HomeMy WebLinkAboutContract 48673 CITY SECRETARY
CONTRACT NO
TEMPORARY ACCESS AGREEMENT BETWEEN THE CITY OF FORT WORTH AND
ONCOR ELECTRIC DELIVERY COMPANY LLC FOR USE OF A
PORTION OF HARMON FIELD PARK
This Temporary Access Permit("Agreement") is by and between the City of Fort Worth, Texas
("City"), a home-rule municipal corporation of the State of Texas, acting by and through its duly
authorized Assistant City Manager, and Oncor Electric Delivery Company LLC ("Company"), a
Delaware limited liability company, acting by and through its duly authorized representative.
WHEREAS, the City owns a certain piece of property known as Harmon Field Park located at
1501 Martin Luther King Freeway, Fort Worth, Texas 76102 ("Park");
WHEREAS, Company owns property that directly abuts the eastern portion of the Park
("Company Property") and wishes to use certain designated portions of the Park for ingress and egress to
the Company Property so that it can perform activities related to the Texas Department of
Transportation's expansion of Interstate 35W(the"Permitted Purpose"); and
WHEREAS, the City has reviewed the Company's request and agrees to grant the Company use
of a portion of the Park in accordance with the terms and conditions of this Agreement.
For and in consideration of Ten Dollars and No Cents ($10.00) and other good and valuable
consideration, the sufficiency of which is hereby acknowledged, and in consideration of the covenants
contained herein, City and Company agree as follows:
1. License and Purpose. City hereby grants to the Company a non-exclusive license to use a portion
of the Park as depicted in Exhibit A, attached hereto and incorporated herein, ("Licensed
Premises") for the purpose ingress and egress to the Company Property so that it can perform
activities related to the Permitted Purpose and for no other purpose.
2. Term. The term of this Agreement shall be for thirty (30) consecutive days, beginning on January
17, 2017 and expiring on February 16, 2017; provided; however, that Company shall have the
right to extend this Agreement by additional thirty (30) day terms by requesting such extension
from the City in writing within ten (10) days of the expiration of each thirty (30) day term;
however,the Agreement may not be extended after completion of the Permitted Purpose.
3. Termination. The City may terminate this Agreement in the event that Company breaches this
Agreement and fails to cure such breach within 3 (3) days after Company's receive notice of such
breach from City. City may also terminate or suspend this Agreement immediately in the event
the City determines it is in the best interest of the public's safety to do so.
4. Use not Exclusive. This Agreement and all rights granted to Company herein are strictly non-
exclusive. The City reserves the right to enter into and grant other and future licenses, leases, and
other authorizations for use of the Park to other persons and entities as the City deems appropriate
in accordance with applicable law; provided, however, that in granting subsequent authorization
m for use the City will not allow a use that will unreasonably interfere with the Company's use of
_LL the Park as provided herein. In the event of any dispute as to the priority of use of the Park, the
first priority shall be to the public generally, the second priority to the City in the performance of
t? its various functions, and thereafter, as between licensees and other permit holders, as determined
`s .1 .
l 3b 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. Notwithstanding the foregoing, the City acknowledges
that Company's use of the Licensed Premises for the Permitted Purpose may by its very nature
Temporary Access Permit with Oncor Electric Delivery Company LLC 1 of-V1
temporarily interfere with or impede the public's use of the Park, and agrees that such reasonable
interference or impedance is expressly allowed by this Agreement.
5. Acceptance. 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 property, and 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.
Company acknowledges that it has received and reviewed Fort Worth City Secretary Contract
Number 43239 (Natural Gas Facilities License Agreement with Texas Midstream Gas Services,
LLC) and agrees that it will not interfere with the licensee's use of the Park under said contract.
6. Liability. Company covenants and agrees to release City, its officers, agents, representatives,
servants, and employees, from any and all claims or suits for property damage,personal injury, or
any other type of loss or adverse consequence related in any way to the existence of this
Agreement or the use and occupancy of the Park by Company, unless such act or omission
complained of is the result of the gross negligence or willful misconduct of City.
7. Restoration of the Park. Company further agrees that, if during the course of the exercise of its
rights under this Agreement, damages result to the Park or City's park facilities, as reasonably
determined by the City's Director of the Park and Recreation Department or that person's
designee ("Director"), Company shall repair or restore the same to a condition reasonably
satisfactory to the Director within thirty (30) calendar days of completion of Company's project,
unless otherwise agreed to by the parties in writing.
8. INDEMNIFICATION. COMPANY AGREES TO AND DOES HEREBY DEFEND,
INDEMNIFY AND HOLD HARMLESS THE CITY, AND ITS OFFICERS, AGENTS,
REPRESENTATIVES, AND EMPLOYEES FROM AND AGAINST ANY AND ALL
CLAIMS, LAWSUITS, ACTIONS, COSTS AND EXPENSES OF ANY HIND OR
CHARACTER, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY
DAMAGE OR LOSS, PERSONAL INJURY (INCLUDING, BUT NOT LIMITED TO,
DEATH),AND ENVIRONMENTAL DAMAGES THAT MAY RELATE TO,ARISE OUT
OF OR BE OCCASIONED BY (i) COMPANY'S BREACH OF ANY OF THE TERMS OR
PROVISIONS OF THIS AGREEMENT OR (ii) ANY NEGLIGENT ACT OR OMISSION
OR INTENTIONAL MISCONDUCT OF COMPANY OR ITS OFFICERS, AGENTS,
REPRESENTATIVES, EMPLOYEES, CONTRACTORS, AND SUBCONTRACTORS,
RELATED TO THIS AGREEMENT OR THE PERFORMANCE OR
NONPERFORMANCE OF THIS AGREEMENT.
9. Limitation on Use. Any activity on the Licensed Premises is allowed only between 7:00 A.M. and
6:00 P.M. All Company equipment and materials shall be placed and maintained solely within the
confines of the Licensed Premises. Use of any portion of the Park outside of the Licensed
Premises shall not be permitted. Company shall install fencing and temporary access entrance as
required by the Director.
Temporary Access Permit with Oncor Electric Delivery Company LLC 2 of 11-11
10. Insurance. Company shall carry insurance as set forth in Exhibit B, which is attached hereto and
incorporated herein for all purpose.
11. Compliance with Laws. Company shall, at its own cost and expense, comply with all applicable
laws, rules, and regulations, including, but not limited to, any laws pertaining to endangered
species, existing zoning ordinances, governmental rules and regulations enacted or promulgated
by any governmental authority, and shall promptly execute and fulfill all orders and requirements
imposed by such governmental entities for the correction, prevention and abatement of nuisances
in or upon or connected with said premises because of Company's use thereof.
12. Minimizing Impact on Vegetation. Company shall not damage or remove any trees on the
Licensed Premises with the exception of trees approved to be removed by the written approval of
the Director. If any tree that is not approved to be removed is damaged in connection with
Licensee's operations hereunder, the Licensee shall pay reasonable remediation costs to City.
Prior to beginning any work under this Agreement, including, but not limited to, staging work,
the Company shall do the following: (a) install orange mesh fencing on the outside drip line of
trees and other vegetation to prevent damage during construction; and (b) where the access is
within the drip line of any trees, install mulch and matting within the drip line of such trees.
13. Notice. All notices required or permitted under this Agreement shall be conclusively determined
to have been delivered when (i) hand-delivered to the other party, its agent, employee, servant, or
representative, or (ii) received by the other party by reliable overnight courier or United States
Mail, postage prepaid, return receipt requested, at the address stated below or to such other
address as one party may from time to time notify the other in writing.
To THE CITY: To COMPANY:
Director Attn: Transmission Right of Way Group
Park and Recreation Department Oncor Electric Delivery Company LLC
City of Fort Worth 115 W. 7`l'Street, Suite 505
4200 South Freeway, Suite 2200 Fort Worth, Texas 76102
Fort Worth, Texas 76115
With a copy to: With a copy to:
Department of Law Attn: Legal Department
City of Fort Worth Oncor Electric Delivery Company LLC
Attn: City Attorney 115 W. 7t"Street, Suite 411
200 Texas St. Fort Worth, Texas 76102
Fort Worth,Texas 76102
14. Public Safety. Company shall be solely responsible for initiating, maintaining, and supervising
all safety precautions and programs in connection with the Company's use of the Park.
15. Foreign Material Materials. Company shall abide by the terms set forth in Exhibit C, which is
attached hereto and incorporated herein for all purposes, for foreign materials.
16. Force Majeure. If either party is unable, either in whole or part,to fulfill its obligations under this
Agreement due to acts of God; strikes, lockouts, or other industrial disturbances; acts of public
enemies; wars; blockades; insurrections; riots; epidemics; public health crises; earthquakes; fires;
floods; restraints or prohibitions by any court, board, department, commission, or agency of the
United States or of any state; declaration of a state of disaster or of emergency by the federal,
state, county, or City government in accordance with applicable law; issuance of an Imminent
Temporary Access Permit with Oncor Electric Delivery Company LLC 3 ofe
Threat Alert or Elevated Threat Alert by the United States Department of Homeland Security or
any equivalent alert system that may be instituted by any agency of the United States; any arrests
and restraints; civil disturbances; or explosions; or some other reason beyond the party's
reasonable control (collectively, "Force Majeure Event"), the obligations so affected by such
Force Majeure Event will be suspended only during the continuance of such event. If a Force
Majeure Event occurs, the City may, in its sole discretion, close or postpone the opening of its
community centers, parks, or other City-owned and operated properties and facilities in the
interest of public safety and operate them as the City sees fit.
17. Choice of Law, Venue. This Agreement shall be governed by and construed in accordance with
the laws of the State of Texas. If any action, whether real or asserted, at law or in equity, arises
on the basis of any provision of this Agreement, venue for such action shall lie in state courts
located in Tarrant County, Texas or the United States District Court for the Northern District of
Texas-Fort Worth Division.
18. Bindin Effect.ffect. The terms and provisions of this Agreement shall inure to the benefit of and be
binding upon City and Company and their respective successors and assigns and shall be
covenants running with the land.
19. Entire Agreement. This Agreement contains all of the agreements between the parties respecting
the subject matter hereof, and no prior representations or statements, verbal or written, have been
made modifying, adding to, or changing the terms of this instrument.
20. No Waiver of Immunity. Nothing herein shall be deemed to limit or waive the sovereign or
governmental immunity of City.
21. Assignment. This Agreement, in whole or in part, is not assignable by either party, without the
express written consent of the other party. Any attempt to assign this Agreement without the
required consent is void and without force and effect.
By executing this Agreement, Company agrees to and accepts the terms, conditions and provision
contained herein.
CITY OF FORT WORTH: ONCOR ELECTRIC DELIVERY
COMPANY LC
By:
B .
Y
Su an Alanis Ji . A varez,P.E.
Assistant City Manager t mey-in-Fact
Date: �� /Z Date:
APPROVED S TO FORM �
AND LEGA TY: X61 S 9 iQ rr r
Jessica Sangs ang
Assistant City Attorney cv gECE, �
Form 1295:
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Temporary Access Permit with Oncor Electric Delivery Company LLC , t 4 of-8
CONTRACT COMPLIANCE MANAGER:
By signing, I acknowledge that I am the person responsible
for the monitoring and administration of this contract, including
ensuring_all ance and reporting requirements.
Name:
Title:
ATTE BY: ® .k
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y f. Kayser tt q
City Secretary ..
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Contract Authorization:
No M&C Required
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Temporary Access Permit with Oncor Electric Delivery Company LLC 5 of$ ��
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Access shall be 40 feet from the
northern edge of the Texas Mid-
Stream Gas valve Driveway
entrance
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Sift fence to be installed
along the southern tiy�
boundary of the 20"
License Area and
i
Easement Area Q
99
• — • Fencing Protection
Rock Check Dam
Exhibit A
Licensed Premises
Exhibit B
Insurance
1.01 Duty to Acquire and Maintain. Company shall ensure that a policy or policies of insurance are
procured and maintained at all times, in full force and effect, to provide coverage of the types and
amounts specified herein, naming the City as an additional insured as set forth herein, and covering all
public risks related to the use, occupancy, condition, maintenance, existence, or location of the Licensed
Premises. Company, an electric utility regulated by the Public Utility Commission of Texas (PUCT),
represents that the PUCT has approved Company's liability insurance limits and overall insurance
program. During the term of this Agreement, Company shall maintain appropriate liability and worker's
compensation coverages at levels consistent with other Texas and national utility providers. The
insurance required hereunder may be met by a combination of self-insurance and primary and excess
policies.
1.02 Types and Amounts of Coverage Required
a. Commercial General Liability:
(1) $1,000,000.00 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
b.
Umbrella Policy
(1) $5,000,000.00
C. Automobile Liability:
(1) $1,000,000.00 Each accident on a combined single-limit basis
d. Worker's Compensation:
(1) As required by law
e. Employer's Liability:
(1) $1,000,000.00 per accident
1.03 Underwriters and Certificates. Except for workers' compensation, all insurers must have a
minimum rating of A: VII in the current A. M. Best Key Rating Guide or have reasonably equivalent
financial strength and solvency to the satisfaction of Risk Management. If the rating is below that
required, prior written approval of the City's Risk Management Division is required. Within ten (10)
business days following execution of this License, Company shall ensure that City is furnished with
certificates of insurance signed by the respective companies as proof that the types and amounts of
Temporary Access Permit with Oncor Electric Delivery Company LLC 18 of V
insurance coverage required herein have been obtained. In addition, Company shall, on demand, provide
the City with certificates of insurance.
1.04 No Limitation of Liabilitv. 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 License shall in no way be
construed or affected to limit or in any way affect Company's liability to the City or other persons as
provided by this Agreement or law.
1.05 Umbrella or Excess Liabilitv. If insurance policies are not written for specified coverage limits,
an Umbrella or Excess Liability insurance for any differences is required. Excess Liability shall follow
form of the primary coverage.
1.06 Additional Insured. The City, its officers, employees and volunteers shall be named as an
Additional Insured on the Automobile and Commercial General Liability policies.
1.07 Waiver of Subrogation. The insurance shall include a waiver of rights of recovery (subrogation)
in favor of the City of Fort Worth.
1.09 Certificate of Insurance. Company shall submit to the City a certificate of insurance evidencing
all required insurance coverage and any applicable endorsements.
Exhibit C
Foreign Materials
a. NOTICE: There is information that the Licensed Premises are the location of a material dump
site that pre-dates modern landfill regulations. The City has very little information regarding the exact
location of materials in the dump site or its contents. Company is on notice that any excavation, boring,
or subsurface disturbance may expose this material and is therefore strictly prohibited from taking any
actions that would expose these materials.
b. For purposes of this section, the term "Foreign Material" shall mean 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.
C. Except as otherwise provided in this Section, Company shall 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 shall 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
Temporary Access Permit with Oncor Electric Delivery Company LLC p'%of,81
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 shall 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.
d. Company shall 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.
C. As part of the consideration for the license under this Agreement, Company shall 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.
f. Any environmental assessment, cleanup, removal or disposal action will have to meet the
standards set forth by the City's Environmental Management Division. City will provide necessary
personnel to work with Company regarding suspected Foreign Material or Foreign Material encountered
during the work.
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