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HomeMy WebLinkAboutContract 54093 CSC No. 54093 LICENSE AGREEMENT BETWEEN THE CITY OF FORT WORTH AND JAGOE-PUBLIC COMPANY This License Agreement ("Agreement") is entered into this I", day of September, 2020 ("Effective Date") by and between the City of Fort Worth, Texas, a home-rule municipal corporation of the State of Texas("City"), and the Jagoe-Public Company(UP"). WHEREAS,City owns certain pieces of Property located at 3045 N.E.28"'Street,Fort Worth,Texas 76106 ("Property"); and WHEREAS, JP has requested, and the City agrees to grant to JP, the use of the Property in accordance with the terms and conditions of this Agreement. WITNESSETH: 1. Premises. (a) City hereby grants JP the non-exclusive license for its contractors to use the Property (as specified in Exhibit "A") for a construction lay down site, including, but not limited to, construction staging and storage of materials and equipment as part of area roadway projects between the City and Texas Department of Transportation ("TxDOT"). In addition, JP's contractors shall be permitted to clear, grade,fence, and secure the Property against entry by others in strict accordance with all applicable laws,rules,regulations. (b) Prior to use,JP must supply to the City for approval a list of all equipment and materials to be stored on the Property. (c)Under no circumstances during the Agreement will JP or its contractors use or cause to be used on the Property any hazardous or toxic substances or materials, or store or dispose of any such substances or materials on the Property. 2. Condition of Lot. JP taking possession of the Property shall be conclusive evidence that(a) the Property is suitable for the purposes and uses for which same are licensed; and(b) JP waives any and all defects in and to the Property, its appurtenances, and in all the appurtenances thereto.Further,JP takes the Property and all appurtenances in "AS IS" condition without warranty, expressed or implied, on the part of City.City shall not be liable to JP or JP's contractors,agents,employees,invitees,licensees,or guests for any damage to any person or Property due to the Property or any part of any appurtenance thereof being improperly constructed or being or becoming in disrepair. 3. Term. Subject to the earlier termination as hereinafter set forth,this Agreement shall be for a month to month term("License Term"),commencing on the Effective Date and terminates at the end of 30 days after a 30 day written notice is supplied by either party to the other party. 4. License Fees, Public Purpose. In consideration of use of the Property for a construction staging and storage site in support of the TXDOT and City project which serves to carry out the public purpose of facilitating transportation in Fort Worth. To ensure the public purpose is being carried out, JP agrees to provide a project completion report, to the Director of the Property Management Department or that person's designee and Transportation Manager of the Transportation and Public Works Departments of the City of Fort Worth. -i- OFFICIAL RECORD License Agreement between City of Fort Worth and Jagoe-Public Company.3045 NE 281 Street CITY SECRETARY FT WORTH,TX 5. No Services. City shall not furnish JP or its contractors with any utilities, cleaning, lighting, security, or any other items or services for the Property. All operating costs of Property shall be JP's or its contractor's sole cost and expense. If JP or its contractors want or need any utilities, cleaning, lighting, security, or any other items or services while occupying the Property, then JP and/or its contractors shall first obtain permission, any required permits and approval from the City to contract, add or install any of the above items and will be responsible for providing same at JP's and/or its contractor's sole cost. 6. Alterations,Additions, Improvements, and Approval of Plans. JP and its contractors shall make no alterations,additions or improvements to the Property prior to submitting all plans,scope of work, specifications, estimates for the costs of the proposed work in writing, copies of all required permits obtained and receive in writing approval from the City, or its designated representative ("City's Representative"). JP's and/or its contractor's plans for construction for alterations, additions and improvements shall conform in all material respects to the architectural and engineering standards and 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 and/or City's Representative reserves the right to inspect all work pursuant to its usual construction inspection procedures. JP shall provide a video of the existing Property condition to Property Management Department, Lease Section, prior to start of alterations, additions or improvements to the Propertyand completion of use of the Property or termination of use,a video of the Property condition for approval by the City that the Property is restored to acceptable conditions. JP is required to return the Property to the City at the termination and/or expiration of this Agreement to a condition acceptable to the City.The City reserves the right to conduct an inspection of the Property prior to termination and/or expiration of this Agreement to determine if the Property is in acceptable condition.Any additional alterations,repairs,etc.required to bring the Property to an acceptable condition by the City is at the cost of JP. Any of City's Property adjacent to the Property that are damaged during the course of performing any alterations,additions and improvements shall be repaired by JP and/or its contractors and returned to its previous condition or better, at JP's and/or its contractors's sole cost and expense. 7. Indemnity. (a) TO THE EXTENT ALLOWED BY LAW, JP SHALL AND DOES AGREE TO INDEMNIFY, PROTECT, DEFEND AND HOLD HARMLESS CITY, CITY'S OFFICERS, AGENTS,SERVANTS,AND EMPLOYEES(COLLECTIVELY, "INDEMNITEES")FOR,FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, JUDGMENTS AND EXPENSES, (INCLUDING COURT COSTS, ATTORNEYS' FEES AND COSTS OF INVESTIGATION), OF ANY NATURE, KIND OR DESCRIPTION ARISING OR ALLEGED TO ARISE BY REASON OF INJURY TO OR DEATH OF ANY PERSON OR DAMAGE TO OR LOSS OF PROPERTY(1) RELATING TO THE USE OR OCCUPANCY OF THE PROPERTY BY JP AND ITS CONTRACTOR, ITS EMPLOYEES, PATRONS, AGENTS, INVITEES, LICENSEES AND ANY OTHER PARTY OR(2)BY REASON OF ANY OTHER CLAIM WHATSOEVER OR ANY PERSON OR PARTY OCCASIONED OR ALLEGED TO BE OCCASIONED IN WHOLE OR IN PART BY ANY ACT OR OMISSION ON THE PART OF JP, ITS CONTRACTOR OR ANY INVITEE, PATRON, LICENSEE, EMPLOYEE, DIRECTOR, OFFICER, SERVANT, OR CONTRACTOR OF JP, ITS CONTRACTOR,OR ANYONE WHO CONTROLS OR EXERCISES CONTROL OVER OR(3)BY ANY BREACH, VIOLATION OR NONPERFORMANCE OF ANY COVENANT OF JP OR ITS CONTRACTOR UNDER THIS AGREEMENT (COLLECTIVELY, "LIABILITIES"), EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO THE CONCURRENT OR PARTIAL NEGLIGENCE OF ANY INDEMNITEE. THE ONLY LIABILITIES WITH RESPECT TO WHICH JP'S OBLIGATION TO INDEMNIFY THE INDEMNITEES DOES NOT APPLY IS WITH RESPECT TO LIABILITIES ARISING OUT OF OR RESULTING SOLELY FROM THE NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY INDEMNITEE. IF ANY ACTION OR PROCEEDING SHALL BE BROUGHT BY OR AGAINST ANY INDEMNITEE IN CONNECTION WITH ANY SUCH LIABILITY OR CLAIM, JP, ON NOTICE FROM CITY, SHALL, TO THE EXTENT PERMITTED BY -2- License Agreement between City of Fort Worth and Jagoe-Public Company.3045 NE 281 Street APPLICABLE LAW, DEFEND SUCH ACTION OR PROCEEDING, AT JP'S EXPENSE, BY OR THROUGH ATTORNEYS REASONABLY SATISFACTORY TO CITY. THE PROVISIONS OF THIS PARAGRAPH SHALL APPLY TO ALL ACTIVITIES OF JP AND/OR ITS CONTRACTOR WITH RESPECT TO THE USE AND OCCUPANCY OF THE PROPERTY, WHETHER OCCURRING BEFORE OR AFTER THE EFFECTIVE DATE OF THE LICENSE TERM AND BEFORE OR AFTER THE TERMINATION OF THIS AGREEMENT.THIS INDEMNIFICATION SHALL NOT BE LIMITED TO DAMAGES, COMPENSATION OR BENEFITS PAYABLE UNDER INSURANCE POLICIES, WORKERS' COMPENSATION ACTS, DISABILITY BENEFIT ACTS OR OTHER EMPLOYEES' BENEFIT ACTS. (b) IT IS AGREED WITH RESPECT TO ANY LEGAL LIMITATIONS NOW OR HEREAFTER IN EFFECT AND AFFECTING THE VALIDITY OR ENFORCEABILITY OF THE INDEMNIFICATION OBLIGATION UNDER THIS PARAGRAPH 8, SUCH LEGAL LIMITATIONS ARE MADE A PART OF THE INDEMNIFICATION OBLIGATION AND SHALL OPERATE TO AMEND THE INDEMNIFICATION OBLIGATION TO THE MINIMUM EXTENT NECESSARY TO BRING THE PROVISION INTO CONFORMITY WITH THE REQUIREMENTS OF SUCH LIMITATIONS, AND AS SO MODIFIED, THE INDEMNIFICATION OBLIGATION SHALL CONTINUE IN FULL FORCE AND EFFECT. (c) JP SHALL INCLUDE IN ITS CONTRACT WITH ITS CONTRACTORS AN INDEMNITY PROVISION IN FAVOR OF THE CITY TO THE SAME EXTENT CONTAINED IN THIS AGREEMENT. 9. Waiver of Liability.NO INDEMNITEE SHALL BE LIABLE IN ANY MANNER TO JP,ITS CONTRACTORS, ITS AGENTS, EMPLOYEES, PATRONS, OR ANY OTHER PARTY IN CONNECTION WITH THE USE OF THE PROPERTY BY ANY OF THEM, FOR ANY INJURY TO OR DEATH OF PERSONS UNLESS CAUSED SOLELY BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF AN INDEMNITEE. IN NO EVENT SHALL ANY INDEMNITEE BE LIABLE IN ANY MANNER TO JP,ITS CONTRACTORS OR ANY OTHER PARTY AS THE RESULT OF THE ACTS OR OMISSIONS OF JP, ITS CONTRACTOR, ITS AGENTS, EMPLOYEES, OR ANY OTHER PARTY, IN CONNECTION WITH THE USE OF THE PROPERTY BY ANY OF THEM. ALL VEHICLES AND ALL PERSONAL PROPERTY WITHIN VEHICLES USING THE PROPERTY, WHETHER PURSUANT TO THIS AGREEMENT OR OTHERWISE SHALL BE AT THE RISK OF JP ONLY,AND NO INDEMNITEES SHALL BE LIABLE FOR ANY LOSS OR THEFT OF OR DAMAGE TO PROPERTY OF JP, ITS CONTRACTOR, ITS EMPLOYEES, AGENTS, PATRONS, INVITEE, OR TO OTHERS, REGARDLESS OF WHETHER SUCH PROPERTY IS ENTRUSTED TO EMPLOYEES OF CITY OR SUCH LOSS .OR DAMAGE IS OCCASIONED BY CASUALTY, THEFT OR ANY OTHER CAUSE OF WHATSOEVER NATURE, EVEN IF DUE IN WHOLE OR IN PART TO THE NEGLIGENCE OF ANY INDEMNITEE. 10. Insurance. JP shall procure and maintain at all times, in full force and effect, a policy or policies of insurance as specified herein, naming the City of Fort Worth as an additional insured and covering all public risks related to the leasing, use, occupancy, maintenance, existence or location of the Property. JP shall obtain the following insurance coverage at the limits specified herein: * Commercial General Liability: $1,000,000 per occurrence (including Products and Completed Operations); In addition, during the term of this Agreement, JP shall be responsible for all insurance to any approved construction, improvements, modifications or renovations on or to the Property and for personal Property of JP and its contractors, or in JP's or its contractor's care, custody or control. Insurance requirements, including additional types and limits of coverage and increased limits on existing coverages, -3- License Agreement between City of Fort Worth and Jagoe-Public Company.3045 NE 281'Street are subject to change at City's option, and JP will accordingly comply with such new requirements within thirty(30)days following notice to JP. JP SHALL INCLUDE IN ITS CONTRACT WITH ITS CONTRACTORS THE INSURANCE REQUIREMENTS TO THE SAME EXTENT CONTAINED IN THIS AGREEMENT AND NAMING THE CITY AS AN ADDITIONAL INSURED.THE CITY IN ITS SOLE DISCRETION MAY REQUIRE JP TO CONTRACT WITH ITS CONTRACTORS TO PROVIDE GREATER OR DIFFERENT INSURANCE THAN PROVIDED IN THIS AGREEMENT,AND JP AND ITS CONTRACTORS MUST COMPLY WITH SUCH REQUIREMENTS WITHIN THIRTY (30) DAYS FOLLOWING NOTICE TO JP. As a condition precedent to the effectiveness of this Agreement,JP and its contractors shall furnish City with a certificate of insurance signed by the underwriter as proof that it has obtained the types and amounts of insurance coverage required herein. JP and its contractors shall not less than thirty (30) days prior to the expiration of any insurance policy required hereunder, provide City with a new or renewal certificate ofinsurance.In addition,JP and its contractors shall,on demand,provide City with evidence that it has maintained such coverage in full force and effect. JP and its contractors shall maintain its insurance with underwriters authorized to do business in the State of Texas and which are satisfactory to City. The policy or policies of insurance shall be endorsed to cover all of JP's and its contractor's operations on the Property and to provide that no material changes in coverage, including, but not limited to, cancellation, termination,non-renewal or amendment,shall be made without thirty(30)days'prior written notice to City. 11. Abandoned Property.JP's and its contractor's personal Property not promptly removed by JP or its contractors from the Property at the termination of this Agreement, whether termination shall occur by the lapse of time or otherwise, shall thereupon be conclusively presumed to have been abandoned to City. Fixtures attached to the Property become the Property of the City, if not removed as required herein. 12. Assignment and Subletting. JP shall not assign this Agreement, or any right of JP under this Agreement,or sublet the Property, for consideration or no consideration,whether voluntarily,by operation of law, or otherwise, without City approval, and any attempt to do so shall be void, and any such attempt shall cause immediate termination of this Agreement. 13. Damage to Lot or Property of City. If, at any time during the License Term, by the acts or omissions of JP or its contractors, its employees,patrons,agents,invitees, or licensees,the Property,or any property therein is damaged or destroyed,JP shall be obligated to pay,on demand, all costs to repair same together. If JP and/or its contractors expose, spill or dispose of any fuel, hazardous and/or toxic materials or substances to or on the Property,JP is responsible to have the Property thoroughly cleaned and tested to ensure the Property cleanup has been completed per the Texas Commission of Environmental Quality and the City of Fort Worth standards. 14. Repairs and Maintenance. City has no obligation to make repairs of any sort to the Property, City's sole obligation hereunder being to make the Property available to JP in accordance with and subject to the covenants,restrictions and limitations set forth herein. JP and its contractors shall, at its expense,use and maintain the Property in a neat,clean, careful,safe,and proper manner and comply with all applicable laws, ordinances, orders, rules, and regulations of all governmental bodies (state, county, federal, and municipal). At the termination of this Agreement, whether by lapse of time or otherwise, JP shall deliver the Property to City in as good a condition as the same was as of the date of the taking of possession thereof by JP, ordinary wear and tear only excepted. Only those improvements authorized by City under Section 6 of this Agreement shall remain upon any expiration or termination of this Agreement. 15. Severability. If any clause or provision of this Agreement is or becomes illegal, invalid or unenforceable because of present or future laws or any rule or regulation of any governmental body or entity, effective during the License Term, the intention of the parties hereto is that the remaining parts of -4- License Agreement between City of Fort Worth and Jagoe-Public Company.3045 NE 28'Street this Agreement shall not be affected thereby unless such invalidity is, in the sole determination of the City, essential to the rights of both parties, in which event City has the right, but not the obligation,to terminate the Agreement on written notice to JP. 16. Default and Termination. (a) JP's Default. If JP or its contractors shall fail to perform or observe any of its obligations hereunder then City may terminate this Agreement by giving JP written notice thereof, in which event this Agreement and all interest of JP hereunder shall automatically terminate. Such rights of City in the case of a default by JP hereunder are not exclusive,but are cumulative of all other rights City may have hereunder, at law or in equity; and any one or more of such rights may be exercised separately or concurrently to the extent provided by law. However,notwithstanding the foregoing,City shall terminate JP's rights under this Agreement only in the event of a default by JP hereunder. (b) City's Default. Should City commit a default under this Agreement (including but not limited to City's failure to make the Property available), JP may, as its sole remedy hereunder, terminate this Agreement, and JP hereby waives any and all other remedies for any such default by City. (c) Termination for Convenience. Either party may terminate this Agreement with thirty (30) days'written notice to the other party. 17. Notice. Any notice hereunder must be in writing. Notice deposited in the United States mail, properly addressed,postage paid, shall be effective-upon deposit. Notice given in any other manner herein shall be effective upon receipt at the address of the addressee. For purposes of notice, the addresses of the parties shall, unless changed as hereinafter provided,be as follows: To City: To JP: City of Fort Worth Jagoe-Public Company Property Management Department PO Box 250 000 Monroe, Suite 400 Denton,TX 76202 Fort Worth,TX 76102 With copies to: City of Fort Worth Transportation Manager Transportation and Public Works Department 200 Texas St. Fort Worth,TX 76102 And City of Fort Worth City Attorney's Office 200 Texas Street Fort Worth,Texas 76102 The parties hereto shall have the continuing right to change their respective address by giving at least ten(10)days' notice to the other party. 18. Audit. Pursuant to Chapter 2, Article IV, Division 3, Section 2-134, Administration, Powers and Duties of the Department of Internal Audit, of the Code of Ordinances of the City of Fort Worth, City shall, until expiration of one (1) after the termination of this agreement have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and records of JP involving -5- License Agreement between City of Fort Worth and Jagoe-Public Company.3045 NE 2811 Street transactions relating to this Agreement at no additional cost to the City. JP agrees that the City shall have access during normal working hours to all necessary JP facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. The City shall give JP not less than ten(10)days written notice of any intended audits. JP further agrees to include in all its contractor and subcontractor agreements hereunder a provision to the effect that the subcontractor agrees that the City shall, until expiration of one(1)after the termination of this agreement,have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and records of such subcontractor involving transactions related 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 work space in order to conduct audits in compliance with the provisions of this paragraph. City shall give subcontractor not less than ten (10) days written notice of any intended audits. 19. Entire Agreement. This Agreement constitutes the entire agreement between City and JP relating to the use of the Property and no prior written or oral covenants or representations relating thereto not set forth herein shall be binding on either party hereto. 20. Amendment. This Agreement may not be amended, modified, extended, or supplemented except by written instrument executed by both City and JP. 21. Counterparts. This License may be executed in several counterparts, each of which shall be deemed an original,but all of which shall constitute but one and the same document. 22. Governmental Powers. It is understood and agreed that by execution of this Agreement, neither the City nor JP waives or surrender any of their respective governmental powers or immunities. 23. Governing Law and Venue. 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, is brought on the basis 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. <SIGNATURES ON NEXT PAGE> -6- License Agreement between City of Fort Worth and Jagoe-Public Company.3045 NE 281h Street In witness whereof, the parties hereto have caused this Agreement to be executed as the day and year first above set forth. CITY: JAGOE- LIC COM Dana Burghdoff(Jun 30,20 16:17 CDT By: By; Dana B ff n y, Assistant Cityy Manager Name: Date: Jun 30,2020 Date: e— Q 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. Name: Mark Bro n(Jun 30,2020 15:35 CDT) Title: Senior Land Agent,Property Mgmt.Dept.,City of Fort Worth APPROVED AS TO FORM AND LEGALITY: Leann Guzman By: Leann Guzman(Jun 30,202016:06 CDT) Leann Guzman Senior Assistant City Attorney _ ATTEST: Mary Kayser City Secretary Form 1295: Not Applicable Contract Authorization: M&C: Not Applicable License Agreement between City of Fort Worth and Jagoe-Public Company.3045 NE 281h Street 0MCRAL RECORD c PW SECRETARV i Exhibit"A" f 7 4 i�T K y ` 3045 NE 28 th Street Fort Worth TX 76106 i m c. -8- License Agreement between City of Fort Worth and Jagoe-Public Company.3045 NE 2811 Street