2012-143s:\legal\our documents\ordinances\12\atmos temporary license agreement ordinance.doc
ORDINANCE NO. 2012-143
AN ORDINANCE AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO
EXECUTE A TEMPOR.ARY LICENSE AGREEMENT (THE "AGREEMENT"), BY AND
BETWEEN THE CITY OF DENTON, TEXAS AND ATMOS ENERGY CORPORATION, A
TEXAS CORPORATION ("ATMOS"), GRANTING A LICENSE TO ATMOS TO
TEMPORARILY ACCESS CERTAIN CITY OWNED LANDS LOCATED 1N THE GIDEON
WALKER SURVEY, ABSTRACT NUMBER 1330, LOCATED GENERALLY 2000 FEET
SOUTH OF THE 6000 BLOCK OF EAST MCKINNEY STREET, CITY OF DENTON,
DENTON COUNTY, TEXAS, IN CONNECTION WITH ATMOS' LAKE DALLAS
NATURAL GAS STORAGE FACILITY; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City Council finds the transaction contemplated by the Agreement is in
the best interest of the citizens of the City of Denton; NOW, THEREFORE;
THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY ORDAINS:
SECTION 1. The recitals and findings contained in the preamble of this ordinance are
expressly incorporated herein.
SECTION 2. The City Manager, or his designee, is hereby authorized to execute the
Agreement, for and on behalf of the City of Denton, Texas, said Agreement being attached
hereto and incorporated herein as Exhibit "A".
SECTION 3. This ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the %9� day of , 2012.
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ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
s:\legal\our documents\ordinances\12\atmos temporary license agreement ordinance.doc
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY: �
TEMPORARY LICENSE
AGREEMENT
This Temporary License Agreement (the "Agreement"), is made this � day of
`%G�/�� , 2012, between the City of Denton, Texas, a Texas home rule
murucipal corporation (the "City") and Atmos Energy Corporation, a Texas coi�poration
("Atmos").
WHEREAS, the City owns certain real property located in the Gideon Walker Survey,
Abstract Number 1330, within the City of Denton, Texas (the "City Owned Lands"};
WHEREAS, Atmos is the lessee of certain lands located within the City Owned Lands,
pursuant to that certain Lease, dated November 7, 1966, by and between Lotta E. Callahan and
husband, Felix W. Callahan and Lone Star Gas Company, recorded in Volume 545, Page 35,
Deed Records, Denton County, Texas (the "Leased Premises"), as amended, for use in
connection with its Lake Dallas Natural Gas Storage Facility (the "Storage Facility");
WHEREAS, it is the intent of Atmos to drill an additional well (the "New Well") on the
Leased Premises to be used in connection with its activities in the Storage Facility;
WHEREAS, Atmos is in need of the xight to occupy certain lands in and adj acent to the
Leased Premises for limited aciivities, and for limited duration, in connection with its New Well;
WHEREAS, the City is amenable to granting a temporary license over the lands shown
as the "New Well Licensed Premises" and the "Access Licensed Premises", described on Exhibit
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"A" attached hereto, to conduct certain activities, in accordance with the terms, provisions and
conditions set farth herein.
ARTICLE I,
LICENSE
Sectioa 1.01. License. In consideration of the mutual covenants and agreements of this
Agreement, and for good and valuable consideration as set forth herein, the City hereby grants to
Atmos, upon the terms and conditions set forth in this Agreement, the following rights;
A. A temporary license on and over the New Well Licensed Premises, for the sole purposes of
(i) clearing, grading and leveling; (ii) placement of rock andlor gravel; (iii) ingress and egress of
equipment and machinery; (iv) storage and staging of matexials, equipment and machinery; (v)
fencing; (vi) lighting; and (vii) placexnent of construction trailers, all in connection with activities
related to the New Well.
B. A temporary license on and over the Access Licensed Pxemises, for the sole purpose of
ingress and egress to and from the Leased Premises to the New Well Licensed Premises (the
New Well Licensed Prernises and the Access Licensed Premises are collectively referred to
herein as the "Licensed Premises").
Section 1.02, Use, Any use of the Licensed Premises not expressly permitted by this Article I is
expressly prohibited,
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Section 1.03. Term. This Agreement and the license granted herein sha11 expire upon the
eaxlier to occur of (i) the completion of Atmos' development and drilling of the New Well; and
(ii) one (1) year from the effective date of this Agreement.
Section 1.04. Restoration. Prior to the expiration of this Agreement and the license granted
herein, Atmos shall (i) remove any property, matexial andlor equipment of Atmos and/or any
other third party, along with all trash and debris, from the Licensed Premises; and (ii) restore the
Licensed Premises to the condition as existed at the Effective Date hereof.
ARTICLE II.
COMPENSATION
Section 2.�2. Compensation. As consideration for the rights granted by this Agreement, Atmos
shall pay to the City, on or before the Effective Date, the sum of Twenty One Thousand Eight
Huiidred and Five Dollars and No/100 ($21,805,00).
.ARTICLE III.
1NSURANCE & INDEMNITY
Section 3.01, Insurance. Atmos shall procure and car�ry the insurance coverages, and upon the
terms, as prescribed in Exhibit "B", attached hereto and made a part hereof.
Section 3.02. Indemu�itv. Atmos shall indemnify, defend, and hold har�anless, to the fullest extent
permitted by law, the City, and City's respective officers, errxployees, elected off'icials andlor
agents from and against any and all losses, damages, claims or liabilities, of any lcind or nature,
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which arise directly or indirectly, or are related to, in any way, manner or form, ihe activities
contex�nplated hereunder, occupation of the Licensed Premises by Atmos or any party acting
under the authority of Atmos, or the omission of the activities contemplated hereunder. Atrt�os
further covenants and agrees to defend any suits or administrative proceedings brought against
the City and/or the Ciiy's respective officers, employees, elected officials and/or agents on
account of any such claim, as directed by the City, and, without limiting the general indemniiy
provided herein, to pay or discharge tl�e full amount or obligation of any such claim incurz�ed by,
accruing to, or imposed on the City, or the City's respective officers, employees, elected o�cials
and/or agents, as applicable, resulting from any such suits, claims, andlor administrative
proceedings or any matters resulting from the settlement or resolution of said suits, claims,
andlor administrative proceedings, In addition, Atmos shall pay to the City, the Cify's respective
officers, employees, elected officials and/or agents, as applicable, reasonable and necessary
attorneys' fees incurred by such parties in enforcing Atmos' indemnity in this Section 3.02.
THE CITY, AND ITS RESPECTIVE OFFICERS, EMPLOYEES, ELECTED
OFFICIALS AND AGENTS, SHALL NOT BE LIABLE, AND ATMOS, FOR ITSELF, ITS
SUCCESSORS AND ASSIGNS, HEREBY RELEASES THE CITY, AND ITS RESPECTIVE
OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND AGENTS, FOR, FROM AND/OR
AGAINST ANY AND ALL LOSSES, DAMAGES, CLAIMS OR LIABILITIES, ON ANY
THEORY OF LEGAL LIABILITY, NOW EXISTING OR EXISTING IN THE FUTURE,
1NCLUDING, BUT NOT LIMITED TO THE NEGLIGENCE, OF ANY KIND, TYPE OR
DEGREE, OF THE CITY, RELATED TO THE ACTIVITIES CONTEMPLATED BY THIS
AGREEMENT AND/OR THE OCCUPATION OF THE LICENSED PREMISES BY ATMOS,
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ITS AGENTS, CONTRACTORS OR ANY PARTY ACTING UNDER THE AUTHORITY OF
ATMOS.
The indemnity and release provided herein shall survive the termination or expiration of
this Agreement.
ARTICLE IV.
EVENT5 OF DEFAULT/REMEDIES
Section 4.01 (a). City Default/Atmos Remedies. In the event the City shall default in the
performance of any term or provision of this Agreement for any reason other than failure by
Atmos to perform hereunder, Atmos may, if said default shall be continuing after ten (10)
calendar days notice of such de:fault to the City, as its sole and exclusive remedy, either (i)
terminate this Agreement; or (ii) enforce specific performance of this Agreement.
�b) Atmos Default/City Remedies. In the event Atznos shall default in the performance of any
term or provision of this Agreement for any reason other than failure by City to perform
hereunder, City may, if said default shall be continuing after ten (10) calendar days notice of
such default to Atmos, exercise any right or remedy available to it by law, contract, equity or
otherwise, including without limitation, specific performance and the right to terminate this
Agreement. The remedies set forth herein are cumulative and not exclusive, and may be
exercised concurrently,
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Section 5.01. No Waiver.
ARTICLE V.
MISCELLANEOUS
No failure to exercise and no delay in the exercise on the part of
either party hereto of any right hereunder shall opexate as a waiver thereof, nor shall any single
or partial exercise thereof preclude any other fui�ther exercise thereof or the exercise of any other
tight.
Section 5.02. Notice, Any notice required or permitted to be given hereunder shall be given in
writing and delivered by hand delivery, telephonic facsimile, or mailed certified or registered
mail, to the party to whom such notice or communication is directed at the address of such party
as follows:
Atmos
Atmos Energy Corporation
Attn: Jeff Hardgrave
5420 LBJ Freeway, Suite 150Q
Dallas, Texas 75240
Facsimile: (21�4) 276-6514
Copies to:
Atmos Energy Corporation
Attn: Legal Department
5430 LBJ Freeway, Suite 1800
Dallas, Texas 75240
Facsimile: (972) 855-3080
Citv
City of Denton
Attn; P,S. Arora
901-A Texas Street
Denton, Texas 76209
Facsimile; (940) 349-8951
Paul Williamson
Real Estate and Capital Support
901-A Texas Street
Denton, Texas 76209
Facsimile: (940) 349-8951
Any such notice or other communication shall be deemed to have been given and received, on
the date it is personally delivered or delivered by telephonic facsinnile, or if zt is mailed as
aforesazd, on the third day after it is mailed.
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5.03. No Assi�nment, This Agreement, and the license granted herein, is personal to Atmos and
may not be assigned without the express written consent of the City. Any attempt to assign this
Agreement, or the license granted herein, in whole or in part, without such consent shall
tei�rninate this Agreement and the license granted herein.
5.04. Citv, Unless otherwise provided herein or required hy law and/or local ordinance or
charter, any action required or permitted to be taken herein by the City, is hereby delegated io the
City Manager of the City of Denton, or his designee,
5 OS. Relationship of Parties, The relationship between the City and Atmos for purposes of tlus
Agreement is at all times solely that of licensox and licensee, and shall not be deemed in any
event, a partnexship, joint venture or joint enteiprise.
5 06 Compliance with Applicable Laws,_ Atmos shall comply with all applicable federal, state
and local rules, regulations, statutes, laws, orders and ordinances pertaining to, in any way,
manner or form, the activities described in or contemplated by this Agreement,
5,07, Applicable Law and Venue. This Agreement is to be construed under Texas law and
applicable federal l.aw, without regard to conflict of law rules that would dixect the application of
laws of any other jurisdiction, and all obligations of the parties created by this Agreement are
perfoi�rnable in Denton County, Texas. VENUE FOR ANY ACTION BROUGHT PURSUANT
TO THIS AGREEMENT, �R ANY ACTNITY CONTEMPLATED HEREBY, SHALL LIE
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EXCLUSIVELY 1N THE COURTS OF COMPETENT JURISDICTION OF DENTON
COUNTY, TEXAS.
5.08. Partial Invalidiiv. Except as otherwise may be provided herein, if any one or more of the
provisions contained in this Agreement are for any reason held to be invalid, illegal or
ut�enforceable in any respect, the invalidity, illegality or unenforceability will not affect any
other provision of this Agreement, and this Agreement shall be construed as if it had not
included the invalid, illegal or unenforceable provision.
5.09. Prior A�;reements. This Agreement constitutes ihe parties' sole agreement and supersedes
any prior understandings or written or oral agreements between the parties with respect to the
subject matter hereof.
5.10. Amendment. No arnendment, modification or alteration of this Agreement is binding,
unless in writing, dated subsequent to the date of this Agreement, and duly authorized and
executed by the parties. Notwithstanding the provisions of Section 5.04, above, the authority to
atn,end this Agreement is not delegated by the City Council of the City of Denton to the City
Manager.
5.11. Representations. Atmos represents and warrants to the City (i) that it possesses the legal
authority to enter into this Agreement and has taken all actions necessary to legally bind Atmos
to all terms hereof; (ii) that the party executing this Agreement on behalf of Atmos possesses all
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authority necessary to legally bind Atnnos to all terms hereof; and (ui) this Agreement is binding
and enforceable upon Atrnos in accordance with the terms hereof.
5.12. License Agreement, The intent of this Agreement is to grant a license upon the terms and
provisions hereof, solely during the times and solely for the purposes described herein. This
Agreement shall not be construed in any way, manner or form as conveying or assigning to
Atmos any interest in real property, of arzy lcind, naiure or character, in or to the Licensed
Premises,
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IN WITNESS WHEREOF, the parties have executed this Agreement effective this �g�
day of f.!? � , 2012 (the "Effective Date").
CITY OF DENTON
,
_L,
GEORGE C. CAMPBELL, CTTY MANAGER
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY: �
APPR ED A O LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY:
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ATMOS ENERGY CORPORATION
BY: G� w�
NAME: J I: r grave
TITLE: Vice President Operations,
Atmas Pipeline Texas
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EXillblt «l4"
4rigina16.89 Acre Tract
Lone Star Gas Company
545/35 D. R.
Origina! 2 Acre Well Site
Lone Star Gas Company
545/35 D.R.
Existing Well No. 3 •
Proposed
Well No. 10-H
175 ft.
Legend
New Well Licensed Premises
�� � Access Licensed Premises
ANN C, STARK AND ROBERT W,
CALLAHAN TO CITY OF DENTON,
TEXAS
C.F.#97-R0019639
R.P.R.D,C,T.
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400 ft.
Existing Gravel Drive
475 ft.
May 30, 2012
Exhibit "B"
To
Temporary License Agreement
Atmos shall procure and carry, at its sole cost and expense during the term of this
Agreement, insurance protection as hereinafter specified, in form and substance satisfactory to
City, carried with an insurance company (or companies) authorized to transact husiness in the
State of Texas, or through a program of self-insurance, covering all aspects and risks of loss of
a11 operations in connection with this Agreement, including without limitation, the indemnity
obligations set forth herein.
Atmos shall obtain and maintain the ;following insurance coverages in full force and
effect during the term of tlus Agreement, either through a prog�ram of self-insurance, or with
carriers as follows:
Commercial General or Excess Liabilitv:
Per Occurrence Limit:
Aggregate Limit:
$1,000,000
$2,000,000
Business Automobile Liabilitv (providing coverage for owned, non-owned and hired
automobiles):
Per Occurrence Limit
Aggregate Limit:
Statutoxy Worker's Compensation Insurance:
$ 500,000
$1,000,000
Worker's compensation insurance coverage in accoxdance with the statutory
requirements of the State of Texas.
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Environmental Liability
Per Occut�rence Limit:
Aggregate Limit:
$1,000,000
$2,000,000
The City shall be listed as an Additional Insured with respect to the Commercial General
Liability and Business Automobile Liability insurance policies and shall be granted a waiver of
subrogation undex both policies. These requirements shall not apply should Atmos choose to
self-insure .these risks. With respect to Environmental Liabiliiy Coverage only, Atmos shall
require that the contractor performing the work for the New Well also name the City as an
Additional Insured and Loss Payee under the contractor's policy. Atmos will provide a
Certificate of Insurance ("Certificate") on or before the Effective Date of this Agreement to the
City as evidence of coverage. The Certificate will provide 30 days notice of cancellation. A
copy of the additional insured endorsement and waiver of subrogation attached to the policy, as
applicable, shall be included in the Certificate,
All insurance carriers must be admitted to do business in the State of Texas and have an
AM Best's Rating of A-VII or better.
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