HomeMy WebLinkAboutRES 14-183RESOLUTION NO. 14-183
WHEREAS, Valero Partners Lucas, LLC has request a four inch (4 ") water meter
to serve its Lucas Terminal on West Port Arthur Road; and,
WHEREAS, the service line from the City's existing water main to the proposed
water meter will cross a railroad that is owned by Southern Pacific; and,
WHEREAS, Premcor Pipeline Co. has agreed to assign their agreement with the
railroad for an existing sixteen inch (16 ") pipeline and a twenty inch (20 ") casing to the City;
and,
WHEREAS, this pipeline will serve as the casing for the four inch (4 ") water service
line; and,
WHEREAS, it is also necessary for Premcor Pipeline Co. to convey its interest in
a 158.5 foot section of pipeline to the City for the installation of the water line and meter;
BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF BEAUMONT:
THAT the statements and findings set out in the preamble to this resolution are hereby, in
all things, approved and adopted; and,
THAT the City Manager be and he is hereby authorized to execute agreements with
Premcor Pipeline Co. for assignment of rights to certain Southern Pacific Railroad right -of-
way and the conveyance and assignment of an approximate 158.5 foot section of a sixteen
inch (16 ") pipeline and twenty inch (20 ") casing. The Bill of Sale and Assignment and
Assignment Agreement are substantially in the form attached hereto as Exhibits "A" and
"B" and made a part hereof for all purposes.
PASSED BY THE CITY COUNCIL of the City of Beaumont this the 9th day of
September, 2014.
Aw'g
a - a or ecky AWies -
s
BILL O SALE AND ASSIGNMEN'r
THE PRT'MC.OR PIPELINE CO., a Delaware corporation, with an address of One
Valera Way, San Antonio, 'Texas 78249 fir Ten and No /1 t}0 Dollars ($10.00) and
other good and valuable consideration, the receipt and sufficiency of \vhich are hereby
acknowledged, Hereby assigns, sets over, transfers and delivers to TFIE CITY OF BEAU MONT,
a Inumcipal Corporation domiciled in Jefferson County, Texas, with an address of' i'.0, Box
3827, t'3eatunont, Texas 77704 (" Assignee" ), all of Assignor's right, title, and interest in and to
an approximatcl), 358.5 -foot portion of Assignor's certain sixteen -inch (16 ") pipeline and
twcraty -inch (20 ") casing kno%vn as Assignor's Lucas Terminal Casing No. 8, located in Jefferson
County, Texas, which casing is shown on Exhibit "A" attached hereto and made a part licreof
for all purposes (collectively, the "Pro) erty ").
THE PROPERTY CONVEYED HEREBY IS CONVEYED "AS IS," "WHERE 1S"
AND "WITH ALL FAULTS" AND ASSIGNOR MAKES NO REPRESENTATIONS OR
WARRANTIES WHATSOEVER, WHETHER EXPRESS, 1MPLIED, STATUTORY OR
OTHERWISE, AS 'r0 THE PROPERTY'S MERCHANTABILITY, MARKETABILITY,
CONDITION, OR FITNESS OR SUITABILITY FOR ANY PARTICULAR USE OR
PURPOSE. THIS INSTRUMENT SHALL GOVERN IN THE EVENT OF ANY CONFLICT
BETWEEN 11' AND ANY PRIOR OR CONTEMPORANEOUS REPRESENTATION,
DOCUMI_'NT OR AGREEMENT MADE OR EXECUTED BY ASSIGNOR OR ANY OF ITS
AGENTS, EMPLIDYEI�;S OR REPRESENTATIVES.
By a separate Assignment Agreement dated i , 2014, between Assignor,
Assignee, and Strong Capital I Funding, LP (successor in interest to Southern Pacific
Transportation Company), that certain license agreement (the "License dated
January 14, 1977, relating to the Property, has been assigned by Assignor to Assignee, pursuant
to the terms and conditions of the Liccnse Agreement.
This instrument is made Kral accepted suhject to (a) any and all matters of record, (b) any
matters which a survey would reveal, (c) liens for taxes not yet delinquent, (d) all consents,
approvals, authorizations or permits of, or filings ,vith or notifications to, any person or entity
which is required to be obtained, made or complied with for or in connection with any sale,
assignment, transfer or encumbrance of the Property or any portion thereof (collectively, the
"zNM�rovals "), and (e) the rights reserved to or vested in any governmertfai authority to control or
regulate any of the: Property and all applicable laws of such authorities.
To the extent that any required Approvals have not been obtained as of the date hereof
and the failure to obtain such Approvals would give rise to the right on the pars of any third party
to terminate or limit any right of Assignor or Assignee with respect to any of the Property
affected thereby, then any prevision contained in this instrument shall not become effective with
respect to such Property unless and until such Approval has been obtained, waived or is no
longer required. 'When such Approval has been obtained, waived or is no longer required, this
instrument shall automatically become effective without the need for any further action on the
part of Assignor, Assignee, or any other person and without payment of any further
consideration. Until such time as any such Approval has been obtained or waived or is no longer
EXHIBIT "A"
required, Assignor shall (,withow.. infringing on the legal rights of any third parry or violating; any
law, provide Assignee with the, equivalent beneflts Of' the Property affected, by suhcOrltract or
otherwise, on the condition that Assignee shall (lwithout ini- ringing on the legal rights of any third
parry or violating any law) cooperate and assist ira such efibrts alld shall hear III ecollumic
burdens and other obligations and liabilities of Assignor under the affected Property,
notwithstanding the fact that the same have not been transferred to Assignee.
TO HAVE AND TO HOLD the Property Elmo Assignee, its successors and assigns
forever, such that neither Assignor, nor any successor or assign of Assignor, shall have, claim or
demand any rigLt, title, interest or estate therein or with respect thereto, and subject to the
matters set forth above.
This Bill of Sale and Assignment shall be governed by and construed in accordance vvith
the laws of the State of Texas, and is binding; upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns. This instrument is executed in inaltiple
counterparts, each of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
Pvi gtwtures COt71C7hWl0l1 the 11ex(pagel
2
I)ATFII) to be cf'l'ecll\lc 2014 (the "l-Ill"(xtive-flite")
ASSIGN01\':
THE ITJ.,"MCOR Co.
APPROVED
LEGAL
By
James V. Stegall, I Cl i
A SS I C i N I Tf
THE' CITY 01•" BEAUMONT
Name:
Title:
No Text
E] ORIGINAL
ASSIGNMENT AGREEMENT
TI IIS ASSIGNMENT AGREEMENT, dated as of 5:00 p.m. on is entered
into and executed and delivered by and among The Premcer Pipeline Co., a Delaware
Corporation, whose address is One Valero Way, E24-1 10, San Antonio, TX 78249 -1616
(hereinafter called "Assignor"); City of Beaumont, a Texas municipality, whose address is
P.O. Box 3827, Beamonl, Texas 77704 (hereinafter called "Assignee"); and Strong Capital I
Funding, t -P, a Delaware Limited Partnership. (hereinafter called "Strong ");
WHEREAS, Assignor and Strong, or their respective predecessors in interest, entered
into one or more agreemeni(s), as arnended or supplemented prior to the date hereof, and
described on Exhibit A attached hereto and made a part hereof (collectively, the "Agreemonf'),
and
WHEREAS, the parties desire to amend the Agreement in connection with the execution
and delivery of this Assignment in order to, among other things, modify amend and supplement
certain payment (including without limitation payment amounts and certain payment terrns),
liability and indemnification provisions.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and other good and valuable consideration in hand paid and delivered, the
receipt, adequacy and legal sufficiency of which are hereby acknowledged by each of Assignor,
Assignee and Strong, the parties do hereby agree as foltows:
1. Assionnenl. The Assignor, for Ten and no1100 Dollars ($10.00) and other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
hereby fully, completely and validly sells. assigns, conveys, transfers, sets over and delivers to
the Assignee all of the Assignor's right, title, benefit, privileges and interest in, to and under the
Agreement (the "assigned Rights "), subject to the terms, conditions and limitations set forth
therein. Any indemnity obligation(s) contained in the Agreement shall be enforced against
Assignee only to the extent said indemnity is implemented pursuant to or in compliance w:ih the
Constitution and laws of the State of Texas. TO HAVE AND TO HOLD the Agreement and
Assigned Rights unto Assignee and its successors and assigns forever.
2. Assumption. Except as otherwise provided herein, the Assignee hereby accepts
the above assignment of the Assigned Rights and assumes and agrees Io be bound by and to
perform and observe fully and faithfully all of the covenants, stipulations, terms, provisions,
duties, obligations and conditions contained in said Agreement to be performed and observed by
the Assignor, and assumes and agrees to timely pay and perform, honor, discharoe and satisfy
all duties, obligatKms and liabilities of Assignor arising out of or relat +ng to the Agreement or
Assigned Rights (the "Assumed LiablflVes ").
3. Effect of Assionn)�n +. Strong, in consideration of the covenants and agreements
of the Assignor and the Assignee herein contained, gives its consent to the aforesaid assignment;
provided, however, that such consent shall not be deemed or construed to authorize any further
assignment of said Agreement, whether voluntary, by operation of law, or otherwise, wilhout the
prior written consent of Strong; provide , further that as between the Assignor and Strong,
neither this Assignment nor anything herein contained shall be construed as releasing the
Assignor from the obligation to perform and observe fully and faithfully all of the Assumed
Liabilities contained in said Agreement to be performed by the Assignor prior to the Effective
Time (hereinafter defined).
4. Administrative Proce�sino Fee..Assigna shall pay to Strong an administrative
processing fee in the amount of SEVL`-N HUNDRED FIFTY AND N01100 DOLLARS ($750.00)
upon the execution and delivery of this Assignment by check.
EXHIBIT "B°
5. Amendments to Actreernenl. The Agreement is hereby amended to include the
following provision(%):
The sections indicated in the "Rental Section' colurnn of Exhibit A shall be deleted in
their entirely and replaced with the follov.inq:
(a). "As partial consideration for the permission herein giver,,
Assignee shall pay to Strong, as rental the sure stated in the "Rental Amount"
column of Exhibit A. payable annually in advance and subject to annual
adjustment. Acceptance by Railroad of rental In advance shall not be construed
as a waiver by Railroad of its right to terminate as set forth on the "Teuninalion
Section" column of Exhibit A.
(b). CPI Factor Adjustments. The annual rental amount shall
autorratically and without notice to Licensee, be adjusted, upwards only, on each
anniversary of the Effective Time of this Assignment by the CPI Factor as
indicated on the Consumer Price Index, Urban Wage Earners and Clerical
Workers, U.S. City Average, All Items ( 1982 -84=100) (tire "Consumer Price
Index "), published by the United States Department of Labor, Bureau of Labor
Statistics, or any successor or substitute index published as a replacement for
the Index by any United States Governmental agency, or by a minimum of three
percent (3 %). "rhe "M Factor' is the percentage of adjustment stated in the
Consumer Price Index (indicated in the previous sentence) established during
the last available twelve -rn onth period immediately preceding each anniversary
of the Effective Time of this Assignment, adjusted to the nearest one -tench of one
percent -
(c). Interest. All amounts due hereunder shall bear interest from the
date when due until paid at a rate of eighteen percent (18%) per annum. Such
interest shall be governed by the laws of Texas, without regard to conflicts of
laws principles, and in no event will interest exceed the maximum amount
permitted by such laws.
(d). Dispute Resolution. Any dispute, controversy or claim ar }sing
from or in connection with the Agreement, an alleged breach of the Agreement or
the relationship of the parties under the Agreement, whether based on contract,
tort, common law, equity, statute, regulOon, order or otherwise (a "Disputo')
shall be resohed as follows:
(1) Informal Resolution, Except as olhem4se provided
herein, the parties will attempt to resolve any Dispute through informal
negotiations before proceeding to arbitration as provided below.
Negotiations for an informal resolution of a Dispute shall be initiated by
written request from the party requesting negotiations to the other party.
Upon sending and receipt of a request for negotiations, each party to the
Dispute +mi;l appoint a designated representative. The task of the
designated representatives will be to meet for the purpose of
endeavoring to resolve such Dispute. The designated representatives
shall have the authority to make binding decisions andiorcommitmenls
on behalf of the party they represenl. The designated representatives
shall meet as often as they reasonably deem necessary to resolve the
Dispute without the necessity of any formal limitations. f=ormal
proceedings for the resolution of a Dispute may not be commended until
the earlier of. (A) the designated representatives mutually concluding in
good faith that amicable resolution through contineed negotiation of the
matter does not appear likely or (B) 1he expiration of the thirty (30) day
period immediately following the date of the initial written request to
negotiate the Dispute.
;.1 Failing informal resolution, the dispute shall be tinal!y
resolved by the initiation of format legal proceedings in a coot of
competent jurisdiction located in the State of Texas, including any
appeal(s) therefrom.
11. Facilities. The "structure" description in the Agreement is hereby amended to reference a
4 -inch water sine inside a 16" casing (forme;ly a 16" crude line, but now out of service) inside a
20 -inch casing at mile post 24.06, E.S. 336+69 as described on the attached exhbil "i3" herein
which is added to the agreerent as an additional supplement.
6. Full Force and Effect* Entire Agreement: Amendment. Except as otherwise
expressly provided in this Assignment, all other terns, conditions and provisions of the
Agreement remain in full force and effect without amendment or modification. In the event of any
conflict, inconsistency or incongmity between any provision of this Assignment and any provision
of the Agreement, the provisions of this Assignment shall govern and control. This Assignment
embodies the entire agreement among the parties relating to the subject matter hereof and may
be amended only by an instrument in writing executed by an authorized officer of each party
hereto. The parties may waive any of the conditions contained herein or any of the obligations of
the other party hereunder, but any such waiver shall be elfeclive only if in writing and signed by
the party waiving such condition(s) or obligation(s).
7. Severabihty. if any term, provision, covenant or restriction of this Assignment is
held by a coup of competent jurisdiction or other authority to be invalid, void or unenforceaNe, the
remainder of the terms, provisions, covenants and restrictions of this Assignment shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
8. Governing Law Interpretation. This Assignment shall be construed and
interpreted in accordance with the laws of the State of 1 exas, without regard to conflicts of law
principles. Where required for proper interpretation, words in the singular shall include the plural:
the masculine gender shall include the neuter and the feminine, and vice versa. The terms
"successors and assigns' shall include the heirs, administrators, executors, successors, and
assigns, as applicable, of any party hereto. For purposes of construction, this Assignment will be
deemed to have been drafted by all parties hereto. This Assignn'. --nt shall be binding and shat!
inure to the benefit of the parties and their respective successors and assigns.
9. Acknowledgernents. The Assignee hereby acknowledges the title in and to the
Assigned Flights to be good and agrees never to assail or resist said title. The consummation of
the assignment of the Assigned Rights and the assumption of the Asswned Liabilities pursuant to
this Assignment shall be deemed Assignee's acknowledgement that it has had an adequate
opportunity to make such legal, factual and other inspections, inquiries and investigations as it
deems necessary, desirable or appropriate with respect to the Assigned Rights and Assumed
Liabilities. Except as otherwise expressly set forth in this Assignment and the documents or
instruments executed in connection herewith Assignee shall not be entitled to and shall not rely
upon Strong's or Strong's agents with regard to, and Strong will not make any representation or
warranty with respect to the legal status of the Assigned Rights and Assumed Liabilities or the
condition of title to the Assigned Rights or the nature, status and extent of any right -of -way, lease,
right of redemption, possession, lien, encumbrance, license, reservation, covenant, condition,
restriction, or any other matter affecting the Assigned Bights or Assumed Liabilities. Assignee . is
acquiring the Assigned Rights and assuming the Assurned Liabilities "as is and where is" with all
faults.
This agreement shall be considered to be effective as of (the
"Effective Time "),
IN WITNESS WHEREOF, the parties hereto have caused this Assignment to be
ezeculed in triplicate as of the date first above written.
"Assignor"
The Premcor Pipeline Co-
APPROVhj) Name:
LE At
Title: 1/�i (�-c-rsfy
Assignee"
The Uity of Beaurriont
By. __
Name:
Title:
Date.:
RAILROAD MANAGEMENT COMPANY, LLC
As agent for
STRONG CAPITAL I FUNDING, LP
B y.
a4�
Date.:
E
O
21
cu
L)
C1
Q.
L)
Q.
rq;
r.
y.
Ic
tr
E
al
Cl
BILL OF SALE AND ASSIGNMENT
'THE PREMCOR PIPELINE CO., a Delaware corporation, with an address of One
Valero Way. San Antonio. Texas 78249 ("Assignor''), for Ten and No/100 Dollars ($10.00) and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged. hereby assigns, sets over, transfers and delivers to THE CITY OF BEAUMONT.
a municipal corporation domiciled in Jefferson County. Texas, with an address of P.O. Box
3827, Beaumont, Texas 77704 ("Assignee""), all of Assignor's right, title, and interest in and to
an approximately 158.5-foot portion of Assignor's certain sixteen -inch (16") pipeline and
twenty -inch (20'') casing known as Assignor's Lucas Terminal Casing No. 8, located in Jefferson
County. 'Texas. which casing is shown on Exhibit "A" attached hereto and made a part hereof
for all purposes (collectively, the "Property').
'THE PROPERTY CONVEYED HEREBY IS CONVEYED '`AS IS," "WHERE IS"
AND "WITH ALL FAULTS" AND ASSIGNOR MAKES NO REPRESENTATIONS OR
WARRANTIES WHATSOEVER, WHETHER EXPRESS. IMPLIED, STATUTORY OR
OTHERWISE, AS TO THE PROPERTY'S MERCHANTABILITY, MARKETABILITY,
CONDITION, OR FITNESS OR SUITABILITY FOR ANY PARTICULAR USE OR
PURPOSE. THIS INSTRUMENT SHALL GOVERN IN THE EVENT OF ANY CONFLICT
BETWEEN IT AND ANY PRIOR OR CONTEMPORANEOUS REPRESENTATION,
DOCUMENT OR AGREEMENT MADE OR EXECUTED BY ASSIGNOR OR ANY OF ITS
AGENTS. EMPLOYEES OR REPRESENTATIVES.
By a separate Assignment Agreement dated q _,:�. 2014. between Assignor,
Assignee. and Strong Capital I Funding, LP (successor in interest to Southern Pacific
Transportation Company), that certain license agreement (the "License Agreement") dated
January 14, 1977, relating to the Property, has been assigned by Assignor to Assignee. pursuant
to the terms and conditions of the License Agreement.
This instrument is made and accepted subject to (a) any and all matters of record, (b) any
matters which a survey would reveal, (c) liens for taxes not yet delinquent, (d) all consents,
approvals, authorizations or permits of, or filings with or notifications to, any person or entity
which is required to be obtained, made or complied with for or in connection with any sale,
assignment, transfer or encumbrance of the Property or any portion thereof (collectively, the
``Approvals''), and (e) the rights reserved to or vested in any governmental authority to control or
regulate any of the Property and all applicable laws of such authorities.
To the extent that any required Approvals have not been obtained as of the date hereof
and the failure to obtain such Approvals would give rise to the right on the part of any third party
to terminate or limit any right of Assignor or Assignee with respect to any of the Property
affected thereby, then any provision contained in this instrument shall not become effective with
respect to such Property unless and until such Approval has been obtained, waived or is no
longer required. When such Approval has been obtained, waived or is no longer required, this
instrument shall autornatically become effective without the need for any further action on the
part of .Assignor. Assignee, or any other person and without payment of any further
consideration. Until such time as any such Approval has been obtained or waived or is no longer
required, Assignor shall (without infringing on the legal rights of any third party or violating any
law) provide Assignee with the equivalent benefits of the Property affected, by subcontract or
otherwise. on the condition that Assignee shall (without infringing on the legal rights of any third
party or violating any law) cooperate and assist in such efforts and shall bear all economic
burdens and other obligations and liabilities of Assignor under the affected Property,
notwithstanding the fact that the same have not been transferred to Assignee.
TO HAVE AND TO HOLD the Property unto Assignee, its successors and assigns
forever, such that neither Assignor, nor any successor or assign of Assignor, shall have, claim or
demand any right, title, interest or estate therein or with respect thereto, and subject to the
matters set forth above.
This Bill of Sale and Assignment shall be governed by and construed in accordance with
the laws of the State of Texas, and is binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns. This instrument is executed in multiple
counterparts, each of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
[signatures contained on the next page]
2
DATED to be effective St pftm bjq- q 2014 (the "Effective Date-)
ASSIGNOR:
THE PREMCOR PIPELINE CO.
APPROVED
LECAI
,
James V. Stegall,, ce President
Y�
ASSIGNEE:
THE CITY OF BEAUMONT
Bv:
Name: C jz tr
Title: �.
No Text
ASSIGNMENT AGREEMENT
THIS ASSIGNMENT AGREEMENT, dated as of 5:00 p.m. on L ' J c) I is entered
into and executed and delivered by and among The Premcor Pipeline Co., a Delaware
Corporation, whose address is One Valero Way, E2A-110, San Antonio, TX 78249-1616
(hereinafter called "Assignor"); City of Beaumont, a Texas municipality, whose address is
P.O. Box 3827, Beamont, Texas 77704 (hereinafter called "Assignee"); and Strong Capital I
Funding, LP, a Delaware Limited Partnership, (hereinafter called "Strong"),
WHEREAS, Assignor and Strong, or their respective predecessors in interest, entered
into one or more agreement(s), as amended or supplemented prior to the date hereof, and
described on Exhibit A attached hereto and made a part hereof (collectively, the "Agreement');
and
WHEREAS, the parties desire to amend the Agreement in connection with the execution
and delivery of this Assignment in order to, among other things, modify amend and supplement
certain payment (including without limitation payment amounts and certain payment terms),
liability and indemnification provisions.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and other good and valuable consideration in hand paid and delivered, the
receipt, adequacy and legal sufficiency of which are hereby acknowledged by each of Assignor,
Assignee and Strong, the parties do hereby agree as follows:
1. Assignment. The Assignor, for Ten and no/100 Dollars ($10.00) and other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
hereby fully, completely and validly sells, assigns, conveys, transfers, sets over and delivers to
the Assignee all of the Assignor's right, title, benefit, privileges and interest in, to and under the
Agreement (the "Assigned Rights"), subject to the terms, conditions and limitations set forth
therein. Any indemnity obligation(s) contained in the Agreement shall be enforced against
Assignee only to the extent said indemnity is implemented pursuant to or in compliance with the
Constitution and laws of the State of Texas. TO HAVE AND TO HOLD the Agreement and
Assigned Rights unto Assignee and its successors and assigns forever.
2. Assumption. Except as otherwise provided herein, the Assignee hereby accepts
the above assignment of the Assigned Rights and assumes and agrees to be bound by and to
perform and observe fully and faithfully all of the covenants, stipulations, terms, provisions,
duties, obligations and conditions contained in said Agreement to be performed and observed by
the Assignor, and assumes and agrees to timely pay and perform, honor, discharge and satisfy
all duties, obligations and liabilities of Assignor arising out of or relating to the Agreement or
Assigned Rights (the "Assumed Liabilities").
3. Effect of Assignment. Strong, in consideration of the covenants and agreements
of the Assignor and the Assignee herein contained, gives its consent to the aforesaid assignment;
provided, however, that such consent shall not be deemed or construed to authorize any further
assignment of said Agreement, whether voluntary, by operation of law, or otherwise, without the
prior written consent of Strong; provided, further, that as between the Assignor and Strong,
neither this Assignment nor anything herein contained shall be construed as releasing the
Assignor from the obligation to perform and observe fully and faithfully all of the Assumed
Liabilities contained in said Agreement to be performed by the Assignor prior to the Effective
Time (hereinafter defined).
4. Administrative Processino Fee. Assignor shall pay to Strong an administrative
processing fee in the amount of SEVEN HUNDRED FIFTY AND NO/100 DOLLARS ($750.00)
upon the execution and delivery of this Assignment by check.
5. amendments to Agreement. The Agreement is hereby amended to include the
following provision(s):
The sections indicated in the "Rental Section" column of Exhibit A shall be deleted in
their entirety and replaced with the following:
(a). "As partial consideration for the permission herein given,
Assignee shall pay to Strong, as rental the sum stated in the "Rental Amount"
column of Exhibit A, payable annually in advance and subject to annual
adjustment. Acceptance by Railroad of rental in advance shall not be construed
as a waiver by Railroad of its right to terminate as set forth on the "Termination
Section" column of Exhibit A.
(b). CPI Factor Adiustments. The annual rental amount shall
automatically and without notice to Licensee, be adjusted, upwards only, on each
anniversary of the Effective Time of this Assignment by the CPI Factor as
indicated on the Consumer Price Index, Urban Wage Earners and Clerical
Workers, U.S. City Average, All Items (1982-84=100) (the "Consumer Price
Index'), published by the United States Department of Labor, Bureau of Labor
Statistics, or any successor or substitute index published as a replacement for
the Index by any United States Governmental agency, or by a minimum of three
percent (3%). The "CPI Facto' is the percentage of adjustment stated in the
Consumer Price Index (indicated in the previous sentence) established during
the last available twelve-month period immediately preceding each anniversary
of the Effective Time of this Assignment, adjusted to the nearest one -tenth of one
percent.
(c). Interest. All amounts due hereunder shall bear interest from the
date when due until paid at a rate of eighteen percent (18%) per annum. Such
interest shall be governed by the laws of Texas, without regard to conflicts of
laws principles, and in no event will interest exceed the maximum amount
permitted by such laws.
(d). Dispute Resolution. Any dispute, controversy or claim arising
from or in connection with the Agreement, an alleged breach of the Agreement or
the relationship of the parties under the Agreement, whether based on contract,
tort, common law, equity, statute, regulation, order or otherwise (a "Dispute")
shall be resolved as follows:
(i) Informal Resolution. Except as otherwise provided
herein, the parties will attempt to resolve any Dispute through informal
negotiations before proceeding to arbitration as provided below.
Negotiations for an informal resolution of a Dispute shall be initiated by
written request from the party requesting negotiations to the other party.
Upon sending and receipt of a request for negotiations, each party to the
Dispute will appoint a designated representative. The task of the
designated representatives will be to meet for the purpose of
endeavoring to resolve such Dispute. The designated representatives
shall have the authority to make binding decisions and/or commitments
on behalf of the party they represent. The designated representatives
shall meet as often as they reasonably deem necessary to resolve the
Dispute without the necessity of any formal limitations. Formal
proceedings for the resolution of a Dispute may not be commended until
the earlier of: (A) the designated representatives mutually concluding in
good faith that amicable resolution through continued negotiation of the
matter does not appear likely or (B) the expiration of the thirty (30) day
period immediately following the date of the initial written request to
negotiate the Dispute.
(ii) Failing informal resolution, the dispute shall be finally
resolved by the initiation of formal legal proceedings in a court of
competent jurisdiction located in the State of Texas, including any
appeal(s) therefrom.
II. Facilities. The "structure" description in the Agreement is hereby amended to reference a
4-inch water line inside a 16" casing (formerly a 16" crude line, but now out of service) inside a
20-inch casing at mile post 24.06, E.S. 336+69 as described on the attached exhibit "B" herein
which is added to the agreement as an additional supplement.
6. Full Force and Effect; Entire Agreement; Amendment. Except as otherwise
expressly provided in this Assignment, all other terms, conditions and provisions of the
Agreement remain in full force and effect without amendment or modification. In the event of any
conflict, inconsistency or incongruity between any provision of this Assignment and any provision
of the Agreement, the provisions of this Assignment shall govern and control. This Assignment
embodies the entire agreement among the parties relating to the subject matter hereof and may
be amended only by an instrument in writing executed by an authorized officer of each party
hereto. The parties may waive any of the conditions contained herein or any of the obligations of
the other party hereunder, but any such waiver shall be effective only if in writing and signed by
the party waiving such condition(s) or obligation(s).
7. Severability. If any term, provision, covenant or restriction of this Assignment is
held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of this Assignment shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
8. Governing Law; Interpretation. This Assignment shall be construed and
interpreted in accordance with the laws of the State of Texas, without regard to conflicts of law
principles. Where required for proper interpretation, words in the singular shall include the plural,
the masculine gender shall include the neuter and the feminine, and vice versa. The terms
"successors and assigns" shall include the heirs, administrators, executors, successors, and
assigns, as applicable, of any party hereto. For purposes of construction, this Assignment will be
deemed to have been drafted by all parties hereto. This Assignment shall be binding and shall
inure to the benefit of the parties and their respective successors and assigns.
9. Acknowledgements. The Assignee hereby acknowledges the title in and to the
Assigned Rights to be good and agrees never to assail or resist said title. The consummation of
the assignment of the Assigned Rights and the assumption of the Assumed Liabilities pursuant to
this Assignment shall be deemed Assignee's acknowledgement that it has had an adequate
opportunity to make such legal, factual and other inspections, inquiries and investigations as it
deems necessary, desirable or appropriate with respect to the Assigned Rights and Assumed
Liabilities. Except as otherwise expressly set forth in this Assignment and the documents or
instruments executed in connection herewith Assignee shall not be entitled to and shall not rely
upon Strong's or Strong's agents with regard to, and Strong will not make any representation or
warranty with respect to the legal status of the Assigned Rights and Assumed Liabilities or the
condition of title to the Assigned Rights or the nature, status and extent of any right-of-way, lease,
right of redemption, possession, lien, encumbrance, license, reservation, covenant, condition,
restriction, or any other matter affecting the Assigned Rights or Assumed Liabilities. Assignee is
acquiring the Assigned Rights and assuming the Assumed Liabilities "as is and where is" with all
faults. �) c
This agreement shall be considered to be effective as of ! { d 1 1 (the
"Effective Time").
IN WITNESS WHEREOF, the parties hereto have caused this Assignment to be
executed in triplicate as of the date first above written.
"Assignor" "Assignee"
The Premcor Pipeline Co. The City of Beaumont
,^ �� Kam,,
By M` By:
4PROVED Name: )2�s . Name: Kit --I
LEGAL Title:' '°7` Title:�.-
t
Date:? Date:
RAILROAD MANAGEMENT COMPANY, LLC
As agent for
STRONG CAPITAL I FUNDING, LP
Na �a. � Ord
f
Title:,
Date: ' - I
G
0
•r.
N
o
G
o �
� r
m
tD
0
y �
�
N
G
N
�
J
Cs
'a
0
J
d m
v
o d 7c.
r
N
J
G
c�
a;
o
o� U
0
W
R =
J
�
G j
O
N
G
N
N
d
9
G
G