HomeMy WebLinkAboutContract 36391 Lzfl
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PIPELINE LICENSE AGREEMENT
This PIPELINE LICENSE 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 Libby Watson, its duly
authorized Assistant City, Manager, and TEXAS MIDSTREAM GAS SERVICES, L.L.C., an
Oklahoma limited liability company, acting by and through James C. Johnson, President.
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The following statements are true and correct and constitute the basis upon which the
City of Fort Worth has executed Agreement.
A. Texas Midstream Gas Services, L.L.C., an Oklahoma limited liability company
("Company"), wishes to construct a twenty-four inch(24") nominal diameter pipeline for a for'a
linear distance of 7.424.7 feet within a twenty (20') foot width right of way corridor for the
transportation of natural gas through a Public 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 Pipeline requested would be a part of a larger planned line that incorporates
an easement with the Fort Worth Western Railroad and is being coordinated with the U.S. Army
Corps of Engineers and the Tarrant Regional Water District.
C. The City has reviewed Company's request and agrees to grant Company a license
to use a portion of the subsurface of Rockwood Park and Rockwood Golf Course 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 me :rigs:
Affiliate shall mean any individual, partnership, association.
joint stock comp any. 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.
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Agreement shall mean the authorization issued to Company hereunder to use a portion of
a public park known as Rockwood Park and Rockwood Golf Course in the
location as set out in Exhibit "A" for (i) the construction, installation,
maintenance and repair of Company's Pipeline; (ii) the use of such Pipeline for
the transportation of Gas; and (iii) any other directly related uses of Rockwood
Park and Rockwood Golf Course, pursuant to and in accordance with this
Agreement.
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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.
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Commission shall mean the Railroad Commission of the State of Texas or other
authority succeeding to the regulatory powers of the Commission.
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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 Parks and Community
Services or authorized representative.
Gas shall mean gaseous fuels such as natural gas, artificial gas, synthetic gas, liquefied
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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 the pipeline and other facilities approved by the Director that are
installed by Company in Rockwood Park and Rockwood Golf Course in
accordance with this Agreement.
Rockwood Park and Rockwood Golf Course shall mean only ').415 acre portion of
the dedicated public park identified in Exhibit '-A- of i this Agreement, attached
hereto and hereby made a part of this Agreement for all purposes.
2. GRANT OF RIGHTS,
2.1. General Use of Rockwood Park and Rockwood Golf Course 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.
Fexas Nfigdsireain Gas Se.,vices, LL P�;pelinc-Licen
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install and maintain a Class 4, 24" Pipeline consisting of 7.424.7 linear feet in, over.
under, along and across Rockwood Park and Rockwood Golf Course at a depth of no less'
than 4 feet (see 7.4.1 and 7.4.2) and (ii) transport Gas through the portions of its Pipeline
in, over, under, along and across Rockwood Park and Rockwood Golf Course. 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 W
3.2. 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 Rockwood Park and Rockwood Golf Course 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 Rockwood Park and Rockwood Golf Course, the City will resolve such dispute 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 Rockwood Park and Rockwood Golf Course 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 Rockwood Park and Rockwood Golf Course, 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.
3.3. Other Permits.
This Agreement does not relieve Company of any obligation to obtain permits,
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licenses and other approvals from the City or other regulatory agency necessary for the
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construction, installation, maintenance or repair of Company's Pipeline or the
transportation of Gas through such Pipeline.
3.4. Bonds.
Prior to the commencement of anv construction work in Rockwood Park and
Rockwood Golf Course. 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 xvill be
performed in Rockwood Park and Rockwood Golf Course. The bonds shall guarantee (i)
satisfactory compliance by Company with all requirements, terms and conditions of this
Agreement and (11) full payments to all persons, firms, corporations or other entities with
Jexa Nfiditreana Gas Serviccs, LLIC Pirwline License Agreennent
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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
Rockwood Park and Rockwood Golf Course. The bonds shall guarantee (1) 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 obliges.
4. 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 on December 31, 2027 unless
terminated earlier as provided herein.
5. FEES AND PAYMENTS TO CITY.
5.1. License Use Fee.
On or prior to the Effective Date, Company shall pay the City as compensation
for its use of Rockwood Park and Rockwood Golf Course for the Term of this Agreement
the sum of$324,830.63 ("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 Rockwood Park and Rockwood Golf Course.
5.2. Other Pavtnents.
5.2.1 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 's Charter.City
Agreement as required by the
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5.2.2 In addition to the License Fee, Company shall pay the City damages of
$11,300.00 per day for each day the Pipeline fails to meet the timeline for
construction and installation as set forth in Section 7.4.1
Fexas Midstreazri Gas Services, 11-L.C. Pineline fJcense ArLement
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5.3. 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 (330) 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.
6. REGULATORY AUTHORITY OF THE CITY.
Company's property and operations hereunder shall be subject to such regulation by the
City as may be reasonably necessary for the protection or benefit of the general public. In this
connection, Company shall be subject to, governed by and shall comply with all applicable
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.
7. USE OF ROCKWOOD PARK AND ROCKWOOD GOLF COURSE.
7.1 Construction Schedule
Construction of the Pipeline shall commence January 2, 2008 and be completed
within 60 calendar days for work done in Rockwood Golf Course. Construction of the
Pipeline shall commence Jan 2, 2008 and be completed within 30 calendar days for
Rockwood Park. Company shall meet with appropriate City staff for the purposes of a
pre-construction meeting prior to the commencement of construction of the Pipeline.
7.2. Compliance with Laws, Ordinances, Rules and Regulations.
The City has the right to control and regulate the use of Rockwood Park and
Rockwood Golf Course 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.
7.3. 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
Texas Midstream Ga;Services, LIC. i lin-r-- 1 'e Agreenncnt
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Rockwood Park and Rockwood Golf Course by the City and the public. If the City
reasonably determines that the Pipeline does place an undue burden on any portion of
Rockwood Park and Rockwood Golf Course, 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.
7.4. Minimal Interference.
Prior to the undertaking of any kind of construction, installation, maintenance,
repairs or other work that requires the excavation, lane closure or other physical use of
Rockwood Park and Rockwood Golf Course, 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 Rockwood Park and Rockwood Golf
Course that will be affected. In the case of emergencies Company shall provide notice to
the affected landowners within twenty-four (24) hours after commencement of work. In
addition, during any such work, Company shall provide construction and maintenance
signs and sufficient barricades at work sites to protect the public. The use of traffic
control devices shall be consistent with the standards and provisions of Part VI of the
Texas Manual on Uniform Traffic Control Devices. Company shall utilize appropriate
warning lights at all construction and maintenance sites where one or more traffic lanes
are closed or obstructed during nighttime conditions.
Company will take all reasonable planning to minimize harm to the park land and
shall comply with conditions as set forth below:
7.4.1 The pipeline will cross under Rockwood Park and Rockwood Golf Course
from a bore hole located on the Western Capital property located east of
Rockwood Golf Course ("RGC") Hole #2, no disturbance of RGC Hole #2 shall
occur. All boring occurring at the end of RGC Hole #14 green, Hole #1 and Hole
42 shall be at a minimum of eight (8) feet. A small variation of the bore at its
beginning and end may be approved by the Director of Golf.
7.4.2 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. The orange vinyl fencing shall remain in
place until repairs have been made by the Company and inspected by the
FWPACSD. For all open trenches, for Rockwood Park, the pipe shall be buried a
minimum of four(4) feet from the top of the pipeline.
7.4.3 Company shall specify work areas prior to construction and survey and
stake said areas, notating, the centerline and boundaries of work are as agreed
upon at the pre-construction meeting.
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7.4.4 All access to work areas and bore/staging sites shall be limited to SH 199-
Jacksboro Highway to minimize damage to RGC. Travel along the right of way
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corridor shall not be permitted.
7.4.5 Irrigation lines/head damage shall be repaired by Company within twenty
four (24) hours of notice of the Image by the City. resulting irrigation
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pipe/wire ditch shall remain open until said repairs are approved by the Golf
Superintendent.
7.4.6 Grassing across RGC fairways and roughs shall be backfilled, the soil
compacted and sodded with weed free 4419 Bermuda on RGC and common
Bermuda on Rockwood Park. The sod is to be cut twenty four (24) hours within
time from which it is laid, with sodding to begin no earlier than March 17, 2008.
All native areas north of RGC Hole 41 fairway are to be seeded with Blue Stem,
said native areas to be marked by the Golf Course Superintendent. Approval of
sod and coordination of installation shall be through the Golf Course
Superintendent. All sod will be maintained by the Company until established.
Maintenance shall include, but not limited to watering, removal and replacement
of dead grass and any de-weeding of disturbed areas.
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7.4.7 The bridge located at RGC Hole #12 is to be undisturbed during
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installation of the Pipeline.
7.4.8 Company will provide and install replacement tress of at least a three
inch caliper to mitigate removal of live trees from RGC Hole 414 and any other
trees removed due to the Pipeline. FWPACSD shall provide to Company
approved tree species list and designate planting location of said trees. The trees
and shrubs will be maintained by the Company until established for a period
of one year. At such time any plant material that dies during that period
shall be replaced at the expense of the Company. At the end of the guarantee
period all planting shall be inspected by RGC for acceptance.
7.4.9 Company will place shrubs/plants behind RGC Hole #14 after
completion of the construction and installation of the Pipeline. Said plants shall
be no less than 36 in height from the top of the root ball (see 7.4.8 maintenance).
Company will gather all spoil on the Jacksboro Highway side of the right of way
corridor; however, soil segregation shall not be required in said area. FWPACSD
shall provide to Company approved species list.
No compressor stations associated with the pipeline shall be located within six
hundred (600) feet of Rockwood Park and Rockwood Golf Course. No pipeline surface
excavation shall take place in Rockwood Park and Rockwood Golf Course for any
purpose except for (i) an event of public danger which is a condition that creates an
unreasonable risk of harm; (ii) as governed by State and Federal guidelines or
regulations-, or (iii) this license agreement is amended by the City Council. The areas for
'I exas Midstream 6_1,,s Services- 'LL ICI I'mchne 1.1'cense A orcemen,
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surface excavation shall apply only to those areas identified as open trench areas. The
Company shall notify the FWPACSD in the event of an emergency.
7.5. Parking Lot
The Company, at Company's sole cost and expense, shall rebuild and repair the
parking lot located on the western side of the entrance road to the park that runs parallel
to Jacksboro Highway. Said parking lot shall serve as the staging area and facilitate that
portion of the pipeline which will be housed under said parking lot. The City shall
provide Company with City of Fort Worth Department of Engineering specifications for
repair, resurfacing and pavement of said parking lot. The City shall obtain estimates for
the cost of repairing, resurfacing and paving of parking lot to include asphalt, concrete,
curbing and striping of the area. The City shall participate in the selection of the bid.
Protection of trees shall be provided for all surrounding trees prior to and during
the parking lot renovation. Orange safety fencing shall be place on the outside drip line
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of any trees affected to protect such trees from any damage occurring during renovation.
7.6. "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
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reflected in the City's mapping system.
7.7. Specifications of the Pipeline
The Company shall erect, install, construct, repair, replace and maintain the
Pipeline as a Class 4 pipeline as defined by the U.S. Department of Transportation,
Office of Pipeline Safety, as set out in the Code of Federal Regulations, Section 192 and
as directed by the Texas Railroad Commission. The Pipeline shall be at least a 24 inch
steel pipe, be placed at a depth as specified in Sections 7.4.1- 7.4.2 and at width of no
more than 20 feet throughout the entire length of Rockwood Park and Rockwood Golf
Course. The finished pipeline shall have a city approved physical barrier that the Pipeline
shall pass through at both ends where the Pipeline enters or exits the boundary of
Rockwood Park and Rockwood Golf Course.
7.8. Marking of Pipeline.
I ex as M idstrearn Gas Services,L.L.C. Pirehne Liice,,-Ne Agreemenl
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The Pipeline shall be marked, in a manner that is acceptable to the Director and in
compliance with Federal Regulations, to show conspicuously Company's name and a
toll-free telephone number of Company that a Person may call for assistance.
7.9. Surface Excavation and Additional Fees.
The City shall have the right to coordinate all excavation work in Rockwood Park
and Rockwood Golf Course 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 Rockwood Park and Rockwood Golf Course. Company shall not
cut, excavate or otherwise breach or damage the surface of Rockwood Park and
Rockwood Golf Course unless the (i) Company obtains written consent from the City
Council and (ii) pays the City, for each fifty (50) linear feet of a cut, excavation or breach
of any portion of the Park as designated by the City Council. Such fee shall (1) be in
addition to, and not in lieu of, Company's obligations to restore any disturbed portion of
the surface of Rockwood Park and Rockwood Golf Course in accordance with this
Agreement and (ii) not be allocated or otherwise counted as part of the License Fee to the
City.
7.10. 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 Rockwood Park and Rockwood Golf Course 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
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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 Parks and Community Services in writing and the City will work in
good faith with Company to negotiate a workable time frame.
711. Restoration of Rockwood Park and Rockwood Golf Course, Public Rights-of-
Wav, 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 Rockwood Park apd Rockwood Golf Course,
City-owned property or other privately-wN�med 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 Com pan x, first became aware of the disturbance or
I c.xas Midsvream(J'as,Services, Pipe=ine License t reem-ent
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damage or, if the Pipeline is being removed, within thirty (30) calendar days following
such removal.
7.12. Emergencies.
7.12.1. Work by the City.
For purposes of this Section 7.10.1, a public emergency shall be any
condition which, in the opinion of the officials specified herein, poses an
immediate threat to life, health or property and is caused by any natural or man-
made disaster, including, but not limited to, storms, floods, fires, accidents,
explosion, water main breaks and hazardous materials spills. In the event of a
public emergency, the City shall have the right to take whatever action is deemed
appropriate by the City Manger, Mayor, Police Chief or Fire Chief, or their
authorized representatives, including, but not limited to, action that may result in
damage to the Pipeline, and Company hereby (i) releases the City, its officers,
agents, servants, employees and subcontractors from liability or responsibility for
any Damages, as defined in Section 8.1, that may occur to the Pipeline or that
Company may otherwise incur as a result of such a response, and (ii) agrees that
Company, at Company's sole cost and expense, shall be responsible for the repair,
relocation or reconstruction of all or any of its Pipeline that is affected by such
action of the City. In responding to a public emergency, the City agrees to
comply with all local, state and federal laws, including any requirements to notify
the Texas One Call System, to the extent that they apply at the time and under the
circumstances. In addition, if the City takes any action that it believes will affect
the Pipeline, the City will notify Company as soon as practicable so that Company
may advise and work with the City with respect to such action.
7.12.2. Work by or on Behalf of Companv.
In the event of an emergency directly that involves that portion of the
Pipeline located in Rockwood Park and Rockwood Golf Course 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 Parks and
Community Semices and otherwise fully comply with the requirements of this
Agr.-ement.
7.13. Removal of Pipeline.
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Upon the revocation, termination or expiration without extension or renewal of
this Agreement, Company's right to use Rockwood Park and Rockwoou A Golf Course
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under this Agreement shall cease and Company shall immediately discontinue the
transportation of Gas in or through the City. Within six (6) months following such
revocation, termination or expiration and if the City requests, Company, at Company's
sole cost and expense, shall remove the Pipeline from Rockwood Park and Rockwood
Golf Course (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
Rockwood Park and Rockwood Golf Course, (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 Rockwood Park
and Rockwood Golf Course 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 7.9 of this Agreement, Company shall also
restore any property, public or private, that is disturbed or damaged by removal (or, if
consented to by the City, capping) of the Pipeline. If Company has not restored all such
property within this time, the City, at the City's sole option, may perform or have
performed any necessary restoration work, in which case Company shall immediately
reimburse the City for any and all costs incurred in performing or having performed such
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restoration work.
8. LIABILITY AND INDEMNIFICATION.
8.1. Liability of Companv.
Company shall be liable and responsible for any and all damages, losses,
liabilities (joint or several), payments, obligations, penalties, claims, litigation, demands,
defenses, judgments, lawsuits, proceedings, costs, disbursements or expenses (including,
without limitation, fees, disbursements and reasonable expenses of attorneys, accountants
and other professional advisors and of expert witnesses and costs of investigation and
preparation) of any kind or nature whatsoever (collectively "Damages"), which may
arise out of or be in any way connected with (i) the construction, installation, operation
maintenance or condition of the Pipeline or any related facilities or appurtenances-. (ii) the
transportation of Gas through the Pipeline; (iii) any claim or lien arising out of work,
labor, materials or supplies provided or supplied to Company, its contractors or
subcontractors; or (iv) Company's failure to comply with any federal, state or local law,
ordinance, rule or regulation, except to the extent directly caused by the negligent or
grossly negligent act(s) or omission(s) or intentional misconduct of the City.
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COMPANY HEREBY ASSUMES ALL LIABILITY AND RESPONSIBILITY
FOR PROPERTY LOSS, PROPERTY D_A!iIAGE ANDIOR PERSONAL INJURY OF
ANY KIND, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND
OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN
CONNECTION WITH ITS USE OF THE PREMISES UNDER THIS AGREEMENT
OR WITH THE USE, i,[AIATTENANCE, OCCUPANCY, EXISTENCE OR
LOCATION OF THE PREMISES, EXCEPT TO THE EXTENT CAUSED SOLELY
BY THE NEGLIGENCE OR INTENTIONAL MISCONDUCT OF THE CITY.
8.2 Indemnification.
COMPANY COVENANTS AND AGREES TO, AND DOES HEREBY,
INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS,
AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS,
COMMISSIONS, BOARDS AND VOL UNTEERS FROM AND AGAINST ANY AND
ALL CLAIMS OR LAWSUITS FOR EITHER PROPERTY DAMAGE OR LOSS
(INCLUDING ALLEGED DAMAGE OR LOSS TO COMPANY'S BUSINESS AND
ANY RESULTING LOST PROFITS) ANDIOR PERSONAL INJURY, INCLUDING
DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER,
WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION
WITH THE USE, MAINTENANCE, OCCUPANCY, EXISTENCE OR LOCATION
OF THE PREMISES, EXCEPT TO THE EXTENT CAUSED SOLELY BY THE
NEGLIGENCE OR INTENTIONAL MISCONDUCT OF THE CITY.
8.3 Assumption of Risk and Environmental Remediation.
COMPANY HEREBY REPRESENTS TO THE CITY THAT (i) COMPANY
HAS FULLY INSPECTED THE PREMISES, (ii) COMPANY IS SATISFIED WITH
THE CONDITION OF THE PREMISES,AND (iii) COMPANY HAS BEEN FULLY
ADVISED OF ITS OWN RIGHTS WITHOUT RELIANCE UPON ANY
REPRESENTATION MADE BY THE CITY, ITS OFFICERS, AGENTS,
SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS,
COMMISSIONS, BOARDS OR VOLUNTEERS. COMPANY HEREBY
UNDERTAKES AND ASSUMES, FOR AND ON BEHALF OF COMPANY, ITS
OFFICERS, AGENTS, CONTRACTORS, SUBCONTRACTORS AND EMPLOYEES,
ALL RISK OF DANGEROUS CO 9ITIONS, IF ANY, ON OR ABOUT THE
PREMISES.
Although. to the best of the City's knowledge, the Premises comply with all
applicable federal, state and local environmental laws and regulations (collectively
"Environmental Laws"), the City= does not vx-arrant such. COMPANY HEREBY
COVE HANTS AND AGREES THAT COMPANY, AT ITS SOLE COST AND
EXPENSE, SHALL BE FULLY RESPONSIBLE FOR THE VIOLA TION OF ANY
E.,VVIRONMENTAL LAWS CAUSED, IN WHOLE OR INPART, BYCOMPA S ', ITS
OFFICERS, AGEN IS, SERVANTS, EMPLOYEES, CONTRACTORS,
1 xa W'z`irc ?(Jas Services 1.1 C. Eli t lin 4nse: E t ent
Pau 12 of 18
SUBCO.VTRA CTORS OR INVITEES, AND ANY REMEDL4 TIOY THAT M4 Y BE
REQUIRED AS A RESULT OF SUCH V70LATIO-N, EXCEPT TO THE EXTEIVT
CAUSED BY THE CITY
8.4. 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
I tn
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.
9. 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
tn
additional insured and covering all public risks related to the use, occupancy, condition.
maintenance, existence or location of Rockwood Park and Rockwood Golf Course and the
construction, installation, operation, maintenance or condition of the Pipeline, including the
transportation of Gas through the Pipeline. The insurance required hereunder may be met
by a combination of self-insurance, primary and excess policies. The insurance required
hereunder may be met by a combination of self-insurance, primary and excess policies.
9.1. Primary Liabilitv Insurance Coverage.
• Commercial General Liability:
$1,000,000 per occurrence, including coverage for the following: (i) Premises
Liability; (ii) independent contractors; (iii) products/completed operations; (iv)
personal injury; (v) contractual liability; (vi) explosion, collapse and
underground property damage.
• Property Damage Liability:
$10,000,000 per occurrence
• Automobile Liabilitv:
$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 Aureement
Wsu E.aarn Gas Scrvices, L.L. •. flmehne lJocn.se Aureeinent
Page 1 3 of 11 8
Worker's Compensation:
As required by law- and, Employer's Liability as follows:
$1,000,000 per accident.
9.2. 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 (3)0) 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.
9.3. Underwriters and Certificates.
Company shall procure and maintain its insurance with underwriters authorized to
do business in the State of Texas and who are acceptable to the City in terms of solvency
and financial strength. Within thirty (30) days following adoption of this Agreement by the
City Council, Company shall furnish the City with certificates of insurance signed by the
respective companies as proof that it has obtained the types and amounts of insurance
coverage required herein. In addition, Company shall, on demand, provide the City with
evidence that it has maintained such coverage in full force and effect.
9.4. Deductibles.
Deductible or self-insured retention limits on any line of coverage required herein
shall not exceed $25,000 in the annual aggregate unless the limit per occurrence or per line
of coverage, or aggregate is otherwise approved by the City.
9.5. No Limitation of Liability.
The insurance requirements set forth in this Section 9 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 1-mv,
M-d streann Ga-�Services, L.L.C. Pipel'nc'Lioen,�e A,oreement
Ila
14 18
10. 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:
10.1. Failure to Pav License Fee.
An Event of Default shall occur if Company falls to pay any License Fee on or
before the respective due date.
10.2. 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 falls
to perform any obligation required by this Agreement.
10.3. Bankruptev, Insolvencv 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.
10.4. Violations of the Law.
An Event of Default shall occur if Company violates any existing or future federal,
state or local laws or any existing or future ordinances, rules and regulations of the City.
11. UNCURED DEFAULTS AND REMEDIES.
11.1. Notice of Default and Opportuni4,- to Cure.
If an Event of Default occurs on account of Company's failure to pay the License
Fee in accordance with Section 10.1. 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,
I as Midstream Gas Senwes, L LC, PineHne Licensc-Aareerrent
Page 15 of,S
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 11.2.
11.2. 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
z:1
cumulative of and without limitation to any other rights or remedies the City may have:
11.2.1. 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 Rockwood Park and
Rockwood Golf Course as and when requested by the City. The City's right to
terminate this Agreement under this Section 11.2.1 does not and shall not be
construed to constitute any kind of limitation on the City's right to terminate this
Agreement for other reasons as provided by and in accordance with this
Agreement; provided, however, that Company may not abandon the Pipeline
without the approval of the Commission or successor agency or other regulatory
authority with jurisdiction, if such action without such approval is prohibited at
the time by applicable federal or state law or regulation.
11.2.2. 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.
xa-�M'--k rewn Ga. Se- ices, LIJ , Np6ne Licen----,eAnm--emenL
Page 16 of''I 8
12. PROVISION OF INFORMATION.
12.1. 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 (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, 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.
12.2. 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.
13. 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.
14. ASSIGNMENT PROHIBITED.
Company may not assign or othle�ise transfer any of its rights or obligations under this
Agreement unless specifically authorized in writing by the City, which authorization shall not be
ZIre
unreasonably withheld,
lexas,MNdstream Gas Ser%iccs,L.L.C. 1'4-chne 1,icense Atzrecmen,',
1 7 c f 18
15. 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: To COMPANY:
City of Fort Worth Chesapeake Energy Marketing, Inc.
Parks and Community Services Director Kerry Clapp, Area Operations Manager
1000 Throckmorton 6100 N. Western Avenue
Fort Worth, TX 76102 Oklahoma City, OK 731118
with a copy to:
City of Fort Worth
Department of Law
Attn: Attorney for Parks and Community Services
1000 Throckmorton
Fort Worth, TX 76102
16. NON-DISCRIMINATION COVENANT.
Company shall not discriminate against any person on the basis of race, color, national
origin, religion, handicap, sex, sexual orientation or familial status in the receipt of benefits from
Company's business operations, in any opportunities for employment with Company or in the
construction or installation of the Pipeline.
17. NO WAIVER.
The failure of the City to insist upon the performance of any term or provision of this
W
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 rig t to insist upon appropriate performance or to assert
any such right on any future occasion,
%fidstrearr,Cias Services. LLC. Pipehnie Jcens;e A een-,,era
Paae 1 8 o"
18. 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 Rockwood Park and Rockwood Golf Course, 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.
19. 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
Rockwood Park and Rock-wood Golf Course.
20. 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
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.
21. FORCE TMAJEURE.
In the event Company's performance of any of the terms, conditions or obligations required
by this Agreement is prevented by a cause or event that is not within Company's reasonable control,
Company's non-performance shall be deemed excused for the period of such inability. Causes or
events that are not within the Company's control shall include, but not be limited to, acts of God,
strikes, sabotage, riots or civil disturbances, failure or loss of utilities, explosions and natural
disasters.
22. 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 Ao eement.
--r
f exds."fidstreann Gas Services, 1-1-C. Piinel;ne 11.1cense A r n, n-
ee
'3'agc
19 of 18
23. 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:
lexas Nlidslream Cias�ervice,, Ppeiim�IJeenseAg.-eemen't
Nae 2k"',of 18
CITY OF FORT WORTH: TEXAS MIDSTREAM GAS SERVICES, L.L.C.
By:
Libby Watson jam C. Johtnnj)
Jam si�
Assistant City Manager sident
Date: Date: lZ 71 Klo 7
APPROVED AS TO FORM AND LEGALITY:
By:
Assistant City Attorney
M&C:
W11—
IFFMI-lvnk
54 ;'
EXHIBIT "A"
Company may only use approximately 7,424.7 linear feet crossing the northeastern edge
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of Rockwood Park and Rockwood Golf Course as depicted below:
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MIDSTREAM
ex 6 s G A S S E R V I C E S
V DATE BY PROPOSED MERCADO — PAPA P NE CROSSING PROPERTY OF
T}E a CITY OF FORT WORTH
PROXCT NO. 12872 NT` , S
ITT 1N 1K L. P, Ya x
IV WVBROOK EKED BYtWCB DATE,11/09/}7
SCALE. NJ. ,W, MEPA-1 50.00 0
City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 1211112007
DATE: Tuesday, December 11, 2007
LOG NAME: 80ROCKWOODCONVP REFERENCE NO.: L-14435
SUBJECT:
Conduct a Public Hearing and Authorize Conversion of Approximately 3.415 Acres of Rockwood
Park and Rockwood Golf Course for a Pipeline Easement to Transport Natural Gas and Authorize
Execution of a License Agreement with Texas Midstream Gas Services
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
Rockwood Park and Rockwood Golf Course;
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 Rockwood Park and Rockwood Golf Course 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 3.415 acres of
dedicated parkland for a pipeline easement for a 24-inch gas pipeline in Rockwood Park and Rockwood
Golf Course, being on a portion of land in the R.O. Reeves Survey, Abstract No. 1293, Volume 973-Page
129, Volume 1097-Page 275, Volume 968-Page 299, Volume 968-Page 248; the J.P. Thomas Survey,
Abstract No. 1525, Volume 4000- Page 649, Abstract No. 355, Volume 1157-Page 465, Volume 1166-Page
80, Volume 1973- Page 231; and J. Childress Survey, Abstract No. 252, Volume 968- Page 144; the R.O.
Reeves Survey, Abstract No. 1293, Volume 1157- Page 467; the J.P. Conner Survey, Abstract No. 355,
J.P. Conner Survey Abstract No. 1525, and P. Schoonover Survey, Abstract No. 1293, Volume 1172- Page
1; as recorded in the deed records, Tarrant County, Texas;
5, Authorize the execution of a License Agreement with Texas Midstream Gas Services for improvements
at a value equal to or greater than the assessed $324,830,63 License Agreement fee; and
6. Authorize the acceptance of the License Agreement fee of$324,830,63 in-lieu-of park improvements,
In accordance with the Texas Parks and Wildlife Code, Chapter 26. the City of Fort Worth seeks to convert
approximately 3.415 acres of parkland in Rockwood Park and Rockwood Golf Course for the purpose of
installing a gas pipeline (Exhibit A),
The Parks and Community Services Department (PAC S) has been approached by Texas Midstream Gas
Services (TMGS) requesting a conversion of approximately 3,415 acres of parkland for a proposed pipeline
easement in Rockwood Park and Rockwood Golf Course. A 20-foot easement is proposed for the 24-inch
Loaname: 80ROCKWOODCONVP Page 1 of')
gas pipeline. TMGS has agreed to bore underground portions of the pipeline along the golf course to
minimize impacts to surface.
The proposed pipeline generally runs parallel to the right-of-way for Jacksboro Highway (SH199),
Rockwood Lane and University Drive. The proposed pipeline easement is aligned with existing right-of-way
and property boundaries in order to minimize the impact to private development and existing
neighborhoods.
The proposed alignment corridor through Rockwood Golf Course is the most feasibile and prudent route
and follows the alignment of the existing right-of-way. The alignment does deviate a short distance through
the golf course in order to achieve a southernly alignment for the pipeline. This deviation will be bored and
there will be no surface disturbance of the fairway and have minimal impact to the golfing public. Staff has
recommended that much of the pipeline for Rockwood Golf Course be bored to reduce negative impacts on
the existing trees that parallel Jacksboro Highway (SH199). The park area being converted for Rockwood
Golf Course is approximately 2.144 acres.
The proposed alignment corridor through Rockwood Park property is the most feasible and prudent
route. The proposed alignment and installation method will have the least impact on park users and future
park development. The preferred installation method for this portion of the pipeline will be open trench. The
area will be secured at all times and will have minimal impact to users of the sports facilities. The park area
being converted for for Rockwood Park is approximately 1.271 acres.
Staff is recommending, as a condition of granting these easements, that TMGS be assessed the
recommended standard fee of $43.75 per linear foot of pipeline easement and that those funds be used to
construct improvements in Rockwood Park and Rockwood Golf Course. 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 approximately $324,830.63 will
be assessed for approximately 7,424.7 linear feet of permanent pipeline easement. These funds will be
distributed to the golf course and the park based on the percentage of linear feet of pipeline assigned to
each. TMGS has been made aware of this fee and is agreeable to this assessment.
TMGS has agreed to rebuild and repair the parking lot located on the eastern side of the golf course. The
parking lot, which is in a derninished capacity, will function as a staging area during construction. A portion
of the pipeline will be located underneath the parking lot.
On October 24, 2007, the Parks and Community Services Advisory Board endorsed staffs recommendation
that the City Council authorize the conversion of approximately 3.415 acres of parkland at Rockwood Park
and Rockwood Golf Course for use as an easement for the installation of a gas pipeline.
In accordance with state law, the conversion was advertised in the Fort Worth Sta r-T eleara m on November
13, November 20 and November 27, 2007. Once converted, PACS will enter into a license agreement with
TMGS for the easement.
Signage was posted at the site on November 7, 2007, announcing the proposed conversion and providing
instructions for directing comments to the department. Letters announcing the proposed conversion were
sent to the presidents of the Fair Oaks Resident Association, Crestwood, Belmont and North Side
Neighborhood Associations, on November 8, 2007,
Rockwood Park and Golf Course is a citywide special use facility,
FISCAL INIFORMATIOINICERTIFICATION:
The Parks and Community Services Department is responsible for the collection and deposit of funds due
Logname: 80ROCKWOODCONVP Pw�e 2 of 3
to the City under this agreement,
TO Fund/Account/Centers FROM Fund/Account/Centers
G282 4463Q0 ---------------------- --------------------------
801929990100 $324,830.63
Submifted for Qjty-Majjaglej�s Office
-- --------- -j)y:- Libby Watson (6183)
Ori l-n--a-ti-ng-Depart nt--Head: Richard Zavala (5704)
Additional_Information C-onta-pt; Harold Pitchford (5728)
Logname: 80ROCKWOODCONVP Page 'I of