HomeMy WebLinkAboutContract 46279 CITY SECRETAW
CAPITIACT NO.
LICENSE AGREEMENT WITH DAY RESOURCE CENTER
FOR THE USE OF
BERTHA COLLINS SPORTS CENTER
This License Agreement Regarding the Use of Bertha Collins Sports Center
("Agreement") is made and entered into by and between the City of Fort Worth ("City"),
a home-rule municipal corporation of the State of Texas, acting by and through its duly
authorized Assistant City Manager, and Day Resource Center for the Homeless, Inc.
("DRC"), a Texas non-profit corporation acting by and through its duly authorized
President.
WHEREAS, City owns a community center located at 1501 MLK Freeway in
Fort Worth, Texas 76104, known as the Bertha Collins Sports Center;
WHEREAS, City is committed to protecting the health, life safety, and dignity of
City residents who are homeless in cold weather conditions when community-based
emergency shelters have reached full capacity;
WHEREAS, the Cold Weather Overflow Emergency Shelter Plan is a part of the
City's overall Emergency Management Plan;
WHEREAS, City and DRC desire to enter into a License Agreement for the use
of Bertha Collins Sports Center, which specifically allows DRC access to Bertha Collins
Sports Center for the purpose of operating an overnight cold weather overflow
emergency shelter for people who are homeless.
NOW, THEREFORE, in consideration of the mutual covenant herein expressed,
the City and DRC do hereby agree as follows:
1. PURPOSE
A. The purpose of this Agreement is to allow DRC to use the first floor of the Bertha
Collins Sports Center located at 1501 MLK Freeway North, Fort Worth, Texas
76102 (the "Center") to operate an overnight cold weather overflow emergency
shelter for people who are homeless. The location of the Center is more
particularly described in Exhibit A, attached hereto and incorporated herein.
2. OPERATING RIGHTS AND DUTIES.
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A. Subject to and in accordance with the terms and conditions of this Agreement,
® City hereby grants to DRC a license and non-exclusive right to operate in the
® Center. DRC shall use the Center solely for the purposes of operating an
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overnight cold weather overflow emergency shelter for people who are homeless
1—* in accordance with the City's Cold Weather Overflow Emergency Shelter plan.
City reserves the right to enter into and grant other and future licenses, leases, and
other authorizations for use of the Center to other persons and entities as the City
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Fort Worth Day Resource Center License Agreement -Bertha Collins
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deems appropriate in accordance with applicable law; provided, however, that in
granting subsequent authorization for use, the City will not allow a use that will
unreasonably interfere with the DRC's use of the Center as provided herein.
B. The City shall provide DRC with at least two (2) weeks' notice of City programs
and other occasions that will require use or closure of the gymnasium and/or
meeting rooms and will prevent DRC from using those portions of the Center
except for unforeseen emergency situations.
C. DRC shall operate the overnight cold weather overflow emergency shelter for
people who are homeless under the ordinances, rules and regulations of the City
of Fort Worth and the Parks and Community Services Department and in strict
accordance with all of the terms and conditions provided for in this Agreement.
D. If for any reason, at any time during any term of this Agreement,the City Council
fails to appropriate funds sufficient for the City to fulfill its obligations under this
Agreement, the City may terminate this Agreement to be effective on the later of
(i) thirty (30) days following delivery by the City to DRC of written notice of the
City's intention to terminate or (ii) the last date for which funding has been
appropriated by the City Council for the purposes set forth in this Agreement.
3. TERM; TERMINATION
ATION
A. This Agreement governs DRC's use of the Center for an initial five month period,
beginning on December 1, 2014, and expiring on April 30, 2015, unless
terminated earlier as provided herein. The parties may, by written mutual
agreement, extend this Agreement for two additional two (2) year renewal
periods.
B. Each of the following events shall be deemed to be an "Event of Default"by DRC
under the Agreement:
(1) DRC fails to pay any installment of rent hereunder and such failure shall
continue for a period of fifteen (15) days from the date that City sends written
notice of the failure to pay rental;
(2) DRC fails to comply with any term, covenant, or provision of this Agreement;
(3) DRC fails to maintain all required insurance in accordance with Section 13 of
this Agreement;
(4) DRC attempts to assign this Agreement without the City's written consent;
(5) DRC shall do or knowingly permit to be done anything that creates a lien on
the Center.
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(6) On the occurrence of any such Event(s) of Default, the City shall have the
option to pursue any one or more of the following remedies without any notice
or demand whatsoever: terminate this Agreement, in which event DRC shall
immediately surrender the Center to the City, and if DRC fails to do so, the City
may, without prejudice to any other remedy that it may have for possession or
arrearages in rental, enter on and take possession of the Center and expel or
remove, by force if necessary, DRC and any other person who may be occupying
the Center or any part thereof, without being liable for prosecution or any claim of
damages thereof; and DRC agrees to pay to the City on demand the amount of all
loss and damage that the City may suffer by reason of such termination, whether
through inability to re-let the Center on satisfactory terms or otherwise; provided,
however, that the City shall make all reasonable efforts to re-let the Center and
DRC shall be entitled to dollar-per-dollar reduction in lost-rent damages for all
monies that the City receives or is entitled to from any replacement tenant.
(7) No pursuit of any remedy by City constitutes a forfeiture or waiver of any
rent due to City or of any damages accruing to City by reason of the violation of
any of the terms,provisions, and covenants herein contained. No act or thing done
by City or its officers, agents or employees during the term of this Agreement
shall be deemed a termination of the Agreement or an acceptance of the surrender
of the Center, and no agreement to terminate this Agreement or accept a surrender
of the Center shall be valid unless in writing signed by City. City's acceptance of
the payment of rental or other payments after the occurrence of an Event of
Default shall not be construed as waiver of such default, unless City notifies
Licensee in writing. Any act by City to enforce one or more of the remedies
herein provided upon an Event of Default shall not be deemed or construed to
constitute a waiver of such default or of City's right to enforce any such remedies
with respect to such default or subsequent default.
C. City may terminate this Agreement without cause by providing DRC with no less
than 30 days' written notice prior to the intended termination date.
D. Following expiration or termination of this Agreement, DRC shall promptly
remove all of its personal property; provided, however, DRC shall not be
obligated to remove any fixtures. DRC shall also repair any DRC-caused damage
to the Center, including, but not limited to, any damage that DRC causes during
removal of DRC's property, to the satisfaction of the City. Following removal of
all of DRC's personal property and repair of any damage, DRC shall relinquish
possession of the Center to City.
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4. RESPONSIBILITIES OF DRC
A. DRC may use the Center for the purposes and during the times authorized in
Section 2, subject to and in accordance with the terms and conditions of this
Agreement.
B. City shall not be responsible for loss or theft of DRC equipment.
C. DRC shall be solely responsible for maintaining and cleaning the Center. At a
minimum, maintaining and cleaning shall include litter control, sweeping,
mopping, dusting, cleaning of commodes and urinals, and cleaning of
windows/glass. DRC shall not be responsible for maintaining or cleaning the
Center in connection with City activities or use.
D. DRC shall adhere to all policies, procedures, and program dates/deadlines set
forth by the City, including, but not limited to, all program and facility rules, and
shall assist City staff to ensure that all policies, procedures, and program
dates/deadlines are followed for any City program that DRC participates in.
E. On or before January 31St of each year, DRC will provide the City with an
updated inventory list of all DRC-owned items at the Center, including, but not
limited to, equipment, furniture, and supplies. For purposes of this provision,
"DRC-owned items" shall mean items that are not supplied or purchased by the
City. If, at any time during this Agreement, DRC adds or removes any DRC-
owned items, DRC shall provide the City with an amended inventory list within
thirty(30) days of the date the item or items are removed or added.
F. DRC shall comply or ensure compliance with all federal, state, and local laws,
regulations, and ordinances related to its operations and with all applicable City
guidelines. If the City notifies DRC of any noncompliance, DRC shall
immediately correct the issue at its sole cost and expense.
G. Subject to wear and tear ordinary to a low-barrier facility serving people who are
homeless, DRC will pay the costs of repairing (to its condition immediately
preceding the occurrence of such damage or better) any damage which may be
done to the Center or any of the fixtures, furniture or furnishings by any act of
DRC or any of DRC'S employees, agents, officers, or anyone visiting the Center
upon the invitation of the DRC or purpose for which DRC hereby is licensing the
Center. The City shall determine, in its sole discretion, whether any damage has
occurred, the amount of the damage and the reasonable costs of repairing the
damage, and whether,under the terms of the Agreement,DRC is responsible. City
shall be the sole judge of the quality of the maintenance and/or damage of the
Center, furnishings, fixture or furniture by the DRC. The costs of repairing any
damage to the Center shall be immediately due and payable by the DRC upon
DRC's receipt of a written invoice from the City.
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H. DRC shall take all reasonable actions to conserve the utilities and Supplies, as
hereinafter defined, that are provided to DRC by the City to assist the City in
effective cost control for the Center.
5. RESPONSIBILITIES OF CITY
A. The City shall provide DRC with use of the Center in accordance with the terms
of this Agreement.
B. The City may execute a facility tour of the Center on a daily basis and complete a
facility inspection report and will submit its findings to DRC.
C. City shall be solely responsible for maintaining the grounds outside the center and
repair significant infrastructure as defined by the City (e.g., gymnasium lights)
and pay for all utility costs during the term of this Agreement.
D. City shall provide certain supplies to DRC necessary for its use of the Center and
for the fulfillment of DRC's obligations under Section 4(C), including but not
limited to paper products for cleaning and personal hygiene, and cleaning supplies
("Supplies").
6. JOINT RESPONSIBILITIES OF THE CITY AND DRC
A. The City's Homelessness Program Director shall serve as the primary point of
contact between DRC and the City for all issues relating to operation and use of
the Center and other City facilities (including, but not limited to, inquiries
regarding facility availability).
B. DRC and City employees shall not engage in conduct that could be determined to
be detrimental to the public trust. Such conduct shall include, but not be limited
to, public intoxication; fighting; criminal activity; illegal drug activity;
discourteous treatment of others; slandering or defaming public officials,
appointees, or staff; or any other conduct that could damage or harm the public's
perception or trust of the City and/or any of its officials, appointees, or staff.
7. CONSIDERATI®N
DRC shall pay the City a building license fee of$10.00 annually for the right to license
the Center. All payments shall be made payable to the "City of Fort Worth" and remitted
to the Athletic Coordinator, Haws Athletic Center at 600 Congress Street, Fort Worth,
Texas 76107.
8. NONDISCRIMINATION/EQUAL OPPORTUNITY
DRC, for itself, its personal representatives, successors in interest, and assigns, as part of
the consideration herein, agrees that no person shall be excluded from participation in or
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denied the benefits of DRC's use of the Center on the basis of race, age, color, national
origin, ethnicity, religion, disability, gender, sexual orientation, familial status,
transgender, gender expression, gender identity, or any other protected class of people.
DRC further agrees for itself, its personal representatives, successors in interest, and
assigns that no person shall be excluded from the provision of any services on the Center
on grounds of race, age, color, national origin, ethnicity, religion, disability, gender,
sexual orientation, familial status, transgender, gender expression, gender identity, or any
other protected class.
9. ASSIGNMENT
DRC may not assign, transfer, or otherwise convey to any other party any of DRC's
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 and constitute a
breach of this Agreement subject to immediate termination in accordance with Section 3.
10. INDEPENDENT CONTRACTOR
It is expressly understood and agreed that DRC shall operate hereunder as an independent
contractor in each and every respect and not as an agent, representative, or employee of
the City. DRC shall have the exclusive right relative to the terms of this Agreement and
shall be solely responsible for the acts and omissions of its officers, agents, servants,
employees, separate contractors, subcontractors, licensees, invitees, and program
participants. DRC acknowledges that the doctrine of respondeat superior will not apply
as between the City and DRC, its officers, agents, servants, employees, contractors,
subcontractors, licensees, invitees, and program participants. DRC further acknowledges
and understands that nothing in this Agreement will be construed as the creation of a
partnership or joint enterprise between the City and the DRC.
11. INDEMNITY AND LIABILITY
A. DRC AGREES TO AND DOES HEREBY DEFEND, INDEMNIFY AND
HOLD HARMLESS THE CITY, ITS OFFICERS, AGENTS,
REPRESENTATIVES, SERVANTS, AND EMPLOYEES FROM AND
AGAINST ANY AND ALL CLAIMS, LAWSUITS, ACTIONS, COSTS,
AND EXPENSES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO,
THOSE FOR PROPERTY DAMAGE OR LOSS (INCLUDING, BUT NOT
LIMITED TO, ALLEGED DAMAGE OR LOSS TO A BUSINESS AND
ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY
(INCLUDING, BUT NOT LIMITED TO, DEATH) THAT MAY RELATE
TO, ARISE OUT OF, OR BE OCCASIONED BY: (i)DRC'S BREACH OF
ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR (ii)
ANY NEGLIGENT ACT OR OMISSION OR INTENTIONAL
MISCONDUCT OF DRC, ITS OFFICERS, AGENTS, ASSOCIATES,
EMPLOYEES, CONTRACTORS (OTHER THAN THE CITY),
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SUBCONTRACTORS, LICENSEES, RiVITEES, OR PROGRAM
PARTICIPANTS RELATED TO THE TERMS AND CONDITIONS OF
THIS AGREEMENT OR THE PERFORMANCE OF THIS AGREEMENT.
THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH S LL NOT
APPLY TO ANY LIABILITY RESULTING FROM THE SOLE
NEGLIGENCE OF THE CITY, ITS OFFICERS, AGENTS, EMPLOYEES,
OR SEPARATE CONTRACTORS. IN THE EVENT OF JOINT AND
CONCURRENT NEGLIGENCE OF BOTH DRC AND CITY,
RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED
COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF THE
STATE OF TEXAS.
B. DRC covenants and agrees that City shall in no way or under any circumstances
be responsible for any property belonging to DRC, its members, employees,
agents, subcontractors, invitees, licensees, or trespassers, which may be stolen,
destroyed, or in any way damaged, and DRC HEREBY INDEMNIFIES AND
HOLDS HARMLESS CITY FROM AND AGAINST ANY AND ALL SUCH
CLAIMS. City does not guarantee police protection and will not be liable for any
loss or damage sustained by DRC, its members, employees, agents,
subcontractors,invitees, licensees, or trespassers on the Center.
C. It is further agreed that nothing in this Agreement shall constitute or be
considered a waiver by the City of Fort Worth of any defense of governmental
immunity, where applicable, or any other defense recognized by the Statutes and
Court decisions of this State.
D. IF ANY ACTION OR PROCEEDING SHALL BE BROUGHT BY OR
AGAINST THE CITY IN CONNECTION WITH ANY SUCH LIABILITY
OR CLAIM, DRC, ON NOTICE FROM CITY, SHALL DEFEND SUCH
ACTION OR PROCEEDING, AT DRC'S EXPENSE, BY OR THROUGH
ATTORNEYS REASONABLY SATISFACTORY TO CITY.
E. Notwithstanding anything to the contrary, this Section shall survive the
termination or expiration of this Agreement.
12. INSURANCE
During the term of this Agreement, DRC shall maintain in full force and effect, at its own
cost and expense,the following minimum insurance coverage:
A. Commercial General Liabili y Insurance written on an occurrence basis with no
exclusion in policy, naming the City as an additional insured, and having the
following minimum policy limits: $1,000,000.00 each occurrence, $1,000,000.00
annual aggregate limit.
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B. Automobile Liability Insurance with policy limits of$1,000,000.00 dollars each
accident, or reasonably equivalent split limits approved by the City's Risk
Manager.
C. Workers Compensation — In the event the DRC hires paid employees, workers
compensation shall be required in accordance with this paragraph. Statutory
Worker's Compensation Insurance in compliance with the requirements of state
law with policy endorsed to provide a waiver of subrogation as to City, and
Employees' Liability Policy of Insurance with coverage of not less than
$100,000.00 each accident, $500,000.00 disease-policy limit, and $100,000.00
disease — each employee. To the extent permitted by law and approved by the
City's Risk Management Division, DRC may arrange for alternative coverage
such as occupational accident insurance in lieu of statutory worker's
compensation insurance. DRC may not employ alternate insurance coverage
unless the insurer, limits, terms, and scope of coverage have been accepted in
writing by the City's Risk Management Division.
D. Additional Insurance Requirements Applicable to All Insurance Policies
1. The City of Fort Worth shall be made an additional insured, by
endorsement, on all of DRC's insurance policy or policies except for
automobile liability and Workers' Compensation insurance.
2. All insurance policies shall be endorsed with a waiver of subrogation in
favor of the City.
3. All insurers must be authorized to do business in the State of Texas or
otherwise be approved by the City's Risk Management Division and must
be acceptable to the City with respect to their financial strength and
solvency.
4. The deductible limit on any of the policies shall not exceed $10,000.00 per
occurrence or per accident unless approved in writing by the City.
5. Each DRC policy required under this Agreement must be endorsed to
provide that the City be given notice a minimum of thirty (30) days prior
to insurer action in the event of cancellation, non-renewal, or material
change on coverage.
6. DRC shall provide the City's Risk Management Division with certificates
of insurance documenting all required coverage with ten days of initial
execution of this Agreement and with updated certificates on or before
January 15th of each year that this Agreement remains in effect.
7. DRC shall ensure that the City is provided with a copy of any and all
required insurance policies on request.
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8. In the event that DRC becomes aware of any damages sustained or
claimed to be sustained by a third parry or of any incident occurring at the
Center that may give rise to a claim against the City, DRC shall notify the
Homelessness Program Director as soon as possible.
9. All notices provided pursuant to this section shall be provided in
accordance with the notice requirements of this Agreement.
13. CENTER CLOSURE
City may, in exercise of its reasonable discretion, close the Center to DRC due to
inclement weather or other unforeseen circumstances inclusive of Emergency Shelter use.
14. FORCE MAJEURE
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;
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 of 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 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 such 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. DRC hereby waives
any claims it may have against the City for damages resulting from any such Force
Majeure Event.
15. NOTICES
All notices required or permitted under this Agreement may be given to a party
personally or by United States First Class mail and addressed to such party at the address
stated below or to such other address as a party may specify in advance in writing. Any
notice given by mail shall be deemed to have been received on the date deposited in the
United States mail so addressed with postage prepaid:
CITY: DRC:
City of Fort Worth Day Resource Center for
c/o Director Parks and Community the Homeless
Services Department c/o Executive Director
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4200 South Freeway, Suite 2200 P.O.Box 0871
Fort Worth, Texas 76115 Fort Worth, TX 76101
16. SEVERABILITY,WAIVER AND SECTION HEADINGS
A. In the event any covenant, condition, or provision of this Agreement 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 herein contained, provided however, that the invalidity of any such
covenant, condition, or provision does not materially prejudice either DRC or
City in connection with the rights and obligations contained in the valid
covenants, conditions, or provisions of this Agreement.
B. The failure of City to insist on the performance of any term or provision of this
Agreement or to exercise any right herein conferred shall not be construed as a
waiver or relinquishment to any extent of City's ability to assert or rely on any
such term or right on any future occasion. The waiver by the City of any default
or breach of a term, covenant, or condition of this Agreement shall not be deemed
to be a waiver of any other breach of that term, covenant, or condition or of any
other term, covenant, or condition of this Agreement, regardless of when the
breach occurs.
C. 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.
17. ENTIRE ERSTANDING; MODIFICATION
A. This written instrument (including all attachments, schedules, and exhibits
attached hereto) constitutes the entire understanding of the parties concerning
City's and DRC's roles and obligations in regard to DRC's use of the Center.
Any prior or contemporaneous oral or written agreement that purports to vary
from the terms hereof shall be void.
B. Amendments to this Agreement or to any attachment, schedule, or exhibit
attached hereto may be proposed by either party and shall take effect on written
approval by both parties.
C. This Agreement shall be binding on and inure to the benefit of the parties hereto
and their respective heirs, executors, administrators, legal representatives,
successors, and properly authorized assigns.
18. CHOICE OF LAW; VENUE
A. This Agreement shall be governed by and construed in accordance with the laws
of the State of Texas.
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B. 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.
19. REVIEW OF COUNSEL.
The parties acknowledge that each party and its counsel have had the opportunity to
review and revise this Agreement and that the normal rules of construction to the effect
that any ambiguities are to be resolved against the drafting party shall not be employed in
the interpretation of this Agreement or any exhibits or attachments hereto.
20. CONTRACTING AUTHORITY
By executing this Agreement, DRC's agent affirms that he or she is authorized by DRC
to execute this Agreement and that all representations made herein with regard to DRC's
identity, address, and legal status are true and correct. The City is fully entitled to rely on
this warranty and representation in entering into this Agreement.
21. AUDIT
DRC agrees that City will have the right to audit the financial and business records of
DRC that relate to this Agreement (collectively "Records") at any time during the any
term of this Agreement and for three (3) years thereafter in order to determine
compliance with this Agreement. Throughout the term of this Agreement and for three
(3)years thereafter,DRC shall make all Records available to City on 1000 Throckmorton
Street, Fort Worth, Texas or at another location in City acceptable to both parties
following reasonable advance notice by City and shall otherwise cooperate fully with
City during any audit. Notwithstanding anything to the contrary herein,this Section shall
survive expiration or earlier termination of this Agreement.
22.ACCEPTANCE OF CENTER
DRC takes all portions of the Center and all appurtenances in "AS IS" condition without
any express or implied warranty on the part of the City. DRC accepts the Center in its
present condition, finds it suitable for the purposes intended, and further acknowledges
that DRC is thoroughly familiar with such condition by reason of personal inspection and
does not rely on any representations by the City as to the condition of the Center or its
suitability for the purposes intended. DRC's taking possession of the Center shall be
conclusive evidence that: (a) the Center is suitable for the purposes and uses for which
same is licensed; and (b) the DRC waives any and all defects in and to the Center and all
the appurtenances thereto. The City shall not be liable to the DRC, its agents,
employees, contractors, subcontractors, invitees, licensees, or guests for any damage
to any person or property due to the acts or omissions of the DRC, its agents,
employees, contractors, or subcontractors.
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[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement and any
a ents and a its in multiples in Fort Worth, Tarrant County, Texas, this the
�ay of , 2014.
CITY OF FORT WORTH
by:
an Alanis
Assistant City Manager
Approved as to Form and Legality:
bLeann Guzman
Assistant City Attorney
Attest: Q ® � _
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City Secret
0000000000 .,
DAY RESOURCE CENTER FOR THE H , NC.
Bruce Frankel
Executive Director
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