HomeMy WebLinkAboutResolution - 3983 - License - ATSFRC - Sewage Pipline Across Railway Property - 10/06/1992Resolution No. 3983
October 6, 1992
Item #9
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 as Permittee therein a License for a 9 -inch sewage
pipeline across railway property by and between the City of Lubbock and
Atchison, Topeka and Santa Fe Railway Company for one pipeline facility to
be constructed, owned, operated and maintained by said City of Lubbock
across said Railroad's right-of-way at mile post 679 + 5018.1, Lubbock
Subdivision, attached herewith, which shall be spread upon the minutes of
the Council and as spread upon the minutes of this Council shall constitute
and be a part of this Resolution as if fully copied herein in detail.
Passed by the City Council this 6t day October , 1992.
ATTEST:
ane tte Boyd, city secretary
APPROVED AS TO CONTENT:
Ed Bucy, Right -o -W y Agent
APPROVED AS TO FORM:
P.
Y-a-�
Harold ar ssistant City Attorney
HW:da/AGENDA-D3/WATERP1P.res
September 17, 1992
Resolution No. 3983
October 6, 1992
Item 469
11028019
PIPE LINE LICENSE
THIS LICENSE, Made this 15th day of September, 1992, between THE
ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a Delaware corporation
(hereinafter called "Licensor"), party of the first part, and CITY OF LUBBOCK, TEXAS, a
municipal corporation of the State of Texas (hereinafter, whether one or more, called
"Licensee"), party of the second part.
WITNESSETH, That the parties hereto for the consideration hereinafter
expressed covenant and agree as follows:
1. Subject to the terms and conditions hereinafter set forth, Licensor licenses
Licensee to construct and maintain one (1) pipe line, 9.05 inches in diameter (hereinafter,
whether one or more pipe lines, called the "PIPE LINE"), across or along the right-of-way of
Licensor at or near the station of Burris, Lubbock County, Texas, the exact location of the PIPE
LINE being more particularly shown by bold line upon the print hereto attached, No. 1-02275,
dated August 7, 1992, marked "Exhibit A" and made a part hereof.
2. Licensee shall use the PIPE LINE solely for carrying sewage and shall not
use it to carry any other commodity or for any other purpose whatsoever.
(a) Licensee covenants that it will not handle or transport through the PIPE
LINE on Licensor's property "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. In the event the Pipe Line is now or in the future used
in handling, or transporting of "hazardous waste" or "hazardous substances", Licensee agrees
fully to comply with all applicable federal, state, and local laws, rules, regulations, orders,
decisions and ordinances (hereinafter referred to as "Standards") concerning "hazardous waste"
and "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; but any waiver by Licensor of any breach of Licensee's
obligations shall not constitute a waiver of the right to terminate this License for any subsequent
breach which may occur, or to enforce any other provision of this License. Upon termination,
Licensee shall remove the PIPE LINE and restore Licensor's property as herein elsewhere
provided.
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(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 liability for and to save
and hold harmless Licensor from and against all injuries to any person and damage to property,
including without limitation, employes 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" and/or "hazardous waste". 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 waste" or "hazardous substances" on the property of
Licensor.
(c) It is understood and agreed that a Licensee who does not now, or in the
future, generate, handle, transport, treat, store or dispose of on Licensor's property "hazardous
waste" or "hazardous substances" within the meaning of the Section, is not subject to the
provisions of Section 2 (b) hereof.
3. Licensee shall pay Licensor as compensation for this license the sum of
Seven Hundred Fifty and No/100 Dollars ($750.00).
4. Licensee shall, at its own cost and subject to the supervision and control of
Licensor's chief engineer, locate, construct and maintain the PIPE LINE in such a manner and
of such material that it will not at any time be a source of danger to or interference with the
present or future tracks, roadbed and property of Licensor, or the safe operation of its railroad.
In cases where the Licensee is permitted under paragraph 2 hereof to use the PIPE LINE for oil,
gas, petroleum products, or other flammable or highly volatile substances under pressure, the
PIPE LINE shall be constructed, installed and thereafter maintained in conformity with the plans
and specifications shown on print hereto attached in such cases, marked Exhibit B and made a
part hereof. If at any time Licensee shall, in the judgment of Licensor, fail to perform properly
its obligations under this paragraph, Licensor may, at its option, itself perform such work as it
deems necessary for the safe operation of its railroad, and in such event Licensee agrees to pay,
within fifteen (15) days after bill shall have been rendered therefor, the cost so incurred by
Licensor, but failure on the part of Licensor to perform the obligations of Licensee shall not
release Licensee from liability hereunder for loss or damage occasioned thereby.
5. Licensee shall reimburse Licensor for any expense incurred by Licensor for
false work to support Licensor's tracks and for flagman to protect its traffic during installation
of the PIPE LINE and for any and all other expense incurred by Licensor on account of the
PIPE LINE.
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6. Licensee shall at all times indemnify and save harmless Licensor against and
pay in full all loss, damage, or expense that Licensor may sustain, incur or become liable for,
resulting in any manner from the construction, maintenance, use, state of repair, or presence of
the PIPE LINE, including any such loss, damage or expense arising out of (a) loss of or damage
to property, (b) injury to or death of persons, (c) mechanics' or other liens of any character, or
(d) taxes or assessments of any kind. It is the intention of the parties that Licensor's right to
indemnity hereunder shall be valid and enforceable against Licensee regardless of negligence
(whether active, passive, derivative, joint, concurring or comparative) on the part of Licensor,
its officers, agents and employees.
7. If at any time Licensee shall fail or refuse to comply with or carry out any
of the covenants herein contained Licensor may at its election forthwith revoke this license.
8. This license is given by Licensor and accepted by Licensee upon the express
condition that the same may be terminated at any time by either party upon ten (10) days' notice
in writing to be served upon the other party, stating therein the date that such termination shall
take place, and that upon the termination of this license in this or any other manner herein
provided, Licensee, upon demand of Licensor, shall abandon the use of the PIPE LINE and
remove the same and restore the right-of-way and tracks of Licensor to the same condition in
which they were prior to the placing of the PIPE LINE thereunder. In case Licensee shall fail
to restore Licensor's premises as aforesaid within ten (10) days after the effective date of
termination, Licensor may proceed with such work at the expense of Licensee. No termination
hereof shall release Licensee from any liability or obligation hereunder, whether of indemnity
or otherwise, resulting from any acts, omissions or events happening prior to the date the PIPE
LINE is removed and the right-of-way and track of Licensor restored as above provided.
9. In the case of the eviction of Licensee by anyone owning or obtaining title
to the premises on which the PIPE LINE is located, or the sale or abandonment by Licensor of
said premises, Licensor shall not be liable to Licensee for any damage of any nature whatsoever
or to refund any payment made by Licensee to Licensor hereunder, except the proportionate part
of any recurring rental charge which may have been paid hereunder in advance.
10. Any notice hereunder to be given by Licensor to Licensee shall be deemed
to be properly served if it be deposited in the United States Mail, postage prepaid, addressed to
Licensee at P. O. Box 2000, Lubbock, Texas 79457. Any notice to be given hereunder by
Licensee to Licensor shall be deemed to be properly served if the same be deposited in the
United States Mail, postage prepaid, addressed to Licensor's Asset Management Department at
P. O. Box 1738, Topeka, Kansas 66601-1738.
11. In the event that two or more parties execute this instrument as Licensee,
all the covenants and agreements of Licensee in this license shall be the joint and several
covenants and agreements of such parties.
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12. All the covenants and provisions of this instrument shall be binding upon and
inure to the benefit of the successors, legal representatives and assigns of the parties to the same
extent and effect as the same are binding upon and inure to the benefit of the parties hereto, but
no assignment hereof by Licensee, its successors, legal representatives or assigns, or any
subsequent assignee, shall be binding upon Licensor without the written consent of Licensor in
each instance.
13. Notwithstanding any other provisions of this license, Licensee shall comply
with all statutes, ordinances, rules, regulations, orders and decisions (hereinafter referred to as
"Standards"), issued by any federal, state or local governmental body or agency established
thereby (hereinafter referred to as "Authority"), relating to Licensee's use of Licensor's property
hereunder. In its use of the premises, Licensee shall at all times be in full compliance with all
Standards, present or future, set by any Authority, including, but not limited to, Standards
concerning air quality, water quality, noise, hazardous substances and hazardous waste. In the
event Licensee fails to be in full compliance with Standards set by any Authority, Licensor may,
after giving reasonable notice of the failure to Licensee, and Licensee, within thirty (30) days
of such notice, fails either to correct such non-compliance or to give written notice to the
Licensor of its intent to contest the allegation of non-compliance before the Authority
establishing the Standard or in any other proper forum, take whatever action is necessary to
protect the premises and Licensor's railroad and other adjacent property. Licensee shall
reimburse the Licensor for all costs (including but not limited to, consulting, engineering,
clean-up and disposal costs, and legal costs) incurred by the Licensor in complying with such
Standards, and also such costs incurred by the Licensor in abating a violation of such Standards,
protecting against a threatened violation of such Standards, defending any claim of violation of
such Standards in any proceeding before any Authority or court, and paying any fines or
penalties imposed for such violations. Licensee shall assume liability for and shall save and hold
harmless the Licensor from any claim of a violation of such Standards regardless of the nature
thereof or the Authority or person asserting such claim, which results from Licensee's use of
Licensor's premises, whether such claim arises in whole or in part from the negligence or
alleged negligence of the Licensor or otherwise. Licensee, at its cost, shall assume the defense
of all such claims regardless of whether they are asserted against Licensee or Licensor.
14. Upon written notice from Licensor, Licensee agrees to assume the defense
of any lawsuit, administrative action or other proceeding brought against Licensor by any public
body, individual, partnership, corporation, or other legal entity, relating to any matter covered
by this License for which Licensee has an obligation to assume liability for and/or to save and
hold harmless the Licensor. Licensee shall pay all the costs incident to such defense, including,
but not limited to, attorneys' fees, investigators' fees, litigation expenses, settlement payments,
and amounts paid in satisfaction of judgments. Any and all lawsuits or administrative actions
brought or threatened on any theory of relief available at law, in equity or under the rules of any
administrative agency shall be covered by this section, including, but not limited to, the theories
of intentional misconduct, negligence, breach of statute or ordinance, or upon any theory created
by statute or ordinance, state or federal.
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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
CITY OF
By
�
Title
Asst. Director -Asset Management
Title Mayor -City of Lubbock
3-4-85-1658/210V.WP5 - 5 -
2228/lt/ 11028019.497
FILE NO.
EXHIBIT "A"
ATTACHED TO CONTRACT BETWEEN
THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY
AND
C/TY Of L UBBOC.C.
TOPEKA, KANSAS
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DESCRIPTION OF PIPELINE
PIPELINE SHOWN BOLD
nI*
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TO
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CARRIER
CASING CARRIER CASING
PIPE
PIPE PIPE PIPE
SIZE:
9. os "
�� LENGTH ON R/W: -?4067' 00
CONTENTS:/9
WORKING PRESSURE: mss/
PIPE MATERIAL:
ieo..i
S>EEL BURY: BASE/RAIL TO TOP OF CASING
SPECFICATNON / GRADE:
.e BURY: NATURAL GROUND 3 "
WALL THX30ESS:
O•,?70"
o.,?�/ BURY: ROADWAY DITCHES -3 "
COATINNQ
CATHODIC PROTECTION
VENTS: NUMBER SIZE Z HEIGHT
OF VENT ABOVE GROUND .4' -
'-NOTE:
NOTE: CASING TO BE JACKED OR DRY BORED ONLY
LI�.BBOCiC
COU�/Ty
TEX/9S DRAWING NO. 1 - 0,7.27--5'
DIV. DWG NO.
DIV. FILE NO. G. M. FILE NO. //D-1 PO/9