2009-147FILE REFERENCE FORM 2009-147
X Additional File Exists
Additional File Contains Records Not Public, According to the Public Records Act
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FILES Date Initials
Amended by Ordinance No. 2009-194 09/01/09 JR
siour documents\ordinances\09\geophysical survey license ordinance-pw.doc
ORDINANCE NO. 2009- A/~
AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AUTHORIZING THE CITY
MANAGER TO ISSUE LICENSES FOR GEOPHYSICAL TESTING AND SURVEY
PURPOSES WITHIN MUNICIPAL STREETS AND MUNICIPAL LANDS; AND
PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City of Denton has received requests to perform discrete
geophysical testing and survey operations within municipal streets and or upon the
surface estate of lands owned by the City of Denton; and,
WHEREAS, staff has reviewed the requests to perform such testing and surveying
operations and recommends that it is in the public's interest to have a formal licensing
procedure established to facilitate such requests; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The findings and recitations contained in the preamble of this
ordinance are incorporated herein by reference.
SECTION 2. The City Manager, or the City Manager's designee, is hereby
authorized to enter "Geophysical Survey License" agreements, substantially in the form
attached hereto and made a part hereof for all purposes.
SECTION 3. This ordinance shall become effective immediately upon its
passage and approval.
PASSED AND APPROVED this/l day of 2009.
MARK A. BURR JG , OR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY: %~u hx I I h ~ to 't 4~
APPRO ED AS O LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY: Z
Page 1
s:\our documents\forms\contracts\6eophysical survey license.doc
GEOPHYSICAL SURVEY LICENSE
THIS LICENSE AGREEMENT is made and entered into this day of
2009, by and between the City of Denton, Texas, a Texas home rule
municipal corporation (hereinafter referred to as "City"), and , a
(`Licensee").
WHEREAS, City owns the surface estate and/or rights of way for street or road purposes
in certain lands described on Exhibit "A" attached hereto, located in Denton County, Texas
(herein collectively referred to as the "Premises"); and
WHEREAS, Licensee desires to conduct certain geophysical operations on the Premises;
and
WHEREAS, the City is amenable to Licensee conducting geophysical operations upon
the Premises, on the terms and conditions as set forth herein.
NOW, THEREFORE, the City allows access to the Premises to Licensee, upon the
following terms and conditions:
I . The City, for and in consideration of the payments and other mutual promises and
covenants as set forth herein, permits and licenses access to the Premises without warranty of
any kind, including without limitation, warranties of title, unto Licensee, for the purpose of
conducting a geophysical survey on and across the Premises.
2. Licensee shall notify City and all landowners located within three hundred feet
(300') of any vibration point source location, in writing, substantially in the form of Exhibit "B",
attached hereto, at least fifteen (15) calendar days prior to undertaking any activities
contemplated pursuant to this License, providing with specificity (i) the proposed scope of the
activities; (ii) the dates of the activities; (iii) the identity of the parties performing the activities,
including telephone contact information of such parties; and (iv) the times of any and all such
activities. All such activities shall be completed within thirty (30) calendar days of their
inception. Notwithstanding anything to the contrary herein, this License shall expire and
terminate thirty (30) calendar days after the date of inception of such activities, the date of
inception being deemed for all purposes to be the beginning date of the activities as provided in
the notice by Licensee to City as provided herein.
3. Licensee shall pay to City, on or before the delivery of this License to Licensee,
the sum of (i) Twenty Five Dollars ($25.00) per surface acre (i.e., not proportionately reduced)
of the surface estate tracts; and (ii) Twenty-Five and No/100 Dollars ($25.00) per crossing,
incursion or encroachment of or upon any street or roadway, for the purposes of conducting
seismic surveys on and across the Premises, as provided herein.
4. The rights to Licensee provided under this License are without any warranty of
title, either express or implied, concerning the Premises, including any warranties that might
arise by contract, implication, statutory, or otherwise, including without limitation, Section 5.023
of the Texas Property Code. Licensee expressly stipulates to City that it is taking whatever
rights are provided by this License and the Premises, AS IS, WHERE IS, with no representations
or warranties of any nature or of any kind, either express or implied, by the City.
5. Licensee shall conduct all of its operations hereunder in accordance with best
practice standards for seismic surveying and shall comply with all federal, state and local
ordinances, including, without limitation, ordinances related to nuisance and noise, laws, rules
and regulations, as well as with all FAA regulations, and regulations, restrictions and
requirements of the police, fire and health departments of the City now or hereafter in effect
which are applicable to its operations. Licensee shall obtain and keep in effect at its own cost
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and expense, all licenses, permits, including without limitation, permits required by the City and
taxes incurred or required in connection with this License and its operations hereunder. Licensee
stipulates to City that it understands there may be pipelines and/or other utilities located upon
and encumbering all or a portion of the Premises, and Licensee accepts this License subject to
said encumbrances and shall utilize utmost due care in its operations not to damage or trespass
upon any such pipelines and/or utilities. Under no circumstance or event shall any vibration
point source be located directly above any such pipelines or utilities or within the set back
distance from said pipelines or utilities, as deemed satisfactory by the authorized representatives
of the City of Denton. Notwithstanding anything herein to the contrary, and without limiting the
generality of Section I I(e) below, Licensee shall be solely responsible for any and all damages
to such pipelines and/or utilities caused by or related to activities conducted pursuant to this
License.
6. Payment has been made to City, or will prior to delivery of this License to
Licensee be made to City, whom Licensee and City expressly acknowledge is a surface and/or
right of way owner only in the Premises. Such payment does not include any payment due, if
any, to holders of easements, surface and/or mineral lessees, mineral owners, royalty owners
and/or any other party and/or parties. Additionally, this License does not purport to license or
allow any rights to Licensee as concerns the owners of such interests and encumbrances.
Licensee agrees not to enter upon the Premises for any purpose whatsoever until permission of
all of the owners of such encumbrances or interests have been obtained.
7. Prior to conducting any operations hereunder, Licensee shall provide to City with
a marked segment of a "Tobin" or similar map identifying the proposed route of the seismograph
lines and/or any other seismograph or geophysical activities. The proposed route shall be in
3
compliance with all terms of this License. The seismograph lines and/or other surface activities
shall follow the lines indicated on the plat to be furnished by Licensee. Within three (3) calendar
days after completion of all geophysical operations hereunder, Licensee shall provide to the City
a map showing all surface vibration point source locations relating to the activities permitted
hereunder on the Premises.
8. Licensee shall have the right to begin operations under this License upon, and
only upon, compliance with all conditions under this License, including without limitation, all
terms and conditions of Section 2, Section 3, Section 5, Section 6, Section 7 and Section 8. Prior
to entry for each geophysical survey mobilization event upon City of Denton owned surface
estate tracts, Licensee shall first obtain a "Site Entry Letter" from the Real Estate Division of the
City. Prior to each separate crossing, incursion or encroachment of or upon any street or
roadway, Licensee shall first obtain a "Right-of-Way Inspection Permit" from the Public Works
Inspection Division, including the payment of all applicable permit fees. The City representative
or representatives designated by the City Manager of City shall have the right to approve the
plans for the geophysical activities to be performed on the Premises, to place restrictions,
obligations and instructions upon Licensee in addition to those specifically provided by this
License and to observe the activities of Licensee hereunder to ensure that such activities are
conducted in accordance with the terms of this License.
Except as may be permitted or authorized by the City, by and through the City Engineer,
no street or highway in the City of Denton shall be blocked or obstructed during the activities
permitted by this License. The placement or location of any cable, geophone, or other
infrastructure related to the activities permitted by this License shall be placed so as to not
interfere with the use by the City or the public of streets, sidewalks, alleys, easements, or other
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lands of the City or private property and shall be in accordance at all times with the directives of
the of the City of Denton authorized representative(s). Licensee shall not, under any
circumstance, disturb in any way, manner or form, the surface of any street, sidewalk, alley,
easement or highway within the Premises.
9. If Licensee (i) uses the Premises for purposes other than the rights licensed
herein; (ii) uses the Premises in a manner inconsistent with the rights licensed herein; or (iii)
breaches or fails to comply with any term or condition of this License, as determined reasonably
by the City, the City may exercise any and all rights and remedies available to it by law, equity,
contract or otherwise, including, without limitation, the right to declare this License null and
void whereupon Licensee shall have no further rights of usage of the Premises.
10. The rights licensed by this License convey no interest in the real property or real
property interests comprising the Premises. No rights to any other lands or interests owned by
City, or located within the City, other than the Premises, are provided herein.
ii. Insurance, Indemnity and Performance Bond
A. Insurance and Indemnity. Licensee shall provide or cause to be provided the
insurance described below upon execution of this License and maintained during the term of this
License.
a. Commercial General Liability Insurance. This coverage must include
premises/operations, blowout or explosion, products/completed operations, blanket
contractual liability, underground property damage, broad form property damage,
independent contractors and personal injury. This coverage shall be a minimum
Combined Single Limit of $1,000,000 per occurrence for Bodily Injury and Property
Damage. The insurance shall also include coverage for Environment Impairment.
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b. Excess Liability Insurance. Excess Liability Insurance shall be provided with
limits of not less than $5,000,000.00 annual aggregate.
C. Worker's Compensation Insurance. In addition to the minimum statutory
requirements:
(1) Employer's Liability limits of at least $100,000 for each accident, $100,000 for
each employee, and a $500,000 policy limit for occupational disease; and
(2) The insurer agrees to waive rights of subrogation against the City, its officials,
agents, employees, and volunteers for any work performed for the City by the
Licensee; and
(3) The Licensee shall comply with the provisions of with Section 406.096 of the
Texas Labor Code and rile 28TAC 110.110 of the Texas Worker's Compensation
Commission.
d. Automobile Liability Insurance.
(1) Minimum Combined Single Limit of $500,000 per occurrence for Bodily Injury
and Property Damage; and
(2) The Business Auto Policy must show Symbol 1 in the Covered Autos Portion of
the liability section in Item 2 of the declarations page which includes coverage for
hired, leased and non-owned vehicles.
C. Indemnification. Licensee shall and hereby does indemnify, defend and hold
harmless the City, its officers, agents, elected officials and employees from all suits,
actions or claims of any character, name and description brought for or on account of any
injuries or damages received or sustained by any person, persons or property on account
of or related to the operations of the Licensee, its agents, employees, contractors or
subcontractors; or on account of or related to any action or omission of Licensee, its
agents, employees, contractors or subcontractors, related to the rights licensed herein,
and/or the occupation of City owned property or property interests by Licensee, its
agents, employees, contractors and subcontractors, in connection with or related to the
obligations or rights of the Licensee under this License; and shall pay any loss, damage,
6
claim and any judgment, with costs, which may be incurred by, occasioned upon or be
obtained against the City, its officers, agents, elected officials and employees growing
out of or related to such injury or damage, INCLUDING BUT NOT LIMITED TO
LIABILITY, CLAIMS AND DAMAGES ARISING FROM OR CAUSED IN WHOLE
OR IN PART, THE NEGLIGENCE OF ANY KIND. TYPE OR DEGREE OF THE
CITY OF DENTON, ITS OFFICERS, AGENTS, ELECTED OFFICIALS AND
EMPLOYEES. IT IS UNDERSTOOD AND AGREED THAT THE INDEMNITY
PROVIDED FOR IN THIS SECTION IS AN INDEMNITY EXTENDED BY THE
LICENSEE TO INDEMNIFY AND PROTECT THE CITY OF DENTON TEXAS ITS
OFFICERS, AGENTS, ELECTED OFFICIALS AND EMPLOYEES FROM AND
AGAINST ITS OWN NEGLIGENCE WHETHER THAT NEGLIGENCE IS THE
SOLE OR THE CONTRIBUTING OR CONCURRENT CAUSE OF THE
RESULTANT INJURY, DEATH AND/OR DAMAGE.
E General provisions
(1) All policies shall be endorsed to read "THIS POLICY WILL NOT BE
CANCELLED OR NON-RENEWED WITHOUT 30 DAYS ADVANCED
WRITTEN NOTICE TO THE OWNER AND THE CITY EXCEPT WHEN
THIS POLICY IS BEING CANCELLED FOR NONPAYMENT OF PREMIUM,
IN WHICH CASE 10 DAYS ADVANCE WRITTEN NOTICE IS REQUIRED".
(2) Commercial General Liability and Automobile Liability insurance shall be written
by companies with A: VIII or better rating in accordance with the current AM
Best Key Rating Guide.
(3) Commercial General Liability, Automobile Liability, and Excess Liability
insurance policies shall name as "Additional Insured" the City and its officials,
agents, employees, and volunteers.
(4) Certificates of insurance must reflect all coverages and endorsements required by
this section.
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Coverage shall be placed with insurance carriers licensed to do business in the State of Texas or
with nonadmitted carriers that have a financial rating comparable to carriers licensed to do
business in Texas approved by the City.
B. Performance Bond. Licensee shall provide a performance bond, in the amount
of Fifty Thousand Dollars ($50,000.00), to secure Licensee's obligations under this License.
The performance bond shall be executed by a surety company authorized to do business in the
State of Texas in accordance with Chapter 2253 of the Texas Government Code.
12. Licensee shall conduct all operations in due regard to the surface of the Premises,
and, in addition to any other requirements that may be imposed upon Licensee as provided by
Section 8, above, shall: (i) not access any part of the Premises which is unpaved during wet
conditions; (ii) not use any explosive charges of any kind or nature; (iii) report to the Fire
Department of the City any and all fires or other health or safety related conditions observed
during the activities hereunder, and shall utilize any and all efforts necessary to prevent and
suppress any fires on the Premises; (iv) only conduct activities permitted by this License (a)
within the hours of 9:00 a.m. and 2:30 p.m. and/or Saturdays and Sundays, within any street or
roadway designated as a school zone; and (b) on Saturdays and Sundays, within streets or
roadways designated as "arterial" by the City; (v) conduct all operations upon portions of the
Premises not described in Section 12(iv), above, within the legal time periods of operation for
the erection, excavation, demolition, alteration or repair work on buildings as prescribed by
Section 20-1(d)(3)(0, Code of the City of Denton, Texas; (vi) repair all vibration point source
locations where such activities are permitted, and return the Premises to the condition thereof
prior to entry upon or thereupon by Licensee, to the nearest extent practicable on or before the
termination of this License; (vii) not place upon the Premises any truck or other equipment with
8
a gross vehicle weight in excess of 14,000 pounds; (viii) conduct all operations authorized by
this License so as not to cause any damage to pipelines, whether water, sewer, gas or product of
any type, utility lines, water wells and structures of any kind; and (ix) not cause or create a
resultant particle velocity in excess of .35 inches per second, as measured at the nearest
residential structure, office structure, or light commercial type structure.
13. The City may immediately terminate this License at any time without cause upon
notice to Licensee. This License shall expire one hundred twenty (120) calendar days after its
issuance if not sooner terminated or expired pursuant to the terns hereof.
14. For the purposes hereof, any notice or communication required in the
administration of this License shall be sent by United States Mail, certified, return receipt
requested, or hand delivered, to the City as follows:
City of Denton With Copy to:
City Manager Real Estate Manager
215 E. McKinney 901 A Texas Street
Denton, Texas 76201 Denton, Texas 76201
Any notice or communication required in the administration of this License shall be sent or hand
delivered to Licensee as follows:
Licensee:
Notice shall be deemed delivered and received upon the mailing or hand delivery of notice.
15. The rights licensed to Licensee herein by City shall not be assigned or transferred
without the express written consent of the City of Denton, Texas, acting by and through the City
Manager, or his designee. Any purported assignment without such consent is null and void for
all purposes.
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16. This License and the exhibits attached hereto constitute the entire agreement
among the parties hereto with respect to the subject matter hereof and supersede any prior
understandings or written or oral agreements between the parties with respect to the subject
matter of this License. No amendment, modification, cancellation or alteration of the terms of
this License shall be binding on any party hereto unless the same is in writing, dated subsequent
to the date hereof, and is duly authorized and executed by the parties hereto.
17. The failure of either party to enforce or insist upon compliance with any term or
condition of this License shall not constitute a general waiver or relinquishment of any such term
or condition, but the same shall be and remain at all times in full force and effect.
18. This License is governed by and construed in accordance with the laws of the
State of Texas. Venue of any dispute arising from the performance of this License shall solely
be in the courts of competent jurisdiction in Denton County, Texas. This License is performable
in Denton County, Texas.
19. The terms and provisions of Section 5, Section 7 and Section 11 shall survive the
termination or expiration of this License.
20. This License shall be deemed to have been issued on the date first above written.
21. The City Manager of the City, or his designee, executes this License for and on
behalf of the City as per the authority provided by Ordinance Number
THE CITY OF DENTON, TEXAS
By
George C. Campbell
City Manager
10
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY:
LICENSEE
By
Name:
Title:
EXHIBIT A ATTACHMENT TO GEOPHYSiCAL SuRVFY i ir.FNRF
Placeholder page
for map depicting
area of seismic
survey operations
EXHIBITB ATTACHMFNTTnnFnouvtlrw. m.evvv..n~.
COURTESY NOTICE
SEISMIC SURVEY OPERATIONS
Dear Property Owner/Occupant:
operations within the area between the dates of
and between the hours of
to
A.M. to P.M.
The seismic survey activities shall consist of:
For additional information, contact:
(COMPANY PERSON OF CONTACT NAME)
(DIRECT TELEPHONE NUMBER - PERSON OF CONTACT)
(COMPANY MAILING ADDRESS)
( COMPANY MAIN TELEPHONE NUMBER)
will be conducting seismic survey