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HomeMy WebLinkAboutContract 33034 CITY SECRETARY, , CONTRACT NO, AGREEMENT This Agreement is entered into as of the 22nd day of December, 2005, by Westfork Pipeline Company LLC (Westfork) and the City of Fort Worth (City), a home rule municipal corporation, acting by and through its duly authorized Assistant City Manager. WHEREAS, Westfork requested an easement along the western border of the Gateway Park from the City to install one 10" inch steel pipeline for the gathering of natural gas and one 4" service line; WHEREAS, the Fort Worth City Council approved of the granting of the easement on November 8, 2005 (M &C L-14146) and converted park land as required by state law; WHEREAS, the City has agreed to allow Westfork to one 10"inch and one 4" steel pipelines in the easement area in exchange for Westfork constructing the park improvements, a new parking lot, as shown Exhibit "A" in Gateway Park. NOW THEREFORE, in consideration of the mutual covenants and promises contained herein, Westfork and the City agree as follows: 1. City shall execute a License Agreement granting Westfork a license to enter into the Gateway Park and construct Parking Lot improvements ("Improvements") in the locations shown on Exhibit "A" and install the gas pipeline and service line. The specifications and dimensions of the Improvements are described in Exhibit "A" 2. Westfork shall construct the Improvements at its sole cost and expense and subject to the terms contained in the License Agreement. The License Agreement is attached as Exhibit "B". 3. Upon execution of this Agreement by all parties, City agrees to execute an easement to Westfork, the form of such easement is attached as Exhibit "C". Westfork understands and agrees that upon City verifying that the Improvements are constructed in accordance with Exhibit "A", the City shall file the easement in the Tarrant County Deed Records. EXECUTED in triplicate in Fort Worth, Tarrant County, Texas. WESTFORK PIPELINE COMPANY LLC. CITY OF FORT WORTH r � e Taliaferro, Lib Watson ice President of Operations Assistant City Manager Date: 1.:��.Z7�as Date: c2- Z' a,^1 1 APPROVE AS TO FORM Assistant ity Atty ATTEST: City Secretary NO M&C REQUIKED 2 •„� U �T LICENSE AGREEMENT THE STATE OF TEXAS § COUNTY OF TEXAS § THIS LICENSE AGREEMENT ("Agreement") is made and entered effective as of the December 22, 2005, by and between Westfork Pipeline Company LLC located at 2121 San Jacinto Street, Suitel 870,Dallas Texas 75201 ("Westfork") and the City of Fort Worth("City"). WITNESSETH: WHEREAS, City is the owner of that certain tract of land situated in the City of Fort Worth, Tarrant County, Texas, which is more particularly described in Exhibit "A" attached hereto and made a part hereof for all purposes (hereinafter referred to as the "Property"). WHEREAS, City has agreed to give Westfork a License for access, ingress and egress over, across and along a portion of the Property for the purpose of constructing Parking Lot improvements ("Improvements") described in Exhibit "B"for the benefit of the City of Fort Worth, such License to be in the locations described in Exhibit "C" attached hereto and made a part hereof for all subject to the limitations hereinafter contained. NOW, THEREFORE, for and in consideration of constructing such Improvements and other good and valuable consideration paid, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. GRANT OF LICENSE. City, as owner of the Property, does hereby grant unto the Westfork, its legal representatives and successors, a nonexclusive License (hereinafter referred to as the "License") for the temporary, non-exclusive right of access, ingress and egress for Westfork, its Construction Contractors and subcontractors along that portion of the Property for the purpose of constructing Parking Lot Improvements and for constructing and installing a ten inch gas pipe line and a four inch service line; subject, however, to the covenants herein set forth, all of which shall be covenants running with the Property. The License will expire in eighteen months or when the Improvements and pipelines are completed and installed. 2. NON-EXCLUSIVITY. The License and other rights and benefits herein created are not exclusive, and City hereby reserves the right to grant such other licenses or easements, rights, benefits, or privileges to such persons and for such purposes as City in its discretion may elect, so long as such purposes do not unreasonably interfere with the License Area and other rights and benefits granted herein. 3. INSURANCE. Westfork shall not enter the Property and commence construction of the Improvements until it has obtained the following insurance coverage and shown proof of such coverage to City: A. Commercial General Liability(CGL) Insurance Policy $1,000,000 each occurrence $2,000,000 aggregate limit B. Automobile Liability Insurance Policy $1,000,000 each accident on a combined single limit basis or $250,000 Property Damage $500,000 Bodily Injury per person per occurrence A commercial business policy shall provide coverage on "Any Auto", defined as autos owned, hired and non-owned. C. Workers'Compensation Insurance Policy Statutory limits Employer's liability $100,000 Each accident/occurrence $100,000 Disease-per each employee $500,000 Disease-policy limit This coverage may be written as follows: Workers' Compensation and Employers' Liability coverage with limits consistent with statutory benefits outlined in the Texas workers' Compensation Act (Art. 8308 — 1.01 et seq. Tex. Rev. Civ. Stat.) and minimum policy limits for Employers' Liability of$100,000 each accident/occurrence, $500,000 bodily injury disease policy limit and $100,000 per disease per employee D. POLICY REQUIREMENTS i. The City of Fort Worth, its Officers, Employees and Volunteers shall be named as an Additional Insured. Exception... the additional insured status does not apply to Workers' Compensation policies. ii. Forty-five (45) days notice of cancellation or non-renewal. The following clause is required: "This insurance shall not be canceled, limited in scope or coverage, cancelled or non-renewed, until after forty-five (45) days prior written notice has been given to the City of Fort Worth." iii. Wavier of rights of recovery(subrogation) in favor of the City of Fort Worth. iv. The insurers for all policies must be licensed/approved to do business in the State of Texas and have a minimum rating of A: VII in the current A. M. Best Key Rating Guide or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. V. The City, at its sole discretion, reserves the right to review the insurance requirements and to make reasonable adjustments to insurance coverages and their limits when deemed necessary and prudent by the City based upon changes in statutory law, court decision or the claims history of the industry 2 J V n as well as of the contracting party to the City of Fort Worth. The City shall be required to provide prior notice of ninety(days). vi. The City shall be entitled, upon request and without expense, to receive copies of policies and endorsements thereto and may make any reasonable requests for deletion or revision or modifications of particular policy terms, conditions, limitations, or exclusions except where policy provisions are established by law or regulations binding upon either of party or the underwriter on any such policies. 4. INTERFERENCE. The License granted shall be used and enjoyed in such a manner as to cause the least possible interference with the conduct and operation of the business at any time existing on the Property, or any portion thereof. 5. INDEMNITY. WESTFORK AGREES TO DEFEND, INDEMNIFY AND HOLD THE CITY, ITS OFFICERS, AGENTS SERVANTS AND EMPLOYEES, HARMLESS AGAINST ANY AND ALL CLAIMS, LAWSUITS, ACTIONS, COSTS AND EXPENSES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO OWNER'S BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY, INCLUDING DEATH, THAT MAY RELATE TO, ARISE OUT OF OR BE OCCASIONED BY (i)WESTFORK'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS LICENSE OR THE PERFORMANCE OF THIS AGREEMENT; EXCEPT THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL NOT APPLY 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 WESTFORK AND CITY, RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. 6. NO HAZARDOUS OR TOXIC SUBSTANCES. Under no circumstances during the term of this License shall Westfork use or cause to be used or,any hazardous or toxic substances or materials, or store or dispose of any such substances or materials on the Property. 7. Liens. Westfork will not cause or permit any mechanics' liens or other liens to be filed against the Property by reason of any work, labor, services, or materials supplied or claimed to have been supplied to Licensee. If such a mechanic's lien or materialman's lien is recorded against the Property, Westfork must either cause it to be removed or, if Westfork in good faith wishes to contest the lien, take timely action to do so, at Westfork's sole expense. If Westfork contests the lien, Westfork will indemnify City and hold it harmless from all liability for damages occasioned by the lien or the lien contest 3 �HIC-111,AU MIND CITY M11-11M;l pff FT. ����. and will, in the event of a judgment of foreclosure on the lien, cause the lien to be discharged and removed before the judgment is executed. 8. TERM. The term of this License agreement shall be eighteen months from the date of execution. 9. GOVERNING LAW. This Agreement shall be construed in accordance and governed by the laws of the State of Texas. 10. CONTRACT CONSTRUCTION. The parties,acknowledge that each party and, if it so chooses, its counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party must not be employed in the interpretation of this Agreement or any amendments or exhibits hereto. 11. NO THIRD-PARTY BENEFICIARIES. This Agreement shall inure only to the benefit of the parties hereto and third persons not privy hereto shall not, in any form or manner, be considered a third party beneficiary of this Agreement. Each party hereto shall be solely responsible for the fulfillment of its own contracts or commitments. 12. SEVERABILITY. The provisions of this Agreement are severable, and if any word, phrase, clause, sentence, paragraph, section or other part of this Agreement or the application thereof to any person or circumstance shall ever be held by any court of competent jurisdiction to be invalid or unconstitutional for any reason, the remainder of this Agreement and the application of such word, phrase, clause, sentence, paragraph, section, or other part of this Agreement to other persons or circumstances shall not be affected thereby and this Agreement shall be construed as if such invalid or unconstitutional portion had never been contained therein. 13. VENUE AND JURISDICTION. If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas—Fort Worth Division. 14. ASSIGNMENT. Neither party hereto shall assign, sublet or transfer its interest herein without prior written consent of the other party, and any attempted assignment, sublicense or transfer of all or any part hereof without such prior written consent shall be void. 15. INDEPENDENT CONTRACTOR. Westfork shall perform all work and services hereunder as an independent contractor, and not as an officer, agent, servant or employee of the City. Westfork shall have exclusive control of; and the exclusive right to control the details of the work performed hereunder, and all persons performing same, and shall be solely responsible for the acts and omissions of its officers, agents, employees and 4 subconsultants (or subcontractors). Nothing herein shall be construed as creating a partnership or joint venture between the City and Westfork, its officers, agents, employees and subconsultants (or subcontractors), and doctrine of respondent superior has no application as between the City and Westfork.. 16. COMPLIANCE WITH LAW. Westfork, its officers, agents, employees, contractors and subcontractors, shall abide by and comply with all laws, federal, state and local, including the Charter and all ordinances, rules and regulations of the City. It is agreed and understood that, if City calls the attention of Westfork to any such violations on the part of Westfork, its officers, agents, employees, contractors or subcontractors, then Westfork shall immediately desist from and correct such violation. 17. GOVERNMENTAL POWERS. It is understood that by execution of this Agreement, the City does not waive or surrender any of it governmental powers. 18. COUNTERPARTS. This Agreement may be executed in several counterparts, all of which when taken together shall constitute one and the same agreement. IN WITNESS WHEREOF, the parties have executed this Agreement to be effective as of the last date this agreement is signed by all parties in Fort Worth,Tarrant County, Texas. WESTFORK PIPELINE COMPANY LLC CITY OF FORT WORTH Mike Taliaferro, Vice President Assistant City Manager Of Operations APPROVED AS TO FORM S Assistant City Attorney ATTEST: City Secretary 5 ACKNOWLEDGMENT STATE OF TEXAS § COUNTY OF TARRANT § This instrument was acknowledged before me on , 2005, by Mike Taliaferro,Vice President of Operations for Westfork Pipeline Company LLC. On behalf of Westfork Pipeline Company LLC. Notary Public, State of Texas ACKNOWLEDGMENT STATE OF TEXAS § COUNTY OF TARRANT § This instrument was acknowledged before me on December 22, 2005, by Libby Watson, Assistant City Manager of the City of Fort Worth, on behalf of the City of Fort Worth Notary Public, State of Texas 6 e� kJo -�- A CONVERSION OF 0.543 ACRES OF GATEWAY PARK FOR USE AS A PIPELINE TO TRANSPORT NATURAL GAS LIU xx yn t �!"�'^.wT�01.3��.�I.rdd„.!►�O t iN�� .. G.-..e, d t� ..�...� �.�'.Su�� _.., '� �t aM?'`i��`-- =' 'a7w X - •..��x`( `. �x * r' .�M �1. ,tom ,_�(� un "_'' �i�t4� •`" �k �., �� � 4� Ad`�+�. �r r' oW11ir�i�SS' r� P �` , Viii•: > 4 Proposed.20 Foot Wide Gas Pipeline Easement Y `n 1, t PE r ; N AN 0- 0 t 4 ti >��� �„ ��`, �, �" a'tewa• Par �° rT= ocf�Dog�Park°' 1and iIIs�yNatur r d�i�� , _. � `� .. ..�5�ra f Jg}LV QtYQ2A�reaA: , '' 4` EXHIBIT A 20.00 Foot Wide Pipeline Easement Being 23,636 square feet of land located in the J. Lynch Survey,Abstract No. 942 and the A.C. Warren Survey,Abstract No. 1686,Tarrant County,Texas, being a portion of the tract of land described in the deed to the R.C. Bowen, recorded in Volume 1372, Page 483, Deed Records, Tarrant County,Texas and a portion of Gateway Park Addition, an addition to the City of Fort Worth,Tarrant County, Texas according to the plat recorded in Cabinet A, Slides 3 and 4, Plat Records,Tarrant County, Texas. Said 23,636 square feet of land being more particularly described as follows: BEGINNING at a point lying in the most northerly west line of Block 4, in said Gateway Park Addition,from which an 1/2"iron rod stamped"RPLS 1674"found at the southeast comer of a tract of land described in the deed to J.W.Simmons, R.Schindler,Jr.and William Dyer, recorded in Volume 5970, Page 341, Deed Records,Tarrant County, Texas bears S00°21'31"E 367.91 feet; THENCE N00021'31"W, along said west line,a distance of 20.00 feet to a point; THENCE N89°2644"E, a distance of 116.86 feet to a point; THENCE N20"32'39"E, at 823.07 feet passing the north line of Block 1, in said Gateway Park Addition, in all a distance of 827.50 feet to a point; THENCE N19°26'22"E, at 59.65 feet passing the south line of said Bowen tract, in all a distance of 219.76 feet to a point; THENCE N88058'04"E, a distance of 21.35 feet to a point; THENCE S1 9026'22"W,at 160.11 feet passing said south line of said Bowen tract,at 224.16 feet passing said north line of said Block 1, from which a 3/4"iron rod found bears N88°58'04"E 922.87 feet, in all a distance of 227.42 feet to a point; THENCE S20°32'39"W, a distance of 841.42 feet to a point; THENCE S89026'44"W,a distance of 130.65 feet to the point of beginning, containing 0.543 acres of land. The bearings recited hereon are oriented to NAD83 Texas North Central Zone. 20.00 Foot Wide Temporary Construction Easement The 20.00 Foot wide temporary construction easement is to be located 20.00 feet North and West of the above described North and West lines of the 20.00 Foot Wide Pipeline Easement. M UNDERGROUND PIPELINE EASEMENT AGREEMENT THE STATE OF TEXAS § COUNTY OF TARRANT § This Underground Pipeline Easement Agreement (this Agreement") is entered into between the City of Fort Worth, Texas, a municipal corporation of Tarrant County, Texas ("GRANTOR") and Westfork Pipeline Company LLC (GRANTEE"). For and in consideration of GRANTEE constructing improvements on Grantor's property and other good and valuable considerations in hand paid, the receipt of which and sufficiency of which is hereby acknowledged, and in consideration of the covenants contained herein, GRANTOR and GRANTEE agree as follows: 1. Subject to the terms of this Agreement, GRANTOR hereby grants and conveys to GRANTEE an easement (the "Easement") over, under and across the property described in Exhibit "A" and `B" attached hereto (the "Easement Tract"). This grant and conveyance is made subject to all matters of record affecting the Easement Tract. 2. The term of this Easement shall be for twenty(20) years. 3. The Easement shall only be used for the purpose of constructing, maintaining, operating, repairing, altering, replacing, and removing a ten inch gas pipeline and a four inch service line and appurtenant facilities for the transportation of natural gas across, under and upon the Easement Tract. 4. GRANTOR reserves and retains the right to grant other rights and easements across, over or under the Easement Tract to such other persons as GRANTOR deems proper, provided such other grants do not interfere with the use of the Easement by GRANTEE for the purpose set forth herein. 5. GRANTEE shall have all of the rights and benefits necessary or convenient for the full enjoyment or use of the right herein granted, including, but without limiting the same to the free right of ingress to and egress over and across said lands to and from said right-of-- way and easement and the right from time to time to cut, undergrowth and other obstructions on the Easement Tract, that may injure, endanger or interfere with the use of said pipeline. Grantee shall also have the ability to remove any trees in the Easement Tract and surrounding areas with the written approval of Grantor. The GRANTEE shall have the right to assign this grant in whole or in part with the written consent of GRANTOR. 6. GRANTOR hereby expressly agrees that in the event the route of the pipeline to be constructed hereunder should cross any roads, railroads, creeks, or other waterways located on the above-described land or other places requiring extra work space, then GRANTEE shall have the right and temporary access to additional working space which may be necessary for construction and GRANTEE agrees to pay GRANTOR for any and all damages which GRANTOR suffers by reason of GRANTEE'S use of said additional work space. 7. This easement is granted upon the conditions that GRANTEE's Facility to be constructed shall be maintained and operated by GRANTEE at no expense to GRANTOR and GRANTOR shall not be responsible for any costs of construction, reconstruction, operation, maintenance or removal of GRANTEE's Facility. 8. GRANTOR shall not be liable to GRANTEE for any damage to said easement or GRANTEE's Facility or other contents thereof, except when caused by the willful misconduct of GRANTOR, its agents, servants or employees. It is understood that it is not the intention of the parties hereto to create liability for the benefit of third parties but that this agreement shall be solely for the benefit of the parties hereto. 9. GRANTEE shall diligently repair any damage to improvements on the Easement Tract or surrounding property and shall restore the surface of the Easement Tract and surrounding property from damage resulting from GRANTEE's use of the Easement Tract. 10. GRANTEE shall, at its own cost and expense comply with all applicable laws, including but not limited to exiting zoning ordinances, governmental rules and regulations enacted or promulgated by any governmental authority and shall promptly execute and fulfill all orders and requirements imposed by such governmental authorities for the correction, prevention and abatement of nuisances in or upon or connected with said premises because of GRANTEE's use thereof. 11. The GRANTEE agrees to bury all pipes at a minimum of 36 inches, however if the pipeline is underneath a road or a water, sewer, or drainage pipe, the natural gas pipeline shall be buried at a minimum of 60 inches. 12. It is agreed that this grant covers all the agreements between the parties and that no representation or statements, verbal or written, have been made modifying, adding to, or changing the terms of this Agreement. 13. The GRANTEE is the owner and operator of the natural gas pipeline that has been installed within the easement, and as such is responsible for the proper operation and maintenance of the pipeline. In this regard, GRANTEE covenants and agrees to, and by these presents does hereby fully indemnify, hold harmless and defend the GRANTOR, its officers, agents and employees, from and against any and all claims, suits or causes of action of any nature whatsoever, whether real or asserted, brought for or on account of any injuries or damages to persons or property, including death, resulting from, or in any way connected with, the grant of the easement or operation and maintenance of the k natural gas pipeline, whether or not caused, in part, by the negligence of officers, agents, or employees, of the GRANTOR; provided however, that the Grantee shall have no liability or obligation to indemnify, hold harmless or defend with respect to any injury or damage to persons or property resulting from the sole negligence of officers, agents or employees of the GRANTOR. TO HAVE AND TO HOLD unto GRANTEE, its successors and assigns, so long as the right and easement herein granted, or any one of them shall be used by, or useful to, GRANTEE for the purpose herein granted, with ingress to and egress from the premises for the purpose of constructing, inspecting, repairing, maintaining, replacing and removing the property of GRANTEE herein described; and the undersigned hereby bind themselves, their heirs, executors and administrators (and successors and assigns) to warrant and forever defend all and singular said premises unto the GRANTEE, its successors and assigns, against every person whomever lawfully claiming or to claim the same or any part thereof. Executed to be effective as of the date of the last signature of GRANTOR and GRANTEE. GRANTOR Approved as to Form and Legality City of Fort Worth By: Libby Watson, Assistant City Manager Assistant City Attorney Accepted on the Terms and Conditions Contained Herein: Westfork Pipeline Company LLC 2121 San Jacinto Street Suite 1870 Dallas, Texas 79701 By: Mike Taliaferro, Vice President of Operations AFTER RECORDING, PLEASE SEND TO WESTFORK PIPELINE LLC 2121 SAN JACINTO SUITE 1870 DALLAS, TEXAS 75201 ACKNOWLEDGMENT THE STATE OF TEXAS § COUNTY OF TARRANT § This instrument was acknowledged before me on this day of , 2005, by Libby Watson, Assistant City Manager of the City of Fort Worth, Texas, a municipal corporation, on behalf of the City of Fort Worth, Texas. Notary Public, State of Texas ACKNOWLEDGMENT THE STATE OF TEXAS § COUNTY OF TARRANT § This instrument was acknowledged before me on this day of , 2005, by Mike Taliaferro, Vice President of Operations for Westfork Pipeline Company LLC on behalf of Westfork Pipeline Company LLC. 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