HomeMy WebLinkAboutContract 44845. C1TY S�Gi�T'l4l� � �� � . �-
LICENSE AGREEMENT C��°� ��• � � � l
FOR A PORTION OF GATEWAY PARK
This License Agreement for a Portion of Gateway Park ("License") is made and entered into
on this day of , 2013, ("Effective Date") by and between the City of Fort Worth
("City"), a home-rule municipal corporation organized under the laws of the State of Texas, acting by and
through its duly authorized Assistant City Manager, and Energy Transfer Fuel, L. P., a Delaware Limited
Partnership, acting through its general partner Energy Transfer Fuel GP, LLC, a Delaware Limited
Liability Company, acting by and through its Vice President of Land and Right of Way, Robe��t Rose
("Company").
WHEREAS, the City owns a certain piece of property known as Gateway Park (the "Park"),
located at 751 Beach Street, Fort Worth, Texas 76103, Tarrant County, Texas, which is depicted in
Exhibit A;
WHEREAS, Company currently owns a natural gas pipeline within an existing 40-foot easement
through the Park ("Company's Easement"), which is more particularly described and depicted in Exhibit
B, attached hereto and incorporated herein by reference;
WHEREAS, erosion within the Park has resulted in the exposure of portions of the Company's
pipeline;
WHEREAS, to prevent future erosion issues within the Park, Company desires to install and
maintain drainage improvements within the Company's Easement pursuant to the terms thereof and on
certain areas of the Park outside of the Company's Easement;
WHEREAS, the City has agreed to grant the Company a license to certain portions of the Park so
that the Company may remedy and repair its exposed pipelines and install and maintain the above-
referenced drainage improvements situated on a portion of the Park not subject to the Company's
Easement;
NOW, THEREFORE, in consideration of the mutual benefits and promises contained herein
and for other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
ARTICLE 1
LICENSED PREMISES
1.01 Premises. City demises and licenses to the Company the following two areas within the Park on a
temporary basis: (1) an ingress and egress route through the Park to the Company's Easement and (2) an
equipment and material staging area (individually referred to as Areas 1 and 2, respectively, and
collectively refeired to as the "Temporary Licensed Premises"). The City also demises and licenses to the
Company a designated area of the Park on a long-term basis for the construction, installation,
maintenance, and upkeep of drainage improvements consisting of cellular blocks for erosion control
("Drainage Improvements"). The long-term licensed area shall be referred to as either the "Licensed
Premises" or "Area 3." The Temparary Licensed Premises and the Licensed Premises shall be
collectively referred to as the "Premises" and are labeled and identified on Exhibit C. The locations of
the Premises are depicted in more detail in Exhibit C, which is attached hereto and incorporated herein for
all purposes as though it were set forth at length.
License Agreement for a Portion of Gateway Park
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ARTICLE 2
LICENSE TERM
2.01 License Period for the Temporary Licensed Premises. The license period for the Temporary
Licensed Premises shall commence upon the Effective Date and shall expire thirty (30) days thereafter,
unless terminated earlier pursuant to the terms set forth herein ("Temporary License Term"). The parties
may elect to extend the Temporary License Period by thirty (30) day increments upon mutual written
agreement.
2.02 License Period for the Licensed Premises. The license period for the Licensed Premises shall
commence upon the Effective Date and shall expire on the last day of the month that is twenty (20) years
after the Effective Date ("Primary Term"), unless terminated earlier pursuant to the terms set forth herein.
The Primary Term may be renewed for two, five year periods upon mutual written agreement of the
parties ("Renewal Term").
ARTICLE 3
CONSIDERATION
3.01 Consideration. In consideration of Ten Dollars and No Cents ($10.00) and the Company's
agreement to construct, install, and maintain the Drainage Improvements in certain designated areas of the
Park in accordance with the terms of this License, the City grants to the Company the rights and
privileges to use the Park in accordance with the terms and conditions of this License. Payment shall be
made to the City within five (5) days of the date on which this License is fully executed by the parties and
delivered to the offices of the City's Parks and Community Services Department ("Department") at 4200
South Freeway, Suite, 2200, Fort Worth, Texas 76115.
ARTICLE 4
PERMITTED USES
4.01 Permitted Use of the Premises. For and in consideration of the monetary payments to be made
hereunder and the other covenants and promises expressed herein, the City does hereby agree to license
the Premises to the Company for the following purposes:
a. Area 1. The Company may use Area 1 of the Temporary Licensed Premises for ingress
and egress to the Company's Easement for the purpose of constructing and installing the
Drainage Improvements and staging materials and equipment associated with the remedy and
repair of Company's pipelines on the Premises.
b. Area 2. The Company may use Area 2 of the Temporary Licensed Premises to stage its
materials and equipment associated with the pipeline work and Drainage Improvement
construction and installation.
c. Area 3. The Company may use Area 3 for operations related to the construction,
installation, maintenance, and upkeep of the Drainage Improvements.
4.02 Acce�tance of the Premises. The Company takes all portions of the Premises and all
appurtenances in "AS IS" condition without any express or implied warranty on the part of the City. The
Company accepts the 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 Premises or their
suitability for the purposes intended. The Company accepts the Premises subject to any and all
License Agreement for a Portion of Gateway Park 2 of 36
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, or trespassers by reason of the exercise of such rights or privileges granted in said
easements. The Company's taking possession of the 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 Premises and all the appurtenances thereto. The CitY
shall not be liable to the Companv, its a�ents, emplovees, contractors, subcontractors, invitees,
licensees, or guests for anv dama�e to anv Uerson or nropertv due to the acts or omissions of the
Companv, its agents, emnlovees contractors, or subcontractors, unless such dama�e is caused bv
the �ross ne�ligence or willful misconduct of Citv or its agents, emplovees, separate contractors, or
subcontractors.
4.03 Use Not Exclusive. This License 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 and the Premises 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 Premises as provided herein. This License does not establish any priority for the use of the
Park or the Premises by the 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 or 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, including the police power and other powers reserved to and conferred on it by the State of
Texas.
4.04 Maintenance. City is not responsible for the maintenance of Drainage Improvements
constructed on the Premises. Company shall perform all necessary maintenance and upkeep on the
Premises, which includes but is not limited to keeping the Drainage Improvements unobstructed at all
times, and clean and free of debris, silt or other substances, which would result in obstructions or
unsanitary conditions. If the Company fails to maintain the Drainage Improvements in accordance with
the terms stated herein, then the Company will have thirty (30) days from the date is receives written
notification from the City to cure its maintenance obligations. If the Company fails to cure its
maintenance obligations with the 30 day period, then the City reserves the right to maintain the Drainage
Improvements and bill the Company for all costs associated therewith. Any payments due hereunder will
be due and payable to the City within thirty days after the Company receives an invoice from the City.
ARTICLE 5
CONDITIONS
5.01 General Conditions. Any work performed or contract awarded by Company or its contractors or
subcontractors on the Premises, including, but not limited to, any excavation work, ingress and egress,
material and equipment staging, and drainage improvement installation, shall be subject to the following:
a. The Company shall schedule a pre-construction meeting with City staff in the
Department at least three (3) business days prior to initiating any construction on or near the
Premises (including, but not limited to, any excavation work). The pre-construction meeting shall
be for purposes of outlining Company's plans and schedules regarding the following: (i)
construction and installation of the Drainage Improvements; (ii) pipeline repair operations; (iii)
ingress and egress issues; (iv) material and equipment staging; (v) minimizing construction
impact on vegetation and the Park, in general, and (vi) restoration of all affected parkland and
amenities.
License Agreement for a Portion of Gateway Park 3 of 36
b. Construction on the Premises is allowed only between 7:00 A.M. and 6:00 P.M. Monday
through Friday. For purposes of this provision, the term "construction," shall include (i) clearing,
dredging, excavating, compacting, or grading of land; (ii) delivery or assembly of the Drainage
Improvements and pipeline repair ; and (iii) operation of heavy equipment, including, but not
limited to, a backhoe, backhoe loader, boom truck, bulldozer, compactor, crane, dump truck,
excavator, grader, grapple truck, loader, pile driver, power shovel, roller, scraper, tractor,
trencher, and tunnel boring machine. All Company equipment and materials shall be stored and
maintained solely within the confines of the Company's Easement or Area 2. Use of any portion
of the Park outside of the Premises is strictly prohibited.
c. City and Company agree that Company conduct all of its operations in accordance (i)
with all applicable laws, ordinances, rules, regulations, and specifications of all federal, state,
county, city, and other governmental agencies applicable to the Licensed Premises now or
hereafter in effect; (iii) in a good and workman like manner; and (iv) in accordance with industry
standards of care, skill, and diligence.
d. Company shall do all work and furnish all labor, equipment, and materials necessary to
fully complete all the work as provided for in this License. City shall not be responsible for any
costs associated with this License, including, but not limited to, any costs for construction, labor,
equipment, or materials.
e. The Premises must, at all times, be kept free of inechanics' and materialmen's liens.
Company shall IND�'�INIFY AND h'OLD CITY h'fl R�LIL�'SS FRO�I ANI7 A G,9INST
ANY AND ALL �If�'CfIANICS' AND �IIAT�'RI�I L�LIEN S LIENS OR ANY OTh'�'R
TYPE OFCLAINIS OR LI�'NSI�IIPOS�'D UPONTH�'LIC�'NSEI�PRErI7IS�'SARISING
ASA R�'SULT OFITS CONDIICT OR INA CTIl�ITY.
f. Company shall notify City at least three (3) days prior to beginning any construction or
work on the Premises unless otherwise approved in writing between the parties.
g. Company acknowledges that City may have structures and/or equipment on the Premises.
Company agrees that it will use commercially reasonable efforts to protect the integrity of such
structures and equipment. In the event that Company's activities may threaten such structures or
equipment, Company agrees to immediately notify City and as far in advance as reasonably
possible and to cooperate with City in protecting such structures and/or equipment.
h. Company shall be authorized to destroy, remove, or alter fences or other improvements
only to the extent provided in writing by the Director of the Department or that person Designee
("Director"). To the extent any fences or other improvements are destroyed, removed, or altered
in connection with any construction or material alteration of the Premises outside of any City-
approved construction plans, Company shall reconstruct and restore such improvements in a good
and workmanlike manner to a condition that is equal to or better than the one in which such
improvements existed prior to commencement of the construction or material alteration. If
Company destroys, removes, or alters any fences or other improvements, then Company shall
contact City immediately so that City can determine whether those items are salvageable.
i. At no time shall the any tree be damaged or removed. There shall be no dumping of
materials within the Park.
j. All work to be completed under this License, including, but not limited to, restoration,
License Agreement for a Portion of Gateway Park 4 of 36
shall be subject to inspection and approval by the Director.
k. Company shall obtain all permits necessary to complete all construction and repair
required hereunder.
1. Public Safety.
(1) Company shall be solely responsible for initiating, maintaining, and supervising
all safety precautions and programs in connection with Company's use of the Premises
and the Park.
(2) At a minimum and prior to commencing any work, Company sha1L• (i) install
and maintain construction fencing around the perimeter of the entire Premises, and (ii)
erect a controlled-access entry within the right-of-way fencing in the form of a gate,
chain link fence, or similar structure to ensure that unauthorized traffic cannot enter the
Premises. Where there is no fencing or where fencing has been removed or damaged
adjacent to any work access areas, fencing shall be installed. Following installation of
the fencing and controlled-access entry, the Company shall contact the Department to
inspect for proper installation. The controlled-access entry shall be kept locked when not
in use, and the Company shall tandem lock all gate and entry locks and provide
Department with keys to access any such gate or entry. At no time shall any fenced area
be left open unless staffed by security personnel.
(3) 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 (i) all persons accessing portions of the Licensed Premises on which any construction
is being performed by or on behalf of the Company; (ii) all work performed on or from
the 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 (iii) other property on or adjacent to the
Licensed Premises.
m. Company shall not cut or remove any trees on the Premises. Prior to beginning any
construction, Company shall install fencing and matting as identified on the attached Exhibit D,
which shall be incorporated herein for all purposes. 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 E, which is attached hereto and
incorporated herein for all purposes. Any fencing shall remain in place until such time as the
Premises are accepted by the City pursuant to the terms of this License.
n. Minimizing Impact to Utilities
(1) If the Company encounters any utility infrastructure (including, but not limited
to, electric lines, waterlines, sewer lines, storm drains and lines, or gas lines), the
Company covenants and agrees to cease construction operations and install protective
License Agreement for a Portion of Gateway Park 5 of 36
matting over or around such utilities in compliance with specifications approved by the
City's Water Department (for all water-related utilities) or by the Department (for all
other utilities). Following installation of the matting, Company shall contact the
Department to arrange for inspection and approval by appropriate City personnel.
(2) The Company shall provide the Department with a copy of the City's inspection
report within twenty-four (24) hours of receiving the report and prior to resuming
construction in the Park. The Company may resume construction on the next day after
the date on which it provides the inspection report and specifications to the Department
unless that department contacts the Company and identifies specific issues that must be
addressed.
o. Prior to commencing any work hereunder, Company must provide the Department with
videographic documentation of the condition of the Premises, including underground utilities, as
they exist both before and after any work is performed by the Company. All such video must
include a visible date and time stamp indicating when the videography occurred. Post-installation
documentation must be submitted no later than five (5) business days after the last day of the
Temporary License Period and no later than five (5) business days after installation of the
Drainage Improvements. Department staff will distribute copies of the documentation to all
appropriate City personnel to determine whether any damage has been done to the Premises.
5.02 Additional Conditions A�licable to the Draina�e Im�rovements on the Licensed Premises
a. Company will construct the Drainage Improvements on the Licensed Premises in
accordance with the specifications detailed in the attached Exhibit F, which shall be incorporated
herein by reference, and any other specifications pre-approved by City and Company prior to
beginning any construction.
b. Prior to the commencement of the construction of the Drainage Improvements on the
Licensed Premises or any material alteration or other construction work on the Licensed Premises
that costs in excess of $50,000.00 in the aggregate, the Company shall, at its own cost and
expense, cause to be made and executed by the construction contractor either one or two separate
bonds, in accordance with Section 2253.021 of the Texas Government Code, as follows
(1) If the amount of the construction contract awarded is in excess of $50,000.00:
(A) prior to the date of commencement of construction, the contractor shall
furnish a payment bond in a sum equal to the full amount of the construction
contract awarded; and
(B) said bond shall be for the protection of and use by payment bond
beneficiaries who have a direct contractual relationship with the construction
contractor or any of its subcontractors who is actually supplying the public work
labor or material.
(2) If the amount of the construction contract awarded is in excess of $100,000.00 in
addition to any bond required under subsection (A) above:
(A) prior to the date of commencement of construction, the contractor shall
furnish a performance bond in a sum equal to the full amount of the construction
contract awarded; and
License Agreement for a Portion of Gateway Park 6 of 36
(B) said bond shall be conditioned on a faithful performance of necessary
construction and completion of improvements in accordance with approved final
plans, detailed specifications, and contract documents.
(3) The Company shall ensure that all required bonds list the City as a dual obligee.
(4) Company shall comply with all applicable federal, state, and local laws,
regulations, and ordinances in awarding any construction contracts.
c. Process for Approval. The following rules govern City's approving construction,
additions, and alterations of the said Drainage Improvements:
(1) Written Approval Required. No permanent improvement may be constructed on
the Licensed Premises unless the plans, specifications, and proposed location of the
improvement has received City's written approval.
(2) Citv's Approval. City will promptly review and approve, in writing, all changes
to the attached specifications for any required changes or modifications.
(3) Effect of Approval. Approval by City shall not constitute or be deemed a release
of the responsibility and liability of Company, its agents, servants, employees,
contractors, and subcontractors for the accuracy and competency of its designs, working
drawings, and specifications or other engineering documents. City, by approving the
plans and specifications, assumes no liability or responsibility for the architectural or
engineering design or for any defect in any the designs, working drawings, and
specifications or other engineering documents, building or improvement constructed from
the plans or specifications prepared by Company, its agents, servants, employees,
contractors and subcontractors (it being the intent of the parties that approval by City
constitutes approval of only the general design concept of the improvements to be
constructed).
(4) As-Built Drawin�s. Company shall require its design professional to prepare as-
built drawings based upon final construction and shall submit two copies of these
drawings to City, which shall become property of City on the date of submission.
d. Be i� nning Construction. Company shall begin construction of the Drainage
Improvements no later than the Effective Date of this License. Company may reasonably delay
commencement of construction due to delays caused by City, such delay not to exceed thirty (30)
days after City's delay is eliminated, or by force majeure.
e. Project Closeout. The Company shall ensure final clean-up of the Licensed Premises to
the satisfaction of the Director as soon as construction of the Drainage Improvements are
completed. Clean-up shall include removal of all construction materials, pieces of concrete,
equipment, and/or other rubbish. No more than five (5) days shall elapse after completion of
construction before the Licensed Premises is cleaned. Surplus materials shall be disposed of by
the Company or its contractor, at its own expense, and as directed by the Director. Cleaning of
equipment by Company or its contractor shall take place in an area designated by the Director.
License Agreement for a Portion of Gateway Park 7 of 36
ARTICLE 6
OWNERSHIP OF DRAINAGE IMPROVEMENTS
6.01 Title and ownership to all Drainage Improvements installed by the Company pursuant to this
License shall remain with the Company for the entire term of this License. If, for whatever reason, this
License is terminated or expires on its own terms, then the Company shall take all steps necessary to vest
title and ownership in and to the Drainage Improvement to the City.
ARTICLE 7
PROTECTION OF THE ENVIRONEMENT
7.01 Company shall not handle or store any Hazardous Materials on the Premises or the Park, except
that the Company may, in compliance with applicable environmental laws, use and store Hazardous
Materials in such amounts and types that are commonly used in connection with similar operations;
provided, however, that Company specifically agrees to remove any and all such Hazardous Materials on
or before the final day of the Temporary License Period and on or before the final day upon which the
Drainage Improvements have been installed. Company shall not introduce, use, generate, store, accept, or
dispose of on, under, or about, transport across, or permit to exist on the 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 License, "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 Premises shall be posted on site and a list shall be given to City.
7.02 Company shall take commercially reasonable steps to avoid creating or aggravating any condition
at the Park or the Premises that could present a threat to human health or to the environment.
ARTICLE 8
RESTORATION
S.Ol Im�rovements. To the extent any barricade, fence, or other improvement is destroyed, removed,
or altered in connection with the Company's activities under this License, the Company shall reconstruct
and restore such improvement in a good and workmanlike manner to a condition that is equal to or better
than the one in which such improvement existed as of the date this License is fully executed, as evidenced
by the pre-installation video required under this License. Any restoration required under this section must
be completed by the Company and inspected and approved by the Director prior to the expiration of the
Temporary License Period.
8.02 Surface and Subsurface.
(a) To the extent any portion of the surface or subsurface of the Premises are damaged or
disturbed in connection with Company's activities under this License, as determined at the sole
discretion of the Director, the Company shall ensure any subsurface area is promptly filled with
clean fill dirt up to the level of the surrounding ground. Company shall ensure any fill dirt is
compacted to a 90°Io compression ratio and in accordance with all applicable laws. Company
shall provide the City with a report or other written documentation acceptable to the Director to
demonstrate that compaction was performed in accordance with this section. In performing
earthwork in the Park or Premises, the Company shall adhere to the policies and specifications set
forth by the Director, a copy of said policies and specifications will be provided upon request.
License Agreement for a Portion of Gateway Park 8 of 36
(b) The Company shall restare the Temporary Licensed Premises by doing the following: (i)
reseeding with Common Bermuda grass in accordance with the policies and specifications set
forth by the Director, a copy of which shall be provided upon request, and (ii) watering the
replanted and reseeded areas as needed until the replacement vegetation is reasonably established
and has been approved and accepted by the Director. Prior to planting, Company shall provide
the Department with documentation certifying the type and quality of the materials to be planted.
The Department may, in the exercise of reasonable discretion, reject any plant material that does
not meet the requirements of this section or its policies and specifications or is otherwise
unacceptable for one or more specific, clearly identified reasons.
(c) Any restoration required under this section must be completed by the Company and
inspected and approved by the Director prior to the expiration of the Temporary License Period.
8.03 Discretionary Limited Access to Care for and Establish Ve etg ation.
(a) Company may request limited access to the Temporary Licensed Premises to water, care
for, and establish replacement vegetation required under this section ("Limited Access"). A
request for Limited Access must be made in writing and delivered to the Director at least two
weeks prior to the expiration of the Temporary License Period. Replacement vegetation or seed
must be in place at the time the request is made.
(b) Director may, in its reasonable discretion, authorize Limited Access for a period not to
exceed two weeks from the expiration of the Temporary License Period. During the Limited
Access period, no Company materials or equipment may remain on the Premises with the
exception of irrigation directly involved in irrigation and temporary fencing used to protect areas
being restored. Company's use of the Premises under Limited Access in accordance with this
Section shall not invoke any additional extended Temporary License Period beyond that which
already exists at the time that Limited Access is granted.
8.04 Removal of Excavated Materials. Company shall ensure that spoils and all excess material
excavated by or for Company is removed from the Park and properly disposed of within twenty-four (24)
hours.
8.05 Failure to Restore. If Company fails to repair or restore the Premises as set forth herein, City
may, at its sole discretion, repair or restore the Premises and invoice the Company for City's costs and
expenses incurred, such invoice to be due and payable to City within thirty (30) days of its delivery to
Company.
ARTICLE 9
LIABILITY AND INDEMNIFICATION
9.01 Company agrees to pay City for all damages suffered or incurred by City as a result of any
operations conducted for or by Company, its agents, employees or representatives, including, but not
limited to, all damage or injury to standing or fallen timber, buildings, fences, equipment, and all other
property, whether real or personal. Company shall assume all responsibility and liability for any damages
(whether for property loss or damage or personal injury or otherwise) arising out of, resulting from, or
connected to the construction, installation, or maintenance of the Drainage Improvements and pipeline
repairs.
9.02 GENERAL INDEMNIFICATION.
License Agreement for a Partion of Gateway Park 9 of 36
a. COMPANY COVENANTS AND AGREES TO AND DOES HEREBY
INDEMNIFY, HOLD HARMLESS, AND DEFEND, AT ITS OWN EXPENSE, CITY
FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, JUDGMENTS,
ACTIONS, CAUSES OF ACTION, LIENS, LOSSES, EXPENSES, COSTS, FEES
(INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES AND COSTS OF
DEFENSE), PROCEEDINGS, DEMANDS, DAMAGES, LIABILITIES, AND/OR SUITS
OF ANY KIND OR NATURE, INCLUDING, BUT NOT LIMITED TO, TAOSE FOR
PROPERTY LOSS (INCLUDING, BUT NOT LIMITED TO, WORKERS'
COMPENSATION ACT LIABILITY, LOST PROFITS, AND PROPERTY DAMAGE)
AND/OR PERSONAL INJURY (INCLUDING, BUT NOT LIMITED TO, DEATH) TO ANY
AND ALL PERSONS, OR OTHER HARM FOR WHICH RECOVERY OF DAMAGES IS
SOUGHT, OF WHATSOEVER HIND OR CHARACTER, WHETHER REAL OR
ASSERTED, ARISING OUT OF OR RESULTING FROM ANY ACTS, ERRORS, OR
OMMISSIONS OF COMPANY, ITS OFFICERS, AGENTS, EMPLOYEES,
SUBCONTRACTORS, INVITEES, LICENSEES, AND TRESPASSERS IN CONNECTION
WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE, OR
NONPERFORMANCE OF THIS LICENSE.
b. COMPANY LIKEWISE COVENANTS AND AGREES TO, AND DOES HEREBY,
INDEMNIFY DEFEND, AND HOLD HARMLESS CITY FROM AND AGAINST ANY
AND ALL INJURIES, DAMAGE, LOSS, OR DESTRUCTION TO PROPERTY OF CITY
DURING THE PERFORMANCE OF ANY OF THE TERMS AND CONDITIONS OF
THIS LICENSE. HOWEVER, THE INDEMNITY PROVIDED FOR IN THIS
PARAGRAPH SHALL NOT EXTEND TO ANY LIABILITY RESULTING FROM THE
SOLE NEGLIGENCE OF THE CITY OR ITS OFFICERS, AGENTS, EMPLOYEE5, OR
SEPARATE CONTRACTORS, AND, IN THE EVENT OF JOINT AND CONCURRENT
NEGLIGENCE OF BOTH THE COMPANY AND THE CITY, RESPONSIBILITY AND
LIABILITY, IF ANY, SHALL BE APPORTIONED COMPARATIVELY IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. NOTHING HEREIN
SHALL BE CON5TRUED AS A WAIVER OF THE CITY'S GOVERNMENTAL
IMMUNITY A5 FURTHER PROVIDED BY THE LAWS OF THE STATE OF TEXAS.
9.03 ENVIRONMENTAL INDEMNIFICATION. COMPANY DOES HEREBY RELEASE,
INDEMNIFY, DEFEND, REIMBUR5E, AND HOLD HARMLESS THE CITY, ITS OFFICERS,
AGENTS, REPRESENTATIVES, EMPLOYEES, AND VOLUNTEERS FROM AND AGAINST
ANY AND ALL ENVIRONMENTAL DAMAGES AND THE VIOLATION OF ANY AND ALL
ENVIRONMENTAL REQUIREMENTS RESULTING FROM ANY WORK UNDER THIS
LICENSE.
9.04 Company covenants and agrees that City shall in no way or under any circumstances be
responsible for any property belonging to Company, its members, employees, agents, assigns, contractors,
subcontractors, invitees, licensees, or trespassers that may be stolen, destroyed, or in any way damaged,
AND COMPANY HEREBY INDEMNIFIES AND HOLDS HARMLESS CITY FROM ANY AND
ALL SUCH CLAIMS. City does not guarantee police protection and will not be liable for any loss or
damage sustained by Company, its members, employees, agents, contractors, subcontractors, invitees,
licensees, or trespassers on any of the Premises.
9.05 Company agrees that City shall not be liable for any loss, injury, or damage whatsoever suffered
or incurred by Company or Company's agents, employees or representatives in the performance of this
License, unless caused by the City's willful or gross negligence.
License Agreement for a Portion of Gateway Park 10 of 36
9.06 If any action or proceeding shall be brought by or against the City in connection with any such
liability or claim, Company, on notice from City, shall defend such action or proceeding, at Company's
expense, by or through attorneys reasonably satisfactory to the City.
9.07 Company agrees to and shall release City from any and all liability for injury, death, damage, or
loss to persons or property sustained or caused by Company in connection with or incidental to
performance under this License.
9.08 This section shall survive the expiration or termination of this License.
ARTICLE 10
INSURANCE
10.01 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 and covering all public risks related to
the use, occupancy, condition, maintenance, existence, or location of the Park. The insurance required
hereunder may be met by a combination of self-insurance and primary and excess policies.
10.02 T��pes and Amounts of Covera�e Required
a.
0
c
d
e.
f
Commercial General Liabilitv:
(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
Propertv Damag;e Liabilitv:
(1) $1,000,000.00 per occurrence
Umbrella Policv
(1) $5,000,000.00
Environmental Im�airment Liability (EIL) &/or Pollution Liabilitv
(1) $2,000,000 per occunence
(2) $5,000,000 aggregate
Automobile Liabilitv:
(1) $1,000,000.00 per accident, including, but not limited to, all owned, leased,
hired, or non-owned motor vehicles used in conjunction with the rights granted under this
License
Worker's Compensation:
(1) As required by law
License Agreement for a Portion of Gateway Park 1 I of 36
g. Employer's Liabilitv:
(1) $1,000,000.00 per accident
10.03 Revisions to Required Covera�e. 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 thirty (30) 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.
10.04 Underwriters and Certificates. Company shall ensure that insurance is procured and maintained
with underwriters who are authorized to do business in the State of Texas and who are reasonably
acceptable to the City in terms of solvency and financial strength. 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.
10.05 Deductibles. Deductible or self-insured retention limits on any line of coverage required herein
shall not exceed $500,000.00 in the annual aggregate unless the limit per occurrence or per line of
coverage, or aggregate is otherwise approved by the City.
10.06 No Limitation of Liabilitv. 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 License or law.
ARTICLE 11
DEFAULT AND TERMINATION
11.01 General Breach. Unless stated elsewhere in this License, Company shall be in default under this
License if Company breaches any term or condition of this License. In the event that such breach remains
uncured after thirty (30) calendar days following receipt of written notice from the City referencing this
License ((or, if Company has diligently and continuously attempted to cure following receipt of such
written notice but reasonably requires more than thirty (30) calendar days to cure, then such additional
amount of time as is reasonably necessary to effect cure, as determined by both parties mutually and in
good faith)), the City shall have the right to terminate this License immediately by providing written
notice to Company.
11.02 Termination Without Cause. The City may terminate this License without cause upon ninety
(90) days written notice to the Company.
11.03 Com�any's Duties Following Expiration or Termination. Following expiration or termination of
this License, Company shall promptly remove all of its personal property; provided, however, Company
shall not be obligated to remove any fixtures (including the Drainage Improvements). Company shall
also repair any Company-caused damage to the Premises, including, but not limited to, any damage that
Company causes during removal of Company's property, to the satisfaction of the Director. Following
removal of all of Company's personal property and repair of any damage, Company shall relinquish
possession of the Premises to City.
License Agreement for a Portion of Gateway Park 12 of 36
11.04 Failure to Complv with Post-Expiration or Termination Duties. If Company fails to remove all or
any part of its personal property (except the Drainage Improvements), City may, at its sole discretion, (i)
remove Company's personal property and invoice Company for City's costs and expenses incurred, such
invoice to be due and payable to City within thirty (30) days of its delivery to Company; or (ii) following
no less than thirty (30) days prior written notice to Company, take and hold any Company personal
property as City's sole property; or (iii) pursue any remedy at law or in equity available to City.
11.05 Duties and Obligations to Survive Termination or Expiration. No termination or expiration shall
release Company from any liability or obligation resulting from any event happening prior to the
completion of all post-termination duties or, if later, the date on which City exercises the last of its
available remedies for Company's failure to meet its post-termination duties.
11.06 Other Remedies. Any termination of this License as provided in this article will not relieve
Company from paying any sum or sums due and payable to City under this License at the time of
termination, or any claim for damages then or previously accruing against Company under this License.
Any such termination will not prevent City from enforcing the payment of any such sum or sums or claim
for damages by any remedy provided for by law, or from recovering damages from Company for any
default under the License. All City's rights, options, and remedies under this License will be construed to
be cumulative, and not one of them is exclusive of the other. City may pursue any or all such remedies or
any other remedy or relief provided by law, whether or not stated in this License.
11.07 Access. No use of or access to the Park or the Premises shall be allowed outside of the
designated license term or applicable extension period. Company's rights in and to the Premises
hereunder shall be strictly limited and shall fully and absolutely terminate and be of no further force and
effect at the conclusion of the applicable license period. After the license period ends, all rights of the
Company in and to the Premises shall, automatically and without the need for any further documentation,
fully and unconditionally terminate, whereupon the Company shall have no right of entry or use of the
Premises whatsoever.
ARTICLE 12
MISCELLANEOUS
12.01 Audit. The City will have the right throughout the entire term of this License to audit the
financial and business records of the Company that relate to the License and any other documents
necessary to evaluate Company's compliance with this License (collectively "Records"). Developer shall
make all Records available to the City at a location in the City acceptable to both parties following
reasonable advance notice by the City and shall otherwise cooperate fully with the City during any audit.
12.02 Prohibition Against Liens. The 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 Premises or the Park. Any
such act, contract, or lien attempted to be created shall be void. Should any purported lien on the
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
12.03 Notices. All notices required or permitted under this License 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 CTTY:
License Agreement for a Portion of Gateway Park
To COMPANY:
13 of 36
Director
Parks and Community Services
City of Fort Worth
4200 South Freeway, Ste 2200
Fort Worth, Texas 76115
With a copy to:
Department of Law
City of Fort Worth
1000 Throckmorton
Fort Worth, Texas 76102
Jerry Gerloff
Construction
Energy Transfer
2001 Stephens Drive
Mansfield TX 76063
With a copy to:
Dan Hyvl
Senior Attorney
Energy Transfer LP
1300 Main Street
Houston TX 77002
Robert Rose
Vice President Land and Right of Way
Energy Transfer Fuels
1300 Main Street
Houston , Texas 77002
12.04 Independent Contractor. It is expressly understood and agreed that Company shall operate as an
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 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 respondeat sccper•ior 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.
12.05 Prohibition A�ainst Assi ng ment. The Company may not sell, assign, or otherwise transfer any of
its rights or obligations under this License without the prior, written consent of the City. Any such
attempted assignment without the City's consent shall be void.
12.06 Compliance with Laws and Regulations.
(a) In operating under this License, Company agrees to comply with all applicable federal, state,
and local laws, regulations, and ordinances, including all City ordinances, charter provisions, and
rules, regulations, and requirements of the City's Police, Fire, Code Compliance, Transportation
and Public Works, and Health Departments.
(b) Company will not knowingly do or suffer to be done anything on said Premises during the
terms of this License in violation of the laws, statutes, ordinances, rules, regulations, charter
provisions, directives or requirements referenced in this Permit. If the City calls the attention of
Company to any such violation on the part of said Company or any person employed by or
admitted to said Premises by Company, Company will immediately (or otherwise as soon as
reasonably possible) desist from and correct such violation and/or vacate the Licensed Premises.
12.07 Third Parties. Nothing in this Permit shall be construed in any manner to create a cause of action
for the benefit of any person not a party to this Permit, or to create any rights not otherwise existing at law
License Agreement for a Portion of Gateway Park 14 of 36
for the benefit of any person not a party to this Permit. Nothing in this Permit shall be deemed to
constitute a waiver of any immunity or affirmative defense that may be asserted by Company or the City
as to any claim of any third party.
12.08 Force Majeure; Homeland Securitv. If either party is unable, either in whole or part, to fulfill its
obligations under this License 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
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 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. Company hereby waives
any claims it may have against the City for damages resulting from any such Force Majeure Event.
12.09 Headin�s. The section headings contained herein are solely far convenience in reference and are
not intended to define or limit the scope of any provision of this License.
12.10 Choice of Law: Venue. This License 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 Permit, 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.
12.11 Governmental Powers. It is understood and agreed that by execution of this License, City does
not waive or surrender any of its governmental powers.
12.12 Authorization. By executing this License, Company's agent affirms that he or she is authorized
by the Company to execute this License and that all representations made herein with regard to
Company's identity, address and legal status (corporation, partnership, individual, etc.) are true and
correct.
12.13 Counterparts and Electronic Si na� tures. This License may be executed in several counterparts,
each of which will be deemed an original, but all of which together will constitute one and the same
instrument. A signature received via facsimile or electronically via email shall be as legally binding for
all purposes as an original signature.
12.14 Entiretv of A�reement. This instrument (including all attachments, schedules, and exhibits
attached hereto) constitutes the entire understanding and agreement of the City and Company as to use of
the Premises and the Park. Any prior or contemporaneous oral or written agreement is hereby declared
null and void to the extent in conflict with the terms and conditions of this License. This License shall
not be amended unless agreed to in writing by both parties.
By executing this License, Company agrees to and accepts the terms, conditions and provision
contained herein.
IN WITNESS WHEREOF, the parties hereto have executed this License in Fort Worth, Tarrant County,
License Agreement for a Portion of Gateway Park 15 of 36
Texas to be effective as of the Effective Date.
Energy Transfer Fuel L.P.,
a Delaware Limited Partnership
By: Energy Transfer Fuel GP, LLC,
a Delaware Limited Liability Company,
its General Partner
City of Fort Worth
By�
'�d-�2 "Cla�.�L-�✓
'usan Alanis
Assistant City Manager
Date: �� .� � I � �
By:
�_
Approved as to Form and Legality:
xon t xose
ice President and L nd ROW Agent
Date: � � � � 3
, _ _ .- ,
ATTEST:
City Secretary
�
License Agreement for a Portion of Gateway Park
•�F,.
,�, �-w� �.
- � Y, �( ��i � �
� 1
Tyler F. Wallach
Assistant City Attorney
EXHIBIT "A"
PARK
License Agreement for a Portion of Gateway Park 17 of 36
PLOT DATE: 08-28-2073 1:00 P.M.
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PREMISES
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License Agreement for a Portion of Gateway Park 19 of 36
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Area 1
License Agreement for a Partion of Gateway Park 20 of 36
Area 1 sha11 start just east of Beach Street Bridge
along the Trinity Trail, then turn southeast and travel fo
Company's Easement.
Area 2
along the Trinity Trail and travel 203 feet
r approximately 182 feet until reaching the
Area 2 consists of a 100-foot-by-100-foot area that begins immediately adjacent to the southern
boundary of the Company's Easement and that is approximately 617 feet east of the end point of Area
1.
Area 3
Area 3 consists of a 35-foot-by-30-foot area that begins immediately adjacent to the northern
boundary of the Company's Easement and that follows the Company's Easement beginning at the end
point of Area 1, then traveling approximately 913 east, then turning southeast and traveling
approximately 366 feet, then turning east traveling approximately 1,253.713 feet.
EXHIBIT "D"
License Agreement for a Portion of Gateway Park 21 of 36
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EXHIBIT "E"
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License Agreement for a Portion of Gateway Park 22 of 36
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Datu��e to Trees; Remedi�tion Costs
In the event of any c(aii�aRe to trees in connection with Company's operations. Company shall
cotnply with the followin�:
1. In General
The City Forester shall have the ri�,ht to inspect any trees located on the Park for dama��e by
Conipa�iy and, if applicable, will classif}� daula;e to trees as sliRht, tnoderate, or severe as
described below. �
1.1 Standards for MeasurinR
Brauches shall be ►neasurecl at the point of attachment or at the lateral to �vl�ich the branch would
be �runed back under ANSI staudards. Tree caliper shall be measured accordin� to accepted
ii�dustry stanclards. Trees �reater than 6" in caliper shall be ineasured usin�� diameter at breast
hei�ht (DBH).
?.l. SliRht Dam1�e:
Sli�ht damage shall be defined as damlbe that, i❑ the opinion of the City Forester, c�in be
reasonably anticipated to heal. E�amples include, but are not limited to, (i) scarrin; of the trunk
into the cambial layer of up to 2" in width but less tlian 1/3 trunk circumfereiice; ancl (ii)
breaking of liiubs that are less than 2" iu diameter and less th�n I/3 of the trunk caliper.
Remediation costs shall be lssessed at a rate of �100.00 for each instance of slight dama�e.
2.2. Moderate DamaRe:
Moderate dama��e shall be defined as dama�e that, in the opiuion of tl�e City Forester, can
reasonably be anticipated to contribute to poor health and sli�ht to moderate reduction iu
longevity of the tree. Examples include, but are not limited to. (i) scarrin, of the trunk into the
cambial layer �reater tl�an 2" in width but less than I/3 trunk circumfereuce ; and (ii) breakin; of
limbs more thau 2" in dian�eter bt�t less tllau 1/3 of tl�e trunk calipei•.
Remediatioi� costs shall be assessed for each instatice of moderate datna�e at the followiilg rates:
(i) for any tree tl�at is more than 20 iticlies in caliper, tlle greater of:
(Aj one—half of the estirnated value of tlle tree or
(B) ��00.00 per caliper inch;
(ii) for ai�y tree that is less than 20 inches in caliper, �300.00 per caliper inch.
2.3. Severe Dau�a�e:
Severe �lama�e shall be defined <ls daina�e that, in the opinion of tlte City Forester, can
License Agreement for a Portion of Gateway Park 23 of 36
reasoilably be antic�ipated ro co►Itribute to a severe� reduction in lou�evity of the tree oi� otherwise
characterized as a catastrophic injury to the tree. Examples include, but are not limited to, (i)
scari•iria of tl�e trwik to the eambial layer greater ti�an 1/3 tl�e trunk circumference; (ii) tiprooting
a tree or causina a tree to lean; (iii) damage to a scaffoldinb branch or to a braneh areater th<u1
1/3 of trunk caliper; and ('iv) removal of a tree.
Remeciiation costs shall be asse�ssed for e�ch instaitce af seve►-e daina�e at the follo��rina iates:
(i) for any h�ee that is twenty-five (25) inclles oi• Iess in c�liper, tlle appl•aised vahie of the
tree;
(ii) for a»y tree greater than twenty-fi��e (25) inches in caliper, t�vice the appraised value
of the tree.
3. l. Pavment of Remediation Costs
Company shall m�ke paymei�t for nny such damages and nlust �lant repl�cement trees for
severely danlaged trees at a location tc� be determined by the Parks and Conununity Seivices
Department. Replacement sllall be made c�n caliper-inch-per-caliper-inch basis with a minimum
size ►-eplacement tree of 2" in caliper. Compa�iy shall be ►-e�sponsible for the planting watering,
mulchina and inniutenance of replaceroent trees for a period of not less than 2 years. Any tree
that does not suivive the 2 year establishment period shall be compensated for by the Compauy
to the Parks and Commtmity Services Departn�ent at a rate of $200 per caliper inch.
3.2. Applicabilit oy f City's Tree Ordinance
Remediltion costs assessed hereunder constit�ite contractual danlages intended to compensate the
Parks ai�d Canununity Services as f�roperty owner and have i�o bearing on whedier or to what
e,xte►�t any fines may be d�ie under the UrL�an Forestiy Ordii�ance of the Fort Worth Zoning
Ordinance.
EXHIBIT "F"
License Agreement for a Portion of Gateway Park 24 of 36
DRAINAGE IMPROVEMENTS
Creek Crossin�
Energ,�Dissi�ater Details
License Agreement for a Portion of Gateway Park 25 of 36
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License Agreement for a Portion of Gateway Park 28 of 36
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En�ineer Plans
License Agreement for a Portion of Gateway Park 31 of 36
License Agreement for a Partion of Gateway Park 32 of 36
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License Agreement for a Portion of Gateway Park 35 of 36
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