Loading...
HomeMy WebLinkAboutContract 40590CITY SECRETARY CONTRACT NO. � 5G tl 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 Fernando Costa, its duly authorized Assistant City Manager, and TEXAS MIDSTREAM GAS SERVICES, L.L.C., an Oklahoma limited liability company, acting by and through Dave Johns, Manager Midstream Property Rights. The following statements are true and correct and constitute the basis upon which the City of Fort Worth has executed Agreement. A. TEXAS MIDSTREAM GAS SERVICES, L.L.C., an Oklahoma limited liability company, ("Company") wishes to construct a pipeline for the transportation of natural gas 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 a franchise from 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 natural gas and solely in accordance with the terms and conditions of this Agreement. 1. DEFII�TITIONS. 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 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. Texas Midstream Gas Services, L.L.C. Right -of --Way Use Agreement Page 1 of 17 0 7 -21-1 O P 0 26 4PAFFICIAL REGARD Tx-TARR-cARD-� o� S E C R E TA RY FT WORTH, TX Company shall mean Texas Midstream Gas Services, L.L.C., an Oklahoma limited liability company, 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. 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 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 Gas. 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 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 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. Texas Midstream Gas Services, L.L.C. Right -of --Way Use Agreement Page 2 of 18 TX-TARR-CARD-001.O1RD 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. 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 Gas through such Pipeline. 2.4. Sonds. 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 (1) 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 Texas Midstream Gas Services, L.L.C. Right -of --Way Use Agreement Page 3 of 18 TX-TARR-CARD-OO1.OIRD 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 July 31, 2035 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 One Thousand Five Hundred Sixty -Four Dollars ($1,564.00) ("License Fee"). Company hereby acknowledges and agrees that the amount 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 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. Texas Midstream Gas Services, L.L.C. Right -of --Way Use Agreement Page 4 of 18 TX-TARR-CARD-001.O1RD 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, 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. Texas Midstream Gas Services, L.L.C. Right -of --Way Use Agreement Page 5 of 18 TX-TARR-CARD-OO1.OIRD 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 as requested in writing by 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. 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 portion thereof, the sum of (a) $1,500 for any cut, excavation or breach occurring between July 13, 2010 and July 31, 2015; (b) $1,800 for any cut, excavation or breach occurring between August 1, 2015 and July 31, 2020; (c) $2,150 for any cut, excavation or breach occurring between August 1, 2020 and July 31, 2025; and (d) $2,600 for any cut, excavation or breach occurring between August 1, 2030 and July 31, 2035. 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 (n) 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, at 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 damage or, if the Pipeline is being removed, within thirty (30) calendar days following such removal. Texas Midstream Gas Services, L.L.C. Right -of --Way Use Agreement Page 6 of 18 TX-TARR-CARD-0O1.OIRD a 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 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 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. Texas Midstream Gas Services, L.L.C. Right -of --Way Use Agreement Page 7 of 18 TX-TARR-CARD-OO1.OIRD 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 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 Gas 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 (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 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 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 performed any necessary restoration work, in which case Company shall immediately reimburse the City for any and all costs incurred in performing or having performed such restoration work. Texas Midstream Gas Services, L.L.C. Right -of --Way Use Agreement Page 8 of 18 TX-TARR-CARD-001.O1RD 7. LIADILITY AND INDEMNIFICATION. 7.I. 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; (11) 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 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 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 PROPERTY DAMAGEAND PERSONAL INJURY, INCL UDING DEATH) WHICH MAYAR/SE OUT OF OR BE W 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 (IP) COMPANY'S FAILURE TO COMPLY WITH ANY 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. 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 limited to, the Public Rights -of -Way, Texas Midstream Gas Services, L.L.C. Right -of --Way Use Agreement Page 9 of 18 TX-TARR-CARD-001.O1RD 7As 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. 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 Gas 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; (in) products/completed operations; (iv) personal injury; (v) contractual liability; (vi) explosion, collapse and underground property damage. • Property Damage Liability: $10,000,000 per occurrence • 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. Texas Midstream Gas Services, L.L.C. Right -of --Way Use Agreement Page 10 of 18 TX-TARR-CARD-001.O1RD 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 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, termination, non -renewal or amendment, shall be made without thirty (30) days' prior written 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. Deductible or self -insured retention limits on any line of coverage required herein 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. 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. 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. Texas Midstream Gas Services, L.L.C. Right -of --Way Use Agreement Page 11 of 18 TX-TARR-CARD-001.O1RD 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 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. 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 7.1, 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, 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. 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. Texas Midstream Gas Services, L.L.C. Right -of --Way Use Agreement Page 12 of 18 TX-TARR-CARD-001.O1RD 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 shall 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 Com mission 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. 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 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 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. Texas Midstream Gas Services, L.L.C. Right -of --Way Use Agreement Page 13 of 18 TX-TARR-CARD-001.01 RD I.L. 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 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 Gas 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 PROIIIBITED. 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. 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 Public Utilities Administrator 1000 Throckmorton Fort Worth, TX 76102 To COMPANY: Chesapeake Midstream Partners L.P. Coleen Magness, Director of Right of Way Coordination 6100 N. Western Avenue Oklahoma City, OK 73118 Texas Midstream Gas Services, L.L.C. Right -of --Way Use Agreement Page 14 of 18 TX-TARR-CARD-001.01 RD with a copy to: City of Fort Worth Department of Law Attn: Attorney for Utilities 1000 Throckmorton Fort Worth, TX 76102 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. 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. 17. 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 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 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 in the City, Company's transportation of Gas or Company's use of Public Rights -of --Way. Texas Midstream Gas Services, L.L.C. Right -of --Way Use Agreement Page 15 of 18 TX-TARR-CARD-001.O1RD 3 19. SEVERABILITY. If any provision of this Agreement is held to be invalid, illegal or unenforceable by a fmal 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. 20. 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. 21. 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. Texas Midstream Gas Services, L.L.C. Right -of --Way Use Agreement Page 16 of 18 TX-TARR-CARD-OO1.OIRD 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 Agreement. This Agreement shall not be amended unless agreed to in writing by both parties and approved by the City Council of the City. EXECUTED as of the later date below: CITY OF FORT WORTH: By: • 4: Fernando Costa Assistant City Manager Date: f W TEXAS MIDSTREAM GAS SERVICES, L.L.C. APPROVED AS TO FORM AND LEGALITY: By: Peter Vaky Assistant City Attorney M&C: C-24323 Ju1�13, 2010 Marty �ndrix, Secretary Properly Rights OFFICIAL RECORD CITY SECRETARY IF`t• WORTH, TX ; Texas Midstream Gas Services, L.L.C. Right -of --Way Use Agreement Page 17 of 18 TX-TARR-CARD-001.O1RD EXIIIBIT "A" Company may only use the following portions of the Public Rights-kj Way in the City: • Approximately 34 feet across Haltom Road located approximately 3188 feet north of East 1st Street. Texas Midstream Gas Services, L.L.C. Right -of --Way Use Agreement Page 18 of 18 TX-TARR-CARD-001.01 RD City of Fort Worth, Texas mar • • • 11111 g 0= Tl COUNCIL ACTION: Approved on 7/13/2010 unication DATE: Tuesday, July 13, 2010 REFERENCE NO.: C-24323 LOG NAME: 06HALTOM ROAD SUB.IECT: Authorize the Execution of a Public Right —of --Way Use Agreement Granting Texas Midstream Gas Services, LLC, a License to Construct and Operate a Natural Gas Gathering Pipeline Across Haltom Road, North of East First Street, for a One —Time License Fee of $1,564.00 (COUNCIL DISTRICT 4) RECOMMENDATION: It is recommended that the City Council authorize the City Manager to execute a Public Right —of —Way Use Agreement with Texas Midstream Gas Services, LLC, granting a license to construct and operate a natural gas gathering pipeline across Haltom Road, North of East First Street, for a one—time license fee of $1,564.00. DISCUSSION: Texas Midstream Gas Services, LLC, is constructing an eight —inch pipeline to connect natural gas wells in Fort Worth. With the exception of the crossing at Haltom Road, the pipeline will be located in private easements. The approximate location of the crossing is shown on the attached map. The Transportation and Public Works Department has reviewed the proposed crossing and has no objections. There are no residentially zoned and used properties adjacent to the crossing. The Public Right —of —Way Use Agreement will give Texas Midstream Gas Services, LLC, a license to use 34 feet of that specific public right—of—way for limited purpose of operating a natural gas pipeline fora period of 25 years. Texas Midstream Gas Services, LLC, will pay the city a one—time license fee of $1,564.00 in return for this privilege. The company will be required to provide bonds and insurance in accordance with the City's current standard policies. Because Texas Midstream Gas Services, LLC, 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. This crossing is located in COUNCIL DISTRICT 4. FISCAL INFORMATION: The Financial Management Services Director certifies that the Planning and Development Department is responsible for the collection and deposit of funds due to the City. FUND CENTERS: TO Fund/Account/Centers FROM Fund/Account/Centers GG01 421502 0062040 1 4.00 CERTIFICATIONS: Submitted for City Manager's Office by: Fernando Costa (6122) Originating Department Head: Additional Information Contact: ATTACHMENTS 1. accountverification.doc 2. Exhibit Ling Susan Alanis (8180) Rick Trice (7959)