HomeMy WebLinkAboutResolution - 2012-R0062 - Pipeline Lease Agreement - BNSF Railway Company - 02/09/2012Resolution No. 2012-R0062
February 9, 2012
Item No. 5.7
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock is hereby authorized and directed to
execute for and on behalf of the City of Lubbock, a Pipeline License Agreement, by and
between the City of Lubbock and BNSF Railway Company, and related documents. Said
Agreement 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 on February 9, 2012
TOM MARTIN, MAYOR
ATTEST:
Rebs a Garza, City Secreta
APPROVED AS TO CONTENT:
1 C,
Marsha Ree�PE.�,hief�Or,erating
APPROVED S TO FORM:
Chad Weaver, Assistant City Attorney
vw:ccdocsfRES.Agreerncnt-BNSF
January 19, 2012
Tracking #11-43699
PIPELINE LICENSE
THIS LICENSE ("License"), made as of the 5`h day of March, 2012, ("Effective Date") by
and between BNSF RAILWAY COMPANY, a Delaware corporation ("Licensor") and CITY OF
LUBBOCK, TEXAS, a Texas 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 Frights, interests, and
estates of third parties, including, without limitation, any leases, use rights, 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) concrete Pipeline, 10x10 feet in diameter ("PIPELINE"), across or along the rail
corridor of Licensor at or near the station of Lubbock, County of Lubbock, State of Texas,
Line Segment 7107, Mile Post 87.16, as shown on the attached Drawing No. 1-52861,
dated October 1, 2011, attached hereto as Exhibit "A" and made a part hereof ("Premises").
Prior to construction Licensee agrees to obtain review and approval of detailed design by
BNSF Structures.
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 PIPELINE in
accordance with the Drawings and Specifications carrying stormwater. Licensee shall not
use the PIPELINE to carry any other commodity or use the Premises for any other purpose.
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
PIPELINE on Licensor's property. Licensee 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 PIPELINE and restore Licensor's property as herein elsewhere provided.
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.
Form 424; Rev. 04/26105
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Tracking #11-43699
5. Any contractors or subcontractors performing work on the PIPELINE 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 Three Thousand
and No/100 Dollars ($3,000.00) as compensation for the use of the Premises.
(b) Licensee agrees to reimburse Licensor (within thirty (30) days after receipt of bills
therefor) 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 PIPELINE, including but not limited to the furnishing of Licensor's Flagman and
any vehicle rental costs incurred. The cost of flagger services provided by the
Railway, when deemed necessary by the Railway's representative, will be borne by
the Licensee. The estimated cost for one (1) flagger is $800.00 for an eight (8) hour
basic day with time and one-half or double time for overtime, rest days and holidays.
The estimated cost for each flagger includes vacation allowance, paid holidays,
Railway and unemployment insurance, public liability and property damage
insurance, health and welfare benefits, transportation, meals, lodging and
supervision. Negotiations for Railway labor or collective bargaining agreements and
rate changes authorized by appropriate Federal authorities may increase actual or
estimated flagging rates. The flagging rate in effect at the time of performance by
the Contractor hereunder will be used to calculate the actual costs of flagging
pursuant to this paragraph.
(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 Joumal 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 (2 112%), or (b) twelve percent (12%), or (ii) the maximum rate
permitted by law, whichever is less.
COMPLIANCE WITH LAWS
8. (a) Licensee shall observe and comply with any and all laws, statutes, regulations,
ordinances, orders, covenants, restrictions, or decisions of any court of competent
jurisdiction ("Legal Requirements") relating to the construction, maintenance, and
use of the PIPELINE and the use of the Premises.
Form 424, Rev. 04/26/05
WA
Tracking #11-43699
(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 following 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 500 Main Street, telephone (806)-
765-3955 or cell phone (940) 447-2490, at least ten (10) business days prior to
installation of the PIPELINE 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. 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
Form 424; Rev. 04126/05
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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 PIPELINE
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.
Licensor may direct one of its field engineers to observe or inspect the construction
and/or maintenance of the PIPELINE at any time for compliance with the Drawings
and Specifications. If ordered at any time to halt construction or maintenance of the
PIPELINE 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 PIPELINE, it being solely Licensee's
responsibility to ensure that the PIPELINE 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 PIPELINE,
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. The construction of
the PIPELINE shall be completed within one (1) year of the Effective Date. Upon
completion of the construction of the PIPELINE 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
PIPELINE, Licensee shall, at its sole expense, within thirty (30) days after receiving written
notice from Licensor to such effect, make such changes in the PIPELINE 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 PIPELINE(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
Form 424; Rev. 04126/05
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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
PIPELINE, 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 PIPELINE. 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 26 -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;
(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.
Form 424; Rev. 04/26/05
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Tracking #11 A3699
18. Licensee's on-site supervisions shall retain/maintain a fully executed copy of this License at
all times while on the Premises.
I-11T_T4l411 CA
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) LICENSEES OCCUPATION AND USE OF THE PREMISES,
(iv) THE ENVIRONMENTAL CONDITION AND STATUS OF THE
PREMISES CAUSED BY OR CONTRIBUTED 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,
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
Form 424; Rev. 04/26105
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Tracking #11-43699
PIPELINE 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, OR 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
Ijabjlity 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.
(e) Notwithstanding the terms of this Section 19, nothing in this License shall be
construed as a waiver by the Licensee of any rights, immunities, privileges,
monetary limitations to judgments and defenses available to the Licensee under
common law or the applicable provisions of the Texas Constitution and statutes,
including, without limitation, Article 3, Section 52 of the Texas Constitution.
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.
Form 424: Rev. 04126/05
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Tracking #11-43699
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:
The employee and workers compensation related exclusions in the above policy
shall not apply with respect to claims related to railroad employees.
♦ 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:
♦ 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 $5,000,000 per occurrence and
$10,000,000 in the aggregate. The coverage obtained under this policy shall only
be effective during the initial installation and/or construction of the PIPELINE. THE
CONSTRUCTION OF THE PIPELINE SHALL BE COMPLETED WITHIN ONE (1)
YEAR OF THE EFFECTIVE DATE. If further maintenance of the PIPELINE is
needed at a later date, an additional Railroad Protective Liability Insurance Policy
shall be required. The policy shall be issued on a standard ISO form CG 00 35 10
93 and include the following:
Form 424; Rev. 04/26/05
Tracking #1143699
♦ Endorsed to include the Pollution Exclusion Amendment (ISO form CG 28 31 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 $1,000.00.
X I elect to participate in Licensor's Blanket Policy;
o I elect not to participate in Licensor's Blanket Policy.
Other Requirements:
Where allowable by law, 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.
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, Contractor's Pollution
Legal Liability and if applicable, Railroad Protective) shall include a severability of interest
endorsement and shall name Licensor and Staubach Global Services - RR, Inc. as an
additional insured with respect to work performed under this agreement. Severability of
interest and naming Licensor and Staubach Global Services - RR, Inc. as additional
insureds shall be indicated on the certificate of insurance.
Licensee is not allowed to self -insure without the prior written consent of Licensor. If
granted by Licensor, any deductible, self-insured retention or other financial responsibility
for claims shall be covered directly by Licensee in lieu of insurance. Any and all Licensor
liabilities that would otherwise, in accordance with the provisions of this Agreement, be
covered by Licensee's insurance will be covered as if Licensee elected not to include a
deductible, self-insured retention, or other financial responsibility for claims.
Form 424; Rev. 04/26105
IM
Tracking #11-43699
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. 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. In the event of a claim or lawsuit involving Railroad arising out of this agreement,
Licensee will make available any required policy covering such claim or lawsuit.
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 represents 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.
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", "BNSF 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
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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 arising in any way with respect to the PIPELINE
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 known to Licensee 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.
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 DEFEND LICENSEE IN THE PEACEABLE
COVENANT OF QUIET ENJOYMENT IS MADE.
ii!
TO THE PROPERTY NOR UNDERTAKE
POSSESSION OR USE THEREOF. NO
Form 424; Rev. 04/26/05
Tracking #11-43699
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 AND CHARGES
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. Licensee shall pay when due any taxes, assessments or other
charges (collectively, "Taxes") levied or assessed upon the Improvements by any
governmental or quasi -governmental body or any Taxes levied or assessed against
Licensor or the Premises that are attributable to the Improvements.
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.
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
Form 424; Rev. 04/26/05
-12-
Tracking #11-43699
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 - RR, Inc.
3017 Lou Menk Drive, Suite 100
Fort Worth, TX 76131-2800
Attn: Licenses/Permits
with a copy to: BNSF Railway Company
2500 Lou Menk Dr. — A0133
Fort. Worth, TX 76131
Attn: Manager — Land Revenue Management
If to Licensee: City of Lubbock, Texas
P.O. Box 2000
Lubbock, TX 70457
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
PIPELINE 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.
APPLICABLE LAW
34. All questions concerning the interpretation or application of provisions of this License shall
be decided according to the substantive laws of the State of Texas without regard to
conflicts of law provisions.
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
Form 424; Rev. 04/26/05
-13-
Tracking #11-43699
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.
Staubach Global Services -RR, Inc. is acting as representative for BNSF Railway Company,
IN WITNESS WHEREOF, this License has been duly executed, in duplicate, by the parties
hereto as of the day and year first above written.
BNSF RAILWAY COMPANY
Staubach Global Services -RR, Inc.,
its Attorney in Fact
3017 Lou Menk Drive, Suite 100
Fort Worth, Texas 76131-2800
By: `-
Ed Darter,
Title: Vice President National Accounts
CITY OF LUBBOCK, TEXAS
P.O. Box 2000
Lubbock, Texas 79457
By.
Title: Tom Martin, Mayor
ATTEST:
Reb"eca Garza, City Secreta
APPROVED AS TO NTENT:
Michael G. Keenum, Storm Water Engineer
APP 0 D TO FORM:
Chad Weaver, Assistant City Attorney
Form 424; Rev. 04126/05
-14-
TRACKING NO. 11-43699
EXHIBIT NA~
ATTACHED TO CONTRACT BETWEEN
BNSF RAILWAY COMPANY
AND
CITY OF LUBBOCK, TEXAS
SCALE: 1 IN.= 100 FT.
KANSAS DIV.
SLATON SUBDIV. L.S. �1QI
DATE 10/01/2011
fry
v
TO TEXICO
72, .-
�
PROPERTY LINE
SECTION: - �tsF Ry
TOWNSHIP• TX -OS
RANGE:
MERIDIAN: - 01
PROPERTY LINE
TO TECIFFC
::-- TA:�
- 4
I
MP 87.16
I ES 363.84
i
ti
NOTE'
DESCRIPTION OF PIPELINE
CROSSING IS 10'x10'
Box CULVERT.
CONCRETE
PIPELINE 5HOWN BOLD
PROPERTY LINE
SECTION: - �tsF Ry
TOWNSHIP• TX -OS
RANGE:
MERIDIAN: - 01
PROPERTY LINE
TO TECIFFC
::-- TA:�
- 4
I
MP 87.16
I ES 363.84
i
ti
NOTE'
DESCRIPTION OF PIPELINE
CROSSING IS 10'x10'
Box CULVERT.
CONCRETE
PIPELINE 5HOWN BOLD
CARRIER
CASING
CARRIER CASING
BOX
PIPE
BOX PIPE
SIZE:
i ol xi 0'
- LENGTH ON R/W:
_ 100' -
CONTENTS:
STORMWATER
WORKING PRESSURE:
8 PSI
PIPE MATERIAL:ON�,,.CRETE
- BURY: BASE/RAIL TO TDP
OF CASING. 3�
SPECIFICATION/GRADE: ASTM Q 5 7 7
- BURY: NATURAL GROUND
WALL THICKNESS:
10�
- BURY: ROADWAY DITCHES
COATING:
-
- CATHODIC PROTECTION
-
VENTS: NUMBER - SIZE - HEIGHT OF VENT ABOVE GROUND
NOTE: CASING TO BE JACKED OR DRY BORED ONLY
AT LUBBOCK
COUNTY OF LUBBOCK
STATE OF TX
JWD
DRAWING NO. 1- 52861
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