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HomeMy WebLinkAbout065399 - Construction-Related - Contract - ESME Realty LLCCity Secretary Number: 65399 AGREEMENT FOR USE OF AUTOCAD SHAPE FILES FOR THE SMALL-SCALE INFRASTRUCTURE PROGRAM SSIP-26-0009, Project No. 106913 This AGREEMENT FOR USE OF AUTOCAD SHAPE FILES ("Agreement") is made and entered into by and between the City of Fort Worth ("City"), a home -rule municipal corporation of the State of Texas, and ESME Realty LLC, ("Developer"), each acting by and through its duly authorized representative. City and Developer are referred to herein individually as a "party" and collectively as the "parties." WHEREAS, Developer is using the City's Small -Scale Infrastructure Projects program for the design and construction of small-scale and infill-type public infrastructure improvement projects ("SSIP"); and WHEREAS, the City's Consultant, Baird, Hampton & Brown, Inc. ("Consultant"), is providing the engineering design for the public infrastructure; and WHEREAS, the City's Surveyor, Burns Surveying, LLC. ("Surveyor"), has created certain AutoCAD shape files in performing its survey for the City; and WHEREAS, in order to reduce Developer's costs, Developer desires to have Surveyor provide the City's Consultant with the Surveyor's AutoCAD shape files of Developer's property for the City's Consultant to use in designing the following Project: Sandy LN 1 St Light ("Project"); SSIP Record # 26-0009; and WHEREAS, the City, as a precondition for granting Developer's request, requires certain contractual protections due to Developer's choice to have City's Consultant use and rely upon Surveyor's AutoCAD shape files to design the Project; NOW, THEREFORE, in consideration of the covenants and agreements contained in this Agreement, City and Developer hereby agree as follows: SECTION 1 INCORPORATION OF RECITALS The foregoing recitals are true and correct, form the basis of this Agreement, and are incorporated into this Agreement by reference. OFFICIAL RECORD SECTION 2 CITY SECRETARY USE OF AUTOCAD SHAPE FILES; CONSIDERATION FT. WORTH, Tx 2.1 Developer, upon acceptance of the conditions in this Section 2, may elect to have AGREEMENT FOR USE OF AUTOCAD SHAPE FILES FOR THE SMALL-SCALE INFRASTRUCTURE PROGRAM REVISED 05/15/2026 PAGE 1 OF 7 the City's Consultant use the Surveyor's AutoCAD shape files for the Project. 2.2 Developer understands and agrees that if any errors occur as a result of City's Consultant's use of the AutoCAD shape files or any errors or omissions in the AutoCAD shape files, Developer may incur and be solely responsible for payment of additional costs related to the design and construction of the Project's public infrastructure. 2.2 Developer shall be solely responsible for confirming the accuracy, completeness, currency, and/or suitability of the Surveyor's AutoCAD shape files on this Project. Developer acknowledges that at all times relevant to this Agreement, Developer has the option to hire its own surveyor to provide the AutoCAD shape files. Developer understands and agrees that, as a condition precedent to the City's allowing Developer's use of the Surveyor's AutoCAD shape files on the Project, that Developer hereby releases City from any liability for Developer's decision to provide City's Consultant the Surveyor's AutoCAD shape files for the Proiect. SECTION 3 LIABILITY AND INDEMNIFICATION 3.1 INDEMNIFICATION —TO THE FULLEST EXTENT PERMITTED BYLAW AND NOTWITHSTANDING ANY CLAUSE OR PROVISIONS IN THIS AGREEMENT OR ANY OTHER APPLICABLE AGREEMENT TO THE CONTRARY, DEVELOPER, AT ITS SOLE COST AND EXPENSE, AGREES TO AND DOES HEREBY INDEMNIFY, PROTECT, AND HOLD HARMLESS T HE CITY AND THE CITY'S OFFICERS, AGENTS, REPRESENTATIVES, EMPLOYEES, AND SERVANTS FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, DAMAGES, LOSSES, LIENS, CAUSES OFACTION, SUITS, JUDGMENTS AND EXPENSES CAUSED BY CITY CONSULTANT'S USE OF SURVEYOR'S AUTOCAD SHAPE FILES IN THE DESIGN OF THE PUBILC INFRASTRUCTURE FOR THE ENGINEERING DESIGN FOR THE PROJECT. 3.2 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, 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. 3.3 Developer agrees to notify City promptly upon the receipt of any claim or lawsuit brought in connection with any injury, death, or damages related to the use of the AutoCAD shape files in the preparation of the engineering design for the Project. Developer agrees to make its officers, representatives, agents, and employees available to City, at all reasonable times, for any statements and case preparation necessary for the defense of any claims or litigation arises pursuant to this Agreement or City's Consultant's use of Surveyor's AutoCAD shape files. AGREEMENT FOR USE OF AUTOCAD SHAPE FILES FOR THE SMALL-SCALE INFRASTRUCTURE PROGRAM REVISED 05/15/2026 PAGE 2 OF 7 SECTION 4 RIGHT TO AUDIT Developer agrees that the City shall, until the expiration of three (3) years after acceptance by the City of the public infrastructure for the Project, have access to and the right to examine and copy any directly pertinent books, digital files, documents, papers, and records involving transactions relating to this Agreement. The files requested by the City shall be delivered in a format agreed upon by the City, and to a location of the City's choosing, during normal working hours, for the City to conduct compliance audits. The City shall not be responsible for associated costs. The City shall give Developer reasonable advance written notice of intended audits, but no less than ten (10) business days. SECTION 5 TERMINATION 5.1 Termination for Convenience. This Agreement may be terminated without cause by the City upon delivery of written notice to Developer. This Agreement may be terminated without cause by the Developer thirty (30) days after delivery to the City and all other parties of written notice of such intent to terminate. 5.2 Other Remedies. Any termination of this Agreement as provided in this Agreement will not relieve any party from paying any sum or sums due and payable to another party under this Agreement that remains unpaid and due at the time of termination, or any claim for damages then or previously accruing against a party pursuant to this Agreement. Any such termination will not prevent any parry from enforcing the payment of any such sum or sums or claim for damages by any remedy provided for by law, or from recovering damages from another party for any default under the Agreement. All rights, options, and remedies under this Agreement will be construed to be cumulative, and not one of them is exclusive of the other. Any party may pursue any or all such remedies or any other remedy or relief provided by law, whether stated in this Agreement or not. No such termination shall relieve any party from any obligation it may have to the another party hereunder and any parry may pursue all rights and remedies or relief provided by law, whether or not stated in this Agreement. SECTION 6 NOTICES All notices required or permitted under this Agreement may be given to a party personally or by mail, addressed to such parry at the address stated below or to such other address as a party may from time to time notify the other parties 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: DEVELOPER: City of Fort Worth Salvador Garcia Development Services Department ESME Realty LLC Attn: Small -Scale Infrastructure Program 3720 Star Gazer LN 100 Fort Worth Trail Forest Hill, TX 76140 AGREEMENT FOR USE OF AUTOCAD SHAPE FILES FOR THE SMALL-SCALE INFRASTRUCTURE PROGRAM REVISED 05/15/2026 PAGE 3 OF 7 76107 Fort Worth, Texas 76102 With copies to: City Attorney's Office City of Fort Worth 100 Fort Worth Trail Fort Worth, Texas 76102 and City Manager's Office City of Fort Worth 100 Fort Worth Trail Fort Worth, Texas 76102 or to such other address as a party may hereafter designate by notice in writing addressed and mailed or delivered to the other parties hereto. SECTION 7 VENUE AND CHOICE OF LAW The parties agree that this 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 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 8 THIRD -PARTY RIGHTS AND ASSIGNMENTS 8.1 The provisions and conditions of this Agreement are solely for the benefit of the parties and any lawful assign or successor of the parties, and are not intended to create any rights, contractual or otherwise, to any other person or entity. 8.2 No party will subcontract or assign all or any part of its rights, privileges or duties hereunder without the prior written consent of the other parties, and any attempted subcontract or assignment of same without such prior consent of the other parties shall be void. SECTION 9 INDEPENDENT CONTRACTOR It is expressly understood and agreed that Developer and its employees, representative, agents, servants, officers, contractors, subcontractors, and volunteers shall operate as independent contractors as to all rights and privileges and duties performed under this Agreement, and not as agents, representatives or employees of the City. Subject to and in accordance with the conditions and provisions of this Agreement, Developer shall have the exclusive right to control the details AGREEMENT FOR USE OF AUTOCAD SHAPE FILES FOR THE SMALL-SCALE INFRASTRUCTURE PROGRAM REVISED 05/15/2026 PAGE 4 of 7 of their operations and activities and be solely responsible for the acts and omissions of its employees, representative, agents, servants, officers, contractors, subcontractors, and volunteers. The doctrine of respondeat superior shall not apply as between the City and its officers, representatives, agents, servants and employees, and Developer and its employees, representative, agents, servants, officers, contractors, subcontractors, and volunteers. Nothing herein shall be construed as the creation of a partnership or joint enterprise between any of the parties. It is further understood that the City shall in no way be considered a Co -employer or a Joint employer of the Developer or any of Developer's employees, representative, agents, servants, officers, contractors, subcontractors, and volunteers. Neither Developer nor any of its officers, agents, servants, employees, contractors, or subcontractors shall be entitled to any employment benefits from the City. Developer shall be responsible and liable for payment and reporting of taxes on behalf of itself, and any of its employees, representative, agents, servants, officers, contractors, subcontractors, and volunteers. SECTION 10 AMENDMENTS, CAPTIONS, AND INTERPRETATION 10.1 Except as otherwise provided in this Agreement, the terms and provisions of this Agreement may not be changed or amended except upon execution of a written amendment to this Agreement executed by the parties and filed with the City Secretary's Office. 10.2 Captions and headings used in this Agreement are for reference purposes only and shall not be considered a part of this Agreement. 10.3 If any dispute over the meaning or application of any provision of this Agreement, this Agreement shall be interpreted fairly and reasonably, and neither more strongly for nor against any parry, regardless of the actual drafter of this Agreement. SECTION 11 GOVERNMENTAL POWERS AND IMMUNITIES It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers or immunities, except as provided by law, including, but not limited to, Texas Local Government Code § 271.152. SECTION 12 AUTHORIZATION, COUNTERPARTS, AND ELECTRONIC SIGNATURES 12.1 By executing this Agreement, Developer's agent affirms that they are authorized to execute this Agreement and that all representations made herein regarding their identity, address, and legal status are true and correct. 12.2 This Agreement may be executed in several counterparts, each of which will be deemed an original, but all of which together will constitute the same instrument. A signature received via facsimile or electronically via email shall be as legally binding for all purposes as an AGREEMENT FOR USE OF AUTOCAD SHAPE FILES FOR THE SMALL-SCALE INFRASTRUCTURE PROGRAM REVISED 05/15/2026 PAGE 5 OF 7 original signature. SECTION 13 SEVERABILITY AND NO WAIVER 13.1 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 does not materially prejudice any party in connection with the right and obligations contained in the valid covenants, conditions or provisions of this Agreement. 13.2 The failure of any party to insist upon the performance of any term or provision of this Agreement or to exercise any right granted hereunder shall not constitute a waiver of that party's right to insist upon performance or to assert any such right on any future occasion. SECTION 14 SOLE AGREEMENT This Agreement, including any exhibits attached hereto and any documents incorporated herein, contains the entire understanding and agreement between the parties, and any lawful assign and successor of a parry, 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 Agreement. SECTION 15 REVIEW OF COUNSEL Each party, and if they so choose, their attorneys, have had the opportunity to review and comment on this document; therefore any rule of contract construction or interpretation that would normally call for the document to be interpreted as against the drafting party shall not apply in interpretation of this Agreement, and each section, portion, and provision of this Agreement shall be construed solely on the basis of the language contained therein, regardless of who authored such language. (SIGNATURES ON FOLLOWING PAGES) AGREEMENT FOR USE OF AUTOCAD SHAPE FILES FOR THE SMALL-SCALE INFRASTRUCTURE PROGRAM REVISED 05/15/2026 PAGE 6 OF 7 IN WITNESS WHEREOF, the parties have executed this to be effective on the date signed by the City's Assistant City Manager. CITY OF FORT WORTH 00� Jesica L. McEachern Assistant City Manager Date: 06/18/2026 Recommended by: Dalton Harrell (Jun 11, 2026 10:03:25 CDT) D.J. Harrell Director, Development Services Department APPROVED AS TO FORM AND LEGALITY: ZMr� Stephen Hines (June, 2026 10:10:34 CDT) Stephen M. Hines Senior Assistant City Attorney pO�ny fORt�Odd ATTEST: .a. %a .l�Smx+aQQQnnEXaSo Jannette S. Goodall City Secretary M&C: N/A Date: N/A Form 1295: N/A Contract Compliance Manager: By signing, I acknowledge that I am the person responsible for the monitoring and administration of this contract, including all performance and reporting requirements. Christ' n Harper (May 29, 2026 13:51:12 CDT) Name: Christian Harper Title: Contract Services Administrator DEVELOPER ESME Realty LLC Salvador Garcia (May 29, 202 3:30:42 CDT) Salvador Garcia Owner Date: 05/29/2026 OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX AGREEMENT FOR USE OF AUTOCAD SHAPE FILES FOR THE SMALL- CALE IN RA RUCT RE PROGRAM REVISED 05/15/2026 PAGE 7 OF 7