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HomeMy WebLinkAboutContract 61665License Agreement Page 1 of 12 Bike Sharing Station at New City Hall LICENSE AGREEMENT BETWEEN THE CITY OF FORT WORTH AND THE FORT WORTH TRANSPORTATION AUTHORITY D/B/A TRINITY METRO FOR A BCYCLE STATION AT NEW CITY HALL This LICENSE AGREEMENT is made and entered into by and between the CITY OF FORT WORTH, a home rule municipal corporation of the State of Texas (“City”), acting herein by and through its duly authorized Assistant City Manager, and THE FORT WORTH TRANSPORTATION AUTHORITY D/B/A TRINITY METRO, a regional transportation authority created, organized, and existing pursuant to Chapter 452 of the Texas Transportation Code (“Licensee”), acting herein by and through its duly authorized President and Chief Executive Officer, regarding the City’s real property located at 100 Fort Worth Trail, Fort Worth, Tarrant County, Texas 76102. RECITALS WHEREAS, the City owns a piece of property known as the New City Hall (“New City Hall”) located at 100 Fort Worth Trail, Fort Worth, Tarrant County, Texas 76102; and WHEREAS, City and Licensee desire use a portion of the New City Hall (the “Licensed Premises”) to install and maintain certain improvements for the purpose of a bike sharing station; and WHEREAS, the City has determined that the Licensee’s desired use of the New City Hall fulfills a public purpose by increasing recreational and transportation opportunities at New City Hall and promoting the use of bicycles; and WHEREAS, the City desires to grant Licensee a license to use a portion of the New City Hall under the terms and conditions set forth in this Agreement. NOW, THEREFORE, the City and Licensee agree as follows: AGREEMENT 1. City, in consideration of the covenants and agreements contained herein, to be kept and performed by Licensee, hereby grants permission to Licensee to use portions of the space at the New City Hall to install and allow to remain, certain improvements for the purpose of one bike station (“Improvements”) as described in and at the location shown on Exhibit “A” — Licensed Premises, but only to the extent shown thereon. Upon completion of the Improvements, Licensee agrees to be responsible for maintaining the Improvements and the Licensed Premises. Licensee shall not expand or otherwise cause the Improvements to further infringe in or on New City Hall beyond what is specifically described in the Exhibits attached hereto. License Agreement Page 2 of 12 Bike Sharing Station at New City Hall 2. All installation, maintenance and operation in connection with this Agreement shall be performed in strict compliance with this Agreement and the City’s Charter, Ordinances and Codes, and in accordance with the directions of the City’s Director of the Property Management Department (“Director”), or his or her duly authorized representative. Licensee further agrees that, in accordance with Section 24-5 of the Code of the City of Fort Worth, it shall not display any advertising matter on the Improvements. Licensee shall submit all plans and specifications to the Director or his or her duly authorized representative prior to the installation of the Improvements. Licensee shall notify the Director, or his or her duly authorized representative, at least five (5) business days prior to initiating any activity within New City Hall. Licensee shall not commence installation of the Improvements until receiving written approval from the Director or his or her duly authorized representative, but such approval shall not relieve Licensee of responsibility and liability for concept, design and computation in the preparation of such plans and specifications. 3. Upon completion of the installation of the Improvements, there shall be no other use of the surface area of New City Hall, except as described herein and depicted on Exhibit “A.” 4. Licensee, at no expense to the City, shall make proper provisions for the relocation and installation of any existing or future utilities affected by such use of the New City Hall including the securing of approval and consent from any affected utility companies and the appropriate agencies of the State of Texas and its political subdivisions, including the City. In the event that any installation, reinstallation, relocation or repair of any existing or future utility or improvements owned by, constructed by or on behalf of the public or at public expense is made more costly by virtue of the installation, maintenance or existence of the Improvements and their use, Licensee shall pay to City an additional amount equal to such additional cost as determined in the reasonable discretion of the Director, or his or her duly authorized representative. The Licensee shall not bring any heavy equipment onto New City Hall, including, but not limited to, vehicles (except for areas designated for vehicles such as parking lots). The Licensee agrees that it shall not cut, clear or remove any vegetation as a part of its efforts to install the Improvements. 5. Upon prior written notice to Licensee, except in the case of an emergency, Licensee agrees that City may enter and utilize the Licensed Premises at any time for the purpose of installing, repairing, replacing, or maintaining improvements to its public License Agreement Page 3 of 12 Bike Sharing Station at New City Hall facilities or utilities necessary for the health, safety and welfare of the public or for any other public purpose. The City shall bear no responsibility or liability for any damage or disruption or other adverse consequences resulting from the Improvements installed by Licensee, but City will make reasonable efforts to minimize such damage. 6. The term of this Agreement shall be for five (5) years commencing on the date this Agreement is executed by City. City shall have the option, in its sole discretion, to renew this Agreement under the same terms and conditions for up to two (2) five-year renewal periods. However, this Agreement shall terminate upon Licensee’s non- compliance with any of the terms of this Agreement. City shall notify Licensee in writing of the non-compliance, and if not cured within thirty (30) days, this Agreement shall be deemed terminated unless such non-compliance is not susceptible to cure within thirty (30) days, in which case this Agreement shall be deemed terminated in the event that Licensee fails to commence and take such steps as are necessary to remedy the non- compliance within thirty (30) days after written notice specifying the same, or having so commenced, thereafter fails to proceed diligently and with continuity to remedy same. 7. Upon termination of this Agreement, Licensee shall, at no expense to City, remove the Improvements encroaching on New City Hall, and restore Licensed Premises to a condition acceptable to the Director, or his or her duly authorized representative, in accordance with then-existing City specifications. It is understood and agreed by Licensee that if this Agreement terminates and Licensee fails to remove the Improvements and restore the Licensed Premises, Licensee hereby gives City permission to remove the Improvements along with any supporting structures and restore the Licensed Premises at Licensee’s sole cost and expense. 8. It is further understood and agreed between the parties hereto that the New City Hall to be used and encroached upon as described herein, is held by City as trustee for the public; that City exercises such powers over New City Hall as have been delegated to it by the Constitution of the State of Texas or by the Texas Legislature; and that City cannot contract away its duty and its legislative power to control the New City Hall for the use and benefit of the public. It is accordingly agreed that if the governing body of City at any time during the term hereof determines in its sole discretion to use or cause or permit New City Hall to be used for any other public purpose, whether presently contemplated or not, that this Agreement shall terminate upon sixty (60) days’ written notice to Licensee. In the event this Agreement is terminated under this Section 8, Licensee shall perform the obligations regarding removing the Improvements and restoring the Licensed Premises described in Section 7. License Agreement Page 4 of 12 Bike Sharing Station at New City Hall 9. Licensee agrees and acknowledges that this Agreement is solely for the purpose of permitting Licensee to install, maintain and locate the Improvements over or within the described Licensed Premises and is not a conveyance of any right, title or interest in or to New City Hall nor is it meant to convey any right to use or occupy any property in which a third party may have an interest. Licensee agrees that it will obtain all necessary permissions before occupying the Licensed Premises. 10. Licensee agrees to comply fully with all applicable federal, state and local laws, statutes, ordinances, codes or regulations in connection with the installation, operation and maintenance of the Improvements, encroachment and uses. 11. Licensee agrees to pay promptly when due all fees, taxes or rentals provided for by this Agreement or by any federal, state or local statute, law or regulation. 12. Licensee covenants and agrees that it shall operate hereunder as an independent contractor as to all rights and privileges granted hereunder and not as an officer, agent, servant or employee of City, and Licensee shall have exclusive control of and the exclusive right to control the details of its operations, and all persons performing same, and shall be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors, subcontractors, licensees and invitees. The doctrine of respondeat superior shall not apply as between City and Licensee, its officers, agents, servants, employees, contractors and subcontractors, and nothing herein shall be construed as creating a partnership or joint enterprise between City and Licensee. 13. LICENSEE COVENANTS AND AGREES TO INDEMNIFY, AND DOES HEREBY INDEMNIFY, HOLD HARMLESS AND DEFEND CITY, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES, AND ELECTED OFFICIALS FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR PROPERTY DAMAGE OR LOSS AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH, THE INSTALLATION, MAINTENANCE, OCCUPANCY, USE, EXISTENCE OR LOCATION OF THE IMPROVEMENTS AND ENCROACHMENT AND USES GRANTED HEREUNDER, WHETHER OR NOT CAUSED, IN WHOLE OR IN PART, BY ALLEGED NEGLIGENCE OF OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES, License Agreement Page 5 of 12 Bike Sharing Station at New City Hall ELECTED OFFICIALS, OR INVITEES OF THE CITY; AND LICENSEE HEREBY ASSUMES ALL LIABILITY AND RESPONSIBILITY FOR SUCH CLAIMS OR SUITS. LICENSEE SHALL LIKEWISE ASSUME ALL LIABILITY AND RESPONSIBILITY AND SHALL INDEMNIFY CITY FOR ANY AND ALL INJURY OR DAMAGE TO CITY PROPERTY ARISING OUT OF OR IN CONNECTION WITH THE IMPROVEMENTS AND ANY AND ALL ACTS OR OMISSIONS OF LICENSEE, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES, INVITEES, OR TRESPASSERS. 14. While this Agreement is in effect, Licensee agrees to furnish City with a Certificate of Insurance naming City as certificate holder, as proof that it has secured and paid for a policy of public liability insurance covering all public risks related to the proposed use and occupancy of the Licensed Premises as described or depicted in Exhibit “A.” The amounts of such insurance shall be not less than: $1,000,000 Commercial General Liability with the understanding and agreement by Licensee that such insurance amounts may be revised upward at City’s option and that Licensee shall so revise such amounts promptly following notice to Licensee of such requirement. Such insurance policy shall not be canceled or amended without at least thirty (30) days prior written notice to the Risk Manager of the City of Fort Worth. A copy of such is attached as Exhibit “B” and incorporated herein for all purposes. Licensee agrees to submit a similar Certificate of Insurance annually to City on the anniversary date of the execution of this Agreement. Licensee agrees, binds and obligates itself, its successors and assigns, to maintain and keep in force such public liability insurance at all times during the term of this Agreement and until the removal of all encroachments and the cleaning and restoration of the Licensed Premises. All insurance coverage required herein shall include coverage of all Licensees’ contractors and subcontractors. 15. In any action brought by the City for the enforcement of the obligations of the Licensee, City shall be entitled to recover interest and reasonable attorney’s fees. 16. Licensee covenants and agrees that it will not assign all or any of its rights, privileges or duties under this Agreement without the prior written approval of the City, and any attempted assignment without such written approval shall be void. Foreclosure by a secured lender of Licensee or assignment to a secured lender by Licensee in the License Agreement Page 6 of 12 Bike Sharing Station at New City Hall event of default or otherwise shall not require City approval provided that said lender notifies City in writing within sixty (60) days of such foreclosure or assignment and assumes all of Licensees’ rights and obligations hereunder. However, no change of ownership due to foreclosure or assignment to any secured lender of Licensee shall be effective as to City unless and until written notice of such foreclosure or assignment is provided to City. 17. THE PARTIES AGREE THAT THE DUTIES AND OBLIGATIONS CONTAINED IN PARAGRAPH 8 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. 18. Any cause of action for breach of this Agreement shall be brought in Tarrant County, Texas. This Agreement shall be governed by the laws of the State of Texas. 19. This Agreement shall be binding upon the parties hereto, their successors and assigns. [SIGNATURES ON FOLLOWING PAGE] License Agreement Page 7 of 12 Bike Sharing Station at New City Hall This AGREEMENT may be executed in multiple counterparts, each of which shall be considered an original, but all of which shall constitute one instrument. CITY OF FORT WORTH: THE FORT WORTH TRANSPORTATION AUTHORITY D/B/A TRINITY METRO: By: _______________________________ By: Dana Burghdoff Shawn D. Tubré Assistant City Manager Director of Fort Worth Bike Sharing/Wellness RECOMMENDED BY: ______________________ Marilyn Marvin Interim Director, Property Management ATTEST: APPROVED AS TO FORM AND LEGALITY: ______________________ _______________________________ Jannette S. Goodall Matthew A. Murray City Secretary Assistant City Attorney Contract Authorization: M&C: N/A Form 1295: N/A License Agreement Page 8 of 12 Bike Sharing Station at New City Hall Contract Compliance Manager: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. By: ____________________________ Greg Wingate Sr Facilities Planner License Agreement Page 9 of 12 Bike Sharing Station at New City Hall EXHIBIT A LICENSED PREMISES License Agreement Page 10 of 12 Bike Sharing Station at New City Hall EXHIBIT A LICENSED PREMISES License Agreement Page 11 of 12 Bike Sharing Station at New City Hall EXHIBIT A LICENSED PREMISES License Agreement Page 12 of 12 Bike Sharing Station at New City Hall EXHIBIT B CERTIFICATE OF INSURANCE