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HomeMy WebLinkAboutContract 53700 CITY SECRE r'ARY CONTRACT N0. Jc 37 d0 TEMPORARY LICENSE AGREEMENT This Temporary License Agreement("Agreement") is entered into by and between the City of Fort Worth, Texas,a home-rule municipal corporation of the State of Texas("City"), and Union Pacific Railroad Company,a Delaware corporation("Company"). WHEREAS, the City owns a certain piece of property known as Echo Lake Park located at 1000 Echo Lake Drive,Fort Worth,Texas 76110(the"Park");and WHEREAS, The Company desires to gain access through and over the Paris for access to Company's right-of-way to perform geotechnical borings and exploration;and WHEREAS, Company has represented to the City that there is no feasible alternative location in which to gain access to Company's right-of-way for geotechnical borings;and WHEREAS,the City has reviewed the Company's request and agrees to grant the Company access through the Park in accordance with the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the covenants and agreement contained herein, City and Company agree as follows: 1. License Granted. City hereby grants to the Company a non-exclusive license to use a portion of the Park as set forth in more detail in Exhibit A,which is attached hereto and incorporated herein for reference, and as agreed to by the parties in Section 4("Licensed Premises"). 2. License Fee.Prior to the start of the License Period,Company shall pay TEN Dollars and No Cents ($ 10.00)("License Fee')to the City for the rights and privileges granted herein. The License Fee shall due and payable,without demand or offset,in legal tender of the United States at the Park& Recreation Department("Department"),Attn:SWR Accounts Payable,4200 South Freeway,Suite 2200,Fort Worth,Texas 76115 or such other place in Tarrant County,Texas as the Director of the Department or that person's designee("Director") may hereafter notify Licensee (in writing and with reasonable advanced notice). 3. Term. The term of this Agreement shall be thirty (30) days,commencing upon execution of this Agreement. 4. Use of the Licensed Premises. a. Company may use the Licensed Premises for access as shown on the attached Exhibit A. The Licensed Premises shall be used for no other purposes. b. Prior to the commencement of the Term, Company shall outline the boundaries of the Licensed Premises with flagging and orange mesh fencing to the satisfaction of the Director,or his designee. LOFFICIAL RECURU EC�Bp'ETARY Temporary License Agreement—Echo Lake Park 0R;C TX March 2020 c. Prior to the commencement of the Term,Company shad use its best efforts to locate and physically mark all utilities(including,but not limited tp,electric lines,waterlines,sewer lines, storm drains and lines, and gas lines) within die Licensed Premises, which shall include, but not be limited to, conducting a dig test. Wfiith regard to all known water and electric utilities, the Director will work with Company to locate and physically mark all such utilities within the Licensed Premises. If Company encounters any utility infrastructure (including, but not limited to, electric lines, waterlines, sewer lines, storm drains and lines,or gas lines)in the course of or in connection with Company's use of the Licensed Premises,the Company shall provide protectia� of the utilities to the satisfaction of the Director, with such protective measures to be approved by the Director prior the application thereof. d. The Company shall not washout equipment and or concrete,fill up equipment with gas or other oils and hydraulics as to create potential spill hazards within the Park. If this is not adhered to,the agreement can be immediately terminated and additional fines penalties or fines may occur. 5. Termination. The City may terminate this Agreement, without cause, upon five (5)days written notice to the Company or immediately upon a breach of this Agreement by the Company. 6. Use not Exclusive. This Agreement and all rights granted to Company herein are strictly non- exclusive. The City reserves the right to enter into and grant other and future licenses,leases,and other authorizations for use of the Park to other persons and en 'es as the City deems appropriate in accordance with applicable law; provided, however, that in ng subsequent authorization for use, the City will not allow a use that will unreasonably interfere with the Company's use of the Park as provided herein. This Agreement does not establish any priority for the use of the Park by Company or by any present or future licensees or other permit holders. In the event of any dispute as to the priority of use of the Park, the first priority shall be to the public generally, the second priority to the City in the performance of its various functions, and thereafter, as between licensees and other permit holders,as determined by the City in the exercise of its powers,including the police power and other powers reserved to and conferred on It by the State of Texas. 7. Liabilily. Company covenants and agrees to release City, its officers, agents, representatives, servants,and employees,from and against any and all claims or skits for property damage,personal injury,or any other type of loss or adverse consequence related any way to the existence of this Agreement or the use and occupancy of the Licensed Premises nd the Park,except to the extent such claims or suits for property damage, personal injury, or other loss or adverse consequence arises from or is caused by the City's negligence or willful misconduct. Furthermore,City shall not Temporary License Agreement—Echo Lake Park 2 of 15 March 2020 be liable to Company for any damage or theft of Company's equipment,facilities,or other contents, except for such damage or theft arising from the City's negligence or willful misconduct. 8. Restoration of the Park. Company agrees that Company will shall repair and restore: (1) the Licensed Premises; and(2)any City property Company damages,to the same condition or better condition than the Licensed Premises or City property was in immediately prior to the execution of this Agreement as determined by the Director. All such restoration must be conducted in accordance with the standards in Exhibit B,which is incorporated herein by reference. If Company fails to complete all repairs and restoration to the Licensed Premises and any other City property prior to the expiration of the Term, City may, in its discretion, perform all such repairs and restoration on behalf of the Company. In this event,Company will reimburse the City for the costs of such repairs and restoration, and such reimbursement will be due immediately upon written request of the City. 9. INDEMNIFICATION. COMPANY AGREES TO AND DOES HEREBY DEFEND, INDEMNIFY AND HOLD HARMLESS THE CITY, AND ITS OFFICERS, AGENTS, REPRESENTATIVES, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, ACTIONS, COSTS AND EXPENSES OF ANY MEND, INCLUDING, BUT NOT LIMITED TO,THOSE FOR PROPERTY DAMAGE OR LOSS, AND PERSONAL INJURY,INCLUDING,BUT NOT LIMITED TO,DEATH,THAT MAY RELATE TO,ARISE OUT OF OR BE OCCASIONED BY(i)COMPANY'S USE OF THE LICENSED PREMISES AND THE PARK,(ii)COMPANY'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT, OR (iii) ANY ACT OR OMISSION OF COMPANY OR ITS OFFICERS, AGENTS, REPRESENTATIVES, EMPLOYEES, CONTRACTORS,AND SUBCONTRACTORS, RELATED TO THIS AGREEMENT OR THE PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT, EXCEPT TO THE EXTENT SUCH CLAIMS, LAWSUITS, ACTIONS, COSTS AND EXPENSES ARISE FROM OR ARE CAUSED BY THE CITY'S NEGLIGENCE OR WILLFUL MISCONDUCT. 10. Limitation on Use. There shall be no equipment on the Park within 72 hours of a rain event. The Company shall obtain the written approval of the Director,or his designee,of all heavy equipment that will be used in the Licensed Premises and Company shall not use any heavy equipment in the Licensed Premises that has not been approved by the Director or his designee.The Company agrees that it shall not cut, clear or remove any vegetation as a part of it efforts to conduct work (See Exhibits C&D on tree protection and damages). Temporary License Agreement—Echo Lake Park 3 of 15 March 2020 11. Compliance with Laws. Company shall,at its own cost and expense, comply with all applicable laws,including,but not limited to,existing zoning ordinances,governmental rules and regulations enacted or promulgated by any governmental authority and shall promptly execute and fulfill all orders and requirements imposed by such governmental entities for the correction,prevention and abatement of nuisances in or upon or connected with said prelpises because of Company's use thereof. 12. Self-Insurance. Company confirms and acknowledges that Company is self-insured, and that Company will self-insure all risks associated with this Agreement. 13. Notice. All notices required or permitted under this Agreement shall be conclusively determined to have been delivered when(i)hand-delivered to the other part ,its agent, employee,servant,or representative, or (ii) received by the other party by reliable otreraight courier or United States Mail,postage prepaid,return receipt requested,at the address stated below or to such other address as one party may from time to time notify the other in writing. To THE CITY: To COMPANY: Director Union Pacific Railroad Company Park and Recreation Department Attn: Steve Sand,Director—Acquisitions City of Fort Worth 1400 Douglas Street,MS 1690 4200 South Freeway,Suite 2200 Omaha,Nebraska 68179 Fort Worth,Texas 76115 With a copy to: Department of Law City of Fort Worth Attn: City Attorney 1000 Throckmorton Fort Worth,Texas 76102 14. Public Safety. Company shall be solely responsible for initiating,maintaining,and supervising all safety precautions and programs in connection with the CompanT's use of the Park. 15. Hazardous Materials. Under no circumstances will the Company use or cause to be used on the Park any hazardous or toxic substances or materials,or intentionally or knowingly store or dispose of any such substances or materials on the Park. 16. 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, Temporary License Agreement—Echo Lake Park 4 of 15 March 2020 county, or City government in accordance with applicable law; issuance of an Imminent Threat Alert or Elevated Threat Alert by the United States Department of Homeland Security or any equivalent alert system that may be instituted by any agency of the United States;any arrests and restraints; civil disturbances; or explosions; or some other reason beyond the parry'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. 17. 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. 18. Binding Effect. The terms and provisions of this Agreement shall inure to the benefit of and be binding upon City and Company and their respective successors and assigns and shall be covenants running with the land. 19. Entire Agreement. This Agreement contains all of the agreements between the parties respecting the subject matter hereof, and no prior representations or statements,verbal or written,have been made modifying,adding to,or changing the terms of this instrument. 20. No Waiver of Immunity. Nothing herein shall be deemed to limit or waive the sovereign or governmental immunity of City or Company. 21. Assignment. This Agreement, in whole or in part, is not assignable by either party, without the express written consent of the other party. Any attempt to assign this Agreement without the required consent is void and without force and effect. [SIGNATURE ON FOLLOWING PAGE] By executing this Agreement, Company agrees to and accepts the terms, conditions and provision contained herein. Temporary License Agreemett—Echo Lake Park 5 of 15 March 2020 CITY OF FO 'WORTH: UNION PACIFIC RAILROAD COMPANY: By: By: icha•d ZaV61a Name: Steve Sand Park and Recreation Department* Title:Director-r Acquisitions Date• /4 TL Date: 3 "r" 20Q O *Richard Zavala has been delegated the proper authority to execute this document on behalf of the City pursuant to an Interoffice Memorandum from the City Manager dated October 12,2018. APPROVED AS TO FORM AND LEGALITY: Matt Murray Assistant City Attorney '= .�;� ATTESTED BY; V C Secr 1 Contract Compliance Manager: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract,including ensuring all performance and reporting requirements. Christina Moon Title Contract Authorization: No M&C Required OFFICIAL RECORD CITY SECRETARY FT WORTH,TX Temporary License Agreement—Echo Lake Park 6 of 15 March 2020 EXHIBIT A LICENSED PREMISES UPRR anticipates using Echo Lake Drive as Ingress and egress to railroad right-of-way for geotechnical drilling equipment.The equipment will Include a CME 75 truck mounted drill rig and support pickup truck(1 ton)with flat bed tooling traller.Drilling will take place within UPRR right-of-way.Information on the drill rig is enclosed and the anticipated route through the park is shown In red on the Figure 1 below. �F. r�k a' 5•a Figure 1 Drill Rig Access Through Park Temporary License Agreement—Echo Lake I'ark 7 of IS March 2020 EXHIBIT B PARK RESTORATION STANDARDS SECTION 02930-TURF SODDING PART 1-GENERAL 1.01 DESCRIPTION A. Work Included: This work includes all labor,materials and equipment for soil preparation,fertilization,planting and other requirements regarding turfgrass sodding shown on the plans. B. Related Work Specified Elsewhere: Section 02300,Earthwork. 1.02 REFERENCE STANDARDS A For exotic plant materials: American Joint Committee of Horticultural Nomenclature, Second Edition,1942. B. For native materials a. Manual of the Vascular Plants of Texas by Co 1 and Johnston b. Check List of Vascular Plants of Texas by Hatt c. Flora of North Central Texas by Shinners and tiller 1.03 SUBMITTALS Samples,certificates and specifications of sod,fertilizer,Compost, soil amendments or other materials may be requested by the City. All delivery receipts and copies of invoices for materials used for this work shall be subject to verification by the City. 1.04 PRODUCT DELIVERY,STORAGE AND HANDLING A. Sod: Harvesting and planting operations shall be coordinated with not more than forty eight hours elapsing between the harvesting and planting. B. Fertilizer 1. Unopened bags labeled with the analysis. 2. Conform to Texas Fertilizer Law. 1.05 QUALITY CONTROL The Developer/Contractor who plants the sod is responsible for supervision of his crew,while planting the sod and maintaining the sod until the project is accepted by the City. TURF SODDING 02930 -I- Temporary License Agreement—Echo Lake Park 8 of 15 March 2020 PART 2—PRODUCTS 2.01 SOD A. The sod shall be Buchloe dactyloides("Prairie"Buffalograss)and shall consist of stolons, leaf blades,rhizomes and roots with a healthy,virile system of dense,thickly matted roots throughout the soil of the sod for a thickness not less than one inch. Sod shall be alive, healthy and vigorous and shall be free of insects,disease,stones and undesirable foreign materials and grasses. Sod shall have been produced on growing beds of clay or clay-loam topsoil. The sod shall not be harvested or planted when its moisture condition is so excessively wet or dry that its survival will be affected. 1f sod is stacked,it shall be kept moist and shall be stacked roots-to-roots and grass-to-grass. B. The sod shall be cut in strips four feet wide to be laid parallel with the contours. 2.02 FERTILIZER A. All fertilizer shall be delivered in bags or containers clearly labeled showing the analysis. B. All fertilizer shall be in acceptable condition for distribution and shall be applied uniformly over the planted area two weeks after sodding. C. All fertilizer shall have an analysis of 3-1-2 or as designated on the plans. The fertilizer rate shall be 45 pounds of nitrogen per acre. 2.03 WATER The water shall be firnushed by the Developer/Contractor and shall be clean and free of industrial wastes or other substances harmful to the germination of the seed or to the growth of the vegetation. The amount of water will vary according to the weather variables. Generally,the sod should be soaked one time per day for three weeks or until established. Soaking is mandatory after spreading the fertilizer. 2.04 COMPOST All compost material is to be totally organic and decomposed for at lease nine months. All compost is to be clean and free of fungus,disease,live plants,seed,excessive cotton lint and any harmful chemicals. "New Life Soil Conditioner"or"Perma Green Compost",as specified below or an approved equal,shall be used Raw organics are not acceptable. A. For soil with an alkal'arc PH condition: Use"New Life Acid Gro"(acid pH)soil conditioner as produced by Soil Building Systems of Dallas,or an approved equal. B. For soil with an acidic E condition: Use"Perna Green Compost"by Texas Earth Resources,Inc.of Dallas,or"New life Natural Grower"(ph 8.0 to 9.0)by Soil Building Systems,Inc.,of Dallas. C. Sample and Specification Submittal: Submit a producer's specification and a quart sample of the compost proposed for the City's approval. TURF SODDING 02930 -2- Temporary License Agreement—Echo Lake Park 9 of 15 March 2020 PART 3-EXECUTION 3.01 GENERAL All turfing operations are to be executed across the slope,parallel to finished grade contours. 3.02 SOIL PREPARATION A. Scarify subgrade to a depth of three inches before deposiling the required topsoil. B. Tillage shall be accomplished to loosen the topsoil,destroy existing vegetation and prepare an acceptable sod bed. All areas shall be tilled with a heavy duty disc or a chisel- type breaking plow,chisels set not more than ten inches apart. Initial tillage shall be done in a crossing pattern for double coverage,then followed by a disc harrow. Depth of tillage shall be five inches. A heavy duty rototiller may be used for areas to be planted with sod. C. Cleaning: Soil shall be further prepared by the removal of debris,building materials, rubbish,weeds and stones larger than one inch in diatnet D Fine Grading: After tillage and cleaning,all areas to be planted shall be topdressed with one-half inch compost and then shall be leveled,fine graded,and chug with a weighted spike harrow or float drag. The required result shall be the elimination of tuts, depressions,humps and objectionable soil clods. This shall be the final soil preparation step to be completed before planting. 3.03 PLANTING Prior to laying the sod,the planting bed shall be raked smooth to true grade and moistened to a depth of four inches,but not to the extent causing puddling. The sod shall be laid smoothly, tightly butted edge to edge,and with staggered joints. The sod shall be pressed firmly into the sod bed by rolling or by hand tamping with an approved tamper so as to eliminate all air pockets, provide a true and even surface,and insure knitting without displacement of the sod or deformation of the surfaces of sodded areas. Following compaction,compost shall be used to fill all cracks between sods. Excess compost shall be worked into the grass with suitable equipment and shall be well watered. The quantity of compost shall be such that it will cause no smothering or burning of the grass. 3.04 FERTILIZING Twenty-one days after planting,turfgrass areas shall receive an application of 3-1-2 fertilizer at the rate of 45 pounds of nitrogen per acre. Water well after appli rttion to prevent burning. END OF SECTION TURF SODDING 02930 -3- Temporary Licatse Agreement—Echo Lake Park 10 of 1 S March 2020 ozoz qwgw Si do 1 i )Ngd 2V I oyrd—ivau�8y osuooi 1 (eaeodwo,i, O O (/j O Z O v C%2 C4 n v n a a IA A o Ilk ic.T�� Of w O •n O N ,+=1 --� J 4 � _� ,--- vi molla'alo Id 211AH L a.LIHIHXa ozoz IPJBw St to ZI ilied 2Y19-1 oyog—]ua u=AV mmorI AjwodwjL rA a P �z 6 rC� CA 44 , A . x V V 1 .., cs 1� k k Temporary License Agro met—Echo Lake Perk 13 of 15 Much 2020 EXHIBIT D DAMAGE TO CITY TREES NO PRUNING OF ANY CITY TREE SHALL BE PEWTTED, UNLESS SPECIFIED OTHERWISE IN THESE SPECIFICATIONS. Severe damage to trees will result in replacement or compensation of trees by the COMPANY. Failure to replace damaged trees shall be considered a breach of contract and COMPANY shall be assessed for damages. Slight or moderate damage to trees will result in assessment of damages. ASSESSMENT OF DAMAGES TO TREES I.I. Company will check trees in the Licensed Premises before contract work begins,any damage will be noted and reported to the Director or his designee. 1.2. The Director,or his designee,may conduct random checks of the trees during the License Period. 1.3. A check of all trees may be made at the end of the License Pe*& The City Forester,Director or his designee,and Company will attend the inspection. 1.4. Damages shall be documented by memo to the City Forester with copy to contract file and the Company. 1.5. Company may have the option of replacement or payment for severely damaged trees at a location to be designated by the Parks and Recreation Department. Replacement shall be made on caliper inch per caliper inch basis with a minimum size of replacement tree of 2"in caliper for trees damaged or removed less than 30"diameter at breast height(DBH)and 2" per inch on trees 30" DBH or greater. Company shall be responsible for any planting, watering, mulching and maintenance of replacement trees for a period of not less than 2 years. Company shall compensate the City at a rate of$200 per caliper inch for any tree that does not survive the 2 year establishment period. 1.6. Slight Damage shall be defined as damage, in the opinion of the City Forester that may heal. Examples include,but are not limited to,scaring of the trunk into the cambial layer'h"to 2"in width but less than 11'3 trunk circumference or breaking of limbs less than 2"in diameter or limbs less than 1/3 trunk caliper, whichever is less. Slight damage shall also include removal or lying down of protective tree fencing prior to the end of construction, storing equipment or supplies within the critical root zone(CRZ),or disposing of paint or concrete within the CRZ but not closer to the trunk than S010 radius of the CRZ.Slight damage to trees shall be assessed at a rate of$100.00 for each instance. For each day that tree fencing is not properly placed, equipment or supplies are stored within CRZ,or fill is stored within the CRZ,shall be considered pre instance. 1.7. Moderate damage shall be defined as damage,in the opinion of the City Forester,that contributes to the poor health and reduced longevity of the tree,and examples include,but are not limited to,scaring of the trunk into the cambial layer greater than 2"but less than 1/3 of the trunk circumference or breaking pf limbs more than 2"in diameter but less than 1/3 trunk caliper. Moderate damage shall also include compaction of soil,grading or filling in 20%of the CRZ on one of four sides but outside the 50% radius of the CRZ, or disposing of paint or concrete within 50% radius of the CRZ. Moderate damages shall be calculated at a rate of%the assessed wt I u c of the tree per each instance of damage. Temporary License Agreement—Echo Lake Park 14 of 15 March 2020 1.8. Severe damage or removal of trees is subject to a penalty of$200 per diameter inch of trees removed or damaged for trees less than 30"DBH and$400 per diameter inch of trees 30"DBH or greater. Severe damage or removal shall include, but is not limited to,scaring of the trunk to the cambial layer greater than 1/3 the trunk circumference, uprooting or causing a tree to lean,or damage to a scaffolding branch or branch greater than 1/3 of trunk caliper. Severe damage shall also include compaction of soil,grading or filling more than 20%of the CRZ,or within 50%radius of the CRZ or on more than one of 4 sides.Cutting 1/3 of the buttress roots within 3 times the distance of the DBH of the trunk, or cutting 4 roots 4"or greater in diameter within 4' of the trunk shall also be considered severe damage. 1.9. Branches shall be measured at the point of attachment or at the lateral to which the branch would be pruned back to according to ANSI standards. Trees caliper shall be measured according to accepted industry standards. Trees greater than 6"in caliper shall be measured using DBH. Trees that must be removed due to damage caused by Company shall be removed by the Parks and Recreation Department's Forestry Section Tree Removal Contractor at Company's expense. 1.10 All damages shall be paid to the City Tree Fund. Failure to replace or pay for damaged trees shall result in a breach of contract and Company will be automatically assessed damages. Damages as described herein shall be deducted from payments otherwise due to Company. 1.11 Remediation costs assessed hereunder constitute contractual damages intended to compensate the City,as property owner, and have no beating on whether or to what extent any fines may he due under the Urban Forestry Ordinance of the Fort Worth Zoning Ordinance. Temporary License A pemu t—Echo Lake Park 15 of 15 March 2020