HomeMy WebLinkAboutContract 36717 CITY SECRETARY
CONTRACT NO.
PIPELINE LICENSE AGREEMENT
This PIPELINE LICENSE AGREEMENT ("Agreement") is hereby made and
entered into by and between the CITY OF FORT WORTH, a home rule municipal corporation
organized under the laws of the State of Texas and acting by and through Libby Watson, its duly
authorized Assistant City Manager, and TEXAS MIDSTREAM GAS SERVICES, L.L.C., an
Oklahoma limited liability company, acting by and through James C.Johnson, President.
The following statements are true and correct and constitute the basis upon which the
City of Fort Worth has executed Agreement.
A. Texas Midstream Gas Services, L.L.C., an Oklahoma limited liability company
("Company"), wishes to construct a twenty-four inch(24")nominal diameter pipeline for a total
distance of 479.32 feet within a twenty (20') foot width right of way corridor for the
transportation of natural gas through a Public Park. Because Company is not a public utility, as
that term is used in the City Charter and City Code, and because Company will not be providing
services to end user customers in the City, Company is not required to obtain a franchise from
the City, but is required to obtain the City's consent pursuant to a license agreement that sets
forth the terms and conditions under which Company may use the Public Park.
B. The Pipeline requested would be a part of a larger planned line that incorporates
an easement with the Fort Worth Western Railroad and is being coordinated with the U.S. Army
Corps of Engineers and the Tarrant Regional Water District.
C. The City has reviewed Company's request and agrees to grant Company a license
to use a portion of the subsurface of Trinity Park as set out in Exhibit "A" in order to construct,
operate and maintain a pipeline, on the terms and conditions set forth herein, solely for the
transportation of gas and solely in accordance with the terms and conditions of this Agreement.
Agreement
1. DEFINITIONS.
Capitalized terms used in this Agreement and not otherwise defined within this
Agreement shall have the following meanings:
Affiliate shall mean any individual, partnership, association,joint stock company, limited
liability company, trust, corporation, or other person or entity who owns or
controls, or is owned or controlled by, or is under common ownership or control
with,the entity in question.
Agreement shall mean the authorization issued to Company hereunder to use a pa AAA
a public park known as Trinity Park in the location as set out in Exhibit 1�2 Rk El
Texas Midstream Gas Services,L.L.C.Pipeline License Agreement9!iEJPage l of 18 03_07_08 PO4 : _
(i) the construction, installation, maintenance and repair of Company's Pipeline;
(ii) the use of such Pipeline for the transportation of Gas; and (iii) any other
directly related uses of Trinity Park, pursuant to and in accordance with this
Agreement.
Company shall mean Texas Midstream Gas Services, L.L.C., an Oklahoma limited
liability company, only and shall not include any Affiliate or third party.
City shall mean the area within the corporate limits of the City of Fort Worth, Texas and
the governing body of the City of Fort Worth, Texas.
Commission shall mean the Railroad Commission of the State of Texas or other
authority succeeding to the regulatory powers of the Commission.
Customer shall mean any Person located, in whole or in part, within the City.
Director shall mean the Director of the City's Department of Parks and Community
Services or authorized representative.
Gas shall mean gaseous fuels such as natural gas, artificial gas, synthetic gas, liquefied
natural gas, manufactured gas, or any mixture thereof.
Person shall mean, without limitation, an individual, a corporation, a limited liability
company, a general or limited partnership, a sole proprietorship, a join venture, a
business trust or any other form or business entity or association.
Pipeline shall mean the pipeline and other facilities approved by the Director that are
installed by Company in Trinity Park in accordance with this Agreement.
Trinity Park shall mean only that 0.174 acre portion of the dedicated public park
identified in Exhibit "A" of this Agreement, attached hereto and hereby made a
part of this Agreement for all purposes.
2. GRANT OF RIGHTS.
2.1. General Use of Trinity Park for Provision of Gas.
Subject to the terms and conditions set forth in this Agreement and the City
Charter and ordinances, the City hereby grants Company a license to (i) erect, construct,
install and maintain a Class 4, 24" Pipeline consisting of 479.32 total feet in, over, under,
along and across Trinity Park at a depth of no less than 20 feet and (ii) transport Gas
through the portions of its Pipeline in, over, under, along and across the northeastern edge
of Trinity Park. Company hereby acknowledges and agrees that this Agreement allows
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only the transportation of Gas through the City and does not allow Company to distribute,
sell or otherwise provide Gas to any Customer.
3.2. Nonexclusive.
This Agreement and all rights granted to Company herein are strictly
nonexclusive. The City reserves the right to enter into and grant other and future licenses
and other authorizations for use of Trinity Park to other Persons and entities in
accordance with applicable law and as the City deems appropriate; provided, however,
that as to the grant of subsequent licenses for use of the same license that is solely within
the discretion of the City, if a dispute arises as to priority of the use of Trinity Park, the
City will resolve such dispute such dispute in a manner that does not result in
unreasonable interference with Company's operation of the Pipeline for the purposes
provided for herein. This Agreement does not establish any priority for the use of Trinity
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 Trinity 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.
3.3. Other Permits.
This Agreement does not relieve Company of any obligation to obtain permits,
licenses and other approvals from the City or other regulatory agency necessary for the
construction, installation, maintenance or repair of Company's Pipeline or the
transportation of Gas through such Pipeline.
3.4. Bonds.
Prior to the commencement of any construction work in Trinity Park, in the City
that requires a cut, opening or other excavation, Company shall deliver to the City bonds
executed by a corporate surety authorized to do business in the State of Texas and
acceptable to the City in the proportional amount of the cost of work under the
construction contract or construction project that will be performed in Trinity Park. The
bonds shall guarantee (i) satisfactory compliance by Company with all requirements,
terms and conditions of this Agreement and (ii) full payments to all persons, firms,
corporations or other entities with whom Company has a direct relationship for the
performance of such construction, maintenance or repairs.
If any such construction, maintenance and repair work is undertaken by a
contractor of Company, Company shall also require such contractor to deliver to
Company bonds executed by a corporate surety authorized to do business in the State of
Texas and acceptable to the City in the proportional amount of the cost of work under the
construction contract or construction project that will be performed by the contractor in
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CITY ROV
Trinity Park. The bonds shall guarantee (i) the faithful performance and completion of
all construction, maintenance or repair work in accordance with the contract between
Company and the contractor and (ii) full payment for all wages for labor and services and
of all bills for materials, supplies and equipment used in the performance of that contract.
Such bonds shall name both the City and Company as dual obligees.
4. TERM
This Agreement shall become effective on the date as of which both parties have
executed it ("Effective Date") and shall expire at 11:59 P.M. CST on December 31, 2033 unless
terminated earlier as provided herein.
5. FEES AND PAYMENTS TO CITY.
5.1. License Use Fee.
On or prior to the Effective Date, Company shall pay the City as compensation
for its use of Trinity Park for the Term of this Agreement the sum of Twenty Thousand
Nine Hundred Seventy Dollars and Twenty Five Cents ($20,970.25) ("License Fee").
Company hereby acknowledges and agrees that the amount of this License Fee
constitutes just and reasonable compensation to the City for Company's use of Trinity
Park.
5.2. Other Payments.
In addition to the License Fee, Company shall pay the City all sums which may be
due the City for property taxes, license fees, permit fees, or other taxes, charges or fees
that the City may from time to time impose on all other similarly situated entities within
the City. Company shall reimburse the City for publication of this Agreement as required
by the City's Charter.
5.3. Interest.
All sums not paid when due shall bear interest at the rate of ten percent(10%) per
annum or the maximum amount allowed by law, whichever is less, computed monthly. If
such outstanding sums are paid with interest within thirty (30) days following their
respective due dates, Company's failure to pay such sums by their respective due dates
shall not, in and of itself, constitute an Event of Default under Section 9 of this
Agreement.
6. REGULATORY AUTHORITY OF THE CITY.
Company's property and operations hereunder shall be subject to such regulation by the
City as may be reasonably necessary for the protection or benefit of the general public. In this
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connection, Company shall be subject to, governed by and shall comply with all applicable
federal, state and local laws, including all ordinances, rules and regulations of the City, as same
may be adopted and amended from time to time.
7. USE OF TRINITY PARK.
7.1. Compliance with Laws, Ordinances, Rules and Regulations.
The City has the right to control and regulate the use of Trinity Park and other
dedicated parks, public places and other City-owned property and the spaces above and
beneath them. Company shall comply with all applicable laws, ordinances, rules and
regulations, including, but not limited to, City ordinances, rules and policies related to
construction permits, construction bonds, permissible hours of construction, operations
during peak traffic hours, barricading requirements and any other construction rules or
regulations that may be promulgated from time to time.
7.2. No Undue Burden.
The Pipeline shall not be erected, installed, constructed, repaired, replaced or
maintained in any manner that places an undue burden on the present or future use of
Trinity Park by the City and the public. If the City reasonably determines that the
Pipeline does place an undue burden on any portion of Trinity Park, Company, at
Company's sole cost and expense and within a reasonable time period specified by the
City, shall modify the Pipeline or take other actions determined by the City to be in the
public interest to remove or alleviate the burden.
7.3. Minimal Interference.
Prior to the undertaking of any kind of construction, installation, maintenance,
repairs or other work that requires the excavation, lane closure or other physical use of
Trinity Park, Company shall, except for work required to address an emergency, provide
at least twenty-four (24) hours' advance written notice to the City and the owners of
property adjacent to Trinity Park that will be affected. In the case of emergencies
Company shall provide notice to the affected landowners within twenty-four (24) hours
after commencement of work. In addition, during any such work, Company shall provide
construction and maintenance signs and sufficient barricades at work sites to protect the
public. The use of traffic control devices shall be consistent with the standards and
provisions of Part VI of the Texas Manual on Uniform Traffic Control Devices.
Company shall utilize appropriate warning lights at all construction and maintenance
sites where one or more traffic lanes are closed or obstructed during nighttime conditions.
Company will take all reasonable planning to minimize harm to the park land.
The pipeline will cross under the Trinity River from a bore hole located east of the Clear
Fork of the Trinity River. No trenching or trenches will be allowed, no trees shall be
removed and no permanent structures shall be placed within the boundaries of Trinity
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Park. The pipeline shall be placed at a sufficient depth to avoid interference with tree
roots. Trees located in the easement shall not be removed or pruned for any purpose
except for (i) an event of public danger which is a condition that creates an unreasonable
risk of harm; (ii) as required by State and Federal regulations; or (iii) this license
agreement is amended by the City Council. No compressor stations associated with the
pipeline shall be located within six hundred (600) feet of Trinity Park, unless the
compressor station is east of Forest Park Blvd. No pipeline surface excavation shall take
place in Trinity Park for any purpose except for (i) an event of public danger which is a
condition that creates an unreasonable risk of harm; (ii) as required by State and Federal
regulations; or(iii) this license agreement is amended by the City Council.
7.4. "As-Built" Plans and Maps.
Company, at Company's sole cost and expense, shall provide the City with as-
built plans of all portions of the Pipeline located in the City and the City's extraterritorial
jurisdiction and maps showing such Pipeline within ninety (90) calendar days following
the completion of such Pipeline. Company shall supply the textual documentation of
such as-built plans and maps in computer format as requested in writing by the City and
shall otherwise fully cooperate with the City in ensuring that the Pipeline is accurately
reflected in the City's mapping system.
7.5. Specifications of the Pipeline
The Company shall erect, install, construct, repair, replace and maintain the
Pipeline as a Class 4 pipeline as defined by the U.S. Department of Transportation,
Office of Pipeline Safety, as set out in the Code of Federal Regulations, Section 192 and
as directed by the Texas Railroad Commission. The Pipeline shall be at least a 24 inch
steel pipe, be placed at a depth of no less than 20 feet throughout the entire length of
Trinity Park and shall be construction with a horizontal directional drill from private
property outside the boundaries of Trinity Park. The finished pipeline shall have a city
approved physical barrier that the Pipeline shall pass through at both ends where the
Pipeline enter or exits the boundary of Trinity Park.
7.6 Markinz of Pipeline.
The Pipeline shall be marked, in a manner that is acceptable to the Director and in
compliance with Federal Regulations, to show conspicuously Company's name and a
toll-free telephone number of Company that a Person may call for assistance.
7.7. Surface Excavation and Additional Fees.
The City shall have the right to coordinate all excavation work in Trinity Park in a
manner that is consistent with and convenient for the implementation of the City's
program for public dedicated open space. In order to preserve the integrity of Trinity
Park, Company shall not cut, excavate or otherwise breach or damage the surface of
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Trinity Park unless the (i) Company obtains written consent from the City Council and
(ii) pays the City, for each fifty (50) linear feet of a cut, excavation or breach of any
portion of the Park as designated by the City Council. Such fee shall (i) be in addition to,
and not in lieu of, Company's obligations to restore any disturbed portion of the surface
of Trinity Park in accordance with this Agreement and (ii) not be allocated or otherwise
counted as part of the License Fee to the City.
7.8. Relocation of Pipeline.
Within forty-five (45) calendar days following a written request by the City,
Company, at Company's sole cost and expense, shall protect, support, disconnect or
relocate to another portion of Trinity Park all or any portion of its Pipeline due to street or
other public excavation, construction, repair, grading, regrading or traffic conditions; the
installation of sewers, drains, water pipes or municipally-owned facilities of any kind; the
vacation, construction or relocation of streets or any other type of structure or
improvement of a public agency; any public work; or any other type of improvement
necessary, in the City's sole discretion, for the public health, safety or welfare. If
Company reasonably requires more than forty-five (45) days to comply with the City's
written request, it shall notify the director of the City's Department Parks and
Community Services in writing and the City will work in good faith with Company to
negotiate a workable time frame.
7.9 Restoration of Trinity Park, Public Rights-of-Way and Public/Private
Property.
Company, at Company's sole cost and expense, and in a manner approved by the
City, shall promptly restore any portion of Trinity Park, City-owned property or other
privately-owned property that are in any way disturbed or damaged by the construction,
operation, maintenance or removal of any of the Pipeline to, at Company's option, as
good or better a condition as such property was in immediately prior to the disturbance or
damage. Company shall diligently commence such restoration within thirty (30) calendar
days following the date that Company first became aware of the disturbance or damage
or, if the Pipeline is being removed, within thirty (30) calendar days following such
removal.
7.10. Emergencies.
7.10.1. Work by the City.
For purposes of this Section 7.10.1, a public emergency shall be any
condition which, in the opinion of the officials specified herein, poses an
immediate threat to life, health or property and is caused by any natural or man-
made disaster, including, but not limited to, storms, floods, fires, accidents,
explosion, water main breaks and hazardous materials spills. In the event of a
public emergency, the City shall have the right to take whatever action is deemed
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appropriate by the City Manger, Mayor, Police Chief or Fire Chief, or their
authorized representatives, including, but not limited to, action that may result in
damage to the Pipeline, and Company hereby (i) releases the City, its officers,
agents, servants, employees and subcontractors from liability or responsibility for
any Damages, as defined in Section 8.1, that may occur to the Pipeline or that
Company may otherwise incur as a result of such a response, and (ii) agrees that
Company, at Company's sole cost and expense, shall be responsible for the repair,
relocation or reconstruction of all or any of its Pipeline that is affected by such
action of the City. In responding to a public emergency, the City agrees to
comply with all local, state and federal laws, including any requirements to notify
the Texas One Call System, to the extent that they apply at the time and under the
circumstances. In addition, if the City takes any action that it believes will affect
the Pipeline, the City will notify Company as soon as practicable so that Company
may advise and work with the City with respect to such action.
7.10.2. Work by or on Behalf of Company.
In the event of an emergency directly that involves that portion of the
Pipeline located in Trinity Park and necessitates immediate emergency response
work on or repairs, Company may initiate the emergency response work or repairs
or take any action required under the circumstances provided that Company
notifies the City as promptly as possible. After the emergency has passed,
Company shall apply for and obtain a construction permit from the director of the
City's Department of Parks and Community Services and otherwise fully comply
with the requirements of this Agreement.
7.11. Removal of Pipeline.
Upon the revocation, termination or expiration without extension or renewal of
this Agreement, Company's right to use Trinity Park under this Agreement shall cease
and Company shall immediately discontinue the transportation of Gas in or through the
City. Within six (6) months following such revocation, termination or expiration and if
the City requests, Company, at Company's sole cost and expense, shall remove the
Pipeline from Trinity Park (or cap the Pipeline, if consented to by the City), in
accordance with applicable laws and regulations. If Company has not removed all of the
Pipeline from Trinity Park, (or capped the Pipeline, if consented to by the City) within six
(6) months following revocation, termination or expiration of this Agreement, the City
may deem any portion of the Pipeline remaining in Trinity Park abandoned and, at the
City's sole option, (i) take possession of and title to such property or (ii) take any and all
legal action necessary to compel Company to remove such property; provided, however,
that Company may not abandon its facilities or discontinue its services within the City
without the approval of the Commission or successor agency or any other regulatory
authority with such jurisdiction.
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Within six (6) months following revocation, termination or expiration of this
Agreement and in accordance with Section 7.9 of this Agreement, Company shall also
restore any property, public or private, that is disturbed or damaged by removal (or, if
consented to by the City, capping) of the Pipeline. If Company has not restored all such
property within this time, the City, at the City's sole option, may perform or have
performed any necessary restoration work, in which case Company shall immediately
reimburse the City for any and all costs incurred in performing or having performed such
restoration work.
8. LIABILITY AND INDEMNIFICATION.
8.1. Liability of Company.
Company shall be liable and responsible for any and all damages, losses,
liabilities (joint or several), payments, obligations, penalties, claims, litigation, demands,
defenses, judgments, lawsuits, proceedings, costs, disbursements or expenses (including,
without limitation, fees, disbursements and reasonable expenses of attorneys, accountants
and other professional advisors and of expert witnesses and costs of investigation and
preparation) of any kind or nature whatsoever (collectively "Damages"), which may
arise out of or be in any way connected with (i) the construction, installation, operation,
maintenance or condition of the Pipeline or any related facilities or appurtenances; (ii) the
transportation of Gas through the Pipeline; (iii) any claim or lien arising out of work,
labor, materials or supplies provided or supplied to Company, its contractors or
subcontractors; or (iv) Company's failure to comply with any federal, state or local law,
ordinance, rule or regulation, except to the extent directly caused by the negligent or
grossly negligent act(s) or omission(s) or intentional misconduct of the City.
COMPANY HEREBY ASSUMES ALL LIABILITY AND RESPONSIBILITY
FOR PROPERTY LOSS, PROPERTY DAMAGE AND/OR PERSONAL INJURY OF
ANY KIND, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND
OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN
CONNECTION WITH ITS USE OF THE PREMISES UNDER THIS AGREEMENT
OR WITH THE USE, MAINTENANCE, OCCUPANCY, EXISTENCE OR
LOCATION OF THE PREMISES, EXCEPT TO THE EXTENT CAUSED SOLELY
BY THE NEGLIGENCE OR INTENTIONAL MISCONDUCT OF THE CITY.
8.2 Indemnification.
COMPANY COVENANTS AND AGREES TO, AND DOES HEREBY,
INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS,
AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS,
COMMISSIONS, BOARDS AND VOL UNTEERS FROM AND A GAINST ANY AND
ALL CLAIMS OR LAWSUITS FOR EITHER PROPERTY DAMAGE OR LOSS
(INCLUDING ALLEGED DAMAGE OR LOSS TO COMPANY'S BUSINESS AND
ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY, INCLUDING
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DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER,
WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION
WITH THE USE, MAINTENANCE, OCCUPANCY, EXISTENCE OR LOCATION
OF THE PREMISES, EXCEPT TO THE EXTENT CAUSED SOLELY BY THE
NEGLIGENCE OR INTENTIONAL MISCONDUCT OF THE CITY.
8.3 Assumption of Risk and Environmental Remediation.
COMPANY HEREBY REPRESENTS TO THE CITY THAT (i) COMPANY
HAS FULLY INSPECTED THE PREMISES; (ii) COMPANY IS SATISFIED WITH
THE CONDITION OF THE PREMISES,AND (iii) COMPANY HAS BEEN FULLY
ADVISED OF ITS OWN RIGHTS WITHOUT RELIANCE UPON ANY
REPRESENTATION MADE BY THE CITY, ITS OFFICERS, AGENTS,
SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS,
COMMISSIONS, BOARDS OR VOLUNTEERS. COMPANY HEREBY
UNDERTAKES AND ASSUMES, FOR AND ON BEHALF OF COMPANY, ITS
OFFICERS,AGENTS, CONTRACTORS, SUBCONTRACTORS AND EMPLOYEES,
ALL RISK OF DANGEROUS CONDITIONS, IF ANY, ON OR ABOUT THE
PREMISES.
Although, to the best of the City's knowledge, the Premises comply with all
applicable federal, state and local environmental laws and regulations (collectively
"Environmental Laws"), the City does not warrant such. COMPANY HEREBY
COVENANTS AND AGREES THAT COMPANY, AT ITS SOLE COST AND
EXPENSE, SHALL BE FULLY RESPONSIBLE FOR THE VIOLATION OF ANY
ENVIRONMENTAL LAWS CAUSED,IN WHOLE OR IN PART, BY COMPANY, ITS
OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS,
SUBCONTRACTORS OR INVITEES, AND ANY REMEDIATION THAT MAY BE
REQUIRED AS A RESULT OF SUCH VIOLATION, EXCEPT TO THE EXTENT
CA USED BY THE CITY.
8.4. Defense of Indemnitees.
In the event any action, lawsuit or other proceeding is brought against any
Indemnitee by reason of any matter for which the Indemnitees are indemnified hereunder,
the City shall give Company prompt written notice of the making of any claim or
commencement of any such action, lawsuit or other proceeding, and Company, at
Company's sole cost and expense, shall resist and defend the same with reasonable
participation by the City and with legal counsel selected by Company and specifically
approved by the City. In such an event, Company shall not admit liability in any matter
on behalf of any Indemnitee without the advance written consent of the City.
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9. INSURANCE.
Company shall procure and maintain at all times, in full force and effect, a policy or
policies of insurance to provide coverages as specified herein, naming the City as an
additional insured and covering all public risks related to the use, occupancy, condition,
maintenance, existence or location of Trinity Park and the construction, installation,
operation, maintenance or condition of the Pipeline, including the transportation of Gas
through the Pipeline. The insurance required hereunder may be met by a combination of
self-insurance,primary and excess policies.
9.1. Primary Liability Insurance Coverage.
• Commercial General Liability:
$1,000,000 per occurrence, 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.
• Property Damage Liability:
$10,000,000 per occurrence
• Automobile Liability:
$1,000,000 per accident,
including, but not limited to, all owned, leased, hired or non-owned motor
vehicles used in conjunction with the rights granted under this Agreement
• Worker's Compensation:
As required by law; and,Employer's Liability as follows:
$1,000,000 per accident.
9.2. Revisions to Required Coverage.
At the reasonable recommendation of the City's Risk Manager, the City may at any
time revise insurance coverage requirements and limits required by this Agreement.
Company agrees that within thirty (30) days of receipt of written notice from the City,
Company will implement all such revisions requested by the City. 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.
9.3. Underwriters and Certificates.
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Company shall procure and maintain its insurance with underwriters authorized to
do business in the State of Texas and who are acceptable to the City in terms of solvency
and financial strength. Within thirty(30) days following adoption of this Agreement by the
City Council, Company shall furnish the City with certificates of insurance signed by the
respective companies as proof that it has obtained the types and amounts of insurance
coverage required herein. In addition, Company shall, on demand, provide the City with
evidence that it has maintained such coverage in full force and effect.
9.4. Deductibles.
Deductible or self-insured retention limits on any line of coverage required herein
shall not exceed $1,000,000 in the annual aggregate unless the limit per occurrence, or per
line of coverage, or aggregate is otherwise approved by the City.
9.5. No Limitation of Liability.
The insurance requirements set forth in this Section 9 and any recovery by the City
of any sum by reason of any insurance policy required under this Agreement shall in no way
be construed or effected to limit or in any way affect Company's liability to the City or other
persons as provided by this Agreement or law.
10. DEFAULTS.
The occurrence at any time during the term of this Agreement of one or more of the
following events shall constitute an"Event of Default"under this Agreement:
10.1. Failure to Pay License Fee.
An Event of Default shall occur if Company fails to pay any License Fee on or
before the respective due date.
10.2. Breach.
An Event of Default shall occur if Company materially breaches or violates any
of the terms, covenants, representations or warranties set forth in this Agreement or fails
to perform any obligation required by this Agreement.
10.3. Bankruptcy, Insolvency or Receivership.
An Event of Default shall occur if Company (i) files a voluntary petition in
bankruptcy; (ii) is adjudicated insolvent; (iii) files any petition or fails to contest any
petition filed against it seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief for itself under any laws relating to
bankruptcy, insolvency or other relief for debtors; (iv) seeks, consents to or acquiesces in
the appointment of any trustee, receiver, master, custodian or liquidator of Company, any
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of Company's property or any revenues, issues, earnings or profits thereof; (v) makes an
assignment for the benefit of creditors; or (vi) fails to pay Company's debts generally as
they become due.
10.4. Violations of the Law.
An Event of Default shall occur if Company violates any existing or future federal,
state or local laws or any existing or future ordinances,rules and regulations of the City.
11. UNCURED DEFAULTS AND REMEDIES.
11.1. Notice of Default and Opportunity to Cure.
If an Event of Default occurs on account of Company's failure to pay the License
Fee in accordance with Section 10.1, such Event of Default shall be deemed an Uncured
Default and the City shall have the right to terminate this Agreement immediately upon
provision of written notice to Company. If an Event of Default occurs for a reason other
than for failure to pay the License Fee, the City shall provide Company with written
notice and shall give Company the opportunity to cure such Event of Default. For an
Event of Default which can be cured by the immediate payment of money to the City,
Company shall have thirty (30) days from the date it receives written notice from the City
to cure the Event of Default. For any other Event of Default, Company shall have sixty
(60) days from the date it receives written notice from the City to cure the Event of
Default. If any Event of Default is not cured within the time period specified herein, such
Event of Default shall, without further notice from the City, become an "Uncured
Default" and the City immediately may exercise the remedies provided in Section 11.2.
11.2. Remedies for Uncured Defaults.
Upon the occurrence of an Uncured Default, the City shall be entitled to exercise,
at the same time or at different times, any of the following remedies, all of which shall be
cumulative of and without limitation to any other rights or remedies the City may have:
11.2.1. Termination of Agreement.
Upon the occurrence of an Uncured Default, the City may terminate this
Agreement. Upon such termination, Company shall forfeit all rights granted to it
under this Agreement, and, except as to Company's unperformed obligations and
existing liabilities as of the date of termination, this Agreement shall
automatically be deemed null and void and shall have no further force or effect.
Company shall remain obligated to pay and the City shall retain the right to
receive License Fees and any other payments due up to the date of termination.
Company shall remove the Pipeline from and restore Trinity Park as and when
requested by the City. The City's right to terminate this Agreement under this
Section 11.2.1 does not and shall not be construed to constitute any kind of
Texas Midstream Gas Services,L.L.C.Right-of-Way Use Agreement
Page 13 of 18
limitation on the City's right to terminate this Agreement for other reasons as
provided by and in accordance with this Agreement; provided, however, that
Company may not abandon the Pipeline without the approval of the Commission
or successor agency or other regulatory authority with jurisdiction, if such action
without such approval is prohibited at the time by applicable federal or state law
or regulation.
11.2.2. Legal Action Against Company.
Upon the occurrence of an Uncured Default, the City may commence
against Company an action at law for monetary damages or in equity, for
injunctive relief or specific performance of any of the provisions of this
Agreement which, as a matter of equity, are specifically enforceable.
12. PROVISION OF INFORMATION.
12.1. Filings with the Commission.
Company shall provide copies to the City of all documents which Company files
with or sends to the Commission concerning or related to its transportation of Gas
through or other operations in the City, including, but not limited to, filings related to (i)
tariffs; (ii) rules, regulations and policies requested, under consideration or approved by
the Commission; and (iii) applications and any supporting pre-filed testimony and
exhibits filed by Company or third parties on behalf of Company, on the same date as
such filings are made with the Commission. In addition, Company shall provide the City
with copies of records, documents and other filings that Company is required to maintain
or supply to the Commission under any applicable state or federal law, rule or regulation.
12.2. Lawsuits.
Company shall provide the City with copies of all pleadings in all lawsuits to
which Company is a party and that pertain to the granting of this Agreement and/or the
transportation of Gas through the City within thirty (30) days of Company's receipt of
same.
13. COMPANY AS INDEPENDENT CONTRACTOR.
It is expressly understood and agreed that Company shall operate as an independent
contractor as to all rights and privileges granted by this Agreement, and not as an agent,
representative or employee of the City. Company shall have the exclusive right to control the
details of its business and other operations necessary or appurtenant to the transportation of Gas in
accordance with the terms and conditions of this Agreement, and shall be solely responsible for the
acts and omissions of its officers, agents, servants, employees, contractors and subcontractors.
Company acknowledges that the doctrine of respondeat superior shall not apply as between the
City and Company, its officers, agents, employees, contractors and subcontractors. Company
Texas Midstream Gas Services,L.L.C.Right-of-Way Use Agreement
Page 14 of 18
further agrees that nothing herein shall be construed as the creation of a partnership or joint
enterprise between the City and Company.
14. ASSIGNMENT PROHIBITED.
Company may not assign or otherwise transfer any of its rights or obligations under this
Agreement unless specifically authorized in writing by the City, which authorization shall not be
unreasonably withheld.
15. NOTICES.
Notices required pursuant to the provisions of this Agreement shall be conclusively
determined to have been delivered when(i)hand-delivered to the other party, its agents, employees,
servants or representatives, or (ii) received by the other party by United States Mail, postage
prepaid,return receipt requested,addressed as follows:
To THE CITY: To COMPANY:
City of Fort Worth Chesapeake Energy Marketing, Inc.
Parks and Community Services Director Kerry Clapp, Area Operations Manager
1000 Throckmorton 6100 N. Western Avenue
Fort Worth,TX 76102 Oklahoma City, OK 73118
with a copy to:
City of Fort Worth
Department of Law
Attn: Attorney for Parks and Community Services
1000 Throckmorton
Fort Worth, TX 76102
16. NON-DISCRIMINATION COVENANT.
Company shall not discriminate against any person on the basis of race, color, national
origin, religion, handicap, sex, sexual orientation or familial status in the receipt of benefits from
Company's business operations, in any opportunities for employment with Company or in the
construction or installation of the Pipeline.
17. NO WAIVER.
The failure of the City to insist upon the performance of any term or provision of this
Agreement or to exercise any rights that the City may have, either under this Agreement or the law,
shall not constitute a waiver of the City's right to insist upon appropriate performance or to assert
any such right on any future occasion.
Texas Midstream Gas Services,L.L.C.Right-of-Way Use Agreement
Page 15 of 18
18. GOVERNING LAW AND VENUE.
This Agreement shall be construed pursuant to and in accordance with the laws of the
United States of America and the State of Texas. If any action, whether real or asserted, at law or in
equity, arise out of the terms of this Agreement, Company's transportation of Gas or Company's use
of Trinity Park, venue for such action shall lie exclusively in state courts located in Tarrant County,
Texas or the United States District Court for the Northern District of Texas,Fort Worth Division.
19. CONFERENCES.
At the request of either the City or Company, the City and Company shall meet at
reasonable times and upon reasonable notice to discuss any aspect of this Agreement, Company's
Pipeline, Company's operations in the City, Company's transportation of Gas or Company's use of
Trinity Park.
20. SEVERABILITY.
If any provision of this Agreement is held to be invalid, illegal or unenforceable by a final
order entered by a court of competent jurisdiction, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired. For purposes of this Agreement,
a court order shall be final only to the extent that all available legal rights and remedies pertaining to
such order, including, without limitation all available appeals, have been exhausted. In such an
event, the City and Company agree that they shall amend or have amended this Agreement to
comply with such final order entered by a court of competent jurisdiction.
21. FORCE MAJEURE.
In the event Company's performance of any of the terms, conditions or obligations required
by this Agreement is prevented by a cause or event that is not within Company's reasonable control,
Company's non-performance shall be deemed excused for the period of such inability. Causes or
events that are not within the Company's control shall include, but not be limited to, acts of God,
strikes, sabotage, riots or civil disturbances, failure or loss of utilities, explosions and natural
disasters.
22. HEADINGS NOT CONTROLLING.
Headings and titles, other than those captions in Section 1, that are used in this Agreement
are for reference purposes only and shall not be deemed a part of this Agreement.
23. ENTIRETY OF AGREEMENT.
Texas Midstream Gas Services,L.L.C.Right-of-Way Use Agreement
Page 16 of 18
This Agreement, including the schedule of exhibits attached hereto and any documents
incorporated herein by reference, contains the entire understanding and agreement between the City
and Company as to the matters contained herein. Any prior or contemporaneous oral or written
agreement is hereby declared null and void to the extent in conflict with the terms and conditions of
this Agreement. This Agreement shall not be amended unless agreed to in writing by both parties
and approved by the City Council of the City.
EXECUTED as of the later date below:
CITY OF FORT WORTH: TEXAS MIDSTREAM GAS SERVICES, L.L.C.
By: jPre
Carl L. S art m C. Johnso j-1NA
Acting Assistant City Manager dent
Date: _ d 8' Z
//
APPROVED AS TO FORM AND LEGALITY:
By: ��'C (A.k,- +�OyVvn
Assistant City Attorney
M&C:
Attested By.
C\-\ � —ILL
Marty Hendrix
City Secretary
Texas Midstream Gas Services,L.L.C.Right-of-Way Use Agreement
Page 17 of 18
EXHIBIT "A"
Company may only use approximately 479.32 feet crossing the northeastern edge of Trinity Park
as depicted below:
Texas Midstream Gas Services,L.L.C.Right-of-Way Use Agreement
Page 18 of 18
EXHIBIT "A"
TARRANT COUNTY, TEXAS
c-048.0 J.M.C. LYNCH SURVEY, A-955
TRACT 4/5 LLC O
INSTRUMENT # D203388514 Q
TRACT 4 �O
CALLED 4.841 ACRES J
FND. 5/8" C.I.R.
FND. 5/8" "BRITTIAN $ CRAWFORD- (CM) z
C.LR.'TNP'
N 42'54'49" E P'
FND. 1/2" I.R. 51.15' W c
N 42'54'49" E O g 3 0
22.12'
FND. 1/2" C.I.R. cr
"429-0550 EVERAGE" (CM) O
� 3
r}1 m
—04 .00 20 O
TRINITY 2.87 PARTNERS LP.
VOL 15714. PG. 59
CALLED 2.869 ACRES q;
S 21'48'59" E
20' PERMANENT 312.37'
FND. 1/2"C I,R. EASEMENT
"429-7660 EVERAGE'(CM)
1`
R — 1482.50'
N 21'48'59" W A= 06'51'54"
479.32' BRG. S15'20'51"E
8, CH. 177.53'
ARC = 177.63
"TRINITY PARK"
RORC-051.00
CITY OF FORT WORTH
FND. 1/2- I.R. VOL 901, PG. 172
REMAINDER
S 21'48'59" E
373.69'
wm
r
CfL DETAIL
N.T.S. Kati ' ,
:A. ...... .........• WILLIAM C. BODEN
WIC LIW C...80DE.N. REGISTERED PROFESSIONAL LAND SURVEYOR
...................... TEXAS REGISTRATION NO. 1932
(CM) CONTROL MONUMENT `�90'14 pr;Q''4
q ,C.S;,. a0 BEARINGS BASED ON TEXAS STATE PLANE
TOTAL LINEAR FEET: 373.69 4 3U��E COORDINATE SYSTEM NAD 83, NORTH CENTRAL ZONE,
PERMANENT EASEMENT = 0.174 ACRES . DERIVED FROM GPS OBSERVATIONS.
TITLE INFORMATION PROVIDED BY: PREPARED BY."U$rMG EKNEEm"G,LA
4754 RIY 777 50U7N
TEXAS MIDSTREAM GAS SERVICES, LLC. 801.11,TIZtAS-76118
SHEET 1 OF 2 P"D"e 817-55D-400D
t e X S MIDSTREAM
1 12 18 J I REVISED DEED REFERENCE TRB PROPOSED ROKKAS-ROCK CREEK PIPEUNE CROSSING THE PROPERTY OF
REV. DATE BY I DESCRIPTION cHK. CITY OF FORT WORTH
PROJECT NO, 12831 TARRANT COUNTY, TEXAS
DRAWN BY.,JC DATE:DB/3t/07 DWG. NO. REV.
OMUSTANG ENGINEERING, L.P. CHECKED BY:WCB DATE:08/31/07
r 6EMBROOK 7EX4S SCALE:1' . 100' APP.:WJC RORC-051.00 1
EXHIBIT "A"
TARRANT COUNTY, TEXAS
-048.0o J.M.C. LYNCH SURVEY, A-955
TRACT 4/5 LLC p
INSTRUMENT III D203388514 O
TRACT 4
CALLED 4.841 ACRES
FND. 5/8" C.I.R.
FND. 5/8" "BRITTIAN & CRAWFORD- (CM) Z
C.I.R."TNP" Nt m
N 4254'49" E � X
51.15'
FND. 1/2" I.R. WT. O
N 42'54'49"
22.12' "
FND. 1/2" C.I.R.
"429-0550 EVERAGE" (CM) 3
ROR -J4 ,0 ZO O
TRINITY 2.87 PARTNERS L.P.
VOL 15714. PG. 69
CALLED 2.869 ACRES
S 21'48'59" E
20' PERMANENT 312.37'
FND. 1/2" C.I.R. EASEMENT
'429-7660 EVERAGE" (CM)
R - 1482.50'
N 21'48'59" W A - 06'51'54"
47932' ERG. S15'20'51"E
� .
, CH. = 177.53'
ARC = 177.83
"TRINITY PARK"
RORC-051.00
CITY OF FORT WORTH
FND. 1/2- I.R. VOL 901, PG. 172 `
REMAINDER
S 21'48'59' E
373.69'
Cf L DETAIL �.
OF C (_
N.T.S.
........... VAWAM C. BODEN
WILLIAl C.SODEN REGISTERED PROFESSIONAL LAND SURVEYOR
••....•"'"' """"...�. TEXAS REGISTRATION NO. 1932
(CM) = CONTROL MONUMENT �:�9pfT932 a-grr.'
q ,£SS��• y0 BEARINGS BASED ON TEXAS STATE PLANE
TOTAL LINEAR FEET. 373.89 S11R�fG COORDINATE SYSTEM NAD 83, NORTH CENTRAL ZONE,
PERMANENT EASEMENT = 0.174 ACRES DERIVED FROM GPS OBSERVATIONS.
PREPARED BY' MUSTANG ENGINEERING. LP.
TITLE INFORMATION PROVIDED IBY: 4754 HW sn SOUTH
TEXAS MIDSTREAM GAS SERVICES, LLC. SHEET 1 OF P .�-TO-,00 If
't e �( S MIDSTREAM
1 12 18 JC REVISED dEED R FFRENCE TR6 PROPOSED ROKKAS - RDD( MEEK PIPELINE CROSSING 1NE PROPERTY OF
REV. DATE BY DESCRIPTION CITY OF FORT WORTH
PROJECT NO. 12831
TARRA IT CpUNTY, TEXAS
MUSTANG ENG/NFFRINC,,, L. P. DRA11W Br:,Ic DAT�06/J1/177 DWG- Nil REV.
cHECKM BY WCB DA'F-DSI31 f07 RORC-051.00 1
8ENIMOOK TEXA3 SCALE:T" - 100' APP:WJC
City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 1/8/2008
DATE: Tuesday, January 08, 2008
LOG NAME: 80TRINITYGAS3 REFERENCE NO.: L-14451
SUBJECT:
Authorize Conversion of 0.174 Acres of Trinity Park for a Gas Pipeline to Transport Natural Gas and
Execution of a License Agreement with Texas Midstream Gas Services
RECOMMENDATION:
It is recommended that the City Council:
1. Conduct a public hearing under the guidelines set forth by the Texas Parks and Wildlife Code, Chapter
26, Protection of Public Parks and Recreational Lands;
2. Find that no feasible or prudent alternative exists for the location of the proposed gas pipeline for Trinity
Park as noted in the discussion below;
3. Find that the proposed gas pipeline includes all reasonable planning to minimize harm to the park land,
including that the pipeline will cross under the Trinity River from a bore hole located east of Forest Park
Boulevard, the pipeline will be placed at a sufficient depth to avoid interference with tree roots, there will be
no compressor stations associated with this pipeline within 600 feet of Trinity Park unless it is east of Forest
Park Boulevard and there will be no pipeline surface excavation from in the park or pruning or removal of
trees for any purpose except for: (i) an event of public danger which is a condition that creates an
unreasonable risk of harm as governed by State and Federal guidelines or regulations; or (ii) the license
agreement is amended by the City Council;
4. Close the public hearing and authorize the City Manager to convert approximately 0.174 acres of
dedicated parkland to bore a 24-inch gas pipeline in Trinity Park, being a portion of land in the JMC Lynch
Survey, Abstract No. 955, as recorded in Volume 901, page 172, Deed Records, Tarrant County, Texas;
and
5. Authorize the execution of a License Agreement with Texas Midstream Gas Services for the placement
of a Class 4 gas pipeline in the northeastern edge of Trinity Park for the license fee of$20,970.25.
DISCUSSION:
The Parks and Community Services Department (PACS) has been approached by Texas Midstream Gas
Services (TMGS) requesting a conversion of approximately 0.174 acres of parkland for the proposed
pipeline in Trinity Park. A 20-foot tract of land is proposed for the 24-inch gas pipeline. TMGS has agreed to
bore the entire length of the park to minimize any impacts to surface.
In accordance with Texas Parks and Wildlife Code, Chapter 26, the City of Fort Worth seeks to convert
approximately 0.174 acres of parkland for the purpose of installing a gas pipeline. (Exhibit A)
The suggested alignment through Trinity Park follows the existing railroad right-of-way, but does deviate a
short distance through parkland in order to navigate a turn to follow the railroad right-of-way to the north.
Logname: 80TRINITYGAS3 Page 1 of 2
Staff had requested that this portion of the proposed pipeline (along the railroad right-of-way through Trinity)
be bored due to the possible negative impact on the existing trees from using an open trench method. The
technique of boring normally follows a straight alignment and cannot accommodate significant deviations. In
order to utilize the boring technique through Trinity Park, the 0.174 acres of Trinity Park required conversion
in order to exit the park, establish a staging area on private property and turn north with an additional bore
to realign with the railroad right-of-way. Representatives from the Mustang Engineering estimate the depth
of the pipeline in Trinity to be 20-feet to 30-feet.
The proposed alignment and installation method will have the least impact on park users as well as the
surrounding private property owners. The existing railroad right-of-way offers a suitable corridor through the
City and is the most feasible and prudent route through the park. The park area being converted is less than
one-quarter of an acre and after review of the existing master plan for Trinity Park is not slated for any
future development due to its close proximity to the railroad. The remaining railroad right-of-way in the park
is already encumbered and as such will not be developed for any kind of park use.
Staff is recommending, as a condition of granting this license, that TMGS be assessed the recommended
standard fee of $43.75 per linear foot of pipeline. This is consistent with fees assessed under the City's
current Right-of-Way Use Agreements for installation of non-utility equipment, appliances or appurtenances
in public right-of-way. In this instance, a fee of approximately $20,970.25 will be assessed for approximately
479.32 linear feet of permanent pipeline. TMGS has been made aware of this fee and is agreeable to this
assessment. The funds received from the license agreement will be used in compliance with the Parks and
Community Service Department's Park Facility Development Guidelines.
On September 26, 2007, the Parks and Community Services Advisory Board endorsed staffs
recommendation that the City Council authorize the conversion of approximately 0.174 acres of parkland at
Trinity Park for the installation of a gas pipeline.
In accordance with state law, the conversion was advertised in the Fort Worth Star-Telegram on September
24, October 2, and October 9, 2007. Once converted, PACS will enter into a lease agreement with TMGS
for the gas pipeline.
Signage was posted at the site on September 14, 2007, announcing the proposed conversion and providing
instructions for directing comments to the department. Letters announcing the proposed conversion were
sent to the president of Arlington Heights, Linwood, Sunset Terrace, Mistletoe Heights, and Alamo Heights
Neighborhood Associations on September 14, 2007.
The conversion is located in COUNCIL DISTRICT 9.
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that the Parks and Community Services Department is responsible for the
collection and deposit of funds due to the City under this agreement.
TO Fund/Account/Centers FROM Fund/Account/Centers
C282 446300 801929990100 $20,970.25
Submitted for City Manager's Office by: Libby Watson (6183)
Originating Department Head: Richard Zavala (5704)
Additional Information Contact: Richard Zavala (5704)
Logname: 80TRINITYGAS3 Page 2 of 2