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HomeMy WebLinkAbout1996-123A \SRAIL ORD ORDINANCE NO AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AUTHORIZING THE MAYOR TO EXECUTE A CONTRACT BETWEEN THE CITY OF DENTON AND THE KANSAS CITY SOUTHERN RAILWAY COMPANY FOR WIRE CROSSING, AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR, AND PROVIDING AN EFFECTIVE DATE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION I That the Mayor is hereby authorized to execute, on behalf of the City, a contract between the City of Denton and the Kansas City Southern Railway Company for the construction and maintenance of wires across the right of way and tracks of the railway company, a copy of which is attached hereto and incorporated by reference herein SECTION II That the expenditure of funds as set forth in the Contract is hereby authorized SECTION III That this ordinance shall become effective immediately upon its passage and approval PASSED AND APPROVED this the day of , 1996 P JACK LLER, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY BY 9ftn APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY WIRE CROSSING CONTRACT THIS AGREEMENT, made and entered into this 15th day of April, 1996, by and between THE KANSAS CITY SOUTHERN RAILWAY COMPANY, a corporation hereinafter referred to as "Railway Company", and CITY OF DENTON, TEXAS, to be addressed at 215 East McKinney Street, Denton, Texas 76201, hereinafter referred to as the "Licensee" WITNESSETH WHEREAS, the Licensee desire& to construct and maintain wires, hereinafter described, across the right of way and tracks of the Railway Company and across the telephone, telegraph, signal and other wires of the Railway Company and The Western Union Telegraph Company, the latter wires being hereinafter referred to as "Company wires", NOW, THEREFORE, IT IS AGREED AS FOLLOWS 1 iPERMIT -OR CROSSING For the sole conven.r nce and accommodation of the Licensee and at its sole risk and expense, and in consideration of the covenants of the Licensee hereinafter set forth, the Railway Company hereby permits the Licensee to construct, maintain and operate a crossing (herein referred to as wire crossing) consisting of proposed overhead 13.2 KV power line crossing Railway property and tracks at M P. D-103 2+/-, as Indicated in red on print of Drawing No 997-152, dated 2/16/96, marked Exhibit "A", attached to and made a part hereof 2 SPECIFICATIONS. The wires shall be placed, and at all times maintained, so as to give a minimum clearance of twenty-eight (28) feet above the rails in the tracks of the Railway Company, allowing for sag, and so as to clear the Company wires at least two (2) feet The Licensee shall, at its own expense, erect and maintain its poles and wires in accordance with the latest revised rules, orders, recommendations or specifications adopted by the National Electrical Safety Code of the Bureau of Standards for overhead railway crossings by light and power transmission Imes 3 Material and workmanship shall be satisfactory to the Railway Company's authorized representative, both as to renewal and repair Should Railway Company consider it necessary or desirable to supervise the installation or removal of wire line or to provide flagging protection of its trams during such installation or removal, Licensor shall provide such supervision or flagging protection and Licensee shall reimburse Licensor for Its reasonable costs and expenses All expense in connection with the crossing, including its construction, renewal and repair, shall be borne by the Licensee 4 POLES- The Licensee shall not erect or cause to be erected any poles, anchors or guy wires upon the right of way of the Railway Company except as indicated upon the attached exhibit, and which poles, anchors and guy wires shall not be placed nearer than twelve (12) feet from the nearest rail of any main track or nearer than seven (7) feet from the nearest rail of any side track 5. MAINTENANCE The Licensee shall maintain the wire crossing to conform to the requirements of Section 2 hereof, and shall make frequent inspections of the crossing for that purpose If it shall come to the attention of the Railway Company that the same is not being so maintained, the Licensee will, on written request of the Railway Company, at any time, promptly make such renewals or repairs In wire crossing as shall be designated by the Railway Company, and if the Licensee fails within ten 110) days to comply with such request, the Railway Company may make such renewals and repairs, the cost of which the Licensee agrees to pay, or the Railway Company may, at its option, wholly remove the crossing wires, and the supporting structures, conduits and appurtenances from the right of way. 8 ADDITIONAL WIRES OF LICENSEE. In the event the Licensee desires to install additional wires at the crossing In the locations hereinbefore described on the same poles, or towers, or in the same conduits, hereinbefore provided for, it shall notify the Railway Company and the installation of same shall be subject to the consent and approval in writing of the Railway Company, and all such additional wires shall be placed and erected in accordance with the aforesaid specification and this contract 7, CHANGES HEREAFTER MADE BY RAILWAY COMPANY If at any time during the term of this agreement, it shall become necessary or desirable for the Railway Company to build additional track or tracks, depots, yards, or any other structure that may be necessary or desirable in connection with the operation and maintenance of the Railway Company, or to change the grade or location of Its track or tracks, or If changes In or additions to the Company wires or poles used in connection therewith shall become necessary, or if it shall become necessary to do any work to comply with the requirements of the Railway Company, or with the demands which may hereafter by law be prescribed with reference to the crossing, the Licensee shall, at its own cost and expense, within thirty (30) days after receipt of written notice from the Railway Company so to do, relocate, rearrange, reconstruct or revise the,wire crossing in such manner as to conform to the requirements of the Railway Company 8 CONSIDERATION, INDEMNITY In consideration of the license and permission harem granted, and to the extent permitted by law the Licensee assumes and agrees to indemnify and hold harmless the Railway Company and other companies operating trains over its tracks from any claims or demands (whether arising in or based upon tort, contract, strict liability, or otherwise) made by any and all persons for accidents or injuries arising from or growing out of the presence, use and operation of the Ucensee's poles, towers, wires and appurtenances on the Railway Company's right of way, or from the escape of current therefrom and from any payments which the Railway Company and other companies, or any of them, may make to its or their employees and their beneficiaries, or any of them under the provisions of any compensation law or other similar law or under the provisions of any plan for employees' benefits adopted by the Railway Company and other companies, or any of them, in settlement for accidents or injuries arising from or growing out of the failure of the Licensee to construct and maintain the wire crossing as herein provided Licensee shall indemnify the aforementioned companies as provided in this paragraph unless such loss arises out of the sole negligence of those companies The Licensee recognizes the danger incident to the operation of trams over the tracks of the Railway Company in the vicinity of the wire crossing, and agrees to adopt and enforce upon its employees engaged in constructing, reconstructing or maintaining the wire crossing proper rules and regulations for their safety while on or near such tracks To the extend permitted by law, the Licensee assumes all liability for injuries to all persons engaged in such work and agrees to indemnify and hold harmless the Railway Company and other companies operating trams over its tracks from any liability for such injuries except when the same is caused by the negligence of the Railway Company or such other companies, its or their employees The Licensee agrees to reimburse and pay the Railway Company, or such other companies, any judgments, costs, and expenses or amounts paid out in settlement, which they or any of them may be put to or may be compelled to pay on account of any claims arising under licensee's duty of indemnification This agreement is made in part for the benefit of other companies operating over the Railway Company's tracks and any of the companies may sue to enforce the provisions hereof, either jointly or severally, as their interests may be joint or several None of the companies shall be liable for any damage (except that willfully done) to the wire crossing, however caused 9 OTHERS NOT TO USE- The Licensee shall not permit others to install wires in the crossing, but if done, then the obligations, duties and liabilities harem imposed upon the Licensee shall be the 2 same as to such wires, as though they were the wires of the Licensee 10 TAXES The Licensee shall promptly pay all taxes, assessments and other governmental or municipal charges upon its property located upon the right of way of the Railway Company and comply with all governmental or municipal rules and regulations covering the operation of electrical transmission lines of the character constructed, erected or operated hereunder 11 ENGINEERING AND ACCOUNTING EXPENSE Licensee agrees to pay for use of Licensor's right-of-way and the privilege hereby granted, the sum of TWO HUNDRED FIFTY AND NO1100 DOLLARS ($250 00) upon execution of this contract As additional consideration for the privileges granted hereby, should Railway Company in the future require power for its signal facilities in the area of the aforementioned installation, Licensee shall, upon request from the Railway Company, provide transformer and power drop to serve the signal facilities 12 TERM This permit shall continue so long a-, the wire t.rossmg of the Licensee does not interfere with the property or the development, enlargement or improvement of the property of the Railway Company, or in the opinion of the Chief Engineer of the Railway Company the wire crossing does not constitute a hazard to Railway Company's property or employees If and when the Railway Company shall require the removal of the wire crossing and another mutually satisfactory location can be found upon the Railway Company's right of way, then the wire crossing shall be moved by the Licensee promptly and at Its own expense to such new location However, if another location mutually satisfactory cannot be found for the wire crossing, then the same shall, within thirty (30) days after notice thereof to the Licensee, be removed from the Railway Company's right of way by the Licensee at its own expense If at any time the Licensee shall fad to maintain its wire crossing as harem required, or such wire crossing shall, in the opinion of the Railway Company's Chief Engineer, become a hazard to its property or to its employees, then the wire crossing shall be relocated, as hereinbefore provided, or shall be removed from the Railway Company's premises within thirty (30) days after notice from the Railway Company to remove the wire crossing Neither the service of the notice herein provided for, nor the termination of this License shall operate in any manner whatsoever to relieve or release the Licensee from any obligations or liability to the Railway Company theretofore accruing under the terms hereof Upon the termination of this agreement in any manner the Licensee shall immediately remove its property from the premises of the Railway Company, and in the event of its failure so to do, the Railway Company may remove the same at the cost of the Licensee Rights herein granted are personal and not assignable without Railway Company's written consent However, the provisions of this Agreement shall be binding upon the successors and assigns of both of the parties 13. If the operation or maintenance of the wire line shall at any time cause interference, including, but not limited to, physical interference from electromagnetic induction, electrostatic induction, or from stray or other currents with the facilities of Railway Company or of any lessee or licensee of Railway Company, or in any manner Interferes with the operation, maintenance or use by Railway Company of its right of way, tracks, structures, pole Imes, signal and communication lines, radio or other equipment, devices, other property or appurtenances thereto, Licensee agrees immediately to make such changes in its own lines and furnish such protective devices to Railway Company and its lessees or licensees as shall be necessary in the Judgment of Railway Company's representative to eliminate such interference The cost of such protective equipment and its installation shall be borne solely by the Licensee. In the event that the methods above set forth fail to eliminate such Interference, and It is deemed necessary by the proper officer of Railway Company having jurisdiction therein that any or all facilities of Radway Company or of any lessee or licensee thereof shall be relocated, reconstructed or otherwise changed, the entire cost of such changes shall be borne by the Licensee The current due to electrostatic effects shall not exceed 5 0 milliamperes, rms, to ground In the event it is determined that such current, at any time, exceeds 5 0 milliamperes, rms, Railway Company shall have the right to require such installation or modification as may be necessary to reduce the current to 6 0 milliamperes, rms, or less, and the entire cost of the installation or modification shall be borne by the Licensee. 14. ENVIRONMENTAL CLAUSE. The Licensee shall not permit hazardous waste, hazardous substances or hazardous materials on or In the area covered by this agreement without the written consent of the Railway The Licensee shall at all times keep the area covered by this agreement in a safe, clean and sanitary condition, and shall not mutilate, damage, misuse, alter or permit waste therein Should any discharge, leakage, spillage or emission of any hazardous waste, hazardous substance or hazardous material or pollution of any kind occur upon, in, Into, under or from the area covered by this agreement due to the Licensee's use and occupancy thereof, the Licensee, at its sole cost and expense, shall clean all property affected thereby, to the satisfaction of the Railway and any governmental body having jurisdiction thereover The Licensee shall comply with all applicable ordinances, rules, regulations, requirements and laws whatsoever including (by way of illustration only and not by way of limitation) any governmental authority or court controlling environmental standards and conditions on the premises and shall furnish satisfactory evidence of such compliance upon request by the Railway if, as a result of the Licensee's operation hereunder, any such ordinance, rule, regulation, requirement, decree, consent decree, judgment, permit or law Is violated, or if, as a result of any action by the Licensee, any hazardous or toxic waste, materials or substances should enter or otherwise affect any part of the area covered by this agreement (including surface, subsurface, airborne and/or ground contamination), to the extent permitted by law, the Licensee shall protect, save harmless, defend and indemnify the Railway from and against any penalties, fines, costs, response, remedial, removal and clean-up costs, corrective action, natural resource damage and damages and expenses of any other nature whatsoever, including legal fees and court costs, Imposed upon or incurred by the Railway, caused by, resulting from or in connection with such violation or violations For the purposes of this Environmental Section, and to the extent permitted by law, the Licensee agrees to defend, indemnify and hold harmless the Railway from and against any and all claims, demands, actions, liability, responsibility and causes of action (whether arising in or out of tort, contract, strict liability, or otherwise) asserted against them for death, injury, loss or damage resulting to the Railway's employees or property, or to the Licensee or the Licensee's employees or property, or to any other persons or their property, and for all penalties, fines, costs, response, removal, remedial and clean up costs, corrective action, natural resource damage and damages and expenses of any other nature whatsoever, including legal fees and court costs, arising from, related to or happening in connection with the breach of the duties, obligations and responsibilities of Licensee and its agents, servants, employees, contractors and representatives under paragraph 15 of this Agreement For the purposes of this Environmental Section, the Licensee further agrees that its obligation of indemnity hereunder pursuant to this section shall be strict and absolute, and shall remain in full force and affect irrespective of any negligence on the part of the Railway , except th t this indemnity should not apply where the harm or circumstance arises out of the sole negligence of the Railway Company. 15 So long as this Agreement is in effect Licensee agrees to maintain comprehensive, general, and contractual liability insurance with minimum limits of $1,000,000 per occurrence, together with umbrella coverage over all policies in the minimum amount of $5,000,000 In addition, Licensee shall provide or require minimum statutory workmen's compensation coverage for all covered employees who are on Licensee's property. A certificate of Insurance will be provided to Licensor by Licensee prior to installing the wire line licensed under this Agreement Licensor agrees that Licensee may satisfy its obligation to provide minimum insurance through a self-insurance program so long as* (1) Licensee's Insurance program complies with all applicable laws and regulations, (2) Licensee's program is operated and maintained in a reasonable and prudent manner and (3) Licensee's self-insurance program is primarily responsible for loss payments due under the terms of this Agreement 16 Licensee agrees to furnish Licensor with a certified copy of resolution or ordinance adopted by the City of Denton authorizing the Mayor and City Clerk to execute this contract on behalf of the City IN WITNESS WHEREOF, the parties hereto have executed this agreement in duplicate on the day and year hereinabove first written THE KANSAS CITY SOUTHERN RAILWAY COMPANY Approved; V P and Chief Engineer Title Senior V P - Operations Approved as to form. CITY OF DENTON, TEXAS Legal Department 5 N-- nµry uu �m „ y ""wren" kw uIwIYIh IViRm tIINI a'riiwui iu Fn x... X G'°. rpluuWi.... �Ar. e uum uw WIw'gllrv°g.,y.r E To Cleburne gd>ME awl EW GGpCa� MGllgpl �I���' CII rvlrvien r V �NN� itl� w1k' �'"7 rvw rvwrvllllWIM"J7",9�'"""�t'lpllui�lummwuirvllmy��"ppa'IH� '"Mhtt —Propo°°d Pcl° M.t on K C 5 R/WI Fmww eowWwwmawuuwlW, m+ry IIIIVmi uuwwwW� 7LR/W Sto 5450+65-/- • M P D-103 2-/- OVERHEAD WIRE CROSSING TELEPHONE WIRES 28 FEET ANY OVERHEAD OBSTRUCTION 28 FEET ELECTRIC LIGHT AND POWER WIRES CARRYING LESS THAN 750 VOLTS 28 FEET 750 TO 15,000 VOLTS 28 FEET 15,000 TO 50,000 VOLTS 30 FEET MORE THAN 50,000 VOLTS, 30 FEET PLUS I'2 INCH FOR EACH 1000 VOLTS IN EXCESS OF 50,000 (KV'S — 50 X 0411 + 30' NOTE PROPOSED OVERHEAD WIRE CROSSINGS SHALL BE MEASURED FROM TOP OF RAIL ram' ours' y��wdwmmwww.� � 115 'II �Inu� �Iluryi R/W + DISPA91% CIA Lt °NWtltll�u �lol?P"'9K°9WoH°°W' N6"p'y7'9�•�" —K C S Main Line (old A T S F) No 49 VA O .11 t*7 To Dalton Jct Propo °d Pole eRge lNot on K C 5 R/W) � y, S /' �n 04 �GI F,l°r /u.rl/nvvnt/km 1°/°ngdr°r/u/demon/mist/997 152 dqn REVISIONS EXHIBIT "A" THE KANSAS CITY SOUTHERN RY CO Proposed overhead 13 2 .KV Power Line Crossing at Mile Past D-103 2+/- in Denton, Texas AWN BY DATE K 1 2-16-96 1"=100' SEC SHEET NO 1 of 1 DRAWING NO 997-152 THE KANSAS CITY SOUTHERN RAILWAY COMPANY 114 WEST ELEVENTH STREET Beverly 7 Wmdere Admm Mgr Engr (816) 556 0I47 Mr. Jerry Drake City Attorney City of Denton, Texas Municipal Building Denton, TX 76201 Dear Mr. Drake. KANSAS CITY, MISSOURI 54105 1804 July 22, 1996 For your records I am enclosing executed copy of Wire Crossing Contract dated April 15, 1996 entered into between the KCS Railway Company and the City of Denton, Texas, covering proposed overhead 13.2 KV power line at M.P. D-103.2± in Denton, Texas. BJW/pd 996 3UL 2 � 1 Yours truly, B J Winders Admin Mgr - Engr.