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HomeMy WebLinkAboutContract 43175CITY SECRETARLY_W�, CONTRACT NO. PRIVATE -PROPERTY TOWING AND IMPOUND AGREEMENT —.. FOR FOREST PARK 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 duly authorized Assistant City Manager, and EARL'S WRECKER SERVICE, INC. (the "Company"), acting by and through its duly authorized President. RECITALS: WHEREAS, the City owns a piece of public property known as Forest Park located at 1500-2000 Colonial Pkwy, Fort Worth, Texas 76110; WHEREAS, portions of Forest Park are designated for restricted parking, meaning the City meets the definition of a "parking facility owner" under state law; 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 a designated portion of Forest 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 facility located within Forest Park, shown in Exhibit A, which is attached hereto and incorporated herein for all purposes, ("Parking Facility") if such vehicles are in violation of posted parking restrictions. If the restrictions on the Parking Facility are to be changed, the City shall revise all state -required signage as needed and shall provide the Company with notice at least forty -eighty (48) hours prior to the date and time at which the revised restrictions are to become effective. Any revised 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 individual's authorized representative), and a copy of the signed addendum shall be provided to the Company. The Company shall enforce restrictions at the Parking Facility only through the 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 restrictions. For purposes of this Agreement, a violation occurs if a Spotter witnesses an individual park a vehicle on the Parking Facilities lot and leaves the Park, provided, however, that an individual follows the designated hike and bike trail in the direction of Colonial Pkwy, or east into the Park, shall not be considered to have left the Park. OFFICIAL RECORD "Cowing and Impound Agreement for CITY SECRETARY Forest Park 05 _ 0 4_ 12 PO 2: 34 1 N FT, WORTH, TX Page 1 of 9 w 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 May 1, 2012, and ending April 30, 2013, 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 Facility 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. In executing this Agreement, the Company represents and affirms that it currently has and will maintain in effect throughout the term of this Agreement and any renewals thereof, all types and amounts of insurance coverage required under state law and City Code, 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 Towing and Impound Agreement for Forest Park Page 2 of 9 City upon request. The Company agrees to secure and maintain the insurance coverage requirements outlined in Exhibit B. Exhibit B is attached hereto and is incorporated by reference into this Agreement for all purposes. 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 (v) 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 COMPARATIVELY IN 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. Towing and Impound Agreement for Forest Park Page 3 of 9 9. Notices. 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 Parks and Community Services Director 4200 South Freeway Suite 2200 Fort Worth, Texas 76115 With copy to: Tyler Wallach Assistant City Attorney 1000 Throckmorton Street Fort Worth, Texas 76102 THE COMPANY: Earl's Wrecker Service, Inc. 921 N. Houston Street 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 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. Towing and Impound Agreement for Forest Park Page 4 of 9 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. 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. 16. Public Information Act. The Company understands and acknowledges that the City is a public entity under the laws of the State of Texas and as such, all documents held by the City are subject to disclosure under Chapter 552 of the Texas Government Code. The Company shall clearly indicate to the City what information it deems proprietary. If the City is required to disclose any documents that may reveal any of the Company'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, the City will notify the Company prior to disclosure of such documents, and give the Company the opportunity to submit reasons for objections to disclosure. The City agrees to restrict access to the Company's information to those persons within its organization who have a need to know for purposes of management of this Agreement. The 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. The City will use its best efforts to secure and protect Company's information in the same manner and to the same degree it protects its own proprietary information; however, the City does not guarantee that any information deemed proprietary by the Company 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. [SIGNATURE PAGE FOLLOWS] Towing and Impound Agreement for Forest Park Page 5 of 9 EXECUTED on this the CITY OF FORT WORTH bw: Sous s Assistant City Manager APPROVED AS TO FORM AND LEGALITY: Tyler F" lach Assistant City Attorney ATTEST: Ma Kayser City Secretary No M&C required Towing and Impound Agreement for Forest Park day of M a u 1 .2012. EARLIS''WRECKER SERVICE, INC. by Cody Nicholson, President OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Page 6 of 9 EXHIBIT A Parking Facility Towing and Impound Agreement for Forest Park Page 7 of 9 EXHIBIT B INSURANCE REQUIREMENTS Company shall maintain insurance from insurers acceptable to City of the following types and amounts: 1.1 Commercial General Liability Or $500,000 each occurrence $500,000 aggregate Garage Liability $500,000 each accident, other than auto $500,000 aggregate 1.2 Automobile Liability $1,000,000 each accident, combined single limit This coverage shall include all vehicles owned or non -owned that are operating under Company's operating authority performing services under this Agreement. 1.3 Cargo/On-Hook $50,000 per unit Coverage shall include both the unit being towed and its contents. Units covered shall include but not be limited to motor vehicles, trailers and boats. Coverage shall be written on a direct primary basis. 1.4 GARAGEKEEPER'S LIABILITY $30,000 per unit 1.5 Worker's Compensation/Accident Insurance Coverage shall meet the minimum requirements of state law, as contained in the Motor Carrier Rules and Regulations. NOTE: BETWEEN 1.1 AND 1.5 ABOVE, ANY POLLUTION EXPOSURE, INCLUDING ENVIRONMENTAL IMPAIRMENT LIABILITY, ASSOCIATED WITH THE SERVICES AND OPERATIONS PERFORMED UNDER THIS AGREEMENT SHALL BE COVERED. IN ADDITION, SUDDEN AND ACCIDENTAL CONTAMINATION OR POLLUTION LIABILITY FOR GRADUAL EMISSIONS AND CLEAN-UP COSTS SHALL BE COVERED. 1.6 Company shall maintain insurance coverage at all times. Current insurance certificates shall remain on file with the City during the term of this Agreement. Insurance coverage may, at the sole discretion of the City, be revised upward upon thirty (30) calendar days prior written notice to Company. Policies shall be endorsed as follows: Towing and Impound Agreement for Forest Park Page 8 of 9 a) The City, its officers, employees and servants shall be endorsed as an additional insured on all policies except employer's liability insurance coverage under the workers' compensation insurance policy. b) Certificates of insurance shall be delivered to the City's Senior Agreement Compliance Specialist, 350 W. Belknap Street, Fort Worth, TX 76102, prior to any work being performed under this Agreement. c) Any failure on part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirements specified herein. d) Each insurance policy shall be endorsed to provide the City a minimum thirty (30) calendar day notice of cancellation, non -renewal, and/or material change in policy terms or coverage. A ten (10) calendar day notice shall be acceptable in the event of non-payment of premium. e) Insurers must be authorized to do business in the State of Texas and have a current A.M. Best rating of A: VII or equivalent measure of financial strength and solvency. f) Deductible limits, or self -funded retention limits, on each policy must not exceed $10,000.00 per occurrence unless otherwise approved by the City. g) Other than worker's compensation insurance, in lieu of traditional insurance, City may consider alternative coverage or risk treatment measures through insurance pools or risk retention groups. The City must approve, in writing, any alternative coverage. h) Worker's compensation insurance policy(s) covering employees shall be endorsed with a waiver of subrogation providing rights of recovery in favor of the City. i) City shall not be responsible for the direct payment of insurance premium costs. j) Insurance policies shall each be endorsed to provide that such insurance is primary protection and any self -funded or commercial coverage maintained by City shall not be called upon to contribute to loss recovery. k) Company shall report, in a timely manner, to City's officially designated Senior Agreement Compliance Specialist any known loss occurrence which could give rise to a liability claim or lawsuit or which could result in a property loss. 1) Company's liability shall not be limited to the specified amounts of insurance required herein. m) Upon the request of City, Company shall provide complete copies of all insurance policies required by these Agreement documents. 1.7 In the event a state or federal law, rule or regulation pertaining to wrecker service companies operating within the State of Texas exceed insurance requirements specified herein, such state or federal law, rule or regulation shall prevail for the respective type of insurance coverage and/or limit thereof. Towing and Impound Agreement for Forest Park Page 9 of 9