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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 WORTH, a home rule municipal
coiporation organized under the laws of the State of Texas and acting by and through Fernando
Costa, its duly authorized Assistant City Manager, and TEXAS MIDSTREAM GAS
SERVICES, L.L.C., an Oklahoma limited liability company, acting by and tluough John Hatton
— Area Manager.
The following statements ai•e true and coirect and constitute the basis upon which the
City of Fort Worth has executed this 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 gas
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 natural gas and solely in
accordance with the terms and conditions of this Agreement.
Agreement
1. DEFINITIONS.
Capitalized terms used in this Agi•eement and not otherwise defined within this
Agreement shall have the following meanings:
Afiiliate shall mean any individual, pai-tnership, association, joint stock company, limited
liability company, trust, coi-poration, or other person or entity who owns or
controls, or is owned or controlled by, or is under common ownership or control
with, the entity in question.
Agreement shall mean the authorization issued to Company hereunder to use the Public
Rights-of-Way for (i) the construction, installation, maintenance and repair of
Company's Pipeline; (ii) the use of such Pipeline for the transportation of Gas;
and (iii) any other directly related uses of the Public Rights-of-Way, pursuant to
and in accordance with this Agreement.
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c�FFICIAL REC�RD
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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 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.
Gas shall mean gaseous fuels such as natural gas, artificial gas, synthetic gas, liquefied
natural gas, manufactured gas, or any mixture thereof.
Person shall mean, without limitation, an individual, a coiporation, a limited liability
company, a general or limited partnership, a sole proprietorship, a joint 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 sh•eets, highways, alleys
and rights-of-way in the City identified in Exhibit "A" of this Agreement,
attached hereto and hereby made a part of this Agreement for all purposes.
2. GRANT OF RIGHTS.
2.1. General Use of Public Ri�hts-of-Wav for Provision of Gas.
Subject to the terms and conditions set forth in this Agreement and the City
Charter and ordinances, the City hereby grants Company a license to (i) erect, construct,
install and maintain its Pipeline in, over, under, along and across the Public Rights-of-
Way and (ii) transport Gas through the portions of its Pipeline in, over, under, along and
across the Public Rights-of-Way. Company hereby acicnowledges and agrees that this
Agreement allows only the transportation of Gas tl�uough the City and does not allow
Company to distribute, sell or otherwise provide Gas 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
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accordance with applicable law and as the City deems appropriate; provided, however,
that as to the grant of subsequent licenses for use of the same Public Rights-of-Way that
is solely within the discretion of the City, if a dispute arises as to priority of the use of the
Public Rights-of-Way, the City will resolve such dispute in a manner that does not result
in urueasonable interference with Company's operation of the Pipeline for the puiposes
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
constiuction, 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
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 worlc under the
construction contract or construction project that will be performed in the Public Rights-
of-Way. The bonds shall guarantee (i) satisfactory compliance by Company with all
requirements, terms and conditions of this Agreement and (ii) full payments to all
persons, firms, corporations or other entities with whom Company has a direct
relationship for the performance of such construction, maintenance or repairs.
If any such construction, maintenance and repair worlc is undertalcen 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 worlc under the
construction conti•act 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.
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3. TERM
This Agreement shall become effective on the date as of which both pai-ties have
executed it ("Effective Date") and shall expire at 11:59 P.M. CST on April 30, 2038 unless
terminated earlier as provided herein.
4. FEES AND PAYMENTS TO CITY.
4.1. Ri�ht-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-Seven Thousand Eighty-Seven Dollars and Fifty Cents ($27,087.50) ("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 reimbur•se 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 maximuin 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. IZEGULATORY AUTHORITY OF THE CITY; ANNUAL REPORTS.
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 oi•dinances, rules and regulations of the City, as same
may be adopted and amended fi•om time to time.
In addition, Company acicnowledges and agrees that the City Council's authorization of
this Agreement was made contingent on the Company providing the City with an annual
statement certifying Company's compliance with eighteen specifically articulated operational
and maintenance criteria and practices, as outlined in Exhibit "B," which is attached hereto and
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incorporated herein for all purposes as though it were set forth at length. Accordingly, on or
before March 1 of each yeai• during the Term of this Agreement, Company will provide the
director of the City's Planning and Development Depai�tment with a written statement, signed by
an authorized representative of Company and notarized by a duly authorized and licensed notary
public, stating that Company has complied with all such maintenance requirements during the
preceding twelve (12) months. If Company did not comply with all such maintenance
requirements at any time during the preceding twelve (12) months, Company shall specify in the
notice the nature and extent of such non-compliance, and (i) if an event of non-compliance was
fully cured during that time, the steps that Company took to effectuate such cure, and (ii) if an
event of non-compliance was not fully cured during that time, the steps that Company took to
effectuate cure and the remedies that Company intends to talce to effectuate full cure, as well as
an anticipated timeline for cure.
6. USE OF PUBLIC RIGHTS-OF-WAY.
6.1. Comt�liance with Laws, Ordinances, Rules and Re�ulations.
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 a11 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
trafiic 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 determines that
the Pipeline does place an undue burden on any portion of the Public Rights-of-Way,
Company, at Company's sole cost and expense and within a reasonable time period
specified by the City, shall modify the Pipeline or talce other actions determined by the
City to be in the public interest to remove or alleviate the burden.
6.3. MinimalInterference.
Prior to the undertalcing of any ldnd of construction, installation, maintenance,
repairs or other worlc that requires the excavation, lane closure or other physical use of
the Public Rights-of-Way, Company shall, except for worlc 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) houis after commencement of worlc. In addition, during any such worlc, Company
shall provide construction and maintenance signs and sufficient barricades at worlc sites
to protect the public. The use of such traffic control devices shall be consistent with the
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standards and provisions of Part VI of the Texas Manual on Uniform Trafiic Control
Devices. Company shall utilize appropriate warning lights at all construction and
maintenance sites where one or more trafiic lanes are closed or obstructed during
nighttime conditions.
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 extratei-�itorial
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 marlced, in a manner that is acceptable to the Director, to
show conspicuously Company's name and a toll-fi•ee 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 exca�ation 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, exca�ation or breach occurring
between the Effective Date and April 30, 2018; (b) $1,800 for any cut, excavation or
breach occurring between May 1, 2018 and April 30, 2023; (c) $2,150 for any cut,
excavation or breach occui7ing between May 1, 2023 and April 30, 2028; and (c� $2,600
for any cut, excavation or breach occurring between May 1, 2028 and April 30, 2038.
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 Ri�hts-of-Way and Property.
Company, at Company's sole cost and expense, and in a manner approved by the
City, shall promptly restore any poi�tion 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 a condition
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that is at least as good as the one in which such propei-ty existed immediately prior to the
disturbance or damage. Company shall diligently commence such restoration within
thirty (30) calendar days following the date that Company iirst became awar•e 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 worlc; 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 Worlcs in writing and the City will work in good faith with
Company to negotiate a workable time frame.
6.9. Emer�encies.
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 ofiicials 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 ha�e 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 officeis,
agents, servants, employees and subcontractors from liability or responsibility for
any Damages, as deiined 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,
z•elocation 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 i�equirements 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 talces any action that it believes will affect
the Pipeline, the City will notify Company as soon as practicable so that Company
may advise and worlc with the City with respect to such action.
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6.9.2. Work by or on Behalf of Comt�any.
In the event of an emergency that involves that portion of the Pipeline
located in the Public Rights-of-Way and necessitates immediate emergency
response work 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 Worlcs 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 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) talce 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 worlc, in which case Company shall immediately
reimburse the City for any and all costs incurred in performing or having performed such
restoration work.
7. LIABILITY AND INDEMNIFICATION.
7.1. Liability of Company.
Company sha11 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, disbui•sements and reasonable expenses of attorneys, accountants
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and other• professional advisors and of expert witnesses and costs of investigation and
prepar•ation) of any lcind 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 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"), FROM AND AGAINST ANY AND ALL DAMAGES
(INCLUDING, WITHOUT LIMITATION, THOSE FOR PROPERTYDAMAGEAND
PERSONAL INJURY, INCLUDING DEATH) WHICHMAYARISE OUT OF OR BE
IN ANY WAY CONNECTED WITH (I) THE CONSTRUCTION, INSTALLATION,
OPERATION, MAINTENANCE OR CONDITION OF THE PIPELINE OR ANY
RELATED FACILITIES OR APPURTENANCES; (II) THE TRANSPORTATION
OF GAS THRO UGH THE PIPELINE; (III) ANY CLAIM OR LIEN ARISING O UT
OF WORI�, LABOR, MATERIALS OR SUPPLIES PROVIDED OR SUPPLIED TO
COMPANY, ITS CONTRACTORS OR SUBCONTRACTORS; OR (IT� 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 MISCOND UCT OF THE CITY.
7.3. Assumption of Risk.
Company hereby undertakes and assumes, for and on behalf of Company, its
officers, agents, contractors, subcontractois, agents and employees, all rislc 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.
In the event any action, lawsuit or other proceeding is brought against any
Indemnitee by reason of any mattez• for which the Indemnitees are indemniiied hereunder,
the City shall give Company prompt written notice of the malcing of any claim or
commencement of any such action, lawsuit or other proceeding, and Company, at
Company's sole cost and expense, shall resist and defend the same with reasonable
participation by the City and with legal counsel selected by Company and specifically
approved by the City. In such an event, Coinpany shall not admit liability in any matter
on behalf of any Indemnitee without the advance written consent of the City.
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8. INSURANCE.
Company shall procure and maintain at all times, in full force and effect, a policy or policies
of insurance to provide coverages as specified herein, naming the City as an additional insured and
cover•ing 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, primaiy and excess policies.
8.1. Primary Liability Insurance Covera�e.
• Commercial General Liability:
$1,000,000 per occunence, including coverage for the following: (i) Premises
Liability; (ii) independent contractors; (iii) products/completed operations; (iv)
personal injuiy; (v) contractual liability; (vi) explosion, collapse and
underground property damage.
• Propertv Dama�e Liability:
$10,000,000 per occui7ence
• Automobile Liabilitv:
$1,000,000 per accident,
including, but not limited to, all owned, leased, hired or non-owned motoz•
vehicles used in conjunction with the rights granted under this Agreement
• Worker's Compensation:
As required by law; and, Employer's Liability as follows:
$1,000,000 per accident.
8.2. Revisions to Required Covera�e.
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 fi�om 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
thii�ty (30) days' prior written notice to the City.
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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 a
producer or authorized representative of each insurance company providing required
coverage as proof that Company has obtained the types and amounts of inslu•ance 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 occui-�ence, 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 recoveiy 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 pi�ovided 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 Pay License Fee.
An Event of Default shall occur if Company fails to pay any License Fee on or
before the respective due date.
9.2. Breach.
An Event of Default shall occur if Company materially br•eaches 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 occlir if Company (i) files a voluntary petition in
banlcruptcy; (ii) is adjudicated insolvent; (iii) files any petition or fails to contest any
petition iiled against it seelcing any reorganization, ai-�•angement, composition,
readjustment, liquidation, dissolution or similar relief for itself under any laws relating to
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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 propei-ty or any revenues, issues, earnings or profits thereof; (v) malces 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 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 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 wi•itten 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.
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 A�reement.
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 unperfoi•med obligations and
existing liabilities as of the date of termination, this Agz•eement 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 payinents due up to the date of termination.
Company shall remove the Pipeline fi•om and restore the Public Rights-of-Way as
and when requested by the City. The City's right to terminate this Agreement
Vantage Pad Lateral GP12-00017
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under this Section 10.2.1 does not and shall not be construed to constitute any
lcind 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 Le�al 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. Filin�s with the Commission.
Company shall provide copies to the City of all documents which Company iiles
with or sends to the Commission concerning or related to its transportation of Gas
tl�uough 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 iilings are made with the Commission. In addition, Company shall provide the City
with copies of records, documents and other filings that Company is required to maintain
or supply to the Commission under any applicable state or federal law, rule or regulation.
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 tlu•ough 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 necessaiy 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, seivants, employees, contractors and subcontractors.
Company acicnowledges that the doctrine of r•espoi�deat sz�per•ior� shall not apply as between the
City and Company, its officers, agents, employees, contractors and subcontractors. Company
Vantage Pad Lateral GP12-00017
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fur�ther agrees that nothing herein shall be construed as the creation of a partnership or joint
entetprise 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
detei�rnined 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:
City of Fort Worth
Public Utilities Administrator
1000 Throckmorton
Fort Worth, TX 76102
with a copy to:
To COMPANY:
Texas Midstream Gas Seivices, L.L.C.
Manager — Property Rights
301 Commerce Street, Suite 600
Fort Worth, TX 76102
City of Fort Worth Texas Midstream Gas Seivices, L.L.C.
Department of Law c/o CT Coiporation
Attn: Attorney for Utilities 350 North St. Paul Street, Suite 2900
1000 Throcicmorton 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 fi•om
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 i•ights 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.
Vantage Pad Lateral GP12-00017
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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 teims 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.
19. SEVERABILITY.
If any provision of this Agreement is held to be invalid, illegal or unenforceable by a iinal
order entered by a coui�t of competent jurisdiction, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired. For putposes of this Agreement,
a cou��t 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-perfoi�rnance shall be deemed excused for the period of such inability. Causes or
events that are not within the Company's control shall include, but not be limited to, acts of God,
strikes, sabotage, riots or civil disturbances, failure or loss of utilities, explosions and natural
disasters.
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.
22. ENTIRETY OF AGREEMENT.
This Agreement, including the schedule of e�ibits attached hereto and any documents
incoiporated 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
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this Agreement. This Agreement shall not be amended unless agreed to in v�niting by both parties
and approved by the City Council of the City.
EXECUTED as of the later date below:
CITY OF FORT WORTH:
By: ��s���.�»
Fernando Costa
Assistant City Manager
Date: !7 /3
—T
TEXAS
By:
John
Area
Date:
TREAM GAS SERVICES, L.L.C.
� ,�.�.:��--�
�tt�
_�
an ger
�) iv �� ;)''�'�� Z'���
APPROVED AS TO FORM AND LEGALITY:
By:
�
Denis cElroy
Assistant City At orney
M&C: C-26188 April 2, 2013
Vantage Pad Lateral GP12-00017
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�.__ - —`
�FFICIAL �E���gp
�1`iX e��Ri�'aRY
�T'. IWQRT�6'y 1�( �
EXHIBIT ��A"
Company may only use the following portions of the Public Rights-of-Way in the City:
• Approximately 122 feet across Granbury Road located approximately 330 feet south of
Belden Avenue
• Approximately 74 feet across Hildring Drive located approximately south ROW of I-20
• Approximately 112 feet across Hildring Drive located approximately north ROW of I-20
• Approximately 170 feet across Seminary Drive at Granbury Road
• Approximately 72 feet across Suffollc Drive at Granbury Road
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i .
In operating and maintaining the Pipeline, Company will perform routine maintenance in
accordance with all applicable federal, state, and local requirements, to include, at a
minimum the following:
1. Continuous pressure monitoring by our 24-hour Gas Control Department
2. Quarterly patrols
3. Quarterly lealc surveys
4. Annual cathodic protection monitoring
5. Annual atmospheric coi-��osion inspection of aboveground pipeline equipment
6. Maintenance of any gates utilized to access the pipeline's easement
7. Maintenance of any security fencing and/or pipe guards enclosing the pipeline's above
ground equipment
8. Quarterly maintenance pigging
9. Seasonal vegetation control
10. Continual post-construction erosion contr•ol
11. Continuous application of Damage Prevention measures including prompt One Call
responses via a dedicated and specially trained Line Locate staff, investigation of any
urueported consh•uction or landscaping activity occui��ing on or near the pipeline, and
continual pipeline marker maintenance
12. Timely responses to landowner and resident inquiries
13. Scheduled and un-scheduled regulatory agency inspections
14. Semi-annual internal coi7•osion control monitoring
15. Annual valve inspections and maintenance
16. Annual pressure control equipment inspections and tests
17. Regular pipeline assessment measures
18. Annual population density surveys
In accordance with Section 5 of the Agreement, Company will annually submit to City a
statement certifying compliance with all conditions stipulated above.
Vantage Pad Latecal GP12-00017
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M&C Review
� � �► � ,.
Page 1 of 2
OFFlclal site of the City of Fori Worth, Texas
F�(�RT ��'O�T'�7
COUNCIL ACTION: Approved on 4/2/2013
062040 TMGS
DATE: 4/2/2013 REFERENCE NO.: C-26188 LOG NAME: VANTAGE PAD
LATERAL
CODE: C TYPE: CONSENT HEARING: NO
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 Twelve-Inch Natural Gas
Gathering Pipeline Across Old Granbury Road, Hildring Drive, Seminary Drive and
Suffolk Drive (COUNCIL DISTRICTS 3, 6 and 9)
RECOMMENDATION:
It is recommended that the City Council authorize execution of a public right-of-way use Agreement
with Texas Midstream Gas Services, L.�.C., for a one-time license fee in the amount of $27,087.50
and granting a license to construct and operate a twelve-inch natural gas gathering pipeline in the
following five public rights-of-way: (i) across Old Granbury Road, south of Belden Avenue, (ii) across
Hildring Drive, south of I-20, (iii) across Hildring Drive, north of I-20, (iv) across Seminary Drive at
Granbury Road, and (v) across Suffolk Drive at Granbury Road.
DISCUSSION:
Texas Midstream Gas Services, L.L.C., is constructing a iwelve-inch pipeline to connect natural gas
welis in Fort Worth. With the exception of the five listed crossings, the pipeline will be located in
private easements. The approximate locations of the crossings are shown on the attached map.
The Transportation and Pubiic Works Department has reviewed the proposed crossings and has no
objections. The route was reviewed by the Gas Drilling Review Committee on November 29, 2012.
No citizens appeared to speak on the proposed route.
The public right-of-way use Agreement will give Texas Midstream Gas Services, L.L.C., a license to
use 550 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.I..C., will pay the City a one-time
license fee in the amount of $27,087.50 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.
The crossings are located in COUNCIL DISTRICTS 3, 6, and 9.
FISCA� 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 under this
Agreement.
TO Fund/AccountlCenters
GG01 421502 0062040 �27,087.50
FROM Fund/Account/Centers
http:Uapps.cfwnet.org/council�acket/mc_review.asp?ID=18206&councildate=4/2/2013 04/17/2013
M&C Review
Submitted for Citv Manager's Office b�
Originating Department Head:
Fernando Costa (6122)
Randle Harwood (6101)
Page 2 of 2
Additional Information Contact: Rick Trice (7959)
ATTACHMENTS
Vantaqe Proposed Pipeline Route Map.pdf
http://apps.cfwnet.org/council_packet/mc_review.asp?ID=18206&councildate=4/2/2013 04/17/2013