HomeMy WebLinkAboutResolution - 2001-R0016 - License For A Pipeline With Burlington Northern And Santa Fe Railway Company - 01/25/2001Resolution No. 2001-R00
January 25, 2001
Item No. 32
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 pipeline, by
and between the City of Lubbock (Licensee), and The Burlington Northern and Santa Fe
Railway Company (Licensor), and related documents. Said License is attached hereto and
incorporated in this resolution as if fully set forth herein and shall be included in the
minutes of the City Council.
Passed by the City Council this 25th day of January , 2001.
r
f.
WINDY SIT N, MAYOR
ATTEST:
Becky Garza
Interim City Secretary
APPROVED AS TO CONTENT:
Larry Hertel
City Engineer
APPROVED AS TO FORM:
William de Haas
Contract Manager/Attorney
Dh/Ccdocs/Burlington Northern and Santa Fe.res
January 16, 2001
Form Approved
by VP -Law 00-24584
PIPE LINE LICENSE
THIS LICENSE, made this 15th day of November, 2000, subject to the terms and
conditions set forth herein, between THE BURLINGTON NORTHERN AND SANTA FE
RAILWAY COMPANY, a Delaware corporation, its successors and assigns, (hereinafter called
"Licensor"), party of the first part, and CITY OF LUBBOCK, a Texas municipal 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 for it and/or its contractors to construct and maintain
one (1) pipe line(s), 72 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, Line Segment 7106, Mile Post
677.5, the location of the PIPE LINE being more particularly shown upon the print hereto
attached, No. 1-22360 dated October 6, 2000, marked "Exhibit A" and made a part
hereof.
2. This agreement shall be effective- J_ L"'50>t4t
3. Licensee shall use the PIPE LINE solely for carrying storm water and shall not
use it to carry any other commodity or for any other purpose whatsoever.
4. Licensee shall pay Licensor as compensation for this license the sum of Two
Thousand Five Hundred and No/100 Dollars ($2.500:00).
5. 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 petroleum
products or other flammable or highly volatile substances under pressure, the PIPE
LINE shall be constructed, installed and thereafter maintained in conformity with the
pians 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
property 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. Licensee's emergency contact can
be reached at ( 806) 775-2335.
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6. 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. (The current rate, subject to change without notice, for
furnishing of Licensor's Flagman is a minimum daily charge of $500.00, for the first eight
hours, or any part thereof, per day, with an hourly charge of $95.00 per hour for any
time over eight hours per day).
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 pipeline(s) 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.ct_, consulting with the Underground Services Association)
to determine the existence or location of pipeline(s) 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 at 500 Main Street, Lubbock, TX 79401, telephone (806) 765=3955.
9. (A) EXCEPT AS SET FORTH IN SECTION 9 (B), LICENSEE TO THE
EXTENT PERMITTED BY LAW, 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 TO
THE EXTENT PROXIMATELY CAUSED BY 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 PIPE LINE, EXCEPT TO THE EXTENT RESULTING
SOLELY FROM THE NEGLIGENCE OR WILLFUL MISCONDUCT OF LICENSOR.
(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, EXCEPT TO THE EXTENT PERMITTED BY
LAW, REGARDLESS OF LICENSOR'S NEGLIGENCE.
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01%05/2001 11:06 FAX 817 306 8265 S'TALBACH
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10. If at any time during the term hereof Licensor shalt 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 pipeline(s) 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 cor' dor.
11. (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 $9,000,000 per occurrence and $2,000,000 in the
aggregate. Such insurance shall contain no exclusion with respect to rail corridor of
Licensor in the care, custody or control of Licensee. Licensee's contractors shall also
procure and maintain the above coverage when on Licensor's property. LICENSOR
SHALL BE NAMED AS ADDITIONAL INSUREDS.
u
(b) AlI risk insurance on the PIPE 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_ Licenses; 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 PIPE 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 Licensoes tracks, The policy will remain in _force
during the construction phase of this project and must be provided prior to Licensor
signing this license.
(e) In lieu of providing a Railroad Protective Liability Insurance policy,
Licensee may participate in Licensor's Blanket Railroad Protective Liability Insurance
Policy available to Licensee or its contractor. The limits of coverage are the same as
above. The cost is $800.00,
XI elect to participate in Licensor's Blanket Policy;
❑ I elect not to participate in Licensor's Blanket Policy.
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(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.
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. (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.
14. 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.
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15. 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.
16. In the case of eviction of Licensee by anyone owning or obtaining title to the rail
corridor on which the PIPE UNE 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.
17. Any notice to be given by either party shall be deemed to be property 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.
18. 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.
19. 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.
20. 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.
21. It is understood and agreed that this License shall not be placed of public record.
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 PIPE LINE is
located.
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No Text
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.
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 PIPE 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
PIPE LINE thereunder. In case Licensee shall fail to restore Licensor's rail corridor
within ninety (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.
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.
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01/05/2001 11:07 FAX 817 306 8265 STAUBACH
The Stailharh (ampgoy is a0tinn ac anent
_ngtoR NG;4heR; And Santa Fe
silway
WHEREOF, the parties have executed this agreement in duplicate the day and year first
above written.
THE BURLINGTON NORTHERN AND SANTA FE RAILWAY
COMPANY �.a.���c. 9cc(osa
7(el19-4 b� .
a0.5
By: —II'—" 'AnjOwr'S
Title.
CITY OF LUBBOCK
P. O. Box 2000
Lubbock, TX J9457 11
By: — / -VIV-
WINDY TTO
Title: Mayor, City f Lubbock
ATTEST:
Becky Garza, Interim City Seca
APPROVED AS TO GO) -NTE -,N
ity Engineer
APPROVED AS TO FORM:
William De Haas, Contract Manager/Attorney
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TRACKING N0. 00-24584
'
EXHIBIT !I AII
ATTACHED TO CONTRACT BETWEEN
THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY
AND
CITY OF LUBBOCK, TEXAS
FORT WORTH, TEXAS SECTION: N/A V- N/A
SCALE: 1 IN. = 400 FT. TOWNSHIP: - MAP AMARILLO DIV. �� RANGE: - PARCEL -
SL.ATION SUBOIV. L.S. 7106
DATE 10/06/2000
REV= 11/13/2000 j
' PROPERTY LINES
l� I
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i
TO LU88OCK rJy1 �i/MY+� i
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MP 677.5
ES 73.69
ti 14-0
DESCRIPTION OF PIPELINE
PIPELINE SHOWN BOLD
PROPERTY LINES
TO SWEETWATER
v�rreaPn�'1
AT LUBBOCK
COUNTY OF LUBBOCK STATE OF TX .iPc
DRAWING NO. 1-22860
CARRIER
CASING
CARRIER
CASING
PIPE
PIPE
PIPE
PIPE
SIZE:
N/A
LENGTH ON R/W:
100'
N/A
CONTENTS:
SEWER
WORKING PRESSURE:
5.5 PSI
PIPE MATERIAL:
- RQP
-
BURY: BASE/RAIL TO
TOP OF PIPE
31.7'
SPECIFICATION / GRADE:
C 6 5 5 -
BURY: NATURAL GROUND
-25. -
WALL THICKNESS:
1.7
-
BURY: ROADWAY DITCHES
29 - 5
COATING:
N/A
-
CATHODIC PROTECTION
N/A
VENTS: NUMBER N/A SIZE
-
HEIGHT OF
VENT ABOVE GROUND -
NOTE:
CASING TO BE JACKED OR
DRY BORED ONLY
AT LUBBOCK
COUNTY OF LUBBOCK STATE OF TX .iPc
DRAWING NO. 1-22860