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HomeMy WebLinkAboutOrdinance 14844ORDINANCE NO. ~ `-~ `~~ AN ORDINANCE GRANTING A FRANCHISE TO CANTERA GAS GATHERING, INC. FOR USE OF CERTAIN PUBLIC RIGHTS-OF-WAY IN THE CITY OF FORT WORTH FOR THE PURPOSE OF CONSTRUCTING, MAINTAINING AND OPERATING A PIPELINE FOR THE TRANSPORTATION OF GAS THROUGH THE CITY OF FORT WORTH; REQUIRING EXECUTION OF A FRANCHISE AGREEMENT BETWEEN THE CITY OF FORT WORTH AND CANTERA GAS GATHERING, INC. REGARDING TERMS, CONDITIONS AND REQUIREMENTS RELATED TO THE USE OF SUCH CERTAIN PUBLIC RIGHTS-OF-WAY AND TO THE CONSTRUCTION, MAINTENANCE AND OPERATION OF SUCH PIPELINE; AND REGARDING REASONABLE COMPENSATION TO THE CITY OF FORT WORTH FOR THE USE OF THE PUBLIC RIGHTS-OF-WAY; PROVIDING FOR PUBLICATION; AND PROVIDING AN EFFECTIVE DATE. The following statements are true and correct and constitute the basis upon which the City Council of the City of Fort Worth ("City") has adopted this Ordmance• A. Cantera Gas Gathenng, Inc ("Company") wishes to construct a pipeline for the transportation of gas through the City of Fort Worth. In accordance with the City Charter and ordinances of the City, Company has applied for a franchise from the City m order to carry out those purposes. B. The Crty has reviewed Company's franchise application and agrees to grant Company a franchise to use certain public nghts-of--way in order to construct, operate and maintain a pipeline, on the terms and conditions set forth herein, solely for the transportation of gas through the City NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FORT WORTH, TEXAS. Ordinance Section 1. The City hereby grants Company a franchise to construct, install, maintain and repair a pipeline only within the public nghts-of--way of the Crty identified in Exhibit "A" of this Ordinance and only for the purpose of transporting gas through the City, subject to the execution by Company of a Franchise Agreement in the form attached hereto as Exhibit "B" Exhibits "A" and "B" are hereby made a part of this Ordinance for all purposes. Cantera Gas Franchise Ordinance Page 1 Section 2. In accordance with and as required by Section 2 of Chapter XXV of the City's Charter, the City Secretary is hereby directed to publish this Ordinance m rts entirety once each week for four (4) consecutive weeks within a penod of thirty (30) days following adoption by the City Council m the official newspaper of the Crty Company shall pay for or reimburse the City for all expenses incurred due to such publication. Section 3. This Ordinance shall be m full force and effect following (i) its pubhcahon m accordance with Section 2 and (ii), m accordance with Section 1, the execution of a Franchise Agreement m the form attached hereto as Exhibit "B" s ADOPTED ~~~ ~°~~ ''~7J7eC~ Date M & C Number EFFECTIVE DATE `j ~ ~ - 0 / APPROVED AS TO FORM AND LEGALITY By• Peter Vaky Assistant City Attorney Crty of Fort Worth Cantera Gas Franchise Ordinance Page 2 EXHIBIT "A" Company may only use the following portions of the Public Rights-of--Way m the City • Approximately 234 linear feet crossing Doc Mitchell Road, 65 feet east of the centerline of. B.N.& S.F Railroad at the intersection of Doc Mitchell Road and FM 156. Exhibit "B" FRANCHISE AGREEMENT The following statements are true and correct and constitute the basis upon which the City of Fort Worth has executed this Franchise Agreement. A. The City Council of the City of Fort Worth has adopted an ordinance ("Franchise Ordinance") that grants Cantera Gas Gathering, Inc a franchise to use the public rights-of-way identified in Exhibit "A" of the Franchise Ordinance in order to construct, install, maintain and repair a pipeline solely for the transportation of Gas through the City of Fort Worth, subject to the execution by Company of thts.Franchise Agreement. B. In accordance with the Franchise Ordinance, Company desires to enter into this Franchise Agreement. Agreement 1. DEFINITIONS. Capitalized terms used in this Franchise and not otherwise defined within this Franchise shall have the following meanings Affiliate shall mean any individual, partnership, association, joint stock company, lirruted 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. Company shall mean Cantera Gas Gathering, 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 m part, within the City Director shall mean the Director of the City's Department of Transportation/Public Works or authorized representative. Cantera Gas Franchise Agreement Page 1 of 16 Franchise shall mean the authorization issued to Company by the Clty 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 the Franchise Ordinance and this Franchise Agreement. 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 corporation, a liinited liability company, a general or limited partnership, a sole proprietorship, a loin 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 Franchise Public Right-of-Way shall mean only those dedicated public streets, highways, alleys and rights-of-way in the City identified in Exhibit "A" of the Franchise Ordinance 2. GRANT OF RIGHTS. 2.1. General Use of Public Rights-of-Way for Provision of Gas. Subject to the terms and conditions set forth in this Franchise and the City Charter and ordinances, the City hereby grants Company the right 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 City Company hereby acknowledges and agrees that this Franchise allows only the transportation of Gas through the City and does not allow Company to distribute, sell or otherwise provide Gas to any Customer 2.2. Nonexclusive. This Franchise and all rights granted to Company herein are strictly nonexclusive The City reserves the right to grant other and future franchises to other Persons and entities in accordance with applicable law and as the City deems appropriate. This Franchise does not establish any priority for the use of the Public Rights-of-Way by Company or by any present or future franchisees or other perrrut 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 franchisees 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 Cantera Gas Franchise Agreement Page 2 of 16 2.3. Other Permits. This Franchise 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 Gas through such Pipeline 2.4. Bonds. • Prior to the commencement of any- construction work m 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 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 Franchise Agreement and (ii) full payments to x 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 Franchise shall become effective on the Effective Date, as established in the Franchise Ordinance, and shall expire at 11 59 P.M. CST on November 30, 2026 unless terminated earlier as provided herein 4. FEES AND PAYMENTS TO CITY 4.1. Franchise Fee. Within thirty (30) calendar days following the adoption of the Franchise Ordinance, Company shall pay the City as compensation for its use of the Public Rights- Cantera Gas Franchise Agreement Page 3 of 16 of-Way between the Effective Date of the Franchise Ordinance and the first anniversary thereof (i) an amount equal to four percent (4%) of the initial construction cost of the Pipeline through the Public Rights-of-Way plus (ii) $1.51 for each linear foot of the Public Rights-of-Way used by Company pursuant to this Franchise On or before the first anniversary and on or before each subsequent anniversary of the Effective Date of the Franchise Ordinance, Company shall pay the Clty a. sum equal to (i) the per linear foot charge paid by Company during the immediately preceding twelve (12)-month period plus (ii) the upward percentage change, if any, in the Implicit Pnce Deflator for the Gross Domestic Product during such twelve (12)-month penod ("GDP Change"), as determined by the United States Department of Commerce or successor agency, multiplied by the number of linear feet of public right-of-way in the City used by Company at the time (collectively the "Franchise Fee") If in any given twelve (12)- month period there is no GDP Change or the GDP Change is downward, the Franchise Fee shall remain constant until the following anniversary date. In no .event shall the Franchise Fee ever be decreased. Company hereby acknowledges and agrees that the amount of this Franchise Fee constitutes just and reasonable compensation to the City for Company's use of the Public Rights-of-Way as provided by this Franchise Agreement. 4.2. Other Payments. In addition to the Franchise 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 gas utilities within the city Company shall reimburse the City for publication of this Franchise 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 bylaw, 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 Franchise 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 Cantera Gas Franchise Agreement Page 4 of 16 6. USE OF PUBLIC RIGHTS-OF-WAY. 6.1. Compliance with Laws, Ordinances, Rules and Regulations. The Crty 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 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 take other actions determined by the City to be in the public interest to remove or alleviate the burden, provided, however, that Company may recover costs and expenses incurred by Company due to a requirement by the City that Company relocate the Pipeline only in accordance with and pursuant to Section 104 112 of the Texas Utilities Code. 6.3. 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 6.4. "As-Built" Plans and Mans. 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 extraterntorial Cantera Gas Franchise Agreement Page 5 of 16 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 wasting 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 atoll-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 wntten consent from the Director and (ii) pays the Crty, 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) $1,250 for any cut, excavation or breach occurring between the Effective Date of this Franchise and November 30, 2006, (b) $1,500 for any cut, excavation or breach occurring between December 1, 2006 and November 30, 2011, (c) $1,800 for any cut, excavation or breach occurring between December 1, 2011 and November 30, 2016, (c~ $2,150 for any cut, excavation or breach occurring between December 1, 2016 and November 30, 2021, and (e) $2,600 for any cut, excavation or breach occumng between December 1, 2021 and November 30, 2026 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 Franchise Fee to the City 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, wrthm thirty (30) calendar days following such removal. Cantera Gas Franchise Agreement Page 6 of 16 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 Company may recover costs and expenses incurred by Company due to a requirement by the City that Company relocate its Pipeline only in accordance with and pursuant to Section 104 112 of the Texas Utilities Code 6.9. EmerEencies. 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 Manger, Mayor, Police Chief or Fire Chief, or their authorized representatives, including, but not lirruted 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 rts 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. Cantera Gas Franchise Agreement Page 7 of 16 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 Franchise 6.10. Removal of Pipeline. Upon the revocation, termination or expiration without extension or renewal of this Franchise, Company's right to use the Public Rights-of-Way under this Franchise 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 If Company has not removed all of the Pipeline from the Public Rights-of-Way within six (6) months following revocation, termination or expiration of this Franchise, 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 Franchise and in accordance with Section 6 7 of this Franchise, Company shall also restore any property, public or private, that is disturbed or damaged by removal 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 restorarion work. Cantera Gas Franchise Agreement Page 8 of 16 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 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, franchise, rule or regulation, except to the extent directly caused by the grossly negligent act(s) or omission(s) oi• 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 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 faciliries or appurtenances, (ii) the transportation of Gas through the Pipeline, (iu) any claim or lien ansing 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, franchise, rule or regulation, except to the extent directly caused by the 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 Crty-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 matter for which the Indemnitees are indemnified hereunder, the City shall give Company prompt written notice of the making 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 Cantera Gas Franchise Agreement Page 9 of 16 participation by the City and with legal counsel 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 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 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. 8.1, Primary Liabilitv Insurance Coverage. • Commercial General Liabilitv: $1,000,000 per occurrence, including coverage for the following where exposure exists and as directed by the City's Risk Manager (i) Premises Liability; (ii) independent contractors, (iii) products/completed operations, (iv) personal injury; (v) contractual liability; (vi) explosion, collapse and underground property damage • Property Damage Liabilitv: $10,000,000 per occurrence, • Automobile Liabilitv: $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 Franchise • Worker's Compensation: As required by law, and, Employer's Liability as follows $1,000,000 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 lirriits required by this Franchise Company agrees that within thirty (30) days of receipt of wntten 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 Cantera Gas Franchise Agreement Page 10 of 16 not hrruted to, cancellation, termination, non-renewal or amendment, shall be made without thirty (30) days' pnor 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 Franchise 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 rt has maintained such coverage m 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 Crty 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 Franchise shall m 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 Franchise or law 9. DEFAULTS. The occurrence at any time during the term of this Franchise of one or more of the following events shall constitute an "Event of Default" under this Franchise 9.1. Failure to Pay Franchise Fees. An Event of Default shall occur if Company fails to pay any Franchise Fee on or before the respective due date 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 Franchise or fails to perform any obligation required by this Franchise Cantera Gas Franchise Agreement Page 11 of 16 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; (iii) files any petition or fails to contest any petition filed against rt 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, franchises, or any revenues, issues, earnings or profits thereof, (v) makes an assignment for the benefit of credttors, 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 an Event of Default occurs, 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 m 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 Franchise. Upon the occurrence of an Uncured Default, the City may terminate this Franchise Upon such termination, Company shall forfeit all rights granted to it under this Franchise, and, except as to Company's unperformed obligations and existing liabilities as of the date of termination, this Franchise shall automatically be deemed null and void and shall have no further force or effect. Company shall Cantera Gas Franchise Agreement Page 12 of 16 remain obligated to pay and the City shall retain the right to receive Franchise Fees and any other payments due up to the date of terrrunation. 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 Franchise under this Section 10.2 1 shall does not and shall not be construed to constitute any kind of limitation on the City's right to terminate this Franchise for other reasons as provided by and in accordance with this Franchise, 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 Against 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 Franchise which, as a matter of equity, are specifically enforceable. 11. PROVISION OF INFORMATION. 11.1. Filings 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) tanffs, (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 the Texas Utilities Code and any other 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 Franchise and/or the transportation of Gas through the City within thirty (30) days of Company's receipt of same Cantera Gas Franchise Agreement Page 13 of 16 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 Franchise, 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 Franchise, 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 obligarions under this Franchise unless specifically authorized in writing by the City, which authorization shall not be unreasonably withheld. 14. NOTICES. .Notices required pursuant to the provrsions of this Franchise 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: City of Fort Worth Attn. Public Utilities Supervisor 1000 Throckmorton Fort Worth, TX 76102 with a copy to: City of Fort Worth Department of Law Attn. Attorney for Utilities 1000 Throckmorton Fort Worth, TX 76102 To COMPANY: Cantera Gas Gathering, Inc Attn. Vice-President -Operations & Engineering 8080 No Central Expressway, Suite 900 Dallas, TX 75206 Cantera Gas Franchise Agreement Page 14 of 16 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 m 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 Franchise or to exercise any rights that the City may have, either under this Franchise or the law, shall not constitute a waiver of the City's raght to insist upon appropriate performance or to assert any such raght on any future occasion. 17. GOVERNING LAW AND VENUE. This Franchise 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 Franchise, Company's transportation of Gas or Company's use of the Public Rights-of-Way, venue for such action shall he exclusively m state courts located in Tarrant County, Texas or the United States Distract 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 Franchise, 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 Franchise 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 Franchise, a court order shall be final only to the extent that all available legal raghts 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 Franchise to comply with such final order entered by a court of competent jurisdiction. Cantera Gas Franchise Agreement Page 15 of 16 20. FORCE MA.TEURE. In the event Company's performance of any of the terms, conditions or obligarions required by this Franchise 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 wlthin the Company's control shall include, but not be lirruted to, acts of God, strikes, sabotage, riots or civil disturbances, failure or loss of utlhries, explosions and natural disasters. 21. HEADINGS NOT CONTROLLING. Headings and titles, other than those captions in Section 1, that are used in this Franchise are for reference purposes only and shall not be deemed a part of this Franchise 22. ENTIRETY OF AGREEMENT. This Franchise, including the schedule of exhibits attached hereto and any documents incorporated herein by reference, contains the entire understanding and agreement between the Clty and Company as to the matters contained herein. Any prior or contemporaneous oral or wntten agreement is hereby declared null and void to the extent m conflict with the terms and conditions of this Agreement. This Franchise shall not be amended unless agreed to in writing by both parties and approved by the City Council of the City AGREED TO AND EXECUTED this -~ day of d`v~ ~. , 2001 CANTERA GAS GATHERING, INC. 7 By. ame. anny L. ompson Title. Vice-President- Operations & Engineering Cantera Gas Franchise Agreement Page 16 of 16 City of Fort Worth, Texas ~11~A~ar And Caunc~l ammun~cAt~an C DATE REFERENCE NUMBER LOG NAME PAGE 11/6/01 **G-13426 02CANTERA 1 of 1 suB~ECT ORDINANCE GRANTING CANTERA GAS GATHERING, INC A FRANCHISE TO USE CERTAIN STREETS AND PUBLIC RIGHTS-OF-WAY FOR THE PURPOSE OF CONSTRUCTING, MAINTAINING AND OPERATING A NATURAL GAS PIPELINE RECOMMENDATION It is recommended that the City Council adopt the attached ordinance which grants Cantera Gas Gathering, Inc. a franchise to use certain streets and public rights-of-way of the City for the purpose of constructing, maintaining and operating a natural gas pipeline. DISCUSSION Cantera Gas Gathering, Inc. (Cantera) is constructing a pipeline to connect natural gas wells in the vicinity of the Texas Motor speedway The pipeline will cross the west entrance road to Texas Motor Speedway off FM156 (Doc Mitchell Road) as described in the attached ordinance. In consideration for a franchise to use the prescribed City streets over the 25-year term of the ordinance, Cantera has agreed to pay the City cone-time payment equal to four percent (4%) of the estimated construction costs of that portion of the pipeline installed in the rights-of-way, plus an annual amount of not less than $1 51 per linear foot of City-owned right-of-way granted under the ordinance. The annual amount is adjusted each year proportionally by the percentage change in the Implicit Price Deflator for the Gross Domestic Product as determined by the U S Department of Commerce The first payment will be in the amount of $953 FISCAL INFORMATION/CERTIFICATION The Finance Director certifies that the Public Utilities Supervisor will be responsible for the collection of funds due to the City under this agreement. CB:k Submitted for City Manager's FUND ACCOUNT CENTER AMOUNT CITY SECRETARY Office by: (to) ~ GG01 421342 0134010 V~D }~ Q Charles Boswell ' 8511 /^ ~ i iTY ~VU~c~I.. Originating Department Read: N OV 6 2001 Charles Boswell 8511 (from) ~ ~ ~/ Additional Information Contact: r Secretar of the Cit y 1 City of Fort Worth, T~xae Danny Reed 6145 ;~~<~i~i~?ci ~rr'~c~an~;~ ilia-