HomeMy WebLinkAboutContract 53932 C�NVD CSC No. 53932
G11Y RF$SCR aRYh TEMPORARY LICENSE AGREEMENT
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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 properly known as Parkwood Hills Park, located at
7800 Parkwood Hill Boulevard,Fort Worth,TX 76137 (the"Park"); and
WHEREAS, the Company desires to gain access over and through the Park in order to clear
vegetation and scrub trees in a drainage area within the Park; and
WHEREAS,the City has reviewed the Company's plans 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. In accordance with the terms and conditions of this Agreement, City hereby
grants to the Company a non-exclusive license to use a portion of the Park as more accurately
depicted in in Exhibit A (the "Licensed Premises"), which is attached hereto and incorporated
herein for all purposes.
2. Term. The term of this Agreement shall be for 30 consecutive days ("License Period"),
commencing upon execution of this Agreement by City("Commencement Date") and expiring at
11:59 P.M. on the 30th day following the Commencement Date
3. 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. 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
OFFICIAL RIECOR,
Temporary License Agreement—Parkwood Hills Park CITY SE NARY
May 13,2020
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.
4. Use of the Licensed Premises.
a. Company may use the Licensed Premises for access from an abutting public street to the
drainage area, as shown on the attached Exhibit B, which is attached hereto and
incorporated herein for all purposes. The Licensed Premises shall be used for no other
purposes.
b. 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. A violation of
this provision will allow the City to immediately terminate the Agreement.
5. Termination. The City may terminate this Agreement, without cause, upon five (5) days written
notice to the Company or immediately upon any breach of this Agreement by the Company.
6. Acceptance of Licensed Premises. 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 Company 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 easements 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,
contractors, or trespassers by reason of the exercise of such rights or privileges granted in said
easements. Company's taking possession of the Licensed Premises shall be conclusive evidence
that: (a)the Licensed Premises are suitable for the purposes and uses for which same are licensed;
and (b) the Company waives any and all defects in and to the Licensed Premises and all the
appurtenances thereto.
7. 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 Licensed Premises to other persons and entities as the City deems
appropriate in accordance with applicable law; provided, however, that in granting subsequent
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authorization for use, the City will not allow a use that will unreasonably interfere with the
Company's use of the Licensed Premises as provided herein. This Agreement does not establish
any priority for the use of the Licensed Premises 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 Licensed
Premises, 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.
8. 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 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.
9. Public Safety.
a. Company shall be solely responsible for initiating,maintaining, and supervising all safety
precautions and programs in connection with Company's use of the Licensed Premises and the Park.
b. At the request of City, Company shall: (i) install and maintain construction orange mesh
fencing around the entire border of the Licensed Premises; and(ii) erect a controlled-access entry
in the perimeter construction fencing in the form of chain link,as approved by the Director to ensure
that unauthorized personnel cannot enter the Licensed Premises. Following installation of the
fencing and controlled-access entrance, Company shall contact the Director to inspect for proper
installation. The controlled-access entry fencing shall be kept secure when not in use. At no time
shall any fenced area be left open unless staffed by security personnel.
C. In addition, Company shall provide construction and maintenance signs and sufficient
barricades at work sites to protect the public. The use of traffic control devices shall be consistent
with the standards and provisions of Part VI of the Texas Manual on Uniform Traffic Control
Devices.Company shall utilize appropriate warning lights at all construction and maintenance sites
where one or more traffic lanes are closed or obstructed during nighttime conditions. Company
shall also take all necessary precautions and shall provide all necessary protection to prevent
damage,injury,or loss to(a)all persons accessing portions of the Licensed Premises on which any
construction is being performed by or on behalf of the Company;(b)all work performed on or from
the Licensed Premises and all materials and equipment to be incorporated therein that are under the
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care, custody, or control of the Company, or the Company's employees, agents, contractors, or
subcontractors,regardless of whether such material and equipment is stored on or off the Licensed
Premises; and(c)other property on or adjacent to the Licensed Premises.
10. 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 set forth in Exhibit C, which is attached hereto and incorporated
herein for all purposes. If Company fails to complete all repairs and restoration to the Licensed
Premises and any other City property prior to the expiration of the Agreement, 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.
11. Minimizing Impact to Ve etg ation
a. Company shall not cut or remove any trees on the Licensed Premises unless otherwise
specifically permitted by the City.To minimize damage during construction,Company shall install
chain link fencing on the outside drip line of trees and other vegetation specifically identified by
the Director at the above-referenced pre-construction meeting and as outlined in accordance with
Exhibit E,which is attached hereto and incorporated herein for all purposes.Company shall notify
the Director once the tree and vegetation protection measures have been installed and allow the
Director an opportunity to inspect the work before construction begins. The City shall have at least
two(2)business days following the date on which notice is received to conduct its inspection. The
Company may begin construction after the second(2nd)business day following the date on which
it provided notice to the City unless the City contacts the Company and identifies specific issues
that render the tree and vegetation protection measures unacceptable.
b. Company shall ensure that tree protection fencing remains in place throughout the License
Period or any extended License Period. If any tree within the Park is damaged in connection with
Company's operations, Company agrees to undertake remediation efforts, including paying of
remediation costs, in accordance with Exhibit F,which is attached hereto and incorporated herein
for all purposes. Any fencing shall remain in place until such time as the Licensed Premises are
restored pursuant to the terms of this Agreement.
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12. Minimizing Impact to Utilities.
a. Prior to conducting any work on the Licensed Premise, 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 best efforts
shall include,but not be limited to, conducting a dig test.
b. 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 covenants and agrees to cease
construction operations and install protective measures over or around such utilities in compliance
with specifications approved by the City's Water Department or by the Director. Following
installation of the protective measures,Company shall contact the Director to arrange for inspection
and approval by appropriate City personnel.
13. Protection of the Environment.
a. Company hereby represents and warrants that it shall not knowingly,nor permit any third
party to, use, handle, or store any Hazardous Materials on, under, over, or about Park or the
Licensed Premises in violation of any applicable laws. Company shall not handle or store any
Hazardous Materials on the Licensed Premises or the Park, except that the Company may, in
compliance with applicable environmental laws and the terms of this paragraph, use and store
Hazardous Materials in such amounts and types that are commonly used in connection with the
uses permitted herein,provided,however,that Company specifically agrees to remove any and all
such Hazardous Materials on or before the final day of the License Period. Company shall not
introduce,use,generate, store,accept,or dispose of on,under,or about,transport across,or permit
to exist on the Licensed Premises or the Park any "treatment, storage or disposal facility" or
"underground storage tank,"as those terms are defined under applicable environmental laws. For
purposes of this Permit,"Hazardous Materials"shall mean potentially dangerous hazardous wastes,
toxic substances, or related materials, including, but not limited to, pollutants; asbestos;
polychlorinated biphenyl (PCB); petroleum or other fuels (including crude oil or any fraction or
derivative thereof); underground storage tanks,and substances considered hazardous,toxic,or the
equivalent pursuant to applicable laws. Any Hazardous Materials used by the Company on the
Licensed Premises shall be posted on site and a list shall be given to City.
b. Company shall take commercially reasonable steps to avoid creating or aggravating any
condition at the Park or the Licensed Premises that could present a threat to human health or to the
environment.
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14. 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.
15. Limitation on Use. There shall be no equipment on the Licensed Premises within seventy-two(72)
hours of a rain event. The Company shall obtain the written approval of the Director 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.
16. 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.
17. Insurance. Company shall carry insurance as set out in Exhibit D, which is attached hereto and
incorporated herein for all purposes.
18. Prohibition Against Liens. Company shall not do any act or make any contract that may be
purported to create or be the foundation of any lien on or any interest in the Licensed Premises or
the Park. Any such act,contract,or lien attempted to be created shall be void. Should any purported
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lien on the Licensed Premises be created or filed,the Company shall, at its sole expense, liquidate
and discharge same within ten(10)business days after notice from the City to do so.
19. 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 BrightView Landscapes Services,LLC
Director Attn: Mike Murphy
Park and Recreation Department 1252 Dove Rd
City of Fort Worth Southlake, TX 76092
4200 South Freeway, Suite 2200
Fort Worth,Texas 76115
With a copy to:
Department of Law
City of Fort Worth
Attn: City Attorney
1000 Throckmorton
Fort Worth,Texas 76102
20. 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; pandemics; 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 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.
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21. Independent Contractor. It is expressly understood and agreed that Company shall operate as
independent entity in each and every respect hereunder and not as an agent, representative, or
employee of the City. Company shall have the exclusive control and the exclusive right to control
all details and day-to-day operations and activities relative to operation of the Company and
installation of the sanitary sewer service line and any associated infrastructure and shall be solely
responsible for the acts and omissions of its officers, agents, servants, employees, contractors,
subcontractors, licensees, and invitees. Company acknowledges that the doctrine of respondent
superior shall not apply as between the City and Company,its officers,agents,servants,employees,
contractors, subcontractors, licenses, and invitees. Nothing contained in this Permit shall be
construed as the creation of a partnership or joint enterprise between the City and Company.
22. 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.
23. 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.
24. 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.
25. No Waiver of Immunity. Nothing herein shall be deemed to limit or waive the sovereign or
governmental immunity of City or Company.
26. 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.
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By executing this Agreement, Company agrees to and accepts the terms, conditions and provision
contained herein.
CITY OF FORT WORTH: BRIGHTVIEW LANDSCAPE SERVICE,
LLC:
By: David Creek(May 20,2020 12:20 CDT) By: Mike Murphy(May ,20 12:M CDT;
David Creek* Name:Mike Murphy
Assistant Director Title: Authorized Agent
Park and Recreation Department
Date: May 20, 2020 Date: May 19,2020
* 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:
Aka iII--
Matt Murray(May 20,202 12:3T CDT!.
Matt Murray
Assistant City Attorney
No M&C required. •*
Ordinance No. 24161-04-2020 0R
ATTESTED BY: J/.�� ��
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City Secretary ..
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.
c!v-rrsfzrui Moan
By: Christina Moon(May 19,202013:09 CDT)
Name: Christina Moon
Title: Park Planner
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May 13,2020
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Temporary License Agreement—Parkwood Hills Park
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