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HomeMy WebLinkAboutContract 28658 05-13-03A08 : 14 RCVD LICENSE AGREEMENT CITY SECRETARY CONTRACT NO STATE OF TEXAS § COUNTY OF TARRANT § This 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, located within Tarrant, Denton and Wise Counties, Texas (hereinafter referred to as the "City") and the FORT WORTH INDEPENDENT SCHOOL DISTRICT, a political subdivision of the State of Texas and a legally constituted Independent School District located within Tarrant County, Texas (hereinafter referred to as the "FWISD"). RECITALS WHEREAS, Fort Worth Independent School District is the owner of certain real property abutting certain real property owned by the City of Fort Worth consisting of 7.54 acres of dedicated parkland known as Sunset Hills; and WHEREAS, improvements consisting of two temporary portable classroom buildings and concrete sidewalks were placed and constructed by FWISD at the Atwood McDonald Elementary school; and WHEREAS, it has recently been discovered that the improvements belonging to FWISD encroach onto Sunset Hills Park; and WHEREAS, the City has been requested by the Fort Worth Independent School District to allow the encroachment to continue, said portion being integral to the continued use of the classrooms at the elementary school; and WHEREAS, the amount of space occupied by the temporary buildings and sidewalks is approximately 0.074 acres or less than 0.01 percent of the total parkland at Sunset Hills; and WHEREAS, City agrees to permit the encroachment pursuant to the terms of this License Agreement. NOW THEREFORE, in consideration of the mutual covenants herein expressed, the parties agree as follows: AGREEMENT SECTION 1. For and in consideration of the rental payments to be paid under this license and the agreements of the parties expressed herein, City does hereby sion ,: , . . r, and license to maintain an encroachment consisting of two tem olwy ;portal3) cy�ls om buildings and concrete sidewalks consisting of approximately 3,22 ste ; a - e C ity- owned property described as follows: p 0.074 acres of Sunset Hills Park more particularly described by Exhibit "A"that is attached hereto and made a part hereof. The property described shall be referred to herein as the "licensed premises." SECTION 2. FWISD shall pay the City an annual rental of One Dollar ($1.00), which shall be due and payable upon execution of this License Agreement. The license term shall be for one (1) year commencing May 1, 2003, and terminating April 30, 2004, unless a prior termination is effected by either party hereto pursuant to the termination provisions expressed herein. The primary term may be renewed by mutual agreement between the FWISD and City for an additional (1) year term under the same conditions and terms of this Agreement. FWISD must provide written notice to the City of its intent to renew the primary term sixty-days prior to expiration of the primary term. The terms of this license shall continue to govern and control the relationship of the parties during any renewal period. SECTION 3. The City has not made, does not make, and specifically disclaims any representations, guarantees, covenants, agreements or warranties (express or implied) of any kind or character as to the nature, quality, condition, availability, merchantability, suitability or fitness of the licensed premises for any particular activity, use or purpose including without limitation those activities, uses or purposes contemplated herein. FWISD hereby acknowledges that it has fully inspected the licensed premises and is relying solely upon its own investigation of the condition of the licensed premises and not on any information provided by the City. The City shall deliver the licensed premises in an "AS-IS" CONDITION WITH ALL FAULTS, AND WITHOUT ANY WARRANTIES. EXPRESS OR IMPLIED. SECTION 4. FWISD shall be solely responsible for the maintenance of the encroachments and that portion of the licensed premises that contain the encroachments at FWISD's sole cost and expense. FWISD shall comply with any City standards of maintenance and shall, at all times, maintain the licensed premises in a safe condition. SECTION 5. FWISD shall not construct any further improvements or structures on the licensed premises without the prior written consent of the City. SECTION 6. a) In the event it becomes necessary for the City to utilize the licensed premises for any municipal purpose, the City, at its sole discretion and for any cause, may terminate this Agreement by giving FWISD written notice of termination thirty days (30) days prior to the intended termination date. (b) In the event of breach of any of the terms and conditions of this agreement by FWISD, the City may terminate this license by giving FWISD written notice of termination; provided, that FWISD shall have thirty (30) days opportunity to cure any such default from the date of such notice, and in the event such default is cured within said thirty (30) day period, this agreement will continue in effect. Termination of this Agreement will occur if the default continues by the defaulting party for a period of thirty (30) days after the notifying party informs the defaulting party in writing of the default and its intention to declare this Agreement terminated, except as otherwise set out in this Agreement. 2 (c) In the event this agreement is terminated, it shall be the duty of FWISD to remove any portions of the encroachment on the licensed premises, at FWISD's sole expense, within thirty (30) days if directed to do so by the City in writing. If the FWISD shall fail to remove and restore the licensed premises, the City may proceed to perform such removal and restoration and may bill FWISD for the cost thereof, which bill for cost shall be paid within thirty (30) days of receipt by FWISD. FWISD agrees that it shall not be entitled to any reimbursement for the cost or value of any improvements, structures, or personal property located on the licensed premises and removed by the City pursuant to this agreement. SECTION 7. FWISD shall not commit nor allow any waste to be committed on the licensed premises, nor shall FWISD maintain, commit or permit the maintenance or commission of any nuisance on the licensed premises or use the licensed premises for any unlawful purpose. SECTION 8. FWISD shall not assign or sublet this License Agreement without the prior written approval of City, and any such unauthorized assignment or sublicense shall constitute a breach of this license. SECTION 9. The City reserves the right to enter upon the licensed premises at all reasonable times for the purpose of inspecting the premises or otherwise using the premises, provided that any such entry does not conflict with FWISD's rights hereunder. SECTION 10. (a) TO THE EXTENT PERMITTED BY LAW, FWISD 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 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 WORK AND SERVICES TO BE PERFORMED HEREUNDER BY FWISD, ITS OFFICERS, AGENTS, EMPLOYEES, SUBCONTRACTORS, LICENSEES OR INVITEES, WHETHER OR NOT CAUSED, IN WHOLE OR IN PART, BY THE ALLEGED NEGLIGENCE OF THE OFFICERS, SERVANTS, EMPLOYEES, OF THE CITY; TO THE EXTENT PERMITTED BY LAW, FWISD 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, WHETHER ARISING OUT OF IN WHOLE OR IN PART, ANY AND ALL ALLEGED ACTS OR OMISSIONS OF OFFICERS, OR EMPLOYEES OF CITY. (b) This indemnity does not cover or include any claim or liability arising out of the sole negligence of the City, its officers, employees, agents or servants. (c) FWISD and the City agree to notify the other promptly upon the receipt of any claim or lawsuit brought in connection with any injury, death or damages on the premises. FWISD and the City agree to make its officers, agents, and employees available at all reasonable times for any statements and case preparation necessary for the defense of any claims or litigation for which the City or FWISD may be responsible hereunder. 3 (d) Nothing herein shall be deemed to constitute a waiver of any immunity or affirmative defense, which may be asserted by FWISD or the City as to any claim of any third party. (e) Nothing herein 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 for the benefit of any person not a party to this Agreement not otherwise existing at law. SECTION 11. Upon execution of this Agreement, FWISD shall provide a certificate of self-insurance or procure, pay for and maintain the following insurance written by companies approved by the State of Texas and acceptable to City. Executed statements of self insurance or certificates of insurance and/or certified copies of policies as determined acceptable by the City, shall be delivered to City at the execution of this Agreement. SECTION 12. All notices required hereunder shall be sent to City at the following address: DIRECTOR OF PARKS AND COMMUNITY SERVICES CITY OF FORT WORTH 4200 SOUTH FREEWAY, SUITE 2200 FORT WORTH, TEXAS 76115 With a copy to: SARAH FULLENWIDER ASSISTANT CITY ATTORNEY 1000 THROCKMORTON STREET FORT WORTH, TEXAS 76102 All notices to FWISD shall be sent to the following address(s): PRESIDENT, BOARD OF EDUCATION FORT WORTH INDEPENDENT SCHOOL DISTRICT 100 NORTH UNIVERSITY DRIVE, SUITE 150 FORT WORTH, TEXAS 76107 Mailing of all notices pursuant to this Section shall be deemed sufficient if mailed postage prepaid and addressed as specified above, unless either party has been notified in writing of any change in the other parties address. All time periods related to any notice requirements specified in this license shall commence either on the date notice is mailed or on the date notice is received by the party to whom it is sent, depending on the terms specified in the Section requiring notice. If no terms are specified, notice shall be effective on the date it is mailed in accordance with this Section. 4 SECTION 13. It is expressly understood and agreed that the FWISD is an independent contractor and not an officer, agent, servant or employee of the City; that FWISD shall be solely responsible for the acts and omissions of its officers, agents, employees, contactors and subcontractor; that the doctrine of respondeat superior shall not apply as between the City and FWISD, its officers, agents, employees, contractors and subcontractors; and that nothing herein shall be construed as creating a partnership or joint enterprise between the City and FWISD. No person performing any of the work and services under this License Agreement hereunder shall be considered an officer, agent, servant, or employee of the City. SECTION 14. The FWISD shall at all times observe and comply with all applicable federal and state laws, local laws, ordinances, orders and regulations of the federal, state, county or city governments. SECTION 15. This license shall constitute the entire agreement of the parties to this license and shall supersede any prior agreements of said parties, either oral or written, pertaining to the subject matter specified herein. SECTION 16. This license and the relationship created hereby shall be governed by the laws of the State of Texas. Venue for any action arising under the terms and conditions of this agreement shall lie in the state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. SECTION 17. This license shall be binding on the successors and lawful assignees or sub licensees of FWISD and the successors of the City. Any person or entity using or occupying the licensed premises without a lawful assignment or sublicense shall be subject to all the responsibilities and liabilities of FWISD set forth hereunder and shall be subject to all the provisions regarding termination and eviction set forth herein. Any such person or entity shall be deemed to be an agent or representative of FWISD and shall be deemed to have notice of the terms, covenants, and conditions of this license. SECTION 18. If any of the Provisions contained in this Agreement shall be held, for any reason, to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability, shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. SECTION 19. The term "FWISD" as used herein shall also include the agents, representative, employees, invitees, and licensees of FWISD. 5 AY EXECUTED on this the day of G4z4ld ' 2003. CITY OF FOR ORT FORT WORTH INDEPENDENT SCHOOL DISTRICT Joe Pagu L}&e Manny, President Assist t Ci M r Board of Education AT ST: ATTEST: City Secre6ry S retary, Board'oT Education APPROVED AS TO FORM AND LEGALITY Daviett, City 1Attorney � By:r Assistant City Attorney Contract Authorization Bate V iyl��V 'Yi�V V�V 6 STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned, a Notary Public in and for the State of Texas, on this day personally appeared Joe Pamagua, Assistant City Manager for the City of Fort Worth, known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that the same was the act of the said City of Fort Worth, and that he executed the same as the act and deed of the City of Fort Worth, a municipal corporation of Tarrant, Denton and Wise Counties, Texas and for the purposes and consideration therein expressed, and in the capacity therein stated. Subscribed to and sworn before me this day of ) 2003. Notary Public in and for the State of Texas My Commission Expires: STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned, a Notary Public in and for the State of Texas, on this day personally appeared Lynne Manny, President of the Board of Education for the Fort Worth Independent School District, known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that the same was the act of the said Fort Worth Independent School District, and that she executed the same as the act and deed of the Fort Worth Independent School District, a political subdivision, for the purposes and consideration therein expressed, and in the capacity therein stated. Subscribed and sworn to before me this day of �° , 2003. o�PPv P GAYLE L.WILLIAMS ' Notary Public � - 0� � ,r3 STATE OF TEXAS Notary 6blic in and for the State of Texas My Comm.Exp.08107/2004 My Commission Expires: 7 t-` �? t�i, 'd!jti 1 �r , 3a` � •' yJ �6, - - y ^�.� `r 1pn 'int• S L+ Y e' '•(,.Y ii y ! f'tl.. �\.��� � L�^S' � 2a.M�S<r T.r J. 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