9.1 Dedications North Ohio
CITY OF SALINA
REQUEST FOR CITY COMMISSION ACTION
DATE
02/27/2006
TIME
4:00 P.M.
AGENDA SECTION
NO:
ORIGINATING DEPARTMENT:
APPROVED FOR
AGENDA:
9
ITEM
NO.
Page 1
CITY ATTORNEY
BY:
BY: Greg Bengtson
ITEM: Resolution Number 06-6255
A resolution authorizing the Mayor to sign the Covenants and Dedications Relating to New Track
Connection and Amending an Oil and Gas Lease Relating to a Producing Oil Well in Salina, Kansas.
BACKGROUND:
A significant component of the North Ohio Overpass project is construction of what is referred to as
the Union Pacific Track Connection east of the overpass. In anticipation of the project, the City
acquired the real estate necessary for construction of the track connection, including a tract owned by
the Daniel C. King Trust. For the reason that a producing oil well is located on the King Tract, the
King Trust retained the mineral interest in the real estate.
The oil well on the tract is located just east of the location of the new track connection. The tank
battery serving the well was relocated to the east of the location of the track in anticipation of the
project.
The proposed covenants are the basis of the ongoing relationship between the City, the retained
mineral interest holder, the railroad, the oil well operator and the lessee under the oil and well gas
lease.
RECOMMENDED ACTION:
Adopt Resolution No. 06-6255.
COVENANTS AND DEDICATIONS
RELATING TO NEW TRACK CONNECTION
AND AMENDING AN OIL AND GAS LEASE RELATING TO A
PRODUCING OIL WELL IN SALINA, KANSAS
These Covenants ("Covenants") are made and entered into as of February 27,
2006, among the following parties:
City of Salina, Kansas, a Kansas municipal corporation ("City")
Union Pacific Railroad Company, a Delaware corporation ("Railroad")
Daniel C. King & N aney L. King, Trustees of the Daniel C. King Trust dated
March 13, 1998 ("Mineral Interest Holder")
BEREXCO INC., a Kansas corporation ("Operator"); and
Okmar Oil Company, an Ohio general partnership,
Robert M. Beren, L.P., a Delaware limited partnership, and
Matzliach, L.P., a Delaware limited partnership,
(collectively "Oil and Gas Lessees")
RECITALS
A. The City entered into an agreement with the Kansas Secretary of
Transportation (the "Secretary") dated April 22, 2002 (the "Original Agreement") for
Kansas Department of Transportation ("KDOT") Project No. 85-K-8307-01 covering the
grade separation project at North Ohio Street, over the Railroad's tracks and the Kansas
and Oklahoma Railroad Company's tracks in Salina, Saline County, Kansas (the
"Project").
B. As part of the Project, the City was to acquire, as a Project expense and at
no cost to the Railroad, all property required for the Railroad to construct a railroad track
connection located west ofMarymount Road which will connect the Railroad's Salina
Subdivision at approximately Milepost 493.2 (the "Track Connection"),
C. For the purpose of fulfilling its obligation to acquire the property required
for the Railroad to construct the Track Connection, the City acquired by Corporation
Warranty Deed dated September 29,2004, from Eastridge Development, Inc., a Kansas
corporation, to the City recorded in Deed Book 1089 at pages 66-67 ofthe office ofthe
Register of Deeds of Saline County, Kansas, a tract legally described on Exhibit A
attached hereto and hereby made a part hereof, (the "Eastridge Tract"),
COVENANTS AND DEDICATIONS
RELATING TO NEW TRACK CONNECTION
Page 2 of 9
D, The mineral rights relating to the Eastridge Tract were reserved by Daniel
C. King and Nancy L. King, husband and wife, (the "Kings") and their heirs, executors,
and assigns, along with the right to enter the Eastridge Tract for the purpose of extraction
of all oil, gas and other minerals on, in and under the Eastridge Tract as set forth in
Corrective Quit Claim Deed from the Kings to Eastridge Development, Inc., dated
January 1, 1997, and recorded in Deed Book 380, at pages 48-49 of the office of the
Register of Deeds of Saline County, Kansas (the "Mineral Interest"); which Mineral
Interest was subsequently conveyed of record to the Mineral Interest Holders,
E, The Eastridge Tract is covered by an Oil and Gas Lease dated January 12,
1951, and recorded in Oil & Gas Book 6 at pages 206-207 of the office of the Register of
Deeds of Saline County, Kansas, (the "Oil and Gas Lease") held by the Oil and Gas
Lessees "for the sole and only purpose of mining and operating for oil and gas, and
laying pipe lines, and building tanks, power stations and structures thereon to produce,
save and take care of said products" and under which a currently producing oil well (the
"Oil Well") is being operated by the Operator.
F. Exhibit B, attached hereto and hereby made a part hereof, is a survey and
legal description of the property to be conveyed by the City to the Railroad pursuant to
Agreement Covering New Track Connection Near Salina, Kansas, dated May 3, 2005
(the "Track Connection Agreement") for the purpose of constructing the Track
Connection (the "Track Connection Property").
G, The Operator, at the request and expense of the City, has recently
relocated the tank battery that services the Oil Well so that both it and the Oil Well are
located east of the Track Connection Property as it traverses the Eastridge Tract.
H, The Track Connection Agreement provides that the Railroad shall
construct and maintain a concrete 40-foot public street crossing (the "Public Street
Crossing") within a 60-foot public street right-of-way that will be located on the Track
Connection for Industrial Road at Railroad Engineering Station 17+54 (the "Crossing
Area") as depicted on Exhibit C-1 and legally described on Exhibit C-2, attached hereto
and hereby made a part hereof,
I. The deed conveying title to the Track Connection Property from the City
to the Railroad (the "Deed") includes a reservation by the City of a perpetual,
nonexclusive easement on, along, over and under the Public Street Crossing Area in order
for the City to dedicate the Crossing Area as a public at-grade street crossing "and to use
the Crossing Area for the installation, use and maintenance of utility crossings by the
City and any utility franchised or pennitted under city, state, or federal law (collectively,
the "Utilities") provided; however, that such dedications by the City and the City's and
general public's use of the Crossing Area for public street purposes and the Utilities' use
COVENANTS AND DEDICATIONS
RELATING TO NEW TRACK CONNECTION
Page 3 of 9
ofthe Crossing Area for utility crossings shall (i) not interfere with the Railroad's
common carrier railroad operations on, along, over and under the Crossing Area
including, without limitation, the Railroad's right to install, use and maintain any
Railroad communication lines and facilities on, along, over or under the Crossing Area,
(ii) not relieve the Utilities from their obligation to pay the Railroad's then current
licensee fee for any utility crossings within the Crossing Area, and (iii) not relieve the
Utilities from their obligation to obtain the Railroad's prior review and approval of the
plans for any utility crossing within the Crossing Area,
J. The City, as part ofthe Project, has caused to be reconstructed the 24-foot
gravel side road (the "Side Road") which runs immediately south of the north boundary
of Section 7 from Marymount Road west to the Public Street Crossing and desires to
grant to the Mineral Interest Holder, the Operator, and the Oil and Gas Lessees an access
easement for use of the Side Road, for so long as the Oil and Gas Lease remains in effect,
as depicted on Exhibit D-l and legally described on Exhibit D-2, attached hereto and
hereby made a part hereof, (the "Access Easement"),
K. In order to provide for the ongoing exercise of the rights of the Mineral
Interest Holder, the Lessees, and the Operator in a manner that does not interfere with the
Railroad's use of the Track Connection Property, the parties' mutual interests are best
served by addressing the rights of the Mineral Interest Holder, the Lessees, and the
Operator in relation to the Track Connection Property by the recording of these
Covenants immediately following and contingent upon the recording of the Deed on the
closing date under the Track Connection Agreement (the "Closing Date") .
THE PARTIES, THEREFORE, COVENANT, DEDICATE, AND AGREE:
Section 1.
CITY - DEDICATION OF CROSSING AREA.
City hereby dedicates the Crossing Area depicted on Exhibit C-l and legally
described on Exhibit C-2 as public at-grade street crossing in accordance with and subject
to the tenus of the Deed.
Section 2.
CITY - ACCESS EASEMENT.
City hereby grants to the Mineral Interest Holder, the Operator, and the Oil and
Gas Lessees the Access Easement depicted on Exhibit D-l and legally described on
Exhibit D-2 for use ofthe Side Road, for so long as the Oil and Gas Lease remains in
effect. If any part or all of the area affected by the Access Easement is dedicated in the
future as public street right-of-way, that same part or all of the Access Easement shall be
deemed to have merged into the public street right-of-way.
COVENANTS AND DEDICATIONS
RELATING TO NEW TRACK CONNECTION
Page 4 of9
Section 3.
MINERAL INTEREST HOLDER.
Mineral Interest Holder agrees and covenants that, as of the Closing Date, Mineral
Interest Holder relinquishes any and all right to enter upon or under any part of the Track
Connection Property in the exercise of its rights under the Mineral Interest without the
prior written consent ofthe Railroad; provided, however, Mineral Interest Holder may
make use ofthe Public Street Crossing to the extent necessary to access that portion of
the Eastridge Tract located west of the Track Connection in the exercise of its rights
under the Mineral Interest.
Section 4,
OIL AND GAS LESSEES and OPERATOR.
Oil and Gas Lessees and Operator agree and covenant that, as of the Closing Date,
Oil and Gas Lessees and Operator relinquish any and all right to enter upon or under any
part of the Track Connection Property in the exercise of their rights under the Oil and Gas
Lease without the prior written consent of the Railroad; provided, however, Oil and Gas
Lessees and Operator my make use of the Public Street Crossing to the extent necessary
to access that portion of the Eastridge Tract located west of the Track Connection in the
exercise of their rights under the Oil and Gas Lease,
Section 5.
AMENDMENT OF OIL AND GAS LEASE.
To the extent the tenns ofthese Covenants and Dedications are inconsistent with
the tenns of the Oil and Gas Lease, the Oil and Gas Lease is hereby amended.
Section 6.
COVENANTS RUNNING WITH THE LAND.
These Covenants and Dedications SHALL RUN WITH THE LAND AND
SHALL BE BINDING UPON AND INURE TO THE BENEFIT of the parties, their
heirs, beneficiaries, personal representatives, successors and assigns, in perpetuity, unless
revoked or modified in writing upon the consent of the parties.
Section 7.
CONTINGENCY: RECORDING.
The effective status of these Covenants and Dedications shall be contingent upon
the delivery by the City, acceptance by the Railroad, and the recording ofthe Deed.
These Covenants shall be recorded in the office of the Saline County Register of Deeds
on the Closing Date and immediately following the recording of the Deed.
IN WITNESS WHEREOF, the individuals and duly authorized officers of the
parties have executed these Covenants as of the day and year first above written,
COVENANTS AND DEDICATIONS
RELATING TO NEW TRACK CONNECTION
Page 5 of 9
City of Salina, Kansas
By:
Deborah P. Divine, Mayor
ATTEST:
Lieu Ann Elsey, CMC, City Clerk
STATE OF KANSAS, SALINE COUNTY, ss:
BE IT REMEMBERED, that on this 27th day of February, 2006, before me, the
undersigned, a notary public in and for the county and state aforesaid, came Deborah P.
Divine, Mayor of the City of Salina, Kansas, and Lieu Ann Elsey, City Clerk, who are
personally known to me to be the same persons who executed as such officers the within
instrument of writing on behalf of the City of Salina, Kansas, and such persons duly
acknowledged the execution of the same to be the act and deed of said City.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year last above written.
Notary Public
My appointment expires:
COVENANTS AND DEDICATIONS
RELATING TO NEW TRACK CONNECTION
Page 6 of 9
Union Pacific Railroad Company
By:
Tony K. Love, General Manager-
Real Estate
ST ATE OF NEBRASKA
)
) ss.
)
COUNTY OF DOUGLAS
On , 2006, before me, a Notary Public in and for said County
and State, personally appeared Tony K. Love, who is the General Manager-Real Estate,
of Union Pacific Railroad Company, a Delaware corporation, and who is personally
known to me (or proved to me on the basis of satisfactory evidence) to be the person
whose name is subscribed to in the within instrument, and acknowledged to me that he
executed the same in his authorized capacity, and that by his signature on the instrument
the person, or the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public
(Seal)
COVENANTS AND DEDICATIONS
RELATING TO NEW TRACK CONNECTION
Page 7 of 9
Daniel C. King, Trustee
N aney L. King, Trustee
STATE OF KANSAS, COUNTY OF SALINE, ss:
This instrument was subscribed, sworn to, and acknowledged before me on this
day of , 2006, by DANIEL C. KING and NANCY L. KING, as
Trustees of the Daniel C. King Trust dated March 13, 1998.
Notary Public
COVENANTS AND DEDICATIONS
RELATING TO NEW TRACK CONNECTION
Page 8 of 9
BEREXCO INC.
By:
Adam E. Beren, President
STATE OF KANSAS, COUNTY OF SEDGWICK, ss:
This instrument was acknowledged before me on the - day of
2006, by ADAM E. BEREN, as President of BE REX CO INC., a Kansas corporation.
Notary Public
Okmar Oil Company
By: Robert-AB, LP., Managing General Partner
By: REN Corporation,
General Partner of Robert-AB, LP.
By:
Adam E, Beren, President
STATE OF KANSAS, COUNTY OF SEDGWICK, ss:
This instrument was acknowledged before me on the - day of
2006, by ADAM E, BEREN, as President ofREN Corporation, General Partner of
Robert-AB, LP., Managing General Partner of Ok mar Oil Company, an Ohio general
partnership.
Notary Public
Robert M. Beren, LP.
By: BEREXCO PROPERTIES, INC.,
Managing General Partner
By:
Adam E. Beren, President
STATE OF KANSAS, COUNTY OF SEDGWICK, ss:
This instrument was acknowledged before me on the - day of
2006, by ADAM E, BEREN, as President of BE REX CO PROPERTIES, INC., Managing
General Partner of Robert M, Beren LP., a Delaware limited partnership,
Notary Public
COVENANTS AND DEDICATIONS
RELATING TO NEW TRACK CONNECTION
Page 9 of 9
Matzliach L.P.
By: Berenergy Corporation,
Managing General Partner
By:
Robert M. Goodyear, Jr., President
STATE OF
, COUNTY OF
, ss:
This instrument was acknowledged before me on the - day of
2006, by ROBERT M. GOODYEAR, JR., as President of Berenergy Corporation,
Managing General Partner of Matzliach LP" a Delaware limited partnership.
Notary Public