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HomeMy WebLinkAboutO-1992-1806 . e ORDINANCE NO. 1806 AN ORDINANCE APPROVING AND AUTHORIZING A RAIL EASEMENT AND AGREEMENT FOR USE AND MAINTENANCE BETWEEN THE CITY OF LA PORTE AND NBL, INC.~ MAKING VARIOUS FINDINGS AND PROVISIONS RELATING TO THE SUBJECT~ FINDING COMPLIANCE WITH THE OPEN MEETINGS LAW~ AND PROVIDING AN EFFECTIVE DATE HEREOF. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LA PORTE: Section 1. The City Council hereby approves and authorizes the contract, agreement or other undertaking described in the title of this ordinance, in substantially the form as shown in the document which is attached hereto and incorporated herein by this reference. The City Manager is hereby authorized to execute such document and all related documents on behalf of the City of La Porte. The City Secretary is hereby authorized to attest to all such signatures and to affix the seal of the City to all such documents. Section 2. The City Council officially finds, determines, recites and declares that a sufficient written notice of the date, hour, place and subject of this meeting of the City Council was posted at a place convenient to the public at the City Hall of the City for the time required by law preceding this meeting, as required by the Open Meetings Law, Article 6252-17, Texas Revised Civil Statutes Annotated~ and that this meeting has been open to the public as required by law at all times during which this ordinance and the subject matter thereof has been discussed, considered and formally acted upon. The City Council further ratifies, approves and confirms such written notice and the contents and posting thereof. Section 3. This Ordinance shall be effective from and after its passage and approval, and it is so ordered. PASSED AND APPROVED, this 27th day of January, 1992. Ali;~J~< ~ C erie Blac City Secretary . . STATE OF TEXAS S S COUNTY OF HARRIS S RAIL EASEMENT AND AGREEMENT FOR USE AND MAINTENANCE THIS AGREEMENT is made and entered into this ____ day of , 1992, by and between the CITY OF LA PORTE, TEXAS, a municipal corporation of Harris County, Texas, (hereinafter referred to as ""Grantor") and NBL, INC, a Louisiana corporation (hereinafter referred to as "Grantee"). WIT N E SSE T H: WHEREAS, Grantor is the owner of certain parcels of real property situated in the County of Harris, State of Texas, more particularly described in various instruments filed for record in the Office of the County Clerk of Harris County, Texas, and with the legal descriptions as set forth in Exhibit "A" attached hereto (collectively the "Property")~ WHEREAS, the Property has been de-certified as a public park by the State of Texas and the Federal Bureau of Outdoor Recreation~ WHEREAS, Grantee is the owner of a certain parcel of real property adjacent to the Property, more particularly described in the instrument filed for record in the Office of the County Clerk of Harris County, Texas, under Clerk's File No. in the Official Public Records of Real Property of Harris County, Texas, (the "Adjacent Property")~ WHEREAS, Grantee is desirous of obtaining an easement on the Property for the purpose of laying, constructing, maintaining, inspecting, operating, using, monitoring, altering, repairing, replacing, changing the size and nature of, and removing, in whole e e -2- or in part, certain railroad tracks accessing the Adjacent Property (the "Railroad Tracks"), in, on and under the Property~ and WHEREAS, Grantor is willing to grant to Grantee the easement described below, on the terms and conditions hereinafter provided. NOW, THEREFORE, for and in consideration of the sum of Ten Dollars ($10.00) and other good and valuable considerations, the receipt and sufficiency of which are hereby expressly acknowledged, and for the further consideration of the mutual covenants and agreements contained herein, and intending to be legally bound hereby, Grantor and Grantee agree as follows: 1. The above preambles are incorporated herein by reference as if fully set forth herein. 2. Except as specifically provided in Paragraph 5 below, Grantor does hereby create, grant, bargain, transfer, sell and convey unto Grantee a perpetual exclusive easement over, upon, under, through, in and across the Property, to have and to hold unto Grantee, its sUccessors and assigns forever, for the benefit of the Adjacent Property, for the purposes of laying, constructing, installing, maintaining, inspecting, operating, using, replacing, monitoring, altering, repairing, changing the size and nature of, and removing at will, ~n whole or in part, the Railroad Tracks~ such easement (the "Easement") shall run in perpetuity with the Property and the Adjacent Property and is more particularly described in Exhibit "B" attached hereto and made a part hereof. 3. Grantee shall have the right to lay, construct, install, maintain, inspect, operate, use, monitor, alter, replace, repair, change the size and nature of, and remove at will, in whole or in e e -3- part, the Railroad Tracks in the Easement as it deems necessary, in its sole discretion, from time to time. Grantee's use of the Easement shall be (i) in compliance with all applicable federal, state or local laws and regulations and (ii) in a manner which will not unreasonably and materially interfere with the conduct of Grantor's business on the Property. 4. All costs of installing, contracting, using, maintaining, repairing or replacing the Railroad Tracks shall be borne by Grantee, except as described in the following paragraph. 5. (a) Grantee's proposed track alignment, profile and cross sections are as shown on a drawing by Jesse I. Casbeer, Jr. P.E., attached hereto as Exhibit nCn and made a part hereof. Notwithstanding anything contained in paragraph 2 to the contrary, Grantor reserves the right and easement, for itself, its successors or assigns, to utilize that portion of the trackage within the Easement outlined in red on Exhibit nCn (the "Common Use Tracks"), which use of said Common Use Trackage by Grantor, its successors or assigns, shall be in common with the use thereof by Grantee. The contemplated common usage of the Common Use Trackage by Grantor, its successors or assigns, shall be in conjunction with the construction and operation by Grantor, its successors or assigns, of a lead tract (the "Future Lead Track") as shown on Exhibit "c" outlined in yellow. Upon written notice by Grantor, its successors or assigns, to Grantee, its succesSors or assigns, of its contemplated construction and operation of the "Future Lead Track", Grantee agrees to cooperate with Grantor in securing the consent of Southern Pacific Transportation Company, its successors or assigns, to e e -4- designate that portion of the Common Use Tracks to be used by Grantee, and by Potential Common Users (as defined below) which choose to connect to a westerly extension by Grantor, its successors or assigns, of Future Lead Track. At the time of such designation, Grantor, its successors or assigns, shall reimburse an allocated percentage of the then fair market value of the Common Use Track, based upon each Common Use Track user's contemplated percentage use of the Common Use Track. Fair Market shall be defined as the then depreciated value of improvements, with no value placed on the easement itself, as determined by an appraisal by a qualified industrial appraiser with railroad appraisal experience, to be mutually selected by the parties. If the parties cannot agree on an appraiser, the appraiser shall be designated by the presiding Judge of the Harris County District Courts, acting in an administrative and not a judicial capacity. The results of the appraisal shall be binding on Grantor and Grantee, their successors and assigns, who shall equally share in the cost of the appraisal. It is contemplated by Grantor and Grantee that the Common Use Track will at that time, or within a reasonable time thereafter, be conveyed by Grantee to Southern Pacific Transportation Company, its successors or assigns, for ownership and maintenance. In the event that Southern Pacific Transportation Company, its successors or assigns, will not accept the ownership and maintenance of said Common Use Track, Grantee and Grantor, their successors or assigns, for the Potential Common Users desiring to utilize said Common Use Tracks, agree to enter into a joint use and maintenance agreement as to such Common Use Tracks. Such joint use and maintenance agreement shall provide for the e e -5- allocations of maintenance expenses based upon each Common Use Track user's percentage use of the Common Use Track. (b) Grantor shall have the right to grant or assign its rights to use the Common Use Tracks to owners of properties abutting North "H" Street in the City of La Porte (each a "Potential Common User"). However, as a condition of any such grant or assignment, Grantor shall cause each Potential Common User to be bound by the terms of this Agreement. To the extent that any grant or assignment fails to comply with this Paragraph 5(b), such grant or assignment shall be deemed to be void and of no effect. 6. Grantee shall pay the sum of $29,000.00 to the City of La Porte as reimbursement to Grantor for having the Property decertified as a public park by the State of Texas and the Federal Bureau of Outdoor Recreation, upon the occurrence of the events in Paragraph 7. 7. Grantor represents that a portion of the Property in green on Exhibit "Cn has been dedicated for road use to the City of Morgan's Point (the "Dedicated Land"). Grantor shall use its best efforts to obtain a rail easement across the Dedicated Land from the City of Morgan's Point. The parties hereto agree that Grantee shall have no obligations under this Agreement, including without limitation any obligations pursuant to Paragraph 6, until such time as such rail easement is obtained by City. 8. Grantee hereby indemnifies Grantor and holds it harmless, from and against any reasonable and actual expenses, claims, losses, damages or costs that Grantor incurs as a result of Grantee's use of the Easement. e e -6- Grantor hereby indemnifies Grantee and holds it harmless, from and against any reasonable and actual expenses, claims, losses, damages or costs that Grantee incurs as a result of grantor's acts or omissions interfering with Grantee's use and enjoyment of the Easement. 9. Grantor shall have the right and privilege to use the Property, at any time, in any lawful manner and for any lawful purpose which is not inconsistent with and which does not unreasonably interfere with (i) Grantee's use and enjoyment of the Easement, and (ii) Grantee's rights, titles, interests, benefits and privileges under this Agreement. 10. Grantee shall have the right from time to time to assign its rights and obligations under this Agreement, in whole or in part, and any assignee shall be deemed to have assumed Grantee's obligations hereunder, and whereupon Grantee shall be relieved from all further obligations under this Agreement. 11. Grantee has made a visual inspection of the Property and assumes the obligation of obtaining all governmental permits and approvals that are required for Grantee's intended use. Grantor agrees to cooperate with Grantee and assist it in obtaining such approvals and, to the extent that Grantor is the issuing authority of such approvals, Grantor agrees not to unreasonably withhold such approvals. Grantor warrants that the Property is subject to no current permits with respect to former use as a sanitary landfill. 12. paragraph 3 has compliance with law provisions. Grantor has disclosed to Grantee that the Property has previously been utilized by Grantor as a municipal sanitary landfill. Grantee e e -7- assumes all risk of its proposed use of the Easement, which shall be consistent with Texas and Federal statutes and regulations touching upon permitted uses of former sanitary landfills. Grantee and Grantor understand and agree that Grantor has made no representations with regard to the environmental condition of the Property. Grantee assumes the risk that the geophysical condition of the Property is sufficient for Grantee's intended use. 13. Notwithstanding anything contained in Paragraph 9 or elsewhere herein to the contrary, Grantee has made no environmental investigation of the Property and does not assume responsibility for any liability or obligation arising out of pollution or contamination of the Property except for that which is caused by Grantee's release of pollutants or contaminants during the term of the Easement. 14. Both Grantor and Grantee reserve all respective rights and defenses with regard to liabilities and obligations arising out of the former's use of the Property as a sanitary landfill or waste disposal area. Specifically, both Grantor and Grantee reserve their rights with respect to contribution and/or indemnification for costs or expenses associated with removal or remediation of contaminated soils or groundwater where such contamination arises out of or results from the prior use of the Property as a sanitary landfill or solid waste disposal area. 15. Grantee shall have all other rights, titles, privileges, interests and benefits necessary for the full enjoyment and use of the rights granted to Grantee under this Agreement. This Agreement is SUBJECT TO the terms and provisions of an Easement Agreement e e -8- between Grantor and Houston Lighting & Power Company, over and across the south fifty foot (S.50') of Property. 16. No sale, lease, conveyance, transfer, subdivision or other disposition of the Property shall change the rights, titles, interests, benefits, privileges, obligations, indemnities or duties of Grantee under this Agreement, and any subsequent owners or interested parties of the Property shall be substituted for Grantor under this Agreement. 17. This Agreement covers all of the agreements between the parties, and no representations or statements, verbal or written, have been made modifying, adding to or changing the terms of this Agreement. 18. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas and shall bind and inure to the benefit of the parties hereto and their respective successors and assigns. 19. Notwithstanding anything contained herein to the contrary, Grantee shall have no obligation to install or maintain the Railroad Tracks and/or the Common Use Tracks. In the event that no portion of the Railro~d Tracks is installed by Grantee in the Easement within ten (10) years from the date hereof, this Agreement shall be void and of no further affect~ provided, however, if the Common Use Track contemplated by Paragraph 5 has not been constructed by Grantee at the time of written notice by Grantor under Paragraph 5 relating to construction of Future Lead Track, Grantor, its successors and assigns, shall have no further obligation to Grantee under Paragraph 5, and may proceed with construction of its facilities within the Property. \ . e -9- the day of IN WITNESS WHEREOF, the parties have executed this instrument ATTEST: Cherie Black City Secretary APPROVED: Knox W. Askins City Attorney ATTEST: Name: Title: [Corporate Seal] , 1992. GRANTOR: CITY OF LA PORTE, TEXAS BY: Robert T. Herrera City Manager GRANTEE: NBL, INC. BY: Name: Title: e e -10- STATE OF TEXAS S S COUNTY OF HARRIS S On this the day of , 1992, before me a Notary Public, the undersigned officer, personally appeared Robert T. Herrera, who acknowledged himself to be the City Manager of the City of La Porte, Texas, and that he as such City Manager being authorized to do so, executed the foregoing instrument for the purposes therein contained by signing the name of the City of La Porte by himself as City Manager. IN WITNESS WHEREOF, I hereunto set my hand and official seal. Notary Public, State of Texas COMMONWEALTH OF PENNSYLVANIA S S COUNTY OF ALLEGHENY S On this the day of , 1992, before me a Notary Public, the undersigned officer, personally appeared who acknowledged himself to be the of NBL, Inc., a Louisiana corporation, and that he as such being authorized to do so, executed the foregoing instrument for the purposes therein contained by signing the name of NBL, Inc. by himself as IN WITNESS WHEREOF, I hereunto set my hand and official seal. Notary Public e . EXHIBIT RAft Legal Description of the Property All of Blocks 474 and 475, Town of La Porte, a subdivision in Harris County, Texas, according to the map or plat thereof recorded in the Office of the County Clerk of Harris County, Texas, as reflected by instruments recorded in Volume 851, Page 544~ Volume 7515, Page 455~ and Volume 7829, Page 623, Harris County Deed Records~ and the ten foot (10') residue, being the westernmost ten feet (10') of Ninth Avenue in the City of Morgan's Point, Texas, adjacent to Block 474, Town of La Porte, Harris County, Texas~ and the north one-half (N.l/2) of the former North ftHn Street right-of-way, adjacent to the south boundary lines of said Blocks 474 and 475, Town of La Porte, Harris County, Texas, and extending from the GL&H Railroad right-of- way, as recorded in Volume 83, Page 243, Harris County Deed Records, to North Broadway Street. . e EXHIBIT -B- Metes and Bounds Description of the Easement EXHIBIT -C- Rail Drawing by Jesse I. Casbeer, Jr., P.E.