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ORDINANCE NO . ~/ Y Y?~
AN ORDINANCE PERMITTING AND REGULATING THE CONSTRUCTION,
MAINTENANCE AND USE OF A SUBSURFACE LIQUID PETROLEUM
PRODUCTS PIPELINE BY EXPLORER PIPELINE COMPANY ACROSS,
OVER AND UNDER CERTAIN STREETS, HIGHWAYS, PUBLIC
RIGHTS-OF-WAY OF THE CITY OF FORT WORTH; MAKING THIS
ORDINANCE CUMULATIVE OF ALL PROVISIONS OF ORDINANCES AND
THE CODE OF THE CITY OF FORT WORTH (1986), AS AMENDED,
AND REPEALING ALL PRIOR ORDINANCES IN DIRECT CONFLICT
HEREWITH; PROVIDING FOR A SEVERABILITY CLAUSE; PROVIDING
FOR PUBLICATION; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, Explorer Pipeline Company, a Delaware corporation,
hereinafter referred to as "Explorer", desires the use of certain
public street rights-of-way within the City of Fort Worth, for the
purposes set forth below, pursuant to the provisions of State or
federal laws as applicable; and
WHEREAS, it is the position of the City of Fort Worth that
Explorer must obtain a license in order to use the public
rights-of-way; and
WHEREAS, the Fort Worth City Council has determined that it is
appropriate to grant said license to Explorer; NOW, THEREFORE,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FORT WORTH,
TEXAS:
SECTION 1.
PURPOSE
THAT the City of Fort Worth (hereinafter referred to as the
"City") hereby grants to Explorer for the full term of twenty-five
(25) years from the effective date of this ordinance, a
non-exclusive license ("License") to install, maintain, repair,
replace, operate and remove in, under, along and across certain
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streets and other public rights-of-way of the City a single
underground liquids petroleum pipeline twelve and three quarters
inches (12 3/4") in diameter for the transportation of liquid
petroleum products, and all structures and appurtenances necessary
therefor (the "Pipeline"), subject to the provisions of this
ordinance. The public right-of-way which Explorer shall use
pursuant to this ordinance shall be the following street crossings
("Licensed Area"), as same are encountered on the route shown
specifically on Exhibit "A" attached hereto and incorporated herein
by reference for all purposes `incident hereto:
BEACH. STREET
LONG AVENUE
SYLVANIA AVENUE
WATAUGA ROAD
COLD SPRINGS ROAD
The system will cross approximately 832 linear feet of City
right-of-way.
SECTION 2.
REGULATION OF CONSTRUCTION
The work done by Explorer in installing, maintaining.,
repairing, replacing, operating and removing the Pipeline shall be
subject to and governed by all applicable federal, state and local
laws, rules and regulations. Explorer shall further comply with
all City requirements, regulations and directives to insure the
work done does not inconvenience the public in the use of the
Licensed Area, including but not limited to the following:
A. Prior to any construction, maintenance or other changes
to the Pipeline which will require any digging, cutting,
t.
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occupation, or any other such disruption of the City right-of-way
or City property, Explorer shall submit engineering plans and
construction schedules to the City for review and approval,
pursuant to the standards generally applicable to requests for the
privilege to use the public right-of-way, including the City's
utility location and coordination policy. Approval of such plans
will not be unreasonably delayed, unreasonably withheld or
unreasonably denied by the City.
B. All excavations, construction, or maintenance in the
streets shall be carried out so as to interfere as little as
practicable with the surface use of the streets and sidewalks and
with the surface use of public property, in accordance with any
lawful and reasonable direction given by or under the authority of
the governing body of the City or under the police and regulatory
powers of the City necessary to provide for public convenience and
safety. Explorer shall as promptly as is practicable and
reasonable in the circumstances restore all public right-of-way and
property excavated by Explorer to substantially the same condition
as before such excavation and to the reasonable satisfaction of the
City. Explorer shall comply with all other construction
requirements of the City and its Transportation/Public Works
Director with respect to hours of construction and/or maintenance
operations in busy peak traffic hours, barricading requirements,
and/or any other reasonable construction rules which may be
lawfully promulgated.
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C. Except in an emergency, Explorer shall not excavate any
pavement in any public right-of -way or significant amounts of any
unpaved public right-of-way or other City property without first
securing the permission of the City, but such permission shall not
be unreasonably delayed, unreasonably withheld or unreasonably
denied if the proposed excavation is in accordance with the terms
of this ordinance. The City shall be notified as soon as
practicable regarding work performed under emergency conditions.
D. The City shall have the power at any time to order and
require Explorer, at Explorer's expense, to repair, remove, or
replace any Explorer system facility that is unreasonably dangerous
to life andjor property. In the event Explorer, after notice and
reasonably sufficient time, fails or refuses to correct such
condition, the City shall have the power to request removal of the
same by a qualified contractor, at the expense of Explorer and
without compensation or liability for damages to Explorer; PROVIDED
THAT the City gives twenty-four hours actual notice to Explorer of
its intent to repair, remove or replace a system facility, so that
the Pipeline may be shut off..
SECTION 3.
NONEXCLUSIVE LICENSE: WORK BY OTHERS
A. This license is nonexclusive and is made expressly
subject and subordinate to (1) the right of the City to use the
Licensed Area for any purpose that the governing body of the City
may deem necessary or proper; (2j the rights of any other
governmental entity; and (3) the rights of any person, corporation
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or other entity having an existing franchise or other use agreement
covering the Licensed Area as of the effective date of this
ordinance (the "Permitted Users").
B. City may require Explorer, upon reasonable notice, to
relocate its pipeline system because of changes in the grade of a
street or to accommodate any other public use of the Licensed Area
required by the City. In the event relocation is required in order
to enable the City, other governmental entity, or a Permitted User
to use the Licensed Area, Explorer shall perform the required
relocation as soon as practicable, at Explorer's sole expense and
without claim for reimbursement or damages against the City, or
other governmental entity, or Permitted User.
C. In the event City requires Explorer to relocate its
pipeline system for the benefit of any person, entity or
corporation (Non-Permitted User) other than the City, other
governmental entity, or a Permitted User, it shall be a condition
precedent to Explorer's obligation that such Non-Permitted User
shall have undertaken with solvent bond to reimburse Explorer for
any such loss and expense which will be caused by or arise out of
such relocation of Explorer's pipeline system.
SECTION 4.
USE; SAFETY PROVISIONS
(a) Explorer represents and agrees that the design,
construction, operation and maintenance of the Pipeline is
regulated by and shall fully meet the requirements of the United
States Department of Transportation as set forth in the Code of
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Federal. Regulations, as well as all other applicable standards,
laws, rules and regulations.
(b) Explorer further agrees to the following conditions for
the installation, operation and maintenance of the Pipeline:
(1) minimum of five feet of fill cover;
(2) erosion controls;
(3) a phone link communication and supervisory control
system, in conformance with 49 CFR 195, will be in place
when Pipeline operations commence, (such system 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 Explorer may occur);
(4) a leak detection system will be installed which scans the
entire Pipeline at appropriate intervals;
(5) the cathodic protection system shall be designed so that
it will not interfere with adjacent utilities;
(6) the Pipeline shall only carry liquid petroleum products,
mixing components, or derivatives (e.g. gasolines,
diesels and aviation fuels); no butane, propane, or
natural gas will be transported through the Pipeline;
(7) modifications to the Pipeline shall be constructed with
pipe in conformance with 49 CFR 195;
(8) All testing of the Pipeline shall be performed as
required by 49 CFR 195;
(9) All other reasonable regulations normally imposed by the
City upon petroleum product pipelines, to the extent that
such regulations are not inconsistent with or superseded
by 49CFR 195 or any other federal safety standards.
SECTION 4.
CONSTRUCTION BY ABUTTING OWNERS
In the event that the governing body of the City of Fort Worth
grants abutting landowners the right to occupy space under the
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surface of any public right-of-way after the adoption of this
ordinance, such grant to abutting landowners shall be subject, to
the extent permitted and determined by law, to any prior rights of
Explorer, as granted by this ordinance.
SECTION 5.
RIGHTS IN THE EVENT OF ABANDONMENT OF PUBLIC RIGHT-OF-WAY
In the event the governing body of the City of Fort Worth
vacates or abandons any public right-of-way which contains the
system of Explorer installed hereunder, any conveyance of any
interest in the land contained in such vacated or abandoned street,
alley, highway or public place shall be subject to the rights of
Explorer described in this ordinance. In such event, the rights of
Explorer shall be confined to the subject street, alley, highway or
public place, and shall not exceed a twenty (20} foot wide
non-exclusive license, the centerline of which shall be the
centerline of the Pipeline. In the event that any portion of the
public right-of-way that includes facilities of the system becomes
the subject of condemnation proceedings, it is agreed that
Explorer's property rights and interest in such public right-of-way
shall be severed from the City's interest in such proceedings and
any such condemnation awards shall be specifically allocated
between Explorer's interest and the City's interest. In the event
any such public right-of-way is sold by the City in lieu of
condemnation, the monies paid therefor shall be apportioned between
the City and Explorer in the same manner as an award in
condemnation proceedings.
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SECTION 6.
REMOVAL OF PIPELINE
At such time as this License expires by its terms or is
terminated in accordance herewith, Explorer, upon its receipt of
written notice issued by the City, shall, within a reasonable
period of time, remove the Pipeline from the Licensed Area, and
shall restore such area to its former condition. If Explorer fails
to remove the Pipeline and restore the Licensed Area within a
reasonable period of time after its receipt of such notice, or if
such work is not done to the reasonable satisfaction of the City,
then in either event the City shall have the additional right, at
its option, to do all work necessary to remove the Pipeline and to
restore such area to its former condition or cause such work to be
done, and to assess the reasonable cost of such work against
Explorer.
SECTION 7.
INSURANCE
A. The following insurance requirements are those which the City
normally requires of pipeline companies desiring to install and
operate pipelines under City streets for the transportation of
liquid petroleum products:
Explorer shall obtain and maintain during the term of this
License the following policies of insurance with companies
reasonably satisfactory to the City:
(1) Commercial general liability insurance, with a company
approved to do business in the State of Texas, including
contractual liability and independent contractor
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coverage, insuring against bodily injury and property
damage, naming the City as additional insured, to protect
the City from and against any and all claims for damages
to persons or property arising hereunder. Such insurance
shall be in the amount of $2,000,000 per occurrence and
in the aggregate.
(2) Umbrella excess liability insurance against bodily injury
and property damage, naming the City as additional
insured, to protect the City from and against any and all
claims for damages to persons or property arising
hereunder. Such insurance shall be in the amount of
$8,000,000 per occurrence and in the aggregate that
follows 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 Explorer in the
insurance marketplace. Upon final passage of this
ordinance, Explorer will evidence insurance of this type
in the amount of $10,000,000. The City acknowledges,
however, that insurance of this type and amount may not
be reasonably available to Explorer in the future: For
so long as insurance of this type is reasonably available
to Explorer, such insurance shall name the City as
additional insured, to protect the City 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 Explorer.
Deductibles on this type of insurance, if any, shall be
the sole responsibility of Explorer, so long as the
deductibles are disclosed to the City upon request.
It is understood and agreed that the coverage provided to the
City as additional insured under the coverage to be obtained
pursuant to Section 7A(2) and Section 7A(3) shall not exceed a
combined annual aggregate of $10,000,000. Explorer shall carry all
insurance at its sole expense and shall provide certificates of
insurance to the City that shall indicate that no cancellation or
substantial modifications of such insurance will be effective
without first giving thirty (30) days written notification to the
City. The insurance must be maintained and evidence of such
insurance provided to the City throughout the term of this License.
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B. City and Explorer agree that in the event that Explorer
desires not to furnish the types and amounts of insurance
prescribed in Section 7A above, then Explorer shall maintain, in
lieu of such insurance and insurance amounts, a self-insurance
program which will provide a guarantee that Explorer will fulfill
its liability obligations contemplated in Sections 7A and 8 hereof .
Explorer acknowledges that the City has agreed to such self-
insurance based on the information and representations contained in
the Financial Statements of Explorer Pipeline Company for December
31, 1992 and 1991. City agrees that such self-insurance is
acceptable to the City in lieu of the City's usual insurance
requirements for pipeline companies, provided that City, in its
sole discretion, is reasonably satisfied and reasonably assured
that:
(a) a "Throughput and Deficiency Agreement", as
described in Note 4 of Explorer's 1991 and 1992
Financial Statements remains in effect in
substantially the form described therein;
(b) Explorer's financial condition, the financial
condition of its stockholders and of its parent
companies remain substantially the same as or
greater than they are as of the date of Explorer's
1991-1992 Financial Statements.
To enable the City to satisfy itself as to the existence of
conditions (a), and (b) above, Explorer agrees, as a condition to
the City's agreement to consider the use of self-.insurance in lieu
of the City's standard insurance requirements for pipelines, to
annually furnish to the City a copy of Explorer's Financial
Statement for the previous year, with an independent auditors
report, which reflects the subject "Throughput and Deficiency
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Agreement" and the financial ability of the stockholders and parent
companies of Explorer to fulfill their obligations under such
Agreement.
In the event that the City is not reasonably satisfied or
reasonably assured of the existence of conditions (a) and (b)
above, then City shall give written notice by certified mail to
Explorer notifying Explorer of its dissatisfaction or lack of
assurance and the reasons therefor, and Explorer thereafter shall
have sixty (6'0) days to furnish revised or additional information
as to conditions (a) and (b), so as to reasonably satisfy and
assure the City as to the existence of such conditions. If such
additional information is not furnished by Explorer within the said
sixty (60) day period, or in the event such additional information
is furnished but does not reasonably satisfy the City as to the
existence of conditions (a) and (b), then City shall give written
notice of such and the reasons therefor by certified mail to
Explorer, and thereafter Explorer shall have sixty (60) days to
furnish evidence to the City that it has acquired insurance
policies which are consistent with the insurance requirements
imposed by the City on pipeline companies at that time, or to
furnish such other additional information which reasonably
satisfies and assures the City of the existence of conditions (a)'
and (b). If, upon the expiration of the said sixty (60) day
period, Explorer has furnished neither of the above to the City,
then City, by action of its City Council, may repeal this ordinance
and terminate the license and agreement granted hereunder, and City
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shall not be liable in damages for same, either to Explorer, or to
its stockholders or its parent companies.
C. It is understood that in addition to Section 7A or
Section 7B above, Explorer shall require its contractors, while
engaged in the installation, maintenance, repair or replacement of
the Pipeline during the term of this License, to carry the
following minimum insurance with companies approved to do business
in the State of Texas and reasonably satisfactory to the City,
insuring Explorer and City 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 of the
Pipeline by Explorer's contractors:
(1) 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 shall name the City as additional insured.
(2) Commercial auto liability insurance, covering owned,
hired and non-owned vehicles, with minimum limits of
$500,000 per accident, for bodily injury and property
damage combined. The City shall be named as additional
insured.
(3) During initial construction of the Pipeline and during
repairs or major alterations thereof, Explorer'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 coverage required above, with the City
named as additional insured.
D. 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
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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.
E. In the event Explorer elects to furnish insurance
policies in lieu of self-insurance, the City reserves the right to
review the amounts of the insurance required by the City. Such
review shall be conducted no more frequently than at intervals of
five (5) years. Upon such review, the City may require a
reasonable increase in the amounts of insurance. Failure by
Explorer to obtain such additional insurance shall be grounds for
termination of this License.
SECTION 8.
INDEMNITY AND RELEASE
(a) Explorer agrees to indemnify and defend (with counsel of
Explorer's choice) the City, and City's 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 Explorer or its representatives, agents,
contractors, invitee or employees in connection with the Licensed
Area during the term of this License.
(b) Explorer agrees to indemnify and defend (with counsel of
Explorer's choice) City, and City's officers, employees, agents and
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contractors (while acting in 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 any violation of RCRA, CERCLA
or any other federal, state or local environmental statute,
regulation or ordinance by Explorer, 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 Explorer's use of the Licensed Area,
when not caused by the negligence of the City, and City's officers,
employees, agents and contractors.
(c) As to the City, Explorer 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 City makes no warranties or representations, express or
implied, concerning the condition or suitability of the Licensed
Area for any particular use or purpose.
(d) In regard to any claim of indemnity for loss covered by
Sections 8(a) and 8(b): (1) The City shall promptly notify
Explorer, in writing, of such loss upon receipt of notice of same,
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 the City, the City shall have
exerted reasonably diligent efforts to avoid such diminution.
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(e) The indemnities set forth in this Section shall survive
the expiration or termination of this License with regard to events
occurring during the term of this License or while Explorer
continues to use, or has improvements in the Licensed Area.
SECTION 9.
TERMINATION FOR CAUSE
(a) The governing body of the City reserves the right,
subject to subsection (b) below, to terminate this ordinance and
License by means of ordinance or resolution duly adopted by such
governing body upon, but only upon, the happening of any of the
following events of default:
(1) Breach of any of the provisions of Section 4 above by
Explorer.
(2) Explorer's failure to provide and maintain the insurance
or self-insurance coverages required by Section 7 above.
(3) Explorer'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) Any lien related to Explorer's activities filed against
the Licensed Area or other City property and not released
or otherwise removed or bonded within sixty (60) days
after written notice, from any source, to Explorer of the
filing thereof.
(5) Any other breach by Explorer of the terms of this
License.
(b) Provided, however, that with the exception of the
termination rights prescribed in Section 7 hereof, the City shall
not be entitled to exercise its right of termination hereunder
unless written notice of such default shall have been delivered to
Explorer, and (1) Explorer shall have failed to cure such default
within sixty (60) days after its receipt of such notice, if same is
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susceptible of being 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 Explorer has
notified the City of such fact and outlined a detailed schedule for
the cure of such default promptly after Explorer's receipt of such
notice, Explorer shall have failed to prosecute such cure to
completion in a reasonably diligent manner. If deemed necessary
for safety reasons by the City, in the reasonable exercise of its
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 City, at law or in equity, for Explorer'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.
SECTION 10.
RECORDS
The governing body of the City and its Public Utilities
Supervisor shall have the right to be kept fully informed as to
matters pertaining in any way to Explorer's exercise of its rights
under this ordinance, including the installation, maintenance,
repair, replacement, operation or removal of the Pipeline. Maps,
construction drawings and specifications kept by Explorer in
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accordance with this ordinance shall provide for separate and
specific identification of the facilities of the system that are
located in the public right-of-way. Explorer will provide a full
set of as-built alignment drawings to the Department of
Transportation and Public Works of the City of Fort Worth, or other
appropriate City departments as may be reasonably requested by the
City. The City shall have the right, at reasonable times, for
municipal purposes, to inspect and/or copy such maps, construction
drawings and specifications, provided, however, that copies of such
maps, construction drawings and specifications taken by the City
shall be returned to Explorer immediately upon completion of the
City's use of same. Explorer shall fully cooperate in making
available its maps, construction drawings and specifications for
inspection. Maps, construction drawings and specifications
required by this ordinance and maintained by Explorer shall not
leave the possession of Explorer, subject to the above.
SECTION 11.
NOTICE
Any notice or communication required in the administration of
this ordinance shall be sent as follows:
FOR THE CITY OF FORT WORTH:
City Secretary
City of Fort Worth
1000 Throckmorton Street
Fort Worth, Texas 76102
with copy to:
Public Utilities Supervisor
City of Fort Worth
1000 Throckmorton Street
Fort Worth, Texas 76102
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FOR EXPLORER PIPELINE COMPANY:
Explorer Pipeline Company
Right-of-Way Coordinator
P. O. Box 2650
Tulsa, Oklahoma 74101
or to such other address as the parties may designate from time to
time, by written notice.
SECTION 12.
LICENSE FEE
Explorer shall make a payment to the City of $12,661.00,
representing the License Fee for the twenty-five (25) year term of
the privilege granted hereunder. The License Fee shall be
exclusive of and in addition to all general municipal taxes of
whatever nature, including but not limited to ad valorem taxes and
special taxes and assessments for public improvements. The License
Fee shall be paid to the City upon approval by the City Council of
this ordinance. The License Fee shall not be affected by any
relocation of Explorer facilities required by the City pursuant to
this ordinance. In the event Explorer fails to deliver to the City
the prescribed License Fee on or before the 30th day following the
date this ordinance is approved by the City Council, this ordinance
shall be null and void and shall have no force and effect. The
signature and date entered hereinbelow by the City's Public
Utilities Supervisor shall constitute evidence of the receipt said
payments to the City and the date of such receipt.
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SECTION 13.
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 City and Explorer and their respective
successors and permitted assigns. This ordinance contains the
entire agreement between the City and Explorer 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 14.
ASSIGNMENT
(a) This License may not be assigned without prior written
consent of the City, which consent will not be unreasonably
withheld; provided, however, that the determination of the City
Council 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 the City, other than the license fee
prescribed herein and any other nominal administrative expenses.
Notwithstanding the foregoing, Explorer may assign this License to
any entity into which Explorer merges or any entity owned at least
fifty percent (500) by Explorer. The assignee -shall deliver a copy
of the assignment, along with the assignee's written acceptance of
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the provisions of this ordinance, to the City in accordance with
Section 11 within ten (10) days after such assignment, who will
then forward such assignment and written acceptance to the City
Secretary.
(b) Explorer shall not be released from its obligations
hereunder unless the City has expressly approved such release in
writing.
SECTION 15.
MISCELLANEOUS
The Public Utilities Supervisor, or his duly authorized
representative, is the principal City official responsible for the
administration. of this ordinance, and Explorer recognizes that
questions regarding the interpretation or application of this
ordinance shall be raised initially with the designated official.
SECTION 16.
CUMULATIVE PROVISIONS
This ordinance shall be cumulative of all provisions of
ordinances and of the Code of the City of Fort Worth, Texas (1986),
as amended, except where the provisions of this ordinance are in
direct conflict with the provisions of such ordinances and such
Code, in which event, conflicting provisions of such ordinances and
such Code are hereby repealed.
SECTION 17.
SEVERABILITY
It is hereby declared to be the intention of the City Council
that the sections, paragraphs, sentences, clauses and phrases of
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this ordinance are severable, and if any phrase, clause, sentence,
paragraph or section of this ordinance shall be declared
unconstitutional by the valid judgment of a court of competent
jurisdiction, such unconstitutionality shall not affect any of the
remaining phrases, clauses, sentences, paragraphs and sections of
this ordinance, since the same would have been enacted by the City
Council without the incorporation in this ordinance of any such
unconstitutional phrase, clause, sentence, paragraph or section.
SECTION 18.
PUBLICATION
The City Secretary of the City of Fort Worth is hereby
directed to publish this ordinance in the official newspaper of the
City once a week for four (4) consecutive weeks within a period of
thirty (30) days after its passage, as required by Section 2,
Chapter XXV, of the City Charter.
SECTION 19.
EFFECTIVE DATE
This ordinance shall take effect and be in full force and
effect from and after its passage and publication as required by
Section 2, Chapter XXV, of the City Charter, and it is so ordained.
AP ROVED AS TO FORE AND LEGALITY:
Deputy City Attorney
Date : «" 3 ' 9 3
ADOPTED : ~ ~ " ~ ~~
EFFECTIVE:
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ACCEPTED AND AGREED TO by EXPLORER PIPELINE COMPANY this
day of , 1993.
. ~ " :~
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Curt~`~'L,Craig R. S o t Van Dyke, resident
,Atto~~iey-~rrd ~C r orate Secretary and Chief Executive Officer
~.. :. ,s---~:, is
~,. ~~~ ~ Appruved as to tam
-~ i~~.,~ ~::~-t ~ ~ ~ fi~rts ~. Craig C'~.~
~:J~ I~ayment of the fee prescribed in Section 12 has been received
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and accepted by the Public Utilities Supervisor of the City of Fort
Worth this l~ f~ day of /V,,~ , 1993
By.
Danny Ree
Public Utilities Supervisor
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City of Fort Worth, 7exars
Mayor and Council Communication
11 /09/93 G10417 12PETRO 1 of 3
$~~ ORDINANCE GRANTING TO EXPLORER PIPELINE COMPANY A LICENSE FOR THE
PLACEMENT AND OPERATION OF A LIQUID PETROLEUM PRODUCTS PIPELINE
ACROSS THE PUBLIC RIGHT-OF-WAY
RECOMMENDATION:
tt is recommended that the City Council adopt the attached ordinance granting to Explorer
Pipeline Company (Explorer) a franchise to use certain public rights-of-way in the City of Fort
Worth for the construction, use and maintenance of a liquid petroleum products pipeline
DISCUSSION
Explorer Pipeline Company desires to construct a liquid petroleum products pipeline from
Southlake to the Chevron terminal in Fort Worth The pipeline will be located under existing
railroad right-of-way at locations crossing five City of Fort Worth streets as shown on Exhibit
"A" of the attached ordinance The total linear footage of pipeline under City streets will be
approximately 832 linear feet All installation will be by subsurface boring, therefore there will
be no excavation of City streets
The term of the proposed license is twenty-five (25) years, which is the same term the City
usually grants to other pipeline companies desiring to use City streets After extensive
negotiations, Explorer has agreed to pay the City, in advance of the effective date of the license,
a one time fee of S 12,661 00 This amount is less than what the City normally charges
petroleum pipeline companies for the use of City streets, which is usually based on an annual
payment starting at S 1 33 per linear foot, with annual adjustments in accordance with increases
in the Consumer Price Index However, because Explorer has agreed to make aone-time lump
sum payment of its fee in advance, and because the pipeline will be crossing City streets at
those locations already encumbered by railroad right-of=way which Explorer has been required
to acquire for a fee from the railroad, the City and Explorer have negotiated a reduced license
fee
The proposed pipeline will be an integral part of Explorer's interstate pipeline system, which is
a common carrier system designed to transport petroleum products from the Louisiana-Texas
Gulf Coast to Houston, Fort Worth, Dallas, Tulsa, St Louis and Chicago Because of the
pipeline's interstate status, the City is pre-emptied by Federal law, specifically the Hazardous
Liquids Pipeline Safety Act of 1979, 49 U S C 2001, et. seq. (HLPSA), from enforcing the
City's prescribed safety regulations which were promulgated by the City when Koch Refining
Company, an intrastate common carrier, installed its pipeline along and under 5,206 linear feet
of City streets in 1990 However, Explorer has agreed, and the proposed ordinance provides
that in addition to complying with the safety requirements mandated by Federal law, it will
comply with all other safety regulations normally imposed by the City upon petroleum pipeline
companies, to the extent that the City's regulations are not inconsistent with or superseded by
the Federal safety standards for interstate carriers
~~ Printed on recycled paper
City of Fort Worth, Texas
Mayor and Council Communication
DATE REFERENCE NUl~ER IAO NAME PAGE
11 /09/93 G10417 12PETR0 2 of 3
svaJSe~ ORDINANCE GRANTING TO 1:XPLORER PIPELINE COMPANY A LICENSE FOR THE
PLACEMENT AND OPERATION OF A LIQUID PETROLEUM PRODUCTS PIPELINE
ACROSS THE PUBLIC RIGHT-OF-WAY
Finally, Explorer has requested that it be allowed to remain self-insured in certain amounts rather
than furnish insurance policies of the types and amounts which the City normally requires of
petroleum pipeline companies Presently, Explorer maintains a 51,000,000 0.0 Commercial
Liability Policy, together with a 550,000,000 00 policy with limits excess over 55,000,000 00
1n addition, it maintains a Pollution Liability Policy with 550,000,000 00 liability limits including
Pollution Liability excess of 55,000,000 00 self-insured retention In support of its request,
Explorer has furnished the City its 1991 and 1992 Financial Statements These statements have
been reviewed by both Risk Management and the City's Internal Auditor and reflect that Explorer
has generated substantial profits during the last two years In addition, these statements identify
a "Throughput and Deficiency Agreement" between Explorer and its stockholders or parent
companies, which obligates these companies to guarantee the obligations of Explorer The
stockholders or parent companies of Explorer are CITGO Pipeline Investment Company, Conoco
Pipe Line Company, Chevron Pipe Line Company, Marathon Oil Company, Phillips Investment
Company; Shell Pipe Line Corporation, Sun Pipeline Company of Delaware, and Texaco Trading
and Transportation Inc Therefore, both Risk Management and the Internal Auditor are of the
opinion that the 55,000,000 00 self-insurance/risk retention requested by Explorer is well within
reason In addition, the City has retained the right to annually review Explorer's risk retention
capabilities and to impose on Explorer the City's normal insurance requirements at anytime
during the twenty-five year term of the license should the City determine that Explorer's risk
retention capabilities are insufficient
The attached ordinance granting the license to Explorer was prepared by the Department of Law
and is the result of lengthy negotiations with Explorer's attorneys The City staff is of the
opinion that the proposed license fee, given the conditions, represents a fair compensation to
the City for the use of its streets, and that the terms and conditions contained in the proposed
ordiance provide adequate protection to the City
~~ Printed on recycled paper
'~.
City of Fort Worth, Texas
Mayor and Council Communication
DATE
11 /09/93 REFERENCE NUNSER
G10417 LO(i NAId$
12PETR0 PAaE
3 of 3
svsJECT ORDINANCE GRANTING TO EXPLORER PIPELINE COMPANY A LICENSE FOR THE
PLACEMENT AND OPERATION OF A LIQUID PETROLEUM PRODUCTS PIPELINE
ACROSS THE PUBLIC RIGHT-OF-WAY
FISCAL INFORMATION/CERTIFICATION.
The Energy Management -Public Utility Section of the Department of Law will be responsible
for the collection of funds due the City .under this ordinance
CB m
Submitted for City Manager's FUND ACCOUNT CENTER AMOUNT CITY SECRETARY
Office by: (~)
APPROVED
Mika Groomer 6140
O~i®inating Department Head: ~
4
Wade Adkins 7623 (irom) 1~~~ 9 1993
For ormahon ~ , ~ , ~~~~
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~~
Contact: .-t
Citg ~orolarp of the
Wsde Adkins 7623 C f W
itp o Foxt artit, Yexaa
op e r u~ance o.
--~ Printed on recycled paper