HomeMy WebLinkAboutContract 42935/
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SETTLEMENT AGREEMENT
WHEREAS, the City of Fort Worth, Texas ("City") is the owner of a 72 inch large
diameter sanitary sewer main ("Sewer Main"), located in Gateway Park, Fort Worth, Texas,
76102; and
WHEREAS, on or about May 20, 2010, the City's Water Department discovered that a
14 inch pipeline had penetrated through the City's Sewer Main creating a potential health and
safety hazard; and
WHEREAS, Flint Hills Resources Coipus Christi, LLC ("FHR"), an affiliate of Koch
Pipeline Company, is the current owner of the 14 inch pipeline which penetrated the Sewer Main
(FHR believes that it had sufficient permission from the City for such installation, but FHR
acknowledges that it has not been able to locate any documentation of such permission); and
WHEREAS, Koch Pipeline Company is the operator of the 14 inch pipeline and has the
necessary authority to negotiate the terms of this settlement agreement wit the City; and
WHEREAS, all parties wish to alleviate the potential health and safety risk, repair the
Sewer Main and relocate FHR's 14 inch pipeline; and
NOW THEREFORE, in consideration of the muri,ial promises described herein, including
the recitals set forth above, which are incoiporated herein by reference, the City and FHR agree as
follows:
1. TERMS OF THE SETTLENIENT AGREEIVIENT
A. RELOCATION OF FHR'S 14 INCH PIPELINE.
In consideration of the release set forth below, FHR shall provide the following:
1. FHR shall relocate it's 14 inch pipeline shown on Exhibit A. FHR agrees to place the
14 inch pipeline at least five (5) feet below the Sewer Main. FHR agrees that it shall retain the
services of Transystems Corporation ("Transystems") to design and facilitate the relocation of
the pipeline in the best manner possible, as approved by the City and in compliance with all
local, state and federal regulations.
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2. Prior to the extraction and relocation of the 14 inch pipeline, FHR or FHR's contractor
shall be required to enter into the Surface Use Agreement attached as Exhibit B with the City.
Such agreement shall provide FHR andl or FHR's contractor a 90 day license to use
approximately .10 acres (4,023 square feet) of land upon execution and payment of a license fee
of $4,023.00 to the City.
B. Repair of the 72 inch Sewer Main
1. FHR shall pay to the City, in advance, the cost for the complete repair of the City's 72
inch Sewer Main located at Gateway Park also shown on Exhibit A. Such repair shall include
the actual construction and permit costs related to the repair of the Sewer Main resulting from
penetration and extraction of the 14 inch pipeline. Although various options will be considered
and the total cost may be lower the parties agree that a reasonable estimation of the total cost for
the complete repair of the 72 inch Sewer Main, not to include the engineering and design costs,
is estimated to be three hundred fifty thousand dollars ($350,000.00). Such amount shall be paid
to the City within thirty (30) calendar days from the date of full and complete execution of this
Settlement Agreement.
2. In the event that the actual cost of the repair (not to include the engineering and design
costs) exceed three hundred fifty thousand dollars ($350,000.00), FHR shall remain responsible
for paying any additional costs reasonably related the completion of the repair of the Sewer
Main. In the event that actual cost of the repair are less than three hundred fifty thousand dollars
($350,000.00), the City shall refiind to FHR the difference between three hundred fifty thousand
dollars ($350,000.00) and the actual costs. FHR shall submit payment to the City for the amount
owed pursuant to this Agreement within fifteen (15) days of a written request and submission of
supporting documentation. The City shall submit a refund to FHR for the amount owed, if any,
within fifteen (15) days from the day the City has made final payment to its contractor(s) for
repair.
3. FHR shall be responsible for fiill and complete payment to Transystems to perform the
engineering and design of the Sewer Main repair. The parties may agree to allow the City to
enter into a written agreement directly with Transystems for such performance in which case,
FHR agrees to submit payment to the City for such work within fifteen (15) days of the full and
complete execution of the agreement. The parties agree that Transystems may provide FHR
regular updates of such repair upon FHR's request.
SETTLEMENT AGREEMENTEXECUTION COPY
Page 2 of 6
2. RELEASE.
For and in consideration of FHR paying for the complete repair of the Sewer Main in
accordance with the terms in Section l, the City hereby RELEASES AND FOREVER
DISCHARGES FHR, its affiliates, and their agents, servants, and employees, from any and all
known claims, demands or causes of action, at common law, statutory, or otherwise, which City
now has or that now exists, directly or indirectly attributable to the damage caused by the
penetration of the 14 inch pipeline to that portion of the 72 inch Sewer Main shown in EXHIBIT
C and from any known trespass-type claims, demands, or causes of action relating to such
penetration. This release shall be a fully binding and complete settlement between the City and
FHR for known damages to that portion of the Sewer Main. FHR shall not be released from any
third party claim, administrative penalty by a state or federal agency, or for other damage caused
by FHR.
Furthermore, FHR hereby completely RELEASES AND FOREVER DISCHARGES
the City, its agents, servants, and employees, from any and all claims, demands or causes of
action of any kind whatsoever, at common law, statutory, or otherwise, which FHR now has,
known or unknown, directly or indirectly attributable to that portion of FHR's 14 inch pipeline
within the Sewer Main.
This release shall be a fully binding and complete settlement between the City and FHR.
3. EASEMENT5.
FHR hereby represents to the City that it has or will have prior to commencing the actual
relocation of the 14 inch pipeline, all permits, licenses, easements or other authorization required
by local, state, or federal law relating to the relocation of the 14 inch pipeline and repair of the 72
inch Sewer Main as detailed herein.
4. INDEMNITY.
FHR a�rees to defend, indemnifv and hold the City harmless for anv claims arising
from FHR 's infrin�ement or violation of any law andlor re�ulation or for a third partv
SETTLEMENT AGREEMENTEXECUTION COPY Page 2 of 6
claim related directiv or indirectiv to FHR's (or its contractors') activities hereunder
relatin� to the relocation and repair of the 14 inch pipeline and the Sewer Main.
5. PERFORMANCE.
FHR shall begin relocation of the 14 inch pipeline as soon as is practicable and shall
make payment for the complete repair of the Sewer Main, in the amount of $three hundred fifty
thousand dollars ($350,000) within thirty (30) days from the day this Settlement Agreement is
fiilly executed.
6. ADEQUACY OF CONSIDERATION.
The parties have agreed to comprise and settle any and all claims covered by the release
in Paragraph 2, above. The parties acknowledge that such terms represent good and sufficient
consideration for this agreement.
7. WARRANTY OF CAPACITY TO EXECUTE AGREEMENT.
FHR represents and warrants that no other non-affiliated person or entity has or has had
any interest in the claims, demands, obligations, or causes of action referred to in this
Agreement, and that FHR has the sole and exclusive right to execute this Agreement and receive
the benefits herein, and that FHR has not sold, assigned, transferred, conveyed, or otherwise
disposed of any of the claims, demands, obligations, or causes of action referred to in this
Agreement to any non-affiliated person or entity. The City acknowledges that the 14 inch
pipeline described herein was originally owned by Koch Refining Company. Koch Refining
Company merged into Koch Refining Company, L.P. in 1995. In 1999, Koch Refining
Company, L.P. changed its name to Koch Petroleum Group, L.P. In 2002, Koch Petroleum
Group, L.P. changed its name to Flint Hills Resources, LP. In 2010, such pipeline was conveyed
by Flint Hills Resources, LP to Flint Hills Resources Corpus Christi, LLC.
SETTLEMENT AGREEMENTEXECUTION COPY Page 2 of 6
S. ENTIRE AGREENIENT AND SUCCESSORS IN INTEREST.
This Agreement contains the entire agreement between the City and FHR regarding the
matters set forth herein, and it shall be binding upon and inure to the benefit of the successors
and assigns of each.
9. CONSTRUCTION BY STATE LAW.
This Agreement is entered into in the State of Texas and shall be construed and
interpreted in accordance with its laws.
10. EFFECTIVENESS.
This Agreement shall become effective immediately following execution by all of the
parties.
EXECUTED in duplicate originals on the date hereinafter indicated.
FLINT HILLS RESOURCES CORPUS
CHRISTI, LLC
THE CITY OF FORT WORTH
Fernando Costa
Assistant City Ma� ger
Date: 2�2'l//.Z.
Recommended by:
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Frank Crumb, P.E.
Water Department Director
Approved for form and legality:
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��' Christa R�'�eynolds
Sr. Assistant City Attorney
SETTLEMENT AGREEMENTEXECUTION COPY
Page 2 of 6
Date: :�-)-� `� 1 ��
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STATE OF _ .c„�S�-S. §
COUNTY OF �� ��-
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BEFORE ME, the tmdersigned, a notary public in and for the State of �a�s; on this day
personally appeared ,��'�- �' , in the capacity of �. U P-��Q--��° �``S-
of Flint Hills Resources Coipus Christi, LL , who being by me first duly sworn on oath, deposed
and said that he/she has read the foregoing Settlement and Release Agreement and
acknowledged to me that he/she executed it for the puiposes and consideration therein expressed
on behalf of Flint Hills Resources Coipus Christi, LLC in his/her official capacity.
GNEN UNDER MY HAND AND SEAL OF OFFICE, this
�'�`'�` 2011.
JAYE ANN BUEHLER
NOTARY PUftLIC
STA1 E OF KANS S
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STATE OF TEXAS
COUNTY OF TARRANT
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Notary Pt�lic in and for
The State of �Ga-�S�-�
BEFORE ME, the Lmdersigned, a notary public in and for the State of Texas, on this day
personally appeared Fer-nando Costa in the capacity of Assistant City Manager of the City of Fort
Worth, who being by me first duly sworn on oath, deposed and said that he has read the
foregoing Settlement and Release Agreement and acknowledged to me that he executed it for the
puiposes and consideration therein expressed on behalf of the City of Fort Worth in his official
capacity.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this
2011.
Notary Public in and for
The State of Texas
day of
SETTLEMENT AGREEMENTEXECUTION COPY Page 2 of 6
ATTACHMENT "A"
Map of 14 inch pipeline and 72 inch Sewer Main
ATTACHMENT "B"
Surface Use Agreement
ATTACHMENT "C"
Specific area, legal description of the 72 inch pipe to be repaired
SETTLEMENT AGREEMENTEXECUTION COPY Page 2 of 6
Exhibit A
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TEMPORARY ACCESS PERMIT AND
WORKSPACE LICENSE AGREEMENT
FOR GATEWAY PARK
This Temporary Access Permit and Workspace License Agreement for Gateway Park
("Permit") is made and entered into by and between the City of Fort Worth (hereinafter referred
to as "City"), a home-rule municipal corporation organized Lmder the laws of the State of Texas,
acting by and through its duly authorized Assistant City Manager, and
(hereinafter referred to as "Company"), a , acting by and through its duly
authorized
The following statements are true and correct and constitute the basis upon which the
City has executed the Permit:
A. The City owns a certain piece of property known as Gateway Park (the "Park"),
751 Beach Street, Fort Worth, Texas 76103, Tai7ant County, Texas.
B. Company has been engaged by Flint Hills Resources Corpus Christi, LLC, to
install a re-routed gas pipeline beneath the Park and wishes to use a certain
designated portion of the Park as temporary workspace in connection therewith.
C. The City has reviewed Company's request and agrees to grant Company use of
the designated portion of the Park in accordance with the terms and conditions of
this Permit.
Agreement
I. Term
The term of this Permit shall consist of one (1) license period of ninety (90) consecutive
calendar days ("License Period"). The Company shall have the ability to select the date
on which the License Period shall commence, provided, however, that: (i) the Company
must notify the City's Parks and Community Services Department at least five (5)
business days prior to the date on which the License Period will commence; and (ii) the
License Period must terminate no later than four (4) months from the date on which this
Permit is fully executed. No use of or access to the Park or the Licensed Premises shall
be allowed outside of the designated License Period.
Company's rights in the Licensed Premises hereunder shall be strictly limited and shall
fully and absolutely terminate and be of no fiirther force and effect at the conchision of
the License Period. After the License Period ends, all rights of the Company in and to
the Licensed Premises shall, automatically and without the need for any fiirther
documentation, fully and unconditionally terminate, whereupon the Company shall have
no right of entry or use of the Licensed Premises whatsoever.
II. Licensed Premises
Subject to the terms and conditions set forth in this Permit and the City Charter and
ordinances, for and in consideration of the monetary payments to be made hereunder and
the other covenants and promises expressed herein, the City does hereby agree to license
to the Company during the License Period the use of a portion of Gateway Park (the
Access Permit and Workspace License Agreement for Gateway Park Page 1 of 12
"Park"), 751 Beach Street, Fort Worth, Texas 76103, Tarrant County, Texas, consisting
of approximately 0.10 acres (4,023 square feet) along Gateway Park Drive at the
southwest corner of the area designated as Fort Woof Dog Park (the "Licensed
Premises"). The exact location and boundaries of the Licensed Premises are depicted in
Exhibit A, which is attached hereto and incorporated herein for all purposes as though it
were set forth at length.
III. License Fee
Within five (5) days of the date on which this Permit is fiilly executed, Company shall
deliver to the offices of the City's Parks and Community Services Department (the
"Department"), 4200 South Freeway, Suite 2200, Fort Worth, Texas 76115, payment of a
License Fee of Four Thousand and Twenty-Three Dollars ($4,023.00) as full and
complete compensation for the rights and privileges granted under this Permit.
IV. Acceptance of Licensed Premises
The Company takes all portions of the Licensed Premises and all appurtenances in "AS
IS" condition without any express or implied warranty on the part of the City. The
Company accepts the Licensed Premises in their present condition, finds them suitable
for the purposes intended, and further acknowledges that it is thoroughly familiar with
such condition by reason of personal inspection and does not rely on any representations
by the City as to the condition of the Licensed Premises or their suitability for the
purposes intended. The Company accepts the Licensed Premises subject to any and all
previously recorded easements that may have been granted on, along, over, under, or
across said property, and releases the City from any and all damages, claims for damages,
loss, or liabilities that may be caused to invitees, licensees, or trespassers by reason of the
exercise of such rights or privileges granted in said easements. The Company's taking
possession of the Licensed Premises shall be conclusive evidence that: (a) the Licensed
Premises are suitable for the puiposes and uses for which same are licensed; and (b) the
Company waives any and all defects in and to the Licensed Premises and all the
appurtenances thereto. The City shall not be liable to the Companv, its agents,
emulovees, contractors, subcontractors, invitees, licensees, or �uests for anv dama�e
to any person or qropertv due to the acts or omissions of the Companv, its a�ents,
emqlovees, contractors, or subcontractors, unless such dama�e is caused by the
�ross ne�li�ence or willful misconduct of City or its a�ents, emplovees, separate
contractors, or subcontractors.
V. Use Not Exclusive
This Permit and all rights granted to Company herein are strictly non-exclusive. The City
reserves the right to enter into and grant other and firture licenses, leases, and other
authorizations for use of the Park and the Licensed Premises to other persons and entities
as the City deems appropriate in accordance with applicable law; provided, however, that
in granting subsequent authorization for use, the City will not allow a use that will
urueasonably interfere with the Company's use of the Licensed Premises as provided
herein. This Permit does not establish any priority for the use of the Park or the Licensed
Premises by the 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 or the Licensed Premises,
the first priority shall be to the public generaily, the second priority to the City in the
Access Permit and Workspace License Agreement for Gateway Park Page 1 of 12
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.
VI. Limitations on Use
Construction on the Licensed Premises is allowed only between 7:00 A.M. and 6:00 P.M.
Monday tluough Friday. For purposes of this provision, the term "constniction," shall
include (i) clearing, dredging, excavating, compacting, or grading of land; (ii) delivery or
assembly of pipe, fittings, or similar materials; and (iii) operation of heavy equipment,
inchiding, but not limited to, a backhoe, backhoe loader, boom truck, bulldozer,
compactor, crane, dump truck, excavator, grader, grapple titiick, loader, pile driver, power
shovel, roller, scraper, tractor, trencher, and tunnel boring machine.
All Company equipment and materials shall be placed and maintained solely within the
confines of the Licensed Premises. Unless otherwise approved by the Parks and
Community Services Department, the Company shall enter and leave the Park and access
the Licensed Premises via Gateway Park Drive only. Gateway Park Drive shall be used
solely for ingress and egress purposes, and no equipment or materials may be placed
or maintained on Gateway Park Drive except when in transit to or from the
Licensed Premises. Use of any portion of the Park outside of the Licensed Premises or
Gateway Park Drive shall not be permitted.
Company shall ensure that drainage along Gateway Park Drive remains unobstructed
throughout the construction process and License Period. Any damage to the drainage
structures shall be repaired by the Company at its sole expense.
In accessing and using the Licensed Premises, Company shall comply with all of its
obligations and responsibilities under this Permit and under any and all applicable,
federal, state, or local law, rule, or ordinance.
VII. Public Safetv
Company shall be solely responsible for initiating, maintaining, and supervising all safety
precautions and programs in connection with Company's use of the Licensed Premises
and the Park.
At a minimum, Company shall: (i) install and maintain construction fencing in
accordance with Exhibit A; (ii) provide one or more traffic-control personnel along
Gateway Park Drive when construction is occurring or when equipment or materials
unreasonably impair drivers' ability to see on-coming traffic; and (iii) ensure that no
equipment or materials are stored in the street overnight in a manner that unreasonably
impairs visibility. At no time shall all of Gateway Park Drive be closed from travel.
Following installation of the fencing, the Company shall contact the Department to
inspect for proper installation. Company shall ensure that all equipment and materials are
stored on the Licensed Premises in an enclosed area that shall be kept locked when not in
use, and the Company shall provide the Department with keys for all fence and entry
locks. At no time shall any fenced area be left open unless staffed by security personnel.
In addition, 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
Access Permit and Workspace License Agreement for Gateway Park Page 1 of 12
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 shall also take all necessary
precautions and shall provide all necessary protection to prevent damage, injury, or loss
to (a) all persons accessing portions of the Licensed Premises on which any construction
is being performed by or on behalf of the Company; (b) all work performed on or from
the Licensed Premises and all materials and equipment to be incoiporated therein that are
under the care, custody, or control of the Company, or the Company's employees, agents,
contractors, or subcontractors, regardless of whether such material and equipment is
stored on or off the Licensed Premises; and (c) other property on or adjacent to the
Licensed Premises.
For barricade structures constructed along Gateway Park Drive, the Company shall be
required to ensure that installation and equipment meet the requirements of the
Transportation and Public Works Department and the Parks and Commlmity Services
Department. Staff from both departments shall be entitled to inspect the barricade
structures during and after the installation process.
VIII. Protection of the Environment
The City hereby represents and wairants that it shall not knowingly, nor permit any third
party to, use, handle, or store any Hazardous Materials on, under, over, or about Park or
the Licensed Premises in violation of any applicable laws. Company shall not handle or
store any Hazardous Materials on the Premises or the Park, except that the Company
may, in compliance with applicable environmental laws, use and store Hazardous
Materials in such amounts and types that are commonly used in connection with pipeline
boring operations, provided, however, that Company specifically agrees to remove any
and all such Hazardous Materials on or before the final day of the License Period.
Foundation shall not introduce, use, generate, store, accept, or dispose of on, under, or
about, transport across, or permit to exist on the Licensed Premises or the Park any
"treatment, storage or disposal facility" or "undergroLmd storage tank," as those terms are
defined under applicable environmental laws. For purposes of this Permit, "Hazardous
Materials" shall mean potentially dangerous hazardous wastes, toxic substances, or
related materials, including, but not limited to, polhitants; asbestos; polychlarinated
biphenyl (PCB); petroleum or other fuels (including crude oil or any fraction or
derivative thereofl; undergrotmd storage tanks, and substances considered hazardous,
toxic, or the equivalent pursuant to applicable laws. Any Hazardous Materials used by
the Company on the Licensed Premises shall be posted on site and a list shall be given to
City.
Company shall not create or aggravate any condition at the Park or the Licensed Premises
that could present a threat to human health or to the environment.
IX. Documentin� Condition of Licensed Premises
Company must provide the Department with videographic documentation of the
condition of the Licensed Premises as they exist both before and after installation of the
pipeline. All such video must inchtde a visible date and time stamp indicating when the
videography occurred. Company must submit documentation of the pre-installation
Access Permit and Workspace License Agreement for Gateway Park Page 1 of 12
condition at least five (5) business days prior to the date on which the License Period will
commence under Section I of this Permit. Post-installation documentation must be
submitted no later than five (5) business days after the last day of the License Period.
Department staff will distribute copies of the documentation to all appropriate City
personnel to determine whether any damage has been done to the Licensed Premises.
X. Minimizin� Impact of Ve�etation
Company shall not cut or remove any trees on the Licensed Premises. Prior to beginning
any constr�.tction, Company shall install perimeter construction fencing in accordance
with the attached Exhibit A. In addition, to minimize damage during construction, the
Company shall install orange mesh fencing on the outside drip line of trees specifically
identified by the Department at a pre-construction meeting. Company shall notify the
Department once the perimeter fencing and tree protection measures have been installed
and allow the Department an opportlmity to inspect the work before construction begins.
The City shall have at least two business days following the date on which notice is
received to conduct its inspection. The Company may begin construction on or after the
third business day following the date on which it provided notice to the City unless the
City contacts the Company and identifies specific issues that render the perimeter fencing
or tree protection measures unacceptable. If any tree within the Park is damaged in
connection with Company's operations, Company agrees to undertake remediation
efforts, inchiding paying of remediation costs, in accordance with Exhibit D.
Company acknowledges that its use of the Licensed Premises will prevent the City from
operating its irrigation system in this portion of the Park. Therefore, Company shall be
responsible throughout the License Period for bringing water tiucks into the Park and
iirigating those areas identified on Exhibit C, which is attached hereto and incorporated
herein for all purposes as though it were set forth at length. Company shall ensure that
irrigation occurs daily at 11:00 p.m. and 5:00 a.m. with an application flow rate of one-
half inch per hour.
XI. Minimizin� Impact of Utilities
The Company acknowledges the existence of City-owned water utilities in the Park and
Licensed Premises (including, but not limited to, waterlines, sewer lines, and storm drains
and lines) and covenants and agrees to install protective matting over such utilities in
accordance with Exhibit B and in compliance with specifications approved by the City's
Water Department. Following installation of the matting, Company shall contact the
Water Department (John Lopez or other designated representative) for inspection and
approval.
The Company shall provide the Parks and Community Services Department with a copy
of the matting specifications and the Water Department's inspection report within
twenty-four (24) hours of receiving the report from the Water Department and prior to
mobilization of pipeline construction equipment in the Park. The Company may begin
construction after the date on which it provided the inspection report and specifications to
the Parks and Community Services Department unless the Department contacts the
Company and identifies specific issues that render the measures unacceptable.
Access Permit and Workspace License Agreement for Gateway Park Page 1 of 12
XII. Restoration of Improvements
To the extent any road, curb, gutter, inigation system, utility line, barricade, fence, or
other improvement is destroyed, removed, or altered in connection with the Company's
activities under this Permit, the Company shall reconstruct and restore such improvement
in a good and worl�nanlike manner to a condition that is equal to or better than the one in
which such improvement existed as of the date this Permit is fully executed, as evidenced
by the pre-installation video required under Section IX of this Permit. To the extent any
repair to the City's irrigation system is required, the Company shall ensure all such work
is performed by a licensed irrigator and shall provide the City with a copy of the
inigator's license. In addition, Company shall ensure that City is provided with a one-
year wairanty period on all work done on the irrigation system.
XIII. Restoration of Surface of Licensed Premises
In addition, Company shall restore the surface of the Licensed Premises by: (i) aerating
the soil using a heave-action aerator with six-to-eight inch tines to address compaction
caused during the process of stringing the pipeline; (ii) replanting and reseeding with
Common Bermuda grass in accordance with the seeding specifications outlined in the
attached Exhibit E; and (iii) watering the replanted and reseeded areas as needed until the
replacement vegetation is reasonably established and has been approved and accepted by
the Department. Prior to planting, Company shall provide the Department with
documentation certifying the type and quality of the materials to be planted. The
Department may, in exercise of reasonable discretion, reject any plant material that does
not meet the requirements of this section or Exhibit E or is otherwise unacceptable for
one or more specific, clearly identified reasons.
XIV. Liabilitv; Indemnification.
Company agrees to pay City for all damages suffered or incurred by City, either directly
or indirectly, as a result of any operations on or from the Licensed Premises conducted
for or by Company, its agents, employees or representatives, inchiding all damage or
injury to standing or fallen timber, buildings, fences, equipment, and all other property,
whether real or personal. In particular, Company acknowledges that subterranean boring
occasionally occurs outside of its intended path and can result in subsui-face hollows that
contribute to soil compaction failure and related issues; therefore, for a period of two
years from the last day of the License Period, Company warrants against any slumping,
settling, or both of Gateway Park Drive or City sidewalks located within the Park related
to Company's installation of the gas pipeline and agrees to pay City for all damages
related to such slumping, settling, or both.
Company covenants and agrees to and does hereby indemnify, hold harmless, and
defend, at its own expense, City, its officers, servants and employees, from and
against any and all claims or suits for property loss or damage and/or personal
injury, including death, to any and all persons, of whatsoever kind or character,
whether real or asserted, arising out of the acts or omissions of the Company, its
officers, agents, employees, subcontractors, invitees, licensees, volunteers, or
program participants. Company likewise covenants and agrees to, and does hereby,
indemnify and hold harmless City from and against any and all injuries, damage,
loss, or destruction to property of City during the performance of any of the terms
Access Permit and Workspace License Agreement for Gateway Park Page 1 of 12
and conditions of this Permit. However, the indemnity provided for in this
paragraph shail not extend to any liability resulting from the sole negligence of the
City or its officers, agents, employees, or separate contractors, and, in the event of
joint and concurrent negligence of both the Company and the City, responsibility
and liability, if any, shall be apportioned comparatively in accordance with the laws
of the State of Texas. Nothing herein shall be construed as a waiver of the City's
governmental immunity as further provided by the laws of the State of Texas.
Company covenants and agrees that City sha11 no way or under any circumstances be
responsible for any property belonging to Company, its members, employees, agents,
contractors, subcontractors, invitees, licensees, or trespassers that may be stolen,
destroyed, or in any way damaged, and Company hereby indemnifies and holds
harmless City from any and all such claims. City does not guarantee police protection
and will not be liable for any loss or damage sustained by Company, its members,
employees, agents, contractors, subcontractors, invitees, licensees, or trespassers on any
of the Premises.
Company agrees that City shall not be liable for any loss, injury or damage whatsoever
suffered or incurred by Company or Company's agents, employees or representatives
while on the Licensed Premises.
XV. INSURANCE
Dutv to Acquire and Maintain
Company shall procure and maintain at all times, in full force and effect, a policy or
policies of insurance to provide coverages of the types and amounts 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, repair, reconstruction, or condition
of the pipeline. The insurance required hereunder may be met by a combination of
self-insurance and primary and excess policies.
Tvpes and Amounts of Covera�e Required
Commercial General Liabilitv:
$5,000,000.00 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
Propertv Dama�e Liabilitv:
$5,000,000.00 per occurrence
Umbrella Policv
$5,000,000.00
Environmental Impairment Liabilitv (EIL) &/or Pollution Liability
$5,000,000
$10,000,000
per occurrence
aggregate
Access Permit and Workspace License Agreement for Gateway Park Page 1 of 12
Automobile Liabilitv:
$1,000,000.00 per accident, inchiding, but not limited to, all owned, leased, hired,
or non-owned motor vehicles used in conjunction with the rights granted under
this Permit
Worker's Compensation:
As required by law
Emulover's Liability:
$1,000,000.00 per accident
Revisions to Required Covera�e
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 Permit.
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.
Underwriters and Certificates
Company shall procure and maintain its insurance with underwriters who are
authorized to do business in the State of Texas and who are acceptable to the City in
terms of solvency and financial strength. Within ten (10) business days following
execution of this Permit, 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.
Deductibles
Deductible or self-insured retention limits on any line of coverage required herein shall
not exceed $1,000,000.00 in the annual aggregate unless the limit per occurrence or per
line of coverage, or aggregate is otherwise approved by the City.
No Limitation of Liability
The insurance requirements set forth in this section and any recovery by the City of
any sum by reason of any insurance policy required under this Permit 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 Permit or law.
XVI. Prohibition A�ainst Liens
The Company shall not do any act or make any contract that may be purported to create
or be the foundation of any lien on or any interest in the Licensed Premises or the Park.
Any such act, contract, or lien attempted to be created shall be void. Should any
Access Permit and Workspace License Agreement for Gateway Park Page 1 of 12
puiported lien on the Licensed Premises be created or filed, the Company shall, at its sole
expense, liquidate and discharge same within ten (10) business days after notice from the
City to do so
XVII. Notices
All notices required or permitted under this Permit shall be conclusively determined to
have been delivered when (i) hand-delivered to the other party, its agent, employee,
servant, or representative, or (ii) received by the other party by reliable overnight courier
or United States Mail, postage prepaid, return receipt requested, at the address stated
below or to such other address as one party may from time to time notify the other in
writing.
To THE CITY:
To COMPANY:
Director
Parks and Community Services
City of Fart Worth
4200 South Freeway, Ste 2200
Fort Worth, Texas 76115
With a copy to:
with a copy to:
Department of Law
City of Fort Worth
Attn: Denis C. McElroy
1000 Throckmorton
Dallas, Texas 75201
Fort Worth, Texas 76102
XVIII.Independent Contractor
Flint Hills Resources Corpus Christi, LLC
Attn: f� � f P �� C i s r-�
4111 E. 37th St North
Wichita, Kansas 67220 USA
It is expressly understood and agreed that Company shall operate as independent entity in
each and every respect hereunder and not as an agent, representative, or employee of the
City. Company shall have the exclusive control and the exclusive right to control all
details and day-to-day operations and activities relative to operation of the Company and
installation of the pipeline and shall be solely responsible for the acts and omissions of its
officers, agents, servants, employees, contractors, subcontractors, licensees, and invitees.
Company acknowledges that the doctrine of respoiident sisperior shall not apply as
between the City and Company, its officers, agents, servants, employees, contractors,
subcontractors, licenses, and invitees. Nothing contained in this Permit shall be
construed as the creation of a partnership or joint enterprise between the City and
Company.
XIX. Prohibition A�ainst Assi�nment
The Company may not sell, assign, or otherwise transfer any of its rights or obligations
under this Permit without the prior, written consent of the City. Any such attempted
assignment without the City's consent shall be void.
Access Permit and Workspace License Agreement for Gateway Park Page 1 of 12
XX. Compliance with Laws and Re�ulations
In operating under this Permit, Company agrees to comply with all applicable federal,
state, and local laws, regulations, and ordinances, including all City ordinances, charter
provisions, and r�lles, regulations, and requirements of the City's Police, Fire, Code
Compliance, Transportation and Public Works, and Health Departments.
Company will not knowingly do or suffer to be done anything on said Licensed Premises
during the terms of this Permit in violation of the laws, statutes, ordinances, rules,
regulations, charter provisions, directives or requirements referenced in this Permit. If
the City calls the attention of Company to any such violation on the part of said Company
or any person employed by or admitted to said Licensed Premises by Company,
Company will immediately (or otherwise as soon as reasonably possible) desist from and
coirect such violation and/or vacate the Licensed Premises.
XXI. Taxes
The Company acknowledges and agrees that it shall be solely responsible for paying all
taxes assessed or imposed by any governmental entity in connection with the
construction, installation, operation, maintenance, repair, or reconstruction of the pipeline
and with the use of the Licensed Premises or other City property related to activities
within the scope of this Permit.
XXII. Force Maieure; Homeland Securitv
If either party is unable, either in whole or part, to fiilfill its obligations under this Permit
due to acts of God; strikes, lockouts, or other industrial disturbances; acts of public
enemies; wars; blockades; insurrections; riots; epidemics; public health crises;
earthquakes; fires; floods; restraints or prohibitions by any court, board, department,
commission, or agency of the United States or of any state; declaration of a state of
disaster or emergency by the federal, state, county, or City government in accordance
with applicable law; any arrests and restraints; civil disturbances; or explosions; or some
other reason beyond the party's reasonable control (collectively, "Force Majeure Event"),
the obligations so affected by such Force Majeure Event will be suspended only during
the continuance of such event. If the Licensed Premises or any portion thereof shall be
destroyed or rendered unsafe for use or occupation by reason of a Force Majeure Event,
the City may, in its reasonable discretion and after consulting with Company, either
cancel or reschedule the Company's activities. The Company hereby waives any claim
against City for damages by reason of any such rescheduling or cancellation.
If the United States Department of Homeland Security issues a Level Orange or Level
Red Alert, the City, in its sole discretion, may cancel or postpone scheduled Company
activity in the interest of public safety.
XXIII. Headin�s
The section headings contained herein are solely for convenience in reference and are not
intended to define or limit the scope of any provision of this Permit.
Access Permit and Workspace License Agreement for Gateway Park Page 1 of 12
XXIV. Choice of Law; Venue
This Permit shall be governed by and construed in accordance with the laws of the State
of Texas. If any action, whether real or asserted, at law or in equity, arises on the basis of
any provision of this Permit, venue for such action shall lie in state courts located in
Tar�ant County, Texas or the United States District Court for the Northern District of
Texas - Fort Worth Division.
XXV. Governmental Powers
It is understood and agreed that by execution of this Permit, City does not waive or
surrender any of its governmental powers.
XXVI. Authorization
By executing this Permit, Company's agent affirms that h
Company to execute this Permit and that all representation
Company's identity, address and legal status (coiporation,
are true and correct.
XXVII. Entiretv of A�reement
e or she is authorized by the
s made herein with regard to
partnership, individual, etc.)
This instrument (including all attachments, schedules, and exhibits attached hereto)
constitutes the entire understanding and agreement of the City and Company as to use of
the Licensed Premises and the Park. 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 Permit. This Permit shall not be amended unless agreed to in writing
by both parties.
By executing this Pei-mit, Company agrees to and accepts the terms, conditions and provision
contained herein.
IN WITNESS WHEREOF, the parties hereto have executed this Permit this day of
, 2011 in Fort Worth, Tarrant County, Texas.
City of Fort Worth
By: _
Name:
Title:
Date:
Approved as to Form and Legality:
By: _
Name:
Title:
By:
Susan Alanis
Assistant City Manager
Date:
Approved as to Form and Legality:
B y:
Denis C. McElroy
Assistant City Attorney
Contract Authorization - M&C:
Access Permit and Workspace License Agreement for Gateway Park Page 1 of 12
ATTEST:
By: _
Name:
Title:
ATTEST:
B y:
Marty Hendrix
City Secretary
Access Permit and Workspace License Agreement for Gateway Park Page 1 of 12
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EXHIBIT D
Dama�e to Trees; Remediation Costs
In the event of any damage to trees in connection with Company's operations, Company shall
comply with the following:
1. In General
The City Forester shall have the right to inspect any trees located on the Park for damage by
Company and, if applicable, will classify damage to trees as slight, moderate, or severe as
described below.
1.1 Standards for Measurin�
Branches shall be measured at the point of attachment or at the lateral to which the branch would
be pruned back under ANSI standards. Tree caliper shall be measured according to accepted
industry standards. Trees greater than 6" in caliper shall be measured using diameter at breast
height (DBH).
2.1. Slight Dama�e:
Slight damage shall be defined as damage that, in the opinion of the City Forester, can be
reasonably anticipated to heal. Examples include, but are not limited to, (i) scarring of the trunk
into the cambial layer of up to 2" in width but less than 1/3 trunk circumference; and (ii)
breaking of limbs that are less than 2" in diameter and less than 1/3 of the trunk caliper.
Remediation costs shall be assessed at a rate of $100.00 for each instance of slight damage.
2.2. Moderate Dama�e:
Moderate damage shall be defined as damage that, in the opinion of the City Forester, can
reasonably be anticipated to contribute to poor health and slight to moderate reduction in
longevity of the tree. Examples include, but are not limited to, (i) scat�ring of the trunk into the
cambial layer greater than 2" in width but less than 1/3 trunk circumference ; and (ii) breaking of
limbs more than 2" in diameter but less than 1/3 of the trunk caliper.
Remediation costs shall be assessed for each instance of moderate damage at the following rates:
(i) for any tree that is more than 20 inches in caliper, the greater of:
(A) one—half of the estimated value of the tree or
(B) $300.00 per caliper inch;
(ii) for any tree that is less than 20 inches in caliper, $300.00 per caliper inch.
2.3. Severe Damage:
Severe damage shall be defined as damage that, in the opinion of the City Forester, can
reasonably be anticipated to contribute to a severe reduction in longevity of the tree or otherwise
characterized as a catastrophic injury to the tree. Examples include, but are not limited to, (i)
scai-�ing of the tri.ink to the cambial layer greater than 1/3 the trunk circumference; (ii) uprooting
a tree or causing a tree to lean; (iii) damage to a scaffolding branch or to a branch greater than
1/3 of tnink caliper; and (iv) removal of a tree.
Remediation costs shall be assessed for each instance of severe damage at the following rates:
(i) for any tree that is twenty-five (25) inches or less in caliper, the appraised vahie of the
tree;
(ii) for any tree greater than twenty-five (25) inches in caliper, twice the appraised value
of the tree.
3.1. Pavment of Remediation Costs
Company shall make payment for any such damages and must plant replacement trees for
severely damaged trees at a location to be determined by the Parks and Community Services
Department. Replacement shall be made on caliper-inch-per-caliper-inch basis with a minimum
size replacement tree of 2" in caliper. Company shall be responsible for the planting watering,
mulching and maintenance of replacement trees for a period of not less than 2 years. Any tree
that does not survive the 2 year establishment period shall be compensated for by the Company
to the Parks and Community Services Department at a rate of $200 per caliper inch.
3.2. Applicabilit oy f City's Tree Ordinance
Remediation costs assessed hereunder constitute contractual damages intended to compensate the
Parks and Community Services as property owner and have no bearing on whether or to what
extent any fines may be due under the Urban Forestry Ordinance of the Fort Worth Zoning
Ordinance.
Exhibit "E"
SECTIQN U2930 - TURF SODDING
PART 1 - GENERIIL
t .a 1 DESCRIPTION
A. Work Included: This ��vork inctudes all labor, materials and equiprnent for soil
preparation, fer�iIization, ptanting and other requirsments regarding turfgrass sodding
shown on ihe plans.
B. Related Work 5pecified �lsewhere: Section 0230�, Earthwork.
1.02 R �FERBNCE STfI�IDAR.bS
A. For exatic plant m�terials: American Joint Committe� af Horticulhu-ai Nomenclature,
Second Edition, 1942.
B. rc�r nat�ve materials
a. N1anua1 of the Vasculaz Plants of Texas by Correll and Johnston
b. Chec:[c List of Vascular Piants af Texas by Hatch
c, Flora of Nortb Central Texas by Shinners and Moller
1.03 SUBMITfALS
Samples, certificates and specificaiions of sod, fertilizer, compost, soil amendments or c�ther
materials may be requested by the City.
Alt delivery receipts and copies of invoices for materials used for this work shali be subject to
verification by the City.
t.04 PR�DUCT DELNERY, STORAGF AND HArIDLIi�IG
A. - Sod: Harvesting anct planting operations shall 6e coordinat�d with not more than f�rty
eight haurs elapsin� bet�veea the harvesting and pianting.
B_ Fertilizer
I. Unopened bags labeted with the �alysis.
2. Confonn to `teYas �crtilizer Law.
(.0� C1iJF1Li'1'Y CC��iTROL
1'l:e I�eveloperfCo�rtractor wha plants the sod is resgonsible Fc�r supe�vision af hi5 crciv, Z.�hiFe
�lanti�� th� sad �nd m�int3�.�in� thc: sc�d until tfte �rzaj�ct is aec��tecl by t��� City.
if;RF ;()LGE�(s.i
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PfiRT 2 — PRODUCTS
2.61 SOD
A. The sod shall be �uchloe dactyloides ("Prairie" Buffalograss) and shall consist of stolons,
leaf blades, rhizomes and roots �vith a healthy, virile system of dense, thickly matted roots
throughaeit the soil of the sod for a thickness nat less than one inch. Sod shall be alive,
healthy and vigarous and shalt be &ee of insects, disease, stones and undesirable foreign ,
materials and grasses, 5od shall have been produced on growing beds of ctay ar clay-loam:
topsoil. The sod shall nat be harvested or planted when its moisture condition is so
excessively wet ar dry tha# its survival ��vilI be affected. If sod is stacked, it shall be kept
rnoist 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 wiih 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 thc planted area two weeks after sodding.
C. All fertilizer shall have an analysis of 3-I-2 or as designated on the plans. The fertilizer
rate shall be 45 pocinds of nitrogen per acre.
2.Q3 WATER
The water shall be furnished by the Developer/Contractor and shall be clean and free of industrial
wastes or ot�ier substances harmful ta the germinatian af the seed or to the �rowth of the
vegetation. The amount of water will vary according to the �veather 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 COti1POST
Atl campost material is to be totally organic and decomposed for at lease nine months. t111
compost is to be elean and free of fungus, disease, live plants, seed, excessive cotton lint and any
harmful chemical�. "New LiFe 5oil Conditioner" or "�'erma Green Campost", as specified belotiv
c�r an approved eqt�l, shalI be used. Raw organics are nat accegtable.
h. For soil �*�ith an�ikalin� pH conditron: Use "'Rtev�r Life Acid Uro" (acici gH} soil
cc�n�3itianer as pr�ci�iec:c{ by 5c�i1 Bt�ildir�� 5ystect�s �FI�ailas, c�r an appra��ecf ec�ua}.
13. Fc�r sr�il �vith an acidic �H c�nclition: Iise "Perma Green Cc��np�st" by T�xas Earth
I2esr�t�rces, [nc. oFDallas, or "�tetiv Life i�,Catural Grotiver" (ph 4.� to 9.0) by Soil Buil�in�
Syst�ms, frtc., of DaII�s.
C. ��rnpte �nd Speciii�ation iubmittal: S�tbmit �► �roci�zcer's specif�cation and � quart
sample Uf the catnpost prr,pbs�;d fr,r the City's ���aravaI.
I U1�P SfJDi7CVG
t3?930
-2-
PART 3 - EYECUTION
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3.01
GENERt1L
All turfing operations are to be executed acr�ss the slope, parallel to iinished grade contaurs.
3.0?
SC7TL pREP�.RqTIOi�i
A. 5carify subgrade to a depth af three inches before depasiting the required topsoil.
B. Tillage shall be �ccomplished to loosen the topsoil, destray existing vegetation and
prepare an acceptable sod bed. f�Il areas shall be tiiled with a heavy duty disc or a chisel-
type brealcing 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 useci for areas to be planted
with sod.
C. Cleaning: Soil shall be further prepared by the removal af debris, building materials,
rubbish, weeds and stones larger than one inch in diameter.
D Fiue Grading: After tillage and eleaning, all areas to be planted shall be topdressed with
one-half inch compost and then shall be leveled, iine graded, and drug �,vith a weiglrted
spitce hazrow or float drag. The required result shall be the elimination of ruts,
depressions, humps and objectionable soil clods. This sha11 be the final soiI pxeparatian
step to be campleted before pIanting.
3.03 PLANTING
Prior to laying the sod, the planting bed shall be raked smooeh to true grade and moistened to a
depth of fotu inches, but not to the e:ctent causing puddling. The sod shal! be laid smoothly,
ti�htly butted edge to edge, and with staggered joinis. "The sod shall be pressed firmly inta the
sod bed by rolling or by fland tamping with ari approved tamper so as to eliminate a11 air pockets,
�rovide a true and even surface, and insure knitting �vithout displacement of ihe sod or
cieformation af the surfaces of sodded areas. Fallowing campactian, campost shall be used ta fill
all cracks between sads. Excess compost shall be tvorked into the grass with suitable equipment
and shall be wefl watered. "T'he quantity c,f compnst shall bc such that it r,vitl cause no smothering
or hurning af the grass.
3.04
rI� RTILI7I�iG
"I`wenty-one days at[er plantin�, turfgrass areas shall receive an app(ication of 3-I-Z fertitizer <it
the r�te af �5 pouncls of nitro�en per acre. Water ��selI after a�piic<tion tr� pr�vent [��rniri�,
1��.FD 0� ��C"i It);�
i'Fi�1� SUt�L�i;Y{i
D? sl3 t7
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►
Exhibit C
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