Loading...
HomeMy WebLinkAboutContract 58613CSC No. 58613 ADDENDUM TO AGREEMENT BETWEEN THE CITY OF FORT WORTH AND THE CHILDREN'S PLACE FOR A READING ROOM AT SOUTHWEST REGIONAL LIBRARY This Addendum is made a part of the Agreement between the City of Fort Worth ("City") and The Children's Place ("Vendor") for the build -out of a reading room located at Southwest Regional Library ("Property") ("Agreement"), which is attached hereto. The terms and provisions of Addendum shall control to the extent there is a conflict between the terms and conditions of this Addendum and the terms and conditions of the Agreement. Capitalized terms not specifically defined herein shall have the meanings set forth in the Agreement. 1. Compensation & Term The Vendor shall provide the City these services at no charge to the City. City shall not be required to pay any cost, fee, or charge of any nature for these services. City shall not be liable for any additional expenses of Vendor not specified by this Agreement unless City first approves such expenses in writing. The City represents that for and in consideration of its obligations under this Agreement that the Vendor is providing a reading room at Southwest Regional Library free of charge for the citizens of Fort Worth. The Vendor represents that for and in consideration of its obligations under this Agreement, the City is providing exposure for the Vendor. Both parties agree as a condition precedent of this Agreement that both parties have exchanged good and valuable consideration. This Agreement shall begin upon execution and shall continue through December 31, 2022. II. Non -Exclusive License for Use of Prooert City hereby grants a non-exclusive license to Vendor for use of the Property for the build -out of a reading room to support the City Public Library. Subject to the terms of this Agreement and the following conditions, limitations and restrictions listed below, Vendor may occupy and use the Property to construct the build -out. Vendor agrees that Vendor has examined the Property prior to the execution of this Agreement and is satisfied with the physical condition of the Property. Vendor's taking possession of the Property for the purpose outlined shall be conclusive evidence of its receipt of the Property in a safe, sanitary and sightly condition and in good repair, except for those conditions which the Vendor provides City written notice of before Vendor takes possession of the Property. In licensing the Property, City does not relinquish the right to control the management of the Property, or the right to enforce all necessary and proper rules for the management and operation of the same. City, through its Manager, police and fire personnel and other designated representatives, has the right at any time to enter any portion of the Property (without causing or constituting a termination of the privilege or an interference for the possession of the Property by the Vendor) for any purpose, provided this shall not authorize or empower City to direct the activities of the Vendor or assume liability for Vendor's activities. City assumes no responsibility for any property or equipment placed on the Property or any part thereof by the Vendor or any agent, officer, and/or employee of the Vendor. Vendor hereby expressly releases and discharges City from any and all liability for any equipment damage or loss and/or personal injury, including death, arising out of or in connection with, directly or indirectly the occupancy and/or use of the Licensed Property and any and all activities conducted thereon sustained by reasons of the occupancy under this Agreement, except to the extent due to City's intentional misconduct or gross negligence. Addendum to Agreement CFW & The Children's Place OFFICIAL RECORD Page 1 of 5 CITY SECRETARY FT. WORTH, TX VENDOR SHALL NOT MOVE OR INTFRFFRF IN ANY WAY WITH ACCESSIBILITY TO ADA PROPERTY, SUCH AS, BUT NOT LIMITED TO, WHEELCHAIR ACCESS. VENDOR INDEMNIFIES THE CITY FOR ANY AND ALL CLAIMS AND LIABILITIES ARISING OUT OF VENDOR'S DUTIES UNDER THE REQUIREMENTS OF ADA AND THIS SECTION DURING THE TERM OF THIS AGREEMENT ONLY AND ONLY IN RELATION TO CHANGES MADE BY VENDOR AND/OR ITS REPRESENTATIVES. III. Indemnity City shall not be required to indemnify or hold Vendor harmless for any claims, damages, and or liability of any sort caused by any action taken in connection with the Agreement or Addendum. This shall also include that the City shall not be required to pay for any attorney's fees, costs, or fees associated with any claim brought by or against Vendor in connection with this agreement. To the extent the Agreement requires the City to indemnify, hold harmless, or pay for any attorney's fees or other costs or fees on behalf of Vendor, the requirement is expressly rejected and shall no longer be a part of the Agreement. IV.Insurance Prior to the time Vendor is entitled to any right of access to or use of the Property, Vendor must provide City with certificate(s) of insurance documenting policies of the following types and minimum coverage limits that are to be in effect prior to commencement of any Services pursuant to this Agreement: 4.1 Coverage and Limits (a) Commercial General Liability: $1,000,000 - Each Occurrence $2,000,000 - Aggregate (b) Automobile Liability: $1,000,000 - Each occurrence on a combined single limit basis Coverage will be on any vehicle used by Vendor, or its employees, agents, or representatives in the course of providing Services under this Agreement. "Any vehicle" will be any vehicle owned, hired and non -owned. (c) Worker's Compensation: Statutory limits according to the Texas Workers' Compensation Act or any other state workers' compensation laws where the Services are being performed Employers' liability $100,000 - Bodily Injury by accident; each accident/occurrence $100,000- Bodily Injury by disease; each employee $500,000- Bodily Injury by disease; policy limit 4.2 General Requirements Addendum to Agreement CFW & The Children's Place Page 2 of 5 (a) The commercial general liability and automobile liability policies must name City as an additional insured thereon, as its interests may appear. The term City includes its employees, officers, officials, agents, and volunteers in respect to the contracted services. (b) The workers' compensation policy must include a Waiver of Subrogation (Right of Recovery) in favor of City. (c) A minimum of Thirty (30) days' notice of cancellation or reduction in limits of coverage must be provided to City. Ten (10) days' notice will be acceptable in the event of non-payment of premium. Notice must be sent to the City in accordance with the notice provision of this Agreement. (d) The insurers for all policies must be licensed and/or 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 Risk Management. If the rating is below that required, written approval of Risk Management is required. (e) Any failure on the part of City to request required insurance documentation will not constitute a waiver of the insurance requirement. (f) Certificates of Insurance evidencing that Vendor has obtained all required insurance will be delivered to the City prior to Vendor proceeding with any work pursuant to this Agreement. V. Audit If any money is exchanged as part of this Agreement, then the City shall have the right to audit the financial and business records of the Vendor that relate to any monetary exchange under this Agreement (collectively "Records") at any time during the Term of this Agreement and f'or three (3) years thereafter. It is expressly understood that no money is being exchanged as part of this Agreement. VI. Governing Law and Venue If any action, whether real or asserted, at law or in equity, arises on the basis of any provision 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. This Agreement shall be construed in accordance with the laws of the State of Texas. VII. Independent Contractor It is expressly understood and agreed that Vendor shall operate as an independent contractor as to all rights and privileges granted herein, and not as agent, representative or employee of the City. Subject to and in accordance with the conditions and provisions of this Agreement, Vendor shall have the exclusive right to control the details of its operations and activities and be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors (except the City), and subcontractors. Vendor acknowledges that the doctrine of respondeat superior shall not apply as between the City, its officers, Addendum to Agreement CFW & The Children's Place Page 3 of 5 agents, servants and employees, and Vendor, and its officers, agents, employees, servants, contractors, and subcontractors. VIII. Prohibition on Contracting with Companies that Boycott Israel If Vendor has fewer than 10 employees or this Agreement is for less than $100,000, this section does not apply. Vendor acknowledges that in accordance with Chapter 2270 of the Texas Government Code, the City is prohibited from entering into a contract with a company for goods or services unless the contract contains a written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. The terms "boycott Israel" and "company" shall have the meanings ascribed to those terms in Section 808.001 of the Texas Government Code. By signing this contract, Vendor certifies that Vendor's signature provides written verification to the City that Vendor: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. IX. Prohibition on Boycotting Energy Companies Vendor acknowledges that, in accordance with Chapter 2274 of the Texas Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 13, § 2, the City is prohibited from entering into a contract for goods or services that has a value of $100,000 or more that is to be paid wholly or partly from public funds of the City with a company with 10 or more full-time employees unless the contract contains a written verification from the company that it: (1) does not boycott energy companies; and (2) will not boycott energy companies during the term of the contract. The terms "boycott energy company" and "company" have the meaning ascribed to those terms by Chapter 2274 of the Texas Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 13, § 2. To the extent that Chapter 2274 of the Government Code is applicable to this Agreement, by signing this Agreement, Vendor certifies that Vendor's signature provides written verification to the City that Vendor: (1) does not boycott energy companies; and (2) will not boycott energy companies during the term of this Agreement. X. Prohibition on Discrimination Against Firearm and Ammunition Industries Vendor acknowledges that except as otherwise provided by Chapter 2274 of the Texas Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 19, § 1, the City is prohibited from entering into a contract for goods or services that has a value of $100,000 or more that is to be paid wholly or partly from public funds of the City with a company with 10 or more full-time employees unless the contract contains a written verification from the company that it: (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate during the term of the contract against a firearm entity or firearm trade association. The terms "discriminate," "firearm entity" and "firearm trade association" have the meaning ascribed to those terms by Chapter 2274 of the Texas Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 19, § 1. To the extent that Chapter 2274 of the Government Code is applicable to this Agreement, by signing this Agreement, Vendor certifies that Vendor's signature provides written verification to the City that Vendor: (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate against a firearm entity or firearm trade association during the term of this Agreement. XI. Electronic Signatures This Addendum may be executed by electronic signature, which will be considered as an original signature for all purposes and have the same force and effect as an original signature. For these purposes, "electronic signature" means electronically scanned and transmitted versions (e.g. via pdf file or facsimile transmission) of an original signature, or signatures electronically inserted via software such as Adobe Sign. [signature page follows] Addendum to Agreement CFW & The Children's Place Page 4 of 5 ACCEPTED AND AGREED: CITY OF FORT WORTH: ED Jesica L. McEachern Assistant City Manager Date: Dec 15, 2022 APPROVAL RECOMMENDED: By: Manya Shorr Library Director ATTEST: s lal-leg6tG S GDOGiaa By: Jannette S. Goodall (Dec 15, 2022 15:43 CST) Jannette Goodall City Secretary THE CHILDREN'S PLACE By: 0�� Name: Colleen Clarke Title: Director of Brand Date: December 9, 2022 CONTRACT COMPLIANCE MANAGER: By signing I acknowledge that 1 am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. By: Timothy Shidal Administrative Services Manager APPROVED AS TO FORM AND LEGALITY: IN Jessika Williams Assistant City Attorney Ordinance No. 24161-04-2020 CONTRACT AUTHORIZATION: M&C: N/A Addendum to Agreement CFW & The Cliddren's Place OFFICIAL RECORD Page 5 of 5 CITY SECRETARY FT. WORTH, TX AGREEMENT This "Agreement" is made between the City of Fort Worth (the "Property Owner"), with its main office located at 200 Texas Street, Fort Worth, TX 76102-6314, and The Children's Place Services Company LLC ("TCP"), located at 500 Plaza Drive, Secaucus, NJ 07094, to permit the construction and build -out of one (1) reading room/library in Southwest Regional Library (the "Property") located at 4001 Library Lane, Fort Worth, TX 76137-1402 in exchange for permitting TCP to promote its products on the Property in connection with TCP's "Back To School Campaign" (the "Campaign"). This Agreement will be effective as of the date last signed by either party (the "Effective Date"). The Agreement consists of the terms set forth below (the "Campaign Terms") and the Terms and Conditions that are attached as Exhibit A to the Campaign Terms and that are incorporated in this Agreement by reference (the "Terms and Conditions"). Term: I Effective Date — December 31, 2022 1 In -Kind TCP shall contribute $10,000 in in -kind services (the "In -Kind Donation") toward the improvement of a Donation/Work particular room of the Property as mutually agreed upon by Property Owner and TCP (the "Premises") for the purpose of creating a reading room/library space on the Premises. Such improvements shall include the following "Work" which Property Owner agrees and acknowledges shall not require further approval by Property Owner or any construction permits: • Paint the wall that is currently blue with chalkboard paint. Top of the chalkboard wall should be similar to a mountain skyline. • Install the "Children's Place" wall mural lamination on a purple wall. • Install the "science" wall lamination on the white corner wall. White pillars will not accept wall laminations as they are a rough concrete material. • Arrange new bookshelves in a serpentine configuration in the center of the triangular children's area. • Placement of any carpets, tables, chairs, bean bags, etc. in their designated place • Section off children's section of library with drop cloths from ceiling to floor. • Cover any bookcases or flooring near areas to be painted. • Paint all areas that are currently light green. This includes three circular pillars, one square pillar, and the back corner wall. o These areas are to be painted white prior to activation assembly. Notwithstanding anything to the contrary contained herein, Property Owner shall not disassemble or materially alter TCP's Work at the Property or any fixtures on, improvements to or enhancements of the Premises until after September 20, 2022. For the avoidance of doubt, except for the initial delivery of books to the Premises, TCP shall not be responsible for accepting book deliveries and the replenishment of books at the Property or within the Premises. Event On November 30" for a 1 hour period, TCP may host an "Event" at the Property and within the Premises in connection with the Campaign. The details of the Event shall be determined by TCP and shall include the following: • Small ribbon -cutting ceremony • TCP to invite local children to enjoy the space on opening day TCP may distribute free merchandise to attendees of the Event and promote its brand and third party brands at the Property. TCP shall be entitled to capture video and/or photographic content during the Event which TCP shall be permitted to include in TCP's promotional materials. EXH. IBIT A TERMS AND CONDITIONS 1. License. Property Owner hereby grants TCP access to the Property in connection with the Work and the Event during the Term. The foregoing license shall include use and access by TCP's agents, employees, contractors and representatives during ordinary business hours. TCP shall have the right to restrict access to the Premises by the general public during TCP's performance of the Work and during the Event for safety and security purposes. Property Owner shall remain responsible for the repair and maintenance of the Property, including the Premises, during the Term and following expiration of the Term, including during such periods of time that the Work and the Event take place. For the avoidance of doubt, TCP shall not be responsible for any repairs to and maintenance of the Property, unless encompassed within the Work. Property Owner shall remain responsible for all utilities servicing the Property during the Term including, without limitation, HVAC, water, electric and trash. Property Owner shall implement best efforts to repair and maintain the Premises, including all finished products and deliverables resulting from the Work performed for Property Owner, until December 31, 2022. At all times, Property Owner shall immediately remove or erase any vulgar language or drawings that may appear on the walls of the Premises. In the event there is a service interruption of utility services or damage to the Premises or Property that may adversely affect the Event, Property Owner shall immediately notify TCP and remedy such service interruption or damage prior to the Event. Property Owner hereby represents and warrants that as of the date of this Agreement, there are no "Hazardous Materials" on the Property. "Hazardous Materials" means any chemical, substance, or material, which is now or becomes in the future listed, defined or regulated in any manner by any applicable federal, state or local environmental, health and/or safety - related laws, regulations, standards, decisions of the courts, permits or permit conditions. 2. Intellectual Property. Property Owner grants TCP a limited, non-exclusive, royalty -free license to use Southwest Regional Library (the "Property Trademark") and use and photograph the Premises and Property in order to advertise, publicly represent and otherwise promote TCP's sponsorship status regarding the Property, and for such other uses as Property Owner may reasonably approve in writing; provided that Property Owner hereby pre -approves any usage of the Property Owner Trademark in TCP's press releases regarding the Property, the Work or the Event. For the avoidance of doubt, TCP shall also have the right to livestream the Event on TCP's social media channels and such livestream may feature the Premises, the Property and/or the Property Trademark. 3. Termination. If either party breaches a material provision of this Agreement, the other party may terminate this Agreement upon ten (10) business days' prior written notice, unless the breach is cured within the notice period. In addition, TCP may terminate this Agreement for convenience upon ten (10) business days' prior written notice to Property Owner. In the event the Agreement is terminated prior to completion of the Work for any or no reason, TCP shall not be under any obligation to complete the remainder of the Work. 4. Confidentiality, Property Owner shall not use in any manner, nor shall Property Owner disclose to any third party (including, without limitation, via social media, etc.), any trade secrets or confidential information of TCP, including, without limitation, any non-public information about TCP's services, the content of any advertising that TCP has not yet released to the general public, Property Owner's relationship with TCP (until publicly disclosed by TCP), and any of the terms of this Agreement. In addition, Property Owner shall not communicate to the press directly about the Work, the Event or the Campaign without TCP's prior written approval and shall direct all press inquiries regarding the Work, the Event or the Campaign to TCP. 5. Representations and Warranties. Property Owner and TCP each hereby represents, warrants and covenants, as of the Effective Date and at all times thereafter during the Term, that: a) it shall complywith all applicable laws and regulations; b) it possesses the full right, power and authority to enter into and fully perform this Agreement; c) it has all rights necessary to grant the rights granted hereunder; d) to its knowledge, it has obtained and will comply with all required authorizations, approvals, licenses or permits from all government authorities in order for it to enter into and perform its obligations under this Agreement; e) it is free of any contractual obligation that would prevent it from entering into or performing its obligations under this Agreement; and f) the execution, delivery and performance of this Agreement by it has been duly authorized by all necessary corporate action. 6. Indemnification. Property Owner and TCP each agrees to indemnify and hold harmless the other party from and against any and all claims, damages, liabilities, settlements, attorneys' fees and expenses ("Costs"), as incurred, on account of any breach of this Agreement by, or the gross negligence or willful misconduct of Property Owner or TCP, as applicable, and its respective agents, employees, contractors and representatives. Property Owner further agrees to indemnify and hold harmless TCP from and against any and all Costs arising from injuries to persons on the Property and damage to the Property, including the Premises; provided such injuries or damage is not attributed to TCP's gross negligence or willful misconduct. For the avoidance of doubt, provided TCP has not engaged in gross negligence or willful misconduct, (i) TCP shall have no responsibility to protect the persons and property of the Property Owner or others from damage, loss or injury resulting from any and all operations under this Agreement and (ii) TCP shall have no responsibility for injuries to any and all persons, including death, and damage to any and all property arising out of or related to the operations under this Agreement, including but not limited to injuries or damages resulting from the acts or omissions of any of its employees, agents, servants, contractors, subcontractors, or any other person. Limitation of Liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHERMORE, TCP'S TOTAL LIABILITY SHALL NOT EXCEED THE TOTAL COST OF THE WORK. NOTWITHSTANDING THE FOREGOING, THIS SECTION DOES NOT LIMIT LIABILITY ARISING FROM EITHER PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, BREACH OF ITS CONFIDENTIALITY OR ITS INDEMNIFICATION OBLIGATIONS. Relationship of the Parties. The relationship between Property Owner and TCP as established by this Agreement, is that of independent contractors, and nothing contained in this Agreement shall be construed to (i) give either party the power to direct and control the day-to-day activities of the other party, or (ii) constitute the parties as partners, joint venturers, co - owners or otherwise as participants in a joint or common undertaking. Neither party nor its agents or employees is the representative of the other party for any purpose except as expressly set forth in this Agreement, and has no power or authority as agent, employee or in any other capacity to represent, act for, bind, or otherwise create or assume an obligation on behalf of the other party for any purpose whatsoever. 9. Notices. All notices and other communications required or permitted to be given to a party pursuant to this Agreement shall be in writing, and shall be deemed duly given (i) on the date delivered if personally delivered or sent via electronic mail, (ii) on the date sent by telecopier with automatic confirmation by the transmitting machine showing the proper number of pages were transmitted without error, (iii) on the business day after being sent by Federal Express or another recognized overnight courier service which utilizes a written form of receipt for next day or next business day delivery, or (iv) five (5) business days after mailing, if mailed by United States postage -prepaid certified or registered mail, return receipt requested, in each case addressed to the applicable party at the address set forth on the first page of this Agreement; provided that a party hereto may change its address for receiving notice by the proper giving of notice hereunder. 10. Miscellaneous. This Agreement is the entire agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior agreements, negotiations, representations and understandings between the parties with respect to such subject matter. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. No changes or modifications or waivers to this Agreement will be effective unless in writing and signed by both parties. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement, and any and all disputes arising directly or indirectly from this Agreement, shall be governed by and construed in accordance with the laws of the State of New Jersey without regard to the conflicts of laws provisions thereof. Each of the parties hereby irrevocably consents and submits to the exclusive jurisdiction of the state and federal courts located in New Jersey for any such disputes, and hereby irrevocably waives any objections to the laying of venue in such courts. This Agreement may be executed in any number of counterparts, in printed or electronic form, each of which shall be deemed an original, but together shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day first written above. The Children's Place Services Company LLC Colleen Clarke By. Its: Director of Brand City of Fort Worth ByJesica McEachern Its: Assistant City Manager Date:Date: December 9, 2022 Dec 15, 2022 _