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20-631o�rNaNCE No. - 20-631 AN ORDINANCE APPROVING A PIPELINE CROSSING CONTRACT BY AND BETWEEN THE CITY OF DENTON, AND THE KANSAS CITY SOUTHERN RAILWAY COMPANY RELATING TO THE LOCATION OF A CITY SEWER PIPELINE WITHIN THE RAILROAD RIGHT-OF-WAY, LOCATED AT THE RAILROAD'S INTERSECTION WITH HIGHLAND PARK ROAD AT MILE POST D103.02 ALLIANCE SUBDIVISION, WITHIN THE COUNTY AND CITY OF DENTON, TEXAS; AUTHORIZING THE CITY MANAGER TO EXECUTE THE AGREEMENT; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the Courts of Bonnie Brae Development filed a final plat in the public records of Denton County on May 24, 2018; and WHEREAS, the required public improvements associated with the development include extending an 8-inch public sewer main across Kansas City Southern Railway Company ("KCSRR") right-of-way; and WHEREAS, KCSRR requires a crossing contract for infrastructure placed within its right-of-way; and WHEREAS, the City of Denton ("City") will own the sewer main infrastructure; and WHEREAS, the City Council finds that entering into the crossing contract with KCSRR serves a public interest; 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 as true and correct. SECTION 2. The City Manager, or his designee, is authorized to execute a Pipeline Crossing Contract between the City of Denton, and 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 a11 purposes, for the purpose of locating a City sewer pipeline within the right-of-way of said railroad. SECTION 3. The City Manager is authorized to carry out all obligations, including the expenditure of funds, as set forth in the attached Contract. SECTION 4. This ordinance shall become effective immediately upon its passage and approval. The motion to approve this Ordinance was made by �%ESSE�/� V �S and seconded by ��i✓ �j/�q/I/ ; the Ordinance was passed and approved by the following vote [� - Q] : Chris Watts, Mayor: Gerard Hudspeth, District 1: Keely G. Briggs, District 2: Jesse Davis, District 3: John Ryan, District 4: Deb Ann.intor, At Large Place 5: Paul Meltzer, At Large Place 6: � � ✓ ✓ � v ✓ ✓ ✓ Abstain Absent PASSED AND APPROVED this the c���day of 2020. i' CHRIS T, , MAYOR ATTEST: ROSA RIOS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: AARON LEAL, CITY ATTORNEY r � � 1• ' � 7LL Reference No. 18-11702 PIPELINE CROSSIATG CONTRACT (KCS Contract Na _) THIS AGREEMENT is effective this 24th day of March 2020 by and between THE KANSAS CITY SOUTHERN RAILWAY COMPANY, a Missouri corporation, called herein "Railway Company," and THE CITY OF DENTON, to be addressed at 215 E. McKinney Street, Denton, Texas, 76201, called herein "Licensee". l. Railway Company, 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 sewer pipeline under Railway Company's tracks and right- of-way at Mile Post D103.02 (Alliance Subdivision) Denton (Denton County), Texas, the course of the pipeline being described as foilows: As indicated on print of drawing No. 18-11702 dated 3-12-2019 and approved 3-12-2019, 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 ticensees and lessees of Railway Company's property, and others) and the right of Railway Company to renew and extend the same, and is made without covenant of title, or for quiet enjoyment. Railway Company does not warrant title and Licensee accepts the rights granted herein and shall make no claim aga.inst Railway Company far deficiency of title. Licensee acknowledges that the Railway Company's interest in the right-of-way varies from segment to segment and may include lesser interests than fee title. Licensee shail, at Licensee's sole cost and expense, obtain any and all necessary rights and consents from parties other than Railway Company which may have or claim any right, title or interest in the property upon which the Railway Company's right-of-way is located. 2. The carrier pipe shall consist of 8.625" x 177' PVC SDR-35 having a minimum wall thickness of 0.240" and a minimum yield point of 1,000 PSI and shall be encased in a 16.00" x 17?' steel pipe, having a minimum wall thickness of 0.500" and a minimum yield point of 35,000 PSI. Maximum operating pressure of the pipeline shall not be greater than gravity. Licensee expressly agrees that its under-track installation shatl be by dry bore and jack method and that nv boring or excavation shall occur within Railway Company's right-of-way, nor shall any boring occur in the track embankment. The angle of the pipeline crossing beneath Railway Company's property and tracks shall be na less than 57°. Construction, maintenance, operation, use and removal of the pipeline shall not endanger the safety or condition of Railway Company's property in any way, or the operation of trains or cars, and the pipeline shall be laid at a minimum depth of 6.7' below the bottom of Ra.ilway Company's base of rail and at a minimum depth of 3' below ground level at all other points on the right-of-way. Excavations made on Ra.ilway Company'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 JLL #18-11702, Sewerline in Denton, TX Page 1 of 7 conveyed. Connections or valves shall not be placed in the pipeline nearer than forty feet (40') from the center of Railway Company's nearest track. Further, the pipeline and its operation and use, shali comply with any and all applicable governmental laws, rules, and regulations. The parties hereby incorporate the requirements of 41 C.F.R. §§ 60-1.4(a) ('�, 60-250.5, 60- 741.5, and 29 C.F.R. Part 470, relating to equal employment opportunity, if applicable. If required by Railway Company, gates and check valves shall be placed in convenient locations. Licensee agrees that no hydrostatic pressure testing shall be allowed unless the carrier pipe has been encased in a steel casing meeting Railway Company and AREMA specifications. Construction, maintenance, operation, use and removal of the pipeline shatl not endanger the safety or condition of Railway Company's employees or property in any way, or the operation of trains or cars. The location of the pipeline 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 do so, repairs may be made by Railway Company at Licensee's expense, which cost Licensee expressly agrees to pay upon presenta.tion 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. LICENSEE HEREBY ASSUMES ANY AND ALL RISKS ARISIlVG 4UT OF, INCIDENT TO, OR IN ANY WAY CONNECTED WITH THE CONSTRUCTION, MAINTENANCE, OPERATION, USE OR REMOVAL OF THE PIPELINE. IN CONSIDERA.TION OF THE PRIVILEGES HEREIN GRANTED, LICENSEE, TO THE FULLEST EXTENT PERMITTED BY LAW, EXPRESSLY AGREES TO INDEMNIFY AND SAVE HARMLESS RAILWAY COMPANY AND ANY OTHER RAILWAY COMPANTES QPERATING OVER OR USING THE TRACKS OF RAILWAY COMPANY, 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 1NCURRED ON ACCOUNT OF INNRY TO OR DEATH OF ANY PERSON WHOMSOEVER, OR LOSS OF OR DAMAGE TO ANY PROPERTY IN ANY WAY, DIRECTLY QR INDIRECTLY, RESULTING FROM, ARISING OUT OF, OR CONNECTED WITH THE NEGLIGENT C�NSTRUCTION, MAINTENANCE, OPERATION, USE OR REMOVAL OF THE PIPELINE BY LICENSEE OR BY ANYONE ACTING 1N ITS BEHALF, ITS OR TI�IR, AS THE CASE MAY BE, EXERCISE OF OR PERFORMANCE OF OR I'I'S OR THEIR FAILURE TO EXERCISE OR PERFORM ANY OF THE RIGHTS, PRIVILEGES, DUTIES OR OBLIGATIONS GRANTED OR IMPOSED UNDER TI-IE PROVISIONS OF THIS AGREEMENT. LICENSEE, TO THE FULLEST E�TENT PERMITTED BY LAW, AGREES TO INDEMNIFY AND SAVE HARMLESS R.AILWAY COMPANY AND OTHER RAILWAY COMPANIES OPERATING OVER OR USING THE TRACKS OF RAILWAY COMPANY, ITS OR THEIR OFFICERS, AGENTS, REPRESENTATIVES, JLL #18-11702, Sewerline in Denton, TX Page 2 of 7 CONTRACTORS, SERVANTS AND EMPLOYEES, SUCCESSORS AND ASSIGNS FROM �11ND AGAINST THEIR OWN NEGLIGENCE, EXCEPT FOR SUCH INJURY, DEATH, LOSS OR DAMAGE WHICH MAY BE DUE TO THE SOLE ACTIVE NEGLIGENCE OF RAILWAY COMPANY, ITS OFFICERS, AGENTS, REPRESENTATIVES, CONTRACTORS, SERVANTS, OR EMPLOYEES. LICENSEE. HEREBY RELEASES RAILWAY COMPANY 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, includ'vng, 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 shatl adopt, publish and enforce safety rules for its employees, agents and contractors that will be on Railway Company's right of way consistent with the requirements of this Section. 5. Rights herein granted are personal and may not be assigned without Railway Company'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 fill pipeline with a suitable flowable fill material and seal (casings abandoned or replaced by new location work shall be backfilled by methods and materials as directed by the Engineer). The location of abandoned facilities shall be recorded and records maintained by the pipeline owner. Licensee shall restore the property tv its original state. Upon failure of Licensee to fill the pipeline and restare the property to its original state, Railway Company may fill it and restore the property to its original state at Licensee's axpense, which costs and expense Licensee agrees to pa.y. 7. Licensee shall not enter nor commence construction on or under Railway Company's property or right-of-way unless accompanied by a Railway Corrtpany qualified construction observer and flagger ta oversee Gicensee's work on Railway Company'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 assaciated 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 reyuest to Railway Company's Scheduling Agent, hereinafter referred to as "Scheduling Agent", which request is received by the Scheduling Agent for approved Railway Company qualified construction observer and flagging contractor a minimum of thirty (30) Business Days in advance before Licensee proposes to commence work on or under Railway Company'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 Railway Company's scheduling agent stated below.) The request must contain JLL #18-11702, Sewerline in Denton, TX Page 3 of 7 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 camplete the work. Licensee's request must be delivered to Scheduling Agent by contacting Bartlett & West at 785-228-3101 to leave a message and/or by sending an email to: kcscrossingsri� bartwest.com. Licensee wiil 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 af their costs and expenses of providing an inspection, flagging and mobilization prior to installation. Railway Company's designation of a company or individual as a Railway Company "quafified" flagger or flagger pravider, or Schedu(ing Agent, shall be construed solely as Railway Company's willingnessto ailow said individual or entity ta provide Services on Railway Company'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 Railway Company. All flaggers or Scheduling Agents provided herein shall be treated solely as independent contractors of Licensee, with no relationship to Railway Cornpany, for all purposes herein. Licensee and its agents, employees and contractors wi11 cleax 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 sha[1 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 t6is Agreement. If Licensee's scheduling request fails to reach Scheduling Agent at least thirty (301 Business Davs before Licensee's pronosed commencement of wark. Railway Comnan�ma,y refuse to allow commencement of the work on the Licensee's proposed commencement date. If Railway Company will not allow the work to proceed an Licensee's proposed commencement date because the scheduling reyuest did not reach Scheduling Ageni in time, Railway Company 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 Railway Company's property and right-of-way. If installation takes longer than contracted for with Scheduling Agent, Licensee will, upon receipt of an invoice 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 of Scheduling Agent's costs and expenses of providing an inspector, flagger and mobitization. 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 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. JLL #18-11702, Sewerline in Denton, TX Page 4 of 7 8. Licensee agrees to pay to Railway Company 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 above, the one-time sum of N[NE THOIISAND THREE HUNDRED SEVENTY-FIVE AND NU/lA0 D�LLARS ($9,375.00) upon execution of this Agreement. Licensee shall pay Railway Company an additional license fee, set in accordance with Railway Company's then current fee schedule, for any additional pipelines, wires or facilities permitted by Railway Company and associated with the crossing. 9. The terrtt of this Agreement shall be for a period of ten (10) years, beginning on the date first written above, and will automaticaliy renew at the end of the initial ten (l Q) year term for additional one (1) year periods unti 1 cancelled by either party upon thirty (30} days advance notice. Notwithstanding the above, either party may terminate this Agreement at any time upon thirty {30) days written notice. 10. Environmental Protection: Licensee shatt not permit hazardous waste, hazardous substances or hazardous materials (as those terms are defined in any federal, state vr local law, rule, regulation or ordinance) on or in the area covered by this Agreement without the written consent 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 or permit waste therein. Should any discharge, leakage, spillage or emission of any hazardous waste, hazardous substance or hazardaus material or pollution af any kind occur upon, in, into, under ar from the area covered by this Agreement due to Licensee's use and occupancy thereof, Licensee, at its sole cost and expense, shall clean atl property affected thereby, to the satisfaction of Railway Company and any governmental body having jurisdiction thereover. Licensee shall comply with all applicable ordinances, rules, regulations, rec�uirements 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 Railway Company. IF, AS A RESULT OF LICENSEE'S OPERATION IiEREtJNDER ANY SUCH ORDiNANCE, RULE, REGULATION, REQUIREMENT, DECREE, CONSENT DECREE, JUDGMENT, PERMIT aR LAW IS VIOLATED, OR IF, AS A RESULT OF ANY ACTION BY LICENSEE. ANY HAZARDOUS OR TOXIC WASTE, MATERIALS OR SUBSTANCES SHOULD ENTER OR OTHERWISE AFFECT ANY PART OF THE AREA COVERED BY THIS AGREEMENT (INCLUDING SURFACE, SUBSURFACE, AIRBORN� AND/OR GROUND CONTAMINATTON), LICENSEE SHALL, TO THE EXTENT ALI.OWED BY LAW, 1NDEMNIFY AND SAVE HARMI.ESS RAfLWAY COMPANY FROM AND AGAINST ANY PENALTIES, F1NES, C�STS, RESPONSE,REMEDIAL, REMOVAL AND CLEAN-UP COSTS, CORRECTIVE ACTION, NATURAL RESOURCE DAMAGE AND DAMAGES AND EXPENSES OF ANY OTFiF,R NATURE WHATSOEVER, INCLUDING LEGAL F�ES AND COURT COSTS, IMPOSED UPON OR INCURRED BY RAILWAY COMPANY, CAUSED BY, RESULTING FROM OR IN CONNECTIQN WITH SUCH VIOLATION UR VIOLATIONS. FOR THE PURPOSES OF THIS ENVIRONMENTAL PROTECTION SECTION, JLL #18-11702, Sewerline in Denton, TX Page 5 of 7 LICENSEE AGREES TO INDEMNIFY AND SAVE HARMLESS (AS ALLOWED BY LAW) RAILWAY COMPANY I'ROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, ACTIONS, LIABILITY, RESPONSIBTLITY AND CAUSES OF ACTION (WHETHER ARiSING IN OR OUT OF TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) ASSERTED AGAINST THEM FOR DEATH, INdURY, LOSS OR DAMAGE RESULTING TO RAILWAY COMPANY'S EMPLOYEES OR PROPERTY,OR TO LICENSEE OR LICENSEE'S EMPLOYEES 4R PRC?PERTY, QR TO ANY OTF�R PERSONS OR THEIR PROPERTY, AND FOR ALL PENALTIES, FINES, COSTS, RESPONSE, REMOVAL, REMEDIAL AND CLBAN I3P COSTS, C�RRECTIVE ACTI(�N, NATURAL RESOURCE DAMAGE AND DAMAGES AND EXPENSES OF 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. 11. So long as this Agreement is in effect Licensee agrees to maintain comprehensive general liability and contractual Ziability insurance with minimum limits of two million dallars ($2,004,000.00) per occurrence, four million doilars ($4,004,000.00) aggregate. Licensee shall provide automobile liability coverage in the amount of one mitlion dotlars ($1,000,000.00) combined single limit. In additian, Licensee shall provide or require minimum statutory worker's compensation coverage for all covered employees who are on Railway Company's property. Licensee, or Licensee's contractors, must also provide a Railroad Protective Liability Insurance policy naming the Railway Company as the Named Insured with coverage limits of at least two million dollars ($2,000,000.00) per occurrence and six mitlion dollars ($6,000,000.00} aggregate. The original Raitroad Prot�ctive Liability policy shall be promptiy furnished to Railway Company. Each policy must be issued by financially reputable insurers licensed to do business in all jurisdictions where work is performed during the term of the Agreement. A certificate of insurance will be provided to Railway Company by Licensee, reasonably satisfactory to Railway Company in form and content, evidencing that all required coverage is in force and have been endorsed to provide that no policy will be canceled or materially altered without first giving the Railway Company thirty (30) days' prior written notice. Commercial general liability policy will name Railway Company as an additional insured and, to the fullest extent allowed under law, will confain 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 for acts or omissions of Licensee or anyone for whom Licensee is responsible. Any deductible or self-insured retentian on the required insurance shall be the responsibility of Licensee. Licensee will include copies of relevant endorsements or policy provisions with the reyuired certificate of insurance. Nothing contained in this Section limits Licensee liability to the Railway Company to the limits af insurance certified or carried by Licensee. If Licensee utilizes subcontractors in performance of this Agreement, the subcontractors must meet the same insurance requirements as the Licensee. If a subcantractor does not meet the coverage requirements of this Section, subcontractor must either supplement the deficient areas of caverage or Licensee must certify that Licensee has acquired su�cient coverage to supplement the deficiency of subcontractor. The Licensee, at its sole discretion, may choose to self-insure any and all of the insurance requirements listed in this section. If Licensee chooses to self-insure the insurance requirements listed in this section, Licensee shatl submit to Railway Company a letter listing the coverages for which Licensee is self-insuring and stating that the self-insurance will remain in effect until withdra.wn by natice to Railway Company, which notice must be accompanied by a certificate of insurance showing the required 7LL #18-11702, Sewerline in Denton, T'X Page 6 of 7 coverages, or a substitute letter for self-insurance. Licensee's self-insurance shail nat 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 nothing cantained in this section shall supersede or invalidaie the immunities, protections, and damage caps available to Licensee under the Texas statutory and/or common law. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in duplicate by their authorized representatives as of the date first above written. THE KANSAS CITY SQUTHERN RAII,WAY COMPANY �� Srikanth Honnur, P.E. TITLE: Track and Bridge Construction Director ���� � � � i � r�i�� DATE: ``��y p F � f N� ��i .`` �� : ''•.,o.y % � v;' • ' THE CIT OF ENT � . � � � � — = ' '*= ir � • _ . = : : - BY: % �. .: : � , „••. �,,.�• � �: Todd Hileman, City Manager �- �'• .....•• p �� 'b ♦ ,' ��� � e�►� ����` DATE: ��/ 02 D�. 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