HomeMy WebLinkAboutContract 43403CnraECRE"ar 0
CONTRACT NO.
PUBLIC RIGHT -OF -WAY USE AGREEMENT
This PUBLIC RIGHT -OF -WAY USE AGREEMENT ( "Agreement ") is hereby made
and entered into by and between the CITY OF FORT WORTH, a home rule municipal
corporation organized under the laws of the State of Texas and acting by and through Fernando
Costa, its duly authorized Assistant City Manager, and TEXAS MIDSTREAM CAS
SERVICES, L.L.C., an Oklahoma limited liability company, acting by and through Robert S.
Purgason, Chief Operating Officer.
The following statements are true and correct and constitute the basis upon which the
City of Fort Worth has executed this Agreement.
A. TEXAS MIDSTREAM GAS SERVICES, L.L.C., an Oklahoma limited liability
company, ( "Company ") wishes to construct a pipeline for the transportation of natural gas
within certain Publie Rights -of -Way. 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 Right -of -Way.
B. The City has reviewed Company's request and agrees to grant Company a license
to use certain Public Rights -of -Way in order to construct, operate and maintain a pipeline, on the
terms and conditions set forth herein, solely for the transportation of natural 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, Iiimited
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 the Public
Rights -of -Way for (i) the construction, installation, maintenance and repair of
Company's Pipeline; (ii) the use of such Pipeline for the transportation of Gas;
and (iii) any other directly related uses of the Publie Rights -of -Way, pursuant to
and in accordance with this Agreement.
Business Day shall mean Monday through Friday, but excluding City holidays.
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CITY SECRETARY
FT. WORTH, TX
Company shall mean Texas Midstream Gas Serviees, L.L.C., an Oklahoma limited
liability company, only and shall not inelude 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's Department of Transportation /Public
Works or authorized representative.
Gas shall mean gaseous fuels sueh as natural gas, artificial gas, synthetic gas, liquefied
natural gas, manufactured bas, or any mixture thereof.
Person shall mean, without limitation, an individual, a corporation, a limited liability
company, a general or limited partnership, a sole proprietorship. a joint venture, a
business trust or any other form or business entity or association.
Pipeline shall mean the pipeline and other facilities approved by the Director that are
installed by Company in the Public Rights -of -Way in accordance with this
Agreement.
Public Rights -of -Way shall mean only those dedicated public streets, highways, alleys
and rights -of -way in the City 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 Public Rights -of -Way 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 its Pipeline in, over, under, along and across the Public Rights -of-
Way and (ii) transport Gas through the portions of its Pipeline in, over, under, along and
across the Public Rights-of-Way. Company hereby acknowledges and 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.
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2.2. Nonexclusive.
This Agreement and all rights granted to Company herein are strictly
nonexclusive. The City reserves the right to grant other and future licenses and other
authorizations for use of the Public Rights -of -Way 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 Public Rights- of-Way that
is solely within the discretion of the City, if a dispute arises as to priority of the use of the
Public Rights -of -Way, the City will resolve such dispute in a manner that does not result
in unreasonable interference with Company's operation of the Pipeline for the purposes
provided for herein. This Agreement does not establish any priority for the use of the
Public Rights -of- -Way by Company or by any present or future licensees or other permit
holders. In the event of any dispute as to the priority of use of the Public Rights -of -Way,
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
poliee 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 ageney necessary for the
construction.. installation, maintenance or repair of Company's Pipeline or the
transportation of Gas through such Pipeline.
2.4. Bonds.
Prior to the commencement of any construction work in the Public Rights -of -Way
in the City that requires a cut, opening or other excavation, Company shall deliver to the
City bonds executed by a corporate surety authorized to do business in the State of Texas
and acceptable to the City in the proportional amount of the cost of work under the
construction contract or construction project that will be performed in the Public Rights -
of -Way. The bonds shall guarantee (i) satisfactory compliance by Company with all
requirements, terms and conditions of this Agreement and (ii) full payments to all
persons, firms, corporations or other entities with whom Company has a direct
relationship for the performance of such construction, maintenance or repairs.
If any such construction, maintenance and repair work is undertaken by a
contractor of Company. Company shall also require such contractor to deliver to
Company bonds executed by a corporate surety authorized to do business in the State of
Texas and acceptable to the City in the proportional amount of the eost of work under the
construction contract or construction project that will be performed by the contractor in
the Public Rights -of -Way. 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
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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 ] ] :59 P.M. CST on July 31, 2037 unless
terminated earlier as provided herein.
4. FEES AND PAYMENTS TO CITY.
4.1. Right -of -Way Use Fee.
On or prior to the Effeetive Date, Company shall pay the City as compensation
for its use of the Public Rights -of -Way for the Term of this Agreement the sum of One
Hundred Sixty Three Thousand Three Hundred Ninety -Eight Dollars and Forty Cents
(5163,398.40) ( "License Fee "). Company hereby aeknowledges and agrees that the
amount of this License Fee constitutes just and reasonable compensation to the City for
Company's use of the Public flights -of -Way as provided by this Agreement.
4.2. Other Pavnienis.
In addition to the License Fee. Company shall pay the City all sums which may be
due the City for property taxes, license fees, permit fees, or other taxes, charges or fees
that the City may from time to time impose on all other similarly situated entities within
the City. Company shall reimburse the City for publication of this Agreement as required
by the City's Charter.
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, whiehever is less, computed monthly. If
sueh 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 Seetion 9 of this
Agreement.
5. REGULATORY AUTHORITY OF THE CITY.
Company's property and operations hereunder shall be subject to such regulation by the
City as may be reasonably necessary for the protection or benefit of the general publie. In this
connection, Company shall be subieet to, governed by and shall comply with all applicable
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federal, state and local laws, including all ordinances, rulcs and regulations of the City, as same
may be adopted and amended from time to time.
6. USE OF PUBLIC RIGHTS -OF -WAY.
6.1. Pre- Coustruction Conferenee.
Company shall notify the City not less than five (5) Business Days in advance of
the Company's proposed construction start date and shall meet with appropriate City staff
in the Planning and Development, the Parks and Community Services, and the
Transportation and Pubiie Works Departments for the purposes of requesting a Pipeline
pre - construction conference, which shall be scheduled to occur not less than two (2)
Business Days prior to initiating construction. The purpose of the pre - construction
conferenee shall be to address issues related to the installation of the Pipeline, including,
but not be limited to, (i) agrceing to the boundaries of any work areas to be uscd for
storing or staging equipment and supplies; (ii) identifying trees that are anticipated to be
affected by the Pipeline installation and outlining any required tree protection measures
that Company must take; and (iii) establishing the details for the restoration of those areas
that are disturbed by or during installation.
6.2. Compliance with Laws, Ordinauces, Rules and Regulations.
The City has the right to control and regulate the use of the Public Rights -of -Way,
public places and other City -owned property and the spaces above and beneath them.
Company shall comply with all applicable laws, ordinances, rules and regulations,
including, but not limited to, City ordinances, rules and policies related to construction
permits, construction bonds, permissible hours of construction, operations during peak
traffic hours, barricading requirements and any other construction rules or regulations
that may be promulgated from time to time.
6.3. No Undue Burden.
The Pipeline shall not be erected, installed, constructcd, repaired, replaced or
maintained in any manner that places an undue burden on the present or future use of the
Public Rights -of -Way by the City and the public. If the City reasonably determines that
the Pipeline does place an undue burden on any portion of the Public Rights -of -Way,
Company, at Company's sole cost and expense and within a reasonable time period
specified by the City, shall modify the Pipeline or take other actions determined by the
City to be in the public interest to remove or alleviate the burden.
6.4 Minimallnterfereuce.
Prior to the undertaking of any kind of construction, installation, maintenance,
repairs or other work that requires the excavation, lane closure or othcr physical use of
the Public Rights -of -Way, Company shall, except for work required to address an
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emergency, provide at least twenty -four (24) hours' advance written notice to the owners
of property adjacent to the Public Rights -of -Way 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 such 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.
6.5. "As- Built" Plans and
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. Marking of Pipeline.
The Pipeline shall be marked, in a manner that is acceptable to the Director, to
show conspicuously Company's name and a toll -free telephone number of Company that
a Person may call for assistance.
6.7. Pavement Cut Coordination and Additional Fees.
The City shall have the right to coordinate all excavation work in the Public
Rights -of -Way in a manner that is consistent with and convenient for the implementation
of the City's program for street construction, rebuilding, resurfacing and repair. In order
to preserve the integrity of the Public Rights -of -Way, Company shall not cut, excavate or
otherwise breach or damage the surface of any paved Public Right -of -Way within ninety-
six (96) months following the construction or resurfacing of such Public Right -of -Way
unless (i) Company obtains written consent from the Director and (ii) pays the City, for
each fifty (50) linear feet of a cut, excavation or breach of any Public Right -of -Way or
portion thereof, the sum of (a) $1,500 for any cut, excavation or breach occurring
between the effective datc and July 31, 2017; (b) $1,800 for any cut, excavation or breach
occurring between August 1, 2017 and July 31, 2022; (c) $2,150 for any cut, excavation
or breach occurring between August 1, 2022 and July 31, 2027; and (d) $2,600 for any
cut, excavation or breach occurring between August 1, 2027 and July 31, 2037. Such fee
shall (i) be in addition to, and not in lieu of, Company's obligations to restore the Public
Rights -of -Way in accordance with this Agreement and (ii) not be allocated or otherwise
counted as part of the License Fec to the City.
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6.8. Restoration of Public Rights-of-Way and Propertv.
Company, at its sole cost and expense, and in a manner approved by the City,
shall restore any portion of the Public Rights-of-Way, City -owned property, or other
privately -owned property that are in any way disturbed or damaged by the initial
construction of the Pipeline to a condition that is at least as good as the one in which such
property existed immediately prior to the disturbance or damage. In restoring property
following the initial construction of the Pipeline, Company shall comply with restoration
details established at the pre - construction conference held in accordance with Section 6.1
as well as with the Restoration Specifications contained in Exhibit "B," which is attached
hereto and incorporated herein for all purposes as though it were set forth at length.
Company will be installing the Pipeline in segments. Following completion of a
segment, Company shall submit a brief sworn and notarized written statement to the City
notifying the City of completion of the segment and averring to the date of completion.
Following completion of each segment, Company shall immediately begin restoration of
property disturbed or damaged in connection with installation of that segment.
Restoration for each segment must be complete no later than Fifty (50) Business Days
after the completion date sworn to in the Company's notice to the City.
To ensure Company's diligence in complying with its restoration obligations and
to minimize impact to the publict if the Company fails to complete all restoration by the
Fiftieth Business Day after the mechanical completion date for the final Pipeline segment,
Company agrees to pay City liquidated damages of Five Hundred Dollars ($500.00) per
day for each day beyond the Fiftieth Business Day that restoration remains incomplete.
The parties agree that the amount of liquidated damages reasonably approximates the
actual damages to the City for delay in the City regaining full use of the street and
associated parking spaces and in the public regaining full and unencumbered use of the
public street, In addition, failure to complete restoration in accordance with the
requirements and schedule described above shall be deemed an Event of Default under
Section 9 of this Agreement.
Company, at Company's sole cost and expense, and in a manner approved by the
City, shall promptly restore any portion of the Public Rights -of- -Way, City -owned
property or other privately -owned property that are in any way disturbed or damaged by
the operation, maintenance or removal of any of the Pipeline to a condition that is at least
as good as the one in which such property existed immediately prior to the disturbance or
damage. Company shall diligently commence such restoration within thirty (30) calendar
days following the date that Company First became aware of the disturbance or damage
or, if the Pipeline is being removed, within thirty (30) calendar days following such
removal. In restoring property, Company shall comply with the Restoration
Specifications contained in Exhibit "B."
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6.9. 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
remove from the Public Rights -of -Way all or any portion of its Pipeline due to street or
other public excavation, construction, repair, grading, regrading or traffic conditions; the
installation of sewers, drains, water pipes or municipally -owned facilities of any kind; the
vacation, construction or relocation of strcels or attiy other type of structure or
improvement of a public agency; any public work; or any other type of improvement
necessary, in the City's sole discretion, for the public health, safety or welfare. if
Company reasonably requires more than forty -five (45) days to comply with the City's
written request, it shall notify the director of the City's Department of
Transportation/Public Works in writing and the City will work in good faith with
Company to negotiate a workable time frame.
6.10. Ertteruencies.
5.10.1. Work by the City.
For purposes of this Section 6.9.1, a publie 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 eaused 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 oeeur to the Pipeline or that
Company may otherwise incur as a result of such a response, and (ii) agrees that
Company, at Company's sole cost and expense, shall be responsible for the repair,
relocation or reconstruction of all or any of its Pipeline that is affected by such
action of the City. In responding to a public emergency, the City agrees to
comply with all local, state and federal laws, including any requirements to notify
the Texas One Call System, to the extent that they apply at the time and under the
circumstances. In addition, if the City takes any action that it believes will affect
the Pipeline, the City will notify Company as soon as practicable so that Company
may advise and work with the City with respect to such action.
6.10.2. Work by or on Behalf of Company.
In the event of an emergency that directly involves that portion of the
Pipeline located in the Public Rights -of- -Way and necessitates immediate
emergency response work or repairs, Company may initiate the emergency
response work or repairs or take any action required under the circumstances
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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 Transportation/Public Works and
otherwise fully comply with the requirements of this Agreement.
6.11. Removal of Pi eline.
Upon the revocation, termination or expiration without extension or renewal of
this Agreement, Company's right to use the Public Rights -of -Way under this Agreement
shall cease and Company shall immediately discontinue the transportation of Gas in or
through the City. Within six (6) months following such revocation, termination or
expiration and if the City requests, Company, at Company's sole cost and expense, shall
removc the Pipeline from the Public Rights-of-Way (or cap the Pipeline, if consented to
by the City), in accordance with applicable laws and regulations. If Company has not
removed all of the Pipeline from the Public Rights-of-Way (or capped the Pipeline, if
consented to by the City) within six (6) months following revocation, termination or
expiration of this Agreement, the City may deem any portion of the Pipeline remaining in
the Public Rights -of -Way 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 6.8 of this Agreement, Company shall also
restore any property, public or private, that is disturbed or damaged by removal (or, if
consented to by the City, capping) of the Pipeline. If Company has not restored all such
property within this time, the City, at the City's sole option, may perform or have
performed any necessary restoration work, in whieh case Company shall immediately
reimburse the City for any and all costs incurred in performing or having performed sueh
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 he in any way connected with (i) the construction, installation, operation,
maintenance or condition of the Pipeline or any related facilities or appurtenances; (ii) the
transportation of Gas through the Pipeline; (iii) any claim or lien arising out of work,
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labor, materials or supplies provided or supplied to Company, its contractors or
subcontractors; or (iv) Company's failure to eomply with any federal, state or local law,
ordinance. rule or regulation, exeept to the extent directly caused by the negligent or
grossly negligent aet(s) or omission(s) or intentional miseonduet 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
(INCLUDING, WITHOUT LIMITATION, THOSE FOR PR OPER TY DA MA GE AND
PERSONAL INJURY, INCLUDING DEA TH) WHICH MA Y ARISE O UT OF OR BE
IN ANY WA Y CONNECTED WITH (I) THE CONSTR UCTION, INS TALLA TION,
OPERATION, MAINTEN4NCE 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 A CT(S) OR
OMISSION {S} OR INTENTIONAL MISCONDUCT OF THE CITY.
7.3. Assumption of Risk.
Company hereby undertakes and assumes, for and on behalf of Company, its
officers, agents, contractors, subcontractors, agents and employees, all risk of dangerous
conditions, if any. on or about any City -owned or City- eontrolled property, including, but
not limited to, the Puhlie Rights -of -Way.
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.
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S. 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 usc, occupancy, condition, maintenance, existence or location
of the Public Rights -of -Way 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- insuranee, primary and excess policies.
8.1. Primary Liability Insurance Coverage.
Commercial General Liability:
$1,000,000 per occurrence, including coverage for the following; (i) Premises
Liability; (ii) independent contractors; (iii) productsleornpleted operations; (iv)
personal injury; (v) contraetual liability; (vi) explosion, collapse and
underground property damage.
0 Provertv Dama a Liabili :
$10,000,000 per oecurrence
0 Automobile Liabili :
$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
0 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 Citv'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 (3 0) days' prior written notice to the City,
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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 ten-ns of solvency
and finaneial strength. Within thirty (30) days following adoption of this Agreement by the
City Council, Company shall furnish the City with certifieates of insurance signed by the
respective companies as proof that it has obtained the types and amounts of insurance
coverage required herein. In addition, Company shall, on demand, provide the City with
evidenee 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 525,000 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 Liabilitv.
The insurance requirements set forth in this Section 8 and any recovery by the City
of any sum by reason of any insurance policy required under this Agreement shall in no way
be construed or effected to limit or in any way affeet 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 Pa 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 breaehes 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. Bankrnptcy, Insolvency or Receivership.
An Event of Default shall occur if Company (i) files a voluntary petition in
banlruptey; (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
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bankruptcy, insolvency or other relief for debtors, (iv) seeks, consents to or acquiesces in
the appointment of any trustee, receiver, master, custodian or liquidator of Company, any
of Company's property or any revenues, issues, earnings or profits thereof, (v) makes an
assignment for the benefit of creditors; or (vi) fails to pay Company's debts generally as
they become due.
9.4. Violations of the Law.
An Event of Dcfault shall occur if Company violates any existing or future federal,
state or loeal laws or any existing or future ordinances, rules and regulations of the City.
I0. 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 tenninate 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 oran 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 Iiinitation to any other rights or remedies the City may have:
I0.2.1. Termination of Agreement.
Upon the occurrcnce of an Uncured Default, the City may terminate this
Agreement. Upon such termination, Company shall forfeit all rights granted to it
under this Agreement, and, except as to Company's unperformed obligations and
existing liabilities as of the date of termination, this Agreement shall
automatically be deemed null and void and shall have no further force or effect.
Company shall remain obligated to pay and the City shall retain the right to
receive License Fees and any other payments due up to the date of termination.
Company shall remove the Pipeline from and restore the Publie Rights -of -Way as
G1`09 -0054 Westgaie Phase 11
Texas Midslreum Gas Services, L.LC.'. Right-of-Way Use Agreement
Page 13 oi'28
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 eonstrued to eonstihate 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 ageney or other regulatory authority with jurisdiction, if such action
without such approval is prohibited at the time by applieable federal or state taw
or regulation.
10.2.2 Legal Action Against Company.
Upon the oecurrence of an Uncured Default, the City may eommence
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 speeiCically enforceable.
11. PROVISION OF INFORMATION.
11.1. Filin s with the Commission.
Company shall provide copies to the City of all documents which Company tiles
with or sends to the Commission concerning or related to its transportation of Gas
through or other operations in the City, including, but not limited to, filings related to (i)
tariffs; (ii) rules, regulations and policies requested, under consideration or approved by
the Commission; and (iii) applications and any supporting pre -filed testimony and
exhibits filed by Company or third parties on behalf of Company, on the same date as
such filings are made with the Commission. In addition, Company shall provide the City
with copies of records, doeuments and other filings that Company is required to maintain
or supply to the Commission under any applicable state or federal law, rule or regulation.
11.2. Lawsuits.
Company shall provide the City with copies of all pleadings in all lawsuits to
which Company is a party and that pertain to the granting of this Agreement and/or the
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 eontrol 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
GP09 -0054 — Wc.tgale Pha_sc II
Texas Midstream Gas Cervices, L.L.C. night -of -Way Use Agreemeri
Page 14 of 28
acts and omissions of its officers, agents, servants, employees, contractors and subcontractors.
Company acknowledges that the doctrine of respondeat superior shall not apply as between the
City and Company, its officers, agents, employees. contractors and subcontractors. Company
further agrees that nothing herein shall be construed as the creation of a partnership or joint
enterprise between the City and Company.
13. ASSIGNMENT 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.
14. NOTICES.
Notiees required pursuant to the provisions of this Agreement shall be conclusively
determined to have been delivered when 6) 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
Public Utilities Administrator
1000 Throckmorton
Fort Worth, TX 76102
with a copy to:
To COMPANY:
Texas Midstream Gas Services, L.L.C.
Manager T Property Rights
100 Energy Way
Fort Worth, TX 76102
City of Fort Worth Texas Midstream Gas Services. L.L.C.
Department of Law c/o CT Corporation
Attn: Attorney for Utilities 350 North St.. Paul Street, Suite 2900
1000 Throekmorton Dallas, Texas 75201
Fort Worth, TX 76102
15. NON - DISCRIMINATION COVENANT.
Company shall not diseriminate 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.
GP09 -0054 — Westgate Prase 11
Texas Midstream Gas Services, L.L.C. Right- of-Way U a agreemem
Page 15 U28
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 rea10 r asserted, at law or in
equity, arise out of the terms of this Agreement, Company's transportation of Gas or Company's use
of the Public Rights -of -Way, 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.
I8. 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
Public Rights -of -Way.
19. SEVERASILITY.
If any provision of this Agreement is held to be invalid, illegal or unenforccable by a final
order entered by a court of competent jurisdiction, the validity, legality and enforccability of the
remaining provisions shall not in any way be affected or impaired. For purposes of this Agreement,
a court ordcr 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
event, the Cit-v and Company agree that they shall amend or have amended this Agreement to
comply with such final order entcred by a court of competent. jurisdiction.
20. FORCE NLAJEURE.
In the event Company's performance of any of the terms, conditions or obligations required
by this Agreement is prevented by a cause or event that is not within Company's reasonable control,
Company's non - performance shall be deemed excuscd 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.
GP09 -0054 — Westgate Phasc 11
Texas Midstream Gas Services, L.L.C. Right -of -War Use Agreement
Page 16 of 28
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:
Bv:
Fernando Costa
Assistant City Manager
Date: /
TEXAS MIDSTREAM GAS S RVICES, L.L.C.
By
R E'u
Chief Operating Officer
Date: cjv ,�,
APPROVED AS TO FORM AND LEGALITY:
i
By:— I YYY
Denis McEI y
Assistant Ci ttorney
Date:
M &C: L - 15393 .1 uly 14 241
At>d by;
GP09 -0054 — Westgate Phase [I OFFICIAL RECORD
'texas Midstream Gas Services. L.LC. Right -of -Way Use Agreement CITY SECRETARY
Page 17of28
Fr, WORTH, TX
EXHIBIT "A"
Company may only use the following port ions of the Public Rights -of -Way in the City:
• Across Nineteenth Street, north of.lones Street.
• Across .tones street, north of Lancaster Avenue
• Along Lancaster Avenue, east of Calhoun Street to west of Lamar Street
• Approximately 3376 feet ROW usage
GP09 -0034 — Westgate Phase 11
Texas Midstream Gas Services, L.L.C. Right -of Way Use Agreement
Page 18 of 18
EXHIBIT "B"
Restoration Specifications
1. Company shall be responsible for installing tree protection measures in accordance
with the pre - construction conference and for maintaining and watering all trees in the
affected medians until such time as restoration is fully complete and accepted by PACSD.
Company shall submit a watering schedule to the PACSD for approval along with a water
usage estimate. Company shall be responsible for paying the cost of the estimated water
usage associated with maintenance of the trees and restoration of other vegetation.
2. Company shall ensure that all construction materials brought onto the site , including
drilling fluids and cuttings, are removed from City property and are properly disposed of. In
addition, Company shall not allow or cause any release, discharge, migration, or seepage of
any drilling fluid, contaminant, or pollutant into or on the soil; if such a release should
occur, Company shall notify the City immediately and, at Company's sole expense, remove
and properly dispose of all affected soil and take all other necessary response action.
3. In making any repairs to the City's irrigation system, Company shall ensure that all
work is performed by a certified landscape irrigator and shall provide the City's Parks and
Community Services Department ( "PACSD ") with documentation of such certification.
Company shall notify PACSD when repairs to the irrigation system have been completed.
PACSD shall have at least two Business Days to inspect the system before the lines are re-
buried. If repair of the irrigation system involves any changes to the location of any lines or
valves, Company shall provide the City with as -built plans for the system following repairs.
4. Company shall ensure that new, clean topsoil is used for all restoration and shall
provide the City with documentation of the source and composition of the soil.
5. After disturbed areas have been refilled, they shall be compacted to a minimum 90%
Standard Proctor Density (S.S.T.M. D698). Company shall provide City with notice
regarding when compaction will be occurring, and the City shall have the right, but not the
obligation, to be present during the compaction process. Company shall provide City with a
report documenting the actual density following compaction.
6. Prior to the replacement of any curbing or pavers in the City median, Company shall
contact the City personnel identified at the pre - construction conference to schedule an
inspection of the grading of the area. If the inspection indicates that adjustments must be to
the grading, Company shall ensure that. such measures are performed and shall schedule a
follow -up inspection with City personnel to verify the results.
7. Company shall be responsible for installing a temporary irrigation system and
maintaining the median strips until such time as they are accepted by PACSD.
GP09 -0054 — Wtwgate Phase It
Texas Midstream Gas Services, L.L.C. Right-of-Way Use Agreement
Page 19 of 29
SECTION 02930 - TURF SODDING
PART I - GENERAL
1.01 DESCRIPTION
A. Work Included: This work includes all labor, materials and equipment for soil
preparation, fertilization, planting and other requirements regarding turfgrass sodding
shown on the plans.
B. Related Work Speeified Elsewhere: Section 02300, Earthwork.
1.02 REFERENCE STANDARDS
A. For exotie plant materials: American Joint Committee of Hortieultural Nomenclature,
Second Edition, 1942.
B. For native materials
a. Manual of the Vascular Plants of Texas by Correll and Johnston
b. Check List of Vascular Plants of Texas by Hatch
c. Flora of North Central Texas by Shinners and Moller
1.03 SUBMITTALS
Samples, certifieates and specifications of sod, fertilizer, compost, soil amendments or
other materials may be requested by the City.
All delivery receipts and eopies of invoiees for materials used for this work shall be
subject to verification by the City.
1.04 PRODUCT DELIVERY, STORAGE AND HANDLING
A. Sod: Harvesting and planting operations shall be coordinated with not more than forty
eight hours elapsing between the harvesting and planting.
B. Fertilizer
1. Unopened bags labeled with the analysis
2. Conform to Texas Fertilizer Law.
1.05 QUALITY CONTROL
The Developer /Contractor who plants the sod is responsible for supervision of his crew,
while planting the sod and maintaining the sod until the project is accepted by the City.
PART 2- PRODUCTS
2.01 SOD
GP09 -0054 — Westgate Phase If
Texas Micistremn Gas Services, L.L.C. Right-of-Way Use Agreement
Page 20 oF28
A. The sod shall be Cynodon dactylon ( "Bermuda" grass) and shall consist of stolons, leaf
blades, rhizomes and roots with a healthy, virile system of dense, thickly matted roots
throughout the soil of the sod for a thickness of not less than one inch. Sod shall be alive,
healthy and vigorous and shall be free of insects, disease, stones and undesirable foreign
materials and grasses. Sod shall have been produced on growing beds of clay or clay -
loam topsoil. The sod shall not be harvested or planted when its moisture condition is so
excessively wet or dry that its survival will be affected. If sod is stacked, it shall be kept
moist and shall be stacked roots -to -roots and grass -to- grass.
B. The sod shall be cut in strips four feet wide to be laid parallel with the contours.
2.02 FERTILIZER
A. All fertilizer shall be delivered in bags or containers clearly labeled showing the analysis.
B. All fertilizer shall be in acceptable condition for distribution and shall be applied
uniformly over the planted area two weeks after sodding.
C. All fertilizer shall have an analysis of 3 -1 -2 or as designated on the plans. The fertilizer
rate shall be 45 pounds of nitrogen per acre.
2.03 WATER
The water shall be furnished by the Developer /Contractor and shall be clean and free of
industrial wastes or other substances harmful to the germination of the seed or to the
growth of the vegetation. The amount of water will vary according to the weather
variables. Generally, the sod should be soaked one time per day for three weeks or until
established. Soaking is mandatory after spreading the fertilizer.
2.04 COMPOST
All compost material is to be totally organic and decomposed for at least nine months.
All compost is to be clean and free of fungus, disease, live plants, seed, excessive cotton
lint and any harmful chemicals. "New Life Soil Conditioner" or "Perma Green
Compost ", as specified below or an approved equal, shall be used. Raw organics are not
acceptable.
A. For soil with an alkaline PH condition: Use "New Life Acid Gro" (acid pH) soil
conditioner as produced by Soil Building Systems of Dallas, or an approved
equal.
B. For soil with an acidic pH condition: Use "Perma Green Compost" by Texas
Earth Resources, Inc. of Dallas, or "New Life Natural Grower" (pH 8.0 to 9.0) by
Soil Building Systems, Inc., of Dallas.
C. Sample and Specification Submittal: Submit a producer's specification and a
quart sample ofthe eompost proposed for the City's approval.
GP09 -0054 — Westgate Phase 11
Texas Midstream Gas Services, L.L.C. Right -of -Way Use Agreement
Page 21 of 29
PART 3- EXECUTION
3.01 GENERAL
All turfing operations are to be executed across the slope, parallel to finished grade
contours.
3.02 SOIL PREPARATION
A. Scarify subgrade to a depth of three inches before depositing the required topsoil.
B. Tillage shall be accomplished to loosen the topsoil, destroy existing vegetation
and prepare an acceptable sod bed. All areas shall be tilled with a heavy duty disc
or a chisel -type breaking plow, chisels set not more than ten inches apart. Initial
tillage shall be done in a crossing pattern for double eoverage, then followed by a
disc harrow. Depth of tillage shall be five inehes. A heavy duty rototiiler may be
used for areas to be planted with sod.
C. Cleaning: Soil shall be further prepared by the removal of debris, building
materials, rubbish, weeds and stones larger than one inch in diameter.
D. Fine Grading: After tillage and cleaning, all areas to be planted shall be
topdressed with one -half inch compost and then shall be leveled, fine graded, and
drug with a weighted spike harrow or Float drag. The required result shall be the
elimination of ruts, depressions, humps and objectionable soil clods. This shall be
the final soil preparation step to be completed he fore planting.
3.03 PLANTING
Prior to laying the sod, the planting bed shall be raked smooth to true grade and
moistened to a depth of four inches, but not to the extent causing puddling. The sod shall
be laid smoothly, tightly butted edge to edge, and with staggered joints. The sod shall be
pressed firmly into the sod bed by rolling or by hand tamping with an approved tamper so
as to eliminate all air pockets, provide a true and even surfaee, and ensure knitting
without displacement of the sod or deformation of the surfaces of sodded areas.
Fallowing compaction, compost shall be used to fill all cracks between sods. Exeess
compost shall he worked into the grass with suitable equipment and shall be well
watered. The quantity of compost shall be such that it will cause no smothering or
burning of the grass.
304 FERTILIZING
Twenty -one days after planting, turfgrass areas shall receive an applieation of 3 -1 -2
fertilizer at the rate of 45 pounds of nitrogen per acre. Water well after application to
prevent buming.
END OF SECTION
GP09 -0054 — Westgate Phase I
Texas Midstream Gas Services, L.L.C. Right -of -Way U? 3c Agreement
Page 22 of'28
SECTION 02300 - EARTHWORK
PART I - GENERAL
1.01 SCOPE: Work in this section includes furnishing all labor, materials, equipment, and
services required to construct, shape, and finish earthwork to the required lines, grades,
and cross sections as specified herein and on the plans.
1.02 RELATED WORK SPECIFIED ELSEWHERE
A. Section 02200 - Site Preparation.
B. Grading Plan: Refer to plan sheets.
1.03 METHOD OF PAYMENT: Earthwork is a necessary and incidental part of the work.
The total cost will be included in the Bid Proposal. Payment will be made on a Lump
Sum basis only.
PART 2 - PRODUCTS
2.01 UNCLASSIFIED EXCAVATION: Unclassified excavation shall consist of all
excavation, unless separatcly dcsignated, within the limits of the work. Unclassified
excavation includes a I I material encountered rcgardless of its nature or the manner in
which it is to be excavated,
2.02 UNCLASSIFIED FILL
A. Unclassified fill shall consist of all fill within the limits of the work. All suitable
native materials removed in unclassified excavation, or similar imported
materials, shall he used insofar as practicable as unelassified fill. Properly
deposited, conditioned, and compacted fill is hereinafter referrcd to as "earth
embankment."
B. Rock: M 1 n o r quantities of rack not grcater than four inches in greatest dimension
are permissible in fill materials used to construct earth embankment. Minor
quantities of rock of greater dimensions may be placed in the deeper fills in
accordance with the State Department of Highways and Public Transportation
requirements for construction of rock embankments, provided such placcment of
rock is not immediately adjacent to structures or piers. Also, rock may be placed
in the portions of embankments outside the limits of the completed graded width
where the size of the rock prohibits their incorporation in the normal embankment
layers,
2.03 TOPSOIL - On -Site Topsoil: Topsoil shall consist of an average depth of six inches of
native surface soil left in place after the ground covcr of herbaceous vegetation and other
objectionable matter has been eleared by "blading," as specified in Section 02200, "Site
Preparation." Topsoil may be greater or less than the upper six inehes (6 ") in depth.
GP04 -0054 — Westgate Phase fI
Texas Midstream Gas Services, L.IX. Right -of -Way Use Agreement
Page 23 ol'28
2.04 IMPORTED FILL
A. Imported fill materials shall be used for the construction of earth embankment in
the event that; (1) the volume of unclassified excavation is less than the volume of
Fill required for earth embankment and/or; (2) the condition of materials removed
in unclassified excavation makes them unsuitable for use in the construction of
earth embankment.
B. The Developer /Contractor shall haul and place imported fill obtained from off -site
sources as necessary to construct the embankment and various other details of the
construction plans. All costs related to such imported fill will be ineluded in the
contract priee, and no additional or separate payment for imported fill will be due
the Contractor.
C. A sample of the proposed imported Fill must be provided by the Developer/
Contractor and be approved by the Owner. In general, imported material must be
equal to or better than native material in quality and engineering characteristics.
The Owner may also require the Contractor to provide a material analysis test of
the proposed fill.
2.05 SELECT MATERIALS
A. Select materials shall be imported from offsite sources, unless they are available
from speeifically designated areas on the site as marked on the plans.
2.06 UNSUITABLE MATERIALS
A. Topsoil, select material, imported fill, or unclassified fill to be used as finish
grade top dressing will be declared as "unsuitable" by the Owner if, in his
opinion, any of the following conditions or matter and particles are present to a
degree that is judged detrimental to the proposed use of the material.
1. Moisture
2. Decayed or undecayed vegetation
1 Hardpan clay, heavy clay, or clay balls
4. Rubbish
5. Construction rubble
6. Sand or gravel
7. Rocks greater than one half inch (1/2") diameter
8. Cementious matter
9. Foreign matter of any kind
B. Unsuitable materials will be disposed of as "waste" as specified in Section 02200.
C. Wet Material: If fill material is unsatisfactory for use as embankment solely
because of high moisture content- the Owner may grant the Developer /Contractor
GP09 -0054 — Westgate Phase H
Texas Midstream Gas Services, L.L.C. Righi -of -Way Live Agreement
Page 24 of28
permission to proeess the material to reduce the moisture eontent to a usable
optimum condition.
PART 3- EXECUTION
3.01 SITE PREPARATION: In general, "site preparation," as specified in Section 02200, shall
be performed in advance of grading and earthwork operations and shall be completed
over the entire area of earthwork operations.
3.02 TOPSOIL
A. The removal and storage of topsoil shall occur after site preparation is complete
and before excavation and embankment construction begin. Likewise, topsoil
will be replaeed after excavation and embankment construction are complete.
B. Removal: Topsoil shall be stripped to an average depth of six inches from areas
where excavation and embankment construction are planned. Topsoil may be
obtained from greater depths if it is uncontaminated by the substratum and it is of
good quality. in the opinion of the Owner.
C. Storage: Topsoil shall be stored in stockpiles eonveniently located to areas that
will later receive the topsoil. Stockpiles shall be out of the way of earthwork
operations in locations approved by the Owner. Stored topsoil shall be kept
separate from other excavated materials and shall be protected from
contamination by objectionable materials that would render it unsuitable.
D. Timing: Topsoil will not be replaced (deposited) until construction aetivities are
complete that would create undesirable conditions in the topsoil, such as
overcompaction or contamination. Trenching for items such as electrical conduit
and irrigation pressure lines must be complete before topsoil replacement may
begin.
E. Replaeement: 'Topsoil will be deposited in a single layer or lift. It will be placed,
processed, compaet.ed, and graded to leave a finished layer of topsoil not less than
five inches in depth. Unless otherwise indieat.ed, topsoil will be replaced over all
areas of earthwork (including slopes), exeept where pavement is planned.
F. Grading: Topsoil will be Final graded to the elevations shown on the plans. Fine
grading will be accomplished with a weighted spike harrow, weighted drag,
tractor box blade, light maintainer, or other aceeptable machinery. All particles of
the finish grade shall be reduced to less than one half inch (112 ") in diameter or
they shall be removed. All rocks of one inch or greater shall also be removed.
Grading operations and equipment will be such that topsoil does not become
overcompaeted. Bulldozer blades and front -end loader buckets are not acceptable
deviees for topsoil grading operations. Final grading within five feet of
constructed or installed elements shall be hand raked.
GP04 -0054 — Wcstgare Phase 11
Texas Midstream Gas Services. I..[..C. Right - of =Way Use Agreement
Page 25 of 29
G. Acceptability: Finished areas of topsoil are satisfactory if they are true to grade,
true in plane, even in gradient (slope), uniform in surface texture, and of normal
compaction. Areas of loose granular pockets or of overeompacted soils are not
acceptable and will be reworked. Finished areas will promote surface drainage
and will be ready for turfgrass planting.
3.03 UNCLASSIFIED EXCAVATION
A. All excavated areas shall be maintained in a condition to ensure proper drainage
at all times, and ditehes and sumps shall be constructed and maintained to avoid
damage to the areas under construction.
A. Surplus Material:
1. Surplus excavation is that quantity of material that may be left over after
the grading plan is executed, and all earthwork operations, including
excavation, embankment construction, topsoil replaeement, and final
grading, are completed. Any other surplus material shall be disposed of as
=`waste' as specified in Section 07700. All such cost for removal shall he
considered as incorporated into Earthwork costs.
C. Exeavation in Rock: The use of explosives will not be permitted. Unless
otherwise indicated on the plans, excavation in solid rock shall extend six inches
below required subgrade elevation for the entire width of the area under
construction and shall be backfilled with suitable materials as indicated on the
plans.
3.04 EARTH EMBANKMENT
A. Earth embankment is defined as embankment composed of suitable materials
removed in unclassified excavation and/or imported fill. The construction of
embankment includes preparing the area on which fill is to be placed and the
depositing, conditioning, and compaction of fill material.
B. General: Except as otherwise required by the plans, all embankment shall be
construeted in layers approximately parallel to the finished grade of the graded
area, and each layer shall be so constructed as to provide a uniform slope as
shown on the grading plan. Embankments shall be constructed to eorrespond to
the general shape of the typical sections shown on the plans, and each section of
the embankment shall correspond to the detailed section or slopes established by
the drawings. After completion of the graded area, embankment shall be
eontinuously maintained to its finished section and grade until the projeet is
aceepted.
C. Preparation: Prior to placing any embankment, all preparatory operations will
have been completed on the excavation sources and areas over which the
GP09.0054 — Westgate Phase If
Cexas Midstream Gas Services, L.L.C. Right - of --Way Use Agreement
Pagc 26 of 28
embankment is to be placed. The subgrade shall be proof rolled to deteet soft
spots, which if exist, should be reworked. Proof rolling shall be perfonned using
a heavy pneumatic tire roller, loaded dump truck, or similar piece of equipment
weighing approximately 25 tons except as otherwise specified for tree protection
and areas inaccessible to vehicular compactors. Stump holes or other small
excavations in the limits of the embankments shall be backfilled with suitable
material and thoroughly tamped by approved methods before commencing
embankment construction. The surface of the ground, including plowed, loosened
ground, or surfaces roughened by small washes or otherwise, shall be restored to
approximately its original slope by blading or other methods, and, where
indicated on the plans or required by the Owner, the ground surface, thus
prepared, shall be compacted by sprinkling and rolling.
D. Scarification: The surface of all areas and slopes over which fill is to be placed,
other than rock, shall be scarified to a depth of approximately six inches to
provide a bond between the existing surface and the proposed embankment.
Scarification shall be accomplished by plowing, discing, or other approved
means. Prior to fill placement, the loosened material shall be adjusted to the
proper moisture content and recompacted to the density specified herein for fill.
E. Benching: Scarification is normally adequate for sloping surfaces. However, in
certain cases whcre fill is to be placed against hillsides or existing embankment
with slopes greater than 4:1, the Owner may direct the Developer /Contractor to
key the fill material to the existing slopes by benching. A minimum of two feet
normal to the slope shall be removed and recompacted to ensure that the new
work is constructed on a firm foundation free of loose or disturbed material.
Depositing: Fill material shall be placed in horizontal layers or lifts, evenly
spread, not to exceed eight inchcs (8 ") in loose depth before conditioning and
compaction. Unless otherwise permitted, each layer of fill material shall cover
the length and width of the area to be filled and shall be conditioned and
compacted before the next higher layer of fill is placed. Adequate drainage shall
be maintained at all times.
G. Watering: At the time of compaction, the moisture content of fill material shall
be such that the specified compaction will be obtained, and the fill will be firm,
hard, and unyielding. Fill rnatcrial which contains excessive moisture shall not be
compacted until it is dry enough to obtain the specified compaction.
H. Compacting: Each layer of earth fill shall be compacted by approved tamping, or
sheepsfoot rollers, pneumatic tire rollers, or other mechanical means acceptable to
the Owner. Hand - directed compaction equipment shall be used in areas
inaccessible to vehicular compactors.
GP09 -0054— Westgate Phase I
Texas Midstream Gas Services, L.L.C. Right -of -Way Use Agreement
Page 27 of 28
1. Grading: Embankments shall be constructed in proper sequence and at proper
densities for their respcctive functions. All embankment serves in one capacity or
another as subgrade (e.g., under topsoil, under concrete and asphalt pavement,
under structures. etc.). Accordingly, the upper layer of embankment shall be
graded to within plus or minus 0.10 foot of proper subgrade elevation prior to
depositing topsoil, and prior to the construction of pavements, slabs, etc.
3.05 DENSITY CONTROL
A. Earth Embankment in General: Earth embankment shall be compacted in lifts at a
minimum of ninety pcevent (90 %)of Standard Density ASTM D698 with plus
four percent (4 %) or minus two percentage (2 %) points of optimum moisture
content.
B. Earth Embankment Under Structures and Pavement: The top six inches (6 ") of
natural earth comprising the subgrade for structural slabs or for areas of pavement
shall be ninety five percent (95 %) to ninety eight percent (98 %) of Standard
Density ASTM D698 with the moisture content at minus two percent (2 %) to plus
four percent (4 %) of optimum.
3.06 MOISTURE MAINTENANCE: The specified moisture content shall be maintained in
all embankments that are to function as subgrade for structures, areas of pavement, or for
select embankment. After completion of the embankment, the Dcveloper /Contractor
shall prevent excessive loss of moisture in the embankment by sprinkling as required.
Loss of moisture in excess of two percent (2 %) below optimum in the top twelve inches
( 12 ") of the fill will require that the top twelve inches (12 ") of the embankment be
scarified, wetted, and recompacted prior to placement of the structure, select fill or
pavement. If desired, the Developer/Contractor may place an asphalt membrane of
emulsified or cutback asphalt over the completed embankment and thus eliminate the
sprinkling requirement.
3.08 TOPSOIL REPLACEMENT: Topsoil shall be carefully placed to avoid any
displacement or damage to the subgrade. If any of the subgrade is rutted, damaged or
displaced it shall be restored prior to placing topsoil. Topsoil shall be replaced as
specified herein per Item 3.02.
END OF SECTION
GP094)054 — Westgate Phase 11
Texas Midstream Gas Services, L.L.C. Right -of -Way Use Agreement
Page 28 of 28
City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 7110/2012
DATE: Tuesday, July 10, 2412 REFERENCE NO.: L -15393
LOG NAME: 06WESTGATE PHASE II
U� BJ ECT_:
Authorize Execution of a Public Right -of -Way Use Agreement Granting Texas Midstream Gas Services,
L.L.C., a License to Construct and Operate an Eight -Inch Natural Gas Gathering Pipeline Across
Nineteenth Street, Across Jones Street and Along Lancaster Avenue (COUNCIL DISTRICT 9)
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to execute a public right -of -way use
Agreement with Texas Midstream Gas Services, L.L.C., for a one -time license fee in the amount of
$163,398.40 and granting a license to construct and operate an eight -inch natural gas gathering pipeline
(i) across Nineteenth Street, north of Jones Street; (ii) across Jones Street, north of Lancaster Avenue,
and (iii) along Lancaster Avenue, east of Calhoun Street to the west of Lamar Street.
DISCUSSION:
Texas Midstream Gas Services, L.L.C., is constructing an eight -inch pipeline to connect natural gas wells
in Fort Worth. With the exception of the private property easements on the east and west ends of this
segment, the pipeline will be located in public easements. The approximate location of the pipeline and
crossings are shown on the attached map.
The Transportation and Public Works Department has reviewed the proposed project and crossing and
has no objections. Although this pipeline will be located primarily within public right -of -way, portions at the
east and west ends will be installed under private property. However, that land is not residentially zoned
and used property.
The public right -of -way use Agreement will give Texas Midstream Gas Services, L.L.C., a license to use
3376 feet of that specific public right -of -way for the limited purpose of operating a natural gas pipeline for a
period of 25 years. Texas Midstream Gas Services, L.L.C., will pay the City a one -time license fee in the
amount of $163,398.44, in return for this privilege. The company will be required to provide bonds and
insurance in accordance with the City's current standard policies. Because Texas Midstream Gas
Services, L.L.C., is not a public utility, as that term is defined in Chapter 28 of the City Code, a franchise
governing its operations is not required by the City Charter.
This pipeline project is located in COUNCIL DISTRICT 9.
FISH INFORMATION 1 C :,RTI FICATION:
The Financial Management Services Director certifies that the Planning and Development Department is
responsible for the collection and deposit of funds due to the City.
FUND CENTERS:
TO Fund/Ac oun Centers
T ogname: 06WE-STGATE PHASE II Page 1 of 2
GG01 421502 0062040
CERTIFICATIONS:
$163,398.4Q FROM FundfAccountlCenters
Submitted for City Manager's Office by:
Originating Department Head:
Additional Information Contact:
ATTACHMENTS
1. account verification.doc (CFW Internal)
2. Westgate Phase It Mao.ndf (Public)
Fernando Costa (6122)
Randle Harwood (6101)
Tom Edwards (2314)
Logname: 06WESTGATE PHASE II Page 2 of 2