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HomeMy WebLinkAboutContract 41449 CITY sSECR ETA' Y COWRACT 'NO PRIVATE-PROPERTY TOWING AND IMPOUND AGREEMENT This Private-Property Towing and Impo:und Agreement ("Agreement") i's made and entered into by and between, the CITY OF FORT WORTH (the "City"), a home-rule municipal corporation of the State of Texas, acting by and through its duly authorized Assistant City Manager, and EARL'S WRECKER SERVICE, INC. (the "Company""), a Texas corporation, acting by and through its duly authorized President., RECITALSI WHEREAS, the City, owns a piece of public, property luiowri as Trinity Park, 2401 University Drive, Fort Worth, Texas 76107 (the "Park"); and WHEREAS, portions Cif the Park are designated for restr icted parking,, meaning the City meets,the definition of a "parking facility owner"' under state law-, and WHEREAS, the Company represents, that it is a "towing company" under state law and 1 0 possesses all permits and licenses required under state law and City Code to perform "private property tow" service; and WHEREAS, the City wishes to engage the Company to provide "private property to service as defined by state law) for designated portions of the Park. NOW THEREFORE I in consideration of the mutual covenants contained herein, the parties,hereto do hereby agree as follows: 1. Services. City hereby grants to Company the exclusive right, pursuant to and in accordance with the terms and conditions, of this Agreement and of state law and City Code�, to remove vehicles from the arking facilities, if such vehicles are in violation of' the parking ' 0 restrictions detailed herein. Two (2) parking lots situated on the northern sector of the Park, are restricted to patrons of Trinity Park between the hours 7:00am. and 7: pm seven days a week. Parking Lot A and parking Lot B are referred to collectively for purposes of this Agreement as the "Parking Facilities." The locations of the Parking Facilities are depicted on Exhibit A, which is attached hereto and incorporated herein for all purposes, as though it were set forth at length. If the restrictions on one or both Parking Facilities are to be changed, the City shall revise all state,-, required signage as needed and shall provide the Company with notice at least forty-eighty hours prior to the date and time at which the revised restrictions are to become effective. Any revised restrictions shall be appended to this Agreement as an addendum signed by the Director of the City's Parks and Community Services Department C r( that individual's authorized representative), and a copy of the signed addendum shall be provided to the Company. The Company shall enforce restrictions, at the Parking Facilities only through use of "Spotter Removal" as defined herein., For purposes of this Agreement, "Spotter Removal" refers to an agent of the Company (the "S,p�otter") personally witnessing a violation of applicable parking restriction agreement . a vioiation occurs if a Spotter witnesses an individual park a ve i1W WAW P Facilities lot and leave the Park, provided, however, that an CITY'SECRETA�RY Towing and h po Page I of 5 TX I Ni';f,ff,)jf4A�q'5yjy,4j WIN individual who follows, -the designated hike and bike trail in the direction of downtown Fort Worth shall not be considered to have left the Park. The Company shall deliver all unauthorized vehicles to a vehicle storage facility that-, 1 is 0) operated in accordance with the requirements, of Chapter 2303 of the Texas Occupations Code, (ii) is located no more than twenty (2,0) miles from the particular parking lot from which the vehicle 4 1 "' " * was removed; and (iii) maintains adequate insurance against iiability for property damage incurred in storing vehicles. 2. and Termination. This Agreement shall encompass, and govern all services rendered during the one-year period beginning on January 1, 2011, and ending December 31, 2011, unless terminated by either party as provided herein. The Agreement may be renewed and extended for additional one-year periods by written mutual consent of the parties. This Agreement may be terminated by either party, with or without cause, by providing the other party with no less than ten (10) days written notice prior to the 'Intended tennination date. 3. Consideration; llection of Fees. Neither party shall receive or be entitled to any monetary consideration from the other party in connection with this Agreement, 'it being the intent of the parties that this arrangement involve the exchange of non-fungible, non-monetar�y consideration with the Company providing the City with a service by removing, unauthorized vehicles and the City providing, the Company with an opportunity to co�llect towing, and related fees as authorized under state law. 4. Compliance with Law,- Pennits, and Taxes, In its performance under this Agreement, the Company shall comply with all applicable federal, state, and local laws, rules, and regulations, as well as with all regulatio�ns, restrictions, and requirements of the City, now or her�eafter in effect which are applicable to its operations; such laws, and regulations shall include�, but not be limited to, (i) obtaining of any permits and licenses, for towing and related services that are required under state and/or local law and (ii) adhering to and complying with any and all regulations addressing the fees, that may lawfully be collected for towing and related activities. The Company shall obtain and keep in effect, at its sole cost and expense, all licenses, insurance, and permits, and pay all taxes incurred or required in connection with this Agreement and its operations, hereunder. The Company shall ensure compliance with all requirements under state law or the City Code related to notification of the proper law enforcement agency regarding the impoundment of any vehicle that is removed from the Parking Facilities under this Agreement. 5�. Independent Contractor. The Company shall perform all work and services hereunder as, an independent contractor, and not as an officer, agent, servant or employee of the City. The Company shall have exclusive control of, and the exclusive right to contr�o�l the details of the work performed hereunder, and all persons performing same, and shall be solely responsible for the acts and omissions of 'Its officers, agents, employees and subcontractors. Nothing herein shall be construed as, creating a partnership or joint venture between the City and the Company or their respective officers, agents, employees, or su-bcontra,,ctors. The doctrine of respondent superior has no application as, between the City and the Company. 6. Insurance. In executing this Agreement, the Company represents and affirms that it currently h, in effect throughoutthe term of this Agreement and any renewals, thereof, al f insurance coverage required under state law and City Code,, f fflepwlffill�ral Towing and I A IR, Page 2 of'5 RTH9 TX i,ncluding, but not limited to, worker's compensation, automobile, property damage, cargo, and general liability insurance., The Company shall provide written evidence of such coverage to the City upon request. 7. Liability; Indemnification. IN EXECUTING THIS AGREEMENT, THE COMPANY ASSUMES ALL LIABILITIES FOR DAMAGES INCURRED AS A RESULT OF THE REMOVAL AND STORAGE, OF SUCH VEHICLES. THE COMPANY AGREES TO DEFEND, INDEMNIFY, AND HOLD THE CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES HARMLESS AGAINST ANY AND ALL CLAIMS, LAWSUITS, ACTIONS, COSTS, AND EXPENSES OF ANY KIND, INCLUDING, BUT N0 1T LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS (INCLUDING ALL DAMAGE OR LOSS TO A BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY (INS L. UDING DEATH) THAT MAY RELATE TO, ARISE OUT OF OR BE OCCASIONED BY: (0 THE COMPANY'S BREACH OF ANY OF' THE TERMS OR PROVISIONS OF THIS AGREEMENT; 0*0 FAILURE, OF THE COMPANY TO COMPLY WITH THE REQUIREMENTS OF STATE LAW WITH RESPECT TO TOWING; (iii) FAILURE OF THE COMPANY TO MAINTAIN INSURANCE AGAINST LIABILITY FOR PROPERTY DAMAGE INCURRED IN TOWING A VEHICLE; (I'v) DELIVERY OF A VEHICLE TO A VEHICLE STORAGE, FACILITY THAT DOES; NOT MAINTAIN ADEQUATE INSURANCE FOR LIABILITY INCURRED IN STORING A VEHICLE;1 AND/OR (ii) ANY NEGLIGENT ACT OR OMISSION OR INTENTIONAL MISCONDUCT OF THE COMPANY, ITS OFFICERS,, AGENTS, ASSOCIATESI EMPLOYEES, CONTRACTORS (OTHER THAN THE CITY) OR SUBCONTRACTORS,, RELATED, TO TOWING AND STORAGE, OF VEHICLES UNDER THIS AGREEMENT. THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL NOT APPLY TO ANY LIABILITY RESULTING FROM THE SOLE NEGLIGENCE OR WRONGFUL WILLFUL ACTS OF THE CITY OR ITS OFFICERS, AGENTS, EMPLOYEES, OR SEPARATE CONTRACTOR& IN THE EVENT' OF JOINT AND CONCURRENT' NEGLIGENCE OR WRONGFUL, WILLFUL ACTS OF BOTH THE COMPANY AND THE CITY OR THEIR RESPECTIVE, O,FFICERS, AGENTS, EMPLOYEES, OR SEPARATE CONTRACTORS, RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, 8. Conflicts; Ne l Financial Involvement. The Company hereby warrants to the City that the Company has made full disclosure in writing, of any existing or potential conflicts of' interest related to the Company's provision of services under this Agreement. In the event that any conflicts, of interest arise after the execution of this Agreement, the Company hereby agrees to make full disclosure to the City in writing immediately upon learning of such conflict The Company has not and will not, directly or indirectly, give anything of value to the City in connection with the removal of vehicles from the designated parking facilities. The Company does not and shall not have a direct or indirect monetary interest in the parking facilities that are the subject of this Agreement., The City does not and shall not, directly or indirectly, accept anythinp, of value from the Company. In addition, City does not and shall not have a direct or indirect monetary interest in the Company. 9. Noiti i.o,tic&,,._required shall be sufficient if' deposited in the U.S. Mail, postage prepaid, c,erti, t requested, and addressed to the other party as follows: ETA RY Towing and Imp u"n, e Page 3 of 5 4, all CITY* THE COMPANY: city 01 Port Worth Cody Nicholson Parks and Community Services Director 921 N Houston St. 4200 South Freeway, Suite 2200 Fort Worth, TX 7'6164 Fort Worth, Texas 76,115 With copy to., Denis McElroy Assistant City Attorney 1000 Throe kmorton Street Fort Worth, Texas 7'6102 10. 'Governing Law; Venue. This Agreement shall be governed by the laws of the State of Texas. Venue for any action brought to 'interpret or enforce, or arising out of or, incident to, the terms of this License Agreement shall be in Tarrant County, Texas, or the United States District Court for the Northern District of Texas, Fort Worth Division. 11, Sever If' any part, of this agreement is determined by a court of law to be unenforceable,, the remaining parts of this agreement will remain in force., 12. Right to Audit. In accordance with the requirements of Section 2-13 d of'the Fort Worth City Code, the Company agrees that the City shall,, until the expiration of three (3) years after the expiration or termination of this Agreement, have access to and the right to examine any books,, documents, papers, and records of the Company involving transactions relating to this Agreement. The Company agrees that the City shall, have access during normal working hours to all necessary Company facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions, of this section. The Company further agrees to include in any subcontractor agreements, hereunder a provision to the effect that Subcontractor agrees that the City shall, until the expiration of three (3) years after final payment under the subagreement, have (1) access to and the right to examine .y anir books, documents, papers and records of such subcontractor,, involving, transactions relating to the subagreement, and (11) access during normal working, hours to all subcontractor facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. Nothing herein shall be construed as limiting the City's, rights of access to or examination of any books,, documents, papers, and records that may exist independently of this provision. 13. Review of Counsel. The parties acknowledge that each party and, If it so chooses,,, its counsel have reviewed and revised -this, Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party must not be empiloyed in the interpretation of this Agreement or any amendments or attacl-tments, hereto. 14. Authorization. By executing this Agreement, the Company's agent affirms that he or she is made # authorized by the Company to execute this Agreement and that all representations maae herein with regard to the Company's identity, address and legal status (corporation, partnership,, individual, etc.) are true and cc► root. OFFICIAL RECO RD CITY SECRFr A,, RY 11 V,VO RT I TX Towing and Impound'Agreement H Page 4 olf 5 Xv 15,. Entire ement. This Agreement constitutes the final, entire, and complete agreement between the Company and the City and supersedes any prior and contemporaneous, negofiations, understand ins representations, and/or agreements between the parties. Any prior or contemporaneous oral or written agreement that purports to vary from, the terms hereof shall be void. This Agreement cannot be modified or amended without, the written consent of all the parties hereto and attached and made a part of this Agreement. EXECUTED on this the day of CITY OF'F,ORT WORTH EARL'S WRECKER SERVICE,INC, .................. VaAlv-- Susa I Alanis C odyvNIi*c ofso�n, Presi dent ,sistant City Manager APPROVED S TO FORM LEG TY-- 5.n McEl Assistant City orney IF 0 14 A74 00000000 A7 *Cy Attested by 0 NY 0 0 0 00 ICY Mady Hendr'x C Secretary OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX ...... 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