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HomeMy WebLinkAboutContract 39317N RACRE70ARY cr No. alL AGREEMENT FOR GOLF COURSE SIGNAGE THIS AGREEMENT FOR GOLF COURSE SIGNAGE ("Agreement") is made and entered into by and between THE CITY OF FORT WORTH, a home -rule municipal corporation of the State of Texas ("City"), acting by and through its duly authorized Assistant City Manager, and BAKER GOLF AIDS ("Contractor"), a sole proprietorship, acting by and through its duly authorized Owner. WHEREAS, the City owns and operates certain public golf courses; and WHEREAS, Contractor is in the business of producing and supplying quality, advertiser -supported golf course signage for use by golf courses; and WHEREAS, the City wishes to retain the services of Contractor to provide signage on certain City golf courses. NOW, THEREFORE, City and Contractor agree as follows: l . Contractor's Rights and Obli atg ions A. In accordance with and subject to the terms and conditions established herein, Contractor shall provide a custom -designed tee sign for installation and use at each teeing area or "tee box" at the following City golf courses: Meadowbrook, Pecan Valley "Hills," Rockwood, Sycamore Creek, and Z Boaz, B. Each tee sign shall include the following information: golf course name, hole number, diagram of layout of the hole, par, and yardage measurement from the sign to the hole. C. Each tee sign shall include a panel for placement of a single advertisement. The total size of the advertising panel may not exceed 20% of the total visible surface area of the installed sign. D. For each of the golf courses listed under Section 1, Contractor shall provide one of the following "extras" as selected by the City: (1) up to eight (8) on -course directional signs; (2) an information board for hole number one; (3) an entrance welcome sign. Contractor shall consult with the Parks and Community Services Department Assistant Director who manages the Golf Division in the selection and design of the selected "extra." Selected "extras" shall not include any advertisement panels. E. Contractor shall solicit and secure a sponsor or advertiser for each tee sign, a subject to City approval and other limitations established herein. 41 Sj: E7Am y Agreement for Golf Course Signage ,,:T, Ii11'aR7H, TX Page 1 of 9 F. Advertisements for goods or services that are sold on the premises of the golf course may constitute up to 20% of the visible surface area of the installed sign. Advertisements for goods or services that are not sold on the premises of the golf course may constitute up to 10% of the visible surface area of the installed sign. G. Contractor shall not solicit or secure advertisement for any alcoholic beverage for any tee sign at Pecan Valley Golf Course. H. Contractor shall notify the City once advertisers or sponsors have been secured for ten of the holes at a particular course. I. Each course shall require a total of eighteen tee signs. Once Contractor has secured initial advertisers or sponsors for fourteen of the holes at a particular course, Contractor shall deliver to City ALL tee signs and the selected "extra" for that course. Tee signs shall include pre -mounted materials for all initial advertisers and sponsors who were secured prior to shipment of the tee signs. Following shipment, Contractor may continue to solicit advertisers or sponsors for any remaining unsold tee signs. J. Contractor shall deliver to City materials for any sponsor or advertiser who is secured after delivery of the tee signs. K. Contractor shall be solely responsible for all costs of delivery to City of all tee signs, sponsorship/advertising materials, and "extras." L. Contractor shall have the right to access each of the listed golf courses during regular business hours in order to inspect and maintain the tee signs and advertising/sponsorship materials. 2. Cit�ghts and Obli atg ions• A. City shall have the final right to approve each sponsor and advertiser. City shall provide notice to Contractor of any objection to a sponsor or advertiser as soon as is reasonably practicable. B. City shall be responsible for installation and removal of the tee signs. C. City shall be responsible for installation and removal of any advertising or sponsorship material following initial delivery of the tee signs. D. City shall comply with Contractor instructions related to installation of the signs and sponsorship/advertising materials. E. City shall only permit temporary tournament sponsor signage and Contractor - secured advertising and sponsorship materials to be placed on the tee signs. No other advertising or sponsorship materials shall be allowed. Agreement for Golf Course Signage Page 2 of 9 F. In the event any tee sign, advertising/sponsorship material, or "extra" is damaged or defaced, City shall notify Contractor, in writing, of such defacement or damage and of the need for repair or replacement. Contractor shall repair or replace such sign, material, or "extra" as soon as is reasonably possible. City shall reimburse Contractor for its actual costs in repairing or replacing such sign, material, or "extra," provided, however, that the repair or replacement cost shall not exceed the amount listed below for each sign at issue. Type of Sign Repair Replace Tee Sign $200.00 MOM Advertising/Sponsorship Material $50.00 $60.00 Directional Sign $200.00 $300.00 Entrance Welcome Sign MOM $15000000 Information Board $700.00 $1,000.00 G. In the event any of the golf courses listed in Section 1 is sold or leased during any term of this Agreement, City shall ensure that the contract for sale or lease includes a provision requiring that the purchaser or lessee takes the property subject to and in accordance with the terms of this Agreement. 3. Term. This Agreement shall be effective for all of the golf courses listed under Section 1 beginning on the date that it is fully and completely executed by both Parties. The Parties shall execute and attach an addendum to this Agreement for each golf course evidencing the date that tee signs are installed at that course. For each course, this Agreement shall remain in effect for a period of three years from the date of installation ("Initial Term"). Unless terminated earlier as provided herein, this Agreement may be renewed for each golf course for two additional three-year periods ("Renewal Terms") through execution of a written addendum signed by both Parties. 4. Distribution of Advertising and Sponsorship Revenues. A. During the Initial Term of this Agreement, Contractor shall be entitled to keep all revenues generated from sales of approved sponsorhips and advertisements. B. In any Renewal Term, City shall be entitled to 20% of gross revenues generated from any sale of a new advertisement or sponsorship and 10% of gross revenues generated from any sale to an existing advertisement or sponsorship. Contractor shall be entitled to keep all revenues generated in excess of the percent due to the City. Agreement for Golf Course Signage Page 3 of 9 For purposes of this Section, sale to an existing sponsor/advertiser of an advertising panel on a different or additional tee marker shall constitute a "new" a dvertisement/sponsorship. 5. Termination. A. In the event Contractor is unable to secure inal advertisers or sponsors for fourteen of the holes at a particular course within 120 days of the date this Agreement is executed, City may, in its sole discretion, terminate this Agreement with respect to the golf course in question. City shall inform Contractor of any termination under this provision by means of a written, signed notice delivered via certified mail, return receipt requested. Following receipt of the termination notice by Contractor, City shall be under no further obligation to Contractor with respect to the course or courses in question. B. This Agreement may be terminated in whole or in part by either party upon thirty (30) days' written notice delivered in person or by certified mail to the non - terminating party. If the City terminates this Agreement in whole or in part without cause prior to the expiration of the Initial Term, then City shall pay Contractor Fifty -One Hundred Dollars ($5,100.00) per year for each affected golf course prorated to reflect the number of days remaining from the effective date of termination to the date the Initial Term would have expired. C. In the event Contractor fails to comply with any of the terms and conditions of this Agreement, after notice and a reasonable opportunity to cure as determined by the City, City shall have the right to terminate this Agreement upon thirty (30) days' written notice delivered in person or by certified mail to the non -terminating party. If the Agreement is terminated for cause, City shall not be obligated to pay Contractor. 6. Independent Contractor. Contractor shall operate hereunder as an independent contractor and not as an officer, agent, servant, or employee of City. Contractor shall have exclusive control of and the exclusive right to control the details of the services performed hereunder, and all persons performing same, and shall be solely responsible for the acts and omissions of its officers, agents, servants, employees, and subcontractors. The doctrine of respondeat superior shall not apply as between the City and Contractor, its officers, agents, servants, employees, or subcontractors. Nothing herein shall be construed as creating a partnership or joint enterprise between City and Contractor. It is expressly understood and agreed that no officer, agent, servants, employee, or subcontractor of Contractor is in the paid service of City. 7. Liability and Indemnification. CONTRACTOR AGREES TO DEFEND, INDEMNIFY, AND HOLD THE CITY, ITS Agreement for Golf Course Signage Page 4 of 9 OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES HARMLESSAGAINST ANYAND 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 A BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY (INCLUDING DEATH) THAT MAY RELATE TO, ARISE OUT OF, OR BE OCCASIONED BY (I) CONTRACTOR'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR (II) ANY NEGLIGENTACT OR OMISSION OR INTENTIONAL MISCONDUCT OF CONTRACTOR, ITS OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES, SEPARATE CONTRACTORS, OR SUBCONTRACTORS RELATED TO THE PERFORMANCE OF THIS AGREEMENT. IN THE EVENT OF JOINT AND CONCURRENT NEGLIGENCE OF BOTH CONTRACTOR AND CITY, RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED COMPARATIVELY L ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. NOTHING HEREIN SHALL BE CONSTRUED AS A WAIVER OF THE CITY'S GOVERNMENTAL IMMUNITY AS FURTHER PROVIDED BYTHE LAWS OF TEXAS, Contractor shall require all of its subcontractors to include in their subcontracts a release and indemnity in favor of City in substantially the same form as above. This Section shall survive the expiration or termination of this Agreement. 8. Assignment. Contractor shall not assign or subcontract all or any part of its rights, privileges, or duties under this Agreement without the prior written consent of City. Any attempted assignment of subcontract without the City's prior written approval shall be void and constitute a breach of this Agreement. If City grants consent to an assignment, the assignee shall execute a written agreement with the City and the Contractor under which the assignee agrees to be bound by the duties and obligations of Contractor under this Agreement. The Contractor and Assignee shall be jointly liable for all obligations under this Agreement prior to the assignment. If the City grants consent to a subcontract, the subcontractor shall execute a written agreement with the Contractor referencing this Agreement under which the subcontractor shall agree to be bound by the duties and obligations of the Contractor under this Agreement as such duties and obligations may apply. The Contractor shall provide the City with a fully executed copy of any such subcontract. 9. Compliance with Law. Contractor, its officers, agents, servants, employees, and subcontractors, shall abide by and comply with all laws, federal, state and local, including all ordinances, rules and regulations of City. It is agreed and understood that, if City calls to the attention of Contractor any such violation on the part of Contractor or any of its officers, agents, servants, employees, or subcontractors, then Contractor shall immediately desist from and correct such violation. Agreement for Golf Course Signage Page 5 of 9 10. Non -Discrimination. In the execution, performance, or attempted performance of this Agreement, Contractor will not discriminate against any person or persons because of disability, age, familial status, sex, race, religion, color, national origin, or sexual orientation, nor will Contractor permit its officers, agents, servants, employees, or subcontractors to engage in such discrimination. This Agreement is made and entered into with reference specifically to Chapter 17, Article III, Division 3, of the City Code of the City of Fort Worth ("Discrimination in Employment Practices"), and Contractor hereby covenants and agrees that Contractor, its officers, agents, employees, and subcontractors have fully complied with all provisions of same and that no employee or employee -applicant has been discriminated against by either Contractor, its officers, agents, employees, or subcontractors. 1 1. Right to Audit. Contractor agrees that the City shall, until the expiration of three (3) years after final payment under this Agreement, have access to and the right to examine any directly pertinent books, documents, papers and records of the Contractor involving transactions relating to this Agreement. Contractor agrees that the City shall have access during normal working hours to all necessary Contractor facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. The City shall give Contractor reasonable advance notice of intended audits. Contractor further agrees to include in all of its subcontractor agreements hereunder a provision to the effect that the subcontractor agrees that the City shall, until the expiration of three (3) years after final payment under the subcontract, have access to and the right to examine any directly pertinent books, documents, papers and records of such subcontractor involving transactions to the subcontract, and further that City shall have 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. City shall give subcontractor reasonable advance notice of intended audits. This Section shall survive the expiration or termination of this Agreement. 12. Fiscal Funding. In the event no funds or insufficient funds are appropriated by the City in any fiscal period for the City to meet its obligations hereunder, City will notify Contractor of such occurrence, and this Agreement shall terminate on the last day of the fiscal period for which appropriations were received. In the event such termination occurs prior to the expiration of the Initial Term, then City shall pay Contractor for its lost revenues for all affected signs, prorated to Agreement for Golf Course Signage Page 6 of 9 reflect the number of days remaining from the effective date of termination to the date the Initial Term would have expired. 13. Venue and Jurisdiction. Should any action, whether real or asserted, at law or in equity, arise out of the execution, performance, attempted performance of this Agreement, venue for said action shall lie in Tarrant County, Texas. 14. Notices. Notices to be provided hereunder shall be sufficient if forwarded to the other Party by hand -delivery or via U.S. Postal Service certified mail, postage prepaid, to the address of the other Party shown below: Charles W. Daniels, Assistant City Manager City of Fort Worth 1000 Throckmorton St. Fort Worth, Texas 76102 (817)392-6183 With copy to Denis C. McElroy, Assistant City Attorney City of Fort Worth 1000 Throckmorton St. Fort Worth, Texas 76102 (817) 392-2758 15. Non -Waiver. Larry Baker, Owner Baker Golf Aids 1910 Longbranch Court Arlington, Texas 76012 (817) 2714554 The failure of either Party to insist upon the performance of any term or provision of this Agreement or to exercise any right herein conferred shall not be construed as a waiver or relinquishment to any extent of City's or Contractor's right to assert or rely on any such term or right on any future occasion. 16. Effect on Third Parties. Nothing herein shall be deemed to constitute a waiver by either party of any affirmative defense or immunity from liability or suit that either parry has or could assert as to any claim of any third party. Nothing herein shall be construed in any manner, to create a cause of action for the benefit of any person not a party to this Agreement, or to create any rights for the benefit of any person not a party to this Agreement not otherwise existing at law. Agreement for Golf Course Signage Page 7 of 9 17. Disclosure of Conflicts. Contractor hereby warrants to the City that Contractor has made full disclosure in writing of any existing or potential conflicts of interest related to Contractor's provision of the Services. In the event that any conflicts of interest arise after the execution of this Agreement, Contractor hereby agrees to make full disclosure to the City in writing immediately upon learning of such conflict. 18. Minority and Woman Business Enterprise Participation. In accordance with City Ordinance No. 15530, the City has goals for the participation of minority business enterprises and woman business enterprises ("M/WBE") in City contracts. Contractor acknowledges the M/WBE goal established for this Agreement and its commitment to meet that goal. Any misrepresentation of facts (other than a negligent misrepresentation) and/or the commission of fraud by the Contractor may result in the termination of this Agreement and debarment from participating in City contracts for a period of time of not less than three (3) years. 19. Governmental Powers. Both Parties agree and understand that the City does not waive or surrender any of its governmental powers by execution of this Agreement. 20. Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. 21. Force Majeure. The City and Contractor shall exercise their best efforts to meet their A espective duties and obligations as set forth in this Agreement, but shall not be held liable for any delay or omission in performance due to force majeure or other causes beyond their reasonable control, including, but not limited to acts of God, acts of omission, fires, strikes, lockouts, national disasters, wars, riots, material or labor restrictions by any governmental authority, transportation problems and/or any other similar causes. 22. Headings not Controlling, Headings and titles used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 23. Amendment. No amendment, modification, or alteration of the terms of this Agreement shall be binding unless the same is in writing, dated subsequent to the date hereof, and duly executed by the Parties hereto. 24. Entire Agreement. This written instrument (together with any attachments, exhibits, and appendices) constitutes the entire understanding between the Parties concerning the work and services to be performed hereunder, and any prior or contemporaneous, oral or written agreement that purports to vary from the terms hereof shall be void. Agreement for Golf Course Signage Page 8 of 9 EXECUTED in multiple originals on this, the I V day of VW , 2009. CITY OF FORT WORTH, TEXAS Assistant City Manager Date Signed: ATTEST: Marty Hendrix City Secretary APPROVED AS TO FORM AND LEGALITY: Denis C. McE Assistant City No M&C Required Date Signed: WITNESS: CORPORATE SEAL: Agreement for Golf Course Signage Page 9 of 9 ADDENDUM TO AGREEMENT OF GOLF COURSE SIGNAGE THIS ADDENDUM TO AGREEMENT FOR GOLF COURSE SIGNAGE ("Addendum") is maAe and entered into by and between THE CITY OF FORT WORTH, a home -rule municipal corporation of the State of Texas ("City"), acting by and through the Parks and Community Services Department Assistant Director for the Golf Division, and BAKER GOLF AIDS ("Contractor"), a sole proprietorship, acting by and through its duly authorized Owner. By execution of this Addendum, the City and Contractor agree that tee signs were installed at Golf Course on , 20_ below and that this Addendum shall serve as conclusive evidence of such date. The City and Contractor further agree that, in accordance with Section 3 of the Agreement for Golf Course Signage, the Initial Term of the Agreement with respect to Golf Course shall continue until , 20_, unless terminated earlier in accordance with the Agreement. CITY OF FORT WORTH, TEXAS Nancy Bunton Asst. Director —Golf Division Date Signed: Larry Baker Owner Date Signed: