HomeMy WebLinkAboutContract 37621 (2)a�
CITY SECREia�fi�'
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PIPELINE LICENSE AGREEMENT
Rolling Hills
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 Charles
Daniels, 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. Company wishes to construct atwenty-four inch (24") nominal diameter pipeline
for an approximate total distance of 2,260.72 feet within a twenty (20) foot width right of way
for the transportation of natural gas through a public park known as Rolling Hills Park. Because
Company is not a public utility, as that term is used in the City Charter and City Code, and
because Company will not be providing services to end user customers in the City, Company is
not required to obtain a franchise from the City, but is required to obtain the City's consent
pursuant to a license agreement that sets forth the terms and conditions under which Company
may use the public park.
B. The City has reviewed Company's request and agrees to grant Company a license
to use a portion of the subsurface of Rolling Hills Park 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 question.
Agreement shall mean the authorization issued to Company hereunder to use a portion of
a public park known as Rolling Hills Park 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
O��iCiAL RECORD
Texas Midstream Gas Services, L.L.C. Pipeline License Agreement -Rolling Hills Park
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CITY SECRETARY
Fl: !A►ORiii, TX
other directly related uses of Rolling Hills Park, pursuant to and in accordance
with this Agreement.
Company shall mean Texas Midstream Gas Services, L.L.C., an Oklahoma limited
liability company, only and shall not include any Affiliate or third party.
City shall mean the area within the corporate limits of the City of Fort Worth, Texas and
the governing body of the City of Fort Worth, Texas.
Commission shall mean the Railroad Commission of the State of Texas or other
authority succeeding to the regulatory powers of the Commission.
Customer shall mean any Person located, in whole or in part, within the City.
Director shall mean the Director of the City of Fort Worth's Parks and Community
Services Department (PACSD) or authorized representative.
Gas shall mean gaseous fuels such as natural gas including 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 join venture, a
business trust or any other form or business entity or association.
Pipeline shall mean that certain twenty-four (24) inch nominal diameter steel pipeline for
an approximate total distance of 2,260.72 feet and other facilities approved by the
Director that are installed by Company in Rolling Hills Park 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.
Rolling Hills Park shall mean only that portion of the dedicated public park identified in
Exhibit "A" of this Agreement, attached hereto and hereby made a part of this
Agreement for all purposes.
2. GRANT OF RIGHTS.
2.1. General Use of Rolling Hills Park 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 over, under, along and across Rolling Hills Park and (ii)
transport Gas through the portions of its Pipeline in, over, under, along and across
Rolling Hills Park as depicted in Exhibit "A". Company hereby acknowledges and
Texas Midstream Gas Services, L.L.C. Pipeline License Agreement -Rolling Hills Park
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i
agrees that this Agreement allows only the transportation of Gas through the City and
does not allow Company to distribute, sell or otherwise provide Gas to any Customer.
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 Rolling Hills Park 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 same license that is solely within
the discretion of the City, if a dispute arises as to priority of the use of Rolling Hills Park,
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 Rolling Hills Park
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 Rolling Hills Park, 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 Rolling Hills Park, 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 Rolling Hills Park.
The bonds shall guarantee (i) satisfactory compliance by Company with all requirements,
terms and conditions of this Agreement (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
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Rolling Hills Park. 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 Rolling Hills Park for the Term of this Agreement the sum of $101,732.40
("License Fee"). Company hereby acknowledges and agrees that the amount of this
License Fee constitutes just and reasonable compensation to the City for Company's use
of Rolling Hills Park.
4.2. tither Payinents.
In addition to the License Fee, Company shall pay the City all sums which may be due
for property taxes, license fees, permit fees, or other taxes, charges or fees that the City
may from time to time impose on all other similarly situated entities within the City.
Company shall reimburse the City for publication of this Agreement as required by the
City's Charter.
4.2.1 For the removal of nine (9) trees, the Company shall pay the City the
amount %J $733808.17. The assessed amount shall be utilized solely for
the purpose of improvements at the Rolling Hills Park Tree Farm.
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.
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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.
Company is obligated to construct, operate and maintain the Pipeline 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, Section 192 and as adopted and modified by the
Texas Railroad Commission and in this connection Company shall be subject to, governed by
and shall comply with all applicable 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 ROLLING HILLS PARK.
6.1 Construction Schedule
Company shall meet with appropriate City staff for the purposes of a Pipeline pre -
construction meeting at least three (3) business days prior to initiating construction. The
pre -construction meeting shall include, but not be limited to, information regarding the
restoration of areas disturbed. Construction of the Pipeline shall commence within 30
days of execution of this Agreement and be completed within 45 working days of
commencement of the work.
6.2. Compliance with Laws, Ordinances, Rules and Regulations.
The City has the right to control and regulate the use of Rolling Hills Park and
other dedicated parks, public places and other City -owned property and the spaces above
and beneath them. Company shall comply with all applicable laws, ordinances, rules and
regulations, including, but not limited to City ordinances, rules and policies related to
construction permits, construction bonds, permissible hours of construction, operations
during peak traffic hours, barricading requirements and any other construction rules or
regulations that may be promulgated from time to time.
6.3. No Undue Burden.
The Pipeline shall not be erected, installed, constructed, repaired, replaced or
maintained in any manner that places an undue burden on the present or future use of
Rolling Hills Park by the City and the public. If the City reasonably determines that the
Pipeline does place an undue burden on any portion of Rolling Hills Park, 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.
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6.4. Minimal Interference.
After the initial construction, 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 Rolling Hills Park, 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 Rolling Hills Park 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 Rolling Hi11s
Park and shall comply with conditions as set forth below:
6.4.1 Company acknowledges this Agreement is subject to the terms and
conditions of a deed between the City and the National Parks Service, as executed
by the City on April 2, 1971, and Company agrees the Pipeline operations across
Rolling Hills Park will be operated consistent with those terms, agreeing not to
produce air pollution, contaminating materials, fumes, odors, or ground waste
resulting in an unhealthy or unpleasant environment within the boundaries of the
NIMH Clinical Research Center grounds, Fort Worth, Texas,
6.4.2. The areas where surface excavation shall be permitted shall be those areas
identified with temporary work space as open trench areas on the attached Exhibit
"A". The Company shall notify the PACSD in the event of any changes.
6.4.3. All open trenches and work areas are to be fenced with orange vinyl
fencing. The fencing shall be installed along the perimeter boundaries of the
easement and temporary work space as depicted on attached Exhibit "A". Only
the surface area of Rolling Hills Park for the trenched portion of the site shall be
excavated. The area defined as a temporary construction area is to be used
workspace for equipment, storage of pipe and as a route of ingress and egress for
vehicles. (see attached Exhibit A) The orange vinyl fencing shall remain in place
until such time the site is restored as outlined in this Agreement and when such
restoration made by the Company has been inspected and accepted by the
Director. For all open trenches, for Rolling Hill Park, the pipe shall be buried a
minimum of four (4) feet from the top of the pipeline to the surface elevation.
The City shall have the right, but not the obligation to have an inspector, present
to verify the buried depth of the pipe. All boring occurring within Rolling Hills
Park shall be at a minimum of ten (10) feet.
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6.4.4. Company shall specify work areas prior to construction and survey and
stake said areas, notating the centerline and boundaries of the work areas as
agreed upon at the pre -construction meeting held in accordance with section 6.1.
6.4.5. All access to work areas and bore/staging sites shall be limited to North
boundary of Rolling Hills Park and the entrance gate off Joe B. Rushing Road.
All equipment shall remain on the travel access drives identified and within the
temporary construction areas as identified on attached Exhibit "A". A temporary
and turn around shall be agreed upon and staked during the preconstruction
meeting. Travel outside of the designated areas shall not be permitted. On the
North access, before Company cuts any existing fence crossing the pipeline right
of way, the fence shall be properly supported on either side of the contemplated
opening by suitable "H" braces to prevent the remainder of the fence from
sagging. Company shall promptly install a gate which shall remain locked at all
times of non-use. Company shall provide manned traffic access to the site during
times of use. Upon completion of construction, all fences cut or disturbed by
construction shall be replaced in as good or better condition that existed before.
6.4.6. An earthen berm or similar method shall be constructed for all travel ways
that cross existing irrigation lines. All existing irrigation lines shall be clearly
marked and identified prior to construction. In the event irrigation line/head
damage occurs it shall be repaired by the Company within twenty four (24) hours
of notice of the damage and any resulting irrigation pipe/wire ditch shall remain
open until said repairs are approved by the Director. Testing of all the lines will
be required prior to completion of work. A 120 day warranty shall be provided by
the Company.
6.4.7 Trenches shall be compacted to 90% Standard Proctor Density (S.S.T.M.
D698). During initial construction, the trenching shall be double -ditching one in
such a manner so that the top twelve inches (12") of soil will be separated from
the balance of the dirt removed in making the ditch or trench for installation of the
pipeline. In backfilling, after installation of the line, the topsoil first removed
shall be used as cover soil in such a manner so as to result in it being returned to
the top of the ditch as topsoil.
6.4.8 Company will replant, reseed and water each disturbed area as many times
as necessary until a stand of grass comparable to that which was originally in
place before the disturbance is root established and approved and accepted by
PACSD. Restoration of surface areas disturbed shall be seeded with a
combination pure live seed of Native Trail Mix (native grasses and wildflowers);
however, modification of seeding material may be approved by PACSD.
Company shall stockpile the excavated soil from the pipeline construction and
shall place said soil in the areas to be reseeded. No importing of outside soil shall
be allowed nor shall fertilizers be permitted.
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6.4.9 Orange mesh fencing shall be used along the perimeter of the nursery beds
and travel access areas to prevent equipment and people from damaging plant
materials.
6AA0 Protection of trees and nursery plot areas shall be provided for all
surrounding trees prior to and during the construction. Orange safety fencing
shall be placed on the outside drip line of any trees affected to protect such trees
from any damages occurring during renovation.
6.5. "As -Built" Plans and Maps.
Company, at Company's sole cost and expense, shall provide the City with as -
built plans of all portions of the Pipeline located in the City and the City's extraterritorial
jurisdiction and maps showing such Pipeline within ninety (90) calendar days following
the completion of such Pipeline. Company shall supply the textual documentation of
such as -built plans and maps in computer format as requested in writing by the City and
shall otherwise fully cooperate with the City in ensuring that the Pipeline is accurately
reflected in the City's mapping system.
6.6. 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,
Section 192 and as adopted and modified by the Texas Railroad Commission. The
Pipeline shall not exceed a twenty-four (24) inch nominal diameter and a right of way
width of no more than 20 feet throughout the entire length of Rolling Hills Park.
6.8. Marking of Pipeline.
The Pipeline shall be marked 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, Section 192 and as adopted and modified by the Texas Railroad
Commission, which shall show conspicuously Company's name and a toll -free telephone
number of Company that a Person may call for assistance.
6.9. Surface Excavation and Additional Fees.
The City shall have the right to coordinate all excavation work in Rolling Hi11s
Park in a manner that is consistent with and convenient for the implementation of the
City's program for public dedicated open space. In order to preserve the integrity of
Rolling Hills Park, Company shall not cut, excavate or otherwise breach or damage the
surface of Rolling Hills Park
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6.10. 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 Rolling Hills Park all or any portion of its Pipeline due to
street or other public excavation, construction, repair, grading, re -grading 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 PACSD in writing and the City will work in
good faith with Company to negotiate a workable time frame.
6.11. Restoration of Rolling Hills Park, 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 Rolling Hills Park, Public Rights of Way, or
other City -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. Unless otherwise specified in this Agreement, 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.
Emergencies.
6.12.1. Work by the City.
For purposes of this Section 6.12.1, a public emergency shall be any
condition which, in the opinion of the officials specified herein, poses an
immediate threat to life, health or property and is caused by any natural or man-
made disaster, including, but not limited to, storms, floods, fires, accidents,
explosion, water main breaks and hazardous materials spills. In the event of a
public emergency, the City shall have the right to take whatever action is deemed
appropriate by the City Manager, Mayor, Police Chief or Fire Chief, or their
authorized representatives, including, but not limited to, action that may result in
damage to the Pipeline, and Company hereby (i) releases the City, its officers,
agents, servants, employees and subcontractors from liability or responsibility for
any Damages, as defined in Section 7.1, that may occur to the Pipeline or that
Company may otherwise incur as a result of such a response, and (ii) agrees that
Company, at Company's sole cost and expense, shall be responsible for the repair,
Texas Midstream Gas Services, L.L.C. Pipeline License Agreement -Rolling Hills Park
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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.
6.12.2. Work by or on Behalf of Company.
In the event of an emergency directly that involves that portion of the
Pipeline located in Rolling Hills Park 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. After the emergency has
passed, Company shall apply for and obtain a construction permit from the
director of the City's Department of Parlcs and Community Services and
otherwise fully comply with the requirements of this Agreement.
6.13. Removal of Pipeline.
Upon the revocation, termination or expiration without extension or renewal of
this Agreement, Company's right to use Rolling Hills Park under this Agreement shall
cease and Company shall immediately discontinue the transportation of Gas in or through
Rolling Hills Parlc. 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 Rolling Hills Park (or cap and leave the Pipeline in place, if
consented to by the City), in accordance with applicable laws and regulations. If
Company has not removed all of the Pipeline in Rolling Hills Park, (or capped the
Pipeline and left in place, 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 Rolling Hills Park abandoned and, at the City's sole option,
(i) take possession of and title to such property or (ii) take any and all legal action
necessary to compel Company to remove such property; provided, however, that
Company may not abandon its facilities or discontinue its services within the City
without the approval of the Commission or successor agency or any other regulatory
authority with such jurisdiction.
Within six (6) months following revocation, termination or expiration of this
Agreement and in accordance with Section 6.11 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 and leaving in place) 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
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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 (1) 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 LIABILITY AND RESPONSIBILITY
FOR PROPERTY LOSS, PROPERTY DAMAGE AND/OR PERSONAL INJURY OF
ANY KIND, INCL UDING 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 ROLLING HILLS PARK, 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, 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 LIENARISING OUT
OF WORK, LABOR, MATERIALS OR SUPPLIES PROVIDED OR SUPPLIED TO
COMPANY, ITS CONTRACTORS OR SUBCONTRACTORS; OR (Ii9 COMPANY'S
FAILURE TO COMPLY WITH ANY FEDERAL) STATE OR LOCAL LAW,
ORDINANCE, RULE OR REGULATION, EXCEPT TO THE EXTENT DIRECTLY
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CAUSED BY THE NEGLIGENT ACT(S) OR 01VII33,1ON(3) OR INTENTIONAL
MISCOND UCT OF THE CITY.
7.3 Assumption of Risk and Environmental Remediation,
COMPANY HEREBY REPRESENTS TO THE CITY THAT (i) COMPANY
HAS FULLY INSPECTED ROLLING HILLS PARK; (ii) COMPANY IS SATISFIED
WITH THE CONDITION OF ROLLING HILLS PARK, 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 ROLLING
HILLS PARK.
ALTHOUGH, TO THE BEST OF THE CITY'S KNOWLEDGE, ROLLING
HILLS PARK COMPLIES 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 IN PART 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
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,
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maintenance, existence or location of Rolling Hills Park and the construction, installation,
operation, maintenance or condition of the Pipeline, including the transportation of Gas
through the Pipeline. The required insurance can be met by a combination of self-
insurance, primary and excess policies.
8.1. Primary Liability Insurance Coverage.
• Commercial General Liability:
$15000,000 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
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
Texas Midstream Gas Services, L.L.C. Pipeline License Agreement -Rolling Hills Park
Page 13 of 25
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 affected to limit or in any way affect Company's liability to the City or other
persons as provided by this Agreement or law.
9. DEFAULTS.
The occurrence at any time during the term of this Agreement of one or more of the
following events shall constitute an "Event of Default' under this Agreement:
9.1. Failure to Pay License Fee.
An Event of Default shall occur if Company fails to pay any License Fee on or
before the respective due date.
9.2. Breach.
An Event of Default shall occur if Company materially breaches or violates any
of the terms, covenants, representations or warranties set forth in this Agreement or fails
to perform any obligation required by this Agreement.
9.3. 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.
Texas Midstream Gas Services, L.L.C. Pipeline License Agreement -Rolling Hills Park
Page 14 of 25
9.4. Violations of the Law.
An Event of Default shall occur if Company violates any existing or future federal,
state, or local laws, 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:
Termination of Agreement.
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 Rolling Hills Park 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
Texas Midstream Gas Services, L.L.C. Pipeline License Agreement -Rolling Hills Park
Page 15 of 25
without such approval is prohibited at the time by applicable federal or state law
or regulation.
10.2.2. Legal Action Against Company.
Upon the occurrence of an Uncured Default, the City may commence
against Company an action at law for monetary damages or in equity, for
injunctive relief or specific performance of any of the provisions of this
Agreement which, as a matter of equity, are specifically enforceable.
11. PROVISION OF INFORMATION.
11.1. Filings with the Commission.
Company shall provide copies to the City of all documents which Company files
with or sends to the Commission concerning or related to its transportation of Gas
through or other operations in the City, including, but not limited to, filings related to (i)
tariffs; (ii) rules, regulations and policies requested, under consideration or approved by
the Commission; and (ill) 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.
Lawsuits.
Company shall provide the City with copies of all pleadings in all lawsuits to
Ouch Company is a party and that pertain to the granting of this Agreement and/or the
transportation of Gas through the City within thirty (30) days of Company's receipt of
same.
12. COMPANY AS INDEPENDENT CONTRACTOR.
It is expressly understood and agreed that Company shall operate as an independent
contractor as to all rights and privileges granted by this Agreement, and not as an agent,
representative or employee of the City. Company shall have the exclusive right to control the
details of its business and other operations necessary or appurtenant to the transportation of Gas in
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.
Texas Midstream Gas Services, L.L.C. Pipeline License Agreement -Rolling Hills Park
Page 16 of 25
13. ASSIGNMENT PROHIBITED.
Company may not assign or otherwise transfer any of its rights or obligations under this
Agreement unless specifically authorized in writing by the City, which authorization shall not be
unreasonably withheld; provided, however, that Company may malice 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 THE CITY:
City of Fort Worth
Parks and Community Services Director
1000 Throckmorton
Fort Worth, TX 76102
To COMPANY:
Texas Midstream Gas Services, L.L.0
Ms. Coleen Magness
Director, Right of Way Coordination
6100 N. Western Avenue
Oklahoma City, OK 73118
Texas Midstream Gas Services, L.L.C. Pipeline License Agreement -Rolling Hills Park
Page 17 of 25
with a copy to:
City of Fort Worth
Department of Law
Attn: Attorney for Parks and Community Services
1000 Throckmorton
Fort Worth, TX 76102
15. NON-DISCRIMINATION COVENANT.
with a copy to.
C T Corporation System
350 North St. Paul Street
Dallas, TX 75201
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 Rolling Hills Park, 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
Rolling Hills Park.
19. SEVERABILITY.
If any provision of this Agreement is held to be invalid, illegal or unenforceable by a final
order entered by a court of competent jurisdiction, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired. For purposes of this Agreement,
a court order shall be final only to the extent that all available legal rights and remedies pertaining to
such order, including, without limitation all available appeals, have been exhausted. In such an
Texas Midstream Gas Services, L.L.C. Pipeline License Agreement -Rolling Hills Park
Page 18 of 25
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.
hi 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. HEADINGS NOT CONTROLLING.
Headings and titles, other than those captions in Section 1, that are used in this Agreement
are for reference purposes only and shall not be deemed a part of this Agreement.
22. ENTIRETY OF AGREEMENT.
This Agreement, including the schedule of exhibits attached hereto and any documents
incorporated herein by reference, contains the entire understanding and agreement between the City
and Company as to the matters contained herein. Any prior or contemporaneous oral or written
agreement is hereby declared null and void to the extent in conflict with the terms and conditions of
this Agreement. This Agreement shall not be amended unless agreed to in writing by both parties
and approved by the City Council of the City.
EXECUTED as of the later date below:
CITY OF FORT WORTH:
By:
Assistant City Manager
Date: 9- �9- 08
TEXAS MIDSTREAM GAS
SERVICES,L.L.C.:
Texas Midstream Gas Services, L.L.C. Pipeline License Agreement -Rolling Hills Park
Page 19 of 25
APPROVED AS TO FORM AND LEGALITY:
By: AA iv myvi
Assistant City Attorney
M&C: `,,TIAI
Texas Midstream Gas Services, L.L.C. Pipeline License Agreement -Rolling Hills Park
Page 20 of 25
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
ACKNOWLEDGEMENT
THE STATE OF TEXAS §
COUNTY OF TARRANT §
This instrument was acknowledged before me on this gdday of 161 , 2008, by
Assistant City Manager of the City of Fort Worth, Texas, a municipal
corporation, on behalf of the City of Fort Worth, Texas.
`S1�Y
/► ROSELLA BARNES
*:��{ MY COMMISSION EXPIRES
;y;>!^1 March 31, 2009
°•�Rf 1�
exas
Notary Public, State of T
ACKN®WLEDGIVIENT
THE STATE OF OKLAHOMA §
COUNTY OF OKLAHOMA §
This instrument was acknowledged before me on this.
20083 by James C. Johnson, President of Texas Midstream Gas
limited liability company, on behalf of said company.
Texas Midstream Gas Services, L.L.C. Pipeline License Agreement -Rolling Hills Park
Page 21 of 25
ay of
Services, L.L.C., an Oklahoma
EXHIBIT "A"
Company may only use approximately 2,260.72 linear feet crossing the northeastern edge of
Rolling Hills Park as depicted below:
Texas Midstream Gas Services, L.L.C. Pipeline License Agreement -Rolling Hills Park
Page 22 of 25
• • T•; - ,
• # • • •
DATE: Tuesday, June 17, 2008
LOG NAME: 80ROLLINGHILLGP
REFERENCE NO.: L-14561(Revised)
SUBJECT:
Authorize the Conversion of Approximately 1.04 Acres of Parkland at Rolling Hills Park Located at
2525 Tappan Boulevard and 2501 East Jewell Kelly Drive for the Installation of a Gas Pipeline and
Authorize the Execution of a License Agreement with Texas Midstream Gas Services in the Amount
of $175, 540.57
RECOMMENDATION:
It is recommended that the City Council:
1. Conduct a public hearing under the guidelines set forth by the Texas Parks and Wildlife Code, Chapter
26, Protection of Public Parks and Recreational Lands;
2. Find that no feasible or prudent alternative exist for the location of the proposed gas pipeline for Rolling
Hills;
3. Find that the proposed gas pipeline includes all reasonable planning to minimize harm to the parkland,
and including that the pipeline will cross under the Rolling Hills Park as specified on the attached exhibits
and noted in the discussion below;
4. Close the public hearing and authorize the City Manager to convert approximately 1.04 acres of
dedicated parkland for a pipeline license fora 24-inch gas pipeline; and
Rolling Hills Park- 2525 Tappan Boulevard and 2501 East Jewell Kelly Drive, Mapsco 92J, N
and P, 91 R and M, located north of J. B. Rushing Road, south of Seminary Drive and Jewell
Kelly Drive, west of Wichita Street and east of Campus Drive, in COUNCIL DISTRICT 8.
5. Authorize the City Manager to execute a license agreement for a pipeline with Texas Midstream Gas
Services in the amount of $175,540.57.
DISCUSSION:
In accordance with the Texas Parks and Wildlife Code, Chapter 26, the City of Fort Worth seeks to convert
approximately 1.04 acres of parkland in Rolling Hills Park for the purpose of installing a gas pipeline.
The Parks and Community Services Department (PACSD) has been approached by Texas Midstream Gas
Services (TMGS) requesting a pipeline license through Rolling Hills Park for the gathering of natural gas
(Exhibit A). Rolling Hills Park is a 207 acre site acquired from the Federal Government in 1971 (see
attached aerial photograph). The proposed alignment shall combine boring and trenching techniques to
allow the installation of one 24-inch wide steel natural gas pipeline. The route for the pipeline will run
parallel an existing 54-inch waterline. A 20-foot wide pipeline license is being requested.
Logname: 80ROLLINGHILLGP Page 1 of 3
Staff is recommending as a condition of granting this pipeline license, that TMGS be assessed the
recommended standard fee of $45.00 per linear foot. This is consistent with fees assessed under the City's
current Right -of -Way Use Agreements for installation of non -utility equipment, appliances or appurtenances
in public right-of-way. In this instance, a fee of $101,732.40 will be assessed for 2,260.72 linear feet
requested for this pipeline license. The funds generated from the assessment will be used to construct
improvements at Rolling Hills Park, in compliance with the Parks and Community Services Department's
Park Facility Development Guidelines.
In addition to the per linear foot fee, the PACSD will also receive $73,808.17 for the removal of nine nursery
grown trees from the Rolling Hills Tree Farm. The removal of these trees is necessary in order to establish
a bore pit to negotiate a slight curve in the existing 54-inch water line. These trees are the only remaining
trees from a block of approximately 400 Bur Oaks that were nursery grown, mechanically harvested and
transplanted to parks and other public properties. The remaining nine trees could not be mechanically
harvested due to site conditions and have instead been used to teach proper pruning techniques to Citizen
Forester Volunteers and students from area colleges. Alternative locations of the bore pit would have
impacted other nursery grown trees which will be mechanically harvested and transplanted to parks and
other public property at some future date. The City Forester determined the value of the trees utilizing
established guidelines by the International Society of Arboriculture for Shade Tree Evaluation. The
assessed fee will be utilized for improvements to the Rolling Hills Tree Farm.
The total fee for this pipeline license is $175,540.57. TMGS has been made aware of this fee and is
agreeable to this assessment.
Since this property was acquired from the Federal Government, staff reviewed the proposed pipeline
license and assessed fees with representatives of the Department of the Interior who determined that the
proposed pipeline license was allowable contingent on the assessed fees being dedicated to improvements
at Rolling Hills Park.
On April 23, 2008, the Parks and Community Services Advisory Board (PACSAB) adopted a motion to
"endorse staffs recommendation that the City Council authorize the conversion of approximately 1.04 acres
of parkland at Rolling Hills Park for a pipeline license agreement for the installation of a gas pipeline. Not
withstanding this action, "the PACSAB objects to the removal of the nine nursery trees and considers the
$73,808.17 fee as restitution for damages for the loss of trees."
In accordance with state law, the conversion was advertised in the Fort Worth Star -Telegram on April 22,
April 29 and May 6, 2008. Once converted, PACS will enter into a license agreement with TMGS for the
pipeline.
Signage was posted at the site on April 11, 2008, announcing the proposed conversion. Letters announcing
the proposed conversion were sent to the presidents of the adjoining Neighborhood Associations.
Rolling Hills Park is located in COUNCIL DISTRCT 8.
FISCAL INFORMATION/CERTIFICATION:
The Finance Director Certifies that the Parks and Community Services Department is responsible for the
collection and deposit of funds due to the City under this agreement.
TO Fund/Account/Centers
C282 446300 801929990100
Submitted for City Manager's Office b�
Originating Department Head:
Additional Information Contact:
$175,540.57
FROM Fund/AccountlCenters
Charles Daniels (6183)
Richard Zavala (5704)
Harold Pitchford (5728)
Lo gname: 8 OROLLINGHILL GP
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