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2008-022ORDINANCE NO. 2008 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 NORTH OF SAID RAILROAD RIGHT-OF-WAY'S INTERSECTION WITH ROSELAWN DRIVE WITHIN THE CITY OF DENTON, TEXAS; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, on January 14, 2008 the Public Utilities Board of Denton considered this transaction and recommended approval by a vote of 6-0. 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 by and between the City of Denton, Texas and the Kansas City Southern Railway Company in substantially the form of the Pipeline Crossing Contract which is attached to and made a part of this ordinance for all purposes, for the purpose of locating a City water pipeline placed 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 2008. PERK R. McNEILL, MAYOR ATTEST: JENNIFER WALTERS, JCITY SECRETARY AP OVEIL S TO LEGAL FORM: EDWIN M. SNYDER, CITY ATTORNEY By: ~'~l I K A 1) PIPELINE CROSSING CONTRACT THIS AGREEMENT is entered into this L of 2008 by and between THE KANSAS CITY SOUTHERN RAILWAY COMPANY, a Missour corporation, called herein "Licensor", and CITY OF DENTON, TEXAS, to be addressed at 901-A Texas Street, Denton, Texas 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 24" potable water pipeline under Licensor's tracks and right-of-way at Mile Post 102.42 (Alliance Sub) at or near Denton, Texas, the course of the pipeline being described as follows: As indicated on print of drawing no. 4605 dated 10-25-07, 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 enjoyment. Licensor does not warrant title and 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 right-of-way varies from segment to segment and may include lesser interests than fee title. Licensee shall, at Licensee's sole 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 24" ductile iron or concrete having a minimum wall thickness of 0.37" for ductile iron or 1.88" for concrete, which carrier pipe shall be encased in a 36" x 155' steel casing pipe having a minimum wall thickness of 0.531" and a minimum yield point of 35,000 psi. Maximum operating pressure of the pipeline shall not be greater than 150 psi. Licensee expressly agrees that its under- track installation shall be by dry jack and bore 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 seventy-four (740) degrees. Construction, maintenance, operation, use and removal of the pipeline shall not endanger the safety or condition of Licenser's property in any way, or the operation of trains or cars, and the pipeline shall be laid at a minimum depth of eight feet six inches (8'6") below the bottom of Licensor's base of rail and at a minimum depth of four feet (4') below ground level at all other points on 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 (40) feet 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 the 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 Licensor, gates and check valves shall be placed in convenient locations. Construction, maintenance, operation, use and removal of the pipeline shall not endanger the safety or condition of Licensor'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 Licensor at Licensee's expense, which cost Licensee expressly agrees to pay upon presentation of the bill. 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. 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 DEFEND, INDEMNIFY AND SAVE HARMLESS LICENSOR AND ANY OTHER RAILWAY COMPANIES OPERATING OVER OR USING THE TRACKS OF LICENSOR, ITS OR THEIR OFFICERS, AGENTS, 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 IMPOSED UNDER THE PROVISIONS OF THIS AGREEMENT. LICENSEE, TO THE FULLEST EXTENT PERMITTED BY LAW, AGREES TO DEFEND, INDEMNIFY AND SAVE HARMLESS LICENSOR AND OTHER RAILWAY COMPANIES OPERATING OVER OR USING THE TRACKS OF LICENSOR, ITS OR THEIR OFFICERS, AGENTS, 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, 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 (25) feet from the 2 centerline of the track unless authorized by the on-site railroad flagman to be closer than twenty-five (25) feet. 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. 7. Licensee shall not enter nor commence construction on or under Licenser's property or right-of- way unless accompanied by a qualified flagman. Licensee will be responsible for all flagging expenses and arranging the necessary flagging associated with the installation. Arrangements for flagging protection can be made by contacting an approved Licensor qualified flagging contractor at least thirty (30) business days in advance of the commencement of work on or under Licensor's property. Licensor's designation of a company or individual as a "qualified" flagman or flagman provider shall be construed solely as Licensor's willingness to allow said individual or entity to provide flagging services on Licensor's property without further proof of qualification, and shall not be construed as an endorsement or other verification of the abilities or qualifications of said flagman or flagman provider by Licensor. All flagmen provided hereunder shall be treated solely as independent contractors of Licensee, with no relationship to Licensor, for all purposes hereunder. Licensee and its agents, employees and contractors will clear the tracks when directed to do so by the flagman. The presence of the flagman 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 flagman shall be construed for all purposes hereunder as the actions or inactions of the Licensee, and shall be governed by Licensee's duties of defense, indemnification, and saving harmless under Section 3 of this Agreement. Licensor will provide, at Licensee's expense, an inspector to oversee Licensee's work on Licensor's property. To enable Licensor to make an inspector available to oversee the work that is to be performed under this Agreement, Licensee must submit a written scheduling request to Licensor's scheduling agent, which request is received by the scheduling agent a minimum of thirty (30) Business Days before Licensee proposes to commence work on Licensor's property. (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 Licensor's scheduling agent at the following location: Ms. Shannon Haas Hanson-Wilson, Inc. 4015 South 148th Street, Suite 100 Omaha NE 68137 Fax: 402-896-9300 If Licensee's scheduling request fails to reach Licencor's scheduling agent at least 30 Business Days before 1 ieencee'c proposed commencement of work Licensor may, 'if it is unable. to nhta'n inspector suitable to Licensor refuse to allow commencement of the work on the Licensee'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 Licensor's 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 inspector 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 right of way. Licensee will, within thirty (30) days of receipt of a bill from Licensor specifying in reasonable detail Licensor's costs and expenses of providing the inspector, reimburse Licensor for all of Licensor's costs and expenses of providing an inspector. Once Licensee has submitted its scheduling request to Licensor's agent, should Licensee require a change to the scheduled date, Licensee shall provide Licensor's 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 inspector for one day. 8. Licensee agrees to pay to Licensor for the use of Licensor's right of way and the privilege hereby granted the one-time fee of SEVEN THOUSAND TWO HUNDRED FIVE AND NO1100 DOLLARS ($7,205.00) upon execution of this Agreement. 9. This Agreement shall continue in force for one (1) year and thereafter until terminated by thirty (30) days notice in writing given by either party to the other. 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 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 hazardous material or pollution of any kind occur upon, in, into, under or from 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 satisfaction of Licensor 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 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 HEREUNDER, ANY SUCH ORDINANCE, RULE, REGULATION, REQUIREMENT, DECREE, CONSENT DECREE, JUDGMENT, PERMIT OR 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 4 ANY PART OF THE AREA COVERED BY THIS AGREEMENT (INCLUDING SURFACE, SUBSURFACE, AIRBORNE AND/OR GROUND CONTAMINATION), LICENSEE SHALL DEFEND, 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 DEFEND, 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 LICENSEE'S EMPLOYEES OR PROPERTY, OR TO ANY OTHER PERSONS OR THEIR PROPERTY, AND FOR ALL PENALTIES, 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, RELATED TO OR HAPPENING IN CONNECTION WITH THE USE OF THE AREA COVERED BY THIS AGREEMENT BY LICENSEE AND ITS AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS AND REPRESENTATIVES. FOR THE PURPOSES OF THIS ENVIRONMENTAL PROTECTION SECTION, LICENSEE FURTHER AGREES THAT ITS OBLIGATION OF DEFENSE, 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, 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, rifles, 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. [Remainder of page intentionally left blank] 5 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 SOUTHERN RAILWAY COMPANY President International Engineering CITY OF DENTON, TEX fr f , Ty By C~ Title j~/ /~/2YICLQOr Date vo~//~IQ~I Attest d&117 261?1&26 , All, +2mky- V APPROVED AS TO CITY ATTORNEY CITY OF DENTON, BY: 6 TO METRO JCT., T-A. yo /4 Uo jut FXNIRIT "0" SPECIFICATIONS (NON-FLAMMABLE CO NTENTS) CARRIER PLP~ CASING JQ[ SIZE: 24' SIRE: 36" MATERIAL: DUCTILE IRON or CONCRETE MATERIAL: STEEL CONTENTS: POTABLE WATER WALL THICKNESS: 0.531" WALL THICKNESS: 0.31' or LBB' CASING LENGTH: 155' MAXIMUM OPERATING PRESSURE: 8O PSI Srlkanth 1 he reviewed this DEPT1! 83B.BR. ,doff ent CASING COATED: NO Honnur P - 200, 12.10 16:28:1. CATHODICALLY PROTECTED: NO , . .06. ' CASING VENTED: NO METHOD OF INSTALLATION: DRY JACK AND BORE CARRIER COATED:YES,ff DUCTILE IRON CARRIER CATHODICA LY PROTECTED: YES KANSAS PROPOSED.UNDERGROUND PIPELINE CROSSING FOR CITY OF DENTON, TEXAS AT MP ID2.42 ALLIANCE SUB NEAR DENTON,TEXAS 8 MPP ( 10-25-07 MJL 1"=400' ( 4605 1 OF 1 4605