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HomeMy WebLinkAboutResolution - 5005 - Agreement - AT & SF Railway Company - Private Road Across Railway Property - 11/09/1995Resolution No. 5005 November 9, 1995 Item #12 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 an Agreement for a private road crossing across railway property by and between the City of Lubbock and the Atchison, Topeka & Santa Fe Railway Company to be constructed, owned, operated and maintained by said City of Lubbock across said Railroad's right-of-way at mile post 0 + 4992, attached hereto, which shall be spread upon the minutes of the Council and as spread upon the minutes of this Council shall constitute and be a part of this Resolution as if fully copied herein in detail. APPROVED AS TO CONTENT: Ed Bucy, Right -of --Way Xgent APPROVED AS TO FORM: old Willard, Assistant City Attorney HW.js/AT&SFR.RES ccdocs/August 31, 1995 Resolution No. 5005 November 9, 1995 Item 412 Form Approved by VP -Law 11020822 AGREEMENT FOR PRIVATE CROSSING AGREEMENT, Made this 17th day of August, 1995, between THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a Delaware corporation (hereinafter called the "Railway Company"), party of the first part; and CITY OF LUBBOCK, TEXAS, a municipal corporation of the State of Texas (hereinafter whether one or more persons or corporations called the "Second Party"), party of the second part. RECITALS: The Second Party has requested of the Railway Company permission to cross, for private purposes the rail corridor and tracks of the Railway Company at or near Railway Company's station of Lubbock, County of Lubbock, State of Texas, at the location and in the manner shown upon the print hereto attached, No. 1-05272, dated August 3, 1995, marked "Exhibit A," and made a part hereof, which permission the Railway Company is willing to grant upon conditions hereinafter set forth. ARTICLE I AGREEMENT: In consideration of the covenants of the Second Party hereinafter set forth, the Railway Company hereby agrees to maintain, upon its rail corridor, except as set forth elsewhere herein, at the location shown on Exhibit A, a private road crossing, and gives Second Party a non-exclusive license and permission to construct said crossing and enter upon and cross Railway Company's rail corridor and tracks. For convenience, said crossing, including crossing surface and all appurtenances thereto between the ends of railroad ties, cattle guards, farm gates or barriers, drainage facilities, traffic signs or devices, cattle guards, farm gates or barriers, drainage facilities, traffic signs or devices, identification signs approved by the Railway Company, whistling posts, or other appurtenances, if any, are hereinafter collectively referred to as the "Crossing." ARTICLE II In consideration of the foregoing license and permission given by the Railway Company the Second Party hereby agrees: 1. To pay to Railway Company in advance consideration payment in the amount of $150.00. 08/12/94/015 IV 2. To construct and maintain the crossing and pay all expense incurred by Railway Company in the event there is an immediate necessity to remove and replace the Crossing in connection with resurfacing or maintaining Railway Company's right of way and tracks. 3. To pay to the Railway Company the entire cost of constructing, installing, performing, maintaining, repairing, renewing, and replacing any cattle guards, farm gates or barriers, track drainage facilities, traffic signs or devices, whistle posts, stop signs or other appurtenances shown on Exhibit "A", or any such appurtenances or warning signs and devices that may subsequently be required to be upgraded by the Railway Company, by law, by change of volume and nature of vehicular traffic, or by any public authority having jurisdiction. The Second Party is also responsible for notifying Railway Company in writing of any need for upgrading the vehicular traffic control devices or signs at or near the crossing, since the Second Party is most knowledgeable concerning the volume and nature of the vehicular traffic. In addition, Second Party shall notify Railway Company if any significant change in volume or nature of traffic at the crossing. 4. Second Party, at its own expense, shall keep the rail flange ways of said Crossing clear of all snow, dirt, or any other obstructions whatsoever, which may accumulate by virtue of vehicles, equipment, or from machinery crossing thereover or otherwise, and shall remove and keep removed any vegetation along the rail corridor on each side of the crossing so that the motorists' line of sight to approaching trains is not impaired or obstructed by vegetation. 5. It is specifically understood that cables, pipelines, and other electric and/or fiber optic transmission lines may be on, about, along, or under Railway Company's property and Second Party agrees that under no circumstances will Second Party dig in or disturb the surface of Railway Company's property. 6. Second Party shall construct and maintain, at its own expense, a roadway (to end of railroad ties) and related roadway drainage in a manner acceptable to Railway Company, and safe for use by any vehicles or equipment. 7. To keep any crossing gates, farm gates or barriers (consisting of a bar, cable gate or chain between posts on both sides of the Railroad rail corridor and straddling the roadway), closed and securely fastened, except when being opened to allow access upon said rail corridor. 8. While this Agreement is personal to Second Party, it is recognized that there is a possibility of the Crossing being used by unauthorized persons, and said Second Party agrees that for the purposes of this agreement all persons using the Crossing shall be deemed the agents of the Second Party. -2- 02/07/94/0151 V 9. (a) Except as set forth in Section 9 (b), Second Party shall indemnify and hold harmless Railway Company for all losses, damages, injuries, death and expenses, including lost profits, and consultant and attorney fees, arising in any manner out of the failure of Second Party to take any action required by this Agreement, the condition of the Crossing or any equipment or property thereon, or any act or omission of Second Party or Second Party's Invitees, except to the extent of proximately caused by Railway Company's negligence, to the extent provided by law. (b) Whenever Second Party or any of Second Party's Invitees make any claim for personal injury or death against Railway Company (for any incident caused, wholly or in part, by property, equipment or condition belonging to or under the control of Second Party), or claims or alleges that he or she is an employee of Railway Company or is furthering the operational activities of Railway Company within the meaning of the Federal Employers' Liability Act, or any applicable safety act, (45 U.S.C. §1 et. seq. ), Second Party agrees to indemnify and hold harmless Railway Company for all losses, damages, costs or expenses related to such claim, regardless of Railway Company's negligence. 10. In the event of termination of this license as set forth in Article III, Railway Company may remove the Crossing and restore the rail corridor to the condition as of the date of this agreement at Second Party's expense and without incurring any liability to the Second Party. 11. (a) Second Party shall comply with all federal, state and local environmental laws and regulations in its use of Crossing, 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). Second Party shall not release or suffer the release of oil or hazardous substances, as defined by CERCLA, on Crossing. Notwithstanding any other requirements in this Agreement, Second Party assumes all responsibility for the investigation and cleanup of such release and shall indemnify and defend Railway Company and its agents for all costs and claims, including consultant and attorney fees, arising in any manner out of such release or Second Party's failure to comply with environmental laws, regardless of Railway Company's negligence, except to the extent such costs or claims are proximately caused by Railway Company's affirmative negligent act, or its gross negligence or intentional misconduct, to the extent provided by law. (b) Second Party shall give Railway Company timely notice of any release, violation of environmental laws or inspection or inquiry by governmental authorities charged with enforcing environmental laws with respect to Railway Company's rail corridor. Second Party also shall give Railway Company timely notice of all measures undertaken by or on behalf of Second Party to investigate, remediate, respond to or otherwise cure such release or violation. -3- 02/07/94/0151 V (c) In the event that Railway Company receives notice from Second Party or otherwise of a release or violation of environmental laws which occurred or is occurring during the term of this Agreement, Railway Company may require Second Party, at Second Party's sole expense, to take timely measures to investigate, remediate, respond to or otherwise cure such release or violation. 12. In lieu of Railway Company's standard insurance requirement, Railway Company accepts Second Party's self-insured declaration per Second Party's attached Resolution. ARTICLE III 1. Rights granted to the Second Party are subject and subordinate to the prior and continuing right and obligation of the Railway Company to use and maintain its entire rail corridor, and are also subject to the right and power of the Railway Company to construct, maintain, repair, renew, use, operate, change, modify or relocate railroad tracks, signal, communication, fiber optics or other wire lines, pipelines and other facilities upon, along, or across any or all parts of said rail corridor, any of which may be freely done at any time by the Railway Company without liability to the Second Party or to any other party for compensation or damages. 2. The Second Party's rights are also subject to all outstanding rights (including those in favor of the Second Party and others), and subject to any easements, licenses or easements granted by Santa Fe, or of record, so long as such agreements do not interfere with Second Party's ability to use Crossing, and the right of the Railway Company to renew and extend same, and are granted without covenant of title or quiet enjoyment. 3. It is expressly stipulated that the Crossing is to be a strictly private one, to be solely used for City employees and is not intended for public use. The Second Party, without expense to the Railway Company, will take any and all necessary action to preserve the private character of the Crossing and prevent its use as a public road. 4. It is mutually agreed that this Agreement may be terminated by either party upon ten (10) days' notice in writing to be served upon the opposite party; and upon the expiration of the time specified in such notice this Agreement, and all rights and privileges of the Second Party thereunder shall absolutely cease. No termination hereof shall release the Second Party from any liability or obligation hereunder, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or, if later, the date when the crossing is removed and the rail corridor restored to its condition at the date of this agreement. -4- o2io7i94/0151 V 5. Any notice to be given by the Railway Company to the Second Party hereunder shall be deemed to be properly served if the same be deposited in the United States mail, postage prepaid, addressed to the Second Party, Attention: Right -of -Way Agent at P. O. Box 2000, Lubbock, Texas 79457. Any notice to be given by the Second Party to the Railway Company hereunder shall be deemed to be properly served if it be deposited in the United States mail, postage prepaid, addressed to Railway Company's Asset Management Department, P. O. Box 1738, Topeka, Kansas 66601-1738. 6. In the event that Second Party consists of two or more parties, all the covenants and agreements of Second Party herein contained shall be the joint and several covenants and agreements of such parties. 7. It is understood and agreed that this Agreement shall not be filed in the Real Property records of Lubbock County, Texas. 8. All the covenants and provisions of this Agreement shall be binding upon the heirs, legal representatives, successors and assigns of Second Party. No assignment by Second Party of any interest in this Agreement shall be binding upon Railway Company without the prior written consent of Railway Company in each instance. 9. All questions concerning the interpretation or application of provisions of this Agreement shall be decided according to the laws of the State in which the Crossing is located. 10. To the maximum extent possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement 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 Agreement. 11. The waiver by Railway Company of the breach of any provision herein by Second Party shall in no way impair the right of Railway Company to enforce that provision for any subsequent breach thereof. 12. This Agreement is the full and complete agreement between Railway Company and Second Party with respect to all matters relating to use of the Crossing, and supersedes any and all other agreements between the parties hereto relating to use of the Crossing. -5- 02/07/94/0151 V IN WITNESS WHEREOF, the parties have executed this agreement in duplicate the day and year first above written. THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY By Title Ass+� . E• re . -d : .r � swr �. L:cnt (Railway Company) Title Mayor, City Of Lubbock (Second Party) ATTEST: Betty M. Johnson, City Secretary APPROVED AS TO CONTENT: Ed Bucy, Right -of -Way Agent APPROVEDOR Harold Willard, Assistant City Attorney 02/07/94/0151V -6- 11020822.987/2226 6- 11020822.987/2226 A.M. FILE NO.11020822 EXHIBIT "A" ATTACHED TO CONTRACT BETWEEN THE ATCHISON. TOPEKA AND SANTA FE RAILWAY COMPANY AND CITY OF LUBBOCK V-15 MAP 1 PARCEL TOPEKA. KANSAS SCALE: 1 IN. _ 1QFT. LUBBOCK SUBDIV. DATE 08/03/1995 ,..,,mlra1.!!I ....._...... __._. ►t: I TO MAIN TRK. I @ MP 673.82 I PROPERTY LINE DESCRIPTION: A 24 FT. PRIVATE ROAD CROSSING SHOWN SHADED. INCLUDING TWO 13—B SIGNS. AT LUBBOCK COUNTY OF LUBBOCK STATE OF TX CTF A.M. DRAWING N0. 1- 05272 0 Lo Fl - Lo Lo t W CL m JCR: da RFIM IITTf)N Resolution #2672 October 22, 1987 Agenda Item #29 A RESOLUTION AMENDING RESOLUTION NO. 2481 BY REPEALING SECTION 5 THEREOF WHICH ADOPTED SELF INSURANCE COVERAGE FOR THE CITY OF LUBBOCK AS PROVIDED BY THE TEXAS MUNICIPAL LEAGUE JOINT SELF INSURANCE FUND AND IN ITS STEAD ADOPTING A NEW STATEMENT OF COVERAGE FOR THE CITY OF LUBBOCK LIABILITY SELF INSURANCE PROGRAM. WHEREAS, the City of Lubbock did heretofore by Resolution No. 2481 create the City of Lubbock's Self Insurance Fund; and WHEREAS, in said Resolution No. 2481 the City of Lubbock did adopt as its standard coverage a coverage heretofore provided by the Texas Municipal League Joint Self Insurance Fund; and WHEREAS, the City of Lubbock deems it to be in the best interest of the City of Lubbock to repeal the coverage adopted under Resolution No. 2481 and in its stead to substitute a new statement of coverage for the City of Lubbock Self Insurance Fund; NOW THEREFORE: BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: SECTION 1. THAT Section 5 of Resolution No. 2481 adopting the Texas Municipal League Joint Self Insurance Fund as the coverage document for the Lubbock Self Insurance Fund is hereby in all things repealed. SECTION 2. THAT the City of Lubbock Statement of Coverage Liability Self Insurance Program attached to this Resolution as Exhibit A and made a part hereof for all purposes is hereby adopted as the coverage to be afforded under the City of Lubbock Self Insurance Fund. SECTION 3. Save and Except as herein repealed or amended, Resolution No. 2481 shall remain in full force and effect. Passed by the City Council this 22nd Ranett&Boyd, City Secretary APPROVED AS TO CONTENT: &A-2ZO&,0,4,e,, 1,2_1000 Robert Massengale Assistant City Manager for Financial Services APPROVED AS T�\��R(�I 4L C-- J`61Yh C. Ross, Jr., City At orney day of October , 1987. ,<f, (f - /* - e B.C. McMINN, MAYOR THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY One Santa Fe Plaza 920 Southeast Quincy Street Topeka, Kansas 66612-1116 November 21, 1995 11020822 Mr. Ed Bucy Right -of -Way Agent City of Lubbock P. O. Box 2000 Lubbock, TX 79457 Dear Mr. Bucy: P.O. Box 1738 Topeka, Kansas 66601-1738 Santa Fe Enclosed for your records is fully executed Agreement for Private Crossing covering crossing at Mile Post 0+4992, Lubbock, Texas. Contract No. 190148 has been assigned to this Agreement. Please reference this Contract No. in any future correspondence pertaining to this Agreement. This acknowledges receipt of Check No. 0050832 dated October 27, 1995 in the amount of $150.00. If you have any questions concerning this matter, please contact Karen Meredith for assistance, at telephone (913) 435-2111. Sincerely, E. R. Spangler Asst. Director -Asset Management Enclosure A Santa Fe Pacific Company