HomeMy WebLinkAbout24-2399ORDINANCE NO. 24-2399
AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING THE CITY MANAGER TO
EXECUTE A HIGHWAY OVERPASS WIDENING AGREEMENT (“HOWA”) BY AND
BETWEEN THE CITY OF DENTON (“CITY”) AND THE KANSAS CITY SOUTHERN
RAILROAD COMPANY D/B/A CPKC (“KCSRR”) RELATING TO THE CONSTRUCTION
OF HICKORY CREEK ROAD WITHIN THE RAILROAD RIGHT-OF-WAY LOCATED AT
KCSRR MILEPOST MM99.54 (ALLIANCE SUBDIVISION), WITHIN THE COUNTY AND
CITY OF DENTON, TEXAS; PROVIDING FOR THE EXPENDITURE OF FUNDS NOT TO
EXCEED THE AMOUNT OF ONE HUNDRED SIXTY THOUSAND DOLLARS ($160,000.00)
AND OTHER GOOD AND VALUABLE CONSIDERATION FOR THE LICENSE
AGREEMENT FOR HIGHWAY OVERPASS; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, Hickory Creek Road is a City owned street currently crossing the tracks owned
by the KCSRR at-grade, hereinafter referred to as “At-Grade-Crossing”, located at DOT crossing
021696C, Railroad Milepost 99.54 (Alliance Subdivision) and Railroad Station 5255+13.43 in the
City of Denton, Denton County, Texas; and
WHEREAS, City has requested a license for the construction, operation, maintenance, and
removal of a highway overpass to build a bridge over and across the At-Grade-Crossing to replace
the existing At-Grade-Crossing with a four-lane divided Hickory Creek Road with sidewalks over the
KCSRR property hereinafter identified as the “Bridge” at the same location as the existing Roadway
described above that is to be established pursuant to the HOWA (the “Project”); and
WHEREAS, KCSRR is the owner of the railroad right of way described in the legal description
and exhibit attached hereto and incorporated below by reference, which right of way is to be crossed
by the overpass to be constructed pursuant to the HOWA; and
WHEREAS, the City intends to close the At-Grade-Crossing promptly following the opening
of the Bridge for public use; and
WHEREAS, KCSRR is willing to cooperate with the City in the accomplishment of the
Project in the interest of public improvement and the safety and protection of the traveling public;
and
WHEREAS, the City will prepare the designs, plans and specifications for construction of the
proposed Project at its own cost; and
WHEREAS, On April 16, 2024, City Council authorized Ordinance No. 24-172 for a license
agreement authorizing the City, subject to the terms and conditions of such license agreement, to enter
upon the KCSRR’s property in order construct, inspect, maintain, and remove the bridge within the
licensed area of the KCSRR’s property and granting the City an aerial license for said Bridge crossing
of the Railroad’s right-of-way; and
WHEREAS, the City Council having considered the importance of the Project to the
citizens of Denton and finding that it is in the public’s health and safety interest, is of the opinion
that it should approve the Agreement; and
NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The recitals contained in the preamble of this ordinance are hereby incorporated into
the body of this ordinance are true and correct.
SECTION 2. The City Manager, or designee, is hereby authorized to execute on behalf of the City
the Highway Overpass Agreement with Kcsm, a copy of which is attached hereto as Exhibit "
A’' and made a part hereof for all purposes.
SECTION 3. The City Manager, or designee, is authorized to expend funds an amount not to
exceed One Hundred Sixty Thousand And 00/100 Dollars ($160,000.00) for the At-Grade-
Crossing to replace the existing At-Grade-Crossing with a four-lane divided Hickory Creek Road
with sidewalks over the KCSRR.
SECTION 4. The City Manager, or designee, is further authorized to carry out all obligations and
duties of the City as set forth in the Agreement, including but not limited to the expenditure of
funds
SECTION 5. That this ordinance shall become effective immediately upon its passage and
approval.
[Signatures to appear on the following page.]
The motion to approve this ordinance was made by Brian Beck and seconded by Joe Holland; the
ordinance was passed and approved by the following vote [ 7 - 0 ] :
Aye
X
X
X
X
X
X
X
Nay Abstain Absent
Mayor Gerard Hudspeth :
Vicki Byrd, District 1 :
Brian Beck, District 2:
Paul Meltzer, District 3 :
Joe Holland, District 4:
Brandon Chase McGee, At Large Place 5 :
Jill Jester, At Large Place 6:
PASSED AND APPROVED this the 17th day of December, 2024.
DN
ATTEST:
LAUREN THODEN, CITY SECRETARY t\\\\\ tIll III
JIbM
=CK REIN IAND. CIa ATTORkEY
BN.. gQ,& b). SmyMe dd
ORDINANCE NO. 24-2399
AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING THE CITY MANAGER TO
EXECUTE A HIGHWAY OVERPASS WIDENING AGREEMENT (“HOWA”) BY AND
BETWEEN THE CITY OF DENTON (“CITY”) AND THE KANSAS CITY SOUTHERN
RAILROAD COMPANY D/B/A CPKC (“KCSRR”) RELATING TO THE CONSTRUCTION
OF HICKORY CREEK ROAD WITHIN THE RAILROAD RIGHT-OF-WAY LOCATED AT
KCSRR MILEPOST MM99.54 (ALLIANCE SUBDIVISION), WITHIN THE COUNTY AND
CITY OF DENTON, TEXAS; PROVIDING FOR THE EXPENDITURE OF FUNDS NOT TO
EXCEED THE AMOUNT OF ONE HUNDRED SIXTY THOUSAND DOLLARS ($160,000.00)
AND OTHER GOOD AND VALUABLE CONSIDERATION FOR THE LICENSE
AGREEMENT FOR HIGHWAY OVERPASS; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, Hickory Creek Road is a City owned street currently crossing the tracks owned
by the KCSRR at-grade, hereinafter referred to as “At-Grade-Crossing”, located at DOT crossing
021696C, Railroad Milepost 99.54 (Alliance Subdivision) and Railroad Station 5255+13.43 in the
City of Denton, Denton County, Texas; and
WHEREAS, City has requested a license for the construction, operation, maintenance, and
removal of a highway overpass to build a bridge over and across the At-Grade-Crossing to replace
the existing At-Grade-Crossing with a four-lane divided Hickory Creek Road with sidewalks over the
KCSRR property hereinafter identified as the “Bridge” at the same location as the existing Roadway
described above that is to be established pursuant to the HOWA (the “Project”); and
WHEREAS, KCSRR is the owner of the railroad right of way described in the legal description
and exhibit attached hereto and incorporated below by reference, which right of way is to be crossed
by the overpass to be constructed pursuant to the HOWA; and
WHEREAS, the City intends to close the At-Grade-Crossing promptly following the opening
of the Bridge for public use; and
WHEREAS, KCSRR is willing to cooperate with the City in the accomplishment of the
Project in the interest of public improvement and the safety and protection of the traveling public;
and
WHEREAS, the City will prepare the designs, plans and specifications for construction of the
proposed Project at its own cost; and
WHEREAS, On April 16, 2024, City Council authorized Ordinance No. 24-172 for a license
agreement authorizing the City, subject to the terms and conditions of such license agreement, to enter
upon the KCSRR’s property in order construct, inspect, maintain, and remove the bridge within the
licensed area of the KCSRR’s property and granting the City an aerial license for said Bridge crossing
of the Railroad’s right-of-way; and
WHEREAS, the City Council having considered the importance of the Project to the
citizens of Denton and finding that it is in the public’s health and safety interest, is of the opinion
that it should approve the Agreement; and
Docusign Envelope ID: E54EA750-8842-44CF-AFE7-770E7051618ADocusign Envelope ID: 0CBD937F-DC1F-4844-95C0-D979238BA6A4
NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The recitals contained in the preamble of this ordinance are hereby incorporated into
the body of this ordinance are true and correct.
SECTION 2. The City Manager, or designee, is hereby authorized to execute on behalf of the City
the Highway Overpass Agreement with Kcsm, a copy of which is attached hereto as Exhibit "
A" and made a part hereof for all purposes.
SECTION 3. The City Manager, or designee, is authorized to expend funds an amount not to
exceed One Hundred Sixty Thousand And 00/100 Dollars ($160,000.00) for the At-Grade-
Crossing to replace the existing At-Grade-Crossing with a four-lane divided Hickory Creek Road
with sidewalks over the KCSRR.
SECTION 4. The City Manager, or designee, is further authorized to carry out all obligations and
duties of the City as set forth in the Agreement, including but not limited to the expenditure of
funds
SECTION 5. That this ordinance shall become effective immediately upon its passage and
approval.
[Signatures to appear on the following page.]
Docusign Envelope ID: E54EA750-8842-44CF-AFE7-770E7051618ADocusign Envelope ID: 0CBD937F-DC1F-4844-95C0-D979238BA6A4
The motion to approve this ordinance was made by Brian Beck and seconded by Joe Holland; the
ordinance was passed and approved by the following vote [ 7 - 0 ] :
Aye
X
X
X
X
X
X
X
Nay Abstain Absent
Mayor Gerard Hudspeth:
Vicki Byrd, District 1 :
Brian Beck. District 2:
Paul Meltzer. District 3 :
Joe Holland. District 4:
Brandon Chase McGee, At Large Place 5 :
Jill Jester, At Large Place 6:
PASSED AND APPROVED this the 17th day of December, 2024.
nixT61mmrwA–Y–m
ATTEST:
LAUREN THODEN, CITY SECRETARY b\\\\tIll IIII
NaIDeh dvM
(\TJ£=k{;AILDtIF#/T/JJNEY
BX.. au$Myth D). S@@e dd
Docusign Envelope ID: E54EA750-8842-44CF-AFE7-770E7051618ADocusign Envelope ID: 0CBD937F-DC1F-4844-95C0-D979238BA6A4
EXHIBIT A to the Ordinance
(Highway Overpass Widening Agreement)
Docusign Envelope ID: E54EA750-8842-44CF-AFE7-770E7051618ADocusign Envelope ID: 0CBD937F-DC1F-4844-95C0-D979238BA6A4
Construction and Maintenance Agreement Page 1 of 19
Hickory Creek Road Overpass, City Project No. 19351
DOT 021-696C, RRMP D99.54, KCS Station 5255+13.43
Denton County
City Project No. 19351
DOT 021-696C, RRMP D99.54, KCS Station 5255+13.43
Hickory Creek Road Overpass
Denton, TX
Alliance Subdivision
HIGHWAY OVERPASS WIDENING AGREEMENT
This AGREEMENT made and entered into on the dates hereinafter shown as being fully
executed, by and between the City of Denton hereinafter called the “City”, and The Kansas City
Southern Railway Company, d/b/a CPKC, a Missouri corporation, hereinafter called the
“Railroad”, acting by and through its official contracting executives (City and Railroad each being
sometimes referred to herein as a “Party” or two or more together as “Parties”).
W I T N E S S E T H
WHEREAS, Hickory Creek Road is a City owned street, hereinafter referred to as the
“Roadway”, currently crossing the tracks owned by the Railroad at-grade, hereinafter referred to
as “At-Grade-Crossing”, at DOT crossing 021696C, Railroad Milepost 99.54 (Alliance
Subdivision) and Railroad Station 5255+13.43 in the City of Denton, Denton County, Texas; and,
WHEREAS, the City proposes to build a bridge over and across the At-Grade-Crossing to
replace the existing At-Grade-Crossing with a four-lane divided Hickory Creek Road with
sidewalks over the Railroad property hereinafter identified as the “Bridge” at the same location
as the existing Roadway described above; and,
WHEREAS, the City intends to close the At-Grade-Crossing promptly following the
opening of the Bridge for public use; and,
WHEREAS, all work related to the construction of the Bridge, removal of At-Grade-
Crossing, removal of existing signals and gates at the At-Grade-Crossing, and all miscellaneous
work related to the work described above is hereinafter referred to as the “Project”; and,
WHEREAS, the RAILROAD is willing to cooperate with the City in the accomplishment of
the Project in the interest of public improvement and the safety and protection of the traveling
public; and,
WHEREAS, the City will prepare the designs, plans and specifications for construction of
the proposed Project at its own cost; and,
WHEREAS, the final set of plans of the Project, approved by the City and the Railroad,
shall be marked Exhibit A, attached hereto and made a part hereof; and,
WHEREAS, the City and the Railroad have entered into a license agreement authorizing
the City, subject to the terms and conditions of such license agreement, to enter upon the
Docusign Envelope ID: E54EA750-8842-44CF-AFE7-770E7051618ADocusign Envelope ID: 0CBD937F-DC1F-4844-95C0-D979238BA6A4
Construction and Maintenance Agreement Page 2 of 19
Hickory Creek Road Overpass, City Project No. 19351
DOT 021-696C, RRMP D99.54, KCS Station 5255+13.43
Railroad’s property in order construct, inspect, maintain, and remove the Bridge within the
licensed area of the Railroad’s property and granting the City an aerial license for said Bridge
crossing of the Railroad’s right-of-way, hereinafter collectively called the Railroad Property, as
show in Exhibit B, but not including permission to install a temporary construction crossing across
the tracks without a written permission from the Railroad as required in subpart n.12 in Article 4
of this Agreement; and,
WHEREAS, on May 20, 2020, the City and the Railroad entered into a Railroad
Preliminary Engineering Contract (“PE Agreement”), authorizing reimbursement to the Railroad
for actual costs that are incurred for collaborating with the City to review and approve the Bridge
plans and other preliminary activities and to develop this Agreement, with the PE Agreement
attached hereto and made a part hereof as Exhibit C; and,
WHEREAS, the approved Railroad force account cost estimate—which includes the
amounts from the PE Agreement, construction inspections of the Project, construction support
services, adjustments done by the Railroad at the At-Grade-Crossing, and other activities
performed by the Railroad to complete the Project—is marked as Exhibit D, attached hereto and
made a part hereof; and,
WHEREAS, the contractor hired by the City to construct the Project (“Contractor”) will
require a right of entry permit from the Railroad to perform the work inside the Railroad’s right-of-
way and shall execute the Railroad’s Contractor Right-of-Entry Agreement, a sample of which is
marked as Exhibit E, attached hereto and made a part hereof; and,
WHEREAS, all work to be performed and all materials to be provided in connection with
the Project shall be at the City’s expense unless specifically identified herein;
A G R E E M E N T
NOW THEREFORE, in consideration of the premises and of mutual covenants and
agreements of the Parties hereto, to be by them respectively kept and performed as hereinafter
set forth, it is agreed as follows:
Article 1. Agreement Period
Upon execution by all Parties, this Agreement will be in effect and continue thereafter for
so long as the Railroad Property shall be used by the City for the purposes set forth herein;
provided, however, if the City shall abandon the use of the Railroad Property, or any part thereof,
for such purposes, the rights and privileges granted hereby as to the portion or portions so
abandoned shall expire and terminate at the time each such portion shall be so abandoned;
whereupon the Railroad shall have the same complete title to the Railroad Property so abandoned
as though these presents had never been executed and the right to enter thereon and exclude
therefrom the City, its successors, and assigns.
Docusign Envelope ID: E54EA750-8842-44CF-AFE7-770E7051618ADocusign Envelope ID: 0CBD937F-DC1F-4844-95C0-D979238BA6A4
Construction and Maintenance Agreement Page 3 of 19
Hickory Creek Road Overpass, City Project No. 19351
DOT 021-696C, RRMP D99.54, KCS Station 5255+13.43
Article 2. License & Permission
a. The Railroad and the City have entered into a separate license agreement for the
construction, maintenance, use, and removal of the aforesaid Bridge across and over the Railroad
Property at the location of the current At-Grade Crossing. Such license and permission shall not
prevent the Railroad from operating its trains or multiplying or changing its track across the
Railroad Property over which the license identified herein has been given.
b. The City and the Railroad agree that the area map of the Railroad Property is as set
forth in the attached Exhibit B.
c. The license and permission to be given will be subject to the rights of utility
companies to maintain and operate facilities thereon and thereover, and the City will make its own
arrangements with the utility companies for any necessary relocation or alteration of said facilities
to support construction of the Bridge. The City agrees that the Railroad retains all its existing
rights to license future utility facilities across the Railroad Property.
d. No legal right which the Railroad now has to reconstruct, maintain, and operate its
existing track and appurtenances or to construct, maintain, and operate additional track and
appurtenances upon and across the Railroad Property shall in any way be affected by the giving
of the license described herein and in Exhibit B.
e. It is agreed that should the Bridge, the Railroad Property, or any portion thereof
which is licensed, cease to be used for public roadway purposes, the license, as to the portion so
abandoned, shall immediately cease and terminate.
f. Permission is to be granted solely for the purposes of the City, at its sole cost and
expense, for the proposed Roadway improvements as shown in the Exhibit A, and is expressly
subject and subordinate to the present and future rights of the Railroad, its successors, assignees,
lessees, grantees, and licensees to maintain, use, operate, and renew on, beneath, or above the
surface of the Railroad Property any telephone, telegraph, power, communication, or signal lines,
poles, and/or appurtenances, fiber optic communications, tracks, roadways, pipelines, structures,
improvements, or facilities of similar or different character, as now located, and to permit,
construct, install, establish, and thereafter maintain, use, operate, and to renew on, beneath, or
above the surface of the Railroad Property, any or all said things which, except as provided in
paragraphs 2.c and d above, do not materially interfere with the City’s use of the Railroad Property
as hereinabove provided.
g. The City shall pay the Railroad a one-time fee of Five Thousand Dollars ($5,000.00)
for issuance of the license, in addition such other fees as are due under other provisions of this
Agreement.
Article 3. Scope of Work
a. The City and the Railroad agree that the City will perform the Project work as outlined
in this Agreement and as shown in the plans in Exhibit A. The work Project will generally consist
Docusign Envelope ID: E54EA750-8842-44CF-AFE7-770E7051618ADocusign Envelope ID: 0CBD937F-DC1F-4844-95C0-D979238BA6A4
Construction and Maintenance Agreement Page 4 of 19
Hickory Creek Road Overpass, City Project No. 19351
DOT 021-696C, RRMP D99.54, KCS Station 5255+13.43
of building the Bridge over the Railroad’s tracks and permanently removing the existing At-Grade
Crossing.
b. In order to provide for safety of the Railroad, the Railroad and its designated
representative shall provide construction monitoring services (“CMS") and the Contractor shall
provide protective services (“Flagging”) during the period of performance of work in or incident
to the Project. Flagging shall be performed by a Railroad-approved flagging company. City, by
signing this Agreement, agrees to bear one hundred percent (100%) of CMS and Flagging costs.
The Railroad and its designated representative shall have the right to furnish all such CMS
Services shown in the Railroad force account estimate, attached hereto and identified as Exhibit
D. The City will reimburse the Railroad for the cost thereof, including charges related to travel,
boarding, lodging, etc., of CMS providers. The City shall notify the Railroad a minimum of thirty
(30) days in advance whenever it is about to perform work adjacent to, on, under and over any
track or bridge to enable the Railroad to furnish CMS as might be necessary to ensure safety of
Railroad's operations and facilities.
Article 4. Plans, Estimates, Construction, and Maintenance
a. The City, at its own expense, has prepared the final one hundred percent (100%)
plans, specifications, and estimates (PS&E) for the Project. The written approval of the plans by
the City and the Railroad are hereby adopted as the final one hundred percent (100%) plans and
specifications covering the construction of the Project identified as Exhibit A. The construction of
the Project shall conform to the final one hundred percent (100%) plans in Exhibit A. No changes
to Exhibit A shall be made without the written approval of such changes by the City and the
Railroad. Neither the City nor its Contractor shall commence any work on the Railroad's property
involving work identified in Exhibit A until such final one hundred percent (100%) plans have
been approved in writing by the Railroad.
b. In order to provide for the safety of all personnel working on the Project, the City
shall require the City’s Contractor to provide Flagging during the period of performance of work in
or incident to the proposed Project. Flagging shall be provided from one of the Railroad-approved
flagging companies, as stated in the Railroad’s Contractor Right-of-Entry Agreement, a sample
attached hereto as Exhibit E. Flagging shall be provided at the City’s expense and at no expense
to the Railroad. The City’s Contractor shall be solely responsible for scheduling the flaggers and
the Railroad shall not be responsible for any costs or delays to the Project due to railroad flagger
scheduling issues. Additional flagging information can be found as stated in item “n. – Railroad’s
Construction Requirements” below.
c. The City and Contractor, unless otherwise provided, shall make such changes or
alterations to facilities not owned by the Railroad, including but not limited to communication,
signal pole and wire lines, pipe, sewer, and drainage or other facilities or buildings located upon
the Railroad’s right-of-way, that may be displaced or required by the construction of the Project,
as may be necessary to maintain continuous service and conform them to said construction and
restore them to former condition for service either prior to, during, or following construction of the
Project. The City and its Contractor shall not, without Railroad’s written approval, perform any
Docusign Envelope ID: E54EA750-8842-44CF-AFE7-770E7051618ADocusign Envelope ID: 0CBD937F-DC1F-4844-95C0-D979238BA6A4
Construction and Maintenance Agreement Page 5 of 19
Hickory Creek Road Overpass, City Project No. 19351
DOT 021-696C, RRMP D99.54, KCS Station 5255+13.43
work that may interfere with the operations or the safety of the Railroad other than what is
approved under this Agreement.
d. The City and the Railroad agree to perform the below Project work to permanently
close the At-Grade Crossing:
d.1. The City’s responsibilities shall include:
i. Following the completion of the construction of the Bridge and when the
Bridge put in service by opening to public use, the City shall permanently
close the At-Grade Crossing.
ii. The City agrees to issue an ordinance to this effect and a copy of this
ordinance shall be forwarded to the Railroad for its records.
iii. The City shall issue a Quit Claim Deed releasing all rights to the At-
Grade Crossing at the time of such crossing’s closure.
iv. The City shall remove existing road approaches to the At-Grade
Crossing as needed up to the Railroad’s right of way.
v. The City shall install barriers and signs indicating the crossing closure in
accordance with Railroad’s standards.
vi. All costs for Project work described under these subitems to d.1. to be
done by the City shall be at the sole cost and expense of the City.
d.2. When the Railroad receives the ordinance passed by the City authorizing the
closure of the At-Grade Crossing, Railroad shall perform the following work to
permanently close the At-Grade Crossing.
i. The Railroad shall remove the crossing panels, crossing signals,
roadway approaches and culverts located within the Railroad’s right of
way.
ii. The Railroad assumes responsibility to terminate any agreement it may
have with a third party for the existing signal equipment located at the
closed crossing.
iii. All costs for work described under item d.2. done by the Railroad shall
be at the sole cost and expense of the Railroad.
e. Only the Railroad will perform the work to adjust facilities owned by the Railroad that
are necessary to construct the Project. Those costs are included in the railroad force account
attached hereto and identified as Exhibit D. The Railroad has prepared, and the City approves
by executing this Agreement, written cost estimate(s) for all Railroad force account work, including
CMS for the Project as detailed in accordance with the Exhibit A. One hundred percent (100%)
of these costs shall be reimbursed to the Railroad by the City. Said approved cost estimate(s) are
attached hereto and identified in the railroad force account attached hereto and identified as
Exhibit D.
f. Full execution of this Agreement serves as the official Work Order to the Railroad
from the City for CMS.
Docusign Envelope ID: E54EA750-8842-44CF-AFE7-770E7051618ADocusign Envelope ID: 0CBD937F-DC1F-4844-95C0-D979238BA6A4
Construction and Maintenance Agreement Page 6 of 19
Hickory Creek Road Overpass, City Project No. 19351
DOT 021-696C, RRMP D99.54, KCS Station 5255+13.43
g. Following the completion of the Project, the City shall assume full ownership and
responsibility for maintenance and operation of the Bridge and all appurtenances and other
improvements made as part of this Project.
h. The Railroad, under terms of this Agreement and the accompanying license
agreement attached hereto and made a part hereof as Exhibit B, gives the City permission to
enter the Railroad’s right-of-way to access and perform routine inspections, maintenance, and/or
emergency work (“Repair Work”) as required on the Bridge and other City-owned infrastructure.
Except in case of an emergency, the City shall contact Railroad’s Critical Incident Desk at 1-877-
527-9464 to schedule any routine Repair Work at least seven (7) days prior to entering the
Railroad’s right-of-way. If emergency Repair Work by the City is required, in the interest of public
safety and the safety of Roadway use, the City shall contact Railroad’s Critical Incident Desk at
1-877-527-9464 as far in advance as possible before entering the right-of-way but, in any event,
in advance of entering the right-of-way for emergency Repair Work. (The Railroad may change
the contact number of its Critical Incident Desk by advance written notice to the City.) The City
shall prepare plans, specifications, and work methods to perform the Repair Work for review and
approval by the Railroad prior to performing such Repair Work. If inspection or Repair Work is
being performed by a contractor employed by the City, the City shall require the City’s contractor
to execute the Railroad’s Contractor Right-of-Entry Agreement, a sample attached hereto as
Exhibit E, as required by the Railroad at that time before accessing the right-of-way and/or
commencing the Repair Work on the Railroad’s property and to provide insurance as required by
the Railroad’s Contractor Right-of-Entry Agreement at that time. None of the costs or expenses
associated with the Repair Work shall be borne by the Railroad.
i. The Railroad will give the City advance notice of routine maintenance and/or
emergency work which has the potential to interfere with the City's use or maintenance of the
Roadway or the Bridge. The City shall fully cooperate with the Railroad and not unreasonably
delay the Railroad’s proposed work. If emergency work by the Railroad is required, in the interest
of public safety and the safety of the railroad operations, the City shall fully cooperate with the
Railroad to allow the Railroad to perform the emergency work. Cooperation from the City during
emergency work by Railroad shall include waiving of any advance notice and traffic control
measures. All costs and expenses associated with the repair work to the Railroad's infrastructure
shall be borne by the Railroad.
j. The City assumes the entire responsibility for the construction, maintenance and use
of the Bridge upon and over the Railroad’s property at the location herein described, and nothing
contained herein shall ever be construed to place upon the Railroad any manner of liability for
injury to or death of persons, or for damage to or loss of property arising from or in any manner
connected with the construction, maintenance, or use of the portion of said Roadway located upon
the Railroad’s property.
k. The term Contractor as used herein includes any and all subcontractors of the City.
The term “Engineer” as used in this article means the City’s lead engineer for the Project. The
term “Railroad Engineer” as used in this article means the Railroad’s Chief Engineer or the Chief
Engineer’s designee. The City shall designate its Engineer and such Engineer’s contact
Docusign Envelope ID: E54EA750-8842-44CF-AFE7-770E7051618ADocusign Envelope ID: 0CBD937F-DC1F-4844-95C0-D979238BA6A4
Construction and Maintenance Agreement Page 7 of 19
Hickory Creek Road Overpass, City Project No. 19351
DOT 021-696C, RRMP D99.54, KCS Station 5255+13.43
information in writing to Railroad. The Railroad Engineer’s contact information is stated in Article
14 of this Agreement.
l. The City shall require its Contractor to agree to defend, indemnify, and hold harmless
the Railroad, its directors, officers, employees, agents, successors, and assigns from and against
any injury or death of persons whomsoever and from any loss or damage to the Railroad Property,
and from the Railroad's liability or loss incurred for damage to any other property in Railroad’s
care, custody, or control in or upon Railroad’s property, caused by acts or omissions of the
Contractor in performing work on this Project, whether on, over, under or in the vicinity of the
Railroad’s property.
m. In the event the Contractor shall fail to restore the Railroad’s property immediately
to a condition acceptable to the Railroad when any such loss or damage to the Railroad’s property
is called to the Contractor’s attention by the Railroad, the Railroad may perform such corrective
work at full cost to the Contractor. The term “loss or damage” as used herein shall include, but
not be limited to, erosion and silting of, water damage to, and the accidental or intentional placing
or dropping of objects on the Railroad’s property.
n. Railroad’s Construction Requirements
The City shall, by contract, require its Contractor to do the following:
n.1. The Contractor’s work on the Railroad Property shall be performed in
accordance with these Construction Requirements and per the PS&E prepared by the City
and approved by the Railroad, as shown in Exhibit A.
n.2. The Contractor shall supply adequate equipment, labor, and materials to perform
the proposed Project work at the job site.
n.3. The Contractor shall take special precaution and care to prevent any debris or
material from fouling the tracks that will interfere with safe operations of the Railroad. The
safe operation of the Railroad shall take precedence over all work and nothing shall be
done by the Contractor that will endanger the Railroad’s operations. The Contractor shall
protect the Railroad’s property from any damage resulting from the Contractor’s acts or
omissions during the Project.
n.4. The Contractor shall notify the Railroad any time work is being done adjacent to
the existing railroad tracks and shall take extreme care to not damage them. Contractor
shall bear full responsibility of damages to the tracks and pay all costs associated with
performing the repairs to bring the railroad track back to its original condition.
n.5. If the work to be done by the Contractor is deemed by the Railroad Engineer to
affect the safety of the Railroad’s facilities, the Contractor shall submit to the Railroad for
review and approval detailed PS&E and work methodology prior to start of the work.
Railroad reserves the right to perform the work on the Railroad’s facilities to make the
necessary adjustments to the Railroad’s facilities for the Contractor to perform his work.
Docusign Envelope ID: E54EA750-8842-44CF-AFE7-770E7051618ADocusign Envelope ID: 0CBD937F-DC1F-4844-95C0-D979238BA6A4
Construction and Maintenance Agreement Page 8 of 19
Hickory Creek Road Overpass, City Project No. 19351
DOT 021-696C, RRMP D99.54, KCS Station 5255+13.43
The City shall reimburse one hundred percent (100%) of these costs and expenses to the
Railroad.
n.6. Before performing any excavation, demolition, blasting, lifting of structural
members, or construction of falsework on or over Railroad’s property or adjacent to the
Railroad’s property that may interfere with the safe operation of trains, the Contractor shall
submit its excavation, shoring, demolition, blasting, lifting of structural members and
falsework plans and relevant procedures to the Engineer and to the Railroad Engineer for
review and approval. These plans and procedures shall be signed and sealed by a
Professional Engineer licensed in the State of Texas. However, such approval shall not
relieve the Contractor from any liability relating to this Project.
n.7. During the course of the Project, the Contractor shall submit any proposed
changes to the approved PS&E to the Engineer for review and to the Railroad Engineer
for review and approval. Any clearing and grubbing to increase the sight distance for safer
construction operation, or erection of temporary structures within the Railroad property
shall not be done prior to the approval of the Railroad. The Railroad Engineer shall make
a decision within 30 days. Should the Railroad Engineer deny the proposed changes to
the PS&E and require a resubmittal, the Railroad Engineer shall provide approval or denial
and requirement for resubmittal within 30 days after receipt of the revised plans.
n.8. Excavations for construction of footings, piers, columns, walls, or other facilities
that require shoring shall comply with requirements and recommendations of OSHA,
AREMA, and Section IV, Design and Construction of Shoring Adjacent to and on Railroad
Right-of-Way contained within the “KCS Guidelines for the Design and Construction of
Railroad Overpasses and Underpasses.” Shoring, excavations, erection of temporary
structures, etc., that will affect the safety and structural integrity of the Railroad’s facilities
shall be submitted to the Railroad for review and approval prior to start of such work. No
such work shall begin until such approval from the Railroad is received by the Contractor.
n.9. The Contractor shall abide by the following minimum temporary clearances
during the course of construction
a. 14.0 feet horizontal from centerline of track; and
b. 22.0 feet vertical above top of the highest rail.
n.10. The Contractor shall comply with the Railroad’s rules and regulations concerning
protection of persons and property, and the Contractor shall consult with the Railroad
Engineer concerning the Railroad’s rules and regulations. Any questions arising about
coordination of work between the Contractor and the Railroad Engineer or between the
Contractor and others shall be taken up with the Engineer and the Contractor. Railroad
Engineer and Engineer shall agree upon a method of coordination before the work is
commenced.
Docusign Envelope ID: E54EA750-8842-44CF-AFE7-770E7051618ADocusign Envelope ID: 0CBD937F-DC1F-4844-95C0-D979238BA6A4
Construction and Maintenance Agreement Page 9 of 19
Hickory Creek Road Overpass, City Project No. 19351
DOT 021-696C, RRMP D99.54, KCS Station 5255+13.43
n.11. Prior to commencing any work upon, over, or under the Railroad Property, the
Contractor shall furnish to the Railroad Engineer evidence that the Contractor’s insurance
is as noted in the Contractor’s Right of Entry Agreement.
n.12. Except as authorized by the Railroad, neither the City nor its Contractor(s) or
subcontractor(s) will construct a crossing over any track at any location. Where crossings
are needed or desired, the City’s Contractor shall make arrangements with Railroad and
obtain a temporary crossing permit, paying any and all fees thereof. If and when permitted
by the Railroad, the Contractor may cross tracks with cleated or crawler type equipment,
provided the track shall be protected with a temporary surfacing as approved by the
Railroad Engineer.
n.13. The Contractor shall be required to maintain all ditches and drainage structures
free of silt or other obstructions which may result from the Contractor’s operations; to
promptly repair eroded areas within Railroad’s right-of-way; and to repair any other
damage to the property of the Railroad or its tenants which may result from the
Contractor’s operations. All such maintenance and repair of damages due to the
Contractor’s operations shall be done at the Contractor’s sole cost and expense. If the
Contractor’s method of erosion control differs from the approved PS&E, the Contractor
shall submit a proposed method of erosion control and have the method reviewed by the
Railroad and the City prior to beginning any grading work on the Project site. Erosion
control methods must comply with all applicable local, City, state, and federal regulations.
n.14. The Contractor shall, reasonably throughout each work day and at the end of
each work day when performing work near the Railroad’s tracks, inspect the track area
and clean up any debris that may have been dropped on or within ten (10) feet of
Railroad’s tracks. The Contractor shall remove all waste, excess materials, falsework, and
other temporary structures, and equipment, leaving the location of the work cleaned to the
reasonable satisfaction of Railroad. The Contractor shall repair to the reasonable
satisfaction of the Railroad Engineer, and at the Contractor’s sole cost and expense, any
and all damages to the Railroad’s property caused during the Project. Upon completion of
the Project, the Contractor shall return the Railroad Property and all other Railroad
property to a condition equal to or better than existed prior to commencement of the
Project work.
n.15. Site Inspections By Railroad’s Designated Representative: In addition to the
office review of construction submittals, Railroad site inspections to check progress of the
work and conformance of the work to the approved PS&E shall be performed by Railroad’s
Designated Representative at milestone events during construction at any time throughout
the Project as deemed necessary by the Railroad, including but not limited to the following:
i. Pre-construction meetings.
ii. Excavations, shoring placement/removal, pile driving, drilling of caissons, or
drilled shafts adjacent to tracks.
iii. Reinforcement and concrete placement for near track piers.
iv. Erection of pre-cast concrete or overpass bridge superstructure.
Docusign Envelope ID: E54EA750-8842-44CF-AFE7-770E7051618ADocusign Envelope ID: 0CBD937F-DC1F-4844-95C0-D979238BA6A4
Construction and Maintenance Agreement Page 10 of 19
Hickory Creek Road Overpass, City Project No. 19351
DOT 021-696C, RRMP D99.54, KCS Station 5255+13.43
v. Construction of overhead forms for the Bridge deck(s).
vi. Reinforcement and concrete placement of the Bridge deck(s).
vii. Completion of the Bridge structure.
viii. Work on or near the At-Grade Crossing, including removal of the At-Grad
Crossing.
ix. Placement of culverts, if any, under the Railroad’s tracks.
x. Construction of temporary at-grade construction crossing, if permitted by the
Railroad.
xi. Final inspections at the completion of the Project.
Contractor shall fully cooperate with Railroad’s site inspections. The City shall reimburse
the Railroad all costs and expenses associated with site inspection work by the Railroad.
n.16. The Railroad’s Designated Representative can either be an employee of the
Railroad or a hired outside consultant.
n.17. In addition to the Project schedule required by the City, the Contractor shall
provide to the Engineer a detailed construction schedule for its work on the Railroad
Property, including the proposed temporary horizontal and vertical clearances and
construction sequence for all work to be performed on the Railroad Property. The
Contractor shall submit a copy of this detailed construction schedule to Railroad’s
Designated Representative for review prior to the start of the work. This schedule shall
also include the anticipated dates when the milestone events listed in subsection n.15 will
occur. The Contractor shall update the schedule for these milestone events as necessary,
but at least monthly, and shall provide a copy of all updates to the Railroad so that site
inspection visits may be scheduled.
n.18. While on the Railroad Property, Contractor shall comply with Railroad’s rules and
regulations concerning protection of persons and property including Railroad’s Personal
Protective Equipment (PPE) rules. Railroad shall make its applicable rules available to
the Contractor for review and copying.
n.19. Except as authorized by Railroad the Contractor shall not work within the
“Minimum Clearance Zone” of any track. The “Minimum Clearance Zone” is defined as
an area measured 25 feet, horizontally, on either side of the centerline of track with
unlimited vertical distance above the top of rails within the horizontal limits. Additionally,
Contractor will locate all equipment, devices, and materials at a sufficient distance from
any track to ensure that no apparatus or part of any equipment, device, or material, such
as the boom of a crane or a dragline, could under any circumstances encroach on the
“Minimum Clearance Zone” of any track.
n.20. Contractor shall ensure that Flagging services provided by a Railroad-qualified
flagging contractor will be provided whenever agents, employees, or equipment of the
Contractor or any of its contractors or subcontractors on this Project shall be within the
Minimum Clearance Zone, and when any equipment or its attachment or booms, even
Docusign Envelope ID: E54EA750-8842-44CF-AFE7-770E7051618ADocusign Envelope ID: 0CBD937F-DC1F-4844-95C0-D979238BA6A4
Construction and Maintenance Agreement Page 11 of 19
Hickory Creek Road Overpass, City Project No. 19351
DOT 021-696C, RRMP D99.54, KCS Station 5255+13.43
though stationed outside the Minimum Clearance Zone, has a potential to come within the
Minimum Clearance Zone. The term “Minimum Clearance Zone” is defined in n.19 above.
n.21. Contractor shall notify the Railroad concerning any Flagging services that will be
required during the course of the Project, but the Contractor shall make all arrangements
for Flagging protection directly with a Railroad-qualified flagging contractor. Railroad’s
designation of a flagging contractor as a “Railroad-qualified” flagging contractor shall be
construed solely as the Railroad’s willingness to allow that flagging contractor to provide
flagging services on the Railroad’s property without further proof of qualification, and shall
not be construed as an endorsement or other verification of the abilities or qualifications
of that flagging contractor. Under these Construction Requirements, all flagging
contractors utilized on the Project shall be treated solely as independent contractors of the
Contractor for all purposes.
Railpros Field Services
David Allen 601-502-6485 david.allen@railprosfs.com
Jennifer Kazner 877-315-0513, X 116 jennifer.kazner@railprosfs.com
Bottom Line On-Track Safety Services
Casey Turner 903-767-7630 bottomline076@aol.com
Jeff Yarbrough 972-824-3348
n.22. Contractor shall clear the tracks when directed to do so by the flagger. The
presence of the flagger will not relieve Contractor of its duty to keep all its agents,
employees, and contractors clear of the tracks when trains are in dangerous proximity to
the Minimum Clearance Zone.
n.23. At the discretion of the City, all Contractor employees and supervisors
performing work on the Railroad Property, except any personnel employed or assigned by
a Railroad-qualified flagging contractor, may be trained with reference to the Railroad’s
On-Track Safety Rules. The Contractor, at its own cost, shall provide its employees this
training online by visiting:
General Site all RRs: https://www.bistrainer.com/store/railpros-
store/home?category=safety&language=en
RWP: https://www.bistrainer.com/store/railpros-store/productdetails/2020-
kansas-city-southern-roadway-worker-protection-for-contractors
n.24. All railroad tracks within and adjacent to the Project site are active, and rail traffic
over these facilities shall be maintained throughout the Project. Activities may include both
through moves and switching moves to local customers. Railroad traffic and operations
will occur continuously throughout the day and night on the tracks. The Contractor shall
coordinate and schedule the work so that Project construction activities do not interfere
with railroad operations. Any and all costs/expenses associated with delays caused to the
Docusign Envelope ID: E54EA750-8842-44CF-AFE7-770E7051618ADocusign Envelope ID: 0CBD937F-DC1F-4844-95C0-D979238BA6A4
Construction and Maintenance Agreement Page 12 of 19
Hickory Creek Road Overpass, City Project No. 19351
DOT 021-696C, RRMP D99.54, KCS Station 5255+13.43
train traffic by the Contractor shall be reimbursed by the Contractor. The City or the
Contractor may audit these costs.
o. Ownership.
o.1. The City assumes ownership and maintenance of the new Bridge and drainage
structures, whether shown or not on the Exhibit A, which are within or impact the
Railroad’s right-of-way. Prior to making any maintenance on the City’s infrastructure
within the licensed areas described/depicted in Exhibit B, the City shall submit the
planned maintenance and schedule to the Railroad for review and approval.
o.2. The Railroad will assume ownership and maintenance of the existing track and
other railroad infrastructure within the areas described in Exhibit B, excluding those
items mentioned in o.1 above.
Article 5. Environmental
a. Release of Hazardous Substances
a.1 The City shall not cause the release of any Hazardous Substance on the
Project.
a.2 “Hazardous Substance” means any “hazardous substances” under the
Comprehensive Environmental Response, Compensation, and Liability Act, 42
U.S.C. Section 9601 (CERCLA).
b. Environmental Claims
i. The City shall be responsible for environmental claims that may arise out of or
be occasioned by or from the use and occupancy of the area described in Exhibit
B in relation to the Project.
c. Response Actions
i. The City shall promptly take all necessary action in response to any release or
use of a Hazardous Substance at the property caused by, or attributable to, any
act of the City, City Representative, or the Contractor.
d. Required Notices/Disclosures
i. Transportation and Disposal Contracts; Permits
1. The City shall, upon written request by Railroad, provide Railroad with
copies of transportation and disposal contracts and manifests for
Hazardous Substances, any permits issued under any Environmental
Laws, and any other documents demonstrating that the City has complied
with applicable environmental laws relating to the Project.
ii. Notices, Summons, Citations, etc.
1. The City shall promptly provide the Railroad with copies of all summons,
citations, directives, information inquiries or requests, notices of potential
responsibility, notices of violation or deficiency, orders, decrees, claims,
causes of action, complaints, investigations, judgments, letters, notices
Docusign Envelope ID: E54EA750-8842-44CF-AFE7-770E7051618ADocusign Envelope ID: 0CBD937F-DC1F-4844-95C0-D979238BA6A4
Construction and Maintenance Agreement Page 13 of 19
Hickory Creek Road Overpass, City Project No. 19351
DOT 021-696C, RRMP D99.54, KCS Station 5255+13.43
of environmental liens or Response actions in progress, or other
communications, written or oral, actual or threatened, from the United
States Environmental Protection Agency, the United States Occupational
Safety and Health Administration, or other federal, state, or local agency
or authority, or any other entity or individual, concerning:
a. any release of a Hazardous Substance on, under, to, or from
the Railroad Property;
b. the imposition of any lien on the Railroad Property; or
c. any alleged non-compliance, violation of, or responsibility under
any Environmental Law relating to the Railroad Property.
e. Railroad’s Right to Participate in Response Actions
i. Following its receipt of any notice, order, claim, investigation, information
request, letter, summons, citation, directive, or other communication identified
herein, the City shall notify the Railroad of and permit the Railroad to participate
in any and all investigations, telephone conferences, settlement discussions,
remediation plans, and all other interactions, direct or indirect, with governmental
or regulatory officials, and the City shall take all action necessary to ensure that
any indemnification, release, waiver, covenant not to sue, or hold harmless
agreement benefiting the City and arising out of such activities, whether from a
governmental or regulatory entity or from a private entity, also benefits the
Railroad to at least the same extent as the City.
f. City Environmental Covenants
i. The City shall not bring, keep, store, or permit to be brought, kept, transferred,
or stored in, at, or upon the Railroad Property, any Hazardous Substance, except
as expressly provided for in this Agreement, or with the prior written consent of
the Railroad.
ii. The City shall take care to avoid a hazardous, unsafe, unhealthy, or
environmentally unsound condition, activity, or spill on, under, at, or near the
Railroad Property.
iii. The City shall maintain a current emergency response plan to address any event
referred to herein, and make it available to the Railroad upon request, and it shall
promptly respond to a release, leak, spill, or deposit of a Hazardous Substance
in accordance with its emergency response plan and environmental
requirements.
iv. The City shall commence and complete the cleanup, disposal, and remediation
of a release, leak, spill, deposit, or environmental condition occurring on the
Railroad Property as a direct result of the City’s, any City Representative’s, or
the Contractor’s activities or operations in relation to the Project. Such cleanup,
disposal, and remediation shall be in compliance with the Comprehensive
Environmental Response, Compensation, and Liability Act, 42 U.S.C. Section
9601 (CERCLA).
v. If any reports, documents, data, or correspondence is to be filed, sent,
exchanged, or otherwise made available to any governmental agency or public
authority, then the City shall provide the Railroad with a reasonable time (not
Docusign Envelope ID: E54EA750-8842-44CF-AFE7-770E7051618ADocusign Envelope ID: 0CBD937F-DC1F-4844-95C0-D979238BA6A4
Construction and Maintenance Agreement Page 14 of 19
Hickory Creek Road Overpass, City Project No. 19351
DOT 021-696C, RRMP D99.54, KCS Station 5255+13.43
less than 5 business days) to review and comment on a draft of such report and,
when preparing any such final report pertaining to the Work, the City or its
Contractor shall give due consideration to the Railroad’s comments with respect
to the draft of such report. The City also shall provide to the Railroad final copies
of any such reports, documents, data, or correspondence, for the Railroad’s
records.
vi. Notwithstanding anything to the contrary contained in this Agreement, no
preliminary assessment, Phase I assessment, Phase II assessment or intrusive
testing or screening (e.g., soil testing or sampling, ground water or surface water
testing, boring, digging, drilling or other physical intrusion of the Railroad
Property or any part thereof or vapor intrusion screening or testing or Jerome
meter (Hg) or Niton XRF screens for lead paint) may be performed without the
Railroad’s prior specific written consent in each instance.
Article 6. Insurance and Right-of-Entry Requirements
a. The City shall require the City’s Contractor to execute the Railroad’s Contractor
Right of Entry Agreement, a sample attached hereto and identified as Exhibit E, before
commencing any work on the Railroad Property. The Contractor can obtain the right of entry
permit from the Railroad by contacting:
Denise Case
Senior Transaction Manager
Jones Lang Lasalle (JLL) – CPKC Permits Team
1079 W. Round Grove Rd.
Suite 300, Box #214
Lewisville, TX 75067
tel 1+8172302614
denise.case@jll.com www.joneslanglasalle.com
https://jllrpg.360works.com/fmi/webd/rpo_web_kcs.fmp12
b. The City shall require the City’s Contractor to provide the insurance coverages as
contained in the Railroad’s Contractor Right-of-Entry Agreement, a sample attached hereto and
identified as Exhibit E.
c. For future maintenance work on the Bridge, the City shall require the City’s
Contractor to provide the then-current Railroad insurance coverages and be required to execute
the then-current-standard Railroad’s Contractor Right-of-Entry Agreement before commencing
any work on the Railroad’s property.
d. The City is self-insured for any work performed by the City with its own employees.
To the extent allowed under State law, the City is responsible to the Railroad to cover bodily injury
and property damage claims which may occur during Project construction and maintenance of
the Bridge.
Docusign Envelope ID: E54EA750-8842-44CF-AFE7-770E7051618ADocusign Envelope ID: 0CBD937F-DC1F-4844-95C0-D979238BA6A4
Construction and Maintenance Agreement Page 15 of 19
Hickory Creek Road Overpass, City Project No. 19351
DOT 021-696C, RRMP D99.54, KCS Station 5255+13.43
Article 7. Payment
a. Reimbursement to the Railroad and/or the Railroad’s Contractor will be made for
CMS furnished, including but not limited to, insurance premiums and coverage at the rate and
amount set forth in the approved cost estimate attached hereto, in accordance with the provisions
of Title 23, Code of Federal Regulations (CFR), Subchapter B, Part 140, Subpart I, issued by the
Federal Highway Administration, and amendments thereto except as modified by the provisions
herein.
b. CMS furnished by the Railroad and/or the Railroad’s Contractor will be reimbursed
by the City based on actual costs incurred by the Railroad and/or the Railroad’s Contractor as
they relate to the Project and approved in the cost estimate identified as Exhibit D. Parties
understand that the amounts shown in Exhibit D are only an estimate and not a not-to-exceed
amount. If the estimated amount in Exhibit D is found to be inadequate, the Railroad shall obtain
a written approval from the City for the additional amounts required to complete the CMS
(“Additional Work”) by the Railroad. The Railroad shall not commence the Additional Work until
the written approval is obtained from the City. The Railroad shall not be held liable for non-
performance of the Additional Work resulting in financial damages to the City or the Contractor
due to delays in approval of the estimate of Additional Work by the City.
c. The Railroad may submit monthly bills prepared in satisfactory form for construction
inspection services performed. Payment will be made within thirty (30) days for the costs detailed
on the bills.
d. The Railroad shall submit a final invoice for all work performed clearly marked “Final
Invoice” no later than one (1) year from the date of the Project’s completion as marked by the
City’s forwarding of an acceptance letter to the Railroad stating the Project is completed. Payment
will be made within thirty (30) days of receipt of the Final Invoice.
Article 8. Termination
The City reserves the right to cancel this Agreement for any reason and at any time prior
to start of construction of the Project. The City will not be responsible for any expense incident to
any cost incurred in the event of the cancellation of this Agreement, unless (i) a work order was
issued by the City and the Railroad and/or the Railroad’s Contractor incurred expenses pursuant
to that work order, or (ii) for any preliminary engineering costs authorized under Exhibit C.
Cancellation of this Agreement shall not relieve the City or its Contractors of the responsibility to
assure that Railroad’s property is left in as good or better condition following any work on the
Project on or near Railroad’s property.
Article 9. Records & Audits
a. The City and the Railroad shall maintain books, documents, papers, accounting
records, and other evidence pertaining to Project costs incurred and work performed hereunder
and shall make such materials available at their offices during the Agreement term and for three
(3) years from the date final payment is due under Article 7.d. The records shall be made available
Docusign Envelope ID: E54EA750-8842-44CF-AFE7-770E7051618ADocusign Envelope ID: 0CBD937F-DC1F-4844-95C0-D979238BA6A4
Construction and Maintenance Agreement Page 16 of 19
Hickory Creek Road Overpass, City Project No. 19351
DOT 021-696C, RRMP D99.54, KCS Station 5255+13.43
to representatives from the City for the purpose of making audits, inspections, transcriptions, or
excerpts.
b. The City Auditor may conduct an audit or investigation of any entity receiving funds
from the City directly under this Agreement, or indirectly through a subcontract under the
Agreement. Acceptance of funds directly under the Agreement or indirectly through a subcontract
under this Agreement acts as acceptance of the authority of the City Auditor, under the direction
of the legislative audit committee, to conduct an audit or investigation in connection with those
funds. An entity that is the subject of an audit or investigation must provide the City Auditor with
access to any information the City Auditor considers relevant to the investigation or audit.
c. The Railroad is required to make any information created by or exchanged with
the City pursuant to this Agreement, and not otherwise excepted from disclosure under the Texas
Public Information Act, available in a format that is accessible by the public at no additional charge
to the City.
Article 10. Existing Agreements
Any agreement between City and Railroad (or Railroad's predecessors) for the At-Grade
Crossing that currently crosses the Railroad's track with Hickory Creek Road shall be terminated
by the opening of the Bridge to public traffic upon completion of the Project. Thereafter, only the
obligations contained in this Agreement and the license as granted and set forth in Exhibit B shall
remain with respect to that At-Grade Crossing, including but not limited to those obligations for its
removal from the Railroad Property.
Article 11. Protection of Fiber Optic Cable Systems
The City acknowledges that fiber optic cable systems may be buried on the Railroad’s
property And that protection of the fiber optic cable systems is of extreme importance, since any
break could disrupt service to users, result in business interruption, and cause the loss of revenue
and profits. The Parties therefore agree that City and/or its Contractor shall contact the Railroad
during normal business hours (8:00 a.m. to 5:00 p.m., Central Standard Time, Monday through
Friday, except holidays) at 877-527-9464 (also a 24-hour, seven-day number for emergency calls)
to determine if fiber optic cable is buried anywhere on the Railroad’s property to be used by the
City in connection with the Project. If it is, the City and/or its Contractor will contact the
telecommunications company(ies) involved, arrange for a cable locator, and make arrangements
for relocation or other protection of the fiber optic cable prior to beginning any work on the Railroad
Property. Information from the Railroad is provided without warranty as to its correctness or
completeness. The City and/or its Contractor shall also be responsible for contacting Texas811
or other applicable utility damage prevention systems to notify potentially affected utilities at the
Project site to identify their facilities. The Railroad shall also identify its signal lines, if any, to the
City.
Docusign Envelope ID: E54EA750-8842-44CF-AFE7-770E7051618ADocusign Envelope ID: 0CBD937F-DC1F-4844-95C0-D979238BA6A4
Construction and Maintenance Agreement Page 17 of 19
Hickory Creek Road Overpass, City Project No. 19351
DOT 021-696C, RRMP D99.54, KCS Station 5255+13.43
Article 12. Limited Access
The City hereby agrees that during the Project, it will keep its employees, material, and
machinery within the defined area of the premises in the attached Exhibit A final plans and
licensed area(s) show in Exhibit B, unless otherwise specified. There shall be no crossings of
the Railroad's tracks except at existing, open, and public crossings, or at locations mutually
agreed upon in writing by the City and/or the City’s Contractor and the Railroad.
Article 13. Transfer
Neither Party hereto shall assign this Agreement, in whole or in part, or any rights herein
granted, without the written consent of the other Party, and it is agreed that any transfer or
assignment of this Agreement or any of the rights herein granted, whether voluntary, by operation
of law, or otherwise, without such consent in writing, shall be absolutely void and, at the option of
the non-transferring Party, shall terminate this Agreement. Contracting or subcontracting for the
performance of work required under this Agreement shall not be considered to be a transfer or
assignment of all or part of this Agreement.
Article 14. Notification
The City agrees to notify the Railroad in writing when all work on the Railroad Property is
complete.
For the purposes of this Agreement, all notices, correspondence, billings, and other
documentation shall be mailed to the following addresses:
For the City of Denton For the Kansas City Southern Railway Company
Construction questions:
Dustin Draper
Construction Project Manager
401 N Elm, Denton, TX 76201
Dustin.Draper@cityofdenton.com
Billing and Invoices:
Attention Dustin Draper
401 N Elm St, Denton, TX, 76201
Construction related questions:
Kyle Spree
Manager Public Works – US
Engineering Department
Overnight and USPS delivery address:
427 W 12th Street, Kansas City, MO 64105
Kyle.Spree@cpkcr.com
Billing and Invoices:
Capital Investment Accounting
Overnight and USPS delivery address:
427 W 12th Street, Kansas City, MO 64105
Docusign Envelope ID: E54EA750-8842-44CF-AFE7-770E7051618ADocusign Envelope ID: 0CBD937F-DC1F-4844-95C0-D979238BA6A4
Construction and Maintenance Agreement Page 18 of 19
Hickory Creek Road Overpass, City Project No. 19351
DOT 021-696C, RRMP D99.54, KCS Station 5255+13.43
Article 15. Responsible For Its Own Actions
Each Party acknowledges that it is not an agent, servant, or employee of the other Party,
and that each Party is responsible for its own acts and deeds and for those of its own agents and
employees during performance of work under this Agreement.
Article 16. Conditions
a. In accordance with the provisions of Title 23, Code of Federal Regulations (CFR),
Subchapter G, Part 646, Subpart B, issued by the Federal Highway Administration, and
amendments thereto, the Railroad will not be required to participate in the cost of the Project.
b. The City may be reimbursed for its expenditures hereunder from federal funds for
this Project. Therefore, the City and the Railroad will comply with statutes, rules, and regulations
enacted and promulgated by the U.S. Government and its Federal Highway Administration.
Article 17. Compliance with Laws
The Parties shall comply with all applicable federal, state, and local laws, statutes,
ordinances, rules, and regulations, and with the orders and decrees of any courts or administrative
bodies or tribunals in any manner affecting the performance of this Agreement. When required,
the Railroad shall furnish the City with satisfactory proof of this compliance. Nothing herein is
meant to be or will be interpreted to be a waiver of principles of legal preemption or preclusion
that may apply to the Railroad because of its status as a common carrier regulated by the federal
government.
Article 18. Legal Construction
If one or more of the provisions contained in this Agreement shall for any reason be held
inapplicable, invalid, illegal, or unenforceable in any respect, that inapplicability, invalidity,
illegality, or unenforceability shall not affect any other provisions and this Agreement shall be
construed as if it did not contain the inapplicable, invalid, illegal, or unenforceable provision.
Article 19. Signatory Warranty
Each signatory warrants that the signatory has necessary authority to execute this
Agreement on behalf of the entity represented.
[Remainder of this page left blank; signatures on the following page]
Docusign Envelope ID: E54EA750-8842-44CF-AFE7-770E7051618ADocusign Envelope ID: 0CBD937F-DC1F-4844-95C0-D979238BA6A4
Construction and Maintenance Agreement Page 19 of 19
Hickory Creek Road Overpass, City Project No. 19351
DOT 021-696C, RRMP D99.54, KCS Station 5255+13.43
IN WITNESS WHEREOF, the City and the Railroad have executed duplicate counterparts
of this Agreement for this Project identified as Project No. 19351 on the dates indicated below.
THE CITY OF DENTON
Executed for the Executive Director and approved for the Texas Transportation
Commission for the purpose and effect of activating and/or carrying out the orders, established
policies, or work programs heretofore approved and authorized by the Texas Transportation
Commission.
By: Date:
Name:
THE KANSAS CITY SOUTHERN RAILWAY COMPANY, d/b/a CPKC
By: Date:
Name:
Docusign Envelope ID: E54EA750-8842-44CF-AFE7-770E7051618A
1/8/2025Sara Hensley, City Manager
Docusign Envelope ID: 0CBD937F-DC1F-4844-95C0-D979238BA6A4
Daniel Sabatka 3/3/2025