PIPELINE EASEMENT AGREEMENT
Exhibit
10.13
This
Pipeline Easement Agreement (this “Agreement”) is executed by and among SEMGROUP
ENERGY PARTNERS, L.L.C., a Delaware Limited Liability Company ("SGLP"), and
SEMGROUP CRUDE STORAGE, L.L.C., a Delaware limited liability Company ("SGCS")
(collectively referred to herein as "Grantor"), and WHITE CLIFFS PIPELINE,
L.L.C., a Delaware limited liability company ("Grantee");
WHEREAS,
SGLP is the owner of record of certain real property located in Xxxxx County,
State of Oklahoma, described more fully in Exhibit B attached
hereto (the "SGLP Property"); and
WHEREAS,
SGCS is the owner of record of certain real property located in Xxxxx County,
State of Oklahoma, described more fully in Exhibit C attached
hereto (the "SGCS Property"); and
WHEREAS,
SemCrude, L.P., SemGroup, L.P., SemMaterials, L.P. and SemManagement, L.L.C. and
SemGroup Energy Partners, L.P., SGLP, SemGroup Crude Storage, L.L.C., SemPipe
G.P., L.L.C., SemPipe, L.P., SemMaterials Energy Partners, L.L.C. and SGLP
Asphalt, L.L.C. have entered into a Master Agreement, dated as of the date
hereof (the “Master Agreement”);
NOW,
THEREFORE, for and in consideration of Ten Dollars and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
SGLP and SGCS do hereby grant, bargain, sell and convey unto Grantee the
following non-exclusive easements over and across their respective properties
and premises situated in Xxxxx County, Oklahoma, more particularly described on
Exhibit A,
pages 1 through 4 attached hereto:
A
permanent easement approximately twenty (20) feet in width more particularly
described on Exhibit A", pages 1 – 3, to construct, install, test, maintain,
inspect, operate, protect, and repair a crude oil pipeline upon and along a
route or routes on, in, over, under, through and across the SGLP Property and
the SGCS Property located in Xxxxx County, Oklahoma (the "Permanent Easement");
and
A
permanent easement approximately sixty-five (65) feet square more particularly
described on Exhibit "A", page 4, to construct, install, test,
maintain, inspect, operate, protect and repair a surface facility (the “Surface
Facility Easement”); and
Together
with the reasonable right of ingress and egress to, from and along the Permanent
Easement and the Surface Facility Easement and the right to use gates and
existing roads for the aforesaid purposes, such rights of ingress and egress
over the SGLP Property and the SGCS Property being referred to herein as the
"Access Easement"; and
A
temporary work space easement from time to time as reasonably necessary of sixty
(60) feet in width with such temporary work space easement being twenty (20)
feet on either side of the Permanent Easement described on Exhibit "A" hereof
(the "Work Space Easement") (the Permanent Easement, the Surface Facility
Easement, the Access Easement and the Work Space Easement, collectively referred
to herein as the "Easement Rights Area");
for the
use of Grantee for its pipeline and related facilities, over, through and upon
the same.
For the consideration above recited and
the mutual covenants and conditions herein contained, the parties further agree
as follows:
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1.
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Grantor
and its successors and assigns shall have the right to use and fully enjoy
the Easement Rights Area, subject to the easements hereby granted;
provided, however, that Grantor agrees that it will not construct nor
permit to be constructed any lakes, ponds or buildings upon or over the
Easement Rights Area without the written consent of Grantee, which consent
shall not be unreasonably withheld.
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2.
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Grantee
agrees as follows:
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A.
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All
uses of the Grantor’s property are made at the risk of the
Grantee. Grantee shall comply with work safety rules,
regulations, instructions and scheduling concerning the use of the
Grantor’s property. Any construction hereunder shall be done at
the sole risk of the Grantee, and not at the Grantor’s
risk. Grantee shall keep and maintain the improvements of
Grantee in good condition and repair, and shall make all repairs,
replacements and renewals, foreseen and unforeseen, ordinary or
extraordinary, in order to maintain the same in such state of condition
and repair.
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B.
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Grantee
shall operate and maintain its improvements located on the Easement Rights
Area, without undue interference with the operations of the Grantor, or
its tenants, licensees, guests, or invitees. Grantee shall, at
its sole cost and expense, promptly repair and restore any and all damage
to the property of Grantor, including, without limitation, damage to any
improvements located on such property, caused by the exercise of such
easement rights by Grantor. If such repair and/or restoration
is not carried out within a reasonable period after the date such damage
is caused, the Grantor shall have the right to cause such repair and/or
restoration to be made, and the Grantee shall, upon written demand
therefor by Grantor, reimburse Grantor for all of its fees, costs and
expenses (including, without limitation, reasonable attorneys’ fees and
court costs) incurred in making or related to such repair and/or
restoration.
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C.
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Grantee
shall cause its operations and construction hereunder and the use of the
Easement Rights Area to be in compliance with all applicable laws,
statutes, regulations, rules, zoning laws, environmental laws, health and
safety laws, and any other federal, state or local codes and
ordinances applicable to the party, its business, operations,
improvements and equipment, and the property affected
thereby. Grantee shall conduct its operations on the Easement
Rights Area in a good and workmanlike manner, exercising reasonable skill,
care and diligence in performing the same, consistent in all material
respects with prudent industry
practices.
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D. In
the event Grantee is in default of its obligations hereunder, Grantor shall
notify Grantee in writing thereof, providing reasonable detail of such default
for proper identification, and the Grantee shall have thirty days to cure such
default; provided, that if the Grantee shall commence to cure such default
within twenty days of receipt of such notice, and shall proceed to cure such
default with due diligence, the Grantee shall have a period of up to ninety days
to complete such cure. Notwithstanding the foregoing, if any
operation of Grantee constitutes a present danger to life or property, Grantee
shall immediately cause the cure of such condition, including as necessary
termination of operation of the improvements located on the Easement Rights Area
causing such condition, until the condition is resolved. Grantor
shall be entitled to receive injunctive or similar relief to enjoin any
default. Grantee grants to the Grantor the right to enforce the
grants of easement rights herein by specific performance. Any partial
release of any easement rights granted herein shall not affect any other
easement rights granted herein.
E. Grantee
shall keep in effect, at their respective sole cost and expenses, reasonably
satisfactory comprehensive general liability insurance covering the easement
rights granted hereunder with maximum limits of liability of not less than
$1,000,000 for bodily injury of death to one person, or to any group of persons
as a result of one accident, and $1,000,000 for property
damage. Grantee shall name the Grantor as an additional insured and
furnish such other party with certificates of current policies, and upon
expiration thereof, renewal certificates, evidencing such
insurance.
F. Grantor
shall pay all real estate taxes and assessments that shall be due and payable on
the Easement Rights Area prior to delinquency.
G. Nothing
contained herein shall be construed or deemed to constitute a dedication,
express or implied, of any real property to or for any public use or purpose
whatsoever.
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3.
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No
Representation. THE EASEMENTS AND RIGHTS GRANTED HEREIN
ARE BEING GRANTED IN THEIR CURRENT CONDITION, “AS-IS, WHERE-IS AND WITH
ALL FAULTS” AND EXCEPT AS MAY BE SPECIFICALLY SET FORTH IN THE MASTER
AGREEMENT, WITHOUT REPRESENTATION OR WARRANTY OR INDEMNIFICATION OF ANY
KIND, EXPRESS OR IMPLIED, EACH AND ALL OF WHICH ARE HEREBY EXPRESSLY
DISCLAIMED BY THE GRANTOR, INCLUDING, WITHOUT LIMITATION, ANY
REPRESENTATION OR WARRANTY WITH RESPECT TO QUALITY, MERCHANTABILITY OR
FITNESS FOR ANY PARTICULAR USE OR
PURPOSE.
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4.
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Testing. GRANTEE
MUST OBTAIN THE GRANTOR’S PRIOR APPROVAL FOR THE PERFORMANCE OF ANY
INVASIVE OR INTRUSIVE SOIL, GEOLOGICAL, GEOTHERMAL OR OTHER PHYSICAL
TESTING OF ANY KIND, INCLUDING WITHOUT LIMITATION ENVIRONMENTAL TESTING,
RECOMMENDED BY GRANTEE’S ENGINEERS OR REQUIRED BY GRANTEE’S
MORTGAGEES. ANY REQUEST BY GRANTEE TO PERFORM INVASIVE TESTING
AT THE EASEMENT RIGHTS AREA MUST BE ACCOMPANIED BY A SUMMARY OF THE
PROPOSED SCOPE OF WORK OR THE ENGINEER’S PROPOSAL. GRANTEE
SHALL NOT INTERFERE UNREASONABLY WITH THE OPERATION OF THE FACILITIES
LOCATED ON THE GRANTOR’S PROPERTY THAT IS SUBJECT TO ITS INSPECTION OR
TESTING AND SHALL COORDINATE ALL OF ITS ACTIVITIES AND THOSE OF ITS
ENGINEERS, REPRESENTATIVES, CONSULTANTS AND AGENTS WITH THE GRANTOR TO
MINIMIZE POSSIBLE INTERFERENCE WITH SUCH FACILITIES OR THEIR
OPERATION. GRANTEE SHALL PROMPTLY RESTORE ANY AREA OF THE
GRANTOR’S PROPERTY THAT IS DISTURBED IN THE COURSE OF GRANTEE’S TESTING OR
USE TO THE CONDITIONS EXISTING PRIOR TO ANY TESTS CONDUCTED BY GRANTEE OR
TO THE CONDITIONS EXISTING PRIOR TO ANY USE MADE BY
GRANTEE.
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5.
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INDEMNIFICATION. GRANTEE
AGREES TO INDEMNIFY, DEFEND, AND HOLD GRANTOR HARMLESS FROM AND AGAINST
ANY CLAIM MADE AGAINST GRANTOR AND/OR GRANTOR’S REPRESENTATIVES FOR ANY
LOSS OR DAMAGE INCLUDING PROPERTY DAMAGE AND DEATH OR BODILY INJURY,
SUFFERED BY GRANTOR OR ANY OF ITS REPRESENTATIVES AS A RESULT OF GRANTEE’S
INSPECTIONS, SAMPLING OR TESTING AND GRANTEE’S USE OF THE EASEMENTS
GRANTED TO IT HEREIN. THE FOREGOING INDEMNIFICATION OBLIGATIONS
SHALL SURVIVE ANY SALE OF PROPERTY BY EITHER PARTY AND SHALL SURVIVE ANY
EXPIRATION OR TERMINATION OF ANY OF THE EASEMENT RIGHTS GRANTED HEREUNDER
FOR ACTIONS ACCRUING DURING THE TERM
HEREOF.
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6.
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WAIVER OF
LIABILITY. EXCEPT FOR THE GRANTEE’S INDEMNIFICATION
OBLIGATIONS WITH RESPECT TO CLAIMS OF THIRD PARTIES, THE PARTIES’
LIABILITY FOR DAMAGES HEREUNDER IS LIMITED TO DIRECT, ACTUAL DAMAGES ONLY,
AND NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR LOST PROFITS OR OTHER
BUSINESS INTERRUPTION DAMAGES, OR SPECIAL, CONSEQUENTIAL, INCIDENTAL,
PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, IN TORT, CONTRACT OR OTHERWISE,
OF ANY KIND, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE PERFORMANCE,
THE SUSPENSION OF PERFORMANCE, THE FAILURE TO PERFORM, OR THE TERMINATION
OF THIS AGREEMENT.
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7.
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Termination. Grantee
may terminate and abandon any of its easement rights granted hereunder, by
written notice to Grantor, and such termination and abandonment shall be
irrevocable and effective as of the date set forth in such
notice. Grantee shall have removed its improvements from the
Easement Rights Areas prior to such termination and shall repair and
restore the land disturbed by such removal. If the Grantee has
not removed its improvements on or prior to the effective date of such
termination, such improvements shall become the property of the Grantor,
and Grantee shall have no further right in or to such
improvements. In addition, if any or all of any easement
granted to Grantee are taken by condemnation, then such easement shall
terminate at the time of such taking, and such Grantee shall be entitled
to the portion of the condemnation award as shall be mutually determined
between the Grantor and Grantee, or as determined by final non-appealable
order of an appropriate court having jurisdiction
thereof.
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8.
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Cooperation in
Operations. The parties agree to cooperate in good faith
with each other in negotiating a possible relocation of any easement right
granted hereunder and the associated improvements in order to accommodate
the reasonable development of the business and property of the other;
provided, however, that the Grantee shall not be required to release any
easement rights in such negotiations, and in the relocation of such
easement rights, the cost of such relocation shall be borne by Grantor,
and such relocation shall not place any greater burden on the Grantee in
the development and use of its easement rights than the burden Grantee
would incur if Grantee were to develop and use its easement rights
hereunder in their present
location.
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9.
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Permanent Covenants
Running with Land. Subject to the provisions of Section
7 hereof, all of the easements and rights hereby granted, the restrictions
and obligations hereby imposed, and the agreements herein contained shall
be permanent, perpetual easements, rights, restrictions, obligations and
agreements and shall be covenants running with the land and shall inure to
the benefit of, and be binding upon, the parties hereto and their
respective heirs, successors, and assigns, the land affected hereby and
the future owners thereof.
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10.
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Covenant Against
Liens.
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A. Subject
to the provisions of Section 10.B, Grantee hereby covenants and agrees that it
will not cause or permit any lien (including, without limitation, the filing of
any mechanic’s lien) to be filed or asserted against the property of the Grantor
as a result of any act or omission of Grantee. In the event any such
lien or notice of lien is filed, Grantee shall, within twenty (20) days of
receipt of notice from Grantor of the filing of the lien, contest such lien as
permitted by law if such contest is sufficient alone to prevent the lien from
maturing, or contest said lien as permitted by law and bond or insure over said
lien, or fully discharge the lien by settling the claim which resulted in the
lien or by bonding or insuring over the lien in the manner prescribed by
applicable law. If Grantee fails to so contest and/or discharge the
lien, then, in addition to any other right or remedy of Grantor, Grantor may
bond or insure over the lien or otherwise discharge the lien. Grantee
shall reimburse Grantor any amount paid by Grantor to bond or insure over the
lien or discharge the lien, including without limitation reasonable attorneys’
fees, within fifteen (15) days of receipt of invoice therefor. Any
rights and obligations created under or by this Section shall survive
termination or expiration of this Agreement.
B. Notwithstanding
the provisions of Section 10.A., Grantor shall have the right to cause one or
more mortgages or deeds of trust against the property owned by Grantor,
provided, however, that the mortgagee or beneficiary/grantee thereunder shall be
subject to all of the covenants, conditions and restrictions of this Agreement,
and if any portion of such property subject to such mortgages or deeds of trust
are sold under a foreclosure, or conveyed to such mortgagee or
beneficiary/grantee in lieu of foreclosure, any such purchaser or grantee and
its successors and assigns shall hold any and all such property purchased or
acquired subject to all of the covenants, conditions and restrictions of this
Agreement.
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11.
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Recordation. The
parties shall file this Agreement of record in the property records of
Xxxxx County, Oklahoma, providing notice of this
Agreement.
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12.
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Notices. Any
notice and other communication hereunder shall be in writing and shall be
deemed to have been duly given upon receipt if (i) hand delivered
personally, (ii) mailed by certified mail, postage prepaid, return receipt
requested, (iii) sent by Federal Express or other express carrier, fee
prepaid, (iv) sent via facsimile with receipt confirmed, or (v) sent via
electronic email with receipt confirmed, provided that such notice or
communication is addressed to the parties at their respective addresses
below:
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To
Grantee:
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White
Cliffs Pipeline, L.L.C.
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Two
Xxxxxx Place
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0000
Xxxxx Xxxx Xxxxxx, Xxxxx 000
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Xxxxx,
Xxxxxxxx 00000
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Phone: (000)
000-0000
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Fax: (000)
000-0000
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Attention: Chief
Financial Officer
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To
Grantor:
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SemGroup
Energy Partners, L.L.C.
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Two
Xxxxxx Place
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0000
Xxxxx Xxxx Xxxxxx, Xxxxx 000
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Xxxxx,
Xxxxxxxx 00000
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Phone: (000)
000-0000
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Fax: (000)
000-0000
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Attention: Chief
Financial Officer
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Any party
may change the person and address to which notices or other communications to it
hereunder are to be sent by giving written notice of any such change to the
other party in the manner provided in this Section.
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13.
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Non-Waiver. No
delay or failure by either party to exercise any right under this
Agreement, and no partial or single exercise of that right, shall
constitute a waiver of that or any other
right.
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14.
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Headings. Headings
in this Agreement are for convenience only and shall not be used to
interpret or construe its
provisions.
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15.
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Governing Law;
Jurisdiction. The terms and provisions of this Agreement
shall be governed by and construed in accordance with the laws of the
State of Oklahoma. During the pendency of the Bankruptcy Cases
(as defined below), and without limiting any party’s right to appeal any
order of the Bankruptcy Court (as defined below), (i) the Bankruptcy Court
shall retain exclusive jurisdiction to enforce the terms hereof and to
decide any claims or disputes which may arise or result from, or be
connected hereby, and (ii) any and all actions related to the foregoing
shall be filed and maintained only in the Bankruptcy Court, and the
parties hereby consent to and submit to the jurisdiction and venue of the
Bankruptcy Court and shall receive notices at such locations as provided
hereinabove. “Bankruptcy
Cases” means the chapter 11 cases commenced by SemGroup, L.P. and
certain of its direct and indirect subsidiaries on July 22, 2008, jointly
administered under Case No. 08-11525 (BLS). “Bankruptcy
Court” means the United States Bankruptcy Court for the District of
Delaware or any other court having jurisdiction over the Bankruptcy Cases
from time to time. Thereafter, the parties agree that action with respect
to this Agreement will be brought in an Oklahoma state court or Federal
Court of the United States sitting in the county in which the Real
Property is located and the parties hereby submit to the exclusive
jurisdiction of said court. The parties hereby unconditionally
and irrevocably waive, to the fullest extent permitted by applicable law,
any objection which they may now or hereafter have to the laying of venue
or any dispute arising out of or relating to this Agreement or any of the
transactions contemplated hereby brought in any court specified above, or
any defense of inconvenient forum of the maintenance of such
dispute. Each of the parties hereto agrees that a judgment in
any such dispute may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by
law.
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16.
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Waiver of Jury
Trial. THE PARTIES HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT THAT THEY MAY HAVE TO TRIAL BY JURY OF ANY CLAIM OR CAUSE OF
ACTION, OR IN ANY PROCEEDING, DIRECTLY OR INDIRECTLY BASED UPON OR ARISING
OUT OF THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT
(WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER THEORY). EACH
PARTY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTY HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS IN THIS
AGREEMENT.
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17.
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Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall
be deemed an original but all of which together shall constitute one and
the same instrument.
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18.
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Entire
Agreement. This Agreement, together with the Exhibits
hereto, represents the entire understanding and agreement between the
parties hereto with respect to the subject matter hereof and supersedes
any previous agreements or correspondence between the parties with respect
to the same. All Exhibits annexed hereto or referred to herein
are hereby incorporated in and made a part of this Agreement as if set
forth in full herein. This Agreement may not be amended,
modified, supplemented or altered except through a written agreement
signed by the parties. The parties hereto may, by written
amendment to this Agreement, executed by all parties hereto, and in
recordable form, replace the Exhibits annexed hereto from time to time as
needed to truly and correctly reflect the property affected hereby and the
correct placement, nature and extent of the Grantee’s pipeline
improvements. The parties may file of record the written
amendment to this Agreement in the property records of Xxxxx County,
Oklahoma, to truly and correctly reflect the property affected hereby from
time to time.
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Dated effective as of the 31st day of
March, 2009.
[THE
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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Grantor:
SEMGROUP
ENERGY PARTNERS, L.L.C.,
a
Delaware limited liability company
By: _/s/ Xxxx X.
Stallings________________
Name: Xxxx
X. Xxxxxxxxx
Title: Chief
Financial Officer and Secretary
ACKNOWLEDGMENT
STATE OF
TEXAS
)
) ss.
COUNTY OF
DALLAS
)
This instrument was acknowledged before
me on the 3rd day of April, 2009, by Xxxx X. Xxxxxxxxx, as Chief Financial
Officer and Secretary of SemGroup Energy Partners, L.L.C., a Delaware limited
liability company.
/s/ Authorized
Signatory______________
Notary Public
My
commission expires:
____________________
[SEALl ]
Grantor:
SEMGROUP
CRUDE STORAGE, L.L.C.,
a
Delaware limited liability company
By: _/s/ Xxxx X.
Stallings________________
Name: Xxxx
X. Xxxxxxxxx
Title: Chief
Financial Officer and Secretary
ACKNOWLEDGMENT
STATE OF
TEXAS
)
) ss.
COUNTY OF
DALLAS
)
This instrument was acknowledged before
me on this 3rd day of April, 2009, by Xxxx X. Xxxxxxxxx as Chief Financial
Officer and Secretary of SemGroup Crude Storage, L.L.C., a Delaware limited
liability company.
/s/ Authorized
Signatory______________
Notary Public
My
commission expires:
__________________
(SEAL)
Grantee:
WHITE
CLIFFS PIPELINE, L.L.C.,
a
Delaware limited liability company
By: Its
Manager:
SEMCRUDE
PIPELINE, L.L.C.
by
SemCrude, L.P., its sole member,
by
SemOperating G.P., L.L.C., its general partner
By: _/s/ Xxxxxxxx
Ronan_________________
Name: Xxxxxxxx
Xxxxx
Title: President
and Chief Executive Officer
ACKNOWLEDGMENT
STATE OF
TEXAS )
) ss.
COUNTY OF
DALLAS
)
This instrument was acknowledged before
me on this 3rd day of April, 2009, by Xxxxxxxx Xxxxx, President and Chief
Executive Officer of SemOperating G.P., L.L.C., the general partner of SemCrude,
L.P., the sole member of SemCrude Pipeline, L.L.C., the Manager of White Cliffs
Pipeline, L.L.C., a Delaware limited liability company.
/s/ Authorized
Signatory______________
Notary Public
My
commission expires:
__________________
(SEAL)
EXHIBIT
C
