HomeMy WebLinkAboutContract 42481 t
}. CITY SECRETARY
CONTRACT NO.
PUBLIC RIGHT-OF-WAY USE AGREEMENT
This PUBLIC RIGHT-OF-WAY USE AGREEMENT ("Agreement") is hereby made
and entered into by and between the CITY OF FORT 'NORTH, a home rule municipal
corporation organized under the laws of the State of Texas and actin g y an row b d through Fernando
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Costa, its duly authorized Assistant City Manager, and TEXAS MIDSTREAM GAS
SERVICES, L.L.C., an Oklahoma limited liability company, acting by and through Greg
F to erke, Area Manager.
The following statements are true and correct and constitute the basis upon which the
City of Fort Worth has executed Agreement.
A. TEXAS MIDSTREAM GAS SERVICES, L.L.C., an Oklahoma limited liability
company, ("Company") wishes to construct a pipeline for the transportation of natural as
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within certain Public Rights-of-Way. Because Company is not a public utility, that term is
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used in the City Charter and City Code, and because Company will not be rovidin services to
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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 rant Company a license
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to use certain Public Rights-of-Way in order to construct, operate and maintain a p i p eline on the
terms and conditions set forth herein, solely for the transportation of natural as and solely in
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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 entit y who owns or
controls, or is owned or controlled by, or is under common ownershi p or control
with, the entity in question.
Agreement shall mean the authorization issued to Company hereunder to use the Public
Rights-of-Way for (i) the construction, installation, maintenance and repair of
Company's Pipeline; (ii) the use of such Pipeline for the Gas;
transportation of G
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and (iii) any other directly related uses of the Public Right - -
and in accordance with this Agreement. OFFICIAL 1
I'exas Midstream Gas Services, I_.I..C`. Right-of'Wa` [1sc Agreement
CITY SECRETARY
Cnnatser FT'. ` ORTII
Page l of'18 � ��
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Company shall mean Texas Midstream Gas Services, L.L.C., an Oklahoma limited
liability company, only and shall not include any Affiliate or third
ply-
City shall mean the area within the corporate limits of the City f Fort Worth,, and
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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 Trans ortation/Public
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Works or authorized representative.
Gas shall mean gaseous fuels such as natural gas, artificial as as, synthetic liquefied
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natural gas,manufactured gas, or any mixture thereof.
Person shall mean, without limitation, an individual, a corporation, a limited liability
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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 b y 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 ublic streets highways, alle
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and rights-of-way in the City identified in Exhibit "A" of this Agreement,
attached hereto and hereby made a part of this Agreement for all purp oses.
2. GRANT OF RIGHTS.
2.1. General Use of Public Riahts-of-Way for Provision of Gas.
Subject to the terms and conditions set forth in this Agreement and the City
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Charter and ordinances, the City hereby grants Company a license to i erect construct
install and maintain its Pipeline in, over, under, along and across the Public Rights-of-
Way and (ii) transport Gas through the portions of its Pipeline in, over, under, along and
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across the Public Rights-of-Way. Company hereby g
acknowledges and agrees that this
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Agreement allows only the transportation of Gas through the City and does not allow
Company to distribute, sell or otherwise provide Gas to an y Customer.
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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 lave and as the City deems appropriate; rovided, however,
,
that as to the grant of subsequent licenses for use of the same Public Rights-of-Way that
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s solely within the discretion of the City, if a dispute arises as to priori 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 p oses
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 p ermit
holders. In the event of any dispute as to the priority of use of the Public Rights-of-Way,
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the first priority shall be to the public generally, the second tY to riori the City in the
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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, includin g 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 p ermits
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licenses and other approvals from the City or other regulatory agency for the
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construction, installation, maintenance or repair of Company's Pipeline or the
transportation of Gas through such Pipeline.
2.4. Bonds.
Prior to the commencement of any construction work in the Public Rights-of-Way
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in the City that requires a cut, opening or other excavation, Company shall deliver to the
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City bonds executed by a corporate surety authorized to do business in the State of Texas
and acceptable to the City in the proportional amount of the cost of work under the
construction contract or construction project that will be performed in the Public Rights-
of-Way. The bonds shall guarantee (i) satisfactory compliance by Company Com an with all
requirements, terms and conditions of this Agreement and (ii) full p a Y ments 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 p erformance 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
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performance of that contract. Such bonds shall name both the City and Company as dual
obligees.
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3. TERM
This Agreement shall become effective on the date as of which both p arties have
executed it ("Effective Date") and shall expire at 11:59 P.M. CST on October 31, 2036 unless
terminated earlier as provided herein.
4. FEES AND PAYMENTS To CITY.
4.1. Rhiht-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 Five
Thousand Six Hundred Seventy Dollars ($5,670.00) ("License Fee"). Company hereby
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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
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due the City for property taxes, license fees, permit fees, or other taxes, charges or fees
that the City may from time to time impose on all other similarly situated entities within
the City. Company shall reimburse the City for publication of this Agreement as required
by the City's Charter.
4.3. Interest.
All sums not paid when due shall bear interest at the rate of ten percent (10%)per
annum or the maximum amount allowed by law, whichever is less, computed monthly. If
such outstanding sums are paid with interest within thirty (3 0) days followin g 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.
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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.
5. USE OF PUBLIC RIGHTS--OF--WAY,
5.1. Com liance 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.
5.2. No Undue Burden.
The Pipeline shall not be erected, installed, constructed, repaired, replaced or
maintained in any manner that places an undue burden on the present or future use of the
Public Rights-of-Way by the City and the public. If the City reasonably determines that
the Pipeline does place an undue burden on any portion of the Public Rights-of-Way,
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Company, at Company's sole cost and expense and within a reasonable time period
specified by the City, shall modify the Pipeline or tame other actions determined by the
City to be in the public interest to remove or alleviate the burden.
5.3. Minimal Interference.
Prior to the undertaking of any kind of construction, installation, maintenance,
repairs or other work that requires the excavation, lane closure or other physical use of
the Public Rights--of-Way, Company shall, except for work required to address an
emergency, provide at least twenty-four (24) hours' advance written notice to the owners
of property adjacent to the Public Rights--of-Way that will be affected. In the case of
emergencies Company shall provide notice to the affected landowners within twenty-four
(24) hours after commencement of work. In addition, during any such work, Company
shall provide construction and maintenance signs and sufficient barricades at work sites
to protect the public. The use of such traffic control devices shall be consistent with the
standards and provisions of Part VI of the Texas Manual on Uniform Traffic Control
Devices. Company shall utilize appropriate warning lights at all construction and
maintenance sites where one or more traffic lanes are closed or obstructed during
nighttime conditions.
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6.4. "As-Built" Plans and Maps.
Company, at Company's sole cost and expense, shall provide the City with as-
built plans of all portions of the Pipeline located in the City and the City's extraterritorial
jurisdiction and maps showing such Pipeline within ninety (90) calendar days following
the completion of such Pipeline. Company shall supply the textual documentation of such
as-built plans and maps in computer format as requested in writing by the City and shall
otherwise fully cooperate with the City in ensuring that the Pipeline is accurately
reflected in the City's mapping system.
6.5. Markin of Pipeline.
The Pipeline shall be marked, in a manner that is acceptable to the Director, to
show conspicuously Company's name and a toll-free telephone number of Company that
a Person may call for assistance.
6.6. Pavement Cut Coordination and Additional Fees,
The City shall have the right to coordinate all excavation work in the Public
Rights-of-Way in a manner that is consistent with and convenient for the implementation
of the City's program for street construction, rebuilding, resurfacing and repair. In order
to preserve the integrity of the Public Rights-of-Way, Company shall not cut, excavate or
otherwise breach or damage the surface of any paved Public Right-of--Way within ninety-
six (96) months following the construction or resurfacing of such Public Right-of-Way
unless (i) Company obtains written consent from the Director and (ii) pays the City, for
each fifty (50) linear feet of a cut, excavation or breach of any Public Right-of-Way or
portion thereof, the sum of (a) $1,500 for any cut, excavation or breach occurring
between the Effective Date of October 189 2011 and October 319 2016; (b) $1,800 for any
cut, excavation or breach occurring between November 1, 2016 and October 31,2021; (c)
$2,150 for any cut, excavation or breach occurring between November 1, 2021 and
October 31, 2026; and (d) $2,600 for any cut, excavation or breach occurring between
November 1, 2026 and the Expiration Date. 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.
6.7. Restoration of Public Rights-of-Way and Prope!:!Y,
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
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the disturbance or damage or, if the Pipeline is being removed, within thirty (30) calendar
days following such removal.
5.8. 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.
5.9. 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
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.
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6.9.2. Work by or on Behalf of Company.
In the event of an emergency directly that involves that portion of the
Pipeline located in the Public Rights-of-Way and necessitates immediate
emergency response work on or repairs, Company may initiate the emergency
response work or repairs or take any action required under the circumstances
provided that Company notifies the City as promptly as possible. After the
emergency has passed, Company shall apply for and obtain a construction permit
from the director of the City's Department of Transportation/Public Works and
otherwise fully comply with the requirements of this Agreement.
6.10. Rem oval of Pipeline.
Upon the revocation, termination or expiration without extension or renewal of
this Agreement, Company's right to use the Public Rights-of-Way under this Agreement
shall cease and Company shall immediately discontinue the transportation of Gas in or
through the City. Within six (6) months following such revocation, termination or
expiration and if the City requests, Company, at Company's sole cost and expense, shall
remove the Pipeline from the Public Rights-of-Way (or cap the Pipeline, if consented to
by the City), in accordance with applicable laws and regulations. If Company has not
removed all of the Pipeline from the Public Rights-of-Way (or capped the Pipeline, if
consented to by the City) within six (6) months following revocation, termination or
expiration of this Agreement, the City may deem any portion of the Pipeline remaining in
the Public Rights-of-Way abandoned and, at the City's sole option, (i) take possession of
and title to such property or (ii) take any and all legal action necessary to compel
Company to remove such property; provided, however, that Company may not abandon
its facilities or discontinue its services within the City without the approval of the
Commission or successor agency or any other regulatory authority with such jurisdiction.
Within six (6) months following revocation, termination or expiration of this
Agreement and in accordance with Section 6.7 of this Agreement, Company shall also
restore any property, public or private, that is disturbed or damaged by removal (or, if
consented to by the City, capping) of the Pipeline. If Company has not restored all such
property within this time, the City, at the City's sole option, may perform or have
performed any necessary restoration work, in which case Company shall immediately
reimburse the City for any and all costs incurred in performing or having performed such
restoration work.
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7. LIABILITY AND INDEMNIFICATION.
7.1. Liabilitv of Cam an .
Company shall be liable and responsible for any and all damages, losses,
liabilities (joint or several), payments, obligations, penalties, claims, litigation, demands,
defenses,judgments, lawsuits, proceedings, costs, disbursements or expenses (including,
without limitation, fees, disbursements and reasonable expenses of attorneys, accountants
and other professional advisors and of expert witnesses and costs of investigation and
preparation) of any kind or nature whatsoever (collectively "Damages"), which may
arise out of or be in any way connected with (i) the construction, installation, operation,
maintenance or condition of the Pipeline or any related facilities or appurtenances; (11)the
transportation of Gas through the Pipeline; (iii) any claim or lien arising out of work,
labor, materials or supplies provided or supplied to Company, its contractors or
subcontractors; or (iv) Company's failure to comply with any federal, state or local law,
ordinance, rule or regulation, except to the extent directly caused by the negligent or
grossly negligent act(s) or omission(s) or intentional misconduct of the City.
7.2. Indemnification.
COMPANY, AT COMPANY'S SOLE COST AND EXPENSE, SHALL
INDEMNIFY AND HOLD HARMLESS THE CITY, ITS OFFICERS, BOARDS,
COMMISSIONS, AGENTS, EMPLOYEES AND VOLUNTEERS
("INDEMNITEES-99, FROM AND AGAINST ANY AND ALL DAMAGES
(INCLUDING, WITHOUT LIMITA TION, THOSE FOR PROPERTY l3AM4 GLAND
PERSONAL INJURY,INCLUDING DEATH) 4WICH MA Y ARISE OUT OF OR BE
IN ANY WAY CONNECTED WITH (I) THE CONSTRUCTION INS TALLA TIO11�,
OPERATION, M 4INTENANCE OR CONDITION OF THE PIPELINE OR ANY
RELATED FACILITIES OR APPURTENANCES;DANCES; (H) THE TRANS'PoR TA TION
OF GAS THR O UGH THE PIPELINE; (III) ANY CLAIM OR LIEN ARISING OUT
OF yYORK, LABOR, MATERIALS OR SUPPLIES PRO117DED OR SUPPLIED To
COMPANY, ITS CONTRACTORS OR SUBCONTRACTORS; OR (IT9 COMPANY'S
FAILURE TO COMPLY WITH ANY FEDERAL, STATE OR LOCAL LAW
ORDINANCE, RULE OR REG ULA TION, EXCEPT TO THE EXTENT DIRECTLY
CAUSED BY THE NEGLIGENT OR GROSSLY NEGLIGENT ACT(S) OR
OMISSION(S) OR INTENTIONAL MISCONDUCT OF THE CITY.
7.3. Assumption of Risk.
Company hereby undertakes and assumes, for and on behalf of Company, its
officers, agents, contractors, subcontractors, agents and employees, all risk of dangerous
conditions, if any, on or about any City--owned or City--controlled property, including, but
not limited to, the Public Rights-of-Way.
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7.4. Defense of Indemnitees.
In the event any action, lawsuit or other proceeding is brought against any
Indemnitee by reason of any matter for which the Indemnitees are indemnified hereunder
the City shall give Company prompt written notice of the making of an y claim or
commencement of any such action, lawsuit or other proceeding, and Company, at
Company's sole cost and expense, shall resist and defend the same with reasonable
participation by the City and with legal counsel selected by Company and specifically
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approved by the City. In such an event, Company shall not admit liability in any matter
on behalf of any Indemnitee without the advance written consent of the City.
8. INSURANCE.
Company shall procure and maintain at all times, in full force and effect, a policy or policies
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of insurance to provide coverages as specified herein, naming the City as an additional insured and
covering all public risks related to the use, occupancy,condition,maintenance, existence or location
of the Public Rights-of-Way and the construction, installation, operation, maintenance or condition
of the Pipeline, including the transportation of Gas through the pipeline. The required insurance can
be met by a combination of self-insurance,primary and excess policies.
8.1. lPrimary Liabili ty Insurance Covera e.
■ Commercial General Liabili :
$1,000,000 per occurrence, including coverage for the following: i Premises
Liability; (ii) independent contractors; (iii) products/completed operations; (iv)
personal mnjury; (v) contractual liability; (vi) explosion, collapse and
underground property damage.
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Property Damatze Liabili
$10,000,000 per occurrence
• Automobile Liabili :
$1,000,000 per accident,
including, but not limited to, all owned, leased, hired or non-owned motor
vehicles used in conjunction with the rights granted under this Agreement.
■ Worker's Com ensation:
As required by law; and,Employer's Liability as follows:
$1,000,000 per accident.
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8.2. Revisions to Required Coverage.
At the reasonable recommendation of the City's Risk Manager, the City may at any
time revise insurance coverage requirements and limits required by this Agreement.
Company agrees that within thirty (30) days of receipt of written notice from the City,
Company Will implement all such revisions requested by the City. The policy or policies of
insurance shall be endorsed to provide that no material changes in coverage, including, but
not limited to, cancellation, termination, non-renewal or amendment, shall be made without
thirty(3 0)days' prior written notice to the City.
8.3. Underwriters and Certificates.
Company shall procure and maintain its insurance with underwriters authorized to
do business in the State of Texas and who are acceptable to the City in terms of solvency
and financial strength. Within thirty (30) days following adoption of this Agreement by the
City Council, Company shall furnish the City with certificates of insurance signed by the
respective companies as proof that it has obtained the types and amounts of insurance
coverage required herein. In addition, Company shall, on demand, provide the City with
evidence that it has maintained such coverage in full force and effect.
8.4. Deductibles.
Deductible or self-insured retention limits on any line of coverage required herein
shall not exceed $25,000 in the annual aggregate unless the limit per occurrence, or per line
of coverage, or aggregate is otherwise approved by the City.
8.5. No Limitation of Liabili .
The insurance requirements set forth in this Section 8 and any recovery by the City
of any sum by reason of any insurance policy required under this Agreement shall in no way
be construed or effected to limit or in any way affect Company's liability to the City or other
persons as provided by this Agreement or law.
9. DEFAULTS.
The occurrence at any time during the term of this Agreement of one or more of the
following events shall constitute an "Event of Default"under this Agreement:
9.1. Failure to Pav 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. Bankru tc -Insolvency or Receive rshi .
An Event of Default shall occur if Company (i) files a voluntary petition in
bankruptcy; (ii) is adjudicated insolvent; (ill) files any petition or falls to contest any
petition filed against it seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief for itself under any laws relating to
bankruptcy, insolvency or other relief for debtors; (iv) seeks, consents to or acquiesces in
the appointment of any trustee, receiver, master, custodian or liquidator of Company, any
of Company's property or any revenues, issues, earnings or profits thereof; (v) makes an
assignment for the benefit of creditors; or (vi) fails to pay Company's debts generally as
they become due.
9.4. Violations of the Lave.
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 an 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 an
Event of Default which can be cured by the immediate payment of money to the City,
Company shall have thirty (30) days from the date it receives written notice from the City
to cure the Event of Default. For any other Event of Default, Company shall have sixty
(60) days from the date it receives written notice from the City to cure the Event of
Default. If any Event of Default is not cured within the time period specified herein, such
Event of Default shall, without further notice from the City, become an "Uncured
Default" and the City immediately may exercise the remedies provided in Section 10.2.
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10.2. Remedies for Uncured Defaults.
Upon the occurrence of an Uncured Default, the City shall be entitled to exercise,
at the same time or at different times, any of the following remedies, all of which shall be
cumulative of and without limitation to any other rights or remedies the City may have:
10.2.1. Termination of Agreement.
Upon the occurrence of an Uncured Default, the City may terminate this
Agreement. Upon such termination, Company shall forfeit all rights granted to it
under this Agreement, and, except as to Company's unperformed obligations and
existing liabilities as of the date of termination, this Agreement shall
automatically be deemed null and void and shall have no further force or effect.
Company shall remain obligated to pay and the City shall retain the right to
receive License Fees and any other payments due up to the date of termination.
Company shall remove the Pipeline from and restore the Public Rights-of-Way as
and When requested by the City. The City's right to terminate this Agreement
under this Section 1 0.2.1 shall does not and shall not be construed to constitute
any kind of limitation on the City's right to terminate this Agreement for other
reasons as provided by and in accordance with this Agreement; provided,
however, that Company may not abandon the Pipeline Without the approval of the
Commission or successor agency or other regulatory authority with jurisdiction, if
such action without such approval is prohibited at the time by applicable federal
or state law or regulation.
10.2.2 Legal Action A ainst Company.
Upon the occurrence of an Uncured Default, the City may commence
against Company an action at law for monetary damages or in equity, for
injunctive relief or specific performance of any of the provisions of this
Agreement which, as a matter of equity, are specifically enforceable.
11. PROVISION OF INFORMATION.
11.1. Fiiin s with the Commission.
Company shall provide copies to the City of all documents which Company files
With or sends to the Commission concerning or related to its transportation of Gas
through or other operations in the City, including, but not limited to, filings related to (i)
tariffs; (ii) rules, regulations and policies requested, under consideration or approved by
the Commission; and (iii) applications and any supporting pre-filed testimony and
exhibits filed by Company or third parties on behalf of Company, on the same date as
such filings are made with the Commission. In addition, Company shall provide the City
with copies of records, documents and other filings that Company is required to maintain
or supply to the Commission under any applicable state or federal lave, rule or regulation.
Texas Midstream Cias Services,L.L.C. Right-of-Way Use Agreement
Conatser
Page 13 of 18
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 Gas through the City within thirty (30) days of Company's receipt of
same.
12. COMPANY AS INDEPENDENT CONTRACTOR.
i.nrn i inu u. ir.� .nn.mn inn�n i�.w
It is expressly understood and agreed that Company shall operate as an independent
contractor as to all rights and privileges granted by this Agreement, and not as an agent,
representative or employee of the City. Company shall have the exclusive right to control the details
of its business and other operations necessary or appurtenant to the transportation of Gas in
accordance with the terms and conditions of this Agreement, and shall be solely responsible for the
acts and omissions of its officers, agents, servants, employees, contractors and subcontractors.
Company acknowledges that the doctrine of respondeat superior shall not apply as between the
City and Company, its officers, agents, employees, contractors and subcontractors. Company further
agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise
between the City and Company.
13. ASSIGNMENT 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 Texas Midstream Gas Services, L.L.C.
Public Utilities Administrator Dave Johns, Manager—Property Rights
1000 Throckmorton 100 Energy Way
Fort Worth, TX 76102 Fort Worth, TX 76102
Texas Midstream[ias Services, L.L.C. Right-of-\Val Usc Agrcement
C'onatser
Page 14 of 18
1
with a copy to: with a copy to:
City of Fort Worth Texas Midstream Gas Services,L.L.C.
Department of Law c/o CT Corporation
Attn: Attorney for Utilities 350 North St. Paul Street, Suite 2900
1000 Throckmorton Dallas, Texas 75201
Fort Worth, Tx 76102
15. NON-DISCRIMINATION COVENANT.
Company shall not discriminate against any person on the basis of race, color, national
origin, religion, handicap, sex, sexual orientation or familial status in the receipt of benefits from
Company's business operations, in any opportunities for employment with Company or in the
construction or installation of the Pipeline.
16. NO WAIVER.
The failure of the City to insist upon the performance of any term or provision of this
Agreement or to exercise any rights that the City may have, either under this Agreement or the law,
shall not constitute a waiver of the City's right to insist upon appropriate performance or to assert
any such right on any future occasion.
17. GOVERNING LAW AND VENUE.
This Agreement shall be construed pursuant to and in accordance with the laws of the
United States of America and the State of Texas. If any action, whether real or asserted, at law or in
equity, arise out of the terms of this Agreement, Company's transportation of Gas or Company's use
of the Public Rights-of-Way, venue for such action shall lie exclusively in state courts located in
Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort
Worth Division.
18. CONFERENCES.
At the request of either the City or Company, the City and Company shall meet at
reasonable times and upon reasonable notice to discuss any aspect of this Agreement, Company's
Pipeline, Company's operations in the City, Company's transportation of Gas or Company's use of
Public Rights-of-Way.
Texas Midstream Gas Services,L.L.C. Right-of-Way Use Agreement
Conatser
Page 15 of 18
k
19. SE VERABILITY.
If any provision of this Agreement is held to be invalid, illegal or unenforceable by a final
order entered by a court of competent jurisdiction, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired. For purposes of this Agreement,
a court order shall be final only to the extent that all available legal rights and remedies pertaining to
such order, including, without limitation all available appeals, have been exhausted. In such an
event, the City and Company agree that they shall amend or have amended this Agreement to
comply with such final order entered by a court of competent jurisdiction.
20. FORCE MAJEURE.
In the event Company's performance of any of the terms, conditions or obligations required
by this Agreement is prevented by a cause or event that is not within Company's reasonable control,
Company's non-performance shall be deemed excused for the period of such inability. Causes or
events that are not within the Company's control shall include, but not be limited to, acts of Cod,
strikes, sabotage, riots or civil disturbances, failure or loss of utilities, explosions and natural
disasters.
21. HEADINGS NOT CONTROLLING.
Headings and titles, other than those captions in Section 1, that are used in this Agreement
are for reference purposes only and shall not be deemed a part of this Agreement.
Texas Midstream[ias Services,L.L.C. Right-of-Way Use Agreement
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Page 16 of 18
22. ENTIRETY OF AGREEMENT.
This Agreement, including the schedule of exhibits attached hereto and any documents
incorporated herein by reference, contains the entire understanding and agreement between the City
and Company as to the matters contained herein.. Any prior or contemporaneous oral or Written
agreement is hereby declared null and void to the extent in conflict with the terms and conditions of
this Agreement. This Agreement shall not be amended unless agreed to in Writing by both parties
and approved by the City Council of the City.
EXECUTED as of the later date below:
CITY OF FORT NORTH TEXAS MIDSTREAM GAS SERVICES,L.L.C.
B . on -11-04 1�u0000
Greg Flo e
By: Area Manager
Fernando Costa
Assistant City Manager Date: �� f
Date:
01 e
APPROVED AS TO FORM AND LEGALITY:
.Attested by:
By:
C('� ManY.
155—I Handri y City Attorney Secre F �
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M&C. C �� October 18 2011 4
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OFFICIAL RECORD
CITY SECRETARY
Texas Midstream Gas Services,L.L.C. Right-of-Way Use Agreement FT, WORTH, Tx
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Page 17 of 18
EXHMIT "A"
Company may only use the following portions of the Public Rights-of-Way in the City:
• Approximately 120 feet across Joe B Rushing Road, 21 feet West of Wichita Street.
Texas Midstream Gas Services,L.L.C. Right-of-Way Use Agreement
Page 18 of 18
M&C - Council Agenda Page 1 of 2
City of Fort Worth, Texas
a 0 a
Mayor are
Council
Communication
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COUNCIL ACTION: Approved on 10/18/2011
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DATE: Tuesday, October 18, 2011 REFERENCE NO.: C-25231
LOG NAME: 06204OTMGS CONATSER
SUBJECT:
Authorize Execution of a Public Right-of-Way Use Agreement Granting Texas Midstream Gas Services,
L.L.C., a License to Construct and Operate a Natural Gas Gathering Pipeline Across Joe B. Rushing Road
(COUNCIL DISTRICT 8)
RECOMMENDATION:
It is recommended that the City Council authorize the execution of a Public Right-of-Way Use Agreement
with Texas Midstream Gas Services, L.L.C., granting a license to construct and operate a natural gas
gathering pipeline across Joe B. Rushing Road, west of Wichita Street, for a one-time license fee of
$5,570.00.
DISCUSSION:
Texas Midstream Gas Services, L.L.C., is constructing an eight-inch pipeline to connect natural gas wells
in Fort Worth. With the exception of the pipeline across Joe B. Rushing Road, 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 will route through residentially zoned and used property. This application was
heard before Gas Drilling Review Committee on December 30, 2010. No citizens appeared to speak on
this application.
The Public Right-of-Way Use Agreement will give Texas Midstream Gas Services, L.L.C., a license to use
120 feet of that specific public right-of-way for the limited purpose of operating a natural gas pipeline for a
period of 25 years. Texas Midstream Gas Services, L.L.C., will pay the City a one-time license fee of
$5,570.00 in return for this privilege. The company will be required to provide bonds and insurance in
accordance with the City's current standard policies. Because Texas Midstream Gas Services, L.L.C., 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 8.
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 0052040 $5,670.00
CERTIFICATIONS:
http-.Happs.cfwnet.orglecouncillprintmc.asp?id=15984&print=true&DocTvne=Print 10/20/20 1 1
M&C - Council Agenda Page 2 of 2
Submitted for Cit Fernando Costa (6122)f
Originating Department Head: Randle Harwood (6101)
Additional Information Contact: Rick Trice (7959)
ATTACHMENTS
1. account verification.doc (CFW internal)
2. Pipeline EXhibit.pdf (Public)
http:ll apps.cfwnet.org/ecounc1I/printmc.asp?id=15984&print=true&DocType=Print 10/20/2011