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HomeMy WebLinkAboutResolution - 3068 - Wire Corssing Line Permit - BNRC - Wire Line Facility - 04_13_1989Resolution #3068 April 13, 1989 Item #21 HW:js DPZnI I ITTnK1 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 as permittee therein a Wire Crossing Line Permit by and between said City and Burlington Northern Railroad Company for a wire line facility to be constructed, owned, operated and maintained by said City across said Railroad's right-of-way at mile post 355.35, attached herewith, 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 13th Ranette-Boyd, City Secretlry APPROVED AS TO CONTENT: Ed Bucy, Right-of-W y Agent APPROVED AS TO FORM: 0);:�tY&AO Harold Willard, Assistantity Attorney day of April , 1989. B. C. McMINN, MAYOR f It Page 1 of 4 WIRE LINE CROSSING PERMIT AW" BURUNGrON No. I NORTHERN RAILROAD BURLINGTON NORTHERN RAILROAD COMPANY, a Delaware corporation, hereinafter called "Burlington", whose address is P.O. Box 29136, Overland Park, Kansas 66201-9136, in consideration of the rents to be paid and the covenants to be kept and performed by City of Lubbock, Lubbock Potnr &_Light hereinafter called "Permittee", whose address is P.O. Box 2000, Lubbock, Tx. 79457 hereby grants Permittee the right to construct, operate, maintain, inspect, use, and remove a wire line facility, including all necessary poles, wires, cables, and conduits together with necessary appurtenances thereto, hereinafter called 'Wire Line", upon and across the railroad tracks, and the communication or signal wires, and right-of-way of Burlington, either above or below the surface thereof, for the purpose of transmitting electric current for power or for communication, as hereinafter described: A Wire Line across the right-of-way of Burlington 'below/above the surface thereof, and `=tadover the tracks of its railroad at or near Lubbock Lubbock County, Texas to be located at Mile Post 355.35 'cross out description that does not apply This permission is given upon the following terms and conditions: 1. Permittee will pay in advance to Burlington for this permit the sum of Four Hundred Fifty Dollars ($450.00) for the entire period that this permit remains in effect, and Permittee will also pay all taxes and assessments that may be levied or assessed against the Wire Line. This provision shall in no way affect Burlington's right to terminate this permit pursuant to Paragraph 15 hereof. 2. Said Wire Line shall be used for the sole purpose of conducting electric currents at a potential not to exceed 12470 volts. 3. Said Wire Line shall be constructed and maintained in accordance with Burlington's requirements, the National Electric Safety Code, and any statute,, order, rule, or regulation of any public authority having jurisdiction. Application and plans shall be submitted by Permittee to Burlington and must be approved by Burlington prior to construction or any reconstruction of said Wire Line. 4. All cost of construction and maintenance of said Wire Line shall be paid by Permittee. If it is necessary, as determined by Burlington's Division Superintendent, for Burlington to perform any portion of the work of construction, maintenance, or removal of said Wire Line, same shall be done at the expense of Permittee. Burlington will determine the costs of any such work and submit bill for same to Permittee and Permittee shall pay such billed amount within 30 days after bill is rendered therefor. 5. If in the judgment of Burlington's Division Superintendent, the construction, maintenance, or continued existence of Wire Line herein contemplated necessitates any change or alteration in the location or arrangement of any wires, structures, or other facilities of Burlington or of third persons, the cost of such change or alteration will be paid by Permittee. FORM 16011-f— )-Be Page 2 of 4 6. Burlington shall have the right, for reasons of safety, to require that repairs be made to said Wire Line, and upon request from Burlington, Permittee shall immediately make such repairs at Permittee's expense. If at any time it becomes necessary in the judgment of Burlington for reasons of safety or otherwise, to require change in the location, elevation, or method of construction of said Wire Line, such changes will be made by Permittee at Permittee's expense within thirty (30) days after being requested to do so. If Permittee fails to so do, Burlington may make such changes and the cost thereof will be paid by Permittee. 7. If Wire Line is to be placed below the surface, Permittee, at Permittee's sole cost and expense, shall excavate for, construct, maintain, and repair said Wire Line, placing the same at least feet ( ) below the bottom of the rails of Burlington's railroad. It is understood that fiber optic cable systems may be buried on Burlington's property. Permittee shall telephone Burlington at 1-800-533-2891 (a 24-hour number) to determine if fiber optic cable is buried anywhere on Burlington's premises to be used by Permittee. If it is, Permittee will telephone the telecommunications company(ies) involved, arrange for a cable locator, and make arrangements for relocation or other protection of the fiber optic cable prior to beginning any work on Burlington's -premises: In addition to the liability terms elsewhere in this.Agreement, Permittee shall indemnify and hold Burlington harmless against and from all cost, liability, and expense whatsoever (including, without limitation, attorney's fees and court costs and expenses) arising out of or in any way contributed to by any act or omission of Permittee, its contractor, agents and/or employees, that causes or in any way or degree contributes to (1) any damage to or destruction of any telecommunications system by Permittee, and/or its contractor, agents and/or employees, on Burlington's property, (2) any injury to or death of any person employed by or on behalf of any telecommunications company, and/or its contractor, agents and/or employees, on Burlington's property, and/or (3) any claim or cause of action for alleged loss of profits or revenue by, or loss of service by a customer or user of, such telecommunication company(ies). 8. After the completion of any Wire Line construction, repair, or removal, Permittee shall remove from the premises of Burlington, to the satisfaction of Burlington's Division Superintendent, all falsework and equipment used in such construction, repair, or removal work. 9. Permittee shall, upon the giving of 48 hours advance notice to Burlington's Division Superintendent, have the right to enter the premises of Burlington for the purpose of maintaining, repairing, or removing said Wire Line, and, in the exercise of this right, Permittee shall not unduly interfere with the rights of Burlington or others on or about the premises. In the case of bona fide emergency, the 48 hours notice may be waived; however, if emergency work is necessary, Permittee shall make every effort to notify Burlington that such work is to be done. Permittee shall, at its own expense, restore any facilities on said premises which are in any manner disturbed by such maintenance, repairs, or removal. 10. This permission is granted subject to permits, leases, and licenses, if any, heretofore granted by Burlington affecting the premises upon which said Wire Line is located. 11. If the operation or maintenance of said Wire Line shall at any time cause interference, including but not limited to physical interference, from electromagnetic induction, electrostatic induction, or from stray or other currents, with the facilities of Burlington or of any lessee or licensee of Burlington, or in any manner interfere with operation, maintenance or use by Burlington of its right-of-way, tracks, structures, poles lines, signal and communication lines, radio or other equipment, devices, or other property or appurtenances thereto, Permittee agrees immediately to make such changes in said Wire Line and furnish such protective devices to Burlington and its lessees or licensees as shall be necessary in the judgment of Burlington's representatives to eliminate such interference. The cost of such protective devices and their installation shall be borne solely by the Permittee. If any of the interference covered by this paragraph shall be, in the judgment of Burlington, of such importance to the safety of Burlington's operations as to require immediate corrective action, Permittee, upon notice from Burlington, shall either, at Burlington's election, cease using said Wire Line for any purpose whatsoever and remove the same, or reduce the voltage or load on said Wire Line, or take such other interim protective measures as Burlington may deem advisable until the protective devices required by this paragraph have been installed, put in operation, tested, and found to be satisfactory to correct the interference. FORM 160114 2-88 Page 3 of 4 12. Permittee agrees that said Wire line and the use of same for conducting electric current shall not damage the railroad or structures of Burlington, or the property of any other tenant of Burlington, or any other property upon the premises of Burlington, or be a menace to the safety of Burlington's operations or any other operations conducted on said premises. Permittee does hereby release, indemnify, and save harmless Burlington and Burlington's other tenants, their successors and assigns, from and against all loss, damages, claims, demands, actions, causes of action, costs, and expenses of every character which may result from any injury to or death of any person whomsoever, including but not limited to, employees and agents of the parties hereto, and from loss of or damage to property of any kind or nature to whomsoever belonging, including but not limited to, property owned by, leased to, or in the care, custody, and control of the parties hereto and other tenants of Burlington, when such injury, death, loss, or damage is caused or contributed to by, or arises from, the construction, installation, maintenance, condition, use, operation, removal, or existence of said Wire Line upon Burlington premises. THE LIABILITY ASSUMED BY PERMITTEE SHALL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE LOSS, DAMAGE, DEATH, OR INJURY WAS OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF BURLINGTON, ITS AGENTS, SERVANTS, EMPLOYEES, OR OTHERWISE. 13. It is understood by the parties that said Wire Line will be in danger of damage or destruction by fire or other causes incident to the operation, maintenance, or improvement of Burlington's property, and Permittee accepts this permit subject to such dangers. It is therefore agreed, as one of the material considerations of this permit, without which the same would not be granted, that Permittee hereby assumes all risk of loss, damage, or destruction to said Wire Line without regard to whether such loss be occasioned by fire or sparks from locomotives or other causes incident to or arising from the movement of locomotives, trains, or cars of any kind, misaligned switches, or in any respect from the operation, maintenance, or improvement of Burlington's property, OR TO WHETHER SUCH LOSS OR DAMAGE BE THE RESULT OF NEGLIGENCE OR MISCONDUCT OF BURLINGTON OR ANY PERSON IN THE EMPLOY OR SERVICE OF BURLINGTON, or of defective appliances, engines, or machinery, and Permittee does hereby save and hold harmless Burlington from all such damage, claims, and losses. 14. It is agreed that the provisions of this permit are for the equal protection of any other railroad company or companies including National Railroad Passenger Corporation (AMTRAK) heretofore or hereafter granted the joint use of Burlington's property upon which the above described Wire line is located. 15. Either party hereto shall have the right to terminate this permit, and the same shall terminate, at the expiration of ninety (90) days after the giving of written notice by one party to the other of intention to terminate same. Any such notice shall be good if properly deposited with the United States Postal Service addressed to the party being notified at such party's post office address above stated. Upon termination Permittee shall promptly remove the Wire Line from Burlington's premises and if Permittee shall fail to remove same or any other material or property owned by it within the time prescribed in a notice of termination, Burlington may appropriate such property to its own use without compensation, or may remove the same at the expense of Permittee. 16. This permit shall be binding upon, and inure to the benefit of the parties, their successors and assigns; provided, however, that Permittee shall not assign this permit or any interest therein without Burlington's written consent. 17. Nothing herein contained shall imply or import a covenant on the part of Burlington for quiet enjoyment. FORM 16011.1 )-ea Page 4 of 4 18. In the event of Permittee's removal of the Wire Line from Burlington's premises, Permittee agrees to notify Burlington's Division Superintendent in writing of Permittee's removal of such Wire Line and terminate this Agreement effective with the date of removal of said Wire Line from Burlington's premises. IN WITNESS WHEREOF, the parties hereto have executed these presentsthis 25rh day of AVBII. 119 Rg (w ness) C� /7 y �fc�P�7'> / (WArk- ) I j M MOV0 AS to CONTENT: BURLINGTON NORTHERN RAILROAD COMPANY By V10, c-� D. M. Tate Title Division Engineer (PERMITTEE) By Title 1 ORM 160114 2-88 r Mpp* 2-�4 ARM BURUNGTON NORTHERN RAILROAD 0 1 +- 3 0 Gli ENGINEERING DEPARTMENT- MAINTENANCE OF WAY APRIL 25,1989 CITY OF LUBBOCK LUBBOCK POWER AND LIGHT P.O.BOX 2000 LUBBOCK,TEXAS 79457 6851 N. E. Loop 820 Suite 300 Fort Worth, Texas 76180 Re: WIRE LINE CROSSING PERMIT PX 89-12015 Dear Sir(s): Attached please find a fully -executed copy of the completed agreement for your file. S i n ce ra I%y ,ern D. M. Tate Division Engineer tit cc: Encl.