HomeMy WebLinkAboutResolution 2007-002RESOLUTION NO. 2007-002
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF NORTH
RICHLAND HILLS, TEXAS, THAT:
1.
The City Manager be, and is hereby authorized to execute the attached Public
Right-Of-Way Use Agreement (Natural Gas Pipeline Crossing) with the Harding
Company for a Gas Pipeline between the Graham Ranch Gas Well Site and the Exxon
Mobil Pipeline (southwest of Chapman Road and Rufe Snow Drive).as an act and deed
of the City.
PASSED AND APPROVED this the 8th day of Janu
~~,°~~,~ue`~u~un~,$~ CITY N TF
s
~~` ~~~. ~' O ar n•
ATTEST: - "~
~~~
G ~'~~ ~
Patricia Hutson, City Secretary
APP V . t~ TO F AND LEGALITY:
\~
~-~L
George A. Staples, .;ity Attorney
APPROVED AS TO CONTENT:
~~
.~/l,
Mike Curtis,l`'~E Public Works Director
PUBLIC RIGHT-OF-WAY USE AGREEMENT
(NATURAL GAS PIPELINE CROSSING)
The following statements are true and correct and constitute the basis upon
which the City of North Richland Hills has executed this Agreement.
A. Harding Company, a Texas Corporation ("Company") wishes to construct a
pipeline for the transportation of natural gas under a 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-Ways in order to construct, operate and maintain
a pipeline, on the terms and conditions set forth herein, solely for the transportation of
Gas and solely in accordance with the terms and conditions of this Agreement.
1. DEFINITIONS. Capitalized terms used in this Agreement and not otherwise
defined within this Agreement shall have the following meanings:
Affiliate shall mean any individual, partnership, association, joint stock company,
limited liability company, trust, corporation, or other person or entity who
owns or controls, or is owned or controlled by, or is under common
ownership or control with, the entity in question.
Agreement shall mean the authorization issued to Company hereunder to use
the Public Rights-of-Ways 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-Ways, pursuant to and in accordance with this
Agreement.
Company shall mean Harding Company, a Texas corporation, only and shall not
include any Affiliate or third party.
City shall mean the area within the corporate limits of the City of North Richland
Hills, Texas and the governing body of the City of North Richland Hills,
Texas.
City Manager sha11 mean the City Manager of the City of North Richland Hills,
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.
Page 1
Development Review Committee (DRC) shall mean the internal staff review
committee that includes, but is not limited to, representatives of the
departments of planning and development, inspections, public works, fire,
police, parks and recreation, neighborhood services, economic
development, and the gas inspector.
Gas shall mean gaseous natural gas, liquefied natural gas, the constituents
thereof or any mixture thereof.
Gas Inspector shall mean an individual designated by the city manager or any
other person or entity so designated as an inspector by the city manager.
Gas Pipeline Construction Plans shall mean the necessary gas pipeline
construction documents that shall be submitted at time of gas pipeline
permit application. The overall area within the City proposed for the
construction of gas pipelines is identified in Exhibit "A".
License Area shall mean that area identified as Public Right-of-Way which
adjoins the gas pipelines contemplated by this Agreement. The License
Area is identified in Exhibit "B".
Person shall mean, without limitation, an individual, a corporation, 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 DRC that
are installed by Company in the Public Rights-of-Way in accordance with
this Agreement.
Public Right-of-Way shall mean only those dedicated public streets, highways,
alleys and rights-of-way in the City identified in Exhibit "B" of this
Agreement, attached hereto and hereby made a part of this Agreement for
all purposes.
Public Works Department shall mean the Public Works Department of the City
of North Richland Hills, Texas.
2. GRANT OF RIGHTS.
2.1 General Use of Public Rights-of-Wav for Provision of Gas.
Subject to the terms and conditions set forth in this Agreement and the
City ordinances, the City, to the extent of its interest therein, hereby grants
Page 2
Company a license to (i} erect, construct, install and maintain its Pipeline
in, under, along and across the Public Rights-of-Ways and (ii) transport
Gas through the portions of its Pipeline in, under, along and across the
Public Rights-of-Ways. Company hereby acknowledges and agrees that
this Agreement allows only the transportation of Gas through the City and
does not allow Company to sell or otherwise provide Gas to any Customer
within the City.
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-Ways to other Persons and entities in accordance with applicable law
and as the City deems appropriate; provided, however, that as to the grant
of subsequent licenses for use of the same Public Rights-of-Ways that is
solely within the discretion of the City, if a dispute arises as to priority of
the use of the Public Rights-of-Ways, the City will resolve such dispute in
a manner that does not result in unreasonable interference with
Company's operation of the Pipeline for the purposes provided for herein.
This Agreement does not establish any priority for the use of the Public
Rights-of-Ways 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-Ways, 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 other appropriate permits, licenses and other
approvals from the City or other regulatory agency necessary for the
construction, installation, maintenance, removal or repair of Company's
Pipeline or the transportation of Gas through such Pipeline.
2.4 Bonds. If any construction, maintenance, removal or repair work in
the License Area is undertaken by a contractor of Company, Company
shall 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-Ways, or $50,000, whichever amount
is greater. The bonds shall guarantee (i) the faithful performance and
completion of all construction, maintenance, removal 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
Page 3
materials, supplies and equipment used in the performance of that
contract; and (iii) that Company shall restore the right-of-ways affected by
such cut, opening, or other excavation in a satisfactory and workmanlike
manner; (iv) maintain such restoration work in a state of repair satisfactory
to the City for a period of two years following the date the City approves
the restoration; and fully comply with the City's ordinances governing
excavation in the public rights-of--ways. If the Company meets its
obligations under this Section, the City shall return the bond to the
Company upon expiration of the two-year period. The bonds shall name
both the City and Company as dual obligees.
3. TERM. This Agreement shall become effective on the date as of which
both parties have executed it ("Effective Date") and shall expire at 11:59 P.M.
CST on unless terminated earlier as provided herein. This
Agreement shall have an original term of five (5) years and may be extended
upon Company making payment of the sum of $1,500 and providing notice of
such extension, for additional five (5) year periods, on or before sixty (60) days
prior to the expiration of the then existing period.
4. FEES AND PAYMENTS TO CITY.
4.1. Application Fee. Company shall pay the City $1,500 as an Application
Fee. This fee shall be collected at the time Company both applies for a
permit to construct gas pipelines within the City and submits Gas Pipeline
Construction Plans.
4.2. Riaht-of-Wav Uses Fee. On or prior to the Effective Date, and annually
thereafter, Company shall pay the City as compensation for its use of the
Public Rights-of-Ways for the Term of this Agreement the sum of One
Dollar and Seventy-Five Cents ($1.75) per linear foot of gas pipeline
proposed to be constructed within the City ("License Fee"}. This License
Fee shall be adjusted annually based on the Dallas -Fort Worth
Consumer Price Index ("DFW CPI"). The DFW CPI shall be effective
beginning with the second annual payment of the License Fee. Company
hereby acknowledges and agrees that the amount of this License Fee
constitutes just and reasonable compensation for the cost to the City of
administering, supervising, inspecting, and otherwise regulating the
location of the gas pipeline, including maintaining records and maps of the
location of the pipeline(s) contemplated by this Agreement.
4.3. Construction Plan Review Fee. On or prior to constructing any gas
pipelines within the City, Company shall pay the City as compensation for
Gas Pipeline Construction Plan review an amount equivalent to 2.19% of
Page 4
the actual construction costs incurred in constructing the gas pipelines and
any appurtenances thereto within the City.
4.4. Insaection Fee. On or prior to constructing any gas pipelines within
the City, Company shall pay the City as compensation for inspection of
gas pipeline construction an amount equivalent to 3.29°l0 of the actual
construction costs incurred in constructing the gas pipelines and any
appurtenances thereto within the City.
4.5. Other Payments and Interest. 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. 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 (30) days following their respective due dates,
Company's failure to pay such sums by their respective due dates shall
not, in and of itself, constitute an Event of Default under Section 9 of this
Agreement.
5. REGULATORY AUTHORITY OF THE CITY. Company's property and
operations hereunder shall be subject to such regulation by the City as may be
reasonably necessary for the protection or benefit of the general public. In this
connection, Company shall be subject to, governed by and shall comply with all
applicable federal, state and local laws, including all ordinances, rules and
regulations of the City, as same may be adopted and amended from time to time.
6. USE OF PUBLIC RIGHTS-OF-WAYS.
6.1. Comuliance with Laws. Ordinances. Rules and Regulations. The
City has the right to control and regulate the use of the Public Rights-of-
Ways, 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-
Ways by the City and the public. If the City reasonably determines that
Page 5
the Pipeline does place an undue burden on any portion of the Public
Rights-of-Ways, Company, at Company's sale cost and expense and
within a reasonable time period specified by the City, shall modify the
Pipeline or take other actions reasonably determined by the City to be in
the public interest to remove or aNeviate such undue burden.
6.3. Minimallnterference.
6.3.1. Notice. Prior to the undertaking of any kind of construction,
installation, maintenance, removal, repairs or other work that
requires the excavation, lane closure or other physical use of the
Public Rights-of--Ways, Company shall, except for work required
to address an emergency, provide at least 48 hours' advance
written notice to the owners of property adjacent to the Public
Rights-of-Ways that will be affected. In the case of emergencies
Company sha{I provide notice to the affected landowners within
24 hours after commencement of work.
6.3.2. Worksite Regulations. 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.
Company shall plan and execute construction of the pipeline so
that no flood conditions are created or worsened on the
surrounding land. To minimize erosion, the excavated portion of
the right-of-way adjacent to the improved portion of the road shat!
be restored and revegetated in accordance with Exhibits "61"and
"B2" which specify the appropriate grass seed mix to be used.
6.3.3. Burial. Company shall bury or have buried its pipeline
facilities at feast four feet (4') deep except underneath public
roads. Underneath public roads, Company's pipeline facilities
shall be at least seven feet (7') below the lowest point in such
road pavement. When pipeline facilities can not be bored, during
backfill of the pipeline excavation, "Buried Pipeline" warning tape
shall be buried one foot above the pipeline to warn future
excavators of the presence of the pipeline.
6.4. "As-Built" Plans and Maus. Company, at Company's sole cost and
expense, shall provide the City with as-built plans of all portions of the
Page 6
Pipeline located in the City and the City's extraterritorial jurisdiction and
maps showing such Pipeline within ninety (90) calendar days following the
completion of such Pipeline. Company shall supply the textual
documentation of such as-built plans and maps in computer format as
requested in writing by the City and shall otherwise fully cooperate with
the City in ensuring that the Pipeline is accurately reflected in the City's
mapping system.
6.5. Marking of Piaeline. The Pipeline shall be marked, in a manner that
is reasonably acceptable to the Gas Inspector, to show conspicuously
Company's name, a toll-free telephone number of Company that a Person
may call for assistance and the appropriate Texas One Call System
telephone number.
6.6. Pavement Cut Coordination and Additional Fees. The City shall have
the right to coordinate al{ excavation work in the Public Rights-of-Ways in
a manner that is consistent with and convenient for the implementation of
the City's program for street construction, rebuilding, resurfacing and
repair. To preserve the integrity of the Public Rights-of-Ways, Company
shall not cut, excavate or otherwise breach or damage the surface of any
paved Public Right-of-Ways within 96 months following the construction or
resurfacing of such Public Right-of-Ways unless Company obtains written
consent from the City Manager, which consent shall not be unreasonably
withheld, pays an additional fee reasonably agreed to by and between the
parties, and restores the Public Rights-of-Ways in accordance with this
Agreement.
6.7. Restoration of Public Rights-of-Ways and Proaerty. 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-Ways, 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 30
calendar days foNowing the date that Company first became aware of the
disturbance or damage or, if the Pipeline is being removed, within 30
calendar days following such removal. Any private service/utility lines that
are in any way disturbed or damaged by the Company's construction,
operation, maintenance or removal of any of the Pipeline, shall be
repaired at the Company's sole cost and expense within 24 hours.
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
Page 7
expense, shall protect, support, disconnect, alter or remove from the
Public Rights-of-Ways 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 City Manager in writing and the
City will work in good faith with Company to negotiate a workable time
frame. Any relocation will require that the Public Works Department, at
Company's expense, approve Company's plans. It is the desire of both
parties to determine such relocation within the existing Public Right-of-
Way.
6.9. Emergencies.
6.9.1. Work by the City. For purposes of this Section 6.9.1, a
public emergency shall be any condition which, in the reasonable
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 reasonably appropriate by
the City Manager 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 necessary
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,
without limitation, 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 practicab{e so that Company may advise and work with
the City with respect to such action.
Page 8
6.9.2. Work by or on Behalf of Company. In the event of an
emergency that directly involves any portion of the Pipeline 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 DRC and otherwise fully comply with
the requirements of this Agreement.
6.10. Removal of Pipeline.
6.10.1. Company obligated to Remove. Upon the revocation,
termination or expiration without extension or renewal of this
Agreement, Company's right to use the Public Rights-of-Ways
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-Ways (or cap the Pipeline, if consented to by
the City), in accordance with applicable laws and regulations.
6.10.2. City's Riaht to Remove. If Company has not removed all
of the Pipeline from the Public Rights-of-Ways (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-Ways 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.
6.10.3. Restoration of Property. 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
Page 9
performed any necessary restoration work, in which case
Company shall immediately reimburse the City for any and all
reasonable costs incurred in performing or having performed such
restoration work.
?. LIABILITY AND INDEMNIFICATION.
7.1. Liability of Companv. Company sha{I 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, Tabor, materials or supplies provided or
supplied to Company, its contractors or subcontractors with respect to the
Pipeline; or (iv) Company's failure to comply with any applicable federal,
state or local law, ordinance, rule or regulation, except to the extent
directly caused by the gross negligence 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, EMPLDYEES AND
VOLUNTEERS ("INDEMNITEES"), FROM AND AGAINST ANY AND
ALL DAMAGES WHICH MAY AR/SE OUT OF OR BE 1N ANY WAY
CONNECTED W/TH (l) COMPANY'S CONSTRUCTION,
INSTALLATION, OPERATION, MAINTENANCE OR CONDITION OF
THE PIPELINE OR ANY RELATED FACILITIES OR
APPURTENANCES; (Il) THE TRANSPORTATION OF GAS THROUGH
THE PIPELINE; (Ill) ANY CLAIM OR LIEN AR/SING OUT OF WORK,
LABOR, MATERIALS OR SUPPLIES PROVIDED OR SUPPLIED TO
COMPANY, ITS CONTRACTORS OR SUBCONTRACTORS; OR (I'I/)
COMPANY'S FAILURE TO COMPLY W/TH ANY APPLICABLE
FEDERAL, STATE OR LOCAL LAW, ORDINANCE, RULE OR
REGULATION, ACTS; OR (1/) THE NEGLIGENT ACT OR OMISSION(S)
OF THE CITY, ITS OFFICERS AND EMPLOYEES..
7.3. Assumation of Risk. Company hereby undertakes and assumes, for
and on behalf of Company, its officers, agents, contractors,
Page 10
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-Ways.
7.4. Defense of Indemnitees. If an action 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 participation by the City
and with legal counsel selected by Company and specifically approved by
the City, at City's own expense. 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-Ways and the construction, installation, operation, maintenance or
condition of the Pipeline, including the transportation of Gas through the Pipeline,
as follows:
8.1. Primary Liability Insurance Coverage.
8.1.1. Commercial General Liabilifir:
$5,000,000 per occurrence, including coverage for the following: (i)
Premises Liability; (ii) independent contractors; (iii)
productsJcompleted operations; (iv) personal injury; (v) contractual
liability; (vi) explosion, collapse and underground property damage.
8.1.2. Property Damage Liability:
$10,000,000 per occurrence
8.1.3. Automobile Liability,:
$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
8.1.4. Worker's Comaensation:
As required by {aw; and, Employer's Liability as follows:
$1,000,000 per accident
Page 11
8.2. Requirements and Revisions to Required Coverage. The City
may, not more than once every five years during the term of this
Agreement, revise insurance coverage requirements and limits required
by this Agreement. Company agrees that within ninety days of receipt of
written notice from the City, Company will implement all such revisions
reasonably requested by the City. The policy or policies of insurance shall
be endorsed to provide that no material changes in coverage, including,
but not limited to, cancellation, termination, non-renewal or amendment,
shall be made without thirty (30) days' prior written notice to the City. The
policies and Certificate of insurance provided to the City shall contain the
following language:
CANCELLATION CLAUSE
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE
CANCELLED BEFORE THE EXPIRATION DATE
THEREFORE, THE 1SSUlNG INSURER WILL PROVIDE 30
DAYS WRITTEN NOTICE TO THE NAMED CERTIFICATE
HOLDER.
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 reasonably 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.
No construction shall commence until such certificates are received. In
addition, Company shall, on demand, provide the City with evidence that it
has maintained such coverage in fuN force and effect.
8.4. Deductibles. Deductible or self-insured retention limits on any line of
coverage required herein shall not exceed $50,000 in the annual aggregate
unless the limit per occurrence or per line of coverage, or aggregate is
otherwise approved by the City.
8.5. No Limitation of Liability. The insurance requirements set forth in this
Section 8 and any recovery by the City of any sum by reason of any
insurance policy required under this Agreement shall in no way be construed
or affected to limit or in any way affect Company's liability to the City or other
persons as provided by this Agreement or law.
9. DEFAULT. 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:
Page 12
9.1. 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.
9.2. Bankruatcv, Insolvencv 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 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.
9.3. Violations of the Law. An Event of Default shalt occur if Company
violates any applicable existing or future federal, state or local laws or any
applicable existing or future ordinances, rules and regulations of the City.
10. UNCURED DEFAULTS AND REMEDIES.
10.1. Notice of Default and Oauortunity 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 of such
Default and shall give Company the opportunity to cure such Event of
Default. For an Event of Default, Company shall have thirty (30) days
from the date it receives written notice from the City to cure the Event of
Default. 1n the event the Default can not be cured within said thirty (30)
days, so long as Company is acting in good faith, with due diligence to
cure said Event of Default shall not be deemed an "Uncured Default. If
any Event of Default is not cured within the time period specified herein
and Company is not continuing to cure said Default in good faith with due
diligence, 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.
Page 13
10.2. Remedies for Uncured Defaults. Upon the occurrence of an
Uncured Default, the City shah be entitled to exercise, at the same time or
at different times, any of the fallowing 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 shalt 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-Ways as and when requested by the City. The Gity's
right to terminate this Agreement under this Section 10.2.1 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
regu{atory 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 Comaanv. 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. Filings with the Commission. Company shall, upon request, 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) rules, regulations and policies requested, under consideration or
approved by the Commission; and (ii) 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
Page 14
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. Right to Audit. Company agrees that City shall, until the expiration of
three (3) years after the termination of the final extension under this
Agreement, have access to and the right to examine and photocopy all
records, documents and other items that may identify the locations of
pipelines relating to this Agreement or transactions relating to this
Agreement. Company agrees that City shall have access during normal
working hours to all necessary Company facilities and shall be provided
adequate and appropriate work space in order to conduct audits in
compliance with the provisions of this section. City shall give Company
reasonable advance notice of intended audits.
11.3. 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 andlor the transportation of Gas through the City within
thirty (30) days of Company's receipt of same.
12. COMPANY AS INDEPENDENT CONTRACTOR. The parties agree 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
respondent 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. 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. Every transferee shall
succeed to all rights and be subject to all obligations, liabilities, and penalties owed
to the City by the Company or any prior transferee of the Lease, including any
liabilities to the City for unpaid sums. No such transfer shall release the Lessee (or
any subsequent transferor) from any obligation hereunder.
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
Page 15
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 North Richland Hills Harding Company
Attn: Larry J. Cunningham, City Manager Attn: J. ~. Varner, Vice President Pipelines
7301 N.E. Loop 820 6211 w. Northwest Hwy., Suite c- 252
North Richland Hills, Texas 76180 ~a 11 a„R-_ ~rP~ ~ 5225
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 instal{ation 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-Ways, 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. MISCELLANEOUS PROVISIONS.
18.1. SeverabilitY. 1f 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.
Page 16
18.2. Force Maieure. 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 and for thirty (30) days thereafter. 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.
18.3. 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.
18.4. 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.
18.5. No Waiver. The failure of the City to insist upon the performance of any
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.
EXECUTED as of the later date below:
CITY OF NORTH RICHLAND HILLS:
By:
Larry J. Cunningham, City Manager
Harding Company,
a Texa orporation:
B _ tia! 1Fi JV~,.~-M
Y~
R. W. (Rick) Har~.ng
Date:
APPROVED AS TO FORM:
By:
City Attorney
Date: f ~ ~ ` a 7
Page 17
EXHIBIT "A"
Gas Pipeline Locations Within the City of North Richland Hifls
1 ~
~>x
'
~ evt~
1 ~
~ ~-
wa~a®c~a~ct:~m
I
1 Gum 7lillNa
DoR~m1W0o~
~MdW1YlEALTY.IA
C1Wm 1YlACls
DJtT
I ~~ ~
....~~
ur
~_
1
lsilwl
1- a
~1
4tal~M~relT ~
~~ ~. I
~
1 ~-ari~~PMd I ue
a~T.as~~mlm" `
=
~an.wsrra~rlill X
I
...
~~ w~.tiwwaa ,^
I I
,.ten
I ~~ wwt.~onrasM
oxra ~.. y, ~ a+~
!;
I un
3
I
wrrl~reP~PP _
I ~a,.s+.seel~
i
i
i uM I
x. Wy
~
,
vatsssoe,~• I o~
r
a
a
~ P.« I ,
. ~ p~wam
We
uv
~
~ ~ . ~.. e~sexa-_
II
tez~edlT
0'
I -
~ ~ ~
.
Y
11 ~s~ ooiaur g -
., 3
._
a u. ~.. ~..
__ .--
_._ _ _. ~ awr,~uN owua
d ~3 ~ Thtd" l
a101~1
I i ( ~+r„aw~ I YYalrn UA~ItI 8~wy, ADM. No.1a10
~~, I Ae~ga~eVnt
vPr,w~tw,ti e>t
~6dIA
I, I
1
Tir
abeMe
.rMr ',
~~~ 1
f/iOItTA t I'~
\ I
~I
. ~,
sEE Da~Btr'C ~ .e a is ~ ~ ~ o~s'r~nis
~Prls ~
1 ~ ~~~ Na14Mce~YY~
_~;j~~~NORT_H
PLAN
SCALE 1 " = 400'
HARDING COMPANY ~/ ~~.~~
FI.E: GRAPUAIBASE_IXP118RA D(PIIBIT SPIFFY:
DAVE: DEC 2008
EXHIBIT „A„ e _ f~ ~ . ~: ~~.~
°E~" 81" A
(3RAh1l1M NATURAL OA8 PIPELINE ae,a w. Plawr F
A , , Trxr ePi s,a
7aD a Ia~AEwm ~: Prs.iA.z.
CITY OF NORTH RK~iLAND HILJ..9 pn I~,~~,s,o rxlm~~a~~e "
TARRANT COUNTY TEXAS
w.a Jwlry~oaam ~
w,~ +e~WN..+e~runan I
A•, ~. - e'
: u.E
,N7rrN ~ ~, alrP.r,~IPr„erwoe, 1t1111~,Mdia7{,M
EXHIBIT "B1"
Gas Pipeline Locations Within Public Rights-Of-Way
and
Restoration and Revegetation Plan
I N ~ 0
II N
I ~ I II~ Proposed
I I It ~ Pipeline
~, I I~
I I II rEXIST 5' WIDE CONC.
s I I _ PILOT CHANNEL ~'
I y I I I~ ; aookT
LAta I I
I ; I aloolcT III ~ P
I nt r5 xn~P 54d
I ~ I I 11 ~ BORE P/T
3 x III
W ~
ti I I Mointo~n 10.5' off
~ II ~ "Eost~Property Line
I I
I ~ H ( EXIST RO II
RlP-RAP „
EXIST TYPE B
SSMH I EX e"S HEADWALL
~~ S S ~ S
~ H/E - OH~ R"~W P_P pHlE~ QHl' ' E
CHAPMAN DRIVE \\`\~, ~~
~1
~SMH EyS 8"SS r SMH S E~ 8"SS S 3SSMH S
~S Q~]( FH "PP Host _pHIE I TP
--JmEWX+/~E
uww- -uoo _~- ~- --~ ~-- -~
'_42=RCP _ _ _
£x ae RcP
EX WV w w ~ ~1"w w ~- w`~ w w
- w~,
f
P~i~ined ~'
i
~~ I
I~
I~
II
II
II
II
- .I
55 xn
BORE P/T
II
~~~~
= BORE ALIGNMENT
L~OIE~
EXISTING CONCRETE RI -RAP AND CONCRETE SIDEWALK INCLUDING
GRASSED AREAS DISTURBED BY CONSTRUCTION WILL BE REPLACED
EQUAL OR BETTER. AND CONSTRUCTED IN ACCORDANCE WITH CITY
OF NORTH RICHLAND CONSTRUCTION STANDARDS.
PLAN
SCALE 1 " = 50'
ydroTech Engineering, 1, tl~ cRArIMAaACC D(HIBITA
I HARD I NG COMPANY ~/ ~H~ ~"~~
OATS OEC 2008
N N ~ Drown ar .I.v.s.
EXHIBIT B . , .., B~
ORAFUIU NATURAL 0118 PIPEUPE ae7ow. Nau.rPaldwpr slaizte ~, a" -
~~pa~ Twoaw 7l01S ~.v~m er: H.s./A.z.
CITY OF N~rv ~ A RIt~.AIB) HILL8 vh ~s+7) 477•~eto t.~7nz7~,~S Arvrl~ro er: ~.e
TAItRANT CouNTY, Tocl,s ~"~` ~°'O0"' ""~ 1"+e~1°""""-" ~
~ww.. Ilrw~sonl ~YaKw~wM
w
~FilE OH/E
~I/ NoRrH
J
EXHIBIT "B2"
Gas Pipeline Locations Within Public Rights-Of-Way
and
Restoration and Revegetation Plan
I _
NOTE: EXISTING GRASSED AREAS C~ISTURBED BY CONSTRUCTION
WILL BE REPLACED EQUAL OR BETTER IN ACCORD:~NCE WITH (CITY
OF NORTH RICHLAND CONSTRUCTION STANDARDS.
1
~ ~
•~
~~ ~
~a
1 ! ~ e~ookt
I '
Pippin
Addition ~ '
'; =BORE ALIGNMENT
1 W,
~ 3
~ p ~ FH { S ^^ S EX 8'SS S -
F ~ w Ui/E F, PF E UH/E Yr aH/E off/E -
E~ __ _- .
-_ _ o I ~ CHAP VE
- - - - - - ., w Irv
I EX __~
. F w i~ ~ ~ ~_-w ------ ,fix a"w
_ P -yyy._--~- ?MH EX -_~ _ - -
_ ~=-i--~-BFI/E , ~ OH/E ~~ ~H~ _~ `~~-y ~r _ _ ~
I I ~
~~ Pr+~posed
Pro ~ ~ ~; I~ ~ Pipeline
,,~ ~ 3
w ~ C
1.'S~X1wJ$~~ ' ----------~ N
BORE P/T '
. !Nook Z
~ ~ ~ I m
~~ ~~
;~
Texas Electric Sen~ioe o ~ ~ ~~
Company ; ,~~' ' - - ~v
Vol. 6403, Pg. 516 I ~, ' ~ ~~~ ~ Q
D.R.T.C. PP ,
-' - - ---- -;~-~ - Lot 4 NOR1fH
', , ~ Block 2
PLAN 1
f W
i I SCALE t" = 50'
~ ~,
1 '^ ! _ ~
HARDING COMPANY / ~EXHIBITA I~ p(HIBIT SNEEI:
~roTech Engineering, 1. exE:
w>E: oec zoos R
M A ~ onAwa er: .LVS. V ^
HIB L
GRAHAM NATURAL c~AB PIPELINE ae+o w. Roles. A.ncwb e~ s+a °~" ~':
CITY OF NORTH RICHAND HILLS vh 7~ 7eo7a aE~wtn er: Hs./~z.
~F+~0.-' 00111 rll~ ~~'O~A MVRUVED Bf: 4.E.
T/1RRANT COUNTY, TEXAS ~
~~~ sad ~~rw