HomeMy WebLinkAboutContract 49283 CITY SECRETARYqlf`
CONTRACT NO. 3
CD ENCROACHMENT AGREEMENT
Cny� m BY AND BETWEEN
C1)Y 1 y o Texas Midstream Gas Services,L.L.C.
ANY AND
Wati City of Fort Worth
Wb
THIS ENCROACHMENT AGREEMENT("Agreement") is entered into this grh
day of May,2017 by Texas Midstream Gas Services,L.L.C.(the "Company"),an
Oklahoma limited liability company,whose address is 5601 E IS`Street,Fort Worth
Texas,76103,and City of Fort Worth
("User")whose address is 200 Texas Street,Fort Worth,Texas 76103
Company is the current legal holder of a certain easement and/or right-of-way
situated in Tarrant County, Texas pursuant to the following described instrument, which
instruments is filed in the Deed Records of Tarrant County, Texas (hereinafter the
"Easement"):
Grantor: Tarrant Reginal Water District
Grantee: West Fork Pipeline Company,L.P.
Execution Date: 12/30/2004
Legal Description: lam'Largent A-960
Company has one or more pipelines and other underground and/or surface facilities
located within the Easement (hereafter collectively referred to as the "Pipeline"). User
desires to use, in common with Company, and Company is willing to permit such use in
common with User a portion of the Easement for the construction,operation,maintenance,
inspection,replacement and removal by User of certain swface facilities(the"Facilities")
that will encroach upon the Easement,subject to the terms and conditions herein contained.
NOW THEREFORE,Company and User, in consideration of the mutual promises
herein contained,do hereby agree as follows:
1. User,its respective successors,heirs and assigns,is hereby granted the non-
exclusive right to use, in common,with Company and subject to the terms and conditions
of the Easement,a portion of the easement and/or right-of-way as granted in the Easement
(the "Encroachment Area") for the construction, operation, maintenance, inspection,
replacement and removal by User of the Facilities as more fully described and set forth on
the attached Exhibit"A".
2. The rights of User granted herein are conditioned upon and limited to the
following:
(a) Company reserves the right of full use and enjoyment of the Encroachment
Area, except for the purposes herein granted, and User agrees that, except
for the construction, operation, maintenance, inspection, replacement and
removal by User of the Facilities, no excavation, building, structure or
obstruction will be made,constructed or permitted within the Encroachment
Area without the prior written consent of Company,which consent will not
be unreasonably withheld.
(b) Except in the case of an emergency (User will notify Company as soon as
possibly if prior notice was not given due to emergency),Company shall be
notified forty-eight(48)hours in advance before any work by or on behalf
of User begins within the Encroachment Area. Notification should be made
through the local One Call System(811)and to Land Representative at 682-
730-4880. Company shall have the right to have a Company representative
present at all times during the construction and installation of the Facilities.
(c) No trees or bushes or other landscaping shall be placed or allowed to grow
within the Encroachment Area unless required by applicable laws,
regulations or local ordinances.
(d) Existing Pipeline marker signs placed within the Encroachment Area by
Company shall at all times remain easily distinguishable from the surface,
air and from any access road to the Encroachment Area. Pipeline marker
signs temporarily removed during installation of the Facilities shall be
reinstalled at the completion of installation of the Facilities.
(e) With respect to that part of the Encroachment Area used by User a minimum
of twenty-four inches(24")of undisturbed soil shall be placed upon and/or
maintained at all times over the Pipeline;provided, however,at least forty-
eight inches (48") of undisturbed soil shall be placed upon and/or
maintained over any portion of the Pipeline located within 50 feet of any
building or structure which is or may be occupied by humans.
(f) With respect to that part of the Encroachment Area used by User, the
existing grade located within ten(10)feet either side of the centerline of the
Pipeline will remain unchanged at all times. Adequate erosion control
devices will be installed and maintained by User to prevent any erosion
within the Encroachment Area.
(g) No stockpiling of dirt or debris within the Encroachment Area will be
allowed except (i) due to emergency operations, or (ii) repair of the
Facilities.
(h) No heavy construction equipment of a type that has axle loads exceeding
20,000 pounds per axle shall be allowed to operate, cross or park over the
Encroachment Area where there is less than 48"of cover over the Pipeline.
(i) Any Facilities running across the Encroachment Area shall cross at an angle
no less than 45°to the centerline of Pipeline.
Barnett North GGS—157 to Brentwood C&11.00
(j) Unless otherwise advised by the Company representative,all Facilities that
cross the Pipeline shall be installed by User above the Pipeline a minimum
distance of twenty-four inches(24")from the nearest exterior surface of the
Pipeline. All subsurface Facilities that are parallel to the Pipeline shall be
installed by User a minimum distance of ten feet (10) from the nearest
exterior surface of the Pipeline.
(k) [Intentionally Delete]
(1) User shall be responsible for obtaining all necessary rights for construction
and installation of the Facilities from the landowner of the Encroachment
Area.
(m) Before starting any work within the Encroachment Area,User shall submit
all plans and specifications for the Facilities and any further improvements
within the Encroachment Area to Company for approval.
(n) User is self-insured but shall require any agent, contractor, or other person
or entity completing work on the Facilities within the Encroachment Area
to maintain insurance coverage of the types and in the amounts set forth on
Schedule I attached to this Agreement and shall cause the same to provide
proof of insurance to Company before starting any work within the
Encroachment Area.
(o) User shall be responsible for compliance with the Company's construction
standards and guidelines by User's contractors and their subcontractors.
(p) User will be responsible for mowing the portion of the Company easement
located along the south bank of the West Fork Trinity River.
(c) User will be responsible for any repair of the concrete trail due to any
erosion, sinking, cracking, breaking, maintenance and any other damages
caused by soil settling.
(r) In the event there: is maintenance required that may result in the closing of
the trail in the area where Company has a private easement, Company will
not be liable for the installation of a temporary trail.
3. User agrees that, should it become necessary for Company to work on,
repair,remove or replace any portion of the Pipeline or other improvements, which work
results in damage to the Facilities or other surface or subsurface improvements within the
Encroachment Area, all repair or replacement work of such Facilities or improvements
shall be at User's sole cost and expense, including the relocation of the Facilities, if
necessary in the sole opinion of Company.
Barnett North GGS—157 to Brentwood CF-11.00
4. TO THE EXTENT ALLOWED UNDER THE LAW,USER AGREES
TO PROTECT, INDEMNIFY FULLY, HOLD HARMLESS AND DEFEND AT
USER'S SOLE EXPENSE THE COMPANY, ITS SUBSIDIARIES, JOINT
VENTURERS, AND AFFILIATES AND ITS AND THEIR AGENTS, OFFICERS,
DIRECTORS, EMPLOYEES, REPRESENTATIVES, CONTRACTORS,
SUCCESSORS AND ASSIGNS (HEREIN COLLECTIVELY REFERRED TO AS
"INDEMNIFIED PARTIES") FROM AND AGAINST ALL DAMAGES (AS
HEREINAFTER DEFINED) CLAIMED BY USER OR THIRD PARTIES,
INCLUDING EMPLOYEES, CONTRACTORS, AGENTS, REPRESENTATIVES
AND AFFILIATES OF USER OR THIRD PARTIES THAT ARISE FROM OR
RELATE TO THE FACILITIES AND THE USE, CONSTRUCTION,
OPERATION, MAINTENANCE, INSPECTION, REPLACEMENT AND/OR
REPAIR OF THE FACILITIES;PROVIDED HOWEVER,USER SHALL NOT BE
REQUIRED TO INDEMNIFY THE INDEMNIFIED PARTIES AGAINST THEIR
OWN NEGLIGENCE OR WILLFUL MISCONDUCT. IN THE EVENT OF JOINT
AND CONCURRENT NEGLIGENCE OF BOTH USER AND COMPANY,
LIABILITY, IF ANY, SHALL BE APPORTIONED COMPARATIVELY IN
ACCORDANCE WITH THE LAW OF THE APPLICABLE JURISDICTION.
COMPANY RESERVES THE RIGHT BUT NOT THE DUTY TO APPROVE ALL
ATTORNEYS SELECTED BY USER OR USER'S INSURANCE CARRIER FOR
COMPANY'S DEFENSE HEREUNDER. The term "Damages" shall mean any and all
(i) obligations, (ii) liabilities, (iii) personal injuries (including, but not limited to death of
any person), (iv) damages to property (including, but not limited to, (a) damage to or
destruction of the land, or any improvements, facilities, vehicle and equipment in the
vicinity of the Easement, (b) damage to or destruction of third party owned or operated
improvements,facilities, vehicle and equipment located within the land in the vicinity of
the Easement), (v)penalties,(vi) actions, (vii) lawsuits, (viii) claims, (ix) settlements, (x)
judgments,orders,directives, injunctions, decrees or awards of any federal, state, local or
foreign court, arbitrator, administrative or governmental authority, bureau or agency. and
(xi) costs and expenses relating to the foregoing awarded in accordance with state law.
Nothing contained herein shall ever be construed so as to require User to assess,levy and
collect any tax to fund its obligations under this paragraph. Article XI Section 5 of the
Texas Constitution provides that a city is prohibited from creating a debt unless the city
levies and collects a sufficient tax to pay the interest on the debt and provides a sinking
fund.User has not and will not create a sinking fund or collect any tax to pay any obligation
created under this section.
5. Any notice to be given hereunder shall be given by(i) mailing the same by
United States registered or certified mail,postage prepaid and return receipt requested,or
(ii)delivery in person,or(iii)pre-paid delivery by a commercial delivery service(such as
UPS or FedEx)to the address herein below shown of the party being notified,as follows:
USER: City of Fort Worth
200 Texas Street
Fort Worth Texas 76102
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Attention: Assistant City Manager of PARD
With a copy to the City Attorney at the same
address
COMPANY: Texas Midstream Gas Services,L.L.C.
5601 East 11 Street.
Fort Worth Texas 76103
Or to such other address as the parties may from time to time specify in writing by notice
given in the manner provided above. Notice shall be deemed received (i) if given by US
Mail, on the receipt date shown on the return receipt card; (ii) if by delivery in person,
when actually received by the recipient; (iii) if, by commercial delivery service, on the
receipt date shown in the records of such delivery service.
6. This Agreement may not be assigned by User without the prior, written
consent of the Company. This Agreement shall apply to, inure to the benefit of, and be
binding upon and enforceable against the parties hereto and their respective successors,
assigns, heirs,executors,administrators and legal representatives.
7. This Agreement contains all the terms,promises,covenants,conditions and
representations made or entered into by and between Company and User and supersedes
all prior discussions and agreements, whether written or oral, between the parties with
respect to the use of the Encroachment Area and all other matters contained herein and
constitutes the sole and entire agreement between Company and User with respect thereto.
Except as expressly set forth herein,this Agreement shall not in any way alter, modify or
terminate any provision of the Easement.
8. This Agreement may not be modified or amended unless such amendment
is set forth in writing and executed by Company and User with the formalities hereof.
9. Nothing herein constitutes a waiver of the User's sovereign immunity.
EXECUTED this_,,_JI. day ofA ,2017.
COMPANY
Texas Midstream Gas is ,L.L.0
By:
John-Paul Gonzale
Manager-Land an Attorney-in-Fact
West Land Central
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AGREED:
CITY OF FORT'WORTH:
By: . /---
Susan Ala is
Assistant Cit Man er
Date: -� —Y-0
ATTEST:
By
Maty Kayser OF FD
City Secretary ,<`l
APPROVED AS TO FORM AND ;�~
LEGALITY:
.............
S•
By:
Jessica Sangs ng
Assistant Ci ttorney II
Form 1255 Certification No.
M&C:No: /V �y
Date:
CONTRACT COMPLIANCE MANAGER:
By signing, I acknowledge that I am the
person responsible
for the monitoring and administration of this
contract,including
ensuring all performance and reporting
requirements.
Cla nce Btqpft J
oject rvjanager
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ACKNOWLEDGEMENTS
STATE OF TEXAS §
COUNTY OF BEXAR §
This instrument was acknowledged before me on the O day of DAU ,
M-1 by J ohn-Paal �►�Yr4ldf G , the I�GI a- s MiV of Texas
Midstream Gas Service L.L.C.,on behalf of said entity. un c"
t"��"'• CHASITY RHANE
;,a,��•usa ll MARTIN 0)Wch.Al
Notary Public,State of Texas Notary Pub Ic. State of 6 l S
comm.Expires 01.27-2020 Printed Name: ,�GS 0� ay r%1 h'tubf,
512701
(SEAL)
STATE OF fe XA S §
COUNTY OF 1/4
R R.4 M f §
This instrument was acknowledged befo a me on the r day of 44tu—
Sby 11SQ ad1 4j,.,5)/7j S' the of City of Fort
Worth, on behalf of said entity.
c '
Not ry Public, State of
Printed Name: A44-iz11! S•
My Commission Expires:
y
�a -� 12
(S E A L)
"gel,
MARIA S SANCHEZ
My Ccfrmission Expires
�• December 19,2017
'f U
Barnett North GGS—157 to Brentwood CF-11.00
SCHEDULE 1
INSURANCE REQUIREMENTS
At any and all times during the term of this Agreement, User shall at its expense maintain,
with an insurance company or companies authorized to do business in the state where the
work is to be performed or through a self-insurance program, insurance coverage of the kind
and in the minimum amounts as follows:
(a) Statutory Workers' Compensation, including coverage for occupational disease, and
Employer's Liability Insurance with a minimum limit of $500,000 for each accident,
occurrence,or disease,covering all employees,agents or servants of User in compliance with
all applicable state and federal law. Such insurance shall include a "Borrowed
Servant/Alternate Employer Endorsement", providing for claims brought against Company
by any agent, servant or employee of User as a "borrowed servant"to be treated as a claim
against User.
(b) Commercial General Liability Insurance,on an "Occurrence"form unless otherwise
agreed to in writing by Company, including operations of Independent Contractors;
Contractual Liability to the fullest extent permitted by law,including Action Over/Indemnity
Buyback; Products and Completed Operations; Explosion, Collapse and Underground
Property Damage Hazards;Pollution Liability;and Underground Resources with a combined
single limit for Bodily Injury,Personal Injury and Property Damage liability in an amount no
less than$2,000,000 per occurrence.
(c) Automobile Liability Insurance covering all owned, non-owned and hired vehicles
with a combined single limit for Bodily Injury and Property Damage liability in an amount
not less than$1,000,000 per occurrence.
(d) Excess Umbrella Insurance in an amount not less than$5,000,000 per occurrence.
(e) User further agrees to provide additional amounts or kinds of insurance as may be
reasonably deemed necessary by Company from time to time in accordance with the ongoing
nature of operations and changes in exposure to loss, to the extent such insurance is
commercially available.
Prior to User's entry on the Easement, User shall obtain from its insurers a waiver of
subrogation against(i)the Company and(ii)any other party indentified by the Company on
all insurance policies required herein.
User shall name Company and any other party identified by Company as an additional insured
to the fullest extent permitted by law on all required insurance with the sole exception of
worker's compensation.
All required insurance shall be primary to any insurance of Company that may apply to such
occurrence, accident or claim and no "other insurance" provision shall be applicable to
Barnett Noah GGS—157 to Brentwood CF-11.00
Company and its affiliated,subsidiary and/or interrelated companies,by virtue of having been
named an additional insured under any policy of insurance.
All Such insurance shall be carried in a company or companies acceptable to Company and
shall be maintained in full force and effect during the term of this agreement,and shall not be
cancelled, altered, or amended without thirty (30) days prior written notice having been
furnished to Company.
User,in its agreements with its subcontractors,shall require subcontractors to obtain,maintain
and keep in force during the time in they are engaged in performing work hereunder,insurance
and to include insurance contractual provisions which are substantially similar in coverage
and scope and endorsements to that which Company requires of User herein.
Barnett North GGS—157 to Brentwood CF-11.00
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