HomeMy WebLinkAboutContract 53864 A
to
CSC No. 53864
REUENED
MAY -4` 2020
CITyOF FORT VyIORTH TEMPORARY LICENSE AGREEMENT
CITY SECRETARY
This Temporary License Agreement("Agreement") is entered into by and between the City of
Fort Worth, Texas, a home-rule municipal corporation of the State of Texas ("City"), and BrightView
Landscapes Services,LLC("Company").
WHEREAS, the City owns a certain piece of property known as Arcadia Park, located at 7613
Arcadia Trail,Fort Worth,TX 76137(the"Park"); and
WHEREAS,the Company desires to gain access over and through the Park to construct and install
a butterfly garden and necessary irrigation lines; and
WHEREAS, City and Company acknowledge that the improvements to be installed in Arcadia
Park are in accordance with that Management and Improvement Services Agreement between the City and
FirstService Residential Texas PID,LLC(City Secretary Contract No. 52906).
WHEREAS,the City has reviewed the Company's request and agrees to grant the Company access
over and through the Park in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the covenants and agreement contained herein, City
and Company agree as follows:
1. License Granted. City hereby grants to the Company a non-exclusive license to use a portion of
the Park as set forth in more detail in Exhibit A, which is attached hereto and incorporated herein
for reference, and as agreed to by the parties in Section 4 ("Licensed Premises").
2. License Fee. City and Company expressly agree and stipulate that this Agreement is based on
valuable consideration and an exchange of promises that will be independently beneficial to both
parties. Specifically,Company agrees that the City will provide a benefit to Company by providing
the use of special assessments to pay for the costs of the improvements. Company has accepted this
as valuable consideration for its performance of the obligations of this Agreement. Additionally,
City agrees that the Company's services will provide a benefit to City by providing its citizens
additional improvements in Arcadia Park. The City has accepted the many positive impacts of the
butterfly garden as valuable consideration. Both parties agree as a condition precedent to executing
this Agreement that the consideration is valuable and sufficient and that neither party shall be able
to assert otherwise in the event of litigation. Nothing herein shall constitute an obligation of City
funds. City shall not owe any amount of money for any reason whatsoever to the Company for
services rendered in connection with this Agreement. City shall not be liable nor owe any payment,
fee,cost,penalty,or money for any other reason whatsoever to Company.
3. Term. The term of this Agreement shall be thirty (30) days, commencing upon execution of this
Agreement.
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Temporary License Agreement—Arcadia Park �;'TY�E� k y 19.
April 2020 FT ®� flr .
4. Use of the Licensed Premises.
a. Company may use the Licensed Premises for access and for the construction and
installation of a butterfly garden and associated irrigation lines, as shown on the attached
Exhibit B. The Licensed Premises shall be used for no other purposes.
b. At the request of City,Company shall outline the boundaries of the Licensed Premises with
flagging and orange mesh fencing to the satisfaction of the Director,or his designee.
c. Company shall use its best efforts to locate and physically mark all utilities(including,but
not limited to,electric lines,waterlines, sewer lines, storm drains and lines,and gas lines)
within the Licensed Premises,which shall include,but not be limited to, conducting a dig
test. If Company encounters any utility infrastructure(including,but not limited to,electric
lines, waterlines, sewer lines, storm drains and lines, or gas lines) in the course of or in
connection with Company's use of the Licensed Premises, the Company shall provide
protection of the utilities to the satisfaction of the Director,with such protective measures
to be approved by the Director prior the application thereof.
d. The Company shall not washout equipment and or concrete, fill up equipment with gas or
other oils and hydraulics as to create potential spill hazards within the Park. If this is not
adhered to,the agreement can be immediately terminated and additional fines penalties or
fines may occur.
5. Termination. The City may terminate this Agreement, without cause, upon five (5) days written
notice to the Company or immediately upon a breach of this Agreement by the Company.
6. 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
for use, the City will not allow a use that will unreasonably interfere with the Company's use of
the Park as provided herein. This Agreement does not establish any priority for the use of the Park
by Company or by any present or future licensees or other permit holders. 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 its various functions, and thereafter, as between
licensees and other permit 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.
7. Liability. Company covenants and agrees to release City, its officers, agents, representatives,
servants,and employees,from and against 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
Temporary License Agreement—Arcadia Park 2 of 19
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Agreement or the use and occupancy of the Licensed Premises and the Park. Furthermore, City
shall not be liable to Company for any damage or theft of Company's equipment,facilities,or other
contents.
8. Restoration of the Park. Company agrees that Company will shall repair and restore: (1) the
Licensed Premises; and (2) any City property Company damages, to the same condition or better
condition than the Licensed Premises or City property was in immediately prior to the execution of
this Agreement as determined by the Director. All such restoration must be conducted in
accordance with the standards in Exhibit D,which is incorporated herein by reference. If Company
fails to complete all repairs and restoration to the Licensed Premises and any other City property
prior to the expiration of the Term, City may, in its discretion, perform all such repairs and
restoration on behalf of the Company. In this event,Company will reimburse the City for the costs
of such repairs and restoration, and such reimbursement will be due immediately upon written
request of the City.
9. 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 KIND,
INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS,
AND PERSONAL INJURY,INCLUDING,BUT NOT LIMITED TO,DEATH,THAT MAY
RELATE TO,ARISE OUT OF OR BE OCCASIONED BY(i)COMPANY'S USE OF THE
LICENSED PREMISES AND THE PARK, (ii) COMPANY'S BREACH OF ANY OF THE
TERMS OR PROVISIONS OF THIS AGREEMENT, OR (iii) ANY ACT OR OMISSION
OF COMPANY OR ITS OFFICERS, AGENTS, REPRESENTATIVES, EMPLOYEES,
CONTRACTORS, AND SUBCONTRACTORS, RELATED TO THIS AGREEMENT OR
THE PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT, WHETHER
OR NOT CAUSED, IN PART, BY THE NEGLIGENCE OF THE OFFICERS, AGENTS,
REPRESENTATIVES, OR EMPLOYEES OF THE CITY.
10. Limitation on Use. There shall be no equipment on the Park within 72 hours of a rain event. The
Company shall obtain the written approval of the Director,or his designee,of all heavy equipment
that will be used in the Licensed Premises and Company shall not use any heavy equipment in the
Licensed Premises that has not been approved by the Director or his designee.The Company agrees
that it shall not cut, clear or remove any vegetation as a part of it efforts to conduct work (See
Exhibit E&F on tree protection and damages).
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April 2020
11. Compliance with Laws. Company shall, at its own cost and expense, comply with all applicable
laws,including,but not limited to,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. Insurance. Company shall carry insurance as set out in Exhibit C, which is attached hereto and
incorporated herein for all purpose.
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:
Richard Zavala
Director Mike Murphy
Park and Recreation Department BrightView Landscapes Services,LLC
City of Fort Worth 1252 Dove Rd
4200 South Freeway, Suite 2200 Southlake, TX 76092
Fort Worth,Texas 76115
With a copy to:
Department of Law
City of Fort Worth
Attn: City Attorney
1000 Throckmorton
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. Hazardous Materials. Under no circumstances will the Company use or cause to be used on the
Park any hazardous or toxic substances or materials,or intentionally or knowingly store or dispose
of any such substances or materials on the Park.
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
Temporary License Agreement—Arcadia Park 4 of 19
April 2020
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 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. BindingEffect.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 or Company.
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.
[SIGNATURE ON FOLLOWING PAGE]
Temporary License Agreement—Arcadia Park 5 of 19
April 2020
By executing this Agreement, Company agrees to and accepts the terms, conditions and provision
contained herein.
CITY OF FORT WORTH: BRIGHTVIEW LANDSCAPES SERVICES,
LLC
Gyvid cronk � 2 A' ' 6
By: David Creek(Apr 29,2020) By. Mike Murphy(Apr 2 ,2o2bf
David Creek* Name:Mike Murphy
Assistant Director Title: Owner
Park and Recreation Department
Date: Apt" 29, 2020 Date: Apr 27, 2020
*David Creek has been delegated the proper authority to execute this document on behalf of the City
pursuant to an Interoffice Memorandum from the City Manager dated May 6,2019.
APPROVED AS TO FORM
AND LEGALITY:
Matt Murray(Apr 30,2020)
Matt Murray O
Assistant City Attorney
ATTESTED BY:
MAC" - ;
City Secretary
Contract Authorization:
No M&C required.Ordinance No. 24161-04-2020
OFFICIAL.RECORD
CITY SECRETARY
FT WORTH,TX
Temporary License Agreement—Arcadia Park 6 of 19
April 2020
Contract Compliance Manager:
By signing I acknowledge that I am the person responsible
for the monitoring and administration of this contract,including
ensuring all performance and reporting requirements.
Christina Moon l r/ z� ?xte9g'
Name of Employee/Signature
Park Planner
Title
❑ This form is N/A as No City Funds are associated with this Contract
Christina Moon / (�/l�.Za� NdsL
Printed Name Signature
OFFICIAL RECORD i
CITY SECRETARY
Exhibit A
The Licensed Premises
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Temporary License Agreement—Arcadia Park 7 of 19
April 2020
Exhibit B
Use of Licensed Premises
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Temporary License Agreement—Arcadia Park 8 of 19
April 2020
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Temporary License Agreement—Arcadia Park 9 of 19
April 2020
Exhibit i
Use of Licensed Premises
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Temporary LicenseAgreement .1 of 19
April
Exhibit C
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. 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. Property Damage Liability:
(1) $1,000,000.00 per occurrence
C. Umbrella Policy
(1) $5,000,000.00
d. Environmental Impairment Liability(EIL)and Pollution Liability
(1) $2,000,000 per occurrence
(2) $5,000,000 aggregate
e. Automobile Liability:
(1) $1,000,000.00 Each accident on a combined single-limit basis
f. Worker's Compensation:
(1) As required by law
g. Employer's Liability:
(1) $1,000,000.00 per accident
1.03 Revisions to Required Coverage. 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 License.
Company agrees that within ten (10) days of receipt of written notice from the City, all such revisions
requested by the City will be implemented. The policy or policies of insurance shall be endorsed to provide
that no material changes in coverage,including,but not limited to, cancellation,termination,non-renewal,
or amendment, shall be made without thirty(30)days' prior written notice to the City.
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April 2020
1.04 Underwriters and Certificates. The insurers for all policies must be licensed and approved to do
business in the State of Texas. 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 insurance coverage required herein have been
obtained. In addition, Company shall, on demand, provide the City with evidence that it has maintained
such coverage in full force and effect.
1.05 Deductibles. Deductible or self-insured retention limits on any line of coverage required herein
shall not exceed$25,000.00 in the annual aggregate unless the limit per occurrence or per line of coverage,
or aggregate is otherwise approved by the City.
1.06 No Limitation of Liability. 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.
1.07 Umbrella or Excess Liability. 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.
1.08 Additional Insured. The City, its officers, employees and volunteers shall be named as an
Additional Insured on the Automobile and Commercial General Liability policies.
1.09 Waiver of Subrogation. The insurance shall include a waiver of rights of recovery (subrogation)
in favor of the City of Fort Worth.
1.10 Copies of Policies and Endorsements. City shall be entitled,upon request and without expense,to
receive copies of policies and endorsements thereto and may make any reasonable requests for deletion or
revision or modifications of particular policy terms,conditions,limitations,or exclusions in order to comply
with the requirements of this Agreement except where policy provisions are established by law or
regulations binding upon either of party or the underwriter on any such policies.
1.11 Certificate of Insurance. Company shall submit to the City a certificate of insurance evidencing all
required insurance coverage and any applicable endorsements.
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April 2020