HomeMy WebLinkAboutContract 41280CYWTY SECRETARY
COS; ACT
PUBLIC RIGHT-OF-WAY USE AGREEMENT
AND CONSENT TO PARTIAL ASSIGNMENT OF
CITY SECRETARY CONTRACT NO. 35519
This PUBLIC RIGHT-OF-WAY USE AGREEMENT AND CONSENT TO
PARTIAL ASSIGNMENT OF CITY SECRETARY CONTRACT NO. 35519
("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 (the
"City"); DFW MIDSTREAM SERVICES LLC, a Delaware limited liability company
("Company"); and TEXAS MIDSTREAM GAS SERVICES, L.L.C., an Oklahoma limited
liability company ("Texas Midstream").
The following statements are true and correct and constitute the basis upon which the
City of Fort Worth has executed Agreement.
A. The City and Texas Midstream previously entered into that certain Public Right -
of -Way Use Agreement on file in the City Secretary's Office as City Secretary Contract No.
35519, which grants Texas Midstream the right to own and operate two (2) natural gas pipelines
that cross various public rights -of -way in the City (the "Texas Midstream Agreement"). The
Texas Midstream Agreement is hereby incorporated by reference as part of this Agreement for
all purposes.
B. In accordance with the Agreement, Texas Midstream has requested that the City
consent to an assignment to Company of the Texas Midstream Agreement to the extent that it
covers one (1) of the pipelines that Texas Midstream is permitted to operate within the public
rights -of -way. The City is willing to consent to such assignment provided that, in order to
preserve clarity, (i) the Texas Midstream Agreement is amended to delete from the scope of the
Texas Midstream Agreement the public right-of-way crossings by the pipeline that Texas
Midstream wishes to assign to Company and (ii) Company and Texas Midstream execute this
Agreement governing the crossings by the pipeline that Texas Midstream wishes to assign to
Company. 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.
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
DFW Midstream Services Right -of -Way Use Agreement
and Consent to Partial Assignment of CSC No. 35519
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a g0
Agreement
1. CONSENT TO PARTIAL ASSIGNMENT OF TEXAS MIDSTREAM
AGREEMENT.
12ecepz6er 28
Effective , 2010 (the "Effective Date") and solely on the terms
and conditions set forth in this Agreement, the City consents to the assignment of the Texas
Midstream Agreement by Texas Midstream to Company to the extent that the Texas Midstream
Agreement authorizes installation and operation of the Pipeline, as defined in Section 2 hereof, in
the Public Right -of -Way, as defined in Section 2 hereof. The City does not adopt, ratify or
approve the particular provisions of any written or oral agreement or understanding that may
have made or reached by and between Texas Midstream and Company as part of or in regard to
any assignment of the Texas Midstream Agreement (the "Assignment"). In the event of any
conflict between this Agreement and the Assignment, this Agreement shall control.
2. DEFINITIONS.
Capitalized terms used in this Agreement and not otherwise defined within this
Agreement shall have the following meanings:
Affiliate shall mean any individual, partnership, association, joint stock company, limited
liability company, trust, corporation, or other person or entity who owns or
controls, or is owned or controlled by, or is under common ownership or control
with, the entity in question.
Agreement shall mean the authorization issued to Company hereunder to use the Public
Rights -of -Way for (i) the construction, installation, maintenance 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 DFW Midstream Services LLC, a Delaware 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.
DFW Midstream Services Right -of -Way Use Agreement
and Consent to Partial Assignment of CSC No. 35519
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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.
3. GRANT OF RIGHTS.
3.1. 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.
3.2. 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 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
DFW Midstream Services Right -of -Way Use Agreement
and Consent to Partial Assignment of CSC No. 35519
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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.
3.3. 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.
3.4. Bonds.
Prior to the commencement of any construction work in the Public Rights -of -Way
in the City that requires a cut, opening or other excavation, Company shall deliver to the
City bonds executed by a corporate surety authorized to do business in the State of Texas
and acceptable to the City in the proportional amount of the cost of work under the
construction contract or construction project that will be performed in the Public Rights -
of -Way. The bonds shall guarantee (i) satisfactory compliance by Company with all
requirements, terms and conditions of this Agreement and (ii) full payments to all
persons, firms, corporations or other entities with whom Company has a direct
relationship for the performance of such construction, maintenance or repairs.
If any such construction, maintenance and repair work is undertaken by a
contractor of Company, Company shall also require such contractor to deliver to
Company bonds executed by a corporate surety authorized to do business in the State of
Texas and acceptable to the City in the proportional amount of the cost of work under the
construction contract or construction project that will be performed by the contractor in
the Public Rights -of -Way. The bonds shall guarantee (i) the faithful performance and
completion of all construction maintenance or repair work in accordance with the
contract between Company and the contractor and (ii) full payment for all wages for
labor and services and of all bills for materials, supplies and equipment used in the
performance of that contract. Such bonds shall name both the City and Company as dual
obligees.
4. TERM
This Agreement shall become effective on the Effective Date, as defined in Section 1
hereof, and shall expire at 11:59 P.M. CDT on December 31, 2032 unless terminated earlier as
provided herein.
DFW Midstream Services Right -of -Way Use Agreement
and Consent to Partial Assignment of CSC No. 35519
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5. FEES AND PAYMENTS TO CITY.
5.1. Right -of -Way Use Fee.
The City hereby accepts that portion of the License Fee applicable to the Pipeline
paid pursuant to the Texas Midstream Agreement as full compensation for Company's
use of the Public Rights -of -Way as provided by this Agreement.
5.2. 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.
5.3. 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.
6. REGULATORY AUTHORITY OF THE CITY.
Company's property and operations hereunder shall be subject to such regulation by the
City as may be reasonably necessary for the protection or benefit of the general public. In this
connection, Company shall be subject to, governed by and shall comply with all applicable
federal, state and local laws, including all ordinances, rules and regulations of the City as same
may be adopted and amended from time to time.
7. USE OF PUBLIC RIGHTS -OF -WAY.
7.1. 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
DFW Midstream Services Right -of -Way Use Agreement
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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.
7.2. 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.
7.3. 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 of obstructed during
nighttime conditions
7.4. "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.
DFW Midstream Services Right -of -Way Use Agreement
and Consent to Partial Assignment of CSC No. 35519
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7.5. 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.
7.6. 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 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 November 30, 2021;
and (d) $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.
7.7. 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.
7.8. 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
DFW Midstream Services Right -of -Way Use Agreement
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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.
7.9. Emergencies.
7.9.1. Work by the City.
For purposes of this Section 7.9.1, 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 8.1 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.
7.9.2. 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
DFW Midstream Services Right -of -Way Use Agreement
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from the director of the City's Department of Transportation/Public Works and
otherwise fully comply with the requirements of this Agreement.
7.10. 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 7.7 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.
8. LIABILITY AND INDEMNIFICATION.
8.1. Liability of Company; Joint and Several Liability of Texas Midstream and
Company.
Company shall be liable and responsible for any and all damages, losses,
liabilities (joint or several), payments, obligations, penalties, claims, litigation, demands,
defenses judgments, lawsuits, proceedings, costs, disbursements or expenses (including,
without limitation, fees, disbursements and reasonable expenses of attorneys, accountants
and other professional advisors and of expert witnesses and costs of investigation and
preparation) of any kind or nature whatsoever (collectively "Damages"), which may
arise out of or be in any way connected with (i) the construction, installation, operation,
maintenance or condition of the Pipeline or any related facilities or appurtenances; (ii) the
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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; provided,
however, that Texas Midstream will be liable to the City for any such Damages occurring
prior to the Effective Date and (ii) for any such Damages to the extent caused by Texas
Midstream, its officers, agents, servants, employees or subcontractors. Notwithstanding
the foregoing, neither this Section 8.1 nor any other provision of this Agreement shall
alter, amend, or otherwise affect any separate agreements between Texas Midstream and
Company regarding allocations of risk, indemnity, or assumption of obligations as
between Texas Midstream or Company that may be provided in those separate
agreements.
8.2. 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, INCLUDING DEATH) 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 (HI 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. INADDITION,
TEXAS MIDSTREAM SHALL HOLD HARMLESS AND, UPON DEMAND BY THE
CITY, INDEMNIFY THE INDEMNITEES FOR ANY DAMAGES DESCRIBED IN
THE PRECEDING PARAGRAPH THAT OCCURRED PRIOR TO THE
EFFECTIVE DATE. NOTWITHSTANDING THE FOREGOING, NEITHER THIS
SECTION 8.2 NOR ANY OTHER PROVISION OF THIS AGREEMENT SHALL
ALTER, AMEND, OR OTHERWISE AFFECT ANY SEPARATE AGREEMENTS
BETWEEN TEXAS MIDSTREAM AND COMPANY REGARDING ALLOCATIONS
OF RISK, INDEMNITY, OR ASSUMPTION OF OBLIGATIONS AS BETWEEN
TEXAS MIDSTREAM OR COMPANY THAT MAY BE PROVIDED IN THOSE
SEPARATE AGREEMENTS.
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8.3. 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.
8.4. Defense of Indemnitees.
In the event any action lawsuit or other proceeding is brought against any
Indemmtee 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.
9. 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.
9.1. Primary Liability Insurance Coverage.
• Commercial General Liability:
$1,000 000 per occurrence, including coverage for the following: (i) Premises
Liability; (ii) independent contractors; (iii) products/completed operations; (iv)
personal injury (v) contractual liability; (vi) explosion, collapse and
underground property damage.
• Property Damage Liability:
$10,000,000 per occurrence
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•
Automobile Liability:
$1,000,000 per accident,
including, but not limited to, all owned, leased, hired or non -owned motor
vehicles used in conjunction with the rights granted under this Agreement
• Worker's Compensation:
As required by law; and, Employer's Liability as follows:
$1,000,000 per accident.
9.2. 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.
9.3. Underwriters and Certificates.
Company shall procure and maintain its insurance with underwriters authorized to
do business m 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.
9.4. 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.
9.5. No Limitation of Liability.
The insurance requirements set forth in this Section 9 and any recovery by the City
of any sum by reason of any insurance policy required under this Agreement shall in no way
be construed or effected to limit or in any way affect Company's liability to the City or other
persons as provided by this Agreement or law.
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10. 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:
10.1. 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.
10.2. 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.
10.3. 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.
11. UNCURED DEFAULTS AND REMEDIES.
11.1. Notice of Default and Opportunity to Cure.
If an Event of Default occurs, the City shall provide Company with written notice
and shall give Company the opportunity to cure such Event of Default. Foi 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 11.2.
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11.2. 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:
11.2.1. 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 11.2.1 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
Commission or successor agency or other regulatory authority with jurisdiction, if
such action without such approval is prohibited at the time by applicable federal
or state law or regulation.
11.2.2 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.
12. PROVISION OF INFORMATION.
12.1. 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
DFW Midstream Services Right -of -Way Use Agreement
and Consent to Partial Assignment of CSC No. 35519
Page 14 of 18
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.
12.2. 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.
13. 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.
14. ASSIGNMENT PROHIBITED.
Company may not assign or otherwise transfer any of its rights or obligations under this
Agreement unless specifically authorized in writing by the City, which authorization shall not be
unreasonably withheld.
15. NOTICES.
Notices required pursuant to the provisions of this Agreement shall be conclusively
deter lined 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:
DFW Midstream Services Right -of -Way Use Agreement
and Consent to Partial Assignment of CSC No. 35519
Page 15 of 18
To THE CITY:
City of Fort Worth
Public Utilities Administrator
1000 Throckmorton
Fort Worth, TX 76102
with a copy to:
City of Fort Worth
Department of Law
Attn Attorney for Utilities
1000 1hrockmorton
Fort Worth, TX 76102
To TEXAS MIDSTREAM:
Chesapeake Energy Marketing Inc.
Kerry Clapp, Area Operations Manager
6100 N. Western Avenue
Oklahoma City, OK 73118
To COMPANY:
DFW Midstream Services LLC
Peter Lee, Director of Finance
8226 Douglas Avenue, Suite 523
Dallas, TX 75225
16. 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
17. 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.
DFW Midstream Services Right -of -Way Use Agreement
and Consent to Partial Assignment of CSC No. 35519
Page 16 of 18
18. 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.
19. 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.
20. SEVERABILITY.
If any provision of this Agreement is held to be invalid, illegal or unenforceable by a final
order entered by a court of competent jurisdiction, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired. For purposes of this Agreement,
a court order shall be final only to the extent that all available legal rights and remedies pertaining to
such order, including, without limitation all available appeals, have been exhausted. In such an
event the City and Company agree that they shall amend or have amended this Agreement to
comply with such final order entered by a court of competent jurisdiction.
21. 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.
22. 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.
DFW Midstream Services Right -of -Way Use Agreement
and Consent to Partial Assignment of CSC No. 35519
Page 17 of 18
23. 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, to be effective on the Effective Date:
CITY OF FORT WORTH:
By: callisee#0•4
Fernando Costa
Assistant City Manager
Date: /2434?
DFW MIDSTREAM SERVICES LLC, a
Delaware limited liability company:
Steve Newby
President
Date: 217 t)
APPROVED AS TO FORM AND LEGALITY:
By: &IOC)
Peter Vaky
Assistant City Attorney
M&c: C-1.96 6/ /z—Pt eho
TEXAS MIDSTREAM GAS SERVICES, L.L.C.,
an Oklahoma limited liability company:
By:
Robert S. Purgason
Chief Operating Officer
Date: / 2 - 2 2
DFW Midstream Services Right -of -Way Use Agreement
and Consent to Partial Assignment of CSC No. 35519
Page 18 of 18
Attested boo
Marty liend
City Secretary
a,� 9400000%ra�
!�44
°Oc000o°ktIttuntts's
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
EXHIBIT "A"
Company may only use the following portions of the Public Rights -of -Way in the City:
Line A:
•
•
•
•
•
•
Approximately 50 linear feet crossing Randol Mill Road approximately 742 feet north of its
intersection with Lowery Road;
Approximately 111 linear feet crossing Sartain Road approximately 90 feet southeast of its
intersection with Biook Ridge Drive;
Approximately 100 linear feet crossing John T White Road approximately 1,616 feet east
of its intersection with Cooks Lane;
Approximately 68 linear feet crossing Ederville Road approximately 752 feet east of its
intersection with Cooks Lane*
Approximately 82 linear feet crossing Brentwood Stair Road approximately 131 feet east of
its intersection with Cooks Lane; and
Approximately 54 linear feet crossing Cooks Lane approximately 137 feet northwest of its
intersection with Drews Lane.
DFW Midstream Services Right -of -Way Use Agreement
and Consent to Partial Assignment of CSC No. 35519
Exhibit A - Page 1 of 7
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DFWOMidstream
Page 1 of 2
City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 12/14/2010
DATE: Tuesday, December 14, 2010
LOG NAME 06DFW MIDSTREAM ASSIGNMENTS
S UBJECT:
Authorize the Execution of Public Right -of -Way Use Agreements Consenting to the Assignment to DFW
Midstream Services, LLC, by Texas Midstream Gas Services, L.L.C., of Licenses to Operate Natural Gas
P ipelines Across Randol Mill Road, Sartain Road, John T. White Road, Ederville Road, Brentwood Stair
Road, Cooks Lane and Precinct Line Road (COUNCIL DISTRICTS 4 and 5)
RECOMMENDATION:
It is recommended that the City Council:
REFERENCE NO.: C-24661
1. Authorize the City Manager to execute a Public Right -of -Way Use Agreement and Consent to Partial
Assignment of City Secretary Contract No. 35519 granting DFW Midstream Services, LLC, the right to
o perate a natural gas pipeline across Randol Mill Road, north of its intersection with Lowery Road, Sartain
Road, southeast of its intersection with Brook Ridge Drive, John T. White Road, east of its intersection
with Cooks Lane, Ederville Road, east of its intersection with Cooks Lane, Brentwood Stair Road, east of
its intersection with Cooks Lane and Cooks Lane, northwest of its intersection with Drews Lane.
2. Authorize the City Manager to execute a Public Right -of -Way Use Agreement and Consent to Partial
Assignment of City Secretary Contract No. 37456 granting DFW Midstream Services, LLC, the right to
o perate a natural gas pipeline across Precinct Line Road, north of Randol Mill Road, and Cooks Lane,
n orth of Colbi Lane.
DISCUSSION:
On June 19, 2007, (M&C C-22185) the City Council granted Texas Midstream Gas Services, L.L.C.,
(Texas Midstream) a 25-year license to construct and operate two (2) natural gas pipelines parallel to one
another and crossing Randol Mill Road, north of its intersection with Lowery Road Sartain Road
southeast of its intersection with Brook Ridge Drive, John T White Road, east of its intersection with
Cooks Lane, Ederville Road east of its intersection with Cooks Lane, Brentwood Stair Road, east of its
intersection with Cooks Lane and Cooks Lane, northwest of its intersection with Drews Lane. The Public
Right -of -Way Use Agreement covering this license is City Secretary Contract No. 35519.
On July 8, 2008, (M&C C-22900) the City Council granted Texas Midstream Gas Services, L.L.C., a 25-
year license to construct and operate two natural gas pipelines parallel to one another and crossing
P recinct Line Road, north of Randol Mill Road and Trammel Davis Road, and Cooks Lane, south of
Meadowbrook Road The Public Right -of -Way Use Agreement covering this license is City Secretary
Contract No. 37456
All four pipelines have been constructed and are currently in operation. Texas Midstream Gas Services,
L L C , now wishes to sell one pipeline at each of the two crossing locations to DFW Midstream Services,
LLC (DFW Midstream). The approximate locations of the crossings are shown in the attached maps.
U nder the City's Public Right -of -Way Use Agreements with Texas Midstream Gas Services, L.L.C., the
http://apps.cfwnet.org/ecouncil/printmc.asp?id=14561 &print=true&DocType=Print 12/27/2010
Page 2 of 2
City Council must approve any assignment of the pipeline crossing licenses by Texas Midstream Gas
Services, L.L.0 City staff does not object to the requested assignment. However, in order to preserve
clear records as to which entities own which pipelines, it is recommended that the City enter into new
Public Right -of -Way Use Agreements with DFW Midstream for the pipelines being assigned to it, and that
the existing Public Right -of -Way Use Agreements with Texas Midstream Gas Services, L.L. C., be
amended to delete the street crossings that Texas Midstream Gas Services, L.L.C., was authorized to
have for the pipelines being assigned to DFW Midstream. The new Public Right -of -Way Use Agreements
with DFW Midstream will expire on the same dates as the Public Right -of -Way Use Agreements with
Texas Midstream.
Because Texas Midstream originally paid the 25-year license fee for these crossings in full, no additional
license fee will be required of DFW Midstream.
The two pipelines being sold to DFW Midstream are located in COUNCIL DISTRICTS 4 AND 5.
FISCAL INFORMATION / CERTIFICATION:
The Financial Management Services Director certifies that this action will have no material effect on City
funds.
FUND CENTERS:
TO Fund/Account/Centers FROM Fund/Account/Centers
CERTIFICATIONS:
Submitted for City Manager's Office by:
Originating Department Head:
Additional Information Contact:
Fernando Costa (6122)
Randle Harwood (6101)
Peter Vaky (7601)
ATTACHMENTS
1. DFW 1.pdf (Public)
2. DFW 2.pdf (Public)
http://apps.cfwnet org/ecouncil/printmc.asp?id=14561&print=true&DocType=Print 12/27/2010