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HomeMy WebLinkAboutResolution - 5606 - License Agreement-Bn&SF Railway Company-Electric Supply Line, Slaton Subdivision - 08_28_1997f RESOLUTION N0.5606 Item # 20 August 28 , 1997 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 Agreement for an electric supply line across railway property by and between the City of Lubbock and the Burlington Northern and Santa Fe Railway Company to be constructed, owned, operated and maintained by said City of Lubbock across said Railroad's right-of-way at milepost 85.12, Slaton Subdivision, attached hereto and which shall be spread upon the minutes of the Council and as spread upon the minutes of the Council shall constitute and be a part of this Resolution as if fully copied herein in detail. Passed by the City Council this 14th day of August 1997. ATTEST: a y U e Dame ,City Secretary APPROVED AS TO CONTENT: � C �� � tt! �' Ed Bucy, Right-of-Wif Agent APPROVED AS TO FORM: arold Willard, Assistant City Attorney HW/gs.ccdom\13N&cSFRC.RES July 15,1997 WrdR44W010r0d!A= RESOLUTION NO. 5606 Item 20 August 28, 1997 Form Approved by VP -Law Contract No: LICENSE FOR ELECTRIC SUPPLY LINE ACROSS OR ALONG RAILWAY PROPERTY (Electric Light, Power Supply, Irrespective of Voltage, Overhead or Underground) THIS LICENSE, made this 27th day of March, 1997, subject to the terms and conditions set forth herein, between THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, its successors and assigns, a Delaware corporation (hereinafter called "Licensor"), party of the first part, and CITY OF LUBBOCK, a Texas corporation (hereinafter, whether one or more, called "Licensee"), party of the second part. WITNESSETH, 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, maintain and use an electric supply line containing a maximum of (3) conductors across or along the premises of Licensor at or near the station of Lubbock, County of Lubbock, State of Texas, Line Segment 7107, Mile Post 85.12, the kind and gauge of said conductors, the phase, frequency and voltage of the electric circuit carried thereon and the location of said electric supply line shown by bold line upon the print hereto attached, No. 1-10508, dated 03/19/1997 marked "Exhibit A", and made a part hereof. For convenience, said electric supply line, with all conductors and their supporting or containing structures insofar as they relate to said electric supply line upon said premises, is hereinafter called the "Electric Supply Line". 2. This agreement shall be effective 3. Licensee shall, at Licensee's own cost, construct and at all times maintain the Electric Supply Line in accordance with the current Specifications for Electric Supply Lines across or along Railway Property, adopted by the Electrical Section of the Association of American Railroads, or any successor agency, except where by statute or order of competent public authority a different type of construction or a different degree of maintenance is required or permitted, in which case such construction or maintenance shall be in accordance with such statute or order, provided, however, all materials and workmanship employed in the construction and maintenance of the Electric Supply Line shall be in accordance with the National Electrical Safety Code. 4. Licensee shall pay Licensor as compensation for this license the sum of TWO THOUSAND FIVE HUNDRED and No/100 Dollars ($2,500). 5. During the construction and any subsequent maintenance performed on Electric Supply Line, Licensee shall perform such work in a manner to preclude damage to the property of Licensor, and preclude interference with the operation of its railroad. Upon completion of the Electric Supply Line or after performing any subsequent maintenance thereon, Licensee shall, at Licensee's own cost, restore Licensor's premises to their former state; and Licensee shall, within fifteen (15) days after receipt of bill therefor, pay 1 of 6 to Licensor the entire cost incurred by Licensor in providing flagmen protection or any other means of protection which, in the judgment of Licensor, may be required during the construction and maintenance of the Electric Supply Line. (The current rate, subject to change without notice, for furnishing of Licensor's Flagman is a minimum daily charge of $300.00, for the first eight hours, or any part thereof, per day, with an hourly charge of $45.00 per hour for any time over eight hours per day). 6. If at any time during the term hereof Licensor shall desire to make any use of its property with which the Electric Supply Line will in any way interfere, including the relocation of existing or the construction of new lines of poles, wires, conduits 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 Electric Supply Line as in the judgment of Licensor may be necessary to avoid interference with the proposed use of its property. 7. Prior to any boring work on or about any portion of the Premises, Licensee shall explore the proposed location for such work with hand tools to a depth of at least three (3) feet below the surface of the ground to determine whether pipelines or other structures exist below the surface, provided, however, that in lieu of the foregoing, the Licensee shall have the right to use suitable detection equipment or other generally accepted industry practice e(�c , consulting with the Underground Services Association) to determine the existence or location of pipelines and other subsurface structures prior to drilling or excavating with mechanized equipment. B. Prior to installation, five (5) days advance notice must be given to Licensor's Roadmaster, Victor Lopez at Lubbock, Texas, telephone (806) 765-3955. 9. (a) Except as set forth in Section 9 (b), Licensee shall release, indemnify, and hold harmless Licensor for all losses, damages, expenses, injuries or death to Licensee, its employees, agents and contractors, arising in any manner from the performance of this agreement, except for Licensor'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 electric supply line. (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 within the meaning of the Federal Employers' Liability Act, or any applicable safety act, (45 U.S.C. § 51 et. seq.), 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, Licensee agrees to indemnify and hold harmless Licensor for all losses, damages, costs or expenses related to such claim, regardless of Licensor's negligence. 10. (a) Licensee shall, at its expense, procure and maintain throughout the term of this License, a comprehensive general form of insurance covering liability, including, but not limited to, Public Liability, Personal Injury and Property Damage, as well as Contractual Liability in the amount of $1,000,000 per occurrence and $2,000,000 in the 2of6 aggregate. Such insurance shall contain no exclusion with respect to rail corridor of Licensor in the care, custody or control of Licensee. LICENSOR AND CATELLUS MANAGEMENT CORPORATION SHALL BE NAMED AN ADDITIONAL INSURED. (b) All risk insurance on the Electric Supply Line of the Licensee, or Licensor's property in Licensee's care, custody and control, shall contain a waiver of subrogation of claims against Licensor. Licensee shall maintain Workers Compensation insurance which shall contain a waiver of subrogation against Licensor. (c) All insurance shall be placed with insurance companies licensed to do business in the State in which the Electric Supply Line is located, with a current Best's Insurance Guide Rating of B and Class X, or better. Licensee shall provide Licensor in advance of said installation a Certificate of Insurance evidencing such insurance. Insurance must provide for coverage of incidents occurring within fifty (50) feet of a railroad track, and any provision in the insurance policy to the contrary must be specifically deleted. (d) A Railroad Protective Liability insurance policy issued in the name of Licensor with limits of $2,000,000 for bodily injury and property damage per occurrence with an aggregate of $6,000,000 must be provided when construction work will be performed within fifty (50) feet of Licensor's tracks. The policy will remain in force during the construction phase of this proiect and must be provided prior to Licensor signing this license. (e) In lieu of providing a Railroad Protective Liability Insurance policy, Grantee may participate in Grantor's Blanket Railroad Protective Liability Insurance Policy available to Grantee or its contractor. The limits of coverage are the same as above. The cost is $1,000. ❑ 1 elect to participate in Grantor's Blanket Policy; ❑ I elect not to participate in Grantor's Blanket Policy. (f) The furnishing of insurance required by this Section shall in no way limit or diminish the liability or responsibility of Licensee as provided under any Section of this License. (g) Licensee shall be allowed to self -insure any or all of the insurance coverages referenced above. 11. (a) Licensee shall comply with all federal, state and local environmental laws and regulations in its use of Licensor's property, 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 the rail corridor. Licensee shall not release or suffer the release of hazardous substances, as defined by CERCLA, on Licensor's property. 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, regardless of whether such costs 3 of 6 or claims are caused or contributed to by the negligence or alleged negligence of Licensor, 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 property. 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. 12. 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. 13. 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. 14. 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 Electric Supply 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 Electric Supply 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. 15. In case of eviction of Licensee by anyone owning or obtaining title to the rail corridor on which the wire 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. 16. Any contractor or subcontractor performing work on or in connection with the 4of6 Electric Supply 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. Licensee shall at all times, at Licensee's own cost, maintain the most effective system and use the best known and most effective methods to protect the lines, wires, tracks and service of Licensor and of any Licensee of Licensor whose permission to use said rail corridor antedates the license and permission herein to Licensee, from interference and physical hazard or health, and if necessary in order to prevent such interference or hazard, Licensee shall, at Licensee's own cost, transpose Licensee's circuits or make such changes in the construction or location of the Electric Supply Line as may be specified by Licensor. 18. 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. 19. 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. 20. Neither Licensee, nor the heirs, legal representatives, successors or assigns of Licensee, nor any subsequent assignee, shall assign or transfer this License or any interest herein, without the prior written consent and approval of Licensor. 21. It is understood and agreed that this License shall not be filed in the Official Real Property Records of Lubbock County, Texas. 22. 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. 23. 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 Electric Supply Line is located. 24. 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. 25. 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. 26. 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. 5of6 EXHIBIT "A" RSC-131 ATTACHED TO CONTRACT BETWEEN THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY AND CITY OF LUBBOCK FORT WORTH. TEXAS V— — SCALE: 1 1N.=100 FT. MAP TEXAS DIV• PARCEL — S .ATON SUBDIV. L.S. 7107 DATE 03/19/1997 lool PROPERTY LINE 6 \\\ o; ES ' MP 471-91 TO TECIFIC85.12 r ! � .. �, ti\•fir - � _ w—� gyY/bllp '7[NMMwi4w/1 191WG.IR'._:.�'�bilNl�'.�'-K.'J. •[:Y]���:--�l.�.MN11'�'. T.�.wc'S__ .^.�Oi1Y� TO LONE STAR JCT. NM r I \\\ PROPERTY LINE \ \ \ �1 ;.X r- DESCRIPTION OF WIRES UNDER TRACK WIRES LOCATED AS SHOWN BOLD TYPE ELEC SIZE OF CONDUIT 3"x118' NUMBER 3 CONDUIT MATERIAL STEEL VOLTAGE 120 V WALL THICKNESS 0.216" LENGTH ON R/W 118' NOTE: CASING TO BE JACKED OR DRY BORED ONLY BASE OF RAIL TO TOP OF CONDUIT 5' 6 " M I N NEAR LUBBOCK COUNTY OF LUBBOCK STATE OF TX JCH DRAWING NO. 1-10508 27. 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 ninety (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 Electric Supply Line and remove the same and restore the rail corridor of Licensor, as near as possible, to the same condition in which it was prior to the placing of the Electric Supply 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 Electric Supply Line is removed and the rail corridor of Licensor restored as above provided. 28.. 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. Catellus Management Corporation is acting as agent for The Burlington Northern And Santa Fe Railway Company. IN WITNESS WHEREOF, the parties have executed this agreement in duplicate the day and year first above written. THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY By: Catellus Management Corporation Its Attomey in Fact 4545 Fuller Drive, Suite 105 Irving, TX 75038 By: James A. Ball, Manager Contracts A ES : CITY OF LUBBOCK P.O. Box 2000 Ayt-ho Darnell, City Secretary ---Lubbock, Texas 79457 APP O% D C,y TO CONSENT By: Ed Bucy, Right of Wa Agent Title: AOV S TQ F Windy Sitton, Mayor P arold Willard, sst. City Attorney 6 of 6 CERTIFICATE OF INSURANCE The undersigned officer of the City of Lubbock, Texas, a Texas Home Rule Municipal Corporation, hereby certifies that the City of Lubbock is self -insured in accordance with the laws of the State of Texas and that the self-insurance is sufficient to satisfy the insurance requirements imposed on the City of Lubbock, as agreed to under map reference number 505743, by and between the City of Lubbock and BNSF Co., regarding a license to the City of Lubbock upon the property of BNSF Co. Date: ---�� -9 7 Leisa Hutcheson Risk Manager October 22. 1997 Agenda Item #29 JCR:da RESOLUTION TOM A RESOLUTION AMENDING RESOLUTION NO. 2481 BY REPEALING SECTION S 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 8Y THE CITY COUNCIL OF THE CITY OF LUBM: SECTION 1. THAT Section S 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. Ar'10. C•40, 0h,r4w; .."No MAYOR I L-7 --0 anettCity- cr ry APPROVED AS TO CONTW: Robert Massengale( Assistant City Manager for Financial Serv4ces . APPROVED AS 17: aLC— N7 147 oss, r., y Attorney • RESOLUTION NO. 5606 Item 20 August 28, 1997 Form Approved by VP -Law ORIGINAL Tracking No.:. PjP7-2n633 LICENSE FOR ELECTRIC SUPPLY LINE ACROSS OR ALONG RAILWAY PROPERTY (Electric Light, Power Supply, Irrespective of Voltage, Overhead or Underground) THIS LICENSE, made this 27th day of March, 1997, subject to the terms and conditions set forth herein, between THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, its successors and assigns, a Delaware corporation (hereinafter called "Licensor"), party of the first part, and CITY OF LUBBOCK, a Texas corporation (hereinafter, whether one or more, called "Licensee"), party of the second part. WITNESSETH, 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, maintain and use an electric supply line containing a maximum of (3) conductors across or along the premises of Licensor at or near the station of Lubbock, County of Lubbock, State of Texas, Line Segment 7107, Mile Post 85.12, the kind and gauge of said conductors, the phase, frequency and voltage of the electric circuit carried thereon and the location of said electric supply line shown by bold line upon the print hereto attached, No. 1-10508, dated 03/19/1997 marked "Exhibit A", and made a part hereof. For convenience, said electric supply line, with all conductors and their supporting or containing structures insofar as they relate to said electric supply line upon said premises, is hereinafter called the "Electric Supply Line". 2. This agreement shall be effective Sp ttpmher R, 1997 3. Licensee shall, at Licensee's own cost, construct and at all times maintain the Electric Supply Line in accordance with the current Specifications for Electric Supply Lines across or along Railway Property, adopted by the Electrical Section of the Association of American Railroads, or any successor agency, except where by statute or order of competent public authority a different type of construction or a different degree of maintenance is required or permitted, in which case such construction or maintenance shall be in accordance with such statute or order; provided, however, all materials and workmanship employed in the construction and maintenance of the Electric Supply Line shall be in accordance with the National Electrical Safety Code. 4. Licensee shall pay Licensor as compensation for this license the sum of TWO THOUSAND FIVE HUNDRED and No/100 Dollars ($2,500). 5. During the construction and any subsequent maintenance performed on Electric Supply Line, Licensee shall perform such work in a manner to preclude damage to the property of Licensor, and preclude interference with the operation of its railroad. Upon completion of the Electric Supply Line or after performing any subsequent maintenance thereon, Licensee shall, at Licensee's own cost, restore Licensor's premises to their former state; and Licensee shall, within fifteen (15) days after receipt of bill therefor, pay 1 of 6 to Licensor the entire cost incurred by Licensor in providing flagmen protection or any other means of protection which, in the judgment of Licensor, may be required during the construction and maintenance of the Electric Supply Line. (The current rate, subject to change without notice, for furnishing of Licensor's Flagman is a minimum daily charge of $300.00, for the first eight hours, or any part thereof, per day, with an hourly charge of $45.00 per hour for any time over eight hours per day). 6. If at any time during the term hereof Licensor shall desire to make any use of its property with which the Electric Supply Line will in any way interfere, including the relocation of existing or the construction of new lines of poles, wires, conduits 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 Electric Supply Line as in the judgment of Licensor may be necessary to avoid interference with the proposed use of its property. 7. Prior to any boring work on or about any portion of the Premises, Licensee shall explore the proposed location for such work with hand tools to a depth of at least three (3) feet below the surface of the ground to determine whether pipelines or other structures exist below the surface, provided, however, that in lieu of the foregoing, the Licensee shall have the right to use suitable detection equipment or other generally accepted industry practice (e_q_, consulting with the Underground Services Association) to determine the existence or location of pipelines and other subsurface structures prior to drilling or excavating with mechanized equipment. 8. Prior to installation, five (5) days advance notice must be given to Licensor's Roadmaster, Victor Lopez at Lubbock, Texas, telephone (806) 765-3955. 9. (a) Except as set forth in Section 9 (b), Licensee shall release, indemnify, and hold harmless Licensor for all losses, damages, expenses, injuries or death to Licensee, its employees, agents and contractors, arising in any manner from the performance of this agreement, except for Licensor'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 electric supply line. (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 within the meaning of the Federal Employers' Liability Act, or any applicable safety act, (45 U.S.C. § 51 et. seq.), 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, Licensee agrees to indemnify and hold harmless Licensor for all losses, damages, costs or expenses related to such claim, regardless of Licensor's negligence. 10. (a) Licensee shall, at its expense, procure and maintain throughout the term of this License, a comprehensive general form of insurance covering liability, including, but not limited to, Public Liability, Personal Injury and Property Damage, as well as Contractual Liability in the amount of $1,000,000 per occurrence and $2,000,000 in the 2 of 6 aggregate. Such insurance shall contain no exclusion with respect to rail corridor of Licensor in the care, custody or control of Licensee. LICENSOR AND CATELLUS MANAGEMENT CORPORATION SHALL BE NAMED AN ADDITIONAL INSURED. (b) All risk insurance on the Electric Supply Line of the Licensee, or Licensor's property in Licensee's care, custody and control, shall contain a waiver of subrogation of claims against Licensor. Licensee shall maintain Workers Compensation insurance which shall contain a waiver of subrogation against Licensor. (c) All insurance shall be placed with insurance companies licensed to do business in the State in which the Electric /Supply Line is located, with a current Best's Insurance Guide Rating of B and Class X, or better. Licensee shall provide Licensor in advance of said installation a Certificate of Insurance evidencing such insurance. Insurance must provide for coverage of incidents occurring within fifty (50) feet of a railroad track, and any provision in the insurance policy to the contrary must be specifically deleted. (d) A Railroad Protective Liability insurance policy issued in the name of Licensor with limits of $2,000,000 for bodily injury and property damage per occurrence with an aggregate of $6,000,000 must be provided when construction work will be performed within fifty (50) feet of Licensor's tracks. The policy will remain in force during the construction phase of this proiect and must be provided prior to Licensor signing this license. (e) In lieu of providing a Railroad Protective Liability Insurance policy, Grantee may participate in Grantor's Blanket Railroad Protective Liability Insurance Policy available to Grantee or its contractor. The limits of coverage are the same as above. The cost is 1,000. I elect to participate in Grantor's Blanket Policy; ❑ I elect not to participate in Grantor's Blanket Policy. (f) The furnishing of insurance required by this Section shall in no way limit or diminish the liability or responsibility of Licensee as provided under any Section of this License. (g) Licensee shall be allowed to self -insure any or all of the insurance coverages referenced above. 11. (a) Licensee shall comply with all federal, state and local environmental laws and regulations in its use of Licensor's property, 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 the rail corridor. Licensee shall not release or suffer the release of hazardous substances, as defined by CERCLA, on Licensor's property. Notwithstanding any other requirements in this contract, Licensee assumes all responsibility for the investigation and cleanup of such release and shall indemnity 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, regardless of whether such costs 3of6 or claims are caused or contributed to by the negligence or alleged negligence of Licensor, 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 property. 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. 12. 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. 13. 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. 14. 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 Electric Supply 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 Electric Supply 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. 15. In case of eviction of Licensee by anyone owning or obtaining title to the rail corridor on which the wire 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. 16. Any contractor or subcontractor performing work on or in connection with the 4 of 6 Electric Supply 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. Licensee shall at all times, at Licensee's own cost, maintain the most effective system and use the best known and most effective methods to protect the lines, wires, tracks and service of Licensor and of any Licensee of Licensor whose permission to use said rail corridor antedates the license and permission herein to Licensee, from interference and physical hazard or health, and if necessary in order to prevent such interference or hazard, Licensee shall, at Licensee's own cost, transpose Licensee's circuits or make such changes in the construction or location of the Electric Supply Line as may be specified by Licensor. 18. 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. 19. 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. 20. Neither Licensee, nor the heirs, legal representatives, successors or assigns of Licensee, nor any subsequent assignee, shall assign or transfer this License or any interest herein, without the prior written consent and approval of Licensor. 21. It is understood and agreed that this License shall not be filed in the Official Real Property Records of Lubbock County, Texas. 22. 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. 23. 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 Electric Supply Line is located. 24. 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. 25. 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. 26. 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. 5of6 27. 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 ninety (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 Electric Supply Line and remove the same and restore the rail corridor of Licensor, as near as possible, to the same condition in which it was prior to the placing of the Electric Supply 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 Electric Supply Line is removed and the rail corridor of Licensor restored as above provided. 28. 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. Catellus Management Corporation is acting as agent for The Burlington Northern And Santa Fe Railway Company. IN WITNESS WHEREOF, the parties have executed this agreement in duplicate the day and year first above written. A. S AA J-AJ WA Kayt i Darnell, City Secre ary APPROVED ATO CONSENT Ed Bucy, Right of Wa Agent THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY By: Catellus Management Corporation Its Attorney in Fact 4545 Fuller Drive, Suite 105 ,/'*-�Irving, TX 75038 Ball, Manager Contracts CITY OF LUBBOCK P.O. Box 2000 Lubbock,Texas 79457 v. . 6of6 EXHIBIT uA a RSC-131 ATTACHED TO CONTRACT BETWEEN THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY AND CITY OF LUBBOCK FORT WORTH, TEXAS V- - SCALE: 1 IN.=100 FT. MAP - TEXAS DIV. PARCEL - SLATON SUBDIV. L.S. 7107 DATE 03/19/1997 PROPERTY LINE:��, ES 471.91 TO TECIFIC MP 85.12 yr- �— ...�._d..,�..n..nx, .rr. Ln o Ln - � � ..xxxx.xr� --�• -- -- -f 1n19Mmnr I ino71N1nuniaun x imme: y�•�y!!9snmmL._ 'Clrr.-"'x""""" """"""""�nCnnn_.-_.er..aaur..n_�-Ta�aa TO LONE STAR JCT. NM ��` PROPERTY LINE ti• DESCRIPTION OF WIRES UNDER TRACK WIRES LOCATED AS SHOWN BOLD TYPE ELEC SIZE OF CONDUIT 3"x118' NUMBER 3 CONDUIT MATERIAL STEEL VOLTAGE 120 V WALL THICKNESS 0.216" LENGTH ON R/W 118' N 0 T E : CAS I NG TO BE J ACKED OR DRY BORED ONL Y BASE OF RAIL TO TOP OF CONDUIT 5' 6 " M I N NEAR LUBBOCK COUNTY OF LUBBOCK STATE OF TX JCH DRAWING NO. 1-10508