Loading...
1996-123A \SRAIL ORD ORDIN CE 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 Clty, a contract between the C~ty of Denton and the Kansas City Southern Rallway Company for the construction and maintenance of wires across the r~ght of way and tracks of the railway company, a copy of which ~s attached hereto and mncorporated by reference herein SECTION II That the expenditure of funds as set forth an the Contract ls hereby authorized SECTION III That this ordinance shall become effective ~mmed~ately upon ~ts passage and approval PASSED AND APPROVED this the~-day of ~ , 1996 JAC~ ATTEST JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY WIRE CROSSING CONTRACT THIS AGREEMENT, made end entered into th~e 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 McKmney Street, Denton, Texas 76201, hereinafter referred to as the "Licensee" WITNESSETH WHEREAS, the Licensee desires to construct and maintain wires, hereinafter described, across the right of way and tracks of the Railway Company end across the telephone, telegraph, e~gnal end other w~ree of the Railway Company and The Western Umon Telegraph Company, the latter wires being hereinafter referred to aa "Company wires", NOW, THEREFORE, IT IS AGREED AS FOLLOWS I iPERMIT =OR CROSSING For the sole conven.; nce and accommodation of the L~censee and at ~ts sole risk and expense, and in consideration of the covenants of the L~censee hcremafter set forth, the Railway Company hereby permits the Licensee to construct, maintain and operate a crossing (here~n referred to as wire crossing) consisting of proposed overhead 13.2 KY power line crossing Railway property and tracks at M P. D-103 2+/-, aa Ind~catsd 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 t~mes maintained, so as to g~ve a minimum clearance of twenty-e~ght (28) feet above the ra~ls m the tracks of the Railway Company, allowing for sag, and so as to clear the Company wires at least two (2) feet The L~censee shall, at ~ts own expense, erect and malntsin its poles and wires Irt 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 hght and power transmms~on hnes 3 Material and workmanship shall be satisfactory to the Railway Company's authorized representative, both aa to renewal and repair Should Railway Company consider it necessary or desirable to supervise the installation or removal of wire I~ne or to provide flagging protecluon of its trains during such installation or removal, Licensor shall provide such supervision or flagging protection and Licensee shall reimburse Licensor for its reasonable costs and expenses AIl expense in connection w~th 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 ~nd~catsd 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 ra~l of any side track 5. MAINTENANCE The Ucansae 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 ~t shall come to the attention of the Railway Company that the same ,s not being so maintained, the L~censee will, on written request of the Railway Company, at any ttme, promptly make such renewals or repairs in wire crossing as shall be des~gnatsd by the Railway Company, and ~f the Ucensee fails w~th;n ten (10) days to comply with such request, the Railway Company may make such renewals and reps;rs, th® cost of which the Licensee agrees to pay, or the Railway Company may, at its opt;on, wholly remove the crossing w~res, and the supporting structures, condu~ts and appurtenances from the right of way. 6 ADDITIONAL WIRES OF UCENSEE. In the event the Ucenese desires to ,netsll 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 not~fy the Railway Company and the ~nstallatlon of same shall be subject to the consent and approval in writing of the Railway Company, and all such add~tional wires shall be placed and erected in accordance w~th the aforesaid spec~flcation 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 braid add,tional track or tracks, depots, yards, or any other structure that may be necessary or des,rable ,n connect,on w,th 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 therew,th shall become necessary, or ~f 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 w~th reference to the crossing, the Licensee shall, at its own cost and expense, w,thm th,rty (30) days after receipt of written notice from the Railway Company so to do, relocate, rearrange, reconstruct or rev,se the ~wire crossing in such manner as to conform to the requirements of the Railway Company 8 CONSIDERATION. INDEMNITY In cons,derat~on of the hcense and permission here~n granted, and to the extant perm,ttsd by law the Ucensee 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 hab~lity, or otherwise) made by any and all persons for accidents or iruunea arising from or growing out of the presence, use and operat,on of the L~censes'e poles, towers, wires end appurtenances on the Railway Company's r,ght of way, or from the escape of current therefrom and from any payments wh;ch the Railway Company and other compames, or any of them, may make to its or their employees and their beneflc;ar;es, or any of them under the provis~ons of any compensation law or other sim,let law or under the provis,ons of any plan for employees' benefits adopted by the Ra,lway Company and other companms, or any of them, in settlement for accidents or mjunes arising from or grow,ng out of the failure of the L~censes to construct and maintain the wire crossing as here;n prowded Licensee shall indemmfy the aforementioned compames as prowded in this paragraph unless such loss anses out of the sole negligence of those companies The Ucensee recogmzes the danger ,nc,dent to the operation of trains over the tracks of the Railway Company in the vicinity of the wire cross,ng, and agrees to adopt and enforce upon its employees engaged in constructing, reconstructing or ma,nts,nmg the wire crossing proper rules and regular,one for their safety while on or near such tracks To the extend permitted by law, the Ucensee assumes all liab~lity for ,njuriee to all persons engaged ~n such work and agrees to ,ndemmfy and hold harmless the Ra,lway Company and other companies operating trains over its tracks from any llabihty for such injuries except when the same Is caused by the neghgence of the Railway Company or such other compames, 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 L~censee'e duty of ~ndemniflcaflon This agreement ia made m part for the benefit of other compames operat,ng over the Railway Company's tracks and any of the companies may sue to enforce the prowsions hereof, either jointly or severally, as their ,ntsrests may be joint or several None of the companies shall be liable for any damage (except that w~ilfully done) to the w~re crossing, however caused 9 OTHERS NOT TO USE' The Licensee shall not permit others to install wires ,n the crossing, but ~f done, then the obhgat~ons, duties and hab~ht;es here;n ~mposed upon the L,censes shall be the 2 same ss to such wires, es though they were the wires of the Licensee 10 TAXES The Uceneee shall promptly pay all taxes, essessmenta end other governmental or mumcipal charges upon its property located upon the right of way of the Railway Company end comply with ell governmental or municipal rules and regulations covering the operation of electrical trensmismon lines of the character constructed, erected or operated hereunder 11 ENGiNEERINGANDACCOUNTINGEXPENSE Llcensee agrees to pay for use of LIcensor's nght-of*wey end the privilege hereby granted, the sum of TWO HUNDRED FIFTY AND NO/100 DOLLARS ($250 00) upon execution of this contract As additional consideration for the privileges granted hereby, should Rmlway Company in the future require power for its mgnsi facilities in the ares of the aforementJoned instalist~on, I~censee shall, upon request from the Railway Company, provide transformer and power drop to serve the signal facilities 12 TERM Th~s permit shell continue so long a; the wire crossing of the Licensee does not ~ntarfere 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 Radway Company the w~re crossing does not constitute a hazard to Rmlway 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 w~re 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, w~thm thirty i30) days after notice thereof to the Ucensee, be removed from the Rmlway Company's right of way by the Licensee at its own expense If at any time the hcensee shall fail to maintain its wire crossing a8 herein 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 prowded, or shall be removed from the Railway Company's premises w~th~n thirty (30) days after notice from the Railway Company to remove the wire crossing Neither the service of the not.ce herein provided for, nor the termination of th~s License shall operate in any manner whatsoever to relieve or release the Licensee from any obhgations or habd~ty to the Railway Company theretofore accruing under the terms hereof Upon the termination of this agreement in any manner the Ucensee shall immediately remove its property from the premises of the Railway Company, and ~n the event of its fadure so to do, the Railway Company may remove the same at the cost of the Idcensee Rights herein granted are personal and not assignable without Rmlway Company's wnttan consent However, the prowsions of this Agreement shall be binding upon the successors and assigns of both of the part~as 13. If the operation or maintenance of the w~re line shall at any time cause interference, including, but not limited to, physical interference from electromagnetic mduct~on, electrostatic induction, or from stray or other currents with the fac~htms of Rmlway Company or of any lessee or licensee of Railway Company, or in any manner interferes with the operation, maintenance or use by Rmlway Company of its right of way, tracks, structures, pole lines, mgnal and communicaUon lines, radio or other equipment, devices, other property or appurtenances thereto, Licensee agrees immedmtaly to make such changes In Its own lines and furnish such protective dewcee to Railway Company and its lessees or hcensees as shall be necessary in the judgment of Railway Company's representative to elim~nata 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 fall to ehminata such interference, and It is deemed necessary by the proper officer of Railway Company hawng jurisdic~on therein that any or all fac~hties of Rarlwey 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 m~lhamperss, rms, to ground In the event It is determined that such current, at any time. exceeds 5 0 m~lhamperes, rms. Rmlway Company shall have the right to require such installer;on or mod,hcat~on as may be necessary to reduce the current to 5 0 milliamperes, rms. or less. and the entire cost of the ~nstallat;on or modification shall be borne by the Licensee. 14, ENVIRONMENTAL CLAUSE, The Licensee shall not permit hazardous waste, hazardous substances or hazardous materiels on or in the area covered by th;e agreement w~thout the written consent of the Railwav The Licensee shall at all t~mes keep the ares covered by th~s agreement in a safe. clean and sanitary condition, and shall not mutilate, damage, m~suse, alter or permit waste thermn Should any discharge, leakage, sp~llage or emission of any hazardous waste, hazardous substance or hazardous matanal or pollution of any k~nd occur upon, in, into, under or from the area covered by this agreement due to the Licensee's use and occupancy thereof, the L~csnsee, at ~ts sola cost and expense, shall clean all property affected thereby, to the satisfaction of the Rmlway and any governmental body having jurisdlc+aon thereover The Licensee shall comply w~th all apphcable ordinances, rules, regulaluons, 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 cond,t~ons on the premises end shall furnish sat;sfactory evidence of such compliance upon request by the Railway If, as a result of the LJcensee's operation hereunder, any such ordinance, rule, regulation, requirement, decree, consent decree, judgment, permit or law is violated, or if, as s 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 th~s agreement (~nclud~ng surface, subsurface, mrborne and/or ground contamination), to the extent permitted by law, the Licensee shall protect, save harmless, defend and ~ndemnify the Railway from and agmnst any penalties, hnes, costs, response, remedial, removal and clean-up costs, correct~ve action, natural resource damage and damages and expenses of any other nature whatsoever, Includ~ng legal fees and court costa, imposed upon or incurred by the Rmlway, caused by, resulting from or in connection with such violation or violations For the purposes of th~s Environmental Section, and to the extent permitted by law, the L,censee agrees to defend. ~ndemnify and hold harmless the Railway from and agmnst any and all clmms, demands, actions, liability, responsibility and causes of action (whether arising ,n or out of tort. contract, strict hab~hty, or otherwise) asserted agmnst them for death, injury, loss or damage resulting to the Rallway'e employees or property, or to the Licensee or the L~censee's employees or property, or to any other persons or their property, and for all pena]t~es, 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. re]atad to or happening ,n connection w,th the breach of the duties, obligations and respons;b~i~ties of L, censee and ~ta agents. servants, emplovees, contractors and representat,ves under paragraph 15 of this Agreement For the purposes of this Environmental Section, the L~censee further agrees that ~ta obhgat,on of ~ndemnlty hereunder pursuant to this section shall be stnct and absolute, and shall remain in full force and effect ~rrespect~ve of any negligence on the part of the Rmlway, except th~t~t~s indemnity should not apply w~ere the harm or circumstance arises out of the sole negligence of the Railway Company. 15 So long aa this Agreement Is In effect Ucensee agrees to mmntain comprehensive, general, and contractual Imb~lity insurance with minimum lim~ts of ~ 1,000,000 per occurrence, together w~th umbrella coverage over all policies in the minimum amount of $5,000,000 In addition, Ucensee shall provide or require minimum statutory workmen's compensation coverage for all covered employees who are on L~ceneee'a property. A certificate of insurance w~ll be provided to Ucensor by IJceneee prior to ~nstalling the wire hne licensed under th~s Agreement L~censor agrees that Ucensee may satmfy its obhgatlon to provide minimum insurance through a self-~nsurance program so long as' (1) Uceneee's insurance program compl~ss w~th all applicable laws and regulations, (2) L~censee'a program is operated and maintained in a reasonable and prudent manner and (3) L~censee'a self-~neurance program ~s primarily responmble for lose payments due under the terms of th~s Agreement 16 Licensee egreee to furnish Uceneor w~th e cert~fmd copy of resolut,on or ordinance adopted by the City of Denton authorizing the Mayor and City Clerk to execute th,s contract on behalf of the C~ty IN WITNESS WHEREOF. the parties hereto have executed th~s agreement ~n duphcata on the day and year heremabove first written THE KANSAS CITY SOUTHERN RAILWAY COMPANY Approved: By V P and Chief Engineer Title Senior V.P, - Ooerations Approved as to form. CITY OF DENTON, TEXAS Legal Department By A~n Title Ma~/r Titl~/~ 'C;er~ ~ ~ C S Ma,n L,ne (old AT SF) 25' To Dalton Jct To Cleburne Sta 5450+65*/- - MP D-1032*/-- REVISmNS E XHISIT "A" OVERHEAD WIRE CROSSING TELEPHONE WIRES 28 FEET THE KANSAS CITY SOUTHERN RY CO ANY OVERHEAD OBSTRUCT]ON 28 FEET ELECTR]C LIGHT AND POWER WIRES CARRYING LESS THAN 750 VOLTS 28 FEET Proposed overheod 15 2 .KV 750 TO 15,000 VOLTS 28 FEET Power Line Crossing at 15,000 TO 50,000 VOLTS 30 FEET MORE THAN 50,000 VOLTS, 30 FEET PLUS Mile Post D-103 2./- ~n b~ INCH FOR EACH 000 VOLTS N EXCESS OF 50,000 (~V'S - 50 X 0416667 I + 30 Denton, Texos NOTE PROPOSEO OVERHEAD WIRE CROSS]NOS THE KANSAS CITY SOUTHERN RAILWAY COMPANY 114 WEST ELEVENTH STREET KANSAS CITY, MISSOURi 64105 1804 (S]6)5560247 July 22, 1996 Mr. Jerry Drake City Attorney City of Denton, Texas Municipal Building Denton, TX 76201 Dear Mr. Drake. For your records I am enclosing executed copy of Wire Crossing Contract dated April 15, 1996 entered into between the KCS Rallway Company and the City of Denton, Texas, covering proposed overhead 13.2 KV power line at M.P. D-103.2± in Denton, Texas. Yours truly, Admxn Mgr - Engr. BJW/pd