HomeMy WebLinkAboutContract 41694 (2)CITYSL:CRETARY
CONTRACT No,
RAD REPAIR AGREEMENT
BETWEEN
TH 114. CI I,Y OF FORT WORTB
AND
VANTAGE FORT WORTH ENERGY, LLC.
THIS ROAD REPAIR AGREEMENT, ("Agreement"), is made and entered into on this
the lSfr 4dayof 09441/41 ,20YI by and between the CITY OF FORT WORTH, TEXAS
("City"), a home rule municipal corporation of the State of Texas, located within Tarrant, Denton,
Wise and Parker Counties, Texas and VANTAGE FORT WORTH ENERGY, LLC.
("Operator") for the repair of streets and/or roadways within the City of Fort Worth, Texas.
WHEREAS, Operator is in the business of drilling gas wells and, in connection therewith,
shall be engaged in drilling and production activities on property within the city limits of Fort
Worth as permitted by the City which abuts, is adjacent to, and/or is accessed by roadways within
the City of Fort Worth; and
WHEREAS, use of the roadways by the Operator for the purpose of performing the
activities described hereinabove may cause damage to the roadways; and
WHEREAS, the City and Operator, for the mutual consideration hereinafter stated, desire
to enter into this Agreement for Operator to repair said roadways for the duration of the term of this
Agreement in consideration of Operator's use of said roadways for the purpose of the activities
described hereinabove;
IT IS NOW THEREFORE AGREED 'TI'HAT:
ARTICLE 1.
REPAIR OBLIGATION
1. Operator shall repair damages caused by Operator or its contractors, subcontractors,
employees, and agents, excluding ordinary wear and tear, if any, to roadways that abuts any
property permitted by the City and used by the Operator for the drilling and production of gas wells
pursuant to any active Gas Well Permits issued to Operator. The repair obligation shall continue
even if the Gas Well Permits are amended or a Multiple Gas Well Pad Site Permit is issued to allow
for the drilling of additional gas wells. This obligation shall continue during the term of this
Agreement, and Operator shall, prior to the termination of this Agreement, as provided herein,
repair such damages to such roadways, excluding ordinary wear and tear, if any, to the condition in
which such roadways existed prior to the execution of this Agreement. Operator shall make a
videotape of all such roadways prior to the start of Operator drilling and operation of each of its gas
wells and shall provide a copy of the videotape to the Director of Transportation and Public Works.
Operator shall notify the Director of Transportation and Public Works when drilling or fracing
operations are complete so that the Director of Transportation and Public Works can determine if
repairs are required.
OFFICIAL RECORD
CITY SECRETARY
Ft WORtial9 TX
2. In connection with its obligation to repair said roadways, Operator shall use
materials of the same or better quality than those utilized to surface and/or repair the roadways
prior to execution of this Agreement and in accordance with the current standards specifications of
the City. Deviation from the materials described herein shall not be permitted without the prior
written consent of the Director of Transportation and Public Works. Repairs shall be completed in
accordance with standard engineering practices acceptable to the City.
3. Operator shall repair the damage to the roadways at its sole cost and expense
4. During the term of this Agreement, Operator shall periodically inspect the roadways
during drilling, fracture stimulation or reworking of any permitted gas well to determine whether or
not any damage has occurred as a result of Operator's activities. Immediately upon discovering the
existence of any such damage to the roadways, Operator shall undertake to repair and/or remedy
same. Upon discovery of damage by the Operator the Operator will have 48 hours to contact the
Director of Transportation and Public Works to work out a schedule of repairs Repairs shall take
place within 30 days or immediately if the damage affects the immediate health and safety of
individuals.
ARTICLE 2.
TERM OF AGREEMENT
This Agreement shall commence upon the date indicated above and shall continue in full
force and effect until Operator has completed and/or permanently discontinued the activities upon
the roadways next to any permitted gas well.
ARTICLE 3.
INSURANCE AND INDEMNITY
The Operator shall provide or cause to be provided the insurance described below for each
well unless a Gas Well Permit has been issued wherein such insurance has been provided for the
issuance of the Gas Well Permit under the terms and conditions described in the Fort Worth 'Gas
Drilling and Production" Ordinance and such insurance to continue until the well is abandoned and
the site restored.
In addition to the bond or letter of credit required pursuant to this Agreement and the Fort
Worth "Gas Drilling and Production" ordinance, the Operator shall carry a policy or policies of
insurance issued by an insurance company or companies authorized to do business in Texas. In the
event such insurance policy or policies are cancelled, the Gas Well Permits shall be suspended on
such date of cancellation and the Operator's right to operate under such Gas Well Permit shall
immediately cease until the Operator files additional insurance as provided herein.
Page 2
1. General Requirements applicable to all policies.
a. The City, its officials, employees, agents and officers shall be endorsed as an
` Additional Insured" to all policies except Employers Liability coverage
under the Operator's Workers Compensation policy
b. All pohcies shall be written on an occurrence basis except for Environmental
Pollution Liability (Seepage and Pollution coverage) and Excess or Umbrella
Liability, which may be on a claims -made basis.
c. All policies shall be written by an insurer with an A-: VIII or better rating by
the most current version of the A. M. Best Key Rating Guide or with such
other financially sound insurance carriers acceptable to the City.
d. Deductibles shall be listed on the Certificate of Insurance and shall be on a
'per occurrence" basis unless otherwise stipulated herein.
e. Certificates of Insurance shall be delivered to the City of Fort Worth,
Planning and Development Department, 1000 Throckmorton Street, Fort
worth, Texas 76102 evidencing all the required coverage, including
endorsements, prior to the issuance of a Gas Well Permit.
f. All policies shall be endorsed with a waiver of subrogation providing rights
of recovery in favor of the City.
Any failure on part of the City to request required insurance documentation
shall not constitute a waiver of the insurance requirement specified herein.
h. Each policy shall be endorsed to provide the City a minimum thirty -day
notice of cancellation, non -renewal and/or material change in policy terms
or coverage. A ten days notice shall be acceptable in the event of non-
payment of premium.
i. During the term of the Gas Well Permit, the Operator shall report, in a timely
manner to the Gas Inspector any known loss occurrence which could give
rise to a liability claim or lawsuit or which could result in a property loss.
j. Upon request, certified copies of all insurance policies shall be furnished to
the City.
2. Standard Commercial General Liability Policy.
This coverage must include premises, operations, blowout or explosion, products
completed operations, sudden and accidental pollution, blanket contractual liability
underground resources and equipment hazard damage, broad form property damage,
independent contractors' protective liability and personal injury. This coverage shall
be a minimum Combined Single Limit of $1,000,000 per occurrence for Bodily
Injury and Property Damage.
3. Excess or Umbrella Liability.
Five Million Dollar ($5,000,000) Excess when necessary.
g
Page 3
4. Environmental Pollution Liability Coverage.
a. Operator shall purchase and maintain in force for the duration of the Gas
Well Permit, insurance for environmental pollution liability applicable to
bodily injury, property damage, including loss of use of damaged property or
of property that has not been physically injured or destroyed• cleanup costs;
and defense, including costs and expenses incurred in the investigation,
defense or settlement of claims; all in connection with any loss arising from
the insured site. Coverage shall be maintained in an amount of at least five
million dollars ($5,000,000) per loss.
b. Coverage shall apply to sudden and accidental, as well as gradual pollution
conditions resulting from the escape or release of smoke, vapors, fumes,
acids, alkalis, toxic chemicals, liquids or gases, waste material or other
irritants, contaminants or pollutants.
c. The Operator shall maintain continuous coverage and shall purchase
Extended Coverage Period insurance when necessary. The Extended
Coverage Period insurance must provide that any retroactive date applicable
to coverage under the policy precedes the effective date of the issuance of
the permit by the City.
5. Control of Well.
a. The policy should cover the cost of controlling a well that is out of control,
re -drilling or restoration expenses, seepage and pollution damage as first
party recovery for the Operator and related expenses, including, but not
limited to, loss of equipment, experts and evacuation of residents.
b. $5,000,000 per occurrence/combined single limit.
c. $500 000 sub -limit endorsement may be added for damage to property for
which the Operator has care, custody and control.
6. Workers Compensation and Employers Liability Insurance.
a. Workers Compensation benefits shall be Texas Statutory Limits.
b. Employers Liability shall be a minimum of $500,000 per accident.
c. Such coverage shall include a waiver of subrogation in favor of the City and
provide coverage in accordance with applicable State and Federal laws.
7. Automobile Liability Insurance.
a. Combined Single Limit of $1,000,000 per occurrence for Bodily Injury and
Property Damage.
b. Coverage must include all owned, hired and not -owned automobiles
8. Certificates of Insurance.
a. The company must be admitted or approved to do business in the State of
Texas, unless the coverage is written by a Surplus Lines insurer.
b. The insurance set forth by the insurance company must be underwritten on
forms that have been approved by the Texas State Board of Insurance or
Page 4
ISO, or an equivalent policy form acceptable to the City, with the exception
of Environmental Pollution Liability and Control of Well coverage.
c. Sets forth all endorsements and insurance coverage according to
requirements and instructions contained herein.
d. Shall specifically set forth the notice of cancellation, termination, or change
in coverage provisions to the City. All policies shall be endorsed to read
"THIS POLICY WILL NOT BE CANCELLED OR NON -RENEWED
WITHOUT 30 DAYS ADVANCED WRITTEN NOTICE TO THE
OWNER AND THE CITY EXCEPT WHEN THIS POLICY IS BEING
CANCELLED FOR NONPAYMENT OF PREMIUM, IN WHICH CASE
10 DAYS ADVANCE WRITTEN NOTICE IS REQUIRED".
e. Original endorsements affecting coverage required by this section shall be
furnished with the certificates of insurance.
ARTICLK ` 0
PERFORMANCE
ONDS
1. Operator shall provide a performance bond, unless a performance bond has been
provided for the issuance of Gas Well Permits under the terms and conditions described in Fort
Worth "Gas Drilling and Production" Ordinance, in an amount not less than the amount necessary
to repair the roadways, as determined by the City Director of Transportation and Public Works.
2. Prior to the beginning of any activity pursuant to the issuance of any Gas Well
Permit, unless a performance bond has been provided for the issuance of Gas Well Permits under
the terms and conditions described in the Fort Worth "Gas Drilling and Production" Ordinance,
Operator shall provide the Gas Inspector with a security instrument in the form of a bond or an
irrevocable letter of credit as follows:
a. Bond o A bond shall be executed by a reliable bonding or insurance institution
authorized to do business in Texas, acceptable to the City. The bond shall
become effective on or before the date the Gas Well Permit is issued and shall
remain in force and effect for at least a period of six (6) months after the
expiration of the Gas Well Permit term or until the well is plugged and
abandoned and the site is restored, whichever occurs first. The Operator shall be
listed as principal and the instrument shall run to the City, as obligee, and shall
be conditioned that the Operator will comply with the terms and regulations of
this Ordinance and the City. The original bond shall be submitted to the
Director of Transportation and Public Works with a copy of the same provided
to the City Secretary and the Gas Inspector.
b. Letter of Credit o A letter of credit shall be issued by a reliable bank authorized
to do business in Texas and shall become effective on or before the date the Gas
Well Permit is issued. The letter of credit shall remain in force and effect for at
least a period of six (6) months after the expiration of the Gas Well Permit term.
Page 5
The City shall be authorized to draw upon such letter of credit to recover any
fines or penalties assessed under this ordinance Evidence of the execution of a
letter of credit shall be submitted to the Director of Transportation and Public
Works submitting an original signed letter of credit from the banking institution,
with a copy of the same provided to the City Secretary and the Gas Inspector If
the Letter of Credit is for a time penod less than the life of the well as required
by Ordinance Number 14880, agrees to either renew the Letter of
Credit or replace the Letter of Credit with a bond in the amount required by the
City of Fort Worth Ordinance Number 14880, on or before 45 days prior to the
expiration date of the Letter of Credit. If fails to deliver to the
City of Fort Worth either the renewal Letter of Credit or replacement bond in the
appropriate amount on or before 45 days prior to the expiration date of the Letter
of Credit the City of Fort Worth may draw the entire face amount of the
attached Letter of Credit to be held by the City of Fort Worth as security for
's performance of its obligations under Ordinance Number
14880.
c. Whenever the Gas Inspector or the Director of Transportation and Public Works
Department finds that a default has occurred in the performance of any
requirement or condition imposed by this Agreement, a written notice shall be
given to Operator. Such notice shall specify the work to be done, the estimated
cost and the period of time deemed by the Gas Inspector or the Director of
Transportation and Public works Department to be reasonably necessary for the
completion of such work. After receipt of such notice, the Operator shall, within
the time therein specified, either cause or require the work to be performed, or
failing to do so, shall pay over to the City one hundred twenty-five percent
(125%) of the estimated cost of doing the work as set forth in the notice.
d. The City shall be authorized to draw against any irrevocable letter of credit or
bond to recover such amount due from Operator. Upon receipt of such monies,
the City shall proceed by such mode as deemed convenient to cause the required
work to be performed and completed, but no liability shall be incurred other than
for the expenditure of said sum in hand..
e In the event Operator does not cause the work to be performed and fails or
refuses to pay over to the City the estimated cost of the work to be done as set
forth in the notice, or the issuer of the security instrument refuses to honor any
draft by the City against the applicable irrevocable letter of credit or bond the
City may proceed to obtain compliance and abate the default by way of civil
action against Operator or by criminal action against the Operator, or by both
such methods.
f. The cancellation of any bond or letter of credit for the sole purpose of the repair
of roadways will not release the obligation of the Operator to meet all
requirements of insurance and bonding under the Fort Worth "Gas Drilling and
Production' Ordinance. Any bond required by the Fort Worth "Gas Drilling and
Production' Ordinance shall stay in full force and effect until the terms and
conditions set out in the Ordinance are met
Page 6
3. If the cost of completing the repair is an amount of $15,000 or less, as determined by
the Director of Transportation and Public Works, cash in the amount necessary to complete the
repairs, as determined by the Director of Transportation and Public Works, may be deposited with
a bank or escrow agent pursuant to an escrow agreement acceptable and approved by the City
ensuring completion of the repair
ARTICLE 5
MISCELLANEOUS PROVISIONS
1. Operator understands and agrees that Operator, its employees, servants, agents, and
representatives shall at no time represent themselves to be employees, servants, agents, and/or
representatives of the City. The City shall not have any control over the means or methods by
which Operator shall perform its obligations hereunder. Operator shall furnish all equipment and
materials necessary to perfouu hereunder and shall at all times be acting as an independent
Operator.
2. By entering into this Agreement the City does not waive, nor shall it be deemed to
waive, any immunity or defense that would otherwise be available to it against claims arising by
third parties.
3. This Agreement represents the entire agreement between Operator and City for
repair of roadways and supersedes all prior negotiations, representations, and/or agreements, either
written or oral. This Agreement may be amended only by written instrument signed by the
governing body of the City or those authorized to sign on behalf of the City's governing body.
ARTICLE 6.
FORCE MAJEURE
Events of Force Majeure shall mean any contingency or cause beyond the reasonable
control of a party including, without limitation, acts of God or the public enemy, war, riot, civil
commotion, insurrection, government or de facto government action (unless caused by acts or
omissions of the party), fires, explosions, rain or other weather delays, floods, strikes slowdowns
or work stoppages.
Page 7
ARTICLE 7.
ASSIGNABILITY/CONSENT
Except as otherwise provided herein, or except as may be hereafter determined by the
parties, no party to this Agreement may sell, assign, or transfer its interest in this Agreement, or any
of its right duties, or obligations hereunder, without the prior written consent of the other party
Whenever the consent or the approval of a party is required herein, such party shall not
unreasonably withhold, delay or deny such consent or approval Operator may assign this
Agreement to any successor entity to whom the applicable Gas Well Permit has been assigned upon
written notice to the City of said assignment
ARTICLE 8.
NOTICE
Any notice given by one party to the other in connection with this Agreement shall be in
writing and shall be by personal delivery sent by registered mail or certified mail; or by United
States Mail, return receipt requested, postage prepaid; to:
CITY:
OPERATOR
Office of the City Manager
City of Fort Worth, Texas
1000 Throckmorton Street
Fort Worth, Texas 76102
Vantage Fort Worth Energy, LLC
777 Main Street, Suite 790
Fort Worth, Texas 76102
Notice shall be deemed to have been received on the date of receipt as shown on the return receipt
or other written evidence of receipt.
Page 8
ARTICLE 9.
MODIFICATION
No waiver or modification of this Agreement or of any covenant, condition limitation
herein contained shall be valid unless in writing and duly executed by the party to be charged
therewith. No evidence of any waiver or modification shall be offered or received in evidence in
any proceeding arising between the parties hereto out of or affecting this Agreement, or the rights
or obligations of the parties hereunder, unless such waiver or modification is in writing, duly
executed. The parties further agree that the provisions of this Article will not be waived unless as
herein set forth.
ARTICLE 10.
SAVINGS/SEVERABILITY
In the event that any one or more of the provisions hereof contained in this Agreement shall
for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity
illegality, or unenforceability shall not effect the other provisions, and the Agreement shall be
construed as if such invalid, illegal, or unenforceable provision had never been contained in this
Agreement.
ARTICLE 11.
GOVERNING LAW AND VENUE
This Agreement shall be construed under and governed by and in accordance with the laws
of the State of Texas, and venue for any action arising under the terms and conditions of this
Agreement shall lie in the state courts located in Tarrant County, Texas or the United States District
Court for the Northern District of Texas, Fort Worth Division.
ARTICLE 12.
ENTIRE AGREEMENT
This Agreement and the exhibits attached hereto, constitute the entire agreement among the
parties hereto with respect to the subject matter hereof, and supersede any prior understandings or
written or oral agreements between the parties with respect to the subject matter of this Agreement.
No amendment modification, cancellation or alteration of the terms of this Agreement shall be
binding on any party hereto unless the same is in writing, dated subsequent to the date hereof, and
is duly authorized and executed by the parties hereto.
Page 9
ARTICLE 13
WAIVER OF TERMS AND CONl► I[ II NS
The failure of either party to enforce or insist upon compliance with any of the terms or
conditions of this Agreement shall not constitute a general waiver or relinquishment of any such
teens or conditions, but the same shall be and remain at all tunes in full force and effect.
ARTICLE 1&
CAPT 1OIkIS
The captions contained in this Agreement are for informational purposes only and shall not
in any way affect the substantive teens or conditions of this Agreement.
R.Tiri , `, ii 5.
COUNTi,
ARTS
This Agreement may be executed in any number of counterparts, each of which shall be
deemed an original, and constitute one and the same instrument.
rid WITNESS WHEREOF, the parties do hereby affix their signatures and enter into this
Agreement as of the day of , ;,_l , 20
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ATTEST:
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City Secretary
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irector of 'fanning a : Develop
APPROVED AS TO FORM
AND LEGALITY:
By: k iftki
assistant City Attorney
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dal* iL1
'terietewa.n-•
CITY OF FORT WORTH
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Page '10
sistant City Manager
NO M&C REQUIRIL
if it
Opero/ (2_ •kf, i..)67satahicsa
�. wa, - w- Fitts " OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
rediakles nieis
Before me, the undersigned Notary Public, on this day personally appeared' Fernando Costa,
the Assistant City Manager of the City of Fort Worth, Texas, known to me to be the person whose
name is subscribed to the foregoing instrument, and acknowledged to me that he/she executed the
instrument for the purposes and consideration therein expressed.
Given under myhand and seal of office this ! i, day of
,
STATE OF TEXAS
COUNTY OF TARRANT §
STATE OF
COUNTYOF T
114.4411ivi
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•:�:���-,, EVONIA DANIELS
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='Y; ` * MY COMMISSION EXPIRES
T,,,..•• Y.:`July '10, 2013
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Notary Public
, known to me to be the person
whose name is subscribed to the foregoing instrument, and acknowledged to me that the same was
the act of r ituvt /Qi-bfftt(ftecorporation) and that he executed the same
as the act of said 77 ay/ (corporation) for the purposes and
consideration therein expressed and in the capacity therein stated.
Before me, the undersigned authority, a Notary Public in and for the State of Texas, on this
daypersonally appeared Cr' �. 24 Oacz4t
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Given under my hand and seal of office this CI'rb
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Page 11
A 1\ T 1 V E FORT RT \\, O r , i L ENERGY L L C
CONSENT OF SOLE MEMBER AND MANAGER
IN LIEU OF MEETING
w
Vantage Energy, LLC, being the sole member and manager of Vantage Fort Worth
Energy LLC, a Delaware limited liability company (the "Company"), hereby adopts the
fol lowing resolutions:
WHEREAS, the Company's Limited Liability Company Operating Agreement states that
the Manager may make such authorizations as the Manager deems necessary in order to manage
the business and affairs of the Company.
NOW, THEREFORE, BE IT RESOLVED, that Colin Barry Osborne is authorized to
execute documents such as Leases, Surface Use Agreements. Permits and Applications,
Assignments, JOAs and related documents on behalf of the Company.
RESOLVED, that any acts of the above -named person, which acts were within the
authority of such person and insofar as the same pertained to the normal operation of the
Company's business with regard to Leases, Surface Use Agreements, Permits and Applications,
Assignments, JOAs and related documents be, and hereby are, ratified, confirmed, approved and
adopted as acts of the Company.
This consent may be executed by facsimile signature, and a facsimile signature will
constitute an original signature.
[Remainder of page lntentionc111)' left blank.]
2028296.1
IN WITNESS WHEREOF, the undersigned has executed this Consent effective as of
October /`7 2010.
VANTAGE ENERGY, LLC
a Delaware limited liability company
By
Name: Thomas B. Tyree:Jr.
Title: President and Chief Financial Officer
Being the sole Member and Manage! of Vantage Fort
Worth Energy LLC, a Delaware limited liability company