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HomeMy WebLinkAboutContract 37621-A1�s�/�Nan ECRU AMENDMENT TO PIPELINE LICENSE AGREEMENT [CITY SECRETARY CONTRACT NO.37621] This AMENDMENT TO PIPELINE LICENSE AGREEMENT [CITY SECRETARY CONTRACT NO. 37621] ("Amendment") is entered into by and between the CITY OF FORT WORTH, a home rule municipal corporation of the State of Texas located within Tarrant, Denton, and Wise Counties, Texas (hereinafter referred to as the "City") acting herein by and through its duly authorized City Manager or duly designated Assistant City Manager, and TEXAS MIDSTREAM GAS SERVICES, L.L.C., an Oklahoma limited liability company (hereinafter referred to as "Company") acting herein by and through its duly authorized representative. RECITALS WHEREAS, the City of Fort Worth ("City") and Texas Midstream Gas Services, LLC ("Company") made and entered into a Pipeline License Agreement ("Agreement"), City Secretary Contract No. 37621, authorized by City Council by M&C L44561 on September 19, 2008, to allow the installation and construction of a natural gas pipeline; and WHEREAS, a copy of the Agreement is attached hereto as Exhibit " 2"; and WHEREAS, Exhibit "A" in the Agreement depicts the alignment and location of the natural gas pipeline within the licensed area; and WHEREAS, physical conditions have changed, within the licensed area, therefore, the location of the natural gas line, as depicted in Exhibit "A" of the Agreement, required a realignment; Ind WHEREAS, City and Company agree to execute this Amendment to replace the original plat, with a revise plat, in the Agreement to depict the realignment and revised location of the natural gas line within the license area. RECEIVED �JG 15 2�ig R R CE IV E D AUC} OFFICIAL RECORD CITY SECRETARY TX-TARR-CFSB-010.00 f NOW THEREFORE, City and Company, acting herein by and through their duly authorized representatives, do mutually covenant and agree that the Agreement, is hereby amended as follows: 1. The six (6) page plat attached as Exhibit A, to the Agreement, depicting the location of the natural gas line, is hereby replaced, and the three (3) page plat attached as Exhibit "1", Revised Legal Description of Natural Gas Line, to this Amendment to Pipeline License Agreement [City Secretary Contract No. 37621], is substituted in its place and incorporated herein to the Agreement. 2. The Agreement incorrectly labels the numbered pages. The last page of the Agreement, any exhibits excluded, shall be Page 22. 3. Except as amended by this Amendment to Pipeline License Agreement [City Secretary Contract Mn 376211, all other provisions of the Agreement which are not expressly amended herein shall remain in full force and effect. EXECUTED as of the later date below, but effective as of the date of the Agreement. CITY OF FORT WORTH: Susa'a�l%nis Assistant -City Manager Date: Approved as to Form and Legality: Assistant City Attorney w� ��'�� Chi �•, tit ;r� i TX-TARR-CFSB-010.00 2 I vi ^ TEXAS MIDSTREAM GAS SERVICES, L.L.C., an Oklahoma limited liability company eowpo- Robert S. Purgason Chief Operating Officer ACKNOWLEDGEMENTS STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared 6"- o4x Ata.l IS' , known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he/she executed the same for the purposes and consideration therein expressed, as the act and deed of the CITY OF FORT WORTH, and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this �-'F day of 20 PI3 LINDA M. fiIRRLiNGER MY COMMISSIOP� EXPIRES February 2, 2014 Notary Public, State of'1'exas STATE OF OKLAHOMA § COUNTY OF OKLAHOMA § BEFORE ME, the undersigned authority, a Notary Public in and for the State of /xas, on this day personally appeared Robert S. Purgason, Chief Operating Officer of TEXAS MIDSTREAM GAS SERVICES, L.L.C., known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed, as the act and deed of TEXAS MIDSTREAM GAS SERVICES, L.L.C., and in the capacity therein stated. ly GI EN UNDER MY HAND AND SEAL OF OFFICE this day of INN N. Drp& �`�4104��P NOTg/o 4as see a as Glass, A� sham Mass M # 10004827 '; Mass ft Gdow EXP. 06178114 otar Pu of Oklahoma as . •''���`�� TX—TARR—CFSB-010.00 3 I Exhibit "1" Revised Legal Description of Natural Gas Line L 1 DETAIL ..A.. �. L4: L42 SCALE 1" = 50" UNE DISTANCE 137 'r ` 44 L38 2 7 ' L39 L40 48:84' L41 L42 64400 L43 5.00 44 46.03' L45 123,03 L46 .118.81' L47' 53 4 ` L48 4.04 L49 4. L50 MOW L51 37 9` L5 L53 3.49'' 154 43.34 SEE GOSPEE I<IN�0% 1 Awe OF G40 J COLLETT SURVPs y IN CHRIST. P&NTECOSTAI., INc. vot. 14567, 1? .;<4O k- 260 CALLED 13.368 ACRES J. COLLETT SURVEY A-260 TARRANT COUNTY,'TEXAS FND E: 120C1sRS SU12i�Is}' A-f,$92 ACCESS ROAD 0000000000 P L LINE 'BEARING- ' DISTANCE- Lt N 32— 0322 l' 33f- 9' L2 29'30.37" W 48.55 l3 , N 22604 40" W 2 . 3'' L4 N 20016'1 i" W 122. l5 N-24' ' W 1 414 L6. N 8'5 '37"--W 36. ' LB N 09'31 54" W 254,05 L9 N 0' 8' 6" W 192.90' UO (1481201" 19169 L11 N 0 '2 '1 " 44.9 ' 112 ` N .13'21'29" E . '.24:71' L1 V . "N'Y4'26 4" E "' 1" 39 t14 N'1AV 6'54" E 1:50: L75' N 15"1 '4 " 4' Ci6 N 1618*45" E 20.69' L17 N '2 545*4 6 40' L18 9'4 8" E 22C46' t19 "_S26'45 "`W 14:6 ' t21. S. -15' 18 45 lV 37. ' L27 S 14'26 54 W 114350 L23 • . S _ 14'26'54" W 21:2 • L24=211WM" , W 3: 9' L25 W 190.311 1900497: ' 50 4L29 E 2 .09 ' l30 8' '37' 235.43'- L3t' S. 24.51115" E 139.92` L32 L33 S 2 04'40 E "263 ' L3a : 229 30 37 E 14 . 1 L35 .S 3203'22 E 344.55 t 36 NO 8W 0 29" 24,14• CITY 23 15 TAi?RANT CbIJNTY, TEXAS pl 36 TA_rl ALVD _ NDtEs " tttcr43E ARZ4 I HERM STATE THAT THIS,KAT iHE6eftvT�XA5 T TE TUNE �0-QRQMTETE SITYSSTTEIX NAD a DA M Ta �'n64 �PROPOSED 0 4 TTHEE iPROWO. (HQ TC,E11tIQil30diE).DERryED fAt>!.1 CPS C$?ER3AT,ONS10 ARE 'C ASTER f3A5 ON M, IUI- !#Uj9.ES¢!j 2. (XI 1,'3AS63.QAf. Y-6,A97,I71i.0<) _tow otfTst 24) WhbE ec WkITUDE ARE NAO di OEODRAPHlCI, p,.R R08ERT L YOUNG- 3.) tW IS A J 1. 110EN5E AREA 'PUT AND OOES NDf REPRESENT ( .q 5400 A TRU QQUp-QARY SURVEY 11R5 SURVEY IS DASEQ OH OWNER P G'7QF Oat Q AND EASEMENT 9IFORVATID+1 P1F0}TR1ED 0Y TEXAS I.IIDSiREAtf �,AS "7,1,,?$,� -SEjWcES ONLY:'SU R. DID NOt ADS/RACE SUAJECJ 1RAtT AND ROBERT L YDUhG :THERE MAY DE E. =4w 1 O7NEit fNWUBRAiCES THAT AFFECT .- - -� THE SUBJECT TRACT'THATe ARt NOT, SHOM'J HEREON•. EXIS1RTG UTq,IT¢S. REGISTERED PROFESSIONAL1 IO SDRYEYOR ARE SIRI,VVN PER ABOVE .,C,ROUND'WobiCE ONLY, STATE OF liXAS 15400 MIDST EAIV a. s....y.1 qo ,s Ev aAt 8N DESCRiPt10N CLARK YIELD TO INDl/S-20' PERMANENTEASEMENT PROJECT NO..' .: 090SO17 _ CITY' OF FORT -WORTH It Y . _ 11.91 ..TmtRANT COUNTY, *E AS UNG & A$SOCIATES DRAW h* KYO j0ltoe,11,01134$ 01140. NO, REV; stmem wio SuRf +iia//��',ouml /" TES' " �t'0 crs o# CHECkM BY S9 DATE• 1U-13-09 7X-TARR-cF58-o10.O f 0 4i01 4P BOTxE W£ST, TORT 7AW TE 740 4 .... PtiaRz {pOii) t>t 'vats+ u+assowrt 172 7401 SCALE:.. 14=300' 10pa ... - I OF XYOUNF�► 1 Experlenced Surveyorsi i of t.C3. Brix i2Ib09Poll 1i/or#Ir, 7X 7b1 1-1G09 7e1,: 817�292-7600 Fax: 817492-7601 www.youngandassociates.biz 2Q" LICENSE AREA B>«1nG a 1.03 acre tract otlnnd situated iu die Ii. Rogers Sunay, A6strnct No. 1292, Tarraot County, Tesas, being oti•er, under and across a called 207.29 ncre tract ofland as described in a Deed to The City of Port Worth. as recorded in Volume Sui% Page 210, of the Official Public Records of Tarrant County, Texas, said 1,03 acre tract of land being more particularly described as fellod'st i11;G1NNING at a point far comer, in the South line of said called 207.29 acre tract, &ant tyhich aft I '/+ inch iron rod found for the Southwest comer of said called 207.29 acre tract bears N 89100'29 W 72.33 feel; THENCE N 32°03'22" W. a distance of 331.49 feet to a point for comer; WENCE N 29030*37" W, a distance of 148.55 feet to a point for comer; THENCE N 22004140" W, a distance of265.03 feet to a point for comer; THENCE N 200t6' 11'' W, a distance of 122.31 feet to point for corner, THENCE N 24°51' 15" W a distance of 138.41 feet to a point for corner, TIiENCE N 28055'37" W a distance of 236.07 feet to a point for corner; THENCE N 21010'36" W, a distance of212.48 feet to a point for comer; THENCE N 09031'54" W a distance of 254.05 feet to a point for corner, THENCE N 00028126" W, a distance of 192.90 feet to a point for corner; THENCE N 04°1TO1"E, a distance of 191.69 feet to a point for comer, THENCE N 07*27' 12" E, a distance of44.92 feet to a point for comer, THENCE N 13*21'29" E, a distance of24.71 feet to a point for comer, THENCE N 14°26'S4" E, a distance of21.39 feet to a point for comer, THENCE N 14026'54" E, a distance of 11.50 feet to a point for comer, THENCE N 1501 Wits" E, a distance of37:34 feet to a point for confer; THENCE N 15°08'45" E, a distance of20,69 feet to a point for comer; THENCE N 26°4549" E, a distance of 6.40 feet to a point for corner in the North line of said called 207.29 acre tract of land; THENCE N 89041148" E, along the North line of said called 207.29 acre tract of land, a distance of 22.46 feet to a point for comer, THENCE S 26045'49" W, departing The North line ofsaid called 207.29 acre tract of land,: a distance of 14.62 feet to a point for comer; THENCE S 15°18'45" W, a distance of 18.69 feet to a point for comer, THENCE S 15*1845" W,' a distance of 37.19 feet to a point for corner, THENCE S 14°26'54" W, a distance of 11.35 feet to a point for comer, THENCE S 14026'54" W, a distance of 21,20 feet to a point for comer, THENCE S 13921'29" W, a distance of 23.49 feet to a point for confer; Page 2 of 3 fI IENCE S 0702T IT' W, a distance of 43.34 feet to a point for comer, THENCE S 04° 17'01" W, a distance of 190.31 feet to a point for comer, THENCE S 00°28'2G' E, a distance of 190.49 feet to a point for comer, THENCE S 09131'54" E, a distance of 250.43 feet to a point for comer; fIIENCE S 21010136" E. a distance of 209.09 feet to a point for comer, !HENCE S 28055137" F, a distance of 23SA3 feet to a point for comer; THENCE S24051'15" E, a distance of 139.92 feet to a point for comer, THENCE S 20016' 11" E, a distance of 122.79 feet to a point for comer; THENCE S 22°04'40" E, a distance of 263.42 feet to a point for copier, !'HENCE S 29*30137" E, a distance of 146.81 feet to a point for comer, THENCE S 32°03'22" E, a distance of344.56 feel to a point for corner in the South line of said called 207.29 acre tract; THENCE N 88p00'29" W, along said South tine of said called 207.29 acre tract of land, a distance of 24.14 feet to the POINT OF BEGINNING and containing 1.03 acres of land (45,231 sq. feet), more or less. jcar)�� z w LAWWOP0 Robert h young Registered Professional land Surveyor State of Texas 115400 TX-JOHN•CI%SB•0I0.00 !'age 3 of 3 Ex ibitTV CITY SC�cr-,ETARJ% . C0KITRA0 f NO, ,3 ? 11. PIPELINE LICENSE AGREEMENT Rolling Hills E AGREEMENT ("Agreement") is hereby m This FrpELiNE LYCENSade and entered into by and between the CITY OF FORT WORTH 'City"),, a home rule municipal corporation organized under the laws of CityState a°ag r,xas and acting by and through Charles and TEXAS MIDSTREAM GAS Daniels, its duly authorized Assisian an acting by and SERVICES, L.L.C. ("Company"), an Oklahoma limited liability company Y� 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. inch A. Company wishes to construct atwenty-fo aen24��ty 20) foot widal th righ of eter pi way for an approximate total distance of 2.260.72 feet within lmown as Rolling Hills Park. Because for the transportation of natural gas through a p p Company is not a public utility, as that term is used in the City Charter and City Code, and the Company is because Company will not be providing services toenduser customers u �m rs in City, Company consent not required to obtain a franchise from the City, required sets forth the terms and conditions under which Company pursuant to a license agreement that may use the public park. ed Company's request and agrees to grant Company a license Be The City has review to use a portion of the subsurface of �Rol n termshe a coedit ons in � � herein solely for construct, operate and maintain a pip , the transportation of gas and solely in accordance with the terms and conditions of this Agreement. 1. DEFINITIONS. Capitalized terms used in this Agreement Agreement shall have the following meanings: Affiliate shall mean any individual, partnership, association, joint stock company, limited liability company, trust, corporation, or othex person or entity who owns ox controls, or is owned or controlled by, or iunder common ownership or control s with, the entity in question. Agreement shall mean the authorization Rolling ° Hills park in the location as se out in Exhibit "A' a public park knoued to Company hereunder to use a Portion of wn as maintenance and repair of Company's for (i) the construction, installation, Pipeline; {ii) the use of such Pipeline for the transportation of Gas; and (iii) any rA11099 IN v and not otherwise defined within this 'Texas Midstream Gas Se ices, L1..C.1'ipeiina License Agreement Roiiing Fulls i'aric 1?age 1 other directly related uses of Rolling Hills Parr 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 Fart 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 of Fort Worth's Parks and Community Services Department (PACSD) or authorized representative. Gas shall mean gaseous fuels such as natural gas including artificial gas, synthetic gas, liquefied natural gas, manufacidred 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 that certain twenty-four (24) inch nominal diameter steel pipeline for an approximate total distance of 2,260.72 feet and other facilities approved by the Director that are installed by Company in Rolling Hills Park in accordance with this Agreement and pursuant to the rules and regulations as promulgated by the U.S. Department of Transportation, Office of Pipeline Safety, as set out in the Code of Federal Regulations, Section 192 as adopted and modified by the Texas Railroad Commission. Rolling 1�ills Park shall mean only that portion of the dedicated public park identified in Exhibit "A" of #his Agreement, attached hereto and hereby made a part of this Agreement for all purposes. 2. GRANT OF RIGHTS. 2.1. General Use of Rollins Hills 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 gran#s Company a license to (i) erect, construct, install and maintain the Pipeline over, under, along and across Rolling Hills Park and (ii) transport Gas through the portions of its Pipeline in, over, under, along' and across Rolling Hills Park as depicted in Exhibit "A", Company hereby acknowledges and Texas Midstream ©as Services, L.L.C. Pipeline License Ageemcut Rolling Hills Pack Page 2 agrees that this Agreement allows only the transportation of Gas through the City and does not allow Company to distribute, sell or otherwise provide Gas to any Customer. 2.2. Nonexclusive. This Agreement and all rights granted to Company hexein are strictly nonexclusive. The City reserves the right to enter into and grant other and future Licenses and other authorizations for use of Rolling Hills 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 Rolling Hills Park, the City will resolve 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 Rolling Hills 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 Rolling Hills Park, the first priority shall be to the public generally, the second priority to the City in the performance of its various £Motions, and thereafter, as between•licensees and other permit holders, as determined by tLe City inthe exercise of its powers, including the police power and other powers reserved to and conferred on it by the State of Texas. 2.�. Other Permits. This Agreement does not relieve Company of any obligation to obtain permits, licenses and othex 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. 2.4. Bands. Prior to the commencement of any construction work in Rolling Hills Park, 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 contractor construction project that will be performed in Rolling Hills Park. The bonds shall guarantee (i) satisfactory compliance by Company with all requirements, terms and conditions of this Agreement (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 xequire 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 Texas Midstream Gas Services, L.L.C. Pipeline License Agreement iZoiting Hills Park Page 3 Rolling Hills Park. The bands 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. 3. 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 twenty (20) years from the last date of notarial acknowledgement unless terminated earlier as provided herein. �. FEES AND PAYMENTS TO CITY. 4.1. License Use Fee. tan or prior to the Effective Date, Company shall pay the City as compensation for its use of Rolling Hilts Park for the Term of this Agreement the sum of $101,732.40 ('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 Rolling Hills Park. 4.2. Other Pa'ynxtents. In addition to the License Fee, Company shall pay the City all sums which maybe due 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. 4.2.1 For the removal of nine (9) trees, the Company shall pay the City the amount of $732808.17. The assessed amount shall be utilized solely for the purpose of improvements at the Rolling Hills Park Tree Farm. 4.3. Interest. All sums not paid when due shall bear interest at the rate often percent {10%)per annum ox the maximum amount allowed by Iaw, whichever is less, computed monthly, ff 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. Texas Midstream Gas Services, L.L.C. Pipeline License Agreement -Rolling Hills Park Page 4 5. REGULATORX AUTJELORI'TY 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. Company is obligated to construct, operate and maintain the Pipeline pursuant to the rules and regulations promulgated by the U.S. Department of Transportation, Office of Pipeline Safety, as set out in the Code of Federal Regulations, Section 192 and as adopted and modified by the Texas Railroad Commission and in this 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. b. USE OF ROLLING HILLS PARK. 6.I Construction Schedule Company shall meet with appropriate City staff fox the purposes of a Pipeline construction meeting meeting at least three (3) business days prior to initiating construction. The pre -construction meeting shall • include; *but not be limited to, information regarding the restoration of areas disturbed. Construction of the Pipeline shall commence within 30. days of execution of this Agreement and be completed within 45 working days of commencement of the work. 6.2. Com�iiiance with Laws, Orelinar�ces, Ra�les amd 1,?eaullatiol�s. The City has the right to control and regulate the use o£ Rolling Hills 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, constriction 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. 6.3. No Undue Barden. 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 Rolling Hills Park by the City and the public, if the City reasonably determines that the Pipeline does place an undue burden on any portion of Rolling Hills 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. Texas Midstream Gas Services, L.L.C. Pipeline License Agreement -Rolling Hilts Park Page 5 6.4•. Nlinimallnterference. After the initial construction, 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 Rolling Hills 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 Rolling Hills Park that will be affected. In the case of emergencies Company shall provide notice to the affected landowners within twenty4our (24) hours after commencement of work. In addition, during any such work, Company shall provide construction and maintenance signs and sufficient barricades at woxlc 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 haxzn to Rolling Hills Park and shall comply with conditions as set forth below. 6.4.1 Company acknowledges this Agreement is subject to the terms and conditions of a deed between the City and the National Parks Service, as executed by the City on April 2, 1971, and Company agrees the Pipeline operations across Polling Hills Park will be operated consistent with those terms, agreeing not to produce air pollution, contaminating materials, fumes, odors, or ground waste resulting in an unhealthy or unpleasant environment within the boundaries of the MVIH Clinical Research Center grounds, Fort Worth, Texas. 6.4.2. •The a�rreas where surface excavation shall be permitted shall be those areas identifzed�vSith temporary work space as open trench areas on the attached Exhibit "A: The Company shall notify the PACSD in the event of any changes. 6.4.3. .All open trenches and work areas are to be fenced with orange vinyl fencing. The fencing shall be installed along the perimeter boundaries of the easement and temporary work space as depicted on attached Exhibit "A". Only the surface atea of Rolling Dills Park for the trenched portion of the site shall be excavated. The area defined as a temporary construction, area is to be used workspace for equipment, storage of pipe and as a route of ingress and egress for vehicles. (see attached Exhibit A) The orange vinyl fencing shall remain in place until such time the site is restored as outlined in this Agreement and when such restoration made by the Company has been inspected and accepted by the Director. For all open trenches, for Rolling Hill Park, the pipe shall be buried a minimum of four (4) feet from the top of the pipeline to the surface elevation. The City shall have the right, but not the obligation to have an inspector, present to verify the buried depth of the pipe. All boring occurring within Rolling Hills Park shall be at a minimum of ten (10) feet. Texas Midstream Gas Services, L.L.C. PIpeline LicenscAgreement-Rolling Hilts Park Page 6 • b.4.4. Company shall specify work areas prior to construction and survey and stake said areas, notating the centerline and boundaries of the work areas as agreed upon at the pre -construction meeting held in accordance with section 6.1. 6.4.5. All access to work areas and bore/staging sites shall be limited to North boundary of Rolling Hills Park and the entrance gate off Joe B. Rushing Road. All equipment shall remain on the travel access drives identified and within the temporary construction areas as identified on attached Exhibit "A". A temporary and turn around shall be agreed upon and staked during the preconstruction meeting. Travel outside of the designated areas shall not be permitted. On the North access, before Company cuts any existing fence crossing the pipeline right of way, the fence shall be properly supported on either side of the contemplated opening by suitable "H" braces to prevent the remainder of the fence from sagging. Company shall promptly install a gate which shall remain locked at all times of non-use. Company shall provide manned traffic access to the site during times of use. Upon completions of construction; all fences cut or disturbed by construction shall be replaced in as good or better condition that existed before. 6.4.d. An earthen berm or similar method shall be constructed for all travel ways that cross existing irrigation lines. All existing irrigation Lines shall be clearly marked and identified prior to construction. In the event irrigation line/head damage occurs it shall be repaired by the Company within twenty four (24) hours of notice of the damage and any resulting irrigation pipe/wire ditch shall remain open until said repairs are approved, by the Director. Testing of all the lines will be required prior to completion of work. A 120 day warranty shall be provided by the Company. G.4.7 Trenches shall be compacted to 90% Standard Proctor Density (S.S.T.M. D698). During hudul construction, the trenching shall be double-dztching done in such a manner so that the top twelve inches (12") of soil Will be separated from the balance of the dirt removed in making the ditch or trench for installation of the pipeline. In bacMIling, after installation of the line, the topsoil first removed shall be used as cover soil in such a manner so as to result in it being returned to the top of the ditch as topsoil. b.4.8 Company will replant, reseed and water each disturbed area as many times. as neeessaxuntil a stand of grass comparable to that which was originally in y place before the disturbance is root established and approved and accepted by PACSD. 4 Restoration of surface areas disturbed shall be seeded with a combination pure live seed of Native Trail Mix (native grasses and wildflowers); however, modification of seeding material may be approved by PACSD. Company shall stockpile the excavated soil from the pipeline construction and shall place said soil in the areas to be reseeded. No importing of outside soil shall be allowed nor shall fertilizers be permitted. Texas Midstream Gas ServIccs, L.L.C. Pipeline License Agreement Ralting Hills Park Page 7 6.4.9 Orange mesh fencing shall be used along the perimeter of the nursery beds and travel access areas to prevent equipment and people from damaging plant materials. 6.4.10 Protection of trees and nursery plot areas shall be provided for all surrounding trees prior to and during the construction. Orange safety fencing shall be placed on the outside drip line of any trees affected to protect such trees from any damages occurring during renovation. 6.5. "As -Built" Plans and Mans. Company, at Company's sole cost and expense, shall pxovide 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. 6.6. S;necifications of the Pipeline The Company shall ezect, insiaii, cons�uct, repair, replace and maintain the Pipeline and pursuant to the rules and regulations promulgated by the U.S. Department of Transportation, Office of Pipeline Safety, as set out in the Code of Federal Regulations, Section 192 and as adopted and modified by the Texas Railroad Commission. The pipeline shall not exceed a twenty-four (24) inch nominal diameter and a right of way width of no more than 20 feet throughout the entire length of Rolling Bills Park. 6.8. Marking of Pipeline. The Pipeline shall be marked pursuant to the rules and regulations promulgated by tIle U.S. Department of Transportation, Office of Pipeline Safety, as set out in the Code of Federal Regulations, Section 192 and as adopted and modified by the Texas Railroad Commission, which shall show conspicuously Company's name and a toll -free telephone number of Company that a Person may call for assistance. 6.9. Surface Excavation and Additional Fees. The City shall have the right to coordinate all excavation work in Rolling Hills istent Park in a manner that is conswish and convenient for the implementation of the City's program for public dedicated open space. In order to preserve the integrity of Rolling Hills Park, Company shall not cut, excavate or otherwise breach or damage the surface of Rolling Pulls Park Texas Midstream Gas Services, L.L.G. Pipeline License Agreement Rolling Hills Palk Page 8 6.10. 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 Rolling Hills Park all or any portion of its Pipeline due to street or other public excavation, construction, repair, grading, re -grading 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 PACSD in writing and the City will work in good faith with Company to negotiate a workable time frame. 6.11. Restoration of Rolling Hills Parlc, Public Rights -of -Way and Public/Private Pro er Company, at Company's sole cost and expense, and in a manner approved by the City, shall promptly restore any portion of Rolling Hills Park, Public Rights of Way, or other City -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. Unless otherwise specified in this Agreement, 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. 6.12. Emergencies. 6.12.1. Work by the City. For purposes of this Section 6.12.1, a public emergency shall be any condition which, in the opinion of the officials specified hexein, 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 appropriate by the City Manager, 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 7.1, 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, Texas IvI�3s+xp�tn Gas Services, L.L.C. Pipeline License Agreement RollingHlils Park Page 9 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. 6.12.2. Worlc b or on Behalf of Com an . In the event of an emergency directly that involves that portion of the Pipeline located in Rolling Hills Park and necessitates immediate emergency response work on or repairs, Company may initiate the emergency response work ox 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. 6.13. Renotoyal of Pipeline. Upon the revocation, termination or expiration without exfiension or renewal of this Agreement, Company's right to use Rolling Hills Park under this Agreement shall cease and Company shall immediately discontinue the transportation of Gas in or through Rolling Hills Park. 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 Rolling Hills Park (or cap and leave the Pipeline in place, if consented to by the City), ux accordance with applicable laws and regulations. If Company has not removed all of the Pipeline in Rolling Hills Park, (or capped the Pipeline and left in place, 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 Rolling Hills Park abandoned and, at the City's sole option, (i) take possession of and title to such property or (h) 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. Within six (6) months following revocation, termination or expiration of this Agreement and in accordance with Section 6.11 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 and leaving in place) 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 Texas Midspream Gas Services, L.L.C. Pipeline License Agreement -Rolling Hills Park Page 10 immediately reimburse the City for any and all costs incurred in performing or having performed such restoration work. 7. LIABILITY AND INDEMNIFICATION. 7.1. Liability of Com»env. 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 )reparation) 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 I 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 LL4BILITY AND RESPONSIBILITY FOR PROPERTY LOSS, PROPERTY DAMAGE ANDIOR PERSONA r Vvi vo OF ANY.KIND, WCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY AVVD OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR XN CONNECTION WITH ITS USE OF THE PREMISES UNDER THIS AGREEMENT M WITH THE USE, MAINTENANCE, OCCUPANCY, EXISTENCE OR LOCATION OF ROLLING HILLS PARK, EXCEPT TO THE EXTENT CAUSED SOLELY BY THE NEGLIGENCE OR INTENTIONAL MISCONDUCT OF THE CITY 7.2 Indemnifli cation., COMPANY, AT COMPANY'S SOLE COST AND EXPENSE, SHALL INDEMNIFY AND HOLD H.AztMLESS THE CITY, ITS OFFICERS', BOARDS, COMMISSIONS, AGENTS, EMPLOYEES AND VOLUNTEERS (`TADEMNITEES' j, FROM AND AGAINST ANY AND ALL 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; (IV THE TRANSPORTATION OF GAS THROUGH THE PIPELINE; (III) ANY CLAIM OR LIENARISING OUT OF WOR1Y, LABOR, MATERIALS OR SUPPLIES PROVIDED OR SUPPLIED C;S' COMPANY, ITS CONTRACTORS OR SUBCONTRACTORS; OR. (ITI) OMPANY FAILURE TO COMPLY WITH ANY FEDERAL, STATE OR LOCAL LAW, ORDINANCE, RULE OR REGULATION, EXCEPT TO THE EXTENT DIRECTLY Texas Midstream Qas services, L.L.C. Pipeline License Agreement Rolling Hills Park CAUSED BY THE NEGLIGENT ACTS) OR ONVIIS'SION(S) OR INTENTIONAL MISCONDUCT OF THE CITY. .3 Assumption of Risk and Environmental Remediation4 COMPANY HEREBY REPRESENTS TO THE CITY THAT (i) CONIIPANY HAS FULLYINSPECTE'D ROLLING HILLS PARK; (U) COWANYIS SATISFIED WITH THE CONDITION OF ROLLING HILLS PARS; AND (iia) 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, G'OAWSSIONS, 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 ROLLING HILLS PARK: ALTHOUGH, TO T7TE BEST OF THE CITY'S KNOWLEDGE, ROLLING HILLS PARK COMPLIES WITH ALL APPLICABLE FEDERAL, STATE, AND LOCAL ENVIRONMENTAL LAWS AND REGULATIONS (COLLECTrVELY "ENVIRONIMNTAL LAWS'), THE CITY DOES NOT WARRANT SUCH: COMPANYHEREBY COVENANTSAND AGREES THAT COMPANY, AT ITS SOLE COST AND ReYPENS4 SMALL BE FULLY RESPONSIBLE FOR Tom` VIOLATION OF ANY ENVIRONMENTAL LAWS CAUSED, IN WHOLE OR IN PART, BY COltlPA1VY, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS OR INVITEES, AND ANY REMEDIA.TION THAT MAY BE REQUIRED AS A RESULT OF SUCH VIOLATION, EXCEPT TO THE EXTENT CAUSED BYTHE CITY. 7.4. 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 lndemnitees are indemnified hereunder, the City shall give Company prompt written notice of the making of any claim 017 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 7ndemnitee without the advance written consent of the City. S. INSI)RANCE. Company shall pxocure 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, Texas Midstream ties Services, L.L.C. Pipeline License Agreement -Roiling Hills Park Page 12 . maintenance, existence or location of Rolling Hills Park and the construction, installation, operation, maintenance or condition of the Pipeline, including the transportation of Gas through the Pipeline. The required insurance can be met by a combination of self- insurance, primary and excess policies. 8.1. Primary Liability Xnsurance Coverage. • Commercial Ge>aeral 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. ® Pronerty Damage Liability: $10,000,000 per occurrence • Autorraobile Liability: $I,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 Connpensatiozi: As required by law; and, Employer's Liability as follows: $1,000,000 per accident. 8.2. Revisions to Reauired Coverage. At the reasonable recgmmendation o£the City's Risk 1VXanager, the City may at any time revise inSUraU%OV 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) daysprior written notice to the City. 8.3. Underwriters and Certificates. Company shall procure and maintain its insurance with underwri#ers 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 Texas Midstream Gas Services, L.L.C. Pipeline License AgreementwRolling Hills Park Page 13 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. 8.4. Deductibles. Deductible or self insured retention Iimits on any line of coverage required herein shall not exceed $1,000,000 in the annual aggregate unless the limit per occurrence or per he of coverage, or aggregate is otherwise approved by the City. $.5. No Limitation of Liability. The insurance requirements set forth in this Section 8 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 affected to limit or in any way affect Company's liability to the City or other persons as provided by this Agreement or law. 9. DEFAULTS. The occurrence at any time during the term of this Agreement of one or more of the ,on events shall constitute an "Event of Default" under this Agreement: 9.1. 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. 9.2. Sreach. 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. 9.3. Sankruutey. Insolvency or Receivership. An Event of Default shall occur if Company (i) files a voluntary petition in bankruptcy; (ii) IN adjudicated insolvent; (iii) fifes 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) seeps, consents to or acquiesces in Le appointment of any trustee, receiver, master, custodian or liquidator of Company, any of Company's property or any revenues, issues, earnings or profits thereof; g makes an assignment for the benefit of creditors; or (vi) fails to pay Company's debts generally as they become due. Texas stream ties Services, L.L.C. Pipeline License Agreement Rolling Hills Parts Page 1�F 9.4. violations of the Law. An Event of Default shall occur if Company violates any existing or future federal, state, or local laws, ordinances, rules and regulations of the City. 10. UNCURED DEFAULTS AND REMEDIES. 10.1. Notice of Default and �unortunity to Cure. If an Event of Default occurs on account of Company's failure to pay the License Fee in accordance with Section 9.1, 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 10.2. 10.2. Remedies for Uncured Defaults. Upon the occurrence of an Uncured Default, the City shall be entitled io 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: 1.0.2.1. 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 Rolling Dills Park as and when requested by the City. The City'seright to terminate this Agreement under this Section 10.2.1 does not and shall not be construed to constitute any kind of 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 Texas Midstream Gas Services, L.L.C. Pipeline License tigreemcnt Rolling Hilts Park Page 15 without such approval is prohibited at the time by applicable federal or state law or regulation. l 0.2.2. LXSal Action A:=ainst COmAanY. Upon the occurrence of an Uncured Default, the City may connmence 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. 11. PROVISION OF INFORMATION. 11.1. Filings vvith� the Corninnission. 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; (R) rules, regulations and policies requested, under consideration or approved by the Commission; and (iii) applications and any supporting pre -filed testimony acid 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 upon request 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 concerning or related to its transportation of Gas through or other operations in the City. 11.2. La__wsufts. 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. 12. 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 dais 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 further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between the City and Company. Taxes Midstream Gas Services, L.L.C. Pipeline LicenscAgnement-Rolling Hills Park Page 16 at ASSIGNMENT PROHIBTJCED. 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; provided, however, that Company may mare such an assignment of its rights to an affiliated company without the consent of City, provided, that upon such assignment, Company shall notify City within sixty (60) days of said assignment. An `affiliated company' shall mean any parent, subsidiary or sister company or other legal entity that controls, is controlled by, or is under common control with Company. For purposes of this clause, `control' means direct or indirect ownership of fifty percent (50%) or more of the voting rights of the subject entity. Notwithstanding such an assignment to an affiliated company, Company shall remain liable to City for any failure to perform hereunder by the affiliated assignee, and this provision shall thereafter be applicable to Company and such affiliated assignee. 14. NOTICES. Notices required pursuant to the provisions of this Agreement shall be conclusively determined to have been delivered when (i) han&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 Cam: City of Fort Worth Parks and Commuzuty Services Director 1000 Throckmorton Fart Worth, TX 76102 To COWA[PAPINT: Texas Midstream Gas Services, L.L.0 Ms. Coleen Magness Director, Right of Way Coordination 6100 N. Western Avenue Oklahoma City, OK 73118 Texas MIdstream Gas Services, L.L.C. Pipeline License Agreement Rolling Hills Park Page I7 with a copy to: City of Fort Worth Department of Law Attn: Attorney for Parks and Community Services 1000 Throckmorton Fort Worth, TX 76102 15. NON DXSCRIMIQVATIONCQVENANT. with a copy to: C T Corporation System 350 North St. Paul Street Dallas, TX 75201 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. 16. 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. 17. GOVEI7.NING LAW AND VENXiL+ . This Agreement shall be construed pursuant to and in accordance with the laws of the United States of America and the State of Texas. 4 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 Rolling Hills 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. 18. CONFERENCES. At the request of either the City or Company, the Ciiy and Company shall meet at reasonable times and upon xeasonable 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 Rolling Hills Park. 19. NEVI I2ASILTPX. If any provision of this Agreement is held to be invalid, illegal or unenfoxceable by a final order entexed 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 Texas Midstream Gas Services, L.L.C. Pipeline LicenseAgreement-Rolling Hills Park Page 18 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. 20. FORCE MA JEURE. 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. 21. HEADINGS NOT CONTROLLING. Headings and Titles, ocher than those captions in Section 1, that aze used in This Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 22. ENTIRETY OF AGREEMENT. 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 aor 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. EXECUTER as of the later date below: CITY OF FORT WORTH: Assistant City Manager Date: i -19'- OB TEXAS MIDSTREAM GAS SERVICES,L.L.C.: Texas Midstream t#as Services, L.L.C. PipelLieLTcenseAgreement-Rolling Hii[s Park Page i9 APPROVED AS TU jORM AND JUJU4 Tit a BY:� �J — Assistant City Attorney M&C% v MAD I Texas Midstream Gas Services, L,L.C. P1peline License Agreement Rolling Hills Park Page 20 AC186NOWLEDCEMENT THE STATE OF TEXAS COUNTY OF TARRANT This is meat was acknowledged before me on this %f A! & 0/1��ueG� , Assistant City Manager of the City of Fort corporation, on behalf of the City of Fort Worth, Texas. spa{ ROSEU BAIiM L ; MY COMMISSION EXPIRES _;• March 31, 2009 day of NA2008, by Worth, Texas, a municipal Notary Public, State of Texas A.C�NOWLEDGMENT COUNTY OF OKLAAOMA § This instrument was acknowledged before me on 2008, by James C. Johnson, President of Texas Midstream limited liability company, on behalf of said company. My commission expires: My commission number: Texas Midstream Gas Services, L.L.C. Pipeline License Agreement -Rolling Hilts Park Page 21 . EXHIBIT �°A." Company may only use approximately 2,260.72 linear feet crossing the northeastern edge of Rolling Hills Park as depicted below. Texas Midstream (3as Services, L.L.C. Pipeline License Agreement -Rolling HllIs Park Page 22 p e �Ci �i�Umm wJm N.F- W N� amu{rRi� 9 zzaz long .nNtTIN! oam o 7O7 C<i my Z mN - 4044 � � {qNp�� W N A 0G7�� E. ROPERS SURVEY A-1292 N. ATfEBURY SURVEY A-23 � a 4 x P } �O 1 1—� 3tY1 U3MOd ON!lSIX3 4in'��i� Z o Z �uZlj Z y m m f A 0 C �d J Oi W'R"6`¢ .NsA q`'1013 W l [n W N } mm? fir .eg u'Am EONS mil+ 0�+Pn i�. oN ,�?iw jNNpm V m�wNmPn NA W+ fig] EXHIBIT "A" Sheet 3 of 6 Texas Midstream Gas Services Right of Way TX-TARR-CFSB-010.00, REV. 4 of Fort Worth Being a twenty (20) foot wide right of way situated in the J. Collet Survey, Abstract No. 260 and the E. Rogers Survey, Abstract No. 1292, Tarrant County, Texas and being a portion of that certain 207.29 acre tract of land described in deed to the City of Fort Worth as recorded In Volume 5044, Page 210 of the Deed Records of Tarrant County, Texas. Said twenty (20) foot wide right of way being more particularly described by metes and bounds as follows: BEGINNING at a point In the south line of said 207.29 acre tract, said point bears N 87058'43" W, a distance of 4392,32 feet from a I % Inch iron rod found marking the southeast corner of said 207.29 acre tract; THENCE with the south line of said 207.29 acre tract; N 87°57'S9" W, a distance of 24.15 feet to a point; THENCE severing, over and across said 207.29 acre tract as follows: N 32003138" W, a distance of 328.33 feet to a point; N 29030153" W, a distance of 148.55 feet to a point; N 22°04'56" W, a distance of 265.03 feet to a point; N 20°16'27" W, a distance of 122.31 feet to a point, N 24*61131" W, a distance of 138.41 feet to a point; N 28°55'53" W, a distance of 236.07 feet to a point, N 21010'52" W, a distance of 212.48 feet to a point; N 0903210" W, a distance of 264.05 feet to a point; N 00028'42" W, a distance of 192.90 feet to a point; N 04°1645" E, a distance of 314.72 feet to a point; N 31 °04'23" E, a distance of 46.11 feet to a point in the north line of said 207.29 tract; said point bears N 89039232" E, a distance of 41.33 feet from a 1/2 Inch iron rod found marking the most westerly northwest corner of said 207.29 acre tract; THENCE with said north line, N 89°39'32" E, a distance of 23.44 feet to a point, THENCE severing, over and across said 207.29 acre tract as follows: S 31 °0423" E, a distance of 53.66 feet to a point; S 04*16145" W, a distance of 309.12 feet to a point; S 00028'42" E, a distance of 190.48 feet to a point; S 0903210" E, a distance of 250.43 feet to a point; EXHIBIT °A" Sheet 4 of 6 Texas Midstream Gas Services Right of Way TX-TARR-CFSB-010.00, REV. 4 City of Fort Worth S 21 °10'52" E, a distance of 209.09 feet to a point; S 28056163" I=, a distance of 235.42 feet to a point; 5 24651'31" E, a distance of 139.92 feet to a point; S 20*16'27" E, a distance of 122.80 feet to a point; S 22°04156" E, a distance of 263.42 feet to a point; S 29030/530 E, a distance of 146.80 feet to a point, S 32°03'38" E, a distance of 341.42 feet to the POINT OF BEGINNING, and containing 1.04 acres of land, more or less as shown on plat attached hereto as Exhiblt "A" Sheet 1 of 6. Tempprary Work Space "A" Being a 1.57 acre tract of land situated in the J. Collet Survey, Abstract No. 260 and E. Rodgers Survey, Abstract No. 1292, Tarrant County, Texas and being a part of that certain 207.29 acre tract of land described In deed to the City of Fort Worth as recorded In Volume 5044, Page 210 of the Deed Records of Tarrant County, Texas. Said 1.67 acre tract of land being more particularly described by metes and bounds as follows. BEGINNING at a point in the north line of said 207.29 acre City of Fort Worth tractI said point bears N 89°39'32" E, a distance of 64.77 feet from a 1/2 inch Iron rod found marking the most westerly northwest corner of said 207,29 acre tract; THENCE with the north line of said 207.29 acre tract, N 8903932" E, a distance of 52.73 feet to a poir� • THENCE severing, over and across said 207.29 acre tract as follows. S 31 004123" E, a distance of 70.33 feet to a point; S 04016'45' W, a distance of 296.64 feet to a point, S 00°2842" E, a distance of 185.05 feet to a point, S 09032110" E, a distance of 242.28 feet to a point; S 21010'52" E, a distance of 201.45 feet to a point; S 28°55'53" E, a distance of 233.98 feet to a point, S 24061131" E, a distance of 143.32 feet to a point, S 20*16127" E, a distance of 120.76 feet to.a point; S 14°05'26" E, a distance of 28.57 feet to a point; EXHIBIT "A" Sheet 5 of 6 Texas Midstream Gas Services Temporary Work Space "A" TX TARR-CFSB-010.00, REV. 4 City of Fort Worth S 89°04'11" W, a distance of 44.10 feet to a point in the east line of the said right of way; THENCE parallel, abutting and configuous to the east line of said right of way as follows: N 22004'56" W, a distance of 9.97 feet to a point; N 20*16'27" W, a distance of 122.80 feet to a point; N 24051'31" W, a distance of 139.92 feet to a point; N 28°55'53" W, a distance of 235.42 feet to a point; N 21010152" W. a distance of 209.09 feet to a point; N 09°32'10" W. a distance of 250.43 feet to a point; N 00*28,42" W, a distance of 190.48 feet to a point; N 04° 1645" E, a distance of 309.12 feet to a point; N 31004'23" E, a distance of 53.56 feet to the POINT OF BEGINNING, and confatnina 1.57 acres of Iand, more or less as shown on plat aftached hereto as Exhibit "A" Sheet 2 of 6. Temporary Work Space "B" Being a 0.23 acxe trac# of land situated in the E. Rodgers SuNey, Abstract No. 1292, Tarrant County, Texas and being a part of that certain 207.29 acre tract of land described in deed to the City of Fort Worth as recorded in Volume 5044, Page 210 of the Deed Records of Tarrant County, Texas, Said 0.23 acre tract being more particularly described by metes and bounds as follows: BEGINNING at a point in the east lino of said right of way, said point bears N 87°58'43" W 4392.32 feet and N 32°03'38" W 236.63 feet from a 1 " iron rod found marking the southeast comer of said 207.29 acre tract; THENCE parallel, abutting and contiguous to the east line of the said right of way as follows: N 32003'38" W, a distance of 104.80 feet to a point; N 29°30'53" W, a distance of 146.80 feet to a point; N 22604'56" W, a distance of 2.27 feet to a point; EXHIBIT "A" Sheet 6 of 6 Texas Midstream Gas Services Temporary Work Space "B" TX-TARR-CFSB-010.00, REV. 4 City of Fort Worth THENCE severing, over and across said 207.29 acre tract as follows: S 8602846" E. a distance of 42.85 feet to a point; S 33'41'43" E, a distance of 122.12 feet to a point; S 29'39'15" E, a distance of 106.18 feet to a point; S 57'05'57" W, a distance of 40.80 feet to the PAINT OP 13EGINNINC�, and containing 0.23 acres of land, more or less as shown on plat attached hereto as Exhibit "A" Sheet 2 of 6. Bearings are based on the Texas State Plane Coordinate System, NAD 83, North Central Zone, derived from UPS observations, ?tii'1;7.?J'°'•?�i.•,fl;. fly No. 3808 September26, 2008 Professional Land Surveyor City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 6/17/2008 DATE: Tuesday, June 17, 2008 REFERENCE NO.. L-14561(Revised) LOG NAME: 80ROLLINGHILLGP SUBJECT. Authorize the Conversion of Approximately 1.04 Acres of Parkland at Rolling Hills Park Located at 2525 Tappan Boulevard and 2501 East Jewell Kelly Drive for the Installation of a Gas Pipeline and Authorize the Execution of a License Agreement with Texas Midstream Gas Services in the Amount of $175,540.57 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 exist for the location of the proposed gas pipeline for Rolling Hills; 3. Find that the proposed gas pipeline includes all reasonable planning to minimize harm to the parkland, and including that the pipeline will cross under the Rolling Hiiis Park as specified on the attached exhibits and noted in the discussion below; 4. Close the public hearing and authorize the City Manager to convert approximately 1.04 acres of dedicated parkland for a pipeline license fora 24-inch gas pipeline; and Rolling Hills Park- 2525 Tappan Boulevard and 2501 East Jewell Kelly Drive, Mapsco 92J, N and P, 91 R and M, located north of J. B. Rushing Road, south of Seminary Drive and Jewell Kelly Drive, west of Wichita Street and east of Campus Drive, in COUNCIL DISTRICT 8. 5. Authorize the City Manager to execute a license agreement for a pipeline with Texas Midstream Gas Services in the amount of $175,540.57. DISCUSSION: In accordance with the Texas Parks and Wildlife Code, Chapter 26, the City of Fort Worth seeks to convert approximately 1.04 acres of parkland in Rolling Hills Park for the purpose of installing a gas pipeline. The Parks and Community Services Department (PACSD) has been approached by Texas Midstream Gas Services (TMGS) requesting a pipeline license through Rolling Hills Park for the gathering of natural gas (Exhibit A). Rolling Hills Park is a 207 acre site acquired from the Federal Government in 1971 (see attached aerial photograph). The proposed alignment shall combine boring and trenching techniques to allow the installation of one 24-inch wide steel natural gas pipeline. The route for the pipeline will run parallel an existing 54-inch waterline. A 20-foot wide pipeline license is being requested. Logname: 80ROLLINGHILLGP Page I of 3 Staff is recommending as a condition of granting this pipeline license, that TMGS be assessed the recommended standard fee of $45.00 per linear foot. 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 $101,732.40 will be assessed for 2,260.72 linear feet requested for this pipeline license. The funds generated from the assessment will be used to construct improvements at Rolling Hills Park, in compliance with the Parks and Community Services Department's Park Facility Development Guidelines. In addition to the per linear foot fee, the PACSD will also receive $73,808.17 for the removal of nine nursery grown trees from the Rolling Hills Tree Farm. The removal of these trees is necessary in order to establish a bore pit to negotiate a slight curve in the existing 54-inch water line. These trees are the only remaining trees from a block of approximately 400 Bur Oaks that were nursery grown, mechanically harvested and transplanted to parks and other public properties. The remaining nine trees could not be mechanically harvested due to site conditions and have instead been used to teach proper pruning techniques to Citizen Forester Volunteers and students from area colleges. Alternative locations of the bore pit would have impacted other nursery grown trees which will be mechanically harvested and transplanted to parks and other public property at some future date. The City Forester determined the value of the trees utilizing established guidelines by the International Society of Arboriculture for Shade Tree Evaluation. The assessed fee will be utilized for improvements to the Rolling Hills Tree Farm. The total fee for this pipeline license is $175,540.57. TMGS has been made aware of this fee and is agreeable to this assessment. Since this property was acquired from the Federal Government, staff reviewed the proposed pipeline license and assessed fees with representatives of the Department of the Interior who determined that the proposed pipeline license was allowable contingent on the assessed fees being dedicated to improvements at Rolling Hills Park. On April 23, 2008; the Parks and Community Services Advisory Board (PACSAB) adopted a motion to "endorse staffs recommendation that the City Council authorize the conversion of approximately 1.04 acres of parkland at Rolling Hills Park for a pipeline license agreement for the installation of a gas pipeline. Not withstanding this action, "the PACSAB objects to the removal of the nine nursery trees and considers the $73,808.17 fee as restitution for damages for the loss of trees." In accordance with state law, the conversion was advertised in the Fort Worth Star -Telegram on April 22, April 29 and May 6, 2008. Once converted, PACS will enter into a license agreement with TMGS for the pipeline. Signage was posted at the site on April 11, 2008, announcing the proposed conversion. Letters announcing the proposed conversion were sent to the presidents of the adjoining Neighborhood Associations. Rolling Hills Park is located in COUNCIL DISTRCT 8. 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. FUND CENTERS: TO Fund/Account/Centers C282 446300 801929990100 CERTIFICATIONS: $175,540.57 FROM Fund/Account/Centers Logname : 8 OROLLINGHILLGP Page 2 of 3 Submitted fornCity Manager's Office by: Originating Department Head. Additional Information Contact. ATTACHMENTS 1. cq 2007 Rolling Hills Park gas.pdf (Public) 2. Rolling Hills easement.doc (Public) Charles Daniels (6183) Richard Zavala (5704) Harold Pitchford (5728) Logname: 80ROLLINGHILLGP Page 3 of 3