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HomeMy WebLinkAboutContract 43403 (2)C1TYSECRETARY cONTRACT NO. PUBLIC RIGHT-OF-WAY USE AGREEMENT -10 This PUBLIC RIGHT-OF-WAY USE AGREEMENT ("Agreement") is hereby made and entered into by and between the CITY OF FORT WORTH, a home rule municipal corporation organized under the laws of the State of Texas and acting by and through Fernando Costa, its duly authorized Assistant City Manager, and TEXAS MIDSTREAM GAS SERVICES, L.L.C., an Oklahoma limited liability company, acting by and through Robert S. Purgason, Chief Operating Officer. The following statements are true and correct and constitute the basis upon which the City of Fort Worth has executed this Agreement. A. TEXAS MIDSTREAM GAS SERVICES, L.L.C., an Oklahoma limited liability company, ("Company") wishes to construct a pipeline for the transportation of natural gas within certain Public Rights -of -Way. 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 Right -of -Way. B. The City has reviewed Company's request and agrees to grant Company a license to use certain Public Rights -of -Way in order to construct, operate and maintain a pipeline, on the terms and conditions set forth herein, solely for the transportation of natural 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 the Public Rights -of -Way 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 directly related uses of the Public Rights -of -Way, pursuant to and in accordance with this Agreement. Business Day shall mean Monday through Friday, but excluding City holidays. GP09-0054 — Westgate Phase II Texas Midstream Gas Services, L.L.C. Right -of -Way Use Agreement Page 1 of 17 Or1 -1 17i 2 P12:48 1N OFFICI r1 RECORD CITY SECRETARY Company shall mean Texas Midstream Gas Services, L L C., an Oklahoma limited liability company, only and shall not include any Affiliate or third party. City shall mean the area within the corporate limits of the City of Fort Worth, Texas and the governing body of the City of Fort Worth, Texas. Commission shall mean the Railroad Commission of the State of Texas or other authority succeeding to the regulatory powers of the Commission. Customer shall mean any Person located, in whole or in part, within the City. Director shall mean the Director of the City's Department of Transportation/Public Works or authorized representative. Gas shall mean gaseous fuels such as natural gas, artificial gas, synthetic gas, liquefied natural gas, manufactured gas, or any mixture thereof. Person shall mean, without limitation, an individual a corporation a limited liability company, a general or limited partnership, a sole proprietorship, a joint venture, a business trust or any other form or business entity or association. Pipeline shall mean the pipeline and other facilities approved by the Director that are installed by Company in the Public Rights -of -Way in accordance with this Agreement. Public Rights -of -Way shall mean only those dedicated public streets, highways, alleys and rights -of -way in the City identified in Exhibit "A" of this Agreement, attached hereto and hereby made a part of this Agreement for all purposes. 2. GRANT OF RIGHTS. 2.1. General Use of Public Rights -of -Way 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 its Pipeline in, over, under, along and across the Public Rights -of - Way and (ii) transport Gas through the portions of its Pipeline in, over, under, along and across the Public Rights -of -Way. 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. GP09-0054 — Westgate Phase II Texas Midstream Gas Services, L.L.C. Right -of -Way Use Agreement Page 2 of 28 2.2. Nonexclusive. This Agreement and all rights granted to Company herein are strictly nonexclusive. The City reserves the right to grant other and future licenses and other authorizations for use of the Public Rights -of -Way to other Persons and entities in accordance with applicable law and as the City deems appropriate; provided, however, that as to the giant of subsequent licenses for use of the same Public Rights -of -Way that is solely within the discretion of the City, if a dispute arises as to priority of the use of the Public Rights -of -Way, the City will resolve such dispute in a manner that does not result m unreasonable interference with Company's operation of the Pipeline foi the purposes provided foi herein. This Agreement does not establish any priority for the use of the Public Rights -of -Way 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 Public Rights -of -Way, 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 Public Rights -of -Way in the City that requires a cut, opening or other excavation, Company shall deliver to the City bonds executed by a corporate surety authorized to do business in the State of Texas and acceptable to the City in the proportional amount of the cost of work under the construction contract or construction project that will be performed in the Public Rights - of -Way. The bonds shall guarantee (i) satisfactory compliance by Company with all requirements, terms and conditions of this Agreement and (ii) full payments to all persons, firms, corporations or other entities with whom Company has a direct relationship for the performance of such construction, maintenance or repairs. If any such construction, maintenance and repair work is undertaken by a contractor of Company, Company shall also require such contractor to deliver to Company bonds executed by a corporate surety authorized to do business in the State of Texas and acceptable to the City in the proportional amount of the cost of work under the construction contract or construction project that will be performed by the contractor in the Public Rights -of -Way. 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 foi all wages for labor and services and of all bills for materials, supplies and equipment used in the GP09-0054 — Westgate Phase II Texas Midstream Gas Services, L L C Right -of -Way Use Agreement Page 3 of 28 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 on July 31, 2037 unless terminated earlier as provided herein. 4. FEES AND PAYMENTS TO CITY. 4.1. Right-of-Wav Use Fee. On or prior to the Effective Date, Company shall pay the City as compensation for its use of the Public Rights -of -Way for the Term of this Agreement the sum of One Hundred Sixty Three Thousand Three Hundred Ninety -Eight Dollars and Forty Cents ($163,398.40) ("License Fee"). Company hereby acknowledges and agrees that the amount of this License Fee constitutes just and reasonable compensation to the City for Company's use of the Public Rights -of -Way as provided by this Agreement 4.2. Other Payments. In addition to the License Fee, Company shall pay the City all sums which may be due the City for property taxes, license fees, permit fees, or other taxes, charges or fees that the City may from time to time impose on all other similarly situated entities within the City. Company shall reimburse the City for publication of this Agreement as required by the City's Charter 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 Agi eement. 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 foi the protection or benefit of the general public. In this connection, Company shall be subject to, governed by and shall comply with all applicable GP09-0054 — Westgate Phase II Texas Midstream Gas Seivices, L L C Right -of -Way Use Agreement Page 4 of 28 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 PUBLIC RIGHTS -OF -WAY. 6.1. Pre -Construction Conference. Company shall notify the City not less than five (5) Business Days in advance of the Company's proposed construction start date and shall meet with appropriate City staff in the Planning and Development, the Parks and Community Services, and the Transportation and Public Works Departments for the purposes of requesting a Pipeline pre -construction conference, which shall be scheduled to occur not less than two (2) Business Days prior to initiating construction. The purpose of the pre -construction conference shall be to address issues related to the installation of the Pipeline, including, but not be limited to, (i) agreeing to the boundaries of any work areas to be used for storing or staging equipment and supplies; (ii) identifying trees that are anticipated to be affected by the Pipeline installation and outlining any requited tree protection measures that Company must take; and (iii) establishing the details for the restoration of those areas that are disturbed by or during installation. 6.2. Compliance with Laws, Ordinances. Rules and Regulations. The City has the right to control and regulate the use of the Public Rights -of -Way, 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 Public Rights -of -Way by the City and the public. If the City reasonably determines that the Pipeline does place an undue burden on any portion of the Public Rights -of -Way, 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. 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 Public Rights -of -Way, Company shall, except for work required to address an GP09-0054 — Westgate Phase II Texas Midstream Gas Services, L.L.C. Right -of -Way Use Agreement Page 5 of 28 emergency, provide at least twenty-four (24) hours' advance written notice to the owners of property adjacent to the Public Rights -of -Way 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 such traffic control devices shall be consistent with the standards and provisions of Part VI of the Texas Manual on Unifoum 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. 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. Markinu of Pipeline. The Pipeline shall be marked, in a manner that is acceptable to the Director, to show conspicuously Company's name and a toll -free telephone number of Company that a Person may call for assistance. 6.7. Pavement Cut Coordination and Additional Fees. The City shall have the right to coordinate all excavation work in the Public Rights -of -Way in a manner that is consistent with and convenient for the implementation of the City's program for street construction, rebuilding, resurfacing and repair. In order to preserve the integrity of the Public Rights -of -Way, Company shall not cut, excavate or otherwise breach or damage the surface of any paved Public Right -of -Way within ninety- six (96) months following the construction or resurfacing of such Public Right -of -Way unless (i) Company obtains written consent from the Director and (ii) pays the City, for each fifty (50) linear feet of a cut, excavation or breach of any Public Right -of -Way or portion thereof, the sum of (a) $1 500 for any cut, excavation or breach occurring between the effective date and July 31, 2017; (b) $1,800 for any cut, excavation or breach occurring between August 1, 2017 and July 31, 2022; (c) $2,150 for any cut, excavation or breach occurring between August 1, 2022 and July 31, 2027; and (d) $2,600 for any cut, excavation or breach occurring between August 1, 2027 and July 31, 2037. Such fee shall (i) be in addition to, and not in lieu of, Company s obligations to restore the Public Rights -of -Way in accordance with this Agreement and (ii) not be allocated or otherwise counted as part of the License Fee to the City. GP09-0054 — Westgate Phase II Texas Midstream Gas Services, L.L.C. Right -of -Way Use Agreement Page 6 of 28 6.8. Restoration of Public Rights -of -Way and Property. Company, at its sole cost and expense, and in a manner approved by the City, shall restore any portion of the Public Rights -of -Way, City -owned property, or other privately -owned property that ale in any way disturbed or damaged by the initial construction of the Pipeline to a condition that is at least as good as the one in which such property existed immediately prior to the disturbance or damage. In restoring property following the initial construction of the Pipeline, Company shall comply with restoration details established at the pre -construction conference held in accordance with Section 6.1 as well as with the Restoration Specifications contained in Exhibit "B,' which is attached hereto and incorporated herein for all purposes as though it were set forth at length Company will be installing the Pipeline in segments. Following completion of a segment, Company shall submit a brief sworn and notarized written statement to the City notifying the City of completion of the segment and averring to the date of completion. Following completion of each segment, Company shall immediately begin restoration of property disturbed or damaged in connection with installation of that segment. Restoration for each segment must be complete no later than fifty (50) Business Days after the completion date sworn to in the Company's notice to the City. To ensure Company's diligence in complying with its restoration obligations and to minimize impact to the public, if the Company fails to complete all restoration by the fiftieth Business Day after the mechanical completion date for the final Pipeline segment, Company agrees to pay City liquidated damages of Five Hundred Dollars ($500.00) per day for each day beyond the fiftieth Business Day that restoration remains incomplete. The parties agree that the amount of liquidated damages reasonably approximates the actual damages to the City for delay in the City regaining full use of the street and associated parking spaces and in the public regaining full and unencumbered use of the public street. In addition, failure to complete restoration in accordance with the requirements and schedule described above shall be deemed an Event of Default under Section 9 of this Agreement. Company, at Company's sole cost and expense, and in a manner approved by the City, shall promptly restore any portion of the Public Rights -of -Way City -owned property or other piivately-owned property that are in any way disturbed or damaged by the operation, maintenance or removal of any of the Pipeline to a condition that is at least as good as the one in which such property existed immediately prior to the disturbance or damage. Company shall diligently commence such restoration within thirty (30) calendar days following the date that Company first became aware of the disturbance or damage or, if the Pipeline is being removed, within thirty (30) calendar days following such removal. In restoring property, Company shall comply with the Restoration Specifications contained in Exhibit "B." GP09-0054 — Westgate Phase II Texas Midstream Gas Services, L.L.C. Right -of -Way Use Agreement Page 7 of 28 6.9. 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 remove from the Public Rights -of -Way all or any portion of its Pipeline due to street or other public excavation, construction, repair, grading, regrading or traffic conditions; the installation of sewers, drains, water pipes or municipally -owned facilities of any kind; the vacation, construction or relocation of streets or any other type of structure or improvement of a public agency; any public work; or any other type of improvement necessary, in the City s sole discretion, for the public health, safety or welfare. If Company reasonably requires more than forty-five (45) days to comply with the City's written request, it shall notify the director of the City's Department of Transportation/Public Woiks in writing and the City will work in good faith with Company to negotiate a workable time frame. 6.10. Emergencies. 6.10.1. Work by the City. For purposes of this Section 6.9.1, 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 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. 6.10.2. Work by or on Behalf of Company. In the event of an emergency that directly involves that portion of the Pipeline located in the Public Rights -of -Way and necessitates immediate emeigency response work or repairs Company may initiate the emeigency response work or repairs or take any action required under the circumstances GP09-0054 — Westgate Phase II Texas Midstream Gas Services, L L C Right -of -Way Use Agreement Page 8 of 28 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 Transportation/Public Works and otherwise fully comply with the requirements of this Agreement. 6.11. Removal of Pipeline. Upon the revocation, termination or expiration without extension or renewal of this Agreement, Company's right to use the Public Rights -of -Way under this Agreement shall cease and Company shall immediately discontinue the transportation of Gas in or through the City. Within six (6) months following such revocation, termination or expiration and if the City requests, Company, at Company's sole cost and expense, shall remove the Pipeline from the Public Rights -of -Way (or cap the Pipeline, if consented to by the City), in accordance with applicable laws and regulations. If Company has not removed all of the Pipeline from the Public Rights -of -Way (or capped the Pipeline, if consented to by the City) within six (6) months following revocation, termination or expiration of this Agreement, the City may deem any portion of the Pipeline remaining in the Public Rights -of -Way 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 6.8 of this Agreement, Company shall also restore any property, public or private, that is disturbed or damaged by removal (or, if consented to by the City, capping) of the Pipeline If Company has not restored all such property within this time, the City, at the City's sole option, may perform or have performed any necessary restoration work, in which case Company shall immediately reimburse the City for any and all costs incurred in performing or having performed such restoration work. 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 (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, GP09-0054 — Westgate Phase II Texas Midstream Gas Services, L.L.C. Right -of -Way Use Agreement Page 9 of 28 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. 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 (INCLUDING, WITHOUT LIMITATION, THOSE FOR PROPERTY DAMAGE AND PERSONAL INJURY, INCLUDING DEATH) 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 OMISSIONS) OR INTENTIONAL MISCONDUCT OF THE CITY. 7.3. Assumption of Risk. Company hereby undertakes and assumes, for and on behalf of Company, its officers, agents, contractors, subcontractors, agents and employees, all risk of dangerous conditions, if any, on or about any City -owned or City -controlled property including, but not limited to, the Public Rights -of -Way. 7.4. Defense of Indemnitees. In the event any action, lawsuit or other proceeding is brought against any Indemmtee 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. GP09-0054 — Westgate Phase II Texas Midstream Gas Services, L.L.C. Right -of -Way Use Agreement Page 10 of 28 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 Public Rights -of -Way and the construction, installation, operation, maintenance or condition of the Pipeline, including the transportation of Gas through the Pipeline. The required insurance can be met by a combination of self-insurance, primary and excess policies. 8.1. Primary Liability 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 liabihty; (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. GP09-0054 — Westgate Phase II Texas Midstream Gas Services, L L C Right -of -Way Use Agreement Page 11 of 28 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 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 $25,000 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 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 effected 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. 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. 9.3. Bankruntcv, 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 GP09-0054 — Westgate Phase II Texas Midstream Gas Services, L L C Right -of -Way Use Agreement Page 12 of 28 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. 9.4. Violations of the Law. An Event of Default shall occur if Company violates any existing or future federal, state or local laws or any existing or future ordinances, rules and regulations of the City. 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, such Event of Default shall be deemed an Uncured Default and the City shall have the right to terminate this Agreement immediately upon provision of written notice to Company. If an Event of Default occurs for a reason other than for failure to pay the License Fee, the City shall provide Company with written notice and shall give Company the opportunity to cute such Event of Default. Foi 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 cuied 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: 10.2.1. Termination of Agreement. Upon the occurrence of an Uncured Default, the City may terminate this Agieement. Upon such termination, Company shall forfeit all rights granted to it under this Agreement, and, except as to Company's unpeiformed obligations and existing liabilities as of the date of termination, this Agieement 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 Public Rights -of -Way as GP09-0054— Westgate Phase II Texas Midstream Gas Services, L.L.C. Right -of -Way Use Agreement Page 13 of 28 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 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 'elated to (i) tariffs; (ii) rules, regulations and policies requested, under consideration or approved by the Commission; and (iii) applications and any supporting pre -filed testimony and exhibits filed by Company or third parties on behalf of Company, on the same date as such filings are made with the Commission. In addition, Company shall provide the City with copies of reco'ds, documents and other filings that Company is required to maintam or supply to the Commission under any applicable state or federal law, rule o' regulation. 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 accoidance with the terms and conditions of this Agreement, and shall be solely responsible for the GP09-0054 — Westgate Phase II Texas Midstream Gas Services, L L C Right -of -Way Use Agreement Page 14 of 28 acts and omissions of its officers agents, servants, employees, contractors and subcontractors. Company acknowledges that the doctrine of respondeat superior shall not apply as between the City and Company, its officers, agents, employees, contractors and subcontractors. Company further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between the City and Company. 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. 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: To COMPANY: City of Fort Worth Public Utilities Administrator 1000 Throckmorton Fort Worth, TX 76102 with a copy to: City of Fort Worth Department of Law Attn Attorney for Utilities 1000 Throckmorton Fort Worth, TX 76102 Texas Midstream Gas Services, L.L.C. Manager — Property Rights 100 Energy Way Fort Worth, TX 76102 Texas Midstream Gas Services, L.L.C. c/o CT Corporation 350 North St. Paul Street, Suite 2900 Dallas, Texas 75201 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. GP09-0054 — Westgate Phase II Texas Midstream Gas Services, L L C Right -of -Way Use Agreement Page 15 of 28 16. NO WAIVER. The failure of the City to insist upon the performance of any term or provision of this Agieement 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 Public Rights -of -Way, venue for such action shall lie exclusively in state courts located in Tairant County, Texas or the United States District Couit 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 tunes and upon reasonable notice to discuss any aspect of this Agieement, Company's Pipeline, Company's operations in the City, Company's transportation of Gas or Company's use of Public Rights -of -Way. 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. 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, strikes,. sabotage, riots or civil disturbances, failure or loss of utilities, explosions and natural disasters. GP09-0054 — Westgate Phase II Texas Midstream Gas Services, L L C Right -of -Way Use Agreement Page 16 of 28 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: By: Fernando Costa Assistant City Manager Date: 0g/Z TEXAS MIDSTREAM GAS SERVICES, L.L.C. R Chief Operating Officer Date: clv/a/2 20/L J APPROVED AS TO FORM AND LEGALITY: By: Ig - 'Y�' rC Denis McElik Assistant CiAttorney Date: LJt-M ilOr 71))1 kI M&C: L - 15393, July 10, 2012 GP09-0054 — Westgate Phase II Texas Midstream Gas Services, L.L.C. Right -of -Way Use Agreement Page 17 of28 Attested by; ypdf �F?4?��7 -D 0 os ou Se Od_ 0 IL % sc), .4 0 a8 Z � oa o 'kicy 0000° # EXAASal we•IIII:fea.tawor OFFICIAL RECORD CITY SECREW.� ET.INORTH9 TX EXHIBIT "A" Company may only use the following portions of the Public Rights -of -Way in the City: • Across Nineteenth Street north of Jones Street • Across Jones Street, north of Lancaster Avenue • Along Lancaster Avenue, east of Calhoun Street to west of Lamar Street • Approximately 3376 feet ROW usage GP09-0054 — Westgate Phase II Texas Midstream Gas Services, L L C Right -of -Way Use Agreement Page 18 of 28 EXHIBIT "B" Restoration Specifications 1. Company shall be responsible for installing tree protection measures in accordance with the pre -construction conference and for maintaining and watering all trees in the affected medians until such time as restoration is fully complete and accepted by PACSD. Company shall submit a watering schedule to the PACSD for approval along with a water usage estimate. Company shall be responsible for paying the cost of the estimated water usage associated with maintenance of the trees and restoration of other vegetation. 2. Company shall ensure that all construction materials brought onto the site , including diilling fluids and cuttings, are removed from City property and are properly disposed of In addition, Company shall not allow or cause any release, discharge, migration or seepage of any drilling fluid, contaminant, or pollutant into or on the soil; if such a release should occur, Company shall notify the City immediately and, at Company's sole expense, remove and properly dispose of all affected soil and take all other necessary response action. 3. In making any repairs to the City's irrigation system, Company shall ensure that all work is performed by a certified landscape irrigator and shall provide the City's Paiks and Community Services Department ("PACSD') with documentation of such certification. Company shall notify PACSD when repairs to the irrigation system have been completed PACSD shall have at least two Business Days to inspect the system before the lines are re- buried If repair of the irrigation system involves any changes to the location of any lines or valves Company shall provide the City with as -built plans for the system following repairs. 4. Company shall ensure that new clean topsoil is used for all restoration and shall provide the City with documentation of the source and composition of the soil. 5 After disturbed areas have been refilled, they shall be compacted to a minimum 90% Standard Proctor Density (S.S.T.M. D698). Company shall provide City with notice regarding when compaction will be occurring, and the City shall have the right, but not the obligation, to be present during the compaction process. Company shall provide City with a report documenting the actual density following compaction. 6. Prior to the replacement of any curbing or pavers in the City median, Company shall contact the City personnel identified at the pre -construction conference to schedule an inspection of the grading of the area If the inspection indicates that adjustments must be to the grading, Company shall ensure that such measures are performed and shall schedule a follow-up inspection with City personnel to verify the results. 7. Company shall be responsible for installing a temporary irrigation system and maintaining the median strips until such time as they are accepted by PACSD. GP09-0054 — Westgate Phase II Texas Midstream Gas Services, L L C Right -of -Way Use Agreement Page 19 of 28 PART 1 - GENERAL 1.01 DESCRIPTION SECTION 02930 - TURF SODDING A. Work Included: This work includes all labor, materials and equipment for soil preparation, fertilization, planting and other requirements regarding turfgrass sodding shown on the plans. B. Related Work Specified Elsewhere: Section 02300, Earthwork. 1.02 REFERENCE STANDARDS A. For exotic plant materials: American Joint Committee of Horticultural Nomenclature, Second Edition, 1942. B. For native materials a. Manual of the Vascular Plants of Texas by Covell and Johnston b. Check List of Vascular Plants of Texas by Hatch c. Flora of North Central Texas by Shinners and Moller 1.03 SUBMITTALS Samples certificates and specifications of sod, fertilizer, compost, soil amendments or other materials may be requested by the City. All delivery receipts and copies of invoices for materials used for this work shall be subject to verification by the City. 1.04 PRODUCT DELIVERY, STORAGE AND HANDLING A. Sod: Harvesting and planting operations shall be coordinated with not more than forty eight hours elapsing between the harvesting and planting. B. Fertilizer 1. Unopened bags labeled with the analysis 2. Conform to Texas Fertilizer Law. 1.05 QUALITY CONTROL The Developer/Contractor who plants the sod is responsible for supervision of his crew, while planting the sod and maintaining the sod until the project is accepted by the City. PART 2- PRODUCTS 2.01 SOD GP09-0054 — Westgate Phase II Texas Midstream Gas Services, L L C Right -of -Way Use Agreement Page 20 of28 A. The sod shall be Cynodon dactylon ("Bermuda" grass) and shall consist of stolons, leaf blades, rhizomes and roots with a healthy, virile system of dense, thickly matted roots throughout the soil of the sod for a thickness of not less than one inch Sod shall be alive, healthy and vigorous and shall be free of insects, disease stones and undesirable foreign materials and grasses. Sod shall have been produced on growing beds of clay o1 clay - loam topsoil. The sod shall not be harvested or planted when its moisture condition is so excessively wet or dry that its survival will be affected If sod is stacked, it shall be kept moist and shall be stacked roots -to -roots and grass -to -grass. B. The sod shall be cut in strips four feet wide to be laid parallel with the contours. 2.02 FERTILIZER A. All fertilizer shall be delivered in bags or containers clearly labeled showing the analysis. B. All fertilizer shall be in acceptable condition for distribution and shall be applied uniformly over the planted area two weeks after sodding C. All fertilizer shall have an analysis of 3-1-2 or as designated on the plans. The fertilizer rate shall be 45 pounds of nitrogen per acre. 2.03 WATER The water shall be furnished by the Developer/Contractor and shall be clean and free of industrial wastes of other substances harmful to the germination of the seed or to the growth of the vegetation. The amount of water will vary according to the weather variables Generally, the sod should be soaked one time per day for three weeks or until established. Soaking is mandatory after spreading the fertilizer. 2.04 COMPOST All compost material is to be totally organic and decomposed for at least nine months. All compost is to be clean and free of fungus, disease live plants, seed, excessive cotton lint and any harmful chemicals. "New Life Soil Conditioner" or "Perma Green Compost", as specified below or an approved equal, shall be used. Raw organics are not acceptable. A. For soil with an alkaline pH condition: Use "New Life Acid Gro" (acid pH) soil conditioner as produced by Soil Building Systems of Dallas or an approved equal. B. For soil with an acidic pH condition: Use "Perma Green Compost' by Texas Earth Resources, Inc. of Dallas or "New Life Natural Grower" (pH 8.0 to 9.0) by Soil Building Systems, Inc. of Dallas. C. Sample and Specification Submittal: Submit a producer's specification and a quart sample of the compost proposed for the City's approval. GP09-0054 — Westgate Phase II Texas Midstream Gas Services, L L C Right -of -Way Use Agreement Page 21 of28 PART 3- EXECUTION 3.01 GENERAL All turfing operations are to be executed across the slope, parallel to finished grade contours. 3.02 SOIL PREPARATION A. Scarify subgrade to a depth of three inches before depositing the required topsoil. B. Tillage shall be accomplished to loosen the topsoil, destroy existing vegetation and prepare an acceptable sod bed. All areas shall be tilled with a heavy duty disc or a chisel -type breaking plow, chisels set not more than ten inches apart. Initial tillage shall be done in a crossing pattern for double coverage, then followed by a disc harrow. Depth of tillage shall be five inches. A heavy duty rototiller may be used for areas to be planted with sod. C. Cleaning: Soil shall be further prepared by the removal of debris, building materials, rubbish, weeds and stones larger than one inch in diameter. D. Fine Grading: After tillage and cleaning, all areas to be planted shall be topdressed with one-half inch compost and then shall be leveled, fine graded, and drug with a weighted spike harrow or float drag. The required result shall be the elimination of ruts, depressions, humps and objectionable soil clods This shall be the final soil preparation step to be completed before planting. 3.03 PLANTING Prior to laying the sod, the planting bed shall be raked smooth to true grade and moistened to a depth of foul inches, but not to the extent causing puddling. The sod shall be laid smoothly, tightly butted edge to edge and with staggered joints. The sod shall be pressed firmly into the sod bed by rolling or by hand tamping with an approved tamper so as to eliminate all air pockets, provide a true and even surface, and ensure knitting without displacement of the sod or deformation of the surfaces of sodded areas. Following compaction, compost shall be used to fill all clacks between sods. Excess compost shall be worked into the grass with suitable equipment and shall be well watered. The quantity of compost shall be such that it will cause no smothering or burning of the grass. 304 FERTILIZING Twenty-one days after planting tuifgrass areas shall receive an application of 3-1-2 fertilizes at the rate of 45 pounds of nitrogen per acre. Water well after application to prevent burning. END OF SECTION GP09-0054 — Westgate Phase II Texas Midstream Gas Services, L L C Right -of -Way Use Agreement Page 22 of 28 SECTION 02300 - EARTHWORK PART 1 - GENERAL 1.01 SCOPE: Work in this section includes furnishing all labor, materials, equipment, and services requited to construct, shape and finish earthwork to the required lines, grades, and cross sections as specified herein and on the plans. 1.02 I RELATED WORK SPECIFIED ELSEWHERE A. Section 02200 - Site Preparation. B. Grading Plan: Refer to plan sheets. 1.03 METHOD OF PAYMENT Earthwork is a necessary and incidental part of the work. The total cost will be included in the Bid Proposal. Payment will be made on a Lump Sum basis only. PART 2 - PRODUCTS 2.01 UNCLASSIFIFD EXCAVATION: Unclassified excavation shall consist of all excavation, unless separately designated, within the limits of the work. Unclassified excavation includes all material encountered regardless of its nature or the manner in which it is to be excavated 2.02 UNCLASSIFIED FILL A. Unclassified fill shall consist of all fill within the limits of the work. All suitable native mate' ials removed in unclassified excavation, or similar imported materials shall be used insofar as practicable as unclassified fill. Properly deposited, conditioned and compacted fill is hereinafter referred to as "earth embankment." B. Rock: Minor quantities of rock not greater than four inches in greatest dimension are peimissible in fill materials used to construct earth embankment. Minor quantities of lock of greater dimensions may be placed in the deeper fills in accoidance with the State Department of Highways and Public Transportation requirements for construction of rock embankments, provided such placement of rock is not immediately adjacent to stiuctures of piers. Also,'ocic may be placed in the portions of embankments outside the limits of the completed graded width where the size of the rock prohibits theft incorporation in the normal embankment layers. 2.03 TOPSOIL - On -Site Topsoil: Topsoil shall consist of an average depth of six inches of native surface soil left in place after the ground cover of herbaceous vegetation and other objectionable matter has been cleared by "blading," as specified in Section 02200 "Site Preparation " Topsoil may be greater or less than the upper six inches (6") in depth. GP09-0054 — Westgate Phase II Texas Midstream Gas Seivices, L L C Right -of -Way Use Agreement Page 23 of 28 2.04 IMPORTED FILL A. Imported fill materials shall be used for the construction of earth embankment in the event that; (1) the volume of unclassified excavation is less than the volume of fill required foi earth embankment and/or; (2) the condition of materials removed in unclassified excavation makes them unsuitable for use in the construction of earth embankment. B. The Developer/Contractor shall haul and place imported fill obtained from off -site sources as necessary to construct the embankment and various other details of the construction plans. All costs related to such imported fill will be included in the contract price, and no additional or separate payment foi imported fill will be due the Contractor. C. A sample of the proposed imported fill must be provided by the Developer/ Contractor and be approved by the Owner. In general imported material must be equal to or better than native material in quality and engineering characteristics. The Owner may also require the Contractor to provide a material analysis test of the proposed fill. 2.05 SELECT MATERIALS A. Select materials shall be imported from offsite sources, unless they are available from specifically designated areas on the site as marked on the plans. 2.06 UNSUITABLE MATERIALS A. Topsoil, select material, imported fill, or unclassified fill to be used as finish grade top dressing will be declared as "unsuitable" by the Owner if', in his opinion, any of the following conditions or matter and particles are present to a degree that is judged detrimental to the proposed use of the material. 1. Moisture 2. Decayed or undecayed vegetation 3. Hardpan clay, heavy clay, or clay balls 4. Rubbish 5. Construction rubble 6. Sand or gravel 7. Rocks greater than one half inch (1/2") diameter 8. Cementious matter 9. Foreign matter of any kind B. Unsuitable materials will be disposed of as "waste" as specified in Section 02200. C. Wet Material: If fill material is unsatisfactory for use as embankment solely because of high moisture content, the Owner may grant the Developer/Contractor GP09-0054 — Westgate Phase II Texas Midstream Gas Seivices, L L C Right -of -Way Use Agreement Page 24 of 28 permission to process the material to reduce the moisture content to a usable optimum condition. PART 3- EXECUTION 3.01 SITE PREPARATION: In general, "site preparation," as specified in Section 02200, shall be performed in advance of grading and earthwork operations and shall be completed over the entice area of earthwork operations I 3.02 TOPSOIL A. The removal and storage of topsoil shall occur after site preparation is complete and before excavation and embankment construction begin. Likewise, topsoil will be replaced after excavation and embankment construction are complete. B. Removal: Topsoil shall be stripped to an average depth of six inches from areas where excavation and embankment construction are planned. Topsoil may be obtained from greater depths if it is uncontaminated by the substratum and it is of good quality, in the opinion of the Owner. C. Storage: Topsoil shall be stored in stockpiles conveniently located to areas that will later receive the topsoil. Stockpiles shall be out of the way of earthwork operations in locations approved by the Owner. Stored topsoil shall be kept separate from other excavated materials and shall be protected from contamination by objectionable materials that would render it unsuitable. Timing Topsoil will not be replaced (deposited) until construction activities are complete that would create undesirable conditions in the topsoil, such as overcompaction oI contamination. Trenching for items such as elect ical conduit and irrigation pressure lines must be complete before topsoil replacement may begin. E. Replacement: Topsoil will be deposited in a single layer or lift. It will be placed, processed, compacted and graded to leave a finished layer of topsoil not less than five inches in depth. Unless otherwise indicated, topsoil will be replaced over all areas of earthwork (including slopes), except where pavement is planned. F Grading: Topsoil will be final graded to the elevations shown on the plans. Fine grading will be accomplished with a weighted spike harrow, weighted drag, tractor box blade, light maintainer, or other acceptable machinery. All particles of the finish glade shall be reduced to less than one half inch (1/2") in diameter or they shall be removed. All rocks of one inch or greater shall also be removed. Grading operations and equipment will be such that topsoil does not become overcompacted. Bulldozer blades and front-end loader buckets are not acceptable devices for topsoil grading operations. Final grading within five feet of constructed or installed elements shall be hand raked. GP09-0054 — Westgate Phase II Texas Midstream Gas Services, L L C Right -of -Way Use Agreement Page 25 of 28 G. Acceptability: Finished areas of topsoil are satisfactory if they are true to grade, true in plane, even in gradient (slope), uniform in surface texture, and of normal compaction. Areas of loose granular pockets or of overcompacted soils are not acceptable and will be reworked. Finished areas will promote surface drainage and will be ready for turfgrass planting. 3.03 UNCLASSIFIED EXCAVATION A. All excavated areas shall be maintained in a condition to ensure propel drainage at all times and ditches and sumps shall be constructed and maintained to avoid damage to the areas under construction. B. Surplus Material: 1. Surplus excavation is that quantity of material that may be left over after the grading plan is executed, and all earthwork operations, including excavation, embankment construction, topsoil replacement, and final grading, are completed. Any other surplus material shall be disposed of as "waste" as specified in Section 02200. All such cost for removal shall be considered as incorporated into Earthwork costs. C. Excavation in Rock: The use of explosives will not be permitted. Unless otherwise indicated on the plans, excavation in solid rock shall extend six inches below required subgrade elevation for the entire width of the area under construction and shall be backfilled with suitable materials as indicated on the plans. 3.04 EARTH EMBANKMENT A. Earth embankment is defined as embankment composed of suitable materials removed in unclassified excavation and/or imported fill. The construction of embankment includes preparing the area on which fill is to be placed and the depositing, conditioning, and compaction of fill material. B. General* Except as otherwise required by the plans, all embankment shall be constructed in layers approximately parallel to the finished grade of the graded area, and each layer shall be so constructed as to provide a uniform slope as shown on the grading plan Embankments shall be constructed to correspond to the general shape of the typical sections shown on the plans, and each section of the embankment shall correspond to the detailed section or slopes established by the drawings After completion of the graded area, embankment shall be continuously maintained to its finished section and grade until the project is accepted. C. Preparation: Prior to placing any embankment, all preparatory operations will have been completed on the excavation sources and areas over which the GP09-0054 — Westgate Phase II Texas Midstream Gas Services, L L C Right -of -Way Use Agreement Page 26 of 28 embankment is to be placed. The subgrade shall be proof rolled to detect soft spots, which if exist, should be reworked. Proof tolling shall be performed using a heavy pneumatic tire roller loaded dump tuck, or similar piece of equipment weighing approximately 25 tons except as otherwise specified for tree protection and areas inaccessible to vehicular compactors Stump holes or other small excavations in the limits of the embankments shall be backfilled with suitable material and thoroughly tamped by approved methods before commencing embankment construction. The surface of the ground, including plowed, loosened ground, or surfaces roughened by small washes or otherwise shall be restored to approximately its original slope by blading or other methods and, where indicated on the plans or required by the Ownei, the ground surface, thus prepared, shall be compacted by sprinkling and rolling. D. Scarification: The surface of all areas and slopes over which fill is to be placed, other than rock shall be scarified to a depth of approximately six inches to provide a bond between the existing surface and the proposed embankment. Scarification shall be accomplished by plowing, discing or other approved means. Prior to fill placement, the loosened material shall be adjusted to the proper moisture content and recompacted to the density specified herein for fill. E Benching: Scarification is normally adequate for sloping surfaces. However, in certain cases where fill is to be placed against hillsides or existing embankment with slopes greater than 4 1, the Owner may direct the Developer/Contractor to key the fill material to the existing slopes by benching. A minimum of two feet normal to the slope shall be removed and recompacted to ensure that the new work is constructed on a firm foundation free of loose or disturbed material. F. Depositing: Fill material shall be placed in horizontal layers or lifts, evenly spread, not to exceed eight inches (8") in loose depth before conditioning and compaction. Unless otherwise permitted, each layer of fill material shall cover the length and width of the area to be filled and shall be conditioned and compacted before the next higher layer of fill is placed. Adequate drainage shall be maintained at all times G. Watering: At the time of compaction, the moisture content of fill material shall be such that the specified compaction will be obtained, and the fill will be firm, hard, and unyielding. Fill material which contains excessive moisture shall not be compacted until it is dry enough to obtain the specified compaction. H. Compacting: Each layer of earth fill shall be compacted by approved tamping or sheepsfoot rollers pneumatic tire rollers, or other mechanical means acceptable to the Ownei. Hand -directed compaction equipment shall be used in areas inaccessible to vehicular compactors. GP09-0054 — Westgate Phase II Texas Midstream Gas Services, L.L.C. Right -of -Way Use Agreement Page 27 of 28 I. Grading* Embankments shall be constructed in proper sequence and at proper densities for their respective functions. All embankment serves in one capacity or another as subgrade (e.g , under topsoil, under concrete and asphalt pavement, under structures, etc.). Accoidingly, the upper layer of embankment shall be graded to within plus or minus 0.10 foot of proper subgrade elevation prior to depositing topsoil, and prior to the construction of pavements slabs, etc. 3.05 DENSITY CONTROL A. Earth Embankment in General Earth embankment shall be compacted in lifts at a minimum of ninety percent (90%)of Standard Density ASTM D698 with plus four percent (4%) or minus two percentage (2%) points of optimum moisture content. B. Earth Embankment Under Structures and Pavement: The top six inches (6") of natural earth comprising the subgrade for structural slabs or for areas of pavement shall be ninety five percent (95%) to ninety eight percent (98%) of Standard Density ASTM D698 with the moisture content at minus two percent (2%) to plus four percent (4%) of optimum. 3.06 MOISTURE MAINTENANCE* The specified moisture content shall be maintained in all embankments that are to function as subgrade for structures, areas of pavement, or for select embankment. Aftei completion of the embanlanent, the Developer/Contractor shall prevent excessive loss of moisture in the embankment by sprinkling as required. Loss of moisture in excess of two percent (2%) below optimum in the top twelve inches (12") of the fill will require that the top twelve inches (12") of the embankment be scarified, wetted, and iecompacted prior to placement of the stiuctuie select fill or pavement. If desired, the Developei/Contractor may place an asphalt membrane of emulsified or cutback asphalt over the completed embankment and thus eliminate the sprinkling requitement. 3.08 TOPSOIL REPLACEMENT: Topsoil shall be carefully placed to avoid any displacement of damage to the subgrade If any of the subgrade is tutted, damaged or displaced it shall be restored prior to placing topsoil Topsoil shall be replaced as specified herein per Item 3.02. END OF SECTION GP09-0054 — Westgate Phase II Texas Midstream Gas Services, L.L.C. Right -of -Way Use Agreement Page 28 of 28 City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 7/10/2012 DATE: Tuesday, July 10, 2012 LOG NAME: 06WESTGATE PHASE II SUBJECT: REFERENCE NO.: L-15393 Authorize Execution of a Public Right -of -Way Use Agreement Granting Texas Midstream Gas Services, L.L C., a License to Construct and Operate an Eight -Inch Natural Gas Gathering Pipeline Across Nineteenth Street Across Jones Street and Along Lancaster Avenue (COUNCIL DISTRICT 9) RECOMMENDATION: It is recommended that the City Council authorize the City Manager to execute a public right-of-way use Agreement with Texas Midstream Gas Services, L.L.C., for a one-time license fee in the amount of $163,398.40 and granting a license to construct and operate an eight -inch natural gas gathering pipeline (i) across Nineteenth Street, north of Jones Street; (ii) across Jones Street, north of Lancaster Avenue, and (iii) along Lancaster Avenue, east of Calhoun Street to the west of Lamar Street. DISCUSSION: Texas Midstream Gas Services, L.L C., is constructing an eight -inch pipeline to connect natural gas wells in Fort Worth. With the exception of the private property easements on the east and west ends of this segment, the pipeline will be located in public easements. The approximate location of the pipeline and crossings are shown on the attached map The Transportation and Public Works Department has reviewed the proposed project and crossing and has no objections. Although this pipeline will be located primarily within public right-of-way, portions at the east and west ends will be installed under private property However, that land is not residentially zoned and used property. The public right-of-way use Agreement will give Texas Midstream Gas Services, L.L C., a license to use 3376 feet of that specific public right-of-way for the limited purpose of operating a natural gas pipeline for a period of 25 years Texas Midstream Gas Services L.L.0 , will pay the City a one-time license fee in the amount of $163,398 40, in return for this privilege. The company will be required to provide bonds and insurance in accordance with the City s current standard policies. Because Texas Midstream Gas Services, L.L.C., is not a public utility, as that term is defined in Chapter 28 of the City Code, a franchise governing its operations is not required by the City Charter. This pipeline project is located in COUNCIL DISTRICT 9. FISCAL INFORMATION / CERTIFICATION: The Financial Management Services Director certifies that the Planning and Development Department is responsible for the collection and deposit of funds due to the City. FUND CENTERS: TO Fund/Account/Centers Logname: 06WESTGATE PHASE II Page 1 of 9 GG01 421502 0062040 $163.398.40 FROM Fund/Account/Centers CERTIFICATIONS: Submitted for City Manaaer's Office bv: Oriainatina Department Head: Additional Information Contact: ATTACHMENTS 1. account verification.doc (CFW Internal) 2. Westaate Phase II Mao.ndf (Public) Fernando Costa (6122) Randle Harwood (6101) Tom Edwards (2314) Logname: 06WESTGATE PHASE II Pna' 7 of