HomeMy WebLinkAboutContract 45687 CITY SWROAW
LICENSE AGREEMENT
FOR IMPROVEMENTS TO CENTRAL BRANCH FORT WORTH PUBLIC
LIBRARY
THIS LICENSE AGREEMENT ("Agreement") is entered into as of the 30th day
of May , 2014 ("Effective Date"), by and between City of Fort Worth, a
home-rule municipal corporation of the State of Texas (the "City"), acting by and through
its duly authorized Assistant City Manager, and the Fort Worth Public Library
Foundation ("Foundation"), a Texas non-profit corporation, acting by and through its
duly authorized Chairman. The City and Foundation are referred to hereinafter each
individually as a"Party" and collectively as the "Parties" to this Agreement.
RECITALS
WHEREAS, the City owns a building which houses the Fort Worth Central
Library (the "Central Library"), 500 West 3rd Street, Fort Worth, Texas 76102; and
WHEREAS, the Central Library contains public space known as Discovery
Theater, a children's theater and the future "Fast Track to Reading" area as depicted on
Exhibit "A", attached hereto and incorporated herein; and
WHEREAS, Foundation, a non-profit organization created to benefit the public,
contacted the City to offer its assistance in providing and paying for certain
improvements to the Premises (as defined in Section 2, herein), and described on Exhibit
"B" ("Improvements") and Exhibit "C" (Plans) both attached hereto and incorporated
herein, for the benefit of the citizens of the City of Fort Worth and other library users and
in furtherance of the Foundation's public-service mission; and
WHEREAS, Foundation has entered or will be entering into, and directly paying
for, one or more agreements with third-party contractors for the Improvements ("Third-
Party Contracts"); and
WHEREAS, the City is willing to consent to the use of the Premises for the
Improvements solely in accordance with the terms and conditions of this Agreement and
pursuant to the intent of Foundation and its separate contractors as expressed in the
Third-Party Contracts; and
WHEREAS, the Parties wish to enter into this Agreement to establish the terms
and conditions pursuant to which Foundation shall have use of the Premises for purposes
of making the Improvements under the Third-Party Contracts.
NOW THEREFORE, for and in consideration of the promises and the mutual
covenants herein contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the City and Foundation do hereby agree
as follows:
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AGREEMENT
1. PURPOSE
This Agreement is solely for the purpose of licensing the Premises portion of the City's
Central Library to Foundation in connection with the Improvements to be made thereto
by third-party contractors pursuant to the Third-Party Contracts.
2. PREMISES
Subject to the terms and conditions set forth in this Agreement and the City Charter and
ordinances, for and in light of the consideration to be provided hereunder and the other
covenants and promises expressed herein, the City does hereby agree to license to
Foundation during the License Period the use of the following space located in the
Central Library:
An area consisting of approximately 1250 sq. ft. known as the Discovery Theater
and an area of approximately 600 sq. ft. in the Youth Center, depicted as "1" and
"2" on Exhibit A.
The area that is the subject of this license shall be referred to herein as the "Premises,"
the location and boundaries of which are illustrated in Exhibit A.
3. TERM
The primary term of this Agreement shall be for a period of nine months beginning on
May 30, 2014 and ending on February 28, 2015, unless terminated earlier in accordance
with Section 22.
This Agreement may be renewed for additional three month periods by written instrument
signed by both Parties.
4. CONSIDERATION
Foundation's ensuring completion of and paying for the Improvements shall serve as
consideration for the use of the Premises, and no monetary License Fee is being required
in this instance.
The Parties agree that the consideration detailed above fairly compensates the City for the
use of the Premises by Foundation, and City acknowledges receipt of this consideration.
5. PERMITTED USE OF PREMISES
For and in consideration of the covenants and promises expressed herein, the City does
hereby agree to license to Foundation the property identified above as the Premises for
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the making of the Improvements.
In ensuring completion of the Improvements, Foundation hereby agrees to comply with
all terms and conditions of this Agreement as well as with any applicable statute,
ordinance, or regulation of federal, state, or local government.
6. ACCEPTANCE OF PREMISES
Foundation takes all portions of the Premises and all appurtenances in "AS IS" condition
without any express or implied warranty on the part of the City. Foundation accepts the
Premises in their present conditions, finds them suitable for the purposes intended, and
further acknowledges that it is thoroughly familiar with such conditions by reason of a
personal inspection and does not rely on any representations by the City as to the
conditions of the Premises or their suitability for the purposes intended. Foundation's
taking possession of the Premises shall be conclusive evidence that: (i) the Premises are
suitable for the purposes and uses for which same are licensed; and (ii) Foundation
waives any and all defects in and to the Premises and all appurtenances thereto. The
City shall not be liable to Foundation, its agents. employees, contractors.
subcontractors. invitees, licensees. or guests for any damage to any person or
property due to the acts or omissions on the Premises of Foundation, its agents,
employees. contractors, subcontractors, or volunteers unless such damage is caused
by the negligence or willful misconduct of City or its agents, em1loyees,
separate contractors or subcontractors.
7. RESERVATION OF RIGHTS BY CITY
Foundation understands and agrees that the City shall continue to own the Premises and
the Central Library in fee simple and shall retain all rights associated with the Premises
and Central Library not specifically granted under this Agreement. The City reserves to
itself, its agents, assigns, and employees the right to enter the Premises at any time for the
purpose of consulting with Foundation; making inspection of the Improvements; and
maintaining and making repairs and improvements to other parts of the Central Library.
In addition, the City does not relinquish the right to control the management of the
Premises as a public space or the right to enforce all necessary and proper rules for the
management and operation of the same. Members of the City's police, fire, parks and
community services, code enforcement, transportation and public works, and other
designated departments shall have the right at any time to enter any portion of the
Premises (without causing or constituting a termination of the use or an interference of
the use of the Premises by Foundation) for the purpose of inspecting the Improvements,
maintaining other City-owned property located within or adjacent to the Premises, and
performing any and all activities necessary for the proper conduct and operation of public
property, provided, however, that this right shall not authorize or empower City to direct
the activities of Foundation or cause the City to assume liability for Foundation's
activities. Foundation shall provide to City and the City will at all times have keys
or combinations with which to unlock all doors at the Premises. and Foundation will
not change or alter any lock thereon without notifying the City in advance of the
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same and subsegugntly 11rojiding Cily with a key or combination for the changed or
altered lock.
8. NO SERVICES
Unless otherwise specified in this Agreement, the City shall not furnish Foundation with
any cleaning or additional utilities, lighting, security, barricades, or any other items or
services beyond which is currently provided for the Premises.
9. NO WASTE OR UNDUE BURDEN
Foundation covenants and agrees that it will not make or suffer any waste of the demised
Premises or any part thereof and shall comply with all federal, state, and local laws,
regulations, and ordinances that are applicable to the Premises.
Foundation's operations and actions under this Agreement shall be accomplished so as
not to place an undue burden on the present or future use of the Central Library by the
City or the public. If the City determines, in its sole discretion, that Foundation's use
places an undue burden on any portion of the Central Library, Foundation shall, at its sole
cost and expense, take all actions reasonably determined by the City to be in the public
interest to remove or alleviate the burden. The City acknowledges and agrees that
Foundation's reasonable actions in connection with the Improvements in accordance with
the terms of this Agreement shall not be deemed an undue burden for purposes of this
paragraph.
10. DESIGN AND CONSTRUCTION PLANS
City A nroval of Plans Required
Foundation shall not commence any of the Improvements until any required design and
construction plans have been approved by the City in writing. City approval includes
both a functional review by the Library Department and approved building permits as
required. Approval by the City shall not constitute or be deemed a release of the
responsibility and liability of Foundation, its agents, servants, employees, contractors, or
subcontractors for the accuracy and competency of its designs, working drawings,
specifications, or other engineering documents. In approving the plans and
specifications, City assumes no liability or responsibility for the design or for any defect
in any the designs, working drawings, specifications, or other documents prepared by
Foundation, its agents, servants, employees, contractors, or subcontractors or for any
construction undertaken on the basis of such plans, specifications, or other documents, it
being the intent of the Parties that approval by City constitutes approval of only the
general design concept of the repairs to be performed and any improvements to be
constructed.
License Agreement for Use of a Portion of Fort Worth Central Library Page 4 of 21
Process for AD rP oval
To the extent the Improvements require preparation of design and construction plans and
specifications, Foundation shall deliver to the City four (4) complete paper sets and one
complete electronic set of detailed design and construction plans and specifications
("Proposed Plans") showing each and every proposed element, facility, or improvement
and the precise location thereof on the Premises. Within ten (10) days of receiving the
Proposed Plans, the City shall conduct its functional review and decide whether to
approve or disapprove the Proposed Plans. To the extent the City disapproves all or any
part of the Proposed Plans, the City shall, within fifteen (15) days of receiving such plans,
provide Foundation a written explanation of the reasons for disapproval. Foundation
shall then submit revised Proposed Plans, which shall be subject to the same review and
approval process described herein. After Proposed Plans have been approved in writing
by the City's Library and TPW departments, they will be referred to as the "Approved
Plans," and a copy thereof shall be attached to this Agreement as Exhibit "C." The
Approved Plans shall then be submitted to the Planning and Development Department to
obtain a Building Permit if the Improvements are of a nature that requires a building
permit.
Revision of ADDroved Plans
If permitting or regulatory changes or unforeseen conditions discovered during
construction prevent Foundation from adhering to Approved Plans in any material
respect, Foundation shall submit revised design and construction plans for approval
("Revised Plans"). Revised Plans shall be subject to the review and approval process
described above. After Revised Plans have been approved by the City in writing, they
will be referred to as the "Revised Approved Plans," and a copy thereof shall be attached
to this Agreement via written amendment.
Minor changes in work or materials not affecting the general character of the project may
be made at any time without City's approval, but Foundation shall provide the City with
written notice of any such change and shall furnish the City with copies of any altered
plans and specifications.
Requirement of"As Built" Plans
Within one month of completion of the Improvements by Foundation's contractor(s),
Foundation shall deliver to the City three (3) complete paper sets and one complete
electronic set of "As Built" construction and engineering plans conforming to the
Approved or Revised Approved Plans for the construction (to the extent such plans exist).
One copy of the "As Built" plans shall be attached to this Agreement, via written
amendment. Following submission, the "As Built" plans shall become property of the
City.
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Ensuring Conformance with Plans
The City shall have the right to verify that any repairs or other construction complies with
the corresponding Approved or Revised Approved Plans. The City may perform any site
visits necessary to complete such verification.
11. CONSTRUCTION
General Requirements
Foundation's Third-Party Contract team shall consist of architects, consultants or
contractors who are approved by the directors of the City's Library and Transportation
and Public Works Departments; said consultants or contractors are to meet City's
requirements for being insured, licensed and bonded to perform work on public facilities.
Notwithstanding anything to the contrary in this Agreement, the City shall, at its own
cost, provide for the inspection of the Improvements.
Notice
Foundation shall notify City at least two weeks prior to the beginning of any of the
Improvements by Foundation's contractor(s) so that City can adequately inform the
public.
Adequate Funds
Foundation shall be required to guarantee its obligation to fund completion of the
Improvements. Foundation may meet this obligation by providing the City current
balance sheets that reflect the financial capacity to meet this obligation.
Building Permits
Foundation shall obtain all necessary permits, licenses, and other approvals required by
or from any governmental agency or entity in connection with the Improvements and use
of the Premises or any other City property related to activities within the scope of this
Agreement. The Foundation may request waiver of permit and inspection fees related to
the Improvements. City agrees to cooperate reasonably with Foundation in executing
such documents required for Foundation to obtain permits, licenses, or other government
approvals needed.
Performance and Payment Bonds
Section Deleted.
Minori - and Women-Owned Businesses
Foundation will use reasonable efforts to cause its contractors to employ minority owned
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businesses in the performance of the Improvements.
Public Safety
Foundation shall be solely responsible for ensuring the initiation, maintenance, and
supervision of all safety precautions and programs in connection with the Improvements
and Foundation's use of the Premises. During construction, Foundation shall ensure that
construction and maintenance signs, sufficient barricades, and controlled-access
construction fencing are provided at work sites to reasonably protect the public and to
reasonably inhibit members of the public from accessing the site of any construction.
Foundation shall also ensure that all necessary precautions are taken and that all
necessary protection is provided to prevent damage, injury, or loss due to construction
being performed on behalf of Foundation to (a) all persons accessing the Premises or
other portions of the Central Library on which any construction is being performed by or
on behalf of Foundation; and (b) all work performed on the Premises and all materials
and equipment to be incorporated therein that are under the care, custody, or control of
Foundation or Foundation's employees, agents contractors, or subcontractors, regardless
of whether such material and equipment is stored on or off the Premises; and (c) other
property on or adjacent to the Premises.
Protection of Structures and Eaui ment
Foundation acknowledges that other persons, including the City, may have structures
and/or equipment on the Premises or Central Library. Foundation agrees that it will use
commercially reasonable efforts to protect the integrity of such structures and equipment.
In the event that activities performed by or on behalf of Foundation may threaten such
structures or equipment, Foundation agrees to immediately notify the City and to
cooperate with the City and the applicable other persons in protecting such structures
and/or equipment.
Standards for Improvements
All Improvements shall be performed (i) at Foundation's sole cost and expense; (ii) in a
good and workmanlike manner; (iii) in conformance with the applicable Approved or
Revised Approved Plans (minor changes excepted); (iv) in conformance with all
applicable zoning, engineering, construction, building, safety, and other laws; (v) in
accordance with industry standards of care, skill, and diligence; and (vi) except as set
forth in the applicable Approved or Revised Approved Plans, in such a manner as shall
not adversely affect the structural integrity or maintenance of the Premises, Central
Library, any structures on the Premises or Central Library, or any lateral support of
structures adjacent to or in the proximity of the Premises or Central Library.
Foundation will assign to the City a non-exclusive right to enforce the Third-Party
Contracts entered into by Foundation for the Improvements, along with an assignment of
all warranties given by any contractor or manufacturer, whether express or implied.
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Further, Foundation agrees that all contracts with any contractor shall include provisions
granting to the City the right to enforce such contracts as an express intended third-party
beneficiary of such contracts.
In ensuring completion of the Improvements, Foundation shall comply with all applicable
provisions of the Americans with Disabilities Act of 1990, Public Law 101-336, 42
United States Code 12101 et seq. and associated federal, state, and local regulations as
well as with any other state-mandated accessibility requirements.
Title to Constructed Improvements
City shall, subject to the terms hereof, have the exclusive right, title, and interest in all
repairs, permanent structures, and improvements constructed by or for Foundation on the
Premises.
12. OTHER IMPROVEMENTS
Other than the Improvements, no other permanent improvement may be constructed on
the Premises absent a duly authorized written amendment to this Agreement signed by
both Parties.
13. DUTIES OF PARTIES WITH RESPECT TO PREMISES AND CENTRAL
LIBRARY
Protection Against Nuisance
Foundation shall not permit the existence of any nuisance on the Premises and shall keep
the Premises in a clean and safe condition and free of any explosive, flammable, or
combustible material that would increase the risk of fire; provided, however, that
Foundation may keep and use Hazardous Materials in accordance with Section 18 so long
as such use is in compliance with all applicable laws. Foundation shall not permit the
accumulation of junk, debris, or other unsightly materials on the Premises.
Maintenance of Loaned Structures and Eauiliment
At all times during any term of this Agreement, each Party shall, at that Party's sole cost
and expense, keep and maintain in a structurally sound and safe condition any structure
or equipment that is owned by the other Party and that is made available for use by the
non-owner Party. Following their use, all structures and equipment shall be returned to
the owner Party in a condition that is reasonably equivalent to the condition in which
such structure or equipment existed prior to the non-owner Party's use, reasonable wear
and tear excepted.
14. LIABILITY AND INDEMNIFICATION
Foundation covenants and agrees that the City shall in no way or under any
circumstances be responsible for any property placed on the Premises belonging to
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Foundation, its officers, agents, employees, contractors, subcontractors, invitees,
licensees, or volunteers that may be stolen, destroyed, or in any way damaged, nil
Foundation hereby indemnifies and holds harmless the City from and against any
and all such claims. The City does not guarantee police protection or other security
beyond that which is already provided for the Central Library and will not be liable for
any loss or damage sustained by Foundation, its officers, agents, employees, contractors,
subcontractors, invitees, licensees, or volunteers on any part of the Premises.
Foundation covenants and agrees to and does hereby indemnify, hold harmless, and
defend, at its own expense, City, its officers, servants and employees,from and against
any and all claims or suits for payment for construction-related costs and services,
property loss or damage and/or personal injury, including death, to any and all
persons, of whatsoever kind or character, whether real or asserted, arising out of the
acts or omissions of Foundation, its officers, agents, employees, subcontractors,
invitees, licensees, or volunteers. Foundation likewise covenants and agrees to, and
does hereby, indemnify and hold harmless City from and against any and all injuries,
damage, loss, or destruction to property of City during the performance of any of the
terms and conditions of this Agreement. However, the indemnity provided for in this
paragraph shall not extend to any liability resulting from the sole negligence of the
City or its officers, agents, employees, or separate contractors, and, in the event of joint
and concurrent negligence of both Foundation and the City, responsibility and
liability, if any, shall be apportioned comparatively in accordance with the laws of the
State of Texas. Nothing herein shall be construed as a waiver of the City's
governmental immunity as further provided by the laws of the State of Texas.
15. INSURANCE
Duty to Acquire and Maintain
Foundation shall not commence work under this Agreement until it has obtained all
insurance required herein, and the City has approved such insurance. Foundation shall
not allow any of its contractor(s), including subcontractors or sub-consultants to
commence work on the Improvements until all similar insurance of the contractor(s),
subcontractors or sub-consultants has been so obtained and approved by the City;
provided, however, that Foundation may elect to insure any contractor, subcontractor or
sub-consultants under Foundation's liability policies.
During the term of this Agreement, Foundation shall procure and maintain at all times in
full force and effect a policy or policies of insurance that provide the specific types and
amounts of coverage indicated below and that comply with all of the general
requirements provided herein. In addition, Foundation shall procure and maintain any
additional coverage that a reasonable person would obtain to cover any and all other
public risks related to Foundation's performance of its obligations under this Agreement.
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Types and Amounts of Coverage
a. Commercial General Liability (required of Foundation directly and of its contractors):
$1,000,000.00 Each Occurrence
$2,000,000.00 Aggregate
b. Worker's Compensation/Employers Liability (required of Foundation directly and of its
contractors):
$100,000.00 Each Accident/Occurrence
$100,000.00 Disease - Each Employee
$500,000 Disease -policy limit
c. Professional Liability Insurance (required of any design professionals providing
professional services for the development, design and/or construction management of the
Improvements:
$1,000,000.00 Per Claim and Aggregate
If this coverage is obtained on a 'claims made' basis, the design professionals will maintain
coverage continuously in force for a period of not less than three years from the date that a
certificate of occupancy or similar City-issued inspection documentation approving the
Improvements is first issued.
d. Builders Risk Insurance — The Foundation shall obtain and maintain All Risk Builder's
Risk insurance for the Construction Work required under this Agreement. This insurance
shall include as named insureds the City and the Foundation. This insurance shall
include all risk insurance for physical loss or damage including without duplication of
coverage, at least: theft, vandalism, malicious mischief, collapse, earthquake, flood,
windstorm, falsework, temporary buildings, debris removal, testing, and demolition
resulting from enforcement of any applicable legal requirements.
General Conditions Applicable to Required Insurance
Certificates of insurance shall be delivered to the City of Fort Worth prior to
commencement of work, addressed to the attention of the Risk Management Division,
1000 Throckmorton Street, Fort Worth, Texas 76102 with a copy to the Architectural
Services Division of the Transportation and Public Works Department.
The City's Risk Manager shall have the right to review and evaluate all required
insurance coverage and to make reasonable requests or revisions pertaining to the types
and limits of that coverage. Foundation and its subcontractors shall comply with such
requests or revisions as a condition precedent to the effectiveness of this Agreement.
The City and its officers, employees, and servants shall be endorsed as an additional
insured on all insurance policies required under this Agreement except Professional
Liability and Worker's Compensation.
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All insurance policies required under this Agreement shall be endorsed with a waiver of
subrogation in favor of the City. Insurers shall have no right of recovery of subrogation
against City, it being the intention that the insurance policy shall protect all Parties to this
Agreement and be primary coverage for all losses covered by the policies.
The policy clause "Other Insurance" shall not apply to any insurance coverage currently
held by City, to any future coverage, or to City's self-insured retention of whatever
nature.
Foundation's insurance policies shall each be endorsed to provide that such insurance is
primary protection and that any self-funded or commercial coverage maintained by City
shall not be called upon to contribute to loss recovery.
On the request of City, Foundation shall provide complete copies of all insurance policies
required by this Agreement. Current and revised certificates of insurance shall be
delivered to the Risk Management Division of the City of Fort Worth, 1000
Throckmorton Street, Fort Worth, Texas 76102 with copy to the Architectural Services
Division of the Transportation and Public Works Department.
Any failure on the part of the City to request required insurance documentation shall not
constitute a waiver of the insurance requirements specified herein.
Insurers must be authorized to do business in the State of Texas and have a current A. M.
Best rating of A VII or equivalent measure of financial strength and solvency.
Deductible limits, or self-funded retention limits, on each policy must not exceed
$10,000.00 per occurrence unless otherwise approved in writing by the City.
The City may consider alternative coverage or risk treatment measures through insurance
pools or risk retention groups in lieu of traditional insurance. Prior to employing such
alternative coverage, Foundation must obtain City's written approval.
City shall not be responsible for the direct payment of insurance premium costs for
Foundation's insurance. Foundation may be required to provide City with proof of
insurance premium payments.
During any term of this Agreement, Foundation shall report to the City's Risk
Management Division in a timely manner any loss occurrence that could give rise to a
liability claim or lawsuit or that could result in a property loss.
Foundation's liability shall not be limited to the specified amounts of insurance required
herein.
Foundation shall not do or permit to be done anything in or on any portion of the
Premises, or bring or keep anything therein or thereon that will in any way conflict with
the conditions of any insurance policy on the Premises, or any part thereof, or in any way
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increase the rate of fire insurance on the Premises or on property kept therein, or in any
way obstruct or interfere with the rights of other users of the Premises, or injure or annoy
them.
16. ASSIGNMENT, LIENS, AND MORTGAGE
Foundation may not sell, assign, or otherwise transfer any of its rights or obligations
under this Agreement without the prior, written consent of the City. Any such attempted
assignment without the City's consent shall be void. The Parties, agree, however, that
Foundation's hiring of one of more designers, engineers, and contractors that are duly
authorized to do business in the State of Texas for purposes of the Improvements shall
not constitute an assignment requiring City approval.
Foundation shall not do any act or make any contract that may be purported to create or
be the foundation of any lien on or any interest in the Premises or Central Library. Any
act, contract, or lien attempted to be created in violation of this section shall be void.
Should any unauthorized purported lien on the Premises or Central Library be created or
filed, Foundation shall, at its sole expense, liquidate and discharge same within ten (10)
days after notice from the City to do so. In the event an unauthorized purported lien
cannot be liquidated within ten (10) days after notice from the City, Foundation shall
initiate proceedings to liquidate and discharge the same within the ten (10) day period
and shall zealously pursue such proceedings to ensure liquidation and discharge within
reasonable proximity to such deadline.
17. PROTECTION OF THE ENVIRONMENT
The City has no knowledge of any Hazardous Materials on, under, over, or about the
Central Library or the Premises as of the execution date of this Agreement and hereby
represents and warrants that it shall not knowingly, nor permit any third party to use,
handle, or store any Hazardous Materials on, under, over, or about the Central Library or
the Premises in violation of any applicable laws. Foundation shall not handle or store any
Hazardous Materials on the Premises or Central Library, except that Foundation may, in
compliance with applicable environmental laws, use and store (1) Hazardous Materials in
such amounts and types that are commonly used in connection with general interior
construction and (ii) general cleaning materials that may contain Hazardous Materials.
Foundation shall not introduce, use, generate, store, accept, or dispose of on, under, or
about, transport across, or permit to exist on the Premises or Central Library any
"treatment, storage or disposal facility" or "underground storage tank," as those terms are
defined under applicable environmental laws. For purposes of this Agreement,
"Hazardous Materials" shall mean potentially dangerous hazardous wastes, toxic
substances, or related materials, including, but not limited to, pollutants; asbestos;
polychlorinated biphenyl (PCB); petroleum or other fuels (including crude oil or any
fraction or derivative thereof); underground storage tanks, and substances considered
hazardous, toxic, or the equivalent pursuant to applicable laws. Any Hazardous Materials
used by Foundation on the Premises shall be posted on site and a list shall be given to
City.
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Foundation shall not create or aggravate any condition at Central Library or the Premises
that could present a threat to human health or to the environment.
18. THIRD PARTIES
Nothing in this Agreement shall be construed in any manner to create a cause of action
for the benefit of any person not a party to this Agreement or to create any rights not
otherwise existing at law for the benefit of any person not a party to this Agreement.
Nothing in this Agreement shall be deemed to constitute a waiver of any immunity or
affirmative defense that may be asserted by Foundation or the City as to claims of any
third party.
19. DISCRIMINATION
Foundation agrees that neither it nor its contractors or subcontractors will subject anyone
to discrimination in any way because of the person's gender, race, color, sexual
orientation, national origin, age, or disability. No one can be excluded from the Premises
or denied the benefits of the Premises because of person's gender, race, color, sexual
orientation, national origin, age, or disability.
20. COMPLIANCE WITH LAWS AND REGULATIONS
(a) In operating under this Agreement, Foundation agrees to comply with all applicable
federal, state, and local laws, regulations, and ordinances, including all City ordinances,
charter provisions, and rules, regulations, and requirements of the City's Police, Fire,
Code Compliance, Transportation and Public Works, Water, Environmental
Management, and Health Departments.
(b) Foundation shall comply with all Library Department regulations, policies, and
specific requirements and shall coordinate with City staff with regard to use of the
Premises.
(c) Foundation will not knowingly do or suffer to be done anything on said Premises
during any term of this Agreement in violation of the laws, statutes, ordinances, rules,
regulations, charter provisions, directives or requirements referenced in this Agreement.
If the City calls the attention of Foundation to any such violation on the part of
Foundation or any person employed by or admitted to the Premises by Foundation,
Foundation will, as soon as reasonably possible, desist from and correct such violation
and/or vacate the Premises.
21. FISCAL FUNDING
The City will not be obligated to expend any funds on the Improvements. If, however,
the City determines that additional changes to the Premises or adjacent areas are
warranted, the City may consult with the Foundation as to said changes and City
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acknowledges that City will bear the costs therefor. As to the City's performance of the
obligations in this Agreement, the Foundation acknowledges and agrees that the City is a
governmental entity, and because of statutory, constitutional, and City Charter provisions,
the City cannot commit to the funding of the obligations described herein beyond each
fiscal year. Therefore, the obligations of the City described herein are subject to and
conditioned upon the City Council of the City appropriating for each fiscal year sufficient
funds to satisfy such obligations. In the event no funds or insufficient funds are
appropriated by the City in any fiscal period, City will notify Foundation of such
occurrence, and this Agreement shall terminate on the last day of the fiscal period for
which funds have been appropriated, without penalty or expense to City of any kind
whatsoever, except as to the portions of any payments herein agreed upon for which
funds shall have been appropriated.
22. EXPIRATION AND TERMINATION
Expiration
This Agreement shall expire according to the term specified in Section 3 hereof, unless
amended as provided therein.
Termination
This Agreement shall terminate upon completion of the Improvements, including any
amendments for additional work, only after final acceptance by the City. Either Party
may terminate this Agreement for cause by providing the other Party with thirty (30)
days' written notice of termination.
Duties Following Termination or Expiration
Following expiration or termination, Foundation shall take all steps necessary to vest title
to the Improvements, and to any other constructed improvements, in the City, including,
but not limited to, the delivery of an instrument of donation to the City.
Following expiration or termination of this Agreement, Foundation shall promptly
remove all of Foundation's personal property, provided, however, that Foundation shall
not be obligated to remove any fixtures. Foundation shall also reasonably repair any
Foundation-caused damage to the Premises or Central Library, including, but not limited
to, any damage that Foundation causes during removal of Foundation's property.
Following removal of all Foundation's personal property and repair of any damage,
Foundation shall relinquish possession of the Premises to the City.
Failure to Comply with Post-Termination Duties
If Foundation fails to remove all or any part of Foundation's personal property or to
reasonably repair the Premises or Central Library as required hereunder, the City may, at
its sole election, (i) remove Foundation's personal property and otherwise repair the
License Agreement for Use of a Portion of Fort Worth Central Library Page 14 of 21
Premises and Central Library and invoice Foundation for the City's reasonable and actual
costs and expenses incurred, such invoice to be due and payable within thirty (30) days of
its delivery to Foundation; or (ii) following no less than thirty (30) days' prior written
notice to Foundation, take and hold any Foundation personal property as City's sole
property; or (iii) pursue any remedy at law or in equity available to the City. If
Foundation fails to surrender the Premises to the City following termination or
expiration, all liabilities and obligations of Foundation hereunder shall continue in effect
until the Premises is surrendered.
Duties and Obligations to Survive Termination or Expiration
No termination or expiration shall release Foundation from any liability or obligation
resulting from any event happening prior to the completion of all post-termination duties
or, if later, the date on which the City exercises the last of its available remedies for
Foundation's failure to meet its post-termination duties.
23. RIGHT TO AUDIT
Foundation shall keep complete and accurate records, books, and accounts according to
customary and accepted business practices. Foundation agrees that the City or its
representatives shall, until the expiration of three (3) years after expiration of this
Agreement, have access to and the right to examine and photocopy financial records and
supporting documentation directly related to Foundation's use of the Premises.
Foundation agrees that the City shall have reasonable access during normal working
hours to all necessary Foundation 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 Foundation reasonable advance notice of intended
audits.
Foundation further agrees to include in any subcontractor agreements hereunder,
including but not limited to design and construction contracts, a provision to the effect
that the subcontractor agrees that the City shall (i), until the expiration of three (3) years
after expiration or termination of the subcontract, have access to and the right to examine
and photocopy any directly pertinent books, documents, papers, and records of such
subcontractor involving transactions to the subcontract, and (ii) have reasonable access
during normal working hours to all subcontractor facilities and be provided adequate and
appropriate work space in order to conduct audits in compliance with the provisions of
this section. The City shall give subcontractor(s) reasonable advance notice of intended
audits.
Notwithstanding anything to the contrary herein, this section shall survive expiration or
earlier termination of this Agreement.
24. NOTICES
All notices required or permitted under this Agreement may be given to a Party
License Agreement for Use of a Portion of Port Worth Central Library Page 15 of 21
personally, by facsimile, or by mail, addressed to such Party at the address stated below.
Any notice so given shall be deemed received when deposited in the United States mail
so addressed with correct postage prepaid:
CITY: FOUNDATION:
Charles Daniels Foundation
Assistant City Manager
1000 Throckmorton Street
Fort Worth, Texas 76102
Gleniece Robinson
Director, Library Dept.
1000 Throckmorton Street
Fort Worth, Texas 76102
WITH COPY TO: WITH COPY TO:
City Attorney
1000 Throckmorton Street
Fort Worth, Texas 76102
Either Party may change its address for the purpose of this Agreement by giving written
notice of the changed address to the other Party as provided in this section.
25. INDEPENDENT CONTRACTOR
It is expressly understood and agreed that Foundation shall operate as independent entity
in each and every respect hereunder and not as an agent, representative, or employee of
the City. Foundation shall have the exclusive control and the exclusive right to control
all details and day-to-day operations and activities relative to the Improvements and shall
be responsible for the acts and omissions of its officers, agents, servants, employees,
contractors, subcontractors, invitees, licensee, and volunteers. The doctrine of
respondeat superior shall not apply as between the City and Foundation, its officers,
agents, servants, employees, contractors, subcontractors, licensees, and invitees. Nothing
contained in this Agreement shall be construed as the creation of a partnership or
joint enterprise between the City and Foundation.
26. CHOICE OF LAW; VENUE
This Agreement shall be governed by and 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.
27. FORCE MAJEURE; HOMELAND SECURITY
If either Party is unable, either in whole or part, to fulfill its obligations under this
Agreement due to acts of God; strikes, lockouts, or other industrial disturbances; acts of
public enemies; wars; blockades; insurrections; riots; epidemics; public health crises;
License Agreement for Use of a Portion of Fort Worth Central Library Page 16 of 21
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; 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 such event. If the Premises or any portion thereof shall be destroyed
or rendered unsafe for use or occupation by reason of a Force Majeure Event, the City
may, in its reasonable discretion and after consulting with Foundation, terminate this
Agreement. Foundation hereby waives any claim against City for damages by
reason of any such termination.
If the United States Department of Homeland Security issues a Level Orange or Level
Red Alert, the City, in its sole discretion, may cancel or postpone work on the
Improvements in the interest of public safety.
28. AUTHORIZATION
By executing this Agreement, Foundation's signatory affirms that he or she is authorized
by Foundation to execute this Agreement and that all representations made herein with
regard to Foundation's identity, address and legal status (corporation, partnership,
individual, etc.) are true and correct.
29. GOVERNMENTAL POWERS
It is understood and agreed that by execution of this Agreement, City does not waive or
surrender any of its governmental powers.
30. NO WAIVER
The failure of a Party to insist on performance of any term or provision of this Agreement
or to exercise any right granted herein shall not constitute a waiver of a Party's right to
insist on appropriate performance or to assert any such right on any future occasion.
31. HEADINGS
The section headings contained herein are solely for convenience in reference and are not
intended to define or limit the scope of any provision of this Agreement.
32. SEVERABILITY
In case any one or more of the provisions contained in this Agreement are held to be
invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provision hereof, and this Agreement shall be
considered as if such invalid, illegal or unenforceable provisions were never contained
herein.
33. REVIEW OF COUNSEL
The Parties acknowledge that each Party and its counsel have had the opportunity to
License Agreement for Use of a Portion of Fort Worth Central Library Page 17 of 21
review and revise this Agreement and that the nortna.➢ rules of construction. to the effect
that any arnbi gt.j i ties are to be resolved against the drafting partly shall not be employed in
the interpretation of this Agreement or the exhibits hereto.
34. ENTIRETY OF AGREEMENT; AMENDMENT
This instrument (including all attach,inents, schedules, and exhibits attached. hereto)
constitutes the entire understanding and agreement of the City and Foundation as to use
of the Premises. Any prior or contemporaneous oral or written agreernent is hereby
declared null and void to the extent in conflict with the terms and conditions of this
Agreement.
No amendment to this Agreement shall be effective unless agreed to in writing and
signed by both Parties, pr2jided, _h&V&= that the Parties agree that any applicable
changes in local, state, or federal laws, rules, or regulations that may occur during the
to of this Agreement, shall be automatically incoq)orated into this Agreement without
written amendment hereto and shall become a part hereof as of the effective date of the
law, rule, or regulation,
jr N WITNESS 'WHEREOF, the Parties hereto have executed this Agreement this
1_..Jay of'. L
2014 in Fort Worth, ']'arrant County, Texz s.
CITY OF FORT WORTH FORT WORTH PUBLIC
LIBRARY FOUNDATION
W.
By By:..............
aniel e Oliver, President and CEO
Char s D Les I
Assistwit City Manager
REC ENDED
M
'C M
'leniece kobinson' Director
library Department
APPROVED AS TO FORM M&C 6,
AND LITY Date: 2�o I
By: ......................
Douglas W. Black
Assistant City Alloi•wy
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A
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NO,.............I......... .............. .............
ar J. Kayser
City Secretary 1�x
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EOFFICIAL LRECORD
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EXHIBIT "B"
DESCRIPTION OF PREMISES AND IMPROVEMENTS
Central Library Youth Center
Scope of Services for the Renovation of the existing Discovery Theater and a new design for the
Fast Track to Reading
Discovery Theater(approximately 1,700 square feet)
• Replace entry doors
• Replace flooring
• Revise ceiling treatment
• Revise lighting
• Add veneer panels to the north and south walls.
• Remove existing handicapped ramp (provide movable HC ramp).
• Add new multi-media system for distance learning
• Renovate kitchen (combine with adjacent projection room).
Fast Track to Reading (approximately 490 square feet between column lines E, F, 1 and 2)
• Develop Early Literacy themed around auto racing.
• Replace existing flooring with a racing checker board pattern including the Speedway
Children's Charities logo.
• Design and construct new millwork for display, seating and interactive panels.
• Revise ceiling treatment.
• Replace lighting
License Agreement for Use of a Portion of Fort Worth Central Library Page 20 of 21
EXHIBIT "C"
APPROVED CONSTRUCTION PLANS
(To be Attached by Mutual Agreement)
License Agreement for Use of a Portion of Fort Worth Central Library Page 21 of 21
City of Fort Worth, Texas
Mayer and Council Communication
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COUNCIL ACTION: Approved on 512012014
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DATE: Tuesday, May 20, 2014 REFERENCE NO.: C-26609
LOG NAME: 84LICENSEAGREEMENT F PLF
SUBJECT:
Authorize Execution of a License Agreement with The Fort Worth Public Library Foundation to Renovate
and Improve Youth Center Spaces at the Central Library (COUNCIL DISTRICT )
RECOMMENDATION:
It is recommended that the City Council authorize the execution of a License Agreement with The Fort
Worth Public Library Foundation to renovate and improve Youth Center spaces at the Central Library.
DISCUSSION:
In honor of its 20th anniversary in ril 2013, Worth Public Library Foundation (The Foundation)
embarked on a capital campaign to raise funds to renovate and update the Central Library youth and teen
areas. Working with Staff, several defined projects were identified„ The campaign has successfully raised
$325,000.00 to renovate and update the Youth Center Discovery Theatre and to create a small early
literacy area to be known as Fast Track to Reading.
This Mayor and Council Communication seeks Council approval to enter into an Agreement with
Foundation to license the two areas referenced above for the purpose of update and renovation. The
License Agreement allows The Foundation to hire supervise the contractors performing the work,
allows the Library and the Transportation and Public Works Department final review and approval of the
construction documents and work performed, The improvements are projected to be completed by the
end of the calendar year, Upon project completion, The Foundation will vest the improvements to h City,
The renovation includes updated finishes, new flooring, new entry„ and upgraded audio-visual equipment
r the Discovery Theatre. An Interlocal Agreement with the Region 11 Educational Service Center will
provide distance learning equipment which allows the Fort Worth Library (Library)to bring educational
programs from around the world o ort children. The equipment will also allow the Library to take
its programs into schools. The Fast Track to Reading area for early literacy will be an attractive race
themed space for young children to interact with parents and caregivers. It is envisioned that volunteers
from the racing world will donate brine to rend and interact witl°i these young children.
Chartered in 1993, The Foundation is an independent, non,profit organisation dedicated to supporting the
Library systenmi by working, in r:orijuriction wit:l°i the City of Fort Worth and the private sector to mobilize
resources for aind promote serwic es of tI°:e Library, 'T'he Foundation successfully raised 5 million to add
tl:eN upper Ievel fr:r ttie Central I..ibraiy. More re em°itly in 9009, The Foundation completed a 550,000.00
project to erihance the Cwitral I._iiibrary Ca'ilery.
FISCAL INFORMATION TIO f CERTIFICATION:
,f"'he Financial Management S ervices Director certifies that this action will riot increase the total
appropratioris of �',, ity funds.
Loyiii nw. ff ft,f fy l t f F Lf t' t"I L WKF Page tail":"
FUND CENTERS:
TO Fund/Account/Centers FROM Fund/Account/Centers
CERTIFICATIONS:
Submitted for City Manager's Office by: Charles Daniels (6199)
Originating Department Head: Gieniece Robinson (7706)
Additional Information Contact: Sheila Scullock (7708)
................
ATTACHMENTS
No attachments found.
Logname: 84LICENSEAGREEMENT FWPLF Page 2 of 2