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HomeMy WebLinkAbout065769 - General - Contract - Forest Park Rides, Inc.CSC No. 65769 LICENSE AGREEMENT BETWEEN THE CITY OF FORT WORTH AND FOREST PARK RIDES, INC. This LICENSE AGREEMENT ("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, acting by and through its duly authorized Assistant City Manager ("City"), and FOREST PARK RIDES, INC., a Texas nonprofit corporation, ("Licensee"). City and Licensee are herein referred to individually as a ("Party") and collectively as the ("Parties"). WHEREAS, the City is the owner of certain tracks of land known as Trinity Park located at 2104 University Drive, Fort Worth, Texas 76107 and Forest Park located at 1500 Colonial Parkway, Fort Worth, Texas 76110 (collectively the "Premises"); WHEREAS, since November 1, 2006 the City and Licensee have been parties to a series of agreements authorizing Licensee to use portions of the Premises for the purpose of providing a miniature train ride and food and beverage concessions for the enjoyment of the public within Trinity Park and Forest Park (the "Program"), the same being Fort Worth City Secretary Contract ("CSC") number 37950, as amended and renewed; WHEREAS, on May 14, 2024, the Fort Worth City Council approved M&C 24-0431, which authorized the City to enter into a new license agreement for the continuation of the Program; WHEREAS, all sums received under this agreement by the City shall be expended by the Park & Recreation Department ("PARD") to carry out departmental functions and purposes as directed by the PARD Director or his/her designee ("Director"); and 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 with a PARD representative. Licensee's taking possession of the Premises shall be conclusive evidence of its receipt 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. Licensee agrees that Premises is not prepared by the City for use as a miniature train course and may contain hazardous conditions that are obvious or latent defects that could result in injury to Program participants. Licensee assumes the risk of injury to Licensee and Program participants for use of the Premises for Licensee's Program. The City makes no warranty that the Premises are suitable for Licensee's intended use or Program. OFFICIAL RECORD CITY SECRETARY Forest Park Rides, Inc. License Agreement FT. WORTH, TX Page 1 of 17 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 the Program and no other purposes. 2.2 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. 2.3 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 the City's sole discretion, may be dangerous or harmful to Program participants or the Premises. 2.4 Licensee may not use any part of the Premises for any use or purpose that violates any 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. 2.5 Licensee understands and agrees that the parking areas in the parks are not for the exclusive use of the Licensee or Program participants and that the City and patrons of the parks may use the parking spaces at any time. 2.6 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 Licensee's use of the Premises as provided herein. 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. SECTION 3 TERM OF LICENSE 3.1 Term. The initial term of this Agreement is for ten (10) years ("Initial Term"), unless terminated earlier in accordance with this Agreement. The Initial Term shall begin on January 1, 2024 ("Effective Date"). 3.2 Renewals. This Agreement may be renewed for two (2) successive five-year periods by mutual written agreement (each a "Renewal Term"). 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 Forest Park Rides, Inc. License Agreement Page 2 of 17 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 the following net operating profits to the City ("License Fee"): a. Train revenue i. 15% of gross receipts from $0 - $150,000.00 ii. 20% of gross receipts from $150,000.01 - $350,000.00 iii. 25% of gross receipts from $350,000.01 thereafter b. Food concession and souvenir stand 15% of gross receipts 4.2 The License Fee and monthly revenue report will be due no later than the 15th of each month. Payment 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 or to provide a monthly revenue report shall constitute a breach of this License Agreement. SECTION 5 DUTIES AND RESPONSIBILITIES 5.1 In addition to any other duties and responsibilities set forth in this License Agreement, Licensee shall furnish, at Licensee's sole expense, all personnel, supervision, training, equipment, tools, materials, supplies, utilities, and other items necessary to provide, operate, manage, and promote the Program each year. Pursuant to this general obligation, Licensee shall, at its sole expense: 5.1.1 Provide ground maintenance and janitorial services within and around the Premises and within a five foot radius of the railroad track. 5.1.2 Provide collection and proper disposal of trash, garbage, litter, and debris. 5.1.3 Operate the train on all operating days March through December weather permitting, excluding holidays. However, Licensee is strongly encouraged to operate during all non -school days. 5.1.4 Operate food and concession stand, permanent or temporary in Trinity Park March through December on all operating days, during normal park hours. 5.1.5 Maintain and furnish all required health permits and verify concessionaires have the required health permits for their operations. 5.1.6 Provide monthly revenue reports. All fees including ticket prices and concession fees must be approved by the PARD Director or his/her Designee. 5.1.7 Provide all maintenance for the two bridges that are part of the train ride, as further illustrated in Exhibit A, to include any necessary inspections. 5.1.8 Should this Agreement and/or any subsequent executed agreement terminate due to default, Licensee shall execute a "quit claim deed" for two bridges that are part of the train ride. 5.1.9 Comply with any and all policies, rules, and regulations governing the use of the Forest Park Rides, Inc. License Agreement Page 3 of 17 Premises. The City will provide a copy of any such policies, rules, and regulations within a reasonable time after request by the Licensee. 5.1.10 Immediately report any maintenance or repair needs to the Park Operations District Superintendent of the Premises. 5.1.11 Abide by the insurance requirements set forth in Exhibit B, which is attached hereto and incorporated herein for all purposes. 5.1.12 Designate a point of contact for Program administration and reporting requirements ("Program Point of Contact"). The Program Point of Contact shall be: Mary Talley Forest Park Rides, Inc. Phone: 817-875-7338 Email: marytalleyl@aol.com 5.1.13 Address complaints related to the Program with 24 hours of notification by the City. 5.2 The City shall: 5.2.1 Provide, at its sole expense, utilities such as water, sewer, electricity within one year of agreement execution for Licensee's intended use, estimated at $350,000.00 for electricity and $75,000.00 for water. PARD will request PAYGO funding in future year to pay for these utility expenses, in exchange, Licensee will execute a quit claim deed for the two bridges that are part of the train ride, effective only at the termination of this Agreement and/or any subsequent executed agreement. 5.2.2 Approve all fees, including ticket prices and concession fees. 5.2.3 Designate a City employee to serve as the point of contact for Program administration and reporting requirements ("City Point of Contact"). The City Point of Contact shall be: Clinton Wyatt, District Superintendent Park Operations Office: 817-391-5763 Email: Clinton.wyatt@fortworthtexas.gov 5.2.4 As soon as reasonably practical, notify Licensee, through its Program Point of Contact, of any closure of the Premises. The City will notify Licensee prior to scheduling events which may interfere with the Program schedule. 5.2.5 Notify Licensee, through its Program Point of Contact, of all complaints received related to the Program. SECTION 6 LIENS 6.1 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 Forest Park Rides, Inc. License Agreement Page 4 of 17 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 Licensee, at Licensee's own expense, shall keep the Premises and maintain all 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 furnishings by any act of Licensee or any of Licensee's officers, representatives, servants, employees, agents, invitees, 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 Licensee upon Licensee's receipt of a written invoice from the City. SECTION 8 FORCE MAJEURE 8.1 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; 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 party's reasonable control (collectively, "Force Majeure Event"), the obligations so affected by such Force Majeure Event will be suspended only during the continuance of Forest Park Rides, Inc. License Agreement Page 5 of 17 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, PROGRAM 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 CITY'S OFFICERS, REPRESENTATIVES, AGENTS, 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, PROGRAM 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, PROGRAM 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 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 Forest Park Rides, Inc. License Agreement Page 6 of 17 any such liability or claim, Licensee, on notice from the City, shall defend such action or proceeding at Licensee's expense by or through attorneys reasonably satisfactory to theCity. 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 subcontract's 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. SECTION 11 CHARITABLE IMMUNITY 11.1 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 this organization's nonprofit status is due annually to the address specified for the Park & Recreation Department in the notice provision of Forest Park Rides, Inc. License Agreement Page 7 of 17 this License Agreement. SECTION 12 TERMINATION 12.1 This License Agreement can only be terminated within the initial ten-year agreement due to contract default. A cure period will be allowed in the occurrence of default. 12.2 During the two (2) renewal periods this License Agreement may be terminated without cause by either party upon at least one hundred eighty (180) days' written notice of such intent to terminate being delivered to the other party. 12.3 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. 12.4 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) calendar days following delivery by the City to Licensee of written notice of the City's intention to 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. 12.5 Licensee's Duties Upon Expiration or Termination. 12.5.1 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 damage that Licensee causes during removal of Licensee's property, to the reasonable satisfaction of the Director. 12.5.2 If Licensee fails to comply with its obligations in this Section, the City may, at its sole discretion, (i) remove Licensee's personal property and otherwise repair the Premises and invoice Licensee for City's costs and expenses incurred, such invoice to 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 City's sole property; or (iii) pursue 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 of Licensee hereunder shall continue in effect until such is surrendered. 12.5.3 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. Forest Park Rides, Inc. License Agreement Page 8 of 17 12.6 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 City's rights, options, and remedies under this License Agreement will 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 13.1 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 14.1 Licensee shall, at its sole expense, obtain and keep in effect all licenses and permits necessary for its operations. SECTION 15 NOTICES 15.1 All notices required or permitted under this License Agreement, except for notifications required to be given to a City Point of Contact or Program 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: City of Fort Worth Park & Recreation Director 100 Fort Worth Trail (formerly Energy Way) Fort Worth, Texas 76102 With copies to: T ,TC",FNSFF Forest Park Rides Inc. Attn.: Mary Talley P.O.Box 1319 Fort Worth, Texas 76101 City of Fort Worth Attn: Assistant City Attorney and Assistant City Manager Forest Park Rides, Inc. License Agreement Page 9 of 17 100 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 17.1 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 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 subcontractor 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 19.1 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. SECTION 20 INDEPENDENT CONTRACTOR 20.1 It is expressly understood and agreed that Licensee and its employees, representatives, Forest Park Rides, Inc. License Agreement Page 10 of 17 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 j oint 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 22.1 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 executing this License Agreement, Licensee's agent affirms that he or she is authorized by Licensee to execute this License Agreement and that all representations made herein with regard to Licensee's identity, address, and legal status are true and correct. 23.2 This License Agreement may be executed in several counterparts, each of which will be 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 signature. For these purposes, "electronic signature" means electronically scanned and transmitted versions (e.g. via pdf file, email, or facsimile transmission) of an original signature, or signatures electronically Forest Park Rides, Inc. License Agreement Page 11 of 17 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 License 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 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, all provisions of the City's Charter and 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 26.1 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 27.1 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 INSTRUCTOR, INSTRUCTOR'S EMPLOYEES, SUBCONTRACTORS, AGENTS, OR LICENSEES. The City, upon written notice to Licensee, will have the right to immediately terminate this Agreement for violations of this provision by Licensee. Forest Park Rides, Inc. License Agreement Page 12 of 17 SECTION 28 BOYCOTTING ISRAEL PRO BITED HI 28.1 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 Israel; and (2) will not boycott Israel during the term of the contract. The terms "boycott Israel" and "company" have 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's signature provides written verification to the City that Licensee: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the Agreement. SECTION 29 PRO BITION ON BOYC(HITING ENERGY CO ANIES 29.1 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 companies during the term of the contract. The terms "boycott energy company" and "company" have the meanings 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, by signing this Agreement, Licensee certifies that Licensee's signature provides written 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 PRO BITION ON DISCRIMINATION AGAINST FIREARM AND AMMUNITION INDUSTRIES 30.1 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 terms "discriminate," "firearm entity," and "firearm trade association" have the meanings 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's 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 follows) Forest Park Rides, Inc. License Agreement Page 13 of 17 IN WITNESS WHEREOF, the parties have executed this License Agreement in multiples to be effective on the date set forth in Section 3. City: Dam &L,-Iho(of 1:4 By: Dana Burghdoff (Au 28, 202 2:09 CDT) Name: Dana Burghdoff Title: Assistant City Manager 08/28/2026 Date: Licensee: By: mary talley (Aug 28, 2026 12:42:50 CDT) Name: Mary Talley Title: Owner Email: marytalleyl@aol.com Date: 08/28/2026 FOR CITY OF FORT WORTH INTERNAL PROCESSES: Approval Recommended: By: Name Title: By: Name Title: Teresa Thomason (Aug 28, 2026 13:52:44 CDT) Teresa Thomason Deputy Director Park & Recreation Department By: Name: Joel McKnight (Aug 28, 2026 13:51:52 CDT) Title: 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. Joel McKnight Assistant Director Park & Recreation Department Approved as to Form and Legality: By: %�- Name: Hye Won Kim Title: Assistant City Attorney Contract Authorization: M&C: 24-0431 Form 1295: 2024-1144155 Clinton Wyatt District Superintendent Park & Recreation Department poiongIl Fonr!i d� City Secretary: p,o o9�p \� dacn�z5o4 By: Name: Jannette S. Goodall Title: City Secretary OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Forest Park Rides, Inc. License Agreement Page 14 of 17 EXHIBIT A PREMISES I— £0 ncx 4W I —O rna ww cc 0 oZ a I Forest Park Rides, Inc. License Agreement Page 15 of 17 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 Services under this Agreement. "Any vehicle" will be any vehicle owned, hired, and non -owned. (c) Workers' Compensation: Statutory limits according to the Texas Workers' Compensation Act or any other state workers' compensation laws where the Services are being performed 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 Forest Park Rides, Inc. License Agreement Page 16 of 17 in respect to the contracted services. (b) The workers' compensation policy must include a Waiver of Subrogation (Right of Recovery) in favor of the City. (c) A minimum of at least thirty (30) days' notice of cancellation or reduction in limits of coverage must be provided to the City. At least ten (10) days' notice 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. Forest Park Rides, Inc. License Agreement Page 17 of 17 M&C Review Page 1 of 2 r_I Official site of the City of Fort Worth, Texas CITY COUNCIL AGEND FORT H Create New From This M&C DATE: 5/14/2024 REFERENCE **M&C 24- LOG NAME: 80FPR MINIATURE TRAIN NO.: 0431 RIDE CONTRACT CODE: C TYPE: CONSENT PUBLIC NO HEARING: SUBJECT: (CD 9) Authorize Execution of Agreement for Forest Park Rides, Inc., to Operate Miniature Train Ride and Related Concessions in Trinity and Forest Parks RECOMMENDATION: It is recommended that the City Council authorize the City Manager to execute a license agreement with Forest Park Rides, Inc., for the operation of a miniature train ride and related concessions in Forest and Trinity Parks. DISCUSSION: The purpose of this Mayor and Council Communication (M&C) is to execute a new license agreement with Forest Park Rides, Inc., for the operation of a miniature train ride and associated concessions in Forest and Trinity Parks. On October 17, 2006, City Council approved M&C C-21783, which authorized the execution of a license agreement with Forest Park Rides, Inc, (FPR) for the miniature train concession. On November 1, 2006, the City and FPR executed Fort Worth City Secretary Contract (CSC) number 37950, which allowed for an initial term of ten (10) years and two (2) successive five-year terms. Both renewals have been exercised, with the current renewal expiring on October 31, 2026. FPR has been operating since 1958, with a concession stand located in Trinity Park and the main station located off Colonial Parkway in Forest Park and from there the train goes through Trinity Park. In late 2022, ownership and management of FPR transferred to one of the family shareholders. Since that time, significant improvements and enhancements have occurred. On August 31, 2023, FPR reopened. Due to the significant investment and the need to purchase new train engines, FPR has requested a longer -term contract in order to recoup expenses. This M&C will concurrently terminate the existing agreement and authorize the execution of a new agreement. Proposed key terms of the license agreement: 1. Initial term of ten (10) years with two (2) five-year lease renewals upon mutual agreement; 2. Initial term and subsequent renewals can only be terminated due to contract default; 3. FPR has authority to operate the miniature train ride between Forest and Trinity Parks. On occasion, and with the Park & Recreation Department (PARD) Director's approval, other temporary concession rides may be allowed; 4. The train will operate every Saturday and Sunday weather permitting, excluding holidays. However, FPR is strongly encouraged to operate during all non -school days; 5. FPR is required to submit monthly revenue reports. All fees, including ticket prices and concession fees must be approved by the Park & Recreation Director; 6. FPR can operate food and concession stand, permanent or temporary in Trinity Park on all days, during park curfew hours; 7. The Park & Recreation Department will provide at their own cost, utilities, such as water, sewer, and electricity within one year of agreement execution, estimated at $350,000.00 for electricity and $75,000.00 for water. PARD will request PAYGO funding in future year to pay for these utility expenses in exchange for this, FPR will execute a "quit claim deed" for the http://apps.cfwnet.org/council_packet/mc_review.asp?ID=32136&councildate=5/ 14/2024 5/23/2024 M&C Review Page 2 of 2 two bridges that are part of the train ride, effective only at the termination of the agreement and any subsequent executed agreement; and 8. Financial considerations: i. 15\% of gross receipts from $0 - $150,000.00 ii. 20\% of gross receipts from $150,000.01 - $350,000.00 iii. 25\% of gross receipts from $350,000.01 thereafter iv. Food concession and souvenir stand - 15\% of gross receipts Revenue from this agreement is estimated at $100,000.00 annually. This project is located in COUNCIL DISTRICT 9 but serves the entire City. FISCAL INFORMATION/CERTIFICATION: The Director of Finance certifies that upon approval of the above recommendation and execution of the contract, funds will be deposited into the General Fund. The Park & Recreation Department (and Financial Management Services) is responsible for the collection and deposit of funds due to the City. Fund Department Account Project Program Activity Budget Reference # Amount ID ID Year (Chartfield 2) FROM Fund Department Account Project Program Activity Budget Reference # Amount ID ID Year (Chartfield 2) Submitted for City Manager's Office by: Originating Department Head: Additional Information Contact: Jesica L. McEachern (5804) Richard Zavala (5711) Sandra Youngblood (5755) ATTACHMENTS Forest Park Ride Inc Form 1295 Certificate 101185789 2024 04-09.pdf (CFW Internal) FPR MINIATURE TRAIN RIDE CONTRACT - FID TABLE.xlsx (CFW Internal) http://apps.cfwnet.org/council_packet/mc_review.asp?ID=32136&councildate=5/ 14/2024 5/23/2024 CERTIFICATE OF INTERESTED PARTIES FORM 1295 1of1 Complete Nos. 1- 4 and 6 if there are interested parties. OFFICE USE ONLY Complete Nos. 1, 2, 3, 5, and 6 if there are no interested parties. CERTIFICATION OF FILING Certificate Number: 12024-1144155 1 Name of business entity filing form, and the city, state and country of the business entity's place of business. Forest Park Rides Inc Fort Worth, TX United States Date Filed: 04/09/2024 2 Name of governmental entity or state agency that is a party to the contract for which the form is being filed. City of Fort Worth Date Acknowledged: g Provide the identification number used by the governmental entity or state agency to track or identify the contract, and provide a description of the services, goods, or other property to be provided under the contract. 37950 amusement ride/ snacks/souvenirs 4 Name of Interested Party City, State, Country (place of business) Nature of interest (check applicable) Controlling 1 Intermediary Talley, Mary Haslet, TX United States X Talley, Thomas Haslet, TX United States X The Mary Frances Brown Talley 2000 Revocable MGMT Trust Haslet, TX United States X 5 Check only if there is NO Interested Party. ❑ 6 UNSWORN DECLARATION My name is Mary Tal ley , and my date of birth is Myaddressis 700 Singing Quail Trl Haslet , TX 76052 , _US. (street) (city) (state) (zip code) (country) I declare under penalty of perjury that the foregoing is true and correct. Executed in Tarrant County, State of Texas ,onthe9thdayof April 2024 (month) (year) Signatur thorized agent of co acting business entity (Declarant) I cnaa ELI I[L, %.UIIIIIIIJDIUII www.etnlcs.state.tx.us Version V3.5.1.5b35d027 FORT WORTH® City Secretary's Office Contract Routing & Transmittal Slip Contractor's Name: Forest Park Rides, Inc. Subject of the Agreement: Please review and complete the attached License Agreement with Forest Park Rides, Inc. for the operation of a miniature train ride and related concessions in Forest and Trinity Parks. M&C Approved by the Council? * Yes 8 No ❑ If so, the M&C must be attached to the contract. Is this an Amendment to an Existing contract? Yes ❑ No 8 If so, provide the original contract number and the amendment number. Is the Contract "Permanent"? *Yes ❑ No 8 If unsure, see back page for permanent contract listing. Is this entire contract Confidential? *Yes ❑ No 8 If only specific information is Confidential, please list what information is Confidential and the page it is located. Effective Date: January 1,2024 If different from the approval date. Expiration Date: December 31, 2033 If applicable. Is a 1295 Form required? * Yes 8 No ❑ *If so, please ensure it is attached to the approving M&C or attached to the contract. Project Number: If applicable. N/A *Did you include a Text field on the contract to add the City Secretary Contract (CSC) number? Yes 8 No ❑ Contracts need to be routed for CSO processing in the following order: 1. Katherine Cenicola (Approver) 2. Jannette S. Goodall (Signer) 3. Allison Tidwell (Form Filler) *Indicates the information is required and if the information is not provided, the contract will be returned to the department.