HomeMy WebLinkAboutContract 56050 CSC No. 56050
TEMPORARY ACCESS PERMIT
FOR ALLIANCE PARK
This Temporary Access Permit For Alliance Park ("Agreement") is made and entered
into by and between the City of Fort Worth("City"), a home-rule municipal corporation organized
under the laws of the State of Texas, acting by and through its duly authorized Assistant City
Manager, and MCA Litsey Creek, LP, a Texas company ("Company"), acting by and through its
duly authorized representative.
The following statements are true and correct and constitute the basis on which the City
has executed the Agreement:
A. The City owns a certain piece of property known as Alliance Park, 3800 Litsey
Road, Fort Worth, Texas 76262,which is depicted in Exhibit A ("Park").
B. Company is currently in the process of construction of Litsey Creek Cottages, a
master planned community which is located adjacent to the Park.
C. Company wishes to use a certain designated portion of the Park as temporary access
space to enter Park for the purpose of removing soil from the property to be used
on adjacent property (the "Project").
D. City has reviewed Company's request and agrees to grant Company use of the
designated portion(s) of the Park in accordance with the terms and conditions of
this Agreement.
Agreement
I. Licensed Premises
Subject to the terms and conditions set forth in this Agreement and the City Charter and
ordinances, for and in consideration of the monetary payments to be made hereunder and
the other covenants and promises expressed herein, the City does hereby agree to license
to Company during the License Period, as defined below, the use of a portion of the Park
that is set forth and depicted in Exhibit B,which is attached hereto and incorporated herein
for all purposes as though it were set forth at length ("Licensed Premises").
II. Term
a. License Period. The term of this Agreement will consist of one (1) license period of
sixty (60) consecutive calendar days, commencing on July 19, 2021 and ending on
September 17, 2021 ("License Period"). The License Period is intended to cover the
time period within which Company will be performing construction at the Project and
requires access to the Park for construction of pond and removal of soil off-site.
b. Extension of License Period. If Company fails to complete all obligations hereunder
OFFICIAL RECORD
June 2021 Temporary Access&Workspace for Alliance Park CITY SECRETARY
FT. WORTH, TX
in accordance with this Agreement on or before the expiration of the License Period,
including,but not limited to,restoration of the Park as required by this Agreement and
to City's satisfaction, as determined in City's sole discretion, then Company agrees to
automatically extend the License Period on a month-to-month basis until Company has
completed all obligations pursuant to this Agreement.
c. The extension of the License Period will renew automatically each month until
Company receives notice from the City that all of its obligations under the Agreement
have been completed, and City then agrees that Company has complied with the terms
of this Agreement. Notwithstanding anything to the contrary, the City may terminate
the extended License Period at any time and for any reason upon five (5) days written
notice to the Company.
d. Access. No use of or access to the Park or the Licensed Premises will be allowed
outside of the designated License Period or applicable extension period. Company's
rights in and to the Licensed Premises hereunder will be strictly limited and willfully
and absolutely terminate and be of no further force and effect at the conclusion of the
License Period or applicable extension period. After the License Period or applicable
extension period ends, all rights of Company in and to the Licensed Premises will,
automatically and without the need for any further documentation, fully and
unconditionally terminate, whereupon Company will have no right of entry or use of
the Licensed Premises whatsoever.
M. License Fee
a. In lieu of the traditional fair market value license fee, City will accept the benefit of
Company's services and the impact to City property as full and complete compensation
for the rights and privileges granted under this Agreement. Based on a 2018 appraisal
of the park, the licensed premises are valued at approximately $330,000 dollars.
Current construction costs for design work, excavation, haul materials off-site, and
revegetation is valued at approximate $375,000 dollars. Accordingly, City has
determined that the benefit of those services is reasonably equivalent to the fair market
value that would otherwise be charged by City for this license agreement.
b. Consideration for any additional use of the Licensed Premises, as hereinafter defined,
beyond the initial License Period will be in accordance with Section II.
c. If, during the License Period of this Agreement, the Company performs any activities
in the Park that are outside of the Licensed Premises,then the Company will pay to the
City a daily fee of$1.00 per square foot of additional Park used for such activity. This
provision is not intended to expand the boundary of the Licensed Premises or the right
of Company to operate outside of the Licensed Premises but merely to assess a fee in
the event that the Company operates on City property outside of the Licensed Premises.
If such fee is incurred by the Company,then Company will pay or cause the City to be
paid such fee within thirty (30)calendar days after receiving a written invoice from the
Director.
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IV. Acceptance of Licensed Premises
a. 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 it 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 or unrecorded easements and licenses that may have been granted on, along,
over, under, or across said the Licensed Premises or the Park. Company releases the
City from any and all damages, claims for damages, loss, or liabilities that may be
caused to invitees, licensees, or trespassers by reason of the exercise of such rights or
privileges granted in said easements.
b. Company's taking possession of the Licensed Premises will be conclusive evidence
that: (a) the Licensed Premises are suitable for the purposes and uses for which same
are licensed; and (b) Company waives any and all defects in and to the Licensed
Premises and all the appurtenances thereto. The City will not be liable to Company,
its agents,employees,contractors,subcontractors,invitees,licensees,or guests for
any damage to any person or property due to the acts or omissions of Company,
its agents, employees, contractors, or subcontractors, unless such damage is
caused by the gross negligence or willful misconduct of City or its agents,
employees, separate contractors, or subcontractors.
V. 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 and 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 Company's use of the Licensed Premises as provided herein.
This Agreement does not establish any priority for the use of the Park or the Licensed
Premises by Company or by any present or future licensees or other agreement holders. In
the event of any dispute as to the priority of use of the Park or the Licensed Premises, the
first priority will 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
agreement 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.
VL Limitations on Use
a. Access through the Licensed Premises is allowed only between 7:00 A.M. and 9:00 P.M.
Monday through Saturday, unless otherwise approved, in writing, by the Director.
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Company will take reasonable measures to ensure the Licensed Premises is accessed
only by individuals authorized by Company.
b. The Company will schedule a pre-construction meeting with staff in the Park and
Recreation Department at least one (1) business days prior to accessing the Licensed
Premises. The pre-construction meeting will be for purposes of outlining Company's
plans and schedules regarding: (i) mobilization and access to the Licensed Premises,
(ii) minimizing impact on vegetation and the Park, in general, and (iii)restoration of
all affected parkland and amenities.
c. All Company equipment and materials will be placed and maintained solely within the
confines of the Licensed Premises. Company understands and acknowledges that the
Licensed Premises is to be used solely for access to pond construction areas. Use of
any portion of the Park outside of the Licensed Premises will not be permitted.
d. Company will be responsible for sweeping and cleaning the adjacent park infrastructure
including but not limited to play equipment, sports fields, fencing, and pavement and
keeping it free of debris so that contractors installing park improvements have free and
unobstructed access to the Park and the roadway remains free of hazardous debris or
material.
VIL Public Safety
a. Company will 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. Company will take all necessary precautions and will provide all necessary protection
to prevent damage, injury, or loss to (a) all persons accessing portions of the Licensed
Premises on which any construction, staging, or parking is being performed by or on
behalf of Company; (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 Company, or 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.
VIIL Foreign Material
a. For purposes of this section,the term"Foreign Material"means any material,substance,
chemical, waste, contaminant, emission, discharge, or pollutant regulated by any
federal, state, or local law for the purpose of protection of health, safety, or the
environment, including, but not limited to, petroleum, petroleum products, and waste
products associated with petroleum production.
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b. Company will not excavate, drill, dig, or allow any significant erosion of the Licensed
Premises, except as allowed by the Director, in writing, in that person's sole discretion,
or otherwise permitted by the Exhibits to this agreement.
d. Except as otherwise provided in this Section, Company will not knowingly cause or
permit any Foreign Material to be released, brought, stored, or produced on or in the
Licensed Premises or City property in connection with Company's operations under
this Agreement; provided, however,that Company will be authorized,to store,handle,
and use materials that are reasonably necessary for the uses set forth herein so long as
(i)such materials are properly stored,handled,or used in accordance with all applicable
laws and the terms of this Agreement; and(ii)Company maintains Material Safety Data
Sheets on-site when such chemicals are present and provides that information to the
City on request. Company will take all actions necessary to stop the release or presence
of Foreign Material in connection with Company's operations. Any waste produced
from Company operations will be the full responsibility of the Company to cleanup,
handle, store, transport and dispose. As part of the consideration for this Agreement,
Company waives any claim that this Agreement in any way confers generator status on
the City for waste produced from Company's operations.
e. If, during the course of its operations on the Licensed Premises, Company encounters
material that Company knows, suspects, or has reason to believe constitutes Foreign
Material, Company will immediately cease all activity, secure any material already at
the surface and limit disturbance of any buried material in the vicinity of the suspected
Foreign Material.
f. Company will notify the City in accordance with the Notice section of this Agreement
of any release from Company operations and the presence or release of suspected
Foreign Material or Foreign Material. NOTIFICATION MUST OCCUR WITHIN
ONE HOUR AFTER INITIAL RELEASE OR DISCOVERY.
g. As part of the consideration for the license under this Agreement, Company will be
responsible for the cost and expense necessary to perform its operations under this
Agreement in accordance with any federal, state or local laws regulating the
environment as well as other applicable regulations. Company will be fully responsible
for testing, storing,removing,loading,transporting, and disposing of Foreign Material
and suspected Foreign Material encountered during License Period,in accordance with
any federal, state or local laws.
h. Any environmental assessment, cleanup, removal or disposal action will be in
accordance standards set forth by the City's Environmental Management Division, in
its sole discretion and determination and at Company's sole expense.
i. Prior to Company doing any restoration work,the Director is to be contacted to inspect
the surface of the Park to ensure that the surface of the Park is free of any material or
debris deemed hazardous. Any subsurface area deemed to present a matter of public
health and safety as determined by the City must be restored and promptly filled with
clean fill dirt up to the level of the surrounding ground. Clean dirt will be defined a
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material provided that will be certified by a Company as clean and free of Foreign
Material, and in compliance with federal, state, and local laws, regulations, and
ordinances. Such certifications will be provided to the City prior to delivery and
delivery tickets will be provided to the City certifying the delivery of such material to
site.
j. Company will be responsible for any restoration or remediation of the Licensed
Premises that is caused or contributed to by its negligence or by a breach of this
Agreement.
IX. Documenting Condition of Licensed Premises
Company must provide the Director with videographic documentation of the condition of
the Licensed Premises as they exist both before and after the use permitted herein. All
such video must include a visible date and time stamp indicating when the videography
occurred. Company must submit documentation of the pre-installation condition prior to
commencing any work on the Licensed Premises. Post-installation documentation must
be submitted no later than five (5) business days after the last day of the License Period.
Director will distribute copies of the documentation to all appropriate City personnel to
determine whether any damage has been done to the Licensed Premises.
X. Minimizing Impact on Vegetation
a. Company will not cut or remove any trees on the Licensed Premises. Prior to beginning
any construction or Permitted Use,Company will install perimeter construction fencing
in accordance with any preconstruction plans agreed to by the Director. To the extent
that any trees exist in the Licensed Premises, Company will install chain link fencing
on the outside drip line of trees and other vegetation specifically identified by the
Director at a pre-construction meeting and as outlined in accordance with Exhibit C,
which is attached hereto and incorporated herein for all purposes. Company will notify
the Director once the perimeter fencing and tree protection measures have been
installed and allow the Director an opportunity to inspect the work before access is
permitted. The City will have at least two (2) business days following the date on
which notice is received to conduct its inspection. Company may begin construction
on or after the third business day following the date on which it provided notice to the
Director unless the Director contacts Company and identifies specific issues that render
the perimeter fencing or tree protection measures unacceptable.
b. Company will ensure that tree protection fencing remains in place throughout the
License Period or any extended License Period. At no time will any tree be damaged
or removed. If any tree within the Park or Licensed Premises is damaged in connection
with Company's operations, Company agrees to undertake remediation efforts,
including paying of remediation costs,in accordance with Exhibit D,which is attached
hereto and incorporated herein for all purposes. Any fencing will remain in place until
such time as the Licensed Premises are restored pursuant to the terms of this
Agreement.
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XL Minimizing Impact on Utilities and Pipelines
a. Prior to using the Licensed Premise for access, Company will use its best efforts to
locate and physically mark all utilities and pipelines (including, but not limited to,
electric lines,waterlines, sewer lines, storm drains and lines, and gas lines)within the
Licensed Premises, which may include but not be limited to, conducting a dig test.
With 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.
b. If the Company encounters any utility infrastructure (including, but not limited to,
electric lines, waterlines, sewer lines, storm drains and lines, or gas lines) or pipelines
in the course of or in connection with Company's use of the Licensed Premises, the
Company covenants and agrees to cease its operations immediately and install
protective matting over or around such utilities in compliance with specifications
approved by the City's Water Department or Transportation and Public Works
Department or by the Director. Following installation of the matting, Company will
contact the Director to arrange for inspection and approval by appropriate City
personnel.
c. Company will provide the Director with a copy of the matting specifications and the
Water Department's inspection report within twenty-four (24) hours of receiving the
report from the Water Department and prior to mobilization of its operations on the
Park. Company may begin accessing the Licensed Premises after the date on which it
provided the inspection report and specifications to the Director unless the Director
contacts Company and identifies specific issues that render the measures unacceptable.
XIL Restoration of Improvements
To the extent any road,curb,gutter,irrigation system,utility line,barricade, fence, or other
improvement is destroyed, removed, or altered in connection with Company's activities
under this Agreement, as determined in the sole reasonable discretion of the Director,
Company will 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 Agreement is fully executed, as evidenced by the pre-installation
video required under Section IX of this Agreement. Any restoration required under this
section must be completed by Company and inspected and approved by the Director prior
to the expiration of the License Period or the License Period will be extended per Section
I.
XIII. Grading and Restoration of Surface of Licensed Premises
a. Company will conduct a survey of the grade of the Licensed Premises and will be
responsible for ensuring that the final grade of park land is returned to pre-existing
conditions and maintain positive drainage away from existing baseball and soccer
fields. All grading work will be subject to review and approval by the Director.
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b. To the extent any portion of the surface of the Licensed Premises is damaged or
disturbed in connection with Company's activities under this Agreement, as
determined by the Director in his sole reasonable discretion, Company will restore the
surface of the Licensed Premises by: (i)removing any and all debris,asphalt,concrete,
rock, or other material added to the surface of the Licensed Premises to create the
staging area, parking lot, and drive thru area; (ii) after Company removes the material
pursuant to section (i) above, Company will decompact and aerate existing soil, add
minimum of 6" of approved topsoil, , to support the established grade and new
Bermuda TIF sod required by section (iv) below and Exhibit E; (iii) aerating the soil
using a heave-action aerator with six-to-eight inch tines to address compaction; (iv)sod
with hybrid Bermuda grass in accordance with the seeding specifications outlined in
the attached Exhibit E; and(v)watering the sodded areas with temporary irrigation, as
reasonably needed, until the replacement vegetation is reasonably established and has
been approved and accepted by the Director. There will be no substitution of planting
materials without the prior written approval of the Director.
c. Prior to planting,Company will provide the Director with documentation certifying the
type and quality of the materials to be planted. The Director may, in the exercise of
the Director's sole discretion, reject any plant material that does not meet the
requirements of this section or Exhibit E or is otherwise unacceptable for one or more
specific, clearly identified reasons.Any restoration required under this section must be
completed by Company in compliance with the specifications set forth in this section
and the attached exhibits and inspected and approved by the Director,which approval
will not be unreasonably withheld, prior to the expiration of the License Period or the
License Period will be extended per Section II.
XIV. Discretionary Limited Access to Care for and Establish Vegetation
a. Company 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 Director at
least ten days prior to the expiration of the License Period or extended License Period.
Replacement vegetation 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 License Period or extended License
Period. During the Limited Access period, no Company 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. Company's use
of the Licensed Premises under Limited Access in accordance with this Section will
not invoke any additional extended License Period beyond that which already exists at
the time that Limited Access is granted.
XV. Liability; Indemnification.
a. Company agrees to pay City for all damages suffered or incurred by City,either directly
or indirectly, as a result of any operations on or from the Licensed Premises conducted
for or by Company,its agents, employees or representatives, including,but not limited
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to, all damage or injury to standing or fallen timber, buildings, fences, equipment,
pipelines,utilities, and all other property,whether real or personal.
b. SUBJECT TO THE LIMITATIONS OF TEXAS LAW, COMPANY
COVENANTS AND AGREES TO AND DOES HEREBY INDEMNIFY, HOLD
HARMLESS,AND DEFEND,AT ITS OWN EXPENSE,CITY,ITS OFFICERS,
SERVANTS, REPRESENTATIVES, AND EMPLOYEES, FROM AND
AGAINST ANY AND ALL CLAIMS, LAWSUITS, DAMAGES, COSTS, AND
EXPENSES, INCLUDING, BUT NOT LIMITED TO, PROPERTY LOSS OR
DAMAGE AND PERSONAL INJURY TO ANY AND ALL PERSONS
(INCLUDING, BUT NOT LIMITED TO, DEATH), OF WHATSOEVER HIND
OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF
ANY ACT OR OMISSION OF COMPANY, ITS OFFICERS, AGENTS,
EMPLOYEES, SUBCONTRACTORS, INVITEES, OR LICENSEES.
COMPANY LIKEWISE COVENANTS AND AGREES TO, AND DOES
HEREBY, INDEMNIFY AND HOLD HARMLESS CITY FROM AND
AGAINST ANY AND ALL INJURIES, DAMAGE, LOSS, OR DESTRUCTION
TO PROPERTY OF CITY DURING THE PERFORMANCE OF ANY OF THE
TERMS AND CONDITIONS OF THIS AGREEMENT. HOWEVER, THE
INDEMNITY PROVIDED FOR IN THIS PARAGRAPH WILL 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 COMPANY AND THE CITY, RESPONSIBILITY
AND LIABILITY,IF ANY,WILL BE APPORTIONED COMPARATIVELY IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. NOTHING
HEREIN WILL 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. SUBJECT TO THE LIMITATIONS OF TEXAS
LAW, COMPANY DOES HEREBY RELEASE, INDEMNIFY, DEFEND,
REIMBURSE, AND HOLD HARMLESS THE CITY, ITS OFFICERS,
AGENTS, REPRESENTATIVES,AND EMPLOYEES, FROM AND AGAINST
ANY AND ALL ENVIRONMENTAL DAMAGES AND THE VIOLATION OF
ANY AND ALL ENVIRONMENTAL REQUIREMENTS RESULTING FROM
COMPANY'S OPERATIONS UNDER THIS AGREEMENT WHEN SUCH
ENVIRONMENTAL DAMAGES OR VIOLATION OF ENVIRONMENTAL
REQUIREMENTS ARE CAUSED BY THE ACT OR OMISSION OF
COMPANY, ITS OFFICERS, AGENTS, EMPLOYEES, OR CONTRACTORS,
OR THE JOINT ACT OR OMISSION OF COMPANY, ITS OFFICERS,
AGENTS, EMPLOYEES, OR CONTRACTORS AND ANY OTHER PERSON
OR ENTITY.
i. For purposes of the environmental indemnification, the words and phrases
will be defined as follows:
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I. Environmental Damages will mean all claims,judgments,damages,
losses, penalties, fines, liabilities (including strict liability),
encumbrances, liens costs, and expenses of investigation and
defense of any claim, whether or not such claim is ultimately
defeated, and of any good faith settlement of judgment, of whatever
kind or nature, contingent or otherwise, matured or unmatured,
foreseeable or unforeseeable, including without limitation
reasonable attorney's fees and disbursements and consultant's fees,
any of which are incurred as a result of the existence of a violation
of environmental requirements pertaining to work performed under
this contract or by the operations of the Company and its
subcontractors, and including without limitation:
(a) Damages for personal injury and death, or injury to property
or natural resources;
(b) Fees incurred for the services of attorneys, consultants,
contractors, experts, laboratories and investigation or
remediation of the monitoring wells or any violation of
environmental requirements including,but not limited to,the
preparation of any feasibility studies or reports of the
performance of any cleanup, remediation, removal,
response, abatement, containment, closure, restoration or
monitoring work required by any federal, state or local
governmental agency or political subdivision, or otherwise
expended in connection with the existence of such
monitoring wells or violations or environmental
requirements, and including without limitation any
attorney's fees,costs and expenses incurred in enforcing this
contract or collecting any sums due hereunder; and
(c) Liability to any third person or governmental agency to
indemnify such person or agency for costs expended in
connection with the items referenced in subparagraph (b)
herein.
II. Environmental Requirements will mean all applicable present and
future statutes,regulations,rules,plans,authorizations,concessions,
franchises, and similar items, of all governmental agencies,
departments, commissions, boards, bureaus, or instrumentalities of
the United States, states, and political subdivisions thereof and all
applicable judicial, administrative, and regulatory decrees,
judgments, and orders relating to the protection of human health or
the environment, including without limitation:
(a) All requirements, including, but not limited to, those
pertaining to reporting, licensing, emissions, discharges,
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releases, or threatened releases of hazardous materials,
pollutants, contaminants or hazardous or toxic substances,
materials, or wastes whether solid, liquid, or gaseous in
nature, into the air, surface water, groundwater, stormwater,
or land, or relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport, or
handling of pollutants, contaminants, or hazardous or toxic
substances, materials, or wastes, whether solid, liquid, or
gaseous in nature; and
(b) All requirements pertaining to the protection of the health
and safety of employees or the public.
d. Company covenants and agrees that City will in no way or under any circumstances be
responsible for any property belonging to Company, its members, employees, agents,
contractors, subcontractors, invitees, licensees, or trespassers that may be stolen,
destroyed, or in any way damaged, and COMPANY, SUBJECT TO THE
LIMITATIONS OF TEXAS LAW, 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
Company, its members, employees, agents, contractors, subcontractors, invitees,
licensees, or trespassers on any of the Licensed Premises.
e. Company agrees that City will not be liable for any loss,injury or damage whatsoever
suffered or incurred by Company or Company's agents, employees or representatives
while on the Licensed Premises.
f. All of the obligations set forth above are subject to the limitations of relevant state law
and subject to any defenses or immunities Company may possess.
XVI. INSURANCE
a. Dutv to Acquire and Maintain
i. Company will cause its contractor to procure and maintain at all times, in
full force and effect, a policy or policies of insurance to provide coverages of the types
and amounts specified herein,naming the City as an additional insured and covering all
public risks related to the use, occupancy,condition,maintenance,existence,or location
of the Park and Licensed Premises. The insurance required hereunder may be met by a
combination of self-insurance and primary and excess policies. Company will provide
proof of all requirements stated herein to the City prior to beginning any work pursuant
to this Agreement.
b. Tvpes and Amounts of Coverage Required
i. Commercial General Liability:
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I. $2,000,000.00 per occurrence, $2,000,000.00 aggregate, including
coverage for the following: (i) Premises Liability; (ii) independent
contractors; (iii) products/completed operations; (iv) personal injury; (v)
contractual liability; (vi) explosion, collapse, and underground property
damage
ii. Property Damage Liabilitv:
1. $1,000,000.00 per occurrence
ii. Umbrella Policy
I. $10,000,000.00
iii. Environmental Impairment Liability (EIL) &/or Pollution Liability
I. $5,000,000.00 per occurrence
II. $10,000,000.00 aggregate
iv. Automobile Liability:
I. $1,000,000.00 per accident, including,but not limited to, all owned,
leased, hired, or non-owned motor vehicles used in conjunction with the
rights granted under this Agreement
V. Worker's Compensation:
I. $1,000,000.00 per accident
vi. Employer's Liability:
I. $1,000,000.00 per accident
C. Revisions to Required Coverage
i. At the reasonable recommendation of the City's Risk Manager, the City
may at any time revise insurance coverage requirements and limits required by this
Agreement. Company agrees that within thirty(30)days of receipt of written notice
from the City, Company will implement all such revisions requested by the City.
Policies will not have exclusions that nullify or alter the required lines of coverage,
or decrease the limits of said coverages required by this Agreement, unless such
endorsements are approved in writing by the City. The policy or policies of
insurance will be endorsed to provide that no material changes in coverage,
including, but not limited to, cancellation, termination, non-renewal, or
amendment,will be made without thirty (30) days' prior written notice to the City.
d. Underwriters and Certificates
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i. Company will procure and maintain its insurance with underwriters who are
authorized to do business in the State of Texas and who are acceptable to the City
in terms of solvency and financial strength. Within ten (10) business days
following execution of this Agreement, Company will furnish the City with
certificates of insurance signed by the respective companies as proof that it has
obtained the types and amounts of insurance coverage required herein. In addition,
Company will, on demand, provide the City with evidence that it has maintained
such coverage in full force and effect.
e. Deductibles
i. Deductible or self-insured retention limits on any line of coverage required
herein will not exceed $500,000.00 in the annual aggregate unless the limit per
occurrence or per line of coverage, or aggregate is otherwise approved by the City.
f. Waiver of Subrogation
i. Company will require any of its contractors' worker's compensation
policies to contain a waiver of subrogation endorsement in favor of the City.
g. No Limitation of Liability
i. The insurance requirements set forth in this section and any recovery by the
City of any sum by reason of any insurance policy required under this Agreement
will in no way be construed or affected to limit or in any way affect Company
liability to the City or other persons as provided by this Agreement or law.
XVIL Prohibition Against Liens
Company will 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 will be void. Should any purported lien
on the Licensed Premises be created or filed, Company will, at its sole expense, liquidate
and discharge same within ten (10)business days after notice from the City to do so
XVIIL Notices
All notices required or permitted under this Agreement will 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.
June 2021 Temporary Access&Workspace for Alliance Park Page 13 of 38
To THE CITY: To COMPANY:
Director MCA Litsey Creek, LP
Parks and Recreation Department Attn: Dudley Simmons
City of Fort Worth Managing Principal
4200 South Freeway, Suite 2200 1601 S. Mopac Expressway Ste 175
Fort Worth, Texas 76115 Austin, Texas 78746
With a copy to:
Department of Law
City of Fort Worth
Attn: City Attorney
200 Texas St
Fort Worth, Texas 76102
XIX. Independent Contractor
It is expressly understood and agreed that Company will operate as an independent entity
in each and every respect hereunder and not as an agent,representative,or employee of the
City. Company will have the exclusive control and the exclusive right to control all details
and day-to-day operations and activities relative to operation of Company and this
Agreement and will 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 will not apply as between the City
and Company, its officers, agents, servants, employees, contractors, subcontractors,
licenses, and invitees. Nothing contained in this Agreement will be construed as the
creation of a partnership or joint enterprise between the City and Company.
XX. Prohibition Against Assignment
Company may not sell, assign, or otherwise transfer any of its rights or obligations under
this Agreement without the prior, written consent of the City. Any such attempted
assignment without the City's consent will be void.
XXL Compliance with Laws and Regulations
a. In operating under this Agreement, Company agrees to comply with all applicable
federal,state, and local laws,regulations,and ordinances,including all City ordinances,
charter provisions, and rules, regulations, and requirements of the City's Police, Fire,
Code Compliance, Environmental, Transportation and Public Works, Water, and
Health Departments.
b. Company will not knowingly do or suffer to be done anything on said Licensed
Premises during the terms of this Agreement in violation of the laws, statutes,
ordinances,rules,regulations,charter provisions,directives or requirements referenced
in this Agreement. If the City calls the attention of Company to any such violation on
June 2021 Temporary Access&Workspace for Alliance Park Page 14 of 38
the part of said Company or any person employed by or admitted to said Licensed
Premises by Company,Company will immediately(or otherwise as soon as reasonably
possible) desist from and correct such violation and/or vacate the Licensed Premises.
XXIL Taxes
Company acknowledges and agrees that it will be solely responsible for paying all taxes
assessed or imposed by any governmental entity in connection with the construction,
installation, operation, maintenance, repair, or reconstruction of the pipeline and with the
use of the Licensed Premises or other City property related to activities within the scope of
this Agreement.
XXIILForce Majeure; Homeland Security
If either parry 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 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,
including the Licensed Premises, in the interest of public safety and operate them as the
City sees fit.
XXIV.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 Agreement.
XXV. Choice of Law; Venue
This Agreement will 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 will lie in state courts located in
Tarrant County, Texas or the United States Company Court for the Northern Company of
Texas - Fort Worth Division.
XXVL Governmental Powers
June 2021 Temporary Access&Workspace for Alliance Park Page 15 of 38
It is understood and agreed that by execution of this Agreement,the City and Company do
not waive or surrender any of their governmental powers or immunities.
XXVIL Authorization
By executing this Agreement, Company's agent affirms that he or she is authorized by
Company to execute this Agreement and that all representations made herein with regard
to Company identity, address and legal status (corporation, partnership, individual, etc.)
are true and correct.
XXVIII. Entirety of Agreement
This instrument (including all attachments, schedules, and exhibits attached hereto)
constitutes the entire understanding and agreement of the City and Company 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 Agreement. This Agreement will not be amended unless agreed to in
writing by both parties.
[SIGNATURE PAGE FOLLOWS]
June 2021 Temporary Access&Workspace for Alliance Park Page 16 of 38
By executing this Agreement, Company agrees to and accepts the terms, conditions and
provision contained herein.
[Executed effective as of the date signed by the Assistant City Manager below.] / [ACCEPTED
AND AGREED:]
City: Company:
i1.A,Je—) Dudley slmmons
By: Valerie Washington(Jul 19,202114:30 CDT) By: Dudley Simmons(Jul 16,202116:37 CDT)
Name: Valerie Washington Name: Dudley Simmons
Title: Assistant City Manager Title: Co-President
Date: J u 119,2021 Date: J u 116,2021
CITY OF FORT WORTH INTERNAL ROUTING PROCESS:
Approval Recommended: Contract Compliance Manager:
By signing I acknowledge that I am the person
responsible for the monitoring and administration
of this contract,including ensuring all
By: performance and reporting requirements.
Name: Dave Lewis for Richard Zavala
Title: Assistant Director
C fL2�Q�lLCL`i"G9Bl1
By: Christina Moon(Jul 16,202116.40 CDT)
Name: Christina Moon
Approved as to Form and Legality: Park Planner
/ Title: pp�foRr��a�
By: O°°°°°°°°°°°boa
Name: Taylor Paris p ° °o�d�
City Secretary: 0
Title: Assistant City Attorney d�Yo
O°°OO°°pO°°°° b�
aka rEX ASaAp
By:
Ronald P.Gonzales(Jul 21,2 08:A
Name: Ron Gonzales
Title: Interim City Secretary
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
June 2021 Temporary Access&Workspace for Alliance Park Page 17 of 38
EXHI
IT
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June 2021 Temporary Access&Workspace for Alliance Park Page 18 of 38
premises. �
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EXHIBIT C
TREE PROTECTION
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June 2021 Temporary Access&Workspace for Alliance Park Page 33 of 38
EXHIBIT D
DAMAGE TO CITY TREES
NO PRUNING OF ANY CITY TREE WILL BE PERMITTED, 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 will be considered a
breach of contract and COMPANY will 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.
1.2. The Director 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 Period. The City Forester,
Director, and Company will attend the inspection.
1.4. Damages will be documented by memo to the City Forester with copy to contract file and
the Contractor.
1.5. Company may have the option of replacement or payment for severely damaged trees at a
location to be designated by PALS. Replacement will 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 will be responsible for any planting, watering, mulching and
maintenance of replacement trees for a period of not less than 2 years. Company will
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 will 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'/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 will 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 50% radius of the CRZ. Slight damage to
trees will 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, will be considered one instance.
1.7. Moderate damage will 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
June 2021 Temporary Access&Workspace for Alliance Park Page 34 of 38
of the trunk circumference or breaking of limbs more than 2" in diameter but less than 1/3
trunk caliper. Moderate damage will 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 will be calculated at a
rate of 1/2 the assessed value of the tree per each instance of damage.
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 will 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 will 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 will also be considered severe damage.
1.9. Branches will 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 will be measured
according to accepted industry standards. Trees greater than 6"in caliper will be measured
using DBH. Trees that must be removed due to damage caused by Company will be
removed by the Parks and Community Services Department's Forestry Section Tree
Removal Contractor at Company's expense.
1.10 All damages will be paid to the City Tree Fund. Failure to replace or pay for damaged trees
will result in a breach of contract and Company will be automatically assessed damages.
Damages as described herein will 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 bearing on whether or to what extent
any fines may be due under the Urban Forestry Ordinance of the Fort Worth Zoning
Ordinance.
June 2021 Temporary Access&Workspace for Alliance Park Page 35 of 38
EXHIBIT E
RESTORATION STANDARDS
SECTION 32 92 13.2
SODDING
PART1 - GENERAL
1.1 SUMMARY
A.Section Includes:
1. Furnishing and installing grass sod.
B.Related Standard City Specification Sections include, but are not necessarily limited to:
1. Section 32 91 19—Topsoil
2. Section 32 84 23 -Irrigation
1.6 INFORMATIONAL SUBMITTALS
A. Certificates and Samples
1. Certificates and specifications of sod, fertilizer, compost, soil amendments or
other materials as requested by the City.
1.10 DELIVERY, STORAGE,AND HANDLING
A.Block Sod
1. Protect from exposure to wind, sun and freezing.
2. Keep stacked sod moist consistently throughout stack.
3. Sod upon delivery shall be inspected by City provision of certificate from vender
to be provided to City indicating sod free of all weeds.
4. Harvesting and planting operations shall be coordinated with not more than forty-
eight hours elapsing between harvesting and placement,rolling and tamping, and
watering of sod
1.11 FIELD [SITE] CONDITIONS
A. Grading of site and installation of topsoil must be approved by City prior to application
of sod
PART2 - PRODUCTS
2.1 MATERIALS AND EQUIPMENT
A.Materials
1. Block Sod
a. Sod Varieties
1) Cynodon dactylon `TIF419' or Cynodon dactylon `TIFWAY'
2) OR an approved Zoysia grass
b. Sod must contain stolons,leaf blades,rhizomes and roots.
c. Sod shall be alive, healthy and free of insects, disease, stones,undesirable
foreign materials and weeds and grasses deleterious to its growth or which
might affect its subsistence or hardiness when transplanted.
d. Minimum sod thickness: 1"inch minimum.
e. Maximum grass height: 2 inches
f. Sod shall have been produced on growing beds of clay or clay loam topsoil.
June 2021 Temporary Access&Workspace for Alliance Park Page 36 of 38
RESTORATION-SOD
Page 2 of 3
g. Sod must not be harvested or planted when its moisture condition is so
excessively wet or dry that its survival will be affected.
h. If sod is stacked,it shall be kept moist and shall be stacked roots to roots and
grass to grass.
i. Acceptable growing beds
1) Bermuda grasses and zoysia grasses: sand or sandy loam soils
j. Broken or torn sod or sod with uneven ends shall be rejected.
k. Temporary Erosion Control Seed
1) Consist of the sowing of cool season plant sod.
2. Topsoil: See Section 32 91 19.
3. Water: clean and free of industrial wastes or other substances harmful to the
germination of the seed or to the growth of the vegetation.
2.2 ACCESSORIES
a. Sod pins
1) Metal
2) Wood pegs.
PART 3 - EXECUTION
3.1 EXAMINATION
A.Sod shall be inspected by City upon delivery.
B.Contractor must coordinate inspection 72 hours prior to cutting of sod and delivery
3.3 PREPARATION
A.Surface Preparation: clear surface of all material including:
1. Scarify subgrade to a depth of 2-inches before depositing the required topsoil.For
simple row repair only scarify to 1-inch.
2. Stumps, stones, and other objects larger than one inch.
3. Roots, brush, wire, stakes, etc.
4. Any objects that may interfere with planting sod or maintenance.
B.Cleaning
1. Soil shall be further prepared by the removal of debris,building materials,rubbish,
weeds, and rock 1-inch and greater.
C.Fine Grading:
1. After tillage and clearing, all areas to be planted shall be leveled,fine graded, and a
weighted spike and harrow or float drag. The required shall be the elimination of
ruts, depressions,humps, and objectionable soil clods. This shall be the final soil
preparation step to be completed prior to inspection before planting.
2. Areas near trees: Do not till inside dripline of trees or over exposed roots
3.4 INSTALLATION
A. Block Sodding
1. General
a. Do not lay sod when ground is frozen.
b. Over-seeding with annual rye is acceptable from November 1 until February 1.
June 2021 Temporary Access&Workspace for Alliance Park Page 37 of 38
RESTORATION-SOD
Page 3 of 3
B. Installation
1. Plant sod specified after the area has been inspected and accepted by City for
planting.
2. Till 2" of subgrade and place 3" of topsoil on areas to receive sod or as directed
by City.
3. Sod to be laid parallel to the contours in areas as specified. Sod to be laid
perpendicular to slopes greater than 3:1.
4. Use care to retain native soil on the roots of the sod during the process of
excavating, hauling and planting.
5. Keep sod material moist from the time it is dug until planted.
6. Fill in slumped areas due to watering to keep sod moist.
7. Place sod so that the entire area designated for sodding is covered with no gaps
or overlapping material.
8. Fill voids left in the solid sodding with additional sod and tamp.
9. Roll and tamp sod so that sod is in complete contact with topsoil at a uniform
slope. By pedestrian mechanical process (no motorized vehicles I equipment)
10.Peg sod with wooden pegs (or wire staple) driven through the sod block to the
firm earth in areas that may slide due to the height or slope of the surface or
nature of the soil.
C. Watering and Finishing
1. Thoroughly water sod immediately after placed and tamped and rolled.
2. Generally, as recommended by the vendor. Water source shall be clean and free
of industrial waste or other substances harmful to the germination of the seed or
growth of the vegetation.
END OF SECTION
June 2021 Temporary Access&Workspace for Alliance Park Page 38 of 38