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CITY SECRETARY I
CONTRACT NO.
AGREEMENT
STATE OF TEXAS §
COUNTY OF TARRANT §
THIS AGREEMENT is entered into by and between Friends of Newby Park, an ad hoc
committee of the Mistletoe Heights Neighborhood Association (hereinafter referred to as "FNP")
and the City of Fort Worth, a home rule municipal corporation of the State of Texas, located
within Tarrant, Denton and Wise Counties (hereinafter referred to as "City"), acting by and
through the Director of the Parks and Community Services Department, (hereinafter referred to
as "Director.")
RECITALS
WHEREAS, the Friends of Newby Park have entered into an agreement with Southside
Preservation, a non-profit Texas Corporation, to fund and construct a pavilion in Newby Park
located at 1105 Jerome Street in the City of Fort Worth; and
WHEREAS, the Friends of Newby Park have agreed to donate the constructed and
completed pavilion to the City, and the City has agreed to accept this donation as City property
under the conditions and terms cited in this Agreement; and
WHEREAS, on — -) , 2005, the City Council authorized the City Manager to
enter into a contract with Friends of Newby Park to construct and install a pavilion in Newby
Park, (M&C
NOW, THEREFORE, in consideration of the mutual covenants herein expressed, the
parties agree as follows:
SECTION 1.
DESCRIPTION.
1.01 FNP will construct and gift to the City a pavilion within two years of execution of this
agreement. FNP will be responsible for the Pavilion's design, construction, and site
programming, subject to the Director's approval, as required in Section 6., below.
1.03 Gift of the Pavilion by FNP to the City shall be effective upon delivery of written
acknowledgement of receipt by the City to FNP.
SECTION 2.
TERM.
2.01 The primary term of this License Agreement shall be for a period of two (2) years
commencing on the 1s` day of June 2005, and ending on the 3Is' day of May 2007. The primary
term may be renewed by mutual agreement between the FWSOA and the City for two (2)
successive 12-month terms under the same terms and conditions of this License Agreement.
SECTION 3.
PAVILION SITE.
3.01 FNP is authorized under the terms and conditions of this Agreement to place a Pavilion in
Newby Park at the site in the park approved by the Director and within the specific designated
area entitled "The Pavilion Site" as indicated in "Exhibit A." FNP and the City agree that they
have inspected the Pavilion Site and found it suitable for the use and purposes intended under
this Agreement.
SECTON 4.
FUNDING.
4.01 FNP shall obtain all the funding associated with the development, design, and
construction of the Pavilion and any other future improvements. It is understood that
approximately $50,000 will be required to construct the Pavilion, $25,000 of the required
funding will come from Southside Preservation Association from funds provided under Tax
Increment Reinvestment Zone Number Four, another $4,000 will be provided from 2004 Capital
Improvement Program Unspecified Park Development Funds for District 9, and an additional
$1,000 will come from 1986 Capital Improvement Program Unspecified Park Development
funds. The remaining $20,000 required to construct the Pavilion will come from donations
obtained by the FNP.
4.02 Upon donation to the City, the City shall be responsible for maintenance of the Pavilion
and any turf areas around the Pavilion, as designated in Exhibit "A,"to include mowing and litter
abatement, in accordance with established City maintenance standards, as funding is allocated.
SECTION 5.
INSURANCE.
5.01 FNP shall not commence work under this contract until it has obtained all the insurance
required under the contract and the City has approved such insurance. FNP shall be responsible
for delivering certificates of insurance for the City's approval. FNP shall indicate on the
certificate of insurance whether or not its insurance covers subcontractors. The insurance
coverage required herein shall include the coverage of all subcontractors, or such subcontractors
shall provide to FNP, documentation of insurance reasonably equivalent to that required of FNP,
according to the liability exposures related to the subcontractor's services and/or materials.
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a. Commercial General Liability Insurance: FNP shall procure and maintain during the
life of this contract and any extension period, a commercial general liability insurance
policy in the amount not less than $500,000 covering each occurrence.
b. Worker's Compensation Insurance: FNP shall maintain, during the life of this
contract and any extension period, statutory Workers Compensation and Employers
Liability Insurance on all of its employees engaged in work under this contract.
c. Automobile Insurance: FNP, or its subcontractors, shall procure and maintain, during
the life of this contract and any extension period, a comprehensive bodily injury and
property damage automobile liability policy in the amount not less than $1,000,000
for each accident. This policy shall cover any automobile used by FNP within the
scope of this contract.
5.02 The insurance specified in 5.01. hereof shall comply with the following requirements:
a. The City of Fort Worth, its Officers, Employees and Volunteers shall be named as an
Additional Insured.
b. Thirty (30) days prior notice of cancellation or non-renewal.
c. Wavier of rights of recovery (subrogation) in favor of the City of Fort Worth.
d. The insurers for all policies must be licensed/approved to do business in the State of
Texas. Except for workers' compensation, all insurers must have a minimum rating
of A: VII in the current A. M. Best Key Rating Guide or have reasonably equivalent
financial strength and solvency to the satisfaction of Risk Management. If the rating
is below that required, written approval of Risk Management is required.
e. If insurance policies are not written for specified coverage limits, an Umbrella or
Excess Liability insurance for any differences is required. Excess Liability shall
follow form of the primary coverage.
f. Unless otherwise stated, all required insurance shall be written on the "occurrence
basis".
g. The deductible or self-insured retention affecting required insurance coverage shall
be acceptable to and approved in writing by the Risk Manager of the City of Fort
Worth in regard to asset value and stockholders' equity. In lieu of traditional
insurance, alternative coverage maintained through insurance pools or risk retention
groups, must also be approved by the City's Risk Manager.
h. The City, at its sole discretion, reserves the right to review the insurance requirements
and to make reasonable adjustments to lines of insurance coverage and their limits
when deemed necessary and prudent by the City based upon changes in statutory law,
court decision or the claims history of the industry as well as of the contracting party
to the City of Fort Worth. The City shall be required to provide ninety (90) days prior
notice.
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SECTION 6.
PLACEMENT.
6.01 Prior to placement of the Pavilion in Newby Park, FNP shall submit the design and site
plans to the Director, or his designee, for approval. These plans shall include appropriate design
and engineering plans and specifications. FNP will be responsible for compliance with City
ordinances or regulations related to the installation of the Pavilion.
SECTION 7.
CITY OWNED PROPERTY
7.01 It is understood and agreed between the parties that the Pavilion site, like other City-
owned property, is held by the City as trustee for the public; that the City exercises such powers
over the property as have been delegated to it by the Constitution of the State of Texas, the
Legislature and its Charter; and that the City cannot contract away its duty and its legislative
power to control such property for the use and benefit of the public. It is accordingly agreed that
the City shall have the right to determine in its sole discretion to use or to cause or permit the
Pavilion site to be used for any other public purpose and upon such determination may terminate
this Agreement in whole or in part in order to facilitate use of the Pavilion site for such other
public purpose.
7.02 The pavilion may; however, be used by the FNP up to 12 times per year without any fee
being required, subject to availability, and advanced reservation, in accordance with current
Parks and Community Services Department Policies. Additional usage will require that
reservations be made and all fees be paid in accordance with the aforementioned policy.
SECTION 8.
TERMINATION OF AGREEMENT.
8.01 Termination:
a. It is expressly provided that either party shall have the right to terminate this
Agreement without cause upon thirty (30) days written notice to the other party.
b. If for any reason, FNP ceases to exist, fails to secure funding, or complete
construction, the CITY may immediately terminate this Agreement.
SECTION 9.
INDEMNITY.
9.01 FRIENDS OF NEWBY PARK AGREES TO DEFEND, INDEMNIFY AND HOLD
THE CITY, ITS OFFICERS, AGENTS SERVANTS AND EMPLOYEES, HARMLESS
AGAINST ANY AND ALL CLAIMS, LA WSUITS, ACTIONS, COSTS AND EXPENSES OF
ANY KIND, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY DAMAGE
OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO OWNER'S BUSINESS AND
ANY RESULTING LOST PROFITS)AND/OR PERSONAL INJURY, INCLUDING DEATH,
THAT MAY RELATE TO, ARISE OUT OF OR BE OCCASIONED BY (i) FRIENDS OF
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NEWBY PARK'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS
AGREEMENT OR (ii) ANY NEGLIGENT ACT OR OMISSION OR INTENTIONAL
MISCONDUCT OF FRIENDS OF NEWBY PARK, ITS OFFICERS, AGENTS,
ASSOCIATES, EMPLOYEES, CONTRACTORS (OTHER THAN THE CITY) OR
SUBCONTRACTORS, RELATED TO THE CONSTRUCTION OF THE PAVILION, OR
THE PERFORMANCE OF THIS AGREEMENT, EXCEPT THAT THE INDEMNITY
PROVIDED FOR IN THIS PARAGRAPH SHALL NOT APPLY TO ANY LIABILITY
RESULTING FROM THE SOLE NEGLIGENCE OF THE CITY OR ITS OFFICERS,
AGENTS, EMPLOYEES OR SEPARATE CONTRACTORS, AND IN THE EVENT OF
JOINT AND CONCURRENT NEGLIGENCE OF BOTH FRIENDS OF NEWBY PARK
AND CITY, RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED COMPARATIVELY
INACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. NOTHING HEREIN
SHALL BE CONSTRUED AS A WAIVER OF THE CITY'S GOVERNMENTAL
IMMUNITYAS FURTHER PROVIDED BY THE LAWS OF TEXAS.
SECTION 10.
NOTICES.
10.01 All notices required or permitted to be given by virtue of this agreement shall be
addressed as follows and delivered by certified mail, postage prepaid or by hand delivery:
Citv of Fort Worth:
Parks and Community Services Department
4200 South Freeway, Suite 2200
Fort Worth, Texas 76115
Neighborhood Association:
Friends of Newby Park
2218 W. Rosedale Street South
Fort Worth, TX 76110
With copy to:
Sarah Fullenwider
Assistant City Attorney
1000 Throckmorton Street
Fort Worth, Texas 76102
SECTION 11.
ASSIGNMENT.
11.01 Neither party hereto shall assign or sublease its privileges, rights, or duties hereunder
without written permission of the other party.
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SECTION 12.
COMPLIANCE.
12.01 Any failure by either party to this Agreement, at any time, to require strict compliance
with this Agreement shall not waive or diminish any right of said party to demand strict
compliance in the future. No waiver of any default by either party shall waive or affect any other
default by said party.
SECTION 13.
SOLE AGREEMENT.
13.01 This Agreement, including all Attachments, Schedules and Exhibits, constitutes the sole
and only agreement of the parties hereto and supersedes any prior understanding or written or
oral agreements between the parties respecting the subject matter.
SECTION 14.
APPLICABLE LAW.
14.01 This Agreement is entered into subject to the provisions of all applicable federal, state
and local laws or ordinances and the requirements of all governmental regulatory agencies
having jurisdiction over the subject matter. Venue shall be in Fort Worth, Tarrant County, Texas
or the Federal Court of the Northern District of Texas.
SECTION 15.
CONTRACTOR PROPERTY
15.01 FNP covenants and agrees that City shall in no way nor under any circumstances be
responsible for any property belonging to FNP, its members, employees, agents, contractors,
subcontractors, invitees, licensees, or trespassers, which may be stolen, destroyed, or in any
way damaged, and FNP hereby indemnifies and holds harmless City from and against any
and all such claims. The City does not guarantee police protection and will not be liable for
any loss or damage sustained by FNP, its members, employees, agents, contractors,
subcontractors, invitees, licensees, or trespassers on any of the premises.
SECTION 16.
WAIVER OF IMMUNITY
16.01 Nothing herein shall be deemed to constitute a waiver of any immunity or affirmative
defense, which may be asserted by City as to any claim of any third party.
SECTION 17.
CAUSE OF ACTION
17.01 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.
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SECTION 18.
INDEPENDENT CONTRACTOR
18.01 FNP shall operate hereunder as an independent contractor and not as an officer, agent,
servant, or employee of the City. Neither City nor the FNP shall be responsible under the
Doctrine of Respondeat Superior for the acts and omissions of its officers, agents, servants,
contractors, subcontractors, or employees. It is understood and agreed that the City is not
involved as a party to any activities that may be carried on by the FNP pursuant to this
Agreement. No provision of this lease shall operate or be construed as a waiver by either party
of any immunity from liability which it has or could be asserted under the doctrine of
governmental immunity or any other immunity which it has under law.
SECTION 19.
CHARITABLE ORGANIZATION
19.01 FNP agrees that if it is a charitable organization, corporation, 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 FNP hereby expressly waives its right to assert or plead defensively
any such immunity or limitation of liability as against City.
SECTION 20.
ALTERATIONS OR IMPROVEMENTS
20.01 FNP shall not make or cause to be made any alterations, additions or improvements to the
Pavilion or the Park without the prior written consent of the Director. FNP shall present to the
Director plans and specifications for such alterations, additions and improvements at the time
such approval is sought.
20.02 All alterations, additions and improvements to the Pavilion and/or Park made with the
written consent of the Director shall, upon completion and acceptance by the City, become the
property of the State of Texas. FNP may be required to remove, at its expense, any alterations,
additions or improvements not meeting specifications as approved by the City.
20.03 The City reserves the right to modify any improvements made by FNP at the Park as
determined necessary by the Director should any of the following occur:
a. The area becomes a hazard to the general public as determined by the City; or
b. The City determines in its sole discretion, to make use of the area for the installation
of any public improvements.
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SECTION 21.
LIENS
21.01 FNP agrees that it shall do no act nor make any contract that may create or be the
foundation for any lien upon or interest on the Pavilion, and any such contract or lien attempted
to be created shall be void. Should any purported lien on the Pavilion be created or filed, FNP, at
its sole expense, shall liquidate and discharge same within ten (10) days after notice from City to
do so.
SECTION 22.
SEVERABILITY OF PROVISIONS
22.01 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.
SECTION 23.
INTERPRETATION
23.01 In the event of any dispute over the meaning or application of any provision of this
Agreement, this Agreement shall be interpreted fairly and reasonably, and neither more strongly
for or against any party, regardless of the actual drafter of this Agreement.
SECTION 24.
NO THIRD PARTY BENEFICIARIES
24.01 The provisions and conditions of this Agreement are solely for the benefit of the City and
FNP and any lawful assign or successor of the FNP, and are not intended to create any rights,
contractual or otherwise, to any other person or entity.
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EXECUTED this <� day of ,Iunx, ) 2005.
CITY OF FORT WORTH FRIENDS OF NEWBY PARK
By: By:
L. y Watson, Assistant City Manager Patsy Slocurd Chairperson
ATTEST: � rm
fh" '' I , I Contract A thorization
City Secretary
Date
APPR D AS TO FO 74aA-��EGALITY:
By: w
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JENNIFER PHAN
Notary Public.State of Texas
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City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 6/14/2005
DATE: Tuesday, June 14, 2005
LOG NAME: 80MISTLETOE2 REFERENCE NO.: C-20795
SUBJECT:
Authorization to Execute an Agreement and Payment of $5,000.00 from the Capital Improvement
Program Funds to the Friends of Newby Park for the Construction of a Pavilion in Newby Park
RECOMMENDATION:
It is recommended that the City Council:
1. Authorize the City Manager to execute an agreement with the Friends of Newby Park to donate and
construct a pavilion and other landscape improvements at Newby Park valued at $50,000; and
2. Authorize payment to Friends of Newby Park in the amount of$5,000 for City's participation.
DISCUSSION:
Friends of Newby Park, an ad hoc committee of Mistletoe Heights Neighborhood Association, in
cooperation with the Southside Preservation Association, Incorporated, plan to construct and install a
pavilion to be located in Newby Park. This project was originally approved as part of the Fort Worth
Southside Tax Increment Finance District Number 4 (M&C G-12649). The Southside Preservation
Association will provide half of the $50,000 estimated cost of the pavilion from the Tax Increment Finance
District Number 4 funds and the Friends of Newby Park will provide the matching funds of $20,000 from
individual and corporate donations and the remaining $5,000 will be allocated as follows:
$4,000 from District 9 undesignated 2004 Capital Improvement Program, and
$1,000 appropriated from the 1986 Capital Improvement Program for park improvements.
Terms of this agreement pertain to the construction of the pavilion and other landscape improvements at
Newby Park. The pavilion and landscape additions will add recreational facilities to the park and will
improve the quality of life in the neighborhood.
Newby Park is located in COUNCIL DISTRICT 9.
FISCAL INFORMATIONICERTIFICATION:
The Finance Director certifies that funds are available in the current capital budget, as appropriated, of the
Park Improvements Fund and the Park & Recreation Improvements Fund.
Logname: 80MISTLETOE2 Page I of 2
ed
TO Fund/Account/Centers FROM Fund/Account/Centers
C280 541600 809580024180 $4,000.00
GC05 541200 080050500830 $1,000.00
Submitted for City Manager's Office by: Libby Watson (6183)
Originating Department Head: Randle Harwood, Acting (5701)
Additional Information Contact: Sandra Youngblood (5755)
Logname: 80MISTLETOE2 Page 2 of 2