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HomeMy WebLinkAboutContract 37024RIGHT OF ENTRY PERMIT STATE OF TEXAS �,1ZCRFTARYNo Proj ect: Trinity Uptown Parcels: 79,83,85 KNOW ALL MEN BY THESE PRESENTS: COUNTY OF TARRANT That Texas Refinery Corp. ("Owner") does hereby grant to the Tarrant Regional Water District ("TRWD") and the City of Fort Worth ("City"), and their respective officers, agents, contractors, subcontractors, and employees (collectively, the "Permittee"), a nonexclusive Right of Entry Permit ("Permit") on, over, under, across, upon and through those certain tracts or parcels of land conumonly blown as 841 North Main Street, Fort Worth, Texas and depicted as Parcels 79, 83 and 85 on Exhibit "A" attached hereto (hereinafter referred to as the "Property"), which is owned by Owner, for the. following purposes only and subject to the limitations herein contained. 1. Purpose: The propose of this Pernnit shall be for TRWD and the City, by and through each party's respective contractor as identified inn Section 2 below, to enter upon the Property to conduct Phase 1 and Phase 2 environmental inspections, assessments and testing , at their sole cost and expense, but without obligation to the Owner to perform such inspections, assessments and tests. This Permit includes the following rights: (i) the right to move equipment onto the Property which is necessary for the purposes set forth herein; (ii) the right to perfon7m a physical inspection of the Property to identify environmental conditions; (iii) the right to take building material samples to test for lead and asbestos; (iv) the right to drill and bore for the purpose of securing subsurface soil, rock and water samples; (v) the right to drill and bore for the purpose of installing groundwater monitoring wells and thereafter maintaining and using the wells to monitor the groundwater in and under the Property; and (vi) the right of reasonable ingress and egress across the Property in order to exercise the rights granted herein. hi addition, TRWD shall be allowed to enter upon the Property to inspect the groundwater monitoring wells and take groundwater samples from them. 2. Conditions: This Permit is conditioned upon compliance by Pernnittee with the following limitations and conditions: a. TRWD has contracted with Camp Dresser &McKee Inc. ("CDM"), and the City leas contracted with hidustrial Hygiene and Safety Technology, Inc. to perform the Phase I and Phase II environmental inspections, assessments and testing contemplated by this Permit. hidustrial Hygiene and Safety Teclulology, Inc. will conduct an assessment of the Property for lead and asbestos on behalf of the City. Sunbelt hldustrial Services will conduct all drilling and boring activities on behalf of CDM. Gorrondona & Associates, hic. will conduct on -site surface utility clearances on behalf of CDM. CDM, Sunbelt and/or TRWD will inspect completed groundwater monitoring wells and obtain groundwater samples from them. b. Each of the contractors and subcontractors identified in Section 2.a engaged by TRY D, the City or CDM (hereinafter collectively referred to as the "Contractors", and individually referred to as a "Contractor") to perform the work contemplated by this Permit must, not less than two (2) business days prior to first accessing the Property, execute and deliver to Owner an Insurance and llldenuiity Agreement in the form attached hereto as Exhibit `B", together with Certificate(s) of Insurance evidencing all required insurance coverages. No contractor or subcontractor other than those identified in Section 2.a shall have any authority or be allowed by Permittee to access the Property for any purpose without the prior consent of Owner. c. Owner understands and agrees that neither the City nor TRWD shall be deemed hereby to waive any innmunity or defense that would otherwise be available to it against claims arising in the exercise of governmental powers and functions. By entering into this agreement, the City and TRVWD do not intend to create any obligations, expressed or implied, other than those set forth herein and shall not create any rights in parties not signatories hereto. d. Each Contractor will notify Owner not less than two (2) business days in advance of first accessing the Property. Each time a Contractor accesses the Property thereafter, if that Contractor has not actively worked on the Property during the preceding three (3) days, the Contractor will notify Owner not less than two (2) business days in advance of accessing the Property. Notwithstanding the foregoing, such advance notice shall not be required when accessing the Property solely for groundwater monitoring purposes at the designated drill sites during normal business hours. In all cases, each Contractor shall register at the office of Owner when arriving and leaving the Property. Permittee and each Contractor will reasonably cooperate with Owner to Minimize any interference or disruption to Owner's business in the conduct of the activities described in this Permit. e. TRWD and the City will inform their respective Contractor identified in Section 2a of the location of any containment field identified by Owner. Permittee acknowledges receipt of "Project Manual and Specifications for Stormwater/Spillage Collection System Texas Refinery Corp." as well as on site identification of the containment field by Owner during Permittee's tours of the Property. All drill and bore holes and monitoring wells will only be at the locations depicted on Figure 2 attached hereto. f. Prior to drilling any well on the Property, the Contractor conducting the drilling operation will provide notice to Owner describing the well location identified on Figure 2 to be accessed, the portions of any driveway or passageways that will be blocked in whole or in part, and an estimate of the beginning time and length of time necessary to complete drilling operations at the welllocation specified concurrently with the delivery of notices provided in paragraph d. above. g. Owner has provided Permittee with "Project Manual and Specifications for: Stormwater/Spillage Collection System Texas Refinery Corp.", and Permittee agrees to provide a copy to their respective Contractors as identified in Section 2a, who work on the Property. h. All monitoring wells will be flush with the surface and not impede access to any portion of the Property. i Permittee has been advised by Owner of the existence of underground utilities, including natural gas pipelines, on the Property at unknown locations. Permittee agrees to use, and to cause its Contractors to use, due diligence in locating and avoiding underground utilities. j Permittee and Contractors shall not knowingly uiueasonably iliterfere with the operation of the businesses conducted by Owner on the Property and will inunediately move and/or immediately cause their subcontractor to move any equipment no longer necessary for the current work at a well location that is blocking access to the Property or any part thereof. k. After final completion of the work contemplated by this Permit, Permittee or its Contractors will promptly restore the land as nearly as practicable to its original condition, including the back filling of bore holes. Any bore hole not used as a groundwater monitoring well will be back filled within one week of completion, and any bore hole used as a groundwater monitoring well will be back filled within one week of completion of groundwater monitoring activities with respect to that bore hole. 1. All tools, equipment, and other property taken upon or placed upon the land by a Contractor shall remain the property of that Contractor. m. Within two (2) business days after request by Owner, Pernittee will remove, or cause its Contractor to remove, any equipment not actively involved in operations at a specified well location. n. No equipment will be operated on the Property other than hand held electronic devices by anyone who has not executed an Insurance ,and >iidemnity Agreement. o. Permittee agrees to keep the results of all tests and inspections provided for herein confidential and to not use the information or disclose it to any third party, except (i) as may be required under the Open Records Act or other applicable law and as necessary in connection with the acquisition of Owner's Property, and not to disseminate it except (i) to Permittee's officers, directors, agents and employees who need to know the information for the sole purpose of evaluating the acquisition of the Property and the project of which the acquisition is a part, or (ii) as may be required under the Open Records Act or other applicable law. 11 y,�i.0 ,..; 1. Permitee agrees to advise its Contractors to hold in confidence the results of all tests and inspections. 3. Miscellaneous: a. Each person signing this Pernnit certifies that he or she has the requisite capacity and authority to execute this document either (i) individually, (ii) in his or her official capacity on behalf of Owner, or (iii) in his or her official capacity on behalf of Penmittee. b. This Permit contains each and all of the rights granted to Permittee with respect to the subject matter hereof and supersedes all prior understandings, if any, with respect thereto. c. To the extent authorized by law, within sixty (60) days after completion of the activities set forth in Paragraph 1 above, Permittee will upon the request of Owner deliver to Owner copies of the Phase 1 and Phase 2 assessments. d. TRWD will have access to the Property (i) to monitor the activities of its Contractors while its Contractors are on the Property pursuant to this Permit and (ii) to inspect and obtain groundwater samples from groundwater monitoring wells. While on the Property, TRWD's activities will be limited in the same manner as Contractor's activities are limited herein. e. This Permit will expire as to Industrial Hygiene and Safety Technology, Inc. upon the earlier to occur of (a) its permanent departure from the Property, (b) 60 days following the date of first entry onto the Property by Industrial Hygiene and Safety Technology, Inc., or (c) its termination as an authorized contractor of the City. f. Thus Permit will expire as to Gorrondona &Associates, Inc. upon the earlier to occur of (a) its permanent departure from the Property, (b) 90 days following the date of the first entry onto the Property by Gorrondona & Associates, Inc., or (c) its termination as an authorized subcontractor of CDM. g. This Pernniit will expire as to boring and drilling activities upon the earlier to occur of (a) permanent departure from the Property by Pen7nittee and all of Penmittee's Contractors involved in drilling bore holes or monitoring wells or (b) ninety (90) days following the date of first entry onto the Property by a Contractor for the purpose of drilling a bore hole or monitoring well. h. This Pernlit will expire as to groundwater monitoring well activities upon the ' earlier to occur of (a) permanent departure from the Property by Pernlittee and all of Permittee's Contractors involved in groundwater sampling activities or (b) two (2) years following the date of first entry onto the Property by a Contractor for the purpose of drilling a groundwater monitoring well. EXECUTED in triplicate originals on the dates below shown. EXECUTED BY OWNER this Z 3 day ofi/L- , 2008. Telephone 33A �i/r/ Texas Refinery Corp., a Texas corporation By: (daytime) 7 ' % Z ` Sine (after hours) CERTIFICATE FOR CORPORATION I, � • L . �l.�Q�'t � � ,certify that I am SEc����P� of Texas Refinery Corp., a Texas corporation; that Jerry W. Hopkins who signed this Right -of - Entry Permit on behalf of Texas Refinery Corp. was the President of Texas Refinery Corp.; that said Right -of --Entry Permit was duly signed for and on behalf of Texas Refinery Corp. by authority of its governing body and is within the scope of Signer's corporate powers. Signature of Official Printed Name: Additional signature page follows] f � 1T Y: m �' ° "f1i jr Ci NEY ASSiS i Attested By: 14�a.�ry Ctty 5cc 1'(74 ry i TARRANT REGIONAL WATER DISTRICT, a Water Control and h-riprovement District By: R. Steve Cluaistian, Real Property_ Director Tarrant Regional Water District P. O. Box 4508 Fort Worth, Texas 76164 817-335-2491 CITY OF FORT WORTH By: Prir Titl INDUSTRICAL HYGIENE AND SAFETY TECHNOLOGY, INC. Printed Name: /f Title: V re 5 rdeWr Y:\TRWD\Trinity River Vision\TX Refinery\Tx Refinery Riaht-of-Entry 1;xecution.doc Mil/I 1 �i Overview M.• '111111�1i`v � 1♦\ �1111111��1♦♦. ��11111 ►♦11♦ i�♦11♦ ♦111♦ • �11♦11♦ ♦11111/1 • ♦ ��1♦11♦♦♦1♦111♦1� �1♦1111111 �11� i �111111♦11♦♦111♦♦11♦� ',► ►1♦11111♦11/1♦v ♦�1♦11♦♦11♦11♦1111/111/11♦. ♦11/111♦11♦♦1111111♦♦ ►11♦111♦1♦111111111♦♦♦ 11111/11♦1111/1/11111♦ ♦♦♦♦1111111♦♦11♦11111♦ ♦♦ ♦'� ►1♦♦♦111111/1111♦11111♦ ��1• "'� ♦1/1/1/11♦ ♦11/111111♦ ♦11♦ ►1111♦1111 ♦1111♦♦♦♦1♦ 11wj ♦111♦♦1111• ♦11♦1♦♦111. 1111A �111♦♦1♦♦♦ • 11/1♦♦♦♦11♦ ♦ 111♦♦\ �11111111♦11♦1♦111111 ♦ 1111111111111♦11111111♦♦� ♦�1�♦ ��1♦11111111 �1/1/1111111111111111111♦♦ ♦111 ♦1111♦ ♦1♦1♦11111♦1/11111111111♦♦1111111♦♦11111111♦♦111� \�11111111� ♦♦11111111♦\ ♦11/1/1/1/11111A�-��111111♦ �11♦♦♦\11111 ►1♦♦111111♦1111�-��1111♦ ♦1111\♦♦ ♦111111♦11111♦1111111♦1/111� �.1�1♦11\ �1♦1111111 �11 • 1�� ►1♦1♦111111111111111111♦♦11 ��1111♦♦11�� \1 11� 11111111111.�• ♦11/1� ♦ 11♦ ►11111♦♦11�.., ♦� ♦111♦♦ 11111111�:�1♦ ♦ ♦ �., ►1♦111♦♦111�1.��.1�111♦111� �1 • 1�♦ �111111111� �1♦111♦��� � ��1♦♦11111♦� �111♦11� ��1♦111♦11♦� ♦ ♦ � � ♦ 111 ♦ �111/111♦♦� �1♦♦11♦♦1j� i�1��� �11♦111111� � 111 ♦ ♦ � 111 � ♦ ♦1♦1♦♦ �♦111•♦11' 1 �1♦♦1 �1 11�♦ \1♦1111111�, ♦�� '11�♦�1♦111�\ �1�1♦- .,11♦1111♦11 ♦1/11� �1111111/1i 1 •1 :1 1 •1 -- kkk •IM,Loll flohrof I Uoll EXHIBIT "B" INSURANCE AND INDEMNITY AGREEMENT hl consideration of being granted access to the premises of Texas Refinery Corp. pursuant to that certain Right -of -Entry Permit dated April , 2008 (the "Permit"), executed by and among Texas Refinery Corp., as Owner, and Tarrant Regional Water District, the City of Fort Worth, acid their respective Contractors (collectively "Permittee"), ("Contractor") agrees as follows: Operations Contractor agrees that it is subject to the following limitations and duties during the terra of its access to the premises of Texas Refinery Corp.: a. Contractor has received a copy of, and has reviewed, the Permit. Contractor must, not less than two (2) business days prior to first accessing the Property, execute and deliver to Owner this hnsurance and Indemnity Agreement, together with Certificate(s) of Insurance evidencing all required insurance coverages. b. Contractor will notify Owner not less than two (2) business days in advance of first accessing the Property. Each time Contractor accesses the Property thereafter, if Contractor has not actively worked on the Property during the preceding three (3) days, Contractor will notify Owner not less than two (2) business days in advance of accessing the Property. Notwithstanding the foregoing, such advance notice shall not be required when accessing the Property solely for groundwater monitoring purposes at the designated drill sites during normal business hours. hi each case, Contractor shall register at the office of Owner when arriving and leaving the Property. Contractor will reasonably cooperate with Permittee and Owner to minimize any interference or disruption to Owner's business in the conduct of the activities described in the Permit. c. Contractor has been informed by Permittee of the location of the contaimrnent field identified by Owner. Contractor will not drill or bore within any containment field identified by Permittee or Owner. All drill and bore holes and monitoring wells will only be at the locations depicted on Figure 2 attached to the Permit. d. Prior to drilling any well on the Property, Contractor will provide notice to Owner describing the well location identified on Figlue 2 to be accessed, the portions of any driveway or passageways that will be blocked in whole or in part, and an estimate of the beginning time and length of time necessary to complete drilling operations at the well location specified concurrently with the delivery of notices provided in paragraph b. above. .r Jf.J e. Owner has provided Permittee with "Project Manual and Specifications for: Storrnwater/Spillage Collection System Texas Refinery Corp.", and Contractor acknowledges receipt from Pernittee of a copy thereof. £ All monitoring wells will be flush with the surface and not impede access to any portion of the Property. g. Contractor has been advised by Owner and Perrnittee of the existence of underground utilities, including natural gas pipelines, on the Property at unknown locations. Contractor agrees to use due diligence in locating and avoiding underground utilities. h. Contractor shall not knowingly urueasonably interfere with the operation of the businesses conducted by Owner on the Property and will innnediately move any equipment no longer necessary for the current work at a well location that is blocking access to the Property or any part thereof. i. After final completion of its work contemplated by the Permit, Contractor will promptly restore any part of the land disturbed as a result of its activities as nearly as practicable to its original condition, including the back filling of bore holes. Any bore hole not used as a groundwater monitoring well will be back filled within one week of completion, and any bore hole used as a groundwater monitoring well will be back filled within one week of completion of groundwater monitoring activities with respect to that bore hole. j. All tools, equipment, and other property taken upon or placed upon the land by Contractor shall remain the property of Contractor. lc. Within two (2) business days after request by Owner, Contractor will remove any equipment not actively involved in operations at a specified well location. 1. No equipment will be operated on the Property other than hand held electronic devices by anyone who has not executed or who's employer has not executed an hnsurance and Indemnity Agreement. Insurance Contractor will, at its sole cost and expense, maintain in effect during the term of its access to the premises of Texas Refinery Corp. and thereafter as indicated below, the following insurance policies with acceptable carriers rated A VIII or better by AM Best Co. and on forms generally accepted in the industry.: (a) General Liability insurance on an Occurrence Form to include: Bodily Injury and Property Damage with Combined Single Limit 3 $1,000,000 Each Occurrence $2,000,000 General aggregate $2,000,000 product/completed operations aggregate $1,000,000 Personal and Advertising Injury $ 100,000 Damage to Rented Premises $ 5,000 Medical payments Coverage is to include: Commercial General Liability; Premises and Operations to include coverage for loss resulting from damage to underground facilities; Products and Completed Operations; and Contractual liability to insure the provisions of the Indemnity Agreement contained herein General Aggregate per Project endorsement (b) AutomoUile Liability insurance to include coverage for Bodily Injury and Property Damage with a Combined Single Limit of $1,000,000 each occurrence or equivalent. Coverage is to be included for Owned, Hired and Non -Owned Vehicles. (c) Worker's Compensation insurance to include Statutory Coverage as required for Texas and Employer's Liability Limits of $1,000,000 each accident and $1,000,000 disease — each employee and $1,000,000 policy limit disease. (d) Excess Liability insurance in a minimum amount of $5,000,000 per occurrence and $5,000,000 aggregate on a follow form (or better) basis to the underlying auto liability, employer's liability and general liability policies, and for any Contractor performing subsurface operations, to the underlying pollution liability policy. (e) Pollution Liability insurance with $5,000,000 in limits to provide coverage for both on - site and off -site pollution damage and cleanup expenses resulting from activities of any Contractor, its employees, contractors, agents or representatives, which performs subsurface operations on the premises of Texas Refinery Corp. Coverage will be maintained as required for a period of 1 year following Contractor's initial access to the premises of Texas Refinery Corp. All required policies shall be endorsed to provide a waiver of subrogation in favor of Texas Refinery Corp., its subsidiaries, officers, directors and employees. All required policies, except Worker's Compensation, shall be endorsed to include Texas Refinery Corp as additional insured and that coverage so provided to Texas Refinery Corp. shall be on a primary, non-contributory basis to any similar coverage of Texas Refinery Corp. 'W i s`:Ur1 UL�Se i All required policies, except Worker's Compensation, shall be endorsed to be primary to any policies of Texas Refinery Corp. with any such policies being excess, secondary and non-contributory. All policies are to be endorsed to provide that Texas Refinery Corp. will be provided 30 days written notice prior to any material change in the policy or cancellation / non - renewal of the policy. Prior to its access to the premises, Contractor agrees to provide Texas Refinery Corp. with an acceptable Certificate of Insurance which shall include the required policies with limits described above as well as the requirements for waiver of subrogation, additional insured status on a primary, non-contributory basis and the 30 day notice of cancellation, non -renewal or material change. Contractor agrees to provide Texas Refinery Corp. with a replacement Certificate of Insurance for any policy expiring during the period in which Contractor or its representatives seek access to the premises of Texas Refinery Corp. Contractor acknowledges that its failure to provide such replacement Certificate of Insurance will result in denial of access to the premises until it is received. Contractor agrees that these insurance requirements shall be construed as the minimum requirements for accessing the premises of Texas Refinery Corp. and in no way constitute advice regarding the suitability of any insurance coverage or limits of liability for any firm. Indemnity Agreement Texas Refinery Corp., its subsidiaries, employees, officers, directors, (hereinafter referred to as Texas Refinery Corp.) shall not be responsible for, and shall be saved and held harmless by Contractor from and against any and all suits, actions, losses, damages, claims, or liability of any character, type or description, including all expenses of litigation, court costs, and attorney's fees, for injury or death to any person, or injury to any property, received or sustained by any person or persons or property, arising out of negligent acts, errors or omissions of Contractor, its employees, officers, directors, or invitees on the premises of Texas Refinery Corp. or its subsidiaries or for injury or death of any employee, officer, or director of Contractor named herein or injury to their property regardless of the cause. Contractor further agrees to defend, at its own expense, and on behalf of Texas Refinery Corp. and in the name of Texas Refinery Corp., any claim or litigation brought in connection with any such injury, death, or damage arising out of Contractor's negligent acts, errors or omissions on the premises of Texas Refinery Corp. or its subsidiaries or for injury or death of any employee, officer, or director of Contractor named herein or injury to their property regardless of the cause. It is expressly agreed that the indemnity provided for herein is to indemnify and protect Texas Refinery Corp., its subsidiaries and either of their officers, directors, agents or employees from the consequences of Texas Refinery Corp.'s, its subsidiaries' and either of their officers', directors, agents' or employees' own negligence, when and only in the event the suits, actions, losses, damages, claims, or liability are for injury or death of any employee, officer, or director of Contractor named herein or injury to their property. Notwithstanding any other provision contained herein, Industrial Hygiene and Safety Technology, Inc. shall only indemnify Texas Refinery Corp. and its subsidiaries with respect to claims arising out of the negligent acts, errors or omissions of Industrial Hygiene and Safety Teclulology, Inc., its employees, officers or directors. Contractor will secure and maintain Contractual Liability insurance as provided herein to insure this indemnification agreement. Contractor acl�lowledges that thus indemnity is not contingent upon insurance and its provisions are enforceable irrespective of the availability or lack thereof of any insurance. This Indenuuty Agreement is executed on behalf of Contractor in its capacity as such and not on behalf of the City or TRVWD and shall survive the termination of Contractor's access to the premises of Texas Refinery Corp. for a period of two years from the date of Contractor's last presence on the Property. Agreed to this day of , 2008. CONTRACTOR: By: Printed Name: Title: 1 z: 4000 MW-2 MW-5 r 041 p•t # t T yyam�__•_ L / MW-6 �k ` `.f . •.. M W-3 -� a t ram_ ._ MW-4 MW-1 4r_ ?r, i Legend - Phase-1 and II ESA Location ' o - Proposed Monitor Well Location g - Approximate Area of Secondary QDL"'s i Containment Field Figure 2 Texas Refinery 841 N. Houston Street Nf9R7�H Proposed Monitor Well Locations t:. f Source: dfiv.ma s.com, 2005 Aerial Photograph) 21VI °