HomeMy WebLinkAboutContract 37369 CITY SECRETAgy-,
CON` RAC-F NO.
NATURAL GAS PIPELINE LICENSE AGREEMENT
(SURFACE USE)
This PIPELINE LICENSE AGREEMENT ("Agreement") is hereby made and
entered into by and between the CITY OF FORT WORTH ("City"), a home rule municipal
corporation organized under the laws of the State of Texas and acting by and through
its duly authorized Assistant City Manager, and TEXAS MIDSTREAM GAS
SERVICES, L.L.C. ("Company"), an Oklahoma limited liability company, acting by and
through James C. Johnson, President.
The following statements are true and correct and constitute the basis upon which the
City of Fort Worth has executed Agreement.
A. Texas Midstream Gas Services, L.L.C., an Oklahoma limited liability company
("Company"), wishes to construct a twenty inch (20") nominal diameter pipeline for an
approximate total distance of 601.65 feet within a twenty-five (25') foot width right of way
corridor for the transportation of natural gas through the portion of property described in Exhibit
"A",hereinafter referred to as "City Property". For initial construction, a temporary construction
workspace as described in Exhibit "A" is also granted as part of this agreement. 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 City Property.
B. The City has reviewed Company's request and agrees to grant Company a license
to use a portion of the surface and subsurface of the City Property as set out in Exhibit "A" in
order to construct, operate and maintain a pipeline, on the terms and conditions set forth herein,
solely for the transportation of gas and solely in accordance with the terms and conditions of this
Agreement.
Agreement
1. DEFINITIONS.
Capitalized terms used in this Agreement and not otherwise defined within this
Agreement shall have the following meanings:
Affiliate shall mean any individual, partnership, association,joint stock company, limited
liability company, trust, corporation, or other person or entity who owns or controls, or is
owned or controlled by, or is under common ownership or control with, the entity in
ion.
OFFICIAL RECORD
CITY SECRETARY 07-25-08 PO4:30 IN
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a se Agreement City Property 2008-NE LANDFILL Page 1 of 18
Agreement shall mean the authorization issued to Company hereunder to use a portion of
the City Property in the location as set out in Exhibit "A" for (i) the construction,
installation, maintenance and repair of Company's Pipeline; (ii) the use of such Pipeline
for the transportation of Gas; and (iii) any other directly related uses of the City Property,
pursuant to and in accordance with this Agreement.
City Facility shall mean all incidental underground and aboveground attachments,
equipment and appurtenances, including, but not limited to manholes, manhole vents,
lateral line connections, valves, pipelines,junction boxes, fire hydrants, meter vaults, lift
stations in,upon,under and across a portion of the City Property.
City Property shall mean that property as limited to and described in Exhibit"A".
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 Engineering 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 that certain twenty (20) inch nominal diameter steel pipeline for an
approximate total distance of 601.65 total feet and other facility locations as approved by
the Director that are installed by Company in the City Property in accordance with this
Agreement and pursuant to the rules and regulations as promulgated by the U.S.
Department of Transportation, Office of Pipeline Safety, as set out in the Code of Federal
Regulations, Section 192 as adopted and modified by the Texas Railroad Commission.
2. GRANT OF RIGHTS.
2.1. General Use of The City Property for Provision of Gas.
Subject to the terms and conditions set forth in this Agreement and the City
Charter and ordinances, the City hereby grants Company a license to (i) erect, construct,
install and maintain the Pipeline consisting in, over, under, along and across the City
Property at a depth of no less than 36" and (ii) transport Gas through the portions of its
Pipeline in, over, under, along and across City Property as depicted in Exhibit "A".
Company hereby acknowledges and agrees that this Agreement allows only the
Natural Gas Pipeline License Agreement City Property 2008—NE LANDFILL Page 2 of 18
transportation of Gas through the City and does not allow Company to distribute, sell or
otherwise provide Gas to any Customer.
2.2. Nonexclusive.
This Agreement and all rights granted to Company herein are strictly
nonexclusive. The City reserves the right to enter into and grant other and future licenses
and other authorizations for use of the City Property to other Persons and entities in
accordance with applicable law and as the City deems appropriate; provided, however,
that as to the grant of subsequent licenses for use of the City Property that is solely within
the discretion of the City, if a dispute arises as to priority of the use of the City Property,
the City will resolve such dispute in a manner that does not result in unreasonable
interference with Company's operation of the Pipeline for the purposes provided for
herein. This Agreement does not establish any priority for the use of the City Property 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 City Property, 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 City Property, 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 City Property.
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
Natural Gas Pipeline License Agreement City Property 2008—NE LANDFILL Page 3 of 18
the City Property. The bonds shall guarantee (i)the faithful performance and completion
of all construction, maintenance or repair work in accordance with the contract between
Company and the contractor and (ii) full payment for all wages for labor and services and
of all bills for materials, supplies and equipment used in the performance of that contract.
Such bonds shall name both the City and Company as dual obligees.
3. TERM
This Agreement shall become effective on the date as of which both parties have
executed it ("Effective Date") and shall expire at 11:59 P.M. CST twenty (20) years from the
last date of notarial acknowledgement unless terminated earlier as provided herein.
4. FEES AND PAYMENTS TO CITY.
4.1. License Use Fee.
On or prior to the Effective Date, Company shall pay the City as compensation
for its use of the City Property for the Term of this Agreement the sum of Twenty-seven
Thousand Seventy-four Dollars and Twenty Five Cents ($27,074.25) ("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 City
Property.
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.
4.3. Interest.
All sums not paid when due shall bear interest at the rate of ten percent (10%) per
annum or the maximum amount allowed by law,whichever is less, computed monthly. If
such outstanding sums are paid with interest within thirty (30) days following their
respective due dates, Company's failure to pay such sums by their respective due dates
shall not, in and of itself, constitute an Event of Default under Section 9 of this
Agreement.
5. REGULATORY AUTHORITY OF THE CITY.
Company's property and operations hereunder shall be subject to such regulation by the
City as may be reasonably necessary for the protection or benefit of the general public. In this
connection, Company shall be subject to, governed by and shall comply with all applicable
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federal, state and local laws, including all ordinances, rules and regulations of the City, as same
may be adopted and amended from time to time.
6. USE OF THE CITY PROPERTY.
6.1. Compliance with Laws, Ordinances,Rules and Regulations.
The City has the right to control and regulate the use of the City Property and
other 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.
6.2. 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
City Property by the City and the public. If the City reasonably determines that the
Pipeline does place an undue burden on any portion of the City Property, 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.
6.3. 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 City Property, Company shall, except for work required to address an emergency,
provide at least twenty-four(24)hours' advance written notice to the City and the owners
of property adjacent to the City Property that will be affected. In the case of emergencies
Company shall provide notice to the affected landowners within twenty-four (24) hours
after commencement of work. In addition, during any such work, Company shall provide
construction and maintenance signs and sufficient barricades at work sites to protect the
public. The use of traffic control devices shall be consistent with the standards and
provisions of Part VI of the Texas Manual on Uniform Traffic Control Devices.
Company shall utilize appropriate warning lights at all construction and maintenance
sites where one or more traffic lanes are closed or obstructed during nighttime conditions.
Company will take all reasonable planning to minimize harm to the City Property
and shall comply with conditions as set forth below:
6.3.1. All construction activities will occur outside of any landfill cap area and
performed in such a way that would be protective of the landfill area.
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6.3.2 Construction within the City Property shall be performed in such a way
that would prevent the migration of any fugitive landfill emissions along the utility
corridor constructed in the.City Property.
6.3.3 If during the course of construction landfill material or contaminated
material is encountered Company shall notify the City of Fort Worth, Environmental
manager or Environmental Management Department no later than one (1) business day
after discovery. The Company will be held responsible for disposing all materials as
required Federal, State and Local regulation in an appropriately permitted landfill or
waste disposal system.
6.3.4 Company shall have right from time to time to cut undergrowth and other
obstruction on City Property. Company shall also have the ability to remove any trees in
the City Property tract with the written approval of the City.
6.4. "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.
6.5 Specifications of the Pipeline
The Company shall erect, install, construct, repair, replace and maintain the
Pipeline and pursuant to the rules and regulations promulgated by the U.S. Department of
Transportation, Office of Pipeline Safety, as set out in the Code of Federal Regulations
Title 49, Part 192, as adopted and modified by the Texas Railroad Commission. The
Pipeline shall not exceed a twenty (20) inch nominal diameter, be placed at a depth of no
less than 36 inches throughout the entire length of the City Property, however, if the
Pipeline within City Property will be crossing any existing City Facility, the Pipeline
must cross the City Facility at a not less than a 70 degree angle and be buried at a
minimum of 60 inches below the bottom of the lowest City Facility. Notwithstanding the
foregoing statements, should Company require varying from the above requirements,
such variance shall require City evaluation of the respective variance to depth or
proposed angle of crossing to determine the practicability of such request. Furthermore,
if the Pipeline within the City Property crosses a 16-inch or greater water or sanitary
sewer facility, an emergency response plan must be included. The emergency response
plan shall be submitted to the City of Fort Worth Water Department prior to the
commencement of the installation of the Pipeline and shall establish written procedures
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subject to the approval of the City of Fort Worth Water Department to minimize any
hazard resulting to any City Facility.
6.6 Marking of Pipeline.
The Pipeline shall be marked, in a manner that is acceptable to the Director and in
compliance with Federal Regulations, to show conspicuously Company's name and a
toll-free telephone number of Company that a Person may call for assistance.
6.7. Surface Excavation and Additional Fees.
The City shall have the right to coordinate all excavation work in the City
Property in a manner that is consistent with and convenient for the implementation of the
City's program for property management in order to preserve the integrity of the City
Property.
6.8. Relocation of Pipeline.
Within forty-five (45) calendar days following a written request by the City,
Company, at Company's sole cost and expense, shall protect, support, disconnect or
relocate to another portion of the City Property 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
Engineering in writing and the City will work in good faith with Company to negotiate a
workable time frame.
6.9 Restoration of the City Property, Public Rights-of--Way and Public/Private
Property.
Company, at Company's sole cost and expense, and in a manner approved by the
City, shall promptly restore any portion of the City Property, Public Rights of Way, other
City-owned property or other privately-owned property that are in any way disturbed or
damaged by the construction, operation, maintenance or removal of any of the Pipeline
to, at Company's option, as good or better a condition as such property was in
immediately prior to the disturbance or damage. 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.
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6.10. Emergencies.
6.10.1. Work by the City.
For purposes of this Section 6.10.1, 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 Manger, 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 deemed 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 directly that involves that portion of the
Pipeline located in the City Property.and necessitates immediate emergency
response work on or repairs, Company may initiate the emergency response work
or repairs or take any action required under the circumstances provided that
Company notifies the City as promptly as possible.
6.11. Removal of Pipeline.
Upon the revocation, termination or expiration without extension or renewal of
this Agreement, Company's right to use the City Property 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 City Property (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 City Property, (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 City Property abandoned
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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,
labor, materials or supplies provided or supplied to Company, its contractors or
subcontractors; or (iv) Company's failure to comply with any federal, state or local law,
ordinance, rule or regulation, except to the extent directly caused by the negligent or
grossly negligent act(s) or omission(s) or intentional misconduct of the City.
COMPANY HEREBY ASSUMES ALL LLABILITY AND RESPONSIBILITY
FOR PROPERTY LOSS, PROPERTY DAMAGE AND/OR PERSONAL INJURY OF
ANY KIND, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND
OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN
CONNECTION WITH ITS USE OF THE PREMISES UNDER THIS AGREEMENT
OR WITH THE USE, MAINTENANCE, OCCUPANCY, EXISTENCE OR
LOCATION OF THE PREMISES, EXCEPT TO THE EXTENT CAUSED SOLELY
BY THE NEGLIGENCE OR INTENTIONAL MISCONDUCT OF THE CITY.
7.2 Indemnification.
COMPANY, AT COMPANY'S SOLE COST AND EXPENSE, SHALL
INDEMNIFY AND HOLD HARMLESS THE CITY, ITS OFFICERS, BOARDS,
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COMMISSIONS, AGENTS, EMPLOYEES AND VOLUNTEERS
("INDEMNITEES"), FROM AND AGAINST ANY AND ALL DAMAGES WHICH
MAY ARISE OUT OF OR BE IN ANY WAY CONNECTED WITH (I) THE
CONSTRUCTION, INSTALLATION, OPERATION, MAINTENANCE OR
CONDITION OF THE PIPELINE OR ANY RELATED FACILITIES OR
APPURTENANCES, (II) THE TRANSPORTATION OF GAS THROUGH THE
PIPELINE, (III) ANY CLAIM OR LIEN ARISING OUT OF WORK, LABOR,
MATERIALS OR SUPPLIES PROVIDED OR SUPPLIED TO COMPANY, ITS
CONTRACTORS OR SUBCONTRACTORS, OR (I19 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.
7.3 Assumption of Risk and Environmental Remediation.
COMPANY HEREBY REPRESENTS TO THE CITY THAT (i) COMPANY
HAS FULLY INSPECTED THE PREMISES, (ii) COMPANY IS SATISFIED WITH
THE CONDITION OF THE PREMISES,AND (iii) COMPANY HAS BEEN FULLY
ADVISED OF ITS OWN RIGHTS WITHOUT RELIANCE UPON ANY
REPRESENTATION MADE BY THE CITY, ITS OFFICERS, AGENTS,
SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS,
COMMISSIONS, BOARDS OR VOLUNTEERS. COMPANY HEREBY
UNDERTAKES AND ASSUMES, FOR AND ON BEHALF OF COMPANY, ITS
OFFICERS,AGENTS, CONTRACTORS, SUBCONTRACTORS AND EMPLOYEES,
ALL RISK OF DANGEROUS CONDITIONS, IF ANY, ON OR ABOUT THE
PREMISES.
Although, to the best of the City's knowledge, the Premises comply with all
applicable federal, state and local environmental laws and regulations (collectively
"Environmental Laws"), the City does not warrant such. COMPANY HEREBY
COVENANTS AND AGREES THAT COMPANY, AT ITS SOLE COST AND
EXPENSE, SHALL BE FULLY RESPONSIBLE FOR THE VIOLATION OF ANY
ENVIRONMENTAL LAWS CAUSED,IN WHOLE OR IMPART,BY COMPANY, ITS
OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS,
SUBCONTRACTORS OR INVITEES, AND ANY REMEDIATION THAT MAY BE
REQUIRED AS A RESULT OF SUCH VIOLATION, EXCEPT TO THE EXTENT
CAUSED BY THE CITY.
7.4. Defense of Indemnitees.
In the event any action, lawsuit or other proceeding is brought against any
Indemnitee by reason of any matter for which the Indemnitees are indemnified hereunder,
the City shall give Company prompt written notice of the making of any claim or
commencement of any such action, lawsuit or other proceeding, and Company, at
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Company's sole cost and expense, shall resist and defend the same with reasonable
participation by the City and with legal counsel selected by Company and specifically
approved by the City. In such an event, Company shall not admit liability in any matter
on behalf of any Indemnitee without the advance written consent of the City.
8. INSURANCE.
Company shall procure and maintain at all times, in full force and effect, a policy or
policies of insurance to provide coverages as specified herein, naming the City as an
additional insured and covering all public risks related to the use, occupancy, condition,
maintenance, existence or location of the City Property and the construction, installation,
operation, maintenance or condition of the Pipeline, including the transportation of Gas
through the Pipeline. The insurance required hereunder may be met by a combination of
self-insurance, primary and excess policies.
8.1. Primary Liability Insurance Coveraize.
• Commercial General Liability:
$1,000,000 per occurrence, including coverage for the following: (i) Premises
Liability; (ii) independent contractors; (iii) products/completed operations; (iv)
personal injury; (v) contractual liability; (vi) explosion, collapse and
underground property damage.
• Property Damage Liability:
$10,000,000 per occurrence
• Automobile Liability:
$1,000,000 per accident,including,but not limited to, all owned,leased,hired or
non-owned motor vehicles used in conjunction with the rights granted under this
Agreement
• Worker's Compensation:
As required 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
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insurance shall be endorsed to provide that no material changes in coverage, including, but
not limited to, cancellation, termination, non-renewal or amendment, shall be made without
thirty(30) days' prior written notice to the City.
8.3. Underwriters and Certificates.
Company shall procure and maintain its insurance with underwriters authorized to
do business in the State of Texas and who are acceptable to the City in terms of solvency
and financial strength. Within thirty(30) days following adoption of this Agreement by the
City Council, Company shall furnish the City with certificates of insurance signed by the
respective companies as proof that it has obtained the types and amounts of insurance
coverage required herein. In addition, Company shall, on demand, provide the City with
evidence that it has maintained such coverage in full force and effect.
8.4. Deductibles.
Deductible or self-insured retention limits on any line of coverage required herein
shall not exceed $1,000,000 in the annual aggregate unless the limit per occurrence, or per
line of coverage, or aggregate is otherwise approved by the City.
8.5. No Limitation of Liability.
The insurance requirements set 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.
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9.3. Bankruptcy,Insolvency or Receivership.
An Event of Default shall occur if Company (i) files a voluntary petition in
bankruptcy; (ii) is adjudicated insolvent; (iii) files any petition or fails to contest any
petition filed against it seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief for itself under any laws relating to
bankruptcy, insolvency or other relief for debtors; (iv) seeks, consents to or acquiesces in
the appointment of any trustee, receiver, master, custodian or liquidator of Company, any
of Company's property or any revenues, issues, earnings or profits thereof; (v) makes an
assignment for the benefit of creditors; or (vi) fails to pay Company's debts generally as
they become due.
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-cure such Event of Default. For an
Event of Default which can be cured by the immediate payment of money to the City,
Company shall have thirty (30) days from the date it receives written notice from the City
to cure the Event of Default. For any other Event of Default, Company shall have sixty
(60) days from the date it receives written notice from the City to cure the Event of
Default. If any Event of Default is not cured within the time period specified herein, such
Event of Default shall, without further notice from the City, become an "Uncured
Default" and the City immediately may exercise the remedies provided in Section 10.2.
10.2. Remedies for Uncured Defaults.
Upon the occurrence of an Uncured Default, the City shall be entitled to exercise,
at the same time or at different times, any of the following remedies, all of which shall be
cumulative of and without limitation to any other rights or remedies the City may have:
10.2.1. Termination of Agreement.
Natural Gas Pipeline License Agreement City Property 2008—NE LANDFILL Page 13 of 18
Upon the occurrence of an Uncured Default, the City may terminate this
Agreement. Upon such termination, Company shall forfeit all rights granted to it
under this Agreement, and, except as to Company's unperformed obligations and
existing liabilities as of the date of termination, this Agreement shall
automatically be deemed null and void and shall have no further force or effect.
Company shall remain obligated to pay and the City shall retain the right to
receive License Fees and any other payments due up to the date of termination.
Company shall remove the Pipeline from and restore the City Property as and
when requested by the City. The City's right to terminate this Agreement under
this Section 10.2.1 does not and shall not be construed to constitute any kind of
limitation on the City's right to terminate this Agreement for other reasons as
provided by and in accordance with this Agreement; provided, however, that
Company may not abandon the Pipeline without the approval of the Commission
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. Leeal 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 INFORMATI®N.
11.1. Filings with the Commission.
Company shall provide upon request copies to the City of all documents which
Company files with or sends to the Commission concerning or related to its
transportation of Gas through or other operations in the City, including, but not limited
to, filings related to (i) tariffs; (ii) rules, regulations and policies requested, under
consideration or approved by the Commission; and (iii) applications and any supporting
pre-filed testimony and exhibits filed by Company or third parties on behalf of Company,
on the same date as such filings are made with the Commission. In addition, Company
shall provide the City upon request with copies of records, documents and other filings
that Company is required to maintain or supply to the Commission under any applicable
state or federal law, rule or regulation concerning or related to its transportation of Gas
through or other operations in the City
11.2. Lawsuits.
Company shall provide the City with copies of all pleadings in all lawsuits to
which Company is a party and that pertain to the granting of this Agreement and/or the
Natural Gas Pipeline License Agreement City Property 2008—NE LANDFILL Page 14 of 18
transportation of Gas through the City within thirty (30) days of Company's receipt of
same.
12. COMPANY AS INDEPENDENT CONTRACTOR.
It is expressly understood and agreed that Company shall operate as an independent
contractor as to all rights and privileges granted by this Agreement, and not as an agent,
representative or employee of the City. Company shall have the exclusive right to control the
details of its business and other operations necessary or appurtenant to the transportation of Gas in
accordance with the terms and conditions of this Agreement, and shall be solely responsible for the
acts and omissions of its officers, agents, servants, employees, contractors and subcontractors.
Company acknowledges that the doctrine of respondeat superior shall not apply as between the
City and Company, its officers, agents, employees, contractors and subcontractors. Company
further agrees that nothing herein shall be construed as the creation of a partnership or joint
enterprise between the City and Company.
13. ASSIGNMENT PRORMITED.
Company may not assign or otherwise transfer any of its rights or obligations under this
Agreement unless specifically authorized in writing by the City, which authorization shall not be
unreasonably withheld; provided, however, that Company may make such an assignment of its
rights to an affiliated company without the consent of City, provided, that upon such assignment,
Company shall notify City within sixty (60) days of said assignment. An 'affiliated company'
shall mean any parent, subsidiary or sister company or other legal entity that controls, is controlled
by, or is under common control with Company. For purposes of this clause, 'control' means direct
or indirect ownership of fifty percent (50%) or more of the voting rights of the subject entity.
Notwithstanding such an assignment to an affiliated company, Company shall remain liable to City
for any failure to perform hereunder by the affiliated assignee, and this provision shall thereafter be
applicable to Company and such affiliated assignee.
14. NOTICES.
Notices required pursuant to the provisions of this Agreement shall be conclusively
determined to have been delivered when(i)hand-delivered to the other party, its agents, employees,
servants or representatives, or (ii) received by the other party by United States Mail, postage
prepaid,return receipt requested, addressed as follows:
To TBE CITY: To COMPANY:
City of Fort Worth Texas Midstream Gas Services, L.L.C.
Jean Petr,Land Agent Ms. Coleen Magness
900 Monroe, Suite 404 Director—Right of Way Coordination
Fort Worth, TX 76102 P.O. Box 18162
Oklahoma City, OK 73154-0162
Natural Gas Pipeline License Agreement City Property 2008—NE LANDFILL Page 15 of 18
with a copy to: with a copy to:
City of Fort Worth Texas Midstream Gas Services,LLC
Department of Law Mr. Kent Wilkinson
Attn: Attorney for Real Property Manager
1000 Throckmorton P.O. Box 18162
Fort Worth,TX 76102 Oklahoma City, OK 73154-0162
15. NON-DISCRIMINATION COVENANT.
Company shall not discriminate against any person on the basis of race, color, national
origin, religion, handicap, sex, sexual orientation or familial status in the receipt of benefits from
Company's business operations, in any opportunities for employment with Company or in the
construction or installation of the Pipeline.
16. NO WAIVER.
The failure of the City to insist upon the performance of any term or provision of this
Agreement or to exercise any rights that the City may have, either under this Agreement or the law,
shall not constitute a waiver of the City's right to insist upon appropriate performance or to assert
any such right on any future occasion.
17. GOVERNING LAW AND VENUE.
This Agreement shall be construed pursuant to and in accordance with the laws of the
United States of America and the State of Texas. If any action,whether real or asserted, at law or in
equity, arise out of the terms of this Agreement, Company's transportation of Gas or Company's use
of the City Property, venue for such action shall lie exclusively in state courts located in Tarrant
County, Texas or the United States District Court for the Northern District of Texas, Fort Worth
Division.
18. CONFERENCES.
At the request of either the City or Company, the City and Company shall meet at
reasonable times and upon reasonable notice to discuss any aspect of this Agreement, Company's
Pipeline, Company's operations in the City, Company's transportation of Gas or Company's use of
the City Property.
19. SEVERABH I'TY.
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
Natural Gas Pipeline License Agreement City Property 2008—NE LANDFILL Page 16 of 18
event, the City and Company agree that they shall amend or have amended this Agreement to
comply with such final order entered by a court of competent jurisdiction.
20. FORCE 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.
21. IJEADINGS 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. ENTIRE'T'Y 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.
Natural Gas Pipeline License Agreement City Property 2008—NE LANDFILL Page 17 of 18
EXECUTED as of the later date below:
CITY OF FORT WORTH: TEXAS MIDSTREAM GAS SERVICES,
L.L.C:
Bv. :—_ c By: _Assistant City City Manager James Jo
n,Presiden �JM
Date: 7�2S�s te: G
APPROVED AS TO FORM AND LEGALITY:
By�
AS 1LAL -
Assistant City Attorney
—
M&C:
Afte0
qMMarPtyHAend&drix, C* Secretary
E ICIAL RECORD
!YW SECRETARY
. OR TH,TX
n l'�, na T;mil Agreement City Property 2008—NE LANDFILL Page 18 of 18
ACKNOWLEDGEMENT
THE STATE OF TEXAS §
COUNTY OF TARRANT §
�% This instrument was acknowledged before me on this �I y of� 2008, by
!'aa4l4ml- Assistant City Manager of the City of Fort Worth, Texas, a municipal
corporation, on behalf of the City of Fort Worth, Texas.
HET'IE LANE Notary Public State of Texas
MY COMMISSION EXPIRES
July 26,2011
4.
ACKNOWLEDGMENT
THE STATE OF OXLAHOMA §
COUNTY OF §
This instrument was acknowledged before me on this day of
2008, by James C. Johnson, President of Texas Midstream Gas Services, L.L.C., an Oklahoma
limited liability company, on behalf of said company.
....... .kn" >>
ii 07G01 u!'i ':
0%, 1 hA7
,01 Public, State of Oklaho
�N.T G::p, Jdloutnurp, y®
9T�OUBO.��? K?N My commission expires:
tt07001656
EXp.0y20111 c -
. My commission number-09001 105
OFIIIQ
Natural Gas Pipeline License Agreement City Property 2008—NE LANDFILL Page 19 of 18
EXHIBIT 'A'.
Lo
CITY OF FORT WORTH (o 0
CALLED 86.06 ACRES
INSTRUMENT 0#RD2`W4OlT364O
CALLED 14.00 ACRES
2 "MALLARD COVE
APPROXIMATE a: PARK"
GREATER TEXAS HOD EXIT POINT
MATERIALS CORP.
VOL. 7574, PG. 156 TEMPORARY :3 CITY OF FORT WORTH
CALLED 10 ACRES WORK SPACE cr INSTRUMENT # D204111643
CALLED 9.769 ACRES
25' LICENSE
AGREEMENT TEMPORARY
WORK SPACE
WESTFORK PIPELINE COMPANY G.P.,L.L.C.
UNDERGROUND PIPELINE EASEMENT
N 0945'11" W AGREEMENT
REFERENCE NO. C-20710
332.93' APPROVED BY COUNCIL 5/03/2005
WESTFORK PIPELINE It
0.9275 ACRE UNDERGROUND
PIPELINE EASEMENT
INSTRUMENT # D205199814 I En
NTS
NOTE: WILLIAM C. BODEN
SURVEY LINES ARE APPROXIMATE REGISTERED PROFESSIONAL LAND SURVEYOR
TEXAS REGISTRATION NO. 1932
(CM) = CONTROL MONUMENT
TOTAL LINEAR FEET. 601.65 BEARINGS BASED ON TEXAS STATE PLANE
LICENSE AGREEMENT = 0.35 ACRES COORDINATES SYSTEM NAD 83, NORTH CENTRAL ZONE,
TEMPORARY WORK SPACE = 1.08 ACRES DERIVED FROM GPS OBSERVATIONS.
PREPARED BY.MUSTANG ENGINEERING,LIP.
TITLE INFORMATION PROVIDED BY: 4754 HWY,377 SOUTH
TEXAS MIDSTREAM GAS SERVICES, LLC. SHEET 1 OF 2 PHONE-'0817-560-400
4 07 14 WBB GENERAL REVISION TRB if-
3 12 10 JC CHANGE EASE -ff Fs MIDSTREAM
—1 L MENT WIDTH -iwB— Ice x - s G A S S E R V I C E 8
2 11 16 JC CHANGE EASEMENT LOCATION
1 10 16 ic r.WAMrlr FAqFMENT WIDTH IxtJ PROPOSED PRECINCT LN.RD,-ARC PARK PIPELINE CROSSING THE PROPERTY OF
REV. DATIEBY DESCRIPTION CITY OF FORT WORTH
PROJECT NO. 12892 TARRANT COUNTY, TEXAS
DRAWN BY*JC DATE:10/16/07 I DWG. NO. REV.
SCA
BENBROOK TEXAS :::Is,( LF--1" = 200' APP.:WJc
EXHIBIT"A"
Sheet 2of2
Texas Midstream Gas Services T>-[ARR-APPL,O19.0O Rev 4
License Agreement Qty of Fort Worth
Being a twenty-five(25)foot license agreement situated in the P.Witt Survey,Abstract No. 1656,
Tarrant County. Texas and being o part of that certain 80.06 acre tract of land described in u
deed to the City of Fort Worth as recorded in Volume 4384, Page 104 of the Deed Records of
Tarrant Cuun(y, Texas. Said twenty-five (25) foot license agreement being more particularly
described by metes and bounds oefollows:
BEGINNING at a point in the east line of said 86.06 acre City of Fort Worth tract, common with
the west line of that certain 9.788 oom tract of land described in deed to the City of Fort Worth
as recorded in Instrument No. D204111643 of the Deed Records of Tarrant County,Texas,said
point b N 00*45'11"W, a distance of 332.93 feet from a 3/8 inch iron rod found marking the
Southwest corner of said 9789 acre City of Fort Worth tract;
THENCE novehng, over and across said 86.06 acre tract, N 8O"28'58"VV. a distance of 600.19
feet to a point in the centerline meanders of the West Fork of the Trinity River;
THENCE with the centerline meanders of said West Fort of the Trinity River, NO7^21'41"VV. o
distance of25.VO feet tnopoint;
THENCE severing,over and across said 86.06 acre tract,S 88'28'58"E, a distance of 603.11 feet
to a point in the east line of said 86.06 acre City of Fort Worth tract, common with the west line
uf said S.7OS acre City nf Fort Worth tract;
THENCE with said common line, 8 00"45'11" E. a distance of 25.02 feet the POINT OF
8EG|NN|NG, and containing 0.55 ennoo of land, more or less as shown on Exhibit"A", Sheet 1
uf2 attached hereto.
Temporary Work Space
Also, Grantee shall have the use for initial oonetruction, o strip of variable width, being poraUo|,
abutting and contiguous to the north line of the above described license agmement, as shown
on Exhibit "A^. Sheet 1 of 2 attached hereto. A|so. Grantee ohoU have the use for initial
construction, a fifty(50)foot by two hundred (200)wide strip of land, being parallel, abutting and
contiguous to the south line of the above described|ioanoo ogmement, as shown on Exhibit^A^.
Sheet 1 of 2 attached hereto. Said temporary work space containing 1.08 acres, more or less.
Bearings are based on the Texas State Plane Coordinate System, NAD83. North Central Zone,
derived from GPSobservations.
Registored Professional Land Surveyor
Texas Registration No. 1S32
July 15.2Ooa
City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 3/4/2008
DATE: Tuesday, March 04, 2008
LOG NAME: 30TX MIDSTREAM REFERENCE NO.: L-14486
SUBJECT:
Authorize Execution of an Underground Pipeline License Agreement with Texas Midstream Gas
Services for a Natural Gas Pipeline Across City-Owned Properties in the Preston Witt Survey
Known as the NE Landfill Property
RECOMMENDATION:
It is recommended that the City Council authorize the execution of an Underground Pipeline License
Agreement with Texas Midstream Gas Services for a natural gas pipeline across City-owned property in the
Preston Witt Survey known as the NE Landfill property, in the amount of$27,074.25 for a term of 20 years.
DISCUSSION:
The City has been approached by representatives of Texas Midstream Gas Services requesting an
underground pipeline license agreement across a portion of City-owned properties in the Preston Witt
Survey known as the NE Landfill. property for the installation of a natural gas pipeline. The property
is located at 6991 Randol Mill Road. The proposed alignment will allow for a total of 601.65 linear feet of
20-inch diameter natural gas pipeline within a 25-foot wide strip of land across the properties (35 acres
more or less) for a term of 20 years. For initial construction, a temporary construction workspace of variable
width parallel, abutting and contiguous to the north line and a portion of the south line of the strip of land
(1.08 acres more or less) shall also be granted as part of the agreement.
Texas Midstream Gas Services has agreed to pay the City the standard fee of $45.00 per linear foot of
pipeline for the use of the property for a term of 20 years for a total cost of $27,074.25. Because the
location of the pipeline impacts property managed by the Environmental Management Department, the
proceeds will be allocated to the Solid Waste Capital Projects Reserve Fund.
Texas Midstream Gas Services will be responsible for repairing and restoring any damage to the strip of
land or surrounding property resulting from the construction of the pipeline.
The Property is located in COUNCIL DISTRICT 4, Mapsco 66K.
FISCAL INFORMATIONXERTIFICATION:
The Finance Director certifies that the Engineering Department is responsible for the collection and deposit
of funds due the City under this agreement
Logname: 30TX MIDSTREAM Page 1 of 2
TO Fund/Account/Centers FROM Fund/Account/Centers
P195 446300 052195005100 $27,074.25
Submitted for City Manager's Office by- Fernando Costa (8476)
Originating Department Head: A. Douglas Rademaker(6157)
Additional Information Contact: Jean Petr (8367)
Logname: 30TX MIDSTREAM Page 2 of 2