HomeMy WebLinkAboutContract 44815 (2)_ �: •t
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ROAD REPAIR AGREEMENT
BETWEEN
THIS ROAD REPAIR AGREEMENT, ("Agr•eement"), is made and entered into on this
the � day of �vg�S-i— , 20 13 by and between the CITY OF FORT WORTH, TEXAS
("City"), a home rule municipal coi•poration of the State of Texas, located within Tarrant, Denton,
Wise and Par•ker Counties, Texas and �}�b�µ�q� ��OD�G?�NS; C/'
("Opecator") for the repait• of streets and/or roadways within the City of Fort Woi-th, Texas.
WHEREAS, Operatoi• 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 Foi•t Worth; and
WHEREAS, use of the roadways by the Ope1•ator foi• the pui•pose of pei•forming the
activities described her•einabove may cause damage to the roadways; and
WHEREAS, the City and Operator, foi� the mutual consideration hereinaftei• stated, desire
to entei• into this Agreement for Opei•ator to repair� said ►�oadways for the duration of the term of this
Agi•eement in consideration of Opei•atoi•'s use of said roadways for the put•pose of the activities
described hereinabove;
IT IS NOW THEREFORE AGREED THAT:
ARTICLE 1.
REPAIR OBLIGATION
1. Operator shall repair damages caused by Operator or its contractors, subcontractor�s,
employees, and agents, excluding ordinai•y weai� and teal•, if any, to j•oadways that abuts any
property permitted by the City and used by the Operatoi• for the drilling and production of gas wells
pursuant to any active Gas Well Permits issued to Operator. The i•epair obligation shall continue
even if the Gas Well Permits are amended oi• a Multiple Gas Well Pad Site Pei�mit is issued to allow
for the drilling of additional gas wells. This obligation shall continue during the ter•m of this
Agreement, and Operator shall, prior to the termination of this Agreement, as pi•ovided 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. Opei�ator shall mal<e a
videotape of all such i�oadways prior to the stat•t of Operator di•illing and operation of each of its gas
wells and shall provide a copy of the videotape to the Director of Transpol-tation and Public Worl<s.
Operator shall notify the Director of Transportation and Public Worlcs when drilling or fi•acing
operations at•e complete so that the Director of Tt•anspol-tation and Public Works can deteimine if
repaiis are required. �_
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THE CITY OF FORT WORTH
2. In connection with its obligation to repair said roadways, Operator shall use
materials of the same or beiter quality than those utilized to surface and/or repair the roadways
pi•ior to execution of this Agreement and in accordance with the current standards specifications of
the City. Deviation from the materiais described herein shall not be permitted without the prioi•
written consent of the Director of Transportation and Public Worl<s. 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 Agreeinent, Operator shall periodically inspect the roadways
during drilling, fracture stimulation or rewot•lcing of any permitted gas well to determine whether or
not any damage has occurred as a r•esult of Operator's activities. Immediately upon discovering the
existence of any such damage to the roadways, Operator shall undertalce to repair and/or remedy
same. Upon discove►•y of damage by the Operator, the Operatol• wi11 have 48 hours to contact the
Director of Tr•ansportation and Public Worlcs to worlc 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 pei•mitted gas well.
ARTICLE 3.
INSURANCE AND INDEMNITY
The Operator shall provide or cause to be provided the insurance desci•ibed 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 Woi-th
"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 j•equired pursuant to this Agreement and the Fort
Worth "Gas Drilling and Production" o1•dinance, 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 Weli 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 atl 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 Worlcers Compensation policy.
b. All policies shall be written on an occurr•ence basis except fol• 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 occur•rence" basis unless otherwise stipulated het•ein.
e. Certificates of Insurance shall be delivered to the City of Fort Worth,
Planning and Development Department, 1000 Throckmorton Street, Fol-t
worth, Texas 76102, evidencing all the required coverage, including
endorsements, pr•ior 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.
g. Any failul•e on part of the City to request required insurance documentation
shali not constitute a waiver of the insurance requirement specified herein.
h. Each policy shall be endor•sed to provide ihe 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 t•eport, in a timely
manner, to the Gas Inspector any known loss occurrence which could give
rise to a iiability claim oi• 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, blanlcet contractual liability,
undergt•ound resources and equipment hazard damage, broad form property damage,
independent contractors' protective liabiliiy and personal injuiy. 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 Dollaz• ($5,000,000) Excess when necessary.
Page 3
a
Environmental Pollution Liability Coverage.
a. Operator shall put�chase and maintain in force for the duration of the Gas
Well Permit, insurance for environmental pollution liability applicable to
bodily injuc•y, 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 resuiting from the escape or release of smoke, vapors, fumes,
acids, allcalis, toxic chemicals, liquids or gases, waste material oi• other
irritants, contaminants or pollutants.
c. The Operator shall maintain continuous coverage and shall put•chase
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.
The policy should cover the cost of contt•olling a well that is out of control, re-
drilling or restol•ation expenses, seepage and pollution damage as first party recovery
for the Operator and related expenses, including, but not limited to, loss of
6.
equipment, experts and evacuation of residents.
$ 5,000,000 per occurrence/combined single limit.
$ 500,000 sub-limit endorsement may be added
which the Operator has care, custody and control.
Workers Compensation and Employers Liability Insurance.
for damage to property for
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.
b.
Combined Single Limit of $1,000,000 pei• occurrence for Bodily Injury and
Property Damage.
Coverage must include all owned, hil•ed and not-owned automobiles.
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 Sul•plus Lines insuret•.
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b, The insurance set for•th by the insurance company must be underwritten on forms
that have been approved by the Texas State Board of Insurance or ISO, or an
equivalent policy form acceptable to the City, with the exception of
Envir•onmental 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
covei•age 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 endor•sements affecting coverage required by this section shall be
furnished with the certificates of insurance.
ARTICLE 4.
PERFORMANCE BONDS
1. Operator shall provide a pei•fol•mance 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 Transpoi-tation 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 pt•ovided for the issuance of Gas Well Permits under
the terms and conditions described in the Fort Wot-th "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. A bond shall be executed by a reliable bonding ol• 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 piugged and abandoned and the site is restored, whichever occurs first. The
Operator shall be listed as pi•incipal and the instrument shall run to the City, as obligee, and
shall be conditioned that the Operator will comply with the terms and i•egulations of this
Or•dinance and the City. The original bond shall be submitted to the Director of
Transportation and Public Worlcs with a copy of the same provided to the City Secretary
and the Gas Inspector.
b. Letter of Cr•edit. A letter of credit shall be issued by a reliable banlc 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 aftet• the expiration of the Gas Well Permit term. The City shall be authorized to
draw upon such letter of credit to recover any fines or penalties assessed under this
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ordinance, Evidence of the execution of a letter of credit shall be submitted to the Director
of Transpoj-tation and Public Works submitting an original signed letter of credit fi-om the
banking institution, with a copy of the same pr•ovided to the City Secretary and the Gas
Inspector. If the Letter of Credit is for a time�eriod tess than the life of the well as required
by Ordinance Number 14880, �a,�y[%AD Rao���� C,� 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 oi• before 45 days prior to the expiration
date of the Letter of Credit. If �k��F�1� ,P(Lo�U�T�r�i', �,P fails to deliver to the
City of Fort Worth either the renewal Letter of Credit o�• r�eplacement bond in the
appropriate amount on ot• before 45 days prior to the expiration date of the Letter of Credit,
the City of Fort Worth may draw the entire face a ount of the attached Lettet� of Credit to
be held by the City of Fort Worth as secul•ity fo1• _����l�tt�� ,�/te4rr��ltin►S �p 's
performance of its obligations under Oj•dinance Number 14880.
c. Whenever the Gas Inspector or the Dir•ector of Transpoi-tation and Public Worlcs
Department finds that a default has occurred in the per•formance of any reguirement or
condition imposed by this Agreement, a written notice shall be given to Operato�•. 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 Pub(ic works Department to be
reasonably necessar•y for the completion of such work. Aftel• receipt of such notice, the
Operator shall, within the time therein specified, either cause or reauire the worl< 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 recovet• such amount due from Oper•ator. 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 Opei•ator, or by both such methods.
£ 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 reguirements of
insurance and bonding under the Fort Worth "Gas Drilling and Production" Ordinance. Any
bond required by the Fort Worth "Gas Drilling and Production" Ot•dinance shali stay in full
force and effect until the terms and conditions set out in the Ordinance are met.
2. If the cost of the completing the repair is an amount of $15,000 or less, as determined by
the Dit•ector• of Transportation and Public Works, cash in the amount necessary to
complete the repairs, as determined by the Director of Transportation and Public Worlcs,
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may be deposited with a banlc 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, ser•vants, agents, and
t•epresentatives 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 ot• methods by
which Operator shall perform its obligations hereunder. Operator shall furnish all equipment and
materials necessary to per•form hereunder and shall at all times be acting as an independent
Operator.
2. By entering into this Agt�eement, 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 agreeinent 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 authoi•ized to sign on behalf of the City's governing body.
ARTICLE 6.
FORCE MAJEURE
Events of For•ce Majeure shall mean any contingency ol• cause beyond the reasonable
control of a party inciuding, 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 worlc stoppages.
ARTICLE 7.
ASSIGNABILITY/CONSENT
Except as otherwise provided he1•ein, or except as may be hereafter determined by the
parties, no paj-ty to this Agreement may sell, assign, or transfer its interest in this Agreement, or any
of its right, duties, or obligations hereundei•, 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
unr•easonably withhold, delay, or deny such consent or approval. Operator may assign this
Agreement to any successor entity to whom the applicable Gas Well Per•mit has been assigned upon
written notice to the City of said assignment.
Page 7
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 peisonal deliver•y; sent by registered mail or certifed mail; or by United
States Mail, return receipt requested, postage prepaid; to:
CITY: Office of the City Manager
City of Fort Worth, Texas
1000 Throcicmorton Street
Fort Worth, Texas 76102
OPERATOR
NEAd t�Ro Ov �TtaNS ,� l�
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.
ARTICLE 9.
MODIFICATION
No waiver• ot� 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 waivet• or modification shall be offered or received in evidence in
any proceeding arising between the parties hel•eto out of or affecting this Agreement, or the rights
or obligations of the par•ties 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.
SA VINGS/SE VERABILITY
In the event that any one or more of the pr•ovisions 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 Agr•eement 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 Agr•eement shall be constr•ued 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
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shall lie in the state courts located in Tarrant County, Texas or the United States District Coui-t for
the Northern District of Texas, Fort Woj-th Division.
ARTICLE 12.
ENTIRE AGREEMENT
This Agi•eement and the exhibits attached hereto, constitute the entire agreement among the
parties hei•eto with respect to the subject mattei� hereof, and supersede any prior understandings or
written or or•al agr•eements between the parties with respect to the subject matter of this Agreement.
No amendment, modification, cancellation oi• 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 pai-ties hereto.
ARTICL� 13.
The failure of either party to enfot•ce or insist upon compliance with any of the terms oc
conditions of this Agreement shall not constitute a genet�al waiver or relinquishment of any such
terms or conditions, but the same shall be and remain at all times in full force and effect.
ARTICLE 14.
CAPTIONS
The captions contained in this Agreement are foi• infot•mational purposes only and shall not
in any way affect the substantive terms ot• conditions of this Agreement.
ARTICLE 15.
COUNTERPARTS
This Agreement may be executed in any number of countei•parts, each of which shall be
deemed an original, and constitute one and the same instrument.
WAIVER OF TERMS AND CONDITIONS
IN WITNESS WHEREOF, the ,pai-ties do hereby affix their signatures and enter into this
Agreement as of the,� day of �,��,��h�f ��_'-- , 20� �.
ATTEST:
City S
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CITY OF FORT WORTH
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Assistant City Manager
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Director of Plann
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APPROVED AS TO FORM
AND LEGALITY:
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By:
Assistant City Attorney
STATE OF TEXAS §
COUNTY OF TARRANT §
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Opet•ator
Before me, he undeisigned notary public, on this day personally
appeared �� �5�, the Assistant City Manager of the City of Fort Worth, Texas,
known to me to be the person whose name is subsccibed to the foregoing insh�ument, and
acknowledged to me that he/she executed the instrument for the purposes and consideration therein
expressed.
,. , °-Gzuen tinder rr��and and seal of office this �
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My Comm;ss��.un cxp.�es s
�'.9�Ppcif.�.`` �U�Y ��r 2��7��
STATE OF ( �
COUNTY OF -t- §
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Notary Pub
IELINDA PAIGE MATHIS
NOtory Puielic, State of Texas
My Cammission Expires
July 09, 2011
Before me, the under•signed authority, a Notaiy Public in and for tiTe-State of Texas, on this
day personally appeared 57 E P HE�'v R, �Yl po 2l= , known to me to be the person
whose name i subscribed to the foregoing instrument, and acknowledged to me that the same was
the act of ��W}i�0 �/�Dl�uett�t� �p (the cor•poration) and that he executed the same
as the act of said i�%1GC,J!¢&�10 �/100d�TZ�s, �P (coi•poration) for the purposes and
consideration therein expressed and in the capacity therein stated.
Given under my hand and seal of office this � day of (,� 'E' , 20�
N otaiy
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