HomeMy WebLinkAboutResolution - 2002-R0240 - Pipeline License For Sewer Line - Burlington Northern And Santa Fe Railway - 06/26/2002Resolution No. 2002-RO240
June 26, 2002
Item No. 22
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 Pipeline License for a
sewer 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 Slaton Subdivision at Railroad mile post 683.79 in Section 26, Block S, Lubbock
County, Texas, 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 26th day ..f
ATTEST:
Reb cca Garza, City Secretary
APPROVED AS TO CONTENT:
Ed Bucy, Right -of -Way Agent
APPROVED AS TO FORM:
Linda Chamales
Supervising Attorney/Office Practice
gsxedocs/The Burlington Northern and Santa Fe Railway Co.res
June 17, 2002
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Form Approved Resolution No. 2002-R
b VP 02-23613
LPIPELINE LICENSE
OR
THIS LICENSE ("License"), made as of the 111th day of July, 2002, ("Effective Date")
by and between THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, a
Delaware corporation ("Licensor") and CITY OF LUBBOCK, a Texas municipal corporation
("Licensee").
NOW THEREFORE, in consideration of the mutual covenants contained herein, the
parties agree to the following:
GENERAL
Licensor hereby grants Licensee a non-exclusive license, subject to all rights, interests,
and estates of third parties, including, without limitation, any leases, licenses,
easements, liens, or other encumbrances, and upon the terms and conditions set forth
below, to construct and maintain, in strict accordance with the drawings and
specifications approved by Licensor as part of Licensee's application process (the
"Drawings and Specifications"), one (1) Pipe Line(s), 36 inches in diameter inside a 42
inch steel casing ("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 683.79 as shown on the attached Drawing No. 1-28138, dated May 24, 2002,
attached hereto as Exhibit "A" and made a part hereof ("Premises").
2. Licensee shall not disturb any improvements of Licensor or Licensor's existing lessees,
licensees, easement beneficiaries or lien holders, if any, or interfere with the use of such
improvements.
3. Licensee shall use the Premises solely for construction and maintenance of a PIPE
LINE in accordance with the Drawings and Specifications carrying sewage. Licensee
shall not use the PIPE LINE to carry any other commodity or use the Premises for any
other purpose.
(a) Licensee covenants that it will not handle or transport "hazardous waste" or
"hazardous substances", as "hazardous waste" and "hazardous substances"
may now or in the future be defined by any federal, state, or local governmental
agency or body through the PIPE LINE on Licensor's property. In the event the
PIPE LINE is now or in the future used in handling, or transporting "hazardous
substances", Licensee agrees to obtain written approval from Licensor and
further agrees to comply fully with all applicable federal, state, and local laws,
rules, regulations, orders, decisions and ordinances (hereinafter referred to as
"Standards") concerning "hazardous substances". Licensee further agrees
periodically to furnish Licensor with proof, satisfactory to Licensor, that Licensee
is in such compliance. Should Licensee not comply fully with the above -stated
obligations of this Section, notwithstanding anything contained in any other
provision hereof, Licensor may, at its option, terminate this License by serving
five (5) days' notice of termination upon Licensee. Upon termination, Licensee
shall remove the PIPE LINE and restore Licensor's property as herein elsewhere
provided.
(b) Notwithstanding anything contained in the liability section hereof, in case of a
breach of the obligations contained in this Section, or any of them, regardless of
the negligence or alleged negligence of Licensor, Licensee agrees to assume
Form 424 Rev. 03/20/02 1 of 14
02-23613
liability for and to save and hold harmless Licensor from and against all injuries
to any person and damage to property, including without limitation, employees
and property of Licensor and Licensee and all related expenses, including
without limitation attorneys' fees, investigators' fees and litigation expenses,
resulting in whole or in part from Licensee's failure to comply with any Standard
issued by any governmental authority concerning "hazardous substances".
Licensee, at its cost, shall assume the defense of all claims, suits or actions
brought for damages, and fines or penalties hereunder, regardless of whether
they are asserted against Licensor or Licensee. Licensee also agrees to
reimburse Licensor for all costs of any kind incurred as a result of the Licensee's
failure to comply with this Section, including, but not limited to, fines, penalties,
clean-up and disposal costs, and legal costs incurred as a result of Licensee's
handling, transporting, or disposing of "hazardous substances" on the property of
Licensor.
4. In case of the eviction of Licensee by anyone owning or claiming title to or any interest
in the Premises, or by the abandonment by Licensor of the affected rail corridor,
Licensor shall not be liable to refund Licensee any compensation paid hereunder,
except for the pro -rata part of any recurring charge paid in advance, or for any damage
Licensee sustains in connection therewith.
5. Any contractors or subcontractors performing work on the PIPE LINE or entering the
Premises on behalf of Licensee shall be deemed servants and agents of Licensee for
purposes of this License.
TERM
6. This License shall commence on the Effective Date and shall continue for a period of
Twenty-five (25) years, subject to prior termination as hereinafter described.
COMPENSATION
7. (a) Licensee shall pay Licensor, prior to the Effective Date, the sum of Two
Thousand Five Hundred and No/100 Dollars ($2,500.00) as compensation for
the use of the Premises.
(b) Licensee agrees to reimburse Licensor (within thirty (30) days after receipt of
bills therefore) for all costs and expenses incurred by Licensor in connection with
Licensee's use of the Premises or the presence, construction and maintenance
of the PIPE LINE, including but not limited to the furnishing of Licensor's
Flagman ($500.00 per eight hour day, $95.00 per hour thereafter).
(c) All invoices are due thirty (30) days after the date of invoice. In the event that
Licensee shall fail to pay any monies due to Licensor within thirty (30) days after
the invoice date, then Licensee shall pay interest on such unpaid sum from thirty
(30) days after its invoice date to the date of payment by Licensee at an annual
rate equal to (i) the greater of (a) for the period January 1 through June 30, the
prime rate last published in The Wall Street Journal in the preceding December
plus two and one-half percent (2 112%), and for the period July 1 through
December 31, the prime rate last published in The Wall Street Journal in the
preceding June plus two and one-half percent (2 1/2%), or (b) twelve percent
(12%), or (ii) the maximum rate permitted by law, whichever is less.
Form 424 Rev. 03/20/02 2 of 14
02-23613
COMPLIANCE WITH LAWS
8. (a) Licensee shall observe and comply with any and all laws, statutes, regulations,
ordinances, orders, covenants or restrictions ("Legal Requirements") relating to
the construction, maintenance and use of the PIPE LINE and the use of the
Premises.
(b) Prior to entering the Premises, Licensee shall and shall cause its contractor to
comply with all Licensor's applicable safety rules and regulations. Prior to
commencing any work on the Premises, Licensee shall complete and shall
require its contractor to complete the safety training program at the Internet
Website "http://www.contractororientation.com". This training must be completed
no more than one year in advance of Licensee's entry on the Premises.
DEFINITION OF COST AND EXPENSE
9. For the purpose of this License, "cost' or "costs" "expense" or "expenses" includes, but
is not limited to, actual labor and material costs including all assignable additives, and
material and supply costs at current value where used.
RIGHT OF LICENSOR TO USE
10. Licensor excepts and reserves the right, to be exercised by Licensor and any other
parties who may obtain written permission or authority from Licensor:
(a) to maintain, renew, use, operate, change, modify and relocate any existing pipe,
power, communication lines and appurtenances and other facilities or structures
of like character upon, over, under or across the Premises;
(b) to construct, maintain, renew, use, operate, change, modify and relocate any
tracks or additional facilities or structures upon, over, under or across the
Premises; or
(c) to use the Premises in any manner, as the Licensor in its sole discretion deems
appropriate, provided Licensor uses all commercially reasonable efforts to avoid
material interference with the use of the Premises by Licensee for the purpose
specified in Section 3 above.
LICENSEE'S OPERATIONS
11. (a) Licensee shall notify Licensor's Roadmaster at P.O. Box 2469, Lubbock, Texas
79401, telephone (806) 765-3955, at least five (5) business days prior to
installation of the PIPE LINE and prior to entering the Premises for any
subsequent maintenance thereon.
(b) In performing the work described in Section 3, Licensee shall use only public
roadways to cross from one side of Licensor's tracks to the other.
12. (a) Under no conditions shall Licensee be permitted to conduct any tests,
investigations or any other activity using mechanized equipment and/or
machinery, or place or store any mechanized equipment, tools or other
materials, within twenty-five (25) feet of the centerline of any railroad track on the
Premises unless Licensee has obtained prior written approval from Licensor.
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02-23613
Licensee shall, at its sole cost and expense, perform all activities on and about
the Premises in such a manner as not at any time to be a source of danger to or
interference with the existence or use of present or future tracks, roadbed or
property of Licensor, or the safe operation and activities of Licensor. If ordered
to cease using the Premises at any time by Licensor's personnel due to any
hazardous condition, Licensee shall immediately do so. Notwithstanding the
foregoing right of Licensor, the parties agree that Licensor has no duty or
obligation to monitor Licensee's use of the Premises to determine the safe
nature thereof, it being solely Licensee's responsibility to ensure that Licensee's
use of the Premises is safe. Neither the exercise nor the failure by Licensor to
exercise any rights granted in this Section will alter the liability allocation
provided by this License.
(b) Licensee shall, at its sole cost and expense, 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 existence or use of present or future
tracks, roadbed or property of Licensor, or the safe operation and activities of
Licensor. Further, when the PIPE LINE is used for oil, gas, petroleum products,
or other flammable or highly volatile substances under pressure, said PIPE LINE
shall be constructed, installed and maintained in conformity with the plans and
specifications shown on the print attached hereto as Exhibit B and made a part
hereof (which, if present, are to be deemed part of the Drawings and
Specifications). Licensor may direct one of its field engineers to observe or
inspect the construction and/or maintenance of the PIPE LINE at any time for
compliance with the Drawings and Specifications. If ordered at any time to halt
construction or maintenance of the PIPE LINE by Licensor's personnel due to
non-compliance with the same or any other hazardous condition, Licensee shall
immediately do so. Notwithstanding the_ foregoing right of Licensor, the parties
agree that Licensor has no duty or obligation to observe or inspect, or to halt
work on, the PIPE LINE, it being solely Licensee's responsibility to ensure that
the PIPE LINE is constructed in strict accordance with the Drawings and
Specifications and in a safe and workmanlike manner in compliance with all
terms hereof. Neither the exercise nor the failure by Licensor to exercise any
right granted by this Section will alter in any way the liability allocation provided
by this License. If at any time Licensee shall, in the sole judgment of Licensor,
fail to properly perform its obligations under this Section, Licensor may, at its
option and at Licensee's sole expense, arrange for the performance of such
work as it deems necessary for the safety of its operations and activities.
Licensee shall promptly reimburse Licensor for all costs and expenses of such
work, upon receipt of an invoice for the same. Licensor's failure to perform any
obligations of Licensee shall not alter the liability allocation hereunder.
13. During the construction and any subsequent maintenance performed on the PIPE 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 construction of the PIPE LINE and after performing any subsequent maintenance
thereon, Licensee shall, at Licensee's own cost and expense, restore Licensor's
Premises to their former state as of the Effective Date of this License.
14. If at any time during the term of this License, Licensor shall desire the use of its rail
corridor in such a manner as would, in Licensor's reasonable opinion, be interfered with
by the PIPE LINE, Licensee shall, at its sole expense, within thirty (30) days after
receiving written notice from Licensor to such effect, make such changes in the PIPE
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02-23613
LINE as in the sole discretion of Licensor may be necessary to avoid interference with
the proposed use of Licensor's rail corridor, including, without limitation, the relocation of
the existing or the construction of a new PIPE LINE(s).
15. (a) Prior to Licensee conducting 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.g., 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. Upon Licensee's written request,
which shall be made thirty (30) business days in advance of Licensee's
requested construction of the PIPE LINE, Licensor will provide Licensee any
information that Licensor has in the possession of its Engineering Department
concerning the existence and approximate location of Licensor's underground
utilities and pipelines at or near the vicinity of the proposed PIPE LINE. Prior to
conducting any such boring work, the Licensee will review all such material.
Licensor does not warrant the accuracy or completeness of information relating
to subsurface conditions and Licensee's operations will be subject at all times to
the liability provisions herein.
(b) For all bores greater than 20 -inch diameter and at a depth less than 10.0 feet
below bottom of rail, a soil investigation will need to be performed by the
Licensee and reviewed by Licensor prior to construction. This study is to
determine if granular material is present, and to prevent subsidence during the
installation process. If the investigation determines in Licensor's reasonable
opinion that granular material is present, Licensor may select a new location for
Licensee's use, or may require Licensee to furnish for Licensor's review and
approval, in its sole discretion a remedial plan to deal with the granular material.
Once Licensor has approved any such remedial plan in writing, Licensee shall, at
its sole cost and expense, carry out the approved plan in accordance with all
terms thereof and hereof.
16. Any open hole, boring or well constructed on the Premises by Licensee shall be safely
covered and secured at all times when Licensee is not working in the actual vicinity
thereof. Following completion of that portion of the work, all holes or borings
constructed on the Premises by Licensee shall be:
(a) filled in to surrounding ground level with compacted bentonite grout; or
(b) otherwise secured or retired in accordance with any applicable Legal
Requirement. No excavated materials may remain on Licensor's property for
more than ten (10) days, but must be properly disposed of by Licensee in
accordance with applicable Legal Requirements.
17. Upon termination of this License, Licensee shall, at its sole cost and expense:
(a) remove the PIPELINE and all appurtenances thereto, or, at the sole discretion of
the Licensor, fill and cap or otherwise appropriately decommission the PIPELINE
with a method satisfactory to Licensor;
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02-23613
(b) report and restore any damage to the Premises arising from, growing out of, or
connected with Licensee's use of the Premises;
(c) remedy any unsafe conditions on the Premises created or aggravated by
Licensee; and
(d) leave the Premises in the condition which existed as of the Effective Date of this
License.
18. Licensee's on-site supervisions shall retain/maintain a fully executed copy of this
License at all times while on the Premises.
LIABILITY
19. (a) TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL AND
SHALL CAUSE ITS CONTRACTOR TO RELEASE, INDEMNIFY, DEFEND AND
HOLD HARMLESS LICENSOR AND LICENSOR'S AFFILIATED COMPANIES,
PARTNERS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES,
OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS
(COLLECTIVELY, 'INDEMNITEES") FOR, FROM AND AGAINST ANY AND
ALL CLAIMS, LIABILITIES, FINES, PENALTIES, COSTS, DAMAGES,
LOSSES, LIENS, CAUSES OF ACTION, SUITS, DEMANDS, JUDGMENTS
AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT COSTS,
ATTORNEYS' FEES AND COSTS OF INVESTIGATION, REMOVAL AND
REMEDIATION AND GOVERNMENTAL OVERSIGHT . COSTS)
ENVIRONMENTAL OR OTHERWISE (COLLECTIVELY "LIABILITIES") OF
ANY NATURE, KIND OR DESCRIPTION OF ANY PERSON OR ENTITY
DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM OR
RELATED TO (IN WHOLE OR IN PART):
(i) THIS LICENSE, INCLUDING, WITHOUT LIMITATION, ITS
ENVIRONMENTAL PROVISIONS,
(ii) ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS
LICENSE,
(iii) LICENSEE'S OCCUPATION AND USE OF THE PREMISES,
(iv) THE ENVIRONMENTAL CONDITION AND STATUS OF THE
PREMISES CAUSED BY, AGGRAVATED BY, OR CONTRIBUTED IN
WHOLE OR IN PART, BY LICENSEE, OR
(v) ANY ACT OR OMISSION OF LICENSEE OR LICENSEE'S OFFICERS,
AGENTS, INVITEES, EMPLOYEES, OR CONTRACTORS, OR ANYONE
DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM, OR
ANYONE THEY CONTROL OR EXERCISE CONTROL OVER,
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02-23613
EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO, IN
WHOLE OR IN PART, ANY NEGLIGENCE OF ANY INDEMNITEE. THE ONLY
LIABILITIES WITH RESPECT TO WHICH LICENSEE'S OBLIGATION TO
INDEMNIFY THE INDEMNITEES DOES NOT APPLY ARE LIABILITIES TO
THE EXTENT PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF AN INDEMNITEE.
(b) FURTHER, TO THE FULLEST EXTENT PERMITTED BY LAW,
NOTWITHSTANDING THE LIMITATION IN SECTION 19(a), LICENSEE SHALL
AND SHALL CAUSE ITS CONTRACTOR TO NOW AND FOREVER WAIVE
ANY AND ALL CLAIMS, REGARDLESS WHETHER BASED ON THE STRICT
LIABILITY, NEGLIGENCE OR OTHERWISE, THAT RAILROAD IS AN
"OWNER", "OPERATOR", "ARRANGER", OR "TRANSPORTER" WITH
RESPECT TO THE PREMISES FOR THE PURPOSES OF CERCLA OR
OTHER ENVIRONMENTAL LAWS. LICENSEE WILL INDEMNIFY, DEFEND
AND HOLD THE INDEMNITEES HARMLESS FROM ANY AND ALL SUCH
CLAIMS REGARDLESS OF THE NEGLIGENCE OF THE INDEMNITEES.
LICENSEE FURTHER AGREES THAT THE USE OF THE PREMISES AS
CONTEMPLATED BY THIS LICENSE SHALL NOT IN ANY WAY SUBJECT
LICENSOR TO CLAIMS THAT LICENSOR IS OTHER THAN A COMMON
CARRIER FOR PURPOSES OF ENVIRONMENTAL LAWS AND EXPRESSLY
AGREES TO INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES
HARMLESS FOR ANY AND ALL SUCH CLAIMS. IN NO EVENT SHALL
LICENSOR BE RESPONSIBLE FOR THE ENVIRONMENTAL CONDITION OF
THE PREMISES.
(c) TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE FURTHER
AGREES, AND SHALL CAUSE ITS CONTRACTOR TO AGREE
REGARDLESS OF ANY NEGLIGENCE OR ALLEGED NEGLIGENCE OF ANY
INDEMNITEE, TO INDEMNIFY, AND HOLD HARMLESS THE INDEMNITEES
AGAINST AND ASSUME THE DEFENSE OF ANY LIABILITIES ASSERTED
AGAINST OR SUFFERED BY ANY INDEMNITEE UNDER OR RELATED TO
THE FEDERAL EMPLOYERS' LIABILITY ACT ("FELA') WHENEVER
EMPLOYEES OF LICENSEE OR ANY OF ITS AGENTS, INVITEES,
CONTRACTORS CLAIM OR ALLEGE THAT THEY ARE EMPLOYEES OF ANY
INDEMNITEE OR OTHERWISE. THIS INDEMNITY SHALL ALSO EXTEND,
ON THE SAME BASIS, TO FELA CLAIMS BASED ON ACTUAL OR ALLEGED
VIOLATIONS OF ANY FEDERAL, STATE OR LOCAL LAWS OR
REGULATIONS, INCLUDING BUT NOT LIMITED TO THE SAFETY
APPLIANCE ACT, THE BOILER INSPECTION ACT, THE OCCUPATIONAL
HEALTH AND SAFETY ACT, THE RESOURCE CONSERVATION AND
RECOVERY ACT,, AND ANY SIMILAR STATE OR FEDERAL STATUTE.
(d) Upon written notice from Licensor, Licensee agrees to assume the defense of
any lawsuit or other proceeding brought against any Indemnitee by any 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 any Indemnitee.
Licensee shall pay all costs incident to such defense, including, but not limited to,
attorneys' fees, investigators' fees, litigation and appeal expenses, settlement
payments, and amounts paid in satisfaction of judgments.
Form 424 Rev. 03/20/02 7 of 14
02-23613
PERSONAL PROPERTY WAIVER
20. ALL PERSONAL PROPERTY, INCLUDING, BUT NOT LIMITED TO, FIXTURES,
EQUIPMENT, OR RELATED MATERIALS UPON THE PREMISES WILL BE AT THE
RISK OF LICENSEE ONLY, AND NO INDEMNITEE WILL BE LIABLE FOR ANY
DAMAGE THERETO OR THEFT THEREOF, WHETHER OR NOT DUE IN WHOLE OR
IN PART TO THE NEGLIGENCE OF ANY INDEMNITEE.
INSURANCE
21. Licensee shall, at its sole cost and expense, procure and maintain during the life of this
Agreement the following insurance coverage:
A. Commercial General Liability Insurance. This insurance shall contain broad
form contractual liability with a combined single limit of a minimum of $5,000,000
each occurrence and an aggregate limit of at least $10,000,000. Coverage
must be purchased on a post 1998 ISO occurrence or equivalent and include
coverage for, but not limited to, the following:
Bodily injury and Property Damage
Personal Injury and Advertising Injury
Fire legal liability
♦ Products and completed operations
This policy shall also contain the following endorsements, which shall be indicated on
the certificate of insurance:
It is agreed that any workers' compensation exclusion does not apply to
Licensor's payments related to the Federal Employers Liability Act or a
Licensor Wage Continuation Program or similar programs and any
payments made are deemed not to be either payments made or
obligations assumed under any Workers Compensation, disability
benefits, or unemployment compensation law or similar law.
• The definition of insured contract shall be amended to remove any
exclusion or other limitation for any work being done within 50 feet of
railroad property.
♦ Any exclusions related to the explosion, collapse and underground
hazards shall be removed.
No other endorsements limiting coverage may be included on the policy.
B. Business Automobile Insurance. This insurance shall contain a combined
single limit of at least $1,000,000 per occurrence, and include coverage for, but
not limited to the following:
Bodily injury and property damage
Any and all vehicles owned, used or hired
C. Workers Compensation and Employers Liability Insurance. This insurance
shall include coverage for, but not limited to:
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02-23613
Licensee's statutory liability under the worker's compensation laws of the
state(s) in which the work is to be performed. If optional under State law,
the insurance must cover all employees anyway.
Employers' Liability (Part B) with limits of at least $500,000 each
accident, $500,000 by disease policy limit, $500,000 by disease each
employee.
D. Railroad Protective Liability Insurance. This insurance shall name only the
Licensor as the Insured with coverage of at least $2,000,000 per occurrence and
$6,000,000 in the aggregate. The policy shall be issued on a standard ISO form
CG 00 35 10 93 and include the following:
♦ Endorsed to include the Pollution Exclusion Amendment (ISO form CG
2831 10 93)
♦ Endorsed to include the Limited Seepage and Pollution Endorsement.
Endorsed to include Evacuation Expense Coverage Endorsement.
No other endorsements restricting coverage may be added.
The original policy must be provided to the Licensor prior to performing
any work or services under this Agreement
In lieu of providing a Railroad Protective Liability 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.
elect to participate in Licensor's Blanket Policy;
❑ 1 elect not to participate in Licensor's Blanket Policy.
E. All risks property insurance covering all of Licensee's property including property
in the care, custody or control of Licensee. Coverage shall include the following:
• Issued on a replacement cost basis
• Shall provide that in respect of the interest of Licensor the insurance shall not
be invalidated by any action or inaction of Licensee or any other person and
shall insure the respective interests of Licensor as they appear, regardless of
any breach or violation of any warranty, declaration or condition contained in
such policies by Licensee or any other person.
Include a standard loss payable endorsement naming Licensor as the loss
payee as its interest may appear.
Other Requirements:
All policies (applying to coverage listed above) shall contain no exclusion for punitive
damages and certificates of insurance shall reflect that no exclusion exists.
Licensee agrees to waive its right of recovery against Licensor for all claims and suits
against Licensor. In addition, its insurers, through policy endorsement, waive their right
of subrogation against Licensor for all claims and suits. The certificate of insurance
must reflect waiver of subrogation endorsement. Licensee further waives its right of
recovery, and its insurers also waive their right of subrogation against Licensor for loss
of its owned or leased property or property under its care, custody or control.
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02-23613
Licensee's insurance policies through policy endorsement, must include wording which
states that the policy shall be primary and non-contributing with respect to any insurance
carried by Licensor. The certificate of insurance must reflect that the above wording is
included in evidenced policies.
All policy(ies) required above (excluding Workers Compensation and if applicable,
Railroad Protective) shall include a severability of interest endorsement and shall name
Licensor and Staubach Global Services, Inc. as an additional insured with respect to
work performed under this agreement. Severability of interest and naming Licensor
and Staubach Global Services, Inc. as additional insureds shall be indicated on
the certificate of insurance.
If Licensee elects to include any deductible, self-insured retention or other financial
responsibility for claims, Licensee shall itself directly cover, in lieu of insurance, any and
all Licensor's liabilities that would otherwise, in accordance with the provisions of this
License, be covered by Licensee's insurance as if Licensee elected not to include a
deductible, self-insured retention or other financial responsibility for claims.
Prior to commencing the Work, Licensee shall furnish to Licensor an acceptable
certificate(s) of insurance including an original signature of the authorized representative
evidencing the required coverage, endorsements, and amendments and referencing the
contract audit/folder number if available. The policy(ies) shall contain a provision that
obligates the insurance company(ies) issuing such policy(ies) to notify Licensor in
writing at least 30 days prior to any cancellation, non -renewal, substitution or material
alteration. This cancellation provision shall be indicated on the certificate of insurance.
Upon request from Licensor, a certified duplicate original of any required policy shall be
furnished.
Any insurance policy shall be written by a reputable insurance company acceptable to
Licensor or with a current Best's Guide Rating of A- and Class VII or better, and
authorized to do business in the state(s) in which the service is to be provided.
Licensee WARRANTS that this License has been thoroughly reviewed by Licensee's
insurance agent(s)/broker(s), who have been instructed by Licensee to procure the
insurance coverage required by this Agreement. Allocated Loss Expense shall be in
addition to all policy limits for coverages referenced above.
Not more frequently than once every five years, Licensor may reasonably modify the
required insurance coverage to reflect then -current risk management practices in the
railroad industry and underwriting practices in the insurance. industry.
If any portion of the operation is to be subcontracted by Licensee, Licensee shall require
that the subcontractor shall provide and maintain insurance coverages as set forth
herein, naming Licensor as an additional insured, and shall require that the
subcontractor shall release, defend and indemnify Licensor to the same extent and
under the same terms and conditions as Licensee is required to release, defend and
indemnify Licensor herein.
Failure to provide evidence as required by this section shall entitle, but not require,
Licensor to terminate this License immediately. Acceptance of a certificate that does
not comply with this section shall not operate as a waiver of Licensee's obligations
hereunder.
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02-23613
The fact that insurance (including, without limitation, self-insurance) is obtained by
Licensee shall not be deemed to release or diminish the liability of Licensee including,
without limitation, liability under the indemnity provisions of this License. Damages
recoverable by Licensor shall not be limited by the amount of the required insurance
coverage.
For purposes of this section, Licensor shall mean "Burlington Northern Santa Fe
Corporation", "The Burlington Northern and Santa Fe Railway Company" and the
subsidiaries, successors, assigns and affiliates of each.
ENVIRONMENTAL
22. (a) Licensee shall strictly comply with all federal, state and local environmental laws
and regulations in its use of the Premises, including, but not limited to, the
Resource Conservation and Recovery Act, as amended (RCRA), the Clean
Water Act, the Oil Pollution Act, the Hazardous Materials Transportation Act,
CERCLA (collectively referred to as the "Environmental Laws"). Licensee shall
not maintain a treatment, storage, transfer or disposal facility, or underground
storage tank, as defined by Environmental Laws on the Premises. Licensee
shall not release or suffer the release of oil or hazardous substances, as defined
by Environmental Laws on or about the Premises.
(b) Licensee shall give Licensor immediate notice to Licensor's Resource
Operations Center at (800) 832-5452 of any release of hazardous substances on
or from the Premises, violation of Environmental. Laws, or inspection or inquiry by
governmental authorities charged with enforcing Environmental Laws with
respect to Licensee's use of the Premises. Licensee shall use the best efforts
to promptly respond to any release on or from the Premises. Licensee also shall
give Licensor immediate notice of all measures undertaken on behalf of
Licensee to investigate, remediate, respond to or otherwise cure such release or
violation.
(c) In the event that Licensor has notice from Licensee or otherwise of a release or
violation of Environmental Laws on the Premises which occurred or may occur
during the term of this License, Licensor may require Licensee, at Licensee's
sole risk and expense, to take timely measures to investigate, remediate,
respond to or otherwise cure such release or violation affecting the Premises or
Licensor's right-of-way.
(d) Licensee shall promptly report to Licensor in writing any conditions or activities
upon the Premises which create a risk of harm to persons, property or the
environment and shall take whatever action is necessary to prevent injury to
persons or property arising out of such conditions or activities; provided,
however, that Licensee's reporting to Licensor shall not relieve Licensee of any
obligation whatsoever imposed on it by this License. Licensee shall promptly
respond to Licensor's request for information regarding said conditions or
activities.
ALTERATIONS
23. Licensee may not make any alterations to the Premises or permanently affix anything to
the Premises or any buildings or other structures adjacent to the Premises without
Licensor's prior written consent.
Form 424 Rev. 03/20/02 11 of 14
02-23613
NO WARRANTIES
24. LICENSOR'S DUTIES AND WARRANTIES ARE LIMITED TO THOSE EXPRESSLY
STATED IN THIS LICENSE AND SHALL NOT INCLUDE ANY IMPLIED DUTIES OR
IMPLIED WARRANTIES, NOW OR IN THE FUTURE. NO REPRESENTATIONS OR
WARRANTIES HAVE BEEN MADE BY LICENSOR OTHER THAN THOSE
CONTAINED IN THIS LICENSE. LICENSEE HEREBY WAIVES ANY AND ALL
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PREMISES OR
WHICH MAY EXIST BY OPERATION OF LAW OR IN EQUITY, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, HABITABILITY
OR FITNESS FOR A PARTICULAR PURPOSE.
QUIET ENJOYMENT
25. LICENSOR DOES NOT WARRANT ITS TITLE TO THE PROPERTY NOR
UNDERTAKE TO DEFEND LICENSEE IN THE PEACEABLE POSSESSION OR USE
THEREOF. NO COVENANT OF QUIET ENJOYMENT IS MADE.
DEFAULT
26. 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. 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 26 shall be in addition to,
and not in limitation of, any other remedies that Licensor may have at law or in equity.
LIENS
27. 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 Premises. Licensor is hereby authorized to post any notices or take any other action
upon or with respect to Premises that is or may be permitted by law to prevent the
attachment of any such liens to Premises; provided, however, that failure of Licensor to
take any such action shall not relieve Licensee of any obligation or liability under this
Section 27 or any other Section of this License.
TERMINATION
28. This License may be terminated by Licensor, at any time, by serving thirty (30) days'
written notice of termination upon Licensee. This License may be terminated by
Licensee upon execution of Licensor's Mutual Termination Letter Agreement then in
effect. Upon expiration of the time specified in such notice, this License and all rights of
Licensee shall absolutely cease.
Form 424 Rev. 03/20/02 12 of 14
02-23613
29. If Licensee fails to surrender to Licensor the Premises, upon any termination of this
License, all liabilities and obligations of Licensee hereunder shall continue in effect until
the Premises are surrendered. Termination shall not release Licensee from any liability
or obligation, whether of indemnity or otherwise, resulting from any events happening
prior to the date of termination.
ASSIGNMENT
30. 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, which may be
withheld in Licensor's sole discretion.
NOTICES
31. Any notice required or permitted to be given hereunder by one party to the other shall be
in writing and the same shall be given and shall be deemed to have been served and
given if (i) placed in the United States mail, certified, return receipt requested, or (ii)
deposited into the custody of a nationally recognized overnight delivery service,
addressed to the party to be notified at the address for such party specified below, or to
such other address as the party to be notified may designate by giving the other party
no less than thirty (30) days' advance written notice of such change in address.
If to Licensor: Staubach Global Services
5650 N. Riverside Drive, Suite 101
Ft. Worth, Texas 76137
Attn: Licenses/Permits
with a copy to: The Burlington Northern and Santa Fe Railway Company
2500 Lou Menk Dr. — A0133
Ft. Worth, Texas 76131
Attn: Director Real Estate
If to Licensee: City of Lubbock
Office of Street/Drainage Engineering
P.O. Box 2000
Lubbock, Texas 79457
SURVIVAL
32. Neither termination nor expiration will release either party from any liability or obligation
under this License, whether of indemnity or otherwise, resulting from any acts,
omissions or events happening prior to the date of termination or expiration, or, if later,
the date when the PIPE LINE and improvements are removed and the Premises are
restored to its condition as of the Effective Date.
RECORDATION
33. It is understood and agreed that this License shall not be placed on public record.
Form 424 Rev. 03/20/02 13 of 14
02-23613
APPLICABLE LAW
34. All questions concerning the interpretation or application of provisions of this License
shall be decided according to the laws of the State of Texas.
SEVERABILITY
35. 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.
INTEGRATION
36. This License is the full and complete agreement between Licensor and Licensee with
respect to all matters relating to Licensee's use of the Premises, and supersedes any
and all other agreements between the parties hereto relating to Licensee's use of the
Premises as described herein. However, nothing herein is intended to terminate any
surviving obligation of Licensee or Licensee's obligation to defend and hold Licensor
harmless in any prior written agreement between the parties.
MISCELLANEOUS
37. 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.
38. 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.
IN WITNESS WHEREOF, this License has been duly executed, in duplicate, by the
parties hereto as of the day and year first above written.
ATTEST THE BURLINGTON NORTHERN AND SANTA FE RAILWAY
COMPANY
Staubach Global Services, Inc., its Attorney in Fact
QL4�`4 5650 N. Riverside Drive, Suite 101
Rebecca Garza, City tyi ty SecFetary Fort Worth, TX r
By: —� ) � ,/—
APPROVED AS TO CONTENT: Mike 5vAng, Director o ermits and Leases
C7�-- CITY OF LUBBOCK
000
Ed Bucy, Right -o -Way Agent P.O. Box
Lubbock,.Texas
s 79457
APPROVED AS TO FORM
By:
—ee—Title: MARC MCDOUGA , ,. AI(QR
Linda Chamales
Supervising Attorney/Office'Practice
Forth 424 Rev. 03/20/02 14 of 14
TRACKING NO. 02-23613
EXHIBIT "A"
ATTACHED TO CONTRACT BETWEEN
THE BURLINGTON NORTHERN AND SANTA FE RAILWAY
AND
CITY OF LUBBOCK
FORT WORTH, TEXAS SECTION:
SCALE: 1 IN.=400 FT. TOWNSHIP: -
KANSAS DIV. RANGE:
SLATON SUBDIV. L.S. 7106
DATE 05/24/2002
yl it
V
` ,i$';,il"
TO LUBBOCK ,ii.io. 41 55
PROPERTY LINE
CARRIER
VENTS: NUMBER - SIZE -
NEAR LUBBOCK
COUNTY OF LUBBOCK
HIGH�WAYw-84y
MP 683.79
ES 1008956
DESCRIPTION OF PIPELINE
PIPELINE SHOWN BOLD
PROPERTY LINE
COMPANY
V— TX -6
MAP 30
PARCEL
.....n....wwwn-
...... ......
TO SWEETWATER
CASING
PIPE
SIZE:
36"
CONTENTS:
SEWER
PIPE MATERIAL:
PIPE
SPECIFICATION / GRADE:
R18
WALL THICKNESS:
0.777
COATING:
N/A
VENTS: NUMBER - SIZE -
NEAR LUBBOCK
COUNTY OF LUBBOCK
HIGH�WAYw-84y
MP 683.79
ES 1008956
DESCRIPTION OF PIPELINE
PIPELINE SHOWN BOLD
PROPERTY LINE
COMPANY
V— TX -6
MAP 30
PARCEL
.....n....wwwn-
...... ......
TO SWEETWATER
CASING
CARRIER
CASING
PIPE
PIPE
PIPE
42
LENGTH ON R/W:
122'
122`
WORKING PRESSURE:
90 PSI
STEEL
BURY: BASE/RAIL TO TOP
OF CASI1TG1-0
-
GR -B
"
BURY: NATURAL GROUND3
- r -
0. 563
BURY: ROADWAY DITCHES
N/A
CATHODIC PROTECTION
NSA
HEIGHT OF VENT ABOVE GROUND -
NOTE: CASING TO BE JACKED OR DRY BORED ONLY
STATE OF TX
CER
DRAWING NO. 1-281-M,