HomeMy WebLinkAboutContract 37507C1 F ` SECRETARY
®NTRACT NO . 315C7
STATE OF TEXAS §
COUNTY OF TARRANT §
MEMORANDUM OF UNDERSTANDING
THIS MEMORANDUM OF UNDERSTANDING ("MOU") is entered into by and between
the City of Fort Worth, Texas, a home -rule municipal corporation situated in Tarrant, Denton and
Wise Counties, Texas, hereinafter called "Fort Worth," acting herein by and through Fernando
Costa, its duly authorized Assistant City Manager, and Texas Excavation Safety System, Inc., a
Texas nonprofit corporation, hereinafter called "TESS", acting herein by and through Lee Marrs, its
duly authorized President. Fort Worth and TESS are collectively referred to herein as the "Parties".
WITNESSETH:
WHEREAS, the purpose of TESS is to institute and provide a communication network for
excavating contractors and the general public;
WHEREAS, TESS has been formed in an effort to reduce injuries to persons and damage to
underground facilities through the establishment of a statewide notification system, to notify its
members before excavation occurs and to furnish information regarding the location of underground
facilities to requesting parties;
WHEREAS, Fort Worth owns and operates facilities for the provision of water and
wastewater to its customers;
WHEREAS, TESS has offered Fort Worth a free trial membership in its organization; and
WHEREAS, Fort Worth deems it valuable to participate in the organization on a free
trial membership basis to determine if such membership would help to protect its water and
wastewater pipelines.
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:
1. Purpose
The purpose of this MOU is to set out the terms and conditions to be undertaken by Fort
Worth and TESS for the provision of a free trial membership in the TESS organization to
Fort Worth. This MOU shall be a binding agreement, establishing certain rights and duties
for both Parties, and all covenants herein shall be enforceable as allowable by law.
OFFICIAL RECORD
CITY SECRETARY
FI WCRTii, TX
2. Free Trial Membership
a. TESS hereby agrees to confer onto Fort Worth, a trial membership from the time this
agreement is fully executed until December 31, 2008 at no cost.
b. Upon execution of this agreement, Fort Worth shall provide to TESS a GIS map of its
water and wastewater pipelines used to serve its customers and which Fort Worth owns
and operates. Both Parties agree that Fort Worth shall not nor shall Fort Worth be
obligated to provide any other information besides the location of the water and
wastewater pipelines.
c. Both Parties agrees that as consideration for providing the GIS map to TESS Fort Worth
shall be entitled to all the benefits of membership in TESS without any obligation or
burden on Fort Worth. TESS expressly understands that Fort Worth is not bound by the
terms of its By -Laws, to include Article VII-Indemnification nor Article X-Fees,
Assessments and Conditions of Membership. Fort Worth shall not pay any dues or fees to
TESS during its free trial.
d. Both Parties understand that the information obtained by TESS and passed on to other
parties is not verified by TESS.
e. Upon expiration of the free trial membership, Fort Worth shall in its sole discretion
determine whether it shall apply for membership in TESS.
3. ®bli�ations of TESS
a. TESS agrees that it shall notify Fort Worth of any excavation activity to occur in
proximity of Fort Worth's water and wastewater pipelines pursuant to its standard
practices as detailed in Section 5, 6 and 7 of TESS' By -Laws.
b. TESS agrees that it shall not provide to any third party except for its authorized agent and
subcontractors any information regarding Fort Worth's water and/or wastewater pipelines
nor shall it publicize in any manner, to include posting on the Internet, any information
regarding Fort Worth's water and wastewater pipelines.
c. TESS shall not sell, transfer, or give any original prints or reproductions for circulation
and/or publication of any designated marks, logo or copyrights of the City for use by a
third party. Nor shall it use the GIS maps in any manner that reflects unfavorably upon
the good name, goodwill, reputation, or image of the City.
4. Immuni
It is expressly understood and agreed that, in the execution of this MOU, Fort Worth neither
waives, nor shall be deemed hereby to waive, any immunity or defense that would otherwise
be available to it against claims arising in the exercise of governmental powers and functions.
By entering into this MOU Fort Worth does not intend to create any QhLQat;onc; �gss��r
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
implied, other than those set forth herein and this MOU shall not create any rights in parties
not signatories hereto.
5. No Third -Party Beneficiaries
This MOU shall inure only to the benefit of the Parties hereto and third persons not privy
hereto shall not, in any form or manner, be considered a third party beneficiary of this MOU.
Each Party hereto shall be solely responsible for the fulfillment of its own contracts or
commitments.
6. Non -assignability
Except as otherwise expressly provided herein, this MOU is non -assignable, and any
unauthorized purported assignment or delegation of any duties hereunder, without the prior
written consent of the other Party, shall be void and shall constitute a material breach of this
MOU.
7. Entire
This MOU and all attachments incorporated herein by reference constitute the entire MOU
by the Parties hereunder, and any prior or contemporaneous oral or written agreements shall
be replaced or superseded by this MOU.
8. Severability
In case any one or more of the provisions contained in the MOU shall for any reason be held
to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or
menforceability shall not affect any other provision of this MOU, and this MOU shall be
construed as if such invalid, illegal, or unenforceable provisions had never been contained
herein.
9. Venue
This MOU shall be construed under and in accordance with the laws of the State of Texas,
and the venue for any litigation arising from this MOU shall be in Tarrant County, Texas.
10. Authorization
The undersigned officers and/or agents of the Parties hereto are properly authorized officials
and have the necessary authority to execute this MOU on behalf of the Parties hereto, and
each party hereby certifies to the other that any necessary actions extending such authority
have been duly passed and are now in full force and effect.
OFFICI,�L RECORD
CITY SECRETARY
FT. WORTH, TX
11. Notices
Any notices (unless otherwise specified herein), bills, invoices or reports required by this
MOU shall be sufficient if sent by the Parties in the United States mail, postage paid, to the
address noted below:
If to Fort Worth: Fort Worth Water Department
Frank Crumb, Director
City of Fort Worth
1000 Throckmorton
Fort Worth, Texas 76102
Copy to: City Attorneys Office
City of Fort Worth
1000 Throckmorton
Fort Worth, Texas 76102
If to TESS: TESS
Lee Marrs
11880 Greenville Avenue # 120
Dallas, Texas 75243
EXECUTED in triplicate in Fort Worth, Tarrant County, Texas.
CITY OF FORT WORTH
TEXAS EX AVATION S ETY SYSTEM, INC.
r� r
Fernando Costa Lee P. M'arrs
ASSISTANT CITY MANAGER PRESIDENT
DATE: 8Lso LS DATE:
APPRD AS TDEAItAND LEGALITY
ASSIST.
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ATTEST WITNESS
MARTY HENI00X By:
CITY SECRETARY
CF��CiA� RECORD
CITY SECRETARY
FT. WORTH, TX