit Per Occurrence basis and the policy shall include Broad Form Property Damage Coverage with an insurance company satisfactory to City. The City of Fort Worth shall be named as an Additional Primary Insured in the body of the policy (s), or in an Addendum thereto. Said insurance shall provide coverage for the claims arising from the condition of the Licensed Premises and the act(s) and omissions(s) of the officers, servants, or employees of the City. City reserves the right to review and adjust insurance requirements at any time during the term of this Agreement. 11.03 The insurance policy shall include the following: a. The term of insurance is for the duration of this Agreement, which includes the period from the right of access through the period allowed for removal of property; b. The policy shall require that thirty (30) days prior to the cancellation or any material change in coverage, a notice shall be given to City by certified mail; C. Insurers shall have no right of recovery or subrogation against the City of Fort Worth, it being the intention that the insurance policy shall protect all parties to the Agreement and be primary coverage for all losses covered by the policies; d. Company issuing the insurance policy shall have no recourse against the City of Fort Worth for payment of any premiums or assessments for any deductibles which all are at the sole risk of Licensee; e. The terms "Owner", "City" or City of Fort Worth shall include all authorities, Boards, Bureaus, Commissions, Divisions, Departments, and Offices of the City and the individual members, employees and agents thereof in their official capacities and/or while acting on behalf of the City of Fort Worth; f. Said insurance shall provide coverage for the condition of the Leased Premises and the act(s) and omissions(s) of the officers, servants, or employees of the City; and g. The policy clause "Other Insurance" shall not apply to any insurance coverage currently held by City, to any future coverage, or to City's self-insured retention of whatever nature. h. The City of Fort Worth shall be named as an Additional Primary Insured in the body of the policv (s), or in an Addendum thereto. Said insurance shall provide coverage for the claims arising from the condition of the Licensed 7 Premises and the act(s) and omissions(s) of the officers, servants, or employees of the City. 11.04 Licensee hereby waives subrogation rights for loss or damage against City, its officers, agents and employees for personal injury (including death), property damage or any other loss. 11.05 Licensee shall not do or permit to be done anything in or upon any portion of the Licensed Premises, or bring or keep anything therein or thereupon which will in any way conflict with the conditions of any insurance policy upon the Licensed Premises or any part thereof, or in any way increase the rate of fire insurance upon the Licensed Premises or on property kept therein, or in any way obstruct or interfere with the right of the other tenants of the Licensed Premises, or injure or annoy them. 11.06 The City may terminate this Agreement immediately upon the failure of the Licensee to provide acceptable documentation of insurance as required by this Agreement. SECTION 12. LIABILITY 12.01 CCA 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 CCA hereby expressly waives its right to assert or plead defensively any such immunity or limitation of liability as against City. SECTION 13. NON-DISCRIMINATION/DISABILITIES 13.01 CCA agrees that, during the use of the Premises, CCA will not subject anyone to discrimination in any way because of the person's race, color, sexual orientation, national origin, age, gender or handicap. No one can be excluded from the Premises or denied the benefits of the Premises because of person's race, color, sexual orientation, national origin, age, gender, or handicap. SECTION 14. SUBLETTING/ASSIGNING 14.01 CCA may not assign, transfer or otherwise convey any of its rights or obligations under this Agreement to any party without the prior written consent of the City, which consent shall not be unreasonably withheld or delayed, conditioned on (i) the prior approval of the assignee or successor and a finding by the City Council that the proposed assignee or successor is financially capable of completing this lease agreement and (ii) the proposed assignee or successor has executed a written agreement with the City under which it agrees to assume all covenants and 8 obligations of CCA under this Agreement, in which case such assignee or successor shall thereafter be deemed "[definition of other party" for all purposes under this Agreement. 14.02 This license shall be binding on the successors and lawful assignees or sublessees of Licensee and the successors of Licensor. Any person or entity using or occupying the licensed premises without a lawful assignment or sublicense shall be subject to all the responsibilities and liabilities of Licensee set forth hereunder and shall be subject to all the provisions regarding termination and eviction set forth herein. Any such person or entity shall be deemed to be an agent or representative of Licensee and shall be deemed to have notice of the terms, covenants, and conditions of this license. SECTION 15. NOTICES 15.01 All notices required or permitted under this Agreement may be given to a party personally, by facsimile, or by mail, addressed to such party at the address stated below or to such other address as one party may from time to time notify the other in writing. If more than one Licensee is named in this contract, service of any notice on any one of the Licensees shall be deemed service on all Licensees. Any notice so given shall be deemed to have been received when deposited in the United States mail so addressed with postage prepaid. All notices to Licensor shall be sent to the following address(s): CITY OF FORT WORTH DIRECTOR OF PARKS AND COMMUNITY SERVICES City of Fort Worth 4200 South Freeway, Suite 2200 Fort Worth, Texas 76115 With a copy to: Sarah Fullenwider Assistant City Attorney 1000 Throckmorton Street Fort Worth, Texas 76102 Facsimile Number: 817-871-8359 All notices to Licensee shall be sent to the following address(s): Child Care Associates John Whitcamp, President Child Care Associates P.O. Box 7935 Fort Worth, Texas 76111 9 SECTION 16. INDEPENDENT CONTRACTOR 16.01 It is expressly understood and agreed that the Licensee is an independent contractor and not as an officer, agent, servant or employee of the City; that Licensee shall be solely responsible for the acts and omissions of its officers, agents, employees, contactors and subcontractor; that the doctrine of respondeat superior shall not apply as between City and Licensee, its officers, agents, employees, contractors and subcontractors; and that nothing herein shall be construed as creating a partnership or joint enterprise between City and Licensee. No person performing any of the work and services under this License Agreement hereunder shall be considered an officer, agent, servant, or employee of the City. 16.02 The term "Licensee" as used herein shall also include the agents, representative, employees, invitees, and licensees of Licensee. SECTION 17. CONDEMNATION 17.01 If, by reason of Force Majeure as hereinafter defined, any party shall be rendered wholly or partially unable to carry out its obligations under this Agreement, then such party shall give written notice of the particulars of such Force Majeure to the other party within a reasonable time after the occurrence thereof. The obligations of the party giving such notice, to the extent affected by such Force Majeure, shall be suspended during the continuance of the inability claimed and for no longer period, and any such party shall be in good faith exercise its best efforts to remove and overcome such inability. 17.02 The term "Force Majeure" as utilized herein shall mean and refer to acts of God; strikes, lockouts or other industrial disturbances; acts of public enemies; orders of any kind of the government of the United States, the State of Texas, or any other civil or military authority; insurrections; riots; epidemics; landslides; earthquakes; lightning; fires; hurricanes; storms; floods; washouts; or other natural disasters; arrest; restraint of government and people; civil disturbances; explosions; breakage or accidents to machinery, pipelines or canals; or other causes not reasonably within the control of the party claiming such inability. Force Majeure shall not excuse the obligation of Customer to pay for emergency water service provided under this Agreement. SECTION 18. ENTIRE UNDERSTANDING 18.01 This license shall constitute the entire agreement of the parties to this license and shall supersede any prior agreements of said parties, either oral or written, pertaining to the subject matter specified herein. 10 SECTION 19. VENUE AND JURISDICTION 19.01 The laws of the State of Texas shall govern this License Agreement and the relationship created hereby. Venue for any action arising under the terms and conditions of this agreement shall lie in the state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. SECTION 20. WAIVER, SECTION HEADINGS, AND SEVERABILITY 20.01 If any of the Provisions contained in this Agreement shall be held, for any reason, to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability, shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. 20.02 The headings in this Sublease Agreement are inserted for reference only, and shall not define or limit the provisions hereof. CITY O ORT WORTH CHILD CARE ASSOCIATES By: By:by Watso itcamp, Assistant City Manager CEO ATTEST: FNO M&C REQUIRED 1 Y 4�� YJ� City Secretary APPROVED AS TO FORM AND LEGALITY alv Assistant City tto ey II STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned, a Notary Public in and for the State of Texas, on this day personally appeared Libby Watson, Assistant City Manager for the City of Fort Worth, known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that the same was the act of the said City of Fort Worth, and that he executed the same as the act and deed of the City of Fort Worth, a municipal corporation of Tarrant, Denton and Wise Counties, Texas and for the purposes and consideration therein expressed, and in the capacity therein stated. Subscribed to and sworn before me this �-4 day of l e°� , 2005. '" ROSELLA BARNES ;;�•••• �:=: Notary Public in and for the State of Texas �.. r;*: MY COMMISSION EXPIRES Ma,dt 31,2009 My Commission Expires: STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned, a Notary Public in and for the State of Texas, on this day personally appeared John A. Whitcamp, President & CEO of Child Care Associates, known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that the same was the act of the said Child Care Associates, and that he executed the same as the act and deed of the Child Care Associates, a non-profit entity, for the purposes and consideration therein expressed, and in the capacity therein stated. Subscribed and sworn to before me this _2-' day of ,0% 1 , 2005. \ Notary Public in and fo he State of Texas ROBERT=DUKEJR.otary Puby com My Commission Expires: Nowm 12