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HomeMy WebLinkAboutContract 44221 (2)CITY SECRETAICI Lit CONTRACT NO. • PARKING LICENSE AGREEMENT This Parking License Agreement (this "Agreement") is between ACME BRICK COMPANY, a Delaware corporation ("Licensor"), and the CITY OF FORT WORTH, a home - rule municipal corporation situated in the State of Texas ("Licensee"). RECITALS A. Licensor is the owner of a surface parking area situated on that certain tract of land at 3024 Acme Brick Plaza, Fort Worth, Tarrant County, Texas, which real property is more particularly described on EXHIBIT "A" attached hereto and incorporated herein by reference (the "Property") . B Licensee desires to obtain from Licensor a license to use and occupy portions of the Property for the purpose of VEHICULAR PARKING FOR SPECIAL EVENTS CONDUCTED ON THE TRINITY RIVER. Licensor desires to grant such a license to Licensee, all in accordance with the terms of this Agreement. AGREEMENT In consideration of the mutual covenants set forth in this Agreement, Licensee and Licensor agree as follows: 1. Term. The term of this Agreement commences at 12.01 a.m. on March 2, 2013, and expires at 11:59 p.m. on March 2, 2013 ("Term"); provided, however, either party may terminate this Agreement by giving seven (7) days' prior written notice to the other party. Upon such termination, neither party will have any further rights or obligations under this Agreement other than those accruing prior to the effective date of such termination. 2. Use. As long as Licensee is not in default under this Agreement, Licensor grants to Licensee a non-exclusive right to use of the parking spaces and access to the Trinity Trail within the Property, as set forth in the highlighted areas on Exhibit A ("Parking Spaces"), for the purpose of allowing Licensee, its employees, agents, volunteers, and invitees to park their motor vehicles in such spaces and access to Trinity Trail. Nothing in this Agreement shall grant Licensee the right to use any portion or access to any of Licensor's building, improvements or other portions of Property. 3. Fee. Licensor and Licensee agree NO license fee shall be due for the use of the Parking Spaces. 4. Condition of the Parking Spaces. Licensee acknowledges that it has inspected the Parking Spaces and is relying solely upon its own inspection of the Property in deciding to enter into this Agreement. Licensee's execution of this Agreement is conclusive evidence that the Parking Spaces and adjacent Property are in good order and in satisfactory condition at the beginning of Term. Licensee accepts the condition of the Parking Spaces and Property "AS IS, WHERE IS", AND WITHOUT ANY WARRANTIES OR REPRESENTATIONS OF ANY NATURE, EXPRESS OR IMPLIED. LICENSOR AND LICENSEE EXPRESSLY INTEND TO NEGATE AND EXCLUDE ALL WARRANTIES EXPRESS OR IMPLIED, IN FACT OR BY LAW, INCLUDING WITHOUT LIMITATION, SUITABILITY FOR ANY COMMERCIAL PURPOSE, HABITABILITY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. LICENSEE ACKNOWLEDGES AND ACCEPTS THAT LICENSOR WILL NOT BE PROVIDING SECURITY OR ANY OTHER SERVICES AT THE PARKING SPACES. 5. RELEASE. LICENSEE DOES HEREBY RELEASE LICENSOR AND ITS AGENTS, DIRECTORS, OFFICERS, MANAGERS, MEMBERS, PARTNERS, AND EMPLOYEES (COLLECTIVELY "RELEASED PARTIES") FROM ANY AND ALL LIABILITIES, INCLUDING, WITHOUT LIMITATION, THOSE INVOLVING INJURY TO OR DEATH OF ANY PERSON OR DAMAGE TO OR LOSS OF PROPERTY (COLLECTIVELY, "CLA _� "-5 -10SJitG ALLEGED TO ARISE IN WHOLE OR 7ta i,f; a-4f1i��� 1 of 5 1161 �i`' a License Agreement Between Acme Brick . • o RE r �� .`ltsry `J►`� IN PART DIRECTLY OR INDIRECTLY (i) FROM ANY ACT OR OMISSION OF LICENSEE OR OF ANY INVITEE, LICENSEE, DIRECTOR, OFFICER, EMPLOYEE, AGENT, OR VOLUNTEER OF LICENSEE ON THE PROPERTY, (ii) FROM LICENSEE'S USE AND OCCUPANCY OF ANY PORTION OF THE PROPERTY DURING THE TERM OF THIS AGREEMENT OR (iii) THE CONDITION OF THE PROPERTY WHETHE "' OR NOT CAUSED BY THE NEGLIGENT FAILURE TO MAINTAIN OR CORRECT THE CONDITION BY A RELEASED PARTIES. IF ANY ACTION OR PROCEEDING IS BROUGHT BY OR AGAINST ANY RELEASED PARTY IN CONNECTION WITH ANY CLAIMS, LICENSEE, TO THE EXTENT ALLOWED BY LAW AND ON NOTICE FROM LICENSOR, WILL INDEMNIFY AND DEFEND THE ACTION OR PROCEEDING, AT LICENSEE'S SOLE COST AND EXPENSE, BY OR THROUGH ATTORNEYS REASONABLY SATISFACTORY TO LICENSOR. THIS OBLIGATION SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT. THIS RELEASE IS NOT LIMITED TO THE LIMITS OR COVERAGES OF INSURANCE MAINTAINED OR REQUIRED TO BE MAINTAINED BY LICENSEE UNDER THIS AGREEMENT EXCEPT AS IT APPLIPS TO THE CONDITION OF THE PROPERTY, THIS RELEASE AND INDEMNIFICATION SHALL NOT APPLY TO ANY CLAIMS ARISING OUT OF OR RESULTING FROM THE NEGLIGENT ACTS OR OMISSIONS OR WILFULL MISCONDUCT OF A RELEASED PARTY OR A USE OF THE PROPERTY NOT ASSOCIATED WITH THE CITY'S USE HEREUNDER. NOTHING CONTAINED HEREIN SHALL EVER BE CONSTRUED SO AS TO REQUIRE LICENSEE TO CREATE A SINKING FUND OR TO ACCESS, LEVY, AND COLLECT ANY TAX TO FUND ITS OBLIGATIONS UNDER THIS SECTION. 6. PERSONAL PROPERTY WAIVER ALL PERSONAL PROPERTY, INCLUDING, BUT NOT LIMITED TO, AUTOMOBILES, INVENTORY, FURNITURE, EQUIPMENT, AND RELATED MATERIALS UPON ANY PORTION OF THE PROPERTY WILL BE AT THE RISK OF LICENSEE ONLY, AND NO RELEASED PARTIES WILL BE LIABLE FOR ANY DAMAGE THERETO OR THEFT THEREOF, EVEN IF ANY DAMAGE IS ALLEGED TO ARISE OUT OF SOME CONDITION OF THE PARKING SPACES, TO THE EXTENT THAT SUCH DAMAGE OR RISK RESULTS FROM THE CITY'S USE UNDER THIS AGREEMENT 7. Waiver of Subrogation. No party will have any right or claim against any Released Party for any property damage or personal injury (whether caused by negligence or the condition of any portion of the Property) by way of subrogation or assignment, Licensee waiving and relinquishing any such nght. 8. Insurance. The Licensee represents that it is basically a self -funded entity subject to statutory tort laws and, as such, generally, it does not maintain a commercial general liability insurance and/or auto liability policy. Licensee further represents that damages for which the Licensee would ultimately be found liable under this Agreement would be paid directly and primarily by the Licensee and not by a commercial insurance company. However, Licensee -owned property is covered under the City of Fort Worth Fire and Extended coverage program by a commercial insurance policy, and statutory worker's compensation insurance coverage is self -funded to a $750,000 00 retention limit per incident over which commercial coverage responds with no upper cap, with employer's liability coverage maintained at the $1,000,000.00 policy limit. Any insurance maintained by Licensee, including any "self -funded" coverage shall include a waiver of subrogation provision for the benefit of the Released Parties. 9. Alterations. Licensee may not make any alterations to any portion of the Property or permanently affix anything to any portion of the Property, including any of the buildings or other structures therein. 10. Parking Areas. Licensor reserves the right to change from time to time the dimensions and location of the parking areas of the Property, and Licensor may temporarily close any part of the parking areas for any period necessary to make repairs or alterations or to prevent the public from obtaining prescriptive rights. Licensee must comply with the rules and regulations (including signage) established by Licensor from time to time which apply to the parking areas of the Property. Specifically, Licensee agrees to place signage and appropriate barricades to keep Licensee and its invitees from parking in spaces on Property that are not licensed to Licensee as shown on Exhibit "A". License Agreement Between Acme Brick and the City of Fort Worth 2 of 5 11. Repairs and Maintenance. Licensee will keep the Parking Spaces and adjacent portions of Property clean and in good condition during its hours of use and to the extent allowed by law, will be responsible, al its expense, for any repair, clean-up or maintenance to any portion of the Property required because of Licensee's activities. Nothing contained herein shall ever be construed so as to require Licensee to create a sinking fund or to access, levy, any collect any tax to fund its obligations under this Section. 12. Operating Requirements. Licensee shall temporarily place sufficient portable toilets along the Tnnity River Trail adjacent to Licensor's property for use by Licensee and its employees, agents, volunteers and invitees. Licensee shall immediately notify Licensor if Licensee's employees, agents, volunteers, and invitees become aware of any accidents, claims of theft, or customer confrontations in the Parking Spaces or adjacent portions of Property. Licensor shall not be responsible for the security of Licensee and Licensee's employees, agents, volunteers and invitees using the Parking Spaces. 13. Invalidity. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed and/or revised to the extent that such invalid, illegal, or unenforceable provision had never been contained in this Contract 14. Default It Licensee fails to comply with its obligations under this Agreement, Licensor may — in addition to its other remedies available at law or in equity — immediately terminate this Agreement by written notice to Licensee. If Licensor fails to comply with its obligations under this Agreement Licensee — as its sole and exclusive remedy — may terminate this Agreement by written notice to Licensor. In no event shall Licensee be entitled to pursue any action for damages against Licensor 15. Assignment. Licensee may not assign its rights in this Agreement without Licensor's prior written consent, which consent may be withheld in Licensor's sole discretion. Licensor may assign its rights in this Agreement to any successor -in -interest to the ownership of the Property without the consent of Licensee. In any permitted assignment, the successor -in - interest must expressly assume its predecessor's obligations under this Agreement. 16. No Partnership. This Agreement does not create any joint enterprise, joint venture or partnership between Licensor and Licensee. Instead, the relationship is one of contracting parties. 17. Notice. Any notice or request given under this Agreement must be in writing and must be either hand -delivered; sent by United States certified mail, postage prepaid, return receipt requested; or via overnight delivery service addressed to the parties at the respective addresses set out below Either party may change its address from time to time. Notice will be deemed given when delivered (if hand -delivered), when postmarked (if sent by mail), or when deposited (if sent by overnight delivery service). To Licensor: To Licensee - with copy to: Acme Brick Company P.O. Box 425 Fort Worth, Texas 76101 Attention: Mark Hill Telephone: (817) 390-2446 mhill@brick.com City of Fort Worth — Parks and Community Servs. 4200 South Freeway, Suite 2200 Fort Worth, Texas 76115 Attention: Wil Johnson Telephone: (817) 392-5703 City of Fort Worth — Department of Law 1000 Throckmorton Fort Worth, Texas 76102 Attention: City Attorney License Agreement Between Acme Brick and the City of Fort Worth 3 of 5 Telephone: (817) 392-7600 18. Amendment. This Agreement may not be modified or replaced except by another written instrument signed by all parties. Paragraph captions are for convenience only and neither limit nor amplify this Agreement. 19. Texas Law. This Agreement must be construed — and its performance enforced — under Texas law. All uses of the Parking Spaces under this Agreement must be in accordance with all applicable laws, rules, regulations, ordinances, and restrictions in effect during the Term. Venue for any action brought to interpret or enforce, or arising out of or incident to, the terms of this Agreement shall be in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. 20. Rights of Public. Nothing in this Agreement is to be construed or interpreted to create any rights for the benefit of the general public or to dedicate for public use any portion of the Property. 21. Entire Agreement. This Agreement constitutes the entire agreement between Licensor and Licensee relating to the use of the Parking Spaces during the Term and no prior written or oral covenants or representations relating thereto not set forth herein shall be binding on either party hereto. This Agreement may not be amended, modified, extended, or supplemented except by written instrument executed by both Licensor and Licensee. • This Agreement is executed to be effective as of the ai5L_ldayof LICENSEE: CITY OF FORT WORTH, a Munici ... _ • rporation B san Alanis LICENSOR: ACME BRICK COMPANY, a Delaware corporation B` y�- Assistant City Manager Name: Approved as to Form and Legality: By: yler:� A . ach Assis ant City Attorney ATTEST( By: ry Kayser City Secretary Contract Authorization: No M&C required Title: % *oar 4 rotoorolk. � r 0te r s•v „weir r OZ' PA 4 ri e4, 41 o°oij 00°e fee inerfqnsfe License Agreement Between Acme Brick and the City of Fort Worth OFFICIAL •,ECO%:D ©TY SFCRryF416dY( 2013. !fil9 ut� 4 of 5 EXHIBIT "A" Description of the Property & Licensed Parking Spaces Commonly referred to as 3 024 Acme Brick Plaza, Fort Worth, Texas and more specifically described or shown on the following diaararw , located in Tarrant County, Texas The Parking Spaces shall include all of the parking spaces highlighted on the following diagram. �f k • h • • a3 r License Agreement Between Acme Brick and the City of Fort Worth 5 of 5