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PUBLIC RIGHT-OF-WAY USE AGREEMENT
This PUBLIC RIGHT-OF-WAY USE AGREEMENT ("Agreement") is hereby made
and entered into by and betwe�n the CITY OF FORT WORTH, a home rule municipal
corporation organized under the laws of the State of Texas and acting by and tlu•ough Karen L.
Montgomery, its duly authorized Assistant City Manager, and BARNETT GATHERING, L.P.,
a Texas limited partnership acti�lg by and through Edwin S. Ryan Jr., Senior Vice-President-
Land Administration of XTO IZesources I, GP, LLC, the sole General Partner of Barnett
Gathering, L.P.
The following statements are true and correct and constitute the basis upon which the
City of Fort Worth has executed this Agreement.
A. Barnett Gathering, L.P., a Texas limited partnership (`�Company") wislies to
construct a pipeline for the transportation of natural gas under a Public Right-of-Way. Because
Coinpany is not a public utility, as that term is used in the City Charter and City Code, as well as
generally under applicable state laws, Company is not required to obtain a fi•anchise from the
City, but is required to obtain thf, City's conserit 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
tenns and conditions set forth herein, solely for tlie transportation of natural gas and solely in
accordance with the terms and conditions of tliis Agreeinent.
Agreement
1. DEFINITIONS.
Capitalized tenns used in this Agreement and not otherwise defined within this
Agreement shall have the following meanings:
Affiliate shall mean any individual, partnei•ship, association, joint stock company, limited
liability company, trust, co�poration, or other person or entity who owns or
controls, or is owned or controlled by, or is under common ownership or contl•ol
with, the entity in c�uestion.
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Agreement shall mean the authorization issued to Company hereunder to use the Public
Rights-of-Way far (i) the construction, installation, maintenance and repair of
Company's Pipeline; (ii) the use of such Pipeline for the transportation of Gas;
and (iii) any other directly related uses of the Public Rights-of-Way, pursuant to
and in accordance with this Agreement.
Company shall mean Bai7iett Gathering, L.P., a Texas limited partnership, only and sllall
not include any Ai-filiate or third party.
Cit,y 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 sllall mean the Railroad Cornlnission 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
Worlcs or authorized representative. �
Gas shall mean gaseous tuels such as natural gas, artificial gas, synthetic gas, liquefied
natural gas, manufactured gas, or any mixture thereof.
Person shall mean, with�ut limitation, an individual, a corporation, a limited liability
company, a general or limited partnership, a sole proprietorship, a join venture, a
business tnist or ariy other form or business entity ar association.
Pipeline shall mean the pipeline and other facilities approved by the Director that are
installed by Com�any 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 tlie City identified in Exhibit "A" of this Agreenlent,
attached hereto and hereby made a part of this Agreement for all purposes.
2. GRANT OF RIGHTS.
2.1. General Use of Pi�blic Ri�hts-of-Way for Provision of Gas.
Subject to the tei7ns and conditions set forth in this Agreement and the City
Charter and ordinances, the City hereby grants Company a license to (i) erect, construct,
install and maintain its Pipeline in; over, under, along and across the Public Rights-of-
Way and (ii) transport Gas through the portions of its Pipeline in, over, under, along and
across the Public Rights-of-Way. Company hereby acknowledges and agrees that this
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Agreement allows only the transportation of Gas through the City and does not allow
Company to distribute, sell or otherwise provide Gas to any Customer.
2.2. Nonexclusive.
This Agreeinent and all rights granted to Company herein are strictly
nonexclusive. The Ciry 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 iil
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, tl�e City will resolve such dispute such dispute in a maimer 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 �rst prioi•ity sliall be to the public generally, the second priority to t11e
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.
2.3. Other Permits.
This Agreement does not relieve Company of any obligation to obtain permits,
licenses and other approvals fi•om the City or other regulatory agency necessary for t11e
construction, installation, maintenance or repair of Company's Pipeline or the
transportation of Gas through such Pipeline.
2.4. Bonds.
Prior to the commencement of any construction work in the Public Rights-of-Way
in the City that requires a cut, opening or other excavation, Company shall deliver to the
City bonds executed by a corporate surety authorized to do business in the State of Texas
and acceptable to the City in the proportional amount of the cost of work under tlle
constrtiction contract or construction project that will be performed in the Public Rights-
of-Way. The bonds shall guarantee (i) satisfactory compliance by Campany with all
requirements, teims and conditions of this Agreement and (ii) full payments to all
persons, firms, co�porations or other entities with whom Company has a direct
relationship for the performance of such constnlction, 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 worlc under the
construction contract or coiistruction project that will be perfornled by the contractol• in
the Public Rights-of-Way. The bonds shall guarantee (i) the faithful performance and
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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 bc,come effective on the date as of which both parties have
executed it ("Effective Date") and shall expire at 11:59 P.M. CST on December 31, 2031 unless
terminated earlier as provided herein.
4. FEES AND PAYMENTS TO CITY.
4.1. Ri�ht-of-Way Use Fee.
On or priar to the Effective Date, Company shall pay the City as _ compensation
for its use of the Public Rights-of-Way for the Tern1 of this Agreement tlle sum of
Sixteen Thousand Five Hundred Seventy-Six Dollars and Ninety-Eight Cents
($16,576.98) ("License Fee"), Company hereby acknowledges and agrees that the
ainount of this License Fee constitutes just and 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 tlle 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 sihiated 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 suins are paid with interest within thirty (30) days following theii•
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.
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5. REGULATORY AUTHORITY OF THE CITY.
Company's property and operations hereiinder 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 RIGI�TS-OF-WAY.
(.1. Compliance with Laws, Oi•dinances, Rules and Re�ulations.
The City has the right to control aild 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, consti•uction bonds, permissible hours of construction, operations during pealc
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 bu"rden on the present or fiiture lise of the
Public Rights-of-Way by the City and the public. If the City reasonably determines that
the Pipeline does place an undue burden on any portion of the Public Rights-of-Way,
Company, at Company's sole cost and expense and within a reasonable time pei•iod
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. MinimalInterference.
Priar to the undertalcing of any kind of construction, installation, maintenance,
repairs or other worlc that requires the excavation, lane closure or other physical use of
the Public Rights-of-Way, Company shall, except for wark 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 constl•uction and maintenance signs and sufficient bai•ricades at work sites
to protect the public. The use of such h�affic control devices shall be consistent with the
standards and provisions of Part VI of the Texas Manual on Unifornl Traffic Control
Devices. Company shall utilize appropriate warning lights at all construction and
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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 extrateri-itorial
jtu-isdiction and maps shawing such Pipeline within ninety (90) calendar days followin�
the completion of such Pipeline. Company shall supply the textual documentation of
such as-built plans and maps in computer format as requested in writing by the City and
shall otherwise fiilly cooperate with the City in ensuring that the Pipeline is accurately
reflected in the City's mapping system.
6.5. Markin� of Pineline.
The Pipeline shall be marked, in a manner that is acceptable to the Director, to
show conspictzously Company's name and a toll-free telephone nuinber of Company that
a Person may call for assistance. �
6.6. Pavement Cut Coordination and Additional rees.
The City shall have the right to coordinate all excavation work in the Public
Rights-of-Way in a mamler that is consistent with and convenient for the iinplementatioii
of the City's program for street construction, rebuilding, resurfacing and repair. In order
to preserve the integrity of t11e Ptiblic Rights-of-Way, Company shall not cnt, excavate or
otherwise breach or damage the surface of any paved Public Right-of-Way within ninety-
six (96) months followin�; the construction or resurfacing of such Public Right-of-Way
unless (i) Company obtains written consent fram the Director and (ii) pays the City, for
each fifty (50) linear feet of a cut, excavation or breach of any Public Right-of-Way or
portion thereof, the sum of (a) $1,250 for any cut, excavation or breach OCCLIT'I'1ll�T
between the Effective Date and November 30, 2006; (b) $1,500 far any cut, excavation ar
bi•each occtirring between December 1, 2006 and November 30, 2011; (c) $1,800 for any
cut, excavation or breach occurring between December 1, 2011 and November 30, 2016;
(r� $2,150 for any cut, excavation or breach occurring between December l, 2016 and
November 30, 2021; and {e) $2,600 for any cut, excavation or breach occurring between
December 1, 2021 and December 31, 2031. 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 witll
this Agreement and (ii) not be allocated or otherwise counted as part of the License Fee
to the City.
6.7. Restoration of Public Ri�hts-of-Way and Pronerty.
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
pi•opei-ty ar 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, at
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Company's option, as good or better a condition as such property was in 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 dama�e 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, discomlect or
remove frorn the Public Rights-of-Way all or any portion of its Pipeline due to str•eet or
other public excavation, construction, repaii•, �•ading, regrading or traffic conditions; the
installation of sewers, dt•ains, water pipes or municipally-owned facilities of any kind; the
vacation, construction or relocation of sti•eets or any other type of structure or
improvement of a public agency; any public wark; or any other type of improvement
necessary, in the City's sole discretion, for the public health, safety oi• 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 Worl<s in writing and the City will work in good faith with
Company to negotiate a workable time frame.
69. Emergencies.
6.9.1. Work by the City.
For pu�poses of this Section 6.9.1, a public emergency shall be a�ly
condition which, in the opinion of the ofiicials specified herein, poses an
immediate threat to life,� health or property and is caused by any natural or man-
inade disaster, including, but IlOt limited to, storms, floods, fires, accidents,
explosion, water rnain brealcs and hazardous materials spills. In the event of a
public emel•gency, the City shall have the right to take whatever action is deemed
appropriate by the City Manger, Mayor, Police Chief or Fire Cluef, or their
authorized representatives, including, but not limited to, action that inay result in
damage to the Pipeline, and Company hereby (i) releases the City, its officei•s,
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 wark with the City with respect to such action.
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6.9.2. Work by or on Behalf of Company.
In the event of an emergency directly that involves that portion of the
Pipeline located in the Public Rights-of-Way and necessitates imme�liate
emergency response work on or repairs, Company may initiate the emergency
response work or repairs or take �any action required tznder the circumstances
provided that Company notifies the Ciry as promptly as possible. After the
emergency has passed, Company shall apply for and obtain a construction permit
fi-om the director of the City's Department of TransportationlPublic Works and
otherwise fully cocnply with the requirements of this Agreement.
6.10. Removal of PipelIlne.
Upon the revocation, tern�ination or expiration without extension .or renewal of
this Agreement, Company's right to use the Public Rights-of-Way under this Agreeinent
shall cease and Company shall immediately discontinue the transportation of Gas in or
through the City. Within six (6) months followin� sucll revocation, terminatio�l 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 (or cap the Pipeline, if consented to
by the City), in accordance with applicable laws and regulations. If Company has not
removed all of the Pipeline fi•om the Public Rights-of-Way (or capped the Pipeline, if
consented to by the City) within six (6) months following revocation, termination oi•
expiration of this Agreement, the City may deem any portion of the Pipeline remainin� in
the Public Rights-of-Way abandoned and, at the City's sole option, (i) take possession of
and title to such property or (ii) take any and all legal action necessary to compel
Company to remove such property; provided, however, that Company may not abandon
its facilities or discontinue its services within the City without the approval of the
Commission or successor agency or any other regulatory authority with such jurisdiction.
Within six (6) months following revocation, termination or expiration of this
Agreement and in accordance with Section 6.7 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, �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
perfoimed any necessary restoi•ation work, in which case Company shall immediately
reimburse the City for any and all costs incurred in perfoiming or having performed such
restoration work.
7. LIABILITY AND INDEMN�FICATION.
7.1. Liability of Companv.
Company shall be liable and responsible for any and all damages, losses,
liabilities (joint or several;), payments, obligations, penalties, claiins, litigation, dema�lds,
defenses, judgments, lawsuits, proceedings, costs, disbursements or expenses (includinb,
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without limitation, fees, disbursements and reasonable expenses of attorneys, accountants
and other professional advisors and of expert witnesses and costs of investigation and
preparation) of any kind or nature whatsoever (collectively "Damages"), which may
arise out of or be in any way connected with (i) the construction, installation, operation,
maintenance or condition of the Pipeline or any related facilities or appurtenances; (ii) the
transportation of Gas througli the Pipeline; (iii) any claim or lien arising out of work,
labor, materials or sup��lies provided or supplied to Company, its contractors or
subcontractors; or (iv) Company's failure to comply with any federal, state or local law,
ardinance, 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.
7.2. Indemnification.
COMPANY, AT COMPANY'S SOLE COST AND EXPF,NSE, SHALL
INDEA7NIFY AND HOLD HARMLESS THE CITY, ITS OFFICERS, BOARDS,
COMRIISSIONS, AGENTS, EMPLOYEES AND i�OLUNTEERS
(`7NDEMNITEES'), FIdOM AND AGAINST ANY AND ALL DAI�IAGES WHIC'H
1�IAY ARISE OUT OF OR I3E IN ANY WAY CONNECTED WITH (I) THE
CONSTRUCTION, INSTALLATION, OPERATION, MAINTENANCE OR
CONDITION OF TH� PIPELINE OR ANY RELATED FACILITIES OR
APPURTENANCES; (I�) THE TRANSPORT�ITION OF GAS THROUGH THE
PIPELINE; (III) ANY CLAIM OR LIEN ARISING DUT OF jVORK, LABOR,
MATERIALS OR SUPI'LIES PROVIDED .OR SUPPLIED TO COMPANY, I7S
CONTRACTORS OR Sl7BCONTRACTORS; OR (Ii� COMPANI"S FAILURE TO
COMPLY WITH ANY F'EDERAL, STATE OR LOCAL LAW, ORDINAIYCE, RULE
OR REGULA TION, EX CEPT TO THE EXTENT DIRECTL Y CA USED I� Y THE
NEGLIGENT OR GROSSLY NEGLICENT ACT(S) OR ORIIS.SION(S) OR
INTENTIONAL MISCO�'VDUCT OF TFIE CITY.
7.3. Ass�imption of Risk.
Company hereby undertakes and assumes, for and on behalf of Company, its
officers, agents, contractors, subconh�actors, agents and employees, all risk of dange►-ous
conditions, if any, on or about any City-owned or City-controlled property, including, Uut
not limited to, the Public Rights-of-Way.
7.4. Defense of Indemnitees.
In the event any action, lawsuit or othei• 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 claiin or
comtnencement of any such action, lawsuit or other proceeding, and Company, at
Company's sole cost and expense, shall resist and defend the same with 1•easonable
participation by tlie City and with legal counsel selected by Company and specifically
approved by the City. In such an event, Company shall not admit liability in any mattei-
on behalf of any Indemnitee without the advance written consent of the City.
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8. INSURA.NCE.
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 tlie Pipeline, including the transportation of Gas ttv-ough the Pipeline. �
8.1. Primarv Liability Insurance Covera�e.
• Commercial C.eneral Liability:
$1,000,000 per occurrence, including coverage for the following where exposure
exists and as directed by the City's Risk Manager: (i) Premises Liability, (ii)
independent contractors; (iii) products/completed operations; (iv) personal
injury; (v) contractual liability; (vi) explosion, collapse and underground
property damage.
• Property Dama�e Liability:
$10,000,000 per occurrence
• Automobile Liabili :
$1,000,000 per accident,
including, but not limited to, all owned, leased, hired or nou-owned motor
vehicles used in conjunction with the rights granted under this Agreement
e Worker's Compensation:
As required by law; and, Employer's Liability as follows:
$1,000,000 per accident.
8.2. Revisions to Required Covera�e.
At the reasonable recommendation of the City's Rislc Manager, the City may at any
time revise insurance coverage requii•ements and limits required by this Agreement.
Company agrees that within thirty (30) days of receipt of written notice from the City,
Company will implement all such revisions requested by the City. The policy or policies of
insurance shall be endorsed to provide that no material changes in coverage, including, but
not limited to, cancellation, ternlination, non-renewal or amendment, shall be made without
thirty (30) days' prior written notice to the City.
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8.3. Underwriters and Certificates.
Company shall procure and maintain its insurance with underwriters authorized to
do business in the State of Texas and who are acceptable to the City in 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 si�ied 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 maintaiiied such coverage in full force and effect.
8.4. Deductibles.
Deductible or self insured retention limits on any line of coverage required herein
shall not exceed $25,000 in the annual aggregate unless the liinit per occut7•ence, or per line
of coverage, or aggregate is otherwise approved by the City.
8.5. No Limitation of Liabili .
The insurance requirements set forth in this Secrion � 8 and any �recovery by the City
of any stim 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.
9. DEFAULTS.
The occun-ence at any time during the term of this Agreement of one or more of t11e
following events shall constitute an "Event of Default" under this A�neement:
9.1. �ailure 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, rE;presentations or warranties set forth in this A�•eement or fails
to perform any obligation required by this Agreement.
9.3. Bankruptcy, InsoXvency or Receivership,
An Event of Def�nilt 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, coinposition,
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readjustment, liquidation, dissolution or similar relief for itself under any laws relating to
bankruptcy, insolvency or other relief far 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 lLaw.
An Event of Default shall occur if Company violates any existin� or future fedei•al,
state or local laws or any existing or future ordinances, rules and regulations of the City.
10. UNCURCD l)EFAULTS AND REMEDI�S.
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 Uncu1•ed
Default and the City shal� have the right to tern�inate 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 Cornpany the opportunity to cure such Event of Default. For an
Event of Default which can be cured by the immediate payment of money to the City,
Company shall have thirty (30) days from the date it receives written notice from the City
to cure the Event of Default. Far any other Event of Default, Company shall have sixty
(60) days from the date it receives written notice from the City to cure the Event of
Default. If any Event of Default is not cured within the time period specified herein, such
Event of Default shall, without further notice from the City, become an "Uncured
Default" and the City iminediately may exercise the remedies provided i�l Section 10.2.
10.2. Remedies for Unr.ured Defaults.
Upon the occurrence of an Uncured Default, the City shall be entitled to exercise,
at the same tiine or at diffei•ent 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 tetminate this
Agreement. Upon such termination, Company shall forfeit all rights granted to it
under this Agreernent, and, except as to Company's unperfoi•med obligations and
existing liabilitie�; as of t}le date of tern�ination, 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 r•etain the right to
receive License Fees and any other payments due up to the date of termination.
Barnett Gathering, LP Right-of-Way Use A��eement
Page 12 of 17
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 shall does not and shall not be constnied 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 regulato�y authority with jurisdiction, if
such action without such approval is prohibited at the time by applicable federal
or state law or regl�lation.
10.2.2 Le�al Action A�ainst 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 speciiic performance of any of the provisioils of this
Agreement which, as a matter of equity, are specifically enforceable.
11. PROVISION OF INFOI�IVIATION.
11.1. Filin�s with the C'ommission.
Company shall provide copies to the City of all documents which Company files
with ar sends to the Commission concerning or related to its transportation of Gas
through or other operatioris in the City, including, btit 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 supparting pre-filed testi�nony and
exhibits filed by Company or third parties on behalf of Company, on the same date as
such filings are inade witri the Coininission. 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 gi•anting of this Agreement and/or t}Ie
transportation of Gas through fhe 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 �s 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 transpoi-tation of Gas in
Barnett Gathering, LP Right-of-Way Use A�-eement
Page 13 of 17
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 respon�leat superior shall not apply as between the
City and Company, its officers, agents, employees, contractors and subcontractors. Company
fiirther agrees that nothing herein shall be constnied as the creation of a partnership or joint
ente�prise between the City and Ccnnpany.
13. AS�IGNMENT PROHIBITED.
CoYnpany may not assign or otherwise transfer any of its rights or obligations under this
A��eement unless specifically authorized in writing by the City, which authorization shall not be
unreasonably withheld.
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, post�ge
prepaid, return receipt requested, addt•essed as follows:
To THE CITY:
City of Fort War-th
Attn: Public Utilities Supervisor
1000 Throckmorton
Fort Worth, TX 76102
with a copy to:
City of Foi•t Worth
Departinent of Law
Attn: Attoniey for Utilities
1000 Throckmoi-ton
Fort Worth, TX 76102
To COMPANY:
Barnett �athering; LP
Attn: Edwin S. Ryan Jr.
810 Houston Street
Fort Worth, Texas 76102
15. NON-DISCRIMINATION COVENANT.
Company shall not discriminate against any person on the basis of race, color, national
origin, religion, handicap, sex, sehual orientation or familial status in the receipt of benefits from
Company's business operations, in any oppoi-tuluties for employment with Company or in the
coilstruction or installation of the Pipeline.
Barnett Gathering, LP Right-of-Way Use A��eement
Page ] 4 of 17
16. 1�10 WAIVER.
The failure of the City to insist upon the performance of any term ar provision of this
Agreement or to exercise any rights that the City may have, either under this A�•eement or the law,
shall not constitute a waiver of the City's right to insist upon appropriate performance or to assei-t
any such riglit on any firture occasion. ,
17. GOVERNING LAW AND VENUE.
This A�reement shall be construed pursuant to and in accordance with the laws of the
United States of Ainerica 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 County, Texas or tlle United States District Court for the Northern District�of Texas, Fort
Worth Division.
18. 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 ir� the City, Company's transportation of Gas or Coinpany's use of
Public Rights-of-Way.
19. SEVERABILITY.
If any provision of this A�,�•eement 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 Agreemei�t,
a cotu-t order shall be final only to the extent that all available legal rigllts and remedies pertaining to
such order, including, without limitation all available appeals, have been exhausted. In sucll an
eveiit, the City and Company agree tllat they shall amend or have amended this Agreement to
comply with such final order enter�d by a court of competent jurisdiction.
20. F0�2CE MAJEURE.
In the event Company's pet•formance of any of the ferms, conditions or obligations reguii•ed
by this Agreement is prevented by a cause oi• 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,
strilces, sabotage, riots or civil disturbances, failure or loss of utilities, explosions and nahiral
disasters.
Barnett Gathering, LP Right-of-Way Use Agreement
Page 15 of 17
21. HEADINGS NOT CONTROLLING.
Headings and titles, other than those captions in Section 1, that are used in this A�•eement
are for reference purposes only ancl shall not be deemed a part of this Agreement.
22. Ell1TIRETY OF AGREEMENT.
This Agreement, including the schedule of e�ibits 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 oi•al or written
agreement is hereby declared null and void to the extent in conflict with the terms and conditions �f
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.
�XECUTED as of the later date below:
CITY OF FORT WORTH:
BARNETT GATHERING, L.P.,
a Texas limited partnership:
By:. X'�O Resources I, GP, LLC
its General Partner:
BY� By:sf��G+��c-r, �, / ,��c�-.� ��
Karen L. Montgomery Edwin S. Ryan Jr.
Assistant City Manager/��'a Senior Vice-President-Land
Date: ���—���.�
Administration `-W� ,5,
Date: Z�g���
APYROVED AS TO FORM AP�1D LEGALI'I'Y:
By:
Peter Valcy
Assistant City Attorney
M&C: C-21 S50 November 28, 2006
Bamett Gathering, LP Right-of-Way Use Agreement
Page 16 of 17
,��,��,._;,� . :;.
Y� � .
- - �-- - - -
,',1�..li':--(. 7.1_.;"tl;�.' ..
EXHIBIT "A"
Company may only use the following portion of the Pttblic Rights-of-Way in the City:
s Approximately 70.3 linear feet across Airway Drive approximately 76 feet west of Blue
Mound Road.
o Approximately 80.74 linear feet across Eight-Twenty Boulevard approximately 65 feet
west of Blue Mound Road.
• Approximately 123.85 linear feet across Meacham Boulevard approximately 405 feet
west of Blue Mound Road.
• Approximately 119.8 linear feet across Mark IV Parkway approximately 1300 feet north
of Interstate Highway 820.
Bamett Gathering, LP Right-of-Way Use Agreement
Page 17 of ] 7
Page 1 of 2
City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 11/28/2006
DATE: Tuesday, November 28, 2006
LOG NAME: 03BG10 REFERENCE NO.: **C-21850
SUBJECT:
Authorize Execution of a Public Right-of-Way Use Agreement Granting Barnett Gathering, LP a
License to Use Certain Public Rights-of-Way for the Purpose of Constructing, Maintaining and
Operating a Natural Gas Pipeline
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to execute a Public Right-of-Way Use
Agreement with Barnett Gathering, LP (Barnett Gathering) that grants Barnett Gathering a license to use
certain public rights-of-way of the City of Fort Worth for the purpose of constructing, maintaining and
operating a natural gas pipeline.
DISCUSSION:
Barnett Gathering is constructing a pipeline to connect natural gas wells in north Fort Worth. The pipeline
will cross Meacham Boulevard, Airway Drive, Eight-twenty Boulevard, and Mark IV Parkway at the locations
shown on the attached map.
The Department of Transportation and Public Works has reviewed the proposed crossings and has no
objections.
The public right-of-way use agreement will give Barnett Gathering a license to use those specific portions of
the public right-of-way for the limited purpose of operating natural gas pipelines for a period of twenty-
five years. Barnett Gathering will pay the City a one-time license fee of $16,576.98 in return for this
privilege. Barnett Gathering will be required to provide bonds and insurance in accordance with the City's
current standard policies. Because Barnett Gathering is not a public utility, a franchise governing its
operations is not required.
These crossings are located in COUNCIL DISTRICT 2.
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that the Department of Budget and Management Services is responsible for
the collection of funds due to the City under this agreement.
TO Fund/AccountlCenters
GG01 421502 0134010 $16,576.98
Submitted for City Manager's Office b�
Originating Department Head:
FROM Fund/Account/Centers
Karen Montgomery (6222)
Bridgette Garrett (8518)
http://www.cfwnet.org/council�acket/Reports/mc�rint.asp 3/5/2007
Page 2 of 2
Additional Information Contact: Danny Reed (6145)
http://www.cfwnet.org/council�acket/Reports/mc�rint.asp 3/5/2007