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HomeMy WebLinkAboutContract 54022 r0, CSC No. 54022 TEMPORARY LICENSE AGREEMENT C1T OF SEC1i�YNFv C11v 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 Ervin Cable Construction,LLC, a Texas corporation("Company"). WHEREAS, the City owns a certain piece of property known as Overton Park, located at 3500 Overton Park Drive East,Fort Worth,TX 76109(the"Park"); and WHEREAS,the Company desires to gain access over and through the Park to install conduit on a neighboring property; and WHEREAS,the City has reviewed the Company's plans and agrees to grant the Company access over and 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. In accordance with the terms and conditions of this Agreement, City hereby grants to the Company a non-exclusive license to use a portion of the Park as more accurately depicted in in Exhibit A (the "Licensed Premises"), which is attached hereto and incorporated herein for all purposes. 2. Term. The term of this Agreement shall be for 30 consecutive days ("License Period"), commencing upon execution of this Agreement by City("Commencement Date") and expiring at 11:59 P.M. on the 30th day following the Commencement Date 3. License Fee. City and Company expressly agree and stipulate that this Agreement is based on valuable consideration and an exchange of promises that will be independently beneficial to both parties. Both parties agree as a condition precedent to executing this Agreement that the consideration is valuable and sufficient and that neither party shall be able to assert otherwise in the event of litigation. Nothing herein shall constitute an obligation of City funds. City shall not owe any amount of money for any reason whatsoever to the Company for services rendered in OFFICIAL.RECORD; Temporary License Agreement—Overton Parke May 18,2020 CM SkATARV FT WORTH, T u connection with this Agreement. City shall not be liable nor owe any payment, fee, cost,penalty, or money for any other reason whatsoever to Company. 4. Use of the Licensed Premises. a. Company may use the Licensed Premises for access and equipment space necessary for the installation of conduit on a neighboring property, as shown on the attached Exhibit B, which is attached hereto and incorporated herein for all purposes. The Licensed Premises shall be used for no other purposes. b. 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. A violation of this provision will allow the City to immediately terminate the Agreement. 5. Termination. The City may terminate this Agreement, without cause, upon five (5) days written notice to the Company or immediately upon any breach of this Agreement by the Company. 6. Acceptance of Licensed Premises. Company takes all portions of the Licensed Premises and all appurtenances in "'AS IS" condition without any express or implied warranty on the part of the City.Company accepts the Licensed Premises in their present condition,finds them suitable for the purposes intended, and further acknowledges that Company 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 Licensed Premises or their suitability for the purposes intended. Company accepts the Licensed Premises subject to any and all previously recorded easements that may have been granted on,along,over,under,or across said property,and releases the City from any and all damages, claims for damages, loss, or liabilities that may be caused to invitees, licensees, contractors, or trespassers by reason of the exercise of such rights or privileges granted in said easements. Company's taking possession of the Licensed Premises shall be conclusive evidence that: (a)the Licensed Premises are suitable for the purposes and uses for which same are licensed; and (b) the Company waives any and all defects in and to the Licensed Premises and all the appurtenances thereto. 7. 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 Licensed Premises to other persons and entities as the City deems appropriate in accordance with applicable law; provided, however, that in granting subsequent Temporary License Agreement—Overton Park 2 of 20 May 18,2020 authorization for use, the City will not allow a use that will unreasonably interfere with the Company's use of the Licensed Premises as provided herein. This Agreement does not establish any priority for the use of the Licensed Premises 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 Licensed Premises, the first priority shall be to the public generally, the second priority to the City in the performance of its various functions,and thereafter,as between licensees and other permit holders, as determined by the City in the exercise of its powers. 8. Liability. Company covenants and agrees to release City, its officers, agents, representatives, servants,and employees,from and against any and all claims or suits for property damage,personal injury, or any other type of loss or adverse consequence related in any way to the existence of this Agreement or the use and occupancy of the Licensed Premises and the Park. Furthermore, City shall not be liable to Company for any damage or theft of Company's equipment,facilities,or other contents. 9. Public Safety. a. Company shall be solely responsible for initiating,maintaining, and supervising all safety precautions and programs in connection with Company's use of the Licensed Premises and the Park. b. At the request of City, Company shall: (i) install and maintain construction orange mesh fencing around the entire border of the Licensed Premises; and(ii) erect a controlled-access entry in the perimeter construction fencing in the form of chain link,as approved by the Director to ensure that unauthorized personnel cannot enter the Licensed Premises. Following installation of the fencing and controlled-access entrance, Company shall contact the Director to inspect for proper installation. The controlled-access entry fencing shall be kept secure when not in use. At no time shall any fenced area be left open unless staffed by security personnel. C. In addition, Company shall provide construction and maintenance signs and sufficient barricades at work sites to protect the public. The use of traffic control devices shall be consistent with the standards and provisions of Part VI of the Texas Manual on Uniform Traffic Control Devices.Company shall utilize appropriate warning lights at all construction and maintenance sites where one or more traffic lanes are closed or obstructed during nighttime conditions. Company shall also take all necessary precautions and shall provide all necessary protection to prevent damage,injury,or loss to(a)all persons accessing portions of the Licensed Premises on which any construction is being performed by or on behalf of the Company;(b)all work performed on or from the Licensed Premises and all materials and equipment to be incorporated therein that are under the Temporary License Agreement—Overton Park 3 of 20 May 18,2020 care, custody, or control of the Company, or the Company's employees, agents, contractors, or subcontractors,regardless of whether such material and equipment is stored on or off the Licensed Premises; and(c)other property on or adjacent to the Licensed Premises. 10. 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 set forth in Exhibit C, which is attached hereto and incorporated herein for all purposes. If Company fails to complete all repairs and restoration to the Licensed Premises and any other City property prior to the expiration of the Agreement, 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. 11. Minimizing Impact to Ve etg ation a. Company shall not cut or remove any trees on the Licensed Premises unless otherwise specifically permitted by the City.To minimize damage during construction,Company shall install chain link fencing on the outside drip line of trees and other vegetation specifically identified by the Director at the above-referenced pre-construction meeting and as outlined in accordance with Exhibit E,which is attached hereto and incorporated herein for all purposes.Company shall notify the Director once the tree and vegetation protection measures have been installed and allow the Director an opportunity to inspect the work before construction begins. The City shall have at least two(2)business days following the date on which notice is received to conduct its inspection. The Company may begin construction after the second(2nd)business day following the date on which it provided notice to the City unless the City contacts the Company and identifies specific issues that render the tree and vegetation protection measures unacceptable. b. Company shall ensure that tree protection fencing remains in place throughout the License Period or any extended License Period. If any tree within the Park is damaged in connection with Company's operations, Company agrees to undertake remediation efforts, including paying of remediation costs, in accordance with Exhibit F,which is attached hereto and incorporated herein for all purposes. Any fencing shall remain in place until such time as the Licensed Premises are restored pursuant to the terms of this Agreement. Temporary License Agreement—Overton Park 4 of 20 May 18,2020 12. Minimizing Impact to Utilities. a. Prior to conducting any work on the Licensed Premise, Company shall use its best efforts to locate and physically mark all utilities (including, but not limited to, electric lines, waterlines, sewer lines,storm drains and lines,and gas lines)within the Licensed Premises,which best efforts shall include,but not be limited to, conducting a dig test. b. 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 covenants and agrees to cease construction operations and install protective measures over or around such utilities in compliance with specifications approved by the City's Water Department or by the Director. Following installation of the protective measures,Company shall contact the Director to arrange for inspection and approval by appropriate City personnel. 13. Protection of the Environment. a. Company 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 Park or the Licensed Premises in violation of any applicable laws. Company shall not handle or store any Hazardous Materials on the Licensed Premises or the Park, except that the Company may, in compliance with applicable environmental laws and the terms of this paragraph, use and store Hazardous Materials in such amounts and types that are commonly used in connection with the uses permitted herein,provided,however,that Company specifically agrees to remove any and all such Hazardous Materials on or before the final day of the License Period. Company shall not introduce,use,generate, store,accept,or dispose of on,under,or about,transport across,or permit to exist on the Licensed Premises or the Park any "treatment, storage or disposal facility" or "underground storage tank,"as those terms are defined under applicable environmental laws. For purposes of this Permit,"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 the Company on the Licensed Premises shall be posted on site and a list shall be given to City. b. Company shall take commercially reasonable steps to avoid creating or aggravating any condition at the Park or the Licensed Premises that could present a threat to human health or to the environment. Temporary License Agreement—Overton Park 5 of 20 May 18,2020 14. 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 KIND, 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, WHETHER OR NOT CAUSED, IN PART, BY THE NEGLIGENCE OF THE OFFICERS, AGENTS, REPRESENTATIVES, OR EMPLOYEES OF THE CITY. 15. Limitation on Use. There shall be no equipment on the Licensed Premises within seventy-two(72) hours of a rain event. The Company shall obtain the written approval of the Director 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. 16. 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 premises because of Company's use thereof. 17. Insurance. Company shall carry insurance as set out in Exhibit D, which is attached hereto and incorporated herein for all purposes. 18. Prohibition Against Liens. Company 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 Licensed Premises or the Park. Any such act,contract,or lien attempted to be created shall be void. Should any purported Temporary License Agreement—Overton Park 6 of 20 May 18,2020 lien on the Licensed Premises be created or filed,the Company shall, at its sole expense, liquidate and discharge same within ten(10)business days after notice from the City to do so. 19. Notice. All notices required or permitted under this Agreement shall be conclusively determined to have been delivered when(i)hand-delivered to the other party, its agent, employee, servant, or representative, or (ii) received by the other party by reliable overnight 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: Richard Zavala Ervin Cable Construction,LLC Director Attn: David Gamez Park and Recreation Department 4405 Reese Drive City of Fort Worth Irving,Texas 75063 4200 South Freeway, Suite 2200 Fort Worth,Texas 76115 With a copy to: Department of Law City of Fort Worth Attn: City Attorney 1000 Throckmorton Fort Worth,Texas 76102 20. 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; pandemics; 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 of the United States; any arrests and restraints;civil disturbances;or explosions;or some other reason beyond the party's reasonable control(collectively,"Force Majeure Event"),the obligations so affected by such Force Majeure Event will be suspended only during the continuance of 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. Temporary License Agreement—Overton Park 7 of 20 May 18,2020 21. Independent Contractor. It is expressly understood and agreed that Company shall operate as independent entity in each and every respect hereunder and not as an agent, representative, or employee of the City. Company shall have the exclusive control and the exclusive right to control all details and day-to-day operations and activities relative to operation of the Company and installation of the sanitary sewer service line and any associated infrastructure and shall be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors, subcontractors, licensees, and invitees. Company acknowledges that the doctrine of respondent superior shall not apply as between the City and Company,its officers,agents,servants,employees, contractors, subcontractors, licenses, and invitees. Nothing contained in this Permit shall be construed as the creation of a partnership or joint enterprise between the City and Company. 22. 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. 23. BindingEffect.ffect. 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. 24. 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. 25. No Waiver of Immunity. Nothing herein shall be deemed to limit or waive the sovereign or governmental immunity of City or Company. 26. 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. Temporary License Agreement—Overton Park 8 of 20 May 18,2020 [SIGNATURE ON FOLLOWING PAGE] By executing this Agreement, Company agrees to and accepts the terms, conditions and provision contained herein. CITY OF FORT WORTH: ERVIN CABLE CONSTRUCTION,LLC: wcwk By: �„a� By: David Creek* Name: David Gamez Assistant Director Title:Authorized Agent Park and Recreation Department Date: Jun 11,2020 Date: May 21,2020 * David Creek 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 May 6,2019. APPROVED AS TO FORM AND LEGALITY: Matt Murray Assistant City Attorney No M&C required. Ordinance No. 24161-04-2020 ATTESTED BY: City Secretary 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. chrirtina moan By: naumeuum+� Name: cnristina moon Title: Park Planner OFFICIAL RECORD Temporary License Agreement—Overton Park �� �EC®�4�(�„�, May 18,2020 G i�saa�° r R FT. 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