HomeMy WebLinkAboutContract 41449CITY SECRETARY
CONTRACT NO . L} I LI~ 9
PRIVATE-PROPERTY TOWING AND IMPOUND AGREEMENT
This Private-Property Towing and Impound Agreement ("Agreement") is made and entered
into by and between the CITY OF FORT WORTH (the "City "), a home-rule municipal
corporation of the State of Texas , acting by and through its dul y authorized Assistant City
Manager , and EARL'S WRECKER SERVICE, INC. (the "Company"), a Texas corporation ,
acting by and through its dul y authorized President.
RECITALS:
WHEREAS, the City owns a piece of public property known as Trinity Park , 2401
University Drive , Fort Worth, Texas 76107 (the "Park "); and
WHEREAS , portions of the Park are designated for restricted parking , meaning the City
meets the definition of a "parking facility owner" under state law; and
WHEREAS , the Company represents that it is a "towing company" under state law and
possesses all permits and licenses required under state law and City Code to perform "private
property tow" service; and
WHEREAS , the City wishes to engage the Company to provide "private property tow"
service (as defined by state law) for designated portions of the Park.
NOW THEREFORE, in consideration of the mutual covenants contained herein, the
parties hereto do hereby agree as follows:
1. Services. City hereby grants to Company the exclusive right , pursuant to and in
accordance with the terms and conditions of this Agreement and of state law and City Code , to
remove vehicles from the parking facilities , if such vehicles are in violation of the parking
restrictions detailed herein.
Two (2) parking lots situated on the northern sector of the Park , are restricted to patrons of Trinity
Park between the hours 7:00am and 7:00pm seven days a week. Parking Lot A and parking Lot B
are referred to collectively for purposes of this Agreement as the "Parking Facilities." The
locations of the Parking Facilities are depicted on Exhibit A , which is attached hereto and
incorporated herein for all purposes as though it were set forth at length.
If the restrictions on one or both Parking Facilities are to be changed , the City shall revise all state-
required signage as needed and shall provide the Company with notice at least fort y-eighty hours
prior to the date and time at which the revised restrictions are to become effecti ve. Any re v ised
restrictions shall be appended to this Agreement as an addendum signed by the Director of the
City 's Parks and Community Services Department (or that indi vidual 's authorized representative),
and a copy of the signed addendum shall be provided to the Company.
The Company shall enforce restrictions at the Parking Facilities only through use of "Spotter
Removal " as defined herein. For purposes of this Agreement , "Spotter Removal " refers to an
agent of the Company (the "Spotter") personally witnessing a violation of applicable parking
restriction · agreement , a violation occurs if a Spotter witnesses an individual
park a ve Facilities lot and leave the Park , provided , however , that an
CITY SECRETARY
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individual who follows the designated hike and bike trail in the direction of downtown Fort Worth
shall not be considered to have left the Park.
The Company shall deliver all unauthorized vehicles to a vehicle storage facility that: (i) is
operated in accordance with the requirements of Chapter 2303 of the Texas Occupations Code ; (ii)
is located no more than twenty (20) miles from the particular parking lot from which the vehicle
was removed; and (iii) maintains adequate insurance against liability for property damage incurred
in storing vehicles.
2. Term and Termination. This Agreement shall encompass and govern all services rendered
during the one-year period beginning on January 1, 2011, and ending December 31 , 2011 , unless
terminated by either party as provided herein. The Agreement may be renewed and extended for
additional one-year periods by written mutual consent of the parties . This Agreement may be
terminated by either party, with or without cause, by providing the other party with no less than ten
(10) days ' written notice prior to the intended termination date.
3. Consideration; Collection of Fees. Neither party shall receive or be entitled to any
monetary consideration from the other party in connection with this Agreement, it being the intent
of the parties that this arrangement involve the exchange of non-fungible, non-monetary
consideration with the Company providing the City with a service by removing unauthorized
vehicles and the City providing the Company with an opportunity to collect towing and related
fees as authorized under state law .
4. Compliance with Law; Permits and Taxes. In its performance under this Agreement, the
Company shall comply with all applicable federal , state , and local laws, rules , and regulations , as
well as with all regulations, restrictions , and requirements of the City , now or hereafter in effect
which are applicable to its operations; such laws and regulations shall include , but not be limited
to, (i) obtaining of any permits and licenses for towing and related services that are required under
state and/or local law and (ii) adhering to and complying with any and all regulations addressing
the fees that may lawfully be collected for towing and related activities.
The Company shall obtain and keep in effect, at its sole cost and expense, all licenses , insurance ,
and permits, and pay all taxes incurred or required in connection with this Agreement and its
operations hereunder. The Company shall ensure compliance with all requirements under state
law or the City Code related to notification of the proper law enforcement agency regarding the
impoundment of any vehicle that is removed from the Parking Facilities under this Agreement.
5. Independent Contractor. The Company shall perform all work and services hereunder as
an independent contractor, and not as an officer, agent, servant or employee of the City . The
Company 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 subcontractors. Nothing herein shall be
construed as creating a partnership or joint venture between the City and the Company or their
respective officers, agents, employees, or subcontractors. The doctrine of respondent superior has
no application as between the City and the Company .
6 . Insurance.
currently h BG
In executing this Agreement, the Company represents and affirms that it
il-l-maintain in effect throughout the term of this Agreement and any renewals
thereof, al
Tow ing and I p£AJJg~~H ETARY
FT. WORTH, TX
' f insurance coverage required under state law and City Code,
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including, but not limited to, worker 's compensation, automobile, property damage, cargo, and
general liability insurance. The Company shall provide written evidence of such coverage to the
City upon request.
7. Liability; Indemnification. IN EXECUTING THIS AGREEMENT, THE COMPANY
ASSUMES ALL LIABILITIES FOR DAMAGES INCURRED AS A RESULT OF THE
REMOVAL AND STORAGE OF SUCH VEHICLES. THE COMPANY AGREES TO
DEFEND, INDEMNIFY, AND HOLD THE CITY, ITS OFFICERS, AGENTS, AND
EMPLOYEES HARMLESS 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 A BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL
INJURY (INCLUDING DEATH) THAT MAY RELATE TO, ARISE OUT OF OR BE
OCCASIONED BY: (i) THE COMPANY'S BREACH OF ANY OF THE TERMS OR
PROVISIONS OF THIS AGREEMENT; (ii) FAILURE OF THE COMPANY TO COMPLY
WITH THE REQUIREMENTS OF STATE LAW WITH RESPECT TO TOWING; (iii)
FAILURE OF THE COMPANY TO MAINTAIN INSURANCE AGAINST LIABILITY
FOR PROPERTY DAMAGE INCURRED IN TOWING A VEHICLE; (iv) DELIVERY OF
A VEHICLE TO A VEHICLE STORAGE FACILITY THAT DOES NOT MAINTAIN
ADEQUATE INSURANCE FOR LIABILITY INCURRED IN STORING A VEHICLE;
AND/OR (ii) ANY NEGLIGENT ACT OR OMISSION OR INTENTIONAL
MISCONDUCT OF THE COMPANY, ITS OFFICERS, AGENTS, ASSOCIATES,
EMPLOYEES, CONTRACTORS (OTHER THAN THE CITY) OR SUBCONTRACTORS,
RELATED TO TOWING AND STORAGE OF VEHICLES UNDER THIS AGREEMENT.
THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL NOT APPLY TO
ANY LIABILITY RESULTING FROM THE SOLE NEGLIGENCE OR WRONGFUL
WILLFUL ACTS OF THE CITY OR ITS OFFICERS, AGENTS, EMPLOYEES, OR
SEPARATE CONTRACTORS. IN THE EVENT OF JOINT AND CONCURRENT
NEGLIGENCE OR WRONGFUL, WILLFUL ACTS OF BOTH THE COMPANY AND
THE CITY OR THEIR RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, OR
SEPARATE CONTRACTORS, RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED
COMP ARA TIVEL YIN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
8. Conflicts; No Financial Involvement. The Company hereby warrants to the City that the
Company has made full disclosure in writing of any existing or potential conflicts of interest
related to the Company 's provision of services under this Agreement. In the event that any
conflicts of interest arise after the execution of this Agreement, the Company hereby agrees to
make full disclosure to the City in writing immediately upon learning of such conflict
The Company has not and will not, directly or indirectly, give anything of value to the City in
connection with the removal of vehicles from the designated parking facilities. The Company does
not and shall not have a direct or indirect monetary interest in the parking facilities that are the
subject of this Agreement.
The City does not and shall not, directly or indirectly, accept anything of value from the Company.
In addition, City does not and shall not have a direct or indirect monetary interest in the Company.
9 . Noti equired shall be sufficient if deposited in the U.S . Mail , postage
· t requested , and addressed to the other party as follows:
Towin g and Imp lu~J!TreR ~ETARY
~T. Wt)RT", TX
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CITY:
City of Fort Worth
Parks and Community Services Director
4200 South Freeway, Suite 2200
Fort Worth , Texas 76115
With copy to:
Denis McElroy
Assistant City Attorney
1000 Throckmorton Street
Fort Worth, Texas 76102
THE COMPANY:
Cody Nicholson
921 N Houston St.
Fort Worth, TX 76164
10. Governing Law; Venue. This Agreement shall be governed by 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 License Agreement shall be in Tarrant County, Texas or the United States District
Court for the Northern District of Texas, Fort Worth Division.
11. Severability. If any part of this agreement is determined by a court of law to be
unenforceable, the remaining parts of this agreement will remain in force .
12. Right to Audit. In accordance with the requirements of Section 2-134(d) of the Fort Worth
City Code, the Company agrees that the City shall , until the expiration of three (3) years after the
expiration or termination of this Agreement, have access to and the right to examine any books ,
documents , papers , and records of the Company involving transactions relating to this Agreement.
The Company agrees that the City shall have access during normal working hours to all necessary
Company facilities and shall be provided adequate and appropriate workspace in order to conduct
audits in compliance with the provisions of this section. The Company 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. Nothing
herein shall be construed as limiting the City's rights of access to or examination of any books,
documents, papers , and records that may exist independently of this provision.
13. Review of Counsel. 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 are to be resolved against the drafting party must not be employed in
the interpretation of this Agreement or any amendments or attachments hereto.
14 . Authorization. By executing this Agreement, the Company's agent affirms that he or she is
authorized by the Company to execute this Agreement and that all representations made herein
with regard to the Company's identity, address and legal status (corporation , partnership ,
individual, etc .) are true and correct.
OFFICIAL RECORD
CITY SECRETARY
Towin g and Impound Agreement FT. WORTH, TX
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15. Entire Agreement. This Agreement constitutes the final , entire , and complete agreement
between the Company 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.
EXECUTED on this the 2-'f -rl-t day of h n\l a~ , 2011.
CITY OF FORT WORTH
Assistant City omey
tJ f"\{ t (ltD1 ()
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
To w ing and Impound Agreement
EARL'S WRECKER SERVICE, INC.
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CITY SECRETARY
FT. WORTH, TX
Exhibit A