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HomeMy WebLinkAboutContract 31715 LICENSE AGREEMENT CITY SECRETARIF" ' �' ^.ONTRACT NO. TARRANT COUNTY § STATE OF TEXAS § THIS LICENSE AGREEMENT is made and entered into by and between the City of Fort Worth, Texas (CITY), a home-rule municipal corporation situated in Tarrant, Denton, and Wise Counties, acting by and through its duly authorized Assistant City Manager, and the Parents of Bear Creek BMX Association, Inc. (LICENSEE), a non-profit Texas corporation, acting by and through its duly authorized President. WHEREAS, the Department of the Army is the owner of a tract of approximately 651.91 acres of land and water in the Benbrook Dam and Reservoir area; and WHEREAS, the Secretary of the Army granted to the City of Fort Worth, Texas, a lease, by written agreement designated as Lease No. DACW63-1-98-0699, for a period of 25 years commencing on March 31, 1999 and ending on March 30, 2024, to use and occupy said 651.91 acres for parks and recreation purposes; and WHEREAS, the Parents of Bear Creek BMX Association, Inc., has requested that the City Council of the City of Fort Worth approve the continued use of a portion of said land by the Parents of Bear Creek BMX Association, Inc. for the purpose of operating a public recreation facility thereon; SECTION 1 LICENSED PREMISES 1.01 NOW, THEREFORE, City grants a license unto Licensee to use and occupy the following described property (hereinafter know as the "Premises") for constructing, operating, and maintaining a public recreation facility: A portion of Pecan Valley Park, approximately 14.786 acres, bounded by Memorial Oak on the West and the South enclosed by a chain link fence, as shown outlined on Exhibit "A", attached hereto and made a part thereof. 1.02 Any agreement for the use of an additional site or sites by the Licensee may be accomplished at the discretion of City either by supplemental agreement hereto or by a separate license agreement, requiring the prior written approval of the District Engineer (District Engineer) of the U.S. Army Corps of Engineers (ACOE). 1.03 This License Agreement is expressly subject to all the terms and conditions contained in the License Agreement covering the above described property from the Department of the Army Icy lad" BMX of the United States of America to the City of Fort Worth, and Licensee covenants and agrees to be bound by and strictly comply with all of the terms and conditions of Lease No. DACW63-1- 98-0699 (City Secretary Contract 24843), as amended, insofar as they are applicable to Licensee's use and occupancy of the Premises. SECTION 2 ANNUAL RENTAL 2.01 As consideration for this License Agreement, Licensee covenants and agrees to pay to City the sum of One Dollar and No/Cents ($1.00) per year. The payments under this agreement shall continue to be due and payable on or before August 1 st of each successive year of this License Agreement. As further consideration for this License Agreement, Licensee agrees to construct, operate, and maintain, at its sole cost and expense on the Premises, a bicycle motorcross (BMX) track and associated facilities subject to the covenants and conditions set forth in this License Agreement and subject to all terms and conditions granted to the City of Fort Worth by the Department of the Army in Lease No.DACW63-1-98-0699 on file in the office of the City Secretary of the City of Fort Worth. SECTION 3 TERM OF LICENSE AGREEMENT 3.01 This License Agreement shall be for a period of FIVE (5) years commencing on October 1, 2004 and terminating on September 30, 2009, unless termination is exercised by either party pursuant to the termination provisions expressed herein and provided further that City Secretary Contract 19470 is in full force and effect as of the commencement date. This License Agreement may be renewed by mutual, written consent of all parties for a period of FIVE (5) additional years, but in no event shall this agreement extend beyond March 30, 2024. The terms set forth herein shall govern and control the relationship of the parties during any renewal period, except that City may increase or otherwise change the license fee for any renewal period. City reserves the right to terminate this License Agreement at the end of the term or any successive renewal thereof regardless of Licensee's intent to renew. SECTION 4 RIGHT OF ACCESS 4.01 At all times during the term of this License Agreement, the City and the District Engineer shall have the right, through its agents and representatives, to enter into and upon the Premises during reasonable business hours for the purpose of examining and inspecting the same for the purpose of determining whether Licensee shall have complied with all of its obligations hereunder in respect to the use of the Premises. SECTION 5 TITLE AND CONSTRUCTION 5.01 Licensee, subject to the terms and conditions of this License Agreement, will be permitted to construct facilities and other permanent improvements that may be needed to fulfill the f-girl l 2 i S�(:"tE�' BMX recreational purposes of a BMX track. Facilities and improvements will be constructed only upon prior written consent of City and the U.S. Army Corps of Engineers; such consent shall not be unreasonably withheld. The prior written approval is required for the general design and location of proposed facilities or improvements by the Parks and Community Services Director of the City of Fort Worth. 5.02 All plans and specifications for the construction of the recreational complex, additional facilities, and other permanent improvements shall require prior written approval of the Parks and Community Services Director Transportation and Public Works Director of the City of Fort Worth and the District Engineer of the U.S. Army Corps of Engineers, Fort Worth District. All plans and specifications must conform to all local, state, and federal codes, laws, ordinances and regulations now in force or hereafter prescribed by authority of law. Licensee shall, at its sole expense, obtain all necessary licenses and permits and all payment and performance bonds. Upon completion and acceptance of construction, title to all permanent improvements shall vest in the City, pursuant to City Secretary Contract 24843, as amended. Approval by the Transportation and Public Works Director, the Parks and Community Services Director, and/or the District Engineer of the ACOE shall not constitute or be deemed a release of the responsibility and liability of Licensee, its agents, servants, employees, contractors and subcontractors for the accuracy and competency of its designs, working drawings, and specifications or other engineering documents. Such approval shall not be deemed to be an assumption of such responsibility and liability by City for any defect in the designs, working drawings and specifications or other engineering documents prepared by Licensee, its agents, servants, employees, contractors and subcontractors, (it being the intent of the parties that approval by City and the U.S. Army Corps of Engineers be approval of only the general design concept of the improvements to be constructed). It is expressly understood that Licensee shall be required to comply with all requirements of the Department of Army as set forth in said City Secretary Contract 24843, as amended. SECTION 6 TAXES AND OTHER CHARGES; UTILITIES; LIENS 6.01 Licensee shall pay promptly when due all bills or charges for construction or maintenance as well as any other amounts due for materials, services and labor furnished in connection herewith, and shall indemnify City for non-payment of same. Licensee shall indemnify City against any and all mechanic's liens or any other type of claims or liens imposed upon the Premises arising as a result of Licensee's conduct or inactivity. 6.02 Licensee will not cause or permit any mechanics' liens or other liens to be filed against the fee of the Premises or against Licensee's leasehold interest (excluding any leasehold mortgage) in the land or any buildings or improvements on the Premises by reason of any work, labor, services, or materials supplied or claimed to have been supplied to Licensee or anyone holding the Premises or any part of them through or under Licensee. If such a mechanic's lien or materialman's lien is recorded against the Premises or any buildings or improvements on them, Licensee must either cause it to be removed or, if Licensee in good faith wishes to contest the lien, take timely action to do so, at Licensee's sole expense. If Licensee contests the lien, Licensee will indemnify City and hold it harmless from all liability for damages occasioned by the lien or the lien contest and will, in the event of a judgment of foreclosure on the lien, cause the lien to be discharged and removed before the judgment is executed. 3 � � � `" BMX 6.03 In this regard, if improvements to be constructed on the demised premises exceed $25,000, Licensee shall require its contractor to provide performance and payment bonds in the full amount of the contract. City and Licensee shall be named ad dual obliges. The surety on the bonds shall meet the requirements of Chapter 2253, Government Code, and shall otherwise be acceptable to City. Licensee shall comply with the Americans with Disabilities Act (ADA) and Minority and Women-owned Business Enterprises (M/WBE) requirements that would pertain to the City of Fort Worth in the absence of this License Agreement. 6.04 Licensee shall, at its sole cost and expense and subject to the prior approval of the Parks and Community Services Director and the District Engineer, have the right to locate necessary utility lines on the Premises and adjacent property that City has the right to occupy. SECTION 7 USE OF PREMISES; COMPLIANCE WITH LAW; EASEMENTS 7.01 Licensee covenants and agrees that said recreational complex shall be constructed, operated, and maintained in compliance with all laws, ordinances, rules, regulations, and specifications of all federal, state, county, city and other governmental agencies applicable to said Premises now or hereafter in effect and shall not make or allow to be made any unlawful, improper, immoral, or offensive use thereof. 7.02 Licensee covenants and agrees that it will not subcontract or assign all or any part of its rights, privileges or duties under this License Agreement without the prior written consent of City and the District Engineer, and any attempted subcontract or assignment of same without such prior consent of City and the District Engineer shall be void. 7.03 Licensee agrees it has inspected the Premises and does hereby accept possession of the Premises "AS IS" and warrants that it has found them in their present condition suitable for all purposes under this License Agreement, free of any hazards or dangerous conditions that would be unsuitable for a place where large numbers of the general public are expected to gather. 7.04 Licensee accepts the property herein described subject to all previous easements, if any, that may have been granted on, along, over, under or across said property, and releases City from any and all damages, claims for damages, loss or liabilities that may be caused to all invitees, licensees, or trespassers by reason of the exercise of such rights or privileges granted in said easements. Licensee understands that this land is crossed by overhead and underground electric distribution and transmission lines and related facilities and may in the future be crossed by additional lines. 7.05 Licensee is given the right to sell goods, concessions and services on the demised Premises with the prior approval of the Parks and Community Services Director. It is intended and understood by the Licensee and City that said concession, goods, and services shall be managed and operated by and for Licensee, a non-profit organization, acting through its officers and successors in office. No admission, entrance, and/or user fees may be charged by Licensee for the entrance to or use of any part or all of the Premises or any facilities constructed thereon, without the prior approval of the Parks and Community Services Director of the City of Fort Worth. The amount of any fees to be charged by Licensee and all rates and prices charged by Licensee for ,JAI k k, 4 �E(!"�E BMX concessions, goods, and services furnished or sold to the public shall be subject to regulations and the prior approval of the Parks and Community Services Director. 7.06 Licensee shall provide an appropriate number of portable restrooms for the maximum crowd expected including handicap restrooms in compliance with current ADA standard. Licensee shall provide for daily cleaning and maintenance of temporary restroom units within the event area. 7.07 Licensee shall submit to the Parks and Community Services Director a list of fees, rates, and prices proposed for the following six months not less than 60 days prior to April 30th and October 31st of each year that this License Agreement remains in effect. Licensee shall furnish justification for any proposed fee, rate, or price increase or decrease. The Parks and Community Services Director will give written notice to the Licensee of approval granted for or objection to any proposed fee, rate or price and will, if appropriate, state an approved fee, rate or price for each item to which an objection has been made. Licensee shall keep a schedule of such fees, rates, or prices posted at all times in a conspicuous place on the Premises. 7.08 All monies received by Licensee from operations conducted on the Premises, including, but not limited to, entrance and admission fees and user fees, and rental or other consideration received from its concessionaires, may be utilized by Licensee for the administration, maintenance, operation, and further development of the Premises. Any such monies not so utilized by Licensee shall be paid to the District Engineer at the expiration of each five-year period of this License Agreement. Licensee shall establish and maintain adequate records and accounts and render annual statements of receipts and expenditures to the Parks and Community Services Director and to the District Engineer. Licensee agrees that the City and/or District Engineer will have the right to audit the financial and business records of Licensee that relate to this Agreement (collectively "Records") at any time during the Term of this Agreement and for one (1) year thereafter in order to determine compliance with this Agreement. Throughout the Term of this Agreement and for one (1) year thereafter, Licensee shall make all Records available to the City and/or District Engineer at City Hall or at another location in the City acceptable to both parties following reasonable advance notice by the City and shall otherwise cooperate fully with the City and/or District Engineer during any audit. Notwithstanding anything to the contrary herein, this Section shall survive expiration or earlier termination of this Agreement. 7.09 Licensee covenants and agrees that it will not permit, at any time, the sale of alcoholic beverages on the Premises. 7.10 Licensee covenants and agrees that it will not permit the use of loud, abusive, foul, or obscene language by any person or persons upon said Premises, and that use of such language by any person or persons upon said Premises shall result in the immediate removal of that person or persons from the Premises by the licensee, its, members, agents, or employees. 7.11 When lighting facilities are installed, Licensee shall be permitted to use such lighting facilities throughout the term of this license. Licensee shall be responsible for the replacement and maintenance of lighting and lighting facilities. In addition, Licensee covenants and agrees that no race or event begin on or after 9:00 p.m. of any night, and that immediately following the BMX conclusion of any race or event which ends after 9:00 p.m., or upon the conclusion of any other recreational activity, the lights will be turned off. Thereafter, the only lighting permitted shall be lighting necessary to pick up trash, litter and debris and to generally clean the area. 7.12 Licensee shall be permitted to maintain a public address system for use only in the conduct of recreational activities on the premises; provided, however, that no speaker of the public address system shall face any of the residences to the north boundary line. It is expressly understood and agreed that in the use of the public address system Licensee shall comply with all ordinances and regulations of the City concerning noise, including but not limited to Section 23-8 of Chapter 23 of the Code of the City of Fort Worth (1986), as amended. In this connection, Licensee agrees that it will not create any noise, by loud speaker or otherwise, of such character, intensity or continued duration which substantially interferes with the comfortable enjoyment of private homes by persons of ordinary sensibilities. Licensee shall remove speaker or speakers at request of Director 7.13 Licensee shall make the bicycle track on the Premises available to other groups as scheduled by Licensee. 7.14 Licensee shall have the right to erect signs in compliance with all federal, state and local statutes, ordinances, rules, regulations and specifications, displaying the facilities and the sponsorship of the activities by the Licensee, subject to the prior approval of the Parks and Community Services Director and the District Engineer. 7.15 If the United States Department of Homeland Security issues a Level Orange or Level Red Alert, the City, in its sole discretion, may close or postpone the opening of the parks and community centers in the interest of public safety. SECTION 8 MAINTENANCE 8.01 Licensee agrees to keep and maintain the Premises and keep same in a good state of appearance and good repair (except for reasonable wear and tear) at Licensee's sole cost and expense. All maintenance, repair and upkeep of the Premises shall be in accordance with all applicable federal, state and local laws, rules, regulations, and specifications. Licensee shall neither commit, nor allow to be committed, any waste on the Premises, nor shall the licensee maintain, commit or permit the maintenance or commission of any nuisance on the Premises or use the Premises for any unlawful purpose. 8.02 Licensee will do all work and make all repairs necessary or advisable to keep the surface of the Premises from deteriorating in value or condition and to restore and maintain the Premises and improvements thereon, excepting normal wear and tear. The City and the District Engineer shall have the right, through its agents and representatives, to make inspections of the Premises for any repairs that, in City's opinion, are necessary to be performed by Licensee upon the Premises. Unless otherwise specifically agreed to in writing by the City, Licensee covenants and agrees that it will commence repairs within sixty(60) days from the date that notice from the City is mailed to the Licensee. Repairs will be made in an expeditious and workmanlike manner. In the event that Licensee shall fail to undertake such repairs within the time provided, it is understood and agreed CIA K`4`�124 CITY � � ;�;, �� 6 Q 041 - BMX that City may, within its discretion, make such repairs as it may deem necessary, and Licensee shall pay the cost of the repairs upon demand by City following the completion of such repairs. 8.03. If any building or improvement constructed on the Premises is substantially damaged or destroyed by fire or any other casualty, Licensee shall, within ninety (90) days from the date of the damage or destruction, begin to repair, reconstruct, or replace the damaged or destroyed building or improvement and pursue the repair, reconstruction, or replacement with reasonable diligence so as to restore the building or improvement to substantially the condition it was in before the casualty. But if beginning or completing this restoration is prevented or delayed by war, civil commotion, acts of God, strikes, governmental restrictions or regulations, or interferences, fire or other casualty, or any other reason beyond Licensee's control, whether similar to any of those enumerated or not, the time for beginning or completing the restoration (or both) will automatically be extended for the period of each such delay. 8.04 Collection and proper disposal of trash, garbage, litter and debris will be the responsibility of Licensee, at its sole cost and expense and shall be removed within 24 hours of each event. 8.05 All growth of weeds and other vegetation on said property shall be maintained by the Licensee in accordance with the current standards of the Parks and Community Services Department. SECTION 9 IMPROVMENTS, REPLACEMENTS, ADDITIONS, AND REMOVALS 9.01 Licensee covenants and agrees that City or U.S. Army Corps of Engineers shall in no way nor under any circumstances be responsible for any property belonging to Licensee, its members, employees, agents, contractors, subcontractors, invitees, licensees, or trespassers, which may be stolen, destroyed, or in any way damaged, and Licensee hereby indemnifies and holds harmless City and U.S. Army Corps of Engineers from and against any and all such claims. The City and U.S. Army Corps of Engineers do not guarantee police protection and will not be liable for any loss or damage sustained by Licensee, its members, employees, agents, contractors, subcontractors, invitees, licensees, or trespassers on the Premises. SECTION 10 INDEMNIFICATION 10.01 LICENSEE COVENANTS AND AGREES TO AND DOES HEREBY, INDEMNIFY, HOLD HARMLESS AND DEFEND CITY, ITS OFFICERS, AGENTS, VOLUNTEERS, AND EMPLOYEES AND THE DEPARTMENT OF THE ARMY, U.S. ARMY CORPS OF ENGINEERS, FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR PROPERTY LOSS OR DAMAGE, LOSS AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH DIRECTLY OR INDIRECTLY, THE MAINTENANCE, USE, OCCUPANCY, EXISTENCE OR LOCATION OF SAID DEMISED PREMISES, WHETHER OR NOT CAUSED, IN WHOLE OR IN PART, BY THE ALLEGED NEGLIGENCE OF OFFICERS, AGENTS, VOLUNTEERS, EMPLOYEES, CUSTOMERS, CONTRACTORS, SUBCONTRACTORS, LICENSEES, OR INVITEES OF CITY, DEPARTMENT OF THE ARMY, OR U.S. ARMY CORPS OF ENGINEERS; AND LICENSEE HEREBY ASSUMES ALL LIABILITY � 1CIAL fic0- HURRY BMX RESPONSIBILITY OF CITY, ITS OFFICERS, AGENTS, VOLUNTEERS, AND EMPLOYEES AND THE DEPARTMENT OF THE ARMY, U.S. ARMY CORPS OF ENGINEERS FOR ANY AND ALL SUCH CLAIMS OR SUITS. LICENSEE SHALL LIKEWISE INDEMNIFY AND HOLD THE CITY, DEPARTMENT OF THE ARMY, AND THE U.S. ARMY CORPS OF ENGINEERS HARMLESS FOR ANY AND ALL INJURY OR DAMAGE TO SAID PREMISES, WHETHER ARISING OUT OF OR IN CONNECTION WITH ANY AND ALL ACTS OR OMISSIONS OF LICENSEE, ITS OFFICERS, AGENTS, VOLUNTEERS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES, INVITEES, PATRONS, OR TRESPASSERS, OR CAUSED, IN WHOLE OR IN PART, BY THE ALLEGED NEGLIGENCE OF OFFICERS, AGENTS, VOLUNTEERS, EMPLOYEES, PATRONS, CONTRACTORS, SUBCONTRACTORS, LICENSEES, OR INVITEES OF CITY, DEPARTMENT OF THE ARMY, OR U.S. ARMY CORPS OF ENGijVEERS. SECTION 11 INSURANCE REQUIREMENTS 11.01 Licensee shall, prior to the execution of this License Agreement, procure, pay for, and maintain the following insurance written by companies licensed or approved by the State of Texas and have a minimum rating of A: V1 I 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. The insurance shall be evidenced by delivery to City of executed certificates of insurance and/or certified copies of policies as determined by City. Licensee covenants and agrees to obtain and keep in force during the term of this License Agreement, Commercial General Liability Insurance, including Personal Injury Liability, Independent Contractor's Liability, and Contractual Liability covering, but not limited to, the liability assumed under the indemnification provisions of this License 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 the City. The City of Fort Worth shall be named as an Additional Insured. The insurance policy shall include the following: 1) The term of insurance is for the duration of this License Agreement. 2) The policy shall require that thirty (30) days prior to cancellation or any material changed in coverage, a notice shall be given to City and U.S. Army Corps of Engineers by certified mail; 3) 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; 4) 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; 5) 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; and 8 BMX 6) 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. 7) The City, reserves the right to review the insurance requirements and to make reasonable adjustments to 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 prior notice of ninety (90) days. 11.02 Licensee hereby waives subrogation rights for loss or damage against the City, its officers, agents, and employees for personal injury(including death), property damage, or any other loss. 11.03 Licensee shall not do or permit to be done anything in or upon any portion of the Premises, or bring or keep anything therein or thereupon which will in any way conflict with the conditions of any insurance policy upon the Premises or any part thereof, or in any way increase the rate of fire insurance upon the Premises or on property kept therein, or in any way obstruct or interfere with the right of other tenants of the Premises, or injure or annoy them. 11.04 The City may terminate this License Agreement immediately upon failure of the Licensee to provide acceptable documentation of insurance as required by this Section. 11.05 Certificates of insurance evidencing the above required insurance shall be presented to the City prior to execution of this License Agreement and annually by the expiration date shown on the insurance certificate. 11.06 The City of Fort Worth shall be named as an Additional Insured on Licensee's insurance policy as to the Premises, including building improvements thereon. All insurance and insurers for policies of the insurance required herein shall be acceptable to the City of Fort Worth. Licensee shall require any and all sub-licensees to maintain liability insurance at the limits specified herein for the licensee, and licensee's insurance shall provide coverage for any and all sub-licensees in the event any sub-licensee fails to have insurance coverage in effect if a claim arises out of their operations, products, product delivery or any other action attributable to a sub-licensee. 11.07 Licensee 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 Licensee hereby expressly waives its right to assert or plead defensively any such immunity or limitation of liability as against City. Copy of the documentation stating this organization's status is due annually to the address specified for Parks and Community Services in Paragraph 36 of this document. SECTION 12 SUBLETTING, ASSIGNING, AND MORTGAGING 12.01 Licensee shall not assign this contract nor suffer any use of the Premises other than herein P' w.; p F CITY BMX specified, nor sublet the Premises or any part thereof without the written consent of City and the U.S. Army Corps of Engineers. Any assignment or sublease entered without express written consent by the District Engineer shall be null and void. If assigned per the written consent of the City, Licensee agrees to ensure that any assignee or sublessee will comply with all terms, provisions, covenants, and conditions of this contract. Assignment or subletting of this License Agreement shall not relieve Licensee from any of its obligations under this License Agreement. 12.02 Subject to the limitations contained herein, the covenants, conditions and agreements made and entered into by the parties hereto are declared to be for the benefit of and binding upon their respective successors, representatives and assigns, if any. SECTION 13 EVENTS OF DEFAULT BY LICENSEE; REMEDIES OF CITY, AND TERMINATION 13.01 It is expressly provided that City and the District Engineer shall have the right to terminate this License Agreement without cause upon thirty (30) days written notice to Licensee. It is expressly provided that Licensee shall have the right to terminate this License Agreement without cause upon thirty (30) days written notice to City and the District Engineer of the ACOS. It is understood and agreed that any rights or interest that the City has in the Premises are contained in this License Agreement from the Department of the Army of the United States of America to the City of Fort Worth. Should this License Agreement be revoked, cancelled or terminated for any reason, this License Agreement between City and Licensee shall automatically be terminated and cancelled. 13.02 In the event the License Agreement is terminated or Licensee is evicted from the Premises for any reason, Neither the District Engineer or the City shall be responsible for any personal property of Licensee remaining on the Premises at the time of said eviction or termination, and said personal property shall be deemed abandoned by Licensee if such remains on the Premises at any time subsequent to the termination of the License Agreement. On the dissolution of Licensee, this License Agreement shall terminate by operation of law. 13.03 Licensee covenants and agrees that in the event of a breach of any covenant contained herein by Licensee, then and in that event, the City may, at its option declare this License Agreement forfeited and terminated as to the balance of the term. 13.04 On or before the date of expiration of this license or its cancellation by Licensee, Licensee shall vacate the Premises, remove all property of Licensee there from and restore the Premises to a condition satisfactory to the Parks and Community Services Director and the District Engineer. If the City revokes this License Agreement, Licensee shall vacate the Premises, remove said property, and restore the Premises within such time, as the District Engineer and the Parks and Community Services Director of the City of Fort Worth shall reasonably designate. In either event, if Licensee shall fail or neglect to remove said property and so restore the Premises, then said property shall become the property of the United States, without compensation and no claim for damages against the United States or its officers or agents shall be created by or made on account thereof. 13.05 If the Premises or any portion thereof shall be destroyed or damaged by fire or other 10 BMX calamity so as to prevent the use of the Premises for the purposes and during the periods specified in this License Agreement or if the use of the Premises by Licensee shall be prevented by act of God, strike, lockout, material or labor restriction by any governmental authority, civil not, flood, or any other like cause beyond the control of the City, then this License Agreement shall terminate and Licensee hereby waives any claim against City for damages by reason of such termination. SECTION 14 REMEDIES; NO WAIVER 14.01 The waiver by the City or the District Engineer of any default or breach of a term, covenant or condition of this License Agreement shall not be deemed to be a waiver of any other breach of that term, covenant or condition or any other term, covenant or condition of this License Agreement, regardless of when the breach occurred. SECTION 15 INDEPENDENT CONTRACTOR 15.01 Licensee shall conduct all activities on the Premises as an independent contractor, and not as an officer, agent, servant or employee of City; Licensee shall have exclusive control of and the exclusive right to control the activities performed on the Premises and all persons performing same and shall be responsible for the acts and omissions of its members, officers, agents, employees, contractors, subcontractors, licensees and invitees; that the doctrine of respondeat superior shall not apply as between City and Licensee, its members, officers, agents, volunteers, employees, contractors, subcontractors, licensees, and invitees; and nothing herein shall be construed as creating a partnership or joint enterprise between City and Licensee. SECTION 16 NON-DISCRIMINATION/DISABILITIES 16.01 Licensee, in its construction, maintenance, occupancy, use, or operation of said recreation complex or the Premises, shall not discriminate against any person or persons because of race, age, gender, religion, color, national origin, sexual orientation, or disability. Licensee shall comply with the Americans with Disabilities Act (ADA) and Minority and Women-owned Business Enterprises (M/WBE) requirements that would pertain to the City of Fort Worth in the absence of this License Agreement. SECTION 17 LICENSES AND PERMITS 17.01 Licensee agrees that Licensee will obtain and pay for all necessary permits, licenses and taxes incurred or required in connection with the operation of the Premises. 17.02 With the use and/or provision of amplified or non-amplified music in a City of Fort Worth facility, Licensee agrees to assume full responsibility for complying with the Federal Copyright Law of 1978 (17 U.S.C. 101, et seq.). This law states that the user is responsible for abiding by royalties, copyrighted works, and securing permission from artists/performers for any music used. FYI BMX 17.03 Copy of the documentation stating this organization's status as a 501(3)(c) entity is due annually, by May 151 of each, to the address specified for the Parks and Community Services Department in Paragraph 20 of this License. SECTION 18 VENUE AND JURISDICTION 18.01 This License Agreement shall be governed by the laws of the State of Texas. Venue for any action brought to interpret or enforce, or arising out of or incident to, the terms of this License Agreement shall be in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. SECTION 19 WAIVER, SECTION HEADINGS, AND SEVERABILITY 19.01 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 herein contained; provided, however, that the invalidity of any such covenant, condition or provision does not materially prejudice either Licensee or City in connection with the rights and obligations contained in the valid covenants, conditions or provisions of this License Agreement. SECTION 20 NOTICES 20.01 All notices shall be sent to City at the following address: Parks and Community Services Department 4200 South Freeway Suite 2200 Fort Worth, Texas 76115 District Engineer Attn: Chief, Real Estate Division ATTN: CESWF-RE P.O. Box 173000 Fort Worth TX 76102-0300 With copy to: Sarah Fullenwider Assistant City Attorney 1000 Throckmorton Street Fort Worth, Texas 76102 ��l J Mo 12 BMX All notices to Licensee shall be sent to the following address: Gary Elmore, President Parents of Bear Creek BMX Association, Inc. 3311 Shady Lane Arlington, TX 76001 Mailing of all notices pursuant to this Section shall be deemed sufficient if mailed postage prepaid and addressed as specified above, unless either party has been notified in writing of any changes. All time periods related to any notice requirements specified in this License Agreement shall commence either on the date notice is mailed, or on the date notice is received by the party to whom it is sent, depending on the terms specified in the Section requiring the notice. SECTION 21 MISCELLANEOUS PROVISIONS 21.01 It is understood that by execution of this Agreement, the City does not waive or surrender any of it governmental powers. 21.02 This written instrument constitutes the entire Agreement by the parties hereto concerning the lease of the facilities and obligations of the parties and any prior or contemporaneous oral or written agreement which purports to vary from the terms hereof, shall be void. It is understood and agreed that all the provisions of this License Agreement are applicable except where specifically modified by Addendum A, in which case such Addendum shall apply. 21.03 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. 21.04 This Agreement shall be binding upon and insure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors and, except as otherwise provided in this contract, their assigns. 21.05 The provisions and conditions of this Agreement are solely for the benefit of the City and Licensee, and any lawful assign or successor of Licensee, and are not intended to create any rights, contractual or otherwise, to any other person or entity. 21.06 Bankruptcy, insolvency, assignment for the benefit of creditors, or the appointment of a receiver will not affect this Agreement as long as Licensee and City or their respective successors or legal representatives continue to perform all covenants of this Agreement. 21.07 By executing this Agreement, Licensee's agent affirms that he or she is authorized by Licensee to execute this Agreement and that all representations made herein with regard to Licensee's identity, address and legal status (corporation, partnership, individual, etc.) are true and correct. 13 BMX IN WITNESS WHEREOF the said parti h ve hereto set their hands and seal of office to duplicate originals on this day of�� 2005. CITY OF FORT WORTH PARENTS OF BEAR CREEK BMX ASSOCIATION, INC. By: By: Libby Watson, Assistant City Manager EA ATTEST: &&��bA��ZTEST: City Secretary Corporate Secretary APPROVED AS TO FORM AND LEGALITY: 8— L-w- �David Yett, City Attorney ntract Autho�izatiox B,: 4 all Sarah Fullenwi r, Assista t City Attorney U. S. Army Corps of Engineers, Department of Army, does hereby consent to and approve the above License Agreement. U. S. ARMY CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY By:_ 069 BOBBY J.--r-AMP Acting Chief, Real Estate Division 14 CITY^ BMX 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, k ,�f the Parents of Bear Creek BMX Association, Inc., known to me to be the person whose ame is subscribed to the foregoing instrument, and acknowledged to me that the same was the act of the Parents of Bear Creek BMX Association, Inc., and that he/she executed the same as the act of such Association for the purposes and consideration therein expressed, and in the capacity therein stated. GIVE UNDER MY HAND AND SEAL OF THE OFFICE this the day of 32005. Notary Public in and for the State of Texas My Commission Expires: EERL. C A N 0 Notary Fut;'c,Stet®Of TWO STATE OF TEXAS My Cemm!saion E{pirea 05-24-06 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 of the City of Fort Worth, known to me to be the person 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/she executed the same as the act of such Department for the purposes and consideration therein expressed, and in the capacity therein stated. GIVEN UNDER MY FLAND AND SEAL OF THE OFFICE this theJ day of , 2005. ROSEI�ABARNES Notary Public in and for the State of Texas MY COMMISSION EXPIRES My Commission Expires: 03-3/'09 rr MarCh 31,2009 10IFFI-JwL WIND 15 ��I l'y Wl'-- nF . wil"o g, BMX 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, the BOBBY J. CAMP, U.S. Army Corps of Engineers, Department of the Army, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that the same was the act of the said U.S. Corps of Engineers, Department of the Army, and that he/she executed the same as the act of such Department for the purposes and consideration therein expressed, and in the capacity therein stated. GIVEN DER MY HAND AND SEAL OF THE OFFICE this the day of ) 2005. Notary Public in and for t e tate of Texas My Commission Expires: -5 0 y\\Iil Yiiii 3rd;!."•`!Y,."; PAMELA T.EPPINETTE a i - Notary Public,state of Texas s My Commission Expires if July 30,2006 16 `Ty, TES:. City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 2/1/2005 DATE: Tuesday, February 01, 2005 LOG NAME: 80BMX REFERENCE NO.: C-20512 SUBJECT: Authorization to Enter into a License Agreement with Parents of Bear Creek BMX Association for Use of a Portion of Pecan Valley Park Formerly Known as Derby Downs RECOMMENDATION: It is recommended that the City Council authorize the City Manager to enter into a License Agreement with Parents of Bear Creek BMX Association for use of a portion of Pecan Valley Park formerly known as Derby Downs. DISCUSSION: The Parks and Community Services Department has been working with a non-profit organization, Parents of Bear Creek BMX Association (BCBMX), regarding the use of park space for a bicycle BMX track. The park site being considered is the area in Pecan Valley Park known as Derby Downs. The Soap Box Derby program has tried several times over the past few years to resurrect their program with very little success. Currently there are no other contractual agreements for use of the track, and during 2003 and 2004 there were no rentals. Since Pecan Valley Park is federally owned and leased to the City of Fort Worth, City staff met with the Army Corps of Engineers in February 2004 to discuss the feasibility of using a portion of the existing Soap Box Derby area as the site for BCBMX. The Corps expressed an interest in programs that increase the use of the Park and specified that the use agreement include the specific requirements of the Federal Government. The BMX track would use the highest point of the existing track and the unused area south of the track. BCBMX will use the existing building at this site for storage of equipment. This track would be the only BMX track in the Fort Worth area. BCBMX is expecting to hold tournaments and other events. Major terms of the Agreement include a five year primary term, with one, five year option, a $1.00 per year payment, concession rights with all proceeds going to the maintenance and operation of the facility, a 30- day termination clause and standard insurance and indemnification coverage. This complex will serve all ages, ranging from under six years of age to over 50 years of age. The cost construction is valued at approximately $100,000. This includes a $10,317 grant from the Neighborhood Park Development Grants Program, $4,000 cash from BCBMX, and the remainder in in-kind services, volunteer labor and donations. On January 18, 2005, the Parks and Community Services Advisory Board approved a recommendation to the City Council to authorize a License Agreement with Parents of Bear Creek BMX Association to utilize a portion of Pecan Valley Park as a bicycle BMX track. Pecan Valley Park is located in COUNCIL DISTRICT 3 and this proposed facility will service the entire city. Logname: 80BMX Pagel of 2 FISCAL INFORMATION/CERTIFICATION: The Finance Director certifies that this action will have no material effect on City funds. TO Fund/AccounMenters FROM Fund/AccounMenters Submitted for City Manager's Office br. Libby Watson (6183) Originating Department Head: Randle Harwood (Acting) (5704) Additional Information Contact: Sandra Youngblood (5755) Logname: 80BMX Page 2 of 2