HomeMy WebLinkAboutContract 28312[ �
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�C�N'T"�3AG� � . _ _.
AGREEMENT BETWE�N
THE CITY OF F�RT WORTH
AND
DALLAS MODEL AIRCRAFT AS50CIATION
STATE OF TEXAS §
COUNTY �F TARRANT §
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This Agreement is entered into this lst day of November, 2002, by and between the City
of Fort Worth, a home rule municipal corporatian situated in Tarrant and Denton Counties,
Texas (hereinafter referred to as "Cit�') acting by and ihrough the Director of the Parks �ad
Community Servic�s D�partment (hereinaf�ex refenred to as "PACSD"}, and Da11as Modal
Aixcraft Association (hereinafter referred to as "DMAA") acting by and through its President,
Don Hutchinson, 3417 Raider Drive, #16, Hurst Texas '76053.
WITNESSETH:
1.
Tbat for and i� conszderaiian of the use of the Premises and th� per%rmance of the
mutual covenants and agreements herain cantained, City hereby covenants and agrees �a permit
the DMAA to have the use of ap�roximately 1.40 acres, a certain portzon of park land locatec� �n
Gateway Park, South Field off Beach Street Main Parking Lot (southeast carner a�' parking Iot),
Gateway Park, 750 Narth Beach Street, Fort WorEh, Texas (the "Premises"} for the pu�pose o�
flying tetherer� conirol line mod�l airplanes an tkze weekends.
2.
The primary term of this Agreement sha11 be for twa {2) years, commencing on the lst day
of November, 2002. The annual term rnay be renewed by mutual agreement between the DMAA
and City for two (2) successive ane (1) year t�rms under the sarn� conditions and tez7ms of this
Agreernent.
3.
The Prexnises is a recreational multi-use area. DMAA may use th� Premises for flqing
model airplanes only on Saturdays a�d Sundays. The Prernises is to remain accessible far tha
public at all othex times. DMAA understands and agre�s that DMAA will not be allowed to use
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the Premises if the Premises are requirad for use by PACSD. Ii� thai case, PACSD will notify
DMAA as soon as posszble if the use by PACSD would prevenf DMAA.'s use af the prernises.
4.
(a) DMAA covenants and agrees that it shall take the Premises as the DMAA finds it.
DMAA agre�s that DMAA has examin�d the Premises priar to the e�ecution of fhis Agreement
and is satisfied with the physical condition of the Premises for the purpases related to this
Agreemeni. Taking possession of the Premises by the DMAA for the purpose of flying tethered
con�rai line model airplanes shall be conclusive evidenee of its receipt of the Premises in a safe,
sanitary and aecepiable condition and in good repa.ir, except far thase condifions that are not in
good repair which the DMAA provided City written notice of and which City failed to
reasonably carrect.
(b) DMAA, at DMAA's own expense, sha11 keep the Prernises and maintain all
equipment and other properties of the City in a safe, sanitary and acceptable candition and in
good X��]�lI'. DMAA will provzde at its own expense all ma#erials, equipment and l�.bar
necessary io maintain the recreational area.
DMAA shall restore and yield said Premises, equiprnent, and all other properties
belonging to the City back to tb�e City at tk�e expiration of each agreement term or terrnination of
this Agreemen� in good or better condition as exist�d at the commencement of this Agreement
and in which DMAA faund them. DMAA will pick up trash and debris an t�e area after each
day of use. 1�11 trash andlar dehris is to be bagged and placed in a nearby trash barrel in the park
or parking lot.
(c) DMAA �vi1I pay the costs of repa.iring (to its condition imnnediately preceding the
occurrence of such damage) any damage which may be done to the Premi��s or any of the
fixtures, stxuctu�res, or the natural en�ironment by any act of DMAA or any of DMAA's
�mploye�s, agents, of�ic�rs, or anyone visiting the Premises upon tl�e invitation af the DMAA
includin� the patrons of the attraction or function for which DMA.A hereby is leasing the
Pre�aises. The City shall determine whether any damage has been done, the Agreement of the
damage, the reasonable C05�5 af repairing the damage, and whether, under th� terms of the
Agreeme�t, tb.e DMAA is respansible. City sha.11 be the sole judge of the quatity of the
maintenance andlar damage of the Premises, fixtures, �tructures, or the natural environmeni �y
the DMAA. Any damage by the DMAA or others incident to the exercise of privileges herein
granted shall be repaired ar replaced by the DMA.A to the reasonab�e satisfactian a£ the City
within thirty days of receipt of written notification from the City.
Repairs are fa be made �rithxn seven (7) days of receipt of written notice to DMAA by the
City. The City reserves the right to make necessary repairs, if not repaired by DMAA within
seven {7) days of receipt of written notice to repair the Premises. If repairs are made by the City,
the City will provide the DMAA with an invaice �or the ach�.al cast o#' alX repairs made to the
facility within 30 days of completing said repairs. DM�A�L is r�quired to reimburse the City f,he
cost of the repairs within thir�y (30) days of the date of the invo�ce.
{d) City does not relinquish the right to control the management of the Premises, or the
right to enforce all necessary and proper rules %r the management and operation of �he same.
City, through its Manager, Parks and Community Services Director, police and fire p�rsonnel and
other designated representat�ves, has the right at any time to en�er any portion of the Premises
(without causing or constituting a temvnation of the use ar an interference af fhe use of the
Premises by the DMAA} for the purpose of inspecting and maintaining the same and daing any
and all activities necessary for the proper conduct and operation of public parks; provided this
shall nat autharize or ernpov�rer City to direct the activities of #he DMAA or assume liability for
DM1�A's activities.
5.
Any future impro�vements on City of Fart Worth property must be submitted in writing
for approval to PACSD bafare any work begins, PACSD will assign a representatYve to assist in
implementation af the project who wi11 be r�sponsible for approving the platis for future
improvement within the reereational area prior to construc�ion, and £or final insp�ction of Yhe
improv�ment prior to use by the DMAA or t1�e general public.
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(a) DMAA is, at its ovun expense, specifically authorized under thi� Agreemenf to
mow �e grass of the z'ecreational area for facilitating their flying operations. Upon completion,
the mowcd area shall be free of CLUMPED GRASS CUTTINGS aa�d tire tracks and RUTS
FRQM M�WING EQiJIPMENT. Turf sha11 be cut in a manner as not to SCALP TURF �R
LEAVE AREAS OF UNCUT GRASS. DMAA will use its best efforts to prevent cli�charge of
grass clippings onto any paved surface such as streets, curbs and gutters, parking 1ots, sidewallcs,
concrete pads, andlor onto adjacent praperties. ,Any material so discharged shall be removed by
DMAA be�ore leaving the project axea.
(b) Mowing opera�ions wi11 not be conducted when any person is wiihin 1 d0' of the
aperating equipment. Apprapriate safety ec�uip�zaent, especially eye and ear protection will ba
wozx� at all times during maintenance operations by persons operating �he equipment, or wi�hin
100' of the operating equipment. DMAA is responsible for providing aI1 equipment and assuring
that all safety equipment is worn by the operator, the mowing equipment is in good and safe
conditian and the operator is ai least 18 years of age and is trained tfl use and operate the
equipment in a safe z�ann.er.
7.
During the ti�e the club i� on sit�, DMAA may, at its own expense, place
apprapriate signage in the recreational area. DMAA is responsible for abtaining any Czty permifs
r�quired for the c�isplay of these signs. The PACSD representative must approve the specifie
location of the signs prior to installation. In case of vandalrsxn or theft of any material or signage
belonging to DMAA, the replacement, repair, ar any additional installation or reconstruction
costs, will be ihe responsibility of the DMAA.
DMAA may, at its own �xpense, place underground sleeves at the corners and
along the perimeter of the axea for the purpose of placing posts to cordon o�f the area. The posts
�d cordoning material may only be ix place during the time DMAA is on site, Th� PACSD
representative must approve the specific location of the sleeves prior to installation. In case of
vandali�m or damage of any sleeving or post material belonging to DMAA, the replacement,
repair, ar any additionai installa�ion or reconstruction costs will be the responsibility of the
DMAA.
DMAA may, at its own expense, topdress the grounds by placing topsoil on the
area to 1eve1 the gzound to eliminate undula�ions or low spots, DMAA may dri�e i�s personal
vehicle on the premises for this purpose only and must not do so wl�en the maisture conditions
are such that ruts in the ground will be left. The fiIl material must not contain any debris, rocks,
or foreign objects, and must be filled to the natural grade level ofthe surraunding area.
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DMAA 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, DMAA will take all nece5sa�-y steps ta remove
�he �en within 10 days of its filing.
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The City of Fort Worth reserves the right to modify the Premises, including
structures or improvements placed on City property by DMAA, as deterrnined necessary by the
PACSD Director or design0e.
Tertnination of this AGREEMENT without cause may be by either pa,rty upon
thirty (30) days written notice. Said termination notice shall be considered r�nd�red when placed
in ihe United States Postal ��rvice far delivezy to the ofiher party. Upon terminatian, the parties
sha11 be released from all obligations contained in this AGREEMENT excepi for the
Indemni�'ica.tian section in Ztern #12 below.
ThE City of Fort Worth may, in its sole discretion, tenninate this Agre�ment
unmediately should any of the following occur:
a) DMAA ceases to maintain the recreational area i� a�cordance with this Agreement;
b) DMAA actavi�ties becozne a hazard or nuisance to �he public; or.
c) The PACSD Director determines in his or her sole discretion that a�ather beneficial
use fflr the Premise e�ists.
10.
{a} It is agreed that DMAA wi11 comply with all federal, state, and local laws, staiutes
including all ordinances, charter provisions, rules and ragulatzons of the City of Fort Worth;
rncl�xding all zules, xegulations andlor rec�uirements of the City o� Fort Warth Police and Fire
Departm�nts; in eonneciion with the this Agreemen� and use of said Premises and any other
regulations of any municipal authority of the City of Fort Worih.
{b} DMAA shall comply with a11 Parks and Community Services Department
regulations, policias, and sha11 coardinate w�ith City staff with regard to use of the Premises,
(c) DMAA will not do ar suffer to be done anything an said Premises during the
terms of this Agreement in vialatian of any such laws, staiuies, ordinances, rules, regulations,
charter provisions, directives ar requir�ments. Ii the City calls �he attention of DIVIAA to any
such violation on the part of said DMAA or any person einployed t�y or ad�nitted to said
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Pzernises by DMAA, DMAA will im�nediately desist from and correct such violation and/or
vacate the Premises.
{d) DMAA shall obtain and pay for all necessary permits, Iic�nses, and taxes fram
any governmental agency with jurisdiction thereof and to pay lawful taxes in connection with the
use o�'the Premises
11.
No decarative ar other rnaterials shall �e nailed, tacked, screwec�, ar otherwise physically
attached to any part of tb.e P�remises of the Czty without the consent of the City.
12.
DMAA covenants and agrees to and does hereby indemnify, hold harmless and defend, at
its overn expense, City, its officers, servants and employees, from and against any and all claims
or suits for property loss ar damage andlar personal injury, including death, to any and all
persons, of whatsoever kind or character, whether real ar asserted, arising out of the work and
services and performance o� this Agreement to be performed hereunder by DMAA, its officers,
agents, employees, subcontractors, DMAAs or invitees, whet�►er or not caused, in whole or in
uart, bv the alleged ne�ligence of the officers, servants, emnlovees. of the Citv. DMAA
likewise covenants and agrees to, and does hezeby, indemnify and hold harmless City from and
against any and all injuries, damage, Ioss or destruction to property of City during the
performance of any of the terms and conditions of this Cvntract, whether ar�sing out of in
whole ar in part, anv �nd al1 alle�ed acts or omission� af officers, or emnlov�ees of Citv.
13.
Prior to the hme DMAA is entitled ta any right of access to or use of the Premises,
DI1�1AA shall procure, pay for and maintain the following insurance written by companies
approved by the Staie af Texas az�d acceptable to City. The insurance shall be evidenced by
delivery to City of executed ce�ificates of insurance and/or certified copies of palicies as
deteimi�ed by City.
DMAA covenants and agrees to obtain. and keep in force during the term of this
Agreernent, Comprehensive Gen�ral Liability lnsurance, Including Personal Injury Liability,
Independent Cantractors Liability and Contractual Liability covering, but not limited to, the
liability assumed under the indeirinification provisions oi this Agreement, with linaits of liability
for bodily injury {including death) and property damage of not less than One Million Dollars
($1,000,000). Coverage shall be a Combined Single Limit Per Occurrence basis and �he policy
shall include Broad Form Property Damage Coverage with an insurance cornpany satisfactory to
City. The City of Forr Warth shall be named as an Additional Tnsuxed.
The insurance policy shall include the following:
1) The term of insurance is for the duration of each Event, which includes the pe�iod
from the right of access to set-up thraugh the periad allowed for rerr�oval of property;
2) The policy shall require that thirty (30) days prior to the cancellation or any material
change in coverage, a notice shall be given to City by certified mail;
3} Insurers shall have no rigl�t of recovery or subrogation against the Gity of Fort Worth,
it being th� intan�ion that the insurance policy shall protect all pat�ties to the
Agreement and be primary coverage for aIl losses covered by ihe policies;
�4j Cornpany issuing the insurance �alicy shall have no recourse againsl: the City of Fort
Worth for payment of any premiums or assessments �or any deductibles which all are
at the sale risk of DMAA;
S) The terms "Owner", "City" or City of Fort Worth shall include all authorities, Boards,
Bureaus, Commissions, Divisions, Departments, and Offices of the City and the
individual members, employees and ag�nts thereof in their oi�icial capacities andJor
while acting on behalf of the City of Fort Worth; and
6} The polic}� clause "Q�tier Insurance" shall not apply to any insurance coverage
currently held by City, to any future coverag�, or to City's self-insured retentian of
whatever nattzre.
DMAA hereby waives subrogation rights for lass or damage against City, its officers,
agents, and employees for personal injury (including deaih}, p�oper�y damage or any other loss.
DMAA shall not do or per�nit to be done anything in or upan any portion of the Premises, o:r
bring or ke�p anything therein or thereupon which will in any way conflict with the canditions of
a.tiy insurance policy upon the Premises or any part ther�of, or in any way mcxease the rate of fire
insurance upon the Prernises or on pro�erty kept therein, or in any way obstruct or interfere with
the right of the other tenants of the Premises, ar injuze or annoy them.
The City may tertninate this Agreement iznmediately upon the failure of the DMAA to
provide acceptable documentation of insurance as required by this Agreement.
14.
DMAA agirees tk�at if it is a c�.aaritable orga.nization, corparation, entity or individual
enterprise having, claiming or entitled to any imrnunity, exemption (statutory or otherwise} or
limitation from and against liability for damage or injury to property or persons under the
provisions of the Cha�ritab�e �nmunity and Liability Act o£ 1987, C.P. R.C., § 84.Q01 et seq., or
other applicable law, that DMAA hereby expressly wai�es its right to assert or plead defensively
any such imrnunity or limi�ation of liability as against City.
15.
The doctrine of respondeat supe�ior shall not apply as between the DMAA and City and
�.athing contained in this Agreement sha11 be deemed to constitute City and DMAA as partn.ers or
join� ventur�rs wiih each other, nar shall the DMAA be consid�red �o be an agent, representativ�,
or employee of the City. DMA�. shall have the exclusive contral of and the right to con�rol its
employees and th� details of its op�ration on th� Premises and shall be solely responsible for the
acts and omissions of its officers, agents, employees, contractors, and subcontractors.
16.
DMAA agr��s that, c�uring the use of the Pr�mises, DMAA will not subject anyone to
discrimination in any way because of the person's race, color, �exual orientatian, national origin,
age, or handicap. Na one can be excluded from the Premises or denied the benefits of the
Premises because oi person's race, color, sexual orientaiion, naiianal origin, age, or handicap.
17.
DMAA shall not assign this contract nor suffer any use oi the Premises other than herein
specified, nar sublef the Premises or any part �iereof withaut the written consent of City. If
assigned per the written consent of the City, DMAA agrees to ensure that any assignee or
sublessee wi11 comply witb. all tern�s, provisians, covenants, and conditions of this coniract.
Assignment ar subletiing of this Agreement shall not ralieve DMAA from any of its abligations
under this Agreement.
18.
This written i_nstrument constitutes the entire Agreement by the parties hereta concerning
this lice�se Agreement and the Pxemises and the abligations of the parties and any prior or
contemporaneous orai or written agreement thai purports to vary from the terms her�of, shall be
void.
19.
This Agr�ement cannot be rnodi�ed or amended without the written consent of all the
pa.rties hereto and attached and made a part of this Agreem�nt.
20.
This Agreement shall be binding upon and insure to the benefit of the parties hereto and
theiz respective heirs, e�eeuta:rs, adrninistrators, legal representatives, succes�ors and, except as
otherwise provided in this cantract, their assigns.
21.
Venue sha11 be in the staie courts located in Tarrant County, Texas or the United States
District Court for the Narthertz District afTexas, Fort Worth Division.
22.
�£ the Prem�ises or any poriion thereof shall be destroyed ar damaged by ftre ar oiher
calamiiy so as to prevent the use of the Prexnises for the purposes and during the �eriods
specified in this Agreemeni or if the use of th� Premises by DMA.A shall be pxevenied by act of
irod, strike, lockout, material or labor restriction by any govert�rnental authority, civil riot, flood,
or any other like cause beyond the cantrol. of the City, then this contract shall terminate and
DMA A hereby waives any claim against City for damages hy reaso� of such termination.
23.
In case any one ar rnore of the provi�ions contained in this Agreement are held to be
znvalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affeci any othar provision h�reof and this canfract shall be considered as if such invalid,
illegal or unenforceable provisions were never contained herein.
24.
All natices required ax permitted under this Agreement may be given to a party persanally
or by mail, addressed to such party at the address s#ated belovcr ar to such ather address as one
party may from time to time notify the other in writin�. Any notice so given shall be deemed to
have been received when deposited in the United States zx�.ail so addressed with postage prepaid:
CITY:
PARKS AND COMMUNiTY SERVICES D�PAI2TM�N'�'
4200 SO�]TH FREEWAY, Sur'r� 2200
FoxT Wo�� ,T�xAs 7611 S-1 A�99
DMAA:
DALLAS MODEL AIltPLANE AS�OCIATION
ATTN: DON HUTCHINSON
3417 RAIDER DR1VE, SUITE 16,
H[JRST, TEXAS '76053
25.
By executing this Agr��ment, DMA�'s agent affirms that he or she is authorized by
DMAA to ex�cute this Agreemen� and that all representations rmade hexein with regard to
DMAA's identity, address and 1ega1 status (carporation, partnership, individual, atc.) are t-n�e and
correct.
E�ECUTED on this ihe
ATTEST:
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Approved as ta farm and legality:
David Yett, City Attorney
By: G�Gw ���
Assis�a zt City Attorney
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Cflntract Authorizatiozx
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J ' day of `
CITY OF FORT WORTH
, 2Q[�.
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By: _ -_ - ;.
� Richard 2a a
! Dir�ctor of Parks and Community
Services
DALLAS MODEL AIRCRAFT
A5SOCIATION
B . � � �J
Don Hutchu�on, President
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