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HomeMy WebLinkAboutContract 44506-A1 ec � PIoNrt1q) STATE OF TEXAS § § KNOWN ALL BY THESE PRESENTS: COUNTY OF TARRANT § FIRST AMENDMENT TO CITY SECRETARY CONTRACT NO. 44506 THIS FIRST AMENDMENT to City Secretary Contract No. 44506 is entered into by and between the City of Fort Worth ("City"), a home-rule municipality in the State of Texas, acting through Fernando Costa, its duly authorized Assistant City Manager, and The Texas Commission on Environmental Quality ("TCEQ") acting through Cory Chism its duly authorized Director. WHEREAS, the City and TCEQ have entered into that certain agreement identified as City Secretary Contract No. 44506 (also the "Contract") commencing on May 22, 2013, for the non-exclusive license to enter upon and use the portion of the Park set forth in Exhibit B of the Contract, ("Licensed Premises") which is incorporated within by reference, for the purpose of constructing, maintaining, and operating a continuous air monitoring system during as authorized by Mayor and Council Communication C- 26039; and WHEREAS, that contract was for an initial term of three years and that contract provides for the extension of the term of the Contract for up to two additional years; and WHEREAS, the parties wish to extend the term of the initial for two additional years; and WHEREAS, the parties agree that all other conditions and terms shall remain the same as stated in City Secretary Contract No. 44506; NOW, THEREFORE, for and in consideration of the mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and confessed, the parties hereto agree as follows: First Amendment to Contract 44506 OFFICIAL RECO% 3 of 3 Texas Commission on Environmental Quality CITY SECRETARY FT.WORTH,TX 1.Extended term of Contract: The term of City Secretary Contract number 44506 is extended from May 22, 2016, to May 22, 2018. 2. Other Provisions: All other definitions, terms, and conditions of City Secretary Contract number 44506 shall remain unchanged except as expressly set forth herein. IN WITNESS THEREOF, the parties have executed this contract in triplicate in Fort Worth, Texas, on the dates written below. CITY OF FORT WORTH TEXAS COMMISSION ON ENVIRONMENT UALITY BY: Fernando Costa, Assistant City Manager BY: Date: Cory Chism, Director 51/7/If Date: APPROVED AS TO FORM : AND LEGALITY: a,,,� A Arthur N. Bashor Assistant City Attorney F FOP $®r. alry J. Kayser, City Se tary % A OFFICIAL RECORD ,. CITY SECRETARY FT. WORTH, TX First Amendment to Contract 44506 Page 3 o Texas Commission on Environmental Quality CONTRACTOR'S TEMPORARY RIGHT OF ENTRY AGREEMENT THIS TEMPORARY RIGHT OF ENTRY AGREEMENT ("Agreement"), dated 2016 (the "Effective Date"), is made by and between the City of Fort Worth (hereinafter "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 AECOM(hereinafter"Contractor") in accordance with, and as provided for in that one certain Air Monitoring Site License Agreement, recorded with the City Secretary as City Secretary Contract Number 44506, effective May 22, 2013 between the City and the Texas Commission on Environmental Quality ("TCEQ"), a State of Texas agency, a true and complete copy of which has been provided to Contractor by the City and which is incorporated herein by reference as if set out at length (the "License") with respect to an Air Quality Monitoring Station to be installed, operated, and maintained on a Rolling Hills Park located at 2525 Joe B. Rushing Road, Fort Worth,Texas 76119. Capitalized terms used, but not defined herein, shall have the meanings given such terms in the License. Contractor acknowledges that it has carefully read the License and is familiar with all of the terms and conditions contained therein applicable to Contractor and its work with respect to this project. Subject to the provisions hereof and the License,the City hereby grants to Contractor a temporary right of entry onto the Licensed Premises from the Effective Date through May 22, 2018, solely for the purpose of constructing, installing, maintaining, or operating the System. 1. For purposes of this Agreement, all references to Contractor shall include its contractors, subcontractors,officers, agents and employees,and others acting under its or their authority. 2. Contractor shall comply with all of the applicable terms, conditions and requirements set forth in the License, and to discharge each of TCEQ's obligations under the License with respect, and to the extent applicable,to such work. 3. Contractor hereby agrees, in the conduct of its operations hereunder,to abide by and comply with all Laws, and to file all reports or statements required in connection with the conduct of its business. CONTRACTOR SHALL AND DOES HEREBY INDEMNIFY, DEFEND, AND HOLD HARMLESS THE CITY FROM AND AGAINST ANY AND ALL LOSS, COST OR EXPENSE WHATSOEVER, INCURRED BY REASON OF ANY VIOLATION OF SUCH RULES AND REGULATIONS BY CONTRACTOR. 4. (A) CONTRACTOR 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 ASSERTED, ARISING OUT OF OR RESULTING FROM THE ACTS, ERRORS, OR OMMISSIONS OF CONTRACTOR AND/OR CONTRACTOR'S SUBCONTRACTORS AND THEIR RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, DIRECTORS, MEMBERS, PARTNERS, AND REPRESENTATIVES IN Air Monitoring Site Agreement between the City of Fort Worth And Texas Commission on Environmental Quality 1 of 4 CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE, OR NONPERFORMANCE OF THIS AGREEMENT. (B) Contractor agrees to be responsible for and promptly reimburse the City for any and all proven damages, losses or liabilities. (C) CONTRACTOR HEREBY ACKNOWLEDGES AND AGREES THAT IT HAS READ THIS AGREEMENT IN ITS ENTIRETY, THAT IT IS FULLY INFORMED AND HAS FULL NOTICE AND KNOWLEDGE OF ALL TERMS, CONDITIONS AND EFFECTS OF THIS AGREEMENT, THAT IT HAS HAD AN OPPORTUNITY TO CONSULT OR HAS BEEN REPRESENTED BY LEGAL COUNSEL OF ITS CHOICE PRECEDING THE EXECUTION OF THIS AGREEMENT, AND THAT IT RECOGNIZES THAT CERTAIN OF THE TERMS OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE TERMS OF PARAGRAPH 4.13, RESULT IN CONTRACTOR GROUP ASSUMING CERTAIN LIABILITIES TO THE FULLEST EXTENT PERMITTED BY LAW WITH RESPECT TO CERTAIN WORK OR SERVICES AND RELIEVING CITY OF ITS RESPONSIBILITY FOR SUCH LIABILITY. CONTRACTOR AGREES THAT IT WILL NOT CONTEST THE VALIDITY OR ENFORCEABILITY OF ANY INDEMNITY OR EXCULPATORY PROVISION OF THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ON THE BASIS THAT CONTRACTOR HAD NO NOTICE OR KNOWLEDGE OF SUCH PROVISION OR THAT THE PROVISION WAS NOT "CONSPICUOUS". IN THE EVENT THAT ALL OR ANY PORTION OF THIS PARAGRAPH 4 SHALL BE DEEMED TO BE UNENFORCEABLE FOR ANY REASON, INCLUDING WITHOUT LIMITATION AS A RESULT OF A DECISION OF ANY APPLICABLE COURT, LEGISLATIVE ENACTMENT OR REGULATORY ORDER, THE PARTIES AGREE THAT THIS PARAGRAPH 4 SHALL BE REFORMED TO MAKE IT ENFORCEABLE AND TO REFLECT THE INTENT OF THE PARTIES, WHICH IS THAT CONTRACTOR SHALL INDEMNIFY AND HOLD HARMLESS CITY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. 5. PERSONAL PROPERTY WAIVER — ALL PERSONAL PROPERTY, INCLUDING, BUT NOT LIMITED TO, FIXTURES, EQUIPMENT, OR RELATED MATERIALS UPON THE LICENSED PREMISES OR THE PARK WILL BE AT THE RISK OF CONTRACTOR ONLY, AND CITY SHALL NOT BE LIABLE FOR ANY DAMAGE THERETO OR THEFT THEREOF. 6. Insurance - Contractor shall, at its sole cost and expense, abide by the insurance requirements set forth in the License. 7. Contractor, at its own expense, shall adequately police and supervise all work to be performed. 8. Safety of personnel, property, and the public is of paramount importance in the prosecution of the work performed by Contractor and any subcontractor. Contractor shall be responsible for initiating, maintaining and supervising all safety, operations and programs in connection with the work. Contractor and any subcontractor shall at a minimum comply with any City safety standards. Without limitation of this provision Contractor and any subcontractor will keep the job site free from safety and health hazards and require its contractors to ensure that its employees are competent and adequately trained in all safety and health aspects of the job. 9. Contractor shall require its employees and any subcontractor to have proper first aid supplies available on the job site so that prompt first aid services may be provided to any person injured on the job site. Contractor shall have a non-delegable duty to control its employees while they are on the job site or any other property of City, and to be certain they do not use, are under the influence of, or have in their Air Monitoring Site Agreement between the City of Fort Worth And Texas Commission on Environmental Quality 2 of 4 possession any alcoholic beverage, drug or other substance that may inhibit the safe performance of any work. 10. If and when requested by City, Contractor shall deliver to City a copy of its safety plan for conducting the work (the "Safety Plan"). City shall have the right, but not the obligation, to require Contractor to correct any deficiencies in the Safety Plan. The terms of this Agreement shall control if there are any inconsistencies between this Agreement and the Safety Plan. 11. Contractor shall conduct its operations and activities hereunder, and construct and install the System in compliance with all applicable laws, ordinances, rules, and regulations of any governmental authority having jurisdiction over same, including, without limitation, all applicable design, operations, safety, and environmental laws, ordinances, rules, and regulations of any federal, state, or local authority applicable to such facilities and this Agreement(together,the"Laws"). 12. By execution of this Agreement the City does not waive or surrender any of it governmental powers or sovereign immunity. 13. Neither termination nor expiration will release Contractor from any liability or obligation under this Agreement, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or expiration. 14. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas. If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement,venue for such action shall lie in state courts located in Tarrant County,Texas. 15. To the maximum extent possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by, or held to be invalid under, applicable law, such provision shall be ineffective solely to the extent of such prohibition or invalidity, and this shall not invalidate the remainder of such provision or any other provision of this Agreement. 16. In the event that Contractor consists of two or more parties, all the covenants and agreements of Contractor herein contained shall be the joint and several covenants and agreements of such parties. 17. The waiver by City of the breach of any provision herein by Contractor shall in no way impair the right of City to enforce that provision for any subsequent breach thereof. 18. This Agreement (including the attached exhibits) contains the entire Agreement between parties, and no oral statements or prior written matter not specifically incorporated herein are of any force and effect. No modifications are binding on either party unless set forth in a document executed by that party. [SIGNATURES APPEAR ON THE FOLLOWING PAGE] Air Monitoring Site Agreement between the City of Fort Worth And Texas Commission on Environmental Quality 3 of 4 IN WITNESS WHEREOF,the parties hereto have caused these presents to be executed in duplicate the first day and year first above written. CITY OF FORT WORTH CONTRACTOR Ise:,by: �iLL1a� C�� by: Fernando Costa Scott Jenjins Assistant City Manager VP De rtment Head Air Measurements, Permits, & Planning APPROVED AS TO FORM AND LEGALITY: &'/t� y( Assistant City Attorney; Age rtat,tzN 341 4"'C ATTESTED BY: ®� ®P��: a J. Kayser ` �'�' O City Secretary 40 *%lb- � �7 ♦ N Contract Authorization: " No M&C required Air Monitoring Site Agreement between the City of Fort Worth And Texas Commission on Environmental Quality 4 of 4