HomeMy WebLinkAboutContract 47187 (2)CITY SECRETARY Ari, .7
CONTRACT N0. `7 / ..% -
TEMPORARY LICENSE AGREEMENT
This Temporary License Agreement ("Agreement") is entered into on this of
tyektt , 2015 ("Effective Date") by and between the City of Fort Wo h, Texas, a home -rule
municipal corporation of the State of Texas ("City"), and XTO Energy Inc. r : ("Company").
WHEREAS, the City owns a certain piece of property known as Gateway Park, located at 751
Beach Street, Fort Worth TX, 76111 ("Park");
WHEREAS, Company desires to use a portion of the Park to lay its temporary water transfer
lines and pumps inside Gateway Park and
WHEREAS, the City has reviewed the Company's request and agrees to grant the Company use
of the Park in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein expressed, the parties
agree as follows:
1. License and Purpose. City hereby grants to the Company a non-exclusive license to use a portion
of the Park for the purpose for the place a temporary waterlines to serve the Company's offsite
natural gas drilling activities and for no other purpose. The specific location of the licensed
premises is depicted in more detail in Exhibit A, which is attached hereto and incorporated herein
for all purposes ("Licensed Premises").
2. License Fee. Contemporaneously with executing this Agreement, the Company shall deliver to
the office of the City's Park and Recreation Department, 4200 South Freeway, Suite 2200, Fort
Worth, Texas, 76115, payment of a license fee of $1,000.00 as compensation for the rights and
privileges granted under this Agreement.
3. Term. The term of this Agreement shall be for thirty (30) consecutive days, beginning on the
Effective Date.
4. 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.
5. 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
-ti
Temporary License Agreement 1 of 9
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.
6. 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 Park, except to the extent such act or
omission complained of is the result of the gross negligence or willful misconduct of City.
Furthermore, City shall not be liable to Company for any damage or theft of Company's
equipment, facilities, or other contents, except when caused by the willful misconduct of City, its
agents, servants or employees.
7. Restoration of the Park. Company further agrees that if during the course of the exercise of its
rights under this Agreement, damages result to the Park or City's park facilities, as determined by
the City's Director of the Park and Recreation Department or that person's designee, Company
shall repair or restore same to a condition satisfactory to the Director within thirty (30) calendar
days, unless otherwise agreed to by the parties in writing..
8. 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/OR 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 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; PROVIDED
HOWEVER, THAT THE COMPANY SHALL HAVE NO LIABILITY OR OBLIGATION
TO INDEMNIFY, HOLD HARMLESS OR DEFEND WITH RESPECT TO ANY INJURY
OR DAMAGE TO PERSONS OR PROPERTY RESULTING FROM THE GROSS
NEGLIGENCE OF OFFICERS, AGENTS OR EMPLOYEES OF THE CITY.
Temporary License Agreement 2 of 9
9. Limitation on Use. There shall be no equipment on the Park within 48 hours of a rain event. The
Company shall not bring any heavy equipment onto the Park, including, but not limited to,
vehicles (except for areas designated for vehicles such as parking lots).
10. 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.
11. Insurance. Company shall carry insurance as set out in Exhibit B, which is attached hereto and
incorporated herein for all purpose.
12. 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:
Director
Park and Recreation Department
City of Fort Worth
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
To COMPANY:
Attn: Edwin S Ryan, Sr. VP -Land
XTO Energy Inc. Cam.
810 Houston St
Fort Worth, TX 76101
13. 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.
14. 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.
15. Force Maieure. 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
Temporary License Agreement 3 of 9
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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
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.
16. 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.
17. Binding Effect. 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.
18. 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.
19. No Waiver of Immunity. Nothing herein shall be deemed to limit or waive the sovereign or
governmental immunity of City or Company.
20. 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
CITY OF FORT WOR
By:
Wchard Zavalafe
Temporary License Agreement
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Park and Recreation Director Title: At iker/,zgcszc,,n_,r - Add
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APPROVED AS TO FORM
AND LEGALITY:
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Contract Authorization:
No M&C Required
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Temporary License Agreement
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icense Premise
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I'em orary License Agreemen
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Exhibit B
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) &/or 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
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.
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
Temporary License Agreement 8 of 9
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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