HomeMy WebLinkAboutContract 35797CITY SECRETRRY��rI��
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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 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 Karen L.
Montgomery, its duly authorized Assistant City Manager, and BARNETT GATHERING, L.P.,
a Texas limited partnership acting by and through Edwin S. Ryan Jr. Senior Vice-President -
Land Administration of XTO Resources 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") wishes to
construct a pipeline for the transportation of natural gas under a Public Right-of-Way. Because
Company 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 franchise fiom 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 certaui 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 natural gas and solely in
accordance with the terms and conditions of this Agreement.
Agreement
1. DEFINITIONS.
Capitalized terms used in this Agreement and not otherwise defined within this
Agreement shall have the following meanings:
Affiliate shall mean any individual, partnership, association, joint stock coinpany, liinited
liability company, trust, corporation, or other person or entity who owns or
controls, or is owned or controlled by, or is under common ownership or control
with, the entity in question.
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Agreement shall mean the authorization issued to Company hereunder to use the Public
Rights-of-Way for (i) the construction, installation, maintenance and repair of
Company's Pipeline; (ii) the use of such Pipeline for the transportation of Gas;
and (iii) any other directly related uses of the Public Rights-of-Way, pursuant to
and in accordance with this Agreement.
Company shall inean Barnett Gathering, L.P., a Texas limited partnership, 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 Coirunission.
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.
Gas shall mean gaseous fuels such as natural gas, artificial gas, synthetic gas, liquefied
natural gas, manufactured gas, or any mixture thereof.
Person shall mean, without limitation, an individual, a corporation, a limited liability
company, a general or limited partnership, a sole proprietorship, a join venture, a
business trust or any other form or business entity or association.
Pipeline shall mean the pipeline and other facilities approved by the Director that are
installed by Company in the Public Rights-of-Way in accordance with this
Agreement.
Public Rights-of-Way shall inean 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 Ri�hts-of-Wav for Provision of Gas.
Subject to the tei-ms 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 Custoiner.
2.2. Nonexclusive.
This Agreement and all rights granted to Coinpany 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 pei-�nit
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.
2.3. Other Permits.
This Agreement does not relieve Company of any obligation to obtain permits,
licenses and other approvals from fhe City or other regulatory agency necessary for the
construction, installation, maintenance or repair of Company's Pipeline or the
transportation of Gas through such Pipeline.
2.4. Bonds.
Prior to the commenceinent 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 Coinpany 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, Coinpany 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 construction project that will be performed by the contractor in
the Public Rights-of-Way. Tlie 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 become effective on the date as of which Uoth parties have
executed it ("Effective Date") and shall expire at 11:59 P.M, CST on December 31, 2032 unless
terminated earlier as pt�ovided herein.
4. FEES AND PAYMENTS TO CITY.
4.1. Ri�ht-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 Terin of this Agreement the sum of One
Thousand Seven Hundred Fifty Dollars ($1,750.00) ("License I'ee"). 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 inay 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 iinpose on all other similarly situated entities within
the City. Company shall reimburse the City for publication of this Agreement as reqtiired
by the City's Charter.
4.3. Interest.
All sums not paid when due shall beat• interest at the rate often percent (10%) per
annum or the maximum amount allowed by law, whichever is less, coinputed monthly. If
such outstanding sums are paid with interest within thirty (30) days following their
respective due dates, Company's failure to pay such suins 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 hereunder shall be subject to such r•egulation 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 ainended fi•om time to time.
6. USE OF PUBLIC RIGHTS-OF-WAY.
6.1. Compliance with La�vs, Ordinances, Rules and Re�ulations.
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
perinits, construction bonds, perinissible hours of construction, operations during peak
traffic hours, barricading requirements and any other construction rules or regulations
that may be promulgated fro�n time to time.
6.2. No Undue Burden.
The Pipeline shall not be erected, installed, constructed, repaired, replaced or
rnaintained 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 deterinines 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 tiine period
specified by the City, shall modify the P'ipeline or talce other actions detetmined by the
City to be in the public interest to remove or alleviate the burden.
6.3. MinimalInterference.
Prior to the undertaking of any kind of construction, installation, maintenance,
repairs or other work that requu•es 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 Coinpany 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.
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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 extraten•itorial
jurisdiction and maps showing such Pipeline within ninety (90) calendar days following
the completion of such Pipeline. Company shall supply the textual documentation of
such as-built plans and maps in computer format as requested in writing Uy the City and
shall otherwise fully cooperate with the City in ensuring that the Pipeline is accurately
reflected in the City's mapping system.
6.5. Markin� of Pipeline.
The Pipeline shall be marked, in a manner that is acceptable to the Dll-ector, to
show conspicuously Company's name and a toll-free telephone nuinber of Coinpany 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 repau•. 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
portion thereof, the sum of (a) $1,500 for any cut, excavation or breach occurring
between the Effective Date and November 30, 2011; (b) $1,800 for any cut, excavation or
breach occurring between December 1, 2011 and November 30, 2016; (c) $2,150 for any
cut, excavation or breach occurring between December 1, 2016 and Noveinber 30, 2021;
and (c� $2,600 for any cut, excavation or breach occurring between December 1, 2021
and December 31, 2032. 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 Ri�hts-of-Way and Property.
Coinpany, 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, at
Coinpany'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 awai•e of
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the disturbance or damage or, if the Pipeline is being removed, within thii�ty (30) calendar
days following such removal.
6.8. Relocation of Pipeline.
Within forty-five (45) calendar days following a written request by the City,
Co�npany, 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
Coinpany to negotiate a workable time frame.
69. Emer�encies.
6.9.L Work by the City.
For purposes of this Section 69.1, a public einergency 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, stonns, floods, fires, accidents,
explosion, water main breaks and hazardous materials spills. In the event of a
public emergency, the City shall have the right to take whatever action is deemed
appropriate by the City Manger, Mayor, Police Chief or Fire Chief, or theu•
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 repau•,
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.
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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 immediate
emergency response work on or repaus, Company may initiate the emergency
response work or repairs or take any action required under the circumstances
provided that Coinpany 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 Depart�nent of Transportation/Public Works and
otherwise fully comply with the requirements of this Agreement.
6.10. Removal of Pipeline.
Upon the revocation, termination or expu•ation 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 iminediately discontinue the transportation of Gas in or
through the City. Within six (6) months following such revocation, tennination or
expiration and if the City requests, Company, at Company's sole cost and expense, shall
reinove 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 from the Public Rights-of-Way (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 deein any portion of the Pipeline reinaining 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 Coinpany may not abandon
its facilities or discontinue its services within the City without the approval of the
Coinmission or successor agency or any other regulatory authority with such jurisdiction.
Within six (6) months following revocation, termination or expu•ation 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, inay perforn� or have
performed any necessary restoration work, in which case Company shall immediately
reimburse the City for any and all costs incun�ed ul performing or having performed such
restoration work.
7. LIABILITY AND INDEMNIFICATION.
7.1. Liability of Company.
Coinpany shall be liable and responsible for any and all daTnages, losses,
liabilities (joint or several), payments, obligations, penalties, claims, litigation, demands,
defenses, judgments, lawsuits, proceedings, costs, disbursements or expenses (including,
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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 through the Pipeline; (iii) any claim or lien arising out of work,
labor, materials or supplies provided or supplied to Company, its contractors or
subcontractors; or (iv) Company's failure to comply with any federal, state or local law,
ordinance, rule or regulation, except to the extent d'u�ectly 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 EXPLNSE, SHALL
INDEMNIFY AND HOLD HARMLESS THE CITY, ITS OFFICERS, BDAIZDS,
COMMISSIDNS, AGENTS, EMPLOYEES AND VOLUNTEERS
("INDEMNITEES"), FROM AND AGAINST ANY AND ALL DAMAGES WHICH
MAY ARISE OUT OF OR BE IN ANY WAY CONNECTED WITH (I) THE
CONSTRUCTION, INSTALLATION, OPERATION, MAINTENANCE OR
CONDITION OF THE PIPELINE OR ANY RELATED FACILITIES OR
APPURTENANCES; (II) THE TRANSPORTATION OF GAS THROUGH THE
PIPELINE; (III) ANY CLAIM OR LIEN ARISING OUT OF WORK, LABOR,
MATERIALS OR SUPPLIES PROVIDED OR SUPPLIED TO COMPANY, ITS
CONTRACTORS OR SUBCONTRACTORS; OR (Ii� COMPANY'S FAIL URE TO
COMPL Y WITH ANY FEDERAL, STATE OR LOCAL LA W, ORDINANCE, R ULE
OR REG ULA TION, EXCEPT TO THE EXTENT DIRECTL Y CA USED B Y THE
NEGLIGENT OR GROSSLY NEGLIGENT ACT(S) OR OMISSION(S) OR
INTENTIONAL MISCOND UCT OF THE CIT I:
7.3. Assumption of Risk.
Company hereby undertakes and assumes, for and on behalf of Company, its
officers, agents, contractors, subcontractors, agents and employees, all risk of dangerous
conditions, if any, on or about any City-owned or City-controlled property, including, but
not liinited 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 claiin or
commencement of any such action, lawsuit or other proceeding, and Colnpany, at
Company's sole cost and expense, shall resist and defend the satne with reasonable
participation by the 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 matter
on behalf of any Indemnitee without the advance written consent of the City.
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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, inaintenance or condition
of the Pipeline, including the transportation of Gas through the Pipeline.
8.1. Primary Liability Insurance Covera�e.
• Commercial General 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 undergrolmd
property damage.
• Proqerty Dama�e Liability:
$10,000,000 per occurrence
• Automobile Liability:
$1,000,000 per accident,
including, but not limited to, all owned, leased, hireci 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 within thirty (30) days of receipt of written notice fi-om the City,
Company will impleinent all such revisions requested by the City. The policy or policies of
insurance shall be endarsed to provide that no material changes in coverage, including, but
not limited to, cancellation, terinination, 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 fmancial 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, Coinpany shall, on deinand, provide the City with
evidence that it has maintained such coverage in full force and effect.
8.4. Deductibles.
Deductible or self-insured retention limits on any line of coverage requued llerein
shall not exceed $25,000 in the annual aggregate unless the limit per occurrence, or per line
of coverage, or aggregate is otherwise approved by the City.
8.5. No Limitation of Liability.
The insurance requirements set forth in tlus 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 ar 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 occurrence at any time during the term of this Agreement of one or inore of the
following events shall constitute an"Event of Default" under this Agreeinent:
9.1. Failure to Pav 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 Agreeinent or fails
to perform any obligation requu•ed 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,
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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 reveriues, 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 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 te�ininate 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 irnmediate payment of inoney to the City,
Company shall have thirty (30) days from the date it receives written riotice from the City
to cure the Event of Default. For any other Event of Default, Company shall have sixty
(60) days from the date it receives written notice from the City to cure the Event of
Default. If any Event of Default is not cured within the time period specified herein, such
Event of Default shall, without further _notice from the City, become an "Uncured
Default" and the City immediately may exercise the remedies provided in Section 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 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 Agreeinent, and, �except as to Company's unperfonned obligations and
existing liabilities as of the date of termination, this Agreeinent shall
automatically be deeined 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 nf te_rmin� ion. z
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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 construed to constitute
any kind of limitation on the City's right to tenninate 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
Coininission 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 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 dainages 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.
11. PROVISION OF INFORMATION.
11.1. Filin�s with the Commission.
Company shall provide copies to the City of all documents which Company files
with or sends to the Commission concerning or related to its transportation of Gas
through or other operations in the City, including, but not limited to, filings related to (i)
tariffs; (ii) rules, regulations and policies requested, under consideration or approved by
the Commission; and (iii) applications and any supporting pre-filed testiinony and
exhibits filed by Company or third parties on behalf of Company, on the saine 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 Cormnission 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 Gas 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 .uldependent
contractor as to all rights and privileges granted by this Agreement, and not as an agent,
representative or employee of the City. Company shall have the exclusive right to control the
details of its business and other operations necessary or appurtenant to the transportation of Gas in
Barnett Gathering, LP Right-of=Way Use Agreement
Page 13 of 17
accordance with the terms and conditions of this Agreement, and shall be solely responsible for the
acts and oinissions of its officers, agents, servants, employees, contractors and subcontractors.
Company acknowledges that the doctt•ine of respondeat superior shall not apply as between the
City and Company, its officers, agents, employees, contractors and subcontractars. Company
further agrees that nothing herein shall be construed as the creation of a partnership or joint
enteiprise between the City and Company.
13. ASSIGNMENT PROHIBITED.
Coinpany 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.
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, addressed as follows:
To THE CITY:
City of Fort Worth
Attn: Public Utilities Supervisor
1000 Throckmorton
Fort Worth, TX 76102
with a copy to:
City of Fort Worth
Department of Law
Attn: Attorney for Utilities
1000 Throckmorton
Fort Worth, TX 76102
To COMPANY:
Barnett Gathering, LP
Attn: Edwin S. Ryan Jr.
810 Houston Street
Fort Worth, Texas 76102
15. NON-DISCRIMINATION COVENANT.
Coinpany 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.
Barnett Gathering, LP Right-of-Way Use Agreement
Page 14 of 17
16. 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 perfonnance or to assert
any such right on any future occasion.
17. GOVERNING LAW AND VENUE.
This Agreernent shall be constiued 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 teims 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 the United States District Court for the Northein District of Texas, rot•t
Worth Division.
18. CONFERENCES.
At the request of either the City or Company, the City and Company shall ineet at
reasonable times and upon reasonable notice to discuss any aspect of this Agreemenf, Company's
Pipeline, Company's operations in the City, Company's transportation of Gas or Company's use of
Public Rights-of-Way.
19. SEVERABILITY.
If any provision of this Agreement is held to be invalid, illegal or unenforceable by a final
order enterecl 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 e�austed. In such an
event, the City and Company agree that they shall amend or have amended this Agi•eement to
coinply with such final order entered by a court of coinpetent jurisdiction.
20. FORC� 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,
strilces, sabotage, riots or civil disturbances, failure or loss of utilities, explosions and natural
disasters.
Barnett Gathering, LP Right-of-Way Use Ag•eement
Page 15 of 17
21. HEADINGS NOT CONTROLLING.
Headings and titles, other than those captions in Section 1, that are used in tlus Agreement
are for reference purposes only and shall not be deemed a part of this Agreement.
22. 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 Agreeinent. This Agreement shall not be amended unless agreed to in writing by Uoth parties
and approved by the City Council of the City.
EXECUTED as of the later date below:
CITY OF FORT WORTH:
� , /
By: �✓,L�-�� ;�1�� z�-��
Karen L. Montgomery � � 1
Assistant City Manager/CFO ✓
Date: �,� % ( � �
BARNETT GATHERING, L.P.,
a Texas liinited partnership:
By:. XTO Resources I, GP, LLC
its General Partner:
B y: �G�:�c.�c-+— /� �, �
Edwin S. Ryan Jr.
Sr. Vice-President — Land Administration „�,,,i 5_
Date: � �Z'� �� %
APPROVED AS TO FORM AND LEGALITY:
�
gy: ���(Xi ��CL.% �- _ _..��r. _ . . � ��
Peter Vaky � �' �
Assistant City Attorney �� r/�, ��
,..�.,�� , .����_ r
M&C: C-22308 Au�ust 14, 2007 '' ',' '"'�-` �:''`"
Barnett Gathering, LP Right-of-Way Use Agreement
Page 16 of 17
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EXHIBIT "A"
Company may only use the following portion ofthe Public Rights-of-Way in the City:
• Approximately 40 linear feet across Chapin Road approximately 1,200 feet southwest of
Alemeda Road.
Barnett Gathering, LP Right-of-Way Use Agreement
Page 17 of 17
Page 1
City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 8/14/2007
DATE: Tuesday, August 14, 2007
LOG NAME: 03BG16
REFERENCE NO.: **C-22308
SUBJECT:
Authorize Execution of a Public Right-of-Way Use Agreement Granting Barnett Gathering, LP, a
License to Use a Certain Public Right-of-Way for the Purpose of Constructing, Maintaining and
Operating a Natural Gas Pipeline across Chapin Road.
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 a
certain public right-of-way of the City of Fort Worth for the purpose of constructing, maintaining and
operating a natural gas pipeline across Chapin Road.
DISCUSSION:
Barnett Gathering is constructing a pipeline to connect natural gas wells in west Fort Worth. The pipeline
will cross Chapin Road at the location shown on the attached map.
The Department of Transportation and Public Works has reviewed the proposed crossing and has no
objections.
The Public Right-of-Way Use Agreement will give Barnett Gathering a license to use
right-of-way for the limited purpose of operating a natural gas pipeline for a period of
Gathering will pay the City a one-time license fee of $1,750.00 in return for this privilege.
will be required to provide bonds and insurance in accordance with the City's
policies. Because Barnett Gathering is not a public utility, a franchise governing its
required.
This crossing is located in COUNCIL DISTRICT 3.
FISCAL INFORMATION/CERTIFICATION:
that specific public
25 years. Barnett
Barnett Gathering
current standard
operations is not
The Finance Director certifies that the Department of Budget and Management Services is responsible for
the collection and deposit of funds due to the City under this agreement.
TO Fund/Account/Centers FROM Fund/Account/Centers
GG01 421502 0134010 1 750.00
Submitted for City Manager's Office b�
Originating Department Head:
Additional Information Contact:
Karen Montgomery (6222)
Bridgette Garrett (8518)
Danny Reed (6145)
http://www.cfwnet.org/council packet/Reports/mc print.asp 9/18/2007