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HomeMy WebLinkAboutContract 45101 (3)COMMUNITY FACILITIES AGREEMENT THE STATE OF TEXAS § COUNTY OF TARRANT § City Secretary Contract No. 145 Jo t WHEREAS, the undersigned Developer ("Developer") desires to make certain improvements ("Improvements") related to a project as described below ("Project") within the City of Fort Worth, Texas ("City"); and WHEREAS, the Developer and the City desire to enter into this Community Facilities Agreement ("CFA" or "Agreement") in connection with the Improvements; and WHEREAS, the City and Developer anticipate future cost participation by the City consistent with the Policy (as defined herein). Developer and Project Information: Developer Company Name: Elan West 7th, L.P. Address, State, Zip Code: 600 E. Las Colinas Blvd., Suite 2100 I Irving, .TX 75039 Phone, E-Mail: (469) 417-6507, lsparks@greystar.com Authorized Signatory/Title: Laird Sparks, Vice President Project Name and Brief Description of Improvement: Public Raw Water Line Replacement within Existing Easement Project Location: West of Carroll Street, North of Merrimac Plat Case No.: FP-013-029 Plat Name: Linwood Addition Council District: 9 To be completed by staff Received by: /LL., RECEIVED NOV 12 713 • City Project No: 02205 1 CFA: 2013-067 DOE: 7155 Date: 1 to 1 OFFICIAL RECORD CITYSECRETARI( t WORTH, TX z NOW, THEREFORE, For and in consideration of the covenants and conditions contained herein, the City and the Developer do hereby agree as follows: General Requirements A. The Policy for the Installation of Community Facilities ("Policy") dated March 2001, approved by the City Council of the City of Fort Worth, as amended, is hereby incorporated into this Agreement as if copied herein verbatim. Developer agrees to comply with all provisions of said Policy in the performance of its duties and obligations hereunder and to cause all contractors hired by Developer to comply with the Policy in connection with the work performed by said contractors. B. Developer shall provide financial security in conformance with paragraph 6, Section II, of the Policy and recognizes that there shall be no reduction in the collateral until the Project has been completed and the City has officially accepted the Improvements. Developer further acknowledges that said process requires the contractor to submit an Affidavit of Bills paid signed by its contractor and Consent of Surety signed by its surety to ensure the contractor has paid the sub -contractor and suppliers in full. Additionally, the contractor will provide in writing that the contractor has been paid in full for all the services provided under this contract. C. Developer agrees to cause the construction of the Improvements contemplated by this Agreement and that said construction shall be completed in a good and workmanlike manner and in accordance with all City standards and the City - approved construction plans, specifications and cost estimates provided for the Project and the exhibits attached hereto. D. .The following checked exhibits are identified and made a part hereof: Water (A) X, Park Construction Detail (B) X , Park Permit (C) X E. The Developer shall award all contracts for the construction of the Improvements in accordance with Section II, paragraph 7 of the Policy and the contracts shall be administered in conformance with paragraph 8, Section II, of the Policy. F. For all Improvements included in this Agreement for which the Developer awards construction contract(s), Developer agrees to the following: i. To employ a construction contractor who is approved by the director of the department having jurisdiction over the infrastructure to be constructed, said contractor to meet City's requirements for being insured,; licensed and bonded to do work in public streets and/or prequalified to perform water/waste water construction as the case may be. ii. To require its contractor to furnish to the City a payment and performance bond in ii. To require its contractor to furnish to the City a payment and performance bond in the names of the City and the Developer for one hundred percent (100%) of the contract price of the Improvements, and a maintenance bond in the name of the City for one hundred percent (100%) of the contract price of the Improvements for a period of two (2) years insuring the maintenance and repair of the constructed infrastructure during the term of the maintenance bond. All bonds to be furnished before work is commenced and to meet the requirements, of Chapter 2253, Texas Government Code. iii. To require the contractor(s) it hires to perform the construction work contemplated herein to provide insurance equal to or in excess of the amounts required by the City's standard specifications and contract documents for developer -awarded infrastructure construction contracts. The City shall be named as additional insured on all insurance required by said documents and same will be evidenced on the ACORD Certificate of Insurance supplied by the contractor's insurance provider and bound in the construction contract book. iv. To require its contractor to give 48 hours notice to the City's Construction Services Division of intent to commence construction so that City inspection personnel will be available; and to require the contractor to allow the construction to be subject to inspection at any and all times by City inspection forces, and not to install or relocate any sanitary sewer, storm drain or water pipe unless a responsible City inspector is present and gives his consent to proceed, and to make such laboratory tests of materials being used as may be required by the City v. To require its contractor to have fully executed contract documents submitted to the City to schedule a Pre -Construction Meeting. The submittal should occur no less than 10 working days prior to the desired date of the meeting. No construction will commence without a City -issued Notice to Proceed to the Developer's contractor. G. Developer agrees to provide, at its expense, all engineering drawings and documents necessary to construct the Improvements required by this Agreement. H. Developer, acting as an independent contractor, shall cause the installation or adjustment of the Improvements. I. City shall not be responsible for any costs that may be incurred by Developer in the relocation of any utilities that are or may be in conflict with any of the community facilities to be installed hereunder. J. Developer hereby releases and agrees to indemnify, defend and hold the City harmless for any inadequacies in the preliminary plans, specifications and cost estimates supplied by the Developer for this Agreement. K. Developer shall perform all work within existing easements, whether public or private, or those temporary easements granted herein. L. The Developer further covenants and agrees to, and by these presents does hereby, fully indemnify, hold harmless and defend the City, its officers, agents and employees from all suits, actions or claims of any character, whether real or asserted, brought for or on account of any injuries or damages sustained by any persons (including death) or to any property, resulting from or in connection with the construction, design, performance or completion of any work to be performed by said Developer, his contractors subcontractors, officers, agents or employees, or in consequence of any failure to properly safeguard the work, or on account of any act, intentional or otherwise, neglect or misconduct of said DEVELOPER, his contractors, sub -contractors, officers, agents or employees. M. Developer will further require its contractors to indemnify, defend and hold harmless the City, its officers, agents and employees from and against any and all claims, suits or causes of action of any nature whatsoever, whether real or asserted, brought for or on account of any injuries or damages to persons or property, including death, resulting from, or in any way connected with, the construction of the infrastructure contemplated herein, whether or not such injures, death or damages are caused, in whole or in part, by the alleged negligence of th City of Fort Worth, its officers, servants or employees. Further, Developer will require its contractors to indemnify, and hold harmless the City for any losses, damages, costs or expenses suffered by the City or caused as a result of said contractor's failure to complete the work and construct the improvements in a good and workmanlike manner, free from defects, in conformance with the Policy, and in accordance with all plans and specifications. N. Upon completion of all work associated with the construction of the infrastructure and Improvements, Developer will assign to the City a non-exclusive right to enforce the contracts entered into by the Developer with its contractor along with an assignment of all warranties given by the contractor, whether express or implied. Further, Developer 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. O. Inspection and materials testing fees will be shared by Developer and City on an equal basis, to be determined at the conclusion of this Agreement as it may be amended. P. COMPLETION WITHIN 2 YEARS i. The City's obligation to participate in the cost of the Improvements shall terminate if the Improvements are not completed within two (2) years; provided, however, if construction of the Improvements has started within the two year period, the Developer may request that this Agreement be extended for one year. If the Improvements are not completed within such extension period, there will be no further obligation of the City to participate City participation in this Agreement shall be subject to the availability of City funds and approval by the Fort Worth City Council. Any such participation may be added to this Agreement by amendment. ii. Nothing contained herein is intended to limit the Developer's obligations under the Policy, this Agreement, its financial guarantee, its agreement with its contractor or other related agreements. iii. The City may utilize the Developer's financial guarantee submitted for this Agreement to cause the completion of the construction of the Improvements if at the end of two (2) years from the date of this Agreement the Improvements have not been completed and accepted iv. The City may utilize the Developer's financial guarantee to cause the completion of the construction of the Improvements or to cause the payment of costs for construction of same before the expiration of two (2) years if the Developer breaches this Agreement, becomes insolvent or fails to pay costs of construction and the financial guarantee is not a Completion Agreement. If the financial guarantee is a Completion Agreement and the Developer's contractors and/or suppliers are not paid for the costs of supplies and/or construction, the contractors and/or suppliers may put a lien upon the property which is the subject of the Completion Agreement. Q. USE OF PARKLAND The City owns a certain piece of property known as First Flight Park located at Block 20 of Linwood Addition (the "Park") upon which exists certain trees to be protected, removed or relocated according to plans and specifications made a part of the construction documents and across which is an easement dedicated to the City and in which the Improvement will be constructed. The Developer wishes to use certain additional designated portions of the Park as temporary workspace for the construction of the Improvement as shown on Exhibit(s) .A, B, subject to those 5 certain twits, boundaries, and conditions contained in the Park Permit and in conjunction with the construction plans and specifications. (REMAINDER OF PAGE INTENTIONALLY LEFT BLANK) Cost Summary Sheet Project Name. Carroll Street Apartments — Raw Water Line CFA No.: 2013-067 DOE No.: 7155 Items Developer's Cost A. Water and Sewer Construction 1. Water Construction $ 564,085.00 2. Sewer Construction $ Water and Sewer Construction Total $ 564,085.00 B. TPW Construction 1. Street $ 2. Storm Drain $ 3. Street Lights Installed by Developer $ TPW Construction Cost Total $ Total Construction Cost (excluding the fees): $ 564,085.00 Construction Fees: C. Water/Sewer Inspection Fee (2%) $ 11,281.70 D. Water/Sewer Material Testing Fee (2%) $ 11,281.70 Sub -Total for Water Construction Fees $ 22,563.40 E TPW Inspection Fee (4%) $ F. TPW Material Testing (2%) $ G. Street Light lnspsection Cost $ H. Street Signs Installation Cost $ Sub -Total for TPW Construction Fees $ Total Construction Fees: $ 22,563.40 Choke Financial Guarantee Options, choose one Amount (ck one) !Bond = 100% $ 564,085.00 X (Completion Agreement = 100% / Holds Plat $ 564,085.00 !Cash Escrow Water/Sanitary Sewer= 125% $ 705,106.25 !Cash Escrow Paving/Storm Drain = 125% $ !Letter of Credit = 125% w/2yr expiration period I $ 705,106.25 IN TESTIMONY VVHEREOF, the City of Fort Worth has caused this instrument to be executed in quadruplicate in its name and on its behalf by its Assistant City Manager, attested by its City Secretary, with the corporate seal of the City affixed, and said Developer has executed this instrument in quadruplicate, at Fort Worth, Texas this L; I day of ,20 . CITY OF FORT WORTH - Recommended by: Water Depart int (AL/ / Wendy Chi4Babulal, EMBA, P.E. Development Engineering Manager Parks and Co ichard Zavala, Director Approved as to Form & Legality: Assistant City Attorney M&C No. WA - Date: ATTEST: ATTEST: Signature (Print) Name: Title: ept. 4 Transportation & Public Works Department N l Douglas W. Wiersig, P.E. Director Approved by City Manager's Office Fernando Costa Assistant City Manager DEVELOPER: ELAN WEST 7t1i, L.P., a Delaware limited partnership By: Elan West 7th General Partner GP, L.L.C., a Delaware limited liability company 8 Signature (Print) Name: Laird Sparks Title: Vice President OFFIUsu. {RECORD CITY SECRETARY Ft WORTh, TX 1 Check items associated with the project being undertaken; checked items must be included as Attachments to this Agreement Included x S a rs Attachment Location Map Exhibit A: Water Improvements Water Estimate Exhibit B: Park Construction Detail Exhibit C: Park Permit (Remainder of Page Intentionally Left Blank) 9 F,e: KADAL_C,0\67/71612—Corra St. S,te\Dwg\ExhWs\CFA Exhbit5\LocotnnMop.dwg [COVER] 8/18/2013 4 22p: Xrefs: 485114, Imoges CO r- 0 m NOIdOIN 1131\NVCI 1.13>1002:10 FOCI- TEMPLETON BERL -o Q) 0 S30302:13V\I fl 81\13S13AA rn HARROLD° > T-i 1 0 i --1 cf) HI w ar 1ME WC oat reeniore (LOOK It VOL,L PALICf en 12 LOT it UNE TAB E la Vs MNE TABLE 10 LINWOOD 3t0-6. 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GT r01Jd TH5 DC UMENTSHALL NOT Aftt EPURPOSc NFOR D SHALL rot BE USED OR VIEWED RELIED UPONSSaA FINAI $UP.VEY DOCUMENT STATE OF MAAS 5 COUNTY Of DALLAS 5 aEFopf Mn. the.asJ�M smolt, a Notary Pt,:, on MP Mypnnmlyy oweento Dena Loran nmwn m me b ken ben tenon Abow ramie ot wmnwndConedoationsOwe red innthadwearMeemeb.' m nmeMmh.a�AdMMiM aM. STATED, TEXAS S S COUNTY OF TARRANT 4 KNOW PI men ay ts.te pnwna pat FELLOWSHO CHURCH end UNW008 I'RMERS L/C, ma me owners W nu loloang danhadpropnny, DUNG. Poet am Buwt Sand?. No 1StLeyof Fen Was., TarmtwT,•a and bat alL M 24 and are, La( .2, BIG. Loh MInwood, nMe ONmPon WWII �>e ON tendedHVu°.:mRB.Pwe atdMet PI1 Rrm* d Tarrant Ovally, a and dt f tint ea 11naad, an adNbn b mefAy A Fan xbrt. Tenn acmanp m dw plat recanted In Cabot.; O. 51.de WW1 of the Plot Ream* a Tartan Cour4. Tam, a portion d Mee.edes menial bedaubed by bdnn-s rid 20141-042013 era being more tarod m plena Ina Of dyea A'.enute 450. .Came m o tiger; d .al caner Senat Me nIroaaaeaSonof °m e. tenaywen meta®tnytbl,.m No cFade th4*.y from said pone lad ton vd abed n win burteberce bean Nor* 544r" Wed, a loam/ area'. THENCE with the eel enm nyntr.cy line of Asoha Avenue, the I r cotae$nd edam Soon 1 H' having a waltrel angle eo 31,39r,, . rot oteOO 00feet a Monoeenq aauome alSwa am)23G Eon. 07 le in weary climatal *01 area to the is an arcdlstmwe of n'w 114110 a Jr5Inn roc wan Waste can stamped 104K salt al Me end of aid HAW w' Cas• dtan 0(203 feet to a Pr Iron rod With tCA-w rotndd larmn, el In C110 I M ea,m aght.o$ arta lire wet; the wes1 nob of way Imo of Carrel Moneta varlabb width taght.awayl THENCE with Me sad eat dglhckmY 11. of CANTO Sheet, San 0•631r Emil a Minna. of 11023 feet M a 5m' Iron rod with tied// Baser cap Mind et the from bet warm of Block ZI Of Said Unocal, THENCE apparent! Om sad west opt way Ine Of Candi Striae and with Me rorm law of sod Bod. 20 South kertdiPed West a THENCE wet Me Said west Inn of meld, Sa,m 0 03x' rat • stay., of 113,m feel m a v0' Iran rod tWnd In me ninth Mhdol-way line of ityl at eel THENCE bene MnrAam Asaid rat% ham.e ay In '�tMM.wmAnnaid, this morsel; ,nddaalret South (Pd50 Welt a datante of 500 leet 10 at 40' irth WO panic cap nomPed •KNA. eel et tne beginning at a %Agent ow* to Me tigN a central Inge of 12d0495'. 4 radius at 543 00 tad. a char, Marna end thaarge 01 404M de0r5r mTentery dir.a'a wet Sad c•aelMgm, an am dden al 11304 lent ba'm' ben end with Cup Vamped THENCE Mandrel said nom fee Wuth A n wah .lnww by Inn d saidsaidMermen; veruntnl beng bnanp q a mmn rangernr a.Ie M;Snare* of 5015 feet roe Sr .00 red *Ain passim ham° a Centre; angle of THENCE wen tad with droSotwm Ian ad von .aid Aar. M ma Wen an arc asanm u( 4270 robe Man leas pot in car furl* a the earthen; oorne414 amid Lott3 and the end or sad Pure, THENCE ciaoarung Me seal ear* rgnha.wy Ian at M+mmm Awn., Sam 7540' Wu aa$lan of 11420 eel b a 5T.on Sad ;Mtn Vasa RPL55I2:alp bud to M*outlast WrnMel SandlAB, THENCE wen Me soLah dro of sad Lob 0, 5. 4 and 3, Noln ter4220" West • distance 01249 51 get to a Ildrxon rod found for Me nonMast aortae of Lot '3 and the nn of LA 21.R, Bgack 10 at Lineage/ an •Ccowrgb p rcated lnCabnl5 Slde2eOTd Me ben Retard% of tarok Cou,yonwma Cay Pon IMAM Texas MBVA* nIencePoet d E elh Me namcaMMa LM T Ft and arw Sa d fee all Iot d ua 123, Bm .lT1 1n" West, Can t o nof 0007 feet P rel Tm team a 5Ru a• ronmM yen Cwt.Ptea Copal termtorib neSaid la( of Lel 21-THENCE tenanting wart ine north Ina al tent Lot 21-R Ind with Me ameatli gee Id sad LA 23 Nat; li rWrm, adW.nma tea amma 75 10 b4 G ptotted wo .bet Meth npNoI.rm lIRM an MammascSStreet , u do nghln.anr AtMe soothew cornerr ggaad'roomy La121 N Sate me begnln0 M a lmaMngna Arvid M the mN h rag rM rag I a 39t.., t 1m%00 ma a °herr; Mal 0 end anima of HAM 794726"Nesi 00 17 tan, THENCE vet ate pad rem guar way One d Warman Seeet,e,. Mang wuaosnd detonate II. A Mwdmw Slant menthe sea east epHaM1rn We of Poch %mSw MOW aline InMaeanaMvaamm W,ro y THENCE end to god posh npiW waythe «Path An,et M101b.4n3=ode'/' ndaaont mdntg al o tenor.a,M la I. notha a• teidel.nded 22:'BW, amess of CAM tea a chord Memaaeld t own 9 Rtl" E t 1 25 feet In a aMewlbnen sa d beto Me e lint a1 arc dunto o1313-5 Met a 1/.^ Innot r*eh MCA rep lam et lie end of wd North 304104' to the left hang //Cenral angleofnos t6H:e irMU. of6 UO feel. a chard Milano end (balance A lam 2d3T2S East,] ot of Met, 19,1-64- set ot the ystamped b.,m no wit; a �"aapue CUM Pe h; m nerd *Marco e of anv: of ono T.r a DNA 155 Manic `est a thorn Mebane d NAM Tl•IS'0C End, =05 feet: dad POP odd ban Ito netlemmot era ny, end of a Praia lutway comer*,THENCE wit; gad Cicada( ath144.Pay comer dip and Nig Cam to BEGINNING and olbanna 9 m0 a..nw A 2 ,Cv»qum feel at lard ben rryk en arc dean g250a fembMPWIt OF The Mayo for the army ar• band Pr CPPEIring Nolt1 7451,171 Earl Mr am mot nphl-tdway line of aM been ncwe b OWnER Nt :,r: 121 UMW SW wall Tip No-{07Ta)1.d7M OWNER Waned Suite 450 dal 'AVM CCOPPO o Cling Pa• - Tw Nn EXECUTED T,16_day al d013 11114 STATE Of TEXAS COUNTY Of TARRANT berngE MC, M undersigned.mref totre pomwl.ged t me Mat Mt execut e1 sane fo he wmK n .bind men .bed be PO apathy Saran 'Waled Mater/ Pubecin Ina Pt Ina Slaw Of Then EXECUTED THIS darted 1015 None Title STATE OP TEXAS COON TY OF TARRANT BEFORE MC M daw knoirrtio la me mat he manned lobe Monsoon wnoem nays is wasp-IMO *Me fare -gang gepee sane for the purpose an, aowewam mean eweeed oral n the capagti theme Natal Mabry Futac In ann for Me WM Of Team My eammiselernennee CASE NO. FP-013-029 REF CASE NO. PP-012-021 G;:W„CPII,LLC C Ha Ca Clms13ouerad Center} Lea Sparks Tel W l40gr417oa7 wOYI�RNAN4AStOOATES INC m Stan 1000 Cal Teal, 75251 „2,Tel .a7)n300 FINAL PLAT LINWOOD ADDITION LOT 1R & 18R, BLOCK 17R AND LOT 16R, BLOCK 16 BEING A REPLAT OF LOTS 1-6, 16-18 & 22-24, BLOCK 16, A PORTION OF MERCEDES AVENUE AND LOTS 1-11R & 13-16, BLOCK 17 OF LINWOOD ADDITION AN ADDITION TO THE CITY OF FORT WORTH, TARRANT COUNTY. TEXAS tl AS RECORDED IN VOLUME 388-8 PAGE 181 AND CABINET B, SLIDE 3352, PLAT RECORDS OF TARRANT COUNTY, TEXAS ap Mrn . hive D 5 I am.nbr pD Kimley-Horn and Associates, Ina 100FIRM 0 Tel115593 .NoNo Un) 2.,O O VIIMdO.„NOodeI�"*@..3aa1'g 3 a E GRAPHIC SCALE IN FEET 0 75 150 300 SAWCUT, REMOVE, AND REPLACE 63 SY EXISTING CONCRETE PAVEMENT PER CITY STANDARDS FOR UTIUTY CONNECTIONS m MERam r PROPOSED 10" - SUB -DRAINAGE PIPE EXISTING 60" RAW WATER TO BE REMOVED 50 CITY CONDUIT EASEMENT PROPERTY UNE -- 8'X15' WATER EASEMENT. St TEMPORARY CONSTRUCTION EASEMENT EXISTING SUB -DRAINAGE PIPE �\ tot - TO BE REMOVED -�/ r. -- --'''.'�i+ RAW WATER - _ �• _- PROPOSED 8" r �°.� ; SUB -DRAINAGE PIPE \ 1 �.\.'- SO'XI S.WATER- . .-EASEMENT PROPERTY LINE " 5' TEMP CONSTRI EA PROPOSED RAW WATER COMMUNITY FACILITIES AGREEMENT FOR RAW WATERLINE IMPROVEMENTS TO SERVE CARROLL STREET APARTMENTS RARY CTION EMENT 10' TEMPORARY CONSTRUCTION EASEMENT J PROPERTY LINE // EX.5' WTR MERCEDES AVENUE (SO ROW) CONNECT TOEXISTING UTILITY MANHOLE EX. 8" WTR K-1894 MERRIMAC STREET (50'ROW) EX. FH W w9 re Hz F- J s re S U EXHIBIT A pri Kimley-Ham ® 1 and Associates, Inc ItemSpec. No. Number Spec. Item Carroll Street Apartments UNIT VI Raw Water 1 00 00 00 9999.0000 2 33 31 20 3331.5401 3 4 5 6 7 8 9 10 11 12 13 14 15 Bid Proposal 33 31 10 00 00 00 00 00 00 02 41 14 02 41 14 02 41 14 02 41 15 33 12 25 32 13 13 32 11 29 34 71 13 00 00 00 00 00 00 3331.5301 9999.0001 9999.0002 241.1025 241.2014 241.2013 241.1000 3312.0114 3213.0101 3211.0501 3471.0001 Name of Pay Item with Unit Price in Words Manufacturing and Transportation of PCCP Pipe and Fittings 10" SDR-26 PVC Sub -drainage Pipe 8" SDR-26 PVC Sub -drainage Pipe 60' PCCP E-301 Raw Water Pipe 0/100 cents per unit 0/100 cents per unit 0/100 cents per unit 0/100 cents per unit 60" PCCP E-301 Raw Water Pipe w/ Thrust Restraint by Welded Joints Remove Existing 60° Water Remove Existing 10" PVC Remove Existing 8" PVC Remove Concrete Pavement Connect to 60" Water Main 6" 3500 psi Concrete 6" Lime Subgrade Traffic Control 9999.0003 Survey Brass Disc Stamped Raw Water 9999.0004 Survey Brass Disc Stamped Raw Water in Concrete 0/100 cents per unit 0/100 cents per unit 0/100 cents per unit 0/100 cents per unit 0/100 cents per unit 0/100 cents per unit 0/100 cents per unit 0/100 cents per unit • 0/100 cents per unit 0/100 cents per unit 0/100 cents per unit TOTAL SEWER $ Approx. Quantity Unit 1 LS 280 LF 425 269 337 604 180 424 LF LF LF LF LF LF 63 SY 2 EA 63 63 3 3 SY 00 42 43 Proposal Form Unit Price Unit Bid Price Total Amount $ 150,000.00 150,000.00 $ 45.00 12,600.00 $ 35.00 $ 380.00 $ 430.00 $ 150.00 $ 15.00 $ 12.00 $ 94.00 $ 10,000.00 $ 45.00 SY MO EA EA $ 5.00 $ 10,820.00 $ 150.00 250.00 14,875 00 102.220.00 144,910.00 90,600.00 2,700.00 5,088.00 5,922.00 20,000.00 2.835.00 315.00 10,820.00 450.00 750.00 564,085.00 Continue chain Link fence Along western huundarof park tree line to keep workers out of the drip line of the trees (See detail for root protection) No equipment vehicles etc... shall be allowed on park properly. ;Iny ehicles or equipment found within the drip line of'the tree shall be subject to the tree damage clause, All fees to be paid immediately. In order for this connection to he made right at the edge of the curb 'Mc pit needed for excavation will need to expand outside of ROW and possibly into tree dripliue, Show construction footprint, You may nerd to move the connection point to noddle of road to avoid trees in the park. If connection is in !toddle of street disregard comment. Construction access for waterline shall be limited to western boundary to reduce impacts for construcuan on parkland. T To he consistent please show Chain link fencing along water Line easement and along properly Boundary. ! Also provide ;t note cm all plans that No construction for buildings onsitc Gradin}, is to he done until property Boundary fencing has been installed on the park and inspected by I'ACSi) A2en1 Connell Cordon t17-393-5764. t!i h t tt`7 t • Remove workspace Show chain link fence tit property hnundnrv. Re rook e note. t„ its ot(nnstructian - ur Itcmove urorkspacc Show chain link fiance at proper.} boundary. Remove note. lc ECTION Exhibit C Permit and Terms and Conditions for Use of Parkland I. Term A) Description, Terms, and Conditions for Use of the Park The City owns a certain piece of property known as First Flight Park located at Block 20 of Linwood Addition (the "Park") upon which exists certain trees to be protected, removed or relocated according to certain plans and specifications and across which is an easement dedicated to the City and in which the Improvement will be constructed; both tree protection and Improvements construction plans to be made a part of the construction documents. The Term of this Peimit shall consist of a period of one hundred thirty (130) calendar days ("Term Period"), which shall commence on the date on which construction within the Park begins and shall end at 11:59 P.M on the one hundred thirtieth (130th) day. B) Extension of Tenn Period If the Developer fails to complete the Improvements within the Park on or before the expiration of the Term Period, including, but not limited to: construction and installation of the waterline improvements in accordance with the terms of the CFA and Exhibits thereto and restoration of the Park, then Developer agrees to extend the Tenn Period on a month - to -month basis until Developer has completed all obligations pursuant to this Permit. If an extension occurs, then Developer shall pay City rent in the amount of $5,000.00 per month, which will be due and payable on or before the first (1st) day each extended Terra Period. Such rent shall be paid to the City without demand and without offset. The extension of the Term Period may be renewed each month, upon notification to the City by the Developer 10 days prior to the expiration of the term. Upon notification the City shalt respond within 3 days to the request for an extension. Notwithstanding anything to the contrary, the City may terminate or deny any request for an extended Term Period at any time and for any reason. C) Access. No use of or access to the Park shall be allowed outside of the designated Tenn Period or applicable extension period. Developer's rights in and to' the Licensed Premises (as defined herein) hereunder shall be strictly limited and shall fully and absolutely teiniinate and be of no further force and effect at the conclusion of the Term Period or applicable extension period. After the Tenn Period or applicable extension period ends, all rights of the Developer in and to the Licensed Premises shall, automatically and without the need for any further documentation, fully and unconditionally terminate, whereupon the, Developer shall have no right of entry or use of the Licensed Premises for construction purposes. the Developer may have a temporary construction access entrance which shall be limited to the Developer's property on the west side of the Park and said entrance into the Licensed Premises shall be closed with chain link or other materials, as approved by the Department to keep the Licensed Premises secure during construction. 1 II. Licensed Premises Subject to the terms and conditions set forth in this Permit, the City Charter and ordinances, for and in consideration of the covenants and promises expressed herein, the City does hereby agree to license to the Developer during the Term Period and any applicable extension period the use of a portion of the Park, the exact location and boundaries of which are as depicted in Exhibit(s) A, B, which is attached hereto and incorporated herein for the purpose of constructing and installing the Improvements and fulfilling the tenus of this Peiiirit ("Licensed Premises"). III. Consideration Developer's construction of the Improvements with a payment in the amount of Five Thousand Dollars $5,000.00 shall serve as sufficient consideration for the use of the Licensed Premises. IV. Acceptance of Licensed Premises The Developer 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 The Developer accepts the Licensed Premises in their present condition, finds them suitable for the purposes intended, and further acknowledges that Developer 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 Park or its suitability for the purposes intended. The Developer 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 fiom any and all damages, claims for damages, loss, or liabihties that may be caused to invitees, licensees, or trespassers by reason of the exercise of such rights or privileges granted in said easements. The e Developer s taking possession of the Licensed Premises shall be conclusive evidence that: (a)` the Licensed Premises is suitable for the purposes and uses for which same is licensed; and (b) the Developer waives any and all defects in and to the Licensed Premises and all the appurtenances thereto. The City shall not be liable to the Developer, its aeents, employees, contractors, subcontractors, invitees, licensees, or euests for any damage to any person or property due to the acts or omissions of the Developer, its agents, employees, contractors, or subcontractors, unless such damaee is caused by the Bross negligence or willful misconduct of City or its agents, employees, separate contractors, or subcontractors. V. Use Not Exclusive This Permit and all rights granted to Developer 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 and/or the Licensed Premises to other persons and entities as the City 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 Developer's use of the Licensed Premises as provided herein. This Permit does not establish any priority for the use of the Park or the Licensed Premises by the Developer or by any present or 2 future licensees or other permit holders In the event of any dispute as to the priority of use of the Park or 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 peiuiit 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. VI. Limitations on Use A) The Developer may not initiate any construction within the Licensed Premises (including, but not limited to, any excavation work) until the Developer has attended a pre -construction meeting with the City (as set forth below). B) The Developer shall schedule a pre -construction meeting with City staff in the City's Parks and Community Services Department (` Department") at least three (3) business days prior to initiating any construction on or near the Park (including, but not limited to, mobilization, establishment of erosion and sediment controls and any excavation work). The pre -construction meeting shall be for purposes of outlining Developer's plans and schedules regarding the following: (i) construction and installation of the waterline improvements, (ii) minimizing construction impact on vegetation and the Park, in general, and (iii) restoration of all affected parkland and amenities. VII. Public Safety A) Developer shall be solely responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with Developer's use of the' Park and/or Licensed Premises. B) The Developer shall maintain erosion tubes and chain link fencing along the perimeter of the Licensed Premises and the boundary of the Park during the Term Period. Following installation of the chain link fencing, the Developer shall contact the Department to inspect for proper installation. The Developer shall have the temporary construction access entrance to the Licensed Premises which shall be limited to the Developer's property on the west side of the property and that entrance into the Licensed Premises shall be closed with chain link or other materials, as approved by the Department to keep the Licensed Premises secure during construction. Public access to the remainder of the Park shall be maintained. At any time the developer moves, adjusts the fencing or takes down fencing without appi oval from PACSD Director, then the Developer shall be subject to penalties per day or this Permit shall immediately terminate and the developer shall immediately demobilize all equipment upon notification by the PACSD Director or assigned designee. C) Developer shall also take all reasonably necessary precautions. and shall provide all reasonably necessary protection to prevent damage, injury, or loss to (a) all persons accessing portions of the Park on which any construction is being perfoii ned by or on behalf of the Developer; (b) all work performed on or from the Licensed Premises and all materials and equipment to be incorporated therein that are under the care, custody, or control of the Developer, or the Developer's employees, agents, contractors, or subcontractors, regardless of whether such 3 material and equipment is stored on or off the Licensed Premises; and (c) other property on or adjacent to the Licensed Premises. D) The Developer shall be required to apply for all necessary peinuits to ensure that installation, equipment, and materials meet the requirements of the City's Water Department and the Department Staff from both departments shall be entitled to inspect the work prior to, during, and after the installation process. VIII. Protection of the Environment A) The City has no knowledge of any Hazardous Materials on, under, over, or about the Park or the Licensed Premises as of the execution date of this Permit and hereby represents and warrants that it shall not knowingly, nor peiniit 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. Developer shall not handle or store any Hazardous Materials on the Licensed Premises or the Park, except that the Developer may, in compliance with applicable environmental laws, use and store Hazardous Materials in such amounts and types that are commonly used in connection with similar construction operations, provided, however, that Developer specifically agrees to remove any and all such Hazardous Materials on or before the final day of the Term Period or any extended License Period. Developer shall not introduce, use, generate, store, accept, or dispose of on, under or about, transport across, or peunit 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 Developer on the Licensed Premises shall be posted on site and a list shall be given to City. B) Developer 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. IX. Documenting Condition of Licensed Premises Developer must provide the Department with videographic documentation of the surface and subsurface condition of the Park and Licensed Premises, including underground utilities, as they exist both before and after installation of the Improvements within the Licensed Premises. All such video must include a visible date and time stamp indicating when the videography occurred. Developer must submit documentation of the pre -installation condition at least five (5) business clays prior to the date on which the Term Period will commence under Section B of this Permit. Post -installation documentation must be submitted no later than' five (5) business days after the last day of the Teuir Period. Department staff will distribute copies of the documentation to all appropriate City personnel to determine whether any damage has been done to the Park or Licensed Premises. 4 X. Minimizing Impact to Vegetation A) Developer shall relocate existing, designated trees in the Park to Jesse Sandoval Park, as indicated on the approved City tree peunit, for location and maintenance. An Adopt -A -Park Agreement shall be executed for tree planting and maintenance of relocated trees prior to any tree removal in the Park. The developer shall not cut, damage or remove'; any other trees on the Licensed Premises or the Park. To minimize damage during construction, the Developer shall, prior to beginning any work under this Permit, install orange mesh fencing on the outside drip line of trees and other vegetation specifically identified by the Department at a pre -construction meeting and as outlined in accordance with Exhibit(s) 1, 2, 3, which is attached hereto and incorporated herein for all purposes. Developer shall notify this Department once the tree and vegetation protection measures have been installed and allow the Department 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 Developer may begin construction on or after the third (3rd) business day following the date on which it provided notice to the City unless the City contacts the Developer and identifies specific issues that render the tree and vegetation protection measures unacceptable. • B) Developer shall ensure that tree protection fencing, as shown in C'FA Exhibit B, remains in place throughout the Term Period or any extended License Period' If the developer does not maintain the protection fencing a daily fee assessment may be assessed by the City Forester. At no time shall any tree be damaged or removed other than those previously'identified. If any other • tree within the Park is damaged in connection with Developer's operations, Developer agrees to undertake remediation efforts, including paying of remediation costs; 'in: accordance with Exhibit 1, which is attached hereto and incorporated herein for all purposes. Any 'fencing shall remain in place until such time as the Licensed Premises and/or the Park are restored pursuant to the terms of this Permit. C) There shall be no dumping of materials within the Park. All storage of materials shall be on the developer's property or Licensed Premises. XI. Minimizing Impact to Utilities A) If the Developer encounters any utility infrastructure (including, but not limited to, electric lines, waterlines, sewer lines stoat' drains and lines, or gas lines) in the bourse of installing the waterline improvements, the Developer covenants and agrees to cease; construction operations and install protective matting over or around such utilities in compliance with specifications approved by the City's Water Department (for all water -related utilities) or by the Department of Parks and Community Services ("Department") (for all other utilities). Following installation of the matting, Developer shall contact the Department to arrange for inspection and approval by appropriate City personnel. B) The Developer shall provide the Department with a copy of the City's inspection report within twenty-four (24) hours of receiving the report and prior to resuming construction in the Park. The Developer may resume construction on the next day after the date on which it provides 5 the inspection report and specifications to the Department unless that, department contacts the Developer and identifies specific issues that must be addressed. XII. Restoration of Improvements To the extent any property, fence, or other improvement is destroyed, removed, or altered in connection with the Developer's activities under this Permit, as determined at the sole discretion of Director of the Department and/or his or her designee ("Director' ), the Developer shall, prior to the expiration of the Term Period or applicable extension period, reconstruct and restore such improvement in a good and workmanlike manner to a condition that is equal to or better than the one in which such improvement existed as of the date this Permit is fully executed, as evidenced by the pre -installation video required under Section IX of this Permit. Any y restoration required under this section must be completed by the Developer and inspected and approved by the Director prior to the expiration of the Tenn Period or the Tenn Peiiod will be extended per Section I. XIII. Restoration of Surface and Subsurface of Licensed Premises A) To the extent any portion of the surface or subsurface of the Licensed Premises or of the Park is damaged or disturbed in connection with Developer's activities under this Penult, as determined at the sole discretion of the Director, the Developer shall ensure any subsurface area is promptly filled with clean fill dirt up to the level of the surrounding ground. Developer shall ensure any fill dirt is compacted to a minimum 90% compression ratio and in accordance with all applicable laws and specifications Developer shall provide the City with a report or other written documentation acceptable to the Director to demonstrate that compaction was perfouned in accordance with this section. In perfouiiing earthwork in the ParkorLicensed Premises, the Developer shall adhere to the policies outlined in Exhibit 1, which is attached to this Peiuiit and incorporated herein for all purposes. B) Developer shall restore the surface of the Licensed Premises by doing the following' (i) establishing replacement turf of grass in accordance with the specifications outlined in the attached Exhibit I and using reseeding, sodding, or other method approved by the Director one week prior to the expiration of the Tenn Period or applicable extension period and (ii) watering these areas as needed until the replacement vegetation is reasonably established and has been approved and accepted by the Director. Prior to planting, Developer shall provide the Director with documentation certifying the type and quality of the materials to be planted. The Director may, in exercise of its reasonable discretion, reject any plant material that does not meet the requirements of this section or Exhibit I or is otherwise unacceptable for one or more specific, clearly identified reasons. C) Any restoration required under this section must be completed ;by the Developer and inspected and approved by the Director prior to the expiration of the Teiui Period or the Teuii Period will be extended per Section I. 6 XIV. Discretionary Limited Access to Care for and Establish Vegetation A) Developer may request limited access to the Licensed Premises to water, care for, and establish replacement vegetation required under Section XIII ("Limited Access"). A request for Limited Access must be made in writing and delivered to the Department at least two weeks prior to the expiration of the Tenn Period or extended License Period. Replacement vegetation or seed must be in place at the time the request is made. B) Director may, in its reasonable discretion, authorize Limited Access for a period not to exceed two weeks from the expiration of the Teini Period. During the Limited Access period, no Developer materials or equipment may remain on the Licensed Premises with the exception of irrigation directly involved in irrigation and temporary fencing used to protect areas being restored. Developer's use of the Licensed Premises under Limited Access in accordance with this Section shall not invoke any additional extended Term Period beyond that which already exists at the time that Limited Access is granted. XV. Removal of Excavated Materials Developer shall ensure that spoils and all excess material excavated by or for Developer is removed from the Licensed Premises and properly disposed of within twenty-four (24) hours of determination that the materials are excess. XVI. Liability; Additional Indemnification A) Developer agrees to pay City for all damages suffered or incurred by City as a result of any operations conducted for or by Developer, its agents, employees or representatives, including all damage or injury to standing or fallen timber, buildings, fences, equipment, and all other property, whether real or personal. Developer shall assume all responsibility and liability for any damages (whether for property loss or damage or personal injury or otherwise) arismg out of, resulting from, or connected to the construction, installation, or maintenance of the retaining wall and drainage improvements B) GENERAL INDEMNIFICATION. DEVELOPER COVENANTS AND AGREES TO AND DOES HEREBY INDEMNIFY, HOLD HARMLESS, AND DEFEND, AT ITS OWN EXPENSE, CITY FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, JUDGMENTS, ACTIONS, CAUSES OF ACTION, LIENS, LOSSES, EXPENSES, COSTS, FEES (INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES AND COSTS OF DEFENSE), PROCEEDINGS, DEMANDS, DAMAGES, LIABILITIES, AND/OR SUITS OF ANY KIND OR NATURE, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY LOSS (INCLUDING, BUT NOT LIMITED TO, WORKERS COMPENSATION ACT LIABILITY, LOST PROFITS, AND PROPERTY DAMAGE) AND/OR PERSONAL INJURY (INCLUDING, BUT NOT LIMITED TO, DEATH) TO ANY AND ALL PERSONS, OR OTHER HARM FOR WHICH RECOVERY OF DAMAGES IS SOUGHT, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR 7 ASSERTED, ARISING OUT OF OR RESULTING FROM ANY ACTS, ERRORS, OR OMMISSIONS OF DEVELOPER, ITS OFFICERS, AGENTS, EMPLOYEES, SUBCONTRACTORS, INVITEES, LICENSEES, AND TRESPASSERS IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE, OR NONPERFORMANCE OF THIS PERMIT. DEVELOPER LIKEWISE COVENANTS AND AGREES TO, AND DOES HEREBY, INDEMNIFY DEFEND, 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 PERMI.T.- , 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 THE DEVELOPER 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. C) ENVIRONMENTAL INDEMNIFICATION. DEVELOPER DOES HEREBY RELEASE, INDEMNIFY, DEFEND, REIMBURSE, AND HOLD HARMLESS THE CITY, ITS OFFICERS, AGENTS, REPRESENTATIVES, EMPLOYEES, AND VOLUNTEERS FROM AND AGAINST ANY AND ALL ENVIRONMENTAL DAMAGES AND THE VIOLATION OF ANY AND ALL ENVIRONMENTAL REQUIREMENTS RESULTING FROM ANY WORK UNDER THIS AGREEMENT. D) Developer covenants and agrees that City shall no way or under any circumstances be responsible for any property belonging to Developer, its members, employees, agents, contractors, subcontractors, invitees, licensees, or trespassers that may be stolen, destroyed, or in any way damaged, AND DEVELOPER HEREBY INDEMNIFIES AND HOLDS HARMLESS CITY FROM ANY AND ALL SUCH CLAIMS. City does not guarantee police protection and will not be liable for any loss or damage sustained by Developer, its members, employees, agents, contractors, subcontractors, invitees, licensees, or trespassers on any of the Premises. E) Developer agrees that City shall not be liable for any loss, injury, or damage whatsoever suffered or incurred by Developer or Developer's agents, employees or representatives in the performance of this Permit, unless caused by the,City's willful or gross negligence. F) If any action or proceeding shall be brought by or against the City in connection with any such liability or claim Developer, on notice from City, shall defend such action or proceeding, at Developer's expense, by or through attorneys reasonably satisfactory to the City. G) Developer agrees to and shall release City from any and all liability for injury, death, damage, or loss to persons or property sustained or caused by Developer in connection with or incidental to perfouuiance under this Permit. 8 H) This section shall survive the expiration or termination of this Penuiit. XVII. Prohibition Against Liens The Developer 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 lien on the Licensed Premises be created or filed, the Developer shall, at its sole expense, liquidate and discharge same within ten (10) business days after notice from the City to do so XVIII. Miscellaneous A) Independent Contractor - It is expressly understood and agreed that Developer shall operate as independent entity in each and every respect hereunder and not as an agent, representative, or employee of the City. Developer 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 Developer and shall be solely responsible for the acts and omissions of its officers agents, servants, employees, contractors, subcontractors, licensees, and invitees. Developer acknowledges that the doctrine of respondeat superiof shall not apply as between the City and Developer, its officers, agents, servants, employees, contractors, subcontractors, license's,and invitees. Nothing contained in this Pennit shall be construed as the creation of a partnership or joint enterprise between the City and Developer. B) Prohibition Against Assignment - The Developer may not sell, assign, or otherwise transfer any of its rights or obligations under this Permit without the prior, written consent of the City. Any such attempted assignment without the City's consent shall be void. C) Compliance with Laws and Regulations (i) In operating under this Penult, Developer agrees to ' comply with all applicable federal, state, and local laws, regulations, and ordinances, including all City ordinances, charter provisions, rules, and regulations. (ii) Developer will not knowingly do or suffer to be done anything on said Licensed Premises during the terms of this Penult in violation of the laws, statutes ordinances, rules, regulations, charter provisions, directives or requirements referenced in this Peiinit If the City calls the attention of Developer to any such violation on the part of said Developer or any person employed by or admitted to said Licensed Premises by Developer, Developer will immediately (or otherwise as soon as reasonably possible) desist from and correct such violation and/or vacate the Licensed Premises. D) Taxes - The Developer acknowledges and agrees that it shall be solely responsible for paying all taxes assessed or imposed by any governmental entity in connection with the use of the Licensed Premises or other City property related to activities within the scope of this Penuiit. 9 E) Third Parties - Nothing in this Pen nit shall be construed in any manner to create a cause of action for the benefit of any person not a party to this Permit, or to create any rights not otherwise existing at law for the benefit of any person not a party to this Permit. Nothing in this Peiruit shall be deemed to constitute a waiver of any immunity or affnmative defense that may be asserted by Developer or the City as to any claim of any third party. F) 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; 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 G) 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 Permit. H) Choice of Law Venue - This Permit 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 Permit, venue for such action shall he in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas - Fort Worth Division. I) Governmental Powers - It is understood and agreed that by issuance of this Pennit, City does not waive or surrender any of its governmental powers. J) Authorization - By executing this Pen urit, if not by Developer, Developer's agent affirins that he or she is authorized by the Developer to execute this Peiruit and that all representations made herein with regard to Developer's identity, address and legal status (corporation partnership, individual, etc.) are true and correct. K) Entirety of Agreement - This Permit (including all attachments, schedules, and exhibits attached hereto) constitutes the entire understanding and agreement of the City and Developer as to use of the Licensed Premises and the Park. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with the terms and conditions of this Permit. This Permit shall not be amended unless agreed to in writing by both parties. L) Conflict - To the extent that the terms of the CFA and this Permit conflict with respect to the use of the Park, the terms of this Penult shall govern; otherwise to be hauuonized with the teirus set forth in the CFA. 10 DEVELOPER Elan West 7th L.P. By: CITY OF FORT WORTH Laird Sparks us Alanis Managing Director Assistant City Manager Date: Date: f( E gl 1) (Exhibit 1 1 2010 DAMAGE TO CITY TREES: 1 NO PRUNING OF ANY CITY TREE SHALL BE PERMITTED, UNLESS SPECIFIED OTHERWISE IN THESE SPECIFICATIONS Severe damage to trees will result in replacement or compensation of trees by the Contractor Failure to replace damaged trees shall be considered a breach of contract and Contractor shall be assessed for damages. Slight or moderate damage to trees will result in assessment of damages. ASSESSMENT OF DAMAGES TO TREES 1.1.The Contractor will check trees in the contract area before contract work begins, any damage will be noted and reported to the Contract Administrator. 1.2.The Contract Administrator will conduct random checks of the trees during the contract period. 1.3.A check of all trees may be made at the end of the contract period. City Forester, Contract Administrator and Contractor will attend the inspection. 1.4.Damages shall be documented by memo to the City Forester with copy to contract file and the Contractor. 1.5.Contractor may have the option of replacement or payment for severely damaged trees at a location to be designated by PACS. 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 Tess than 30" dbh and 2" per inch on trees 30" DBH or greater. The contractor shall be responsible for the planting watering, mulching and maintenance of replacement trees for a period of not Tess than 2 years. Any tree that does not survive the 2 year establishment period shall be compensated for by the contractor to PACS tree fund at a rate of $200 per caliper inch 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 1/2" to 2' in width but less than 1/3 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 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 50% radius of the CRZ Slight damage to trees shall be assessed at a rate of $100.00 for each instance Each day tree fencing is pot properly placed, equipment or supplies are stored within C "Z °(fill is stored within the CRZ shall be considered one 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, examples include but are not limited to scaring of the trunk into the cambial layer greater than 2' but less than 1/3 the trunk circumference or breaking of 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, disposing of paint or concrete within 50% radius of the CRZ. Moderate damages shall be calculated at a rate of the assessed value of the tree per each instance of damage. 1.8.Severe damage or removal of trees is subject to penalty of $200 per diameter inch of trees removed or damaged for trees less than 30" DBH, $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, 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 diameter at breast height (DBH). Trees that must be removed due to damage caused by the contractor shall be removed by the Forestry Section Tree Removal Contractor at the Contractor'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 the Contractor will be automatically assessed damages. Damages as described herein shall be deducted from payments otherwise due to the Contractor. 6 to 8 inches of mulch cn^Y' or £Cfl? wownt. TEXAS .» ; k PARKS AND 'COMMUNITY } SERVICES DEPT_ 'Exhibit 2 6 x 6 Timber Matting 11 11111.1.111•SSIIIMI w.at ammauamain,:xwnc. V.mazmwureamuwaaeateaRaeau14-V," Chain link fence or Orange mesh fencing as approved by the City Forester TREE PROTECTION WAN DRIPLINE SCALE: . , N. T. S. FILE' NO : 000 6 to 8 inches of mulch .1 Cr^Y or ,Farr wotrrn, TEXAS PARKS , AND ', CC h1MIZNI, SERVICES 'IDEJPT. iI b mIP ..I n, 1i I i 6 x 6 Timber Matting 'Exhibit 3 Trench is located at the edge of drip line. Ji'X Czass TREE PROTECTJON `:TRENCH DETAIL 1111i • I 1.,1 II,I I ell ills i i Ii I..IiIi I.nd Chain link fence or wrapping trunk of the tree with 2"x4" studs as approved by the City Forester SCALE: .. FILE NO: N. T. S. 000