HomeMy WebLinkAboutContract 56447 CSC No.56447
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
Cox McLain Environmental Consulting, Inc., a Texas corporation, acting by and through its duly
authorized representative ("Company").
WHEREAS, the City owns certain pieces of property known as Mallard Cove Park,
located at 375 Shadow Grass Avenue, Fort Worth, TX 76120 (the"Park"),respectively;
WHEREAS, Company desires to gain access through and over the Park for the purpose of
performing excavations with a shovel to locate potential cultural sites within the Park;
WHEREAS, Company has represented to the City that there is no feasible alternative
location in which to locate the potential cultural sites; and
WHEREAS, the City has reviewed the Company's request and agrees to grant the
Company access 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 set
forth in more detail in Exhibit A, which is attached hereto and incorporated herein for
reference, and as agreed to by the parties in Section 4 ("Licensed Premises").
2. Term. The term of this Agreement will consist of one (1)license period of thirty (30)days,
commencing upon October 15, 2021 ("Commencement Date") and expiring at 11:59 p.m.
on November 14, 2021 following the Commencement Date ("License Period'). If
Company fails to complete all obligations hereunder in accordance with this Agreement on
or before the expiration of the License Period, including, but not limited to, restoration of
the Licensed Premises or other City property,then Company agrees to extend the License
Period on a month-to-month basis until Company has completed all obligations pursuant
to this Permit. The extension of the License Period shall renew automatically each month
until Company receives notice from the City that all of its obligations under the Permit
have been completed, which notice the City shall not unreasonably withhold.
Notwithstanding anything to the contrary, the City may terminate the extended License
Period at any time and for any reason.
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. Prior to the start of the License Period,
Company shall pay TEN Dollars and No Cents ($ 10.00) ("License Fee") to the City for
OFFICIAL RECORD
Temporary License Agreement—CMEC—Mallard Cove Park
October 2021 CITY SECRETARY
FT. WORTH, TX
the rights and privileges granted herein. The License Fee is due and payable, without
demand or offset,in legal tender of the United States at the Park& Recreation Department
("Department"), Attn: SWR Accounts Payable, 4200 South Freeway, Suite 2200, Fort
Worth, Texas 76115 or such other place in Tarrant County, Texas as the Director of the
Department or that person's designee ("Director") may hereafter notify Licensee (in
writing and with reasonable advanced notice).
4. Use of the Licensed Premises.
a. Company may use the Licensed Premises for the purpose of performing shovel
excavations as shown on the attached Exhibit A. The Licensed Premises shall be
used for no other purposes.
b. With regard to all known water and electric utilities, a Park & Recreation
Department staff will work with Company to locate and physically mark all such
known utilities within the Licensed Premises. If Company encounters any utility
infrastructure (including, but not limited to, electric lines, waterlines, sewer lines,
storm drains and lines, or gas lines) in the course of or in connection with
Company's use of the Licensed Premises,the Company shall provide protection of
the utilities to the satisfaction of the Director, with such protective measures to be
approved by the Director prior the application thereof.
c. The Company shall not washout equipment and or concrete,fill up equipment with
gas or other oils and hydraulics as to create potential spill hazards within the Park.
If this is not adhered to, the agreement can be immediately terminated and
additional fines penalties or fines may occur.
5. Termination. The City may terminate this Agreement for any reason, without cause,upon
five (5) days written notice to the Company or immediately upon a breach of this
Agreement by the Company.
6. Use not Exclusive. This Agreement and all rights granted to Company herein are strictly
non-exclusive. The City reserves the right to enter into and grant other and future licenses,
leases, and other authorizations for use of the Park to other persons and entities as the City
deems appropriate in accordance with applicable law; provided, however, that in granting
subsequent authorization for use, the City will not allow a use that will unreasonably
interfere with the Company's use of the Park as provided herein. This Agreement does not
establish any priority for the use of the Park by Company or by any present or future
licensees or other permit holders. In the event of any dispute as to the priority of use of the
Park,the first priority shall be to the public generally,the second priority to the City in the
performance of its various functions, and thereafter, as between licensees and other permit
holders, as determined by the City in the exercise of its powers,including the police power
and other powers reserved to and conferred on it by the State of Texas.
7. Liabili . 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.
Temporary License Agreement—CMEC—Mallard Cove Park 2 of 17
October 2021
8. Restoration of the Park. Company agrees that Company will 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.
9. INDEMNIFICATION.
A. COMPANY AGREES TO PAY CITY FOR ALL DAMAGES SUFFERED
OR INCURRED BY CITY, EITHER DIRECTLY OR INDIRECTLY, AS A
RESULT OF ANY OPERATIONS ON OR FROM THE LICENSED PREMISES
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, PIPELINES, UTLITIES, AND ALL OTHER PROPERTY
WHETHER REAL OR PERSONAL.
B. 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 HIND,
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.
C. Environmental Indemnification. COMPANY DOES HEREBY RELEASE,
INDEMNIFY, DEFEND, REIMBURSE, AND HOLD HARMLESS THE CITY,
ITS OFFICERS,AGENTS,REPRESENTATIVES,AND EMPLOYEES,FROM
AND AGAINST ANY AND ALL ENVIRONMENTAL DAMAGES AND THE
VIOLATION OF ANY AND ALL ENVIRONMENTAL REQUIREMENTS
RESULTING FROM COMPANY'S OPERATIONS UNDER THIS PERMIT
WHEN SUCH ENVIRONMENTAL DAMAGES OR VIOLATION OF
ENVIRONMENTAL REQUIREMENTS ARE CAUSED BY THE ACT OR
OMISSION OF COMPANY, ITS OFFICERS, AGENTS, EMPLOYEES, OR
CONTRACTORS, OR THE JOINT ACT OR OMISSION OF COMPANY, ITS
OFFICERS, AGENTS, EMPLOYEES, OR CONTRACTORS AND ANY
OTHER PERSON OR ENTITY.
i. For purposes of the environmental indemnification, the words and phrases
shall be defined as follows:
Temporary License Agreement—CMEC—Mallard Cove Park 3 of 17
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I. Environmental Damages shall mean all claims, judgments,
damages, losses, penalties, fines, liabilities (including strict
liability), encumbrances, liens costs, and expenses of investigation
and defense of any claim, whether or not such claim is ultimately
defeated, and of any good faith settlement of judgment, of whatever
kind or nature, contingent or otherwise, matured or unmatured,
foreseeable or unforeseeable, including without limitation
reasonable attorney's fees and disbursements and consultant's fees,
any of which are incurred as a result of the existence of a violation
of environmental requirements pertaining to work performed under
this contract or by the operations of the Company and its
subcontractors, and including without limitation:
(a) Damages for personal injury and death, or injury to property
or natural resources;
(b) Fees incurred for the services of attorneys, consultants,
contractors, experts, laboratories and investigation or
remediation of the monitoring wells or any violation of
environmental requirements including,but not limited to,the
preparation of any feasibility studies or reports of the
performance of any cleanup, remediation, removal,
response, abatement, containment, closure, restoration or
monitoring work required by any federal, state or local
governmental agency or political subdivision, or otherwise
expended in connection with the existence of such
monitoring wells or violations or environmental
requirements, and including without limitation any
attorney's fees,costs and expenses incurred in enforcing this
contract or collecting any sums due hereunder; and
(c) Liability to any third person or governmental agency to
indemnify such person or agency for costs expended in
connection with the items referenced in subparagraph (b)
herein.
II. Environmental Requirements shall mean all applicable present and
future statutes,regulations,rules,plans,authorizations,concessions,
franchises, and similar items, of all governmental agencies,
departments, commissions, boards, bureaus, or instrumentalities of
the United States, states, and political subdivisions thereof and all
applicable judicial, administrative, and regulatory decrees,
judgments, and orders relating to the protection of human health or
the environment, including without limitation:
Temporary License Agreement—CMEC—Mallard Cove Park 4 of 17
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(a) All requirements, including, but not limited to, those
pertaining to reporting, licensing, emissions, discharges,
releases, or threatened releases of hazardous materials,
pollutants, contaminants or hazardous or toxic substances,
materials, or wastes whether solid, liquid, or gaseous in
nature, into the air, surface water, groundwater, stormwater,
or land, or relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport, or
handling of pollutants, contaminants, or hazardous or toxic
substances, materials, or wastes, whether solid, liquid, or
gaseous in nature; and
(b) All requirements pertaining to the protection of the health
and safety of employees or the public.
d. 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, 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 Licensed
Premises.
e. 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
while on the Licensed Premises.
10. Limitation on Use. There shall be no equipment on the Park within 72 hours of a rain
event. The Company shall obtain the written approval of the Director 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. The
Company agrees that it shall not cut, clear or remove any vegetation as a part of it efforts
to conduct work (See Exhibit C & D on tree protection and damages). All Company
equipment and materials shall be placed and maintained solely within the confines of the
Licensed Premises. Use of any portion of the Park outside of the Licensed Premises shall
not be permitted. 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.
11. Compliance with Laws. Company shall, at its own cost and expense, comply with all
applicable laws, including, but not limited to, existing zoning ordinances, governmental
rules and regulations enacted or promulgated by any governmental authority and shall
promptly execute and fulfill all orders and requirements imposed by such governmental
entities for the correction,prevention and abatement of nuisances in or upon or connected
with said premises because of Company's use thereof.
Temporary License Agreement—CMEC—Mallard Cove Park 5 of 17
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12. Insurance. Company shall carry insurance as set out in Exhibit B,which is attached hereto
and incorporated herein for all purpose.
13. Notice. All notices required or permitted under this Agreement shall be conclusively
determined to have been delivered when (i) hand-delivered to the other party, its agent,
employee, servant, or representative, or (ii) received by the other party by reliable
overnight courier or United States Mail, postage prepaid, return receipt requested, at the
address stated below or to such other address as one party may from time to time notify the
other in writing.
To THE CITY: To COMPANY:
Director President
Park& Recreation Department Cox/McLain Environmental Consulting, Inc.
City of Fort Worth 600 E. John Carpenter Freeway, Suite 186
4200 South Freeway, Suite 2200 Irving, Texas 75062
Fort Worth, Texas 76115
With a copy to:
Department of Law
City of Fort Worth
Attn: City Attorney
1000 Throckmorton
Fort Worth, Texas 76102
14. Public Safety. Company shall be solely responsible for initiating, maintaining, and
supervising all safety precautions and programs in connection with the Company's use of
the Park-Company shall also take all necessary precautions and shall provide all necessary
protection to prevent damage, injury, or loss to (a) all persons accessing portions of the
Licensed Premises on which any construction is being performed by or on behalf of the
Company; (b) all work performed on or from the Licensed Premises and all materials and
equipment to be incorporated therein that are under the 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.
15. Hazardous Materials. Under no circumstances will the Company use or cause to be used
on the Park any hazardous or toxic substances or materials, or intentionally or knowingly
store or dispose of any such substances or materials on the Park.
16. Force Majeure. If either party is unable, either in whole or part, to fulfill its obligations
under this Agreement due to acts of God; strikes,lockouts,or other industrial disturbances;
acts of public enemies; wars; blockades; insurrections; riots; epidemics; public health
crises; earthquakes;fires;floods;restraints or prohibitions by any court,board,department,
commission, or agency of the United States or of any state; declaration of a state of disaster
Temporary License Agreement—CMEC—Mallard Cove Park 6 of 17
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or of emergency by the federal, state, county, or City government in accordance with
applicable law; issuance of an Imminent Threat Alert or Elevated Threat Alert by the
United States Department of Homeland Security or any equivalent alert system that may
be instituted by any agency of the United States; any arrests and restraints; civil
disturbances; or explosions; or some other reason beyond the party's reasonable control
(collectively, "Force Majeure Event"), the obligations so affected by such Force Majeure
Event will be suspended only during the continuance of such event. If a Force Majeure
Event occurs, the City may, in its sole discretion, close or postpone the opening of its
community centers,parks,or other City-owned and operated properties and facilities in the
interest of public safety and operate them as the City sees fit.
17. Choice of Law;Venue. This Agreement shall be governed by and construed in accordance
with the laws of the State of Texas. If any action, whether real or asserted, at law or in
equity, arises on the basis of any provision of this Agreement, venue for such action shall
lie in state courts located in Tarrant County, Texas or the United States District Court for
the Northern District of Texas - Fort Worth Division.
18. 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.
19. Entire Agreement. This Agreement contains all of the agreements between the parties
respecting the subject matter hereof, and no prior representations or statements, verbal or
written,have been made modifying, adding to, or changing the terms of this instrument.
20.No Waiver of Immunity. Nothing herein shall be deemed to limit or waive the sovereign
or governmental immunity of City or Company.
21. Assignment. This Agreement,in whole or in part,is not assignable by either party,without
the express written consent of the other party. Any attempt to assign this Agreement
without the required consent is void and without force and effect.
22. 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.
23. Taxes. Company acknowledges and agrees that it shall be solely responsible for paying all
taxes assessed or imposed by any governmental entity in connection with the construction,
installation, operation, maintenance, repair, or reconstruction of the pipeline and with the
Temporary License Agreement—CMEC—Mallard Cove Park 7 of 17
October 2021
use of the Licensed Premises or other City property related to activities within the scope of
this Agreement.
24. Minimizing Impact to Vegetation.
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 and as outlined in accordance with
Exhibit E, which is attached hereto and incorporated herein for all purposes. Company
shall notify the Director once the tree and vegetation protection measures have been
installed and allow the Director an opportunity to inspect the work before construction
begins. The City shall have at least two (2) business days following the date on which
notice is received to conduct its inspection. The Company may begin construction after the
second(2nd)business day following the date on which it provided notice to the City unless
the City contacts the Company and identifies specific issues that render the tree and
vegetation protection measures unacceptable.
b. Company shall ensure that tree protection fencing remains in place throughout the
License Period or any extended License Period. If any tree within the Park is damaged in
connection with Company's operations,Company agrees to undertake remediation efforts,
including paying of remediation costs, in accordance with Exhibit C, 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.
25. Minimizing Impact to Utilities.
a. 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.
26. Protection of the Environment.
a. Company hereby represents and warrants that it shall not knowingly, nor permit
any third party to,use,handle, or store any Hazardous Materials on,under, over, or
about Park or the Licensed Premises in violation of any applicable laws. Company
shall not handle or store any Hazardous Materials on the Licensed Premises or the
Park, except that the Company may, in compliance with applicable environmental
laws and the terms of this paragraph, use and store Hazardous Materials in such
amounts and types that are commonly used in connection with the uses permitted
herein,provided,however,that Company specifically agrees to remove any and all
such Hazardous Materials on or before the final day of the License Period.
Company shall not introduce, use, generate, store, accept, or dispose of on, under,
or about, transport across, or permit to exist on the Licensed Premises or the Park
any"treatment,storage or disposal facility"or"underground storage tank,"as those
terms are defined under applicable environmental laws. For purposes of this
Temporary License Agreement—CMEC—Mallard Cove Park 8 of 17
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Permit,"Hazardous Materials"shall mean potentially dangerous hazardous wastes,
toxic substances, or related materials, including, but not limited to, pollutants;
asbestos; polychlorinated biphenyl (PCB); petroleum or other fuels (including
crude oil or any fraction or derivative thereof); underground storage tanks, and
substances considered hazardous, toxic, or the equivalent pursuant to applicable
laws. Any Hazardous Materials used by the Company on the Licensed Premises
shall be posted on site and a list shall be given to City.
b. Company shall take commercially reasonable steps to avoid creating or aggravating
any condition at the Park or the Licensed Premises that could present a threat to
human health or to the environment.
[SIGNATURES ON FOLLOWING PAGE]
Temporary License Agreement—CMEC—Mallard Cove Park 9 of 17
October 2021
[Executed effective as of the date signed by the City Secretary below.] / [ACCEPTED AND
AGREED:]
City: Company:
By: Richard Zavala(Oct 8,202116:09 CDT) By:
Name: Richard Zavala* Name: Ashley McLain,President
Title: Director,Park&Recreation Department Title: Authorized Agent
Date: Oct 8, 2021 Date: Oct 8, 2021
* 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.
CITY OF FORT WORTH INTERNAL ROUTING PROCESS:
Approved as to Form and Legality: Contract Compliance Manager:
By signing I acknowledge that I am the person
responsible for the monitoring and administration
of this contract,including ensuring all
By: performance and reporting requirements.
Name: Taylor C. Paris
Title: Assistant City Attorney By: Christina Moon(Oct 8,202113:55 CDT)
Name: Christina Moon
Title: Park Planner
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°°°°°°°°° a Name: Ron Gonzales
ill�EXAso� Title: Acting City Secretary
OFFICIAL RECORD
CITY SECRETARY
Temporary License Agreement—CMEC—Mallard Cove Park
October 2021 FT. (NORTH, TX
Exhibit A
Licensed Premises
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Proposed Shovel Tests
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Depth 2- o
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101
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Area of Potential Effects '. Win
(APE)=7.3 Acres
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Area of Potential Effects
(APE) = 7.3 Acres
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- Proposed Fill
Proposed Grading and
Floodplain Benching
0 300 600
Feet Proposed Excavation
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CITY OF FORT WORTH i12G1�
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FAEESE AND NICHOLS,INC IV DALE
801 Cherry St,Suite 2800
FortWorth,TA 76102 ors��uEo
Phone-(817]735-73Do S Proposed Impacts OMrrE HH" FIGURE
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Temporary License Agreement—CMEC—Mallard Cove Park 11 of 17
October 2021
Exhibit B
Insurance
1.01 Du, 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: (1)Premises Liability;(n)independent contractors;(111)products/completed
operations; (iv) personal injury; (v) contractual liability; (vi) explosion, collapse, and
underground property damage
b. Propelly Damage Liability:
(1) $1,000,000.00 per occurrence
C. Umbrella Policy
(1) $4,000,000.00
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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—CMEC—Mallard Cove Park 12 of 17
October 2021
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—CMEC—Mallard Cove Park 13 of 17
October 2021
EXHIBIT C
TREE PROTECTION
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Temporary License Agreement—CMEC—Mallard Cove Park 14 of 17
October 2021
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Temporary License Agreement—CMEC—Mallard Cove Park 15 of 17
October 2021
EXHIBIT D
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
I.I. 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
are not limited to, scaring of the trunk into the cambial layer greater than 2" but less than
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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 1/2 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.
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