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HomeMy WebLinkAboutContract 44275 (2)CITY SECRETARY CONTRACT NO._,��lsi CONTRACT FOR MAINTENANCE AND LANDSCAPING SERVICES IN GENERAL WORTH SQUARE THIS CONTRACT FOR MAINTENANCE AND LANDSCAPING SERVICES ("Agreement") is made and entered into on this 9 day of itt ti IVt h 2013 ("Effective Date"), by and between the City of Fort Worth, a home -rule municipal corporation of the State of Texas ("City"), acting by and trough its duly authorized Assistant City Manager, and the Downtown Fort Worth Initiatives, Inc., a Texas Corporation ("Contractor"), acting by and through its duly authorized President. RECITALS WHEREAS, the City owns a park located at 916 Main Street, Fort Worth, Texas 76102, known as General Worth Square, and operates and maintains the Park for public use and benefit; WHEREAS, Contractor is dedicated to enhancing the vibrancy and livability of the downtown Fort Worth area by promoting and supporting amenities, including park facilities; WHEREAS, Contractor has offered to assist the City by providing, furnishing, and/or performing management, maintenance, and administration of all of the maintenance, landscaping, electrical, and mechanical facilities at General Worth Square; and WHEREAS, the City and Contractor mutually desire to enter into a contract whereby the Contractor will provide, furnish, and/or perform such services at General Worth Square as set forth herein. NOW THEREFORE, in consideration of the mutual promises contained herein, the City and Contractor do hereby covenant and agree as follows: SECTION 1 DESCRIPTION OF THE PROPERTY 1.01 The City hereby engages the Contractor, and the Contractor hereby agrees to provide, furnish and/or perform the services set forth in Section 2 of this Agreement in the City park known as General Worth Square Park ("Park"), located at 916 Main Street, in the City of Fort Worth, as further described in Exhibit A, which is attached hereto and incorporated herein by reference. SECTION 2 CONTRACTOR'S DUTIES AND RESPONSIBILITIES 2.01 The overall scope and approach of the services to be provided, furnished, and/or performed by the Contractor are set forth in Exhibit B, which is attached hereto and incorporated herein by reference ("Services"). Maintenance and Landscaping Agreement Between City of Fort Worth and Downtown Fort Worth Initiative, Inc. RECEIVED viAR 13 2013 OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX 1 of 19 2.02 The Contractor shall commence and provide the Services in accordance with this Agreement and all applicable laws. In providing the Services, the Contractor shall take such steps as are appropriate to ensure that the work involved is properly coordinated with any related work performed by the City. 2.03 Plans for all work and planting materials, including future or phased improvements, shall be submitted to the City not less than sixty (60) days prior to construction or installation. No work shall commence until approval has been granted by the City. Any work by the Contractoi prior to approval by the City may be ordered stopped at the discretion of the City and subject to removal and replacement by the Contractor at its expense 2.04 The Contractor represents 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 the Services in accordance with the requirements of the City. SECTION 3 CITY'S DUTIES AND RESPONSIBILITIES 3.01 The City shall provide the following services in connection with the operation of the Park and with the performance of this Agreement: a. The City shall be responsible for the reservation of the Park and shall ensure that all City policies and procedures are adhered to, including, but not limited to, receipts for damage deposits Any revenues received for events with estimated attendance of 501 or more will be shared equally between the City and Contractor. b. Provide funding to the Contractor in an amount equivalent to the funds authorized by the annual City budget adopted by the Fort Worth City Council for basic grounds maintenance and landscaping in the Park as would ordinarily be conducted by the Parks and Community Services Department. Those amounts shall be: i. For the period of the Effective Date through September 30, 2013: $25,000.00 ii For all subsequent City fiscal year periods (October 1 through September 30): To be determined The Contractor will be notified in writing of the amount of approved funding following adoption of the annual City budget by the Fort Worth City Council. All funding will be provided in quarterly payments made in arrears for services provided by or on behalf of Contractor during the previous 3 months. Payment shall be conditioned on all grounds maintenance service having been provided in accordance with the terms of this Agreement. In no event shall the Contractor receive funds if services are not provided. The Contractor shall provide copies of invoices paid for ground maintenance service in the Park. Funding Maintenance and Landscaping Agreement Between City of Fort Worth and Downtown Fort Worth Initiative, Inc. 2 of 19 provided by the City is not intended to cover the entire cost of services provided by the Contractor under this Agreement. If for any reason, at any time during any term of this 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 this Agreement to be effective on the later of (i) thirty (30) days following delivery by the City to the Contractor of written notice of the City's intention to terminate or (ii) the last date for which funding has been appropriated by the City Council for the purposes set forth in this Agreement. c. The City shall pay the utility costs, electricity, and water usage directly to the appropriate utility company. d The City shall continue its bird relocation program at the Park, if applicable and as required, and contingent on available resources. e. Make inspections to determine compliance with this Agreement. In the event the City observes non-compliance, the Contractor will be notified and shall be given a period, not to exceed thirty (30) days from the date of notification by the City, of time to correct the problem. £ The City may coordinate an annual meeting to review the Agreement's terms and requirements. 3.02 In the event that any City -owned property, such as utilities, park development improvements, equipment, turf, etc., are damaged or destroyed during installation, watering, or maintenance of the landscape improvements due to negligence or acts of omissions of the Contractor, the Contractor shall be solely responsible for all repairs or replacements. In the event of damage due to acts of the Contractor the Contractor shall replace or repair the damage at no cost to the City. The City shall determine whether any damage has been done, the amount of the damage, the reasonable costs of repairing the damage and whether the Contractor is responsible. The City shall be the sole judge of the damage to the Park, in which judgment shall be exercised reasonably. Any damage by the Contractor shall be repaired or replaced by the Contractor to the reasonable satisfaction of the City within thirty (30) days of receipt of written notification from the City. SECTION 4 TERM OF AGREEMENT 4.01 This Agreement shall begin on the Effective Date and expire on September 30, 2016, unless terminated earlier pursuant to the terms of this Agreement. Maintenance and Landscaping Agreement Between City of Fort Worth and Downtown Fort Worth Initiative, Inc. 3 of 19 SECTION 5 ALTERATIONS AND ADDITIONS 5.01 Contractor shall not make or cause to be made any alterations, additions, or improvements to City property without the prior written consent of the Director, Parks and Community Services Department ("Director"). Contractor shall present to the Director plans and specifications for such alterations, additions, and improvements at the time such approval is sought. 5.02 All alterations, additions, and improvements to City property made with the written consent of the Director shall, upon completion and acceptance by the City, become the property of the City. Contractor may be required to remove, at its expense, any alterations, additions, or improvements not meeting specifications as approved by the City. SECTION 6 RIGHT OF ACCESS 6.01 City does not relinquish the right to control the management of the Park, or the right to enforce all necessary and proper rules for the management and operation of the same. City, through its Director, police and fire personnel, and other designated representatives, has the right at any time to enter any portion of the Park (without causing or constituting a termination of the use or an interference of the use of the Park by the Contractor) for the purpose of inspecting and maintaining the same 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 the Contractor or assume liability for Contractor's activities. 6.02 The City reserves the right to modify or remove any improvements made by the Contractor on City property in the Park as determined necessary by the Director should any of the following occur: a. The Contractor ceases to maintain the Park according to this Agreement. b. The Park becomes a hazard to the general public. c. The City determines, in its sole discretion, that another beneficial use for the Park exists, to include but not limited to, street relocation, street realignment, the installation of any public utilities or improvements. d. The City determines, in its sole discretion, to make use of the Park for the installation of any public utilities or improvements. SECTION 7 INDEMNIFICATION 7.01 THE CONTRACTOR AGREES TO DEFEND, INDEMNIFY, AND HOLD THE CITY, ITS REPRESENTATIVES, OFFICERS, AGENTS, AND EMPLOYEES HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, ACTIONS, COSTS, AND EXPENSES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PR OPER TYDAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO OWNER'S BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR Maintenance and Landscaping Agreement Between City of Fort Worth and Downtown Fort Worth Initiative, Inc 4 of 19 PERSONAL INJURY, INCLUDING, BUT NOT LIMITED TO, DEATH, THAT MAY RELATE TO, ARISE OUT OF, OR BE OCCASIONED BY (1) CONTRACTOR'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR (IV ANY ACT OR OMISSION OF THE CONTRACTOR, ITS OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES, CONTRACTORS (OTHER THAN THE CITE OR SUBCONTRACTORS IN THE PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT. a IF ANY ACTION OR PROCEEDING SHALL BE BROUGHT BY OR AGAINST THE CITY IN CONNECTION WITH ANY SUCH LIABILITY OR CLAIM, CONTRACTOR ON NOTICE FROM CITY, SHALL DEFEND SUCH ACTION OR PROCEEDING, AT CONTRACTOR'S EXPENSE, BY OR THROUGH ATTORNEYS REASONABLY SATISFACTORY TO CITY. 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 SECTION 7, 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. 7.02 Contractor covenants and agrees that City shall in no way nor under any circumstances be responsible for any property belonging to Contractor, its members, employees, agents, contractors, subcontractors, invitees, licensees, or trespassers, which may be stolen, destroyed, or in any way damaged, AND CONTRACTOR HEREBY INDEMNIFIES AND HOLDS HARMLESS CITY FROM AND AGAINST ANY AND ALL SUCH CLAIMS. The City does not guarantee police protection and will not be liable for any loss or damage sustained by Contractor, its members employees, agents contractors, subcontractors, invitees, licensees or trespassers on any of the Park. 7.03 It is further agreed that the acceptance of this Release shall not constitute a waiver by the City of Fort Worth of any defense of governmental immunity, where applicable, or any other defense recognized by the Statutes and Court decisions of this State. SECTION 8 INSURANCE 8.01 The Contractor shall not commence work under this Agreement until it has obtained all the insurance required under the Agreement and the City has approved such insurance. Contractor shall be responsible for delivering to the City the Contractor's certificate of insurance for approval Contractor shall indicate on the certificate of insurance whether or not its insurance covers Maintenance and Landscaping Agreement Between City of Fort Worth and Downtown Fort Worth Initiative, Inc. 5 of 19 contractors or subcontractors. The insurance coverage required herein shall include the coverage of all subcontractors, or such subcontractors shall provide to Contractor documentation of insurance reasonably equivalent to that required of the Contractor, according to the liability exposures related to the subcontractors services and/or materials. a Commercial General Liability Insurance: The Contractor shall procure and maintain during the initial term of this Agreement and any extension period, a commercial general liability insurance policy in the amount not less than $1,000,000.00 covering each occurrence. b. Worker's Compensation Insurance: If the Contractor will utilize employees to perform work within the term and scope of this Agreement, then it shall maintain, during the term of this Agreement and any extension period, statutory Workers Compensation Insurance on all of its employees engaged in work under this Agreement, and for all subcontractors unless such subcontractors maintain their own Workers' Compensation Insurance. c. Automobile Insurance: The Contractor shall procure and maintain, during the initial term of this Agreement and any extension period, a comprehensive bodily injury and property damage automobile liability policy in the amount not less than $500,000.00 for each accident. This policy shall cover any automobile used within the scope of this Agreement. 8.02 The insurance specified in 8.01. hereof shall comply with the following requirements: a The City of Fort Worth, its Officers, Employees, and Volunteers shall be named as Additional Insureds on all insurance policies required under this Agreement with the exception of Workers' Compensation insurance policies. b. Thirty (30) day notice of cancellation or non -renewal. c. Wavier of rights of recovery (subrogation) in favor of the City of Fort Worth. d The insurers for all policies must be licensed/approved to do business in the State of Texas. All insurers must have a minimum rating of A: VII in the current A. M. Best Key Rating Guide or have reasonably equivalent financial strength and solvency to the satisfaction of the City of Fort Worth Risk Management. If the rating is below that required, written approval of the City of Fort Worth Risk Management is required. e. If insurance policies are not written for specified coverage limits, an Umbrella or Excess Liability insurance for any differences is required. Excess Liability shall follow the form of the primary coverage. f. Unless otherwise stated, all required insurance shall be written on an "occurrence basis". If coverage is underwritten on a claims -made basis, the retroactive date shall be coincident with or prior to the date of this Agreement and the certificate of insurance shall state that the coverage is claims -made and the retroactive date. The insurance Maintenance and Landscaping Agreement Between City of Fort Worth and Downtown Fort Worth Initiative, Inc. 6 of 19 g. coverage shall be maintained for the duration of this Agreement. An annual certificate of insurance submitted to the City shall provide evidence of such insurance coverage. The deductible or self -insured retention (SIR) affecting required insurance coverage shall be acceptable to and approved in writing by the Risk Manager of the City of Fort Worth in regards to asset value and stockholders' equity In lieu of traditional insurance, alternative coverage maintained through insurance pools or risk retention groups, must also approved by the Risk Manager of the City of Fort Worth. h. The City, at its sole discretion, reserves the right to review the insurance requirements and to make reasonable adjustments to insurance coverages and their limits when deemed necessary and prudent by the City based upon changes in statutory law, court decision or the claims history of the industry as well as of the contracting party to the City of Fort Worth. The City shall be required to provide prior written notice of ninety (90) days. The City shall be entitled, upon request and without expense, to receive copies of policies and endorsements thereto and may make any reasonable requests for deletion or revision or modifications of particular policy terms conditions, limitations, or exclusions except where policy provisions are established by law or regulations binding upon either party or the underwriter on any such policies. SECTION 9 CHARITABLE ORGANIZATION 9.01 Contractor agrees that if it is a charitable organization, corporations, entity or individual enterprise having, claiming or entitled to any immunity, exemption (statutory or otherwise) or limitation from and against liability for damage or injury to property or persons under the provisions of the Charitable Immunity and Liability Act of 1987, C.P.R.C., § 84.001 et seq , or other applicable law, that Contractor hereby expressly waives its right to assert or plead defensively any such immunity or limitation of liability as against City. If applicable, Contractor annually shall submit proof of 501(c)(3) eligibility to the City SECTION 10 INDEPENDENT CONTRACTOR 10.01 Contractor shall perform all work and services hereunder as an independent contractor, and not as an officer, agent servant or employee of the City. Contractor shall have exclusive control of and the exclusive right to control 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 subconsultants (or subcontractors). Nothing herein shall be construed as creating a partnership or joint venture between the City and Contractor, its officers, agents, employees and subconsultants (or subcontractors), and doctrine of respondent superior has no application as between the City and Contractor. Maintenance and Landscaping Agreement Between City of Fort Worth and Downtown Fort Worth Initiative, Inc 7 of 19 SECTION 11 LICENSES AND PERMITS 11.01 Contractor shall comply with all federal, state, and local laws, rules, and regulations, as well as with all regulations, restrictions, and requirements of the police, fire, and health departments now or hereafter in effect which are applicable to its operations. Contractor 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. SECTION 12 LIENS 12.01 The Contractor 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 the Contractor, the Contractor will take all necessary steps to bond around or remove the lien within ten (10) days of its filing. SECTION 13 TERMINATION AND DEFAULT 13.01 Either party may terminate this Agreement without cause by the giving of thirty (30) days notice in writing to the other party. 13.02 In the event Contractor fails to comply with any of the terms and conditions of this Agreement, after notice and opportunity to cure as provided in this Agreement, City shall have the right, and without further notice, to declare this Agreement immediately terminated and to enter into and take full possession of the Park save and except such personal property and equipment as may be owned by Contractor. In the event of such cancellation of this Agreement by the City, all rights and privileges of the Contractor hereunder shall cease and terminate and Contractor shall immediately vacate the Park. 13.03 Contractor shall be notified by phone call and written correspondence of the Contractor's failure to comply with any of the terms and conditions of this Agreement. Contractor shall have thirty (30) calendar days from the date of written correspondence to correct deficiencies. 13.04 Upon termination, the parties shall be released from all obligations contained in this Agreement except for the indemnification requirements found in Section 7 of this Agreement. 13.05 Termination notice shall be considered rendered when placed in the United States Postal Service for delivery to the other party in accordance with Section 16. Maintenance and Landscaping Agreement Between City of Fort Worth and Downtown Fort Worth Initiative, Inc. 8 of 19 SECTION 14 NON-DISCRIMINATION/DISABILITIES 14.01 Contractor, in its construction, maintenance, occupancy, or use of said the Park shall not discriminate against any person or persons because of race, age, gender, religion, color, national origin, sexual orientation or disability or any other legally prohibited criteria. 14.02 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. SECTION 15 M/SBE POLICY 15.01 The 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 the Contractor with the policies designed to meet these goals is mandatory; failure by the Contractor to comply with such policies shall constitute a breach of the contract and shall be grounds for termination by the 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 16 NOTICES 16.01 All notices required or permitted under this Agreement shall be conclusively determined to have been delivered when (i) hand -delivered to the other party, or its authorized agent employee, servant, or representative, or (ii) 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 other address as one party may from time to time notify the other in writing. To THE CITY: To CONTRACTOR: Director Parks and Community Services City of Fort Worth 4200 South Freeway, Ste 2200 Fort Worth, Texas 76115 With a copy to: Department of Law Maintenance and Landscaping Agreement Between City of Fort Worth and Downtown Fort Worth Initiative, Inc. Downtown Fort Worth Initiatives, Inc Attn• Andrew Taft 777 Taylor Street, Ste. 100 Fort Worth, Texas 76102 9of19 City of Fort Worth Attn: City Attorney 1000 Throckmorton Fort Worth Texas 76102 SECTION 17 CITY NOT LIABLE FOR DELAYS 17.01 It is expressly agreed that in no event shall the City be liable or responsible to the Contractor or any other person for or on account of any stoppage or delay in the work 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 18 VENUE AND JURISDICTION 18.01 This Agreement shall be governed by and construed in accordance with 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 Agreement shall be in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. SECTION 19 ASSIGNMENT AND NO THIRD -PARTY BENEFICIARIES 19.01 Neither party hereto shall assign, sublet or transfer its interest herein without prior written consent of the other party, and any attempted assignment, sublease 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 City and Contractor and its respective successors and permitted assigns. 19.02 The provisions and conditions of this Agreement are solely for the benefit of City and Contractor, and any lawful successor or assign, and are not intended to create any rights, contractual or otherwise, to any other person or entity. SECTION 20 WAIVER, SECTION HEADINGS, AND SEVERABILITY, AMENDMENT 20.01 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 herein contained; provided however, that the invalidity of any such covenant, condition, or provision does not materially prejudice either Contractor or City in connection with the rights and obligations contained in the valid covenants, conditions, or provisions of this Agreement. 20.02. The waiver by the City of any default or breach of a term, covenant, or condition of this Agreement shall not be deemed to be a waiver of any other breach of that term, covenant or Maintenance and Landscaping Agreement Between City of Fort Worth and Downtown Fort Worth Initiative, Inc. 10 of 19 condition or any other term, covenant, or condition of this Agreement, regardless of when the breach occurred 20.03 The headings in this Agreement are inserted for reference only, and shall not define or limit the provisions hereof. 20.04 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. SECTION 21 FORCE MAJEURE 21.01 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; 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 Event and any time period applicable to performance of such obligations shall be extended for a period of time equal to the duration of the Force Majeure Event SECTION 22 ENTIRE UNDERSTANDING 22.01 This Agreement constitutes the final, entire, and complete agreement between the Contractor and the City and supersedes any prior and contemporaneous negotiations, understandings, 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. 22.02 Neither this Agreement nor any provision hereof may be modified except by an instrument in writing, signed by the parties. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. SECTION 23 CHARACTER OF WORKERS AND WORK 23.01 The Contractor and the Contractor's employees, including subcontractors, shall be competent and careful workers skilled in their respective trades. The Contractor shall not employ nor contract with any person who repeatedly engages in misconduct or is incompetent or negligent in the due and proper performance of his/her duties. The City shall retain the right to require the Contractor to remove any employee who is guilty of misconduct toward the public or is in any way Maintenance and Landscaping Agreement Between City of Fort Worth and Downtown Fort Worth Initiative, Inc. II of 19 discourteous to the public. This work is being performed for the public benefit and it is necessary that it be performed in acceptable manner and at a satisfactory rate of progress, as determined by the City. SECTION 24 EQUIPMENT 24.01 The Contractor shall at all times maintain its equipment in a clean, serviceable condition All equipment shall be properly licensed, inspected, and clearly marked with the Contractor's name The continued use of unserviceable and improper equipment shall be considered a breach of contract. SECTION 25 INFORMATION 25.01 The Contractor shall, at such time and in such form as the City may require, furnish periodic information concerning the status of the project and such other statements, certificates and approvals relative to the project as may be requested by the City. SECTION 26 AUDIT 26.01 Contractor shall maintain complete and accurate records with respect to costs incurred under the Contract. All such records shall be maintained on a generally accepted accounting basis and shall be clearly identified and readily accessible. 26.02 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 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. 26.03 Contractor 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 (i) access to and the right to examine any books, documents, papers and records of such subcontractor, involving transactions relating to the subagreement and (ii) 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. SECTION 27 AUTHORIZATION, REVIEW OF COUNSEL, SIGNATURE AUTHORITY 27.01 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 Maintenance and Landscaping Agreement Between City of Fort Worth and Downtown Fort Worth Initiative, Inc. 12 of 19 are to be resolved against the drafting party must not be employed in the interpretation of this Agreement or any amendments or exhibits hereto, 27.02 The person signing this Agreement hereby warrants that he or she has the legal authority to execute this Agreement on behalf of his or her respective Party, and that such binding authority has been granted by proper order, resolution, ordinance or other authorization of the entity. The other Party is fully entitled to rely on this warranty and representation in entering into this Agreement. SECTION 28 PUBLIC INFORMATION 28.01 Contractor understands and acknowledges that City is a public entity under the laws of the State of Texas and, as such, all documents held by City are subject to disclosure under Chapter 552 of the Texas Government Code Contractor shall clearly indicate to City what information it deems proprietary If City is required to disclose any documents that may reveal any of Contractor's Proprietary Information to third parties under the Texas Government Code, or by any other legal process, law, rule, or judicial order by a court of competent jurisdiction, City will notify Contractor prior to disclosure of such documents, and give Contractor the opportunity to submit reasons for objections to disclosure. City agrees to restrict access to Contractor s information to those persons within its organization who have a need to know for purposes of management of this Agreement. City agrees to inform its employees of the obligations under this paragraph and to enforce rules and procedures that will prevent any unauthorized disclosure or transfer of information City will use its best efforts to secure and protect Contractor's information in the same manner and to the same degree it protects its own proprietary information; however, City does not guarantee that any information deemed proprietary by Contractor will be protected from public disclosure if release is required by law. The foregoing obligation regarding confidentiality shall remain in effect for a period of three (3) years after the expiration of this Agreement. SECTION 29 COUNTERPARTS 29.01 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. [SIGNATURES APPEAR ON THE FOLLOWING PAGE] Maintenance and Landscaping Agreement Between City of Fort Worth and Downtown Fort Worth Initiative, Inc 13 of 19 IN WITNESS HEREOF, THE PARTIES HAVE EXECUTED THIS AGREEMENT ON THE EFFECTIVE DATE. CITY OF FORT WORTH DOWNTOWN FORT WORTH INITIATIVES, INC. ( , ,,,,,i, By: „era By:2k-t-ett\A/ S�isan Alanis ndrew Taft Assistant City Manager President APPROVED AS TO FORM AND LEGALITY: By: Tyle ' . Wallach Assistant City Attorney ATTEST: By: Mary Ka/ v7 / U City Secretary Authorization: M&C: C-26006 Date: December 11, 2012 4% •• 4 Ili illas iiiei4 / i z i t +000000 ovA ‘ 0; ribito Wit ci pi 0 .I. 1441 0% 0 04,toofo, mq 4titti 0 zablott Maintenance and Landscaping Agreement Between City of Fort Worth and Downtown Fort Worth Initiative, Inc. OFFICIAL RECORD CITY SUCRETARY FCWORTN,TX 14of19 Exhibit A General Worth Park • Maintenance and Landscaping Agreement Between City of Fort Worth and Downtown Fort Worth Initiative, Inc. 15 of 19 Exhibit B Contractor's Scope of Services A. Park Management Program a DFWII will enter into a separate agreement with the City of Fort Worth to maintain the JFK Tribute in Fort Worth, its water feature, hardscape elements, exhibits and landscaping. b. For the remainder of General Worth Square, the Contractor shall provide the following administrative and management services for maintenance and operation of the Park: i. Staff and administrative services that are necessary to supervise the daily maintenance services necessary to keep the Park in a clean, operational, trash free condition with healthy turf, trees and shrubs; ii. Management, financial and program monitoring systems for operation of the Park; iii Required reports to the City concerning maintenance and operation of the Park; iv. Staff for administration and management of the Park; v. Recruitment, hiring, paying and supervising the work force, which the Contractor will utilize to furnish all services in the Park; vi. Office space for the Contractor's administrative and management personnel; vii. Recommendations of actions and guidelines that the City of Fort Worth could take to regulate activities in the Park to maximize the contribution of activities and events in the Park; viii Staff to participate in private or public meetings concerning operations and services in the Park; ix. Liaison between the City, adjacent property owners, park users, interested persons and groups to ensure successful operation and maintenance of the Park; x. Administration and supervision services in the Park that are provided directly by the Contractor; Maintenance and Landscaping Agreement Between City of Fort Worth and Downtown Fort Worth Initiative, Inc. 16 of 19 xi. Contracts with subcontractors to provide landscaping, turf maintenance, tree and shrub maintenance, mechanical, plumbing and electrical maintenance and other services which the Contractor elects to provide through subcontracting; xii Supervision and monitoring the performance of subcontractors who are employed by the Contractor; xiii. Assistance to the City's Parks and Community Services Department concerning use of the Park; xiv. Assistance to the City in briefing interested parties concerning proposed activities and projects that would enhance the beauty and use of the Park; xv. Information/Compliant Center for all matters relating to operation and maintenance of the Park and advising the City in a timely manner of any problems with City -owned equipment or facilities in the Park. B. Maintenance and Landscaping Program The Contractor shall provide the following maintenance services in the Park either directly or through a subcontractor: i. Keep the Park in a clean condition by: 1. Maintaining the walk ways, benches and planters clear of debris; 2. Emptying the trash cans daily (five days a week); 3. Maintaining the landscape beds and turf areas clear of debris, including, but not limited to, leaves, limbs, cigarette butts, paper, etc.; 4. Regularly washing off the walk ways of bird waste, spilled drinks and food; 5. Removing graffiti to the best of their ability within 24 hours of notification (within normal work week). ii Keep the turf, plantings, trees and shrubs in a healthy green appearance by: 1. Watering 2. Fertilizing 3. Inspection Maintenance and Landscaping Agreement Between City of Fort Worth and Downtown Fort Worth Initiative, Inc. 17 of 19 4. Pruning 5. Treatment of wounds 6 Disease control 7. Insect control 8. Any other actions necessary to keep all plant life in a healthy appearance, including but limited to: a. Re -seeding or seeding the turf b. Adding additional ground cover as budget allows iii Keep the original (east) fountain in a clean well maintained appearance by: 1. Cleaning the fountain daily (5 days a week) or as necessary to keep it trash free 2. Maintain the correct level of chemicals to ensure that the water in the fountain is clean and free of algae and other growth or discoloration iv. Keep the pump room well maintained, clean and operational through: 1. Frequent and periodic preventative maintenance of the pumps 2. Clean out the reservoir once or twice a year, depending upon need 3. Maintain the proper amount of chemicals for the chlorination of the fountain 4. Frequent and periodic monitoring of the electrical system by a licensed electrician to ensure proper operation of all electrical systems v. In case of equipment or structural failure of the pump or fountain inform the Parks and Community Services Department of the nature of said failure. The City shall determine what course of action to take in order to repair and/or replace said failure or damaged equipment at the City's cost contingent upon availability and appropriation of City funds. C. Miscellaneous a. Be responsive to the request for service in the Park by the City's Parks and Community Services Department. Maintenance and Landscaping Agreement Between City of Fort Worth and Downtown Fort Worth Initiative, Inc. 18 of 19 b. Maintain communications with the Park's and Community Services Department reservation staff to ensure that the Park is always in its best appearance for scheduled activities. It should be noted that the City staff has the obligation to keep Contractor staff informed of scheduled activities in the Park within a reasonable time prior to the event. Scheduled activities in the Park shall not be allowed to postpone or compromise emergency repairs in the Park, when postponing those repairs would have a serious impact on Park equipment of the safety of Park users. The City, in its own discretion, shall decide when repairs rise to the level of "serious impact" on Park equipment. c. Contractor agrees to work with the City to ensure the Park is a safe place and maintained for the citizens of Fort Worth. Maintenance and Landscaping Agreement Between City of Fort Worth and Downtown Fort Worth Initiative, Inc 19 of 19 M&C Review Page 1 of 2 CIL Official site of the City of Fort Worth Texas FORT WORTH COUNCIL ACTION: Approved on 12/11/2012 DATE 12/11/2012 REFERENCE NO.: CODE C TYPE: **C-26006 LOG NAME' 80GWSMAINTAGREEMENT PUBLIC CONSENT HEARING: NO SUBJECT: Authorize Execution of an Adopt -A -Park Agreement with Downtown Fort Worth Initiatives, Inc., in the Amount of $25,000 00 for the Maintenance and Landscaping of General Worth Square Park (COUNCIL DISTRICT 9) RECOMMENDATION: It is recommended that the City Council: 1. Authorize the execution of an Agreement with Downtown Fort Worth Initiatives, Inc., for the maintenance of General Worth Square Park; and 2. Authorize the Parks and Community Services Department to reimburse Downtown Fort Worth Initiatives, Inc., the amount of $25,000.00 for base level maintenance cost at General Worth Square P ark DISCUSSION: On August 25, 2009, (City Secretary Contract No. 45245) the City and Downtown Fort Worth Initiatives, Inc. (DFWII) entered into an Agreement for renovations at General Worth Square Park (Park) which included the refurbishment of the park infrastructure (for which the City contributed $250,000.00 in gas well royalty revenues) and the design and installation of a tribute to honor former P resident John F. Kennedy valued at $1,215,000.00. As a condition of the authorization to construct the JFK Tribute DFWII will maintain the Tribute and the maintenance and upkeep of this landmark will be underwritten by a maintenance fund that was established as part of the project. DFWII has approached the City with a proposal to assume the remaining overall maintenance and landscaping of the Park, and Staff is in favor of this course of action. Under the proposed Agreement, DFWII will provide administrative and management services for maintenance and operation of the P ark for a term of four years. The City will provide annual funding to DFWII in an amount equivalent to the funds authorized by the annual City budget adopted by the Fort Worth City Council for basic grounds maintenance and landscaping as would ordinarily be conducted by the Parks and Community Services Department. The funding for the base level of service for the first year of the Agreement would be in the amount of $25,000.00 and all subsequent years would be based upon the funds authorized by the annual City budget. DFWII will pay the incremental increased cost for 'premium" services, i e., flowering plants and display fountain maintenance and operation The City will pay the utility costs, electricity, and water usage directly to the appropriate utility company for the entirety of the Agreement This funding arrangement is consistent with other similar service Agreements. Staff and DFWII have agreed on the scope of services to be provided for the ongoing maintenance of Park. Some additional terms of the Agreement include the following: (1) standard indemnification and insurance coverage, (2) the City's role in reviewing all proposed improvements for the Park, and (3) a fiscal funding out clause. On September 26, 2012, the Parks and Community Services Advisory Board endorsed Staffs http://apps.cfwnet.org/council_packet/mc_review.asp?ID=-1771 1 &councildate-- 12/1 1 /2012 2/28/2013 M&C Review Page 2 of 2 recommendation to the City Council to enter into the Agreement with DFWII. General Worth Square Park is located in COUNCIL DISTRICT 9 and is classified as a Special Use City-wide Facility. FISCAL INFORMATION/CERTIFICATION: The Financial Management Services Director certifies that funds are available in the current operating General Fund. TO Fund/Account/Centers FROM Fund/Account/Centers 3) GG01 539120 0807041 $25.000.00 Submitted for Citv Manager's Office bv: Susan Alanis (8180) Originating Department Head: Richard Zavala (5704) Additional Information Contact: Sandra Youngblood (5755) ATTACHMENTS 80GWSMAINTAGREEMENT.odf http://apps.cfwnet.org/council_packet/mc review.asp?ID=17711&councildate=12/11/2012 2/28/2013