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HomeMy WebLinkAboutContract 33403 CITY SECRETARY CONTRACT NO. LICENSE AGREEMENT 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, Tarrant Regional Water District (TRWD) a Water Control and Improvement District of the State of Texas, acting by and through its General Manager, and Texas Health Group Incorporated d/b/a Greenbelt Canoe Rentals (Licensee), a for profit Texas corporation, acting by and through its duly authorized President. WHEREAS, the Tarrant Regional Water District, is a political subdivision of the State of Texas formed in 1924 with the purposes of water supply and flood control, manages the Trinity River within Tarrant County; and WHEREAS, Trinity Park is a city-owned park located along the banks of the Trinity River containing several playgrounds and the Trinity River Trails, a hike and bike trail; and WHEREAS, Texas Health Group, Incorporated d/b/a Greenbelt Canoe Rentals is requesting that the City of Fort Worth approve the use of a portion of Trinity Park to locate a trailer to be used as a concession stand and storage facility for the purpose of operating a boat rental facility on said property; and WHEREAS, in order to rent canoes, paddle boats and kayaks for use on the Trinity River, the Texas Health Group, Incorporated d/b/a Greenbelt Canoe Rentals, is requesting that the Tarrant Regional Water District approve the use of river frontage along the Trinity River. SECTION 1 LICENSED PREMISES 1.01 NOW, THEREFORE, City grants a non-exclusive license unto Licensee to use and occupy a portion of Trinity Park, adjacent to the handicapped access area located in Trinity Park, which is located at 300 North Main/600 Congress in the City of Fort Worth, as shown outlined on Exhibit "A," (hereinafter referred to as the "Premises"). TRWD also authorizes the Licensee to access the Trinity River and to use a portion of the river frontage to launch and recover boats, including canoes, paddle boats and kayaks. 1.02 Licensee will not be able to use the river or park areas and agrees to remove all personal property from the park and river frontage areas three weeks prior to, during and for two weeks after the annual Mayfest event in Trinity Park. In addition, due to stocking of fish in the river, Licensee will not be able to use the river or river frontage for approximately five (5) days on specific dates during the months of December, January and February of each year and Licensee further agrees to remove all personal property from the river frontage on these dates. Licensee is to request the list of specific dates from TRWD annually, by November 15`h. 1.03 Any agreement for the use of any additional river frontage at the site by the Licensee may be accomplished at the discretion of TRWD, and any addition of park property 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 City and the TRWD. SECTION 2 ANNUAL RENTAL 2.01 For and in consideration of the license and privileges granted hereunder, Licensee agrees to pay to City a sum equal to ten percent (10%) of all gross receipts taken in through or by virtue of its operation of a canoe, paddle boat and kayak concession on the Premises, and a sum of money equal to ten percent (10%) of the gross receipts taken in by Licensee by virtue of its food and drink concession operations on the Premises. 2.02 All payments hereunder shall be made on a monthly basis, and shall be determined by the gross receipts earned by the Licensee during the previous month's operations on the Premises. Each payment made under this Agreement will be accompanied by a signed, statement. All payments for the preceding month's operations shall be made no later than the tenth day of the following month at the following address. City of Fort Worth Parks and Community Services Department Southwest Region Administration 4200 South Freeway, Suite 2200 Fort Worth, TX 76115 2.03 The term "gross receipts" as used herein shall include all monies taken in by the Licensee at, through or by virtue of its operations under this agreement on the Premises, and shall include, but not be limited to monies received by Licensee, its successors or assigns from its sale of goods, wares, merchandise, services, tickets and admissions in, upon or from any part of the Premises. "Gross Receipts" shall also include sales and charges for cash or credit, regardless of collection in case of the latter, but shall not include any tax levied by any municipal, state or federal government which is required by law to be separately stated and collected from the consumer or purchaser at the time of rendition of the service or sale of merchandise, admission or ticket. 2.04 The items of sale or services above enumerated are merely descriptive and do not exclude other sales or services, whether similar or different, and the term "gross receipts" is used in a comprehensive all-inclusive sense. 2.05 Licensee shall keep complete and accurate records, books and accounts according to customary business practices, and City or its representatives shall have the right to examine and audit said records, books and accounts at any reasonable time. Licensee agrees that the City will have the right to audit the financial and business records of Licensee that relate to the operation of concessions (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 at a location in the City acceptable to both parties, following reasonable advance notice by the City, and shall otherwise cooperate fully with the City during any audit. Notwithstanding anything to the contrary herein, this Section 2.05 shall survive expiration or earlier termination of this Agreement. 2.06 Licensee shall furnish the City on or before the tenth day of the month a signed, sworn statement showing the amount of all gross receipts earned during the preceding month and fees due to the City from boat rental and concession sales. SECTION 3 TERM OF LICENSE AGREEMENT 3.01 This License Agreement shall be for a period of one (1) year commencing on April 1, 2006, and terminating on March 31, 2007, unless earlier termination is exercised by either party pursuant to the termination provisions expressed herein. This License Agreement may be renewed by mutual, written consent of all parties for a period of one (1) additional year. 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 and TRWD reserve 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 TRWD shall have the right, through their agents and representatives, to enter into and upon the Premises at reasonable times 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; CONSTRUCTION 5.01 Licensee, subject to the terms and conditions of this License Agreement, will be permitted to install or construct facilities and other temporary or permanent improvements that may be needed to fulfill the recreational purposes of a canoe and paddle boat rental operation. Facilities and improvements will be constructed only upon prior written consent of City and TRWD; such consent shall not be unreasonably withheld. Prior written approval of the general design and location of proposed facilities or improvements by the Director of the Parks and Community Services Department (PACSD) of the City, and the General Manager of TRWD, is required. 5.02 All plans and specifications for the construction and or installation of a trailer, or any other improvements to the Premises and any additional facilities and other permanent improvements 3 shall require prior written approval of the PACSD Director, Transportation and Public Works Director of the City of Fort Worth and the General Manager of TRWD, as appropriate based on location of the proposed construction or improvements. 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. Approval by the Transportation and Public Works Director, the PACSD Director, and the TRWD General Manager 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 or TRWD 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 TRWD be approval of only the general design concept of the improvements to be constructed). 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 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. 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 as dual obliges. The surety on the bonds shall meet the requirennents of Chapter 2253, Government Code, and shall otherwise be acceptable to City. 6.04 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 or TRWD in the absence of this License Agreement. 4 Np ar, n i �� t 6.05 Licensee shall, at its sole cost and expense and subject to the prior approval of the Parks and Community Services PACSD Director and the TRWD General Manager, have the right to locate necessary utility lines on the Premises and adjacent property that City or TRWD have the right to occupy. SECTION 7 USE OF PREMISES; COMPLIANCE WITH LAW; EASEMENTS; SAFETY 7.01 Licensee covenants and agrees that said recreational complex shall be installed, 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 TRWD, and any attempted subcontract or assignment of same without such prior consent of City and TRWD 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. 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 and TRWD 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 agrees to follow all industry standards related to the safe operation of a paddle boat and canoe concession, and further agrees to insure that all customers shall, when on or within 15 feet of the river, wear approved Personal Flotation Devices (life jackets), which meet United States Coast Guard requirements. 7.06 Licensee further covenants and agrees to continually monitor weather reports to ensure that no one is allowed on the river during any severe weather conditions in the area or when a severe weather watch or warning has been issued by the National Weather Service for the area. 7.07 In the event that a permit is required by the State of Texas to operate the canoe and paddle boat rental operation as an amusement ride, said permit will be obtained as required by State law and prominently displayed on the Premises. A copy of the permit and any results of inspections performed by the State will be provided to City and TRWD within ten working days of receipt by the Licensee. 7.08 Licensee is given the right to sell goods, concessions and services on the demised Premises with the prior approval of the PACSD 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 for profit organization, acting through its officers and successors in office. 7.09 If food and beverages are served to the public, Licensee is required to obtain the necessary permits and information on proper dispensing and handling procedures from the Fort Worth Public Health Department and comply with all applicable rules and regulations related to the handling and serving of food as required by the City and the State. A copy of the Temporary Permit, if required, must be submitted to the Park Reservationist at the address listed under "Notices," below before any food or beverages may be served to the public. 7.10 Licensee shall meet all applicable City and State rules and regulations governing restroom facilities within Trinity Park to include meeting any ADA standards. Licensee shall also comply with all City and State regulations regarding cleanliness and provision of supplies in any restrooms that may be required on the leased Premises. 7.11 Licensee covenants and agrees that it will not permit the sale of alcoholic beverages on the Premises at any time. 7.12 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. 7.13 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 rentals or event shall begin on or after 9:00 p.m. of any night, and that immediately following the conclusion of any rentals or event which ends after 9:00 p.m., or upon the conclusion of any other recreational activity, the lights will be turned off, however, no event shall last longer than 11:30 p.m. Thereafter, the only lighting permitted shall be lighting necessary to pick up trash, litter and debris to generally clean the area, or to provide security for the facility. 7.14 Licensee shall be permitted to maintain a public address system for use only in the conduct of recreational activities on the premises. 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 loudspeaker or otherwise, of such character, intensity or continued duration which substantially interferes with the comfortable enjoyment of the Premises by persons of ordinary sensibilities. Licensee shall remove speaker or speakers at request of PACSD Director or the TRWD General Manager. 7.15 Licensee shall make the Premises available to other groups as scheduled by City or TRWD. L 6 7.16 Licensee shall have the right to erect signs in compliance with all federal, state, local and City 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 PACSD Director and/or the TRWD General Manager, or their respective designee. 7.17 If the United States Department of Homeland Security or the City of Fort Worth issues a Level Orange or Level Red Alert or any form of high security alert or state of emergency, the City, in its sole discretion, may close or postpone the opening of the parks 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 TRWD shall have the right, through their agents and representatives, to make inspections of the Premises for any repairs that, in City's or TRWD'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 thirty (30) days and complete said repairs within sixty (60) days from the date that notice from the City or TRWD 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 that City or TRWD may, within their discretion, make such repairs as they may deem necessary, and Licensee shall pay the cost of the repairs upon demand by City or TRWD 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. 7 8.04 Collection and proper disposal of trash, garbage, litter and debris on the Premises will be the responsibility of Licensee, at its sole cost and expense and shall be removed on a daily basis. 8.05 Growth of weeds and other vegetation on the Premises shall be maintained by the City on a bi-weekly maintenance schedule subject to availability of funds in the annual budget. Any additional maintenance will be the responsibility of the Licensee. All maintenance will be performed in accordance with the current standards of PACSD and TRWD. SECTION 9 IMPROVMENTS; REPLACEMENTS; ADDITIONS; REMOVALS 9.01 Licensee covenants and agrees that City or TRWD 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 TRWD from and against anv and all such claims. The City and TRWD 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 AND TWRD, THEIR OFFICERS, AGENTS, VOLUNTEERS AND EMPLOYEES 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 OR TRWD; AND LICENSEE HEREBY ASSUMES ALL LIABILITY AND RESPONSIBILITY OF CITY AND TRWD, THEIR OFFICERS, AGENTS, VOLUNTEERS AND EMPLOYEES FOR ANY AND ALL SUCH CLAIMS OR SUITS. LICENSEE SHALL LIKEWISE INDEMNIFY AND HOLD THE CITY AND TRWD 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 OR TRWD. SECTION 11 INSURANCE REQUIREMENTS 11.01 Licensee shall, prior to 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: 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 a 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 and Tarrant Regional Water District shall be named as Additional Insureds The insurance policy shall include the following: a. The term of insurance is for the duration of this License Agreement; b. The policy shall require that thirty (30) days prior to cancellation or any material change in coverage, a notice shall be given to City and TRWD by certified mail; c. Insurers shall have no right of recovery or subrogation against the City or TRWD, it being the intention that the insurance policy shall protect all parties to the agreement and be primary coverage for all losses covered by the policies; d. Company issuing the insurance policy shall have no recourse against the City and TRWD for payment of any premiums or assessments for any deductibles which all are at the sole risk of Licensee; e. The terms "Owner", "City", or"City of Fort Worth" shall include all authorities, Boards, Bureaus, Commissions, Divisions, Departments and Offices of the City and TRWD and the individual members, employees and agents thereof in their official capacities and/or while acting on behalf of the City; f The policy clause "Other Insurance" shall not apply to any insurance coverage currently held by City or TRWD, to any future coverage, or to City's or TRWD's self-insured retention of whatever nature; and g. The City and TRWD reserve 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 or TRWD 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 or TRWD. The City or TRWD shall be required to provide ninety (90) days prior notice of any change in coverage or limits. 11.02 Licensee hereby waives subrogation rights for loss or damage against the City or TRWD, their 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. 9 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 and TRWD 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 and Tarrant Regional Water District shall be named as Additional Insureds 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 and to TRWD. 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. SECTION 12 SUBLETTING; ASSIGNING; MORTGAGING 12.01 Licensee shall not assign this contract nor suffer any use of the Premises other than herein specified, nor sublet the Premises or any part thereof without the written consent of City and TRWD. Any assignment or sublease entered without express written consent by the TRWD General Manager 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 CHARITABLE IMMUNITY 13.01 Licensee 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 Licensee hereby expressly waives its right to assert or plead defensively any such immunity or limitation of liability as against City. SECTION 14 EVENTS OF DEFAULT BY LICENSEE; REMEDIES AND TERMINATION 14.01 It is expressly provided that City and TRWD 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 10 : . upon thirty (30) days written notice to City and TRWD. It is understood and agreed that any rights or interest that the City or TRWD have in the Premises are contained in this License Agreement. 14.02 In the event the License Agreement is terminated or Licensee is evicted from the Premises for any reason, neither City or TRWD 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. 14.03 Licensee covenants and agrees that in the event of a breach of any covenant contained herein by Licensee, then and in that event, City or TRWD may, at their option declare this License Agreement forfeited and terminated, as to the balance of the term. 14.04 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 PACSD Director and the TRWD General Manager. If the City revokes this License Agreement, Licensee shall vacate the Premises, remove said property, and restore the Premises within such time, as the PACSD Director of the City of Fort Worth and the TRWD General Manager 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 City or TRWD, without compensation and no claim for damages against City or TRWD or their officers or agents shall be created by or made on account thereof. 14.05 If the Premises or any portion thereof shall be destroyed or damaged by fire or other 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 riot, 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 15 REMEDIES; NO WAIVER 15.01 The waiver by City or TRWD 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 16 INDEPENDENT CONTRACTOR 16.01 Licensee shall conduct all activities on the Premises as an independent contractor, and not as an officer, agent, servant or employee of City or TRWD; 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, 11 agents, employees, contractors, subcontractors, licensees and invitees; that the doctrine of respondeat superior shall not apply as between City, TRWD and/or 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, TRWD and Licensee. SECTION 17 NON-DISCRIMINATIONIDISABILITIES 17.01 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 or TRWD in the absence of this License Agreement. SECTION 18 LICENSES; FEES AND PERMITS 18.01 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. 18.02 Licensee shall submit to the PACSD Director a list of fees, rates and prices proposed for the following 12 months at least 14 days prior to execution of this agreement and not less than 60 days prior to April 30th of each year that this License Agreement remains in effect. Licensee shall keep a schedule of such fees, rates or prices posted at all times in a conspicuous place on the Premises. 18.03 Licensee agrees to assume full responsibility for complying with the Federal Copyright Law of 1978 (17 U.S.C. 101, et seq.) and any Regulations issued thereunder including, but not limited to, the assumption of any and all responsibilities for paying royalties which are due for the use of copyrighted works in Licensee's performances or exhibitions to the copyright owner, or representative of said copyright owner. City expressly assumes no obligations, implied or otherwise, regarding payment or collection of any such fees or financial obligations. City specifically does not authorize, permit or condone the performance, reproduction or other use of copyrighted materials by Licensee or its agents or sub-licensees without the appropriate licenses or permission being secured by Licensee in advance. It is further agreed that Licensee shall defend, indemnify and hold City harmless for any claims arising from nonpayment to licensing agencies, including, but not limited to ASCAP, BMI and SESAC or damages arising out of Licensee's infringement or violation of the Copyright Law and/or Regulations. City expressly assumes no obligation to review or obtain appropriate licensing and all such licensing shall be the exclusive obligation of Licensee. Licensee understands that they are responsible for securing any and all licenses by artists/performers giving permission for the recordings. Licensee is responsible for both reporting and payment of any music licensing fees that may be required by law. 12 Licensee understands and agrees that without the proper license obtained by Licensee, there is a risk of an injunction or money damages arising from a copyright lawsuit brought by ASCAP, BMI, SESAC or any other licensing agency. SECTION 19 VENUE AND JURISDICTION 19.01 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 20 WAIVER; SECTION HEADINGS AND SEVERABILITY 20.01 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 21 NOTICES 21.01 All notices shall be sent to City at the following addresses: Director, Parks and Community Services Department Southwest Region Administration 4200 South Freeway Suite 2200 Fort Worth, TX 76115 General Manager Tarrant Regional Water District 800 East Northside Drive Fort Worth, TX 76102 With copy to: Christ Lopez Assistant City Attorney 1000 Throckmorton Street Fort Worth, TX 76102 17 13 �•2U r All notices to Licensee shall be sent to the following address: Allen Walker, President Texas Health Group, Inc. 1508 Oak Grove Road East Burleson, TX 76028 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 22 MISCELLANEOUS PROVISIONS 22.01 It is understood that by execution of this Agreement, neither City nor TRWD waive or surrender any of their governmental powers. 22.02 This written instrument constitutes the entire Agreement by the parties hereto concerning the lease of the Premises 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. 22.03 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. 22.04 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. 22.05 The provisions and conditions of this Agreement are solely for the benefit of the City, TRWD 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. 22.06 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 TRWD or their respective successors or legal representatives continue to perform all covenants of this Agreement. 22.07 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. 14 IN WITNESS WHEREOF the said parties he ret set their hands and seal of office to duplicate originals on this day of 2006. CITY OF FORT WORTH TEXAS HEALTH GROUP, INCORPORATED APPROVED Y: d/b/a Greenbelt Canoe Rentals By15-- : Libby Watson, Assi t City Manager Allen Walker, resident RECOMMEDED BY: ATTEST: Corp ate Secretary By: ndle Harwo Acting it for Parks and Community Services Department "or.tract Authorization ATTEST: i a t e ity,Secretary APPROVED AS TO FORM AND LEGALITY: By: - )G�- �-7�-� �- AssistaVty Attorney TARRANT RE NA TER DISTRICT By: I— --_ iv r, eral Manager 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, Allen Walker of Texas Health Group, Incorporated d/b/a Greenbelt Canoe Rentals, 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 Texas Health Group, Incorporated d/b/a Greenbelt Canoe Rentals and that he executed the same as the act of such Corporation for the purposes and consideration therein expressed, and in the capacity therein stated. GIV N UNDER MY HAND AND SEAL OF OFFICE this the �� day of 2006. Notary Public i dor the St a of Texas My Commission res: I ARILYN ISAACS Notary Public " STATE OF TEXAS STATE OF TEXAS § 4 Aly tomo.Ev.01123/2010 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 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 HAND AND SEAL OF OFFICE this the 6-9 day of 2006. RostuatEs Notary Public in and for the State of Texas "= MYCOMMISSION EXPIRES My Commission Expires: 3 D I1mch 31,2009 OFFlCIw1 ROD 16 cirf gFuRETRY FT. %'N'G19, UK". I i 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, Jim Oliver the General Manager of the Tarrant Regional Water District, 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 Tarrant Regional Water District, and that he executed the same as the act of such District for the purposes and consideration therein expressed, and in the capacity therein stated. GIV N VNDER MY HAND AND SEAL OF OFFICE this the day of 52006. Nota for the State of Texas � Notary Public in a C-3 PRY PSB•ss�,.�, My Commission Expires: FOf1c�P� A 17 r a I All �,,,,.,. :y ��' .Y = '"%ifs-•��- 1 c q ��y. '�Y �. •4 a } 1 • 1 •1 • 1 1 ► � T '. I Pagel of 2 City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 3/21/2006 DATE: Tuesday, March 21, 2006 LOG NAME: 80TRINITY BOATS REFERENCE NO.: **C-21354 SUBJECT: Authorization to Execute a Contract with Texas Health Group, Incorporated d/b/a Greenbelt Canoe Rentals to Operate a Boat Rental Concession in Trinity Park RECOMMENDATION: It is recommended that the City Council authorize the City Manager to execute a contract with Texas Health Group, Incorporated d/b/a Greenbelt Canoe Rentals to use approximately .2 acres in Trinity Park to operate a boat rental concession. DISCUSSION: Texas Health Group, Incorporated d/b/a Greenbelt Canoe Rentals (GCR) contacted the Parks and Community Services Department (PACS) requesting to operate a concession to rent canoes, paddle boats and kayaks to the general public on the Trinity River. The agreement, if approved by City Council and the TRWD General Manager, will permit GCR to operate the boat rental and sell food and beverages to the general public. The agreement will require GCR to obtain all required City health permits and any certifications or licenses that may be required by the State of Texas. In addition, GCR will be required to have $11M worth of liability insurance coverage, fully indemnify the City against any claims or suits arising out of their operations and comply with all City, State and Federal laws, ordinances, rules and regulations. The boat rental will provide another activity for residents and visitors to enjoy in Trinity Park and is expected to attract additional visitors to the park and the City. The initial term of the agreement is for one year with one option to renew for an additional year. Annual revenue to the City is not expected to exceed $25,000 during the initial term, but is expected to increase over time. During the second year of operation, the program will be reassessed and the vendor and City will determine whether or not to enter into a subsequent agreement for a longer period. GCR will be prohibited from operating the boat rental concession for three weeks prior to and for two weeks after the annual Mayfest event in Trinity Park under this agreement. GCR indicated that they intend to enter into a seperate agreement with Mayfest, Incorporated to operate during the event. In addition, GCR is not to operate the concession for five days during October, November and December each year when TRWD is stocking fish. GCR will pay the City a monthly rental fee equal to 10% of gross receipts. The fee will be submitted to the Parks and Community Services Department on or before the 10th day of each month, and will be based on total revenues collected in the prior month for boat rentals and sale of goods, merchandise, food, and beverages. This project is located in COUNCIL DISTRICT 9. http://www.cfwnet.org/council_packet/Reports/mc_print.asp 4/21/2006 Page 2 of 2 FISCAL INFORMATION/CERTIFICATION: The Finance Director certifies that the Parks and Community Services Department will be responsible for the collection and deposit of all rental fees due the City from this proposal. TO Fund/Account/Centers FROM Fund/Account/Centers GG01 465235 0807010 $0.00 Submitted for City Manager's Office by: Libby Watson (6183) Originating Department Head: Randle Harwood (Acting) (5704) Additional Information Contact: Sandra Youngblood (5755) http://www.cfwnet.org/council_packet/Reports/mc_print.asp 4/21/2006