HomeMy WebLinkAboutContract 52146 CITY SECRETARY
CONTRACT NO..ia
MANAGEMENT SERVICES AGREEMENT
FOR CALHOUN PARK AND CRAWFORD PARK
BETWEEN THE CITY OF FORT WORTH,TEXAS AND
FORT WORTH SOUTHSIDE DEVELOPMENT DISTRICT, INC.
D/B/A NEAR SOUTHSIDE, INC.
This MANAGEMENT SERVICES AGREEMENT ("Agreement") is entered into by and
between the City of Fort Worth, Texas, a home-rule municipal corporation situated in Tarrant, Denton,
Johnson, Wise, and Parker Counties, Texas ("City"), and Fort Worth Southside Development District,
Inc. d/b/a Near Southside, Inc., a Texas nonprofit corporation ("Near Southside"). The City and Near
Southside are referred to herein individually as a"party" and collectively as the "parties."
WHEREAS,the City owns Calhoun Park located at 409 Annie Street, Fort Worth, Texas, 76104,
and Crawford Park located at 330 Crawford Street, Fort Worth, Texas, 76104 ("Parks"); and
WHEREAS, Near Southside is a private, member-funded, 501(c)(4) nonprofit organization
dedicated to revitalizing the near south side of Fort Worth by promoting the ongoing redevelopment of
the near south side as a vibrant, urban, mixed-used neighborhood; and
WHEREAS, Near Southside has provided significant financial benefits and other benefits to the
City of Fort Worth, including but not limited to facilitating the dedication, design, and construction of
Calhoun and Crawford Parks; and
WHEREAS, the City and Near Southside desire to have public parks in the South Main Village
area of the near south side that provide the public with enhanced facilities that will increase the
environment, livability and atmosphere for the public; and
WHEREAS, Near Southside desires to provide the management for Calhoun and Crawford
Parks, including the design, construction, maintenance and event scheduling at the Parks; and
WHEREAS, the City finds that Near Southside is the sole nonprofit corporation that has
provided significant benefits to Calhoun and Crawford Parks and should manage the Parks;
NOW, THEREFORE, in consideration of the mutual promises, covenants and obligations
contained herein, the parties hereto mutually agree as follows:
SECTION 1
SCOPE OF SERVICES
1.1 City hereby engages Near Southside, and Near Southside 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 Parks ("Services").
1.2 Near Southside 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, Near Southside shall ensure that the work involved is properly coordinated with any
related work performed by the City,prior to undertaking any such work.
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1.3 Near Southside 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.
1.4 In the event that any City-owned property, such as utilities, park development
improvements, equipment, turf, and the like, are damaged or destroyed due to any acts of omissions of
Near Southside or its officers, agents, employees, representatives, servants, contractors, subcontractors,or
invitees or in the performances of the Services set forth herein,Near Southside shall be solely responsible
for all repairs or replacements at no cost to City. City shall determine whether any damage has been
done, the amount of the damage, the reasonable costs of repairing the damage, and whether Near
Southside is responsible. City shall be the sole judge of the damage to the Parks,which judgment shall be
exercised reasonably. Any damage by Near Southside shall be repaired or replaced by Near Southside to
the reasonable satisfaction of the Director of the City's Park & Recreation Department or that person's
designee ("Director")within thirty (30)days of receipt of written notification from the Director.
1.5 Near Southside shall deposit all income received from performing the Services set forth
in this Agreement, including all income received in connection with reservations of the Parks, in a
separate fund maintained by Near Southside which will be used solely for the operation, management,
expansion, or improvement of the Parks. Near Southside shall keep complete and accurate records,
books, and accounts according to customary and accepted business practices and City shall have the right
to audit the same at any reasonable time. Near Southside shall deliver to the Director, on or before the
15th day of each and every month, a statement showing the amount of all gross receipts during the
preceding month. Near Southside shall furnish the Director with an annual audit of its books by an
independent certified public accountant relating to all income and expenses related to the performance of
the Services set forth in this Agreement, such report to be furnished within ninety (90)days after the end
of each fiscal year of Near Southside. Within thirty (30) days of the expiration or termination of this
Agreement,Near Southside shall transfer to the City all remaining funds held by Near Southside pursuant
to this Agreement. If the amount of funds held by Near Southside in the separate account pursuant to this
Agreement reaches or exceeds fifty thousand dollars ($50,000.00), the parties agree to negotiate the terms
and conditions of this Agreement, and the possible expenditure or transfer to the City of a portion of the
funds.
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 10 years, effective beginning on March 25, 2019, and ending on March 25,
2029. ("Primary Term"). This Agreement may be extended for up to two (2) five-year renewal options
upon written agreement of the City and Near Southside.
2.2 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.
2.3 Termination for Cause. Unless stated elsewhere in this Agreement, Near Southside shall
be in default under this Agreement if Near Southside 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 Near Southside 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.
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FOR CALHOUN PARK AND CRAWFORD PARK
2.4 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 Near Southside 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 Near Southside a sum equal in amount to the
cost incurred by Near Southside in providing such gratuities.
2.5 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.
2.6 Near Southside's Duties Upon Expiration or Termination.
2.6.1 Prior to the effective date for expiration or termination of this Agreement, Near
Southside shall promptly remove all of its personal property from the Parks; provided,
however, Near Southside shall not be obligated to remove any fixtures. Near Southside
shall also repair any damage caused by Near Southside, 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 Near Southside causes
during removal of Near Southside's property, to the reasonable satisfaction of the
Director.
2.6.2 If Near Southside fails to comply with its obligations in this Section,City may, at
its sole discretion,(i)remove Near Southside's personal property and otherwise repair the
Parks and invoice Near Southside 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 Near
Southside; (ii) following no less than thirty (30) calendar days' prior written notice to
Near Southside, take and hold any Near Southside personal property as City's sole
property; or(iii)pursue any remedy at law or in equity available to City.
2.7 Any termination of this Agreement as provided in this Agreement will not relieve Near
Southside 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
Near Southside 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 Near Southside 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 During the Term, the City shall pay Near Southside an annual management fee in the
amount of Eight Thousand Dollars and No Cents ($8,000.00) ("Management Fee"). The Management
Fee will be paid by the City to Near Southside quarterly, with each payment made at the beginning of the
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FOR CALHOUN PARK AND CRAWFORD PARK
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.
3.2 Near Southside understands and agrees that a portion of the Management Fee is based
upon an estimation of the annual amount that the City would spend to provide basic landscaping,
maintenance and other service in the Parks, but the Management Fee will not cover the entire cost of the
Services provided by Near Southside under this Agreement.
3.3 During the Term, Near Southside shall also receive, as additional compensation, a
monthly fee equal to twenty-five percent (25%) of all park reservations fees, cancellation fees, late fees,
set-up and break-down fees, commercial photography fees, stage rentals, ticket booth fees, vendor booth
fees, portable bathroom rentals, or banner pole rentals received by Near Southside the immediately
preceding month ("Additional Management Fee"). The Additional Management Fee shall not include a
percentage of any other fees received by Near Southside or retained by Near Southside in the separate
account that is required by this Agreement, including but not limited to, retained damage deposits,
admission fees, concession fees, and merchandise sales. Near Southside may transfer the Additional
Management Fee from the separate account to Near Southside's general operating account on a monthly
basis.
SECTION 4
CITY'S RIGHTS,DUTIES AND RESPONSIBILITIES
4.1 City shall provide the following services in connection with the operation of the Parks
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 Near Southside in a timely manner of
any deficiencies noted.
4.1.2 City shall coordinate an annual meeting for review of the Agreement terms and
requirements.
4.1.3 City will pay all costs for water and electricity for the ordinary use and
operation of the Parks (estimated at $1,200.00 per year), directly to the appropriate
utility company.
4.2 City shall have the right and privilege, through its officers, agents, servants or
employees, to enter upon and inspect the Parks at any time and for any reason. City may perform any
obligations that City is authorized or required to perform under the terms of this Agreement or pursuant
to its governmental duties under federal state or local laws, rules or regulations. Near Southside will
permit the City's Fire Marshal or his or her authorized agents to inspect the Parks and Near Southside
will comply with all requirements of the Fire Marshal or his or her authorized agents that are necessary
to bring the Parks into compliance with the applicable City of Fort Worth Fire Code and Building Code
provisions regarding fire safety, as such provisions exist or may hereafter be amended. Near Southside
shall maintain in proper condition accessible fire extinguishers of a number and type approved by the
Fire Marshal or his or her authorized agents for the particular hazard involved.
SECTION 5
CONSTRUCTION OF THE PARKS;ALTERATIONS,RESTORATIONS AND
IMPROVEMENTS TO THE PARKS
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FOR CALHOUN PARK AND CRAWFORD PARK
5.1 Near Southside may not make alterations to or restorations of existing facilities or
structures at the Parks or construct the Parks or any new improvements in the Parks without the prior
written approval of the Director. Alterations, restorations and construction of the Parks or new
improvements in the Parks shall be referred to in this Agreement as the"Improvements." Near Southside
shall manage construction of all Improvements. City and Near Southside agree that Near Southside and
its contractors 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.
5.2 Near Southside's plans for construction of Improvements must receive written approval
from the Director and any other City departments, boards, or commissions as shall be required under
ordinance or City policy. All plans, specifications and work shall conform to all federal, state and local
laws, ordinances, rules and regulations in force at the time that the plans are presented for review. City
shall inspect all Improvements pursuant to City's construction inspection procedures. Near Southside
may be required to remove, at its expense, any Improvements not meeting specifications as approved by
the City.
5.3 Approval by the City of any plans and specifications relating to any Improvements shall
not constitute or be deemed: (i) to be a release by the City of the responsibility or liability of Near
Southside 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 Near Southside or any of its contractors, and their officers, agents, employees and
subcontractors. City shall own the plans and specifications.
5.4 Near Southside shall ensure that all Improvements are completed in accordance with the
plans and specifications within the Term (subject to Force Majeure Events). Title to all Improvements
shall be retained by Near Southside during construction, but such title shall vest in the City upon the
completion of the Improvements and execution of a legal instrument vesting title of each Improvement to
the City. If Improvements include the installation of permanent or temporary artwork, Near Southside
shall obtain an irrevocable license from the artist in favor of the City for use of the artwork. Near
Southside shall take all steps necessary to vest title of the Improvements to the City, including, but not
limited to, delivery of an instrument of conveyance to the City in form of Exhibit B attached hereto.
5.5 Near Southside agrees that it will not adversely impact the usability of any City land not
subject to this Agreement during construction of any Improvements at the Parks. Specifically, Near
Southside will ensure that all construction activities for any Improvements remains strictly within the
Parks at all times and that access to, and usability of, any areas of the Parks where construction activities
are not taking place are unobstructed.
5.6 Near Southside shall supply the City with comprehensive sets of documentation relative
to any Improvements, including, at a minimum, as-built drawings of each project. As-built drawings shall
be new drawings or redline changes to drawings previously provided to City. Near Southside shall supply
the textual documentation in computer format as requested by City.
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FOR CALHOUN PARK AND CRAWFORD PARK
5.7 Near Southside must provide the Director with videographic documentation of the
condition of the Parks, including, but not limited to, any underground utilities, as they exist both before
and after construction of any Improvements. All such video must include a visible date and time stamp
indicating when the videography occurred. Near Southside must submit documentation of the pre-
construction condition prior to commencing any work on the Parks. Post-construction documentation
must be submitted no later than five (5) business days after construction is complete. The Director will
distribute copies of the documentation to all appropriate City personnel to determine whether any damage
has been done to the Parks.
5.8 Near Southside shall not cut, remove, or damage any trees on the Parks, or allow Near
Southside's contractor to cut, remove or damage any trees on the Parks, except as otherwise agreed to by
the Director. To minimize damage during construction, Near Southside shall install orange mesh fencing
on the outside drip line of trees and other vegetation specifically identified by the Director at a pre-
construction meeting. Near Southside shall notify the Director once the tree and vegetation protection
measures have been installed and allow the Director an opportunity to inspect the work before
construction begins. The City shall have at least two(2) business days following the date on which notice
is received to conduct an inspection. Near Southside may begin construction on or after the third business
day following the date on which the City receives notice unless the City contacts Near Southside and
identifies specific issues that render the tree and vegetation protection measures unacceptable. If any tree
within the Parks is damaged in connection with Near Southside's operations or its contractor's operations,
Near Southside agrees to undertake remediation efforts, including paying of remediation costs, in
accordance with Exhibit C, which is attached hereto and incorporated herein for all purposes.
5.9 If Near Southside encounters any utility infrastructure (including, but not limited to,
electric lines,waterlines, sewer lines, storm drains and lines, or gas lines)in the course of or in connection
with Near Southside's construction of Improvements in the Parks, Near Southside covenants and agrees
to cease construction operations and install protective matting over or around such utilities in compliance
with specifications approved by the City's Water Department or by the Park & Recreation Department.
Following installation of the matting, Near Southside shall contact the Director to arrange for inspection
and approval by appropriate City personnel: Near Southside shall provide the Director with a copy of the
matting specifications and Near Southside's inspection report within twenty-four (24) hours of receiving
and prior to resuming construction of Improvements in the Parks. Near Southside may resume
construction after the date on which it provided the inspection report and specifications to the Director
unless the Director contacts Near Southside and identifies specific issues that must be addressed.
5.10 For a period of two(2)years following the date that title to Improvements are transferred to
the City per the Conveyance Instrument,Near Southside represents and warrants to the City that the materials
and equipment furnished for the Improvements are new, of good quality, in good working order,and perform
as intended; and that all work will be performed in conformance with the agreed upon plans and
specifications and professional "workmanlike" standards and free from defective or inferior materials and
workmanship (including any defects consisting of "inherent vice," or qualities that cause or accelerate
deterioration). Near Southside also represents and warrants that the Improvements and materials used are not
currently known to be harmful to public health and safety. Any Improvements not conforming to these
requirements may be considered defective.
5.11 Near Southside agrees to cure any breach satisfactorily and consistent with industry
standards for a period of two (2) years from the date that title to the Improvements are transferred to the
City per the Conveyance Instrument, provided Near Southside is given notice and an opportunity to repair
or replace the Improvements. Near Southside shall commence any work in accordance with this warranty
within fourteen (14) calendar days from receipt of written notice from the City and complete such work
within thirty (30) business days thereafter at no expense to the City. If the City observes any breach of
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FOR CALHOUN PARK AND CRAWFORD PARK
warranty as described herein that is not curable by Near Southside, then Near Southside is responsible for
reimbursing the City for damages, expenses, and losses incurred by the City as a result of such breach.
The warranties contained herein are not exclusive. Nothing contained in this section shall limit or
exclude any express or implied warranties, including, but not limited to, any manufacturer or product
warranties. To the extent that the Improvements, or any portion thereof, are covered by a manufacturer's
warranty, Near Southside shall provide copies of such warranties to City. If any warranties are
transferrable, then Near Southside shall transfer such warranties to the City upon the expiration of the two
(2) year warranty period. The representations and warranties in this section shall survive the termination
or other extinction of this Agreement.
SECTION 6
SUBCONTRACTORS
6.1 Near Southside may enter into contracts with subcontractors to perform any of the
maintenance or landscaping Services or construction of Improvements set forth in this Agreement
("Subcontracted Services"). Near Southside shall not enter into any contracts with subcontractors for any
other Services set forth in this Agreement without the written consent of the City.
6.2 All contracts between Near Southside and subcontractors for Subcontracted Services shall
contain a provision in substantially the following form:
CONTRACTOR SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS THE
CITY, ITS OFFICERS,AGENTS AND EMPLOYEES FROM AND AGAINST ANY
AND ALL CLAIMS, SUITS OR CAUSES OF ACTION OF ANY NATURE
WHATSOEVER, WHETHER REAL OR ASSERTED, BROUGHT FOR OR ON
ACCOUNT OF ANY INJURIES OR DAMAGES TO PERSONS OR PROPERTY,
INCLUDING DEATH, RESULTING FROM, OR IN ANY WAY CONNECTED
WITH, THE SERVICES TO BE PROVIDED HEREIN, WHETHER OR NOT
SUCH INJURIES, DEATH OR DAMAGES ARE CAUSED, IN WHOLE OR IN
PART, BY THE ALLEGED NEGLIGENCE OF THE CITY OF FORT WORTH,
ITS OFFICERS, SERVANTS, OR EMPLOYEES. CONTRACTOR SHALL
INDEMNIFY, AND HOLD HARMLESS THE CITY FOR ANY LOSSES,
DAMAGES, COSTS OR EXPENSES SUFFERED BY THE CITY OR CAUSED AS
A RESULT OF SAID CONTRACTOR'S FAILURE TO PERFORM THE
SERVICES OR COMPLETE THE WORK IN A GOOD AND WORKMANLIKE
MANNER, FREE FROM DEFECTS, IN CONFORMANCE WITH ALL PLANS
AND SPECIFICATIONS.
6.3 Near Southside shall require all subcontractors it contracts with to perform any construction
of Improvements to provide to Near Southside, with the City named as an additional obligee, payment,
performance and maintenance bonds which guarantee: (1) the faithful performance and completion of all
construction work covered by the contract; (2) 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; and (3) maintenance of
the improvements for a period of two(2)years;
6.4 Near Southside shall require all subcontractors for Subcontracted Services to provide the
City with insurance coverage in the types and amounts approved in writing by the City's Risk Manager.
SECTION 7
RIGHT OF ACCESS
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FOR CALHOUN PARK AND CRAWFORD PARK
7.1 City does not relinquish the right to control the management of the Parks, or the right to
enforce all necessary and proper rules for the management and operation of the Parks. City, through its
Director, police and fire personnel and other designated representatives, has the right at any time to enter
any portion of the Parks (without causing or constituting a termination of the use or an interference of the
use of the Parks by Near Southside for the purpose of inspecting and maintaining the Parks 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 Near Southside or result in the City assuming liability
for any of Near Southside's activities.
7.2 City reserves the right to modify or remove any improvements made by Near Southside
on City property in the Parks as determined necessary by the Director in his or her sole discretion.
SECTION 8
NON-DISCRIMINATION
8.1 Near Southside 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 Near Southside
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.
8.2 In the event of Near Southside's 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 Near Southside may be
debarred from further agreements with City.
SECTION 9
MINORITY/SMALL BUSINESS ENTERPRISE POLICY
9.1 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 Near Southside with
the policies designed to meet these goals is mandatory and failure by Near Southside to comply with such
policies shall constitute a breach of this Agreement 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 10
CITY NOT LIABLE FOR DELAYS
10.1 It is expressly agreed that in no event shall the City be liable or responsible to Near
Southside 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.
SECTION 11
CHARITABLE ORGANIZATION
11.1 Near Southside 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
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limitation from and against liability Act of 1987, C.P.R.C., § 84.001 et seq., or other applicable law, that
Near Southside hereby expressly waives its right to assert or plead defensively any such immunity or
limitation of liability as against City. If applicable, Near Southside annually shall submit proof of
501(c)(4)eligibility to City.
SECTION 12
INDEPENDENT CONTRACTOR
12.1 It is expressly understood and agreed that Near Southside and its employees,
representative, agents, servants, officers, contractors, subcontractors, and volunteers shall operate as
independent contractors as to all rights and privileges and Services 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, Near Southside 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. Near Southside
acknowledges that the doctrine of respondeat superior shall not apply as between the City and its officers,
representatives, agents, servants and employees, and Near Southside and its employees, representative,
agents, servants, officers, contractors, subcontractors, and volunteers. Near Southside further agrees that
nothing herein shall be construed as the creation of a partnership or joint enterprise between City and
Near Southside. It is further understood that City shall in no way be considered a Co-employer or a Joint
employer of Near Southside or any employees, representative, agents, servants, officers, contractors,
subcontractors, and volunteers of Near Southside. Neither Near Southside, nor any officers, agents,
servants, employees or subcontractors of Near Southside shall be entitled to any employment benefits
from City. Near Southside 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.
12.2 City, through its authorized representatives and employees, shall have the sole and
exclusive right to exercise jurisdiction and control over City employees. Near Southside 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 or subcontractor of Near Southside from providing the Services set forth herein for any reason,
provided that if the conduct of the employee or subcontractor is correctable, such employee or
subcontractor shall have first been notified of his or her objectionable conduct and shall have had the
opportunity to correct it.
SECTION 13
INDEMNIFICATION
13.1 NEAR SOUTHSIDE AGREES TO INDEMNIFY, DEFEND, 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 ANY
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) NEAR SOUTHSIDE'S BREACH OF ANY OF THE TERMS OR
PROVISIONS OF THIS AGREEMENT OR (ii) ANY ACT OR OMISSION OF NEAR
SOUTHSIDE, ITS OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES, REPRESENTATIVES,
VOLUNTEERS, CONTRACTORS (OTHER THAN THE CITY), OR SUBCONTRACTORS,
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RELATED TO THE USE OF THE PARKS OR THE PERFORMANCE OF THIS AGREEMENT,
EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTABLE TO ANY ACT,
OMISSION, NEGLIGENCE, GROSS NEGLIGENCE, BREACH OF CONTRACT,
INTENTIONAL CONDUCT, VIOLATION OF STATUTE OR COMMON LAW, BREACH OF
WARRANTY, PRODUCT DEFECT, STRICT PRODUCT LIABILITY, OR ANY OTHER ACT,
OMISSION, OR CONDITION WHATSOEVER OF THE CITY OR ITS PROPERTY.
SECTION 14
INSURANCE REQUIREMENTS
14.1 General Requirements. Near Southside 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,
Near Southside shall be in default of the Agreement and City may, at its option, terminate the
Agreement. Near Southside shall maintain the following coverages and limits thereof:
14.1.1 Commercial General Liability (CGL)Insurance
i. $1,000,000 each occurrence;
ii. $2,000,000 general aggregate per project;
$2,000,000 product/completed operations aggregate; and
iv. $1,000,000 personal and advertising injury.
14.1.2 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.
14.1.3 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
14.1.4 Professional Liability Insurance
i. $1,000,000.00 each occurrence
i1. $1,000,000.00 aggregate occurrence
14.1.5 Environmental Impairment Liability (EIL)and Pollution Liability
i. $2,000,000 per occurrence
ii. $2,000,000 aggregate
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FOR CALHOUN PARK AND CRAWFORD PARK
14.2 Additional Requirements
14.2.1 Such insurance amounts shall be revised upward at City's reasonable option and
no more frequently than once every twelve (12) months, and City shall revise such
amounts within thirty (30) calendar days following notice to Near Southside of such
requirements.
14.2.2 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.
14.2.3 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. Near Southside shall maintain coverages, if applicable.
14.2.4 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.
14.2.5 Insurers of Near Southside'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.
14.2.6 Deductible limits on insurance policies shall not exceed $10,000 per occurrence
unless otherwise approved by City.
14.2.7 In the event there are any local, federal or other regulatory insurance or bonding
requirements for Near Southside's operations, and such requirements exceed those
specified herein, the former shall prevail.
14.2.8 Near Southside shall require its contractors and subcontractors to maintain
applicable insurance coverages, limits, and other requirements as those specified herein;
and, Near Southside shall require its contractors and subcontractors to provide Near
Southside and City with certificate(s) of insurance documenting such coverage. Also,
Near Southside shall require its subcontractors to have City and Near Southside endorsed
as additional insureds (as their interest may appear)on their respective insurance policies.
SECTION 15
COMPLIANCE WITH LAWS
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FOR CALHOUN PARK AND CRAWFORD PARK
15.1 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, and, if applicable, the Public Funds Investment Act (chapter 2256 of the Texas Government
Code). Near Southside agrees to comply with all applicable laws in performing the Services pursuant to
this Agreement.
15.2 If City notifies Near Southside or any of its officers, agents, employees, contractors,
subcontractors, licensees, volunteers, or invitees of any violation of such laws, ordinances, rules or
regulations,Near Southside shall immediately desist from and correct the violation.
SECTION 16
PERMITS AND LIENS
16.1 Near Southside 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.
16.2 Near Southside 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 Near Southside, then Near
Southside will take all necessary steps to bond around or remove the lien within ten(10)days of its filing.
SECTION 17
EQUIPMENT
17.1 Near Southside shall, at all times, maintain its equipment in a clean and serviceable
condition. All equipment shall be properly licensed, inspected and clearly marked with Near Southside's
name or the name of Near Southside's contractor or subcontractor. The continued use of unserviceable or
improper equipment shall be considered a breach of this Agreement.
SECTION 18
ASSIGNMENT AND THIRD PARTY RIGHTS
18.1 Except as specifically set forth in this Agreement, Near Southside 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 Near Southside and its respective successors and permitted assigns.
18.2 The provisions and conditions of this Agreement are solely for the benefit of the City and
Near Southside, and any lawful assign or successor of Near Southside, and are not intended to create any
rights, contractual or otherwise,to any other person or entity.
SECTION 19
RIGHT TO AUDIT
19.1 Near Southside 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
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FOR CALHOUN PARK AND CRAWFORD PARK
maintained on a generally accepted accounting basis and shall be clearly identified and readily accessible.
19.2 Near Southside 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 Near Southside involving all Services and transactions relating to this
Agreement. Near Southside agrees that City shall have access during normal working hours to all
necessary Near Southside facilities and shall be provided adequate and appropriate workspace to conduct
audits in compliance with the provisions of the section.
19.3 Near Southside 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.
SECTION 20
NOTICES
20.1 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 NEAR SOUTHSIDE,INC.:
City of Fort Worth Near Southside,Inc.
Park&Recreation Department 1606 Mistletoe Blvd.
Attn: Director Fort Worth,Texas 76104
4200 South Freeway, Suite 2200
Fort Worth,Texas 76115-1499
With copies to:
City of Fort Worth
Attn:City Attorney
200 Texas Street
Fort Worth,Texas 76102
and
City of Fort Worth
Attn: City Manager's Office
200 Texas Street
Fort Worth,Texas 76102
SECTION 21
VENUE AND CHOICE OF LAW
MANAGEMENT SERVICES AGREEMENT Page 13 of 24
FOR CALHOUN PARK AND CRAWFORD PARK
21.1 Near Southside 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 22
AMENDMENTS, CAPTIONS AND INTERPRETATION
22.1 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 Near
Southside.
22.2 Captions and headings used in this Agreement are for reference purposes only and shall
not be deemed a part of this Agreement.
22.3 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.
SECTION 23
GOVERNMENTAL POWERS AND IMMUNITIES
23.1 It is understood that by execution of this Agreement, the City does not waive or surrender
any of its governmental powers or immunities.
SECTION 24
AUTHORIZATION,COUNTERPARTS AND ELECTRONIC SIGNATURES
24.1 By executing this Agreement,Near Southside's agent affirms that he or she is authorized
by Near Southside to execute this Agreement and that all representations made herein with regard to Near
Southside's identity, address, and legal status are true and correct.
24.2 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 25
SEVERABILITY AND NO WAIVER
25.1 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 Near Southside or City in connection with the rights and obligations contained in the
valid covenants, conditions or provisions of this Agreement.
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FOR CALHOUN PARK AND CRAWFORD PARK
25.2 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 right to
insist upon appropriate performance or to assert any such right on any future occasions.
SECTION 26
FORCE MAJEURE
26.1 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. Near Southside hereby waives any
claims it may have against the City for damages resulting from any such Force Majeure Event.
SECTION 27
IMMIGRATION NATIONALITY ACT
27.1 Near Southside shall verify the identity and employment eligibility of its employees who
perform work under this Agreement, including completing the Employment Eligibility Verification Form
(I-9). Upon request by City,Near Southside shall provide City with copies of all I-9 forms and supporting
eligibility documentation for each employee who performs work under this Agreement. Near Southside
shall adhere to all Federal and State laws as well as establish appropriate procedures and controls so that
no services will be performed by any Near Southside employee who is not legally eligible to perform
such services. NEAR SOUTHSIDE SHALL INDEMNIFY CITY AND HOLD CITY HARMLESS
FROM ANY PENALTIES, LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THIS
PARAGRAPH BY NEAR SOUTHSIDE, NEAR SOUTHSIDE'S EMPLOYEES,
SUBCONTRACTORS,AGENTS, OR LICENSEES. City, upon written notice to Near Southside, shall
have the right to immediately terminate this Agreement for violations of this provision by Near Southside.
SECTION 28
PROHIBITION ON CONTRACTING WITH COMPANIES THAT BOYCOTT ISRAEL
28.1 Near Southside acknowledges that in accordance with Chapter 2270 of the Texas
Government Code, the City is prohibited from entering into a contract with a company for goods or
services unless the contract contains a written verification from the company that it: (1) does not boycott
Israel; and (2) will not boycott Israel during the term of the contract. The terms "boycott Israel" and
"company" shall have the meanings ascribed to those terms in Section 808.001 of the Texas Government
Code. By signing this Agreement, Near Southside certifies that Near Southside's signature provides
written verification to the City that Near Southside: (1) does not boycott Israel; and (2) will not
boycott Israel during the term of the Agreement.
SECTION 29
ENTIRE UNDERSTANDING
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FOR CALHOUN PARK AND CRAWFORD PARK
29.1 This Agreement (including the attached exhibits) contains the entire Agreement between
Near Southside 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.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
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FOR CALHOUN PARK AND CRAWFORD PARK
IN WITNESS HEREOF, the Parties have executed this Agreement to be effective on the date
indicated in Section 2.
CITY OF FORT WORTH: NEAR SOUTHSIDE,INC.:
By: By:
Y _
Fernando Costa Name: W. M1(-NA'el, giZ"MAN)
Assistant City Manager Title: ?RES j(>Y.NT
RECOMMENDED:
By:
Richard Zavala, Direc or
Park & Recreation Department
APPROVED AS TO FORM AND LEGALITY:
By:
Richard A. McCracken
Assistant City Attorney
ATTEST: <-.._..
By: - IFc=
Mary s r ';
City Secre ary
M&C: L-16150 •CAS
Date: September 18, 2018
Form 1295: 2018-392132
CONTRACT COMPLIANCE MANAGER:
By signing, I acknowledge that I am the person responsible
for the monitoring and administration of this contract
including ensuring all performance and reporting requirements.
By: G
Clinton Wya t
Park Operations District Superintendent
OFFICIAL RECORD
CITY SECRETARY
MANAGEMENT SERVICES AGREEMENT aEFT7W0R-(H,TX
FOR CALHOUN PARK AND CRAWFORD PARK
EXHIBIT A
SCOPE OF SERVICES
A. Park Management
1. Near Southside shall provide competent, qualified, and trained staff employed by Near
Southside to provide the following administrative and management services for operation of the
Parks:
a. Supervision of the daily maintenance necessary to keep the Parks in a clean, operational,
and trash free condition with healthy turf,trees, shrubs and flower plantings;
b. Recruiting, hiring,paying and supervising the work force, which Near Southside will hire
to manage the Parks;
c. Contracting with subcontractors to provide landscaping, and turf, tree, shrub, irrigation
system, and any other maintenance services that Near Southside is responsible for
pursuant to this Agreement that Near Southside elects to provide through subcontracting;
d. Providing management, financial and program monitoring systems for operation of the
Parks;
e. Park Reservations. Be responsible for managing and booking park reservations, issuing
reservation agreements and collecting park reservation fees. Near Southside shall charge
all fees related to the reservation of the Parks, including but not limited to reservation
fees, commercial photography fees, cancellation fees, late fees, set-up and break-down
fees, retained damage deposits, admission fees, concession fees, merchandise sales, stage
rentals, ticket booths, vendor booths, portable bathroom rentals, or banner pole rentals in
accordance with the Park & Recreation Department's policies and fee schedules, and
shall retain all records relating to park reservations and the charging and collection of
fees. Near Southside will not charge utility fees to persons or entities reserving the Parks.
Near Southside may not grant a waiver of any fees if such waiver has not been authorized
by the City Council. Near Southside shall not act as an event holder and shall not be
authorized to self-produce any events at the Parks. Any affiliate of Near Southside that
chooses to reserve the Parks or hold an event at the Parks must pay all applicable fees and
obtain all necessary permits in accordance with the Park & Recreation Department's
policies and fee schedules. Near Southside shall provide the City with a quarterly event
calendar showing all future reservations for the Parks. The quarterly event calendar shall
be delivered to the City on January 1, April 1, June 30 and October I of each year. Near
Southside shall not allow an admission fee to be charged at the Parks without the written
approval of the Park & Recreation Department Director. Near Southside may allow
alcohol sales at the Parks, but must keep records of all licenses and permits required by
the Texas Alcoholic Beverage Commission;
f. Provide any reports requested by the Director concerning management, maintenance and
operation of the Parks within thirty (30) calendar days after such request by the Director,
unless agreed to otherwise by the parties in writing;
g. Provide recommendations on actions and guidelines that the City could take to regulate
activities in the Parks to maximize the contribution of activities and events in the Parks;
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FOR CALHOUN PARK AND CRAWFORD PARK
h. Participate in private or public meetings concerning operations and services in the Parks;
i. Serve as a liaison between the City, adjacent property owners, Park users, interested
persons and groups to ensure successful operation and maintenance of the Parks;
j. Provide supervision and monitoring for the performance of subcontractors who are
retained by Near Southside;
k. Provide assistance to the City's Park & Recreation Department concerning use of the
Parks;
1. Provide assistance to City in briefing interested parties concerning proposed activities
and projects that would enhance the beauty and use of the Parks;
in. Serve as the information and complaint point of contact for all matters relating to
operation and maintenance of the Parks and advising City in a timely manner of any
problems with City-owned equipment or facilities in the Parks;
n. Maintain communications with the Park & Recreation Department reservation staff to
ensure that the Parks are always in their best appearance for scheduled activities.
Scheduled activities in the Parks shall not be allowed to postpone or compromise
emergency repairs in the Parks, when postponing those repairs would have "serious
impact" on Parks 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 Parks
equipment; and
o. Ensure that the operation of the Parks complies with the City Code and State law,
including but not limited to, advertising and use of alcohol within the Parks.
B. Maintenance and Landscaping
1. Near Southside shall provide the following maintenance services in the Parks either
directly or through subcontractors:
a. Keep the Parks in a clean condition by:
i. Keeping 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 Near Southside's ability within 24 hours of
notification by the Director.
b. Keep the turf, plantings, trees and shrubs in a healthy condition by watering, fertilizing,
inspecting, pruning, treating wounds, providing disease and insect control, and
performing any other actions necessary to keep all plant life in a healthy appearance,
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FOR CALHOUN PARK AND CRAWFORD PARK
including, but not limited to, re-seeding or sodding the turf, providing additional ground
cover, and trimming the trees.
c. Maintain, repair or replace as necessary all: (1) irrigation systems; (2) decomposed
granite, limestone or other fill stone or decorative stone for planting beds; and (3) any
landscape edging, including steel, brick, or stone, in the Parks. Except for cleaning and
removal of trash, Near Southside shall not be responsible for maintaining or repairing the
pavilions, decking, fencing, concrete, sidewalks, walkways, paths retaining walls, steps,
or security lighting.
d. Be responsive to any requests for service in the Parks by the Director.
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FOR CALHOUN PARK AND CRAWFORD PARK
EXHIBIT B
FORM OF CONVEYANCE INSTRUMENT
CONVEYANCE INSTRUMENT FOR PARK IMPROVEMENTS
THE STATE OF TEXAS §
§ KNOW ALL PERSONS BY THESE PRESENTS:
COUNTY OF TARRANT §
THAT, Fort Worth Southside Development District, Inc, d/b/a Near Southside, Inc.,
a Texas nonprofit corporation ("Grantor"), does hereby GIVE, GRANT AND CONVEY unto
the City of Fort Worth, a municipal corporation existing under the Constitution and laws of
the State of Texas ("Grantee"), the newly constructed improvements located at [Insert Park
Name and Address], including [Insert a list of the Improvements or an Attachment],
together with all rights appertaining thereto, if any (herein collectively called the
"Improvements").
This Conveyance Instrument for the Improvements is executed by Grantor and
accepted by Grantee subject to the terms and conditions of Fort Worth City Secretary
Contract Number [Insert Number], including, but not limited to, all indemnification,
liability, , and warranty provisions contained therein. The Grantor represents and
warrants that the Improvements are free and clear of any liens, claims, restrictions,
covenants, and any other matter of whatsoever nature, if any, affecting the Improvements.
TO HAVE AND TO HOLD the Improvements together with all and singular the
rights thereto in anywise belonging unto Grantee, its successors and assigns forever.
WITNESS THE EXECUTION HEREOF as of the day of 20
GRANTOR:
Near Southside, Inc.
A Texas Nonprofit Corporation
By
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FOR CALHOUN PARK AND CRAWFORD PARK
STATE OF §
COUNTY OF §
This instrument was acknowledged before me on the day of 20 ,
by of Near Southside, Inc., on behalf of said
corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the _ day of
20
Notary Public, State of Texas
Notary's Printed Name
My Commission Expires:
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FOR CALHOUN PARK AND CRAWFORD PARK
EXHIBIT C
DAMAGE TO CITY TREES
NO PRUNING OF ANY CITY TREE SHALL BE PERMITTED, UNLESS SPECIFIED
OTHERWISE IN THIS AGREEMENT. Severe damage to trees will result in replacement or compensation
of trees by Near Southside. Failure to replace damaged trees shall be considered a breach of contract and
Near Southside shall be assessed for damages. Slight or moderate damage to trees will result in assessment of
damages.
ASSESSMENT OF DAMAGES TO TREES
1. Near Southside will check trees in the Parks before contract work begins, any damage will be noted
and reported to the Director.
2. The Director may conduct random checks of the trees during the Term.
3. A check of all trees may be made at the end of the Term. The City Forester, Director, and Near
Southside will attend the inspection.
4. Damages shall be documented by memo to the City Forester with copy to contract file and Near
Southside.
5. Near Southside may have the option of replacement or payment for severely damaged trees at a
location to be designated by the Director. Replacement shall be made on caliper inch per caliper inch
basis with a minimum size of replacement tree of 2"in caliper for trees damaged or removed less than
30" diameter at breast height (DBH) and 2" per inch on trees 30" DBH or greater. Near Southside
shall be responsible for any planting, watering, mulching and maintenance of replacement trees for a
period of not less than two (2) years. Near Southside shall compensate the City at a rate of$200 per
caliper inch for any tree that does not survive the two(2)year establishment period.
6. Slight Damage shall be defined as damage, in the opinion of the City Forester that may heal.
Examples include, but are not limited to, scaring of the trunk into the cambial layer %2"to 2" in width
but less than 1/3 trunk circumference or breaking of limbs less than 2" in diameter or limbs less than
1/3 trunk caliper, whichever is less. Slight damage shall also include removal or lying down of
protective tree fencing prior to the end of construction, storing equipment or supplies within the
critical root zone(CRZ), or disposing of paint or concrete within the CRZ but not closer to the trunk
than 50% radius of the CRZ. Slight damage to trees shall be assessed at a rate of$100 for each
instance. For each day that tree fencing is not properly placed, equipment or supplies are stored
within CRZ,or fill is stored within the CRZ, shall be considered one instance.
7. Moderate damage shall be defined as damage, in the opinion of the City Forester, that contributes to
the poor health and reduced longevity of the tree, and examples include, but are not limited to, scaring
of the trunk into the cambial layer greater than 2" but less than 1/3 of the trunk circumference or
breaking of limbs more than 2" in diameter but less than 1/3 trunk caliper. Moderate damage shall
also include compaction of soil, grading or filling in 20%of the CRZ on one of four sides but outside
the 50%radius of the CRZ, or disposing of paint or concrete within 50%radius of the CRZ. Moderate
damages shall be calculated at a rate of the assessed value of the tree per each instance of damage.
8. Severe damage or removal of trees is subject to a penalty of$200 per diameter inch of trees removed
or damaged for trees less than 30" DBH and $400 per diameter inch of trees 30" DBH or greater.
Severe damage or removal shall include,but is not limited to, scaring of the trunk to the cambial layer
MANAGEMENT SERVICES AGREEMENT Page 23 of 24
FOR CALHOUN PARK AND CRAWFORD PARK
greater than 1/3 the trunk circumference, uprooting or causing a tree to lean, or damage to a
scaffolding branch or branch greater than 1/3 of trunk caliper. Severe damage shall also include
compaction of soil, grading or filling more than 20%of the CRZ, or within 50%radius of the CRZ or
on more than one of 4 sides. Cutting 1/3 of the buttress roots within 3 times the distance of the DBH
of the trunk, or cutting 4 roots 4"or greater in diameter within 4' of the trunk shall also be considered
severe damage.
9. Branches shall be measured at the point of attachment or at the lateral to which the branch would be
pruned back to according to ANSI standards. Trees caliper shall be measured according to accepted
industry standards. Trees greater than 6" in caliper shall be measured using DBH. Trees that must be
removed due to damage caused by Company shall be removed by the Park & Recreation
Department's Forestry Section Tree Removal Contractor at Near Southside's expense.
10. All damages shall be paid to the City Tree Fund. Failure to replace or pay for damaged trees shall
result in a breach of contract and Near Southside will be automatically assessed damages. Damages
as described herein shall be deducted from payments otherwise due to Near Southside.
11. Remediation costs assessed hereunder constitute contractual damages intended to compensate the
City, as property owner, and have no bearing on whether or to what extent any fines may be due
under the Urban Forestry Ordinance of the Fort Worth Zoning Ordinance.
MANAGEMENT SERVICES AGREEMENT Page 24 of 24
FOR CALHOUN PARK AND CRAWFORD PARK
4/9/2019 M&C Review
Official site of the City of Fort Worth,Texas
CITY COUNCIL AGENDA FORT W
COUNCIL ACTION: Approved on 9/18/2018
DATE: 9/18/2018 REFERENCE NO.: "L-16150 LOG NAME: 80STONEHAWK
CODE: L TYPE: CONSENT PUBLIC HEARING: NO
SUBJECT. Accept Dedication of Approximately 0.683 Acres of Land from CRP/SCP Southside
Owner, L.P.for Crawford Park and Calhoun Park and Authorize Execution of a
Management Services Agreement with Fort Worth Southside Development District, Inc.,
d/b/a Near Southside, Inc.,in the Amount of$8,000.00 for Management of the Parks
(COUNCIL DISTRICT 9)
RECOMMENDATION:
It is recommended that the City Council:
1. Accept the dedication of approximately 0.683 acres of land from CRP/SCP Southside Owner,
L.P.in accordance with the Neighborhood and Community Park Dedication Policy;
2. Authorize the execution and recording of the appropriate instruments;
3. Dedicate the property as parkland upon conveyance for two parks to be named"Crawford Park"
and"Calhoun Park";and
4. Authorize execution of a Management Services Agreement with Fort Worth Southside
Development District, Inc.d/b/a Near Southside, Inc.in the amount of$8,000.00 for management and
maintenance of Crawford Park and Calhoun Park.
DISCUSSION:
The purpose of this Mayor and Council Communication is to accept two new parks in the South Main
Urban Village area in accordance with the Neighborhood and Community Park Dedication Policy and
authorize execution of a management services agreement for management and maintenance of the
two parks.
A new development,The Bowery at Southside apartment complex,will include approximately 313
luxury apartments and townhomes in the South Main Urban Village. As part of the construction of
The Bowery at Southside,two new public parks will be created.
The legal descriptions are as follows.
Calhoun Park
A 0.379 acre tract of land situated in the Peter T Welch Survey,Abstract No. 1643,and
being a portion of Block 44 of Tucker's Addition,recorded in Volume 63, Page 124, Plat
Records,Tarrant County,Texas,and a portion of E.Tucker Street abandoned by City
Ordinance No.76,and being a portion of a certain tract of land described by deed to
CPR/SCP Southside Owner, L.P.recorded in County Clerk's Document No.
D217295832, Deed Records,Tarrant County,Texas.
Crawford Park
A 0.304 acre tract of land situated in the John Childress Survey,Abstract No.250,and
being a portion of Lots 11 and 12, Block 10 of Daggett's Second Addition, (unrecorded
plat), Block 1, Foremost Daries, Inc. Plant Site, recorded in Volume 388-41, Page 57,
Plat Records,Tarrant County,Texas,and all of that portion of Crawford Street,vacated
by City Ordinance No.22784-06-2017,and being a portion of that certain tract of land
described by deed to CPR/SCP Southside Owner, L.P. recorded in County Clerk's
Document No. D217295832, Deed Records,Tarrant County,Texas.
On August 3,2016(Resolution No.2016-13),the Southside/Medical District TIF No.4 Board(Board)
approved a Tax Increment Financing Development Agreement(TIF Agreement)with StoneHawk
Capital Partners, LLC(StoneHawk)the developer of The Bowery at Southside in the South Main
Village for public improvements. As part of that TIF Agreement, StoneHawk is required to dedicate
the aforementioned parks to the City. CRP/SCP Southside Owner, L.P.,which is dedicating the park
land to the City,is an affiliated entity of StoneHawk. The Board also approved an agreement with
Fort Worth Southside Development District, Inc.,(Near Southside)for funding in the amount of$1.8M
for the design,engineering,and construction of public improvements for the two proposed public
parks.
Near Southside is a nonprofit organization that has provided significant financial benefits and other
benefits to the City,including assistance in facilitating the dedication of the two parks and planning for
the development and maintenance of the parks. Near Southside will execute a management services
agreement with the City for management of the two parks, including managing design,construction
and maintenance of the park improvements and managing events in the parks. The management
services agreement will be for a period of ten years with two five year renewals.
In accordance with the proposed agreement, Near Southside shall comply with the use and
management policies of the Park&Recreation Department to ensure public access.
Near Southside will collaborate with City staff on the design and construction of the two parks.The
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planned improvements to the parks include a pavilion,walkways,seating areas and a fenced dog
park.All plans for construction and improvements must receive approval from the City.
The proposed improvements to be constructed at both park sites will be premium level
enhancements that go beyond that which would otherwise be constructed for parks of similar size
and will benefit the public by helping to enhance the overall environment and livability of the
apartment development and the surrounding area.
Maintenance and operating estimates for urban parks,commercial corridors and enhanced right-of-
ways are determined by the proposed design which dictates the projected service levels necessary to
maintain the constructed improvements. The amenities and improvements constructed at the two
park sites will require an enhanced level of service and maintenance than the City would ordinarily
provide at parks of similar size. As part of the management services agreement, Near Southside will
ensure enhanced maintenance at the two park sites. The annual cost for maintenance,including
mowing, litter removal,landscape and irrigation services,and operations is estimated to be$8,000.00
by the Park&Recreation Department. In addition,the City will pay the water and electricity
(estimated at$1,200.00/year).
Under the proposed agreement, Near Southside will be responsible for managing reservations of the
pavilion and other facilities,and booking and programming of events at both parks.
In accordance with Section 252.022(a)(7)(F)of the Texas Local Government Code,the Management
Services Agreement with Near Southside, Inc.,is exempt from competitive bidding requirements
because the agreement is for management services provided by a nonprofit organization to a park to
which the organization has provided significant financial or other benefits.
The proposed public parkland is located north of Pennsylvania Avenue,south of E. Broadway Street,
and east of Main Street in COUNCIL DISTRICT 9,Mapsco 72E and F.
FISCAL INFORMATION/CERTIFICATION:
The Director of Finance certifies that funds are available in the current operating budget,as
appropriated,of the General Fund and that prior to an expenditure being incurred,the Park&
Recreation Department has the responsibility to validate the availability of funds.
TO
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Submitted for City Manager's Office by_ Fernando Costa(6122)
Originating Department Head: Richard Zavala(5704)
Additional Information Contact: David Creek(5744)
ATTACHMENTS
Aerial StoneHawk.pdf
Form 1295 NSI SMV Parks.pdf
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