HomeMy WebLinkAboutOrdinance 10531-,~s
~.
CITY OF DALLAS § CITY OF FORT WORTH §
COUNTY OF DA ~ ~ ~ COUNTY OF TARRANT § .
Ordinance No. Ordinance No. ~~ •` ~ "~ ~4 ~ ~~
AN ORDINANCE, PASSED CONCURRENTLY BY THE CITY COUNCILS,
RESPECTIVELY, OF THE CITIES OF DALLAS AND FORT WORTH, GRANTING A- ~~.~~ ~~ ~' ~ ~'
SUBSURFACE LICENSE TO ROCH REFINING COMPANY TO OCCUPY, MAINTAIN AND
UTILIZE A CERTAIN STRIP OF LAND LOCATED WITHIN THE SUBSURFACE OF
THE D/FW RAILTRAN CORRIDOR AS MORE FULLY DESCRIBED, FOR THE PURPOSE n ~':~~~
OF INSTALLING A FUEL LINE TO TRANSPORT LIQUID PETROLEUM PRODUCTS;
PROVIDING FOR THE TERMS AND CONDITIONS OF THIS LICENSE; PROVIDING
FOR CERTAIN COMPENSATION TO BE PAID TO THE D/FW RAILTRAN SYSTEM;
PROVIDING FOR PAYMENT OF THE PUBLICATION FEE; AND PROVIDING AN
EFFECTIVE DATE OF THIS LICENSE AND ORDINANCE.
**********
WHEREAS, the City of Dallas and the City of Fort Worth, Texas
municipal corporations (collectively the "Cities"), acquired
certain railroad rights-of-way connecting the Cities (the "Railtran
Property") pursuant to the D/FW Railtran Contract dated January 18,
1984 (the "Contract"); and
WHEREAS, the D/FW Railtran System was established by the
Cities pursuant to the Contract for the management of the Railtran
Property and improvements (the Cities being sometimes collectively
referred to herein, while acting through or on behalf of the D/FW
Railtran System, as "Railtran"); and
+~ r
T
WHEREAS, the Cities have entered into a Operating Rights
Agreement dated February 27, 1984 (the "Agreement"), with the
Missouri-Kansas-Texas Railroad Company ("M-K--T") granting M-K-T
certain operating rights for freight operation over the Railtran
Property; and
WHEREAS, Missouri Pacific Railroad Company ("MP") has
succeeded by merger to all rights and interests of M-K-T in and
under the Agreement; and
WHEREAS, the Cities anticipate continuing to make the Railtran
Property available from time to time to other private or public
entities, including, regional transportation authorities such as
the Dallas Area Rapid Transit ("DART"), for rail transportation
purposes (such other private or public entities, as well as MP and
its parent corporation (and their respective subsidiaries and
affiliates), being sometimes collectively referred to herein as
"Rail Operators"); and
WHEREAS, Koch Refining Company, a Delaware corporation
("Koch"}, desires to use a subsurface strip of land within the
Railtran Property for the purposes herein stated; and
WHEREAS, the Cities have agreed to grant a license to Koch to
use the Railtran Property for such purposes;
NOW, THEREFORE,
BE IT ORDAINED BY THE CITY COUNCILS OF THE
CITY OF FORT WORTH AND THE CITY OF DALLAS:
Section 1. Grant of License. A license ("License"), subject
to the restrictions and conditions of this ordinance, is hereby
- 2 -
~: 1.
granted to Koch to occupy, maintain and utilize for the purposes
set out hereinbelow a subsurface strip of land fifteen feet (15')
in width located within the Railtran Property and more particularly
described in Exhibit A attached hereto and made a part hereof for
all purposes (the "Licensed Area").
section 2. Term. This License is granted for a term of forty
(40) years commencing upon the date of final passage of this
ordinance by the Cities.
section 3. License Fee. Koch shall pay to Railtran a one-
time fee of One Million Six Hundred Thousand and No/100 Dollars
($1,600,000.00) for this License (the "License Fee"). Koch shall
not enter onto the Licensed Area prior to paying the License Fee,
which shall, prior to final passage of this ordinance, be deposited
in escrow with a title company selected by Koch and acceptable to
the Cities, to be disbursed to the Cities by such title company
upon its receipt of written confirmation that Koch has obtained
all remaining easements and licenses to be obtained by Koch in
connection herewith. If such easements and licenses have not been
obtained by Koch within thirty (30) days after final passage of
this ordinance, and Koch has not, upon written request by the
Cities, waived this condition to disbursement, the Cities may,
through their Railtran representatives, terminate this License and
render this ordinance null and void, upon delivery of written
notice to Koch. Upon disbursement to the Cities, the License Fee
shall be deposited into Fund 010, Agency BDG, Org. 9223, Revenue
Source 8553. No additional fees or compensation shall be payable
- 3 -
~ .~ is j,
by Koch for this License during its term; provided, however, Koch
shall pay, as they become due and payable, and before they become
delinquent, all ad valorem tGxes, both general and special
assessments, and governmental charges (other than charges relating
solely to Koch's use of the Licensed Area) lawfully levied or
assessed against Koch's improvements in the Licensed Area, as well
as all normal fees payable under the various construction-related
codes and ordinances of the Cities, subject to Koch's right to
contest the amount or legality of any tax or assessment levied or
assessed against it by any taxing authority, as provided by law.
Section 4. IIse. (a) The Licensed Area shall be used by Koch
for the following purposes: to install, maintain, repair, replace,
operate and remove a single underground fuel pipeline fourteen
inches (14") in diameter and all structures and appurtenances
necessary therefor (the "Pipeline").
(b) Prior to commencing construction of the Pipeline, Koch
shall submit to the Cities and MP detailed construction plans,
specifications and schedules (collectively the "Plans") for review
and approval, which shall not be unreasonably withheld or delayed.
To the extent reasonably possible, the Plans shall provide for
construction of the Pipeline in a manner that minimizes Koch's
interference with the existing operations of Railtran and the Rail
Operators within the Licensed Area. Koch may commence construction
as soon as (1) Koch has received such approvals and any required
permits (fees therefor to be paid by Koch) and (2) Koch has caused
a right-of-entry agreement to be executed and delivered by its
- 4 -
contractor to MP, in a form satisfactory to MP. All construction
shall be accomplished in a good and workmanlike manner, reasonably
satisfactory to the Cities and MP. As soon as the Pipeline has
been installed and surveyed, Koch will provide MP and each of the
Cities with several copies of an as-built survey showing the
location of the Pipeline within the Licensed Area, along with a
complete set of "as-built" drawings certified as correct by Koch's
engineers. Any relocation of existing facilities within the
Railtran Property or the Licensed Area shall be at Koch's sole cost
and expense, and accomplished to the Cities' reasonable
satisfaction. Any modification to the Pipeline shall be reflected
on supplemental "as-built" drawings to be timely provided to
Railtran by Koch, and likewise certified by Koch's engineers.
(c) Railtran may, in the reasonable exercise of its
discretion, conclude that a relocation of a portion of the Pipeline
is necessary for the operation of Railtran's existing or future
facilities or those of one of the Cities or their Rail Operators.
In such event, Railtran shall be required, as a condition precedent
to such relocation, to provide to Koch an alternate route, on the
Railtran Property, for such portion of the Pipeline. Neither the
Cities nor Railtran shall charge Koch for the alternate route.
Koch agrees to bear all costs, including engineering and surveying,
of relocating the Pipeline and the costs of relocating the line of
any other licensee to the extent such line is in place on the date
this ordinance takes effect and is being relocated solely to
accommodate the relocation of the Pipeline. In the event Railtran
- 5 -
determines that a relocation of the Pipeline is necessary as set
forth above, it shall provide Koch reasonable written notice of
such determination and shall designate (1) the proposed alternate
route on the Railtran Property and (2) a reasonable time period in
which to relocate.
(d) Koch agrees to construct, operate and maintain the
Pipeline in a manner that does not unreasonably interfere with the
Cities' or Railtran's activities, or the activities of any
passenger or freight rail operator, including DART or any other
transit agency.
(e) Koch agrees that the design, construction, operation and
maintenance of the Pipeline shall fully meet the requirements of
the Texas Railroad Commission and the United States Department of
Transportation as set forth in the Federal Code of Regulations, as
well as all other applicable standards, laws, rules and
regulations.
(f) Koch further agrees to the following conditions for the
installation, operation and maintenance of the Pipeline:
(1) a minimum of 5-feet of soft-fill cover;
(2) erosion controls with bi-annual testing to determine
depth of cover;
(3) the installation of a warning tape or warning
material one to two feet above the Pipeline;
(4) the Pipeline shall be gradually deepened as it runs
under stream and river beds in order to maintain the minimum
5-feet cover in all areas;
- 6 -
A
~~. a
(5) warning signs shall be placed at 1,000 foot
intervals for the entire distance that the Pipeline runs
through the Railtran Property;
(6) the Pipeline shall be constructed of smooth steel
which is of at least .219 inch thickness X-65;
(7) non-destructive testing at the following intervals
shall be conducted utilizing industry standard best available
technology to examine pipe wall thickness and potential
pitting: every five (5) years during the first ten (10) years
of this License, every three (3) years during the second ten
(10) years, and every one and one-half (1-1/2) years during
the final twenty (20) years of this License;
(8) a phone-link communications and supervisory control
system will be in place when pipeline operations commence and
will be upgraded to a satellite communications and supervisory
control system as soon as such satellite system is reasonable
available to Koch (such systems shall be manned continuously-
-24 hours a day, 365 days a year--although temporary
interruptions in supervisory control, caused by maintenance,
repair or improvement of the equipment involved in the
furnishing of supervisory control, or caused by other matters
beyond the reasonable control of Koch, may occur);
(9) a leak detection system will be installed which
scans the entire Pipeline at 4 to 5 second intervals;
(10) the cathodic protection system shall be designed so
that it will not interfere with adjacent utilities; and
- 7 -
(11) the Pipeline shall only carry liquid petroleum
products (e.g., gasolines, diesels and aviation fuels). No
butane, propane or natural gas will be transported through the
Pipeline.
(g) The Cities, Railtran and their respective contractors
shall not, without Koch's prior written consent, which shall not
be unreasonably withheld, remove or allow the removal of the soft-
fill cover placed over the Pipeline by Koch. In the event Koch
consents to removal of such cover by the Cities, Railtran or their
contractors, the Cities shall be responsible for restoring such
cover to its original condition. The Cities shall not be
responsible for restoring cover lost by natural erosion, however.
(h) The Cities and Railtran hereby consent to the temporary
use by Koch of additional areas within the Railtran Property and
adjoining the Licensed Area for purposes of performing work
relating to the initial installation of the Pipeline in accordance
with the Plans. In regard to future maintenance, repair or
replacement of the Pipeline within the Licensed Area, Koch shall
have the right of ingress and egress to and from the Licensed Area
so long as its exercise of such right does not unreasonably
interfere with the Cities' or Railtran's activities or the
activities of any other Rail Operators. Koch shall deliver written
notice in advance (except in the case of emergencies) to Railtran
of its entry onto the Licensed Area for purposes of performing such
work. If such entry by Koch would interfere with the foregoing
activities, Koch will (1) request specific approval from Railtran
- 8 -
prior to entering onto such area and (2) will exert good faith
efforts to minimize the interference.
Section 5. Nonexclusivity. This License is nonexclusive and
is made expressly subject and subordinate to (a) the right of the
Cities to use the Licensed Area for any municipal or Railtran
activities, and (b) the use of the Railtran Property for railroad
purposes by any entity permitted by the Cities. It is expressly
understood and agreed that Railtran has the right to construct or
allow the construction of spur tracks and similar appurtenances
over the Licensed Area. Notwithstanding the foregoing, but without
limiting the Cities' rights under any other provision of this
ordinance, and so long as Koch is in compliance with the terms of
this ordinance, the Cities will not prevent Koch from attaining
Koch's fundamental objective in obtaining this License, namely, to
use the Railtran Property for the installation, maintenance and
operation of a fuel pipeline and all structures and appurtenances
necessary for its efficient and safe use; provided that this
provision will not limit or restrict the federal government's right
to require termination or modification of this License.
Section 6. Removal of Pipeline. At such time as this License
expires by its terms or is terminated in accordance herewith, Koch,
upon its receipt of written notice issued by the Cities acting
through the Railtran Manager, shall, within a reasonable period of
time, remove the Pipeline from the Licensed Area, and shall restore
such area to its former condition. If Koch fails to remove the
Pipeline and restore the Licensed Area within a reasonable period
9 -
<:,
of time after its receipt of such notice, or if such work is not
done to the reasonable satisfaction of the Railtran Manager, then
in either event the Cities shall have the additional right, at
their option, to do all work necessary to restore such area to its
former condition or cause such work to be done, and to assess the
cost of such work against Koch.
Section 7. Insurance. (a) Koch shall obtain and maintain
during the term of this License the following policies of insurance
with companies reasonably satisfactory to the Cities:
(1) Commercial general liability insurance, with a
company approved to do business in the State of Texas,
including contractual liability and independent contractor
coverage, insuring against bodily injury and property damage,
naming the Cities and their Rail Operators, including DART and
MP, as additional insureds, to protect the Cities and all
named insureds from and against any and all claims for damages
to persons or property arising hereunder, to the extent of the
amount of insurance specified in this Section 7(a)(1). Such
insurance shall be in the amount of $2,000,000 per occurrence
and in the aggregate.
(2) Umbrella excess liability insurance insuring against
bodily injury and property damage, naming the Cities and their
Rail Operators, including DART and MP, as additional insureds,
to protect the Cities and all named insureds from and against
any and all claims for damages to persons or property arising
hereunder, to the extent of the amount of insurance specified
l0
in this Section 7(a)(2). Such insurance shall be in the
amount of $8,000,000 per occurrence and in the aggregate, and
shall follow the form of and is in excess of the commercial
liability coverage referenced above.
(3) Pollution liability insurance of a type and amount
from time to time reasonably available to Koch in the
insurance marketplace. Upon final passage of this ordinance,
Koch will evidence insurance of this type in the amount of
$10,000,000. The Cities acknowledge, however, that insurance
of this type and amount may not be reasonably available to
Koch in the future. For so long as insurance of this type is
reasonably available to Koch, such insurance shall name the
Cities and their Rail Operators as additional insureds, to
protect the Cities and the named insureds against any and all
claims for damages to persons or property arising hereunder,
to the extent of $10,000,000 or such lesser amount as may then
be reasonably available to Koch. Deductibles on this type of
insurance, if any, shall be the sole responsibility of Koch,
so long as such deductibles are disclosed to the Cities upon
request.
It is understood and agreed that the coverage provided to the
Cities and their Rail Operators as additional insureds under the
coverage to be obtained pursuant to Section 7(a)(2) and this
Section 7(a)(3) shall not exceed a combined annual aggregate of
$10,000,000. It is further understood and agreed that the
additional insureds status and/or waiver of subrogation granted to
- 11 -
Rail Operators, including DART and MP, shall operate and be
construed to protect the Rail Operators to the full extent, but
only to the extent, required by the Agreement or any fLture
agreement between the Cities and such Rail Operators. Koch shall
carry such insurance at its sole expense, and shall provide
certificates of insurance to Railtran, the Cities and their Rail
Operators that shall indicate that no cancellation will be
effective without first giving thirty (30) days written
notification to the Cities. The insurance must be maintained and
evidence provided throughout the term of this License.
(b) It is understood and agreed that Koch or Koch's
contractors shall at all times while engaged in the installation,
maintenance, repair or replacement of the Pipeline during the term
of this License carry the following minimum insurance with
companies approved to do business in the State of Texas and
reasonably satisfactory to the Cities and their Rail Operators,
insuring Koch against any and all claims for injuries to persons
or damage to property as a result of or arising out of such
installation, maintenance, repair or replacement by Koch or Koch's
contractors of the Pipeline:
(i) Workers compensation insurance as required by Texas
law with the policy endorsed, where available, to provide a
waiver of subrogation as to the Cities and their Rail
Operators, and employer's liability insurance of not less than
$500,000 per accident.
- 12 -
(2) Commercial general. liability insurance, including
completed operations, independent contractor and contractual
liability, insuring each contractor's liability for bodily
injury, and for damage to property of third parties, in the
amount of $500,000 per occurrence and in the aggregate. Each
contractor's policy under this paragraph and paragraph (3)
next shall name the Cities and their Rail Operators as
additional insureds.
(3) Commercial auto liability insurance, covering owned,
hired and nonowned vehicles, with minimum limits of $500,000
per accident, for bodily injury and property damage combined.
(4) During initial construction of the Pipeline and
during repairs or major alterations thereof, Koch's contractor
shall obtain umbrella excess liability coverage insuring the
contractor for an amount not less than $5,000,000 combined
single limit, for bodily injury and property damage liability,
including death, in excess of the liability coverages required
above with the Cities and their Rail Operators as additional
insureds.
(c) It is understood and agreed that where the phrase
"commercial general liability insurance" is used in this Section 7
it shall mean with respect to renewals thereof, the then standard
form adopted by Insurance Services Office, Inc., or its industry
successor. The commercial general liability insurance must be at
least as broad as the then standard form. The umbrella coverage
must follow the form of the underlying commercial general liability
- 13 -
insurance. The Cities acknowledge that, while Koch is currently
evidencing "occurrence" coverage under such insurance, this type
of coverage may not be reasonably mailable to Koch in the future
and that, accordingly, such "occurrence" coverage may be amended
at some future date, without the prior approval of the Cities, to
"claims made" coverage if such "occurrence" coverage is no longer
reasonably available to Koch. Notice of such change in coverage
will be provided to the Cities at the time the new coverage takes
effect.
(d) The Cities reserve the right to review the amounts of the
insurance required in this Section 7. Such review shall be
conducted no more frequently than at intervals of five (5) years.
At such review, the Cities may require a reasonable increase in the
amounts of insurance. Failure by Koch to obtain such shall be
grounds for termination of this License.
Section 8. Indemni ~ and Release. (a) Koch agrees to
indemnify and defend (with counsel of Koch's choice) (1) Railtran,
the Cities and their Rail Operators, including DART, and their
respective officers, employees, agents and contractors (while
acting within their official capacities) against any and all claims
for injuries (including death), damages, costs and expenses
(including reasonable attorney's fees and court costs), to persons
or property, resulting from the negligence of Koch or its
representatives, agents, contractors, invitees or employees in
connection with the Licensed Area during the term of this License
and (2) Railtran, the Cities and DART, and their respective
- 14 -
officers, employees, agents and contractors (while acting within
their official capacities) against any and all claims for injuries
(including death), damages, costs and expenses (including
reasonable attorneys' fees and court costs), to persons or
property, resulting from the act or omission of any person entering
upon the Licensed Area during the term of this License.
(b) Koch agrees to indemnify and defend (with counsel of
Koch's choice) Railtran, the Cities and their Rail Operators,
including DART, and their respective officers, employees, agents
and contractors (while acting in their official capacities) against
any and ali claims for injuries (including death), damages, costs
and expenses (including reasonable attorney's fees and court
costs) , to persons or property, arising under or resulting from any
violation of RCRA, CERCLA or any other federal, state or local
environmental statute, regulation or ordinance by Koch including,
without limitation, all claims in connection with the presence
within the Licensed Area or release from or to the Licensed Area
of hazardous substances or liquid or solid waste disposed of or
otherwise released into the environment as a result of Koch's use
of the Licensed Area for the purposes herein stated.
(c) The Cities and Koch agree that the indemnities relating
to Sections 8(a)(1) and 8(b) shall inure to the benefit of the
successors in interest to the Cities under the Contract in addition
to the parties herein stated, but that the indemnity relating to
Section 8(a)(2) shall only inure to the benefit of the parties
expressly listed in Section 8(a)(2) and no others.
- 15 -
~~
(d) As to the Cities and their Rail Operators, Koch agrees
to accept and assume all risks in connection with the use and
occupancy of the Licensed Area, including acceptance of same "As
Is" and "With All Faults". The Cities make no warranties or
representations, express or implied, concerning the condition or
suitability of the Licensed Area for any particular use or purpose.
In the event, through the negligence or fault of the Cities or the
Rail Operators, the Pipeline or other property of Koch is damaged
or destroyed, or use thereof is interrupted, Koch hereby agrees to
unconditionally waive, release and indemnify the Cities and their
Rail Operators from any loss, cost, damage or claim Koch or any
entity served by Koch may have sustained or may claim in connection
with such negligence or fault of the Cities or their Rail
Operators, as well as any repair or replacement costs.
(e) None of the parties indemnified by Koch pursuant to
Sections 8(a) and 8(b) shall have a claim against Koch unless (1)
the Cities or their successors under the Contract shall have
promptly notified Koch, in writing, of such loss and (2) in respect
of any loss covered by Section 8 (a) , if the damage or injury giving
rise to such loss involves the possible diminution in value of
assets of such party, such party shall have exerted reasonably
diligent efforts to avoid such diminution.
(f ) The indemnities set forth in this Section 8 shall survive
the expiration or termination of this License in respect of events
occurring during the term of this License or while Koch continues
to use, or has improvements on, the Licensed Area.
- 16 -
Section 9. Termination for Cause. (a) The governing bodies
of the Cities reserve the right, subject to subsection (b) below,
to terminate this ordinance and License by means of ordinance or
resolution duly adopted by such governing bodies upon, but only
upon, the happening of any of the following events of default:
(1) Breach of any of the provisions of Section 4(f)
above by Koch.
(2) Koch's failure to provide and maintain the insurance
coverages required by Section 7 above.
(3) Koch's failure to comply with any applicable
federal, state or local law or regulation relating to the
construction, operation or maintenance of the Pipeline.
(4) Koch's failure to comply with the provisions of
Section 18 below.
(5) Any lien related to Koch's activities filed against
the Licensed Area or Railtran Property and not released or
otherwise removed or bonded within sixty (60) days after
written notice, from any source, to Koch of the filing
thereof.
(6) Any other breach by Koch of the terms of this
License.
(b) Provided, however, that. the Cities shall not be entitled
to exercise their right of termination hereunder unless written
notice of such default shall have been delivered to Koch, and (1)
Koch shall have failed to cure such default within sixty (60) days
after its receipt of such notice, if same is susceptible of being
- 17 -
cured within said sixty (60) day period or (2), in the event that
cure is not possible by the exercise of reasonable diligence within
such cure period and Koch has notified the Cities of such fact and
outlined a detailed schedule for the cure of such default promptly
after Koch's receipt of such notice, Koch shall have failed to
prosecute such cure to completion in a reasonably diligent manner.
If deemed necessary for safety reasons by the Cities, in the
reasonable exercise of their discretion, all uses of the Pipeline
for the transmission of liquid petroleum products shall be
suspended during any such extended cure period.
(c) The right to terminate this License pursuant to this
Section 9 shall be cumulative of any other remedies available to
the Cities, at law or in equity, for Koch's breach of this License.
All such remedies may be exercised concurrently and whenever, and
as often, as the need therefor arises.
(d) Waiver of any breach does not constitute a continuing
waiver or a waiver of any subsequent breach of this License.
(e) As a condition precedent to the exercise of the Cities'
right to terminate this License because of the occurrence of the
event of default specified in Section 9(a)(4) above (where such
default continues beyond the applicable cure period), the Cities
shall refund a pro rata portion of the License Fee to Koch,
calculated by multiplying the amount of the License Fee by a
fraction having as its numerator the number of months or partial
months then remaining in the term of this License and having as its
I8
denominator the number 480, which is the total number of months in
the term of this License.
Section 10. Applicable Law. This License is subject to all
federal, state and local laws, ordinances and regulations. The
provisions hereof shall be construed in accordance with the laws
of the State of Texas.
Section 11. Notice. Any notice or communication required in
the administration of this ordinance shall be sent by certified
mail, return receipt requested, postage prepaid, addressed as
follows, unless otherwise advised by written notice:
Cities•
City of Dallas:
Property Management Director
320 E. Jefferson, Rm. 203
Dallas, Texas 75203
City of Fort Worth:
Railtran Manager
1000 Throckmorton St.
Fort Worth, Texas 76102
Koch:
Koch Refining Company
P. O. Box 2256
Wichita, Kansas
Attention: President
With a copy to:
Aster & Hadden
1717 Main Street, Ste. 4100
Dallas, Texas 75201
Attention: Forrest Smith, Esq.
- 19 -
.. -- ..
~ '" `.M
Section 12. Parties Bound. Except as otherwise expressly
stated herein, the terms and conditions contained in this ordinance
shall inure to the benefit of and be binding upon the Cities and
Koch and their respective successors and permitted assigns. This
ordinance contains the entire agreement between the Cities and Koch
with respect to this License. No modification or change in the
terms hereof shall be binding upon either party unless set forth
in a document duly executed by the party sought to be bound or
otherwise expressly approved in writing by such party.
Section 13. Assignment. (a) This License may not be
assigned without prior written consent of the Cities, which will
not be unreasonably withheld; provided, however, that the
determination of the City Councils of the Cities in this matter
will be final and binding if made in good faith. Such assignment,
if approved, shall recite that it is subject to the terms,
restrictions, and conditions contained in this ordinance but shall
not be conditioned on the payment of any additional consideration
to Railtran or the Cities, other than nominal administrative
expenses, if any. Notwithstanding the foregoing, Koch may assign
this License to its parent corporation or any entity into which
Koch or its parent corporation merges or any entity owned at least
fifty percent (50%) by Koch or its parent. The assignee shall
deliver a copy of the assignment, along with the assignee's written
acceptance of the provisions of this ordinance, to the Cities in
accordance with Section 11 within ten (10) days after such
- 20 -
%. M 1
6 L
charge therefor, and in respect of costs and expenses that the
Cities or Railtran, on behalf of Koch, incur, pay or become
obligated to pay to any third parties, the cost or expense shall
be at the actual rates incurred, paid or obligated to be paid by
the Cities or Railtran, as the case may be, without mark-up or
surcharge of any kind.
Section 17. Recordation. The City Secretaries are hereby
authorized and directed to certify a copy of this ordinance for
recordation in the Real Property Records of Tarrant County, Texas,
which certified copy shall be delivered to the Property Management
Director, or his designee. Upon receipt of the fee for the forty
(40) year term, an acceptable certificate of insurance, and the fee
for publishing this ordinance, which Koch shall likewise pay, the
Property Management Director, or his designee, shall deliver to
Koch a certified copy of this ordinance duly executed by the
Cities. The Property Management Director, or his designee, shall
be the sole source'~for receiving certified copies of this ordinance
for one year after its passage.
Section 18. IIMTA. This License is subject to review by the
Urban Mass Transportation Administration ("UMTA") in order to
verify that the Licensed Area does not restrict or prohibit mass
transportation operations or related purposes of Railtran, or its
designees, now or in the future. The Cities and Koch understand
and agree that the Pipeline shall be operated in such a manner so
as not to adversely affect the Federal interest or impair the use
of the property, facilities or equipment funded by the Federal
- 22 -
p A.~
~ A
assignment, who will then forward such assignment and written
acceptance to the City Secretaries of the Cities.
(b) Koch shall not be released from its obligations hereunder
unless the Cities have expressly approved such release in writing.
Section 14. Consent. Whenever any provision in this
ordinance requires that the consent or approval of one party be
obtained prior to the taking of any action by or in behalf of the
other party, then such consent or approval by the party required
to give same shall not be unreasonably withheld or delayed.
Further, it shall be deemed, prima facie, unreasonable for one
party to condition its consent or approval upon the agreement of
the other party to increase the economic benefits to which the
party whose consent is required would otherwise be entitled. This
paragraph shall not apply to Section 13.
Section 15. Third Party Oblictations. Whenever Koch is
required to perform any obligation to a person or entity not
specifically named in this ordinance, the failure of which to
perform would be an event of default hereunder, Koch shall not
become liable or responsible for, and there shall be excluded from
the computation of any period of time prescribed herein for
performance of such obligation, the period during which Koch is
contesting in good faith and with reasonable diligence the
imposition or extent of such obligation.
Section 16. Costs. If Koch is required to pay a
reimbursement to the Cities or Railtran for the cost or expense of
any item, the cost or expense shall be the reasonable and customary
- 21 -
a~ ,~ Tr -
,y. r= ~
Government in such a manner as to inhibit the use of such property,
facilities or equipment for mass transportation purposes. The
provisions of the Offer of Contractual Assistance executed by the
Cities in favor of UMTA, identified as UMTA Project TX-03-0082, are
incorporated herein by this reference.
Section 19. Effective Date. This ordinance shall take effect
immediately from and after its passage and publication in
accordance with the provisions of the charters of the Cities of
Dallas and Fort Worth and it is accordingly so ordained.
APPROVED AS TO FORM:
ANALESLIE MIINCY, City Attorney
Assistant City Atto "ey
PASSED F~B 2 ~ j
PROPERTY ENT CTOR
,-
. G. PEPPER
FID-789
APPROVED AS TO FORM AND
LEGALITY:
WADE ADRINS, City Attorney
By:
Assistant City ttorney
ADOPTED ~e.b-~daY~, Zo , (~I~IQ
EFFECTIVE Fe 6 vuuru Z U. 1 9 °l d
c -~a~~ 7
Contr ct Au or z ion
Date
ROCH REFINING COMPANY
ACCEP ~ D. P9"~
By: '
Typed Name: hock Johnson
Title: lce President
CITY OF FO T WORTH
By
~-David A, I y
City Manager
City of Fort Worth, Texas
- 23 -
w
,... 4,t,~ A ~
EXHIBIT A
Licensed Area
A strip of land fifteen feet (15') in width lying immediately north
of the southern boundary of the Railtran Property and extending
eastward from the easterly side of Haltom Road in Fort Worth, Texas
to a line lying approximately 10.3 miles east of Haltom Road and
approximately two thousand feet (2,000') west of State Highway 157,
then proceeding in a northerly direction under the existing
railroad tracks and Mosier Valley Road to the northern boundary of
the Railtran Property, all as more fully described in that Survey
dated November 21, 1989, prepared by Everage, Smith, Farrington and
Associates, incorporated herein by this reference, a copy of which
having been furnished to Railtran.
MASTER FICfsll ~ ((~~ } ~y. f r Q
ACCOUNTIN0+2 ~iZl.~ ®f ~~` " ~®Y ~~~ ~~i~~~
ZBAI1Se0RTATlON~P.YB~~ ~`~17„® U ~ltL~~ ~L,/® LL~iV~IL~~ ~./®~~ ILiL~ IL~~IAL~~®~
NA~CRADMINISTRATIOK/~~/~ ~'//°~///
V~~ / DATE REFERENCE suB~ECT GREEMENT GRANTING 40-YEAR PAGE
NUMBER LICENSE TO KOCH REFINING COMPANY 1
2-20-90 C-'12176 FOR PLACEMENT OF ITS PIPELINE IN I°r~
RECOMMENDAT.ION•
It is recommended that the City Council authorize the City Manager to execute
the attached License Agreement with Koch Refining Company authorizing place-
ment of its pipeline in the D/FW RAILTRAN right-of-way.
DISCUSSIO N
RAILTRAN staff has been in informal negotiations with the Koch Refining
Company, hereinafter called "Koch", regarding the proposed construction of an
aviation...products .pipeline between the Koch Refinery in Corpus Christi and
the D/FW Airport since April, 1989. Serious negotiations have been in pro-
gress since late November, 1989.
RAILTRAN staff consulted Dr. Ned Burleson and Mr. Don Hankins, an independent
pipeline expert who was hired by the City of Fort Worth, to advise us on
safety issues and any technical specifications that should be included
• in the agreement. RAILTRAN staff also worked closely with the Property
Management Office of Dallas and the Real Property Department of Fort Worth in
order to determine the payment that should be required from Koch. Staff con-
ducted independent research which involved contacting railroads that have
pipelines in their right-of-ways, as well as reviewing the regulations of the
American Railway Engineering Association and the Department of Transportation
which are codified in the Code of Federal Regulations.
Koch's request involves the use of 10.3 miles (54,384 linear feet) of the
RAILTRAN right-of-way. The pipeline will be constructed according to require-
ments which are set forth in the attached License Agreement. The pipeline
will be laid in a strip of land fifteen feet in width lying on the northerly
side of the southern boundary of the RAILTRAN right-of-way. Koch has agreed
to relocate the pipeline at its own expense if in the future mass transit or
other RAILTRAN needs require its relocation. Koch further agrees to construct
the pipeline in such a way as to not interfere with RAILTRAN activities.
Koch has agreed to an up-front payment of $1.6 million for the forty-year
term of the agreement.
The RAILTRAN Policy Committee has reviewed the terms of this proposed agree-
ment and recommends its approval by the Cities.
FINANCING -"
This License Agreement will have no impact on the General Fund. APPR~VEO BY
CITY COUNCiI
WWW f/6 ~
Attachment ~~
SUBMITTED FOR IHt
OIF ICEABYGER'S
Ramon Guajardo
6191 DISPOSITION BY COUNCIL.
^ APPROVED PROCESSED BY
~
G OTHER (DESCRIBE) ~
ORIGINATING
DEPARTMENT HEAD: Gary Santerre O
7001 ~''~~~~'-
~OtiOtQis- O~ tt1~1
FOR ADDITIONAL INFOgNJATIO
g
sso
~
8079
Ado ted 0 DQI~FEVVOrB, "!+>to6
CONTACT l $a
oru