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HomeMy WebLinkAboutContract 33486 CITY SECRETARY CONTRACT NO. ADOPT-A-PARK AGREEMENT FOR MAINTENANCE AND LANDSCAPING SERVICES THIS AGREEMENT is made and entered into this _ — day of 2006, by and between the City of Fort Worth, a home rule municipal corporatiA situated in Tarrant, Denton and Wise Counties, Texas (hereinafter referred to as "City") acting by and through the Director of the Parks and Community Services Department (hereinafter referred to as "Director") and Karen Foley, individually, as a resident of the City of Fort Worth (hereinafter referred to as "Contractor"). SECTION I DESCRIPTION OF PROPERTY 1.01 The City hereby engages the Contractor, and the Contractor hereby agrees, to provide, furnish, or perform the services to be provided on a State of Texas owned median located in the City of Fort Worth at the intersection of East Lancaster Avenue and Perkins Street (hereinafter called the"Premises"), as further described in this Agreement in Exhibit"A". SECTION 2 DUTIES AND RESPONSIBILITIES 2.01 The Contractor shall commence and provide such services in accordance with this Agreement and its attachments and all applicable laws. In providing such services, the Contractor shall take such steps as are appropriate to ensure that the work involved is properly coordinated with any related work performed by the City or the State of Texas Department of Transportation (hereinafter referred to as the "State"). 2.02 Plans for all work and underground drip irrigation system shall be submitted to the City not less than 60 days prior to construction or installation. No work shall commence until approval has been granted by the City. Any work in progress prior to approval may be stopped and subject to removal and/or replacement. 2.03 The Contractor represents that she has or will secure, at her own expense, all materials, supplies, machinery, equipment, tools, superintendence, labor, personnel, insurance, and other accessories and services necessary to provide the following improvements on the Premises: a. Installation and maintenance of all plant material and as a minimum to water all new plants until they are established. b. Removal and replacement of any dead plant material throughout the course of this agreement within thirty (30) days of observing that plant material has died. Plant replacements do not require advance approval. c. Installation and maintenance of the underground drip irrigation system. Installation of irrigation system shall be performed by a licensed irrigator. The Contractor agrees that no sprinkler devices will be attached to the end of any hoses or pipes that would create an above-ground sprinkler or cause any water to run off above ground when the irrigation system is used. A water breaker may be attached to hoses for hand Page 1 of 8 ` ��C� l °'� %1 Y watering of plant material. The Contractor shall adhere to the Parks and Community Services Department's "Water Conservation/Rationing Procedures", Exhibit B. d. Provide the City with a landscape plan prior to installation of plants or irrigation system. Landscape plan shall list all plant material to be used and area to be irrigated. Only those plants known to survive in the climate in this area will be acceptable for use. Landscape plan shall be approved by the City and the State prior to the commencement of any work. e. Use of hardscapes (boulders, concrete paving, etc.), grade changes, changes made after the initial installation, and any proposed future improvements shall be approved by the City and the State prior to any work being done. f. Provide the City with name(s) of subcontractors working on Premises. Contractor and subcontractor(s) are permitted to use motorized equipment on the Premises only for the purpose of installation of landscape materials. Contractor and subcontractor(s) shall NOT be permitted to use motorized equipment for the maintenance of the Premises. g. The payment of all electrical connections, monthly electrical bills, water tap/meter fees and monthly water bills. h. Collect and properly dispose of all trash, litter, and debris related to the Contractor's scope of services. 2.04 The City will perform the following: a. Make inspections to determine compliance with this agreement. In the event the City observes non-compliance, the Contractor will be notified and given a reasonable period of time to correct the problem. b. Provide labor to plant trees if trees are containerized and not balled and burlapped. 2.05 In the event that any City-owned property, such as utilities, equipment, turf, etc., are damaged or destroyed during installation, watering, or maintenance of the landscape improvements due to negligence or acts of omissions of the Contractor, the Contractor shall be responsible for all repairs or replacements. 2.06 Contractor and all volunteers shall attend safety training to be provided by Parks and Community Services Department (PACSD). The PACSD will conduct the training at a time and location to be mutually agreed upon by the Contractor and PACSD. The Contractor and volunteers shall attend training prior to performing any service on the Premises. SECTION 3 TERM OF AGREEMENT 3.01 This agreement is for a term of tw (2) years- ginn the day of 2006, and ending on the_ .30A day of , 2008. This agree nt may be extended for two (2) consecutive, one-year perioJ upon mutual written consent by both parties. Page 2of8 SECTION 4 TITLE AND CONSTRUCTION 4.01 Contractor shall not make or cause to be made any alterations, additions or improvements to the Premises without the prior written consent of the Director. Contractor shall present to the Director the plans and specifications for such alterations, additions and improvements at the time such approval is sought. 4.02 All alterations, additions and improvements to the Premises made with the written consent of the Director shall, upon completion and acceptance by the City, become the property of the State. Contractor may be required to remove, at its expense, any alterations, additions or improvements not meeting specifications as approved by the City. SECTION 5 RIGHT OF ACCESS 5.01 City, through the powers granted to it by the State, does not relinquish the right to control the management of the Premises, or the right to enforce all necessary and proper rules for the management and operation of the same. City through its Manager, Parks and Community Services Director, police and fire personnel, and other designated representatives, has the right at any time to enter any portion of the Premises (without causing or constituting a termination of the use or an interference of the use of the Premises by the Contractor) for the purpose of inspecting and maintaining the same and doing any and all activities necessary for the proper conduct, operation, and maintenance of the Premises; provided this shall not authorize or empower City to direct the activities of the Contractor or assume liability for Contractor's activities. 5.02 The City reserves the right to modify any improvements made by the Contractor at the Premises as determined necessary by the Director should any of the following occur: a. The Contractor ceases to maintain the Premises according to this Agreement; b. The area becomes a hazard to the general public as determined by the City or the State; or c. The City or the State determines in its sole discretion, to make use of the Premises for the installation of any public utilities or improvements. SECTION 6 INDEMNIFICATION 6.01 CONTRACTOR COVENANTS AND AGREES TO AND DOES HEREBY INDEMNIFY, HOLD HARMLESS AND DEFEND, AT ITS OWN EXPENSE, CITY, ITS OFFICERS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR PROPERTY LOSS OR DAMAGE AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF THE WORK AND SERVICES AND PERFORMANCE OF THIS AGREEMENT TO BE PERFORMED HEREUNDER BY CONTRACTOR, ITS OFFICERS, AGENTS, EMPLOYEES, SUBCONTRACTORS, LICENSEES OR INVITEES, WHF. 7HER OR NOT Pae 3 of 8 CAUSED, IN WHOLE OR IN PART, BY THE ALLEGED NEGLIGENCE OF THE OFFICERS, SERVANTS, EMPLOYEES, OF THE CITY, CONTRACTOR LIKEWISE COVENANTS AND AGREES TO, AND DOES HEREBY, INDEMNIFY AND HOLD HARMLESS CITY FROM AND AGAINST ANY AND ALL INJURIES, DAMAGE, LOSS OR DESTRUCTION TO PROPERTY OF CITY DURING THE PERFORMANCE OF ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT BY CONTRACTOR, ITS OFFICERS, AGENTS, EMPLOYEES, SUBCONTRACTORS, LICENSEES OR INVITEES, WHETHER ARISING OUT OF IN WHOLE OR IN PART,ANY AND ALL ALLEGED ACTS OR OMISSIONS OF OFFICERS, OR EMPLOYEES OF CITY. 6.02 Contractor covenants and agrees that City shall in no way nor under any circumstances be responsible for any property belonging to Contractor, employees, agents, contractors, subcontractors, invitees, licensees, or trespassers, which may be stolen, destroyed, or in any way damaged, and Contractor hereby indemnifies and holds harmless City from and against any and all such claims. The City does not guarantee police protection and will not be liable for any loss or damage sustained by Contractor, its members, employees, agents, contractors, subcontractors, invitees, licensees, or trespassers on any of the Premises. 6.03 It is further agreed that the acceptance of this Release shall not constitute a waiver by the City of any defense of governmental immunity, where applicable, or any other defense recognized by the Statutes and Court decisions of this State. SECTION 7 INSURANCE 7.01 Contractor shall not allow, permit, or commence any work or installation of an irrigation system on the Premises until all the insurance required by this Agreement has been approved by the City. The Insurance requirement of this Agreement applies specifically to the installation and repair of an underground drip irrigation system. Contractor shall be responsible for delivering certificates of insurance for the City's approval. The insurance coverage required herein shall include the coverage of all contractors/subcontractors, or such contractors/subcontractors shall provide to Contractor, documentation of insurance reasonably equivalent to that required, according to the liability exposures related to the contractor's/subcontractor's services and/or materials. A. Commercial General Liability Insurance: Contractor and/or subcontractor shall procure and maintain during the life of this contract and any extension period, a commercial general liability insurance policy in the amount not less than $500,000 covering each occurrence. B. Worker's Compensation Insurance: Contractor/subcontractor shall maintain, during the life of this contract and any extension period, statutory Workers Compensation and Employers Liability Insurance on all of its employees engaged in work under this contract. C. Automobile Insurance: Contractor/subcontractor shall procure and maintain, during the life of this contract and any extension period, a comprehensive bodily injury and Page 4 of 8 property damage automobile liability policy in the amount not less than $1,000,000 for each accident. 7.02 The insurance specified in 7.01. hereof shall comply with the following requirements: a. The City of Fort Worth, its Officers, Employees and Volunteers shall be named as an Additional Insured. b. Thirty (30) days prior notice of cancellation or non-renewal. c. Wavier of rights of recovery (subrogation)in favor of the City of Fort Worth. d. The insurers for all policies must be licensed/approved to do business in the State of Texas. Except for workers' compensation, all insurers must have a minimum rating of A: VII in the current A. M. Best Key Rating Guide or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. If the rating is below that required, written approval of Risk Management is required. e. If insurance policies are not written for specified coverage limits, an Umbrella or Excess Liability insurance for any differences is required. Excess Liability shall follow form of the primary coverage. f. Unless otherwise stated, all required insurance shall be written on the "occurrence basis". g. The deductible or self-insured retention (SIR) affecting required insurance coverage shall be acceptable to and approved in writing by the Risk Manager of the City of Fort Worth in regards to asset value and stockholders' equity. In lieu of traditional insurance, alternative coverage maintained through insurance pools or risk retention groups, must also be approved by the City's Risk Manager. 7.03 The City, at its sole discretion, reserves the right to review the insurance requirements and to make reasonable adjustments to lines of insurance coverage and their limits when deemed necessary and prudent by the City based upon changes in statutory law, court decision or the claims history of the industry as well as of the contracting party to the City of Fort Worth. The City shall be required to provide ninety (90) days prior notice. SECTION 8 LIABILITY 8.01 Contractor 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 Contractor hereby expressly waives its right to assert or plead defensively any such immunity or limitation of liability as against City. Contractor shall submit proof of 501(c)(3) eligibility to the City annually. Page 5 of 8 SECTION 9 INDEPENDENT CONTRACTOR 9.01 Contractor shall perform all work and services hereunder as an independent contractor, and not as an officer, agent, servant or employee of the City. Contractor shall have exclusive control of, and the exclusive right to control the details of the work performed hereunder, and all persons performing same, and shall be solely responsible for the acts and omissions of its officers, agents, employees and subconsultants (or subcontractors). Nothing herein shall be construed as creating a partnership or joint venture between the City and Contractor, its officers, agents, employees and subconsultants (or subcontractors), and doctrine of respondent superior has no application as between the City and Contractor. SECTION 10 LICENSES AND PERMITS 10.1 Contractor shall comply with all federal, state and local laws, rules and regulations as, well as with all regulations, restrictions and requirements of the police, fire and health departments now or hereafter in effect which are applicable to its operations. Contractor shall obtain and keep in effect at its own cost and expense all licenses, permits, and taxes incurred or required in connection with this Agreement and its operations hereunder. SECTION 11 LIENS 11.01 Contractor agrees that it shall do no act nor make any contract that may create or be the foundation for any lien upon or interest in the City's park property, and any such contract or lien attempted to be created shall be void. Should any purported lien on City park property be created or filed, Contractor, at her sole expense, shall liquidate and discharge same within ten (10) days after notice from City to do so. SECTION 12 TERMINATION AND DEFAULT 12.01 Either party may terminate this Agreement without cause by the giving of thirty (30) days notice in writing to the other party. 12.02 In the event Contractor fails to comply with any of the terms and conditions of this Agreement, City shall have the right, and without notice, to declare this Agreement immediately terminated and to enter into and take full possession of the premises save and except such personal property and equipment as may be owned by Contractor. In the event of such cancellation of this Agreement by the City, all rights and privileges of the Contractor hereunder shall cease and terminate and Contractor shall immediately vacate the premises. 12.03 Upon termination, the parties shall be released from all obligations contained in this Agreement except for the indemnification requirements found in Section 6 of this Agreement. Page 6 of 8 CITY �:,F °� 1,Pp " FT, R A�:TH, HOKI 12.04 Termination notice shall be considered rendered when placed in the United States Postal Service for delivery to the other party. SECTION 13 NOTICES 13.01 Any notice required shall be sufficient if deposited in the U.S. Mail, postage prepaid and addressed to the other party as follows: CITY CONTRACTOR: City of Fort Worth Karen Foley Parks and Community Services Director 3759 East Lancaster Ave. 4200 South Freeway, Suite 2200 Fort Worth, TX 76103 Fort Worth, Texas 76115 With copes City Attorney's Office 1000 Throckmorton Street Fort Worth, Texas 76102 SECTION 14 VENUE AND JURISDICTION 14.01 This 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 15 SUBLETTING, ASSIGNING, MORTGAGING 15.01 Contractor agrees that she will not subcontract or assign all or any part of its rights, privileges or duties hereunder without the prior written consent of the Director and any attempted subcontract or assignment of same without such prior consent of the Director shall be void. 15.02 Subject to the limitations contained herein, the covenants, conditions and agreements made and entered into by the parties hereunder are declared to be for the benefit of and binding on their respective successors, representatives and permitted assigns, if any. SECTION 16 WAIVER, SECTION HEADINGS,AND SEVERABILITY 16.01 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 Contractor or City in connection with the rights and obligations contained in the valid covenants, conditions or provisions of this agreement. Page 7 of 8 16.02. The waiver by the City of any default or breach of a term, covenant or condition of this 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 Agreement, regardless of when the breach occurred. 16.03 The headings in this Agreement are inserted for reference only, and shall not define or limit the provisions hereof. SECTION 17 ENTIRE UNDERSTANDING 17.01 This written instrument including all Attachments, Schedules, and Exhibits attached hereto constitutes the entire Agreement by the parties hereto concerning this Agreement and the obligations of the parties and any prior or contemporaneous oral or written agreement that purports to vary from the terms hereof shall be void. This Agreement cannot be modified or amended without the written consent of all the parties hereto and attached and made a part of this Agreement. 17.02 Neither this Agreement nor any provision hereof may be modified except by an instrument in writing, signed by the parties. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. EXECUTED on this the_ day of ( , 2006 CITY OF FORT WORTH CONTRACTOR B By: Abbrson Karen Foley Assistant City Manger APPR'9,VED AS TO FORM AND LEGALITY B °v Assistant Ci Attorney Attested By: Marty Hendri City Secretary UJ Page 8 of 8 NO M&C REQUIRED FYI' c� ^ LL CN 'w J rr d X } AL a ►� w as CIL P/d S . r , ,xs O (1) C U a) C 0 .� O 0 to r--� -0 i > �' r (-) N U) Q N C Q a aCo— ) cn _ 0 -0 L O C 0) U) > _0 � _ O = a) J U) � CO � c E CO cna) 3 •0 W (� +U) a) QLO .� C m O c a) 0)- '� -0 O L Cl) 3 CO o ( g U) a) a } ._ a) U UU) (D CO Q C CO a C > C (n U W � O U CDm0 CDU � >, V m CL 0- (D 0 O 0) L -0 Z C ca a) •C U a) co p W � U) -0 = W E .c °' >, � � �- cn U F— E a cz$3: °' 0 c _0 ns Oa, 3 � Y 5 ca0 CC Uc Cl; E O � � 3 Qco a aE =3E CU Cca = U CL 0. 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