HomeMy WebLinkAboutContract 51674 CITY SECRETARY S� 7
CONTRACT NO.
A 2pi8
Gl C 5�PESA�� PUBLIC RIGHT-OF-WAY USE AGREEMENT
(Liquid petroleum products)
This PUBLIC RIGHT-OF-WAY USE AGREEMENT ("Agreement") is hereby made
and entered into by and between the CITY OF FORT WORTH, a home rule municipal
corporation organized under the laws of the State of Texas and acting by and through Jesus J.
Chapa, its duly authorized Assistant City Manager, and EXPLORER PIPELINE COMPANY,
a Delaware corporation, acting by and through T. J. Jensen, President and CEO.
The following statements are true and correct and constitute the basis upon which the
City of Fort Worth has executed this Agreement.
WHEREAS, the City of Fort Worth, a Texas home rule municipal corporation
("Licensor") entered into an Agreement (Ordinance No. 11445) effective as of December
9, 1993 with EXPLORER PIPELINE COMPANY, a Delaware corporation, acting by
and through R. Scott Van Dyke, President and CEO, for construction, maintenance and
use of a subsurface liquid petroleum products pipeline across over and under certain
streets, highways, public rights-of-way of the City of Fort Worth at locations identified as
Beach Street, Long Avenue, Sylvania Avenue, Watauga Road, and Cold Springs Road
for a cumulative length of 832 linear feet of City rights-of-ways; and,
WHEREAS, the Agreement (Ordinance No. 11445) was subsequently amended by
Ordinance No. 13155, to include an additional right-of-way known as Chesser Boyer
Road for a cumulative length of 892 linear feet across City rights-of-ways; and,
WHEREAS, the term allowed in the Agreement (Ordinance No. 11445) was for twenty-
five (25) years, expiring on December 9, 2018; and,
WHEREAS, the existing pipeline across, over and under the designated streets,
highways, public rights-of-way in the City of Fort Worth at the locations identified on
Exhibit A is now a cumulative length of 964 linear feet across City rights-of-ways; and,
WHEREAS, EXPLORER PIPELINE COMPANY now desires to continue to operate
such pipeline within the City of Fort Worth rights-of-ways for an additional twenty-five
(25) years under new terms and conditions;
NOW THEREFORE, in consideration of the terms set forth in this Agreement, the parties agree
to enter into a license agreement as follows:
A. EXPLORER PIPELINE COMPANY, a Delaware corporation ("Company"),
wishes to continue to operate an existing pipeline for the transportation of liquid petroleum
products within certain Public Rights-of-Way. Because Company is not a public utility, as that
term is used in the City Charter and City Code, and because Company will not be providing
services to end user customers in the City, Company is not required to obtain
OFFICIAL RECORD
EXPLORER PIPELINE COMPANY,RIGHT-OF-WAY USE AGREEMENT SECRETARY
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the City, but is required to obtain the City's consent pursuant to a license agreement that sets
forth the terms and conditions under which Company may use the Public Right-of-Way.
B. The City has reviewed Company's request and agrees to grant Company a license
to use certain Public Rights-of-Way in order to construct, operate and maintain a pipeline, on the
terms and conditions set forth herein, solely for the transportation of Liquid petroleum products
and solely in accordance with the terms and conditions of this Agreement.
Agreement
1. DEFINITIONS.
Capitalized terms used in this Agreement and not otherwise defined within this
Agreement shall have the following meanings:
Affiliate shall mean any individual,partnership, association,joint stock company, limited
liability company, trust, corporation, or other person or entity who owns or
controls, or is owned or controlled by, or is under common ownership or control
with, the entity in question.
Agreement shall mean the authorization issued to Company hereunder to use the Public
Rights-of-Way for (i) the construction, installation, maintenance, repair, operation
and removal of Company's Pipeline; (ii) the use of such Pipeline for the
transportation of Liquid petroleum products; and (iii) any other directly related
uses of the Public Rights-of-Way, pursuant to and in accordance with this
Agreement.
Company shall mean Explorer Pipeline Company, a Delaware corporation, only and
shall not include any Affiliate or third party.
City shall mean the area within the corporate limits of the City of Fort Worth, Texas and
the governing body of the City of Fort Worth, Texas.
Commission shall mean the Railroad Commission of the State of Texas or other
authority succeeding to the regulatory powers of the Commission.
Customer shall mean any Person located, in whole or in part, within the City.
Director shall mean the Director of the City's Department of Transportation/Public
Works or authorized representative.
Liquid petroleum products shall mean liquid petroleum products, fuels such as natural
liquid petroleum products, artificial liquid petroleum products, synthetic liquid
petroleum products, liquefied natural liquid petroleum products, manufactured
liquid petroleum products, or any mixture thereof.
EXPLORER PIPELINE COMPANY,RIGHT-OF-WAY USE AGREEMENT
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Person shall mean, without limitation, an individual, a corporation, a limited liability
company, a general or limited partnership, a sole proprietorship, a joint venture, a
business trust or any other form or business entity or association.
Pipeline shall mean the pipeline and other facilities approved by the Director that are
currently existing and/or installed by Company in the Public Rights-of-Way in
accordance with this Agreement.
Public Rights-of-Way shall mean only those dedicated public streets, highways, alleys
and rights-of-way in the City identified in Exhibit "A" of this Agreement,
attached hereto and hereby made a part of this Agreement for all purposes.
2. GRANT OF RIGHTS.
2.1. General Use of Public Rights-of-Way for Provision of Liquid Petroleum
Products.
Subject to the terms and conditions set forth in this Agreement and the City
Charter and ordinances, the City hereby grants Company a license to (i) erect, construct,
install, maintain, repair, operate and remove its Pipeline in, over, under, along and across
the Public Rights-of-Way and (ii) transport Liquid petroleum products through the
portions of its Pipeline in, over, under, along and across the Public Rights-of-Way.
Company hereby acknowledges and agrees that this Agreement allows only the
transportation of Liquid petroleum products through the City and does not authorize
Company to distribute, sell or otherwise provide Liquid petroleum products to any
Customer.
2.2. Nonexclusive.
This Agreement and all rights granted to Company herein are strictly
nonexclusive. The City reserves the right to grant other and future licenses and other
authorizations for use of the Public Rights-of-Way to other Persons and entities in
accordance with applicable law and as the City deems appropriate; provided, however,
that as to the grant of subsequent licenses for use of the same Public Rights-of-Way that
is solely within the discretion of the City, if a dispute arises as to priority of the use of the
Public Rights-of-Way, the City will resolve such dispute in a manner that does not result
in unreasonable interference with Company's operation of the Pipeline for the purposes
provided for herein. This Agreement does not establish any priority for the use of the
Public Rights-of-Way by Company or by any present or future licensees or other permit
holders. In the event of any dispute as to the priority of use of the Public Rights-of-Way,
the first priority shall be to the public generally, the second priority to the City in the
performance of its various functions, and thereafter, as between licensees and other
permit holders, as determined by the City in the exercise of its powers, including the
police power and other powers reserved to and conferred on it by the State of Texas.
EXPLORER PIPELINE COMPANY,RIGHT-OF-WAY USE AGREEMENT
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2.3. Other Permits.
This Agreement does not relieve Company of any obligation to obtain permits,
licenses and other approvals from the City or other regulatory agency necessary for the
construction, installation, maintenance or repair of Company's Pipeline or the
transportation of Liquid petroleum products through such Pipeline.
2.4. Bonds.
Prior to the commencement of any construction work in the Public Rights-of-Way
in the City that requires a cut, opening or other excavation, Company shall deliver to the
City bonds executed by a corporate surety authorized to do business in the State of Texas
and acceptable to the City in the proportional amount of the cost of work under the
construction contract or construction project that will be performed in the Public Rights-
of-Way. The bonds shall guarantee (i) satisfactory compliance by Company with all
requirements, terms and conditions of this Agreement and (ii) full payments to all
persons, firms, corporations or other entities with whom Company has a direct
relationship for the performance of such construction, maintenance or repairs.
If any such construction, maintenance and repair work is undertaken by a
contractor of Company, Company shall also require such contractor to deliver to
Company bonds executed by a corporate surety authorized to do business in the State of
Texas and acceptable to the City in the proportional amount of the cost of work under the
construction contract or construction project that will be performed by the contractor in
the Public Rights-of-Way. The bonds shall guarantee (i) the faithful performance and
completion of all construction, maintenance or repair work in accordance with the
contract between Company and the contractor and (ii) full payment for all wages for
labor and services and of all bills for materials, supplies and equipment used in the
performance of that contract. Such bonds shall name both the City and Company as dual
obligees.
3. TERM
This Agreement shall become effective on the date as of which both parties have
executed it ("Effective Date") and shall expire at 11:59 P.M. CST on December 8, 2043 unless
terminated earlier as provided herein.
4. FEES AND PAYMENTS TO CITY.
4.1. Right-of-Way Use Fee.
On or prior to the Effective Date, Company shall pay the City as compensation
for its use of the Public Rights-of-Way for the Term of this Agreement the sum of fifty-
one thousand, ninety-two Dollars and no Cents ($51,092.00) ("License Fee"). Company
hereby acknowledges and agrees that the amount of this License Fee constitutes just and
EXPLORER PIPELINE COMPANY,RIGHT-OF-WAY USE AGREEMENT
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reasonable compensation to the City for Company's use of the Public Rights-of-Way as
provided by this Agreement.
4.2. Other Payments.
In addition to the License Fee, Company shall pay the City all sums which may be
due the City for property taxes, license fees, permit fees, or other taxes, charges or fees
that the City may from time to time impose on all other similarly situated entities within
the City. Company shall reimburse the City for publication of this Agreement as required
by the City's Charter.
4.3. Interest.
All sums not paid when due shall bear interest at the rate of ten percent (10%) per
annum or the maximum amount allowed by law, whichever is less, computed monthly. If
such outstanding sums are paid with interest within thirty (30) days following their
respective due dates, Company's failure to pay such sums by their respective due dates
shall not, in and of itself, constitute an Event of Default under Section 9 of this
Agreement.
5. REGULATORY AUTHORITY OF THE CITY.
Company's property and operations hereunder shall be subject to such regulation by the
City as may be reasonably necessary for the protection or benefit of the general public. In this
connection, Company shall be subject to, governed by and shall comply with all applicable
federal, state and local laws, including all ordinances, rules and regulations of the City, as same
may be adopted and amended from time to time.
6. USE OF PUBLIC RIGHTS-OF-WAY.
6.1. Compliance with Laws, Ordinances, Rules and Regulations.
The City has the right to control and regulate the use of the Public Rights-of-Way,
public places and other City-owned property and the spaces above and beneath them.
Company shall comply with all applicable laws, ordinances, rules and regulations,
including, but not limited to, City ordinances, rules and policies related to construction
permits, construction bonds, permissible hours of construction, operations during peak
traffic hours, barricading requirements and any other construction rules or regulations
that may be promulgated from time to time.
6.2. 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 the
Public Rights-of-Way by the City and the public. If the City reasonably determines that
the Pipeline does place an undue burden on any portion of the Public Rights-of-Way,
EXPLORER PIPELINE COMPANY,RIGHT-OF-WAY USE AGREEMENT
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Company, at Company's sole cost and expense and within a reasonable time period
specified by the City, shall modify the Pipeline or take other actions determined by the
City to be in the public interest to remove or alleviate the burden.
6.3. 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
the Public Rights-of-Way, Company shall, except for work required to address an
emergency, provide at least twenty-four (24) hours' advance written notice to the owners
of property adjacent to the Public Rights-of-Way that will be affected. In the case of
emergencies Company shall provide notice to the affected landowners within twenty-four
(24) hours after commencement of work. In addition, during any such work, Company
shall provide construction and maintenance signs and sufficient barricades at work sites
to protect the public. The use of such traffic control devices shall be consistent with the
standards and provisions of Part VI of the Texas Manual on Uniform Traffic Control
Devices. Company shall utilize appropriate warning lights at all construction and
maintenance sites where one or more traffic lanes are closed or obstructed during
nighttime conditions.
6.4. "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 in accordance with Ordinance No.
18449-02-2009, and shall otherwise fully cooperate with the City in ensuring that the
Pipeline is accurately reflected in the City's mapping system.
6.5. Marking of Pipeline.
The Pipeline shall be marked, in a manner that is acceptable to the Director, to
show conspicuously Company's name and a toll-free telephone number of Company that
a Person may call for assistance.
6.6. Pavement Cut Coordination and Additional Fees.
The City shall have the right to coordinate all excavation work in the Public
Rights-of-Way in a manner that is consistent with and convenient for the implementation
of the City's program for street construction, rebuilding, resurfacing and repair. In order
to preserve the integrity of the Public Rights-of-Way, Company shall not cut, excavate or
otherwise breach or damage the surface of any paved Public Right-of-Way within ninety-
six (96) months following the construction or resurfacing of such Public Right-of-Way
unless (i) Company obtains written consent from the Director and (ii) pays the City, for
each fifty (50) linear feet of a cut, excavation or breach of any Public Right-of-Way or
EXPLORER PIPELINE COMPANY,RIGHT-OF-WAY USE AGREEMENT
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portion thereof, the sum of (a) $1,500 for any cut, excavation or breach occurring
between the December 9, 2018 and December 8, 2023; (b) $1,800 for any cut, excavation
or breach occurring between December 9, 2023 and December 8, 2028; (c) $2,150 for
any cut, excavation or breach occurring between December 9, 2028 and December 8,
2033; and (d) $2,600 for any cut, excavation or breach occurring between December 9,
2033 and December 8, 2043. Such fee shall (i) be in addition to, and not in lieu of,
Company's obligations to restore the Public Rights-of-Way in accordance with this
Agreement and (ii) not be allocated or otherwise counted as part of the License Fee to the
City.
6.7. Restoration of Public Rights-of-Way and Property.
Company, at Company's sole cost and expense, and in a manner approved by the
City, shall promptly restore any portion of the Public Rights-of-Way, City-owned
property or other privately-owned property that are in any way disturbed or damaged by
the construction, operation, maintenance or removal of any of the Pipeline to a condition
that is at least as good as the one in which such property existed immediately prior to the
disturbance or damage. Company shall diligently commence such restoration within
thirty (30) calendar days following the date that Company first became aware of the
disturbance or damage or, if the Pipeline is being removed, within thirty (30) calendar
days following such removal.
6.8. Relocation of Pipeline.
Within forty-five (45) calendar days following a written request by the City,
Company, at Company's sole cost and expense, shall protect, support, disconnect or
remove from the Public Rights-of-Way all or any portion of its Pipeline due to street or
other public excavation, construction, repair, grading, regrading or traffic conditions; the
installation of sewers, drains, water pipes or municipally-owned facilities of any kind; the
vacation, construction or relocation of streets or any other type of structure or
improvement of a public agency; any public work; or any other type of improvement
necessary, in the City's sole discretion, for the public health, safety or welfare. If
Company reasonably requires more than forty-five (45) days to comply with the City's
written request, it shall notify the director of the City's Department of
Transportation/Public Works in writing and the City will work in good faith with
Company to negotiate a workable time frame.
6.9. Emergencies.
6.9.1. Work by the City.
For purposes of this Section 6.9.1, 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
EXPLORER PIPELINE COMPANY,RIGHT-OF-WAY USE AGREEMENT
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public emergency, the City shall have the right to take whatever action is deemed
appropriate by the City Manager, Mayor, Police Chief or Fire Chief, or their
authorized representatives, including, but not limited to, action that may result in
damage to the Pipeline, and Company hereby (i) releases the City, its officers,
agents, servants, employees and subcontractors from liability or responsibility for
any Damages, as defined in Section 7.1, that may occur to the Pipeline or that
Company may otherwise incur as a result of such a response, and (ii) agrees that
Company, at Company's sole cost and expense, shall be responsible for the repair,
relocation or reconstruction of all or any of its Pipeline that is affected by such
action of the City. In responding to a public emergency, the City agrees to
comply with all local, state and federal laws, including any requirements to notify
the Texas One Call System, to the extent that they apply at the time and under the
circumstances. In addition, if the City takes any action that it believes will affect
the Pipeline, the City will notify Company as soon as practicable so that Company
may advise and work with the City with respect to such action.
6.9.2. Work by or on Behalf of Company.
In the event of an emergency that involves that portion of the Pipeline
located in the Public Rights-of-Way and necessitates immediate emergency
response work or repairs, Company may initiate the emergency response work or
repairs or take any action required under the circumstances provided that
Company notifies the City as promptly as possible. After the emergency has
passed, Company shall apply for and obtain a construction permit from the
director of the City's Department of Transportation/Public Works and otherwise
fully comply with the requirements of this Agreement.
6.10. Removal of Pipeline.
Upon the revocation, termination or expiration without extension or renewal of
this Agreement, Company's right to use the Public Rights-of-Way under this Agreement
shall cease and Company shall immediately discontinue the transportation of Liquid
petroleum products 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 the Public Rights-of-Way(abandon
in place or cap the Pipeline, if consented to by the City, which consent will not be
unreasonably withheld, conditioned or delayed), in accordance with applicable laws and
regulations. If Company has not removed all of the Pipeline from the Public Rights-of-
Way (abandoned in place or capped the Pipeline, if consented to by the City) within six
(6) months following revocation, termination or expiration of this Agreement, the City
may deem any portion of the Pipeline remaining in the Public Rights-of-Way abandoned
and, at the City's sole option, (i) take possession of and title to such property or (ii) take
any and all legal action necessary to compel Company to remove such property;
provided, however, that Company may not abandon its facilities or discontinue its
services within the City without the approval of the Commission or successor agency or
EXPLORER PIPELINE COMPANY,RIGHT-OF-WAY USE AGREEMENT
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any other regulatory authority with jurisdiction, provided that any such approval is
required at the time Company abandons or discontinues its services.
Within six (6) months following revocation, termination or expiration of this
Agreement and in accordance with Section 6.7 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, abandoning or 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 reasonable costs incurred in performing or
having performed such restoration work.
7. LIABILITY AND INDEMNIFICATION.
7.1. Liability of Company.
Company shall be liable and responsible for any and all damages, losses, liabilities (joint
or several), payments, obligations, penalties, claims, litigation, demands, defenses, judgments,
lawsuits, proceedings, costs, disbursements or expenses (including, without limitation, fees,
disbursements and reasonable expenses of attorneys, accountants and other professional advisors
and of expert witnesses and costs of investigation and preparation) of any kind or nature
whatsoever (collectively "Damages"), which may arise out of or be in any way connected with
(i) the construction, installation, operation, maintenance or condition of the Pipeline or any
related facilities or appurtenances; (ii) the transportation of Liquid petroleum products 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 applicable 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, the City's officers, Boards, Commissions, employees, representatives,
agents, volunteers or contractors of any tier.
7.2. Indemnification.
COMPANY, AT COMPANY'S SOLE COST AND EXPENSE, SHALL
INDEMNIFY AND HOLD HARMLESS THE CITY, ITS OFFICERS, BOARDS,
COMMISSIONS, AGENTS, EMPLOYEES AND VOLUNTEERS
("INDEMNITEES"), FROM AND AGAINST ANY AND ALL DAMAGES
(INCLUDING, WITHOUT LIMITATION, THOSE FOR PROPERTYDAMAGE AND
PERSONAL INJURY, INCLUDING DEATH) WHICH MA Y A RISE 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 LIQUID PETROLEUM PRODUCTS 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 (Iii COMPANY'S FAILURE TO COMPLY WITH ANY
EXPLORER PIPELINE COMPANY,RIGHT-OF-WAY USE AGREEMENT
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APPLICABLE 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 INDEMNITEES.
7.3. Assumption of Risk.
Company hereby undertakes and assumes, for and on behalf of Company, its
officers, agents, contractors, subcontractors, and employees, all risk of dangerous
conditions, if any, on or about any City-owned or City-controlled property, including, but
not limited to, the Public Rights-of-Way.
7.4. Defense of Indemnitees.
In the event any action, lawsuit or other proceeding is brought against any
Indemnitee by reason of any matter for which the Indemnitees are indemnified hereunder,
the City shall give Company prompt written notice of the making of any claim or
commencement of any such action, lawsuit or other proceeding, and Company, at
Company's sole cost and expense, shall resist and defend the same with reasonable
participation by the City and with legal counsel selected by Company and specifically
approved by the City, such approval by the City will not be unreasonably withheld,
conditioned or delayed. In such an event, Company shall not admit liability in any matter
on behalf of any Indemnitee without the advance written consent of the City.
8. INSURANCE.
Company shall procure and maintain at all times, in full force and effect, a policy or policies
of insurance to provide coverages as specified herein, naming the City as an additional insured and
covering all public risks related to the use, occupancy, condition,maintenance, existence or location
of the Public Rights-of-Way and the construction, installation, operation, maintenance or condition
of the Pipeline, including the transportation of Liquid petroleum products through the Pipeline. The
required insurance can be met by a combination of self-insurance,primary and excess policies.
8.1. Primary Liability Insurance Coverage.
• Commercial General Liability:
$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
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• Automobile Liability:
$1,000,000 per accident, including,but not limited to, all owned, leased, hired or
non-owned motor vehicles used in conjunction with the rights granted under this
Agreement
• Worker's Compensation:
As required by law; and, Employer's Liability as follows:
$1,000,000 per accident.
8.2. Revisions to Required Coverage.
At the reasonable recommendation of the City's Risk Manager, the City may at any
time revise insurance coverage requirements and limits required by this Agreement.
Company agrees that following receipt of written notice from the City, Company will
implement all such revisions requested by the City at the Company's next annual insurance
renewal provided that such requested changes are reasonably available to Company by the
insurance market. 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 and in the event such endorsement is not available, the Company agrees to provide
such notice to the City.
8.3. Underwriters and Certificates.
Company shall procure and maintain its insurance with underwriters authorized to
do business in the State of Texas and who are acceptable to the City in terms of solvency
and financial strength. Within thirty(30) days following adoption of this Agreement by the
City Council, Company shall furnish the City with certificates of insurance signed by the
respective companies as proof that it has obtained the types and amounts of insurance
coverage required herein. In addition, Company shall, on demand, provide the City with
evidence that it has maintained such coverage in full force and effect.
8.4. Deductibles.
The Company may meet its insurance obligations with any combination of
deductibles or self-insured retention limits as determined by the Company from time to
time.
8.5. No Limitation of Liability.
The insurance requirements set forth in this Section 8 and any recovery by the City
of any sum by reason of any insurance policy required under this Agreement shall in no way
be construed or effected to limit or in any way affect Company's liability to the City or other
persons as provided by this Agreement or law.
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9. DEFAULTS.
The occurrence at any time during the term of this Agreement of one or more of the
following events shall constitute an "Event of Default" under this Agreement:
9.1. Failure to Pay License Fee.
An Event of Default shall occur if Company fails to pay any License Fee on or
before the respective due date.
9.2. Breach.
An Event of Default shall occur if Company materially breaches or violates any
of the terms, covenants, representations or warranties set forth in this Agreement or fails
to perform any obligation required by this Agreement.
9.3. Bankruptcy,Insolvency or Receivership.
An Event of Default shall occur if Company (i) files a voluntary petition in
bankruptcy; (ii) is adjudicated insolvent; (iii) files any petition or fails to contest any
petition filed against it seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief for itself under any laws relating to
bankruptcy, insolvency or other relief for debtors; (iv) seeks, consents to or acquiesces in
the appointment of any trustee, receiver, master, custodian or liquidator of Company, any
of Company's property or any revenues, issues, earnings or profits thereof, (v) makes an
assignment for the benefit of creditors; or (vi) fails to pay Company's debts generally as
they become due.
9.4. Violations of the Law.
An Event of Default shall occur if Company violates any applicable existing or
future federal, state or local laws or any existing or future ordinances, rules and regulations
of the City.
10. UNCURED DEFAULTS AND REMEDIES.
10.1. Notice of Default and Opportunity to Cure.
If an Event of Default occurs on account of Company's failure to pay the License
Fee in accordance with Section 9.1, such Event of Default shall be deemed an Uncured
Default and the City shall have the right to terminate this Agreement immediately upon
provision of written notice to Company. If an Event of Default occurs for a reason other
than for failure to pay the License Fee, the City shall provide Company with written
notice and shall give Company the opportunity to cure such Event of Default. For an
Event of Default which can be cured by the immediate payment of money to the City,
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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 or if such cure cannot be completed within sixty (60) days but Company has
commenced such cure and diligently completes such cure, then an additional period of
time that is reasonable under the circumstances. If any Event of Default is not cured
within the time period specified herein, such Event of Default shall, without further
notice from the City, become an "Uncured Default" and the City immediately may
exercise the remedies provided in Section 10.2.
10.2. Remedies for Uncured Defaults.
Upon the occurrence of an Uncured Default, the City shall be entitled to exercise,
at the same time or at different times, any of the following remedies, all of which shall be
cumulative of and without limitation to any other rights or remedies the City may have:
10.2.1. 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 the Public Rights-of-Way as
and when requested by the City. The City's right to terminate this Agreement
under this Section 10.2.1 does not and shall not be construed to constitute any
kind of limitation on the City's right to terminate this Agreement for other reasons
as provided by and in accordance with this Agreement; provided, however, that
Company may not abandon the Pipeline without the approval of the Commission
or successor agency or other regulatory authority with jurisdiction, if such action
without such approval is prohibited at the time by applicable federal or state law
or regulation.
10.2.2 Legal Action Against Company.
Upon the occurrence of an Uncured Default, the City may commence
against Company an action at law for monetary damages or in equity, for
injunctive relief or specific performance of any of the provisions of this
Agreement which, as a matter of equity, are specifically enforceable.
EXPLORER PIPELINE COMPANY,RIGHT-OF-WAY USE AGREEMENT
Page 13 of 19
11. PROVISION OF INFORMATION.
11.1. Filings with the Commission.
Company shall provide copies to the City of all documents which Company files
with or sends to the Commission concerning or related to its transportation of Liquid
petroleum products 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.
11.2. Lawsuits.
Company shall provide the City with copies of all pleadings in all lawsuits to which
Company is a party and that pertain to the granting of this Agreement and/or the
transportation of Liquid petroleum products through the City within thirty (30) days of
Company's receipt of same.
12. COMPANY AS INDEPENDENT CONTRACTOR.
It is expressly understood and agreed that Company shall operate as an independent
contractor as to all rights and privileges granted by this Agreement, and not as an agent,
representative or employee of the City. Company shall have the exclusive right to control the
details of its business and other operations necessary or appurtenant to the transportation of Liquid
petroleum products 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.
13. ASSIGNMENT PROHIBITED.
Company may not assign or otherwise transfer any of its rights or obligations under this
Agreement unless specifically authorized in writing by the City, which authorization shall not be
unreasonably withheld. In the event the City conveys in any manner, in whole or in part, the Public
Rights-of-Way,the City agrees that such conveyance will be made subject to this Agreement.
EXPLORER PIPELINE COMPANY,RIGHT-OF-WAY USE AGREEMENT
Page 14 of 19
14. NOTICES.
Notices required pursuant to the provisions of this Agreement shall be conclusively
determined to have been delivered when (i)hand-delivered to the other party, its agents, employees,
servants or representatives, or (ii) received by the other party by United States Mail, postage
prepaid, return receipt requested, or(iii)by recognized overnight carrier, addressed as follows:
To THE CITY: To COMPANY:
City of Fort Worth EXPLORER PIPELINE COMPANY
C/O Property Management/Real Property 6120 S. Yale Avenue
200 Texas Suite 1100
Fort Worth, TX 76102 Tulsa, OK 74136
Attn: President and CEO
with a copy to: with a copy to:
City of Fort Worth Explorer Pipeline Company
Department of Law 6120 S. Yale Avenue
Attn: Attorney for Utilities Suite 1100
200 Texas Tulsa, OK 74136
Fort Worth, TX 76102 Attn: General Counsel
15. 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.
16. IMMIGRATION.
Company shall verify the identity and employment eligibility of its employees who
perform work under this Agreement, including completing the Employment Eligibility
Verification Form (1-9). Upon request by City, Company shall provide City with copies of all I-
9 forms and supporting eligibility documentation for each employee who performs work under
this Agreement. Company shall adhere to all Federal and State laws as well as establish
appropriate procedures and controls so that no services will be performed by any Company
employee who is not legally eligible to perform such services. COMPANY SHALL
INDEMNIFY CITY AND HOLD CITY HARMLESS FROM ANY PENALTIES,
LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY
COMPANY, COMPANY'S EMPLOYEES, SUBCONTRACTORS, AGENTS, OR
LICENSEES. CITY, UPON WRITTEN NOTICE TO COMPANY, SHALL HAVE THE
RIGHT TO IMMEDIATELY TERMINATE THIS AGREEMENT FOR VIOLATIONS OF
THIS PROVISION BY COMPANY.
EXPLORER PIPELINE COMPANY,RIGHT-OF-WAY USE AGREEMENT
Page 15 of 19
17. NO BOYCOTT OF ISRAEL.
Company acknowledges that in accordance with Chapter 2270 of the Texas Government
Code, City is prohibited from entering into a contract with a company for goods or services
unless the contract contains a written verification from the company that it: (1) does not boycott
Israel; and (2) will not boycott Israel during the term of the contract. The terms "boycott Israel"
and "company" shall have the meanings ascribed to those terms in Section 808.001 of the Texas
Government Code. By signing this contract, Company certifies that Company's signature
provides written verification to City that Company: (1) does not boycott Israel; and (2) will not
boycott Israel during the term of the contract.
18. NO WAIVER.
The failure of the City to insist upon the performance of any term or provision of this
Agreement or to exercise any rights that the City may have, either under this Agreement or the law,
shall not constitute a waiver of the City's right to insist upon appropriate performance or to assert
any such right on any future occasion.
19. 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 Liquid petroleum
products or Company's use of the Public Rights-of-Way, venue for such action shall lie exclusively
in state courts located in Tarrant County, Texas or the United States District Court for the Northern
District of Texas, Fort Worth Division.
20. 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 Liquid petroleum products
or Company's use of Public Rights-of-Way.
21. 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.
EXPLORER PIPELINE COMPANY,RIGHT-OF-WAY USE AGREEMENT
Page 16 of I9
22. FORCE MAJEURE.
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.
23. HEADINGS NOT CONTROLLING.
Headings and titles, other than those captions in Section 1, that are used in this Agreement
are for reference purposes only and shall not be deemed a part of this Agreement.
24. 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.
SIGNATURES APPEAR ON FOLLOWING PAGE
EXPLORER PIPELINE COMPANY,RIGHT-OF-WAY USE AGREEMENT
Page 17 of 19
EXECUTED as of the later date below:
CITY OF FORT WORTH EXPLORER PIPELINE COMPANY
By:- By:
Jesus J. Chapa T. J. Jensen
Assistant City Manager President and CEO
Date:— L2oZ J 1 Date: -nov. IC" p-6113
Approved as to form
APPROVED AS TO FORM AND LEGALITY: Celeste Johnson
�� pF FOp
By:
A,
J. Strong �ZA by*
Assist ey
. ::.tet
'�'/OM
Assistant City,
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Date: zo xe
CONTRACT COMPLIANCE MANAGER:
By signing I acknowledge that I am the person responsible
for the monitoring and administration of this contract,
including ensuring all performance and reporting requirements.
Je
Lease Man ager/Property Management
OFFICIAL RECORD
EXPLORER PIPELINE COMPANY,RIGHT-OF-WAY USE AGREEMENT CITY SECRETARY
Page 18 of 19 FT. WORTH,TX
L
EXHIBIT "A"
Company may only use the following portions of the Public Rights-of-Way in the City:
• Approximately 164 feet across Beach Street located approximately 166 feet south of Old
Denton Road
• Approximately 500 feet across Long Avenue located approximately 2200 feet west of N
Beach Street
• Approximately 104 feet across Sylvania Avenue located approximately 150 feet north of
Chessar Boyer Road
• Approximately 37 feet across Watauga Road located approximately 270 feet east of Cold
Springs Road
• Approximately 75 feet across Cold Springs Road located approximately 72 feet south of
Watauga Road
• Approximately 84 feet across Chesser Boyer Road located approximately 1150 feet west of
Tom Ellen Street
EXPLORER PIPELINE COMPANY,RIGHT-OF-WAY USE AGREEMENT
Page 19 of 19
Official site of the City of Fort Worth,Texas
CITY COUNCIL AGENDA FORTIi
COUNCIL ACTION: Approved on 121412018
DATE: 12/4/2018 REFERENCE NO.: "L-16162 LOG NAME: 21 EXPLORER PIPELINE
CODE: L TYPE: CONSENT PUBLIC HEARING: NO
SUBJECT: Authorize Execution of a Public Right of Way Use Agreement with Explorer Pipeline
Company for a License Fee in the Amount of$51,092.00 and Grant License to Continue
Operations of an Existing Subsurface Liquid Petroleum Products Pipeline Across Beach
Street, Long Avenue, Sylvania Avenue,Wautauga Road, Cold Springs Road and Chesser
Boyer Road (COUNCIL DISTRICTS 2, 4 and 9)
RECOMMENDATION:
It is recommended that the City Council authorize the execution of a public right-of-way use
Agreement with Explorer Pipeline Company for a license fee in the amount of$51,092.00 and grant
license to continue operations of an existing subsurface liquid petroleum products pipeline across
Beach Street, Long Avenue, Sylvania Avenue, Watauga Road, Cold Springs Road and Chesser
Boyer Road.
DISCUSSION:
On November 9, 1993, the Fort Worth City Council adopted City Ordinance No. 11445, granting to
Explorer Pipeline Company a license to use certain City streets and other public rights-of-way for the
construction, maintenance and use of a liquid petroleum products pipeline. On September 16, 1997,
(M&C G-11994)the Fort Worth City Council amended the ordinance to include an additional City
street under Ordinance No. 13156.
The term of the license was for twenty-five (25) years and expires on December 9, 2018.
Explorer Pipeline Company has requested to enter into a new public right-of-way use Agreement for
operation of the existing pipeline which includes 964 linear feet of pipeline within the specific rights-of-
ways for a period of 25 years. Explorer will pay the City a one-time license fee of$51,092.00, and has
agreed to all terms of the City's standard license agreement. Because Explorer Pipeline Company is
not a public utility, as that term is defined in Chapter 28 of the City Code, a franchise governing its
operations is not required by the City Charter.
The pipeline alignment is located in COUNCIL DISTRICTS 2,4 and 9.
FISCAL INFORMATION/CERTIFICATION:
The Director of Finance certifies that the Property Management Department is responsible for
collection and deposit of funds due to the City under this agreement.
TO
Fund Department Account Project Program Activity Budget Reference# Amount
ID I ID I I I Year Chartfleld 2
Fund Department Account Project Program Activity Budget Reference# Amount
ID I I ID I I Year Chartfleld 2
Submitted for City Manager's Office by_ Jay Chapa (5804)
Origin ing Depaftrnent Head: Roger Venables (6334)
Additional Information Contact: Jean Petr(8367)
ATTACHMENTS
EXPLORER PIPELINE MC MAP.pdf
Form 1295-City of Fort Worth- EXPLORER Redacted.pdf
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