2012-307ORDINANCE NO. 2012 -307
AN ORDINANCE APPROVING A PIPELINE CROSSING CONTRACT BY AND
BETWEEN THE CITY OF DENTON, TEXAS AND THE KANSAS CITY SOUTHERN
RAILWAY COMPANY RELATING TO THE LOCATION OF A CITY WATER PIPELINE
WITHIN RAILROAD RIGHT -OF -WAY, LOCATED IMMEDIATELY SOUTH OF SAID
RAILROAD RIGHT -OF -WAY'S INTERSECTION WITH US HIGHWAY 380 AT MILE
POST 105.88, ALLIANCE SUBDIVISION WITHIN THE COUNTY AND CITY OF DENTON
TEXAS; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING
AN EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The Mayor, or his designee, is hereby authorized to execute a Pipeline
Crossing Contract between the City of Denton, Texas and the Kansas City Southern Railway
Company in substantially the form of the Pipeline Crossing Agreement which is attached to and
made a part of this ordinance for all purposes, for the purpose of locating a City water pipeline
within the right -of -way of said railroad.
SECTION 2. The City Manager is authorized to make the expenditures as set forth in
the attached Contract.
SECTION 3. That this ordinance shall become effective immediately upon its passage
and approval.
PASSED AND APPROVED this the day of / , 2012.
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
AP OVED TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY:
JLL Reference No. 12 -1537
PIPELINE CROSSING CONTRACT CS Contract No.
THIS AGREEMENT is entered into this 13'h day of September, 2012 by and between THE KANSAS CITY
SOUTHERN RAILWAY COWANY, a Missouri corporation, called herein "Licensor ", and CITY OF DENTON,
TEXAS, to be addressed at 901 -A Texas St., Denton, TX 76209, called herein "Licensee ".
1. Licensor, without any warranty or guarantee of suitability of the premises for Licensee's or any other
purpose, hereby permits Licensee a license to construct, maintain, operate, use and remove a proposed water pipeline under
Licensor's tracks and right -of -way at Mile Post 105.88 (Alliance Subdivision) at or near Denton (Denton County), Texas, the
course of the pipeline being described as follows:
As indicated on print of drawing no. 12 -1537 dated 07 -23 -2012 and approved 08 -27 -2012, marked
Exhibit "A ", attached hereto and incorporated herein by reference.
The rights granted under this Agreement are subject to all outstanding superior rights whether or not of record
(including those in favor of licensees and lessees of Licensor's property, and others) and the right of Licensor to renew and
extend the same, and is made without covenant of title, or for quiet eiijoynient. Licensor does not warrant title aaad Licensee
accepts the rights granted herein and shall make no claim against Licensor for deficiency of title. Licensee acknowledges
that the Licensor's interest in the sight -gal -way varies from segment to segment and may include lesser interests than fee title.
Licensee shall, at Licensee's scale cost and expense, obtain any and all necessary rights and consents from parties other than
Licensor which may have or claim any right, title or interest in the property upon which the Licensor's right -of -way is
located.
2. The carrier pipe shall consist of 21.06" x 160' ductile iron having a minimum wall thickness of 0.42" and
minimum yield point of 42,000 PSI, which carrier pipe shall be encased in a 40" x 166' (160' on Licensor's right -of -way)
steel casing pipe having a minimum wall thickness of 0.625" and a minimum yield point of 35,000 PSI. Maximum
operating pressure of the pipeline shall not be greater than 100 PSI. Licensee expressly agrees that its under -track
installation shall be by dry bore and jack method and that no boring or excavation shall occur within Licensor's right -of -way,
nor shall any boring occur in the track embankment. The angle of the pipeline crossing beneath Licensor's property and
tracks shall be no less than 70 °.
Construction, maintenance, operation, use and removal of tine pipeline shall not endanger the safety or condition of
Licensor's property in any way, or the operation of trains or cars, and the pipeline shall be laic) at a minimum depth of 26'
below the bottom of Licensor's base of rail and at a minimum depth of 6' below ground level at all other" points can the right-
of-way. Excavations made on Licensor's property shall be promptly refilled by Licensee, the earth well tamped, and the
ground left in the same condition as before laying of the pipeline.
The pipeline shall be maintained so as to prevent the escape of its contents being conveyed. Connections or valves
shall not be placed in the pipeline nearer than forty feet (40') from the center of Licensor's nearest track. Further, the pipeline
and its operation and use, shall comply with any and all applicable governmental laws, rules, and regulations, The parties
hereby incorporate tlae requirements of 41 C.F.R. §§ 60- 1.4(a)(7), 60- 250.5, 60- 741,5, and 29 C.F. R, part 470, relating to
equal employment opportunity, if applicable. If required by Li
JLL Reference No. 12 -1537
Should Licensor at any time decide a change in the location or other changes in the pipeline are desirable, Licensee
will at its cost make the changes at Licensor's request, and, upon the failure of Licensee to do so, Licensor may make such
changes at Licensee's expense, which expense Licensee expressly agrees to pay upon receipt of the bill.
Should Licensor's work require this waterline be relocated due to bridge and/or track work and/or expansion,
Licensee expressly agrees to pay cost of relocation upon presentation of the bill of said waterline to Licensor at Licensee's
sole cost and expense.
LICENSEE HEREBY ASSUMES ANY AND ALL RISKS ARISING OUT OF, INCIDENT TO, OR IN ANY
WAY CONNECTED WITH THE CONSTRUCTION, MAINTENANCE, OPERATION, USE OR REMOVAL OF
THE PIPELINE. IN CONSIDERATION OF THE PRIVILEGES HEREIN GRANTED, LICENSEE, TO THE
FULLEST EXTENT PERMITTED BY LAW, EXPRESSLY AGREES TO INDEMNIFY AND SAVE HARMLESS
LICENSOR AND ANY OTHER RAILWAY COMPANIES OPERATING OVER OR USING THE TRACKS OF
LICENSOR, ITS OR THEIR OFFICERS, AGENTS, REPRESENTATIVES, CONTRACTORS, SERVANTS AND
EMPLOYEES, SUCCESSORS AND ASSIGNS, AS THE CASE MAY BE, FROM AND AGAINST ANY AND ALL
ACTIONS, PROCEEDINGS, CLAIMS, DEMANDS, LOSSES, OUTLAYS, DAMAGES, LIABILITIES AND
EXPENSES (WHETHER ARISING IN OR BASED UPON TORT, CONTRACT, STRICT LIABILITY, OR
OTHERWISE) INCLUDING ATTORNEYS' FEES, WHICH MAY BE INCURRED ON ACCOUNT OF INJURY
TO OR DEATH OF ANY PERSON WHOMSOEVER, OR LOSS OF OR DAMAGE TO ANY PROPERTY IN
ANY WAY, DIRECTLY OR INDIRECTLY, RESULTING FROM, ARISING OUT OF, OR CONNECTED WITH
THE CONSTRUCTION, MAINTENANCE, OPERATION, USE OR REMOVAL OF THE PIPELINE BY
LICENSEE OR BY ANYONE ACTING IN ITS BEHALF, ITS OR THEIR, AS THE CASE MAY BE, EXERCISE
OF OR PERFORMANCE OF OR ITS OR. THEIR FAILURE TO EXERCISE OR PERFORM ANY OF THE
RIGHTS, PRIVILEGES, DUTIES OR OBLIGATIONS GRANTED OR EV20SED UNDER THE PROVISIONS
OF THIS AGREEMENT. LICENSEE, TO THE FULLEST EXTENT PERMITTED BY LAW, AGREES TO
INDEMNIFY AND SAVE HARMLESS LICENSOR AND OTHER RAILWAY COMPANIES OPERATING
OVER OR USING THE TRACKS OF LICENSOR, ITS OR THEIR OFFICERS, AGENTS, REPRESENTATIVES,
CONTRACTORS, SERVANTS AND EMPLOYEES, SUCCESSORS AND ASSIGNS FROM AND AGAINST
THEIR OWN NEGLIGENCE, EXCEPT FOR SUCH INJURY, DEATH, LOSS OR DAMAGE WHICH MAY BE
DUE TO THE SOLE ACTIVE NEGLIGENCE OF LICENSOR, ITS OFFICERS, AGENTS,
REPRESENTATIVES, CONTRACTORS, SERVANTS, OR EMPLOYEES. LICENSEE HEREBY RELEASES
LICENSOR AND OTHER RAILWAY COMPANIES OPERATING OVER THE TRACKS FROM ANY
DAMAGE TO THE PIPELINE FROM ANY CAUSE WHATSOEVER.
4. It shall be the exclusive duty and responsibility of Licensee to inspect the property subject to this Agreement
to make sure that it is safe for the entry of its employees, agents and contractors. Licensee shall advise all of its employees,
agents and contractors entering the property of any safety hazards on the property, including, without limitation, the presence
of moving vehicles, buried cables, tripping hazards and overhead wires. Licensee shall instruct all of its employees, agents
and contractors entering the property that all persons, equipment and supplies must maintain a distance of at least twenty -five
feet (25') from the centerline of the track unless authorized by the on -site railroad flagman to be closer than twenty -five feet
(25'). Licensee shall ensure that no personnel, equipment or supplies under its control are within the clearance point of the
track when moving railroad equipment may be seen from or heard at the property subject to this Agreement. Finally,
Licensee shall adopt, publish and enforce safety rules for its employees, agents and contractors that will be on Licensor's
right of way consistent with the requirements of this Section.
5. Rights herein granted are personal and may not be assigned without Licensor's written consent. The
provisions of this Agreement shall be binding upon the successors and permitted assigns of both parties.
6. Upon termination of this Agreement, Licensee shall immediately remove the pipeline from the property of
Licensor and restore the property to its original state. Upon failure of Licensee to remove the pipeline and restore the
property to its original state, Licensor may remove it and restore the property to its original state at Licensee's expense,
which cost and expense Licensee agrees to pay.
- Page 2 of 5 -
JLL Reference No. 12 -1537
7. Licensee shall not enter nor commence construction on or under Licensor's property or right -of -way unless
accompanied by a qualified construction observer and flagger to oversee Licensee's work on Licensor's property or right -of-
way. Licensee will be responsible for all construction observer, flagging and mobilization costs, herein referred to as
"Services ", and arranging for these necessary Services associated with the installation. To enable arrangements to oversee
for these Services that are to be performed under this Agreement, Licensee must submit a written scheduling request to
Licensor's Scheduling Agent, hereinafter referred to as "Scheduling Agent", which request is received by the Scheduling
Agent for approved Licensor qualified construction observer and flagging contractor a minimum of thirty (30) Business
Days in advance before Licensee proposes to commence work on or under Licensor's property or right -of -way. (A
"Business Day" is any day Monday through Friday which is neither a federal holiday nor a state holiday at the address of
Licensor's scheduling agent stated below.) The request must contain Licensee's name, the date of this Agreement, the
location of the work to be performed, and how many consecutive Business Days will be required for Licensee to complete
the work. Licensee's written request must be delivered to Scheduling Agent at the following location:
Mr. Thomas Faulkner
Bartlett & West, Inc.
1200 SW Executive Drive
Topeka, Kansas 66615
Office: (817) 840 -1562
Fax: (817) 306 -1982
Cell: (785) 215 -2011
Email: thomas.faulkner @bartwest.com
Licensee will, upon receipt of an invoice from Scheduling Agent specifying in reasonable detail Scheduling
Agent's costs and expenses of providing these Services, reimburse Scheduling Agent for all of their costs and expenses of
providing an inspection, flagging and mobilization prior to installation.
Licensor's designation of a company or individual as a "qualified" flagger or flagger provider, or Scheduling Agent,
shall be construed solely as Licensor's willingness to allow said individual or entity to provide Services on Licensor's
property or right -of -way without further proof of qualification, and shall not. be construed as an endorsement or other
verification of the abilities or qualifications of said Scheduling Agent by Licensor. All llaggers or Scheduling Agents
provided herein shall be treated solely as independent contractors of Licensee,, with no relationship to Licensor, for all
purposes herein. Licensee and its agents, employees and contractors will clear the tracks when directed to do so by the
flagger. The presence of the flagger will not relieve Licensee of its duty to keep all of its agents, employees and contractors
clear of the tracks when trains are in dangerous proximity to the licensed area. The actions or inactions of the flagger shall
be construed for all purposes herein as the actions or inactions of the Licensee, and shall be governed by Licensee's duties of
indemnification, and saving harmless under Section 3 of this Agreement.
If Licensee's schedulin request fails to Aent at least thin ..( f1�Llrisar�css 1 }tai, b ii r�;
l.ricerasr c plawsed cornmeaacernesat of "womk,...;ac c ias�r 1ycfuse to gal &w commencemrw c�'tla vv1lca3Ltlz T:. cc's.
proposed commencement date. If Licensor will not allow the work to proceed on Licensee's proposed commencement
date because the scheduling request did not reach Scheduling Agent in time, Licensor will inform Licensee of this fact as
promptly as possible and work with Licensee to arrange an alternative commencement date for the work.
The construction observer and flagger will remain at the site on a reasonably continuous basis to oversee the
work, and charges will accrue for each day spent awaiting the completion of the work and the installation of appropriate
signs marking where Licensee's facilities enter and leave : Licensor's property and right -of-way. If installation tales
longer than contracted for with Scheduling Agent, Licensee will., upon receipt of an invoice ftom Scheduling Agent
specifying in reasonable detail Scheduling Agent's costs and expenses of providing the inspection, flagging and
mobilization, reimburse Scheduling Agent for all of Scheduling Agent's costs and expenses of providing tan inspector,
flagger and mobilization.
Once Licensee has submitted its scheduling request to Scheduling Agent, should Licensee require a change to the
scheduled date, Licensee shall provide Scheduling Agent at least two (2) Business Days' notice prior to the requested start
- Page 3 of 5 -
JLL Reference No. 12 -1537
date of the work. If Licensee fails to provide two (2) Business Days' notice of the change, Licensee shall be charged, and
agrees to pay, the daily rate, and any travel costs actually incurred, for the construction observer, flagging and mobilization for
one (1) day.
8. Licensee agrees to pay to Licensor for the use of Licensor's right -of -way and the privilege hereby granted,
such use and privilege being expressly limited to the facilities described in Section 1 above, the one -time sum of NINE
THOUSAND THREE HUNDRED SEVENTY FIVE AND NO 1100 DOLLARS ($9,375.00), due upon execution of this
Agreement.
9. The term of this Agreement shall be for a period of 10 years, beginning on the date first written above, and
will automatically renew at the end of the initial 10 -year term for additional 1 year periods until cancelled by either party upon
30 days advance notice. Notwithstanding the above, either party may terminate this Agreement at any time upon 30 days
written notice.
10. Environmental Protection: Licensee shall not permit- hazardous waste, hazardous substances or hazardous
materials (as those terms are defined in any federal, state or local law, rule, regulation or ordinance) on or in the area covered
by this Agreement without the written consent of Licensor.
Licensee shall at all times keep the area covered by this Agre- ernent in a safer, clean and sanitary condition, and shall .
not mutilate, damage, misuse, alter or permit waste therein. Should any discharge, leakage, spillage or emission of any
hazardous waste, hazardous substance or hazardous material or pollution of any kind occur capon, ire, into, under or from the
area covered by this Agreement due to Licensee's use and occupancy thereof, I.,icensee, at its sole cost and expense, shall
clean all property affected thereby, to the satisfaction of Licensor and any govenimental body lraVing.juris'diction thereover®
Licensee shall comply with all applicable ordinances, rules, regulations, requirements and laws whatsoever
including (by way of illustration only and not by way of limitation) any governmental authority or court controlling
environmental standards and conditions on the premises and shall furnish satisfactory evidence of such compliance upon
request by Licensor. IF, AS A RESULT OF LICENSEE'S OPERATION HERE ANY SUCH ORDINANCE,
RULE, REGULATION, REQUIREMENT, DECREE, CONSENT DECRrMl, JUDGMENT, PER.11'I:IT OR LANV IS
VIOLATED, OR IF, AS A RESULT OF ANY ACTION BY LICENSEE, ANY HAZARDOUS OR T:l "OXICCWASTE,
MATERIALS OR SUBSTANCES SHOULD ENTER OR OTHERWISE AFFECT ANY PART OF THE AREA
COVERED BY THIS AGREEMENT (INCLUDING SURFACE, SUBSURFACE, AIRBORNE AND /OR GROUND
CONTAMINATION), LICENSEE SHALL INDEMNIFY AND SAVE HARMLESS LICENSOR FROM AND
AGAINST ANY PENALTIES, FINES, COSTS, RESPONSE, REMEDIAL, REMOVAL AND CLEAN -UP COSTS,
CORRECTIVE ACTION, NATURAL RESOURCE DAMAGE AND DAMAGES AND EXPENSES OF ANY
OTHER NATURE WHATSOEVER, INCLUDING LEGAL FEES AND COURT COSTS, IMPOSED UPON OR
INCURRED BY LICENSOR, CAUSED BY, RESULTING FROM OR IN CONNECTION WITH SUCH
VIOLATION OR VIOLATIONS.
FOR THE PURPOSES OF THIS ENVIRONMENTAL PROTECTION SECTION, LICENSEE AGREES
TO INDEMNIFY AND SAVE HARMLESS LICENSOR FROM AND AGAINST ANY AND ALL CLAIMS,
DEMANDS, ACTIONS, LIABILITY, RESPONSIBILITY AND CAUSES OF ACTION (WHETHER ARISING IN
OR OUT OF TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) ASSERTED AGAINST THEM FOR
DEATH, INJURY, LOSS OR DAMAGE RESULTING TO LICENSOR'S EMPLOYEES OR PROPERTY, OR TO
LICENSEE OR LICENSEES EMPLOYEES OR PROPERTY, OR TO ANY OTIIER PE16ONS OR TILETR
PROPERTY, AND FOR ALL PIWALTIES, FINES, C:OS'I °S, RESPONSE, RE, MOVAL, IZEMEDCAL AND CLEAN
SIP COSTS, CORRECTIVE ACTION, NATURAL RESOURCE DAMAGE AND DAMAGES AND EXPENSES ENSES OIL,
ANY OTHER NATURE WHATSOEVER, INCLUDING LEGAL FEES AND COURT COSTS, ARISING FROM,
RELATED TO OR HAPPENING IN CONNECTION WITH THE USE OF THE AREA COVERED BY THIS
AGREEMENT BY LICENSEE AND ITS AGENTS, REPRESENTATIVES, SERVANTS, EMPLOYEES AND
CONTRACTORS.
- Page 4of5-
JLL Reference No. 12 -1537
FOR THE PURPOSES OF THIS ENVIRONMENTAL PROTECTION SECTION, LICENSEE FURTHER
AGREES THAT ITS OBLIGATION OF INDEMNIFICATION AND SAVING HARMLESS HEREUNDER
SHALL BE STRICT AND ABSOLUTE AND SHALL REMAIN IN FULL EFFECT IRRESPECTIVE OF ANY
NEGLIGENCE ON THE PART OF LICENSOR.
11. So long as this Agreement is in effect Licensee agrees to maintain comprehensive general liability and
contractual liability insurance that covers Licensee's maximum potential liability under the Texas Tort Claims Act.
Licensee may discharge this obligation through a self- insurance, self- retention program that satisfies all applicable laws,
rules and regulations.
12. Licensee agrees to furnish Licensor with a certified copy of resolution or ordinance adopted by the City of
Denton, Texas, authorizing the Mayor and City Clerk to execute this contract on behalf of the City.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in triplicate by their
authorized representatives as of the date first above written.
THE KANSAS CITY SOUTHERN RAILWAY COMPANY
By
Title T '� r w t`
Date: fa.
CITY
By:
Title:
Date:
Attest:
"SIT ° Lo +" , �"
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
By:
,r I'PI VED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
By... ....m.. .
i
- Page 5 of 5 -
W. qt
4 E
L
X
IN
11
6
z
O
2
LL
uj
IL
U)
z
Q�
LLJ
z
H.
02
U) 0
UQ
U)
z
96 CC
co
pce
194
:)O—Z)
0 LL U)
I'd
LU
Oz
Uj
U)
M
CA
ZO
1: UOCO,
X 0
,Uj�-ORZ
LLI Z Z U) Li
Q 0
,
o::i Lu 0
0
a- UJ
LL
....
...... . . .
-E
44
'Os
U
:3 �tl.
8941
AS
ev
2
04
(1099
L
em as E,
aw
asb 45
L
z
w
ac
C.)
D Q)
E l)
(D c
z
m
LU
J
—
190" lilt
rX
uu
N
.J
tt
,
A0
LU
rj.
C�,�
C-4
0
kr
re, (n
O
z
Ion, 106
c
S'
C4
It
U.
6
z
O
2
LL
uj
IL
U)
z
Q�
LLJ
z
H.
02
U) 0
UQ
U)
z
96 CC
co
pce
194
:)O—Z)
0 LL U)
I'd
LU
Oz
Uj
U)
M
CA
ZO
1: UOCO,
X 0
,Uj�-ORZ
LLI Z Z U) Li
Q 0
,
o::i Lu 0
0
a- UJ
LL
....
...... . . .
-E
Or) a l Ij
.
d5
"D 03
U
:3 �tl.
'S '121
ev
2
ly,
v) Lu
em as E,
aw
asb 45
L
z
w
ac
C.)
D Q)
E l)
(D c
z
m
LU
J
—
rX
uu
N
.J
,
A0
LU
rj.
C�,�
0
re, (n
c
S'
It
U.
6
z
O
2
LL
uj
IL
U)
z
Q�
LLJ
z
H.
02
U) 0
UQ
U)
z
co
O z O�Zln
:)O—Z)
0 LL U)
LU
Oz
Uj
U)
W , �ui
Oz C)
ZO
1: UOCO,
X 0
,Uj�-ORZ
LLI Z Z U) Li
,
o::i Lu 0
0
a- UJ
LL
....
...... . . .
-E
.
d5
"D 03
U
:3 �tl.
ev
2
a)
em as E,
aw
asb 45
L
z
w
D Q)
E l)
(D c
LU
m
LU
J
—
6
z
O
2
LL
uj
IL
U)
z
Q�
LLJ
z
H.
02
U) 0
UQ
U)
z