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SETTLEMENT AGREEMENT AND RELEASE
‘This Settlement Agreement and Release ("Agreement"), dated and effective as of January
31, 2018 (the “Effective Date), is entered into by and betwoen the CITY OF GREEN, an Ohio
‘municipal corporation, having a mailing address of 1755 Town Park Boulevard, Green, OH 44685
(hereinafter, the “City”, for good and valueble consideration, the receipt and sufficiency of which
is hereby acknowledged, paid by NEXUS GAS TRANSMISSION, LLC, a Delaware limited
Tibilty company, having a principal place of business at 5400 Westheimer Court, Houston, Texas
77056 (*NEXUS"). For purposes ofthis Agreement, the City and NEXUS are individually referred
to as “Party” and collectively referred to asthe “Parties.”
RECITALS
WHEREAS, NEXUS is involved in the construction, operation, and maintenance of an
interstate natural ga pipeline system in Ohio and Michigan, including though the City (the
“Projea")
WHEREAS, on August 25, 2017, the Federal Energy Regulatory Commission (“FERC”)
issued a Certificate of Public Convenience and Necessity to NEXUS in FERC Docket No. CP-16-
22.000 (*Centifcate, authorizing NEXUS to construct and operate the Project.
WHEREAS, as par of the Project, NEXUS must acquire cersin casement interests in
property owned in feeby the City and must erss andor ulze certain roads within the City
WHEREAS, pursuant to 15 U.S.C. 7178), NEXUS filed «condemnation action against the
City on October 2, 217 inthe Unite Stated District Cour for the Northem District of Ohio, Case
‘No. 5:17-ev-2062 (NEXUS Gas Transmission, LLC v. Cty of Green, Ohio, etal), seeking the
scquisition by eminent domain of cetain easement interests from the City (the “Condemnation
Action”)WHEREAS, on December 28, 2017, the District Court in the Condemnation Action
‘determined that NEXUS has the authority to condemn the easement interests NEXUS must acquire
in the City’s property.
WHEREAS, on January 2$, 2018, the City filed an appesl of the December 28, 2017
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‘Dalnit to Seetiemene Agromnent
CITY OF GREEN ROADWAY USE AND MAINTENANCE AGREEMENT”
BOR NEXUS PIPELINE PROJECT
THIS AGREEMENT is entered into by and between the City of Green, Ohio, a political
subdivision, whose mailing address is P.O, Box 278, Green, Ohio 44232 (hereinafter, the
/),_ and NEXUS Gas Transmission, LLC, a Delaware limited liability company, having a
al place of business at S400 Westheimer Court, Houston, Texas 77056, (collectively,
hereinafter “Operator”). For purposes of this Agreement, the term “Operator” includes the
company and its employee and contractors and their suocessor and assigns), shall ees follows:
RECITALS
WHEREAS, the City has control of certain public roads within the City and is required by law
to keep such roads safe and in good repair, and
WHEREAS, Operator is proposing to construct one (1) 36” diameter natural gas pipeline and
associated facilities through portions ofthe ity the “Pipeline”), and
WHEREAS, Operator intends to use portions of roads within the City for the purpose of
constructing the Pipeline (hereinafter referred to collectively as the “Pipeline Activity"); and
WHEREAS, the City and Operator desire to enter into an agreement, providing forthe repair
and maintenance of said roads asa result of such anticipated trafic from the Pipeline Activity;
NOW THEREFORE, in consideration of the good faith performance by each party of the
‘mutual covenants hereinafter set forth, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Operator and City agree as follows:
|. __ The portions ofthe roads in the City to be utilized by Operator hereunder are set forth on
Exhibit A attached hereto and incorporated herein (the “Approved Roads"), which may be
‘updated from time to time by the Operator. Approved Roads shall include the rights of way,
roads, bridges, culverts, berms, shoulders, roadside ditches, drive aprons, guardrails, traffic
control devices, light poles, curbs, gutters and road markings/striping used or affected by
Operator, its ‘contractors, subcontractors, and all respective agents, employees, and
representatives. Exhibit A’ shall also include the following information: (8) Designated haul
rites; and (b) List of contractors with contact information. When available, NEXUS shall
provide the City with alist of subcontractors working on its projec in the City.
2. The Approved Roads 10 be used by Operator hereunder shall be maintained by Operator,
and any damages caused by Operator's Pipeline Activity to the Approved Roads shall be
repaired by Operator, at Operator's sole cost and expense, thoughout the term of this
‘Agreement, to a level consistent with the condition of such road(s) atthe commencement of their
tse by the Operator hereunder and/or as modified pursuant to Exhibit A, as determined by the
Operator's engineer and the City Engineer. Acceptance of the plan for repairing any damageshall be subject to final approval ofthe City Engineer, which approval shall not be uareasonably
withheld, conditioned or delayed,
3. The Operator shall provide the City a notice that it has completed its use ofthe Approved.
Roads in the City for purposes ofits installation ofthe Pipeline. As soon as possible after receipt
of such notice, the City and the Operator shall inspect said roads and their appurtenances,
Following final inspection, the partes shall meet, and all restoration resulting from Opersor's
Pipeline Activity shall be identified and thereater completed by the Operator, at Operator's sole
expense. Following completion of all restoration work, and subject tothe requirement fora bond
to be maintained for two (2) years thereafter as set forth below, this Agreement shall be
terminated and of no further force or effect.
4. This Agreement will serve as the general permit allowing all vehicles and equipment
used by the Operator, its contractors and subcontractors to exceed posted weight, load and size
limits on Approved Roads identified on Exhibit A, but any such approvals necessary for bridges
‘on the Approved Roads shall be subject to the approval of Summit County who mainiains
Jurisdiction over seid bridges. Further, no other local permits from the City relating to weight,
load andlor size of vehicles andéor equipment shall be required from Operator or its conrasiors
or subcontractors for use ofthe Approved Roads identified on Exhibit A.
5. Requests for road closures for repair work relating to the Pipeline Activity shall be
‘provided tothe City in writing by e-mail, fax mil, or personal delivery at lest five (S) business
days in advance of such proposed closure, with said request including the time and expected
uration of such closure. Roads shall not be closed for hauling activity. No roads shell be closed
‘without the approval ofthe City Engineer, which approval shall not be unreasonably withheld,
conditioned or delayed. If the City Engineer approves such road closure, the Operator shall be
notified of such approval. If such approval is not given by the City Engineer, the parties shall
cooperate to reasonably find an altemative to the proposed closure or limited access or to
otherwise minimize disruption to public rod traffic and Operator repair activites and schedule.
6. Operator will cooperate with local school district transportation supervisors, as
applicable, to accommodate school buses traveling said Approved Rods
7. Operator shal furnish the City all necessary contact information, including a twenty-four
(24) hour emergency contact number, forthe authorized local representative of the Operator, and
such information shall be maintained and kept current at all times concemed hereunder. City
shall furnish Operator with the primary contact numbers for City officials (oad, police, and fre).
Operator will use reasonable efforts to notify those City officals when the Approved Roads will
be primarily used for Pipeline Activity
8. Operator shall place color coordinated signs at the beginning and ending points of each
Approved Road and at all intersections along its route that indicate which roads are approvec for
travel and which roads are not approved for travel, The Operator shall be responsible for plasing
and maintaining signage on the Approved Roads in compliance with applicable provisions of the
Ohio Manual of Uniform Traffic Control Devices. If the City determines that any additional
tafe signage is needed, or desired, asa result ofthis Agreement and in the interests of publicsafety then Operator shall provide for such signage at Operators sole cost and expense. In the
event that any other safety concems should arise during the course of this Agreement, Operator
and City agree that they will mutually discuss such concems and reach a resolution satisfactory:
toall concemed.
9. All vehicles driven by the Operator shall abide by al applicable loca, state, and federal
speed limits as posted, or ifnot posted, as otherwise applicable. All vehicles driven by Operator
shall comply with the reasonable requests of the City Engineer and Service Director to take
necessary precautions designed to protect the traveling public specifically as it relates to the
timely removal of dirt, mud, dust, and debris caried onto the Approved Roads by Operaor's
truck and trailers hauling material for Pipeline Activity. These road cleaning activities are
required of Operator with or without notice from the City Engineer or Service Director, and will
‘occur on a regular basis.
10. (a) Operator will cause the Approved Roads to be videotaped, with a detailed video
‘ecord, prior fo such roads being used for purposes ofthis Agreement so that the pre-construction,
condition of such Approved Roads can be memorialized, Operator has already performed the
Videotaping of the Approved Roads and will provide a copy to the City as soon as reasonably
practicable. The City shall be allowed to review the videotape. All costs associated with the
‘videotaping ofthe conditions of the roads shall be borne by Operator.
() In addition to videotaping the Approved Roads, the parties shall prepare a written list,
of the Approved Roads that were videotaped, and these shall be the only roads that Operator
shall be responsible for restoring under the terms ofthis Agreement.
1, Within thirty (30) calendar days following execution of this Agreement, and prior tc the
‘commencement of any Pipeline Activity in the City, Operator shall deliver to the City a bord to
cover the cost of any damages caused to the Approved Roads by Operator. The bond amount
shall bea sum of Five Million Dollars ($5,000,000.00). ‘The performance assurance bond shall
bbe made payable to the CITY OF GREEN and shall be issued by a corporation licensed to do
business in Ohio and approved by the City Law Director, such approval not to be unreasonably
withheld, conditioned or delayed. The performance assurance bond shall remain in full force and
effect during the term of Operator's use ofthe Approved Roads under this Agreement, and will
expire two (2) years after acceptance by the Cty of final restoration work under Paragraph 3 of |
this Agreement, which acceptance shall not be unreasonably withheld, conditioned or delayed.
This bond is intended to provide the City with assurance that it will be paid by the Operator for
its obligations under this Agreement, but shall in no way limit the Operator's obligations or
liabilities, as otherwise stated inthis Agreement.
‘The City may draw upon the bond only if and to the extent that Operator fails or refuses to
comply with the terms of this Agreement to promptly perform repairs or to pay the cost of
performing repairs. Upon certification from the Cty Engineer that: Operator filed or refused to
comply with any term of this Agreement and to perform required repairs or to pay the cost of
performing repairs; thatthe City has performed the repairs or caused such work be performed;
that the ity has incurred expenses forthe performance of such repair work; and that the City hassubmitted such expense for payment to Operator without payment rendered, the bond funds may:
bbe drawn upon by the Cty to cover such expenses,
12, NEXUS will provide written notice to the City of the completion of Pipeline Activity:
within the City. Upon receipt of such writen notice, the City will inspect the Approved Roads
for damage caused by Operator. The inspection of the Approved Roads will be completed within
sixty (60) days of the notice above. The City will in good faith provide a list of damages, based
‘upon applicable Ohio Department of Transportation and City specifications, to the Approved
Roads caused by Operator and Operator shall make the necessary repais so that the Approved
Roads are restored fo as clove az reazonsbly practicable the condition as existed atthe time the
Approved Roads were videotaped. It is agreed and understood that Operator shall be responsible
for the restoration of the damage caused to the Approved Roads. The Operator shall not be
responsible for damage occurred as the result of activities andior conditions unzelated to its
activity in constructing the Pipeline. Such restoration work shall be completed as soon as
reasonably practicable after thelist of damages is provided to Operator by the Cit.
Operator shal provide written notice to the City Engineer that repair work under this Agreement
hhas been completed. Upon receipt of the completion notice the City Engineer will have 14
calendar days to accept or reject the above work based upon applicable engineering standards, IF
4 rejection notice is tendered by the City Engineer, Operator stall promptly make the necessary
‘epairs as identified in the rejection notice, orto the extent Operator, disegrees as to the need for
additional repairs, provide a written explanation as to why such repairs are not necessary.
{In the event thatthe repair work is not completed within thy (30) days after the City provides
its list of damages to Operator, or fails 1o thereafter mainin reasonable progress in the
performance of the repairs, the City may make such repairs and shall invoice the Operator forall
costs incurred in connection with such repairs, including for review time, inspection time and
any time expended related to this Agreement. Operator shall pay such invoiced amounts witha
thirty 30) days following receipt of such invoice.
13. Operator shall protect save, indemnify, and hold the City, its officals, employees and
engineers harmless from any liability, claims, damages, penalties, charges, or costs which may
arise or be claimed as a result of any violations of any applicaole laws, of any loss, damage or
expense, including injury or death to any person, from any cause or causes whatsoever, arising
cout of or in any way connected with the Operator's Pipeline Acivity and which is nat caused by
the negligence or intentional misconduct of the City, its officials, agents, engineers andior
employees.
14, The execution, delivery, and performance of this Agreement have been duly and validly
authorized by all requisite action, corporate or otherwise, on tke part of the City and Operator,
including formal written approval fom any goveming body of the City. Further, the party
signing on behalf of City has authority to sign this Agreement and to bind the City. This
‘Agreement shall be binding upon Operator and City, and thir respective successors and assigns,15. In the event that any clause, provision or remedy in this Agreement shall, for any reason,
bbe deemed invalid or unenforceable, the remaining clauses and provisions shall not be affected,
impaired or invalidated and shall remain in fll force and effect.
16. The failure of party to exercise any right under this Agreement shall not, unless
‘otherwise provided or agreed in writing, be deemed a waiver thereof; nor shall a waiver by a
party of any provision herein be deemed a waiver of any future compliance therewith, and such,
provisions shal remain in full force and effect.
17. This Agroement shall only be amended in writing properly executed by the partes.
18. This Agreement shall be govemed by the laws ofthe State of Ohio. Any disputes arising
under this Agreement between the parties shall be decided by the United States District Court for
the Northem District of Ohio, Easter Division.
19. Operator, and any contractors hired by Operator to perform work pursuant to this
‘Agreement, shall pay prevailing wage rates of the project locality to al applicable personnel
performing labor on the project, to the extent thatthe project i subject to Ohio's prevailing wage
laws. The City shall be responsible for providing the prevailing wage coordinator as set forth in
‘Ohio Revised Code Chapter 4115. This requirement shall also apply to any road modification
and road improvement work performed by Operator under this Agreement,
20. In the event Operator is reasonably believed by the City to have caused damage to a
portion of the Approved Roads of « magnitude sufficiently great to crete a hazard tothe public
health and safety, which in the good faith opinion of the City warrants an immediate repair or
road closing, the City shall notify Operator of the damage. If the Operator has failed to begin
such repair work within forty-eight (48) hours of the notice from the City, the City may
unilaterally make or authorize repair to the Approved Roads, and the casts incurred by the City
‘may be drawn against the performance bond above.
Executed in duplicate on the dates set forth below.
[Signatures on the following pages)Approved as to Form:
Ciiy of Gres Law Director
Dated;rator
NEXUS GAS TRANSMISSION, LLC,
‘a Delaware limited liability company
By Spectra Energy NEXUS Management, LLC, in ts capacity as operator
By
TTina Farace, Vice President
DatedCity of Green
Appendi A
End: interstate 77
Besdlione: jection: Bieri be Uasd
Koons Road ‘Start: Masson Road 177
End: South Adington Road
Tinga Road ‘Start: South Arington Road To
End: Ghvstman Road
‘Christman Road ‘Start Klinger Road Tar
End: Mt. Pleasant Street
East Comet Read | Start: Christman Road Ts
End: South Main treat
"Thursby Road ‘Start: Koons Road oe
End: End of Road
Wise Road ‘Start iy Umit (Easy ry
End: Masson Road
Wine Road ‘Start: Greensburg Road oT
End: South Avington Road
Heckman Sect ‘Start: Mayfatr Road Too
Ends hy Us (East)
‘South Arlington Road [Starts Cty mite (South) 2a
End: ENimitils Road
Greensburg Road | Start: ENimisla Road 3a
Ends City Lis (East)
Mayfair Road ‘Start: Heckman Road 320
End: Clty Units (South)
Taby Road ‘Start: Greensburg Road 70
End: Cy Uits (South)
South Main Sreet | Start Gty mits (South) Ts
End: Yager Road
‘Warailon Road ‘Start: Koons Road 320NEXUS" Contractor and NEXUS Contact
NEXUS? Contractor:
Michels Pipeline Construction
A Division of MICHELS Corporation
PO Box 128 | 817 Main Street
Brownsville, WI 53006
office: 920.924.4300
Contact at NEXUS:
"Andrew Black, Permit Supervisor
NEXUS GAS TRANSMISSION, LLC
{6050 Oak Tree Bivd, Suite 200 Independence, OH 44131
office: 216-393-6356
e-mail: Andrew Black@Enbridge.com
testane-r09
Dihit to Settlement Agrement
‘ra Felence
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
NEXUS GAS TRANSMISSION, LLC, (Case No. $:17-cv-2062 (Lead Case)
5:17-ev-2066 (Member Case)
Plain,
v 2 Judge John R. Adams
CITY OF GREEN, et a,
Defendants.
JOINT NOTICE AND STIPULATION OF DISMISSAL BETWEEN NEXUS AND
DEFENDANTS: 2.00 ACRES + PERMANENT EASEMENT, AND 3.2 ACRES
‘TEMPORARY EASEMENT OF LAND IN CITY OF GREEN, SUMMIT COUNTY,
‘OHIO; 0.0147 ACRES + PERMANENT EASEMENT AND 0.0 ACRES + TEMPORARY
EASEMENT OF LAND IN CITY OF GREEN, SUMMIT COUNTY, OHIO; CERTAIN
INTEREST(S) IN CHRISTMAN ROAD, COMET ROAD, GREENSBURG ROAD,
KILLENGER ROAD, KOONS ROAD, MASSILLON / HWY 241 ROAD, MAYFAIR
ROAD, S. ARLINGTON ROAD, S. MAIN STREET, THURSBY ROAD, AND WISE,
ROAD IN CITY OF GREEN, OHIO; AND THE CITY OF GREEN, OHIO
NOW COME Plaintiff NEXUS Gas Transmission, LLC (“NEXUS”) and the following
Defendants: 2.00 Acres + Permanent Easement and 3.2 Acres + Temporary Easement of Land in
City of Green, Summit County, Ohio; 0.0147 Acres + Permanent Easement and 0,0 Acres
Temporary Easement of Land in City of Green, Summit County, Ohio Certain Interests in
Christman Road, Comet Road, Greensburg Road, Killinger Rosd, Koons Ros, Massillon Road
(HWY 241), Mayfair Road, S. Arlington Rosd, 8, Main tree, Thursby Road, and Wise Road,
in the City of Green, Ohio; andthe City of Green, Obio (collectively, “Defendants”, by and
through counsel and hereby stipulate ad agree as follows:
1, Defendant, the City of Green, Ohi (“City), was name asthe fee owner ofthe
defendant-popenies more filly dere! at Exhibits Act and A-2 to the Complaint inthe
above-captioned proceeding2. Certain interests in the following road(s) located within the City of Green, Ohio
(Mayfair Road, Greensburg Road, Massillon Road (HWY 241], Koons Read, Thursky Road,
Koons Road, S. Arlington Rood, Killinger Road, Christman Road, Comet Road, S, Main Street,
Wise Road, and Killinger Road) were named as defendants in the above-captioned proceeding,
and which are more fully identified in Exhibit A-37 to the Complaint, in the above-captioned
proceedings.
3. Defendants have entered into an easement agreement end other settlement
‘documents with NEXUS; and NEXUS and Defendants have otherwise resolved their dspute().
Accordingly, both parties have agreed to dismiss and/or withdraw, with prejudice, any pending:
‘causes of action, claims, counterclaims, motions, opposition(s, defenses, and/or other pleadings.
in the above-captioned proceeding (collectively “Claims”.
4, The City shall dismiss with prejudice all pending lawsuits, appeals or other legal
actions currently pending that are adverse to NEXUS, including but not limited tothe appeal to
the Sixth Cireit from this lawsuit styled NEXUS Gas Transmission, LLC v. Cty of Green, Ohio,
«at al, Case No, $:17-c¥-02062, N.D. of Ohio (Appeal Case No. 18-3112); City of Green, Ohio v
Ohio Environmental Protection Agency and NEXUS Gas Transmission, LLC (Intervencr), Case
No. 17-4016, U.S, Court of Appeals for the Sixth Ciruit; and City of Green v. Butler, Case No.
RAC 17-6940,
5. The City shall refrain, directly or indirectly, from interfering with the NEXUS
project. The City shall also refain from joining or appearing as @ party in any future regulatory
‘or other legal proceedings intended to oppose, delay, stay, and/or block the NEXUS project,
‘other than to enforce the terms ofthe parties’ easement and/or atherseftlement documents.6 Pursuant to Fed, Civ. R.71.1()(1\B), Defendant and NEXUS hereby stipulate to
the dismisal of Defendants from tis action, and stipulate to the withdrawal and/or dismissal of
any ad all claims andor defenses, ifany, exerted by Defendants aginst NEXUS.
7. Alleratvely, the parties request the Court construe this Joint Notice and
Stipulation of Dismissal as a motion to dismiss Defendants and the sboverited
rosdway()/propetyiproperties pursuant to Fed, R Cv, P. 71.1(9(2) andlor Fed. R. Ci P. 2,
and dismiss Defendants and the above-listed roadways) ropes properties accordingly
8 ‘The Cour shall retain juristiction for the limited purpose of enforing the terms
ofthe panties’ stdement
Respectfully submitted,
7 ‘eLDiane A Cale sr emai auth 227)
dames J. Hughes, IIT (0036754) Diane A. Calta (0070433)
Aennifer A. Flint’ (0059587) City of Green Director of Law
Daniel E. Gerken (0088259) 1755 Town Park Boulevard
Kara H. Hermstein (0088520) Green, Ohio 44232
Bricker & EcxLER LLP 7: 330,896.6615
100 8, Third Street, F:330,896.6606
Columbus, Ohio £3215 dealta@eityofireen org
‘Telephone: (614) 227-2300 Counsel for Defendant City of Green
Facsimile: (614) 227-2390
“hughes @bricker com
$fint@bricker.com
dgerken@brickercom
khermstein@brieker.com
Counsel for Plaiif. NEXUS Gas
Transmission, LLC
esas(CERTIFICATE OF SERVICE
hereby cetify that 2 copy of the preceding Joint Notice and Stipulation of Dismissal
‘was electronically filed through the Court's ECF system which, accordingly, will send
notification ofsuch filing to the attorneys of record who have made an appearance in this action;
‘and I hereby certify that a copy of the preceding Joint Notice and Stipulation of Dismissal was
served upon the following via ordinary U.S. Mai, postage prepaid, this day of February
2018;
“Aqua Ohio, Tne William T, Trop
‘lo Corporation Se-vice Company, Cindy R. Tropt
Statutory Agent 10625 Cleveland Ave. N.W.
'50 W. Broad St, Sie. 1330 Uniontown, OH 44685
Columbus, OH 43215
“Huntington National Banke
clo Richard A. Cheap, Statutory Agent
41S. High St
Columbus, OH 43215,
PNC Bank, NA.
‘lo Corporation Service Company
50 West Broad St, Ste. 1330
‘Columbus OH 43315
Dean Nielson, Esq
Chemical Bank
999 E. Main Street
Ravenna, Ohio 44256
Counsel for Chemical Bank, successor in
interest to First Plece Bank and Talmer Bank
‘and Trust
Buckeye Pipe Line Company, LP, Successor
incIntrest to Buckeye Pipe Line Company
co Corporation Service Company, Satory
‘Agent
50 W. Broad St, Ste. 1330
Columbus, OH 43215
‘sl Jennifer A, lint
Jennifer A. Flint (0059587)