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HomeMy WebLinkAboutContract 42630LICENSE AGREEMENT THE STATE OF TEXAS § COUNTY OF TARRANT § CITY SECRETARY 2103 �7 CONTRACT NO. THIS LICENSE AGREEMENT (the "Agreement ") is made and entered into by and between the City of Fort Worth, a home -rule municipal corporation of the State of Texas (the "CITY "), acting by and through its duly authorized Assistant City Manager, and Downtown Fort Worth Initiatives, Inc., a Texas non - profit corporation ( "DFWII "), acting by and through its duly authorized President. RECITALS WHEREAS the City owns a park called Heritage Park in which Heritage Plaza (PLAZA) is located; and WHEREAS on May 12, 1969, the Fort Worth City Council adopted a resolution creating the Streams and Valleys Committee to study challenges and opportunities associated with the Trinity River and its tributaries, and to advise the City Council and the City Plan Commission on issues affecting those waterways; and WHEREAS in 1970, Streams and Valleys commissioned renowned landscape architect Lawrence Halprin to create the Trinity River Planning Program, which laid the foundation for various improvements to the Trinity River corridor, including the eventual construction of Heritage Plaza as Fort Worth's official contribution to the American bicentennial celebration; and WHEREAS in 2007, the City of Fort Worth closed Heritage Plaza in view of significant maintenance problems and related public safety hazards; and WHEREAS in 2008, Streams and Valleys commissioned a study concluding that the cost to restore and improve Heritage Plaza could range between $8 million and $10 million; and WHEREAS in 2009, Heritage Plaza was listed by the Cultural Landscape Foundation as a "marvel of modernism," cited by Preservation Texas and Historic Fort Worth on their "most endangered" lists, and nominated by the Texas Historical Commission to the National Register of Historic Places; and WHEREAS in 2009, Downtown Fort Worth Initiatives, Inc. commissioned the Olin Studio, under the leadership of Lawrence Halprin's friend and colleague Laurie Olin, to assess ideas for restoring and improving Heritage Plaza through a co process; and OFFirIAL Rrr ()RD License Agreement — General Worth Square —11 % Ciry FT. WORTH, TX o � 1 WHEREAS in 2010 a Heritage Plaza Design Workshop led by the Olin Studio resulted in a recommendation from the Heritage Plaza Steering Committee to move forward with a Phase I analysis of Heritage Plaza; and WHEREAS the City Council passed Resolution NO. 3768 -07 -2009 to support current efforts by Downtown Fort Worth Initiatives, Inc., Streams and Valleys, the Heritage Park Steering Committee recommendations for restoring and improving Heritage Plaza; and; NOW THEREFORE, in consideration of the mutual promises contained herein, the City and DFWII do hereby covenant and agree as follows: SECTION 1 PURPOSE; PARTIES 1.1 The purpose of this Agreement is to establish the administration and criterion pursuant to which DFWII shall analyze the current condition of Heritage Plaza. DFWII shall analyze the PLAZA by engaging a qualified Engineer and shall pay the Engineer for all work done within the scope of a separate agreement DFWII will enter into an agreement with the Engineer. DFWII is entering into an Agreement with the CITY, which is the true "Owner" of the PLAZA. 1.2 This Agreement is made and entered into by and between the City of Fort Worth, Texas and Downtown Fort Worth Initiatives, Inc. When used herein, the term " DFWII" and the term "CITY" shall include officers, agents, employees, successors, and assigns of each of the parties respectively. SECTION 2 TERM 2.1 The primary term of this Agreement shall be for twelve (12) months, commencing on the December 8, 2011, and ending on December 8, 2012. SECTION 3 RESPONSIBILITIES OF THE PARTIES 3.1 The CITY agrees to: A. Allow DFWII and its Engineer access to the Park during the hours of 7:00 A.M. to 7:00 PM throughout the term of this Agreement to work on the Project. The parties agree to revise these hours by execution of a written amendment to this Agreement if either party receives requests or complaints from a business or resident within a one -half mile radius of the Park. License Agreement — General Worth Square page 2 of 13 B. Through the Planning and Development Department, review all documentation and recommendations. C. Provide in kind general project management services including but not limited to project initiation, project planning and research, production oversight, monitoring and controlling, closing and liaison between DFWII and the CITY. 3.2 DFWII agrees to: A. Provide primary project management for the Project through the administration of DFWII's separate agreement with the Engineer. B. Take steps to ensure that work, analysis, studies, or reports by or on behalf of DFWII is properly coordinated with the CITY. DFWII staff will inform CITY staff of Phase I project progress and recommendations through e-mail, phone calls, meetings with CITY staff and DFWII consultant. SECTION 4 RESPONSIBILITY FOR PARK AND COSTS 4.1 DFWII shall assume primary responsibility for managing the contract for engineering services to analyze the condition of the PLAZA during the term of this Agreement. However, Heritage Park and Plaza shall remain at all times a CITY park subject to the ultimate authority of Parks and Community Services Department (PACSD) and the CITY. The CITY does not relinquish the right to enforce all necessary and proper rules for the management and operation of the Park. The CITY, through personnel in its police, fire, code compliance, parks, and health departments, has the right at any time to enter any portion of the Park (without causing or constituting a termination of the Agreement or an interference with the use of the Park by DFWII) for the purpose of inspection and maintenance and performance of any and all activities necessary for the proper conduct and operation of public property; provided this right of entry shall not authorize or empower the CITY to direct the activities of DFWII or assume liability for DFWII's activities. In addition, all permanent public facilities and equipment owned by the CITY within the Park shall remain property of the CITY, and such property cannot be disposed of by DFWII without the express written consent of CITY. SECTION 5 LIABILITY AND INDEMNIFICATION License Agreement — General Worth Square Page 3 of 13 I 5.1 DFWII covenants and agrees that the CITY shall in no way nor under any circumstances be responsible for any property belonging to DFWII, its members, employees, agents, contractors, subcontractors, invitees, licensees, or trespassers that may be stolen, destroyed, or in any way damaged, and DFWII hereby indemnifies and holds harmless the 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 DFWII, its members, employees, agents, contractors, subcontractors, invitees, licensees, or trespassers on Heritage Plaza or any other CITY property. 5.2 DFWII AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS THE CITY, ITS OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES FROM AND AGAINST ANY AND 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 ANY BUSINESS AND ANY RESULTING LOST PROFITS) AND /OR PERSONAL INJURY (INCLUDING DEATH) THAT MAY RELATE TO, ARISE OUT OF, OR BE OCCASIONED BY (I) DFWII'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR (ii) ANY INTENTIONAL, KNOWING, RECKLESS, OR NEGLIGENT ACT OR OMISSION OF DFWII, ITS OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES, SEPARATE ENGINEERS, CONTRACTORS, OR SUBCONTRACTORS, RELATED TO THE ANALYSIS OF THE CONDITION OF HERITAGE PLAZA OR THE PERFORMANCE OF THIS AGREEMENT. SECTION 6 DISCRIMINATION /DISABILITIES 6.1 DFWII, in its occupancy or use of the Park and Plaza shall not discriminate against any person or persons because of race, age, gender, religion, color, national origin, marital status, sexual orientation, or disability. SECTION 7 NOTICES 7.1 Any notice required shall be sufficient if deposited in the U.S. Mail, postage prepaid, certified mail, return receipt requested, and addressed to the other party as follows: CITY: City of Fort Worth Planning and Development Director 1000 Throckmorton Street Fort Worth, Texas 76115 With copy to: Assistant City Attorney License Agreement — General Worth Square DFWII: Downtown Fort Worth Initiatives, Inc. Andrew M. Taft, President 777 Taylor Street, Suite 100 Fort Worth, TX 76102 -4908 Page 4 of 13 1000 Throckmorton Street Fort Worth, Texas 76102 6.2 Mailing of all notices pursuant to this Section shall be deemed sufficient if (i) properly addressed as specified above or to such other person and address as previously designated in writing by the receiving party; and (ii) mailed via certified mail, postage prepaid, return receipt requested. All time periods related to any notice requirements specified in this Agreement shall commence on the date that notice is mailed. SECTION 8 INDEPENDENCE OF THE PARTIES 8.1 The parties hereto covenant and agree that each such party is independent and not an officer, agent, servant, or employee of the other party. The parties further covenant and agree that each such party shall have exclusive control of and the exclusive right to control (i) the details of the portion of work that each such party is performing hereunder and (ii) all persons performing same on behalf of each party respectively. In addition, the parties covenant and agree that each such party is responsible for the acts and omissions of its respective officers, agents, employees, separate contractors, subcontractors, consultants, and subconsultants. Nothing herein shall be construed as creating a partnership or joint enterprise between the CITY and DFWII. SECTION 9 SUCCESSORS AND ASSIGNS 9.1 Neither party shall assign or otherwise transfer any or all of its rights and obligations under this Agreement without the prior written consent of the other party. Any attempted assignment or transfer without the consent of the other party shall be null and void. SECTION 10 TERMINATION AND REMEDIES 10.1 This Agreement may be terminated by either party in writing for Cause. For purposes of this provision, the term "Cause" shall refer to the occurrence of any of the following: (i) DFWII fails to comply with Section 3, Section 11, or Section 12 of this Agreement; (ii) DFWII shall become insolvent, or shall make a transfer in fraud of creditors, or shall make an assignment for the benefit of creditors; (iii) DFWII shall file a petition under any section or chapter of the National Bankruptcy Act, as amended, or under any similar law or statute of the United States or any State thereof; or DFWII shall be adjudged bankrupt or insolvent in proceedings filed against DFWII thereunder; (iv) a receiver or trustee shall be appointed for this Agreement or for substantially all of the assets of DFWII; (v) DFWII vacates any substantial portion of the Project area of Park for a period License Agreement — General Worth Square Page 5 of 13 of longer than thirty (30) days after Phase I activities has commences, unless DFWII can demonstrate to the satisfaction of the City that all reasonable efforts are being made by DFWII to continue pursuit of the Project; (vi) DFWII shall do or permit to be done anything which creates a lien upon the Park or any improvement therein; (vii) DFWII fails to comply with any other term, provision or covenant of this Agreement in any material respect. 10.2 Except for termination due to non - appropriation, termination shall be effective ten (10) days from the date that written notice is sent to the other party. Termination due to non - appropriation shall be effective as of the last day of the fiscal period for which sufficient funds were appropriated or upon expenditure of all appropriated funds, whichever comes first. 10.3 If this Agreement is terminated prior to completion of the Project as outlined in Exhibit 'A" DFWII shall return to the City all unexpended funds and shall transfer to City all other funds raised for the Park that DFWII has in its possession as of the effective date of termination. City shall use any and all such funds toward completion of the repair and redevelopment of the Park. Any information gathered prior to such termination shall be turned over to the City as well and may be used at our sole discretion. 10.4 Within twenty (20) days following the effective date of termination or expiration, DFWII shall remove from the Park all trade fixtures, tools, machinery, equipment, materials and supplies placed on the Park by DFWII or its agents. After such time, City shall have the right to take full possession of the Park and (i) to remove any and all parties and property remaining on any part of the Park or (ii) to remove any and all parties and take and hold any personal property remaining on any part of the Park as City's sole property. DFWII agrees that it will assert no claim of any kind against City, its agents, servants, employees, or representatives stemming from City's termination of this Agreement or any act incident to City's assertion of its right to terminate or City's exercise of any rights granted hereunder. SECTION 11 INSURANCE 11.1 Before commencement of Phase I, DFWII shall require its Engineer and subcontractors, to obtain and maintain the types of insurance and limits of coverage described below, and such coverage shall be evidenced by an ACORD form that lists the CITY as the Certificate Holder and as an additional insured. License Agreement — General Worth Square Page 6 of 13 l 11.2 INSURANCE ENGINEER'S INSURANCE A. Commercial General Liability — the ENGINEER shall maintain commercial general liability (CGL) and, if necessary, commercial umbrella insurance with a limit of not less than $1,000,000.00 per each occurrence with a $2,000,000.00 aggregate. If such Commercial General Liability insurance contains a general aggregate limit, it shall apply separately to this PROJECT or location. The CITY shall be included as an insured under the CGL, using ISO additional insured endorsement or a substitute providing equivalent coverage, and under the commercial umbrella, if any. This insurance shall apply as primary insurance with respect to any other insurance or self- insurance programs afforded to the CITY. The Commercial General Liability insurance policy shall have no exclusions by endorsements that would alter or nullify: premises /operations, products /completed operations, contractual, personal injury, or advertizing injury, which are normally contained within the policy, unless the CITY approves such exclusions in writing. ii. ENGINEER waives all rights against the CITY and its agents, officers, directors and employees for recovery of damages to the extent these damages are covered by the commercial general liability or commercial umbrella liability insurance maintained in accordance with this agreement. B. Business Auto — the ENGINEER shall maintain business auto liability and, if necessary, commercial umbrella liability insurance with a limit of not less than $1,000,000 each accident. Such insurance shall cover liability arising out of "any auto ", including owned, hired, and non -owned autos, when said vehicle is used in the course of the PROJECT. If the engineer owns no vehicles, coverage for hired or non -owned is acceptable. i. ENGINEER waives all rights against the CITY and its agents, officers, directors and employees for recovery of damages to the extent these damages are covered by the business auto liability or commercial umbrella liability insurance obtained by ENGINEER pursuant to this agreement or under any applicable auto physical damage coverage. C. Workers' Compensation — ENGINEER shall maintain workers compensation and employers liability insurance and, if necessary, commercial umbrella liability insurance with a limit of not less than License Agreement — General Worth Square Page 7 of' 13 11.3 $100,000.00 each accident for bodily injury by accident or $100,000.00 each employee for bodily injury by disease, with $500,000.00 policy limit. i. ENGINEER waives all rights against the CITY and its agents, officers, directors and employees for recovery of damages to the extent these damages are covered by workers compensation and employer's liability or commercial umbrella insurance obtained by ENGINEER pursuant to this agreement. D. Professional Liability — the ENGINEER shall maintain professional liability, a claims -made policy, with a minimum of $1,000,000.00 per claim and aggregate. The policy shall contain a retroactive date prior to the date of the contract or the first date of services to be performed, whichever is earlier. Coverage shall be maintained for a period of five (5) years following the completion of the contract. An annual certificate of insurance specifically referencing this project shall be submitted to the CITY for each year following completion of the contract. General Conditions for all Insurance GENERAL INSURANCE REQUIREMENTS A. Certificates of insurance shall be delivered to the City of Fort Worth prior to commencement of work, addressed to the attention of Sue Haupt, Risk Management, 1000 Throckmorton Street, Fort Worth, Texas 76102 with a copy to Randy Hutcheson, City of Fort Worth Planning and Development Department 1000 Throckmorton Street, Fort Worth, Texas 76102. B. Applicable policies shall be endorsed to name the CITY an Additional Insured thereon, as its interests may appear. The term CITY shall include its employees, officers, officials, agents, and volunteers as respects the contracted services. C. Certificate(s) of insurance shall specified in this agreement are documented thereon. document that insurance coverage provided under applicable policies D. Any failure on part of the CITY to request required insurance documentation shall not constitute a waiver of the insurance requirements. E. A minimum of thirty (30) days notice of cancellation or material change in coverage shall be provided to the CITY. A ten (10) days notice shall be acceptable in the event of non - payment of premium. Notice shall be sent License Agreement — General Worth Square Page 8 of 13 to the Planning and Development Director- Randle Harwood, City of Fort Worth, 1000 Throckmorton, Fort Worth, Texas 76102 with a copy to Randy Hutcheson, City of Fort Worth Planning and Development 1000 Throckmorton Street, Fort Worth, Texas 76102. F. Insurers for all policies must be authorized to do business in the State of Texas and have a minimum rating of A:V or greater, in the current A.M. Best Key Rating Guide or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. G. Any deductible or self insured retention in excess of $25,000.00 that would change or alter the requirements herein is subject to approval by the CITY in writing, if coverage is not provided on a first - dollar basis. The CITY, at it sole discretion, may consent to alternative coverage maintained through insurance pools or risk retention groups. Dedicated financial resources or letters of credit may also be acceptable to the CITY. H. Applicable policies shall each be endorsed with a waiver of subrogation in favor of the CITY as respects the PROJECT. I. The CITY shall be entitled, upon its request and without incurring expense, to review the ENGINEER's insurance policies including endorsements thereto and, at the CITY's discretion; the ENGINEER may be required to provide proof of insurance premium payments. J. Lines of coverage, other than Professional Liability, underwritten on a claims -made basis, shall contain a retroactive date coincident with or prior to the date of the contractual agreement. The certificate of insurance shall state both the retroactive date and that the coverage is claims -made. K. Coverages, whether written on an occurrence or claims -made basis, shall be maintained without interruption nor restrictive modification or changes from date of commencement of the PROJECT until final payment and termination of any coverage required to be maintained after final payments. L. The CITY shall not be responsible for the direct payment of any insurance premiums required by this agreement. M. Sub consultants and subcontractors to /of the ENGINEER shall be required by the ENGINEER to maintain the same or reasonably equivalent insurance coverage as required for the ENGINEER. When sub consultants /subcontractors maintain insurance coverage, ENGINEER shall provide CITY with documentation thereof on a License Agreement — General Worth Square Page 9 of 13 certificate of insurance. N. The CITY, its officers, employees, and servants shall be endorsed as an additional insured on all insurance policies required under this Agreement with the exception of worker's compensation insurance and professional liability insurance policies. O. Required insurance policies shall each be endorsed to provide that such insurance is primary protection and that any self- funded or commercial coverage maintained by CITY shall not be called upon to contribute to loss recovery. P. During any term of this Agreement, Engineer shall report to the Risk Management Division in a timely manner any loss occurrence that could give rise to a liability claim or lawsuit or that could result in a property loss. Q. Liability shall not be limited to the specified amounts of insurance required herein. SECTION 12 SEVERABILITY; WAIVER; HEADINGS 12.1 In the event any covenant, condition, or provision of this Agreement 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 the CITY or DFWII in connection with the rights and obligations contained in the valid covenants, conditions, and provisions of this Agreement. 12.2 The failure of the CITY to insist on 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 the CITY's ability to assert or rely on any such term or right on any future occasion. 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 condition or of any other term, covenant, or condition of this Agreement, regardless of when the breach occurred. 12.3 The section headings contained herein are solely for convenience in reference and are not intended to define or limit the scope of any provision of this Agreement. License Agreement — General Worth Square Page 10 of 13 SECTION 13 EFFECT ON THIRD PARTIES 13.1 Nothing herein shall be deemed to constitute a waiver of any immunity or affirmative defense that may be asserted by the CITY or DFWII 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. SECTION 14 DAMAGE TO CITY PROPERTY 14.1. In the event that any CITY -owned property, such as utilities, park improvements, equipment, turf, etc., is damaged or destroyed during installation, watering, or maintenance of the Project improvements due to negligence or acts or omissions of DFWII (or of its officers, agents, servants, employees, separate contractors, subcontractors, engineers, consultants, or subconsultants), DFWII shall be solely responsible for all repairs or replacements. In the event of damage attributable to DFWII, DFWII shall replace or repair the damaged property at no cost to the CITY. The CITY and DFWII shall jointly determine whether any damage has been done, the amount of the damage, the reasonable costs of repairing the damage, and whether DFWII is responsible. SECTION 15 COMPLIANCE WITH LAW 15.1 DFWII shall comply with all federal, state, and local laws, rules, and regulations, as well as with all regulations, restrictions, and requirements of the CITY's police, fire, code compliance, and health departments now or hereafter in effect that are applicable to its operations. DFWII shall obtain and keep in effect at its own cost and expense all licenses and permits (except for those permits for which the CITY has agreed to waive the fees under Section 3.1.5 of this Agreement) and shall pay all taxes incurred or required in connection with this Agreement and its operations hereunder. 15.2 DFWII shall require through its contract with the Engineer, that the Engineer and its subcontractors observe and comply with all federal, state, and local laws, rules, and regulations, as well as with all regulations, restrictions, and requirements of the CITY's police, fire, code compliance, and health departments now or hereafter in effect that are applicable to its operations. In particular, DFWII shall include in its contract language requiring the Engineer and all subcontractors to observe and comply with all CITY ordinances relating to License Agreement — General Worth Square Page I I of 13 obstructing streets, keeping alleys and other right -of -way open and protecting same. 15.3 DFWII shall require through its agreement with the Engineer, that the Engineer and its Sub - Contractors shall perform their duties in a manner that will cause the least inconvenience and annoyance to the general public and the property owners. DFWII shall require through its agreement with the Engineer that the Engineer exercise every reasonable precaution for the safety of the property and the protection of any and all persons an /or property located adjacent to or making passage through, or using said property. SECTION 16 VENUE AND JURISDICTION 16.1 This Agreement shall be governed by the laws of the State of Texas. 16.2 Venue for any action brought to interpret or enforce or otherwise 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 17 ENTIRE UNDERSTANDING; MODIFICATION 17.1 This Agreement (including all attachments, schedules, and exhibits attached hereto) constitutes the final, entire, and complete understanding between the CITY and DFWII concerning the responsibilities with respect to Heritage Plaza. Any prior or contemporaneous, oral or written agreement that purports to vary from the terms hereof shall be void. 17.2 Amendments to this Agreement or to any attachment, schedule, or exhibit affixed hereto may be proposed by either party and shall take effect only after written approval by both parties. SECTION 18 AUTHORITY 18.1 The undersigned officers and /or agents of the parties hereto covenant and affirm that they are the properly authorized officials and have the necessary authority to execute this Agreement on behalf of the parties hereto. [SIGNATURES APPEAR ON NEXT PAGE] License Agreement — General Worth Square Page 12 of 13 e IN WITNESS WHEREOF; DFWII and the CITY have signed duplicate counterparts of the Agreement. CITY OF FORT WORTH Fernando Costa Assistant City Manager APPROVED AS TO FORM AND LEGALITY DOWNTOWN FORT WORTH INITIATIVES, INC. Andrew M. Taft President f Melinda Ramos Assistant City Attorney NO M&C REQUIRED 0 4cex /-)� Assk- Ci y Secretary, ?c �eAe, -'q0,, I� d r r- OFFICIAL RECORD, License Agreement — General Worth Square 1 �_rageT3 �i-fT3 - - --