Loading...
HomeMy WebLinkAboutContract 60504STORM WATER DETENTION POND MAINTENANCE SERVICES AGREEMENT Page 1 of 22 SUN VALLEY INDUSTRIAL PARK, L.P. Date Received: _______________ City Contract Time Received: _______________ Number: __________________ STORM WATER DETENTION POND MAINTENANCE SERVICES AGREEMENT BETWEEN THE CITY OF FORT WORTH, TEXAS AND SUN VALLEY INDUSTRIAL PARK, L.P. This STORM WATER DETENTION POND MAINTENANCE SERVICES AGREEMENT (“Agreement”) is made by and between the City of Fort Worth, a home-rule municipal corporation of the State of Texas (“City”), acting by and through its duly authorized representative, and Sun Valley Industrial Park, L.P. (“Adopter”), acting by and through its duly authorized representative. RECITALS WHEREAS, the City will own a storm water detention pond (“Detention Pond”) located on land owned by the City, more specifically described as Lot 24X, Block1, Sun Valley Addition, of the City of Fort Worth, Texas (“Land”), which is more specifically identified in Exhibit “A” which is attached hereto and incorporated herein for all purposes; and WHEREAS, the Detention Pond was constructed pursuant to a Community Facilities Agreement between the City and Sun Valley Developers, LLC, City Secretary Contract No. 52536, by contractors hired by Adopter; and WHEREAS, ownership of the Detention Pond and Land has transferred to the City and the City is responsible for maintenance of the Detention Pond and the Land; and WHEREAS, Adopter has been providing maintenance and landscaping for the Detention Pond and Land since construction was completed, but prior to the transfer of ownership of the Detention Pond and Land to the City; and WHEREAS, Adopter desires to enter into an agreement with the City to provide supplemental elective maintenance of the pre-cast screening wall on the Land and the decorative fence surrounding the Detention Pond; and WHEREAS, Adopter desires to enter into an agreement with the City to provide supplemental elective maintenance and landscaping for the Detention Pond and Land that exceeds the level of maintenance and landscaping the City would normally provide; and WHEREAS, the City will benefit from the supplemental elective maintenance provided by Adopter for the Detention Pond and Land by having a more aesthetically attractive City facility. NOW THEREFORE, City and Adopter for and in consideration of the covenants and agreements contained herein, the sufficiency of which is hereby acknowledged, agree as follows: STORM WATER DETENTION POND MAINTENANCE SERVICES AGREEMENT Page 2 of 22 SUN VALLEY INDUSTRIAL PARK, L.P. SECTION 1 INCORPORATION OF RECITALS 1.01 The above Recitals are deemed to be incorporated herein by reference and made a part hereof. SECTION 2 DUTIES AND RESPONSIBILITIES 2.01 Adopter may, at its sole cost and expense, provide the Supplemental Elective Services (as hereinafter defined) in accordance with this Agreement and its attachments and all applicable laws. In providing the Supplemental Elective Services, Adopter shall take such steps as are appropriate to ensure that the Supplemental Elective Services are properly coordinated with any related work performed or to be performed by the City. Any modifications, including any additions to the facility and any supporting features of the Land or Detention Pond shall be submitted to the City’s Director of the Transportation & Public Works Department or that person’s designee (“Director”) not less than sixty (60) calendar days prior to the anticipated implementation or start date of any such plans. 2.02 Adopter represents that it has or will secure, at its own expense, all materials, supplies, machinery, equipment, tools, superintendence, labor, personnel, insurance (if required), and other accessories and services necessary to provide the following Supplemental Elective Services in accordance with this Agreement. The following checked items shall constitute the services to be provided by the Adopter and shall be referred to as the “Supplemental Elective Services”: Maintain and repair the metal fence surrounding the Detention Pond. Adopter shall provide the City with a copy of the key for the lock on the gate to the fence. Maintain and repair the pre-cast screening wall, owned by Adopter, which is located on the Land, as required by the deed of the Land to the City. Collect and properly dispose of all trash, garbage, litter, and debris on a monthly basis. Maintain and operate underground irrigation systems and any associated additions in accordance with any plans approved by the Director. All irrigation systems, including any system additions, shall beinstalled and maintained by a licensed irrigator that is approved by the Director. Maintenance shall include, without limitation, any and all necessary and ordinary upkeep and repairs to ensure that the entire irrigation system is functioning properly. To the extent that Adopter installs an irrigation system, such system will become the property of the City after installation, but shall be entirely maintained and operated by the Adopter during the term of this Agreement. Should this Agreement terminate or expire, Adopter grants to City the authority to remove the water meter and cease use of the irrigation system on the Land. STORM WATER DETENTION POND MAINTENANCE SERVICES AGREEMENT Page 3 of 22 SUN VALLEY INDUSTRIAL PARK, L.P. i. Adopter shall adhere to the “Water Rationing and Conservation Procedures” that are attached hereto as Exhibit B and incorporated herein by reference to the extent that it is a part of the Supplemental Elective Services to be provided under this Agreement. ii. Adopter shall not allow the irrigation systems to run during wet and rainy weather or during freezing temperatures. iii. Adopter shall provide City with a copy of the key for access to the irrigation controller. Pay for all electrical hookups, electricity, water impact, water tap and meter fees, and water usage. Mow, edge and trim weeds no less than one time per month between April and October of each year. Apply pesticides and fertilizer. Rake and remove cut grass and weeds. Trim and remove weeds on the Land. Edge sidewalks and curbs and remove debris. Adopter shall not allow debris and clippings from mowing, edging, trimming, pruning, and other related maintenance to be blown into any roads, drives, boulevards, or similar areas. Spread sand or topsoil where specified by the Director when applicable. Install, maintain, and replace all trees, plantings and planting material on the Land, including, but not limited to, watering shrubs, grass, and trees, in accordance with the plans approved by the Director. No trees shall be planted in the Detention Pond storage area. Adhere to the “Guidelines for Landscaping in Parkway” as set forth in Exhibit D, which is attached hereto and incorporated herein by reference to the extent that it is a part of the Supplemental Elective Services to be provided under this Agreement. Keep vegetation in the detention pond at a height no taller than 12 inches at all times. 2.03 Plans for all Supplemental Elective Services and planting materials shall be submitted to the City’s Director of the Transportation & Public Works Department or that person’s designee (“Director”) not less than sixty (60) calendar days prior to the anticipated implementation or start date of any such plans. To the extent that the Adopter desires to revise any such plans or provide additional plans, then the Adopter must do so not less than sixty (60) calendar days prior to the STORM WATER DETENTION POND MAINTENANCE SERVICES AGREEMENT Page 4 of 22 SUN VALLEY INDUSTRIAL PARK, L.P. anticipated implementation or start date related to any such plans. No Supplemental Elective Services shall commence until written approval of the plans has been granted by the Director. Any Services performed by Adopter prior to written approval from the Director may be stopped at the discretion of the Director and subject to removal and replacement by Adopter at the Adopter’s sole cost and expense. 2.04 The City will make inspections to determine compliance with this Agreement. In the event the City observes non-compliance, Adopter will be notified and shall be given a period of time, not to exceed 30 days from the date of notification by the City, to correct the problem. 2.05 Exhibits B and C shall be attached to this Agreement but shall only be made a part of and incorporated into this Agreement to the extent that either or both, as applicable, are included within the Supplemental Elective Services to be provided. 2.06 In the event that any City-owned property, including, but not limited to, utilities, improvements, equipment, turf, and the like are damaged or destroyed by the Adopter during the performance of the Supplemental Elective Services, Adopter shall be solely responsible for all repairs or replacements and any costs related thereto. The Director shall determine whether any damage has been done, the amount of the damage, the reasonable costs of repairing the damage, and whether Adopter is responsible. The Director shall be the sole judge of the damage to the Detention Pond and Land, in which judgment shall be exercised reasonably. Any damage by Adopter shall be repaired or replaced by Adopter to the reasonable satisfaction of the Director within thirty (30) calendar days after the City sends written notice of such damage or within such time as agreed to otherwise by the parties in writing. If the Adopter fails to remedy the damages in the time set forth above, then the Adopter agrees to reimburse the City for any costs incurred by the City in repairing or replacing such damage, with any such amount to be due and payable to the City within thirty (30) calendar days after the City sends a written invoice to the Adopter detailing such costs. 2.07 Adopter understands and agrees that the trees and metal fencing surrounding the Detention Pond that were installed pursuant to the Community Facilities Agreement (“Features”) are of a higher quality than standard City features and require a higher level of maintenance than the City normally provides. Adopter agrees that these Features are owned by the City and the City makes no guarantee that they will be maintained by the City or remain on the Land. Nothing contained in this Agreement shall limit the City’s ability to remove the Features or replace them with features meeting City’s normal standards. 2.08 City shall be responsible for maintaining the Detention Pond in accordance with the City’s standard maintenance schedule which currently includes: Mowing the Detention Pond turf at least once every 6 months. Removing silt from the Detention Pond when storage volume is reduced by 10% of the designed storage volume. STORM WATER DETENTION POND MAINTENANCE SERVICES AGREEMENT Page 5 of 22 SUN VALLEY INDUSTRIAL PARK, L.P. Performing maintenance to ensure no standing water is in the Detention Pond and the pond drains completely within 72 hours. SECTION 3 TERM OF AGREEMENT 3.01 This Agreement is for a term of five (5) years effective beginning on September 20, 2023 and ending on September 19, 2028 (“Primary Term”). The Primary Term may be renewed by mutual agreement of the parties for five (5) successive five-year terms under the same conditions and terms of this Agreement (“Renewal Term”). Adopter must advise the City in writing of its intent to renew this Agreement at least thirty (30) calendar days, but no earlier than ninety (90) calendar days, prior to the termination date of the Primary Term or each Renewal Term, as applicable. SECTION 4 ALTERATIONS AND ADDITIONS 4.01 Adopter shall not make or cause to be made any alterations, additions, or improvements to City property without the prior written consent of the Director. Adopter shall present to the Director any plans and specifications for such alterations, additions, and improvements at the time such approval is sought. The Director reserves the right to either approve or disapprove of such plans, either in whole or in part, as may be necessary in its sole and absolute discretion. Any alterations, additions, or improvements shall be consistent with the Supplemental Elective Services, to be provided in this Agreement. If Adopter desires to make any alterations, additions or improvements outside of the scope of Services set forth in this Agreement, then the parties will need to address any such alterations, additions, or improvements through an amendment to this Agreement. 4.02 All alterations, additions, and improvements to City property made with the written consent of the Director shall, upon completion and acceptance by the Director, become the property of the City. Adopter may be required to remove, at its expense, any alterations, additions, or improvements not meeting specifications as approved by the Director. SECTION 5 RIGHT OF ACCESS 5.01 The City does not relinquish the right to control the management of the Detention Pond or Land, or the right to enforce all necessary and proper rules for the management and operation of the same. The City through its City Manager, Director, Police and Fire personnel, and other designated representatives, has the right at any time to enter any portion of the Detention Pond or Land (without causing or constituting a termination of the use or an interference of the use of the Detention Pond or Land by Adopter) for the purpose of inspecting and maintaining the same and doing any and all activities necessary for the proper conduct and operation of public property; provided, this shall not authorize or empower City to direct the activities of Adopter or assume liability for Adopter’s activities. STORM WATER DETENTION POND MAINTENANCE SERVICES AGREEMENT Page 6 of 22 SUN VALLEY INDUSTRIAL PARK, L.P. 5.02 The Director reserves the right to modify or remove any improvements made by Adopter on the Detention Pond or Land as determined necessary by the Director. SECTION 6 INDEMNIFICATION 6.01 ADOPTER AGREES TO AND DOES HEREBY DEFEND, INDEMNIFY, AND HOLD THE CITY, ITS OFFICERS, AGENTS, REPRESENTATIVES, AND EMPLOYEES HARMLESS AGAINST ANY AND ALL CLAIMS, LAWSUITS, ACTIONS, COSTS, AND EXPENSES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS AND PERSONAL INJURY (INCLUDING, BUT NOT LIMITED TO, DEATH), THAT MAY RELATE TO, ARISE OUT OF OR BE OCCASIONED BY (i) ADOPTER’S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR (ii) ANY ACT OR OMISSION OF ADOPTER, ITS OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES, CONTRACTORS (OTHER THAN THE CITY) OR SUBCONTRACTORS, RELATED TO THE SUPPLEMENTAL ELECTIVE SERVICES, AND THE INSTALLATION AND MAINTENANCE OF ANY IMPROVEMENTS ON THE DETENTION POND OR LAND, OR THE PERFORMANCE OF THIS AGREEMENT; EXCEPT THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL NOT APPLY TO ANY LIABILITY RESULTING FROM THE SOLE NEGLIGENCE OR WRONGFUL, WILLFUL ACTS OF THE CITY OR ITS OFFICERS, AGENTS, EMPLOYEES, OR SEPARATE CONTRACTORS, AND IN THE EVENT OF JOINT AND CONCURRENT NEGLIGENCE OR WRONGFUL, WILLFUL ACTS OF BOTH ADOPTER AND CITY OR ITS OFFICERS, AGENTS, EMPLOYEES, OR SEPARATE CONTRACTORS, RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. 6.02 Adopter covenants and agrees that the City shall in no way nor under any circumstances be responsible for any property belonging to Adopter, its members, employees, agents, contractors, subcontractors, invitees, licensees, or trespassers, which may be stolen, destroyed, or in any way damaged. The City does not guarantee police protection and will not be liable for any loss or damage sustained by Adopter, its members, employees, affiliates, agents, contractors, subcontractors, invitees, licensees, or trespassers on the Detention Pond or Land. 6.03 Adopter agrees to forever release and waive all claims against the City, its departments, officers, agents, employees, and representatives for any and all claims, lawsuits, damages, and liabilities, including, but not limited to, personal injury (including, but not limited to, death) and property damage or loss, from any act or omission of Adopter, its employees, officers, agents, affiliates, representatives, and volunteers in connection with this Agreement. Adopter shall ensure that each and every community participant or volunteer that assists the Adopter in the fulfillment of this Agreement executes the City’s release, waiver, and indemnification agreement before providing or performing any Supplemental Elective Services on the Detention Pond or Land, a copy of which is attached hereto as Exhibit E. Adopter shall retain a copy of said agreement during the term of this Agreement and for three years thereafter and shall provide the City with all originals upon request. Adopter acknowledges and understands that the waiver, release, and STORM WATER DETENTION POND MAINTENANCE SERVICES AGREEMENT Page 7 of 22 SUN VALLEY INDUSTRIAL PARK, L.P. indemnification agreement attached as Exhibit E is only effective for one year from the date of signature of each individual community participants; therefore, Adopter shall ensure that each community participant is current prior to allowing that person to provide or perform any Supplemental Elective Services on the Detention Pond or Land. 6.04 It is further agreed that the acceptance of this release shall not constitute a waiver by the City of Fort Worth of any defense of governmental immunity, where applicable, or any other defense recognized by the Statutes and Court decisions of this State. SECTION 7 INSURANCE 7.01 The City will not require insurance under this Agreement unless the fulfillment of any of the Supplemental Elective Services requires the use of a contractor or riding equipment, which may include, without limitation, a riding lawnmower or bulldozer or a similar piece of riding equipment. If the performance of the Supplemental Elective Services requires the use of a contractor, then the contractor must have, at a minimum, insurance coverage as detailed below. Likewise, if the Adopter desires to use riding equipment to perform the Supplemental Elective Services, then the Adopter must have, at a minimum, insurance coverage as detailed below. Prior to commencing any work, the Adopter or its contractor (as applicable) shall deliver to City, certificates documenting this coverage. The City may elect to have the Adopter or its contractor submit its entire policy for inspection. All insurance must be maintained through the term that such activities take place on the Detention Pond and Land. a. Insurance Coverage and Limits: i. Commercial General Liability Insurance $1,000,000 each occurrence ii. $2,000,000 aggregate b. Automobile Liability Insurance: i. Coverage on vehicles involved in the work performed under this contract: $1,000,000 per accident on a combined single limit basis or: $500,000 bodily injury each person; $1,000,000 bodily injury each accident; and $250,000 property damage. ii. The named insured and employees of Adopter or its contractor shall be covered under this policy. The City of Fort Worth shall be named an Additional Insured, as its interests may appear. Liability for damage occurring while loading, unloading and transporting materials collected under the Agreement shall be included under this policy. c. Worker's Compensation: i. Coverage A: statutory limits ii. Coverage B: $100,000 each accident STORM WATER DETENTION POND MAINTENANCE SERVICES AGREEMENT Page 8 of 22 SUN VALLEY INDUSTRIAL PARK, L.P. iii. $500,000 disease -policy limit iv. $100,000 disease -each employee d. Miscellaneous i. Applicable policies shall be endorsed to name the City an Additional Insured thereon, as its interests may appear. The term City shall include its employees, officers, officials, agents, and volunteers. ii. Certificate(s) of Insurance shall document that insurance coverage specified herein are provided under applicable policies documented thereon. iii. Any failure on part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirements. iv. A minimum of thirty (30) days’ notice of cancellation or material change in coverage shall be provided to the City. A ten (10) days’ notice shall be acceptable in the event of non-payment of premium. Such terms shall be endorsed onto Adopter’s or its contractor’s insurance policies. Notice shall be sent as prescribed in Section 14 and to the Department of Financial Management Services - Risk Management Division, City of Fort Worth, 200 Texas Street, Fort Worth, Texas, 76102. v. Insurers for all policies must be authorized to do business in the state of Texas or be otherwise approved by the City; and, such insurers shall be acceptable to the City in terms of their financial strength and solvency. vi. Deductible limits, or self-insured retentions, affecting insurance required herein shall be acceptable to the City in its sole discretion; and, in lieu of traditional insurance, any alternative coverage maintained through insurance pools or risk retention groups also must be approved. Dedicated financial resources or Letters of Credit may also be acceptable to the City. vii. Applicable policies shall each be endorsed with a waiver of subrogation in favor of the City. viii. The City shall be entitled, upon its request and without incurring expense, to review the Adopter’s or its contractor’s insurance policies including endorsements thereto and, at the City's discretion the Adopter or its contractor may be required to provide proof of insurance premium payments. ix. The Commercial General Liability insurance policy shall have no exclusions by endorsements unless the City approves such exclusions. x. The City shall not be responsible for the direct payment of any insurance premiums required by the contract. xi. All insurance required above shall be written on an occurrence basis in order to be approved by the City. xii. Adopters that do not have employees or automobiles will not be required to obtain Auto Liability or Worker’s Compensation insurance. SECTION 8 CHARITABLE ORGANIZATION 8.01 Adopter agrees that, if it is a charitable organization, corporation, entity or individual enterprise having, claiming or entitled to any immunity, exemption (statutory or otherwise) or STORM WATER DETENTION POND MAINTENANCE SERVICES AGREEMENT Page 9 of 22 SUN VALLEY INDUSTRIAL PARK, L.P. limitation from and against liability for damage or injury to property or persons under the provisions of the Charitable Immunity and Liability Act of 1987, C.P.R.C., § 84.001 et seq., or other applicable law, that Adopter hereby expressly waives its right to assert or plead defensively any such immunity or limitation of liability as against City. If applicable, Adopter annually shall submit proof of 501(c)(3) eligibility to the City. SECTION 9 INDEPENDENT CONTRACTOR 9.01 Adopter shall perform the Supplemental Elective Services hereunder as an independent contractor, and not as an officer, agent, servant or employee of the City. Adopter shall have exclusive control of, and the exclusive right to control the details of the work performed hereunder, and all persons performing same, and shall be solely responsible for the acts and omissions of its officers, agents, employees, contractors, and subconsultants (or subcontractors). Nothing herein shall be construed as creating a partnership or joint venture between the City and Adopter, its officers, agents, employees, contractors, and subconsultants (or subcontractors), and doctrine of respondent superior has no application as between the City and Adopter. SECTION 10 LICENSES AND PERMITS 10.1 Adopter shall comply with all federal, state, and local laws, rules, and regulations, as well as with all regulations, restrictions, and requirements of the Police, Fire, and Code Compliance Departments now or hereafter in effect which are applicable to its operations. Adopter shall obtain and keep in effect at its own cost and expense all licenses and permits, and pay all taxes incurred or required in connection with this Agreement and its operations hereunder. SECTION 11 LIENS 11.01 Adopter agrees not to take any action that would result in the creation of any lien on City property. In the event that a lien is filed, as a result of any action of Adopter, Adopter will take all necessary steps to bond around or remove the lien within ten (10) days of its filing. SECTION 12 TERMINATION AND DEFAULT 12.01 Either party may terminate this Agreement without cause by the giving of 30 (thirty) days’ notice in writing to the other party. 12.02 Adopter shall be in default under this Agreement if Adopter breaches any term or condition of this Agreement and such breach remain uncured after thirty (30) calendar days following receipt of written notice from the City referencing this Agreement or within a time period otherwise agreed to by the parties in writing. After notice and opportunity to cure as provided in this Agreement, the City shall have the right, and without further notice, to declare this Agreement immediately terminated and to enter into and take full possession of the Detention Pond save and except such personal property and equipment as may be owned by Adopter. In the event of such termination of this Agreement by the City, all rights and privileges of Adopter hereunder shall cease and STORM WATER DETENTION POND MAINTENANCE SERVICES AGREEMENT Page 10 of 22 SUN VALLEY INDUSTRIAL PARK, L.P. terminate and Adopter shall immediately vacate the Detention Pond and Land and remove any and all personal property belonging to the Adopter. 12.03 Adopter understands and agrees that should this Agreement be terminated, the City will provide base level maintenance on the Detention Pond and Land. Adopter further understands that base level maintenance may not provide the same level of aesthetic quality for the Detention Pond and Land that can be achieved by Adopter performing the Supplemental Elective Services. SECTION 13 NON-DISCRIMINATION/DISABILITIES 13.01 Adopter, in its construction, maintenance, occupancy, or use of said Detention Pond shall not discriminate against any person or persons because of race, age, gender, religion, color, national origin, sexual orientation or disability. SECTION 14 NOTICES 14.01 Any notice required shall be sufficient if deposited in the U.S. Mail, postage prepaid, certified mail, return receipt requested, and addressed to the other party as follows: CITY: City of Fort Worth Transportation & Public Works Department Stormwater Division 200 Texas Street Fort Worth, Texas 76102 ADOPTER: Sun Valley Industrial Park, L.P. Sandra McGlothlin 5301 Sun Valley Dr, Fort Worth, TX 76119 With copies to: City Attorney’s Office City of Fort Worth 200 Texas Street Fort Worth, Texas 76102 and City Manager’s Office City of Fort Worth 200 Texas Street Fort Worth, Texas 76102 14.02 Mailing of all notices pursuant to this Section shall be deemed sufficient if mailed postage prepaid, certified mail, return receipt requested, and addressed as specified above, unless either party has been notified in writing of any changes to such address(es) or addressee(s). All time STORM WATER DETENTION POND MAINTENANCE SERVICES AGREEMENT Page 11 of 22 SUN VALLEY INDUSTRIAL PARK, L.P. periods related to any notice requirements specified in this Agreement shall commence on the date notice is mailed, unless otherwise set forth in this Agreement. SECTION 15 VENUE AND JURISDICTION 15.01 This Agreement shall be governed by the laws of the State of Texas. Venue for any action brought to interpret or enforce, or arising out of or incident to, the terms of this Agreement shall be in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. SECTION 16 ASSIGNMENT 16.01 Adopter agrees that it will not assign, transfer, or otherwise convey any of its rights or obligations under this Agreement without the prior written consent of the City, and any attempted assignment, transfer, or conveyance of the same without such prior consent of the City shall be void. Consent shall not be unreasonably withheld. 16.02 Subject to the limitations contained herein, the covenants, conditions, and agreements made and entered into by the parties hereunder are declared to be for the benefit of and binding on their respective successors, representatives, and permitted assigns, if any. SECTION 17 WAIVER, SECTION HEADINGS, AND SEVERABILITY 17.01 It is agreed that in the event any covenant, condition, or provision herein contained is held to be invalid by any court of competent jurisdiction, the invalidity of such covenant, condition or provision shall in no way affect any other covenant, condition, or provision herein contained, provided however, that the invalidity of any such covenant, condition, or provision does not materially prejudice either Adopter or the City in connection with the rights and obligations contained in the valid covenants, conditions, or provisions of this Agreement. 17.02. The waiver by the City of any default or breach of a term, covenant, or condition of this Agreement shall not be deemed to be a waiver of any other breach of that term, covenant or condition or any other term, covenant, or condition of this Agreement, regardless of when the breach occurred. 17.03 The headings in this Agreement are inserted for reference only, and shall not define or limit the provisions hereof. SECTION 18 FORCE MAJEURE 18.01 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; STORM WATER DETENTION POND MAINTENANCE SERVICES AGREEMENT Page 12 of 22 SUN VALLEY INDUSTRIAL PARK, L.P. 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 properties and facilities in the interest of public safety and operate them as the City sees fit. Adopter herby waives any and all claims it may have against the City for damages resulting from any such Force Majeure Event. SECTION 19 PROHIBITION ON BOYCOTTING ISRAEL 19.01 Adopter acknowledges that in accordance with Chapter 2271 of the Texas Government Code, the City is prohibited from entering into a contract with a company for goods or services unless the contract contains a written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. The terms “boycott Israel” and “company” shall have the meanings ascribed to those terms Chapter 2271 of the Texas Government Code. By signing this Agreement, Adopter certifies that Adopter’s signature provides written verification to the City that Adopter: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the Agreement. SECTION 20 IMMIGRATION NATIONALITY ACT 20.01 Adopter shall verify the identity and employment eligibility of its employees who perform work under this Agreement, including completing the Employment Eligibility Verification Form (I-9). Upon request by City, Adopter shall provide City with copies of all I-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement. Adopter shall adhere to all Federal and State laws as well as establish appropriate procedures and controls so that no services will be performed by any Adopter employee who is not legally eligible to perform such services. ADOPTER ENDOR SHALL INDEMNIFY CITY AND HOLD CITY HARMLESS FROM ANY PENALTIES, LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY ADOPTER, ADOPTER’S EMPLOYEES, SUBCONTRACTORS, AGENTS, OR LICENSEES. City, upon written notice to Adopter, shall have the right to immediately terminate this Agreement for violations of this provision by Adopter. SECTION 21 ENTIRE UNDERSTANDING 21.01 This Agreement, including all exhibits attached hereto, constitutes the final, entire, and complete agreement between Adopter and the City and supersedes any prior and contemporaneous negotiations, understandings, representations, and agreements between the parties. Any prior or STORM WATER DETENTION POND MAINTENANCE SERVICES AGREEMENT Page 13 of 22 SUN VALLEY INDUSTRIAL PARK, L.P. contemporaneous oral or written agreement that purports to vary from the terms hereof shall be void. This Agreement cannot be modified or amended without the written consent of all the parties hereto and attached and made a part of this Agreement. 21.02 Neither this Agreement nor any provision hereof may be modified except by an instrument in writing, signed by the parties. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. [SIGNATURES ON FOLLOWING PAGE] STORM WATER DETENTION POND MAINTENANCE SERVICES AGREEMENT Page 14 of 22 SUN VALLEY INDUSTRIAL PARK, L.P. EXECUTED to be effective on the dates set forth in Section 3. CITY OF FORT WORTH Dana Burghdoff Assistant City Manager Date Recommended by: Lauren Prieur, Director Transportation & Public Works Department APPROVED AS TO FORM AND LEGALITY: Richard A. McCracken Sr. Assistant City Attorney No M&C Required. Form 1295: N/A ATTEST Jannette S. Goodall City Secretary Contract Compliance Manager: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. Name: Stephen Edwini-Bonsu Title: Sr. Professional Engineer ADOPTER Sun Valley Industrial Park, L.P., a Texas limited partnership By: Empire Holdings LLC, a Texas limited liability company its general partner Sandra McGlothlin Member Date STORM WATER DETENTION POND MAINTENANCE SERVICES AGREEMENT Page 15 of 22 SUN VALLEY INDUSTRIAL PARK, L.P. EXHIBIT A DETENTION POND AND LAND STORM WATER DETENTION POND MAINTENANCE SERVICES AGREEMENT Page 16 of 22 SUN VALLEY INDUSTRIAL PARK, L.P. EXHIBIT B WATER RATIONING/CONSERVATION PROCEDURES The purpose of these procedures is to provide a guide for watering activities in the event of required water conservation and rationing. Required water conservation and rationing will be determined in accordance with the “Emergency Water Management Plan” adopted by the Fort Worth City Council in August 1999. In April 2014, the Fort Worth City Council amended the plan to approve Stage I Water Restrictions. Stage I Water Restrictions are permanent until removed by the Fort Worth City Council. As a general practice, the City makes every effort to use water wisely and efficiently in all its operations, and the Adopter is expected to do the same. However, should water rationing be mandated by the City of Fort Worth the following procedures should be followed depending upon the level of conservation and rationing required. The Adopter is required to abide by the Water Rationing and Conservation Procedures set forth in this Exhibit B. Four (4) levels are identified: Level I/Voluntary, Level II/Minor Rationing, Level III/Major Rationing (mandated rationing), and Level IV/Critical Emergency (crisis/disaster caused rationing). For some categories, there are notes that serve to explain special conditions. An example would be where non-treated river water is used. In the implementation of these procedures, the City will place the highest priority on the health and safety of people and wildlife. Protection and preservation of both living and developed resources are also addressed as a high priority to preserve and protect these resources and infrastructure. STORM WATER DETENTION POND MAINTENANCE SERVICES AGREEMENT Page 17 of 22 SUN VALLEY INDUSTRIAL PARK, L.P. STORM WATER DETENTION POND MAINTENANCE SERVICES AGREEMENT Page 18 of 22 SUN VALLEY INDUSTRIAL PARK, L.P. STORM WATER DETENTION POND MAINTENANCE SERVICES AGREEMENT Page 19 of 22 SUN VALLEY INDUSTRIAL PARK, L.P. Protected Items: Animals and wildlife such as fish, turtles, and ducks. Drinking fountains shall continue to operate for public use. Under emergency rationing, only untreated non-potable water will be used to water newly planted trees. Any additional watering beyond what is currently committed will require additional resources having a general fund impact. Also, any major plantings will be delayed until water conservation efforts are no longer necessary. STORM WATER DETENTION POND MAINTENANCE SERVICES AGREEMENT Page 20 of 22 SUN VALLEY INDUSTRIAL PARK, L.P. EXHIBIT C TREE WATERING POLICY The Adopter is hereby authorized to provide maintenance to trees planted on the Land. 1. Adopter shall provide, at its own expense, all labor necessary to provide water to said trees. 2. Adopter agrees to provide a minimum amount of water to maintain a consistently moist, but not wet root zone (a soil moisture content between the wilting point and field capacity), typically 7-10 gallons per week for each tree. The watering is to continue for a minimum of two years or until such time as the trees become established. 3. Adopter shall maintain the planting trees on the Land by mulching and weeding the water ring that was constructed around each tree at the time of planting. 4. Adopter will be notified in writing in the event the City observes drought stress due to lack of watering. Adopter shall remedy any issues within fourteen (14) calendar days after the City sends such written notice or within such time as agreed to otherwise by the parties in writing. STORM WATER DETENTION POND MAINTENANCE SERVICES AGREEMENT Page 21 of 22 SUN VALLEY INDUSTRIAL PARK, L.P. EXHIBIT D GUIDELINES FOR LANDSCAPING IN PARKWAY STORM WATER DETENTION POND MAINTENANCE SERVICES AGREEMENT Page 22 of 22 SUN VALLEY INDUSTRIAL PARK, L.P. EXHIBIT E