HomeMy WebLinkAboutContract 40739 CITY SECRETARY
CONTRACT NO,,--q
PUBLIC RIGHT-OF-WAY USE AGREEMENT
(Saltwater Pipeline)
This PUBLIC RIGHT-OF-WAY USE AGREEMENT ("Agreement") is hereby made
and entered into by and between the CITY OF FORT WORTH, a home rule municipal
corporation organized under the laws of the State of Texas and acting by and through Fernando
Costa, its duly authorized Assistant City Manager, and QUICKSILVER RESOURCES INC., a
Delaware corporation, acting by and through Don Cotten, Manager of Right-of-Way and as
Attorney-in-Fact.
The following statements are true and correct and constitute the basis upon which the
City of Fort Worth has executed Agreement.
A. Quicksilver Resources Inc., a Delaware corporation ("Company") wishes to
construct a pipeline for the transportation of saltwater within certain Public Rights-of-Way.
Because Company is not a public utility, as that term is used in the City Charter and City Code,
and because Company will not be providing services to end user customers in the City, Company
is not required to obtain a franchise from the City,, but is required to obtain the City's consent
pursuant to a license agreement that sets forth the terms and conditions under which Company
may use the Public Right-of-Way.
B. The City has reviewed Company's request and agrees to grant Company a license
to use certain Public Rights-of-Way in order to construct, operate and maintain a pipeline, on the
terms and conditions set forth herein, solely for the transportation of saltwater and solely in
accordance with the terms and conditions of this Agreement.
Agreement
1. DEFINITIONS.
Capitalized terms used in this Agreement and not otherwise defined within this
Agreement shall have the following meanings:
Affiliate shall mean any individual, partnership, association,joint stock 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 (1) the construction, installation, maintenance and repair of
Company's Pipeline; (ii) the use of such Pipeline for t o tra nsp fion--k,)f
A L, R E'Cll'
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saltwater; and (111) any other directly related uses of the Public Rights-of-Way,
pursuant to and in accordance with this Agreement.
Company shall mean Quicksilver Resources Inc. only and shall not include any Affiliate
or third party.
City shall mean the area within the corporate limits of the City of Fort Worth, Texas and
the governing body of the City of Fort Worth, Texas.
Commission shall mean the Railroad Commission of the State of Texas or other
authority succeeding to the regulatory powers of the Commission.
Customer shall mean any Person located, in whole or in part, within the City.
Director shall mean the Director of the City's Department of Transportation/Public
Works or authorized representative.
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 nights-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.
Saltwater shall rnean materials to be disposed of or reclaimed which have been
generated in connection with activities associated with the exploration,
development and production of oil or gas or geothermal resources, as those
activities are defined in the Texas Administrative Code, Title 16, Section
3.8(a)(30), and materials to be disposed of or reclaimed which have been
generated in connection with activities associated with the solution mining of
brine. "Saltwater" includes, but is not limited to, saltwater, other mineralized
water, sludge, spent drilling fluids, cuttings, waste oil, spent completion fluids,
and other liquid, semiliquid or solid waste material. "Saltwater" also includes
waste generated in connection with activities associated with gasoline plants,
natural gas or natural gas liquids processing plants, pressure maintenance plants
or repress uri zing plants unless that waste is a hazardous waste as defined by the
administrator of the United States Environmental Protection Agency pursuant to
the federal Solid Waste Disposal Act, as amended (42 United States Code § 6901,
et seq.).
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2. GRANT OF RIGHTS.
2.1. General Use of Public Rights-of-Way for Transportation of water from
Production Wells.
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 Saltwater through the portions of its Pipeline in, over, under, along
and across the Public Rights-of-Way in accordance with Section 15-47 of the City Code,
as may be amended. Company hereby acknowledges and agrees that this Agreement
allows only the transportation of Saltwater through the City and does not allow Company
to distribute, sell or otherwise provide Saltwater to any Customer.
2.2. Nonexclusive.
This Agreement and all rights granted to Company herein are strictly
nonexclusive. The City reserves the right to grant other and future licenses and other
authorizations for use of the Public Rights-of-Way to other Persons and entities in
accordance with applicable law and as the City deems appropriate; provided, however,
that as to the grant of subsequent licenses for use of the same Public Rights-of-Way that
are solely within the discretion of the City, if a dispute arises as to priority of the use of
the Public Rights-of-Way, the City will resolve such dispute in a manner that does not
result in unreasonable interference with Company's operation of the Pipeline for the
purposes provided for herein. This Agreement does not establish any priority for the use
of the Public Rights-of-Way by Company or by any present or future licensees or other
permit holders. In the event of any dispute as to the priority of use of the Public Rights-
of-Way, the first priority shall be to the public generally, the second priority to the City in
the performance of its various functions, and thereafter, as between licensees and other
permit holders, as determined by the City in the exercise of its powers, including the
police power and other powers reserved to and conferred on it by the State of Texas.
2.3. Other Permits.
This Agreement does not relieve Company of any obligation to obtain permits,
licenses and other approvals from the City or other regulatory agency necessary for the
construction, installation, maintenance or repair of Company's Pipeline or the
transportation of Saltwater through such Pipeline.
2.4. 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
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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.
3. TERM
This Agreement shall become effective on the date as of which both parties have
executed it ("Effective Date") and shall expire at 11:59 P.M. CST on August 31, 2035
("Expiration Date") unless terminated earlier as provided herein.
4. FEES AND PAYMENTS TO CITY.
4.1. Right-of-Way Use Fee.
On or prior to the Effective Date, Company shall pay the City as compensation
for its use of the Public Rights-of-Way for the Term of this Agreement the sum of
Twenty Eight Thousand Fifty Dollars ($25,050.00) ("License Fee"). Company hereby
acknowledges and agrees that the amount of this License Fee constitutes just and
reasonable compensation to the City for Company's use of the Public Rights-of-Way as
provided by this Agreement.
4.2. Other Payments.
In addition to the License Fee, Company shall pay the City all sums which may be
due the City for property taxes, license fees, permit fees, or other taxes, charges or fees
that the City may from time to time impose on all other similarly situated entities within
the City. Company shall reimburse the City for publication of this Agreement as required
by the City's Charter.
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4.3. Interest.
All sums not paid when clue 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.
5. 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.
6. USE OF PUBLIC RIGHTS-OF-WAY.
6.1. Compliance with Laws, Ordinances, Rules and Regulations.
The City has the right to control and regulate the use of the Public Rights-of-Way,
public places and other City-owned property and the spaces above and beneath them.
Company shall comply with all applicable laws, ordinances, rules and regulations,
including, but not limited to, City ordinances, rules and policies related to construction
permits, construction bonds, permissible hours of construction, operations during peak
traffic hours, barricading requirements and any other construction rules or regulations
that may be promulgated from time to time.
6.2. No Undue Burden.
The Pipeline shall not be erected, installed, constructed, repaired, replaced or-
maintained in any manner that places an undue burden on the present or future use of the
Public Rights-of-Way by the City and the public. If the City reasonably detennines that
the Pipeline does place an undue burden on any portion of the Public Rights-of-Way,
Company, at Company's sole cost and expense and within a reasonable time period
specified by the City, shall modify the Pipeline or take other actions determined by the
City to be in the public interest to remove or alleviate the burden.
6.3. Mininial 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
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the Public Rights-of-Way, Company shall, except for work required to address an
emergency, provide at least twenty-four (24) hours' advance written notice to the owners
of property adjacent to the Public Rights-of-Way that will be affected. In the case of
emergencies Company shall provide notice to the affected landowners within twenty-four
(24) hours after commencement of work. In addition, during any such work, Company
shall provide construction and maintenance signs and sufficient barricades at work sites
to protect the public. The use of such traffic control devices shall be consistent with the
standards and provisions of Part VI of the Texas Manual on Uniform Traffic Control
Devices. Company shall utilize appropriate warning lights at all construction and
maintenance sites where one or more traffic lanes are closed or obstructed during
nighttime conditions.
6.4. "As-Built" Plans and
Company, at Company's sole cost and expense, shall provide the City with as-
built plans of all portions of the Pipeline located in the City and the City's extraterritorial
jurisdiction and maps showing such Pipeline within ninety (90) calendar days following
the completion of such Pipeline. Company shall supply the textual documentation of
such as-built plans and maps in computer format as requested in writing by the City and
shall otherwise fully cooperate with the City in ensuring that the Pipeline is accurately
reflected in the City's mapping system.
6.5. Marking of Pipeline.
The Pipeline shall be marked, in a manner that is acceptable to the Director, to
show conspicuously Company's name and a toll-free telephone number of Company that
a Person may call for assistance.
6.6. Pavement Cut Coordination and Additional Fees.
The City shall have the right to coordinate all excavation work in the Public
Rights-of-Way in a manner that is consistent with and convenient for the implementation
of the City's program for street construction, rebuilding, resurfacing and repair. In order
to preserve the integrity of the Public Rights-of-Way, Company shall not cut, excavate or
otherwise breach or damage the surface of any paved Public Right-of-Way within ninety-
six (96) months following the construction or resurfacing of such Public Right-of-Way
unless (i) Company obtains written consent from the Director and (11) 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 SLIM of (a) $1,500 for any cut, excavation or breach occurring
between August 3, 2010 and August 31, 2015; (b) $1,800 for any cut, excavation or
breach occurring between September 1, 2015 and August 31, 2020; (c) $2,150 for any
cut, excavation or breach occurring between September 1, 2020 and August 31, 2025;
and (d) $2,600 for any cut, excavation or breach occurring between September 1, 2025
and August 31, 2035. Such fee shall (i) be in addition to, and not in lieu of, Company's
obligations to restore the Public Rights-of-Way in accordance with this Agreement and
(ii) not be allocated or otherwise counted as part of the License Fee to the City..
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6.7. Restoration of Public Rights-of-Way and Property.
Company, at Company's sole cost and expense, and in a manner approved by the
City, shall promptly restore any portion of the Public Rights-of-Way, City-owned
property or other privately-owned property that are in any way disturbed or damaged by
the construction, operation, maintenance or removal of any of the Pipeline to, at
Company's option, as good or better a condition as such property was in immediately
prior to the disturbance or damage. Company shall diligently commence such restoration
within thirty (30) calendar days following the date that Company first became aware of
the disturbance or damage or, if the Pipeline is being removed, within thirty (30) calendar
days following such removal.
6.8. Relocation of Pipeline.
Within forty-five (45) calendar days following a written request by the City,
Company, at Company's sole cost and expense, shall protect, support, disconnect or
remove from the Public Rights-of-Way all or any portion of its Pipeline due to street or
other public excavation, construction, repair, grading, regrading or traffic conditions; the
installation of sewers, drains, water pipes or municipally-owned facilities of any kind; the
vacation, construction or relocation of streets or any other type of structure or
improvement of a public agency; any public work; or any other type of improvement
necessary, in the City's sole discretion, for the public health, safety or welfare. If
Company reasonably requires more than forty-five (45) days to comply with the City's
written request, it shall notify the director of the City's Department of
Transportation/Public Works in writing and the City will work in good faith with
Company to negotiate a workable time frame.
6.9. Emergencies.
6.9.1. Work by the City.
For purposes of this Section 6.9.1, a public emergency shall be any
condition which, in the opinion of the officials specified herein, poses an
immediate threat to life, health or property and is caused by any natural or man-
made disaster, including, but not limited to, storms, floods, fires, accidents,
explosion, water main breaks and hazardous materials spills. In the event of a
public emergency, the City shall have the right to take whatever action is deemed
appropriate by the City Manager, Mayor, Police Chief or Fire Chief, or their
authorized representatives, including, but not limited to, action that may result in
damage to the Pipeline, and Company hereby (i) releases the City, its officers,
agents, servants, employees and subcontractors from liability or responsibility for
any Damages, as defined in Section 7.1, that may occur to the Pipeline or that
Company may otherwise incur as a result of such a response, and (ii) agrees that
Company, at Company's sole cost and expense, shall be responsible for the repair,
relocation or reconstruction of all or any of its Pipeline that is affected by such
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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.
69.2. Work by or on Behalf of Company.
In the event of an emergency directly that involves that portion of the
Pipeline located in the Public Rights-of-Way and necessitates immediate
emergency response work on or repairs, Company may initiate the emergency
response work or repairs or take any action required under the circumstances
provided that Company notifies the City as promptly as possible. After the
emergency has passed, Company shall apply for and obtain a construction permit
from the director of the City's Department of Transportation/Public Works and
otherwise fully comply with the requirements of this Agreement.
6.10. Removal of Pipeline.
Upon the revocation, termination or expiration without extension or renewal of
this Agreement, Company's night to use the Public Rights-of-Way under this Agreement
shall cease and Company shall immediately discontinue the transportation of Saltwater 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 (Hi) take any and all legal action necessary to compel
Company to remove such property; provided, however, that Company may not abandon
its facilities or discontinue its services within the City without the approval of the
Commission or successor agency or any other regulatory authority with such jurisdiction.
Within six (6) months following revocation, termination or expiration of this
Agreement and in accordance with Section 6.7 of this Agreement, Company shall also
restore any property, public or private, that is disturbed or damaged by removal (or, if
consented to by the City, capping) of the Pipeline. If Company has not restored all such
property within this time, the City, at the City's sole option, may perform or have
performed any necessary restoration work, in which case Company shall immediately
reimburse the City for any and all costs incurred in performing or having performed such
restoration work.
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7. LIABILITY AND INDEMNIFICATION.
7.1. Liability of Company.
Company shall be liable and responsible for any and all damages, losses,
liabilities (joint or several), payments, obligations, penalties, claims, litigation, demands,
defenses, judgments, lawsuits, proceedings, costs, disbursements or expenses (including,
without limitation, fees, disbursements and reasonable expenses of attorneys, accountants
and other professional advisors and of expert witnesses and costs of investigation and
preparation) of any kind or nature whatsoever (collectively "Damages"), which may
arise out of or be in any way connected with (i) the construction, installation, operation,
maintenance or condition of the Pipeline or any related facilities or appurtenances; (ii) the
transportation of Saltwater through the Pipeline; (iii) any claim or lien arising out of
work, labor, materials or supplies provided or supplied to Company, its contractors or
subcontractors; or (iv) Company's failure to comply with any federal, state or local law,
ordinance, rule or regulation, except to the extent directly caused by the negligent or
grossly negligent act(s) or omission(s) or intentional misconduct of the City.
7.2. Indemnification.
COMPANY, AT COMPANY'S SOLE COST AND EXPENSE, SHALL
INDEMNIFY AND HOLD HARMLESS THE CITY, ITS OFFICERS, BOARDS,
COMMISSIONS, AGENTS, EMPLOYEES AND VOLUNTEERS
("INDEMNITEES"), FROM AND AGAINST ANY AND ALL DAMAGES
(INCLUDING, WITHOUT LIMITATION, THOSE FOR PROPERTY DAMA GEA ND
PERSONAL INJUR Y, INCL UDING DEA TH) WHICH MA Y ARISE O UT OF OR BE
IN ANY WAY CONNECTED WITH (1) THE CONSTRUCTION, INSTALLATION,
OPERATION, MAINTENANCE OR CONDITION OF THE PIPELINE OR ANY
RELATED FACILITIES OR APPURTENANCES; (II) THE TRANSPORTATION
OF SALTWATER 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
(I1) 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
ACTS) OR OMISSION(S) OR INTENTIONAL MISCONDUCT OF THE CITY.
7.3. Assumption of Risk.
Company hereby undertakes and assumes, for and on behalf of Company, its
officers, agents, contractors, subcontractors, agents and employees, all risk of dangerous
conditions, if any, on or about any City-owned or City-controlled property, including, but
not limited to, the Public Rights-of-Way.
7.4. Defense of Indemnitees.
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In the cvco1 any action, lawsuit or od>c, proceeding is brought against any
inderoni{ce by reason of any matter for which the Indemnitees are indemnified hereunder,
the City abaU give Company prompt v/nittcu uohuc of the making of any doino or
oonnrocncorueot of any such action, |ap/auk or other proceeding, and Company, at
Connpuo` 'm oo\c cost and expense, shall ,omimt and defend the same with reasonable
participation by the City and with legal cnuumc| 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.
0. INSURANCE.
Company shall procure and maintain at all hnoca` in full force and effect, a policy nrpolicies
of insurance to provide coverages as specified herein, naming the City ao 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 Saltwater through the Pipeline, The required
insurance can be met h«u combination ofself-inounxoce, primary and excess policies.
@'I' Primary Liability Insurance Covera2e.
• Commercial General Liability:
�1/K}0/)00 per occurrence, including coverage for the following: (i) Premises
Liability; (iD independent contractors; (Ui) prod outs/000nnlctcd operations; (1v)
personal injury; (v) contractual liability; (vi) explosion, collapse and
underground property damage.
• Property Damage Liability:
S 10,000,000 per occurrence
• Automobile Liability:
$l 000,000 per
including, but not limited to, all owned, leased, hired or onn'ovvoed motor
vehicles used in conjunction vvith thedobts granted tinder this Agreement
• z
$2`OOO"O00 per ouourreooe/$5`00O,000 excess ozuoubrel\o
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• Worker's Compensation:
As required by law, and, Employer's Liability as follows:
51,000,000 per accident.
8.2. Revisions to Required Coverage.
At the reasonable recommendation of the City's Risk Manager, the City may at any
time revise insurance coverage requirements and Ili-nits required by this Agreement.
Company agrees that within thirty (30) days of receipt of written notice from the City,
Company will implement all such revisions requested by the City. The policy or policies of
insurance shall be endorsed to provide that no material changes in coverage, including, but
not limited to, cancellation, termination, non-renewal or amendment, shall be made without
thirty (30) days' prior written notice to the City.
8.3. Underwriters and Certificates.
Company shall procure and maintain its insurance with underwriters authorized to
do business in the State of Texas and who are acceptable to the City in terms of solvency
and financial strength. Within thirty (30) days following adoption of this Agreement by the
City Council, Company shall furnish the City with certificates of insurance signed by the
respective companies as proof that it has obtained the types and amounts of insurance
coverage required herein. In addition, Company shall, on dernand, provide the City with
evidence that it has maintained such coverage in full force and effect.
8.4. Deductibles.
Deductible or self-insured retention limits on any line of coverage required herein
shall not exceed $25,000 In the annual aggregate unless the limit per occurrence, or per line
of coverage, or aggregate is otherwise approved by the City.
8.5. No Limitation of Liability.
The insurance requirements set forth in this Section 8 and any recovery by the City
of any sum by reason of any insurance policy required under this Agreement shall in no way
be construed or effected to limit or in any way affect Company's liability to the City or other
persons as provided by this Agreement or law.
9. DEFAULTS.
The occurrence at any time during the term of this Agreement of one or more of the
following events shall constitute an "Event of Default" under this Agreement:
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9.1. Failure to Pay License Fee.
An Event of Default shall occur if Company fails to pay any License Fee on or
before the respective due date.
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9.2. Breach.
An Event of Default shall occur if Company materially breaches or violates any
of the terms, covenants, representations or warranties set forth in this Agreement or fails
to perform any obligation required by this Agreement.
9.3. Bankruptcy, Insolvency or Receivership.
An Event of Default shall occur if Company (i) files a voluntary petition in
bankruptcy; (ii) is adjudicated insolvent; (111) 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) falls to pay Company's debts generally as
they become due.
9.4. Violations of the Law.
An Event of Default shall occur if Company violates any existing or future federal,
state or local laws or any existing or future ordinances, rules and regulations of the City.
10. UNCURED DEFAULTS AND REMEDIES.
10.1. Notice of Default and Opportunity to Cure.
If all Event of Default occurs on account of Company's failure to pay the License
Fee in accordance with Section 9.1, such Event of Default shall be deemed an Uncured
Default and the City shall have the right to terminate this Agreement immediately upon
provision of written notice to Company. If an Event of Default occurs for a reason other
than for failure to pay the License Fee, the City shall provide Company with written
notice and shall give Company the opportunity to cure such Event of Default. For all
Event of Default which can be cured by the immediate payment of money to the City,
Company shall have thirty (30) days from the date it receives written notice from the City
to cure the Event of Default. For any other Event of Default, Company shall have sixty
(60) days from the date it receives written notice from the City to cure the Event of
Default. If any Event of Default is not cured within the time period specified herein, such
Event of Default shall, without further notice from the City, become an "Uncured
Default" and the City immediately may exercise the remedies provided in Section 10.2.
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10.2. Remedies for Uncured Defaults.
Upon the occurrence ofoo Uncured Default, the City shall be entitled to exercise,
at the same time or at different tirnes, 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:
l0'%.l. Termination of Agreement.
[Jyou the occurrence ofuo Uncured [)cfau|L 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 liohi|ihcS as of the date of b:ooiva1iou, this Agreement Sho}[
automatically bedconed null and void and shall have no further force oceffect.
Company shall remain obligated to pay and the City obnl} retain the right to
receive License Fees and any other payments due up to the do\c of termination.
Company shall remove the Pipeline from and restore the Public Rights-of-Way as
and when roqooe1oj by the City. The City's dobt to toonioa{c this /\gTnenoeut
under this Section 10.7.1 shall does not and oba|| not he o0o81rucU \0 constitute
any kind of limitation on the City's fight to terminate this f\gzccnoeot 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 in prohibited at the time by applicable federal
or state |nvv or regulation.
lO'2.2 Legal Action A2ainst Company.
[/pno the occurrence of an Uncured Default, the City may cororococc
against C0rnpuoy 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, amo matter of equity, are specifically enforceable.
ll. PROVISION OF INFORMATION.
11.1. Filings with the Commission.
Company shall provide copies to the City ofall d0coroeoto which Company files
with or sends to the [ornnoioaion concerning or related 10 the Pipeline and [onoyooy`m
other So|tvvatec pipeline operations in the City, including, but not limited to, filings
related to (i) rules, regulations and policies requested, Linder consideration or approved by
the Commission, and (11) applications and any supporting pre-filed testimony and exhibits
filed bv Company orthird parties on behalf ofCompany, on the same date as such filings
are made with the Commission. In addition, Company shall provide the City with copies
of records, d0connruts and other filings that Company iSrequired to maintain or supply hn
the Commission under any applicable state orfederal law, rule orregulation.
Quicksilver Resources Inc. Nght-of-Yvu' Use Agreement
Page 14 of|9
11.2. Lawsuits.
Company shall provide the City with copies of all pleadings in all lawsuits to
which Company is a party and that pertain to the granting of this Agreement and/or the
transportation of Saltwater through the City within thirty (30) days of Company's receipt
of same.
12. COMPANY AS INDEPENDENT CONTRACTOR.
It is expressly understood and agreed that Company shall operate as an independent
contractor as to all rights and privileges granted by this Agreement, and not as an agent,
representative or employee of the City. Company shall have the exclusive right to control the
details of its business and other operations necessary or appurtenant to the transportation of
Saltwater 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 responcleatsuperior shall not apply as
between the City and Company, its officers, agents, employees, contractors and subcontractors.
Company further agrees that nothing herein shall be construed as the creation of a partnership or
Joint enterprise between the City and Company.
13. ASSIGNMENT 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.
14. NOTICES.
Notices required pursuant to the provisions of this Agreement shall be conclusively
determined to have been delivered when (i) hand-delivered to the other party, its agents, employees,
servants or representatives, or (ii) received by the other party by United States Mail, postage
prepaid, return receipt requested, addressed as follows:
To THE CITY: To COMPANY:
City of Fort Worth Quicksilver Resources
Attn: Public Utilities Supervisor Jeff Cook, Executive V.P.
1000 Throckmorton 777 West Rosedale St.
Fort Worth, TX 76102 Fort Worth, TX 76104
Quicksilver Resources Inc. Right-of-Way Use Agreement
Page 15 of 19
with a copy to:
City of Fort Worth
Department of Law
Attn: Attorney for Utilities
1000 Throckmorton
Fort Worth, TX 76102
15. NON-DISCRIMINATION COVENANT.
Company shall not discriminate against any person on the basis of race, color, national
origin, religion, handicap, sex, sexual orientation or familial status in the receipt of benefits from
Company's business operations, in any opportunities for employment with Company or in the
construction or installation of the Pipeline.
16. NO WAIVER.
The failure of the City to insist upon the performance of any term or provision of this
Agreement or to exercise any rights that the City may have, either under this Agreement or the law,
shall not constitute a waiver of the City's right to insist upon appropriate performance or to assert
any such right on any future occasion.
17. GOVERNING LAW AND VENLIE.
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 Saltwater 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, Foil Worth Division.
18. CONFERENCES.
At the request of either the City or Company, the City and Company shall meet at
reasonable times and upon reasonable notice to discuss any aspect of this Agreement, Company's
Pipeline, Company's operations in the City, Company's transportation of Saltwater or Company's
use of Public Rights-of-Way.
Quicksilver Resources Me. Right-of-Way Use Agreement
Page 16 of 19
1.9.
If any provision of this Agreement is held 10 be invalid, illegal or unenforceable by y final
order eoKzcd by a court of competent jurisdiction, the validity, legality and enforceability of the
remaining provisions shall not io any way 6e affected nrimpaired, 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, vvi1boot limitation all available appeals, have been exhausted. In such an
event, the City arid Company agree that they shall ao)cud or have a000udcd this Agreement to
comply with such final order entered byu court ofcnonpc1ootjurisdic1i0u.
%A. FORCE MAJEURE.
In the event Company's performance of any of the terros, conditions or obligations required
by this Agreement is prevented by cause orevent that is not within COnoVao»'s reasonable control,
Company's nou-perfonnuooc shall be deemed excused for the period of such inability. Cuouca or
events that are riot within the Company's control shall include, but not be limited to, acts of God,
abnkco, sabotage, riots Or civil disturbances, failure or lnea of utilities, explosions and natural
disasters.
%l. HEADINGS NOT CONTROLLING.
Headings and <iHcm, other than those captions in Section \, that are used in this Agreement
are for reference purposes only and shall not be deemed upart of this Agreement.
%%. 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 O,ul or vvdttou
ugrecrucot is hereby declared null and void to the extent in conflict with the tczn`s and conditions of
this Agreement. This Agreement sha\l not be amended unless agreed to in writing 6y both parties
and approved by the City Council of the City.
EXECUTED as of the later date below:
Quicksilver Resources Inc. Right-of-Way Use Agreement
Page 17 of|9
CITY OF FORT WORTH: QUICKSILVER RESOURCES INC., a
Delaware co """"Oration
By: .._ By: .�
Fernando Costa Don otten, 11
anager of Right-of-Way and
Assistant City Manager Attorney-in-Fact
Date: ��, �" Date:
APPROVED AS TO FORM AND LEGALITY:
Peter Vaky
Assistant City Attorney
M&C: C-24376 August 3, 2010
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Quicksilver Resources Inc. Right-of-Way Use Agreement
r
Page IS of 19
EXHIBIT 44A"
Company may only use the following portions of the Public Rights-of-Way in the City:
• Approximately 600 feet Along Westport Parkway approximately 93 feet west of 1-35W to
approximately 507 feet east of 1-35W.
Quicksilver Resources Inc. Right-of-Way Use Agreement
Page 19 of 19
Page I of 2
City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 8/3/2010
DATE: Tuesday, August 03, 2010 REFERENCE NO.: C-24376
LOG NAME: 06ALLIANCE BREWER
SUBJECT:
Authorize Execution of a Public Right-of-Way Use Agreement Granting Quicksilver Resources, a License
to Construct and Operate a Salt Water Pipeline Along Westport Parkway, East and West of 1-35W
(COUNCIL DISTRICT 2)
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to execute a Public Right-of-Way Use
Agreement with Quicksilver Resources, granting a license to construct and operate a salt water pipeline
along Westport Parkway, East and West of 1-35W, for a one time License Fee of$28,050.00.
DISCUSSION:
Quicksilver Resources is constructing a 12-inch salt water pipeline to transport water from gas well sites in
Fort Worth. With the exception of the Westport Parkway crossing, the pipeline will be located in private
easements. The approximate location of the line is shown on the attached map.
The Transportation and Public Works Department has reviewed the proposed pipeline route and has no
objections. The pipeline on either side of the crossing is not running through residentially zoned and used
property.
The Public Right-of-Way Use Agreement will give Quicksilver Resources a license to use 600 feet of that
specific public right-of-way for the limited purpose of operating a salt water pipeline for a period of 25
years. Quicksilver Resources will pay the City a one-time license fee of$28,050.00 in return for this
privilege. The company will be required to provide bonds and insurance in accordance with the City's
current standard policies. Because Quicksilver Resources is not a public utility, as that term is defined in
Chapter 28 of the City Code, a franchise governing its operations is not required by the City Charter.
This crossing is located in COUNCIL DISTRICT 2.
FISCAL INFORMATION / CERTIFICATION:
The Financial Management Services Director certifies that the Planning and Development Department is
responsible for the collection and deposit of funds due to the City.
FUND CENTERS:
TO Fund/Account/Centers FROM Fund/Account/Centers
GG01 421502 0062040 $28,050.00
CERTIFICATIONS:
Submitted for City Manager's Office by: Fernando Costa (6122)
Oriinating Department Susan Alanis (8180)
http://apps.cfwnet.org/ecounciI/printmc.asp?ld=13914&print=true&DocType=Print 08/05/2010
Page 2of2
Additional Information Contact: Rick Trice (7950)
ATTACHMENTS
1. (CFVV |nbenna|)
l ExnubizlJpQ (Public)
http://apps.cfwnet.org/ecounciI/printi-nc.asp?id=I 3914&print--true&DocType=Pn*nt 08/05/2010