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HomeMy WebLinkAboutContract 39896•W11r,116il- Nlga��711 ' PIPELINE LICENSE AGREEMENT Sycamore Creek Golf Course 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, Chief Executive 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 164.47 feet within a fifteen (15) foot width right of way corridor for the transportation of natural gas through a public park known as Sycamore Golf Course. 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 Sycamore Creek Golf Course 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 Sycamore Creek Golf Course 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; Texas Midstream Gas Services, L.L;C. Pipeline License Agreement -Sycamore Creek Golf Course 5 ...k E_k,, � ;� and (in) any other directly related uses of the golf course, pursuant to and in accordance with this Agreement. Company shall mean Texas Midstream Gas Services, L.L.C., an Oklahoma limited liability company, only and shall not include any Affiliate or third party. City shall mean the area within the corporate limits of the City of Fort Worth, Texas and the governing body of the City of Fort Worth, Texas. Commission shall mean the Railroad Commission of the State of Texas or other authority succeeding to the regulatory powers of the Commission. Customer shall mean any Person located, in whole or in part, within the City. Director shall mean the Director of the City 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 Sycamore Creek Golf Course 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 164.47feet 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 iri 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 the 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 the Park and (ii) transport Gas through the portions of its Pipeline in, under, and across the Park as depicted in Texas Midstream Gas Services, L.L.C. Pipeline License Agreement -Sycamore Creek Golf Course Page 2 of 20 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 the 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 the 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 the Park, the first priority shall be to the public generally, the second priority to the City in the performance of its various functions, and thereafter, as between licensees and other permit holders, as determined by the City in the exercise of its powers, in 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 Texas Midstream Gas Services, L.L.C. Pipeline License Agreement -Sycamore Creek Golf Course Page 3 of 20 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 $7,565.62 ("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 often 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 regulations promulgated by the U.S. Department of Transportation, Office of Pipeline Safety, as Texas Midstream Gas Services, L.L.C. Pipeline License Agreement -Sycamore Creek Golf Course Page 4 of 20 3 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 Meeting. 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 from the effective date of this Agreement. Construction is anticipated to complete within 90 days from the start of work. Failure to complete construction of the Pipeline shall be deemed an Event of Default and shall be subject to the terms in Section 10. 6.1.3. City Construction on Park. After the notice of commencement of construction as indicated in 6.1.1, the City shall notify Company, not less than three (3) 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 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 Texas Midstream Gas Services, L.L.C. Pipeline License Agreement -Sycamore Creek Golf Course Page 5 of 20 k Pipeline or take other actions determined by the City to be in the public interest to remove or alleviate the burden. 6.4. Mamma, Interference. After the initial construction, prior to the undertaking of any In 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 nighttime conditions. 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 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 Parlc. 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. 6.4.5 No pipeline surface excavation shall take place in the Park for any purpose except for (i) an event of public danger which is a condition that creates an unreasonable risk of harm; (ii) as governed by State and Federal guidelines or regulations; or (iii) this license agreement is amended by City Council. Texas Midstream Gas Services, L.L.C. Pipeline License Agreement -Sycamore Creek Golf Course Page 6 of 20 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-Suilt" Plans and Maus. 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. 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 Park, Company shall not cut, excavate or otherwise breach or damage the surface of the Park Texas Midstream Gas Services, L.L.C. Pipeline License Agreement -Sycamore Creek Golf Course Page 7 of 20 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. �mer�encies. 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 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, 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 Texas Midstream Gas Services, L.L.C. Pipeline License Agreement -Sycamore Creek Golf Course Page 8 of 20 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, (1) 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 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. Texas Midstream Gas Services, L.L.C. Pipeline License Agreement -Sycamore Creek Golf Course Page 9 of 20 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 (i) the construction, installation, operation, maintenance or condition of the Pipeline or any related facilities or appurtenances; (ii) the transportation of Gas through the Pipeline; (iii) any claim or lien arising out of work, labor, materials or supplies provided or supplied to Company, its contractors or subcontractors; or (iv) Company's failure to comply with any federal, state or local law, ordinance, rule or regulation, except to the extent directly caused by the negligent or grossly negligent act(s) or omission(s) or intentional misconduct of the City. COMPANY HEREBY ASSUMES ALL LIABILITY AND RESPONSIBILITY FOR PROPERTY LOSS, PROPERTY DAMAGE AND/OR PERSONAL INJURY OF ANY KIND, INCL UDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH ITS USE OF THE PREMISES UNDER THIS AGREEMENT OR WITH THE USE, MAINTENANCE, OCCUPANCY, EXISTENCE OR LOCATION OF SYCAMORE CREEK GOLF COURSE, 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, MATERIALS OR SUPPLIES PROVIDED OR SUPPLIED TO COMPANY, ITS CONTRACTORS OR SUBCONTRACTORS, OR (Ii) 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 ACT(S) OR OMISSIONS) OR INTENTIONAL MISCOND UCT OF THE CITY. Texas Midstream Gas Services, L.L.C. Pipeline License Agreement -Sycamore Creek Golf Course Page 10 of 20 7.3 Assumption of Risk and Environmental Remediation, COMPANY HEREBY REPRESENTS TO THE CITY THAT (i) COMPANY HAS FULLY INSPECTED THE PARK; (h) COMPANY IS SATISFIED WITH THE CONDITION OF THE PARK; AND (W) COMPANY HAS BEEN FULLY ADVISED OF ITS OWN RIGHTS WITHOUT RELIANCE UPON ANY REPRESENTATION MADE BY THE CITY, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, COMMISSIONS, BOARDS OR VOLUNTEERS. COMPANY HEREBY UNDERTAKES AND ASSUMES, FOR AND ON BEHALF OF COMPANY, ITS OFFICERS, AGENTS, CONTRACTORS, SUBCONTRACTORS AND EMPLOYEES, ALL RISK OF DANGEROUS CONDITIONS, 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 REMEDIATION 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. S. 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, 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. Texas Midstream Gas Services, L.L.C. Pipeline License Agreement -Sycamore Creek Golf Course Page I I of 20 81. Primary Liability Insurance Coverage. ® Commercial General Liability: $1,000,000 per occurrence, including coverage for the following, (i) Premises Liability; (ii) independent contractors; (iii) products/completed operations; (iv) personal injury; (v) contractual liability; (vi) explosion, collapse and underground property damage. ® Property Damage Liability: $10,000,000 per occurrence ® Automobile Liability: $1,000,000 per accident, including, but not limited to, all owned, leased, hired or non -owned motor vehicles used in conjunction with the rights granted under this Agreement ® Worker's Compensation: As required bylaw; 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 d financial strength. Within thirty (30) days followi anng adoption of this Agreement by the City Council, Company shall furnish the City with certificates of insurance signed by the respective companies as proof that it has obtained the types and amounts of insurance coverage required herein. In addition, Company shall, on demand, provide the City with evidence that it has maintained such coverage in full force and effect. Texas Midstream Gas Services, L.L.C. Pipeline License Agreement -Sycamore Creek Golf Course Page 12 of 20 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. 1Vo 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 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 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. Texas Midstream Gas Services, L.L.C. Pipeline License Agreement -Sycamore Creek Golf Course Page 13 of 20 9$. 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 Ouuortunity 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. 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: 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 the Park as and when requested by the City. The City's right 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 Texas Midstream Gas Services, L.L.C. Pipeline License Agreement -Sycamore Creek Golf Course Page 14 of 20 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 acts and omissions of its officers, agents, servants, employees, contractors and subcontractors. Company acknowledges that the doctrine of respondeat superior shall not apply as between the City and Company, its officers, agents, employees, contractors and subcontractors. Company Texas Midstream Gas Services, L.L.C. Pipeline License Agreement -Sycamore Creek Golf Course Page 15 of 20 further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between the City and Company. 13. ASSIGNMENT PROHIBITED. Company may not assign or otherwise transfer any of its rights or obligations under this Agreement unless specifically authorized in writing by the City, which authorization. shall not be unreasonably withheld, 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 (1) 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 15, NON-DISCRIMINATION COVENANT, To COMPANY: Texas Midstream Gas Services, L.L.0 Manager -Midstream Property Rights 6100 N. Western Avenue Oklahoma City, OK 73118 with a copy to: C T Corporation System 350 North St. Paul Street Has, 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 Texas Midstream Gas Services, L.L.C. Pipeline License Agreement -Sycamore Creek Golf Course Page 16 of 20 Company's business operations, in any construction or installation of the Pipeline. 16. NO WAIVER. opportunities for employment with Company or in the The failure %J 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 final order entered by a court of competent jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. For purposes of this Agreement, a court order shall be final only to the extent that all available legal rights and remedies pertaining to such order, including, without limitation all available appeals, have been exhausted,I 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 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 -Sycamore Creek Golf Course 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: TEXAS MIDSTREAM GAS SERVICES, L.L.C.: By: ,fit By: arles Daniels J. Michael Stice Ass ant City Manager Chief Executive Officer Date: Date: 1 jo ) JO.6 APPROVED AS TO FORM AND LEGALITY: r By: Assistant City Attorney Texas Midstream Gas Services, L.L.C. Pipeline License Agreement -Sycamore Creek Golf Course Page 18 of 20 ACKNOWLEDGEMENT THE STATE OF TEXAS COUNTY OF TARRANT This instrument was acknowledged before me on this 5 day of 20M by ?Lvt (s (4,1. I� '-� Assistant City Manager of the City of Fort Worth, Texas, a municipal corporation, on behalf of the City of Fort Worth, Texas. Not�y Public, State of Texas PAARIA S. SANCHEZ fhY 01 iM ISSION EXPIRES December 14, 2013 ACKNOWLEDGMENT THE STATE OF OKLAHOMA § COUNTY OF OKLAHOMA § This instrument was acknowledged before me on this day of Ciplemb2ov 2009, by J. Michael Stice Chief Executive Officer of Texas Midstream Gas Services, L.L.C., an Oklahoma limited liability company, on behalf of said company. '� �°` �``'�`- of •y ublic, State of Oklahoma I cn' E:C P. 0.... 9, ,.A„E '`,, °' My commission expires:2-20-2011 or...o�� My commission number:07001656 Texas Midstream Gas Services, L.L.C. Pipeline License Agreement -Sycamore Creek Golf Course Page 19 of 20 `t r EXHIBIT "A" Company may only use approximately 104.47 linear feet crossing the northwestern edge of the Park as depicted below: Texas Midstream Gas Services, L.L.C. Pipeline License Agreement -Sycamore Creek Golf Course Page 20 of 20 EXHIBIT if it TARRANT COUNTY UNION PACIFIC RAILROAD (CONTROWNC MONU.V,ENT) 2 \ ! 1 P. TX—TARR—HISB-007.07.01 12 `\ ALFREDO ALVARADO INST, NO, D204047223 \ (nI N w\ rA ` 5' LICE I TEXAS 7X-TARR-HISB-007,00 CITY OF FORT WORTH SYCAMORE GOLF COUR' VOL, 10296, PG,1169 PRTCT P.O.C. 1 /2• C.LR.F (CONTROLLING MONUTAENT) \ TX—TARR—HISB-007.01.02 a SHIRLEY ORRELL `\ INST. NO, 0204047223 \\ TRANSMISSION LINE tea_ e1�,�C� �iG1L`i7DD GG3�OO L� �nJ1Gu'tu/C�17, La1fSDt�J4ULVA A� U LKJ OO o 9 LEGEND: POINT OF BEGINNING P.O.C. = POINT OF COMMENCING P.E. = PERMANENT EASEMENT T.W.E. = TEMPORARY WORKSPACE EASEMENT O = 1/2" IRON ROD FOUND UNLESS OTHERWISE NOTED = CALCULATED POINT DRTCT = DEED RECORDS, TARRANT COUNTY, TEXAS PRTCT = PLAT RECORDS, TARRANT COUNTY, TEXAS R = PROPERTY LINE LINE BEARING DISTANCE L1 N 18'1416" W 34.56 L2 N 07'29 02' E 151.11' L3 S 07.29 02' W 1 183,26' CURVE RADIUS ARC LENGTH CHORD LENGTH CHORD BEARING DELTA ANGLE C1 2739.79' 15.03 15.03 S 86023 03 E 0018 52 TOTAL LINEAR FEET: 164.47' 15' LICENSED AREA= 0.060 ACRES � t F�F'•v� 1 -�C�-►_'�_ A - --_- i ED E. HARP a TED B. HARP, SR. � 1(}pz v REGISTERED PROFESSIONAL LAND SURV90R N0, 2002 •"•oJ`�SS10?•- 2 SCALE: 1" = 100' ORDTATEASED ON TEXAS EM, NORTH STATECENTPLANEAL GRID SURV��O Scale intended for legal size (8,SN14") NAD 83 (2002). PLAT TO ACCOMPANY FIELD NOTES. REV.I DATE I BY t e X �d S MIDSTREAM SYCAMORE GOLF COURSE DESCRIPTION cHK. CITY OF FORT WORTH uss"rweyTttnneloLqe:corymrwo DRAWN BY: SCD DATE: 12-18-09 DWG. N0. REV. 40311m Wright Freeway South s�e.lso CHECKED BY: TBH DATE: 02/04/10 TX_TARR468-007.00 a Fort\Vorth,7%76168 SCALE: 1'=100' 817.7af.8900 -- Texas Midstream as Services Chesapeake Exploration, I.P. City of Fort Worth, Sycamore Golf Course lames Sanderson Survey, Abstract 1430 Tarrant County, Texas TX-TAMHISM07.00 METES AND &QUNDS DESCR/PT10N FORA 15 FOOT WIDE LICENSED AREA Situated in the lames Sanderson Survey, Abstract 1430 in the City of Fort Worth, Tarrant County, Texas, being part of a tract described in deed to City of Fort Worth, Sycamore Golf Course as recorded in Volume 10296, Page 1169, Deed Records, Tarrant County, Texas, and being more fully described as follows: 15 FOOT WIDE LICENSED AREA COMMENCING at a 1/2 inch iron rod #ound (controlling monument) in the common line of said Sycamore Golf Course tract and a tract of land described in deed to Alfredo Alvarado as recorded in instrument Number D204047223, Deed Records, Tarrant County, Texas; THENCE with said common line the following courses and distances; � North 18° 14' 16" West a distance of 173.18 feet to the POINT OF BEGINNING; ➢ North 18° 14 16 West a distance of 34.56 feet to a point from which a 5/8 inch iron rod found (controlling monument) bears, North 18° 14' 16" West,126.34 feet; THENCE leaving said common Line and crossing said Sycamore Golf Course tract, North 07° 29' 02" East a distance of 151.11 feet to a point in the south right-of-way line of union Pacific Railroad and said point being in the common line of said Railroad and Sycamore Golf Course tract and being on a curve to the right having a radius of 2739.79 feet and a chord of South 86° 23' 03" East, 15.03 feet; THENCE with said curve to the right 15.03 feet to a point; THENCE leaving said common line and crossing said Sycamore Golf Course tract, South 07° 29' 02" West a distance of 183.26 feet to the POINT OF BEGINNING, and containing 0.060 acres of land more ar less. Field Hates to accompany plat. AI! data based on Texas State Plane Coordinate System, North Central Zone Grid, NAD 83 (2002). Ted B. B. HARP Harp' TEl� R.P.L.S. 2002 �...::. .. .......,.r'' 2002 TX4ARR-HISB-007.00 l � � s sOVMOO�° }' Field notes to accompany plat � 0 SOm'E�J' I CONTINUED FROM A PREVIOUS WEEK DATE: Tuesday, June 23, 2009 LOG NAME: 80SYCAMOREGOLFNORTHGAS REFERENCE NO.: L-14796 SUBJECT: Authorize the Conversion of Approximately .056 Acre of Parkland at Sycamore Creek Golf Course Located at 401 Martin Luther King Jr. Freeway, for the Installation of a Gas Pipeline and Authorize the Execution of a License Agreement with Texas Midstream Gas Services, LLC, in the Amount of $7,565.62 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 Sycamore Creek Golf Course; 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 Sycamore Creek Golf Course 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 .056 acre of dedicated parkland for the installation of a 24 inch gas pipeline; and . Sycamore Creek Golf Course is located at 401 Martin Luther King Jr. Freeway, Mapsco 77H, M, 78E and J, east of Martin Luther King Jr. Freeway and Sycamore Circle, north of Vickery Boulevard, west of Ernest Street, south of Union Pacific Railroad in COUNCIL DISTRICT 8. 5. Authorize the execution of a License Agreement with Texas Midstream Gas .Services, LLC, in the amount of $7,565.62. DISCUSSION: The purpose of this M&C is to present a proposal for the conversion of Sycamore Creek Golf Course by the City Council in accordance with the Texas Parks and Wildlife Code. Should the City Council elect to approve the conversion, then this M&C seeks the City Council's authorization to enter into a license agreement with Texas Midstream Gas Services, LLC, (TMGS). Representatives from TMGS have approached the Parks and Community Services Department (PACSD) requesting the construction of a natural gas pipeline through Sycamore Creek Golf Course (SCGC) for the gathering of natural gas (see attached exhibit). The proposed alignment is to allow for the installation of one 24 inch natural gas pipeline. A 15 foot wide gas pipeline license agreement area is being requested. The pipeline alignment will be bored to a minimum depth of 20 feet with no surface impact on the golf Logname: 80SYCAMOREGOLFNORTHGAS Page 1 of 2 course. Staff is recommending as a condition of granting this alignment, that TMGS be assessed the recommended standard fee of $46.00 per linear foot of pipeline and that those funds be used to construct improvements in SCGC. This is consistent with fees assessed under the City's current Right -of -Way Use Agreements for installation of non -utility equipment, appliances or appurtenances in public right-of-way. In this instance, a fee of approximately $7,565.62 will be assessed for approximately 164.47 linear feet of gas pipeline. TMGS has been made aware of this fee and is agreeable to this assessment. The funds generated from the assessment will be used to construct golf course improvements. In accordance with State law, the conversion was advertised in the Fort Worth Star -Telegram on May 26, 2009, June 2, 2009, and June 9, 2009. Signage was posted at the site announcing the proposed conversion. A letter announcing the proposed conversion was sent to the president of the Parker Essex Boaz Neighborhood Association, on May 28, 2009. Sycamore Creek Golf Course is located in COUNCIL DISTRICT 8 FISCAL INFORMATION /CERTIFICATION: The Financial Management Services Director certifies the Parks and Community Services Department is responsible for the collection and deposit of funds due to the City. FUND CENTERS: TO Fund/Account/Centers FROM Fund/Account/Centers C282 446300 801929990100 7 565.62 CERTIFICATIONS: Submitted for City Manager's Office bX; Originating Department Head: Additional Information Contact: ATTACHMENTS 1. M and C distribution route.doc (CFW Internal) 2. M&C GOLF NORTH pipeline.pdf (Public) 3. M&C Location ma�pdf (Public) 4. MANDC survey.doc (Public) 5. Sycamore.doc (CFW Internal) Charles Daniels (6183) Richard Zavala (5704) David Creek (5744) Logname: 80SYCAMOREGOLFNORTHGAS Page 2 of 2