HomeMy WebLinkAbout2004-190ORDINANCE NO. — 9
AN ORDINANCE AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO
EXECUTE A WIRELINE CROSSING AGREEMENT WITH UNION PACIFIC
RAILROAD COMPANY FOR AN AERIAL WIRELINE CROSSING LOCATED AT
MILE POST 718.38, CHOCTAW SUBDIVISION, CITY OF DENTON, DENTON
COUNTY, TEXAS; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR;
AND PROVIDING AN EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The City Manager or his designee is hereby authorized to execute a
wireline crossing agreement with Union Pacific Railroad Company for an aerial electric
wireline at milepost 718.38, Choctaw Subdivision, City of Denton, Denton County,
Texas, which is attached hereto and incorporated by reference herein (the "Agreement').
SECTION 2. The expenditure of funds as provided in the Agreement is hereby
authorized.
SECTION 3. This ordinance shall become effective immediately upon its passage
and approval.
PASSED AND APPROVED this the A Oth day of. 2004.
EULINE BROCK, MAYOR
ATTEST:
JENN��IFEnR ,WALLTERS, CITY SECRETARY
BY: L l �w Af�� dzdl
APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
BY: 7cZe�L✓' ��`
PL X 940206
Form Approved, AVP-Law
WMELINECROSSING
Mile Post: 718.38, Choctaw Subdivision
Location: Denton, Denton County, Texas
Folder No: 2256-33
THIS AGREEMENT is made and entered into as of February 7, 2000,, by and between UNION
?ACM C;• RAILROAD COMPANY, a Delaware corporation (hereinafter* the "Licensor"), and
DENTON,..CITY OF, a Texas municipal corporation, whose address is `601 EA$ I ;HICKORY ST., #B,
Denton, Texas 76201 (hereinafter the "Licensee").
IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES HERETO AS
FOLLOWS:
Article 1. LICENSE FEE
Upon execution of this Agreement, the Licensee shall pay to the Licensor;a. one-time license fee
of TWO THOUSAND DOLLARS ($2,000.00).
Article II. LICENSOR GRANTS RIGHT.
In consideration of the License Fee to be paid by the Licensee and in further consideration of the
covenants and agreements herein contained to be by the Licensee kept, observed and performed, the
Licensor hereby grants to the Licensee the right to construct and thereafter, during the. term hereof, to
maintain and operate only a
Wireline crossing (hereinafter the "Pipeline")
in the location shown and in conformity with the dimensions and specifications indicated on the attached
print dated February 4, 2000, marked Exhibit A. Under no circumstances shall Licensee modify the use
of the Wirelinefor a purpose other than the above -mentioned, and said Wirelineshall not be used for any
other use, whether such use is currently technologically possible, or whether such use may come into
existence during the life of this Agreement.
Article M. CONSTRUCTION, MAINTENANCE AND OPERATION.
The grant of right herein made to the Licensee is subject to each and all of the terms, provisions,
conditions, limitations and covenants set forth herein and in Exhibit B, hereto attached.
Article IV. IF WORK IS TO BE PERFORMED BY CONTRACTOR.
If a contractor is to do any of the work performed on the Wireline(including initial construction
and subsequent relocation or substantial maintenance and repair work), then the Licensee shall require its
contractor to execute the Railroad's form Contractor's Right of Entry Agreement. Licensee acknowledges
receipt of a copy of the Contractor's Right of Entry Agreement and understanding of its terms, provisions,
and requirements, and will inform its contractor of the need to execute the Agreement. Under no
circumstances will Licensee's contractor be allowed onto Licensor's premises without first executing the
Contractor's Right of Entry Agreement.
Article V. TERM.
This Agreement shall take effect as of the date first herein written and shall continue in full force
and effect until terminated as herein provided.
Article VI. SPECIAL PROVISIONS -- NONE
Article VII. AMENDMENT OF EXHIBIT B
Sections 7 (b) and 10 of Exhibit B, hereto attached are hereby amended to.read as follows:
Section 7(b) in addition to other indemnity provisions in this agreement, the. Licensee shall
indemnify and hold harmless the Licensor from and against all costs, liability and expense whatsoever
(including, without limitation, attorney's fees, court costs and expenses) arising out of any act or
omission
of the Licensee, agents and/or employees, that causes or contributes to (1) arty damage to
or destruction of any telecommunications system on Licensor's property, and (2) any injury to or death of
any person employed by or on behalf of any telecommunications company and/or its contractor, agents
and/or employees, on Licensor's property. Licensee shall not have or seek recourse against Licensor for
any claim or cause of action by alleged loss of profits or revenue or loss of service or other consequential
damage to a telecommunication company using Licensor's property or a customer or user of services of
thefiber optic cable on Licensor's property.
Section 10 INDEMNITY
As used in this Section, "Licensor" includes other railroad companies using the Licensor's
property at or near the location of the Licensee's installation and their officers, agent and employees,
"Loss" includes loss, damage, claims, demands, actions, causes of action, penalties, costs and expenses
of whatsoever nature, including court costs and attorney's fees which may result from; (a) injury to or
deathof persons whomsoever (including the Licensor's officers, agents and employees, the Licensee's
officers, agents and employees, as well as any other person); and (b) damage to or loss or destruction of
property whatsoever (including Licensee's property, damage to the roadbed, tracks, equipment, or other
property of the Licensor, or property in its care or custody).
As a major inducement and in consideration of the license and permission herein granted, the
Licensee agrees, to the extent permitted by law, to indemnify and hold harmless the Licensor from any
Loss which is due to or arises from:
1. The prosecution of any work contemplated by this Agreement including the installation,
construction, maintenance, repair, renewal, modification, reconstruction, relocation, or removal of the
Wirelineor any part thereof, or
2. The presence, operation or use of the Wirelineor contents escaping therefrom, except to
the extent that the Loss is caused by the sole and direct negligence of the Licensor.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of
the date first herein written.
WITNESS
UNION PACIFIC RAILROAD COMPANY
By:
Manager Contracts - Real Estate.
d it
APPROVED AS TO FORM:
CITY ATTORN
CITY OF DfOON, XAS
BY:
EXHIBIT "A"
PLACE ARROW INDICATINO NORTH REV. 10-23-00
DIRECTION RELATIVE TO CROSSING wwW.UPrr.com
�$ OVERHEAD WI'RBLINE CROSSING
OVER 750 VOLTS
`� NOTE: ALL AVAILABLE DIMENSIONS MUST RE
NO SCALE FILLED IN TO EXPEDITE THIS APPLICATION.
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WIN IRACR I.W4 OF C10l1IN01 1 TON1
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AR-5 WIT
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�`� INTO ATIL9[1TIW16 Wi USING secri'pp''N1'GS,C.ASES. cE EGS II00Z+4-1
M A LEGAL SURVEY IINE IS NEGGIR�FDI -
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NOTES I - ISM NOTE! 4.5 ! 6). - "NE NOTES 415 1 11
I ALL HORIZONTAL DISTANCES TO.BE MEASURED AT RIGHT ANGLES FRW E OF TRACK, EXCEPT AS'NOTEM
DEDICATED STREET
_YESI ENO(
TRACKS?
AMPS.
MILE OF RR. WHAT
TO OROUND4—
N "RIM.3 Iu oe ".N'. uX rnKwcu u
No. VOLTAGE TO NO. OF SOLID ON
CIRCUITS GROUND YOST►0E PHASE WIRES CABE MATERIAL STRANDED
SPANS%
POLESI
RRIN6 100 NV OR MORE) WT FROM OF OUR WIN)
AL AND COUAIHICATION LINES EQUAL TO THE.HEIONT
FROM 4. Of TRACK WHEN MEASURED AT
INCREASED AT A RATE OF 1-1A2• PER DEGREE
DOE OR 300• PRom'L Of ANY CULVERT.
VERHEAD VIADUCTS IOIVE ROAD NAME). OR t OF CULVERTS
EXHIBIT "A"'
Ira wILwM uM Na. - w .w wln IX TNH mn
UNION PACIFIC RAILROAD CO.
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1 VIIIYIIfM
M. P. -1 %1.11 E. S 110021-47
ll OVERHEAD WIR'E1LINE CROSSINI
�iMION �rQry rX
IYWYTM\TITItlX IaCIM Ifbtil
FOR CAD OF dGT'Dtj
IVVwIem
RR FILE NO..29-q�a-AT .L,''Zauy
L) HEAD OWAt NWSER ON EACH.POLE —I SIZE OR STRENGTH LEAO�.
M) SIDE GINSI NUMBER EACH WAT 1 SIZE OR STRENOTN_B LEAD. IN ALL OCEASIGMS, LL F. C JUTIONS OPARTMIMT WS
NI CROSSAM61 SINGLE OR OOIIeLE—jMATrAIAL_— 1512E—IY—E CDIOCt[O IN ADVANCE Or AM NOW 10 0E111MINE EXIITMR
IIIINSULATORS% PIN OR SUSPENSMANUFACTURER' S AND CATALOGUE NO._ LOCHIW Or rim OFTIC BOLL PH&K I I- NO-33 H
P) CONDUCTOR ATTACHMENT% TIES OR CLAMPS
01 IF POWER LINE PARALLELS TRACK WITHIN f/2 MILE, INCLUDE DIAGRAM SHOWING SPACING AND CONfIGUTATION OF WIRES IRCLUOIND SHIELD WIRES,
R) APPLICANT HAS CONTACTED h1GG-3W1,93. Y.P. COMMUNICATION DEPARTMENT. AND HAS DETERMINED FIBER OPTIC CABLE
—OOESI —DOES NOTE EXIST IN VICINITY OF WORK TO BE PERFORMED. TICKET AM
WLX.EXB 980112
Form Approved, AVP-Law
EXMBIT B
Section 1. LIMITATION AND SUBORDINATION OF RIGHTS GRANTED.
(a) The foregoing grant of right is subject and subordinate to the prior and continuing right and obligation of the Licensor
to use and maintain its entire properly including the right and power of the Licensor to construct, maintain, repair, renew, use,
operate, change, modify or relocate railroad tracks, signal, communication, fiber optics, or other wirelines, pipelines and other
facilities upon, along or across any or all parts of its property, all or any of which may be freely done at any time or times by
the Licensor without liability to the Licensee or to any other party for compensation or damages.
(b) The foregoing grant is also subject to all outstanding superior rights (including those in favor of licensees and lessees
of the Licensor's property, and others) and the right of the Licensor to renew and extend the same, and is made without
covenant of title or for quiet enjoyment.
Section 2. CONSTRUCTION, MAINTENANCE AND OPERATION
(a) If the Wireline or any part thereof is to be located above the top of the rails of any track or communication and signal
lines, including static wires, overhead clearance provided by the Wireline shall be no less than that shown on Exhibit A, The
Wireline shall be constructed, operated, maintained, repaired, renewed, modified and/or reconstructed by the Licensee in
strict conformity with the Specifications prescribed in the current issue of: the National Electrical Safety:Code.of the.American
National Standards Institute.. In the event such Specifications conflict in any respect with the .requirements of anyfederal, state
or municipal law.:or regulation_, such requirements shall .govern on all points of conflict,.! but.in.cdl-other respects the
Specifications shall apply. - .. .. ... ...
(b) All work performed on property of the Licensor in connection with the construction, maintenance, repair, renewal,
modification or reconstruction of the Wireline shall be done to the satisfaction of the licensor. .
(c) I( the Wireline is an existing one not conforming in its *construction totlle above provisions of* this Section 2, the
Licensee shall, within ninety (90) days after the date hereof, reconstruct it so as to conform therewith.
(d) The Wireline shall be constructed, maintained and operated by the Licensee in such manner as not to be or constitute
a hazard to aviation. With respect to the Wireline the Licensee, without expense to the Licensor, will comply with all
requirements of law and of public authority, whether federal, stale or local, including but not limited to aviation authorities.
(e) In the operation of the Wireline, the Licensee shall not transmit electric current at a difference of potential in excess of
the voltage indicated on Exhibit A. If the voltage indicated is in excess of seven hundred fifty (750) volts, and the Wireline is, or
is to be, buried at any location on the property of the Licensor outside track ballast sections or roadbed, the Licensee shall
install metallic conduit, or non-metallic conduit encased in a minimum of three (3) inches of concrete with a minimum of four
(4) feet of ground cover the entire length of the Wireline on the property of the licensor. A Wireline buried by removal of the
soil shall have, at a depth of one (1) foot beneath the surface of the ground directly above the Wireline, a six (6) inch wide
warning tape bearing the warning, "Danger -High Voltage," or equivalent wording. A Wireline encased in conduit, jacked or
bored under the property of the Licensor, must be identified by placing warning signs, to be installed and properly maintained
at the expense of the Licensee, at each edge of the Ircensor's property. The Licensee shall not utilize the signs in lieu of the
warning tape where portions of the casing are installed by direct burial.
Section 3. NOTICE OF COMMENCEMENT OF WORK
If an emergency should arise requiring immediate attention, the licensee shall provide as much notice as practicable
to Licensor before commencing any work. In all other situations, the Licensee shall notify the Licensor at least ten (10) days (or
such other time as the Licensor may allow) in advance of the commencement of any work upon property of the Licensor in
connection with the construction. maintenance, repair, renewal, modification, reconstruction, relocation or removal of the
Wireline. All such work shall be prosecuted diligently to completion.
wlxexb
Page I of
Exhibit B
WLX.EXB 980112
Farm Approved, AVP-Law
Section 4. LICENSEE TO BEAR ENTIRE EXPENSE.
The Licensee shall bear the entire cost and expense incurred in connection with the construction, maintenance, repair
and renewal and any and all modification, revision, relocation, removal or reconstruction of the Wireline, including any and all
expense which may be incurred by the Licensor in connection therewith for supervision or inspection, or otherwise.
Section 5. . REINFORCEMENT. RELOCATION OR REMOVAL OF WIRELWE.
(a) The license herein granted is subject to the needs and requirements of the Licensor in the operation of its railroad and
in the improvement and use of its property, and the Licensee shall, at the sole expense of the Licensee, reinforce or encase the
Wireline (if it is an underground facility) to the satisfaction of the Licensor, or move all or any portion of the Wireline to such
new location, as the Licensor may designate, whenever in the furtherance of its needs and requirements, the Licensor shall
find such action necessary or desirable.
(b) All the terms, conditions and stipulations herein expressed with reference to the Wireline on properly of the licensor
in the location hereinbefore described shall, so far as the Wireline remains on the property, apply to the Wireline as modified,
changed or relocated within the contemplation of this section...
Section 6. INTERFERENCE.
In the operation and maintenance.of.the Wireline the Licensee shall take all suitable precaution to prevent any
interference (by induction, leakageof electricity,, or. otherwise) with the operation -of the signal, .communication lines or,other,.
installations or facilities of the Licensor. or of its tenants; and if, at any time, the, -operation or maintenance of the Wireline
results in any electrostatic effects which the Licensor deems undesirable or harmful, or causes Interference with the operation -
of the signal, communication lines or other installations or facilities, as now existing or which may hereafter be provided by the
Licensor and/or its tenants,. the Licensee shalL at the sole expense of the Licensee; immediately take such action as may be
necessary to elimfnate such interference. ..
Section 7. PROTECTION OF FIBER OPTIC CABLE SYSTEMS.
(a) Fiber optic.cable systems may be buried on the Licenser's property. Protection of -the fiber optic cable systems is of
extreme importance since any break could disrupt service to users resulting in business interruption and loss of revenue and
profits. Licensee shall telephone the Licensor at 1-800-336-9193 (a 24-hour number) to determine if fiber optic cable is buried
anywhere on the Licensor's premises to be used by the Licensee. 11 it is, Licensee will telephone the telecommunications
company(ies) involved, arrange for a cable locator, make arrangements for relocation or other protection of the fiber optic
cable, all at Licensee's expense, and will commence no work on the right of way until all such protection or relocation has
been accomplished. Licensee shall indemnify and hold the Licensor harmless from and against all costs, liability and expense
whatsoever (including, without limitation, attorneys' fees, court costs and expenses g i ul of or caused in any way by
Licensee's failure to comply with the provisions of this paragraph.
harmless from and against all costs, liability and expense whatsoever (including, without limitation, attom s fees, costs
and expenses) caused by the negligence of the Licensee, its contractor, agents and/or en- , esulting in (1) any damage
to or destruction of any telecommunications system on Licensor's proper any injury to or death of any person
employed by or on behalf of any telecommunications com or its contractor, agents and/or employees, on licensor's
property, except if such costs, liability or e sescaaused solely by the direct active negligence of the Licensor. Licensee
further agrees that it shall meek recourse against Licensor for any claim or cause of action for alleged loss of
profits or r,.. re oss of service or other consequential damage to a telecomriiun�c� Rmpany using Licensor's
Section 8. CLAIMS AND LIENS FOR LABOR AND MATERIAL.
(a) The Licensee shall fully pay for all materials joined or affixed to and labor performed upairproperty of the licensor in
connection with the construction, maintenance, repair, renewal, modification or reconstruction of the Wireline, and shall not
permit or suffer any mechanic's or materialman's lien ofany kind or nature to be enforced against the property for any work
done or materials furnished thereon at the instance or request or on behalf of the Licensee. The Licensee shall indemnify and
wlx.exb Page 2 of Exhibit B
WLX.EXB 980112
Form Approved, AVP-Law
hold harmless the Licensor against and from any and all liens, claims, demands, costs and expenses of whatsoever nature in
any way connected with or growing out of such work done, labor performed, or materials furnished.
(b) The Licensee shall promptly pay or discharge all taxes, charges and assessments levied upon, in respect to, or on
account of the Wireline, to prevent the same from becoming a charge or lien upon property of the Licensor, and so that the
taxes, charges and assessments levied upon or in respect to such property shall not be increased because of the location,
construction or maintenance of the Wireline or any improvement, appliance or fixture connected therewith placed upon such
property, or on account of the Licensee's interest therein. Where such tar, charge or assessment may not be separately made
or assessed to the Licensee but shall be included in the assessment of the property of the licensor, then the Licensee shall pay
to the Licensor an equitable proportion of such taxes determined by the value of the Licensee's property upon property of the
Licensor as compared with the entire value of such property.
Section 9. RESTORATION OF LICENSOR'S PROPERTY.
In the event the Licensor authorizes the Licensee to take down any fence of the Licensor or in any manner move or
disturb any of the other property of the Licensor in connection with the construction, maintenance, repair, renewal,
modification, reconstruction, relocation or removal of the Wireline, then in that event the Licensee shall, as soon as possible
and at Licensee's sole expense, restore such fence and other property to the same condition as the same were in before such
fence was taken down or such other property was moved or disturbed, and the Licensee shall indemnify and.hold harmless
the licensor, its officers, agents and employees, against and from any and all liability, loss, damages, penalties, claims,
demands, costs and expenses of whatsoever nature, including court costs and attorneys' fees, which may result from injury to
or death of persons whomsoever, or damage to orr loss or destruction of property whatsoever, when such -injury, death,
damage, loss or destruction grows out of or arises from the taking down of any fence or. the -moving or disturbance of any other:
Property of the Licensor. ..
Section 10. INDEMNITY. SEARi04E
location of the Licensee's installation and their officers, agents, and employees; :"Loss" includes loss, derma aims,
demands, actions, causes of action, penalties, costs, and expenses of whatsoever nature, including court cc, nd attorneys'
fees, which may result from: (a) injury to or death of persons whomsoever (including the License ' icers, agents, and
employees, the Licensee's officers, agents, and employees, as well as any other person); r ddamage to or loss or
destruction of property whatsoever (including Licensee's property, damage to the r d, tracks, equipment, or other
property of the Licensor, or property in its care or custody).
(b) As a major inducement and in consideration of the licens permission herein granted, the Licensee agrees to
indemnify and hold harmless the Licensor from any Loss whi due to or arises from:
1. The prosecution of rk contemplated by this Agreement including the Installation, construction,
maintenance, repair, r al, modification, reconstruction, relocation, or removal of the Wireline or any part
thereof; or
2. The presence, operation, or use of the Wireline or electric current conducted thereon or escaping
erefrom,
7 a
ene-
Section 11. REMOVAL OF WIRELINE UPON TERMINATION OF AGREEMENT.
Prior to the termination of this Agreement howsoever, the Licensee shall, at Licensee's sole expense, remove the
Wireline from the properly of the Licensor and restore such property to as good a condition as it was in before the Wirehne
was originally constructed, all to the satisfaction of the Licensor. If the Licensee fails to do the foregoing, the Licensor may
perform the work of removal and restoration at the expense of the Licensee. The Licensor shall not be liable to the Licensee
for any damage sustained by the Licensee as a result of the removal of the Wireline by the Licensor as in this section provided,
nor shall such action prejudice or impair any right of action for damages or otherwise that the Licensor may, at the time of
such removal, have against the Licensee.
wlx.exb Page 3 of Exhibit B
WLX.EXB 980112
Form Approved, AVP-Law
Section 12. WAIVER OF BREACH.
The waiver by the Licensor of the breach of any condition, covenant or agreement herein contained to be kept,
observed and performed by the Licensee shall in no way impair the right of the Licensor to avail itself of any remedy for any
subsequent breach thereof.
Section 13. TERMINATION.
(a) If the Licensee does not use the right herein granted or the Wireline for one (1) year, or If the Licensee continues in
default in the performance of any covenant or agreement herein contained for a period of thirty (30) days after written notice
from the Licensor to the Licensee specifying such default, the Licensor may, at its option, forthwith immediately terminate this
Agreement by written notice.
(b) In addition to the provisions of subparagraph (a) above, this Agreement may be terminated by written notice given by
either party hereto to the other on any date in such notice stated, not less, however, than thirty (30) days subsequent to the date
upon which such notice shall be given.
(c) I Notice of default and notice of termination may be served personally upon the Licensee or by mailing to the last
known address of the Licensee. Termination of this Agreement for any reason shall not affect any of the rights or obligations of
the parties hereto which may have accrued, or liability, accrued or otherwise, :which'may have arisen prior thereto.
Section 14. AGREEMENT NOT TO BE ASSIGNED.
The Licensee shall not assign this Agreement; in whole or in part, or any rights herein granted, without the written
consent of the Licensor, and it is agreed that any transfer or assignment orri attempted 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 Licensor, shall terminate this Agreement.
Section 15. SUCCESSORS AND ASSIGNS
Subject to the provisions of Section 14 hereof, this Agreement shall be binding upon and inure to the benefit of the
parties hereto, their heirs, executors, administrators, successors and assigns.
wlx.exb Page 4 of Exhibit