Continental Blvd (Lot 1) - Encroachment AgreementFIELDING, BARRETT & TAYLOR, L.L.P.
ATTORNEYS
3400 BANK ONE TOWER
500 THROCKMORTON STREET
FORT WORTH, TEXAS 76102-3821
TELEPHONE (817) 332-2580
(800) 318-3400
FAX (817) 3324740
WAYNE K OLSON
June 1, 1995
VIA FAX and REGULAR MAIL
Mr. Bob Whitehead
City of Southlake
667 North Carroll Avenue
Southlake, Texas 76092
RECEIVED
JUN 021995
DEPT. OF PUBLIC WORKS
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RE: Proposed letter encroachment agreement from Explorer Pipeline Company
Dear Bob:
I have reviewed the proposed letter encroachment agreement dated May 26, 1995
from Explorer Pipeline Company to Darr Equipment Company and the City of Southlake.
This agreement proposes to give permission to Darr and the city to construct a crossing for
Continental Blvd. across Explorer Pipeline Company's existing eight inch (8") and twelve
inch (12") high pressure petroleum product pipelines. It is my understanding that these
pipelines are located within the DART (Dallas Area Rapid Transit) railroad right-of-way.
This permission is contingent upon nine conditions which are set forth in the letter, including
indemnification by the city and Darr of Explorer Pipeline Company. As I indicated to you
over the telephone yesterday, I question whether the city is required to accept and agree to
this encroachment agreement.
The following is my understanding of the history of this project. An original escrow
agreement was signed on January 13, 1988 between Grapevine/Highway 26 Joint Venture
(the Venture), the City of Southlake and Metro Escrow Company, Inc. whereby the Venture
paid to the city the sum of $170,126.00 to be placed in escrow for future construction of the
railroad crossing. Under the terms of the escrow agreement, Metro Escrow Company was
E\files\muni\slake\letters\whitehea.029
Mr. Bob Whitehead
June 1, 1995
Page 2
required to disburse the funds to the city for construction of the railroad crossing when it
received an original invoice from the owner of the railroad right-of-way (St. Louis
Southwestern Railway Company) accompanied by a written request for payment from the
City of Southlake. The purpose of the crossing was to provide access to a proposed
development in the City of Southlake and the City of Grapevine. By letter dated April 3,
1987 from the St. Louis Southwestern Railway Company to Mr. R. Michael Berry,
Development Partner for Watson & Taylor, St. Louis Southwestern Railway Company gave
permission to install the crossing across the railroad right-of-way as shown on some attached
plans.
For whatever reason, the project was delayed and all of the parties to this transaction
changed. These transitions are documented in an Agreement Amending Escrow Agreement
dated July 7, 1994. The Venture went bankrupt at which time AmWest Savings Association
(AmWest) acquired title to all of the Venture's property and then later sold its title to Darr
Equipment Company. St. Louis Southwestern Railway Company sold its interest in the
railroad right-of-way to DART. Metro Escrow Company, Inc. transferred its interest in the
escrow funds to National Land Title Co., Inc. d/b/a Safeco Land Title of Dallas (Safeco).
Only the City of Southlake has remained the same. The amended escrow agreement
basically provides that the release of the funds shall no longer be conditioned upon receipt
of an original invoice from the St. Louis Southwestern Railway Company, but rather upon
receipt of an original invoice from any contractor which may be selected by the city after
consultation with DART and approval by Darr Equipment Company. It is my understanding
that St. Louis Southwestern Railway Company is still the proposed contractor for this
project.
In accordance with the amended escrow agreement, on February 21, 1995, the city
council approved a release of $102,786.41 of the escrow funds to the St. Louis Southwestern
Railway Company to initiate construction of the railroad crossing. (I do not have a signed
copy of this letter request and would appreciate you sending me one.) You indicated to me
over the telephone that DART has concurred in giving permission to allow this railroad
crossing, but has given the parties a July 4, 1995 deadline for completing the construction.
You indicated that this deadline was probably not etched in stone provided that construction
began prior to that date.
Apparently in the not too distant past, Explorer Pipeline Company has acquired an
easement through the DART right-of-way to lay its pipelines, and the proposed railroad
crossing will also need to cross Explorer Pipeline Company's easement. This is the reason
that the encroachment agreement has been prepared by Explorer.
f: \files\muni\slake\letters\whitehea.029
Mr. Bob Whitehead
June 1, 1995
Page 3
In November of 1993 I drafted a legal opinion to Curtis Hawk regarding the city's
ability to require a franchise for Explorer Pipeline Company to locate its pipeline facilities
within the city right-of-way. At that time, I determined that the city's authority over public
right of way dominates over a pipeline easement, even if the easement is located within
railroad right-of-way. I have not heard anything further on this matter and can only assume
that the franchise agreement was executed with Explorer Pipeline pursuant to city charter
requirements.
Based upon my understanding of the facts, it would still be my position that the city's
authority over its right-of-way predominates over Explorer Pipeline Company's right to
utilize a pipeline easement within railroad right-of-way. This being the case, the city would
not be required to execute any encroachment agreements to construct a street crossing
within the easement. You indicated that from a practical point of view, all of the conditions
and requirements set forth in the proposed encroachment agreement are reasonable and are
matters which the city is going to meet anyway. Therefore, the city may not have a concern
in executing the proposed encroachment agreement. The agreement, however, does provide
for indemnification by both Darr Equipment Company and the City of Southlake to Explorer
Pipeline for damages. To the extent that the city's negligence causes damages, it is my
opinion that the city would liable for these costs anyway. However, I am concerned about
the city agreeing to blanket indemnification for any damages arising out of its operations,
whether or not caused by the negligence of the city. Perhaps a better approach is to simply
write a letter to Explorer Pipeline Company explaining that the city proposes to follow these
procedures, without going to the extent of executing an encroachment agreement which gives
us permission to locate our road within their easement and provides an indemnification for
damages not caused by our negligence.
If you would like to discuss this matter, please feel free to give me a call.
Very truly yours,
W�L0
Wayne K. Olson
WKO/wrt
cc: Mr. Curtis Hawk
City of Southlake
667 North Carroll Avenue
Southlake, Texas 76092
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and Associates, Inc,
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If you have any problems, please c411 214-770-1300 and ask for.
Total number of pages, including cover sheet:
Comments.
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c�nrugant, AM notify us by Weplim, and rohan Ow woW ko&jm la to us at the ad *= &bow vie the U.S. Postal
Service. Thank you.
PLAY 26 '95 04:04PM EXPLORER PIPELYPE
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TULSA, OKLAHOMA
FACSIMILE COVER PAGE
DATE:
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FOR:
FROM:!«
THIS TRANSMISSION CONSISTS OF - ' PAGES INCLUDING C0VER.
IF YOU HAVE ANY TROUBLE RECEIVING THE ABOVE SPECIFIED
PAGES, PLEASE CALL THE SENDER AT (918) 493-- Ez .
EXPLORER'S FACSIMILE TELEPHONE NUMBER IS (918; 493— �?
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05/26/95 FRI 16:00 [TI/R% NO 78321 la001
Curtis E. Hawk
City Manager
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PAY 26 '95 04:0'SF" DMOFFER PIPELYNE P.2/4
*xP.aPAR PMffK MIMPO NY
May 26, 1995
Dar
CoJCity of Sout &iw, Tom
C/O MMOY-110M And Associates, I=
12660 Coit U4 Ste 300
Dallas, Tans 752S 1
Attn: Hier. Paul Hubert
310: Darr Equipment/City of Southls wCOnstructign Of CONUmental Honlevamd to
Highway 26. MP 55.2,12^ COMMISM to Grapevine Linc. DwE. 237 -AA -1018,
Tract 40 and 30.60, r Grapevine to D.F.W. Airport line, DwW 2AXAA-1001,
Tract 1, Tarrant County, Teras
Dow Mr. Hubert:
P,usuaat to aur WIVbona come on s and upm"aw of the 1Cin�o Prolext
69017
drawing sheet 2 of S rwaived by fm May 17, 1995, permission to crass
Explorer's
existing &-inch and 12 -inch high pressure petmletun product pipelines with
Proposed Contimatal Boulevard and its associated Culvert, hammRer refeuxcd to as
improvements, is hweby iced, only insofar as Explorer hes,the right, title and interest to
Sit such Permission, subject to the following terms and conditions:
1. Eaplornes Am oM shalt be givem, written nwoum at least 48 hours in
advance of any eonsbuctlon or 88turs maiatema ce, of said improvenumb
ooezmrsplated near pipeline in oniw that a*Bdd repress of Facplorer ire
present. Please contact Explorer's representative at the o>$ce indicated
below:
Mr. Richard Mien
Area Supervisor
RL 11, Buz 354
Caddo Mills, Tans 75135
(905) 527-3151
/`.O. Ckm rgdna • nl LLM.:7K1 AMpMA 741111 A.VS50 • 'D
1 *1 A" 1b I M
FAX 1918144C"•L, 177
05/26/95 FRI 16:00 [13/Ra NO 78321 Q002
MRY 26 '95 04205PM EXPLORER PIPELINE P.3/4
Dalt Equipment Co/Chy of Soud"ce, Tetter
May 26, 1995
Pap 2 of3
2. You hereby Wee to assmne the risk oC and Ad protect, indemnify, and save
humlessExplawfim and against all liability for or on account o& injury to
or �Of�M.Mump
mpaty, rrowlting 5 om YM operations,� � ehatl be caused by the ss�ugeaoe
of Fagkwer. its agents, setvaats, or employees_
3. You shall not permit heavy equipanent to work witbin 15 feet of Explones
$-inch and 12 -inch pipelines without prior appcovsl of Explorer's field
011pir
4. No reduction of cover ober pipeline is to talce plass at any location acr+ow
subject track
5. A proactive rdnforced concrete slab will be required over pipeline and
completely across the Coadine W Boulevard R.O.W.. Inconsideration of you
meg protective re afford concrete slab over pipeline and the promise to
deftd and indemnify Bxploter from any claim that may arise in fir -w of any
person adit out of the work performed by you over Explorer's pipeline,
ExpkWW VA permit improvemtab to be ooastn=ed over sad parallel to its
pipelines as per Rimley-Horn Project #69017.00 sliest 2 of S.
6. Any protective slabs, pave.meats, conaM drives, sidewallcs, faxes,
lmdscadw aet located on subject tracts that have to be removed for amass
to pipeline for emergency or mai denance purposes. will be removed and
replaced at owners -
7. Any future below ground utilities to cross abovAclow the pipeline and any
above ground udlibes to be installed gill teq dre a separate agreement.
S. Pipeline markers will be installed an both sides of Continental Boulevard by
EVJorer..
9. Ali of the terms% obligation's and conditions herein contained and set forth
SW be available to and binding upon the successors and assigns of the
respective parties to this Apoement.
05/26/95 FRI moo rTx/Rx No 78321 1Aoo3
/5
MRY 26 '95 64:0" EXPLORM PIPELINE
Dair Equipment WCity of South 6kk Texas
May 26, 1995
Pop 3 of 3
P.4/4
Plum your 30OWMW of tba above amps ad o mMm by bav=S au Mn=d
owls cf Darr E**mw Co. and the City of South Ww affix b wlw OVOMM in the space
pray PAW bdm and returning executed copy to me, Enclosed for your use ad m6 mation
M COOM of As -Built Alimmeat Drawbg Nos. 243 -AA -1001 sad 237 -AA 1013. Should
YOU have my qui please call me at (918) 4935153.
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03/26/95 FRI 16:00 [U/RX NO 76321 IhOo4
COMMISSION
ROBERT H. DEDMAN, CHAIRMAN
RAY STOKER, JR.
WAYNE B. DUDDLESTEN
T o'
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STATE DEPARTMENT OF HIGHWAYS
AND PUBLIC TRANSPORTATION
P.O. BOX Q63
FORT WORTH, TEXAS 76115-0363
(317) 242-"10
July 12, 1990
1990 Federal Railroad Signal Program
Control 0902-48-137
Project RRP OOOS(739)
Brumlow Avenue and SLSW RR
in Southlake - DOT No. 789 734H
Mr. Curtis Hawk
City Manager
City of Southlake
667 North Carroll Avenue
Southlake, Texas 76092
Dear Mr. Hawk:
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ENGINEER -DIRECTOR
ARNOLD W. OLIVER, P.E.
CONTACT:
We are transmitting for your review and execution the original
Title Sheet, and a blueprint of the Plan Sheet for the above
listed project. Please sign and date the original Title
Sheet in the appropriate title block and return to us. The
Plan Sheet blueprint is for your file and record.
If you have any questions concerning this program or the
proposed project, please contact this office at telephone
number (817) 292-6510.
Sincerely,
)e,eA9 ,
S. Elton Hamill, Jr., P.E.
Supv. Designing Engineer
Attachment
cc: Mr. Billy A. Hardie, P.E.
".NT OF HIGHWAYS
RANSPORTATION
iwere developed by members of the
eam In accordance with terms of
Inroad agreement and are hereby
for construction.
BRIDGE ENGINEER
CITY OF SO THLAKE
RECOMENDED �
FOR APPROVALA 19 p�
APPROVED 19�
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U.S. DEPARTMENT OF TRANSPORTATION
FEDERAL HIGHWAY ADMINISTRATION
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