HomeMy WebLinkAboutContract 61695CSC No. 61695
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 Amory
Construction LLC, a limited liability company acting by and through its duly authorized
representative ("Company"). 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 Sandy Lane Park located
at 2001 Sandy Lane, Fort Worth, Texas 76112 (the "Park");
WHEREAS, as steward of public land, the City has the responsibility to preserve and
protect City parkland;
WHEREAS, the Parties have an active lease agreement that permits the Company to
maintain a communication tower within the Park;
WHEREAS, Company desires to make improvements to the communication tower;
WHEREAS, Company desires to access the Park for the purpose of tower improvements;
and
WHEREAS, the City agrees to grant the 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:
1. License Granted. City hereby grants to the Company a non-exclusive license to use a
portion of the Park for tower improvements 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. License Fee. Prior to the start of the Term, 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 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 or such other
place in Tarrant County, Texas as the Director of the Department or that person's designee
("Director") may hereafter notify Company (in writing and with reasonable advanced
notice).
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Temporary License Agreement: Amory Construction LLC, — Sandy Lane Park 1 of 15
July 2024
3. Term. The Effective Date of this Agreement shall be the date signed by the Park &
Recreation Department Director ("Director") for a term of one hundred twenty (120)
calendar days (the "License Period"), with an option to renew the License Period once for
an additional sixty (60) calendar days, not to exceed one hundred eighty (180) calendar
days.
4. Use of the Licensed Premises.
a. Company may use the Licensed Premises for the purpose of constructing tower
improvements. The Licensed Premises shall be used for no other purposes
without prior written consent of City.
b. Prior to the commencement of the Term, Company shall use its best efforts to
locate and physically mark all utilities (including, but not limited to, electric lines,
water lines, sewer lines, storm drains and lines, and gas lines) within the Licensed
Premises, which shall include, but not be limited to, conducting a dig test. With
regard to all known water and electric utilities, the Director will work with Company
to locate and physically mark all such utilities within the Licensed Premises. If
Company encounters any utility infrastructure (including, but not limited to, electric
lines, water lines, 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 reasonable protection of the utilities to the satisfaction of the Director,
with such protective measures to be approved by the Director prior the application
thereof, such approval not to be unreasonably withheld.
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, without cause, upon five (5) days
written notice to the Company or immediately upon a breach of this Agreement by the
Company. Company may terminate this Agreement upon written notice to City, provided
Company otherwise complies with the terms of this Agreement.
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.
Temporary License Agreement: Amory Construction LLC, — Sandy Lane Park 2 of 15
July 2024
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, unless any such claims arise from the negligence or
willful misconduct of City, its officers, agents, representatives, servants or employees.
Furthermore, City shall not be liable to Company for any damage or theft of Company's
equipment, facilities, or other contents.
8. 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
substantially 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. 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.
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 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) 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. COMPANY'S
INDEMNIFICATION OBLIGATIONS HEREUNDER SHALL NOT EXTEND TO CLAIMS
THAT ARISE OUT OF THE NEGLIGENCE OR WILLFUL MISCONDUCT OF THE
OFFICERS, AGENTS, REPRESENTATIVES, OR EMPLOYEES OF THE CITY.
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, or his designee, 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 or his designee, such approval not to be unreasonably withheld. The Company
agrees that it shall not cut, clear or remove any vegetation as a part of its efforts to conduct
work (See Exhibit C & D on tree protection and damages).
Temporary License Agreement: Amory Construction LLC, — Sandy Lane Park 3 of 15
July 2024
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.
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 in writing and
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:
Director
Park & Recreation Department
City of Fort Worth
4200 South Freeway, Suite 2200
Fort Worth, Texas 76115
With a copies to:
Department of Law
City of Fort Worth
Attn: City Attorney
200 Texas Street
Fort Worth, Texas 76102
To COMPANY:
Amory Construction LLC
Attn: Charlie Nunez
charlie6d)amorvconstruction.com
2515 Tarpley Road, Suite 120
Carrollton, TX 75006
14. Public Safetv. 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.
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 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
Temporary License Agreement: Amory Construction LLC, — Sandy Lane Park 4 of 15
July 2024
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.
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. Bindina 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 Aareement. 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: Amory Construction LLC, — Sandy Lane Park 5 of 15
July 2024
By executing this Agreement, Company agrees to and accepts the terms, conditions and
provision contained herein.
CITY OF FORT WORTH:
By:
Richard Zavala, Director
Park & Recreation Department
Date: J u l 15, 2024
AMORY CONSTRUCTION LLC:
By:��
Charlie Nunez
Vice President -
Date:
* 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 October 25, 2023.
REVIEWED BY:
By:
Joel McElhany
Assistant Director
Park & Recreation Department
APPROVED AS TO FORM
AND LEGALITY:
7-- qued&
Trey Qualls
Assistant City Attorney
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ATTESTED BY:
SAG*° rp
QdanEXP5.a4
Jannette Goodall
City Secretary
Contract Compliance Managers:
By signing below, I acknowledge that I am the person responsible for the monitoring and
administration of this contract, including ensuring all performance and reporting requirements.
David B. Jodray
Park Planner
Contract Authorization: OFFICIAL RECORD
No M&C Required CITY SECRETARY
FT. WORTH, TX
Temporary License Agreement: Amory Construction LLC, — Sandy Lane Park 6 of 15
July 2024
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July 2024
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EXHIBIT B
INSURANCE
1.01 Dutv to Acouire 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 Coveraae Reauired
a. Commercial General Liabilitv:
(1) $1,000,000.00 per occurrence, $2,000,000.00 aggregate, including
coverage for the following: (i) Premises Liability; (ii) independent contractors; (iii)
products/completed operations; (iv) personal injury; (v) contractual liability; (vi)
explosion, collapse, and underground property damage
b. Property Damaae Liabilitv:
(1) $1,000,000.00 per occurrence
C. Umbrella Policv
(1) $5,000,000.00
d. Environmental Impairment Liabilitv (EIL) and Pollution Liabilitv
(1) $2,000,000 per occurrence
(2) $5,000,000 aggregate
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 Required Coveraae. 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: Amory Construction LLC, — Sandy Lane Park 10 of 15
July 2024
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 Liabilitv. 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 Subroaation. 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: Amory Construction LLC, — Sandy Lane Park 11 of 15
July 2024
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N.T.S. Tree protection fencing shall be orange
mesh or chain link and installed at the
edge of travel way
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TREE ROOT PROTECTION DETAIL
SCALE: N.T.S.
FILE NO. 000
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PARKS AND rd UMUNlYY
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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.
ASSESSMENT OF DAMAGES TO TREES
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 his designee, may conduct random checks of the trees during the Term.
1.3. A check of all trees may be made at the end of the Term. 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
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: Amory Construction LLC, — Sandy Lane Park 14 of 15
July 2024
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
Temporary License Agreement: Amory Construction LLC, — Sandy Lane Park 15 of 15
July 2024