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HomeMy WebLinkAboutResolution - 3382 - License - ATSFRC - Power Line Crossing, Erskine & Clovis Highway - 06_14_1990HW:js RESOLUTION Resolution #.3382 June 14, .1990 Item #1.1 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 License for electric supply lines across railway property by and between the City of Lubbock and Atchison, Topeka and Santa Fe Railway Company for one wire line facility to be con- structed, owned, operated and maintained by said City of Lubbock across said Railroad's right-of-way at mile post 87 + 1833 6, Lubbock Subdivision, at- tached 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 ATTEST: e boya, City secre !APPROVED AS TO CONTENT: Ed Bucy, Right-of&Way Agent APPROVED AS TO FORM: A/et-,� V�� a o Wi ard, AssistantCity (Attorney 14th day of June c M B. C. McM NN, MAYOR 1990. f1�g-,�, 11006841 LICENSE FOR ELECTRIC SUPPLY LINE ACROSS OR ALONG RAILWAY PROPERTY (Electric Light, Power Supply and Trolley Lines, Irrespective of Voltage, Overhead or Underground) THIS LICENSE, Made as of the llth day of May, 1990, between THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a Delaware corporation (hereinafter called "Santa Fe") and LUBBOCK POWER AND LIGHT, A DEPARTMENT OF THE CITY OF LUBBOCK, a municipal corporation of the State of Texas (hereinafter whether one party or more called "Licensee"). WITNESSETH, That the parties hereto for the consideration hereinafter expressed covenant and agree as follows: Four Hundreds ($400.00 1. In consideration of the sum of an No/100 Dollars ( ) in hand paid by Licensee to Santa Fe, the receipt whereof is hereby acknowledged and of the covenants and agreements of Licensee hereinafter set forth, and of the faithful performance by Licensee of the same, Santa Fe licenses and permits Licensee to construct, maintain and use an electric supply line containing a maximum of four (4) conductors across or along the premises of Santa Fe at or near the station of Lubbock, Lubbock County, Texas, 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 being more particularly shown by bold line upon the print hereto attached, No. 1-11763, dated April 23, 1990, marked "Exhibit A", and made a part hereof. For convenience, the 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. Licensee shall, at Licensee's own cost, construct and at all times maintain the Electric Supply Line in strict accordance with the Specifications, for the time current, 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 strict 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 subject to the approval of Santa Fe, and shall be in accordance with the National Electric Code. 3-4-85-2171/147V 3. Licensee shall, at Licensee's own cost, remove all combustible material from around wooden poles and will at all times keep the space around such poles free of such material, and if removal of such combustible material shall not be attended to within fifteen (15) days after having been requested by Santa Fe so to do, Santa Fe shall have the right itself to perform the work and Licensee hereby agrees to reimburse Santa Fe for the expense so incurred. 4. During the construction and while repairing, renewing or changing the Electric Supply Line, Licensee shall exercise utmost and extraordinary diligence to the end that no damage shall occur to the property of Santa Fe, and that there shall be no interference with the operation of its railroad. Upon completion of the Electric Supply Line or after the making of any changes, repairs or renewals, Licensee shall, at Licensee's own cost, restore said premises to their former state; and Licensee shall, within fifteen (15) days after receipt of bill therefor, pay to Santa Fe the entire cost incurred in employing watchmen or such other means of protection as in the judgment of Santa Fe may be required during the construction, maintenance, repair, renewal or changing of the Electric Supply Line. 5. If at any time during the term hereof Santa Fe 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 Santa Fe to such effect, make such changes in the Electric Supply Line as in the judgment of Santa Fe may be necessary to avoid interference with the proposed use of its property. 6. Santa Fe shall have the right at its election itself to construct the Electric Supply Line, and at any time to make such repairs, renewals or changes therein as it may deem necessary or desirable, and in the event Santa Fe shall decide to exercise such right, Licensee shall advance to Santa Fe the cost, as estimated by Santa Fe, of such construction, repair, renewal or change. If the actual cost incurred by Santa Fe in performing such work shall prove more or less than the amount so advanced, the difference shall be promptly paid by Licensee or refunded by Santa Fe, as the case may be. Santa Fe may, at its election, advance the necessary moneys to cover such cost and, in that case, Licensee agrees promptly upon demand to pay to Santa Fe all sums so advanced, with interest. 7. Licensee shall at all times indemnify and save harmless Santa Fe and other companies operating over its tracks against, and shall pay in full, all loss, damage or expense that they, or any of them, may sustain, incur or become liable for, resulting in any manner from the construction, maintenance, use, state of repair, or presence of the Electric Supply Line upon said premises, including any such loss, damage or expense arising out of (a) loss of or damage to property, (b) injury to or death of persons, (c) mechanics' or other liens of any character or (d) taxes or assessments of any kind. It is the intention of the parties that Santa Fe's right to indemnity hereunder shall be valid and enforceable against Licensee regardless of negligence (whether active, passive, derivative, joint, concurring or comparative) on the part of Santa Fe, its officers, agents and employees. — 2 — 147V 8. Since this license is made in part for the benefit of other companies operating over Santa Fe's tracks, any of said companies may sue to enforce the provisions hereof, either jointly or severally, as their interests may be joint or several. None of said companies nor the Santa Fe shall be liable for any damage, howsoever caused, to the Electric Supply Line, whether due to negligence or otherwise. 9. If Licensee shall at any time fail or refuse to comply with or carry out any of the covenants herein contained, and such failure or refusal shall continue for a period of thirty (30) days after written demand for such performance or compliance shall have been made upon Licensee by Santa Fe, Santa Fe may, at its election, without notice, forthwith revoke this license, and in case of such election, or upon any termination hereof, Licensee shall, upon request, forthwith remove the Electric Supply Line and restore said premises to the condition in which they were prior to the construction of the Electric Supply Line. In case Licensee shall fail to make such removal or restoration within thirty (30) days, Santa Fe may proceed with such work, and Licensee shall promptly repay to Santa Fe the cost thereof. No waiver by Santa Fe of any default or defaults, or the right to terminate this license, shall be deemed or held to be a waiver of the right to terminate the same for any subsequent default or defaults, but notwithstanding such waiver Santa Fe may terminate this license upon any subsequent default or defaults which may occur; nor shall any termination hereof 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 of termination or such later date when the Electric Supply Line may be removed and said premises restored as hereinabove provided. 10. 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, and service of Santa Fe and of any licensee of Santa Fe whose permission to use said premises antedates the license and permission herein to Licensee, from interference and physical hazard, 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 Santa Fe. 11. In case of the eviction of Licensee by any one owning or claiming title to or any interest in said premises, or any part thereof, Santa Fe shall not be liable to Licensee for any damage of any nature whatsoever, or to refund any moneys paid hereunder. 12. Any notice to be given by Santa Fe to Licensee hereunder shall be deemed to be properly served if the same be delivered to Licensee or if deposited in the United States mail, postage prepaid, addressed to Licensee at City Hall, P. 0. Box 2000, Lubbock, Texas 79457. Any notice to be given by Licensee to Santa Fe hereunder shall be deemed to be properly served if it be deposited in the United States mail, postage prepaid, addressed to Santa Fe's System Director of Contracts and Property, One Santa Fe Plaza, P. 0. Box 1738, 920 S. E. Quincy Street, Topeka, Kansas 66601. — 3 — 10-23-85-2171/147V 13. In the event Licensee herein consists of two or more parties, all the covenants and agreements of Licensee herein contained shall constitute the joint and several covenants and agreements of such parties. 14. This license may be terminated by either party hereto upon one (1) month's notice in writing to be served upon the other party, stating therein the day of the month that such termination will take place; and upon the expiration of the time specified in such notice this license, and all rights and privileges of Licensee thereunder, shall absolutely cease. This license shall terminate in any event immediately upon the death of the Licensee, if the sole Licensee is an individual. 15. This license shall be binding upon and inure to the benefit of the parties and their respective legal representatives, successors and assigns; provided, however, no assignment hereof by Licensee, Licensee's legal representatives, successors or assigns, nor any subsequent assignee, shall be binding upon Santa Fe without the written consent of Santa Fe in each instance, and at the option of Santa Fe this license shall be forfeited by any such voluntary assignment or by any assignment thereof by operation of law. 16. Notwithstanding any other provisions of this license, Licensee shall comply with all statutes, ordinances, rules, regulations, orders and decisions (hereinafter referred to as "Standards"), issued by any federal, state or local governmental body or agency established thereby (hereinafter referred to as "Authority"), relating to Licensee's use of Santa Fe's property hereunder. In its use of the premises, Licensee shall at all times be in full compliance with all Standards, present or future, set by any Authority, including, but not limited to, Standards concerning air quality, water quality, noise, hazardous substances and hazardous waste. In the event Licensee fails to be in full compliance with Standards set by any Authority, Santa Fe may, after giving reasonable notice of the failure to Licensee, and Licensee, within thirty (30) days of such notice, fails either to correct such non-compliance or to give written notice to the Santa Fe of its intent to contest the allegation of non-compliance before the Authority establishing the Standard or in any other proper forum, take whatever action is necessary to protect the premises and Santa Fe's railroad and other adjacent property. Licensee shall reimburse the Santa Fe for all costs (including but not limited to, consulting, engineering, clean-up and disposal costs, and legal costs) incurred by the Santa Fe in complying with such Standards, and also such costs incurred by the Santa Fe in abating a violation of such Standards, protecting against a threatened violation of such Standards, defending any claim of violation of such Standards in any proceeding before any Authority or court, and paying any fines or penalties imposed for such violations. Licensee shall assume liability for and shall save and hold harmless the Santa Fe from any claim of a violation of such Standards regardless of the nature thereof or the Authority or person asserting such claim, which results from Licensee's use of Santa Fe's premises, whether such claim arises in whole or in part from the negligence or alleged negligence of the Santa Fe or otherwise. Licensee, at its cost, shall assume the defense of all such claims regardless of whether they are asserted against Licensee or Santa Fe. - 4 - 3-4-85-2171/147V 17. Upon written notice from Santa Fe, Licensee agrees to assume the defense of any lawsuit, administrative action or other proceeding brought against Santa Fe 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 to save and hold harmless the Santa Fe. 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. Any and all lawsuits or administrative actions brought or threatened on any theory of relief available at law, in equity or under the rules of any administrative agency shall be covered by this section, including, but not limited to, the theories of intentional misconduct, negligence, breach of statute or ordinance, or upon any theory created by statute or ordinance, state or federal. IN WITNESS WHEREOF, The parties have executed this license in duplicate the day and year first above written. THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY By (K 1 ��` Its �t9 t i�pnggec of �or�tr®Ct� LUBBOCK POWER AND LIGHT, A DEPARTMENT OF THE CITY OF LUBBOCK Cz By r— 0: � - 5 - 3-4-85-2171/147V/4845a/2110/1 Its Mayor 2252 C. E. FILE NO. O��?- EXHIBIT "A" ATTACHED TO CONTRACT BETWEEN THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY AND ciry o.< d veeoc c L !/BBOC.0 000040A%ld ',e ANO .4 /6'i!/T TOPEKA, KANSAS SCALE: 1 IN. TO /00 FT. �✓E�-✓ �EXico DIV. .1efy SUBDIV. (j/J DATE: A--'-e/L CHIEF ENGINEER DESCRIPTION APPROVED .30 35� � TO s�.s� ro.✓ Sr 3.SsL � 3a M o J?7>- /83.3 DESCRIPTION OF WIRES OVER TRACK WIRES LOCATED AS SHOWN BOLD DISTANCE ABOVE CLEARS RAILWAY TYPE NUMMB)ER VOLTAGE TOP OF RAIL COMPANY'S WIRES o. H Jr - 07 7 ovcxe �Oy✓E,e /- -a Acst low 004 33 ' AT .91.e vB.eoc.c LUBBOC.0 COU�/Ty TEX�95 C.E. DRAWING NO. 1 - //7w-3 DIV. DWG. NO. _ DIV. FILE NO.`__ G. M. FILE NO. ,eL L-1