HomeMy WebLinkAboutContract 34815�:i�'� ��������� ��
CONTRACT fV�3.
P�.r��,�� 1RIGHT�UF-�VA�� U�� ��s�� �,1��N'T
This PUBLIC RIGHT-OF-WAY USE AGREEIVI��T�IT ("Agreernent") is herehy made
and entered into by and between the CITY OF F�OF�'l, �ti'QR'I'I�, a home rule 7nunicipal
corporation ar�anized under the laws of the State of Texas und acting by and through Karen L.
?��ont�omery, its duly authorized Assistant City Manager, and 'I'E�S MIllSTiR�AP✓i GAS
�fR'VIC�S, L.L.C., an Qklahoma limited liability company, acting by and throu�h James C.
Johnson, President.
The follo��ving statements are true and correct an� constitute the basis upon �vhich the
City of Fort �'�,%orth has eYecuted A.greement.
1�.. TEXE,S MIDSTREAM GA5 SE.R`'ICES, L.L.C., an Oklahoina limi.ted lialiility
corn�r�ny, (G6Compa�ny") �✓ishes to conshl�ct a pipeline f��r the tran��orS:ation of natural gas
�;��iiliin a:Pu�lic I:i�ht-of-Way. Because Compa�ly is not a��ublic utility, as tli�it term is �ased in
the City Cnarter and Cit,� Code, and because Conipany will r��r l�e providirig serr�ic.es to end °aser
customrrs in the Ci�t}�, Comp�ny is not required to obtaii� a fr•ancl�i5e from the �ily, ��ilt is
r��1uireci to oe�tzir. ihe City's consent pursuant to a license ��n-�,ement that :�ets fortli thc, t�;rms aiZd
c�nc�itioris uride:• �� ��iich'Coil�pany may ilse tl�e PublicIt.i;iif-of-�Vay,
i�. Tli:; City has revi�:�ve� Company's request and agrees to t;rant Coi��pai.y � l;ce!�se
to use certain Public i�ibl�t�-of `Vay in erder to constiuct, �,�-:cra�� and mai�tain .3 ��i�clii�L; ot3 t.le
terms arc� conditio!�s set forth hercin, solely far the, trai��Fo�tatia:� oi natu:•al g�:s ard s�lely in
ac�„ort?ance �,vilh the terms duc? conditiorls of this 1�bre.eirierit.
�igreen�ent
� . �E�iNITI01�1�.
Capitalized te�ms used in this Agreement ai�d not ot.ierwise c�efined wi±hiri this
A�re�em�.nt �llal,l have the follovving ine�nings:
` AffLi�te shall .nean any individual, partnership, associatiun, joini sibcK compa�!y�, limited
liability corr,par.y, tnist, coiporation, _ c:r o�l�ic�r nei•son ar er,tity who �wr.s oi•
co:ltro.s, c�r is owned or controlled b�,�, or is uri:ie. r.oin�Yi;�n owners>>i�� c1r ��ont,�c>l
�a�i�li, tl�ie en!ity iii qra.estic�n.
�,t;: eemQnt shall meaii tlic authorization issuea io �C�mparry neret�i��ier to use the Pi;Z>>ic
. Rights-of-Way for (i) the �onstruction, insiall�tion, n�aii.t��nance arcl re,pai�� of'
Company';; Fipeline; �ii) tl�e use of such Pip�liuc for t?�e transpt�ri: tion of Gas;
� and (:ii) ariy other directl� relateci uses of +l:�e Pu�lic Rigrts-of-�,`�'ay, pli]'SLl:zr�t lo
and in accordance v�ith this Agreement. _� �
'fixas Midslrea:>> G�s Services, L.L.(:. Right-of-Way Use Agreenienf
Page ( of 17
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Com�a�ey shall inean Texas Midstre�in Gas Services, L.L.C., an Ol:laboma liinited
liability company, only and shall not includ� �n}� Affrliate or third party.
City sha11 mean the area within the coiporate lirnits of the City of Fort V�'arth, Te;cas and
the governir�g body .of the City of Fort Worth, Te�as. �
CommiSsion sha11 mean the Railroad Commissiori of the State of Texas or other
� autharity s�ccePding ta the re�ulatory po�i�ers of the Commis �ion.
�ustom�er shall meari any Person iocated, in �zrhole or in part,�within the City.
I3ire�tor shall ine�n the Director of the City's T�epai-tmznt of Transpoi-tati�nlPublic
��ar.ks or authorized-repres�nta�ive.
�Gas sliail mean gaseous fu�ls such as tlatural �as, artificial gas, synt?�etic �as, liquefi:;u
r_atli.�al gas, manufactured g1s, or any mi��ture thereof.
�'ers�n shail rnear, without limitation, an individual, a corporatio:�, a li.nitec; liability
conipany, a general or limited partnership, a sole proprietorship, a}eiii venhire, a
business tiust or an}� other farm or business entity or associatiori.
P��eline shal] mean the pipelirie and other facilities approved by t�ie Director that are
instal;ed by Company in the Public Rights-of-�TJay in accordance witli this
Agreernent.
Fe�l�lic 12iglits-of-Way shall mean only those dedicated public streets, higllways, aJ.leys
and rights-of-way in the City identified in Eahibit "A" of this Agreement,
attacheci hereto and hereby rnade a part of this Agreemenf for all purposes.
2. GRAhTT ()r RI�H'I'S.
2.1. Gereeral UsQ of Public Ri�hts-of-'dVav fr�r Provi�iayi of Gas.
Subject to the terms and conditions set for�h in this A�reement aiid tli� C�.ty
Ch%�rter a�d ordinances; the City hereby grants C�mpany a license to (i) erect, construct,
install and inaintain its Pipeline in, over., ui.der, alon� znd across the Pr�hlic Ri�h±s-of:
��'ay and (ii) trarisport �as throngh th� portioris of its Pipeline iri, o��er, urider, along and
a�ross 1:he Public Rights-of-Way. Company h�reby acknowle�'ges aiid agrees ttiaf this
Agre�r��ent allows only the transportation of Gas tlLrough t1�e City and do�s not a11ow
Coinpany tU. d�stribute, se11 or otherwise �roz�ide Gas to ar.y C�astolner..
Texas I�lidstream Gas Services, L.L.C. Rioht-of-Wa�� Use rlgreeinent
Page 2 of 17 �
2.ry. No�esclusive.
This Agreement and all rights �anted to ,Campany herein are strictly
nonexclusive. �The City reseives �the right to grant other and future licenses and other
authorizations. for use of ilie Public Rights-of-Way to other .Persons and entities in
a�cordance 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 tkiat
is,solely.within tl-.e discretion oFthe City, if a dispute arises as to priority oi'the use �f the
Public Rights-of-Way, the City will resolve such dispute such clispute. in a nlanne� that
does nok result in uni•easonable int�rference vrith Coinpany's operation of the Pipeline for
the �urposes provicled for,herein. This. Agreeinent.,do�s not establish �tny priority for the
use of t�ie Public Rights-of-Way hy Company or by any pres�:iYt or fiiture licensees or•
other permit holders. In the event of any dispute as to the priority of� use of the Publir_
F.ights-of-W'ay, the first priority shall be to the public generally, the second pi-iority to the
City in the performance of its vai-ious functions, and tl�ereafter, as between licensees and
other permit Lolders, as detennined by the City in the exercise of its powers, iilcluding
the policc povrer an� ather powers re�eived to and conf'erred on it by the State of Z'exas.
?.3. OthPi� I�eri��uts.
This Agreement does not relieve Conipany of any obligation ta o'�tain permits,
licenses and other approvals frum the City or other regulatory ag�ncy r±ecessa�,y for the
consiruction, installation, maintenance or repair of Company's Pipelin� or the
tra�isl�ortation of Gas through such Pipeline, �
Zo4. Boncls.
Pi-ior to the cominencem.ent of any construction work in the Public Rights-of. Vwjay
in the City that requires a cut, opening or other excavation, Coinpany shal! deliver to ttie
City fionds eYecuted by a corporate surety authorized to clo btisiness in the Sta.te of T�Yas
and acceptahle to 'the City in the proportional amount of the c�st of worl: under the
construction contract or constn�c.tion project tl�at �vill be perforined in-the Public Ri�i�ts-
of-Way. The bonds shal: guararitee (i) satisfactor,� compliance by Coinpan}� wiCh all
require�nents, te_�-ms and conditions of this Agreement and (iil full payments to al1
persons, firtns, corporations or other entiti�s �vith whom Company has a direct
relatieriship for the performance of snch constr�iction, :naintenar.ce ar repairs.
If ariy such conshuction, maintenance �nd repair work is undertaken by a
contractor� c�f Compaiiy, Company shall also reyuire such contractor to deliver to
Co:npany Londs e�ecuted by a corporate surety authorized to do bias�ness in the State af
'Taxas and �cceptable to the City in thc proportional amount of the cost of woi�k unr�er the
constnactiori contract or construction project that �vill be perfcrnled.by the contractor in
the Pablic R.ights-of-Way. The boiids shall guarar.tze (i) the faithful nerforniance and
compJ.etion of �all construction, rnaintenance or r:�pair worlc in accordance with �he
c«ntract between Campany and the contractor and (ii) ful7 pa�::e�it for ail wages �ar
lzbor and services and of a11 bills for materials, s�xpplies �nd equi�ment used in the
Texas Midstream Gas Se�vices, L,L.C. Ri�lit-of-Way Use Ab eemeni
Page 3 of 17
perfonnance of that contract. Such bonds shall namc both the City and Con�paiiy as dual
obligees.
3. T�R1V[
This Ag�reement shall become effective on the date as of which bath parties have
executed it ("Fffective nate") and shall expire at 1 1:59 P.M. CST on Decem�ier 31, 2032 unless
terminated earlier as provided herein.
4. FEES A1_,TD PAYIVI�NTS T'�O CITY.
4.1. �i�ht-of-�JVay Use Fee.
On or �rio.r to the Effective Date, Company shall pay the City as compensation
for its use of ttie Public Rights-of-Way for the Term of this �greement the sum of Four
'I'tiousand PJine Hundred Eigl:ty Seven Dollars and Fifty Cents ($4,9�7.50} (�fLieense
F�e''). Company hereby acicnowledges ar,d agrees that the amount of this License Fee
constitutes just and reasonable compensation to the City for Cumpany's t.se oF the Furlic
Right�-of-«a.y as provided by this Ag.-eement.
�.2. Other Paynients.
In addition to the License Fee, Company shall pay the City all suins which may be
dtie the City for property taxes, license fees, permit fees, or other taxes, chargzs or fees
that the City ma.y from time to time impose on all other �imilarly situatecl entities within
the Ci.ty. Company shall reimburse the City for publicatior. of this Agreeinent. as required
by the City's Charter.
�.3. Inte�-es�t. ,
All sums not paid when due shall bear interest at the rate �f ten per•cent (10%) per
arulum or th� maxinium amount allow�d by law, whichever is less, computed monthlv. If
suclt outstanding sums are paid with interest within tl�irty (30) days fc�llowing their
respective due dates, Company's failure to pay such sums by their respective due dates
sha1T not, in and of itself, constih�te an Event of De:fauli under Section � of this
Agre�ment.
Te;cas Midsri•eam Gas Services, L.L.C. Right-of-Way Lise Agreement
Page 4 of 17
5. REGL?L,��'OR�' AUTHORITY OF 'I'�-�� �1TY.
Company's property and operations hereunder sh�tll be subject to such regulation ry the
City as ma�� be reasonably necessary For the protection or benetit of the general public. In this
connection, Company shall be subject to, governed by atid shall comply with all applicable
federal, state and local laws, including all ordinances, rules and regulati�ns of the City, as same
may be ador�ted and amended from time to time.
6. USE �F PIIBLIC RI(UI�TS-OF-WAY.
6.1. Cam�iance ��vith I,aws, Ordinances, Rules and Re�ulations.
The City has the right to canh�ol anc� regulate the use of ttie Yublic Ri�Yits-of-Way,
pllblic places and ather City-owned property and the spaces above and benealh +11em.
Cornpany shall comply with all applicable lavvs, ordinances, rules and regulations,
including, but not limited to, City ordinances, n.11es and palici�s related to const�cti�n
permits, construction bonds, permissible hours of construction; �perations during peak
traf'fic hours, barricading requirements and any other c�nstn�ction n.�les or regul�tions
that inay be proi3�ul�ated �•om time to time.
6.2. No Ui�d�;e Burden.
The Pipeline shall not Ue erected, installecl, constructed, repaired, replaced or
maintained in any manner that places aii undue burden ori the present or future use of the
Public P.ights-of-Way by the City and the public. If the City reas�nably determines that
the Pipe'.ir�e does place an undue burden on any portion of the Public Rights-of-Way,
Corr►pany, 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 b� in the puhlic interest to remove or �lleviat� the burden.
6.3. Minirnal �nterference.
Frior to the t,ndertaking of any kind of constn�ction, in�tallatioii, maintenance,
repairs or other v��ork that requires the excat�ation, lane closure or other physical use of
the Public Rights-of-Way, Company shall, except for woi•k required to acl�ress an
�mer�ency, provide at least twenty-four (24j hours' advance ��vritten notice to the awners
of properly adjacznt to the Fublic Rights-of Way that will be affecte�. In the case of
emei•gencies Company sh�ll provicie notice to the zffected landov��ners �vithin twenty-Iour
(24) hours after cortimencerrient of work. In addition, duririg any such ��vork, Corripany
shall provide,construction and maintenance signs and suffcient barricades at work sites
t� pr�tect the plibli�. The use of such traffic control devices shall be consistent with the
standards arid provisions of Part VI of the Texas Manual on Uniform Traffic Control
Devices. Company shall utilize appropriate wanling lights �t all constniction and
m�inten�nce siies tivliere one or inare traff c lanes are closed or ebstructed during
nighttime conditions.
Te�:as Midstream Gas Services, L.L.C, Right-of-Way Use Agreement
Page S of 17
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6.4. "As-Bnilt" �'lans and Maps.
Company, at Company's sole cost and expense, shall provide the City wit�i as-
built pl,�ns of all portions of the Pipeline located in the City and tl�e City's extraterritorial
jurisdictioi:�and'maps showing such Pipeline �withiri n'inety (90) calendar days following
the completion of such Pipeline. Company shall supply the textual documentation of
sui;h as-built plans and maps in computer format as requested in ��vriting by the City and
shall otherwise fully coo�erate with the City in ensuring that tlie Pipeline is a�ciirately
retlected in the City's mapping system.
6.5. Marking of Pipeline.
The Yipeline shall be inarked, in a manner that is accepiable to the Director, to
sl:ov�� Conspicuously Company's narne and a toll-free telephone number of Compaiiy that
a Person may call for assistance.
6.ti. ` k'avP��en4: Cut Cooi•dinatio� anc� Adait:ona� 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 couvenient for the implernentation
of the City's program for street construction, rebuilding, resurfacing and repair. In order
to preser��e the integrity of the Public Rights-of-Way, Cor�ipany shall not cut, excavate or
otherwise breach or damage the surface of any paved Public Right-of-Way �Nithin ninety-
six (96) months following the construction or resurf�cing of such Fnblic Right-of-Vday
unless (i) Company abtains written consent from the Director and (ii) pays the City, far
each fifty (50} linear feet of a cut, excavation or breach of any Public P�ight-of-Way or
partion thereof, the sum of (a) $ l,500 for any cut, excavation or hreach occurriu�;
li�tween December 1, 2006 and November 30, 2011; (b) $1,800 for any cut, excavation
or breach occurrin� �etween December 1, 2011 and Noveinber 30, 2016; (c) $2,150 for
any cut, excavation or breach occurring between December 1, 2016 and November 30,
2021; and (c� $2,600 for any cut, excavation or breach occun-ing between December 1,
2021 anc� December 31,2032. Such fee shall (i) be in addition to, and n.ot in li�ix of,
Company's obligations to restore the Public Rights-of-Way in accordance with this
�greenient and (ii) r.ot be allocated or otherwise counted as part of the License Fee to the
City.
C�.7. RestoratiQn of P�nblic Ri�hts-of-Way and Property.
Ccrnpany, at Campar.y's sole cost and expense, and in a manner appraved by the
City, shall promptly restore any portion of the Public Rights-�f-V�Iay, City-owned
property or other privately-owned property that are in any way dist�lrbed or damaged by
the construction, operation, maintenance or removal of any of the Pipeline to, at
Company's optioi�, as good or better a condition as such properiy was in immediately
prior to the disturbance or damage. Company shall diligently commence such restoration
within tliirty (30) c�lendar days follo��ving the date that Company first becar:le a���are of
Texas i�4idstrean� Gas Ser��;ces, L.L.C. Right-of-Way Use Agreement
Page 6 of ] 7
tre disturbance or damage or, if the Pipeline is being reinoved, within thirty (30) calendar
days following such removal.
6.8. R.elocatiar� of Pipeline.
�Vithin forty-five (45) calendar days follo��c�ing a written request by the City,
Com�any, at Com�any's sole cost and expense, shall protect, sapport, disconnect ar
remove from tlie Public Rights-of-Way all or any portion of its Pipeline due to street or
other public excavation, constnzction, repair, grading, re�rading or traffic conditions; the
iiistallation of sewers, drains, water pipes or municipally-owned Facilities of any kind; the
vacation, construction or relocati�n of streets or any other type , of structure or
improvement of a public agency; any public �vorlc, or any ot�er typ� of improvement
necessary, in the City's sole discretion, for the public health, safety or �Nelfai•e. If
Company reasonaUly rec�uires morF than fori:y-five (45) days tci comply �vith the City's
�vritten request, it shall notify the dire,ctcr of the C:'ity's Department of
Transpcn-tationiPublic Works in writirig ai�d the City �vili �varlc :n good faith with
Company to negotiate a workable time fi•ame.
C9. Eme�rgrncies.
5.9.1. 'Wo�rk by tlie Cit��.
Por puiposes of this Section 6.9.1, a public emergency shall be any
condition whiclY, in ihe opinion of the officials specified herein, poses an
itYunediate threat to life, health or property and is caused Uy any� natural or man-
made disaster, including, but not limited to, storms, floods, fires, accidents,
explosic�n, water main breaks and hazardous materials spills. In the e��ent of a
public emergency, the City shall have the ri�ht to take whatever action is deemed
appropriate by the City Manger, Mayor, Police Chief or Fi��e C;1ief; or their
authorized representatives, iricluding, but nat ]imited to, action that may re�ult in
damage to the Fipeline, and Company h�reby (i) t•el�ases t�ie City, its ofFicers,
agents, servants, employees and subcantractors from liability �r responsibility for
��ny Damages, as defined in 5ection 7.1, tliat ma.y occizr to tlle Pipeline or that
Company may otherwise incur as a result of such a responsr;, anu (ii} �grees that
CorripanJ, at Company's s�le cost and expe.is�, sh� 11 he responsible for the repair,
relocation or i�econstruction of all or any of its Pipelini; that is affected by such
action of the City. In responding to a public e�nergenc�-�, the City agrees to
camply wi±h all local, state and federal laws, including any i•equirements t� notify
the Texas Or�e Ca11 System, to the extent that tliey apply at the tirne and under the
circumstatices. In �ddition, if the City takes any action that it belie��es �.��ill affect
tlie Pipeline, the City v��ill notify Company as soon as practicable so that Cempany
inay advise an� ��vor�c with the City with res�ect to such acti�n.
Texas Midstream Gas Services, L.L,C. Right-of-Way Use A�•eament
Yage 7 of 17
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6.�.2. `Vorit lbv or on Behalf of Companv.
In tYie event of an emergency directly that involves that portion of the
Pipeline located in the Public Rights-of-Way and necessitates immediate
emergency response work on or repairs, Company rnay initiate the emergency
response work or repairs or take any action� required under the circurristances
provided that Coinpany notifies the City as promptly as possible. After the
emergency has passed, Company shall apply for and obfain a construction permit
from the director of the City's Department af Transportatioi�/Public Works and
otherwise fully comply with the requirements of this Agre�ment.
6.�10. Removal of Pipeline.
Upon the revocation, termination or expiration v��ithout extension or renewal ef
this Agreement, Company's right to use the Public Rights-of-Wa;� under this A��reement
shall cease and Company shall immediately discontinue tlle transportation of Gas iii or
tlu-ough the City. Within six (6) rnonths followirig such revocatian, termination or
expiration and if the City requests, Company, at Coinl�any's sole cost and expe�ise, shall
i•e-move thP Pipelirie from the Public Rights-of-��Vay (or cap the Pi�3eline, iF consented to
by the City}, in accordance with applicable laws and regulations. If Carnpauy has not
remo��e�i wll of the Pipeline from the Publie Rights-of-UVay (or capped the Pipeline, if
consented �o by the C;ity) within six (6) months following revocation, termination or
expiratian of this Agreement, the City may deem any portion of the Pipeline reinairiing in
the �ublic Rights-of-Way abancioned and, at the City's sole option, (i) take possession of
�n�� tit':e to such property or (ii) take any and all iegal action necessary to compel
Coiripany to remove such property; provided, however, that Company inay not abandon
its facilities or discontinue its services within the City without the approval of the
Commission cr successor agency or any other regtzlatory authority with such jurisdiction.
Within six (6) months follo`ving revocation, termination or expirUtion of this
Agreement and in accordance with Section 6.7 of this Agreement, Coml?any sh�ull also
restore any property, public or private, that is disturbed or damaged by removal (or, if
consenter�. to by th� City, capping) of the Pipeline. I� Company has not restered all such
property within this time, the City, at the City's sole option, may perfonn rn• have
perfc�rmed any nece5sary restoration worlc, in which case Company shall immediately
reimburse tlie City ior any and all costs incurred in perfornz�ng or ha��ir.g performed such
restoration work.
Texzs hlidstream Ga� Services, L.I,.C. Right-of-Way Use Agreement
Page 8 of 17
7. LIASILI'I'�' AND IP+TDEMNIFICATION.
7.1. �iability of Company.
Company shall be liable and responsible for any and all dama�es, losses,
liabilities (joint or several), payments, obligations, penalties, claims, litigation, demands,
defenses, judgments, lawsuits, proceedings, casts, disbursements or expenses (including,
without limitation, fees, disbursements and reasonable expenses cf attorneys, accountants
and other professional advisars and of expert witnesses and costs of investigation and
preparation) of any kind or nature whatsoever (collectively "Damages"), ��vhich may
arise out of or be in any way coimected 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, ma±erials or supplies provided or supplied to Company, its contractors or
subcontractors; or (iv) Company's failure to comply with any federal, sta±e or local la�i�,
ordinance, rule or regulation, except to the extent directly caased �y tl�e negligent or
grossly r�e�ligent act(s) or omissian(s) or iiitentional misconduct of the City.
7.2. �iidemnification.
COMPAIVY, AT COMP.ANY'S SOLE COST ANd) EXP�NSB, S�IALI,
INDER�NIFY AND HOLD HARMLESS THE CITY, ITS OFFICERS, BOARDS,
COs�MISSlONS, AGENTS, EMPLOYE�S AND VOLUIV'lLEXS
(`71YD�L'Nd1VITEES"), FRG�M AND AGAINST ANI' �ND ALL Df:MAGF,S
(LN�'� UDING, WITHO UT LI�IITA TION, THOSE FOR PR OPER �'Y DAt11A GEAND
PERSOI"JfiL �NJURY, INCLUDING DEATH) YVHICH MAYARI.�'E OU7' OF OR BE
IN ANY WA Y CONNECTED WITH (I) THE CONS?'R �ICTIDN, IN.STA�L.� T�'ON,
OPERfITIaN, MAINTENANCE OR C�ONIIITI�IN OT Td-I.� PIPELINE OR f31VY
RE�A3'ED FACILITIES OR APPUXTENANCES; (II) THE TRANSP(➢RT.4'lION
OF CAS TI�ROUGH THE 1'IPEIINE,• (III) A1VY CLAIM OR LIEN ARISING OUT
OF ��T�flRK, LABOX, MATERIfiLS OR SUPPLIES PROVIDF.D OR SUPPI,IED TO
COMI'ANY, ITS CONTRACTORS Old SUBCONTRACTORS; OR (IV) COI�IPAIVY'S
FAILT_IRF, TO COMPLY WI7'H ANY FEDEIZAL, �TATE OR I.00AI, LA i�V,
ORDINANCE, RULE OR REGUI,ATION, EXC�PT TO THE EXTENT DIRFCTLY
CA iISED BY THE NEGLIGENT OR GRiD,SSLY NEGLIGF.NT ACT(S) OR
ONIISSION(S) OR 1NTEN'IrON�dL 1t�ISCOIVDUC?' OF THE CITY.
7.3. �ssumptioai of Risk.
Company hereby undertakes and assumes, for and on.behalf of Company, its
officers, agents, contractors, subcontractors, agents and employees, all risk of :lange:ous
conditions, if aiiy, on or about any City-owned or City-controllecl property, including, but
not limited to, the Public Rights-of-Way.
Texas I�lidstream Gas Seryices, L.L.C. P,ight-of-Way Use Agreement
Page 9 of 17
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7.4. Defense of Indemnitees.
In the event any action, lawsuit or other proceeding is brought against any
Indeinnitee 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
apr�roved by the City. In such an event, Company shall not admit liability in any matter
on benalf of any Indemnitee without the advance written consent of the City.
8. INSLTRANCE. '
Company shall procure and maintain at afl times, in full force and effect, a policy or policies
of insurance to provide coverages as specified herein, naining tlle City as an additional insured and
covei�ing all public risks related to the use, occupai�cy, condition, maintenance, existence or lo�ation
of the Public Rigl�ts-of-Way and the construction, irlstallation, operation, inaintenance or condition
of the Pipeline, including the transportation of Gas through the Pipeline. Tlze rec-�uired ir,surance can
be met by a combination of self insurance, �rimary and excess policies.
€�1. Primary �.i�bility Insurance Co�era�e.
• Commercial General Liability:
$1,000,000 per occurrence, including coverage for the following: (i) Yreinises
Liability; (ii) independent contractors; (iii) products/completed operatiens; (iv)
personal injury; (v) contractual liability; (vi) �xplosion, collapse and
underground property damage.
• P�o er � nama e Liabili :
$10,000,000 per occurrence
• Autoanabile I,iability:
$1,000,000 per accident,
inchlding, but not limited to, all owned, leased, hired or non-owned motor
velli�les used in conjunction with the rights granted under this A�•eeir�ent
• �1F�orker's Compensation:
As required by law; and, Einployer's Liability as follows:
� 1,000;000 per accident.
Texas Midsh-ear.� u�s Sen�ices, L.L.C. Right-of-Way L'se A�•eement
Page ] 0 of 17
8.2. I�.evisior�s to Required Covera�e.
At the reasonable recommendation of the City's Rislc Manager, the City may at any
time revise insurance coverage requirements and limits requirPd l�y this Agreement.
Company agrees that within thirty (30) days of re�eipt of written noti �e from the City,
Company will implement all st�ch revisions requested b�� the City. The policy or policies of
insurance shall Ue endorsed to provide that no rr�aterial changes in coverage, including, but
not limited to, cancellation, termination, non-renewal ar amendment, shall Ue madP without
thirty (30) days' pi7or written notice to the City.
8.3. Undei�writers and Certificates.
Com�a�~�y shall procure and maintain its insurance with underwriters authorized to
do business in the State of Texas and who are acceptable ta the City in terms of solvency
and financial strength. Within thirty (30) days following adoption of this Ag,reement by the
City Council, Company shall furnish the City with certificates of insurance signed �iy 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 wit}i
evideuce that it has maintained such coverage in full torce and effect.
5.��. Deductibles.
Deductible or self-insured retention limits on any line of coverage required herein
shall nat exceed $25,000 in the annual aggregate unless the limit per occut7•ence, or per line
of coverage, or aggregate is othert,vise ap�roved by the City.
8.5, No Limitation of Liability.
The insurance requirements set forth in this SEction 8 arid any recover� by tlie City
of any sum by reason of any insurance policy required under this Agreement shall in no way
be construed or effected to iimit or in any way affect Company's liability to the City ar other
persons as provided by this Agreement or la�,�v.
9. DEF.�ULTS.
The occurrence at any tim�e during the term of this Agreement of one or nlore of the
following evetits shall constitute_ an "�vent of Defau�t" under this Agreement:
9.1. Failure to Pay L,icense Fee.
An Event of Default shall occur if Company fails to pay any License Fee on or
before the respective due date.
Tex.as Midstream Gas Services, L.L.C. Right-of-Way Use Ab�•eement
Page ll of 17
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9.2. Iireaeh.
An Event of Default shall occur if Company materially breaches or violates any
of the terms, covenants, representations or wan�anties set forth in this Agreement or fails
to periorm any obligation required by this Agreement.
9.3. Baiikruptcy, Insolvency or Receivership.
An Event of Default shall occur if Company (i) files a voluntary pztition in
b�nkruptcy; (ii) is ad;udicated insolvent; (iii) tiles any petition or fails to contest any
petit�on filed against it seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolutior� or similar relief for itself under any laws relating to
bank�uptcy, insolvency or other relief for debtors; (iv) seeks, consFnts to or acquiesces in
the appointment of Zny trust�e, receiver, master, custodian or liquidator of Company, any
of Cornpany's p�•operty or any revenues, issues, earnin�s or profits thereof; (v) makes an
assigtunent for the benefit of creditars; or (vi) fails to pay Company's debts general?y as
they become due.
3.�. Violations of tl�e Law.
An Event of Default shall o�cur if Company violates any existing or future federal,
state or local laws ar any existing or future ordinances, n�les and regulations of the City.
10. 1UNCURED DEFAULTS AND R�MEDIES.
10.1. �'�Totice of Default and Opportunity to Cure.
If an Event of Default occurs on account of Company's failure to pay the. Licensz
Fee in accordance with Section 9.1, such Event of Default shall be deemed an Uncured
Default and the City shall have the right to terminate this Agreement immediately upon
provision of written notice to Company. If an Event of Default o �cizrs for a reason other
than for f'ailure to pay the License Fee, the City shall provide Company with written
notice and sha11 gi�;�e Company the opportunity to cure such Event of Defaulf. For an
�vent c�f Default «�hich can be cured by the immediate payment of money tu the City,
Company shall have thirty (30) days from the date it receives writlen natice fi•om the City
to cure the Event of Default. For auy other Event of Def'ault, Company shall have �ixty
(60) days from t�ie date it receives written notice from the City to cure the Event of
Defauit. If any Event of L`efault is not cured «ithin the time period specified herein, such
Event of Default shall, �vithout further notice from the City, become an "Uncured
D�fault" and the City immediately may exercise the rem�dies provided in Section 10.2.
Texas Midsh•eam Gas Seivices, L.L.C. Right-of-Way Use Agreement
Page l2 of 17
1a.2. F�einedies for Uncured llefaults.
U�on the occurrence of an Uncured Default, the City shall be entitled to exercise,
at the same time or,at different times, any of the follawing remedies, all of which shall be
r,umulati��c of and without liinitation to any other rights or reme.dies the City inay have:
l Q.2.�. Termination of A�reement.
. 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 unperforrned obligations and
existing liabilities as of the date of termination, this Agreement shall
automatically be deemed nul� and void and shall have no further force or effect.
Company shall remain obligated to pay and the City shall retain the riglit to
receive License Fees and any other payinents due up to the date of t�t7nir►ation.
Company shall remove the Pipeline fi-om and restore thP Public P�ights-oi-Way as
and when requested by the City. The City's right ta terminate this Agi�eernPrit
under this Section 10.2.1 shall does not and shall not be construed to constitute
any kind of limitation on the City's right to tern�inate this A��eeinent for other
reasans as proyided by and in accordance with this Agreement; provid�d,
liowever; that Company rnay not abandon the Pipeline withont the approval of the
Commission or successor agency or other regulatory authority with jurisdiction, if
such action u�ithout such approval is prchibited at the time by applicable federal
or state law or -regulation.�
iJ.�.7, Leg.al �ction A�ainst Com�any.
Upon the occurrence of an Uncured Default, the City inay commence
against Company an action at law for monetary darnages 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.
1�. P1iOVISI01'� OF INFORMATION.
11.1. Filin�s tvith the Commission.
Company shall provide copies to the City of all clocuments ��vYiich Company files
with or sends to the Commission concerning or related to its transpoi-tation of Gas
through oi• other operations in the City, inclliding, bitt not limited to, filings related to (i)
tariffs; (ii) rules; re�ulations and policies requested, under consideration or approv�d liy
the Comnl�ssion; and (iii) applications and any supportin� pre-filed testimony aiid
e�:hibits filed by C�mpany or third parties r�n belia?f of Com�any, an the same date as
such filings are inade with the Cornmission. In addition, Company shall provide the City
«�ith copies of records, documents and other filings that Company is required to maintain
or su�iply to the Coinmission under any app'licable state or federal law, rule or regulation.
Texas Midstream Gas Services, L.L.C. Right-of-�b'ay lJse Agreement
Page 13 of 1?
11.2. �Lav+�suits.
Company shall provide the City with copies of all pleadings in all lawsuits to
which Company is a party and tliat 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. COIVIPANY AS IN.DEPENDENT CONTRACTOR.
It is expressly understood and agreed that Coinpany shall operate as an independent
contractor as to all ri�ht� and privilege;s 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
accorc�ance with the terrns and conditions of this Agreement, and shall be solely responsible for the
acts and omissions of its officers, a�ents, servants, employees, cantractors and subcontractors.
Company acicno���led��s that the doctrine of respo�ideat superiot� shall not apply as between the
City and Company, its officers, agents, employees, contractors and subcoiYtractors. �Company
further agrees that nothing herein shall be construed as the creation of a partnership or joint
enter�ri�e between the City and Company.
13. ASSIGNM[FNT PR�HIBITEI).
Company inay not assign or ofherwise transfer any of its riglits or obligations under this
Agreement iinless specifically authorized ir� writing by the City, which authorization shall not be
unreasonably witr�ield.
14. NOTICES.
' Notices re�1uired pttrsuant to the provisions of this Agreement shall be conclusively
detennined to have Ueen delivered when (i) hand-delivered to the other party, its a�ents, einployees,
servants or representatives, or (ii) received by the other party by United States Mail, postage
prepaid, return receipt requested, addressed as follows:
To TI�E CI'�'I':
City of Fort Worth
Public UtilitiPs Administrator
1 Q0� Throckmorton
Fort Wort�i, TX 7E 102
To COMPANY:
Chesapeake Energy Nlarketing, Inc.
Keny Clapp, Area Operations Manager
6100 N. Western Avenue
Oklahoma City, OK 73118
Texas Midsh•eam Gas Services, L.L.C. Right-of-Way Use Agreement
Page 14 of 17
with � copy to:
City of Fort Worth
Department of La�v
Attn: Attorney for Utilities
1000 Tbrockmorton
Fort Worth, TX 76102
15. NOl�'�I)ISCRIMINATION 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 recei�t of benefits froin
Company's business operations, in any opporiunities for employment with Compan�� or in the
constnzctior� or installation of the Pipeline.
16. 1'�Q WAIV�R.
The failure of the City to insist upon the performance of any terni or provision of tlus
Ao eement or to exercise any rights that the City may have, either under ihis Agreemei�t or the law,
shall n�t constitute a�vaiver of the City's ri�ht to insist upon appropriate performance or to assert
any such right on any future occasion.
17. G�VERN�NG I.AW AND VENUE.
This Agreement shall be construed pursuant to and in accordance with the la��s 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 the Public Rights-of-Way, venue for. such action shall lie exclusively in state courts located in
Tarrant ��unty, Texas or the United States District Court for the Northern District of Texas, Fort
Worth Division.
18. CONF��NC�S.
At the request of either the City ar Company, the City and Company shall meet at
reasonable tirnes and upon reasonable notice to discuss any aspect of this Agreement, Company's
Pipelin�, Company's operations in the City; Company's transportation o� Gas or Company's use of
Piiblic Rights-of-Way.
Texas Midsh�eam Gas Services, L.L.C. Right-of-Way Use Agreement
Page 15 of 17
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19. SEVF.RABILITY.
If any provision of this Agreement is held to be invalid, illegal or unenforceaUle by a final
arder 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 Ageement,
a court arder 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 agee that they shall amend or have amended this Agreement to
comply with such final arder entered by a court of competent jurisdiction.
20. FUI�CE MA3EUIaE.
In the event Company's perFormance of any of the terms, conditions or obligations required
by this AgrFement is prevented by a cause or event that is not within Company's reasoiiable contral,
Company's non-performance shall be deemed excused for the period of such inability. Causes Qr
events �hat are not witl-,in the Company's control shall include, but not be limited to, acts of God,
strikes, sabotage, riots ar civil disturUances, failure or loss of utilities, explosions aiid nahzral
disasters.
2i. HEA.DIP�T�GS N�31' �ONTROLLIrdG.
Headings and titles, other than those captions in Section 1, that are used in this Ageement
are for reference purposes only and shall not be deeme�l a part of this Agreeinent.
Texas Midstream Gas Services, L.L.C. Right-of-Way Use Agreement
Page 16 of 17
22. ENT'IRF.TY OF AGREEMENT.
This Agreemeni, including the schedule of e�ibits attached hereto and any documents
incorporated herein L-y reference, contains the entire understanding arid agreement between the City
and Company as to the matters contained herein. Any prior or contemporineous aral or written
ageement 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 ��vriting by both parties
and approved by the City Council of the City.
EXECUTED as of the later date below:
CITY OF FORT WORTH:
l�y:
I aren L. Mo tgo ery
Assi �taut City r nager, CFO
Date: t t..a 1 • �
TEXAS MIDSTREAM GAS SERVIC�S, L.L.C.
APPIZOVED AS T� FORM AND LEGALITY:
---�
By:
Peter Vaky
Assa.stant City Attorney
M&C: G21932 1/18/2007
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Texas Midstrezrri Gas Services, L.L.C. Right-of-Way iJse Agreement
Page 17 of 17
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EXHIBIT "A"
Company rnay only use the following portions of the Public Rights-of-Way in the City:
Ap�roximately 6J linear feet crossing Columhus Trail approximately 3000 feet west of its
intersection with Sumrner Creek Road;
Approximately 54 linear feet crossing Stewart-Feltz Road approximately 70 feet east of
its intersection �Nith W Cleburne Road.
Texas Midstream Gas Serviccs, L.L.C. Right-of-Way Use Agreement
Page 18 of 17
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Home � Councr� Fgen�a : iM�� � Emplcyee flirectarti I I
.• �� •
**C-21932 LOG NAME:
Print M&C
03CSPKQ3
CODE: C TYPE: CONSENT PUBLiC HEARING: NO
SUBJECT: Authorize Execution of a Public Right-of-Way Use Agreement Granting Texas Midstream Gas
Services, LLC a License to Use Certain Public Rights-of-Way for the Purpose of Constructing,
Maintaining and Operating Natural Gas Pipelines
�------- =-�. _ ._ . - . � . _ _ _ _ _ . ._ _� _ _ _ - _ _. - — - -- -- - -- ---_
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, LLC (Texas Midstream Gas Services) that grants Texas
Midstream Gas Services a license to use certain public rights-of-way of the City of Fort Worth for the purpose
of constructing, maintaining and operating natural gas pipelines.
DISCUSSION:
Texas Midstream Gas Services is constructing pipelines to connect natural gas wells in south Fort
Worth. The pipelines will cross Columbus Trail and Stewart Feltz Road. Attached is a map showing the
approximate locations of the crossings.
The Department of Transportation and Public Works has reviewed the proposed route and has no objections.
The public right-of-way use agreement will give Texas Midstream Gas Services a license to use those
specific public rights-of-way for the limited purpose of operating natural gas pipelines for a period of 25
years. Texas Midstream Gas Services will pay the City a one-time license fee of $4,987.50 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 is not a public utility, a franchise governing its
operations is not required.
This project is located in COUNCIL DISTRICT 6.
FISCAL WFORMATION/CERTIFICATION:
The Finance Director certifies that the Department af Budget and Management Services is responsible for the
collection of funds due to the City under this agreement.
TO FundlAccount/Centers
GG01 421502 134010 987.50
Submitted for City Manager's Office by:
Originating Depar�ment Head:
Additional Information Contact:
FROM Fund/Account/Centers
Karen Montgomery (6222)
Bridgette Garrett (8518)
Danny Reed (6145)
ATTACHMENTS
CSPK03 Atttachment.pdf