18-335S:\Legal\dur pocuments\Ordinances\18\KCSRR Ordinance - 42-inch Water Line Contract - South Bonnie Brae - TL rev,doc
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WHEREAS, the total amount af $9,375.00 is available from the project fund for the
project work; and
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ION 2. The City Manager is authorized to make expenditures as set forth in the
SE.C.T ..................
attached Contract.
SECTION 3w. This ordinance shall become effective immediately upon its passage and
approval.
µ W µ � r h r m e was ��� and
The motion �����a ��w, t�s��o�rdinanc�e was mad e o d' �0/G�
to � � y _ __
seconded by �� ���� _ �_ �^ p�ed and approved by
the following vote � '� - �: � ��
Mayor Chris Watts:
Gerard Hudspeth, District 1:
Keely G. Briggs, District 2:
Don Duff, District 3:
John Ryan, District 4: Q,GJ�
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Dalton Gregory, At Large Place 5:
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Sara Bagheri, At Large Place 6: ......................... .._f. �.
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PASSED AND APPROVED this the ��. da of �„ 2018.
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ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY� _�����"� �° � ��_,°�_��°�� ��_�� fi�'� �� w
APPROVED AS TO LEGAL FORM:
AARON LEAL, CITY ATTORNEY
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JLL Reference No, 17-10936
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THIS AGREEMENT is effective this 15th day of March, 2018 by and between THE KANSAS
CITY SOUTHERN RAILWAY COMPANY, a Missauri corporatian, called herein "Railway Campany",
and CITY OF DENTON, to be addressed at 901-A Texas, Denton, Texas, 76209, called herein "Licensee".
1. Railway Company, without any warranty ar guarantee af suitability of the premises for
Licensee's ar any other purpose, hereby permits Licensee a license to canstruct, maintain, operate, use and
remove a proposed potable water pipeline under Railway Campany's tracks and right-af-way at Mile Post
D103,24 (Alliance Subdivisian) Dentan (Dentan County}, Texas, the caurse of the pipeline being described
as foflows:
As indicated an print af drawing no. 17-10936 dated 1-10-2018, marked Exhibit "A",
attached hereta and incarporated herein by reference.
The rights granted under this Agreement are subject to all outstanding superior rights whether or not
af recard (including those in favor of licensees and lessees of Railway Company's property, and others) and
the right of Railway Company ta renew and extend the same, and is made without covenant of title, or far
quiet enjoyment. Railway Campany does not warrant title and Licensee accepts the rights granted herein
and shall make no claim against Railway Campany far deficiency of title. Licensee acknowledges that the
Railway Campany's interest in the right-af-way varies from segment to segment and may include lesser
interests than fee title. Licensee shall, at Licensee's sale cost and expense, obtain any and all necessary
rights and consents from parties other than Railway Campany which may have or claim any right, title ar
interest in the property upon which the Railway Company's righi-af-way is located.
2. The carrier pipe shall consist of 42.00" x 369' steel having a minimum wall thickness of
0.500" and a minimum yield point of 40,000 PSI and shall be encased in a 60.0099 x 369' steel having a
minimum wall thickness of 0.844" and a minimum yield point of 40,000 PSI. Maximum operating pressure
of the pipeline shall not be greater than 200 PSI. Licensee expressly agrees that its under-track installatian
shall be by dry bore and jack method and that no boring or excavation shall accur within Railway
Campany's right-of-way, nar shall any boring occur in the track embankment. The angle of the pipeline
crossing beneath Railway Company's praperty and tracks shall be no less than 24°.
Construction, maintenance, operatian, use and removal af the pipeline shall nat endanger the safety
or condition of Railway Company's praperty in any way, or the operation af trains or cars, and the pipeline
shall be laid at a minimum depth of 21' below the bottom af Railway Company's base of rail and at a
minimum depth of 15' below graund level at all other points on the right-af-way. Excavations made an
Railway Company's property shall be promptly refilled by Licensee, the earth well tamped, and the ground
left in the same conditian 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
Railway Campany's nearest track. Further, the pipeline and its operatian and use, shall camply with any and
all applicahle governmental laws, rules, and regulatians. The parties hereby incorporate the requirements af
41 C.F.R. §§ 60-1.4(a) (7}, 60-250.5, 60-741.5, and 29 C.F. R. part 470, relating ta equal employment
opportunity, if applicable. If required by Railway Campany, gates and check valves shall be placed in
convenient lacatians. Licensee agrees that na hydrostatic pressure testing shall be allowed unless the
carrier pipe has been encased in a steel casing meeting Railway Company and AREMA specifcations.
Constructian, maintenance, operation, use and removal of the pipeline shall not endanger the safety
or candition of Railway Company's employees ar praperty in any way, or the operation af trains or cars.
- Page 1 of 6-
JLL Reference No. 17-10936
The location of the pipel ine shall be marked, with markers maintained and plainly visible at the right-of-way
lines.
3. Licensee shall promptly make necessary repairs to the pipeline, and, in the event of
Licensee's failure to da so, repairs may be made by Railway Company at Licensee's expense, which cost
Licensee expressly agrees to pay upon presentation of the bill.
Should Railway Company 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 Railway Company's request, and, upon
the failure of Licensee to do so, Railway Company may make such changes at Licensee°s expense, which
expense Licensee expressly agrees to pay upon receipt of the bill.
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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')
fram the centerline of the track unless authorized by the on-site railroad flagman to be closer than twenty-
fve feet (25'}. Licensee shall ensure that no personnel, equipment or supplies under its control are within
JLL Reference Na. 17-10936
the clearance paint af the track when moving railroad equipment may be seen from or heard at the praperly
subject to this Agreement. Finally, Licensee shall adopt, publish and enforce safety rules far its emplayees,
agents and contractors that will be on Railway Company's right af way consistent with the requirements of
this Sectian.
5. Rights herein granted are persanal and may not be assigned without Railway Campany's
written consent. The provisians of this Agreement shall be binding upon the successars and permitted
assigns of both parties.
6. Upon termination af this Agreement, Licensee shall fill pipeline with a suitable flaw able
fill material and seal (casings abandoned or replaced hy new location wark shall be backfilled by methods
and materials as directed by the Engineer}, The locatian of abandoned facilities shall be recorded and
recards maintained by the pipeline owner. Licensee shall restore the praperty ta its original state. Upon
failure af Licensee ta fill the pipeline and restare the praperty ta its original state, Railway Campany may
fill it and restore the praperly to its original state at Licensee's expense, which cost and expense Licensee
agreesto pay.
7. Licensee shall nat enter nar commence construction an ar under Railway Company's
property or right-of-way unless accompanied by a Railway Company qualified construction observer and
flagger to oversee Licensee's wark on Railway Campany's property ar right-of-way. Licensee will be
respansible for all construction abserver, flagging and mabilization costs, herein referred to as "Services",
and arranging far these necessary Services assaciated with the installatian. To enable arrangements ta
oversee far these Services that are to be perfarmed under this Agreement, Licensee must submit a written
scheduling request ta Railway Company's Scheduling Agent, hereinafter referred to as "Scheduling Agent",
which request is received by the Scheduling Agent for approved Railway Company qualified canstruction
observer and flagging contractor a minimum of thirty (30) Business Days in advance before Licensee
praposes to commence wark on or under Railway Campany's property or right-af-way. (A 66Business Day99
is any day Monday through Friday which is neither a federal haliday nor a state holiday at the address of
Rai(way Company's scheduling agent stated belaw.} The request must cantain Licensee's name, the date
of this Agreement, the location of the wark to be performed, and haw many consecutive Business Days
will be required for Licensee to complete the work. Licensee's request must be delivered to Scheduling
Agent by contacting Bartlett & West at 785-22$-3101 to leave a message and/ar by sending an email to
8���,�;.�_c���� ����ti���E��t w'���r�. ^�t„� <;rt�;�.
Licensee will, upan receipt of an invoice from Scheduling Agent specifying in reasonable detail
Scheduling Agent's costs and expenses af providing these Services, reimburse Scheduling Agent for all
af their costs and expenses of providing an inspection, flagging and mabilization priar to installation.
Railway Company's designation of a company or individual as a Railway Company bbqualified"
flagger or flagger provider, or Scheduling Agent, shall be construed solely as Railway Company's
willingness to allaw said individual or entity to provide Services on Railway Campany's property or right-
of-way without further praof af qualification, and shall not be construed as an endorsement or other
verification of the abilities or qualificatians of said Scheduling Agent by Railway Campany. All flaggers ar
Scheduling Agents provided herein shall be treated solely as independent contractors of Licensee, with no
relatianship to Railway Company, for all purposes herein. Licensee and its agents, employees and
contractors will clear the tracks when directed to do sa by the flagger. The presence af the flagger will not
relieve Licensee af its duty to keep all of its agents, emplayees and contractars clear af the tracks when
trains are in dangerous praximity ta the licensed area. The actians or inactions af the flagger shall be
construed for all purposes herein as the actians or inactions of the Licensee, and shall be governed by
Licensee's duties af indemnification, and saving harmless under Section 3 af this Agreement.
- Page 3 of 6-
JLL Reference No. 17-10936
I�"I�:i�,cm����:,�."�..��I��cl���is��„..r�c���.��4 dbaMl� i�a oca�,��q;,�cd�_a�..�i.����r��.;i���.�i7i ��t l��r��_�.1�Nri �;_:�(�� I�go�i�i����, fw)�r��.�
w�r���w��"� .��r��gac,����� �„�b�rrn��u�,�t�������,n� �al wvc��fl�;�� ����uI�4;N.� C"tpp�qw��4�r��"..._�������----N�fi�°�� 1�� ��1.,J�.���
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ca,����,���+�����,������1 ��I;°_tN�� r�v���b, ���r_fl:17� G,i��r���,c;'.�.I�rr,����cs��,�� c���a.��N����t�:t,�t.ra�,�r� �1��1c,,, IfRailway Company will
not allow the wark ta proceed an Licensee's proposed cammencement date because the scheduling
request did nat reach Scheduling Agent in time, Railway Company will infarm Licensee of this fact as
promptly as passible and work with Licensee ta arrange an alternative cammencement date for the wark.
The constructian observer and flagger will remain at the site on a reasanably continuous basis to
oversee the work, and charges will accrue for each day spent awaiting the completion of the work and the
installatian of appropriate signs marking where Licensee's facilities enter and leave Railway Company's
property and right-of-way. If installation takes langer than contracted for with Scheduling Agent,
Licensee will, upan receipt of an invaice from Scheduling Agent specifying in reasonable detail
Scheduling Agent's costs and expenses of praviding the inspection, flagging and mobilization, reimburse
Scheduling Agent for all af Scheduling Agent's costs and expenses of praviding an inspectar, flagger and
mobilization.
Once Licensee has submitted its scheduling request ta Scheduling Agent, should Licensee require a
change ta the scheduled date, Licensee shall provide Scheduling Agent at least two (2) Business Days' notice
prior to the requested start 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 mobilizatian far ane (1) day.
8. Licensee agrees to pay to Railway Campany for the use of Railway Company's right-of-way
and the privilege hereby granted, such use and privilege being expressly limited to the facilities described in
Section 1 abave, the ane-time sum of NINE THOUSAND THREE HUNDRED SEVENTY-FI�E AND
NO/100 DOLLARS ($9,375.00} upon execution af this Agreement. Licensee shall pay Railway Company
an additional license fee, set in accordance with Railway Company's then current fee schedule, far any
additional pipelines, wires or facilities permitted by Railway Company and associated with the crossing.
9. The term af this Agreement shall be for a period af ten (10} years, beginning on the date first
written above, and will automatically renew at the end of the initial ten (10} year term for additional ane (1)
year periods until cancelled by either party upon thirty (30) days advance notice. Notwithstanding the abave,
either party may terminate this Agreement at any time upon thirty (30) days written notice.
10. Environmental Protection: Licensee shall not permit hazardous waste, hazardaus
substances or hazardous materials (as thase terms are defined in any federal, staie ar local law, rule,
regulation ar ordinance) on ar in the area covered by this Agreement without the written cansent of Railway
Company.
Licensee shall at all times keep the area covered by this Agreement in a safe, clean and sanitary
condition, and shall not mutilate, damage, misuse, alter ar permit waste therein. Shauld any discharge,
leakage, spillage or emissian of any hazardous waste, hazardaus substance or hazardous material or
pallution of any kind occur upan, in, inta, under or fram the area covered by this Agreement due to
Licensee's use and occupancy thereof, Licensee, at its sole cost and expense, shall clean all property affected
thereby, to the satisfactian af Railway Campany and any governmental body having jurisdiction thereover.
Licensee shall comply with all applicable ordinances, rules, regulations, requirements and laws
whatsoever including (by way of illustration only and nat by way of limitatian) any governmental authority
or caurt contralling environmental standards and conditions on the premises and shall furnish satisfactory
evidence of such campliance upon request by Railway Campany. IF, AS A SULT OF LICENSEE'S
OPE TION E EU ER, ANY SUC O ANCE, ULE, GULATION,
- Page 4 of 6-
JLL Reference No. 17-10936
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11. So lang as this Agreement is in effect Licensee agrees to maintain comprehensive general
liability and contractual liability insurance with minimum limits of twa million dollars ($2,000,000.00)
per occurrence, four million dollars ($4,000,000.00) aggregate. Licensee shall pravide automobile
liability coverage in the amount af one million dollars ($1,000,000.00) cambined single limit. In additian,
Licensee shall provide ar rec{uire minimum statutary worker's compensation coverage for all covered
employees who are on Railway Campany's property. Licensee, or Licensee' s
contractors, must also provide a Railraad Protective Liability Insurance policy naming the
Railway Company as the Named Insured with coverage limits of at least twa million dallars
($2,000,000.00) per occurrence and six millian dollars ($6,000,000.00) aggregate. The original Railroad
Pratective Liability policy shall be pramptly furnished ta Railway Company. Each policy must be issued
by financially reputable insurers licensed ta do business in all jurisdictians where work is performed
during the term af the Agreement. A certificate af insurance will be pravided to Railway Company by
Licensee, reasonably satisfactory to Railway Campany in form and content, evidencing that all required
caverage is in force and have been endarsed to pravide that na policy will be canceled or materially
altered without first giving the Railway Company thirty (30) day's prior written notice. Commercial
general liability policy will name Railway Company as an additianal insured and, ta the fullest extent
allowed under law, will contain a waiver of subrogation in favor of Railway Company. All policies will
be primary to any insurance or self-insurance the Railway Company may maintain far acts ar omissions
of Licensee or anyone for whom Licensee is respansible. Any deductible or self-insured retention on the
required insurance shall be the responsibility of Licensee. Licensee will include capies of relevant
endorsements or policy provisions with the required certificate of insurance. Nothing contained in this
Section limits Licensee liability ta the Railway Company to the limits of insurance certified or carried by
- Page 5 of 6-
JLL Reference Na. 17-10936
Licensee. If Licensee utilizes subcontractors in performance of this Agreement, the subcontractors must
meet the same insurance requirements as the Licensee. If a subcontractor does not meet the coverage
requirements of this Section, subcontractor must either supplement the deficient areas of coverage or
Licensee must certify that Licensee has acquired sufficient coverage to supplement the deficiency of
subcontractor, The Licensee, at its sole discretion, may choase to self-insure any and all af the insurance
requirements listed in this sectian. If Licensee chooses to self-insure the insurance requirements listed in
this section, Licensee shall submit to Railway Campany a letter listing the coverages for which Licensee
is self-insuring and stating that the self-insurance will remain in effect until withdrawn by notice to
Railway Company, which natice must be accampanied by a certificate of insurance shawing the required
coverages, or a substitute letter for self-insurance. Licensee's self-insurance shall not extend to Licensee's
contractor(s). The requirement to name the Railway Company as an additional insured shall be waived
for those areas the Licensee chooses to self-insure.
The Parties agree that nathing contained in this section shall supersede or invalidate the
immunities, protections, and damage caps available to Licensee under the Texas statutory and/or common
law.
IN ITNESS W E EOF, the parties hereta have caused this Agreement to be executed in
duplicate by their authorized representatives as af the date frst above written.
:
. �; � . � �.
Srikanth Honnur, P.E.
Title: Track and Brid�e ( t�z��I:�-aa�ti�n Director
If . -
CITY OF DENTON
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ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY: ���`� ���'��.��� �.�.`�.�� .....�� �� �y, ,�����
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APPROVED AS TO LEGAL FORM:
AARON LEAL, CITY ATTORNEY
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