HomeMy WebLinkAboutContract 48496 �pp�TYyyTS�yEpC�RETARY G
.S PARK GEMENT SERVICES AGREEMENT BETWEEN THE CITY OF FORT WORTH
Q AND DOWNTOWN FORT WORTH INITIATIVES,INC.
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TH ARK MANAGEMENT SERVICES AGREEMENT("Agreement")is made and entered
into by a tween THE CITY OF FORT WORTH("City"),ahome-rule municipal corporation of the
�,!9 S as, acting by and through its duly authorized Assistant City Manager, and DOWNTOWN
WORTH INITIATIVES,INC. ("DFWII"),a Texas nonprofit corporation, acting by and through
Andrew Taft,its duly authorized President.
WHEREAS, City currently owns apiece of property called General Worth Square Park, which is
located at 801 Main Street,Fort Worth,Texas("Park");
WHEREAS, DFWII has provided significant benefits, both financial and otherwise,to the Park,
including, among other things,the coordination of the redesign and redevelopment process for more than
$1,215,000.00 in renovations to the Park's infrastructure, including the installation and donation of a JFK
Tribute(M&C G-16674)(M&C G-17372)(M&C C-26281);
WHEREAS,since 2013, DFWII has been providing the City with management and maintenance
services for the Park(City Secretary Contract Number 44275);
WHEREAS, such services included park management responsibilities over Park development,
maintenance,and landscaping for the entire Park;
WHEREAS;both parties wish to enter into a new agreement to continue the existing relationship
and aforementioned management services;and
NOW, THEREFORE, in consideration of the covenants and agreements contained in this
Agreement, City and DFWII hereby agree as follows:
SECTION 1
SCOPE OF SERVICES
1.1 City hereby engages DFWII, and DFWII hereby agrees to perform, or ensure the
performance of,the management services set forth in Exhibit A,which is attached hereto and incorporated
herein for all purposes,for the Park("Services").
1.2 DFWII shall provide the Services in a sound, economic, and efficient manner, and in
accordance with the terms of this Agreement and all applicable industry standards. In providing such
Services, DFWII shall ensure that the work involved is properly coordinated with any related work
performed by the City,prior to undertaking any such work.
1.3 DFWII represents and warrants that it has or will secure at its own expense all materials,
supplies, machinery, equipment,tools, superintendence, labor, personnel,insurance and other accessories
and services necessary to provide such Services in accordance with the Agreement.
1.4 In the event that any City-owned property, such as utilities, park development
improvements, equipment, turf, and the like, are damaged or destroyed due to any acts of omissions of
DFWII or its officers,agents,employees,representatives, servants,contractors,subcontractors, or invitees
or in the performances of the Services set forth herein,DFWII shall be solely responsible for all repairs or
replacements at no cost to City. City shall determine whether any damage has been done,the amount of
Park Management Services Agreement—DFWII ' of 16
the damage,the reasonable costs of repairing the damage,and whether DFWII is responsible. City shall be
the sole judge of the damage to the Park, which judgment shall be exercised reasonably. Any damage by
DFWII shall be repaired or replaced by DFWII to the reasonable satisfaction of the Directbr of the City
Parks and Community Services Department or that person's designee ("Director")within thirty(3 0) days
of receipt of written notification from the Director.
SECTION 2
TERM AND TERMINATION
2.1 Term. Unless terminated earlier pursuant to the terms herein, the term of this Agreement
shall be for one year, effective beginning on October 1,2016, and ending on the September 30,2017.
2.2 Termination for Convenience. This Agreement may be terminated without cause by either
party upon thirty(30) calendar days'written notice of such intent to terminate.
2.3 Termination for Cause. Unless stated elsewhere in this Agreement, DFWII shall be in
default under this Agreement if DFWII breaches any term or condition of this Agreement and such breach
remains uncured after thirty(30)calendar days following receipt of written notice from the City.If DFWII
has diligently and continuously attempted to cure the default following receipt of such written notice by
City but reasonably requires more than thirty (30) calendar days to cure,then such additional amount of
time as is reasonably necessary to effect a cure may be granted by the City in writing.
2.4 Gratuities. City may terminate this Agreement if it is found that gratuities in the form of
entertainment,gifts or otherwise were offered or given by DFWII or any agent or representative to any City
official or employee with a view toward securing favorable treatment with respect to the awarding,
amending,or making of any determinations with respect to the performance of this Agreement In the event
this Agreement is terminated by the City pursuant to this section, City shall be entitled, in addition to any
other rights and remedies,to recover from DFWII a sum equal in amount to the cost incurred by DFWII in
providing such gratuities.
2.5 Fiscal Funding Out. Notwithstanding anything to the contrary, if, for any reason, at any
time during the term of the Agreement,the Fort Worth City Council fails to appropriate funds sufficient for
the City to fulfill its obligations under this Agreement,the City may terminate the portion of the Agreement
regarding such obligations to be effective on the later of(i)ninety(90)calendar days following delivery by
the City's written notice and intention to terminate or (ii) the last date for which funding has been
appropriated by the Fort Worth City Council for the purposes set forth in this Agreement.
2.6 DFWII's Duties Upon Expiration or Termination.
2.6.1 Prior to the effective date for expiration or termination of this Agreement,DFWII
shall promptly remove all of its personal property;provided,however,DFWII shall not be
obligated to remove any fixtures. DFWII shall also repair any damage caused by DFWII,
or its contractors,employees,agents,representatives, or invitees or any damages resulting
from the Services being provided herein, including, but not limited to, any damage that
DFWII causes during removal of DFWII's property, to the reasonable satisfaction of the
Director.
2.6.2 If DFWII fails to comply with its obligations in this Section, City may, at its sole
discretion,(i)remove DFWII's personal property and otherwise repair the Park and invoice
DFWII for City's costs and expenses incurred,such invoice to be due and payable to City
within thirty(30) calendar days of its delivery to DFWII; (ii)following no less than thirty
Park Management Services Agreement—DFWII 2 of 16
(30) calendar days' prior written notice to DFWII, take and hold any DFWII personal
property as City's sole property; or(iii)pursue any remedy at law or in equity available to
City.
2.7 Any termination of this Agreement as provided in this Agreement will not relieve DFWII
from paying any sum or sums due and payable to City under this Agreement that remains unpaid and due
at the time of termination, or any claim for damages then or previously accruing against DFWII under this
Agreement. Any such termination will not prevent City from enforcing the payment of any such sum or
sums or claim for damages by any remedy provided for by law, or from recovering damages from DFWII
for any default under the Agreement. All City's rights, options, and remedies under this Agreement will
be construed to be cumulative, and not one of them is exclusive of the other. City may pursue any or all
such remedies or any other remedy or relief provided by law,whether or not stated in this Agreement.
SECTION 3
COMPENSATION AND PAYMENTS
3.1 Funding.
3.1.1 For the Term,the City shall pay DFWII up to Twenty-Six Thousand Ten Dollars
and No Cents ($26,010.00) on a reimbursement basis, which is equal to the amount
budgeted by the Fort Worth City Council to provide basic landscaping, maintenance
and other services in the Park and other City of Fort Worth Central Business District parks.
3.1.2 Funding provided by the City is not intended to cover the entire cost of the Services
provided by DFWII under this Agreement.
3.2 Invoices. To receive payment under this Agreement,DFWII must submit invoices to the
Director on a quarterly basis for Services rendered during the applicable quarter. For purposes of this
Agreement,the quarters shall be as follows: October 1 through December 31;January 1 through March 31;
April 1 through June 30; and July 1 through September 30. DFWII must submit the quarterly invoices no
later than the 101 day of the month following the end of the applicable quarter for which Services were
rendered. The invoices shall include any and all supporting documentation for payment,including,but not
limited to, copies of invoices paid for ground maintenance service in the Park.
3.3 Payment. City will pay DFWII on a reimbursement basis for Services rendered, with all
payments being subject to the Prompt Payment Act (Chapter 2251 of the Texas Government Code).
Payment shall be conditioned on all Services having been provided in accordance with the terms of the
Agreement. In no event shall DFWII receive funds if Services are not provided.
SECTION 4
CITY'S DUTIES AND RESPONSIBILITIES
4.1 City shall provide the following services in connection with the operation of the Park
and with the performance of this Agreement:
4.1.1 City shall conduct inspections, at a minimum, on a quarterly basis to ensure
compliance with this Agreement. Additional, unscheduled inspections can occur at the
City's discretion. Notification shall be made to DFWII in a timely manner of any
deficiencies noted.
Park Management Services Agreement—DFWII 3 of 16
4.1.2 City may continue its bird relocation program at the Park, as required and
contingent on available resources.
4.1.3 City shall coordinate an annual meeting for review of the Agreement terms and
requirements.
4.1.4 City and DFWII agree to enforce regulations and city ordinances.
4.1.5 City will pay all utility costs for the ordinary use and operation of the Park,
including, but not limited to, electric,water, and sewer, directly to the appropriate utility
company.
SECTION 5
"JOHN F.KENNEDY" SCULPTURE
5.1 A portion of the Park contains a plaza with a tribute to President John F.Kennedy("JFK")
that tells the story of JFK's visit to Fort Worth on November 22, 1963. The tribute consists of an eight
foot bronze sculpture of JFK titled"John F. Kennedy", an interpretive exhibit, water feature,hardscape
elements, and landscaping. City, through its Public Art Program, will maintain the eight foot bronze
sculpture of JFK. DFWII shall be responsible for maintaining all other elements of the JFK Tribute in
the Park, including the water feature, hardscape elements, interpretive exhibits, and landscaping in
accordance with the Agreement.
SECTION 6
ALTERATIONS RESTORATIONS AND IMPROVEMENTS
6.1 Subject to Section 5, DFWII may provide for alterations to or restorations of existing
facilities or structures at the Park or improvements to the Park with the prior written approval of the
Director. DFWII will have the right to manage construction of the alterations, restorations and
improvements. City and DFWII agree that DFWII will perform all work (i) in accordance with a set of
plans and specifications pre-approved by the Director prior to beginning any work; (ii)in accordance with
all applicable laws, ordinances,rules,regulations, and specifications of all federal, state, county, city, and
other governmental agencies now or hereafter in effect; (iii)in a good and workman like manner; and(iv)
in accordance with industry standards of care,skill,and diligence.
6.2 Approval by the City of any plans and specifications relating to any construction shall not
constitute or be deemed (i)to be a release by the City of the responsibility or liability of DFW11 or any of
its contractors,and their officers,agents,employees and subcontractors,for the accuracy or the competency
of the plans and specifications, including, but not limited to, any related investigations, surveys, designs,
working drawings and other specifications or documents, or (ii) an assumption of any responsibility or
liability by the City for any act,error or omission in the conduct or preparation of any investigation,surveys,
designs, working drawings and other specifications or documents by the DFWII or any of its contractors,
and their officers, agents, employees and subcontractors. City shall own the plans and specifications.
6.3 All alterations, restorations, and improvements to City property made with the written
consent of the Director shall,upon completion and written acceptance by City become the property of City.
DFWII may be required to remove, at its expense, any alterations, restorations, or improvements not
meeting specifications as approved by the City.
SECTION 7
Park Management Services Agreement—DFWII 4 of 16
THIRD-PARTY CONTRACTORS
7.1 DFWII may authorize a third-party contractor to undertake all or any part of its Park
maintenance and landscaping program Sei vices (set forth in Exhibit A, Subsection B) and any construction
related to the alterations,renovations, and improvements set forth in Section 6 (a"Thud Party Contractor"),
provided that DFWII first enters into a contract with such Third Party Contractor for the work to be undertaken
by the Third Party Contractor and such contract contains all of the following: (i) a provision in a form
acceptable to the City pursuant to which the contractor and any subcontractors involved with the work agree
to release,indemnify,defend and hold harmless the City fi•om any and all damages arising as a result of or
in relation to the work and for any acts or omissions of the Third Parry Contractor, any subcontractors, and
DFWII, and their representatives,officers,agents, servants, and employees; (ii)a requirement that the Third
Party Contractor provide DFWII with any bond or bonds, as may be required by applicable law, for any
alterations,renovations, and improvements allowed per Section 6, which DFWII shall forward to the City,
that guarantees the faithful performance and completion of all construction work covered by the contract and
full payment for all wages for labor and services and of all bills for materials,supplies and equipment used in
the performance of the contract; (iii) a requirement that the Thud Party Contractor provide insurance in
accordance with minimum requirements that may be required by the City,as approved in writing by the City's
Risk Manager; (iv) a requirement that the Thud Party Contractor and any of its subcontractors comply with
all applicable federal, state and local laws, ordinances,rules and regulations, including,but not limited to,
all provisions of the City's Charter and ordinances,as amended;and(v)any auditing requirements set forth
in this Agreement. All of the requirements contained in this Section shall hereinafter be referred to as the
"Third Party Contract Provisions."
7.2 IF DFWII ENTERS INTO ANY THIRD PARTY CONTRACT AS ALLOWED BY
SECTION 7.1 THAT DOES NOT CONTAIN ALL OF THE ABOVE THIRD PARTY CONTRACT
PROVISIONS,AND TO THE EXTENT THAT ANY CLAIMS,DEMANDS,LAWSUITS OR OTHER
ACTIONS FOR DAMAGES OF ANY KIND, INCL UDING, BUT NOT LIMITED TO, PROPERTY
LOSS, PROPERTY DAMAGE AND PERSONAL INJURY OF ANY KIND,INCL UDING, BUT NOT
LIMITED TO, DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER,
WHETHER REAL OR ASSERTED,ARISE UNDER, ONACCO UNT OF OR INRELATIONTO THE
THIRD PARTY CONTRACT FOR WHICH THE CONTRACTOR THEREUNDER WOULD HAVE
BEEN REQUIRED TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE CITY IF THE
THIRD PARTY CONTRACT PROVISIONS HAD BEEN INCLUDED IN THE THIRD PARTY
CONTRACT ("THIRD PARTY CONTRACT DAMAGES"), THEN DFWII, AT DFWII'S OWN
EXPENSE,SHALL INDEMNIFY,DEFEND (WITH COUNSEL REASONABLYACCEPTABLE TO
THE INDEMNIFIED PARTIES HEREIN)AND HOLD HARMLESS THE CITY, ITS OFFICERS,
MEMBERS, AGENTS, SERVANTS, EMPLOYEES, REPRESENTATIVES, CONTRACTORS
(EXCLUDING CIT19 AND VOLUNTEERS, FROM AND AGAINST ANY SUCH THIRD PARTY
CONTRACT DAMAGES. THIS IS IN ADDITION TO ANY OTHER INDEMNIFICATION
PR 0 VISION PR 0 VIDED IN THE AGREEMENT.
SECTION 8
RIGHT OF ACCESS
8.1 City does not relinquish the right to control the management of the Park, or the right to
enforce all necessary and proper rules for the management and operation of the same. City, through its
Director,police and fire personnel and other designated representatives, has the right at any time to enter
any portion of the Park(without causing or constituting a termination of the use or an interference of the
use of the Park by DFWII) for the purpose of inspecting and maintaining the same and doing any and all
Park Management Services Agreement—DFWII 5 of 16
activities necessary for the proper conduct and operation of public property, provided this shall not
authorize or empower City to direct the activities of DFWII or assume liability for DFWII's activities.
8.2 City reserves the right to modify or remove any improvements made by DFWII on City
property in the Park as determined necessary by the Director in his or her sole discretion.
SECTION 9
NON-DISCRIMINATION
9.1 DFWII shall not engage in any unlawful discrimination based on race, creed, color,
national origin,sex,age,religion,disability,marital status,citizenship status,sexual orientation or any other
prohibited criteria in any employment decisions relating to this Agreement, and DFWII represents and
warrants that to the extent required by applicable laws,it is an equal opportunity employer and shall comply
with all applicable laws and regulations in any employment decisions.
9.2 In the event of DFWII noncompliance with the nondiscrimination clauses of this
Agreement, which is not cured within ninety (90) calendar days of notice of such noncompliance, this
Agreement may be canceled, terminated, or suspended in whole or in part, and DFWII may be debarred
from further agreements with City.
SECTION 10
M/SBE POLICY
10.1 City has adopted goals for the participation of small and minority owned business
enterprises in City contracts through Ordnance No. 20020-12-2011. Compliance by DFWII with the
policies designed to meet these goals is mandatory and failure by DFWII to comply with such policies shall
constitute a breach of the contract and shall be grounds for termination by City. Any subcontracts to be
performed hereunder shall also be subject to provisions of the City's policies concerning goals for the
participation of minority and women owned business enterprises in City contracts.
SECTION 11
CITY NOT LIABLE FOR DELAYS
11.1 It is expressly agreed that in no event shall the City be liable or responsible to DFWII or
any other person for or on account of any stoppage or delay in the Services herein provided for by injunction
or other legal or equitable proceedings, or from or by or on account of any delay for any cause over which
the City has no control.
SECTION 12
CHARITABLE ORGANIZATION
12.1 DFWII 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 Act of 1987, C.P.R.C., § 84.001 et seq., or other applicable law, that DFWII
hereby expressly waives its right to assert or plead defensively any such immunity or limitation of liability
as against City. If applicable,DFWII annually shall submit proof of 501(c)(3) eligibility to City.
Park Management Services Agreement—DFWII 6 of 16
SECTION 13
INDEPENDENT CONTRACTOR
13.1 It is expressly understood and agreed that DFWH and its employees,representative,agents,
servants, officers,contractors,subcontractors,and volunteers shall operate as independent contractors as to
all rights and privileges and work performed under this Agreement, and not as agents, representatives or
employees of City. Subject to and in accordance with the conditions and provisions of this Agreement,
DFWII shall have the exclusive right to control the details of its operations and activities and be solely
responsible for the acts and omissions of its employees, representative, agents, servants, officers,
contractors,subcontractors,and volunteers. DFWII acknowledges that the doctrine of respondeat superior
shall not apply as between the City and its officers, representatives, agents, servants and employees, and
DFWII and its employees, representative, agents, servants, officers, contractors, subcontractors, and
volunteers. DFWII further agrees that nothing herein shall be construed as the creation of a partnership or
joint enterprise between City and DFWII. It is further understood that City shall in no way be considered a
Co-employer or a Joint employer of DFWII or any employees, representative, agents, servants, officers,
contractors, subcontractors, and volunteers of DFWII. Neither DFWII, nor any officers, agents, servants,
employees or subcontractors of DFWII shall be entitled to any employment benefits from City. DFWII
shall be responsible and liable for any and all payment and reporting of taxes on behalf of itself, and any of
employees,representative, agents, servants, officers, contractors, subcontractors,and volunteers.
13.2 City, through its authorized representatives and employees, shall have the sole and
exclusive right to exercise jurisdiction and control over City employees. DFWII represents that all of its
employees and subcontractors who perform Services under this Agreement shall be qualified and competent
to perform the Services set forth herein. The Director reserves the right to refuse to permit any employee
of DFWII from providing the Services set forth herein for any reason,provided that if the conduct of the
employee is correctable, such employee shall have first been notified of his or her objectionable conduct
and shall have had the opportunity to correct it.
SECTION 14
INDEMNIFICATION
14.1 INDEMNIFICATION DFWH AGREES TO DEFEND, INDEMNIFY AND HOLD
HARMLESS THE CITY, ITS OFFICERS, AGENTS, SERVANTS, REPRESENTATIVES, AND
EMPLOYEES FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, ACTIONS,
COSTS,AND EXPENSES OF ANY KIND, INCLUDING,BUT NOT LIMITED TO, THOSE FOR
PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO OWNER'S
BUSINESS AND ANY RESULTING LOST PROFITS)AND PERSONAL INJURY(INCLUDING,
BUT NOT LIMITED TO, DEATH) THAT MAY RELATE TO, ARISE OUT OF, OR BE
OCCASIONED BY(i)DFWH'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS
AGREEMENT OR (ii) ANY ACT OR OMISSION OF DFWII, ITS OFFICERS, AGENTS,
ASSOCIATES, EMPLOYEES, REPRESENTATIVES, VOLUNTEERS, CONTRACTORS
(OTHER THAN THE CITY),OR SUBCONTRACTORS,RELATED TO THE USE OF THE PARK
OR THE PERFORMANCE OF THIS AGREEMENT, EVEN IF SUCH LIABILITIES ARISE
FROM OR ARE ATTRIBUATABLE TO ANY ACT, OMISSION, NEGLIGENCE,_ GROSS
NEGLIGENCE, BREACH OF CONTRACT, INTENTIONAL CONDUCT, VIOLATION OF
STATUTE OR COMMON LAW, BREACH OF WARRANTY, PRODUCT DEFFECT, STRICT
PRODUCT LIABILITY,OR ANY OTHER ACT, OMISSION, OR CONDITION WHATSOEVER
OF THE CITY OR ITS PROPERTY.
Park Management Services Agreement—DFWH 7 of 16
SECTION 15
INSURANCE REQUIREMENTS
15.1 General Requirements. DFWII shall furnish to City in a timely manner,but not later than
the start of the Term of this Agreement, certificates of insurance as proof that it has secured and paid for
the policies of insurance specified herein. If City has not received such certificates by such date,DFWII
shall be in default of the Agreement and City may, at its option, terminate the Agreement. DFWII shall
maintain the following coverages and limits thereof:
15.1.1 Commercial General Liability(CGL) Insurance
i. $1,000,000 each occurrence
ii. $2,000,000 aggregate limit
15.1.2 Business Automobile Liability Insurance
i. $1,000,000 each accident on a combined single limit
or
$250,000 Property Damage
$500,000 Bodily Injury per person per occurrence
ii. Insurance policy shall be endorsed to cover"Any Auto", defined as autos
owned, hired, and non-owned when said vehicle is used in the course of
this Agreement.
15.1.3 Workers' Compensation Insurance
i. Part A: Statutory Limits
ii. Part B: Employer's Liability
A. $100,000 each accident
B. $100,000 disease-each employee
C. $500,000 disease-policy limit
15.1.5 Professional Liability Insurance
L $1,000,000.00 each occurrence
ii. $1,000,000.00 aggregate occurrence
15.2 Additional Requirements.
15.2.1 Such insurance amounts shall be revised upward at City's reasonable option and
no more frequently than once every 12 months, and City shall revise such amounts within
thirty(30)calendar days following notice to DFWII of such requirements.
15.2.2 Where applicable, insurance policies required herein shall be endorsed to include
City as an additional insured as its interest may appear. Additional insured parties shall
include employees,representatives, officers,agents,and volunteers of City.
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15.2.3 The Workers' Compensation Insurance policy shall be endorsed to include a
waiver of subrogation, also referred to as a waiver of rights of recovery, in favor of City.
Such insurance shall cover employees performing work on any and all Services and
projects. DFWII shall maintain coverages,if applicable.
15.2.4 Any failure on the part of City to request certificate(s) of insurance shall not be
construed as a waiver of such requirement or as a waiver of the insurance requirements
themselves.
15.2.5 Insurers of DFWII's insurance policies shall be licensed to do business in the state
of Texas by the Department of Insurance or be otherwise eligible and authorized to do
business in the state of Texas. Insurers shall be acceptable to City insofar as their financial
strength and solvency and each such company shall have a current minimum A.M. Best
Key Rating Guide rating of A-: VII or other equivalent insurance industry standard rating
otherwise approved by City.
15.2.6 Deductible limits on insurance policies shall not exceed.$10,000 per occurrence
unless otherwise approved by City.
15.2.7 In the event there are any local, federal or other regulatory insurance or bonding
requirements for DFWII's operations, and such requirements exceed those specified
herein,the former shall prevail.
15.2.8 DFWII shall require its contractors and subcontractors to maintain applicable
insurance coverages, limits, and other requirements as those specified herein; and,DFWII
shall require its contractors and subcontractors to provide DFWII and City with
certificate(s) of insurance documenting such coverage. Also, DFWII shall require its
subcontractors to have City and DFWII endorsed as additional insureds (as their interest
may appear)on their respective insurance policies.
SECTION 16
COMPLIANCE WITH LAWS
16.1 This Agreement is subject to all applicable federal, state and local laws, ordinances,rules
and regulations, including, but not limited to, all provisions of the City's Charter and ordinances, as
amended.
16.2 If City notifies DFWII or any of its officers,agents,employees,contractors,subcontractors,
licensees, volunteers, or invitees of any violation of such laws, ordinances, rules or regulations, DFWII
shall immediately desist from and correct the violation.
SECTION 17
PERMITS AND LIENS
17.1 DFWII shall obtain and keep in effect at its own cost and expense all licenses and permits,
and pay all taxes incurred or required in connection with this Agreement and its operations hereunder.
17.2 DFWII agrees not to take any action that would result in the creation of any lien on City
property. In the event that a lien is filed,as a result of any action of DFWII,DFWII will take all necessary
steps to bond around or remove the lien within ten(10)days of its filing.
Park Management Services Agreement—DFWII 9 of 16
SECTION 18
EQUIPMENT
18.1 DFWII shall, at all times, maintain its equipment in a clean and serviceable condition. All
equipment shall be properly licensed, inspected and clearly marked with DFWII's name or the name of
DFWII's contractor or subcontractor. The continued use of unserviceable or improper equipment shall be
considered a breach of this Agreement.
SECTION 19
ASSIGNMENT AND THIRD PARTY RIGHTS
19.1 Except as specifically set forth in this Agreement, DFWII shall not assign, transfer, or
subcontract its rights under this Agreement or any portion thereof without prior written approval of the
City, and any attempted assignment, subcontract, or transfer of all or any part hereof without such prior
written consent shall be void. This Agreement shall be binding upon and shall inure to the benefit of the
City and DFWII and its respective successors and permitted assigns.
19.2 The provisions and conditions of this Agreement are solely for the benefit of the City and
DFWII,and any lawful assign or successor of DFWII,and are not intended to create any rights,contractual
or otherwise,to any other person or entity.
SECTION 20
RIGHT TO AUDIT
20.1 DFWII shall maintain complete and accurate records with respect to all Services provided
under this Agreement,including,but not limited to,any costs incurred. All such records shall be maintained
on a generally accepted accounting basis and shall be clearly identified and readily accessible.
20.2 DFWII agrees that the City shall,until the expiration of three(3)years after the termination
or expiration of this Agreement,have access to and the right to examine any books,docutnents,papers,and
records of DFWII involving all Services and transactions relating to this Agreement. DFWII agrees that
City shall have access during normal working hours to all necessary DFWII facilities and shall be provided
adequate and appropriate workspace to conduct audits in compliance with the provisions of the section.
20.3 DFWII further agrees to include in any subcontractor agreements a provision to the effect
subcontractor agrees that the City shall, until the expiration of three (3) years after the termination or
expiration of this Agreement, have access to and the right to examine any books, documents, papers and
records of such subcontractor involving all Services and transactions relating to this Agreement and any
subcontractor agreements. City shall have the right to access, during normal working hours, all
subcontractor facilities and be provided adequate and appropriate workspace to conduct audits in
compliance with the provisions of this section.
SCTION 21
NOTICES
21.1 All notices required or permitted under this Agreement shall be conclusively determined
to have been delivered when (1) hand-delivered to the other party, or its authorized agent, employee,
servant, or representative, or (2) received by the other party or its authorized agent employee, servant or
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representative by reliable overnight courier or United States Mail,postage prepaid,return receipt requested,
at the address stated below or to such address as one party may from time-to-time notify the other in writing.
To CITY: To DFWII:
City of Fort Worth Downtown Fort Worth Initiatives, Inc.
Park and Recreation Department Attn:Andrew Taft
Attn: Director 777 Taylor Street, Ste. 100
South Freeway, Suite 2200 Fort Worth,Texas 76102
Fort Worth,Texas 76115-1499
With copies to:
City of Fort Worth
Attn: City Attorney
200 Texas Street
Fort Worth,Texas 76102
SECTION 22
VENUE AND CHOICE OF LAW
22.1 DFWII and City agree that this Agreement shall be construed in accordance with the laws
of the State of Texas. If any action, whether real or asserted, at law or in equity, arises on the basis of any
provision of this Agreement,venue for such action shall lie in state courts located in Tarrant County,Texas
or the United States District Court for the Northern District of Texas—Fort Worth Division.
SECTION 23
AMENDMENTS, CAPTIONS,AND INTERPRETATION
23.1 Except as otherwise provided in this Agreement, the terms and provisions of this
Agreement may not be modified or amended except upon the written consent of both the City and DFWII.
23.2 Captions and headings used in this Agreement are for reference purposes only and shall
not be deemed a part of this Agreement.
23.3 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
GOVERNMENTAL POWERS AND IMMUNITIES
24.1 It is understood that by execution of this Agreement,the City does not waive or surrender
any of its governmental powers or irmnunities.
SECTION 25
AUTHORIZATION COUNTERPARTS,AND ELECTRONIC SIGNATURES
25.1 By executing this Agreement,DFWII's agent affirms that he or she is authorized by DFWII
to execute this Agreement and that all representations made herein with regard to DFWII's identity,address,
and legal status are true and correct.
Park Management Services Agreement—DFWII 11 of 16
25.2 This Agreement may be executed in several counterparts,each of which will be deemed an
original, but all of which together will constitute one and the same instrument. A signature received via
facsimile or electronically via email shall be as legally binding for all purposes as an original signature.
SECTION 26
SEVERABILITY AND NO WAIVER
26.1 It is agreed that in the event any covenant,condition or provision herein contained is held
to be invalid by any court of competent jurisdiction,the invalidity of such covenant,condition or provision
shall in no way affect any other covenant, condition or provision that does not materially prejudice either
DFVM or City in connection with the rights and obligations contained in the valid covenants,conditions or
provisions of this Agreement.
26.2 The failure of either party to insist upon the performance of any term or provision of this
Agreement or to exercise any right granted hereunder shall not constitute a waiver of that party's right to
insist upon appropriate performance or to assert any such right on any future occasions.
SECTION 27
FORCE MAJEURE
27.1 If either party is unable,either in whole or part,to fulfill its obligations under this Agreement
due to acts of God; strikes, lockouts, or other industrial disturbances; acts of public enemies; wars;
blockades; insurrections; riots; epidemics; public health crises; earthquakes; fires; floods; restraints or
prohibitions by any court, board, department, commission, or agency of the United States or of any state;
declaration of a state of disaster or emergency by the federal, state, county, or City government in
accordance with applicable law; issuance of an Imminent Threat Alert or Elevated Threat Alert by the
United States Department of Homeland Security or any equivalent alert system that may be instituted by
any agency of the United States;any arrests and restraints;civil disturbances; or explosions; or some other
reason beyond the party's reasonable control (collectively, "Force Majeure Event"), the obligations so
affected by such Force Majeure Event will be suspended only during the continuance of such Force Majeure
Event. If a Force Majeure Event occurs,the City may,in its sole discretion,close or postpone the opening
of its community centers, parks, or other City-owned and operated properties and facilities in the interest
of public safety and operate them as the City sees fit. DFWII hereby waives any claims it may have against
the City for damages resulting from any such Force Majeure Event.
SECTION 28
ENTIRE UNDERSTANDING
28.1 This Agreement (including the attached exhibits) contains the entire Agreement between
DFWII and City, and no oral statements or prior written matter not specifically incorporated herein are of
any force and effect. No modifications are binding on either party unless set forth in a document executed
by that party.
IN WJTNESS HEREOF, THE PARTIES HAVE EXECUTED THIS AGREEMENT ON�U—
+f 016 IN TARRANT COUNTY,TEXAS.
THE CITY OF FORT WORTH DOWNTOWN FORT WORTH
INITIATIVES,INC.
Park Management Services Agreement—DFWII 12 of 16
i
By: By:
*SUSanis ndrew Taft City Manager President 0
APPROVED AS TO FORM AND LEGALITY:
By,.
y er . W ach
Ass' an ity Attorney
ATTES . �^ r o i '
C�
oso c:
By:
e �
Mary K � o
Sec aiy
`J J �Oa�Oo0Do35�
No M&C Required
1
Park Management Services Agreement—DFWII - 3 of 16
Exhibit A
Scope of Services
A. Park Management Program
1. DFWII shall provide competent,qualified,and trained staff employed by DFWII to provide
the following administrative and management services for maintenance and operation of the Park:
a. Services that are necessary to supervise the daily maintenance necessary to keep the Park
in a clean, operational, and trash free condition with healthy turf, trees, shrubs and year-
round flower plantings;
b. Recruiting,hiring,paying and supervising the work force,which DFWII will hire to furnish
all Services to the Park;
o, Contracts with subcontractors to provide landscaping, turf maintenance, tree and shrub
maintenance, mechanical, plumbing and electrical maintenance, and other services that
DFWII elects to provide through subcontracting;
d. Management,financial and program monitoring systems for operation of the Park;
e. Provide any reports requested by the Director concerning maintenance and operation of the
Park within thirty (30) calendar days after such request by the Director, unless agreed to
otherwise by the parties in writing;
f. Office space for DFWII's administrative and management personnel;
g. Recommendation of actions and guidelines that the City could take to regulate activities in
the Park to maximize the contribution of activities and events in the Park;
h. To participate in private or public meetings concerning operations and services in the Park;
i. Liaison between the City, adjacent property owners, Park users, interested persons and
groups to ensure successful operation and maintenance of the Park;
j. Provide supervision and monitoring for the performance of subcontractors who are
employed by DFWII;
k. Assistance to the City's Park and Recreation Department("Park Department")concerning
use of the Park;
1. Assistance to City in briefing interested parties concerning proposed activities and projects
that would enhance the beauty and use of the Park;
in. hiformation/complaint center for all matters relating to operation and maintenance of the
Park and advising City in a timely manner of any problems with City-owned equipment or
facilities in the Park;
n. Maintain communications with the Park Department reservation staff to ensure that the
Park is always in its best appearance for scheduled activities. Scheduled activities in the
Park shall not be allowed to postpone or compromise emergency repairs in the Park,when
Park Management Services Agreement—DFWII 14 of 16
postponing those repairs would have"serious impact"on Park equipment or the safety of
park users. The Director, in his sole discretion shall decide when repairs rise to the level
of a"serious impact"on Park equipment;and
B. Park Management-Maintenance and Landscaping Program
1. DFWII shall provide the following maintenance service in the Park either directly or
through a subcontractor:
a. Keep the park in a clean condition by:
i. Maintaining the walkways,benches, and planters clear of debris;
ii. Emptying the trash can inserts in the planters daily(five days a week);
iii. Maintaining the ground cover beds, flower beds and turf areas clear of debris,
including, but not limited to,leaves, limbs, cigarette butts,paper,and the like;
iv. Regularly washing off the surfaces of bird waste, spilled drinks and food; and
v. Removing graffiti to the best of the DFWII's ability within 24 hours of notification
by the Director(within a normal work week).
b. Keep the turf,planting,trees and shrubs in a healthy green appearance by:
i. Watering, fertilizing, inspecting, pruning, treatment of wounds, disease control,
insect control,three planting of blooms a year(tulips and the spring planting to be
considered one planting), and any other actions necessary to keep all plant life in
a healthy appearance,including, but not limited to,re-seeding or sodding the turf,
adding additional ground cover,and trimming the trees to provide more defensible
space in the Park.
c. Keep the Park in year round blooms with seasonal plantings of blooming flowers in the
Fall, Spring, and Summer:
d. Keep the fountains in a clean,well-maintained appearance by doing the following:
i. Cleaning and vacuuming the fountains daily (5 days a week) or as necessary to
keep them trash free and clean; and
ii. Maintaining the correct level of chemicals to ensure that the water in the fountains
is clean and free of algae and other growth or discoloration
e. Keep the pump room well-maintained,clean and operational through the following:
i. Frequent and periodic preventative maintenance of the pumps;
ii. Clean out of the reservoir once or twice a year, depending upon need;
iii. Maintaining the proper amounts of chemicals for the chlorination of the fountains;
Park Management Services Agreement—DFWII 15 of 16
i
iv. Frequent and periodic monitoring of the electrical system by a licensed electrician
to ensure proper operation of all electrical systems; and
v. In case of equipment failure,replace damaged equipment in a timely manner,after
informing the Director of the nature of the equipment failure
f. Be responsive to any requests for service in the Park by the Director.
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