HomeMy WebLinkAboutContract 61480CSC No. 61480
RIGHT OF ENTRY AGREEMENT
THIS RIGHT OF ENTRY AGREEMENT ("Agreement") is made by and between FORT WORTH
TRANSPORTATION AUTHORITY ("TRINITY METRO"), and the City of Fort Worth., hereinafter called
"Contractor", whose mailing address is 200 Texas St., Fort Worth, TX 76102.
WHEREAS, TRINITY METRO is a regional transportation authority created pursuant to Chapter
452, Texas Transportation Code (as amended, the "Act"), and owns property located at 14470 Statler
Boulevard, Fort Worth, TX 76155 (Station); and
WHEREAS, Contractor desires to enter onto a portion of the Station which is depicted on Exhibit A
attached hereto and hereby made a part of this Agreement (the "Property"); and
WHEREAS, on and subject to the terms and conditions of this Agreement, TRINITY METRO is
willing to grant a temporary construction agreement to Contractor to enter the Station to utilize the Property
solely for the Permitted Purposes (hereinafter defined); NOW THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which the parties to this Agreement hereby acknowledge,
including the mutual promises and undertakings set forth below, TRINITY METRO and Contractor hereby
agree as follows:
1.Term and Permitted Purposes. Subject to TRINITY METRO's right to terminate this
Agreement and the permission granted hereunder if Contractor defaults in performing any of its
undertakings and obligations, TRINITY METRO hereby grants Contractor a temporary construction
easement to enter upon the Property for the period commencing on May 1, 2024 (the "Effective Date"), and
ending upon the earlier of: (a) Contractor's completion of all activities required to carry out the Permitted
Purposes, or (b) Dec 31, 2025. Contractor's right to enter upon the Property is solely for the following
purposes:
"Include the Scope of Improvements"
Contractor will use the east parking lot entrance at TRINITY METRO's CentrePort Station as temporary
construction entrance, and use the east corner parking lot approximate 31,260 sf as temporary
construction staging area for the construction of CentrePort Trail Phase I project. Contractor will access
power from the adjoining fire station. Contractor will use the Access Path shown on Exhibit A as a
temporary road to access the Project. All areas are to be barricaded off to prevent public entrance and
will be returned to the original condition upon completion of the project.
2.Construction. If the Permitted Purposes include construction on the Property, Contractor
shall not commence such construction until TRINITY METRO has approved in writing the plans and
specifications ("Plans") therefore, and all such construction must be carried out in accordance with the
approved Plans and in such manner and at such times as shall not endanger or interfere with TRINITY
METRO's or Trinity Railway Express (TRE) Railroad's operations nor with any improvements located on,
above, or below the Property. Contractor shall submit to TRINITY METRO for approval, all construction
details, falsework and other incidentals not detailed in the Plans, insofar as they affect TRINITY METRO or
Railroad.
3.Use of Property. No entry on the Property or work performed by or for Contractor shall
cause interference with the uninterrupted use of the remainder of the facilities of TRINITY METRO or TRE,
unless specifically permitted under this Agreement or other agreements between TRINITY METRO and
Contractor, or specifically authorized in advance by a representative of TRINITY METRO. Contractor's right
to enter the Property for the Permitted Purposes is subject and subordinate to the prior and continuing right
and obligation of TRINITY METRO and TRE to use and maintain the Station, including the right and power
to construct, maintain, repair, renew, use, operate, change, modify or relocate railroad tracks, roadways,
signal, communication, fiber optics, or other wirelines, pipelines and other facilities upon, along or across
any or all parts of the Property, all or any of which may be freely done at any time or times by TRINITY
METRO and/or TRE without liability to Contractor or to any other party for compensation or damages,
provided that TRINITY METRO will not materially or unreasonably interfere with the Contractor's entry and
use of the Property for the Permitted Purposes in accordance with the requirements of this Agreement. The
rights granted hereunder also are subject to all outstanding superior rights of third parties in and to the
Property and the right of TRINITY METRO or TRE to renew and extend the same, and is made without
covenant of title or for quiet enjoyment.
4. Damaqe and Restoration of Propertv. Contractor shall be responsible for any damage
to the Property caused by Contractor's use or entry thereon (including without limitation, to improvements
on, above or below the surface), and shall, at TRINITY METRO's option, repair, restore, or replace damage
to the Property and any improvements on the Property resulting from Contractor's entry onto the Property.
Contractor shall return the Property to its original condition or better at the completion of construction.
Flaqqers and Other Requirements.
a. Contractor shall maintain at Contractor's expense flagger(s) approved by TRINITY
METRO and each Railroad whose operations may be affected by Contractor's entry on the adjacent
property. Such flagger(s) shall be representatives of Railroad and must be qualified by Railroad to
carry out Railroad's operating and safety rules to protect the TRINITY METRO's and TRE's facilities
and operations while upon the Property. Contractor will not perform any work within 25 feet of any
TRINITY METRO track or any TRE track (also referred to as "the foul zone") or perform any work
that could cause equipment, people, or materials to enter into the foul zone unless flagger(s) are
present and carrying out Railroad's safety procedures in connection with Contractor's presence on
the Property.
b. At its expense, Contractor shall ensure that all personnel working under
Contractor's control or the control of Contractor's contractors and who are engaged in any activity
that requires flagger(s), as described above, have attended, not more 365 days before the date the
work is to be performed, a creditable Roadway Worker Protection course and have successfully
passed all required examinations associated with that course and will provide proof of course
completion upon request from TRINITY METRO, TRE, or Herzog. TRINITY METRO shall
determine whether the above mentioned Roadway Worker Protection course is creditable.
c. Contractor shall notify TRINITY METRO and TRE in writing (i) at least fifteen (15)
days in advance to arrange for flagging, (ii) at least seven (7) working days before commencing
work on the Property, and (iii) within five (5) working days after such work is completed. No work
or other activity shall be done on the Property without prior written permission of TRINITY METRO
and TRE. All work performed by or for Contractor on the Property shall be coordinated with and
performed in a manner satisfactory to TRINITY METRO and TRE.
d. Notwithstanding any other provision of this Agreement, Contractor, at its own
expense, shall adequately police and supervise all work to be performed by or for Contractor and
shall ensure that such work is performed in a safe manner. Contractor's responsibility shall not be
lessened or otherwise affected by TRINITY METRO's approval of the Plans, or its or TRE's
collaboration in performance of any work, or by the presence at the work site of an TRINITY
METRO, TRE, Herzog, or Railroad representative. If Contractor fails to perform its obligations as
required under this Agreement, TRINITY METRO shall have, in addition to any other remedies
under law or contract, the right to stop Contractor from entering the Property and/or performing
such work until such failures have been fully cured to TRINITY METRO's reasonable satisfaction.
e. At the request of TRINITY METRO, TRE, or Herzog, Contractor shall remove from
the Property any employee of Contractor or any contractor or subcontractor of Contractor who fails
to conform to the instructions of representatives of TRINITY METRO, TRE, or Herzog in connection
with entry or work on the Property, and any right of Contractor to enter upon the Property shall be
suspended until such request of TRINITY METRO, TRE, or Herzog is met. Contractor shall
indemnify, defend and hold the TRINITY METRO Indemnities (hereinafter defined) harmless
against any claim arising from the removal of any such employee from the Property.
f. Contractor-issued photo identification is required of all personnel of Contractor or
and its contractors, subcontractors and agents present on the Property.
g. Contractor shall keep all equipment, tools and materials stored at least twenty-five
(25) feet from the center line of any railroad track on the Property. Explosives or other highly
flammable substances or any hazardous materials shall not be stored on the Property without
TRINITY METRO's prior written approval.
h. No vehicular crossing over TRINITY METRO's or any Railroad's track shall be
installed or used by Contractor without prior written permission of TRINITY METRO and the
affected Railroad.
i. Promptly upon completion of work, Contractor shall remove from the Property all
of its and its contractors' tools, equipment, and materials and all debris created by Contractor's or
its contractors' while on the Property, and shall restore the Property to the same state and condition
as when Contractor entered thereon.
6. Propertv Restoration. Contractor shall bear all costs and expenses associated with
restoring Property to the condition at its first use of the Property. If the property is not restored to its original
condition, COFW, shall reimburse TRINITY METRO for all actual and documented costs and expenses
incurred by TRINITY METRO in connection with any such use of the Property, including without limitation
the expense of (i) concrete and curb work, (ii) landscaping, dirt, and irrigation work, (iii) restoration of the
Property to the same condition as when Contractor entered thereon, (iv) temporary fencing, (v) and traffic
control, and (vi) other items deemed necessary during the duration and after the completion of work.
7. Liens Prohibited. Contractor, its contractors, subcontractors, and agents shall neither
permit nor impose any lien against the Property. If, notwithstanding such covenant, any lien against on the
Property arises from the entry onto the Property or the performance of work hereunder by Contractor or a
contractor, subcontractor, or agent of Contractor, Contractor shall immediately notify TRINITY METRO in
writing of such lien and immediately remove the lien or immediately cause it to be removed.
8. Indemnification and Waiver. Contractor, to the extent permitted by Texas law and without
waiving its sovereign immunity, releases, defends, and indemnifies TRINITY METRO, TRE, Herzog,
Railroad, and their respective owners, officers, employees, contractors, and agents (collectively, the
"TRINITY METRO Indemnitees") from and against all loss, damage, claim, cost, expense (including
attorney's fees), and liability for bodily injury to or death of any persons and loss of or damage to any
property and loss of use thereof arising out of or in any way connected with Contractor's entry on the
Property or activity thereon, including entry or activity by Contractor, or its employees, contractors,
subcontractors, agents, or invitees. Contractor, to the extent permitted by Texas law and without waiving
its sovereign immunity, hereby waives and releases the TRINITY METRO Indemnitees from and against
all loss, damage, claim, cost, expense (including attorney's fees), and liability incurred by Contractor arising
from or in connection with the condition, use, or repair of the Property. Nothing contained herein shall ever
be construed so as to require Contractor to assess, levy and collect any tax to fund its obligations under
this section. Article XI Section 5 of the Texas Constitution provides that a city is prohibited from creating a
debt unless the city levies and collects a sufficient tax to pay the interest on the debt and provides a sinking
fund. The City of Fort Worth has not and will not create a sinking fund or collect any tax to pay any obligation
created under this section. Contractor acknowledges and agrees that no representations or warranties have
been made by any TRINITY METRO indemnitees regarding conditions or hazards now or hereafter existing
on the Property, and that any entry by Contractor, or its contractors, subcontractors, or agents and their
respective employees shall be at their own risk. If any provision in this section is determined by any statutory
enactment or judicial decision to be void or unenforceable, then this section shall not fail in its entirety but
will be enforceable to the extent permitted by law. The indemnification obligations of Contractor in this
section and elsewhere in this Agreement shall survive the termination or expiration of this Agreement and
the license granted hereunder.
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9. Compliance with Laws. Before beginning any work on the Property, Contractor, at its sole
expense, shall obtain and/or cause its contractors to obtain all necessary permits to perform such work.
Contractor and its contractors, subcontractors, and agents must comply with all applicable federal, state
and local laws, regulations, and enactments affecting their presence and work on the Property. Without
limiting the generality of the foregoing, Contractor and its contractors, subcontractors, and agents shall
comply with all applicable state and federal occupational safety and health acts and regulations and all
Federal Railroad Administration regulations applicable to activities on the Property and with all
Environmental Laws (hereinafter defined). If any failure to comply with any such laws, regulations, and
enactments, shall result in any fine, penalty, cost, or charge (including without limitation attorney fees, court
costs and expenses) being assessed, imposed, or charged against TRINITY METRO or a Railroad,
Contractor shall reimburse and indemnify TRINITY METRO and Railroad therefor.
a. "Environmental Laws" means the Clean Air Act, Clean Water Act, Safe Drinking
Water Act, Resource Conservation and Recovery Act ("RCRA"), Comprehensive Environmental
Response, Compensation, and Liability Act ("CERCLA"), Emergency Planning and Community
Right to Know Act ("EPCRA"), Oil Pollution Act, the Hazardous Materials Transportation Act
("HMTA"), Toxic Substances Control Act ("TSCA"), Federal Insecticide, Fungicide, and Rodenticide
Act ("FIFRA"), Endangered Species Act, National Environmental Policy Act, as the same may be
amended, and other applicable state and local laws, regulations and requirements or future
applicable federal laws dealing with environmental matters.
10. Required Insurance. Prior to entry on the Property, Contractor shall procure and provide
evidence to TRINITY METRO that it has obtained and maintained, at its sole cost and expense, the
following types and minimum amounts or insurance with an insurer or insurers and form satisfactory to
TRINITY METRO.
All Insurance policies required by this Agreement shall provide a waiver of subrogation in favor of TRINITY
METRO. The general liability, excess liability, or umbrella policies shall name TRINITY METRO, its
directors, officer, representatives, agents and employees as additional insureds for ongoing and completed
operations, and provide a waiver of subrogation. Per occurrence limit can be satisfied by a combination of
primary and umbrella or excess coverage. Umbrella and Excess policies shall be follow form. TRINITY
METRO must have 30 days' notice of cancellation or modification.
a. Commercial General Liability
• Limits of $2,000,000 per occurrence; $6,000,000 aggregate
• Coverage for Products and Completed Operations to remain in effect for a period
of 5 years after substantial completion
• Endorsements CG 2033 and CG 2037 Additional Insured Ongoing and
Completed Operations or equivalent
• Endorsement CG 2503 Designated Construction Project(s) General Aggregate
Limit Endorsement or equivalent
• Cross Liability or Separation of Insureds Endorsement
• Policy shall be Primary and Non-Contributory
• Policy shall have no exclusions or limitations for Contractual Liability, Personal
Injury Advertising Liability, Explosion, Collapse & Underground Property Damage
Hazard, Medical Payments, Fire Damage Legal Liability, Broad Form Property
Damage, and Liability for Independent Contractors
b. Commercial Automobile Liability Policy
• Combined single limit of at least $1,000,000 per accident
• Coverage for Owned, Hired and Non-Owned Vehicles
c. Workers' Compensation Insurance
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• Providing Statutory Benefits under the Workers' Compensation Act of the State
of Texas and/or any other State of Federal Law or Laws applicable to the
Contractor's employees performing the work under this Agreement
• Employer's Liability Insurance with limits of liability of $1,000,000 each accident,
$1,000,000 each employee for disease and $1,000,000 policy limit for disease.
d. Railroad Protective Liability
• Railroad Protective Liability in an amount not less than $2,000,000 per
occurrence, $6,000,000 aggregate with Trinity Metro, TRE, and Herzog Transit
Services as named insureds.
Notwithstanding the preceding, TRINITY METRO agrees that Contractor shall be allowed to retain (self-
insure) in whole or in part any insurance obligations required herein. Contractor is a governmental entity
under the laws of the state of Texas and pursuant to Chapter 2259 of the Texas Government Code, entitled
"Self-Insurance by Governmental Units," is self-insured and therefore is not required to purchase insurance.
11. Fiber Optic Cable Svstems. In addition to other indemnity provisions in this Agreement,
Contractor shall indemnify and hold TRINITY METRO and TRE harmless from and against all costs, liability
and expense whatsoever (including, without limitation, attorney fees, court costs and expenses) arising out
of any act or omission of Contractor, its contractor, agents and/or employees, that causes or contributes to
any damage to or destruction of any telecommunications system on the Property.
12. No Assiqnment. Contractor's rights herein cannot be assigned without the prior written
consent of TRINITY METRO.
13. Notices. Notification to TRINITY METRO for all purposes shall be sent to:
Trinity Metro
801 Grove Street
Fort Worth, Texas 76102
Attention: Carrie Weir
Notifications to TRINITY METRO shall be in writing, addressed as set forth above, and shall be
deemed to have been given upon actual receipt by the addressee.
14. No Waiver. The failure by TRINITY METRO to enforce any of Contractor's obligations
under this Agreement or enforce any remedies for of the breach of any condition, covenant or agreement
herein shall in no way impair the right of TRINITY METRO thereafter to enforce any such obligation or avail
itself of any remedy for any subsequent breach.
15. Multiple Counterparts. The parties may execute this Agreement in multiple originals and
when taken together, those originals constitute a whole that shall be effective on the date last signed.
EXECUTED TO BE EFFECTIVE AS OF THE EFFECTIVE DATE set forth above.
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CITY OF FORT WORTH
By: �
Name: Jesica McEachern ------Title: Assistant City Manager ___ _
Date: May 30, 2024
FORT WORTH TRANSPORTATION
AUTHORITY
By:
Name: Richard W. Andreski
Title: President and CEO_
Date:
CITY OF FORT WORTH INTERNAL ROUTING PROCESS:
Approval Recommended:
By: -Ad.ud----'-J_:,,..d,, __________ _Name: Richard Zavala --------Title: Park & Recreation Director ----__sg SP
Approved as to Form and Legality:
By: .,//,/dew ../t.,1ay
Name: Matthew Murray _______ _
Title: Sr Asst City Attny Sect Chief __ _
Contract Authorization: -------M&C: None ------------
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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.
By: ��
Name: David Munoz --------Tit I e: Park Planner --------
City Secretary:
By: f,r,,,_,_f St--
Name: Jannette S. Goodall
Title: City Secretary
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