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HomeMy WebLinkAboutResolution - 4756 - License - AT & SF Railway Company - Water Pipeline Across Railway - 02_23_1995Resolution No. 4756 February 23, 1995 Item #24 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock a License for a 6-inch water pipeline across railway property by and between the City of Lubbock and the Atchison, Topeka and Santa Fe Railway Company for one pipeline facility to be constructed, owned, operated and maintained by said City of Lubbock across said Railroad's right-of-way at mile post 86 + 0157 Subdivision, attached hereto, which shall be spread upon the minutes of the Council and as spread upon the minutes of this Council shall constitute and be a part of this Resolution as if fully copied herein in detail. Passed by the City Council this ATTEST: �� A azev_ Betty Nf Johnson, City Secretary APPROVED ASTOCONTENT: Ed Bucy, Right -of -Way Agent APPROVED AS TO FORM: arold Willard, Assistant City Attorney HW.js/AT&SFR.RES ccdocs/January 11, 1995 Resolution No. 4756 February 23, 1995 Item #24 Form Approved by VP -Law PIPE LINE LICENSE 11008599 23rd February THIS LICENSE, Made this 4W day of 1, 1995, between THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a Delaware corporation (hereinafter called "Licensor"), party of the first part, and CITY OF LUBBOCK, TEXAS, a municipal corporation of the State of Texas (hereinafter, whether one or more, called "Licensee"), party of the second part. WITNFSSETH, That the parties hereto for the consideration hereinafter expressed covenant and agree as follows: 1. Subject to the terms and conditions hereinafter set forth, Licensor grants a nonexclusive license to Licensee to construct and maintain one (1) pipe line(s), six (6) inches in diameter (hereinafter, whether one or more pipe lines, called the "PIPE LINE"), across or along the rail corridor of Licensor at or near the station of Lubbock, County of Lubbock, State of Texas, the exact location of the PIPE LINE being more particularly shown by bold line upon the print hereto attached, No. 1-04702, dated 12-28-94, marked "Exhibit A" and made a part hereof. 2. Licensee shall use the PIPE LINE solely for carrying non potable water and shall not use it to carry any other commodity or for any other purpose whatsoever. I Licensee shall pay Licensor as compensation for this license the sum of One Hundred Fifty and No/100 Dollars ($150.00). 4. Licensee shall, at its own cost and subject to the supervision and control of Licensor's field engineer, locate and/or relocate, construct and maintain the PIPE LINE in such a manner and of such material that it will not at any time be a source of danger to or interference with the present or future tracks, roadbed or rail corridor of Licensor, or the safe operation of its railroad. When the PIPE LINE is used for oil. gas, pgtroleum products, or other flammable or highly volatile substances under pressure the PIPE LINE shall be constructed, installed and thereafter maintained in conformity with the plans and specifications shown on print hereto attached, marked Exhibit B and made a part thereof. If at any time Licensee shall, in the judgment of Licensor, fail to perform properly its obligations under this paragraph, Licensor may, at its option, arrange for the performance of such work as it deems necessary for the safe operation of its railroad, and in such event Licensee agrees to pay, within fifteen (15) days after bill shall have been rendered therefor, the cost so incurred by Licensor, but failure on the part of Licensor to perform the obligations of Licensee shall not release Licensee from liability hereunder for loss or damage occasioned thereby. 8-12-94-1658/210V . WP5 5. Licensee shall reimburse Licensor for any expense incurred by Licensor for false work to support Licensor's tracks and for flagman to protect its traffic during installation and maintenance periods and for any and all other expense incurred by Licensor on account of the PIPE LINE. 6. (a) Except as set forth in Section 6 (b), Licensee shall release, indemnify, and hold harmless Licensor for all losses, damages, expenses, injuries or death to Licensee, its employees, agents, contractors arising in any manner from the performance of this agreement, except for Santa Fe's gross negligence or intentional misconduct. Licensee further agrees to release, indemnify, and hold harmless Licensor for all losses, damages, expenses, injuries, or death to any person including Licensor which arise in any manner from the construction, maintenance, use, state of repair or presence of Licensee's pipelines. (b) Whenever any employee, agent or contractor of Licensee or any of Licensee's Parties makes any claim for personal injury or death against Licensor (for any incident caused, wholly or in part, by property, equipment, fixtures or condition belonging to or subject to the control of Licensee), or claims or alleges that he or she is an employee of Licensor or is furthering the operational activities of Licensor within the meaning of the Federal Employers' Liability Act, or any applicable safety act, (45 U.S.C. §51 et. seq.), Licensee agrees to indemnify and hold harmless Licensor for all losses, damages, costs or expenses related to such claim. 7. If at any time during the term hereof Licensor shall desire to make any use of its rail corridor with which the pipeline will in any way interfere, including the relocation of existing or the construction of new pipelines and other facilities in which it shall have an interest, Licensee shall, at Licensee's own cost, within thirty (30) days after receiving written notice from Licensor to such effect, make such changes in the pipeline as in the judgment of Licensor may be necessary to avoid interference with the proposed use of its rail corridor. 8. In lieu of Licensor's standard insurance requirement, Licensor accepts Licensee's self -insured declaration per Licensee's attached Resolution. 9. Upon written notice from Licensor, Licensee agrees to assume the defense of any lawsuit, or other proceeding brought against Licensor by any public body, individual, partnership, corporation, or other legal entity, relating to any matter covered by this License for which Licensee has an obligation to assume liability for and/or save and hold harmless Licensor. Licensee shall pay all the costs incident to such defense including, but not limited to, attorneys' fees, investigators' fees, litigation expenses, settlement payments, and amounts paid in satisfaction of judgments. -2- 10-4-94-1658/210V. WP5 10. (a) Licensee shall comply with all federal, state and local environmental laws and regulations in its use of Licensor's rail corridor, including, but not limited to, the Resource Conservation and Recovery Act, as amended (RCRA), and the Comprehensive Environmental Response, Compensation, and Liability Act, as amended (CERCLA). Licensee shall not maintain a treatment, storage, transfer or disposal facility, or underground storage tank, as defined by RCRA, on or under Licensor's rail corridor. Licensee shall not release or suffer the release of oil or hazardous substances, as defined by CERCLA, on Licensor's rail corridor. Notwithstanding any other requirements in this contract, Licensee assumes all responsibility for the investigation and cleanup of such release and shall indemnify and defend Licensor and its agents for all costs and claims, including consultant and attorney fees, arising in any manner out of such release or Licensee's failure to comply with environmental laws, except to the extent such costs or claims are proximately caused by Licensor's gross negligence or intentional misconduct. (b) Licensee shall give Licensor timely notice of any release, violation of environmental laws or inspection or inquiry by governmental authorities charged with enforcing environmental laws with respect to Licensor's rail corridor. Licensee also shall give Licensor timely notice of all measures undertaken by or on behalf of Licensee to investigate, remediate, respond to or otherwise cure such release or violation. (c) In the event that Licensor receives notice from Licensee or otherwise of a release or violation of environmental laws which occurred or is occurring during the term of this License, Licensor may require Licensee, at Licensee's sole expense, to take timely measures to investigate, remediate, respond to or otherwise cure such release or violation. 11. If default shall be made in any of the covenants or agreements of Licensee contained in this document, or in case of any assignment or transfer of this License by operation of law, Licensor may, at its option, terminate this License by serving five (5) days' notice in writing upon Licensee; but any waiver by Licensor of any default or defaults shall not constitute a waiver of the right to terminate this License for any subsequent default or defaults, nor shall any such waiver in any way affect Licensor's ability to enforce any Section of this License. The remedy set forth in this Section shall be in addition to, and not in limitation of, any other remedies that Licensor may have at law or in equity. -3- 5-24-94/210V. WP5 12. Licensee shall promptly pay and discharge any and all liens arising out of any construction, alterations or repairs done, suffered or permitted to be done by Licensee on the PIPE LINE and shall indemnify Licensor against any loss, liability or expense incurred by Licensor on account of such liens. Licensor is hereby authorized to post any notices or take any other action upon or with respect to the PIPE LINE that is or may be permitted by law to prevent the attachment of any such liens to Licensor's premises; provided, however, that failure of Licensor to take any such action shall not relieve Licensee of any obligation or liability under this Section or any other Section of this License. 13. In the case of eviction of Licensee by anyone owning or obtaining title to the rail corridor on which the PIPE LINE is located, or the abandonment by Licensor of said rail corridor, Licensor shall not be liable to Licensee for any damage of any nature whatsoever or to refund any payment made by Licensee to Licensor hereunder, except the proportionate part of any recurring rental charge which may have been paid hereunder in advance. 14. Any notice to be given by either party shall be deemed to be properly served if deposited with the United States Postal Service, or other acceptable mailing service, postage prepaid, addressed to either party, at the addresses and department shown beneath signature of the parties. 15. In the event that Licensee consists of two or more parties, all the covenants and agreements of Licensee herein contained shall be the joint and several covenants and agreements of such parties. 16. Any contractor or subcontractor performing work on or in connection with the PIPE LINE shall for the purpose of this license, be conclusively deemed to be the servant and agent of Licensee acting on behalf and within the scope of such contractor's or subcontractor's employment for Licensee. 17. Neither Licensee, nor the heirs, legal representatives, successors or assigns of Licensee, nor any subsequent assignee, shall underlease or sublet the PIPE LINE nor assign or transfer this License or any interest herein, without the prior written consent and approval of Licensor. 18. It is understood and agreed that this License shall not be filed in the Real Property records of Lubbock County, Texas. 19. All the covenants and provisions of this License shall be binding upon the heirs, legal representatives, successors and assigns of Licensee. No assignment by Licensee shall be binding upon Licensor without the written consent of Licensor in each instance. 20. All questions concerning the interpretation or application of provisions of this License shall be decided according to the laws of the State in which the PIPE LINE is located. -4- 5-24-94/210V. WP5 21. To the maximum extent possible, each provision of this License shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this License shall be prohibited by, or held to be invalid under, applicable law, such provision shall be ineffective solely to the extent of such prohibition or invalidity, and this shall not invalidate the remainder of such provision or any other provision of this License. 22. The waiver by Licensor of the breach of any provision herein by Licensee shall in no way impair the right of Licensor to enforce that provision for any subsequent breach thereof. 23. Notwithstanding any other provisions of this license, Licensee shall comply with all statutes, ordinances, rules, regulations, orders and decisions issued by any federal, state or local governmental body or agency established thereby relating to Licensee's use of Licensor's premises hereunder. 24. This license is given by Licensor and accepted by Licensee upon the express condition that the same may be terminated at any time by either party upon 90 days' notice in writing to be served upon the other party, stating therein the date that such termination shall take place, and that upon the termination of this license in this or any other manner herein provided, Licensee, upon demand of Licensor, shall abandon the use of the PIPE LINE and remove the same and restore the rail corridor of Licensor to the same condition in which it was prior to the placing of the PIPE LINE thereunder. In case Licensee shall fail to restore Licensor's rail corridor within 90 days after the effective date of termination, Licensor may proceed with such work at the expense of Licensee. No termination hereof shall release Licensee from any liability or obligation hereunder, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date the PIPE LINE is removed and the rail corridor of Licensor restored as above provided. 25. This License is the full and complete agreement between Licensor and Licensee with respect to all matters relating to license on the Premises, and supersedes any and all other agreements between the parties hereto relating to license on the Premises. -5- 5-24-94/210V.WP5 IN WITNESS WHEREOF, the parties have executed this agreement in duplicate the day and year first above written. THE ATCHISON, TOPEKA AND SANTA FE RAELWAY COMPANY P. O. Box 1738 Topeka, Kansas 66601-1738 By Title Aaet. Director -Asset Management (Licensor) CITY OF LUB. P. O. Box 2000 Lubbock, Texas V DAVID R. LANGSTON /) TitleMAYOR, CITY OF LUBBOCK v (Licensee) ATT T: Betty M. Johnson, City Secretary APP VED AS TO CONTENT: Ed Bucy, Right -of- ay Agent APPR VED S TO FO`LXXa-(.�1/ Harold Willard, Assistant City Attorney 3-4-85-1658/210V.WP5 - 7 - 11008599.381/2228 JCR:da October 22, 1987 Agenda Item #29 RESOLUTION A RESOLUTION AMENDING RESOLUTION NO. 2481 BY REPEALING SECTION 5 THEREOF WHICH ADOPTED SELF INSURANCE COVERAGE FOR THE CITY OF LUBBOCK AS PROVIDED BY THE TEXAS MUNICIPAL LEAGUE JOINT SELF INSURANCE FUND AND IN ITS STEAD ADOPTING A NEW STATEMENT OF COVERAGE FOR THE CITY OF LUBBOCK LIABILITY SELF INSURANCE PROGRAM. WHEREAS, the City of Lubbock did heretofore by Resolution No. 2481 create the City of Lubbock's Self Insurance Fund; and WHEREAS, in said Resolution No. 2481 the City of Lubbock did adopt as its standard coverage a coverage heretofore provided by the Texas Municipal League Joint Self Insurance Fund; and WHEREAS, the City of Lubbock deems it to be in the best interest of the City of Lubbock to repeal the coverage adopted under Resolution No. 2481 and in its stead to substitute a new statement of coverage for the City of Lubbock Self Insurance Fund; NOW THEREFORE: BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: SECTION 1. THAT Section 5 of Resolution No. 2481 adopting the Texas Municipal League Joint Self Insurance Fund as the coverage document for the Lubbock Self Insurance Fund is hereby in all things repealed. SECTION 2. THAT the City of Lubbock Statement of Coverage Liability Self Insurance Program -attached to this Resolution as Exhibit A and made a part hereof for all purposes is hereby adopted as the coverage to be afforded under the City of Lubbock Self Insurance Fund. SECTION 3. Save and Except as herein repealed or amended, Resolution No. 2481 shall remain in full force and effect. Passed by the City Council this 22nd day of October , 1987. • / `e " B.C. McMINN, MAYOR AT_T€ST:� v Ranett oyd, City Secretary APPROVED AS TO CONTENT: Robert Massengale Assistant City Manager for Financial Services APPROVED AS T7: obin C. Ross, Jr., City Attorney A. M. F ILE NO. 1 1008599 EXHIBIT "A" ATTACHED TO CONTRACT BETWEEN THE ATCHISON. TOPEKA AND SANTA FE RAILWAY COMPANY AND CITY OF LUBBOCK TOPEKA, KANSAS V- 5 SCALE: 1 IN. = 1 0O FT. MAP 1 LUBBOCK SUBDIV. PARCEL 6 DATE 12/28/1994 '- i i- !` --TO SLATON DESCRIPTION OF PIPELINE F_ PIPELINE SHOWN BOLD -- �— -` CARRIER CASING PIPE PIPE SIZE: 61' N/A CONTENTS: NON POTABLE WATER PIPE MATERIAL: DIP— SPECIFICATION / GRADE: 5�59, — WALL THICKNESS: 0.250, — COATING: ASPHALTIC CARRIER CASING PIPE PIPE LENGTH ON R/W: 5' N/A WORKING PRESSURE: 60 PS I BURY: BASE/RAIL TO TOP OF CASING N/A BURY: NATURAL GROUND BURY: ROADWAY DITCHES MIN. CATHODIC PROTECTION N / A VENTS: NUMBER - SIZE - HEIGHT OF VENT ABOVE GROUND - NOTE: CASING TO BE JACKED OR DRY BORED ONLY AT LUBBOCK COUNTY OF LUBBOCK STATE OF TX CTF1 A.M. DRAWING NO. 1- 04 702