HomeMy WebLinkAbout025551 - General - Contract - McDonald Technologies International, Inc.CITY SECRETARY
LICENSE AGREEMENT CONTRACT NO . ,� �' ��
This License Agreement is entered into by and between the City of Fort Worth, a home-rule
municipality located in Tarrant and Denton Counties, Texas, ("City"), acting by and through Charles
Boswell, its duly authorized Assistant City Manager, and McDonald Technologies International, Inc.
("MTI"), a Texas corporation, acting herein by and through Pip Sivakumar, its duly authorized
president to correct City Secretary Contract No. 25467. Collectively, MTI and City are referred to
as the "Parties."
City ofFort Worth ordinances approved by City Council and the City ofFort Worth Charter
do not require this agreement to be approved by City Council before it is executed by the parties,
therefore this agreement is being executed by the parties to correct City Secretary Contract No.
25467 and City Council approval is not required.
RECITALS
WHEREAS, MTI is the owner of certain property in Tarrant County, Texas, including Lots
6,7, and 8, and certain adjacent lots in Block 13, Crawford Addition, Tarrant County, Texas ("MTI
Property") identified on Exhibit "A" attached hereto and made a part hereof for all purposes; and
WHEREAS, the City owns property near or across the street from the MTI Property ("City
Property"); and
WI�REAS, the State of Texas and, specifically, the Texas Natural Resource and
Conservation Commission ("TNRCC"), has asked the City to install a monitoring well which is
intended to be identified on the surface by a 4 foot by 6 foot concrete slab with an 8 inch cover in the
middle indicating it to be a monitor well to evaluate groundwater contamination associated with the
City's activities on the City Property; and
WHEREAS, the monitoring well is proposed to be installed on MTI Property ("MW-MTI"),
the location of which is identified on Exhibit "A"; and
WHEREAS, the City desires to construct MW-MTI and may require access to a greater
portion ofthe MTI Property than the final installation area ofMW-MTI ("MW Construction Area");
and
WHEREAS, the City projects a need to open MW-MTI once every three to four months to
access MW-MTI and to obtain vvater samples from the well, and to conduct such other groundwater
investigation and monitoring as may be required by the TNRCC to service MW-MTI ("MW Service
Area").
NOW, THEREFORE, in consideration of the mutual promises and agreements contained
herein, and other good and valuable consideration, the receipt and adequacy of which are hereb_y
acknowledge, the Parties hereto agree as follows:
ARTICLE I
LICENSE
1.1 License. Subject to the terms and conditions ofthis License, and for the consideration
stated below, MTI hereby grants to the City, a license for the exclusive use of a 4 foot by 6 foot
portion of MTI Property for the MW-MTI for the sole purpose of operating and maintaining MW-
MTI at a location not greater than ten feet (10') from the northern fence on Lot 8; a license for
general access and use of MTI Property adjacent to MW-MTI, for the purpose of servicing and
monitoring MW-MTI ("MW Service Area") and a license for construction access to MW-MTI for
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the purpose of constructing, operating, and removing MW-MTI (the "MW Construction Area"). The
MW Service Area, the MW Construction Area, and MW-MTI are set out on E�ibit "A", which is
incorporated by reference for all purposes. MTI grants to the City a license to obtain environmental
sampling appropriate forthe assessment. However, MW-MTI may not be used for any other purposes
without the advance written consent of MTI (which consent may be withheld, denied, or refused by
MTI for any reason, or no reason whatsoever). Notwithstanding anything contained herein to the
contrary, the sole and only persons permitted under this License to enter upon or use MW-MTI, the
MW-MTI 5ervice Area and the MW-MTI Construction Area are the City and the City's contractors,
agents, invitees, employees, officers and representatives (collectively, "City's Contractors" as more
particularly defined below). The City agrees that vehicles shall not be parked on MTI Property,
except any drilling rig or other vehicle directly associated with the installation, maintenance, sampling,
closure, or removal of MW-MTI. Said drilling rig or other vehicle shall only be parked within the
MW-MTI Construction Area during the period of active installation, closure or removal ofMW-MTI.
City also agrees that the finished well height shall not project above the impacted portion of the
current grade of MTI Property adjacent to MW-MTI, and shall allow for vehicles to pass over and
upon it.
1.2 Term. The term of this License shall commence upon the date hereof and shall
terminate upon the earliest of (a) thirty (30) days after City is given written notice of default by MTI
and City fails to cure such default within 30 days of receiving such notice, (b) thirty (30) days after
the TNRCC and/or the State of Texas determines that MW-MTI is no longer needed, or (c) three (3)
years after the date of this License; provided, however, that if the City demonstrates to MTI's
reasonable satisfaction a requirement by the TNRCC to continue the monitoring, then this License
may be extended for one (1) year. The extension shall be effective upon timely delivery of written
notice to MTI which must be received more than thirty (30) and less than ninety (90) days prior to
the termination of this License.
1.3 Consideration. As fair compensation to MTI for this license to install the monitoring
well, City shall pay MTI $2,700.00 for all rights, title and privilege to use the MTI Property as
provided in this License. City agrees to pay MTI this amount before beginning construction of the
monitoring well.
1.4 Comvliance with Laws. City, by entering into this License, warrants and represents
that it will comply with all applicable Laws (defined below).
1.5 Access Prohibited. Neither City nor City's Contractors shall have any right, without
the prior written consent of MTI (which may be withheld, denied, or refused by MTI for any reason,
or no reason whatsoever), to enter upon or use for any purpose whatsoever any portion of the MTI
Property outside the boundaries of the MW-MTI Service Area and MW-MTI Construction Area
except to the extent reasonably necessary to gain access to and egress from MW-MTI, the MW-MTI
Service Area or the MW-MTI Construction Area. To the e�ctent reasonably necessary to construct,
operate, and maintain MW-MTI, City and City's Contractors shall be entitled to destroy existing
asphalt and concrete located in the MW-MTI Service Area. If such asphalt and/or concrete surfaces
are destroyed, they shall be removed from MTI Property by City. All existing underground utilities,
piping, and lines shall be left in place in an undisturbed condition, unless their relocation is necessary
for the installation of MW-MTI. City shall be responsible for all costs associated with the relocation
of such underground utilities, piping, and lines. If such utilities, piping, and lines are owned by MTI,
the Parties agree that they will meet as soon as possible after it becomes necessary for a relocation,
shall enter into negotiations with each other, and shall work diligently to enter into a separate
agreement for such relocation. Neither City nor City's Contractors shall, without the prior written
consent of MTI, enter and use any other portion of MTI Property than as described herein.
1.6 Permits. City warrants and represents that it will not undertake any activity needing
authorization from a governmental authority until such authorization has been obtained. This includes
securing all permits, licenses, and other authorizations and approvals required by any applicable
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governmental agencies and authorities required for undertaking the construction, operation, and
maintenance of MW-MTI for the purposes set out herein. City shall be identified as the owner of said
permits, licenses and other authorizations and approvals, as well as owner of MW-MTI.
1.7 Investi�ation Information. City shall notify MTI in writing (within 30 days after City
receives notice) of any e�sting, pending, or threatened investigation or enforcement action by any
governmental authority in connection with any applicable laws concerning construction, operation
or maintenance of MW-MTI or the results of any sampling of MW-MTI. City shall also promptly
mail to MTI (within 30 days after receipt by City) copies of all sampling data, information, analyses,
reports (including, but not limited to, communications from the TNRCC related to the City Property),
and correspondence associated with such MW-MTI, any investigation or any enforcement action, as
well as all sampling data, information, analyses, reports and correspondence relating to MW-MTI and
all other associated wells that comprise a part of such investigation or enforcement action. Failure
to provide inquiry information only shall not be deemed an event of default if City uses reasonable
efforts to provide such information.
1.8 Use of Pronertv. City shall have and retain, during the term of this License, sole
access and control of MW-MTI. In the installation, operation, closure, and removal of MW-MTI,
City shall not cause or permit the disposal or release of any Hazardous Substance, Solid Waste, or
Petroleum Substance in, on or under MTI Property. City shall be solely responsible for any disposal
or other release of any Hazardous Substance, Solid Waste, or Petroleum Substance in, on or under
MTI Property, the MW-MTI Construction Area, the MW-MTI Service Area and MW-MTI, to the
extent such disposal or release is caused by City or City's Contractors during the installation,
operation, closure, or removal of MW-MTI.
1.9 Sole Resbonsibilitv. City shall have sole responsibility for access, control, operation,
closure and removal of MW-MTI. City shall keep MW-MTI and the well locked and otherwise
inaccessible at all times except during actual use of MW-MTI by City and shall keep MW-MTI in
proper operating order at all times.
1.10 Definitions. For the purposes of this License, certain words and phrases shall be
described as follows:
City's Contractors shall mean the contractors, agents, invitees, officers,
employees and representatives of the City of Fort Worth.
Hazardous Substance shall have the meaning specified in the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C.
§9601 et seq.
Laws shall mean all federal, state, municipal and county laws, ordinances,
statutes, orders and regulations, all as may be amended from time to time.
Petroleum Substance shall mean a crude oil or any refined or unrefined
fraction or derivative of crude oil which is liquid at standard conditions oftemperature
and pressure.
Solid Waste shall have the meaning specified in the Resource Conservation
and Recovery Act (RCRA), 42 U.S.C. §6901 et seq.
ARTICLE II
CONSTRUCTION
2.1 Temnorary Construction Activitv. The construction, maintenance, repair, and
replacement ofMW-MTI sha11 be performed by City in compliance with the provisions of Section 2.2.
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As set out in Section 1.4, MTI Property may be utilized for the reasonable ingress and egress of
vehicles transporting construction materials and equipment to the MW-MTI Construction Area, as
well as persons employed in connection with the monitoring well construction work in the MW-MTI
Service Area. However, temporary storage of materials and vehicles being utilized in connection with
such construction, shall not occur on MTI Property.
2.2 Construction Work.
(a) Construction Work Generallv. All construction, alteration,
maintenance or repair work undertaken by City shall be accomplished in an expedient
and diligent manner using new, quality materials, employing excellent workmanship
and overseen by professional quality contractors and operators. City shall take
appropriate measures to minimize any disruption or inconvenience caused by such
work to MTI or other occupants or users of MTI Property. Dust, noise and other
effects of such work shall be controlled by City which shall undertake work using
appropriate methods customarily utilized in order to control such deleterious effects.
City shall repair at its own cost and expense any and all damage caused by such work
and shall restore the affected portion of MTI Property upon which such work is
performed: to a condition, as near as is reasonably possible, equal to the condition
existing prior to beginning such work. This repair and restorations obligations shall
also apply to any asphalt and/or concrete areas damaged by the activities of City or
City's Contractors, whether or not such areas are located on MTI Property or within
the MW Construction Area, MW Service Area or MW-MTI itself.
(b) Emer�encv Work. Notwithstanding any other notice provision
contained in this Section 2.2, in the event of an emergency condition, City may
undertake the necessary construction work to remedy the emergency condition,
provided that City does so in good faith, provides both written and prompt telephonic
notice therefor to MTI upon the occurrence of the emergency condition or as soon
thereafter as possible, and the work otherwise conforms to the applicable provisions
of this License.
(c) Construction Materials and Wastes. City shall be solely responsible
for the removal and disposal of all drilling and construction rnaterials and wastes
resulting from or related to activities by the City and City's Contractors on MTI
Property, whether such materials or waste constitute Hazardous Substances or Solid
Wastes. All such removal and disposal shall comply with all applicable Laws. This
removal and disposal obligation expressly includes, but is not limited to, an obligation
to containerize and remove all drilling cuttings, well purge, and development water.
2.3 Utilitv Service. MTI shall cooperate with City and pernut installation within MTI
Property of any necessary utility and service lines required to operate MW-1V1TI. All utilities for
MW-MTI shall be separately metered and paid for by City.
2.4 Closure of Well. City shall complete closure of MW-MTI, within thirty (30) days of
the expiration of the term of the License. City shall also return MTI Property, the MW Service Area,
the MW Construction Area and MW-MTI itself, to substantially the same condition they were in
before City's operations began. City shall abandon MW-MTI in accordance with TNRCC and State
of TeYas requirements. City shall destroy the concrete pad, remove the bolting cover and locking
cap, and attempt to extract the PVC well casing and screens. The inside of MW-MTI shall be filled
with bentonite to the ground surface. Abandonment shall be completed by leveling of the surface
soils with hand operated shovels and rakes. With the exception of the possible presence of well
casing, the presence of bentonite and the lack of weed overgrowth, the MTI Property shall be
restored to substantially the same condition it was before City's operations began.
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ARTICLE III
INSURANCE AND INDEMNIFICATION
3.1 Self-Insurance. MTI acknowledges that City is self-insured and does not maintain a
commercial general liability insurance policy. MTI further acknowledges that:
(a) Damages for which City would ultimately be found liable would be
paid directly by City and not by a commercial insurance company. Pursuant to
§ 101.021 of the Texas Civil Practice and Remedies Code, a murucipality is liable for
personal injury and death, when such is caused by a condition or use of tangible
personal or real property. Liability attaches only if the municipality would, if it were
a private person, be liable to the claimant according to Texas law. The liability of a
municipality under Chapter 101 of said code is currently limited to money damages
in a maximum amount of $250,000 for each person and $500,000 for each single
occurrence for bodily injury or death.
(b) City has enacted an ordinance providing for the indemnification of its
employees in accordance with Chapter 102 of the Texas Civil Practice and Remedies
Code. Pursuant to said chapter, a municipality may pay actual damages awarded
against an employee ofthe municipality ifthe damages result from an act or omission
of the employee in the course and scope of his or her employment for the municipality
and arise from a cause of action for negligence. A municipality may NOT pay
damages awarded against an employee that arise from a cause of action for official
misconduct or that arise from a cause of action involving a willful or wrongful act or
omission or an act or omission constituting gross negligence. Payments by a
municipality under Chapter 102 of said code currently may not exceed $100,000 to
any one person or $300,000 for any single occurrence in the case of personal injury
or death.
(c) The City will require its contractors and/or subcontractors to carry
commercial general liability, automobile liability, worker's compensation, and
environmental liability or pollution liability. The City will be named as an additional
insured under such policies.
(d) The above recitals are made for inforrnation purposes only, and shall
not be construed to give City any rights or privileges greater than those presently
provided by Texas statutory law.
3.2 Indemnification and Hold Harmless. TO THE EXTENT ALLOWED BY THE
TEXAS CONSTITUTION AND ALL OTHER APPLICABLE LAW S, THE CITY DOES HEREBY
RELEASE, INDEMNIFY, AND HOLD HARMLESS MTI AGAINST ANY AND ALL
DAMAGES CAUSED BY CITY OR CITY' S CONTRACTORS RESULTING FROM THE
INSTAI,LATION, OPERATION, AND CLOSURE OF MW-MTI, AND THE HANDLING,
COLLEC�ION, TRANSPORTATION, STORAGE, DISPOSAL, AND TREATMENT BY CITY
AND CITY'S CONTRACTORS OF HAZARDOUS SUBSTANCES, SOLID WASTE, AND
PETROLEUM SUBSTANCES REMOVED, RELEASED, OR DISPOSED OF DURING THE
INSTALLATION, OPERATION, AND CLOSURE OF NIW-MTI.
ARTICLE IV
MISCELLANEOUS
4.1 Liens. City shall not pernut or suffer an involuntary lien to be filed or affixed against
the MTI Property or any part thereof, and City shall not voluntarily grant any lien or security interest
in the MTI Property.
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4.2 Non-Assi�nabilitv. The license and rights granted to City in this License are personal
to City and may not be transferred or assigned in whole or in part, without the prior written consent
ofMTI, which consent may be withheld, denied, or refused by MTI for any reason, whatsoever. Any
attempt to transfer or assign without MTI's prior written consent shall be void and confer no rights
upon any other person or party.
4.3 Default. In the event City or City's Contractors fail to perform any covenant,
undertaking, obligation or agreement hereunder, and fail to cure said default within thirty (30) days
of written notice by MTI, then MTI shall have the right to terminate this License and all rights and
privileges granted herein, and, except as otherwise specifically provided, this License shall be of no
further force or effect.
4.4 Iniunction. MTI and City may restrain or enjoin any breach or threatened breach of
any covenant, duty, or obligation of the other Party herein contained without the necessity of proving
the inadequacy of any legal remedy or irreparable harm. The remedies of the Parties hereunder shall
be deemed cumulative and no remedy of, either of the Parties whether exercised by such Party or not,
shall be deemed to be in exclusion of any other.
4.5 Venue. All obligations of Parties are performable in Fort Worth, Tarrant County,
Texas. However, in any proceeding involving the subject matter of this License, the venue for such
proceeding shall be in '�arrant County, Texas, or if in federal court, within the Northern District of
Texas.
4.6 Entire A�reement. This License, together with the e�ibits, if any, attached hereto
and fornung a part hereof, contains and sets forth the entire agreement and understandings between
the Parties hereto concerning the subject matter of this License and the transactions contemplated
herein. Except as herein otherwise provided, no subsequent alteration, amendment, change or
addition to this License shall be binding upon either Party hereto, unless reduced to writing and
signed by both Parties. City accepts this License and MW-MTI "as is, where is" and without any
express or implied warranties.
4.7 Cabtions and Numbers. The captions and paragraph numbers appearing in this
License are inserted only as a matter of convenience and in no way define, limit, construe, or describe
the scope or intent of such paragraphs, nor in any way affect this License.
4.8 Severabilitv. If any provision, covenant or condition of this License shall, to any
extent, be invalid or unenforceable, the remainder ofthis License shall not be affected thereby and in
place of each invalid or unenforceable provision, covenant or condition the Parties desire and intend
that a new provision, covenant or condition as near to the invalid or unenforceable provision,
covenant, or condition that is valid and enforceable, be substituted in lieu of the invalid or
unenforceable provision.
4.9 Notice. Any notice or request which may or shall be given under the terms of this
License shall be in writing and shall be either delivered by hand or sent by United States Certified
Mail, postage prepaid, addressed to the Parties hereto at the following respective addresses for
notice:
If to MTI: Pip Sivakumar, President
McDonald Technologies International, Inc.
1920 Diplomat Drive
Farmers Branch, Texas 75234
Ofiice: (972) 243-6767
Fax: (972) 241-2643
LICENSE AGREEMENT — PAGE 6
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If to City: Brian Boerner, Director
Department of Environmental Management
1000 Throckmorton Street
Fort Worth, Texas 76102
Such addresses, telephone and f� information may be changed from time to time by either
Party giving notice as provided above. Notice shall be deemed given when delivered, if delivered by
hand, or three days after the postmark, if sent by mail.
4.10 Governin� Law. This License and the rights and obligations ofthe Parties hereto shall
be interpreted, construed, and enforced in accordance with the local laws of the State of Texas.
4.11 Matters of Record. The license granted herein is expressly made subject to a11
restrictions, covenants, conditions, right-of-way, easements, mineral interests, encumbrances, and all
other matters on file or of record affecting MW-MTI.
4.12 Non-Waiver. One or more waivers of any breach or violation of any agreement,
covenant or condition herein contained shall not be deemed to be a waiver of any subsequent
violation or breach of the same or any other agreement, covenant or condition herein contained, and
the consent or approval by either Party of any act by the other which act requires the approval or
consent of the other Party shall not be deemed to waive or render unnecessary the future
requirements for consent or approval of the same or similar act. No express covenant, term, or
condition of this License shall be deemed to have been waived by either Party, unless such waiver is
in writing.
4.13 Time ofEssence. In a11 instances where any act is required hereunder, it is understood
that time is of the essence and in the performance of all the rights, duties, and obligations set out in
this License.
4.14 Survival. All of the City's duties, obligations, and liabilities under this License shall
survive for a period of two years after the ternunation of this License.
IN WITNESS THEREOF, this License is executed in Tarrant County, Texas, effective upon
its execution by both Parties.
MCDONALD TEC OLOGIES INTERNATIONAL, INC.
By: �'N
� P' Sivakumar
P esident � � 3/��
Date:
CITY OF FORT WORTH
By: l � ` 1,Ci�'�'.r"`
� arles Boswell
Assistant Cit Manager
Date: �-- I�— O 0
LICENSE AGREEMENf — PAGE 7
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ATTEST:
7
Gloria d'earson� ecretary
APPRO D AS TO FORM AND LEGALITY:
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As�sistant � y Attorney '
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LICENSE AGREEMENT — PAGE 8
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