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HomeMy WebLinkAboutContract 63095Mayfest, Inc. D/B/A The Trinity Collaborative, Inc. License Agreement Page 1 of 18 LICENSE AGREEMENT BETWEEN THE CITY OF FORT WORTH AND MAYFEST, INC. D/B/A THE TRINITY COLLABORATIVE, INC. This LICENSE AGREEMENT between the CITY OF FORT WORTH, a home-rule municipal corporation of the State of Texas, acting by and through its duly authorized Assistant City Manager , and MAYFEST, INC. D/B/A THE TRINITY COLLABRATIVE, INC., a Texas nonprofit corporation, City and Licensee WHEREAS, the City is the owner of a tract of land known as Trinity Park, located at 2104 University Drive, Fort Worth, Texas 76107 ; WHEREAS, since 1973, the City and Licensee have been parties to a series of agreements authorizing Licensee to use portions of the Premises for an annual outdoor recreation event known as WHEREAS, it is the collective desire of the Parties to continue with this relationship and to enter into this License to, among other things, revise the term and fees associated with such agreement; WHEREAS, on April 9, 2024, the Fort Worth City Council approved M&C 24-0304, which authorized a new license agreement effective April 30, 2024, and expiring on April 29, 2034, with the option to renew for two successive five-year terms; WHEREAS, all sums received under this agreement by the City shall be expended by the Park PARD Director ; and WHEREAS, each Party finds that the performance of this Agreement is in the common interest of the Parties and that the undertaking will benefit the public interest in providing a positive economic impact. NOW, THEREFORE, in consideration of the covenants and agreement contained herein, the City and Licensee hereby agree as follows: SECTION 1 LICENSED PREMISES 1.1 Licensed Premises. For and in consideration of the License Fees to be paid under this License Agreement and the agreements of the Parties expressed herein, the City does hereby grant to Licensee the use of Premises as set forth in greater detail in Exhibit A, which is attached hereto and incorporated herein. 1.2 Condition of the Premises. Licensee agrees that Licensee has examined the Premises prior to the execution of this License Agreement and is satisfied with the physical condition of the Premises. Licensee will have the ability to examine the Premises each year at least five (5) days before the Special Event. of the Premises in a safe, sanitary, and good condition and repair. LICENSEE AGREES THAT IT IS TAKING THE PREMISES IN ITS CURRENT AS IS CONDITION WITH NO REPRESENTATIONS OR WARRANTIES OF ANY NATURE WHATSOEVER BY THE CITY. Mayfest, Inc. D/B/A The Trinity Collaborative, Inc. License Agreement Page 2 of 18 Licensee agrees that Premises is not prepared by the City for use as festival grounds and may contain hazardous conditions that are obvious or latent defects that could result in injury to Special Event participants. Licensee assumes the risk of injury to Licensee and Special Event participants for use of the Premises Special Event. The City makes no warranty that the Premises are suitable for Licensee s intended use or Special Event. 1.3 Any modifications to the Premises must be approved by the City and set forth in a written amendment to this License Agreement. SECTION 2 USE OF THE PREMISES 2.1 Licensee may use the Premises for the purpose of operating a Special Event each May to provide live music performances, festival rides and activities, to include the sale of food, alcoholic beverages, and non-alcoholic beverages, parking for artists, overflow, volunteers, and vendors, and no other purposes. In the event of Park closure or inclement weather, Licensee may reschedule the event within six months of the initial reservation date. 2.2 Licensee shall have right to use the Premises in accordance with the approved park reservation permit s set forth in the approved park reservation permit, including, but not limited to, set-up and clean-up. If Licensee, for any reason, holds over beyond the scheduled times set forth in the approved park reservation permit, the City reserves the right, in its sole discretion, to remove Licensee from the Premises or charge Licensee a fee for use of the Premises for the time period beyond that for which the Premises is reserved. Any additional fee will be commensurate with that charged to other patrons of the Premises using the same space for the same amount of time and shall be paid along with the License Fee in accordance with Section 4 below. If there are items remaining in the Premises beyond the time for which the Premises is reserved by the Licensee or a Licensee vendor or contractor, the City shall bear no responsibility or liability for the items. This language must be included in any subcontracts that the Licensee executes with any subcontractors or subvendors. 2.3 Either Party may request a temporary modification of the approved park reservation permit with at least ten (10) business days prior written notice, but no such change will take effect without the prior written consent of both Parties. Any revisions to this Agreement will require an amendment to this License Agreement. 2.4 The Premises will be unavailable for use by the Licensee pursuant to this License Agreement on all regular City Holidays. Except due to emergency circumstances or Force Majeure Events, the City agrees to notify Licensee of any change in the hours of operation of the Premises by providing Licensee with written notice within a reasonable time prior to the change taking effect. The City agrees to provide similar notice to Licensee should the Premises not be available to the Licensee due to scheduled maintenance or other non-emergency closures. In the event of a change in hours or availability, such change shall not give rise to any claim against the City by the Licensee, whether for lost profits, costs, overhead, or otherwise. 2.5 Licensee may bring into the Premises any equipment reasonably necessary to further the intended use of the Premises. However, the City reserves the right to prohibit any equipment which, in Special Event participants or the Premises. 2.6 Licensee may not use any part of the Premises for any use or purpose that violates any Mayfest, Inc. D/B/A The Trinity Collaborative, Inc. License Agreement Page 3 of 18 applicable law, regulation, or ordinance of the United States, the State of Texas, the County of Tarrant, the City of Fort Worth, or other lawful authority with jurisdiction of the Premises. 2.7 Licensee understands and agrees that the parking areas in the parks outside of the Premises identified in the License Agreement are not for the exclusive use of the Licensee or Special Event participants and that the City and patrons of the parks may use the parking spaces at any time. 2.8 The City reserves the right to enter into and grant other and future licenses, leases, and other authorizations for use of the Premises to other persons and entities as the City deems appropriate in accordance with applicable law; provided, however, that in granting subsequent authorization for use, the City will make reasonable efforts not to allow a use that will unreasonably interfere with the However, this License Agreement does not establish any priority for the use of the Premises by the Licensee or by any present or future licensees. In the event of any dispute as to the priority of use of the Premises, the first priority shall be to the public generally, the second priority to the City in the performance of its various functions, and thereafter, as between licensees, as determined by the City in the exercise of its powers, including the police power and other powers reserved to and conferred on it by the State of Texas. 2.9 Licensee must obtain a park reservation permit from the City each time Licensee uses the Premises. Licensee must have a copy of this License Agreement and a valid park reservation permit ession when using the Premises. SECTION 3 TERM OF LICENSE 3.1 Term. The initial term of this Agreement is for ten (10) years , unless terminated earlier in accordance with this Agreement. The Initial Term shall begin on April 30, 2024, and expire on April 29, 2034 . 3.2 Renewals. This Agreement may be renewed for two (2) successive five-year periods by mutual writ 3.3 No Holdover Tenancy. Unless terminated earlier pursuant the terms herein, this License Agreement will expire without further notice when the applicable term expires. Any holding over by Licensee after the term expires will not constitute a renewal of the License Agreement or give Licensee any rights under the License Agreement in or to the Premises. SECTION 4 LICENSE FEE 4.1 Initial Term. As consideration for the rights and privileges granted hereunder for this License Agreement, Licensee will pay to the City an annual license fee of Twenty-Six Thousand Five Hundred Dollars and Zero Cents ($26,500.00), plus Ten Percent (10%) of the Net Operating Profits from each Special Event held during the Initial Term (together, the . Net Operating Profits shall be calculated as all revenues (excluding interest income received on the funds held in reserve to pay future festival expenses) less operating expenses. 4.2 Renewals. Beginning with the first renewal, the amount of the License Fee shall be Twenty-Nine Thousand One Hundred Fifty Dollars and Zero Cents ($29,150.00), plus Ten Percent (10%) of the Net Operating Profits from each Special Event held during the renewal period. Mayfest, Inc. D/B/A The Trinity Collaborative, Inc. License Agreement Page 4 of 18 4.3 The License Fee will be due no later than October 15th of each year. Payments may be submitted online or by check to the following address in care of the Park & Recreation Department: 100 Fort Worth Trail (formerly Energy Way), Fort Worth, TX 76102. Failure to make payment shall constitute a breach of this License Agreement, and the City may terminate this License Agreement without cause immediately upon written notice to Licensee of such intent to terminate. SECTION 5 DUTIES AND RESPONSIBILITIES 5.1 In addition to any other duties and responsibilities set forth in this License Agreement, Licensee shall furnish, materials, supplies, utilities, and other items necessary to provide, operate, manage, and promote the Special Event each year. Licensee shall also provide a detailed Special Event schedule two weeks in advance for all programs to be held within the Premises. Pursuant to this general obligation, Licensee shall, at its sole expense: 5.1.1 Provide the design and layout for all event vendor and promoter locations within the Premises. 5.1.2 Submit an Emergency Management Plan that details responses to emergencies that might affect the Special Event. 5.1.3 Provide adequate traffic control and security in the form of off-duty Fort Worth Police Department personnel. 5.1.4 Furnish all emergency medical services required during the entire event period, including dedicated ambulance stand-by units determined to be necessary by the City. 5.1.5 If alcohol is to be sold, provide the City with a copy of all applicable liquor licenses and ensure that proper and adequate controls are in place to prohibit the sale of alcohol to minors. measures to be used to prohibit alcohol sales to minors. 5.1.6 Maintain all required health permits and verify concessionaires have the required health permits for their operations. 5.1.7 rules, and regulations governing the use of the Premises. The City will provide a copy of any such policies, rules, and regulations within a reasonable time after request by the Licensee. 5.1.8 Not occupy the Premises beyond the times listed in the approved park reservation permit. 5.1.9 cancellation but excluding Force Majeure Events, to the City no less than 24 hours prior to the scheduled start time, according to the approved park reservation permit. In case of Force Majeure Events, the Licensee must notify the Director promptly upon learning of such Force Majeure Events. 5.1.10 Immediately report any maintenance or repair needs to the Park Operations District Superintendent of the Premises. 5.1.11 volunteers, and management shall wear nametags or clothing identifying the individuals as part of the Special Event. 5.1.12 Abide by the insurance requirements set forth in Exhibit B, which is attached hereto and incorporated herein for all purposes. Mayfest, Inc. D/B/A The Trinity Collaborative, Inc. License Agreement Page 5 of 18 5.1.13 Designate a point of contact for Special Event administration and reporting requirements Special Event . The Special Event Point of Contact shall be: Iris Burton, Executive Director Mayfest, Inc. D/B/A The Trinity Collaborative, Inc. Phone: 817-332-1055 Email: iris@trinitycollab.org 5.1.14 Address complaints related to the Special Event with 24 hours of notification by the City. 5.2 The City shall: 5.2.1 Schedule annual meetings with Licensee to administratively verify inventory of special event equipment, collaborate on best practices as it relates to each parties duties, expectations, and any shared use and/or storage of special event equipment. 5.2.2 Furnish existing utilities available at the Premises, if such utilities exist, at all times, for the ordinary and intended use of such, which may include lighting and water for ordinary and intended use. 5.2.3 Furnish banner poles, ticket booths (single window), stages, and bleachers, and trailers as requested by Licensee, provided such equipment is available. 5.2.4 Designate a City employee to serve as the point of contact for Special Event administration and reporting requirements . The City Point of Contact shall be: Clinton Wyatt, District Superintendent Park Operations Office: 817-391-5763 Email: Clinton.wyatt@fortworthtexas.gov 5.2.5 Provide staff and equipment as requested by Licensee to assist with the set-up and take-down of the Special Event Controlled Access Fenced Area, as set forth in Exhibit A, provided such staff and equipment are available. 5.2.6 Provide litter pickup in and around the Premises before, during, and after each day of the Special Event, as well as in and around the Special Event Controlled Access Fenced Area on the set-up days for the Special Event. 5.2.7 Provide maintenance and landscaping service necessary to keep the rest of the Premises clean. 5.2.8 As soon as reasonably practical, notify Licensee, through its Special Event Point of Contact, of any closure of the Premises. The City will notify Licensee prior to scheduling events which may interfere with the Special Event schedule. 5.2.9 Notify Licensee, through its Special Event Point of Contact, of all complaints received related to the Program. 5.2.10 Remove any equipment left on the Premises after three (3) business days post- Special Event. Mayfest, Inc. D/B/A The Trinity Collaborative, Inc. License Agreement Page 6 of 18 SECTION 6 LIENS Licensee acknowledges that it has no authority to engage in any act or to make any contract that may create or be the foundation for any lien upon the property or interest in the property of the City. If any such purported lien is created or filed, Licensee will not permit it to remain, and will, at its cost and expense, promptly discharge all liens, encumbrances, and charges upon the Premises or a part thereof arising out of the use or occupancy of the Premises or a part thereof by Licensee; by reason of any labor or materials furnished or claimed to have been furnished by, through, or under Licensee; or by reason of any construction, improvement, alteration, addition, repair, or demolition of any part of the Premises. Licensee's failure to discharge any such purported lien shall constitute a breach of this License Agreement, and the City may terminate this License Agreement upon at least thirty (30) days written notice. However, Licensee's financial obligation to the City to liquidate and discharge such lien shall survive following termination of this License Agreement and until such a time as the lien is discharged. SECTION 7 CARE OF THE PREMISES 7.1 equipment and other properties of the City in a safe, sanitary, sightly condition and in good repair during its use of the Premises; provided, however, the foregoing shall not be construed to require the Licensee to provide general janitorial services at the Premises. Licensee shall restore and yield said Premises, equipment, and all other properties belonging to the City back to the City at the expiration of each scheduled time set forth in the approved park reservation permit in as good or better condition as they existed at the beginning of each scheduled time set forth in the approved park reservation permit. This shall only apply during such time as the Licensee has use of the Premises as set forth in this License Agreement. 7.2 Licensee will not do, or permit to be done, any injury or damage to the Premises, or any parts thereof, or permit to be done anything that will damage or change the finish or appearance of the Premises or the furnishings thereof or any other property belonging to the City by the erection or removal of equipment or any other improvements, alterations, or additions. No decorative or other materials shall be nailed, tacked, screwed, or otherwise physically attached to any part of the Premises or to any of the furnishings or fixtures of the City without the prior written consent of the Director. 7.3 Subject to ordinary wear and tear, and to the extent allowed by law, Licensee will pay the costs of repairing any damage that may be done to the Premises or any of the fixtures, furniture, or f agents, invitees, Special Event participants, or anyone visiting the Premises upon the invitation of the Licensee. The City shall determine, in its sole, reasonable discretion, whether any damage has occurred, the amount of the damage, the reasonable costs of repairing the damage, and whether, under the terms of the License Agreement, the Licensee is responsible. The costs of repairing any damage to the Premises shall be immediately due and payable by the the City. SECTION 8 FORCE MAJEURE If either party is unable, either in whole or part, to fulfill its obligations under this License Agreement due to acts of God; strikes, lockouts, or other industrial disturbances; acts of public enemies; wars; blockades; insurrections; riots; pandemics and epidemics; public health crises; earthquakes; fires; Mayfest, Inc. D/B/A The Trinity Collaborative, Inc. License Agreement Page 7 of 18 floods; restraints or prohibitions by any court, board, department, commission, or agency of the United States or of any state; declaration of a state of disaster or emergency by the federal, state, county, or City government in accordance with applicable law; issuance of an Imminent Threat Alert or Elevated Threat Alert by the United States Department of Homeland Security or any equivalent alert system that may be instituted by any agency of the United States; any arrests and restraints; civil disturbances; or explosions; or some other reason beyond the obligations so affected by such Force Majeure Event will be suspended only during the continuance of such Force Majeure Event. If a Force Majeure Event occurs, the City may, in its sole discretion, close or postpone the opening of its community centers, parks, or other City-owned and operated properties and facilities in the interest of public safety and operate them as the City sees fit. Licensee hereby waives any claims it may have against the City for damages resulting from any such Force Majeure Event. SECTION 9 LIABILITY AND INDEMNIFICATION 9.1 LICENSEE SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL DAMAGES, INCLUDING, BUT NOT LIMITED TO, PROPERTY LOSS, PROPERTY DAMAGE, AND PERSONAL INJURY OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE NEGLIGENT ACT(S) OR OMISSION(S), MALFEASANCE, OR INTENTIONAL MISCONDUCT OF LICENSEE OR ITS DIRECTORS, OFFICERS, REPRESENTATIVES, AGENTS, SERVANTS, CONTRACTORS, EMPLOYEES, PATRONS, GUESTS, INVITEES, SPECIAL EVENT PARTICIPANTS, OR SUBLICENSEES. LICENSEE HEREBY EXPRESSLY RELEASES AND DISCHARGES CITY FROM ANY AND ALL LIABILITY FOR ANY DAMAGE, INCLUDING, BUT NOT LIMITED TO, PROPERTY DAMAGE OR LOSS AND/OR PERSONAL INJURY ARISING OUT OF OR IN CONNECTION WITH, DIRECTLY OR INDIRECTLY, THE OCCUPANCY OR USE OF THE PREMISES AND ANY AND ALL ACTIVITIES CONDUCTED THEREON SUSTAINED BY REASON OF THE OCCUPANCY OR USE OF SAID PREMISES UNDER THIS LICENSE AGREEMENT. 9.2 INDEMNIFICATION LICENSEE, AT NO COST TO THE CITY, AGREES TO AND DOES HEREBY DEFEND, INDEMNIFY, PROTECT, AND HOLD HARMLESS THE CITY AND THE , EMPLOYEES, AND SERVANTS (COLLECTIVELY, INDEMNITEES ) FOR, FROM, AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, JUDGMENTS, AND EXPENSES (INCLUDING, BUT NOT LIMITED TO, COURT COSTS, ATTORNEYS' FEES, AND COSTS OF INVESTIGATION), OF ANY NATURE, KIND, OR DESCRIPTION ARISING OR ALLEGED TO ARISE BY REASON OF INJURY TO OR DEATH OF ANY PERSON OR DAMAGE TO OR LOSS OF PROPERTY (1) RELATING TO THE USE OR OCCUPANCY OF THE PREMISES BY LICENSEE OR ANY OF ITS OFFICERS, REPRESENTATIVES, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, PATRONS, GUESTS, SUBLICENSEES, SPECIAL EVENT PARTICIPANTS, OR INVITEES; OR (2) BY REASON OF ANY OTHER CLAIM WHATSOEVER OF ANY PERSON OR PARTY OCCASIONED OR ALLEGED TO BE OCCASIONED IN WHOLE OR IN PART BY ANY ACT OR OMISSION ON THE PART OF LICENSEE OR ANY OF ITS OFFICERS, REPRESENTATIVES, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, PATRONS, GUESTS, SUBLICENSEES, SPECIAL EVENT PARTICIPANTS, OR INVITEES, OR OF ANY OTHER PERSON ENTERING UPON THE PREMISES WITH THE EXPRESS OR IMPLIED INVITATION OR PERMISSION OF LICENSEE; OR (3) BY ANY BREACH, VIOLATION, OR NONPERFORMANCE OF ANY COVENANT OF LICENSEE UNDER THIS LICENSE Mayfest, Inc. D/B/A The Trinity Collaborative, Inc. License Agreement Page 8 of 18 AGREEMENT (COLLECTIVELY, LIABILITIES ), EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUATABLE TO ANY ACT, OMISSION, NEGLIGENCE, BREACH OF CONTRACT, INTENTIONAL CONDUCT, VIOLATION OF STATUTE OR COMMON LAW, BREACH OF WARRANTY, PRODUCT DEFECT, STRICT PRODUCT LIABILITY, OR ANY OTHER ACT, OMISSION, OR CONDITION WHATSOEVER OF THE CITY OR ITS PROPERTY. 9.3 If any action or proceeding shall be brought by or against the City in connection with any such liability or claim, Licensee, on notice from the City, shall defend such action or proceeding at the City. 9.4 It is agreed with respect to any legal limitations now or hereafter in effect and affecting the validity or enforceability of the indemnification obligations under this Section 9, such legal limitations are made a part of the indemnification obligation and shall operate to amend the indemnification obligation to the minimum extent necessary to bring the provision into conformity with the requirements of such limitations, and as so modified, the indemnification obligation shall continue in full force and effect. 9.5 Licensee agrees to notify the City promptly upon the receipt of any claim or lawsuit brought in connection with any injury, death, or damages on the Premises. Licensee agrees to make its officers, representatives, agents, and employees available to the City, at all reasonable times, for any statements and case preparation necessary for the defense of any claims or litigation for which the City may be implicated hereunder. Licensee shall place language in its contracts with contractors and subcontractors that contractors shall notify the City as required by Licensee in this subsection. 9.6 Licensee shall require all of its subcontractors to include in their subcontracts liability and indemnification language in favor of the City in substantially the same form as above. SECTION 10 AUDIT 10.1 Licensee agrees that the City shall, until the expiration of three (3) years after the termination or expiration of this License Agreement, have access to and the right to examine any directly pertinent books, documents, papers, and records of Licensee involving transactions relating to this License Agreement. Licensee agrees that the City shall have access during normal working hours to all necessary Licensee facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. The City shall give Licensee reasonable advance notice of intended audits. 10.2 Licensee further agrees to include in any contractor and subcontractor agreements hereunder a provision to the effect that the contractor and subcontractors agree that the City shall, until the expiration of three (3) years after the expiration or termination of the contract or subcontract, have access to and the right to examine any directly pertinent books, documents, papers, and records of such contractor or subcontractor involving transactions of the contract or subcontract, and further that the City shall have access during normal working hours to all contractor and subcontractor facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this paragraph. The City shall give the contractor and subcontractor reasonable advance notice of intended audits. Mayfest, Inc. D/B/A The Trinity Collaborative, Inc. License Agreement Page 9 of 18 SECTION 11 CHARITABLE IMMUNITY Licensee agrees that if it is a charitable organization, corporation, entity, or individual enterprise having, claiming, or entitled to any immunity, exemption (statutory or otherwise), or limitation from and against liability for damage or injury to property or persons under the provisions of the Charitable Immunity and Liability Act of 1987, C.P.R.C. § 84.001 et seq., or other applicable law, that Licensee hereby expressly waives its right to assert or plead defensively any such immunity or limitation of liability as against City. A copy of documentation demonstrating nonprofit status is due annually to the address specified for the Park & Recreation Department in the notice provision of this License Agreement. SECTION 12 TERMINATION 12.1 This License Agreement may be terminated without cause by either party upon at least ninety (90) days written notice of such intent to terminate being delivered to the other party. 12.2 Gratuities. The City may terminate this License Agreement if it is found that gratuities in the form of entertainment, gifts, or otherwise were offered or given by Licensee or any agent or representative to any City official or employee with a view toward securing favorable treatment with respect to the awarding, amending, or making of any determinations with respect to the performance of this License Agreement. In the event this License Agreement is canceled by the City pursuant to this section, the City shall be entitled, in addition to any other rights and remedies, to recover from Licensee a sum equal in amount to the cost incurred by Licensee in providing such gratuities. 12.3 Fiscal Funding Out. Notwithstanding anything to the contrary, if for any reason, at any time during the term of the License Agreement, the Fort Worth City Council fails to appropriate funds sufficient for the City to fulfill its obligations under this License Agreement, the City may terminate the portion of the License Agreement regarding such obligations to be effective on the later of (i) ninety (90) terminate; or (ii) the last date for which funding has been appropriated by the Fort Worth City Council for the purposes set forth in this License Agreement. 12.4 Termination. 12.4.1 Prior to the effective date for expiration or termination of this License Agreement, Licensee shall promptly remove all of its personal property; provided, however, Licensee shall not be obligated to remove any fixtures. Licensee shall also repair any Licensee-caused damage to the Premises, including, but not limited to, any satisfaction of the Director. 12.4.2 If Licensee fails to comply with its obligations in this Section, the City may, at operty and otherwise repair the be due and payable to the City within thirty (30) calendar days of its delivery to Licensee; or (ii) following no less than thirty (30) calendar days prior written notice to Licensee, take and hold any Licensee personal property as the any remedy at law or in equity available to the City. If Licensee fails to surrender the Premises to the City following termination or expiration, all liabilities and obligations Mayfest, Inc. D/B/A The Trinity Collaborative, Inc. License Agreement Page 10 of 18 of Licensee hereunder shall continue in effect until such is surrendered. 12.4.3 Upon termination, all funds owed to the City shall be due and payable by the tenth (10th) calendar day after the effective date of termination, unless stated otherwise in this License Agreement. 12.5 Other Remedies. Any termination of this License Agreement as provided in this License Agreement will not relieve Licensee from paying any sum or sums due and payable to the City under this License Agreement that remain unpaid and due at the time of termination, including for any claim for damages then or previously accruing against Licensee under this License Agreement. Any such termination will not prevent the City from enforcing the payment of any such sums or claims for damages by any remedy provided for by law, or from recovering damages from Licensee for any default under the License Agreement. All the be construed to be cumulative, and not one of them is exclusive of the other. The City may pursue any or all such remedies or any other remedy or relief provided by law, whether or not stated in this License Agreement. SECTION 13 RIGHT OF ENTRY AND INSPECTION In licensing the Premises, the City does not relinquish the right to control the management of the Premises or the right to enforce all necessary and proper rules for the management and operation of the same. After receiving notice sent by the City at least 24 hours in advance, Licensee must permit the City or its agents, representatives, or employees to enter the Premises for the purposes of inspection; determining whether Licensee is complying with this License Agreement; maintaining, repairing, or altering the Premises; or any other purpose. During any inspection, the City may perform any obligations that the City is authorized or required to perform under the terms of this License Agreement or pursuant to its governmental duties under federal, state, or local laws, rules, or regulations. In the event of an emergency, no advance notice from the City is required. SECTION 14 LICENSES AND PERMITS Licensee shall, at its sole expense, obtain and keep in effect all licenses and permits necessary for its operations. SECTION 15 NOTICES All notices required or permitted under this License Agreement, except for notifications required to be given to a City Point of Contact or Special Event Point of Contact, may be given to a party by overnight courier (such as Federal Express or UPS) or by United States certified mail, return receipt requested, addressed to such party at the address stated below or to such other address as one party may from time-to- time notify the other in writing. Any notice so given shall be deemed to have been received when deposited in the United States mail so addressed with postage prepaid: CITY: LICENSEE City of Fort Worth Mayfest Inc DBA Trinity Collaborative, Inc. Park & Recreation Director Attn.: Iris Bruton 100 Fort Worth Trail (formerly Energy Way) 6115 Camp Bowie Fort Worth, Texas 76120 Fort Worth, Texas 76116 Mayfest, Inc. D/B/A The Trinity Collaborative, Inc. License Agreement Page 11 of 18 With copies to: City of Fort Worth Attn: Assistant City Attorney and Assistant City Manager 100 Fort Worth Trail (formerly Energy Way) Fort Worth, Texas 76102 Or to such other address as such party may hereafter designate by notice in writing addressed and mailed or delivered to the other party hereto. SECTION 16 NON-DISCRIMINATION 16.1 Licensee shall not engage in any unlawful discrimination based on race, creed, color, national origin, sex, age, religion, disability, marital status, citizenship status, sexual orientation, or any other prohibited criteria, and Licensee represents and warrants that to the extent required by applicable laws, it is an equal opportunity employer and shall comply with all applicable laws and regulations in any employment decisions. 16.2 In the event of Licensee noncompliance with the nondiscrimination clauses of this License Agreement, if such noncompliance is not cured within ninety (90) calendar days of notice of such noncompliance, this License Agreement may be canceled, terminated, or suspended in whole or in part, and Licensee may be debarred from further agreements with the City. SECTION 17 VENUE AND CHOICE OF LAW Licensee and the City agree that this License Agreement shall be construed in accordance with the laws of the State of Texas. If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this License 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. SECTION 18 THIRD-PARTY RIGHTS AND ASSIGNMENTS 18.1 The provisions and conditions of this License Agreement are solely for the benefit of the the City and Licensee, and any lawful assigns or successors of City or Licensee, and are not intended to create any rights, contractual or otherwise, to any other person or entity. 18.2 Licensee agrees that it will not subcontract or assign all or any part of its rights, privileges, or duties hereunder without the prior written consent of the City, and any attempted subcontract or assignment of same without such prior consent of the City shall be void. SECTION 19 BINDING COVENANTS Subject to the limitations contained herein, the covenants, conditions, and agreements made and entered into by the parties hereunder are declared to be for the benefit of and binding on their respective successors, representatives, and permitted assigns, if any. Mayfest, Inc. D/B/A The Trinity Collaborative, Inc. License Agreement Page 12 of 18 SECTION 20 INDEPENDENT CONTRACTOR It is expressly understood and agreed that Licensee and its employees, representatives, agents, servants, officers, contractors, subcontractors, and volunteers shall operate as independent contractors as to all rights, privileges, and work performed under this License Agreement, and not as agents, representatives, or employees of the City. Subject to and in accordance with the conditions and provisions of this License Agreement, Licensee shall have the exclusive right to control the details of its operations and activities and shall be solely responsible for the acts and omissions of its employees, representatives, agents, servants, officers, contractors, subcontractors, and volunteers. Licensee acknowledges that the doctrine of respondeat superior shall not apply as between the City and its officers, representatives, agents, servants, and employees, and Licensee and its employees, representatives, agents, servants, officers, contractors, subcontractors, and volunteers. Licensee further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between the City and Licensee. It is further understood that the City shall in no way be considered a co-employer or a joint employer of Licensee or any employees, representatives, agents, servants, officers, contractors, subcontractors, or volunteers of Licensee. Neither Licensee nor any officers, agents, servants, employees or subcontractors of Licensee shall be entitled to any employment benefits from the City. Licensee shall be responsible and liable for any and all payment and reporting of taxes on behalf of itself and any of employees, representatives, agents, servants, officers, contractors, subcontractors, and volunteers. SECTION 21 AMENDMENTS, CAPTIONS, AND INTERPRETATION 21.1 Except as otherwise provided in this License Agreement, the terms and provisions of this License Agreement may not be modified or amended except upon the written consent of both the City and Licensee. 21.2 Captions and headings used in this License Agreement are for reference purposes only and shall not be deemed a part of this License Agreement. 21.3 The parties acknowledge that each party, and if it so chooses its counsel, have had the opportunity to review and revise this Agreement and that the normal rule of contract construction to the effect that any ambiguities are resolved against the drafting party shall not be employed in the interpretation of this Agreement or the exhibits attached hereto and incorporated herein. SECTION 22 GOVERNMENTAL POWERS AND IMMUNITIES It is understood that by execution of this License Agreement the City does not waive or surrender any of its governmental powers or immunities. SECTION 23 AUTHORIZATION, COUNTERPARTS, AND ELECTRONIC SIGNATURES 23.1 by Licensee to execute this License Agreement and that all representations made herein with regard to correct. 23.2 This License Agreement may be executed in several counterparts, each of which will be Mayfest, Inc. D/B/A The Trinity Collaborative, Inc. License Agreement Page 13 of 18 deemed an original, but all of which together will constitute one and the same instrument. A signature received via facsimile or electronically via email shall be as legally binding for all purposes as an original (e.g. via pdf file, email, or facsimile transmission) of an original signature, or signatures electronically inserted via software such as Adobe Sign. SECTION 24 SEVERABILITY AND NO WAIVER 24.1 It is agreed that in the event any covenant, condition, or provision herein contained is held to be invalid by any court of competent jurisdiction, the invalidity of such covenant, condition, or provision shall in no way affect any other covenant, condition, or provision of this License Agreement. 24.2 The failure of either party to insist upon the performance of any term or provision of this right to insist upon performance or to assert any such right on any future occasion. SECTION 25 COMPLIANCE WITH LAWS 25.1 This License Agreement is subject to all applicable federal, state and local laws, ordinances, rules, and regulations, including, but not limited to, a ordinances, as amended. 25.2 If City notifies Licensee or any of its officers, agents, employees, contractors, subcontractors, licensees, volunteers, or invitees of any violation of such laws, ordinances, rules, or regulations, Licensee shall immediately desist from and correct the violation. SECTION 26 SOLE AGREEMENT This License Agreement, including any exhibits attached hereto and any documents incorporated herein, contains the entire understanding and agreement between the City and Licensee as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with any provision of this License Agreement. SECTION 27 IMMIGRATION AND NATIONALITY ACT Licensee must verify the identity and employment eligibility of its employees who perform work under this Agreement, including completing the Employment Eligibility Verification Form (I-9). Upon request by the City, Licensee must provide City with copies of all I-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement. Licensee must adhere to all federal and state laws and establish appropriate procedures and controls so that no services will be performed by any Licensee employee who is not legally eligible to perform such services . LICENSEE MUST INDEMNIFY THE CITY AND HOLD THE CITY HARMLESS FROM ANY PENALTIES, LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY INST LICENSEES. The City, upon written notice to Licensee, will have the right to immediately terminate this Agreement for violations of this provision by Licensee. Mayfest, Inc. D/B/A The Trinity Collaborative, Inc. License Agreement Page 14 of 18 SECTION 28 BOYCOTTING ISRAEL PROHIBITED If Licensee has fewer than 10 employees or this Agreement is for less than $100,000, this section does not apply. Licensee acknowledges that in accordance with Chapter 2271 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 ve the meanings ascribed to those terms in Section 2271 of the Texas Government Code. To the extent that Chapter 2271 of the Government Code is applicable to this Agreement, by signing this Agreement, Licensee certifies that Licensee the City that Licensee: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the Agreement. SECTION 29 PROHIBITION ON BOYCOTTING ENERGY COMPANIES If Licensee has fewer than 10 employees or this Agreement is for less than $100,000, this section does not apply. Licensee acknowledges that in accordance with Chapter 2276 of the Texas Government Code, the City is prohibited from entering into a contract for goods or services unless the contract contains a written verification from the company that it: (1) does not boycott energy companies; and (2) will not boycott energy c s ascribed to those terms in Chapter 2276 of the Texas Government Code. To the extent that Chapter 2276 of the Government Code is applicable to this Agreement, verification to the City that Licensee: (1) does not boycott energy companies; and (2) will not boycott energy companies during the term of this Agreement. SECTION 30 PROHIBITION ON DISCRIMINATION AGAINST FIREARM AND AMMUNITION INDUSTRIES If Licensee has fewer than 10 employees or this Agreement is for less than $100,000, this section does not apply. Licensee acknowledges that in accordance with Chapter 2274 of the Texas Government Code, the City is prohibited from entering into a contract for goods or services 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 ,s ascribed to those terms in Chapter 2274 of the Texas Government Code. To the extent that Chapter 2274 of the Government Code is applicable to this Agreement, by signing this Agreement, Licensee certifies that Licensee signature provides written verification to the City that Licensee: (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. (signature page following) Mayfest, Inc. D/B/A The Trinity Collaborative, Inc. License Agreement Page 15 of 18 IN WITNESS WHEREOF, the parties have executed this License Agreement in multiples to be effective on the date set forth in Section3. City: By: ___________________________ Name: Dana Burghdoff Title: Assistant City Manager Date: ___________________________ Licensee: By: ___________________________ Name: Iris Bruton Title: Executive Director FOR CITY OF FORT WORTH INTERNAL PROCESSES: Approval Recommended: By: ______________________________ Name: Dave Lewis Title: Director Park & Recreation Department By: ______________________________ Name: Joel McKnight Title: Assistant Director Park & Recreation Department Approved as to Form and Legality: By: ______________________________ Name: Trey Qualls Title: Assistant City Attorney Contract Authorization: M&C: 24-0304 Form 1295: 2022-867822 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: ______________________________________ Name: Clinton Wyatt Title: District Superintendent Park & Recreation Department City Secretary: By: ______________________________ Name: Jannette S. Goodall Title: City Secretary Mayfest, Inc. D/B/A The Trinity Collaborative, Inc. License Agreement Page 16 of 18 EXHIBIT A = PREMISES Mayfest, Inc. D/B/A The Trinity Collaborative, Inc. License Agreement Page 17 of 18 EXHIBIT B INSURANCE Insurance. Licensee must provide the 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: 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 Licensee or its employees, agents, or representatives in the course of providing S will be any vehicle owned, hired, and non-owned. (c) Workers Compensation: 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 (d) Professional Liability (Errors & Omissions): Applicable N/A $1,000,000 - Each Claim Limit $1,000,000 - Aggregate Limit Professional Liability coverage may be provided through an endorsement to the Commercial General Liability (CGL) policy or by a separate policy specific to Professional E&O. Either is acceptable if coverage meets all other requirements. Coverage must be on a claims-made basis and maintained for the duration of the contractual agreement and for two (2) years following completion of services provided. An annual certificate of insurance must be submitted to the City to evidence coverage. 2. General Requirements (a) The commercial general liability and automobile liability policies must name the City as an additional insured thereon, as its interests may appear. The term the City includes its employees, officers, officials, agents, and volunteers Mayfest, Inc. D/B/A The Trinity Collaborative, Inc. License Agreement Page 18 of 18 in respect to the contracted services. (b) must include a Waiver of Subrogation (Right of Recovery) in favor of the City. (c) A minimum of at least t in limits of coverage must be provided to the City. At least t 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 the City to request required insurance documentation will not constitute a waiver of the insurance requirement. (f) Certificates of insurance evidencing that Licensee has obtained all required insurance will be delivered to the City prior to Licensee proceeding with any work pursuant to this Agreement. 1/21/25, 2:57 PM CITY COUNCIL AGENDA M&C Review Official site Create New From This M&C DATE: 4/9/2024 REFERENCE M&C 24- LOG NO.: 0304 NAME: CODE: C TYPE: NON- PUBLIC CONSENT HEARING: F� RT �'�0 RT I I -�~- 80THETRINITYCOLLABORATIVEINC- MAYFEST NO SUBJECT: (ALL) Authorize the Execution of a New License Agreement with Mayfest, Inc., dba The Trinity Collaborative, Inc., for the Use of a Portion of Trinity Park for the Annual Mayfest Event RECOMMENDATION: It is recommended that the City Council authorize the execution of a new License Agreement with Mayfest, Inc., dba The Trinity Collaborative, Inc., for the use of a portion of Trinity Park for the annual Mayfest event. DISCUSSION: Mayfest has been a popular and successful event in Trinity Park since 1973. Mayfest, Inc., is a Texas non-profit corporation doing business as The Trinity Collaborative, Inc., organized for the sole purpose of presenting Mayfest, an event that has given back more than $7.5 million to benefit the City of Fort Worth (COFW) and its citizens. Mayfest attendance typically exceeds 200,000 persons. Historically, the COFW received an annual rental fee of twenty percent of net operating profits from the Mayfest event. These proceeds were used to support the Park & Recreation Department (PARD) programs, equipment purchases, and facility improvements. The Trinity Collaborative, Inc. disbursed the other eighty percent of net operating profits to the Junior League of Fort Worth and Streams and Valleys, Inc., who in turn support the community through various projects and support programs. This rental structure was continued in the most recent license agreement from 2009, authorized by Mayor and Council (M&C) Communication C-23491, the same being City Secretary Contract (CSC) Number 38500. On May 16, 2011, the parties amended CSC No. 38500 to convert the annual rental fee from a percentage rental fee to a fixed dollar rental fee, to allow both parties more certainty for planning and budgeting purposes. Under the terms of the amended agreement, The Trinity Collaborative, Inc. paid an annual base rent amount ($25,000 per year in the initial term; and $26,250 per year beginning with the first renewal) plus ten percent of the net operating profits from the Mayfest event (collectively, the License Fee), authorized by M&C-24777, the same being CSC No. 38500-A1. The funds paid to the COFW are appropriated into the PARD General Capital Project Fund each year and allocated to make improvements to Trinity Park, primarily within the festival site. Past improvements have included park infrastructure, shelters, playground improvements, and portable restroom enclosures. While these improvements are targeted at enhancing the festival site and improving the efficiency of the festival set-up and operation, the park improvement benefits Fort Worth residents year-round. For the five years prior to COVID-19 (2015 through 2019) the PARD received the following amounts from Mayfest events: $131,250.00 in Fixed Lease Fees; $135,255.00 in 10\% Net Profits; and $173,342.00 in Mayfest Grants (2015-2018). In 2019, there were no Mayfest grants awarded, but The Trinity Collaborative, Inc. did "pass-through" a$30,000.00 grant from the Amon G. Carter Foundation. These funds were used to install a permanent enclosure for one accessible portable restroom unit. The festival was cancelled in 2020 and 2021 due to the COVID-19 pandemic. These cancellations resulted in financial losses which had an impact on the ongoing operations of the festival. In 2022, the apps.cfwnet.org/council_packet/mc review.asp?ID=32011&councildate=4/9/2024 1/2 1/21/25, 2:57 PM M&C Review PARD received a request from The Trinity Collaborative, Inc. for the Mayfest license fee to not be assessed. On April 26, 2022, the City Council found a public purpose and approved a one-time reduction to the License Fee totaling $262.50, in order to facilitate the success of the first post-COVID-19 Mayfest event. On April 29, 2024, CSC No. 38500 will expire, and it is the collective desire of the parties to enter into a new license agreement effective April 30, 2024, and expiring on April 29, 2034, with the option to renew for two successive five-year terms for the annual Mayfest event. The license fee for the initial term shall be a base rent of Twenty-Six Thousand Five Hundred Dollars ($26,500.00) plus ten percent of the net operating profits from the annual Mayfest events. Beginning with the first renewal, the amount of the base rent shall be Twenty-Nine Thousand One Hundred and Fifty Dollars ($29,150.00). The portion of the license fee consisting of the ten percent of net operating profits from Mayfest events shall remain the same during any renewal periods. The Trinity Collaborative, Inc. will not be charged any additional fees by the PARD for the use of the park, facilities, or services provided by the PARD associated with the Mayfest event. The Trinity Collaborative, Inc., will provide the necessary insurance as required by the COFW. Either party may terminate the Agreement without cause upon at least 90 days' written notice to the other during the initial term or any renewal term. Trinity Park is located in COUNCIL DISTRICT 9, and Mayfest is a city-wide family-oriented event. FISCAL INFORMATION/CERTIFICATION: The Director of Finance certifies that upon approval of the above recommendation and execution of the agreement, funds will be deposited into the Mayfest Lease Agreement programmable project within the General Capital Projects Fund. The Park & Recreation Department (and Financial Management Services) is responsible for the collection and deposit of funds due to the City. Submitted for City Manager's Office by_ Originating Department Head: Additional Information Contact: ATTACHMENTS Jesica L. McEachern (5804) Richard Zavala (5704) 80THETRINITYCOLLABORATIVEINC-MAYFEST Updated FID.xlsx (CFW Internal) FORM 1295 CERTIFICATE MAYFEST 2022.pdf (CFW Internal) apps.cfwnet.org/council_packet/mc review.asp?ID=32011&councildate=4/9/2024 2/2