HomeMy WebLinkAboutC2008-389 - 11/11/2008 - ApprovedAGREEMENT INCIDENT TO LOWERING PIPELINE
STATE OF TEXAS
COUNTY OF NUECES § KNOW ALL BY THESE PRESENTS:
Whereas, to which reference is made herein for all purposes, and
Whereas, the City of Corpus Christi, ("City") plans the development of a drainage
channel associated with the Corpus Christi International Airport ("Property"); and
Whereas, Copano Pipelines/South Texas, L.P., ("Copano") owns and operates a six
(6)-inch natural gas pipeline ("Pipeline") that traverses the Property pursuant to rights (said
rights collectively, including reference to the lands covered thereby, sometimes being
referenced in this document as the "Easements") granted by Right of Way Contracts ("Right
of Way Contracts") now owned by Copano and referenced as follows:
(i) Right of Way and Easement from J. L. Scogin, and Annie B. Scogin
dated September 4, 1953 and recorded at Volume 610, Page 141 of the
Deed Records ofNueces County, Texas;
(ii) Right of Way and Easement from F. B. Sechrist dated August 29, 1953
and recorded in Volume 608, Page 375 of the Deed Records ofNueces
County, Texas;
(iii) Right of Way and Easement from R. Morgan dated September 23, 1953
and recorded in Volume 611, Page 82 of the Deed Records of Nueces
County, Texas; and
(iv) Right of Way and Easement from F. B. Sechrist dated August 1, 1953
and recorded in Volume 606, Page 368 of the Deed Records ofNueces
County, Texas.
As these Right of Way Contracts may have been amended by instruments now of
record in the office of the County Clerk; and
Whereas, in connection with its planned development of the Property, the City of
Corpus Christi has requested that Copano lower the Pipeline; and
Whereas, Copano has agreed to lower the Pipeline subject to certain terms and
conditions as set forth in this Agreement.
2008-389
11/11/08
M2008-287
Copano Pipelines/South Texas
Now, therefore, for and in consideration of the premises, and other good and valuable
consideration, including the agreements herein contained, the sufficiency of which is hereby
acknowledged, the City and Copano (collectively, the "Parties") agree as follows:
1. Copano will lower the Pipeline within the Easements authorized by the existing Right
of Way Contracts. Assuming no delays due to weather, ground conditions that preclude
the efficient lowering of the Pipeline, or other events beyond the control of Copano and its
contractor (herein refen•ed to as "Force Majeure delays"), and subject to paragraphs 2, 3,
and 4 below, Copano will initiate the lowering of the Pipeline.
2. The costs incurred by Copano in connection with lowering the Pipeline shall be borne
by the City and have been agreed by the parties to be a set sum of One Hundred Sixty-
Three Thousand, Four Hundred Ninety-Six Dollars and No Cents ($163,496.00). Copano
shall be under no obligation to begin any work related to lowering the Pipeline until and
unless it shall have received, in certified funds or other form of payment satisfactory to
Copano, one-half (1/2) of the entire agreed upon sum. In the event the actual costs for
performing the work herein described exceeds the set sum, both parties hereby agree that
the set sum shall increase accordingly and Copano shall be reimbursed the amount
exceeded. If, however, the actual costs incurred in furtherance of the work contemplated
herein are less than the set amount stated above, then the reimbursement owed to Copano
shall be reduced accordingly.
3. Contemporaneously with the execution of this Agreement, the City shall make
payment to Copano of one-half (1/2) of the entire agreed project cost set forth in
Paragraph 2 above. Failure by the City to make such payment will cause this Agreement
to lapse and become null and void. Within fourteen (14) days after such payment is made
and this Agreement and the subordinations provided for in Paragraph 4 below aze
recorded in the office of the Nueces County Clerk, Copano shall commence the lowering
work and shall diligently and continuously pursue such work to completion. Copano shall
use reasonable commercial effort to complete such lowering work within forty-five (45)
days after work begins, subject only to Force Majeure delays.
4. Any liens on the Property arising from or in any way associated with the development
of the Property by the City shall be subordinated to this Agreement. The City shall
provide Copano with a copy of its title insurance policy reflecting all encumbrances on the
Property and such other documentation as may be necessary to confirm that all liens are or
will be so subordinated. Copano shall be under no obligation, even after receiving the full
payment as set forth in pazagraph 2 above, to begin any work related to lowering the
Pipeline until and unless it shall have received, in a form satisfactory to Copano, proper
and recordable subordinations to this Agreement of any liens affecting the Property.
5. As additional consideration to Copano for this Agreement, the City grants and conveys
to Copano a temporary work space of fifty (50') feet on each side of the pipeline
Easement as it traverses the subject property, and on any part of said Easement where the
Easement has been restricted as to width by recorded agreement or operation of law. This
work space shall be for Copano's use in moving equipment, machinery, pipe, and any and
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Agreement Incident to Lowering Pipeline
all other incidentals, ancillary or appurtenant, as may be necessary for Copano to complete
the lowering of its pipeline. This work space shall be over, on, across and under thirty
(30') feet on each side of any such restricted width easements and shall constitute a
working area for Copano, its agents, contractors, subcontractors, and its and their
employees for the work related to lowering Copano's pipeline as contemplated by this
Agreement. This temporazy grant shall begin on the date of execution of this Agreement
and shall continue to be effective until thirty (30) days after Copano has completed all
work related to the lowering of its Pipeline.
6. The City releases and quitclaims to Copano any and all claims for damages it might
accrue related to Copano's lowering of its pipeline as contemplated herein.
7. Except as otherwise provided herein, no paving for any use whatsoever is to be placed
over the Easement without prior written consent of Copano.
8. Except as otherwise provided herein, the City shall not place or locate any plantings,
landscaping, signs, monuments, buildings, manholes, or other structures or facilities of
any kind within the Easements without written permission from Copano.
9. The City shall be entitled to cross the Easement (only at right angles and never along
the Easement area) with paved roads sufficient to provide access to the Property. The
road crossings shall be designed and constructed such that there is a minimum cover of
forty-eight (48) inches, measured from the top of the pipeline to the bottom of the
pavement.
10. Subject to the terms and provisions contained herein, the City shall be entitled to plant
grass and other non-intrusive plantings in the Easement. Trees and bushes may not be
planted on the Easement; Copano shall have the right to remove any trees or bushes and to
mow the Easement at any time. Further, the City at its expense shall maintain the surface
of the easement within the property by periodically mowing and other necessary
maintenance.
11. The City shall be entitled to cross the Easement with underground communication
conduits, electric distribution lines, telephone and cable lines and gas, water, drainage and
sewer pipelines. Any such crossings shall be made in accordance with the requirements
set forth in Exhibit "A" attached hereto and made a part hereof for all purposes.
12. The City shall exercise any and all rights to the Easement set forth herein or otherwise
reserved to the landowner, including, but not limited to, the construction and operation of
road crossings as permitted by paragraph 9 above, only in such a manner that, in Copano's
sole discretion and opinion, (i) Copano's Pipeline(s) and any associated appurtenances and
facilities located within the Easement is not endangered, obstructed, damaged, or
interfered with, (ii) access to the Easement, Copano's Pipeline(s) and any associated
appurtenances and facilities located within the Easement is not interfered with, (iii)
traveling within and along the entire length of the Easement on foot or in vehicles or
machinery is not prevented, (iv) the grade of the Easement and cover over the Pipeline(s)
and any associated appurtenances located within the Easement are not changed, (v)
Copano's Pipeline(s) and any associated appurtenances and facilities located within the
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Agreement Incident to Lowering Pipeline
Easement are left with proper, sufficient and permanent support, and (vi) Copano's use of
the Easement for the purposes set forth in the Right of Way Contracts is not interfered
with. Without limiting the foregoing, Copano shall have the right to cut and remove any
plantings, landscaping, pavement or other structures or facilities now or hereafter located
on or across the Easements, without any obligation to repair or replace same, for the
purpose of exercising any of its rights under the Right of Way Contracts.
13. Not less than fifteen (15) days prior to the initiation of construction of any permitted
road crossings, plantings, landscaping, structures or facilities within the Easement, as
authorized herein, the City or its representative shall provide Copano with proposed plans
for the design and construction of such structures or facilities. The City shall not initiate
any landscaping, excavation or construction activities within the Easement without first
receiving written approval of such plans from Copano. Following its receipt of such
written approval, the City or its representative shall, at least twenty (20) business days
prior to the commencement of excavation, landscaping, or other construction activities
within the Easement, provide Copano with written notice of the commencement date or
dates of the planned excavation and/or construction. Such notice shall be provided by
hand delivery or telecopier (713.621.9545) to the following address:
Copano Pipelines /South Texas, L.P.
2727 Allen Parkway, Suite 1200
Houston, Texas 77019
Attention: J. Terrell White
Vice President, Operations
(713) 621-9547 (Telephone)
The address and telecopier number for notice hereunder may be changed upon
delivery to Terrell White of an instrument providing notice of such change.
14. TO THE FULLEST EXTENT PERMITTED BY LAW, THE CITY AGREES TO
INDEMNIFY, DEFEND, RELEASE, AND HOLD HARMLESS COPANO, ITS
PARENT AND AFFILIATE COMPANIES, PARTNERS, SUCCESSORS, ASSIGNS,
LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS, SHAREHOLDERS,
AGENTS AND EMPLOYEES (COLLECTIVELY "INDEMNITEES"), FROM AND
AGAINST ANY AND ALL CLAIMS, DEMANDS, LOSSES, DAMAGES, CAUSES
OF ACTION, SUITS AND LIABILITIES OF EVERY KIND, INCLUDING ALL
EXPENSES OF LITIGATION, COURT COSTS, AND ATTORNEY'S FEE, AND
INCLUDING INJURY TO OR DEATH OF ANY PERSON, OR LOSS OF OR
DAMAGE TO ANY PROPERTY (INCLUDING WITHOUT LIMITATION, CLAIMS
FOR POLLUTION AND ENVIRONMENTAL DAMAGE), ANY CIVIL OR
CRIMINAL FINES OR PENALTIES, DISCOVERED OR UNDISCOVERED,
DIRECTLY OR INDIRECTLY ARISING OR ALLEGED TO ARISE OUT OF OR IN
ANY WAY INCIDENTAL TO THE CITY'S OR ITS ASSIGNEE'S OR INVITEE'S,
ACTIONS OR OMISSIONS ON THE EASEMENTS, OR ITS PERFORMANCE
UNDER THIS AGREEMENT (COLLECTIVELY "(LIABILITIES"), EVEN THOUGH
CAUSED BY OR ARISING FROM THE ACTIVE OR PASSIVE, JOINT OR
CONCURRENT (BUT EXCEPTING SOLE) NEGLIENCE, BREACH OF CONTRACT
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Agreement Incident to Lowering Pipeline
OR OTHER LEGAL DUTY, OR FAULT OF ANY INDEMNITEE. THIS INDEMNITY
INCLUDES THE CITY'S AGREEMENT TO PAY ALL COSTS AND EXPENSES OF
DEFENSE, INCLUDING WITHOUT LIMITATION ATTORNEYS' FEES, INCURRED
BY ANY INDEMNITEE. THIS INDEMNITY SHALL APPLY, WITHOUT
LIMITATION TO ANY "LIABILITIES" IMPOSED ON ANY PARTY INDEMNIFIED
HEREUNDER AS A RESULT OF ANY STATUTE, RULE, REGULATION OR
THEORY OF STRICT LIABILITY. THE CITY EXPRESSLY ASSUMES THE
ENTIRE LIABILITY PURSUANT TO THIS INDEMNIFICATION PARAGRAPH FOR
ANY AND ALL "LIABILITIES" ARISING IN FAVOR OF ANY THIRD PARTY OR
GOVERNMENTAL AGENCY OR ENTITY, THE PARTIES HERETO, THEIR
EMPLOYEES AND THEIR EMPLOYEES' REPRESENTATIVES AND
BENEFICIARIES. THIS INDEMNIFICATION SHALL NOT BE LIMITED TO
DAMAGES, COMPENSATION, OR BENEFITS PAYABLE UNDER INSURANCE
POLICIES, WORKERS' COMPENSATION ACTS, DISABILITY BENEFIT ACTS, OR
OTHER EMPLOYEES' BENEFIT ACTS. IT IS UNDERSTOOD AND AGREED BY
THE CITY THAT IN THE EVENT ANY INDEMNITEE IS MADE A DEFENDANT IN
ANY SUIT, ACTION OR PROCEEDING FOR WHICH IT IS INDEMNIFIED
PURSUANT TO THIS AGREEMENT ("CLAIM"), AND THE CITY FAILS OR
REFUSES TO ASSUME THE DEFENSE THEREOF, AFTER HAVING BEEN
NOTIFIED BY COPANO TO DO SO, THAT SAID INDEMNITEE MAY
COMPROMISE AND SETTLE OR DEFEND ANY SUCH CLAIM, AND THE CITY
SHALL BE BOUND AND OBLIGATED TO REIMBURSE SAID INDEMNITEE FOR
THE AMOUNT EXPENDED BY INDEMNITEE IN SETTLING AND
COMPROMISING ANY SUCH CLAIM, OR FOR THE AMOUNT EXPENDED BY
INDEMNITEE IN PAYING ANY JUDGMENT RENDERED THEREIN, TOGETHER
WITH ALL REASONABLE ATTORNEYS' FEES INCURRED BY INDEMNITEE
FOR DEFENSE OR SETTLEMENT OF SUCH CLAIM. ANY JUDGMENT
RENDERED AGAINST INDEMNITEE OR AMOUNT EXPENDED BY INDEMNITEE
IN COMPROMISING OR SETTLING SUCH CLAIM SHALL BE CONCLUSIVE IN
DETERMINING THE AMOUNT FOR WHICH THE CITY IS LIABLE TO
REIMBURSE INDEMNITEE HEREUNDER.
15. This Agreement shall be governed by and construed and enforced in accordance with
the laws of the State of Texas.
16. This Agreement contains the entire agreement between the Parties. No oral or written
understandings, statements, promises, or inducements contrary to the terms of this
Agreement exist as of the date of execution, and no oral modification of this Agreement
shall be effective.
17. This Agreement may be executed in multiple counterparts, each of which shall
constitute an original and shall be binding on the Parties only upon the execution of a
counterpart by an authorized representative of each of the Parties. The original signature
page and acknowledgement from each counterpart may be removed and integrated to form
one or more original instruments reflecting the signatures and acknowledgements of all
Parties.
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Agreement Incident to Lowering Pipeline
18. This Agreement shall be binding upon and inure to the benefit of each of the
undersigned Parties and their respective successors, assigns, and legal representatives.
The rights and obligations contained herein may be assigned by Copano in whole or in
part.
19. Each signatory of this Agreement expressly states that he or she has the authority to
sign this Agreement on behalf of and thereby bind the entity on whose behalf such
signatory is executing this Agreement.
20. This Agreement only affects and pertains to the Property. Other lands covered by the
Right of Way Contracts are not affected hereby. The agreements and conditions
contained herein are intended to be and shall have the effect of covenants running with the
land as to the Property.
21. The design of the pipeline lowering shall be based on the survey provided by the
City's engineer (PGAL). Copano shall have access to the site for the purposes stated
herein and coordination of same shall be with Airport operations and the Airport
contractor, Haas-Anderson. Further, Haas-Anderson shall confirm the proposed
channel's centerline and all elevations during construction. Safety zones within the
Airport operations area such as runway safety areas will be clearly marked by the City of
Corpus Christi Airport operations.
22. All costs and expenses incurred by Copano for airport safety and security items shall
be reimbursed upon invoice by the City. This includes costs for vehicle marking,
barricades, traffic control, escorts, gate guards, badging, driver training, radios and other
incidentals necessary for access within the secure Airport operations area. Full access to
the site will be granted to Copano during construction. Standby time shall be reimbursed
by the City if Copano's contractor is denied access to the work area due to airport
operational constraints.
23. The City hereby grants to Copano the right to construct and maintain two (2) above-
grade valve sites, the locations of which shall be determined by mutual agreement of the
parties. Schematic locations are on the aerial photo attached hereto. Further, the City also
grants to Copano the right of ingress, egress, and access to and from such locations for all
purposes.
Nothing in this Agreement shall in any way affect or change the terms of the Right of
Way Contracts above referenced as same pertains to land outside of the Property. The parties
hereto do hereby confirm, adopt, and ratify the Right of Way Contracts, as recorded in
volume 1419, page 185; and volume 1396, page 491 of the Deed Records of Nueces County,
Texas, and the City does by these presents grant, sell and convey to Copano a right of way
and easement as described in the said Right of Way Contracts, as same may have been
amended, modified and/or restated by instruments of record in Nueces County, Texas, and
subject also to the terms of this agreement, insofar and only insofar as pertains to the
Property.
Executed and effective as of the _ day of , 2008.
Page 6 of 7
Agreement Incident to Lowering Pipeline
COPANO:
Copano Pipelines /South Texas, L.P
By Copano Pipelines GP, LLC its
Managing General Partner
r
B errell White
Vi e President, Operations
ATTEST:
THE STATE OF TEXAS
COUNTY OF I'I ~ ~~ 5
THE CITY:
City of Corpus Christi
~~ s-~
By: ' n9c( R. ~SCo oar
Zh vt m ~~ U
U Approved as ro I.epel hrm^~,~
AfTAMNDO CHAPA
CITY SECtTETAR"
§ ~~ lt~j'D/~
This instrument was acknowledged before me on this
/ V /
Veronica Ocanas
Assistant Ctty Attonyey
For City Attorney
7 ~'~` day
of IJo yP~w~(aQ/ 2008, by J. Terrell White, Vice President, Operations of Copano
Pipelines GP, L.L.C., a Texas limited liability company, on behalf of said limited liability
company acting in its capacity as managing general partner of Copano Pipelines /South
Texas, L.P.
My Commission Expires:
~~ GINNY CUTBURTH
IgiARYPUIaC EiAIEOFTEIGb
eo~neuox taneu:
~a~ Oa-22-2012
THE STATE OF TEXAS
COUNTY OF ~~~ ~~
., aD~ °~~ . AUTHORIZt~
R7 COUNCIL.... ~ ~~1L~D4....._.
.--....~.~ ...............~C
SECAETAR~'
This instrument was a(~cknowledged before me on this 1~day of -'~~~ DVt41er ,
2008, by ~ngL~ ~ . ~COVRY' ,representing the City of Corpus Christi, on behalf of said
municipality.
My Commission Expires:
~HOLIYFgUOFITON
i' MY COMMI9310N EXPIRES
SBpYni~Br24,2012
-1~~~
Notary Pu c, State of Texas
Notary Public, S e of Texas
Page 7 of 7
Agreement Incident to Lowering Pipeline
COPANO ENERGY - 6" ASARCO PIPELINE
PROPOSED CHANNEL LOWERING AND APPROXIMATE VALVE SITE LOCATIONS
EXHIBIT A
ATTACHMENT TO AGREEMENT INCIDENT TO•LOWERING PIPELINE