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2004-053O ANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE A PIPELINE CROSSING AGREEMENT WITH UNION PACIFIC RAILROAD COMPANY FOR A PIPELINE LOCATED AT MILE POST 521.11, CHOCTAW SUBDIVISION, CITY OF DENTON, DENTON COUNTY, TEXAS; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON, TEXAS HERBY ORDAINS: SECTION 1. The City Manager or his designee is hereby authorized to execute a Pipeline Crossing Agreement with Union Pacific Railroad Company for a sanitary sewer pipeline located at mile post 521.11, Choctaw Subdivision, City of Denton, Denton County, Texas which is attached hereto and incorporated by reference herein (the "Agreement"). SECTION 2. The expenditure of fimds as provided in the Agreement is hereby authorized. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the d/t~ dayof ~/~/~ ,2004 EULINE BROCK, MAYOR ATTEST: JE]~I~FER WALTERS,'I~ITY SECRETARY APPRO~V~ A ~,~ L,,F./GAL FORM: AUDIT Folder No. 222647 PIPELINE CROSSING '\ AGREEMENT MilePost: 521.11, Choctaw Subdivision Location: DENTON, Denton County, Texas TIIIS AGREEMENT is made and entered into as of January 15, 2004, by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, (hereinafter the "Licensor") and DENTON, CITY OF, a Texas municipal corporation, to be addressed at City Hall East, 601 East Hickory, Suite B, Denton,TX 76205 (hereinafter the "Lioensee"). IT IS MUTUALLY AGREED BY AND BETWEEN TIlE PARTIES }IERETO AS FOLLOWS: Section 1. LICENSE FEE Upon execution of this Agreement, the Licensee shall pay tS the Licensor a one-time License Fee of TWO THOUSAND DOLLARS ($2,000.00). Section 2. LICENSOR GRANTS RIGHT. In consideration of the License Fee to be paid by the License~ and in further consideration of the covenants and agreements herein contained to be by the Licensee kept, observed and performed, the Licensor hereby grants to the Licensee the right to consb'uct and thereafter, during the tetra hereof, to maintain and operate only a 8" wastewater pipeline crossing (hereinafter the "Pipeline") in the location shown and in conformity with the dimensions and si~ecifications indicated on the attached print dated 1/13/04, marked Exhibit A. Under no circumstances shall Licensee modify the use of the Pipeline for a purpose other than the above-mentioned, and said Pipeline shall not be used for any other use, whether such use is currently technologically possible, or whether such use may come into existence during the life of this Agreement. Section 3. CONSTRUCTION, MAINTENANCE AND OPERATION. The grant of right herein made to the Licensee is subject to each and all of the terms, provisions, conditions, limitations and covenants set forth herein and in Exhibit B, hereto attached. Section 4. ' IF WORK IS TO BE PERFORMlgD BY CONTRACTOR. If a contractor is to do any of the work performed on the~Pii~lihe (including initial construction and subsequent relocation or substantial maintenance and repair work), then the Licensee shall require its contractor to execute the Licensor's form Contractor's Right of Entry Agreement. Licensee acknowledges receipt of a copy of the Contractor's Right of Entry Agreement and understands its terms, provisions, and requirements, and will inform its contractor of the need to execute the Agreement. Under no circufnstances will Licensee's contractor be allowed onto Licensor's premises without first ,executin..g.. the Contractor's. Right.,. of Entry Agreement. Section 5. INSURANCE A. The Licensee~ at its expense~ sha~~ pr~vide the Licens~r a Certi~cate ~fInsurance~ identifying Folder No.2226-17, issued by its insurance carder, confirming the existence of such insurance and that the policy or policies contain the following endorsement: UNION PACWIC RAILROAD COMPANY is named as an additional insured with respect to all liabilities arising out of the existence, use or any work performed on or associated with the 'Pipeline' located on Railroad right-of-way at Mile Post 521.11 on the CHOCTAW Subdivision, at or near Denton, Denton County, Texas. B. Licensor agrees that all of its Licensee's insurance requirements may be satisfied by self-insurance. C. All insurance correspondence shall be directed to: Folder No. 2226-17 Union Pacific Railroad Company Real Estate Department 1800 Farnam Street Omaha, NE 68102 Section 6. TERM This agreement shall take effect as of the date first herein written and shall continue in full force and effect until tc~ minated as herein provided. Section 7. AMENDMENT OF EXHIBIT B Sections 7(b) and 10 of Exhibit B, hereto attached arc hereby amended to l'~.~d as k~llows: Section 7CO) in addition to other indemnity provisions in this agreement, the Licensee shall indemnify and hold harmless the Licensor from and against all costs, liability and expense whatsoever (including, without limitation, attorney's fees, court costs and expenses) arising out of any act or omission of the Licensee, agents and/or employees, that causes or contributes to (1) any damage to or destruction of any telecommunications system on Licensor's property, and (2) any injury to or death of any person employed by or on behalf of any telecommunications company and/or its contractor, agents and/or vmployees, on Licensor's property. Licensee shall not have or seek recourse against Licensor for any claim or cause of action by alleged loss of profits of revenue or loss of service or other consequential damage to a telecommunication company using Licensor's property or a customer or user of services of the fiber optic cable on Licensor's property. Section 8. INDEMNITY As used in this Section, "Licensor" includes other railroad companies using the Licensor's property at or near the location of the Licensee's installation and their officers, agents and employees; "Loss" includes loss, damage, claims, demands, actions, causes of action, penalties, costs and expenses of whatsoever nature, including court costs and attorney's fees which may result from: (a) injury to or death of persons whomsoever (including the Licensor's officers, agents and employees, the Licensee's officers, agents and employees, as well as any other person); and Co) damage to or loss or destruction of property whatsoever (including Licensee's property, damage to the roadbed, tracks, equipment, or other property of the Licensor, or property in its care or custody). As a major inducement and in consideration of the license and permission herein granted, the Licensee agrees, to the extent permitted by law, to indemnify and hold harmless the Licensor from any Loss which is due to or arises from: 1. Thc prosecution of' any work contemplated by this Agreement including the installation, construction, maintenance, repair, renewal, modification, reconstruction, relocation, or removal o£thc Pipeline or any part thereof', or 2. The preseuce, operation or use of the Pipeline or cofit6nts escaping thcrcfi'om, except to the extent that the Loss is oaused by the sole and direct negligence of the Licensor IN WITNESS WltlgREOF, the parties hereto have caused this Agreement to be executed as of the date first herein written. LrNION PACIFIC RAILROAD COMPANY / [ ~j'~ianager'- Contracts DENTON, CITY OF By:' T~ APF~ROVED AS TO FORM: CITY ATTORNEY~ .4' EXHIBIT "A" , PLACE ARROW INDICATING NORTH FORM OR-O404-B DIRECTION RELAT]VE TO CROSSING ~! REV. 5-15-98 ¢ ~/ ww.,v.uprr.com ~ . .~ ~'~ NO SCALE FILLED IN TO PROCESS THIS APPLICATION./ J ~.ou~D ~ STEEL CASING WALL ~2 .5000" I/2" OVER 28'-34" ~00 Al 15 PIPELINE CROSSING WITHIN DEDICATED STREET ? YES; X .0; EXHIBIT "A" D) DISTRIBUTION LINE OR TRANSMISSION LINE X C) CARRIER PIPE : UNJON PACIFIC RAILROAD CO. COMMODITY TO ~[ CONV[Y[O Wastewater E) CASING PiPE : M.P 51t-[~ E.S. WALL THICKNESS 0.3125 ;OIAMETER16-inch ;MATER~ALSteel ; NOTE :CASINO UUST HAVE 2" CLEARANCE BETWEEN OREATEST ENCASED ~*~e. CROSSING AT OUTSIDE DIAMETER OF CARRIER PiPE AND ~NTERIOR DIAMETER OF CASING PIPE. WHEN FURNISHING DIBENSION5, GIVE OUTS]OE OF ~OA TUNNEL ; OTHgR RR F ILE NO. -I~DATE I-I$'DO~ Gl WILL CON$TRUCTION flK BY AN OUT$IOE CONTRACTOR? ~ YgS; NO; ' H) DISTANCE FROM CENTER LINE OF TRACK T0 NEAR FACE Off B~ NO JACKING PITS WHEN MEASURED AT RIGHT ANGLES TO TRACK e~ U. P. CO~UNJCAT EON OEPARTMENT~ AND HAS DETERMINED FIBER or ANY ~ lO OETERMINE EXISTENCE AHO P~X 980112 Form Approved, AVP-Law EXHIBIT B Section 1. LIMITATION AND SUBORDINATION OF RIGHTS GRANTED. (a) The foregoing grant of right is subject and subordinate to the prior and continuing right and obligation of the Licensor to use and maintain its entire property including the right and power of the Licensor to construct, maintain, repair, renew, use, operate, change, modify or relocate railroad tracks, signal, communication, fiber optics, or ether wirelines, pipelines and other facilffies upon, along or across any or all parts of its prope[ty, all or any of which mcr/be freely done at any time or times by the Licensor withoul liability to the Licensee or to any other party for compensation or damages. (b) The foregoing grant is also subject to all outstanding superior rights (including those in favor of licensees and lessees of the Licensor's property, and others) and the right of the Licensor to renew and extend the same, and is made without covenant of flfle or for quiet enjoyment. Section 2. CONSTRUCTION, MAINTENANCE AND OPERATION. (a) The Pipeline shall be constructed, operated, matnlatned, repaired, renewed, modified and/ar reconstrucled by the Licensee in stric~ conformity with Union Pacific Railroad Co. Common Standard Specification 1029 adopted November 1949, and all amendments thereof and supplements thereto, which by this reference is hereby made a part hereof, except as may be modified and approved by the Licensor's Vice President-Engineering Services. In the event such Specification conflicts in any respect with the requirements of any federal, state or municipal law or regulation, such requirements shall govern on afl points of conflict, but in all other respects the Specification shall apply. (b) All work performed on property of. the Licensor in connection with the construction, maintenance, repair, renewal, modification or reconstruction of the Pipeline shall be done to the satisfaction of the Licensor. (c) Prior lo the commencenqenl of any work in connection with the consh'Llclion, maintenance, repair, renewal, moclf[ication, the Licensee shall submil Io the Licensar plans selling oul Ihe method and manner of hcmdling lhe wark, including lhe shoring and cribbing, if an,/', required to protecl the Licensor's operations, and shall not proceed with the work unlil such plans have been approved by the Vice Presidenl-Engineedng Services of the Licensor and then the work shall be done to the satisfaction of the Vice President-Engineering Services or his authorized representative. The Licensor shall have the righl, if il so elects, to provide such support as il may deem necessary [or the safety of its track or tracks during the time o[ construction, maiatenonce, repair, renewaJ, modification, relocation, reconstruclion or removal of the Pipeline, and, in Ihe event the Licensor provides such supporL the Licensee shall pay to Ihe Licensor, w[ithin fifteen (15) days after bills shall hove been rendered therefor, all expense incurred by the Licensor ip connection therewith, which expense shall include all assignable cosls. (d) The Licensee shall keep and maintain the soil over the Pipeline thoroughly compacted and the grade even with the adjacent surface of the ground. Section 3. NOTICE OF COMMENCEMENT OF WORK. If an emergency should arise requiring immediate attention, the Licensee shall provide as much notice as praclicable to Licensor before commencing any work. In all other situations, the Licensee shall notify the Licensor at least ten (10) days (or such athe, r time as the Licensor may allow) in advance of the commencement of any work upon properly of the Licensor in connection with the construction, maintenance, repair, renewal, modification, reconstruction, relocation or removal Of the Pipeline. All such work shall be prosecuted diligently to completion. Section 4. LICENSEE TO BEAR ENTIRE EXPENSE. The Licensee shall bear the entire cost and expense incurred in connection with the construction, maintenance, repair and renewal and any and all modification, revision, relocation, removal or reconstruction of the Pipeline, including any and all expense which may be incurred by the Licensor in connection therewith [or supervision, inspeclion, flagging, or otherwise. plx.cxb Page I of 4 Exhibit 13 "PL X980112 Feint Approval, AVP-L~W Section 5. REINFORCEMENT. RELOCATION OR REMOVAL OF PIPEL[h'F. (a) The license herein grcmi~:i fs subject io the needs and requirements of the Licensor in the operation of its railroad and in the improvement and use of its property, and the Licensee shail, at the sole expense of the Licensee, reinforce the Pipeline, or move all or any portion of the Pipeline to such new lccailon as the Licensor may designate, whenever, in the furtherance of its needs and requirements, the Licensor shall find such aclien'necessary or desirable. (b) All the.terms, conditions and stipulations herein expressed with reference to the Pipeline on property of the Licensor in the Ioc~lon hereinbefore described shall, so far as the Pipeline remains on the property, apply to the Pipeline as modified, changed or relocated within the contemplation of this section. Section 6. NO INTERFERENCE WITH LICENSOR'S OPERATION. The Pipeline and all ports tbereol within and outside of the limits al the property of the Licensor shcdl be constructed and, at all times, mdiatcdned, rel:x:dred, i'enewed and operated in such mcmner as to cause no interference whatsoever with ihs constant, continuous and uninten'upted use of the tracks, property and facilities of the Licensor, and nothing shall be done er suffered to be done by the Licensee at any time thai would tn any manner impair the safety thereof, Section 7. PROTECTION OF FIBER OPTIC CABLE SYSTEMS, (a) Fiber optic cable systems mcr/be buried on the Licensor's property. Protection of the fiber optic cable systems is of extreme importance since any break could'disrupt sen,ice to users resulting in business interruption and loss of revenue and profits. Licensee shall telephone the Licensor at t-800-336-9193 (a 24-hour number) to determine il fiber optic cable is buried anywhere on the Licensor's premises to be used by the Licensee. If il is, ,licensee will telephone the telecommunications compi=ny(les) involved, on'ange for a cable locater` make cm'angements [or relocc~ion or other protection of the fiber optic c&ble. all at Licensee's expense, and will commence no work on the right of way until all such protection or relocation has been accomplished. Licensee shall indemnify and hold the Licensor harmless from and ~,gainst dil costs, liability'and e:¢peiase whatsoever (including, without limitation, attorneys' fees. court costs and expenses) arising out al or caused in any Way by Licensee's failure to comply with the provision~ of this parogrnph, Ik; I~-. ci*'~:ic= :c c". :_; :;--i;..-~-J:7 7.; c.-.~ :.it.:-.:. ia :kl;..".~;-c c =.c.~.'.. :l-.c '..J cc:-.: c c ~.,'-. -vl.' "..-.~c.~.ni:7 -'...-. -,I ::cji :kc '..J.:.;...,:.. from and ogalnsl all costs, liability and expense whatsoever (including. without limitation, atto~~~) cnused by the negligence of the Licensee. its _.co_ ntractor, agents crud/or employees~ reeU]~age tear desiru~tion o! any telecornmunicatlons system on Licensor s property, and/or (2) cra~of any person employed by or on behalf of any telecommunications company, and/or its contr~~operty, except If such costs. liability or expenses are c~~ negligence of the [icens~ agrees th~ il sbell not hcw'e or seek rec~ loss of service or other condenser's property o ~r customer or u~e~' Of settees q~t~.ll)li~,T . . SEE.aJ lO . (a) The Licensee shall ~uliy pay' for all materials joined or affixed ia nnd labor performed upon property of.l~e connection with the construction,.mcgnienance, repair, renewal, moditica!ion or r~const ruction of the Pipeline. and shall not perr~t or suffer any mechanic's or malertalman's lien of any kind or nature to be enforced against the property for any work done or materials furnished thereon at the Instance or request or on behelf of the Licensee. The Licensee shall Indemnliy and hold harmless the Licensor against and from any and all liens, claims, demonds, cosls end expenses of whatsoever nature in any way ccnnecled with or growing out of such work done, labor performed, or materials furnished. (b) The Licensee shall promptly pay or dischc~'ge all taxes, ch~ges crud assessments le~led.upon, in respect to, or on account of the Pipeline, to prevent the scrme from becoming a chnrge or lien upon property of the Licensor. and so thai the taxes, charges and assessments levied upon or in respect to such property shall not be increased because of the location, construction or maintenance of the Pipeline or any improvemenl, appliance or fixture connected therewith placed upon such property, or on account o~ the Licensee's interest therein. Where such tax, charge or nssessment may not be sel::x:m=tely made or assessed to the Licensee but shall be included in the assessment of the property of the Licensor, then the Licensee ahatl p=y to the Licensor on equitable proportion of such t~xe's determined by the value al the Licensee's property upon property of the Licensor as compared PL X 9801 ~2 Form Approved. AVP.Law with tho cattle vcdue of such property. Section g. RI~$TORATION OF LICENSOR'S PROPERTY. In the event the Liceosor authortzesthe Licensee to take down any fence of the Licensor or tn any manner move or disturb any of the other property of the Licensor in connection with the construction, maintenance, repcrb', renewal, rnodificutton, reconstruction, relocation or removc~l of the Pipeline. then in thcS.event the Licensee shall, as soon as pose!bls and at Licensee's sole expense, restore such fence and other property to the .same condition as the same were in before such fence was taken down or such other property was moved or disturbed, and the Licensee shall indemnify and hold harmless the Licensar, its officers. agents and employees, agcdnst and from any and all liability, loss, damages, cica'ns, demands, costs and expenses of whatsoever nature, Including court costs and attorneys' fees, which rna,/result from injury to or death of persons whomsoever, or damage to or loss or destruction of property whotsoever, when such Injmy, deeth, damage, loss or desiruction grows out of or arises from the taldng down of any fence or the moving or:d!sturbance of any other properi~?f the Licer~sor, Section 10. SEE ARTICLE,' '," - o! the Licensee's Install~to~ and their offisers, agents, and ernploynes; 'Loss" includes loss, damage, clc~ms, d erna~.,~.?,~,,~L~o n s, causes of oction, penalties, costs, crud expenses of whatsoever ncdure, including court costs and attorneys' fee~..m,lITBh rncW result frern: (a) tnjuq,' to or death of persons whomsoever (including the Llcensor'solftners. agents, and e~.J3;~lehS'~ees, the Licensee's officers, agents, and ernpIoyeee, as well as any other person); and/or (b) damage Io or loss or.d~.k't~llon of propert~ whatsoever (Including Licensee's property, damage to the roadbed, tracks, equipment, or other prop~..~the Licensor, or property tn tis care or custody). ~ ' (b) ,As a rnc~or inducement and in canslder~lan of Ihs lis~ase~s~and permfssinn, herein ~anted, the Licensee agrees to indemnify and held harmless the Licensor froze to or a~ses from: ~ . matntena~he Pipeline or on,, pr~r~ thereof; or~,,~~ ..~.% ~ L ~,-. ...... ........ ...... ~ '? "-- it': n? th'z! t~''-' Let:' f-- ------'--~- -.t7 '.h: _-z'_": _.--~. :'J ~:'r::'t .-.:;!:g---'..:: :.: '-'-.; L:....nz..z. ' Sect/on 11. REMOVAL OF PIPr LIN£ UPON TERMINATION OF AGREEMENT. Prior to the termination of this Agreement howsoever, the Licensee shall, cfi Licensee's s~io expense, remove the Pipeline [rom those parlions of. the property not eccup~ed by the roadl:xed and track or tracks of the Licensor and shall restore, to the satisfaction o! the Licensor, such portions o! such property to os good a condition as the~' were [n at the time oi the construction et the l~peline. If the f I~ensee [cdls to do the [orecjolng. the ~censor may'do such work et removal and reatoratlort at tho co~t cand expense o[ the Licensee. T~e Licensor may, at tis optton, upon such terrntnoOan, al the entire cost and expense of the Licensee, rernove the portions o! the Pipeline located underneath lis roadbed and back or tracks and restore such roadbed to as good a condition as it was tn at the time of the construction of the PipelIne, or it moy permit the Licensee to do such work of removal and restoratian to the satisfaction of the Licensor. fn the event of the remc~ol by' the Ucensor of the property of the Licensee and of the restaratton o[ the roadbed and property as herein provided, the Licensor shall in no manner be liable to the Licensee for any dcrmage sustatnnd by the Licensee for or on account thereof, and such removal acd restorotton shall tn no manner prejudice or impair any right of action for damages, or otherwise, that the Licensor rnay hcwe agab~tst the .Ucensee. Section 12. ~.1~. The',v~ver by the Licensor of the breach of any condition, covenant or agreement herein con~tned to be kept, observed and performed by the Licensee shall in no way impair the right of the Licensor to ca, oil itself o! ant,' remedy for any subsequent breach thereof. plx.exb Page 3 0t~4 Exhibit B Form Approved. AVP-Law Section 1:3. TERMfNAT[©N. (a) l[ the Licensee does not use the right herein granted or the Pipeline [or one (1) year, or if the Licensee continues in default in the performance of any covenant or agreement herein contained for a period of thirty (30) days after written notice from the Licensor to the Licensee specifying such default, the Licensor may, at its op~ion, forthwith immediately terminate this Agreement by written notice. (b) In addition to the provisions of subp,:m'agraph (a) above, this Agreement may be terminated by '.mitten notice given by either party hereto to Ihe other on any date in such notice stated, not less, however, than thirty (30) days subsequent to the date upon which such notice shat[ be given. (c) Notice of defaaf[ and notice of termination may be served personally upon lhe Licensee or by mailing [o [he last known address of the Licensee. Termination of this Agreement for any reason shall not affect any of the rights or obligations of the parties hereto which may hcn,,e accrued, or liabilities, accrued or otherwise, which may hcr,,'e arisen prior thereto. Section 14. AGREEMENT NOT TO BE ASSIGNED. The Licensee shall not assign this Agreement, in whole or in part, or any rights herein granted, without the written conseni of the Licensor, and it is agreed that cmy transfer or assignment or attempted transfer or assignment of this Agreement or cray of the rights herein granted, whether voluntary, by operation of law, or otherwise, without such consent in writing, shall be absolutely void and, at the option of the Licensor, shall terminate this AgreemenL Section 15. SUCCESSORS AND ASSIGNS, Subject to the provisions of Section [4 hereof, this Agreemen~ shall be binding upon and inure to lhe benefit of the parties hereto, their heirs, executors, administrators, successors and assigns pk.e×b Page 4 of 4 Exhibit B