Loading...
HomeMy WebLinkAboutContract 32582 CITY SECRETARY CONTRACT NO. LICENSE AGREEMENT STATE OF TEXAS § COUNTY OF TARRANT § THIS LICENSE AGREEMENT is made and entered into by and between the City of Fort Worth, a home-rule municipal corporation of the State of Texas located in Tarrant, Denton and Wise Counties, Texas, (hereinafter referred to as the "City") acting by and through its duly authorized City Manager, and the Aviation Heritage Association, a 501(c)(3) non-profit corporation under the laws of the State of Texas, hereinafter referred to as"Licensee", acting by and through its duly authorized Chairman. RECITALS WHEREAS, on July 13, 1998, the Fort Worth Aviation Heritage Association submitted a request to the City to erect the Aviation Heritage Wall of Honor on the east side of a City park known as General Worth Square located in downtown Fort Worth, and WHEREAS the City authorized the Aviation Heritage Museum to erect the Aviation Heritage Wall of Honor in General Worth Square on September 8, 1998 (M&C C-16985); and WHEREAS on October 1, 1998, the City entered into an Agreement (City Secretary Contract No. 24286) with the Aviation Heritage Museum to install and maintain the Aviation Wall of Honor in General Worth Square; and WHEREAS the current agreement will expire on September 30, 2005 and the Aviation Heritage Museum has expressed an interest in renewing the current agreement. NOW THEREFORE, in consideration of the mutual covenants herein expressed, the parties agree as follows: SECTION 1. PURPOSE 1.01 City hereby grants unto Licensee, and Licensee hereby accepts, the privilege to use and occupy certain property described herein for the purpose of continuing to display and maintain the Aviation Wall of Honor("Wall")at General Worth Square. 1.02 The demised premises are described as the east area of General Worth Square on the east concrete wall and the south wall extension(hereinafter referred to as"Premises"). SECTION 2. LICENSEE REQUIREMENTS 2.01 The Licensee shall provide all labor, equipment and material necessary for the maintenance, upkeep and repair of the Wall. Licensee shall notify City of work schedule and proposed methods to be used. All work must be approved by the Director of Parks and Community Services Department(Director)or his/her designee. ,FFA 16.,I E C 0 1 2.02 Licensee shall be responsible for the following. a) All maintenance, repair and upkeep of the Wall. b) Remove and relocate the Wall at the end of this License Agreement or upon termination of this Agreement, and c) Restore the concrete wall to its original condition when the Wall is removed. d) Fund any and all costs associated with the work. It is understood that the cost for maintenance, repair, upkeep and removal of the Wall is supported through fundraising efforts. SECTION 3. CITY REQUIREMENTS 3.01 Parks and Community Services Department (PACSD) shall maintain the park, including the walk under the Wall. If any items are left at the Wall, PACSD will label and collect the items on a regular basis. All items will be turned over to the Licensee for archiving and securing. Flowers left at the Wall may remain until they become unsightly, but for no more than seven days. SECTION 4. IMPROVEMENTS 4.01 Any additional improvements that Licensee may propose must be submitted in writing to the Director. Licensee must receive approval in writing prior to commencement of additional work. SECTION 5. TERM 5.01 The primary term for this license agreement shall be for a period of five (5) years beginning on October 1, 2005 and ending on September 30, 2010. There shall be one (1) option to renew for an additional five (5) years by mutual written agreement. SECTION 6. PARK USE 6.01 City reserves the right to use General Worth Square for other functions as deemed necessary at its sole discretion, and as allowed through City ordinances and policies. SECTION 7. TERMINATION 7.01 It is expressly provided that either party shall have the right to terminate and cancel this agreement without cause upon thirty (30)days written notice to the other party. 7.02 On the dissolution of Licensee,this agreement shall terminate by operation of law. SECTION 8. PROPERTY LOSS; DAMAGE AND INJURY TO PERSONS 8.01 In the event this license agreement is terminated or Licensee is evicted from the Premises for any reason, City shall not be responsible for any personal property of Licensee remaining on the premises at that time of said eviction or termination, and said personal property shall be 2 deemed abandoned by Licensee if such remains on the Premises at any time thirty (30) days subsequent to the termination of the agreement. 8.02 City and Licensee mutually covenant and agree that City assumes no responsibility for any property placed on said Premises, and City is hereby expressly released and discharged from any and all liability for any loss, injury or damage to persons or property that may be sustained by use or occupancy of said Premises. 8.03 In the event that any City-owned property, including, but not limited to, utilities, equipment, trees and plant material, is damaged or destroyed during maintenance, repair or removal activities due to the actions of the Licensee, the Licensee shall be responsible for replacement or repair of damaged property. SECTION 9. PERMITS,LICENSES AND TAXES 9.01 Licensee agrees that it shall obtain and pay for all necessary permits, licenses and taxes incurred or required in connection with the operation hereunder. SECTION 10. COMPLIANCE WITH LAW 10.01 Licensee covenants and agrees that the Wall shall be operated and maintained in compliance with all laws, rules, regulations and specifications of all federal, county, city and other governmental agencies applicable to said Premises, including all rules, regulations and/or requirements of the City of Fort Worth Police and Fire Departments; and any and all requirements specifically made by the City of Fort Worth Fire Marshal in connection with this License Agreement. 10.02 Licensee shall neither commit nor allow any waste on the Premises or in the remaining area of the park, nor shall Licensee maintain, commit, permit or commission any nuisance on the Premises or use the Premises for any unlawful purpose. SECTION 11. RIGHT OF ACCESS 11.01 At all times during the term of this agreement, City shall have the right,through its agents and representatives,to enter into and upon the Premises during reasonable business hours for the purpose of examining and inspecting the same for the purpose of determining whether Licensee shall have complied with all of its obligations hereunder in respect to the use of the Premises. During any inspection, City may perform any obligations that City is authorized or required to perform under the terms of this License Agreement or pursuant to its governmental duties under federal, state or local laws, rules or regulations. SECTION 12. NON-DISCRIMINATION/DISABILITIES 12.01 Licensee in its maintenance, occupancy, use or operation of said Wall shall not discriminate against any person or persons because of race, age, gender, religion, color, national origin,handicap, sexual orientation or familial status. F�1C.,16;k1 a'iECO2�o CICU MUGVIRAPY SFT. ".;iiO;PT I TLG�o 12.02 Licensee, in the construction of any permanent improvement on the Premises, shall further comply with City of Fort Worth Ordinance No. 11923, as amended, (Minority and Women Business Enterprises)as if it were the City contracting for such improvement. SECTION 13. DETERIORATION,INSPECTION AND REPAIRS 13.01 Licensee shall 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. City shall have the right and privilege, through its agents and representatives, to make inspections of the Premises and thereafter to make recommendations to Licensee of any repairs that, in City's opinion, are necessary to be performed by Licensee upon the Premises in accordance with the foregoing. Unless otherwise specifically agreed to in writing by City acting in its sole discretion, Licensee covenants and agrees that it will commence repairs within sixty(60) days from the date that such recommendations are made. Such repairs will be made in an expeditious and workmanlike manner. In the event that Licensee shall fail to undertake such recommended repairs within the time provided, it is understood and agreed that City may, within its discretion,undertake to make such repairs as it may deem necessary for and on behalf of Licensee, and in such event, the cost of such repairs shall be an obligation on Licensee to pay same upon demand by City following the completion of such repairs. SECTION 14. PROPERTY LOSS; DAMAGE AND INJURY TO PERSONS 14.01 City and Licensee mutually covenant and agree that City assumes no responsibility for any property placed on said Premises, and City is hereby expressly released and discharged from any and all liability for any loss, injury or damage to persons or property that may be sustained by use or occupancy of said Premises under this License Agreement. 14.02 Licensee covenants and agrees that it shall take the Premises as it finds them. Licensee further covenants and agrees that it shall leave the Premises in as good or better condition than that which exists prior to its use of the Premises. Licensee covenants and agrees that Licensee shall not do, or permit to be done, any injury or damage to any of said Premises or suffer any waste to the Premises; but in the event any damage is done, Licensee hereby covenants and agrees to repair any damage or reimburse City therefore promptly for the value of any damage. Licensee shall keep and maintain the Premises in a good, clean, and sanitary condition at all times. Licensee shall be responsible for all damages caused by Licensee, its agents, servants, employees, contractors, subcontractors, licensees or invitees, and Licensee agrees to fully repair or otherwise cure all such damages at Licensee's sole cost and expense. The City shall determine whether any damage has been done, the amount of the damage, and the reasonable costs of repairing the damage. Any damage by the Licensee or others incident to the exercise of privileges herein granted shall be repaired or replaced by Licensee to the reasonable satisfaction of the City within thirty (30)days of receipt of written notification from the City. 4 SECTION 15. INDEMNIFICATION 15.01 LICENSEE AGREES TO DEFEND, INDEMNIFY AND HOLD THE CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, HARMLESS 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/OR PERSONAL INJURY, INCLUDING DEATH, THAT MAY RELATE TO,ARISE OUT OF OR BE OCCASIONED BY (i) LICENSEE'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR(ii) ANY NEGLIGENT ACT OR OMISSION OR INTENTIONAL MISCONDUCT OF LICENSEE,ITS OFFICERS,AGENTS,ASSOCIATES,EMPLOYEES,CONTRACTORS (OTHER THAN THE CITY) OR SUBCONTRACTORS, RELATED TO USE OF THE PREMISES OR THE PERFORMANCE OF THIS AGREEMENT; EXCEPT THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL NOT APPLY TO ANY LIABILITY RESULTING FROM THE SOLE NEGLIGENCE OF THE CITY OR ITS OFFICERS, AGENTS, EMPLOYEES OR SEPARATE CONTRACTORS, AND IN THE EVENT OF JOINT AND CONCURRENT NEGLIGENCE OF BOTH LICENSEE AND CITY, RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. SECTION 16. INSURANCE REQUIREMENTS 16.01 Licensee further covenants and agrees to obtain and keep in force during the term of this License a policy providing for bodily injury and property damage insurance in amounts as follows: a. Commercial General Liability $ 500,000 each occurrence $ 1,000,000 aggregate b. Automobile Liability $1,000,000 each accident on a combined single limit or $250,000 Property Damage $500,000 Bodily Injury per person per occurrence c. A commercial business policy shall provide coverage on "Any Auto", defined as autos owned, hired and non-owned when said vehicle is used in the course of the event licensed herein. 5 d. Worker's Compensation: Coverage A: Statutory limits Coverage B: Employer's Liability $100,000 each accident $500,000 disease-policy limit $100,000 disease-each employee 16.02 Certificates of insurance evidencing all required insurance shall be delivered to CITY prior to occupancy. a. Applicable policies shall be endorsed to name City as an Additional Insured thereon, as its interests may appear. The term City shall include its employees, officers, officials, agents and volunteers as respects the contracted services. b. Certificate(s) of insurance shall document that insurance coverage specified in this agreement are provided under applicable policies documented thereon. c. Any failure on the part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirements. d. A minimum of thirty (30) days notice of cancellation or material change in coverage effecting the required lines and limits of insurance shall be provided to the City. A ten (10) days notice shall be acceptable in the event of non-payment of premium. Notice shall be sent to the Director, PACSD, City of Fort Worth, 4200 South Freeway, Suite 2200,Fort Worth, Texas 76115-1499. e. Insurers for all policies must be authorized to do business in 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. f. Deductible limits, or self insured retentions, affecting insurance required herein shall be acceptable to City in its sole discretion; and, in lieu of traditional insurance, any alternative coverage maintained through insurance pools or risk retention groups must also be approved. Dedicated financial resources or letters of credit may also be acceptable to City. g. Applicable policies shall each be endorsed with a waiver of subrogation in favor of City. SECTION 17. BILLS,CHARGES,LIENS AND BONDS 17.01 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 and materialmen's liens or any other type of claims or liens imposed upon the Premises arising as a result of Licensee's conduct or inactivity. 17.02 Licensee covenants and 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 demised premises, and any such contract or lien attempted to be created shall be void. Should any purported lien on the Premises be created or filed by reason of any act or contract of Licensee, Licensee, at its ' J' l '� ���i to , , shall liquidate and discharge same within ten (10) days next after notice of filing thereof; and should Licensee fail to discharge same, such failure shall constitute a breach of the covenant herein. 17.03 In this regard, if improvements to be constructed on the 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 requirements of Chapter 2253, Government Code, and shall otherwise be acceptable to City. SECTION 18. CHARITABLE ORGANIZATION 18.01 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. Copy of the documentation stating this organization's status as a 501(c)(3) entity is due annually, by September 1"of each year,to the address specified below under Notices. SECTION 19. INDEPENDENT CONTRACTOR 19.01 It is expressly understood and agreed that Licensee shall operate as an independent contractor in each and every respect hereunder and not as an agent, representative or employee of the City. Licensee shall have the exclusive right to control all details and day-to-day operations relative to the activities under this Agreement and shall be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors, subcontractors, licensees and invitees. Licensee acknowledges that the doctrine of respondeat superior will not apply as between City and Licensee, its officers, agents, servants, employees, contractors, subcontractors, licensees and invitees. Licensee further agrees that nothing in this Agreement will be construed as the creation of a partnership or joint enterprise between City and Licensee. SECTION 20. BREACH; TERNIINATION 20.01 Licensee covenants and agrees that in the event of a breach of any covenant contained herein by Licensee, then and in that event, City may, at its option declare this agreement forfeited and terminated as to the balance of the term. 20.02 On or before the date of expiration of this license or its termination, Licensee shall vacate the Premises, remove all property of Licensee therefrom and restore the premises to a condition satisfactory to the Director. If the City revokes this license, Licensee shall vacate the Premises, remove said property therefrom, and restore the Premises aforesaid within such time as the Director 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. DO 6KIPIK I1f°ly SECTION 21. SEVERABILITY 21.01 In the event that any clause or provision of this License shall be held to be invalid by any court or competent jurisdiction, the invalidity of such clause or provision shall not affect any of the remaining provisions hereof. SECTION 22. WAIVER 22.01 The failure to insist upon a strict performance of any of the covenants or agreements herein set forth or to declare forfeiture for any violation thereof shall not be considered or taken as a waiver or relinquishment for the future of City's rights to insist upon a strict compliance by Licensee with all the covenants and conditions. SECTION 23. SECTION HEADINGS 23.01 The headings in this License are inserted for reference only, and shall not define or limit the provisions hereof. SECTION 24. FORCE MAJEURE 24.01 It is expressly understood and agreed by the parties to this Agreement that if the performance of any obligations hereunder is delayed by reason of war; civil commotion; acts of God; inclement weather; governmental restrictions, regulations, or interferences; fires; strikes; lockouts; national disasters; riots; material or labor restrictions; transportation problems; or any other circumstances which are reasonably beyond the control of the party obligated or permitted under the terms of this Agreement to do or perform the same, regardless of whether any such circumstance is similar to any of those enumerated or not, the party so obligated or permitted shall be excused from doing or performing the same during such period of delay, so that the time period applicable to such design or construction requirement shall be extended for a period of time equal to the period such party was delayed. SECTION 25. HOMELAND SECURITY 25.01 If the United States Department of Homeland Security issues a Level Orange or Level Red Alert, City, in its sole discretion may cancel or postpone any scheduled event in the interest of public safety. If City cancels the event, Licensee will be entitled to a refund of any prior fees paid. SECTION 26. NOTICES 26.01 All notices required or permitted under this Agreement may be given to a party personally or by mail, addressed to such party at the address stated below or to such other address as one party may from time to time notify the other in writing. Any notice so given shall be deemed to have been received when deposited in the United States mail so addressed with postage prepaid: 8 Com: Parks and Community Services Department 4200 South Freeway, Suite 2200 Fort Worth, TX 76115-1499 Licensee Aviation Heritage Association P. O. Box 821 Fort Worth, Texas 76101 With a cony to: Sarah Fullenwider City Attorney's Office 1000 Throckmorton Fort Worth, Texas 76102 SECTION 27. ENTIRE UNDERSTANDING 27.01 This License expresses the entire understanding and all agreements of the parties hereto with each other and neither party hereto has made or shall be bound by any agreement or any representation to the other party which is not expressly set forth in this License. SECTION 28. VENUE AND JURISDICTION 28.01 Venue shall be in the state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. SECTION 29. GOVERNMENTAL POWERS 29.01 It is understood that by execution of this Agreement, City does not waive or surrender any of its governmental powers. SECTION 30. SEVERABILITY 30.01 In the event that any clause or provision of this License shall be held to be invalid by any court or competent jurisdiction, the invalidity of such clause or provision shall not affect any of the remaining provisions hereof. SECTION 31. AMENDMENT 31.01 This Agreement cannot be modified or amended without the written consent of all parties hereto, and said amendment attached and made a part of this Agreement. 9 DRAFT SECTION 32. EXECUTION 32.01 This Agreement may be executed in multiple counterparts, each of which will be deemed an original, but which together will constitute one instrument. I- WI ESS WH--EOF th p lies have executed this License Agreement in multiples, this day of M d� l , 2005. CITY OF FORT WORTH AVIATION HERITAGE ASSOCIA ON B By: Libby son, Melvin R. Haas, Assistant City Manager Chairman ATTEST: ATTEST: City Secrebiry Corporate Secretary James E. Hunt APPROVED AS TO FORM AND a " Y. Sarah Fullenwider Assistant City Attorney �ntractApthorizatioz ')ate 1,,1, 10 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 Libby Watson, Assistant City Manager of the City of Fort Worth,known to me to be the person and officer 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 the said City of Fort Worth, Texas,a municipal corporation,for the purposes and consideration therein expressed, and in the capacity therein stated. Subscribed to and sworn before me this the ��day of A/eu^y&CN , 2005. ROSELLA BARNES * �'= MY COMMISSION EXPIRES Notary Public in and for the , '•'' Mudl 31.= State of Texas My Commission Expires: i' 4'L'e_ G 3 (I a-O o'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 Melvin R. Haas, Chairman of the Aviation Heritage Association, known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that the same was the act of the said Aviation Heritage Association, a non- profit corporation, duly organized under the laws of the State of Texas,and that he executed the same as the act of such corporation for the purposes and considerations therein expressed, and in the capacity therein stated. Subscribed and sworn to before me this the 9th day of September ,2005. 446�_l ``\ ,,,u�niurrrrrr� `.� � C M eq�''%, Notary Public in and for the PU��F���''- State of Texas NCO - My Commission Expires: 9TF OF V March 21, 2006 %qq�H 21 rrunniu� ,., 2D Y City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 10/4/2005 DATE: Tuesday, October 04, 2005 LOG NAME: 80AVIATIONWALL2 REFERENCE NO.: **C-21063 SUBJECT: Authorization to Execute a License Agreement with Aviation Heritage Association for the Continued Use of Space for the Aviation Wall of Honor in General Worth Square RECOMMENDATION: It is recommended that the City Council authorize the City Manager to execute a five year license agreement with one, five-year renewal option with the Aviation Heritage Association to continue to use space and maintain the Aviation Wall of Honor located in General Worth Square. DISCUSSION: On July 13, 1998, the Fort Worth Aviation Heritage Association submitted a request to erect the Aviation Heritage Wall of Honor on the east side of General Worth Square, 801 Main Street. The wall is constructed of black andes granite and is inscribed with the names of men and women, living or deceased, who have contributed to aviation since the beginning of flight. On September 8, 1998, (M&C C-16895) City Council authorized the City Manager to enter into an agreement to install and maintain the Wall of Honor in General Worth Square. Subsequently, on September 30, 1998, an agreement (City Secretary Contract No. 24286) was executed with the Aviation Heritage Association (AHA). This agreement was for a period of five years with two, one-year renewal options. The original intent was to have the Wall of Honor moved to the Aviation Heritage Museum once it was constructed. Fund raising efforts to build the museum are ongoing but sufficient funds have not been collected to build the museum and both renewal options have now been exercised. The final renewal period will end on September 30, 2005. The AHA still plans to build a museum and move the Wall of Honor to that location in the future. The AHA has requested that a new agreement be executed for an additional five year period with two, one- year renewal options. The new agreement will contain all the key contract requirements contained in the current agreement for the maintenance of the Wall of Honor and its subsequent removal and relocation. Having the Wall of Honor in General Worth Square benefits the City by attracting tourists to the area. This project is located in COUNCIL DISTRICT 9. FISCAL INFORMATIONXERTIFICATION: The Finance Director certifies that this action will have no material effect on City Funds. Logname: 80AVIATIONWALL2 Page 1 of 2 TO Fund/Account/Centers FROM Fund/Account/Centers Submitted for City Manager's Office by: Libby Watson (6183) Originating Department Head: Randle Harwood (Acting) (5704) Additional Information Contact: Randle Harwood (Acting) (5704) Logname: 80AVIATIONWALL2 Page 2 of 2 AVIATION HERITAGE ASSOCIATION P.O.BOX 821 * 1201 FORUM WAY SOUTH * FORT WORTH,TEXAS 76101 August 15 , 2005 Mr. Richard Tuttle Parks and Community Services Dept City of Fort Worth 4200 South Freeway, Ste 2200 Fort Worth, TX 76115-1499 Dear Richard: RE: Wall of Honor Agreement Renewal Request an extension of our contract from October 1, 2005 through September 30 , 2010 with one 5-year renewal option . Licensee agrees that it will , prior to the effective date hereof, provide City with a certificate of insurance as proof that Licensee has secured and paid for a policy of public liability insurance covering all public risks related to the Licensee , use and occupancy of the demised premises . At present , the amount of such insurance shall be as follows : Property Damage , per occurrence $1 , 000 , 000 Personal injury or death, per occurrence $1 , 000 , 000 The Aviation Heritage plans to permanently display the Aviation Wall of Honor in the City of Fort Worth on property owned by Fort Worth. Thank you for your c tinued upport . Sincerely, LVIN R. HAAS Chairman MRH/fmb