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HomeMy WebLinkAboutContract 54628 CSC No. 54628 TEMPORARY LICENSE AGREEMENT 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,Inc.,a Texas corporation("Company"). WHEREAS, the City owns a certain piece of property known as Arcadia Trail Park, located at 7613 Arcadia Trail,Fort Worth,TX 76137 ("Park"); and WHEREAS,the Company desires to gain access over and through the Park to plant eight(8)trees 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 RECORD Temporary License Agreement—Arcadia Trail Park CITY SECRETARY 1 of20 September2020 FT.WORTH, TX 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 tree planting locations to plant trees and install irrigation that connects to existing irrigation system 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 Temporary License Agreement—Arcadia Trail Park 2 of 20 September 2020 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 Temporary License Agreement—Arcadia Trail Park 3 of 20 September 2020 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 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, Temporary License Agreement—Arcadia Trail Park 4 of 20 September 2020 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. 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 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 Temporary License Agreement—Arcadia Trail Park 5 of 20 September 2020 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. 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. Temporary License Agreement—Arcadia Trail Park 6 of 20 September 2020 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 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 Road City of Fort Worth Southlake, Texas 76092 4200 South Freeway, Suite 2200 Fort Worth,Texas 76115 With a copy to: Department of Law City of Fort Worth Attn: City Attorney 200 Texas Street 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; Temporary License Agreement—Arcadia Trail Park 7 of 20 September 2020 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. 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. Temporary License Agreement—Arcadia Trail Park 8 of 20 September 2020 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. By executing this Agreement, Company agrees to and accepts the terms, conditions and provision contained herein. CITY OF FORT WORTH: BRIGHTVIEW LANDSCAPES SERVICES, INC: k411WdZAM& Wilke&602hg By: Richard Zavala(Sep 29,202011:20 CD1, By. Mike Murphy 14:00 CDT) Richard Zavala* Name: Mike Murphy Director Title: Authorized Agent Park and Recreation Department Date: Sep 29,2020 Date: Sep 17,2020 *Richard Zavala 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 November 12,2018. APPROVED AS TO FORM AND LEGALITY: Tvler wallach Tyler Wallach(Sep 22,2020 09:23 CDT) Tyler Wallach Senior Assistant City Attorney No M&C required. 4a44�np� FOR?. o0"0 ATTESTED BY: 00000 000 a��b dfXA5o4d Ronald P.Gonzales(Oct5,20 :31 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&ckh i Wff, By: Christina Moon(Sep 17,202014,04 CDT) Name: Christina Moon Title: Park Planner OFFICIAL RECORD Temporary License Agreement—Arcadia Trail Park CITY SECRETARY 9of20 September 2020 FT.WORTH, TX Exhibit (Deer The i i Premises d Circle �, ! Temporary License Agreement—Arcadia Trail Park _ JN t Limits of licensed � tt ���Limits of licensed �t premises 0 of 20 September 020 Exhibit B Use of Licensed Premises y. Leg PI D 6 Tree Install end_ Irrigation will be ran to each tree from existing mainlines. Access Path No utilities that we are aware of- Tree Protection ,.s Ark SS d J ! Point AOOF r Yu•w- a' o'rle earth 2D20 G3oje 300 ft Temporary License Agreement—Arcadia Trail Park 11 of 20 September 2020 Exhibit C Restoration Standards SECTION 32 92 13.2 SODDING PART1- GENERAL 1.1 SUMMARY A.Section Includes: 1. Furnishing and installing grass sod. B.Related Standard City Specification Sections include, but are not necessarily limited to: 1. Section 32 91 19—Topsoil 2. Section 32 84 23 -Irrigation 1.6 INFORMATIONAL SUBMITTALS A. Certificates and Samples 1. Certificates and specifications of sod,fertilizer, compost, soil amendments or other materials as requested by the City. 1.10 DELIVERY, STORAGE,AND HANDLING A.Block Sod 1. Protect from exposure to wind, sun and freezing. 2. Keep stacked sod moist consistently throughout stack. 3. Sod upon delivery shall be inspected by City provision of certificate from vender to be provided to City indicating sod free of all weeds. 4. Harvesting and planting operations shall be coordinated with not more than forty- eight hours elapsing between harvesting and placement,rolling and tamping, and watering of sod 1.11 FIELD [SITE] CONDITIONS A. Grading of site and installation of topsoil must be approved by City prior to application of sod PART 2 - PRODUCTS 2.1 MATERIALS AND EQUIPMENT A.Materials 1. Block Sod a. Sod Varieties 1) Cynodon dactylon `TIF419' or Cynodon dactylon `TIFWAY' 2) OR an approved Zoysia grass b. Sod must contain stolons,leaf blades,rhizomes and roots. c. Sod shall be alive,healthy and free of insects, disease, stones,undesirable foreign materials and weeds and grasses deleterious to its growth or which might affect its subsistence or hardiness when transplanted. d. Minimum sod thickness: 1"inch minimum. e. Maximum grass height: 2 inches f. Sod shall have been produced on growing beds of clay or clay loam topsoil. Temporary License Agreement—Arcadia Trail Park 12 of 20 September 2020 RESTORATION-SOD Page 2of3 g. Sod must not be harvested or planted when its moisture condition is so excessively wet or dry that its survival will be affected. h. If sod is stacked,it shall be kept moist and shall be stacked roots to roots and grass to grass. i. Acceptable growing beds 1) Bermuda grasses and zoysia grasses: sand or sandy loam soils j. Broken or torn sod or sod with uneven ends shall be rejected. k. Temporary Erosion Control Seed 1) Consist of the sowing of cool season plant sod. 2. Topsoil: See Section 32 91 19. 3. Water: clean and free of industrial wastes or other substances harmful to the germination of the seed or to the growth of the vegetation. 2.2 ACCESSORIES a. Sod pins 1) Metal 2) Wood pegs. PART 3- EXECUTION 3.1 EXAMINATION A.Sod shall be inspected by City upon delivery. B.Contractor must coordinate inspection 72 hours prior to cutting of sod and delivery 3.3 PREPARATION A.Surface Preparation:clear surface of all material including: 1. Scarify subgrade to a depth of 2-inches before depositing the required topsoil.For simple row repair only scarify to 1-inch. 2. Stumps, stones, and other objects larger than one inch. 3. Roots,brush,wire,stakes,etc. 4. Any objects that may interfere with planting sod or maintenance. B.Cleaning 1. Soil shall be further prepared by the removal of debris,building materials,rubbish, weeds, and rock 1-inch and greater. C.Fine Grading: 1. After tillage and clearing, all areas to be planted shall be leveled,fine graded, and a weighted spike and harrow or float drag. The required shall be the elimination of ruts, depressions,humps, and objectionable soil clods.This shall be the final soil preparation step to be completed prior to inspection before planting. 2. Areas near trees: Do not till inside dripline of trees or over exposed roots 3.4 INSTALLATION A. Block Sodding 1. General a. Do not lay sod when ground is frozen. b. Over-seeding with annual rye is acceptable from November 1 until February 1. Temporary License Agreement—Arcadia Trail Park 13 of 20 September 2020 RESTORATION-SOD Page 3 of 3 B. Installation 1. Plant sod specified after the area has been inspected and accepted by City for planting. 2. Till 2" of subgrade and place 3" of topsoil on areas to receive sod or as directed by City. 3. Sod to be laid parallel to the contours in areas as specified. Sod to be laid perpendicular to slopes greater than 3:1. 4. Use care to retain native soil on the roots of the sod during the process of excavating,hauling and planting. 5. Keep sod material moist from the time it is dug until planted. 6. Fill in slumped areas due to watering to keep sod moist. 7. Place sod so that the entire area designated for sodding is covered with no gaps or overlapping material. 8. Fill voids left in the solid sodding with additional sod and tamp. 9. Roll and tamp sod so that sod is in complete contact with topsoil at a uniform slope. By pedestrian mechanical process(no motorized vehicles/equipment) 10.Peg sod with wooden pegs(or wire staple)driven through the sod block to the firm earth in areas that may slide due to the height or slope of the surface or nature of the soil. C. Watering and Finishing 1. Thoroughly water sod immediately after placed and tamped and rolled. 2. Generally, as recommended by the vendor. Water source shall be clean and free of industrial waste or other substances harmful to the germination of the seed or growth of the vegetation. END OF SECTION Temporary License Agreement—Arcadia Trail Park 14 of 20 September 2020 Exhibit D 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 Tunes 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. Temporary License Agreement—Arcadia Trail Park 15 of 20 September 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. Temporary License Agreement—Arcadia Trail Park 16 of 20 September 2020 Exhibit E Tree Protection T � o i 4 o � x 73 n + 0 k; rM r w W A.. e� z Q 0 Temporary License Agreement—Arcadia Trail Park 17 of 20 September 2020 5 T T w 4 Q ................. � m ti 9C7 ry n �y { v •e R6 R in ff $ R a Temporary License Agreement—Arcadia Trail Park 18 of 20 September 2020 Exhibit F Tree Protection DAMAGE TO CITY TREES NO PRUNING OF ANY CITY TREE SHALL BE PERMITTED, UNLESS SPECIFIED OTHERWISE IN THESE SPECIFICATIONS. Severe damage to trees will result in replacement or compensation of trees by the COMPANY. Failure to replace damaged trees shall be considered a breach of contract and COMPANY shall be assessed for damages. Slight or moderate damage to trees will result in assessment of damages. ASSESSMENT OF DAMAGES TO TREES 1.1. Company will check trees in the Licensed Premises before contract work begins, any damage will be noted and reported to the Director or his designee. 1.2. The Director, or his designee, may conduct random checks of the trees during the License Period. 1.3. A check of all trees may be made at the end of the License Period. The City Forester, Director or his designee, and Company will attend the inspection. 1.4. Damages shall be documented by memo to the City Forester with copy to contract file and the Company. 1.5. Company may have the option of replacement or payment for severely damaged trees at a location to be designated by the Parks and Recreation Department. Replacement shall be made on caliper inch per caliper inch basis with a minimum size of replacement tree of 2" in caliper for trees damaged or removed less than 30"diameter at breast height(DBH) and 2"per inch on trees 30" DBH or greater. Company shall be responsible for any planting, watering, mulching and maintenance of replacement trees for a period of not less than 2 years. Company shall compensate the City at a rate of$200 per caliper inch for any tree that does not survive the 2 year establishment period. 1.6. Slight Damage shall be defined as damage,in the opinion of the City Forester that may heal. Examples include, but are not limited to, scaring of the trunk into the cambial layer %2"to 2" in width but less than 1/3 trunk circumference or breaking of limbs less than 2" in diameter or limbs less than 1/3 trunk caliper, whichever is less. Slight damage shall also include removal or lying down of protective tree fencing prior to the end of construction, storing equipment or supplies within the critical root zone (CRZ), or disposing of paint or concrete within the CRZ but not closer to the trunk than 50% radius of the CRZ. Slight damage to trees shall be assessed at a rate of$100.00 for each instance. For each day that tree fencing is not properly placed, equipment or supplies are stored within CRZ, or fill is stored within the CRZ, shall be considered one instance. 1.7. Moderate damage shall be defined as damage, in the opinion of the City Forester, that contributes to the poor health and reduced longevity of the tree, and examples include,but Temporary License Agreement—Arcadia Trail Park 19 of 20 September 2020 are not limited to, scaring of the trunk into the cambial layer greater than 2"but less than 1/3 of the trunk circumference or breaking of limbs more than 2"in diameter but less than 1/3 trunk caliper. Moderate damage shall also include compaction of soil,grading or filling in 20%of the CRZ on one of four sides but outside the 50%radius of the CRZ,or disposing of paint or concrete within 50%radius of the CRZ. Moderate damages shall be calculated at a rate of%2 the assessed value of the tree per each instance of damage. 1.8. Severe damage or removal of trees is subject to a penalty of$200 per diameter inch of trees removed or damaged for trees less than 30"DBH and $400 per diameter inch of trees 30" DBH or greater. Severe damage or removal shall include, but is not limited to, scaring of the trunk to the cambial layer greater than 1/3 the trunk circumference,uprooting or causing a tree to lean, or damage to a scaffolding branch or branch greater than 1/3 of trunk caliper. Severe damage shall also include compaction of soil, grading or filling more than 20% of the CRZ, or within 50% radius of the CRZ or on more than one of 4 sides. Cutting 1/3 of the buttress roots within 3 times the distance of the DBH of the trunk, or cutting 4 roots 4" or greater in diameter within 4' of the trunk shall also be considered severe damage. 1.9. Branches shall be measured at the point of attachment or at the lateral to which the branch would be pruned back to according to ANSI standards. Trees caliper shall be measured according to accepted industry standards. Trees greater than 6"in caliper shall be measured using DBH. Trees that must be removed due to damage caused by Company shall be removed by the Parks and Recreation Department's Forestry Section Tree Removal Contractor at Company's expense. 1.10 All damages shall be paid to the City Tree Fund. Failure to replace or pay for damaged trees shall result in a breach of contract and Company will be automatically assessed damages. Damages as described herein shall be deducted from payments otherwise due to Company. 1.11 Remediation costs assessed hereunder constitute contractual damages intended to compensate the City, as property owner, and have no bearing on whether or to what extent any fines may be due under the Urban Forestry Ordinance of the Fort Worth Zoning Ordinance. Temporary License Agreement—Arcadia Trail Park 20 of 20 September 2020