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HomeMy WebLinkAboutContract 49902 CITY SECRETARY CONTRACT NO._ PARK MANAGEMENT SERVICES AGREEMENT BETWEEN THE CITY OF FORT WORTH AND DOWNTOWN FORT WORTH INITIATIVES,INC. THIS PARK MANAGEMENT SERVICES AGREEMENT("Agreement")is made and entered into by and between THE CITY OF FORT WORTH("City"),a.home-rule municipal corporation of the State of Texas, acting by and through its duly authorized Assistant City Manager, and DOWNTOWN FORT WORTH INITIATIVES, INC.("DFWII,), a Texas nonprofit corporation, acting by and through Andrew Taft,its duly authorized President. WHEREAS,City currently owns a piece of property called General Worth Square Park,which is located at 801 Main Street,Fort Worth,Texas("Park"); WHEREAS, DFWII has provided significant benefits, both financial and otherwise,to the Park, including, among other things,the coordination of the redesign and redevelopment process for more than $1,215,000.00 in renovations to the Park's infrastructure, including the installation and donation of a JFK Tribute(M&C G-16674)(M&C G-17372)(M&C C-26281); WHEREAS, since 2013,DFWII has been providing the City with management and maintenance services for the Park(City Secretary Contract Numbers 44275 and 48496); WHEREAS, such services included park management responsibilities over Park development, maintenance,and landscaping for the entire Park; WHEREAS; both parties wish to enter into a new agreement to continue the existing relationship and aforementioned management services; and NOW, THEREFORE, in consideration of the covenants and agreements contained in this Agreement,City and DFWII hereby agree as follows: SECTION 1 SCOPE OF SERVICES 1.1 City hereby engages DFWII, and DFWII hereby agrees to perform, or ensure the performance of,the management services set forth in Exhibit A,which is attached hereto and incorporated herein for all purposes,for the Park("Services"). 1.2 DFWII shall provide the Services in a sound, economic, and efficient manner, and in accordance with the terms of this Agreement and all applicable industry standards. In providing such Services, DFWII shall ensure that the work involved is properly coordinated with any related work performed by the City,prior to undertaking any such work. 1.3 DFWII represents and warrants that it has or will secure at its own expense all materials, supplies,machinery, equipment,tools, superintendence, labor,personnel, insurance and other accessories and services necessary to provide such Services in accordance with the Agreement. 6 1 8 91p 1.4 In the event that any City-owned property, such as utilities, park development nts, equipment, turf, and the like, are damaged or destroyed due to any acts of omissions of DFWII officers,agents, employees,representatives,servants,contractors,subcontractors,or invitees c�, R n the p mantes of the Services set forth herein,DFWII shall be solely responsible for all repairs or ee je ent no cost to City. City shall determine whether any damage has been do Lim amanrrtu a- @� OFFICIAL R5 ORD P eme rvices Agreement—DFWII 1 0 c ti CITY SECRETARY FT.WORTH,TX �� 06gL9 R the damage,the reasonable costs of repairing the damage,and whether DFWII is responsible. City shall be the sole judge of the damage to the Park, which judgment shall be exercised reasonably. Any damage by DFWII shall be repaired or replaced by DFWII to the reasonable satisfaction of the Director of the City Parks and Community Services Department or that person's designee ("Director") within thirty(30) days of receipt of written notification from the Director. SECTION 2 TERM AND TERMINATION 2.1 Primary Term.Unless terminated earlier pursuant to the terms herein,the primary term of this Agreement shall be for one year,effective beginning on October 1,2017,and ending on the September 30,2018("Primary Term"). 2.2 Renewal Options.This Agreement may be renewed for up to ten(10)additional one-year periods ("Renewal Term"). To effect a renewal, DFWII must submit written notification to City of its intent to renew at least 60 calendar days, but not sooner than 90 calendar days, prior to the end of the Primary Term or the applicable Renewal Term,then in effect. If the total projected funding for any Renewal Term will exceed the amount legally required for approval by the Fort Worth City Council,then any such Renewal Term will be subject to approval by the Fort Worth City Council prior to any Renewal Term being exercised or payment being rendered. 2.3 Termination for Convenience. This Agreement may be terminated without cause by either party upon thirty(30)calendar days' written notice of such intent to terminate. 2.4 Termination for Cause. Unless stated elsewhere in this Agreement, DFWII shall be in default under this Agreement if DFWII breaches any term or condition of this Agreement and such breach remains uncured after thirty(30)calendar days following receipt of written notice from the City.If DFWII has diligently and continuously attempted to cure the default following receipt of such written notice by City but reasonably requires more than thirty (30) calendar days to cure, then such additional amount of time as is reasonably necessary to effect a cure may be granted by the City in writing. 2.5 Gratuities. City may terminate this Agreement if it is found that gratuities in the form of entertainment,gifts or otherwise were offered or given by DFWII or any agent or representative to any City official or employee with a view toward securing favorable treatment with respect to the awarding, amending,or making of any determinations with respect to the performance of this Agreement In the event this Agreement is terminated by the City pursuant to this section, City shall be entitled, in addition to any other rights and remedies,to recover from DFWII a sum equal in amount to the cost incurred by DFWII in providing such gratuities. 2.6 Fiscal Funding Out. Notwithstanding anything to the contrary, if, for any reason, at any time during the term of the Agreement,the Fort Worth City Council fails to appropriate funds sufficient for the City to fulfill its obligations under this Agreement,the City may terminate the portion of the Agreement regarding such obligations to be effective on the later of(i)ninety(90)calendar days following delivery by the City's written notice and intention to terminate or (ii) the last date for which funding has been appropriated by the Fort Worth City Council for the purposes set forth in this Agreement. 2.7 DFWII's Duties Upon Exniration or Termination. 2.7.1 Prior to the effective date for expiration or termination of this Agreement,DFWII shall promptly remove all of its personal property;provided,however,DFWII shall not be obligated to remove any fixtures. DFWII shall also repair any damage caused by DFWII, Park Management Services Agreement—DFWII 2 of 16 or its contractors, employees,agents,representatives, or invitees or any damages resulting from the Services being provided herein, including, but not limited to, any damage that DFWII causes during removal of DFWII's property, to the reasonable satisfaction of the Director. 2.7.2 If DFW11 fails to comply with its obligations in this Section, City may, at its sole discretion,(i)remove DFWII's personal property and otherwise repair the Park and invoice DFWII for City's costs and expenses incurred, such invoice to be due and payable to City within thirty(30)calendar days of its delivery to DFWII; (ii)following no less than thirty (30) calendar days' prior written notice to DFW11, take and hold any DFWII personal property as City's sole property;or(iii)pursue any remedy at law or in equity available to City. 2.8 Any termination of this Agreement as provided in this Agreement will not relieve DFWII from paying any sum or sums due and payable to City under this Agreement that remains unpaid and due at the time of termination,or any claim for damages then or previously accruing against DFWII under this Agreement. Any such termination will not prevent City from enforcing the payment of any such sum or sums or claim for damages by any remedy provided for by law, or from recovering damages from DFWII for any default under the Agreement. All City's rights, options, and remedies under this Agreement will be construed to be cumulative, and not one of them is exclusive of the other. City may pursue any or all such remedies or any other remedy or relief provided by law,whether or not stated in this Agreement. SECTION 3 COMPENSATION AND PAYMENTS 3.1 Funding. 3.1.1 For the Primary Term,the City shall pay DFWII up to Twenty-Six Thousand Ten Dollars and No Cents($26,010.00)on a reimbursement basis, which is equal to the amount budgeted by the Fort Worth City Council to provide basic landscaping, maintenance and other services in the Park and other City of Fort Worth Central Business District parks. 3.1.2 For each Renewal Term,the City agrees to provide funding, on a reimbursement basis, to DFWII in an amount up to the equivalent of the funds authorized by the annual City budget adopted by the Fort Worth City Council for basic grounds maintenance and landscaping and other services in the Park as would ordinarily be conducted by the Park and Recreation Department. Funding amounts for each Renewal Term shall be set forth in a renewal document to be signed by each party's authorized representative. 3.1.3 Funding provided by the City is not intended to cover the entire cost of the Services provided by DFWII under this Agreement. 3.2 Invoices. To receive payment under this Agreement,DFWII must submit invoices to the Director on a quarterly basis for Services rendered during the applicable quarter. For purposes of this Agreement,the quarters shall be as follows: October 1 through December 31;January 1 through March 31; April 1 through June 30; and July 1 through September 30. DFWII must submit the quarterly invoices no later than the 101 day of the month following the end of the applicable quarter for which Services were rendered. The invoices shall include any and all supporting documentation for payment,including,but not limited to, copies of invoices paid for ground maintenance service in the Park. Park Management Services Agreement—DFWII 3 of 16 r 3.3 Payment. City will pay DFWII on a reimbursement basis for Services rendered,with all payments being subject to the Prompt Payment Act (Chapter 2251 of the Texas Government Code). Payment shall be conditioned on all Services having been provided in accordance with the terms of the Agreement. In no event shall DFWII receive funds if Services are not provided. SECTION 4 CITY'S DUTIES AND RESPONSIBILITIES 4.1 City shall provide the following services in connection with the operation of the Park and with the performance of this Agreement: 4.1.1 City shall conduct inspections, at a minimum, on a quarterly basis to ensure compliance with this Agreement. Additional, unscheduled inspections can occur at the City's discretion. Notification shall be made to DFWII in a timely manner of any deficiencies noted. 4.1.2 City may continue its bird relocation program at the Park, as required and contingent on available resources. 4.1.3 City shall coordinate an annual meeting for review of the Agreement terms and requirements. 4.1.4 City and DFWII agree to enforce regulations and city ordinances. 4.1.5 City will pay all utility costs for the ordinary use and operation of the Park, including, but not limited to,electric, water, and sewer, directly to the appropriate utility company. SECTION 5 "JOHN F.KENNEDY" SCUPLTURE 5.1 A portion of the Park contains a plaza with a tribute to President John F.Kennedy("JFK") that tells the story of JFK's visit to Fort Worth on November 22, 1963. The tribute consists of an eight foot bronze sculpture of JFK titled"John F.Kennedy", an interpretive exhibit, water feature,hardscape elements, and landscaping. City, through its Public Art Program, will maintain the eight foot bronze sculpture of JFK. DFWII shall be responsible for maintaining all other elements of the JFK Tribute in the Park, including the water feature, hardscape elements, interpretive exhibits, and landscaping in accordance with the Agreement. SECTION 6 ALTERATIONS RESTORATIONS AND IMPROVEMENTS 6.1 Subject to Section 5, DFWII may provide for alterations to or restorations of existing facilities or structures at the Park or improvements to the Park with the prior written approval of the Director. DFWII will have the right to manage construction of the alterations, restorations and improvements. City and DFWII agree that DFWII will perform all work (i) in accordance with a set of plans and specifications pre-approved by the Director prior to beginning any work;(ii)in accordance with all applicable laws, ordinances, rules, regulations,and specifications of all federal,state, county, city, and other governmental agencies now or hereafter in effect; (iii)in a good and workman like manner; and(iv) in accordance with industry standards of care,skill,and diligence. Park Management Services Agreement—DFWII 4 of 16 6.2 Approval by the City of any plans and specifications relating to any construction shall not constitute or be deemed(i)to be a release by the City of the responsibility or liability of DFWII or any of its contractors,and their officers,agents,employees and subcontractors,for the accuracy or the competency of the plans and specifications, including, but not limited to, any related investigations, surveys, designs, working drawings and other specifications or documents, or (ii) an assumption of any responsibility or liability by the City for any act,error or omission in the conduct or preparation of any investigation,surveys, designs, working drawings and other specifications or documents by the DFWII or any of its contractors, and their officers, agents, employees and subcontractors. City shall own the plans and specifications. 6.3 All alterations, restorations, and improvements to City property made with the written consent of the Director shall,upon completion and written acceptance by City become the property of City. DFWII may be required to remove, at its expense, any alterations, restorations, or improvements not meeting specifications as approved by the City. SECTION 7 THIRD-PARTY CONTRACTORS 7.1 DFWII may authorize a third-party contractor to undertake all or any part of its Park maintenance and landscaping program Services(set forth in Exhibit A, Subsection B) and any construction related to the alterations,renovations, and improvements set forth in Section 6(a"Third Party Contractor"), provided that DFWII first enters into a contract with such Third Party Contractor for the work to be undertaken by the Third Party Contractor and such contract contains all of the following: (i) a provision in a form acceptable to the City pursuant to which the contractor and any subcontractors involved with the work agree to release,indemnify,defend and hold harmless the City from any and all damages arising as a result of or in relation to the work and for any acts or omissions of the Third Party Contractor, any subcontractors, and DFWII,and their representatives, officers,agents,servants,and employees; (ii)a requirement that the Third Party Contractor provide DFWII with any bond or bonds, as may be required by applicable law, for any alterations,renovations, and improvements allowed per Section 6, which DFWII shall forward to the City, that guarantees the faithful performance and completion of all construction work covered by the contract and full payment for all wages for labor and services and of all bills for materials,supplies and equipment used in the performance of the contract; (iii) a requirement that the Third Party Contractor provide insurance in accordance with minimum requirements that may be required by the City,as approved in writing by the City's Risk Manager;(iv)a requirement that the Third Party Contractor and any of its subcontractors comply with all applicable federal, state and local laws, ordinances,rules and regulations, including, but not limited to, all provisions of the City's Charter and ordinances,as amended;and(v)any auditing requirements set forth in this Agreement. All of the requirements contained in this Section shall hereinafter be referred to as the "Third Path Contract Provisions." 7.2 IF DFWII ENTERS INTO ANY THIRD PARTY CONTRACT AS ALLOWED BY SECTION 7.1 THAT DOES NOT CONTAIN ALL OF THE ABOVE THIRD PARTY CONTRACT PROVISIONS,AND TO THE EXTENT THAT ANY CLAIMS,DEMANDS,LAWSUITS OR OTHER ACTIONS FOR DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, PROPERTY LOSS,PROPERTY DAMAGE AND PERSONAL INJURY OF ANY KIND,INCLUDING, BUT NOT LIMITED TO, DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED,ARISE UNDER, ONACCOUNT OF OR INRELATION TO THE THIRD PARTY CONTRACT FOR WHICH THE CONTRACTOR THEREUNDER WOULD HAVE BEEN REQUIRED TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE CITY IF THE THIRD PARTY CONTRACT PROVISIONS HAD BEEN INCLUDED IN THE THIRD PARTY CONTRACT ("THIRD PARTY CONTRACT DAMAGES"), THEN DFWII, AT DFWIFS OWN EXPENSE, SHALL INDEMNIFY, DEFEND (WITH COUNSEL REASONABLY ACCEPTABLE TO THE INDEMNIFIED PARTIES HEREIN)AND HOLD HARMLESS THE CITY, ITS OFFICERS, Park Management Services Agreement—DFWII 5 of 16 MEMBERS, AGENTS, SERVANTS, EMPLOYEES, REPRESENTATIVES, CONTRACTORS (EXCLUDING CIT19 AND VOLUNTEERS, FROM AND AGAINST ANY SUCH THIRD PARTY CONTRACT DAMAGES. THIS IS IN ADDITION TO ANY OTHER INDEMNIFICATION PR 0 VISION PR 0 VIDED IN THE AGREEMENT. SECTION 8 RIGHT OF ACCESS 8.1 City does not relinquish the right to control the management of the Park, or the right to enforce all necessary and proper rules for the management and operation of the same. City, through its Director,police and fire personnel and other designated representatives, has the right at any time to enter any portion of the Park(without causing or constituting a termination of the use or an interference of the use of the Park by DFWII) for the purpose of inspecting and maintaining the same and doing any and all activities necessary for the proper conduct and operation of public property, provided this shall not authorize or empower City to direct the activities of DFWII or assume liability for DFWII's activities. 8.2 City reserves the right to modify or remove any improvements made by DFWII on City property in the Park as determined necessary by the Director in his or her sole discretion. SECTION 9 NON-DISCRIMINATION 9.1 DFWII shall not engage in any unlawful discrimination based on race, creed, color, national origin,sex,age,religion,disability,marital status,citizenship status,sexual orientation or any other prohibited criteria in any employment decisions relating to this Agreement, and DFWII represents and warrants that to the extent required by applicable laws,it is an equal opportunity employer and shall comply with all applicable laws and regulations in any employment decisions. 9.2 In the event of DFWII noncompliance with the nondiscrimination clauses of this Agreement, which is not cured within ninety (90) calendar days of notice of such noncompliance, this Agreement may be canceled, terminated, or suspended in whole or in part, and DFWII may be debarred from further agreements with City. SECTION 10 M/SBE POLICY 10.1 City has adopted goals for the participation of small and minority owned business enterprises in City contracts through Ordnance No. 20020-12-2011. Compliance by DFWII with the policies designed to meet these goals is mandatory and failure by DFWII to comply with such policies shall constitute a breach of the contract and shall be grounds for termination by City. Any subcontracts to be performed hereunder shall also be subject to provisions of the City's policies concerning goals for the participation of minority and women owned business enterprises in City contracts. SECTION 11 CITY NOT LIABLE FOR DELAYS 11.1 It is expressly agreed that in no event shall the City be liable or responsible to DFWII or any other person for or on account of any stoppage or delay in the Services herein provided for by injunction or other legal or equitable proceedings, or from or by or on account of any delay for any cause over which the City has no control. Park Management Services Agreement—DFWII 6 of 16 SECTION 12 CHARITABLE ORGANIZATION 12.1 DFWII agrees that, if it is a charitable organization, corporation, entity or individual enterprise having, claiming, or entitled to any immunity, exemption(statutory or otherwise) or limitation from and against liability Act of 1987, C.P.R.C., § 84.001 et seq., or other applicable law, that DFWII hereby expressly waives its right to assert or plead defensively any such immunity or limitation of liability as against City. If applicable,DFWII annually shall submit proof of 501(c)(3)eligibility to City. SECTION 13 INDEPENDENT CONTRACTOR 13.1 It is expressly understood and agreed that DFWII and its employees,representative,agents, servants,officers,contractors,subcontractors,and volunteers shall operate as independent contractors as to all rights and privileges and work performed under this Agreement, and not as agents, representatives or employees of City. Subject to and in accordance with the conditions and provisions of this Agreement, DFWII shall have the exclusive right to control the details of its operations and activities and be solely responsible for the acts and omissions of its employees, representative, agents, servants, officers, contractors,subcontractors,and volunteers. DFWII acknowledges that the doctrine of respondeat superior shall not apply as between the City and its officers, representatives, agents, servants and employees, and DFWII and its employees, representative, agents, servants, officers, contractors, subcontractors, and volunteers. DFWII further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between City and DFWII. It is further understood that City shall in no way be considered a Co-employer or a Joint employer of DFWII or any employees, representative, agents, servants, officers, contractors, subcontractors, and volunteers of DFWII.Neither DFWII, nor any officers, agents, servants, employees or subcontractors of DFWII shall be entitled to any employment benefits from City. DFWII shall be responsible and liable for any and all payment and reporting of taxes on behalf of itself,and any of employees,representative,agents,servants,officers,contractors, subcontractors,and volunteers. 13.2 City, through its authorized representatives and employees, shall have the sole and exclusive right to exercise jurisdiction and control over City employees. DFWII represents that all of its employees and subcontractors who perform Services under this Agreement shall be qualified and competent to perform the Services set forth herein. The Director reserves the right to refuse to permit any employee of DFWII from providing the Services set forth herein for any reason, provided that if the conduct of the employee is correctable, such employee shall have first been notified of his or her objectionable conduct and shall have had the opportunity to correct it. SECTION 14 INDEMNIFICATION 14.1 INDEMNIFICATION DFWII AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS THE CITY, ITS OFFICERS, AGENTS, SERVANTS, REPRESENTATIVES, AND EMPLOYEES FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, ACTIONS, COSTS,AND EXPENSES OF ANY KIND,INCLUDING,BUT NOT LIMITED TO,THOSE FOR PROPERTY DAMAGE OR LOSS(INCLUDING ALLEGED DAMAGE OR LOSS TO OWNER'S BUSINESS AND ANY RESULTING LOST PROFITS)AND PERSONAL INJURY(INCLUDING, BUT NOT LIMITED TO, DEATH) THAT MAY RELATE TO, ARISE OUT OF, OR BE OCCASIONED BY(i)DFWII'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR (ii) ANY ACT OR OMISSION OF DFWII, ITS OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES, REPRESENTATIVES, VOLUNTEERS, CONTRACTORS Park Management Services Agreement—DFWII 7 of 16 (OTHER THAN THE CITY),OR SUBCONTRACTORS,RELATED TO THE USE OF THE PARK OR THE PERFORMANCE OF THIS AGREEMENT, EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUATABLE TO ANY ACT OMISSION NEGLIGENCE GROSS NEGLIGENCE BREACH OF CONTRACT INTENTIONAL CONDUCT VIOLATION OF STATUTE OR COMMON LAW BREACH OF WARRANTY PRODUCT DEFFECT STRICT PRODUCT LIABILITY OR ANY OTHER ACT OMISSION OR CONDITION WHATSOEVER OF THE CITY OR ITS PROPERTY. SECTION 15 INSURANCE REQUIREMENTS 15.1 General Requirements. DFWII shall furnish to City in a timely manner,but not later than the start of the Term of this Agreement, certificates of insurance as proof that it has secured and paid for the policies of insurance specified herein. If City has not received such certificates by such date, DFWII shall be in default of the Agreement and City may, at its option, terminate the Agreement. DFWII shall maintain the following coverages and limits thereof: 15.1.1 Commercial General Liability(CGL)Insurance L $1,000,000 each occurrence ii. $2,000,000 aggregate limit 15.1.2 Business Automobile Liability Insurance i. $1,000,000 each accident on a combined single limit or $250,000 Property Damage $500,000 Bodily Injury per person per occurrence ii. Insurance policy shall be endorsed to cover"Any Auto", defined as autos owned, hired, and non-owned when said vehicle is used in the course of this Agreement. 15.1.3 Workers' Compensation Insurance i. Part A: Statutory Limits ii. Part B: Employer's Liability A. $100,000 each accident B. $100,000 disease-each employee C. $500,000 disease-policy limit 15.1.5 Professional Liability Insurance i. $1,000,000.00 each occurrence ii. $1,000,000.00 aggregate occurrence Park Management Services Agreement—DFWII 8 of 16 15.2 Additional Requirements. 15.2.1 Such insurance amounts shall be revised upward at City's reasonable option and no more frequently than once every 12 months, and City shall revise such amounts within thirty(30)calendar days following notice to DFWII of such requirements. 15.2.2 Where applicable, insurance policies required herein shall be endorsed to include City as an additional insured as its interest may appear. Additional insured parties shall include employees,representatives,officers,agents,and volunteers of City. 15.2.3 The Workers' Compensation Insurance policy shall be endorsed to include a waiver of subrogation, also referred to as a waiver of rights of recovery, in favor of City. Such insurance shall cover employees performing work on any and all Services and projects. DFWII shall maintain coverages,if applicable. 15.2.4 Any failure on the part of City to request certificate(s) of insurance shall not be construed as a waiver of such requirement or as a waiver of the insurance requirements themselves. 15.2.5 Insurers of DFWII's insurance policies shall be licensed to do business in the state of Texas by the Department of Insurance or be otherwise eligible and authorized to do business in the state of Texas. Insurers shall be acceptable to City insofar as their financial strength and solvency and each such company shall have a current minimum A.M. Best Key Rating Guide rating of A-: VII or other equivalent insurance industry standard rating otherwise approved by City. 15.2.6 Deductible limits on insurance policies shall not exceed $10,000 per occurrence unless otherwise approved by City. 15.2.7 In the event there are any local, federal or other regulatory insurance or bonding requirements for DFWII's operations, and such requirements exceed those specified herein,the former shall prevail. 15.2.8 DFWII shall require its contractors and subcontractors to maintain applicable insurance coverages,limits,and other requirements as those specified herein; and,DFWII shall require its contractors and subcontractors to provide DFWII and City with certificate(s) of insurance documenting such coverage. Also, DFWII shall require its subcontractors to have City and DFWII endorsed as additional insureds (as their interest may appear)on their respective insurance policies. SECTION 16 COMPLIANCE WITH LAWS 16.1 This Agreement is subject to all applicable federal, state and local laws, ordinances, rules and regulations, including, but not limited to, all provisions of the City's Charter and ordinances, as amended. 16.2 If City notifies DFWII or any of its officers,agents,employees,contractors,subcontractors, licensees, volunteers, or invitees of any violation of such laws, ordinances, rules or regulations, DFWII shall immediately desist from and correct the violation. Park Management Services Agreement—DFWII 9 of 16 SECTION 17 PERMITS AND LIENS 17.1 DFWII shall obtain and keep in effect at its own cost and expense all licenses and permits, and pay all taxes incurred or required in connection with this Agreement and its operations hereunder. 17.2 DFWII agrees not to take any action that would result in the creation of any lien on City property. In the event that a lien is filed,as a result of any action of DFWII,DFWII will take all necessary steps to bond around or remove the lien within ten(10)days of its filing. SECTION 18 EQUIPMENT 18.1 DFWII shall, at all times, maintain its equipment in a clean and serviceable condition. All equipment shall be properly licensed, inspected and clearly marked with DFWIl's name or the name of DFWIl's contractor or subcontractor. The continued use of unserviceable or improper equipment shall be considered a breach of this Agreement. SECTION 19 ASSIGNMENT AND THIRD PARTY RIGHTS 19.1 Except as specifically set forth in this Agreement, DFWII shall not assign, transfer, or subcontract its rights under this Agreement or any portion thereof without prior written approval of the City, and any attempted assignment, subcontract, or transfer of all or any part hereof without such prior written consent shall be void. This Agreement shall be binding upon and shall inure to the benefit of the City and DFWII and its respective successors and permitted assigns. 19.2 The provisions and conditions of this Agreement are solely for the benefit of the City and DFWII,and any lawful assign or successor of DFWII,and are not intended to create any rights,contractual or otherwise,to any other person or entity. SECTION 20 RIGHT TO AUDIT 20.1 DFWII shall maintain complete and accurate records with respect to all Services provided under this Agreement,including,but not limited to,any costs incurred. All such records shall be maintained on a generally accepted accounting basis and shall be clearly identified and readily accessible. 20.2 DFWII agrees that the City shall,until the expiration of three(3)years after the termination or expiration of this Agreement,have access to and the right to examine any books,documents,papers,and records of DFWII involving all Services and transactions relating to this Agreement. DFWII agrees that City shall have access during normal working hours to all necessary DFWII facilities and shall be provided adequate and appropriate workspace to conduct audits in compliance with the provisions of the section. 20.3 DFWII further agrees to include in any subcontractor agreements a provision to the effect subcontractor agrees that the City shall, until the expiration of three (3) years after the termination or expiration of this Agreement, have access to and the right to examine any books, documents, papers and records of such subcontractor involving all Services and transactions relating to this Agreement and any subcontractor agreements. City shall have the right to access, during normal working hours, all subcontractor facilities and be provided adequate and appropriate workspace to conduct audits in compliance with the provisions of this section. Park Management Services Agreement—DFWII 10 of 16 SCTION 21 NOTICES 21.1 All notices required or permitted under this Agreement shall be conclusively determined to have been delivered when (1) hand-delivered to the other party, or its authorized agent, employee, servant, or representative, or (2)received by the other party or its authorized agent employee, servant or representative by reliable overnight courier or United States Mail,postage prepaid,return receipt requested, at the address stated below or to such address as one party may from time-to-time notify the other in writing. To CITY: To DFWII: City of Fort Worth Downtown Fort Worth Initiatives,Inc. Park and Recreation Department Attn:Andrew Taft Attn:Director 777 Taylor Street, Ste. 100 South Freeway, Suite 2200 Fort Worth,Texas 76102 Fort Worth,Texas 76115-1499 With copies to: City of Fort Worth Attn:City Attorney 200 Texas Street Fort Worth,Texas 76102 City of Fort Worth Attn:City Manager's Office 200 Texas Street Fort Worth,Texas 76102 SECTION 22 VENUE AND CHOICE OF LAW 22.1 DFWII and City agree that this Agreement shall be construed in accordance with the laws of the State of Texas. If any action,whether real or asserted,at law or in equity,arises on the basis of any provision of this Agreement,venue for such action shall lie in state courts located in Tarrant County,Texas or the United States District Court for the Northern District of Texas—Fort Worth Division. SECTION 23 AMENDMENTS,CAPTIONS,AND INTERPRETATION 23.1 Except as otherwise provided in this Agreement, the terms and provisions of this Agreement may not be modified or amended except upon the written consent of both the City and DFWII. 23.2 Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 23.3 In the event of any dispute over the meaning or application of any provision of this Agreement, this Agreement shall be interpreted fairly and reasonably, and neither more strongly for or against any party,regardless of the actual drafter of this Agreement. Park Management Services Agreement—DFWII I 1 of 16 s SECTION 24 GOVERNMENTAL POWERS AND IMMUNITIES 24.1 It is understood that by execution of this Agreement,the City does not waive or surrender any of its governmental powers or immunities. SECTION 25 AUTHORIZATION COUNTERPARTS AND ELECTRONIC SIGNATURES 25.1 By executing this Agreement,DFWII's agent affirms that he or she is authorized by DFWII to execute this Agreement and that all representations made herein with regard to DFWII's identity,address, and legal status are true and correct. 25.2 This Agreement may be executed in several counterparts,each of which will be deemed an original, but all of which together will constitute one and the same instrument. A signature received via facsimile or electronically via email shall be as legally binding for all purposes as an original signature. SECTION 26 SEVERABILITY AND NO WAIVER 26.1 It is agreed that in the event any covenant,condition or provision herein contained is held to be invalid by any court of competent jurisdiction,the invalidity of such covenant,condition or provision shall in no way affect any other covenant, condition or provision that does not materially prejudice either DFWII or City in connection with the rights and obligations contained in the valid covenants,conditions or provisions of this Agreement. 26.2 The failure of either party to insist upon the performance of any term or provision of this Agreement or to exercise any right granted hereunder shall not constitute a waiver of that party's tight to insist upon appropriate performance or to assert any such right on any future occasions. SECTION 27 FORCE MAJEURE 27.1 If either party is unable,either in whole or part,to fulfill its obligations under this Agreement due to acts of God; strikes, lockouts, or other industrial disturbances; acts of public enemies; wars; blockades; insurrections; riots; epidemics; public health crises; earthquakes; fires; floods; restraints or prohibitions by any court,board,department, commission, or agency of the United States or of any state; declaration of a state of disaster or emergency by the federal, state, county, or City government in accordance with applicable law; issuance of an Imminent Threat Alert or Elevated Threat Alert by the United States Department of Homeland Security or any equivalent alert system that may be instituted by any agency of the United States;any arrests and restraints;civil disturbances; or explosions;or some other reason beyond the party's reasonable control (collectively, "Force Majeure Event"), the obligations so affected by such Force Majeure Event will be suspended only during the continuance of such Force Majeure Event. If a Force Majeure Event occurs,the City may,in its sole discretion,close or postpone the opening of its community centers, parks, or other City-owned and operated properties and facilities in the interest of public safety and operate them as the City sees fit. DFWII hereby waives any claims it may have against the City for damages resulting from any such Force Majeure Event. Park Management Services Agreement—DFWI1 12 of 16 SECTION 28 ENTIRE UNDERSTANDING 28.1 This Agreement (including the attached exhibits) contains the entire Agreement between DFWII and City, and no oral statements or prior written matter not specifically incorporated herein are of any force and effect. No modifications are binding on either party unless set forth in a document executed by that party. N WITNESS HEREOF, THE PARTIES HAVE EXECUTED THIS AGREEMENT ON THE DAY OF 2017 IN TARRANT COUNTY,TEXAS. THE CITY OF FORT WORTH DOWNTOWN FORT WORTH INITIATIVES,INC. B By: Su Alan Andrew Ta A istant City Manager President APPROVED AS TO FORM AND LEGALITY: By: Richard A.McCracken Assistant City Attorney ATTEST: F By. Ma U Ci S XAS No M&C Required Contract Compliance Manager: By signing, I acknowledge that I am the person responsible for the monitoring and dministration of this contract, including ensuring all performance and reporting requirements. b ame: , Title: ,' t H (bvi Ccs h-E!ti Gf" �� ti Ct cLi �('� Park Management Services Agreement—DFWII 13 of 16 Exhibit A Scope of Services A. Park Management Program 1. DFWII shall provide competent,qualified,and trained staff employed by DFWII to provide the following administrative and management services for maintenance and operation of the Park: a. Services that are necessary to supervise the daily maintenance necessary to keep the Park in a clean, operational, and trash free condition with healthy turf,trees, shrubs and year- round flower plantings; b. Recruiting,hiring,paying and supervising the work force,which DFWII will hire to furnish all Services to the Park; c. Contracts with subcontractors to provide landscaping, turf maintenance, tree and shrub maintenance, mechanical, plumbing and electrical maintenance, and other services that DFWII elects to provide through subcontracting; d. Management,financial and program monitoring systems for operation of the Park; e. Provide any reports requested by the Director concerning maintenance and operation of the Park within thirty (30) calendar days after such request by the Director, unless agreed to otherwise by the parties in writing; f. Office space for DFWII's administrative and management personnel; g. Recommendation of actions and guidelines that the City could take to regulate activities in the Park to maximize the contribution of activities and events in the Park; h. To participate in private or public meetings concerning operations and services in the Park; i. Liaison between the City, adjacent property owners, Park users, interested persons and groups to ensure successful operation and maintenance of the Park; j. Provide supervision and monitoring for the performance of subcontractors who are employed by DFWII; k. Assistance to the City's Park and Recreation Department("Park Department")concerning use of the Park; 1. Assistance to City in briefing interested parties concerning proposed activities and projects that would enhance the beauty and use of the Park; m. Information/complaint center for all matters relating to operation and maintenance of the Park and advising City in a timely manner of any problems with City-owned equipment or facilities in the Park; n. Maintain communications with the Park Department reservation staff to ensure that the Park is always in its best appearance for scheduled activities. Scheduled activities in the Park shall not be allowed to postpone or compromise emergency repairs in the Park,when Park Management Services Agreement—DFWII 14 of 16 postponing those repairs would have"serious impact"on Park equipment or the safety of park users. The Director, in his sole discretion shall decide when repairs rise to the level of a"serious impact"on Park equipment;and B. Park Management-Maintenance and Landscaping Program 1. DFWII shall provide the following maintenance service in the Park either directly or through a subcontractor: a. Keep the park in a clean condition by: i. Maintaining the walkways,benches, and planters clear of debris; ii. Emptying the trash can inserts in the planters daily(five days a week); iii. Maintaining the ground cover beds, flower beds and turf areas clear of debris, including,but not limited to,leaves,limbs,cigarette butts, paper,and the like; iv. Regularly washing off the surfaces of bird waste, spilled drinks and food; and v. Removing graffiti to the best of the DFWII's ability within 24 hours of notification by the Director(within a normal work week). b. Keep the turf,planting,trees and shrubs in a healthy green appearance by: i. Watering, fertilizing, inspecting, pruning, treatment of wounds, disease control, insect control,three planting of blooms a year(tulips and the spring planting to be considered one planting), and any other actions necessary to keep all plant life in a healthy appearance,including,but not limited to,re-seeding or sodding the turf, adding additional ground cover,and trimming the trees to provide more defensible space in the Park. c. Keep the Park in year round blooms with seasonal plantings of blooming flowers in the Fall, Spring,and Summer: d. Keep the fountains in a clean,well-maintained appearance by doing the following: i. Cleaning and vacuuming the fountains daily (5 days a week) or as necessary to keep them trash free and clean; and ii. Maintaining the correct level of chemicals to ensure that the water in the fountains is clean and free of algae and other growth or discoloration e. Keep the pump room well-maintained,clean and operational through the following: i. Frequent and periodic preventative maintenance of the pumps; ii. Clean out of the reservoir once or twice a year,depending upon need; iii. Maintaining the proper amounts of chemicals for the chlorination of the fountains; Park Management Services Agreement—DFW1I 15 of 16 iv. Frequent and periodic monitoring of the electrical system by a licensed electrician to ensure proper operation of all electrical systems; and v. In case of equipment failure,replace damaged equipment in a timely manner,after informing the Director of the nature of the equipment failure f. Be responsive to any requests for service in the Park by the Director. Park Management Services Agreement—DFWII 16 of 16