Document ydGwR53pznmorV2OvBXy42k3

CHG 01638 c champlin A Subsidiary of Union Pacific Corporation INTER-OFFICE CORRESPONDENCE PERRYMAf HAWKINSO i' TO: W. A. Thompson FROM: J. R. Robinson" SUBJECT: Public Docks Maintenance Agreement OFFICE:"~TM7'MV5r'T8U9` RETURN TO December 5, 1985 1PLAINTIFF'S EXHIBIT SAFETY & LOS' CONTROL rFr Attached is a draft of the proposed Public Docks Maintenance Agree ment prepared with input from various Champlin departments. If you are comfortable with this draft as a starting point with the Port Authority and the other users of the docks, you can present it to them and begin developing a final draft. If you have any questions or we can be of help in the negotiations please cal 1. cc: R. R. Morgan, w/o attachment F. R. Edrington, II, w/o attachment L. W. Baker, w/attachment C. C. Wallentine, w/attachment J. F. Gay, w/o attachment^ 31 uosS CH/W-002726 CHG 01639 e champlin TO: FROM: A SubS'O'ary ol Union Pacific Corporation INTER-OFFICE CORRESPONDENCE Distribution J 3 J.R. Robinson' PERRYMAIM HAVvKiNSOii/iy......... OFFICE:.......... FW/3809 DATE:RETURM ^31/85 SUBJECT: Maintenance Agr^jment for Public Docks Nos. 3, &lL96SCorpus Christ1 CONTROL DEPT- Attached for your review and comment is a proposed draft of an Agreement of Association Among Common Uses of Nueces County Navigation District Oil Dock Nos. 3, 4, 7 and 11. This Agreement defines the procedures for the maintenance of these public docks. Please get your comments to me by November 11th, so we can finalize our proposal in anticipation of a meeting which will be called by the Corpus Christi Port Authority to consider the Agreement. The Port is very eager to keep the effort to develop a maintenance agreement moving. Distribution: Larry Bak^r Joe Gay Pete Hoffman Bob Hooker Ken Jahnke Tom Nichols A1 Reinhardt Willie Terry (Deep Sea) Warren Thompson (CCR) Craig Wallentine cc: R.R. Morgan (w/o attachment) J.E. Sparano (w/o attachment) G.J. Casler (w/o attachment) F.R. Edrington (w/o attachment) R.E. Schneck (CCR) (w/o attachment) / 00/2.1 received; NOVI 1985 SAFETY & LOSS CONTROL DEPT. CH/W-002727 TO: FROM: SUBJECT: e champlin A SubS'd-ary of Union Pacific Corporation INTER-OFFICE CORRESPONDENCE Jed R. Robinson Frank R. Edrington II OFFICE: FW 4010 DATE: 10/28/85 Agreement of Association Among Common Users of Nueces County Navigation District Oil Docks Nos. 3, 4, 7 and 11 Attached for your comment and review please find my latest draft of the above Agreement. I have already found a couple of areas which I wish to change, but before I do so I will wait for your changes and anybody else's to whom you may send this draft. Please contact me when you are ready to put the next draft into the machine. /mde Attachment cc: R. E. Thompson, wo/ attach. CH/W-002728 DRAFT Agreement of Association 10/28/85 Page 1 v. v-1" . v r. *9 *V> JS ^ V" ' \ ^ COMMON .r4* V PURPOSE/OBJECTIVE 0^ AGREEMENT OF ASSOCIATION AMONG USERS OF NUECES COUNTY NAVIGATION DISTRICT OIL DOCKS NO. 3, 4, 7 AND 11 - `YV. ' \V v ., VOv 0<>e'c' / c_*a.S' A 1 A*'.. _ ^ The purpose and /intent of the Agreement of Association for the ( Common Users ("Users"p of Nueces County Navigation District (District) Oil Docks No. 3, 4, 7 and 11 (the "Association"^* is to provide the Users with the common equipment and services required to meet the applicable regulatory, safety and-operating and maintenance needs for the facilities, docks, piers and wharves as well as the equipment, materials, communication requirements and ancillary needs required during the Users receipt and/or loading of liquid petroleum, chemical V7 or/"compatibl^ products in bulk by pipeline at the District oil docks No. 3, 4, 7 and 11. SERVICES AND MAINTENANCE The common equipment and services to be provided Users shall essentially consist of the following: tl) Lines from the District's shore collection tanks to Coastal v/v*' ^states Petrochemical ballast line. This provides a means to Vr \n7VV-*' pump out dock surface and oil drainage received into the collection tanks. (S2) Compressed air for operation of winches and booms. ^,(3) Fire extinguishers, life rings, ladders and gangways (exist- ing equipment) . CH/W-002729 DRAFT Agreement of Association 10/28/85 Page 2 MAINTENANCE RESPONSIBILITY The Users agree that pier and wharf maintenance responsibility shall be as follows: a V-k The Administrator (hereinafter described.) will provide,during the term of this agreement, an acceptable level of maintenance for equip ment used on Oil Piers Nos. 3, 4, 7 and 11, which maintenance ci^ild include: 1. Repair, replacement and maintenance of pier facilities and equipment including hoists, ginpoles, rigging, drain troughs, drain pipes, blow case, and piping up to the valve on Coastal's ballast line. 2. Weed control under and adjacent to lines of participating companies. All lines, blinds, connections, reducers, hoses, slings, communi- -cr eation equipment, tools, and other items owned by the1users be provided and maintained by the respective Users. A " will both vx \>* MAINTENANCE CHARGES The charges for the maintenance described v\^> Yin^Pc in| Paragraph IJ above shall be the actual cost to Champlin plus ten percent (10%) for ac- counting and overhead. The charge to each^User will be based on the \/' V-\ x/ percent of total volume)moved across Piers 3, 4, 7 and 11. The per- centage distribution will be based on volumetric information furnished N YV*. by the District. BiJULs--sbaJ-L--be--rpnflpred under this agreement-^at a A ,___ ~' .. frequency "de Lermfned -by the Admmistrtor7'~trut`--rKi_J?e^s^~fhaji^yeyy -2- CH/W-002730 DRAFT Agreement of Association 10/28/85 Page 3 SCOPE OF WORK EiIMI-TATTON In the event a single maintenance project is estimated to exceed Twenty Thousand Dollars ($20,000.00), the Administrator will summarize the scope and cost by letter to each of the Users covered by this agreement. If no objection is received in writing by a date specified in the letter, the project will be completed andt theN participants billed as set forth in Paragraph ____'. Existing equipment for hose handling and oil containment shall be maintained and replaced unless it is determined by a unanimous vote of the Users that it is no longer needed. e. w Any ^equipment needed by only some of the Users shall be installed and mmaaiinnttaained by tthose Users3^hrough a separate agreement. v RESPONSIBILITY OF ALL PARTIES* 1 2 This agreement does^and shall not relieve any of the^Users which have loading equipment located on piers Nos. 3, 4, 7 and 11 from the responsibility of properly maintaining their own hose racks, pipe manifolds, communication equipment or tool houses on those four piers. All Users will also be responsible for pier clean-up and for racking the hoses on the piers afterr,^acrn-use. Each^ser will ensure that the piers are left in the condition as is outlined in the pertinent Port Regulations, and^Jser action shall include the following: 1. Waste oil will be drained into blow tanks for return to the Coastal ballast system. 2. Pier flooring will be cleared of any oil spills. If solvent is needed for cleaning up, only a high-flasl^ material will be used. -3- CH/W-002731 DRAFT Agreement of Association 10/28/85 Page 4 3. Upper and lower troughs will be emptied and cleaned. 4. Blow cases will be emptied into Coastal's ballast line and valve positions returned to normal for draining. 5. Sand will be used for clean-up only in an emergency. If sand is used, it will be swept up and put in a box designat ed for dirty sand only, for later disposal. Drain lines from upper and lower troughs will be open before leaving dock. If. the above has not been accomplished, then the company using the dock next can initiate clean-up and then charge the company which didn11 leave tlie dock and pier in the v.'t*'>v S<~ appropriate condition for the'cost of the clean-up. A oil spi-lls^^-^ WV V* ^ AW?" In the event any oil spills^result from operations at Oil Piers Nos. 3, 4, 7 or 11, the offending User will be responsible for the clean-up and attendant costs either with its own personnel and equip ment or through the Corpus Christi Area Oil Spill Association. Addi tionally, it is understood and agreed by the participating Users that the company responsible for any oil spill or other pollution will pay any penalty or fine imposed by any local, state or federal authority or agency. .*A. \V> ADMINISTRATOR "A A which /0s e rs^ shall agree to aadrag^l select IV shall act as 'kadministrator of the one of the H-rrlmrmbar'i Oil Docks 3, 4, 7 and -4- CH/W-002732 DRAFT Agreement of Association 10/28/85 Page 5 11, or any piers and docks covered under this Agreement. The appoint ed Administrator shall serve in that capacity for a period of two (2) years at the end of which time, the Administrator position may rotate to another User, as shall be agreed by the majority of the Users. The incumbent administrator may continue past its tenure only with the unanimous agreement of the other Users. ADMINISTRATOR'S DUTIES AND FUNCTION The administrator shall be responsible, w agreement & the Users members, to purchase, contract, service and maintain the items and services included in this agreement and shall render to the Users a< six (6) month' accounting of purchases, expenses, and each nnrvi* mertwiiT-s credit/debit balance. All materials items purchased by the administrator shall be the property of Users in undivided equal shares. MEMBERSHIP Membership in the Common Users Association for use of Oil Docks No. 3, 4, 7 and 11 shall be compulsory for all general and substantial^ users of said oil docks. Occasional or casual users of oil docks 3, -------------------------------------- o4, 7 and 11 may be full members of the Common Users Association or, IMs.t-v'i'c*.j.'wsV pi upon agreement w^eh. the Common Users Association, may pay a spot use fee to the Common Users Association, with such spot payments being credited to the Common Users Association current expense account. fc'c- s -5- CH/W-002733 DRAFT Agreement of Association 10/28/85 Page 6 CASUAL/INFREQUENT USERS It is the stated intent of the Port of Corpus Christi Authority that membership in this Common Users^ Association be comprised of the and substantial appgov^^ust^rs of oil docks 3, 4, 7 and 11, -mt& such Users must be familiar, on a day-to-day basis, with the regulatory, safety and operating requirements of bulk loading/unload ing of petroleum and chemical products^by the casual\nd spot User^of oil docks 3, 4, 7 and 11. The Association may determine and charge such casual and spot Users, with the approval of the/^ort of Corpus fchristi Authority, a reasonable daily rate fqr such common rrSe- equip- ment and services, in lieu of membership and participation. casual and spot) Users Association ------------- -3v*v- Such^fees collected by the Association Administrator shall be credited to the Association common operating expenses for the operating period when the fees were collected. NEW MEMBERS f <- t On advice by he jPqrt^of Corpus Christi Authority that a new and additional User has beenl granlted access to use oi^ docks 3, 4, 7 and 11, the Association shall admit such -aeW^ddirtxotta-1 User to membership in the Association upon the new member's payment to the Association of its (new member's) fair/equal share of the materials/equipment in use by Association on oil docks 3, 4, 7 and 11 at prices and costs exist ing on the date of the new member's joining the Association. Such payment shall be credited as a payment to existing Association mem bers' accounts in equal shares. From the date the new member joins -6- CH/W-002734 i # s DRAFT Agreement of Association . 10/28//85 Page 7 vj the Association,^^ 4t-h1 e Association ^LtAS L- ^ r '**' V' ^. expenses shall be shared by all User members wqually/ itc.c-e- . -i< - - -- -~- j.? ' t-i rt * -* -' FINANCING, ACCOUNTING AND ADMINISTRATOR'S SERVICE FEE l|\ X-V fc''rO*r C_&Wvwc.^ Ift^agr-eement wi-th other mpmhorg Qf this As&oe-ia titan. the adminis trator shall develop a list of materials/equipment to be purchased and services/equipment to be contracted for in order to meet the purpose/ objectitfi^of this Association. The cost of these materials/equipment and . \ k.-- C Aservices Icontracts^) (cost) for the--six months the A^gpciation is in existence shall (Vr, w't.V be estimated and agreed upon by^the Association members. To this estimated amount shall be added an Bfdministrator1s fee which shall be set at the agreed rate of percent of the total (cost) amount, obligated for any six month period, but shall not be less than $ per six month administrative period. Each member of the Association shall pay its share of the -cati 'X total estimated six-month's st plus its share of the above described Association dministrat^Sce fee to the dministrator in advance of the next six month operating period. The Administrator will reconcile all accounts for each six month period and shall apply debits/credits to payments due (as applicable) from Association members for the subsequent six-month period. -7- CH/W-002735 DRAFT Agreement of Association 10/28/85 Page 8 , i? u -u7 ' .. , - r. w L,,.-1 i.wi u,, 7-"#<-< /U-t uu r' Fees^for pier/dock services, effective , 1985: Ships $ Barges (discharged or loaded), single or tow, to 30,001 bbls. $ 30,001 to 40,001bbls. $ In excess of 40,001bbls. $ Billing for services will be for each quarter of the year and become effective on January 1, 1986. The fees will be based on the vessels loaded or discharged as shown by the Nueces County Navigation District No. 1 records. LIABILITY OF MEMBERS It is the stated intent of th & Associatioryyto provide common regulatory, safety and operating services as agreed upon by the Asso ciation members, which are required the members' use of oil docks 3, 4, 7 and 11 for loading/unloading petroleum/chemical bulk liquid cargo from tankers and/or barges. Users, on taking over use of oil /I e *> ^ docks 3, 4, 7 and 11 for such approved operations, shall inspect and accept'such equipment and services as necessary to meet all applicable l regulatory/safety and operating requirements for users unloading and ^ o loading operations. Acceptance and use of this equipment and the dock or docks by(^an^Association members to meet its particular operating <5^ responsibilities shall be predicated on the basis of the acceptance of liability for and full responsibility by the authorized User. Member Users understand and agree that no liability, expressed or implied. -8- CH/W-002736 DRAFT Agreement of Association 10/28/85 Page 9 rest^or shall rest with the Association^by virtue of a member's use of the common facilities and services provided hereunder. INDEMNITY The Administrator shall indemnify and save the Users, presently Koch,'Coastal,v Hess , and/or PPG harmless from any losses, costs, A /\ expenses, damages, judgments or other liability arising from or out of the negligence of the Administrator, its contractor or their respec tive agents, servants, or employees, in the performance of its obliga tions hereunder, which result in the death or injury to any person or damage to the property of any person, firm or corporation, including the employees of Hess, Koch, Coastal, and PPG, and their contractors. All Users, including but not limited to Hess, Koch^Sun and PPG shall indemnify and save the Administrator harmless from any losses, costs, expenses, damages, judgments or other liability arising from or out of the negligence of Hess, Coastal, Sun, or PPG, their contrac tors, or their respective agents, servants or employees,, in the per formance of their obligations hereunder^ which result in the death -or injury i# any person or damage to the property of any person, firm or corporation, including the employees of Coastal ,^Hess, Koch, or PPG, and their contractors. FORCE MAJEURE No liability shall result to any^User-partyj to this agreement as a result of delay in performance or non-performance with the exception ^ of the payment of money, because of acts of God, fire, storm, flood. CH/W-002737 -9- DRAFT Agreement of Association 10/28/85 Page 10 war (whether or not affecting the United States of America), rebel lion, insurrection, riot, explosions, or any other cause or causes, whether of the kind herein enumerated or otherwise, which is or are beyond the control of the party affected. In the event of any User-party to this agreement being rendered unable, wholly or in part, by force majeure, as hereinabove defined, to carry out its obligations under this contract, other than to make payments when due hereunder, it is agreed that on such User's giving notice with reasonably full particulars of such force majeure, in writing or by teletype, to the other parties within a reasonable time, after the occurrence of the cause relied upon, then the obligations of the User giving such notice so far as they are affected by such force majeure, shall be suspended during the continuance of any inability so caused, but no longer period, and such cause shall, so far as possi ble, be remedied with all reasonable dispatch. TERM AND CANCELLATION This agreement shall continue in effect for two years, beginning the first day of January, 1986 and ending midnight, December 31, 1987, then for year to year thereafter, provided, however, that any Userparty to. the Agreement may terminate its .participation in this Agreement at the end of said two year pepiod or at the end of any' yearly period thereafter by giving thirty (30) days prior written notice of termination to the other User-parties. Any charges incurred by the Administrator prior to termination by any User-party shall be charge able against said User in accordance with Paragraph ___ herein. -10- CH/W-002738 DRAFT Agreement of Association 10/28/85 Page 11 In addition, said User may be informed of any maintenance, the need for which arose in whole or in part prior to or on the termination date and which is then being performed or will be performed in the **VVvi> near future and the cost of said maintenance shall be chargeable m whole or in part against said User in accordance with Paragraph ___. Said maintenance will be performed and a bill rendered said User within six months after the aforementioned termination date. iff during the term of this agreement, any of the participating Users sell or transfer their ownership of facilities which in turn W " s_ utilize any of the pier facilities covered by this agreement, then the selling or transferring User agrees to inform the purchaser or assign ee of this Agreement. Further, User and said purchaser or assignor shall incorporate into any purchase or sales agreement or assignment that the purchaser or assignee will become a member of the Association and execute^and be bound by its terms and conditions. A The purchaser or assignee must also pay a proportional share of the maintenance charges described in Paragraph ___ as shall be determined through the negotiation of the Administrator and the purchaser/assignee. In the event the purchaser or assignee leaves the membership of the associa tion within six (6) months of joining, then the remaining Users of the Association will not be required to purchase nor will the departing User be entitled to a buy out its interest in the Association. 7 -ii- CH/W-002739 DRAFT Agreement of Association 10/28/85 Page 12 NOTICES All notices, invoices, statements, bills and papers provided for in this agreement shall be in writing and shall be given by mail directed to the Post Office address of the parties hereto, as follows: Champlin: Hess: Champlin Petroleum Company P. O. Box 7 Fort Worth, Texas 76101-0007 Attention: Koch: Coastal: PPG: 1)u0'^ or to such other address as each User shall, from time to time, desig nate --ptrrpe&e by registered or certified letter addressed to the other Users. -12- CH/W-002740 DRAFT Agreement of Association 10/28/85 Page 13 NOTICE TO PORT OF CORPUS CHRISTI AUTHORITY The Port of Corpus Christi Authority shall be provided with a signed copy of this Agreement of Association by its User-members, and V' notified by'^tininistrator appointed contact for the Association, address, telephone number, etc., as required to define communication l channel with the Association. ATTEST: Assistant Secretary CHAMPLIN PETROLEUM COMPANY By ATTEST: Assistant Secretary By ATTEST: Assistant Secretary By ATTEST: Assistant Secretary BY. -13- CH/W-002741 DRAFT Agreement of Association 10/28/85 Page 14 ATTEST: Assistant Secretary By. THE STATE OF TEXAS COUNTY OF ) ) ) BEFORE ME, the undersigned authority, on this day personally appeared , _________________________________________________________________________________ of CHAMPLIN PETROLEUM COMPANY, a corporation, known to me to be the person and officer whose name is subscribed to the foregoing instrument, and acknowledged to me that the same is the act and deed of said corporation and that he executed the same as such for the purposes and consideration therein expressed and in the capacity stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this ________ day of , 1985. My Commission Expires: Notary Public in and for County, Texas -14- CH/W-002742 DRAFT Agreement of Association 10/28/85 Page 15 THE STATE OF TEXAS COUNTY OF ) ) ) BEFORE ME, the undersigned authority, on this day personally appeared , of , a corporation, known to me to be the person and officer whose name is subscribed to the foregoing instrument, and acknowledged to me that the same is the act and deed of said corporation and that he executed the same as such for the purposes and consideration therein expressed and in the capacity stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this ________ day of , 1985. My Commission Expires: Notary Public in and for County, Texas THE STATE OF TEXAS COUNTY OF ) ) ) BEFORE ME, the undersigned authority, on this day personally appeared , of , a corporation, known to me to be the person and officer whose name is subscribed to the foregoing instrument, and acknowledged to me that the same is the act and deed of said corporation and that he executed the same as such for the purposes and consideration therein expressed and in the capacity stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this ________ day of , 1985 . My Commission Expires: Notary Public in and for County, Texas -15- CH/W-002743 DRAFT Agreement of Association 10/28/85 Page 16 THE STATE OF TEXAS COUNTY OF ) ) ) BEFORE ME, the undersigned authority, on this day personally appeared , of , a corporation, known to me to be the person and officer whose name is subscribed to the foregoing instrument, and acknowledged to me that the same is the act and deed of said corporation and that he executed the same as such for the purposes and consideration therein expressed and in the capacity stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this ________ day of , 1985. My Commission Expires: Notary Public in and for County, Texas THE STATE OF TEXAS COUNTY OF ) ) ) BEFORE ME, the undersigned authority, on this day personally appeared , of , a corporation, known to me to be the person and officer whose name is subscribed to the foregoing instrument, and acknowledged to me that the same is the act and deed of said corporation and that he executed the same as such for the purposes and consideration therein expressed and in the capacity stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this ________ day of , 1985. My Commission Expires: Notary Public in and for County, Texas -16- CH/W-002744 DRAFT Agreement of Association 10/28/85 Page 17 ACCEPTED AND AGREED BY MEMBER _______________________ ADDRESS TEL. REP. MEMBER ADDRESS TEL. REP. MEMBER ADDRESS TEL. REP. MEMBER ADDRESS TEL. REP. MEMBER ADDRESS TEL. REP. MEMBER ADDRESS TEL. REP. ARTICLES OF ASSOCIATION APPROVED By Port of Corpus Christi Authority DATE: -17- CH/W-002745