HomeMy WebLinkAboutContract 39817CITY SECRETARY
CONTRACT NO,
PIPELINE LICENSE AGREEMENT
Hallmark Park
This PIPELINE LICENSE AGREEMENT ("Agreement") is hereby made and
entered into by and between the CITY OF FORT WORTH ("City"), a home rule municipal
corporation organized under the laws of the State of Texas and acting by and through Charles
Daniels, its duly authorized Assistant City Manager, and TEXAS MIDSTREAM GAS
SERVICES, L.L.C. ("Company"), an Oklahoma limited liability company, acting by and
through J. Michael Stice, President and Chief Operating Officer.
The following statements are true and correct and constitute the basis upon which the
City of Fort Worth has executed Agreement.
A. Company wishes to construct atwenty-four inch (24") nominal diameter pipeline
for an approximate total distance of 1213.50 feet within a twenty (20) foot width right of way
corridor for the transportation of natural gas through a public park known as Hallmark 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 City has reviewed Company's request and agrees to grant Company a license
to use a portion of the subsurface of Hallmark 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 portion of
a public park known as Hallmark Park in the location as set out in Exhibit "A" for
(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
Texas Midstream Gas Services, L.L.C. Pipeline License Agreement -Hallmark Park O'1=FICtAL RECORD
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FT. WORTH, Tk
directly related uses of the Park, pursuant to and in accordance with this
Agreement.
Company shall mean Texas Midstream as 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 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, manufactured gas, or any mixture thereof.
Park shall mean only that portion of the dedicated Hallmark public park as identified in
Exhibit "A" of this Agreement, attached hereto and hereby made a part of this
Agreement for all purposes.
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 1215.06 feet and other facilities approved by the
Director that are installed by Company in the 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.
2. GRANT OF RIGHTS.
2.1. General Use of Hallmark 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 the Pipeline over, under, along and across Hallmark Park and (ii)
transport Gas through the portions of its Pipeline in, under, and across the Park as
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depicted in Exhibit "A". Company hereby acknowledges and 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 herein are strictly
nonexclusive. The City reserves the right to enter into and grant other and future licenses
and other authorizations for use of Hallmark 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 Hallmark 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 the Park by
Company or by any present or future licensees or other permit holders. In the event of
any dispute as to the priority of use of Hallmark 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.
2.3. 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.
2.4. Bonds.
Prior to the commencement of any construction work in the 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 contract or
construction project that will be performed in The 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 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
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construction contract or construction project that will be performed by the contractor in
the 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.
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.
4. FEES AND PAYMENTS TO CITY.
4.1. License Use Fee.
On or prior to the Effective Date, Company shall pay the City as compensation
for its use of the Park for the Term of this Agreement the sum of $54,607.50 ("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 the Park.
4.2. Other Payments.
In addition to the License Fee, Company shall pay the City all sums which may be 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,
4.3. 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.
5. 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.
Company is obligated to construct, operate and maintain the Pipeline pursuant to the rules and
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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.
6. USE OF THE PARK.
6.1 Construction Schedule
6.1.1. Pre -Construction Meetin>;. Company shall notify the PACSD not less than
30 days in advance of the proposed construction start date and shall meet with
appropriate City staff for the purposes of a Pipeline pre -construction meeting not less
than seven (7) days prior to initiating construction. The pre -construction meeting shall
include, but not be limited to, information regarding the restoration of areas disturbed.
6.1.2. Construction. Construction of the Pipeline shall be completed within 365
days of the effective date of this Agreement. Construction is anticipated to complete
within 90 days from the start of work. Failure to complete construction shall be deemed
an Event of Default and shall be subject to the terms in Section 10.
6.1.3. City Construction on Parlc. After the notice of commencement of
construction as indicated in 6.1.1, the City shall notify Company, not less than five (5)
business days after Company's notification, of City plans to construct on the surface of
Park that may conflict with Company construction. In order to avoid any conflict with
proposed City construction, Company agrees to delay construction for a period not to
exceed ten (10) business days, and City agrees to work with Company to coordinate
efforts for inclusion of Company's work in overlapping areas of need.
6.2. Compliance with Laws, Ordinances, Rules and Regulations.
The City has the right to control and regulate the use of the 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.
6.3. 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 the
Park by the City and the public. If the City reasonably determines that the Pipeline does
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place an undue burden on any portion of the 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.
6.4. Minimal Interference.
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 the 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 the 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
ighttime conditi
nons.
Company will take all reasonable planning to minimize harm to the Park and shall
comply with conditions as set forth below:
6.4.1. The Pipeline will cross under the Park from a bore hole located on the
property located South of Sycamore School Road. Boring depth upon entering
the park shall be a minimum of twelve (12) feet. The City shall have the right,
but not the obligation to have an inspector present to verify the buried depth of the
pipe.
6.4.2. There shall be no open trenches or bore pits located on the Park. All
ingress and egress access areas shall remain open at all times for the Park.
6.4.3. All equipment shall remain within the license agreement area of the Park.
Travel outside of the designated areas shall not be permitted. Upon completion of
construction, any damage done to cable fences, ground disturbance shall be
replaced in as good or better condition that existed before.
6.4.4 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.
Any equipment that may be stored on the property must be cleared with the
PACSD.
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6.4.5. No pipeline surface excavation shall take place in the Park for any purpose
except for (1) an event of public danger which is a condition that creates an
unreasonable risk of harm; (ii) as governed by State and Federal guidelines or
regulations; or (iii) this license agreement is amended by City Council.
6.4.6. Company will replant, reseed and water each disturbed area as many times
as necessary until a stand of grass comparable to that which was originally in
place, before the disturbance. The grass shall have an established root system
which shall be approved and accepted by PACSD. 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 any and all 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.
6.5. "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.
6.6. Specifications of the Pipeline
The Company shall erect, install, construct, 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
corridor width of no more than 20 feet throughout the entire length of the Park.
6.8. Marking of Pipeline.
The Pipeline shall be marked 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, which shall show conspicuously Company's name and a toll -free telephone
number of Company that a Person may call for assistance.
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6.9. Surface Excavation and Additional Fees.
The City shall have the right to coordinate all excavation work in the 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 the Parlc,
Company shall not cut, excavate or otherwise breach or damage the surface of the Park
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 the 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 the 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 the 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 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
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
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damage to the Pipeline, and Company hereby (1) 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 (it) 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.
6.12.2. Work by or on Behalf of Company.
In the event of an emergency directly that involves that portion of the
Pipeline located in the 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.
6.13. Removal of Pipeline.
Upon the revocation, termination or expiration without extension or renewal of
this Agreement, Company's right to use the Park under this Agreement shall cease and
Company shall immediately discontinue the transportation of Gas in or through the 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 cap and leave the Pipeline
in place the Park in accordance with applicable laws and regulations. If Company has not
capped the Pipeline in the Park, within six (6) months following revocation, termination
or expiration of this Agreement, the City may deem any portion of the Pipeline remaining
in the 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.
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
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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.
7. LIABILITY AND INDEMNIFICATION.
7.1. 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 (1) 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 I(IND, INCL UDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND
M 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 PARK, EXCEPT TO THE EXTENT CAUSED SOLELY BY
THE NEGLIGENCE OR INTENTIONAL MISCONDUCT OF THE CITY.
7.2 Indemnification.
COMPANY, AT COMPANY'S SOLE COST AND EXPENSE, SHALL INDEMNIFY
AND HOLD HARMLESS THE CITY, ITS OFFICERS, BOARDS, COMMISSIONS,
AGENTS, EMPLOYEES AND VOLUNTEERS ("INDEMNITEES'), 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, (II) THE TRANSPORTATION
OF GAS THROUGH THE PIPELINE; (III) ANY CLAIM OR LIENARISING OUT
OF WORK, LABOR, AMTERJALS OR SUPPLIES PROVIDED OR SUPPLIED TO
COMPANY, ITS CONTRACTORS OR SUBCONTRACTORS; OR (Ii9 COMPANY'S
FAILURE TO COMPLY WITH ANY FEDERAL, STATE OR LOCAL LAW,
ORDINANCE, RULE OR REGULATION, EXCEPT TO THE EXTENT DIRECTLY
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CAUSED BY THE NEGLIGENT ACTS) OR OMISSIONS) OR INTENTIONAL
MISCONDUCT OF THE CITY.
7.3 Assumption of Risk and Environmental Remediation.
COMPANY HEREBY REPRESENTS TO THE CITY THAT (i) COMPANY
HAS FULLY INSPECTED THE PARK; (ii) COMPANY IS SATISFIED WITH THE
CONDITION OF THE PARK; AND (iii) COMPANY HAS BEEN FULLY ADVISED
)FITS 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, IFANY, ON OR ABOUT THE PARK.
ALTHOUGH, TO THE BEST OF THE CITY'S KNOWLEDGE, THE PARK
COMPLIES 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 REMEDIAT.ION THAT MAY BE
REQUIRED AS A RESULT OF SUCH VIOLATION) EXCEPT TO THE EXTENT
CAUSED BY THE 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 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.
8. 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 the Park and the construction, installation, operation,
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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 Insurance Coverage.
• Commercial General Liability:
$1,000,000 per occurrence, including coverage for the following: (i) Premises
Liability; (ii) independent contractors; (ill) 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.
8.2. 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.
8.3. Underwriters and Certificates.
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
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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 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.
8.5. No Limitation of Liability.
The insurance requirements set far-th 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
following 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. Failure to Construct.
An Event of Default shall occur if Company fails to complete construction of the
Pipeline in accordance with Section 6.1.2.
9.3. 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.
9.4. 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
Texas Midstream Gas Services, L.L.C. Pipeline License Agreement -Hallmark Park
Page 13 of 20
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.
9.5. 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 Opportunity 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 or failure to complete construction in accordance with
Section 9.2, 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 or failure to complete construction, 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.
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:
10.2.1. Termination of Agreement.
Upon the occurrence of an Uncured Default, the City may terminate this
Agreement. Upon such tetrnination, 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 the Park as and when
requested by the City. The City's right to terminate this Agreement under this
Texas Midstream Gas Services, L.L.C. Pipeline License Agreement -Hallmark Park
Page 14 of 20
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
without such approval is prohibited at the time by applicable federal or state law
or regulation.
10.2.2. 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.
11. PROVISION OF INFORMATION.
11.1. 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
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. 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.
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 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
Texas Midstream Gas Services, L.L.C. Pipeline License Agreement -Hallmark Park
Page 15 of 20
acts and omissions of its officers, agents, servants, employees, contractors and subcontractors.
Company acknowledges that the doctri
Cne of respondeat
City and Company, its officers, agents, employees, co
further agrees that nothing herein shall be construed
enterprise between the City and Company.
13. ASSIGNMENT PROHIBITED.
superior shall not apply as between the
tractors and subcontractors. Company
the creation of a partnership or joint
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 make 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) 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:
City of Fort Worth
Parks and Community Services Director
1000 Throckmorton
Fort Worth, TX 76102
with a copy to:
City of Fort Worth
Department of Law
Attn: Attorney for Parks and Community Services
1000 Throckmorton
Fort Worth, TX 76102
To COMPANY:
Texas Midstream Gas Services, L.L.0
David Johns
Manager -Midstream Property Rights
100 Energy Way
Fort Worth, Texas 76102
with a copy to:
C T Corporation System
350 North St. Paul Street
Dallas, TX 75201
Texas Midstream Gas Services, L.L.C. Pipeline License Agreement -Hallmark Park
Page 16 of 20
15. 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.
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. 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 the 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 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
the Park.
19. SEVERABILITY.
If any provision of this Agreement is held to be invalid, illegal or unenforceable by a fmal
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.
20. FORCE MAJEURE.
In the
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,
Texas Midstream Gas Services, L.L.C. Pipeline License Agreement -Hallmark Park
Page 17 of 20
strikes, sabotage, riots or civil disturbances, failure or loss of utilities, explosions and natural
disasters.
21. 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.
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 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:
Date:
TEXAS MIDSTREAM GAS SERVICES,
L.L.C.:
J. Michael Stice
Chief Executive Officer
o„e lala��c�
APPROVED AS TO FORM AND LEGALITY:
isfant City Attorney
q'7 /6ZD0j
Texas Midstream Gas Services, L.L.C. Pipeline License Agreement -
Page 18 of 20
ACKNOWLEDGEMENT
THE STATE OF TEXAS
COUNTY OF TARRANT
T is instrument was acknowledged before me on this � day of
lldd� Vs "ds , Assistant City Manager of the City of Fort Worth,
corporation, on behalf of the City of Fort Worth, Texas.
••;wY�� Not�'ry Public,
MARIA S. SANCHEZ
*' * MY COMMISSION EXPIRES
,in ` December 14, 2013
ACKNOWLEDGMENT
xae20Vby
Texas, municipal
®
of Texas
THE STATE OF OKLAHOMA §
COUNTY OF OKLAHOMA §
This instrument was acknowledged before me on this da
200% by J. Michael Stice, Chief Executive Officer of Texas Midstream
an Oklahoma limited liability company, on behalf of said company.
Gas
of
Seivices, L.L.C.,
a
Notary �'�51�c, State of Oklahoma /
My commission expires: `
My commission number:
Texas Midstream Gas Services, L.L.C. Pipeline License Agreement -Hallmark Park
Page 19 of 20
EXHIBIT "A"
Company may only use approximately 1213.50 linear feet crossing the northeastern edge of the
Park (see attached exhibit):
Texas Midstream Gas Services, L.L.C. Pipeline License Agreement -Hallmark Park
Page 20 of 20
D.R. HORTON-TEXAS, LTD.
INST.# D204363295
EDGE-016.00
SEE DETAIL
A,.
LAND RESERVE
OF TEXAS, INC.,
INST,# D204248117
32,53 ACRES
EXIST.
ASPHALT PAVING
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FOUND 1/4' PIPE
0.93 EAST
0 806148 Ipi
¢ 21 03'
0
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FRANK B. MARTINEZ
D206154697
D.R.T.C.T.
EDGE-031.00
S11'22'09"W
3.26'
r
PICNIC AREA
AY AREA
RETE
I
NG
FENCE
SOCCER
FIELD
ONCE CITY OF FORT WORTH
VOLUME 3937, PAGE 579
' 'TENNIS,
21.85 ACRES
COURT D.R. T.C.T.
M � I—` I EDGE-030.00
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"NO PARKING"
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PARKING AREA
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P.O.C.
FOUND
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SCHOOL ROAD
ISYCAMORE CREEK
1 0LIMITED PARTNERSHIP
VOLUTAE 15351, PAGE 472
P,O.B_ 56.817 ACRES
PERMANENT LICENSE EDGE-011.00
S89'23'481W AGREEMENT
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SURD
MARK C. WILLIAMS
REGISTERED PROFESSIONAL SURVEYOR
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TITLE INFORMATION PROVIDED BY TEXAS MIDSTRLnM c v5 BEARINGS BASED ON TEXAS STATE PLANE
GAS SERVICES, L.L.C. COORDINATE SYSTEM NAD 83, NORTH CENTRAL ZONE,
DERIVED FROM GPS OBSERVATIONS. paDE 2 OF 2
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7 10/7/8 JF ADDRESSED CITY k CLIENT COMMENTS MCW � � � � � MIDSTREAM
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l 7 21 9 DAM REMOVED TEMPORARY I NS AGREEMENT Auw PROPOSED PIPELINE CROSSING THE PROPERTY OF
EV. DATE BY DESCRIPTION cHK. CITY OF FORT WORTH
'ROJECT No. EDGECLIFF CF TO CROWLEY FORT vroRTN TARRANT COUNTY Tex
LAMB -STAR ENGINEERING, L.P., DRAWN BY: JF DATE:10/30/07 DWG. NU. RE1
5068 W. PLANO PARKWAY #155, PLANO, TX. 75093 CHECKED BY: MCW DATE:10/30/07 n
214-440-3600 1' = 200' APP.: Tx-TaRR-EDGE-030.00 7
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LEGAL DESCRIPTION OF PERMANENT LICENSE AGREEMENT
Being a 20 foot wide permanent license agreement situated in the C.
Hamilton Survey Abstract Number. 751, City of Fort Worth, Tarrant County,
Texas and being a portion of a tract of land described in deed to City of
Fort Worth recorded in Volume 3937, Page 579 deed records Tarrant County,
Texas, and being further described as held on the ground, by metes and
bounds as follows:
COMMENCING of o 1/2" iron rod found for the southeast corner of soid City
of Forth Worth tract and being on the north right—of—way line of Sycamore
School Road;
THENCE South 89'23'48"
West, along
the
south line of
said City of Fort
Worth tract and the common north
right—of—woy
line
of said Sycamore
School Road, a distance
of 924.98
feet
to the POINT
OF BEGINNING;
THENCE South 89'23'48" West, continuing along the south line of said City
of Fort Worth tract and the common north right—of—way line of said
Sycamore School Road, a distance of 20.12 feet to a point for the south
west corner of said City of Fort Worth tract, said point also being in the
east right—of—way line of M.K.&T. Railroad (200' R.O.W);
THENCE North 05037148" East, leaving the south line of said City of Fort
Worth trod and the common north right—of—way line of said Sycomore
School Rood, along the west line of said City of Fort Worth tract and the
common east right—of—way line of said M.K.&T. Railroad (200' R.O.W), o a.
distance of 1213.50 feet to a point for the northwest corner of said City of N
Fort Worth tract and the common southwest corner of a tract of land :r
described in deed to Frank B. Martinez recorded in D206154697 D.R.T.C.T.; o
0
THENCE North 80'4648" East, leaving west line of said City of Fort Worth
tract and the common east right—of—woy line of said M.K.&T. Railroad (200' C4
R.O.W), passing at o distance of 0.93 feet a 1/4" pipe found, continuing
along the north line of said City of Fort Worth tract and the common south
line of said Martinez tract for a total distance of 21.03 feet to a point for
corner; 3
THENCE South 11'22'09" West, leaving the north line of said City of Fort
Worth tract and the common south line of said Martinez tract, a distance
of 3.26 feet to a point for corner;
THENCE South
05'3748" West, a
distance of 1213.46
feet
to the POINT OF
BEGINNING and
containing 0.5579
acres of land,
more
or
less.
Bearing based on Texas Stake Plane Coordinate System NAD 83, North
Central Zone, Derived from GPS Observations.
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BEARINGS BASED ON TEXAS STATE PLANE v
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PAGE 1 OF 2
i 8 12/8 F CONVERT TO METES AND BOUNDa
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i 10 07 B DM ADDRESSED CITY & CLIENT COMMMIDSTREAM o11/318 JF REVISE P.0.8. LABEL �f7 20 9 DAM R M MP ARY LIC N APROPOSED PIPELINE CROSSING THE PROPERTY OF
V. DATE BY DESCRIPTION CITY OF FORT WORTH o
ROJECT ND. EDGECLIFF CF TO CROWLEY FORT WORTH TARRANT COUNTY TEXAS00014
a
LAMB -STAR ENGINEERING, L.P., DRAWN BY:JF DATE:10/30/07 DWG. NO. REV. o
5068 W. PLANO PARKWAY #155, PLANO, TX. 75093 CHECKED BY: MCW DATE:10/30/07 n
214-440-3600 1• 200' APP: TX-TARR40GE430.00 J
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Mayor and Council Communication
COUNCIL ACTION: Approved on 417/2009
CONTINUED FROM A PREVIOUS WEEK
DATE: Tuesday, March 10, 2009
LOG NAME: 80HALLMARKGAS
REFERENCE NO.: L-14732
SUBJECT:
Conduct a Public Hearing, Authorize the Conversion of Approximately .557 Acre of Parkland at Hallmark
Park Located at 820 Sycamore School Road, for the Installation of a Gas Pipeline and Authorize the
Execution of a License Agreement with Texas Midstream Gas Services, Inc., in the Amount of $54,607.50
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
Hallmark Park;
3. Find that the proposed gas pipeline includes all reasonable planning to minimize harm to the parkland,
and including that the pipeline will be constructed in Hallmark 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 .557 acre of
dedicated parkland for the installation of a 24 inch gas pipeline; and
Hallmark Park, 820 Sycamore School Road, Mapsco 104H and 105E, located north of Sycamore
School Road, east of Union Pacific Railroad and west of Trimble Drvie, in Council District 6.
5. Authorize the execution of a License Agreement with Texas Midstream Gas Services, Inc., in the
amount of $54,607.50.
DISCUSSION:
The Parks and Community Services Department (PACSD) has been approached by Texas Midstream
Gas Services, Inc., (TMGS) requesting the construction of a gas pipeline through Hallmark Park for the
gathering of natural gas (Exhibit A). The proposed alignment will allow the installation of one 24 inch wide
steel natural gas pipeline. A 20 foot wide gas pipeline alignment is being requested. The pipeline will be
trenched to a minimum depth of 10 feet below the surface of the park. There will be no impact to any trees
on park property.
Staff is recommending as a condition of granting this alignment, that TMGS be assessed the
recommended standard fee of $45.00 per linear foot of pipeline and that those funds be used to construct
improvements for the park in compliance with the PACSD's Park Facility Development Guidelines. This is
Logname: 80HALLMARKGAS Page 1 of 2
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 $54,607.50 will be assessed for approximately 1213.50 linear feet of gas pipeline. TMGS
has been made aware of this fee and is agreeable to this assessment.
Should Council approve the conversion, PACSD will enter into a license agreement with TMGS.
On December 16, 2008, the Parks and Community Services Advisory Board endorsed staffs
recommendation that the City Council authorize the conversion of approximately .557 acre of parkland at
Hallmark Park for the installation of a gas pipeline.
In accordance with state law, the conversion was advertised in the Fort Worth Star -Telegram on February
10, 17, and 24, 2009.
Signage was posted at the site announcing the proposed conversion. A letter announcing the proposed
conversion was sent to the president of the adjoining Neighborhood Associations on February 4, 2009.
Hallmark Park is located in COUNCIL DISTRICT 6.
FISCAL INFORMATION /CERTIFICATION:
The Finance Management Services Director certifies 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/AccountlCenters
C282 446300 801929990100
CERTIFICATIONS:
Submitted for City Manager's Office bv:
Originating Department Head:
Additional Information Contact:
$54,607.50
FROM Fund/Account/Centers
Charles W Daniels (6183)
Richard Zavala (5704)
Harold Pitchford (5728)
ATTACHMENTS
1. cg 2007 hallmark MC.pdf (Public)
2. draft m&c 80 HALLMARKGAS.pdfi (CFW Internal)
3. HALLMARK M AND C SURVEY.doc (Public)
Logname: 80HALLMARKGAS Page 2 of 2