HomeMy WebLinkAboutContract 60266CSC No. 60266
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"), acting by and through its duly
authorized Assistant City Manager, and Kimley-Horn and Associates, Inc., a Texas For -Profit Corporation
("Company"), acting by and through its duly authorized representative. The City and Company herein are
collectively referred to as ("Parties") and individually to as ("Party").
WHEREAS, the City owns public land designated and used as Rockwood Golf Course and
Rockwood Park, located at 701 North University Drive, Fort Worth, Texas 76114 (the "Park");
WHEREAS, as steward of public land, the City has the responsibility to preserve and protect City
parkland;
WHEREAS, the Tarrant Regional Water District is facilitating design of the University Drive
reconstruction project ("Project") to provide flood risk management along the Trinity River and create
valley storage at Rockwood Park and University Drive;
WHEREAS, Company desires to gain access to the Park from University Drive and Rockwood
Lane to conduct a survey for Project design; and
WHEREAS, the City agrees to grant Company temporary access to 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:
License Granted. City hereby grants to Company a non-exclusive license to access and use portions
of the Park as set forth in more detail in Exhibit A, which is attached hereto and incorporated herein
for reference, and in Section 4 below ("Licensed Premises").
2. License Fee. Prior to the start of the License Period (as defined below), Company shall pay TEN
Dollars and No Cents ($10.00) ("License Fee"), payable to the "City of Fort Worth" for the rights
and privileges granted herein. The License Fee shall be due and payable, without demand or offset,
in legal tender of the United States at the Park & Recreation Department ("Department"), Attn:
Lori Gordon, 4200 South Freeway, Suite 2200, Fort Worth, Texas 76115.
3. Term. The Effective Date of this Agreement shall be the date signed by the Assistant City Manager
and for a term of sixty (60) days (the "License Period"), with an option to renew the License Period
once for an additional sixty (60) days, not to exceed one hundred twenty (120) calendar days.
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Temporary License Agreement: Kimley-Horn and Associates — Rockwood Golf Course & Rockwood Park 1 of 13
October 2023
4. Use of the Licensed Premises.
a. Company may use the Licensed Premises for the purpose of performing survey work within
the Park and for reasonable ingress and egress associated with such survey work. The
Licensed Premises shall be used for no other purposes.
b. If it becomes necessary for the Company to excavate any portion of the Licensed Premises,
the Company shall use its best efforts to locate all utilities (including, but not limited to,
electric lines, water lines, sewer lines, storm drains and lines, and gas lines) near the area
of excavation.
c. 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 penalties or fines may occur.
5. Termination. The City may terminate this Agreement, without cause, upon five (5) days written
notice to the Company or immediately upon a breach of this Agreement by the Company.
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 Company's use of the
Licensed Premises as provided herein. This Agreement does not establish any priority for the use
of the Licensed Premises by Company or by any present or future licensees or other permit holders.
In the event of any dispute as to the priority of use of the Licensed Premises, the first priority shall
be to the public generally, the second priority to the City in the performance of its various functions,
and thereafter, as between licensees and other permit holders, as determined by the City in the
exercise of its powers, including the police power and other powers reserved to and conferred on it
by the State of Texas.
7. Liability. Company covenants and agrees to release City, its officers, agents, representatives,
servants, and employees, from and against any and all claims or suits for property damage, personal
injury, or any other type of loss or adverse consequence related in any way to the existence of this
Agreement or the use and occupancy of the Licensed Premises and the Park. Furthermore, City
shall not be liable to Company for any damage or theft of Company's equipment, facilities, or other
contents.
Restoration of the Park. Company agrees that the Company shall repair and restore: (1) the Licensed
Premises; and (2) any City property that the 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 of the Department or that person's designee
("Director"). If Company fails to complete all repairs and restoration to the Licensed Premises and
any other City property prior to the expiration of the Term, City may, in its discretion, perform all
such repairs and restoration on behalf of the Company. In this event, Company will reimburse the
City for the costs of such repairs and restoration, and such reimbursement will be due immediately
upon written request of the City.
Temporary License Agreement: Kimley-Horn and Associates — Rockwood Golf Course & Rockwood Park 2 of 13
October 2023
9. INDEMNIFICATION. COMPANY AGREES TO AND DOES HEREBY DEFEND,
INDEMNIFY AND HOLD HARMLESS THE CITY, AND ITS OFFICERS, AGENTS,
REPRESENTATIVES, AND EMPLOYEES FROM AND AGAINST ANY AND ALL
CLAIMS, LAWSUITS, ACTIONS, COSTS AND EXPENSES OF ANY 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, (h) 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.
10. Insurance. Company shall carry insurance as set out in Exhibit B, which is attached hereto and
incorporated herein for all purpose.
11. Limitation on Use. There shall be no vehicles or motorized equipment on unimproved surfaces
within the Licensed Premises. All vehicles and motorized equipment shall remain on park roads
and parking lots within the Licensed Premises. 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. Cars
and light duty trucks shall not be considered to be heavy equipment. Company agrees that it shall
not cut, clear or remove any vegetation as a part of its efforts to conduct work (See Exhibit C and
D on tree protection and damages). Company shall obtain a permit from the City Forester for
pruning or removal of any trees or vegetation prior to conducting work on City property.
12. 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: Kimley-Horn and Associates — Rockwood Golf Course & Rockwood Park 3 of 13
October 2023
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.
0 M, 1:1WalIas
Director
Park & Recreation Department
City of Fort Worth
4200 South Freeway, Suite 2200
Fort Worth, Texas 76115
With a copy to:
Department of Law
City of Fort Worth
Attn: City Attorney
200 Texas Street
Fort Worth, Texas 76102
To Company:
Kimley-Horn and Associates, Inc.
Attn: Scott R. Arnold
Vice President
801 Cherry Street
Fort Worth, Texas 76102
14. Public Safetv. Company shall be solely responsible for initiating, maintaining, and supervising all
safety precautions and programs in connection with Company's use of the Park.
15. Hazardous Materials. Under no circumstances will 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 Maieure. If either party is unable, either in whole or part, to fulfill its obligations under this
Agreement due to acts of God; strikes, lockouts, or other industrial disturbances; acts of public
enemies; wars; blockades; insurrections; riots; epidemics; public health crises; earthquakes; fires;
floods; restraints or prohibitions by any court, board, department, commission, or agency of the
United States or of any state; declaration of a state of disaster or of emergency by the federal, state,
county, or City government in accordance with applicable law; issuance of an Imminent Threat
Alert or Elevated Threat Alert by the United States Department of Homeland Security or any
equivalent alert system that may be instituted by any agency of the United States; any arrests and
restraints; civil disturbances; or explosions; or some other reason beyond the party's reasonable
control (collectively, "Force Majeure Event"), the obligations so affected by such Force Majeure
Event will be suspended only during the continuance of such event. If a Force Majeure Event
occurs, the City may, in its sole discretion, close or postpone the opening of its community centers,
parks, or other City -owned and operated properties and facilities in the interest of public safety and
operate them as the City sees fit.
Temporary License Agreement: Kimley-Horn and Associates — Rockwood Golf Course & Rockwood Park 4 of 13
October 2023
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.
[SIGNATURE ON FOLLOWING PAGE]
Temporary License Agreement: Kimley-Horn and Associates — Rockwood Golf Course & Rockwood Park 5 of 13
October 2023
By executing this Agreement, Company agrees to and accepts the terms, conditions and provision
contained herein.
CITY OF FORT WORTH:
By: C>—Ctl—�
Jesica McEachern
Assistant City Manager
Date: OU 15, 2023
ISATAI*1i11A N 11 I -VA
Richard Zavala
Director
Park & Recreation Department
By: ,
Joel McElhany
Assistant Director
Park & Recreation Department
APPROVED AS TO FORM
AND LEGALITY:
By:
Taylor Paris
Assistant City Attorney
KIMLEY-HORN AND ASSOCIATES, INC.:
By:
Jtogf�Wd
Scott R. Arnold
Vice President
Date: OCt 4, 2023
ATTESTED BY: agoo FoRrn Contract Compliance Manager:
er:Fl„oe,
pA
By signing I acknowledge that I am the
person responsible for the monitoring and
o ayna�6 zq.,a
By: administration of this contract, including
Jannette Goodall ensuring all performance and reporting
City Secretary requirements.
t5Alvid 8. 94y)-q#
By:
David B. Jodray (Oct 4, 2023 1 : 2 CDT)
David B. Jodray
Park Planner
Contract Authorization: OFFICIAL RECORD
No M&C Required CITY SECRETARY
EXHIBIT A FT. WORTH, TX
Temporary License Agreement: Kimley-Horn and Associates — Rockwood Golf Course & Rockwood Park 6 of 13
October 2023
LICENSED PREMISES - ROCKWOOD PARK & ROCKWOOD GOLF COURSE
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EXHIBIT B
Temporary License Agreement: Kimley-Horn and Associates — Rockwood Golf Course & Rockwood Park 7 of 13
October 2023
INSURANCE
1.01 Dutv to Acauire 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 Tvpes and Amounts of Coverage Reauired
a. Commercial General Liability:
(1) $1,000,000.00 per occurrence, $2,000,000.00 aggregate, including coverage for
the following: (i) Premises Liability; (ii) independent contractors; (iii) products/completed
operations; (iv) personal injury; (v) contractual liability; (vi) explosion, collapse, and
underground property damage
b. Propertv Damage Liabilitv:
(1) $1,000,000.00 per occurrence
C. Umbrella Policy
(1) $5,000,000.00
d. Environmental Impairment Liability (EEL ) and Pollution Liabilitv
(1) $2,000,000 per occurrence
(2) $5,000,000 aggregate
e. Automobile Liabilitv:
(1) $1,000,000.00 Each accident on a combined single -limit basis
£ Worker's Compensation:
(1) As required by law
g. Emplover's Liabilitv:
(1) $1,000,000.00 per accident
1.03 Revisions to Reauired 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: Kimley-Horn and Associates — Rockwood Golf Course & Rockwood Park 8 of 13
October 2023
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 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 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.
END OF SECTION
Temporary License Agreement: Kimley-Horn and Associates — Rockwood Golf Course & Rockwood Park 9 of 13
October 2023
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4 ,r SERVICES DEPT.
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6x6 Timber Matting 4
S" Matting of Mulch i
N.T.S. Tree protection fencing shall be orange
mesh or chain link and installed at the
edge of travel way
TREE ROOT PROTECTION DETAIL
SCALE: N.T.S.
FILE NO. 000
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W { SERVICES oUT, TREE PROTECTION N THE[YI'H DETAIL FILE No:we
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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.
5MMafMdjIoleo we) aI7: urEx" *31111111711xy
1.1. Company will check trees in the Licensed Premises before contract work begins, any damage will
be noted and reported to the Director or his designee.
1.2. The Director, or Director's 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 layer11/2" 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 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 the assessed value of the tree per each instance
of damage.
Temporary License Agreement: Kimley-Horn and Associates — Rockwood Golf Course & Rockwood Park 12 of 13
October 2023
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.
END OF SECTION
Signature: �0. 111`
Email: joel.mcelhany@fortworthtexas.gov
Temporary License Agreement: Kimley-Horn and Associates — Rockwood Golf Course & Rockwood Park 13 of 13
October 2023