2002-409AN ORDINANCE AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO
EXECUTE A PIPELINE CROSSING AGREEMENT WITH UNION PACIFIC
RAILROAD COMPANY FOR A SANITARY SEWER PIPELINE LOCATED AT
MILE POST 719.73, 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 719.73, Choctaw Subdivision, City of Denton, Denton
County, Texas which is attached hereto and incorporated by reference herein (the
"Agreement").
SECTION 2. The expenditure of funds 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 fife' day of ~~, 2002.
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED A~yTO L,~GAL FORM:
BY:~ ~/~
EUL1NE BROCK, MAYOR
PL X.DOC 940204
Form Approved, AVP-Law
AUDIT
ZZ7493
Folder No.2126-42
PIPELINE CROSSING
AGREEMENT
Mile Post 719.73, Choctaw Subdivision/Branch
Location: Denton, Denton County, Texas
THIS AGREEMENT is made and entered into as of the/~- day of ~(~l~/~, 2002, by and
between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation (hereinafter the
"Licensor"), and CITY OF DENTON, a Texas municipal corporation, whose address is City Hall East,
60l East Hickory Street, Denton, Texas 76205 (hereinafter the "Licensee").
IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES HERETO AS
FOLLOWS:
Article I. LICENSE FEE
Upon execution of this Agreement, the Licensee shall pay to the Licensor a one-time license fee of
TWO THOUSAND DOLLARS ($2,000.00).
Article II. LICENSOR GRANTS RIGHT
In consideration of the license fee to be paid by the Licensee 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 construct and thereafter, during the term hereof, to
maintain and operate
8.625" Sanitary Sewer pipeline crossing (hereinafter the "Pipeline")
in the location shown and in conformity with the dimensions and specifications indicated on the attached
print dated October 4, 2002, 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.
Article III. 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.
Article IV. IF WORK IS TO BE PERFORMED BY CONTRACTOR
Ifa contractor is to do any of the work performed on the Pipeline (including initial construction
and subsequent relocation or substantial maintenance and repair work), then the Licensee shall require its
contractor to execute the Railroad's for Contractor's Right of Entry Agreement. Licensee acknowledges
.... ;~ ,~,c ....... ~e~h~ C',~,~,-oo*,~'o ~;,~h~ nF~',t~, a ~m~ ~nd ,nderst~nding of its te~s. provisions,
and requffements, and will ~form its contractor of the need to execute the Agreement. Under no
cffcumstances will Licensee's contractor be allowed onto Licensor's premises without f~st executing the
Contractor's Right ofEnt~ A~eement.
Article V. INSURANCE
A. The Licensee, at its expense, shall provide the Licensor a Certificate of Insurance, identifying
Folder No. 2126-42, issued by its insurance carrier, confirming the existence of such insurance
and that the policy or policies contain the following endorsement:
UNION PACIFIC 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 719.73 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. 2126-42
Union Pacific Railroad Company
Real Estate Department
1800 Farnam Street
Omaha, NE 68102
Article VI. AMENDMENT OF EXHIBIT B
Sections 7(b) and 10 of Exhibit "B", hereto attached are hereby amended to read as follows:
Section 7(b) in addition to other indemnity provisions in this agreement, the Licensee shall indemnify and
hold harmless the Licensor fi-om and against all costs, liability and expense whatsoever (including,
without limitation, attomey'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 employees, 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 or 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 10 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 fi.om: (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 (b) damage to or loss or destruction of property
of the Licensor, or propeay ~ its care or custody).
As a major inducement and in consideration &the license and permission herein granted, the
Licensee agrees, to the extent permitted by law, to indemnify and hold harmless the Licensor fi.om any
Loss which is due to or arises fi.om:
1. The prosecution of any work contemplated by this agreement including the installation,
construction, maintenance, repair, renewal, modification, reconstruction, relocation, or removal of the
Pipeline or any part thereof; or
The presence, operation, or use of the Pipeline or contents escaping therefrom, except to
the extent that the Loss is caused by the sole and direct negligence of the Licensor.
ARTICLE VII. TERM
This agreement shall take effect as of the date first herein written and shall continue in full force
and effect until terminated as herein provided.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in
duplicate as of the date first herein written.
UNION PACIFIC RAILROAD COMPANY
· ~Contract-s Representative
City Manage~_~
Witness:
~PTyROVED ASATTORi~O FO,R~yl:
CllY~S~
PLACE ARROW INDICATING NORTH ~- FORM DR-O404-B
~ f// ENCASED NON-FLA~IblABL,~'''''''''uprT'°°m
/ ~ ?~// PIPELINE CROSSING
I
Al 15 PIPELINE CROSSING WITHIN DEDICATED STREET ? YES; XNO; EXHIBIT "~"
61 CARRIER PIPE : UNION PACIFIC RAILROAD
WALL TH CKNES5 '~ ~OlAMETER~'~;MATERIAL~~ ~
NOTE =CASING'MUST HAVE 2" CLEARANCE BETWEEN GREATESf ENCASED CROSSING AT
~h~ ~q~ RR FILE NO,. DATE~
?-.oo'?- o c~ C-~ 0% ~
PL × 9g0~ 12
Form Approved. AVP-Law
EXHIBIT B
Section i. LIMITATION AND SUBORDINATION OF RIGHTS GP~J~ITED
(a) The foregoing grant of right is subject and subordinate to the prior and continuing right mad 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 other wiretines, pipelines and other
facilities upon, along or across any or all parts of its proper:y, all or any of which ma,/be freely done at any time or times by the
Licensor without liability to the Licensee or to any other party for compensation or damages.
(b) The foregoing granl is also subject to all outstanding superior rights (including those in favor of licensees and lessees of
~he Licensor's property, and o[hers) and ~he righ[ of ~he Licensor to renew and e:dend the same, and is made without covenan~ of
title or for quie~ enjoyment
Section 2. CONSTRUCTION, MAINTENANCE AND OPERATION.
(a) The Pipeline shall be constructed, operated, mainlained, repaired, renewed, modified and/ar reconstructed by the
Licensee in strfc~ conformity vdth Union Pacific Railroad Co. Common Standard Specification 1(]29 adopted November 1949, and
all amendments thereof crud supplements thereto, which by tbJs reference is hereby made a part hereof, except as mc5, 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 all 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,
modificc~ion or reconstruction of the Pipeline shall be done to the satisfaction of the Licensor.
(c) Prior to the commencement of any work in connection with the construction, maintenance, repair, renev;al, modification,
relocation, reconstruction or removal of the Pipeline where i~ passes underneath the roadbed and track or tracks of the Licensor,
the Licensee shall submit to the Licensor plans setting ou[ Ihe method and manner al hcmdling the work, including ~he shoring and
cribbing, if any, required to protect the Licensor's operations, and shall not proceed with the work until such plans have been
approved by the Vice President-Engineering Services of the Licensor and then the work shall be done to the satisfaction of the Vice
President-Engineering Services or his authorized represemcnive. The Licensor shall have ~he right, if i~ so elecis,-to provide such
support as it may deem necessary for the screwy of frs treck or Irocks during the lime of conslruciion, maintenance, repair, renewal,
modification, relocation, reconstruciion or removal of the Pipeline, and, in the event the Licensor provides such support, ihe
Licensee she!! pay lo the Licensor, within fifteen (15) days al~er bills shall have been rendered therefor, all exp. ense incurred bi.' the
Licensor in connection therewith, v;hich expense shall include all assignable costa.
(d) The Licensee shall keep and maintain the soil over the Pipeline thoroughly compacted and the grade even with the
adjacen~ surface of the ground.
Section 3. NOTICE OF COMMENCEMENT OF WORK.
If an emergent/should arise requiring immediate attention, the Licensee shall provide as much notice as practicable
to Licensor before commencing tray wark. In all other situations, the Licensee shall notify the L/censor at least ten (10) dcr/s (or
such other time as the Licensor may allow) in advance of the commencement of any work upon property of the Licensor in
connection w~th the cons:ruction, maintencmce, repair, renev;al, 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 crud expense incurred in connection with the construction, maintenance, repair
and renewal and any and all modific~ion, revision, relocation, removal or reconstruction of the Pipeline, including any and all
expense which mcq,' be incurred by the Licensor in connection therewith for supervision, inspection, flagging, or otherwise.
plx.cxb Page I of 4 Exhibi113
'" ' PL.× 980112
. Form Approved. AVP-Law
Section 5. REINFORCEMENT. RELOCATION OR REMOVAL OF PIPELINE.
(a) The license herein granted is subject [o [he needs and requirements of the Licensor in ~he operation cf its railroad and
m the ~mprovemem and use of ils p~ul..,c,,'t~,, ~',d ~he Lic6n.sec =h~i. :t [kc :.o!c c:.~cr, ze cf the hcensee, rem/~,-c~ ~. P,p~hne. or
move all or an'/portion of the Pipeline to such new location as the Licensor may designate, whenever, in the furtherance of ifs
needs and requirements, ~he Licensor shall find such action necessary or desirable.
(b) All the terms, conditions and stipulations herein e:q::~ressed with reference to the Pipehne on property of the Licensor in
the location hereinbefore described shall, so far as the Pipeline remains on the proper~y, apply to the Pipeline as modified,
changed or relocated within the contemplation of this section.
Section 6. NO INTERFERENCE '~ArFFH LICENSOR'S OPERATION.
The Pipeline and all parts ~hereof ~,withm and outside of the limits of ~he property of ~he Licensor shall be constructed and,
at all times, maiata/ned, repaired, renewed and operated in such manner as to cause no interference whatsoever with the constant,
continuous and uninterrupted use of the tracks, property and facilities of ihe Licensor, and nothing shall be done or suffered to be
done by the Licensee at any time that would in any manner impair ~he sale~y thereof.
Section 7. PROTECTION OF FiBER OPff'IC CABLE SYSTEMS.
to) Fiber optic cable systems may be buried on the Licensor's property. Protection of the fiber optic cable systems is of
extreme importance since any break could disrupt service to users resulting in business interruption and loss of revenue and
profits. Licensee sha. ll. lelephone the Licensor at 1-800-336-9193 (a 24-hour number) to determine if fiber optic cable is buried
anywhere on the Licehsor's premises to be used by the Licensee. If it is, Licensee will telephone the telecommunications
company(ica) involved, oh"range for a cable locatar, malco arrangements for relocation or other protection of ~he fiber optic cable.
ell at Licensee's e:~ense, and will commence no work on ~he righ~ of way uatfl all such pro~eation or relocation has been
accomplished Licensee shall indemnify rind hold the Li:ensar harmless from and against all cos~s, liability and expense
whatsoever (including, without limitation, atlorneys' fees, court costs and expenses) ~rising out of or caused in any wa',/ by
Licensee's failure to comply with the provisions of this paragraph.
from ~nd agatha: all costs, habili~y cnud exp. ense whatsoever (fincludfin. g, without lim/tation, attorneys' fees, c~nses)
caused by the negligence of the Licensee, its contractor, agents and/or employees..resu~cn~age ~o or deslruation
of an)' lelecommun/cations syslem on Licensor's property, and,bt (2)~~.ployed b.y.,or o~ behalf
of amy telecommunications company, and/or its contrac~o~xcep~ if such costs,
liability or e:,epenses are caused s~t shat! no~
conse~ennces of fi'.e fiber
Sec~ian 8. CLA~S A~D L~NS FO~
(b) The Licensee shall promptly pay or d/scharge ail tc~xes, charges and assessments levied upon, fin respect ~o, or on account
of the Pipeline, to prevent the same from becoming a charge or lien upon property of the Licensor, and so that the tcrxes, charges
and assessments levied upon or in respect to such proper~y shall not be increased because of the location, constructioe or
mcdatenance of the Pipeline or cmy improvement, appliance or fixture connected therewffh placed upon such property, or on
occauat of the Licensee's interest therein. Where such tax, ch~ge or assessmen~ me.,' nat be sepcn"~ely made or assessed to the
Licensee but shall be included in the assessment of ~he property of the Licensor, then the Licensee shall pay ~o the Licensor an
equitable proportion of such ~axes determined by the value of the Licensee's property upon properS' of the Licensor as compared
plx.exb Page 2 0£4 Exhibi113
· Form Aplarovcd, AVP-La~
,,',"',th the entire value of such property.
Section 9. RESTORATION OF LICENSOR'S PROPERTY.
In the even~ the Licensor authorizes [he Licensee to tc~:e dorm cm¥ fence of lhe Licensor or in [:ny mcmner move or disturb
any of [he other property of the Licensor in connection with [he construction, maintenance, repair, rene,,vc~L modificahon,
reconstruction, relocation or removal of [he Pipeline, then in that event ~he Licensee shall, as soon ,ns possible and at Licensee s
soIe expense, restore such fence and other property [o the sca'ne condition (/s the saTne were in before such fence wc~s taken down
or such other properly was moved or disturbed, and the Licensee shall indemnify and hold harm]ess the Licensor, ifs officers,
agents and employees, against and from crny end cd[ li~:zbility, loss, dcunages, claims, demands, costs and expenses of whatsoever
nature, including court costs and attorneys' fees, which mcr/' result from injury [o or death of persons 'whomsoever, or damage [o
or loss or destruction of property whatsoever, when such injury, death, dQraage, loss or des[ruc[ioe grov;s ou~ of or c~'ises from the
taking down of an',,' fence or ihe moving or disturbance of any other property of the Licensor.
Section 10. INDEMNITY.
of the Licensee's installation and their officers, agents, and employees; "Loss' includes loss, damage, claims, der~rtds~ns,
c~.~ses of ection, pencd[ies, costs, crud expenses of whaisoever nature, including coud costs and attorneys' fees,_~rO~:t may resu!~
frcm: (a) injury to or death of persons whomsoever (including the Licensor's officers, agents, and em~es, the Licensee's
officers, agents, and employees, as '..,ell as any other person); and/or (b)dm'nage to or lo~~atsoever
(m. cluding Licensee's propert7, damage to the roadbed, tracks, equipment, or other prop~~,~'"~'- ~ '~'" ~'"-~or property in its care
or custody). : ~
(b) As a major inducement and in consider2ion of the lice~d permission herein groated, ~he Licensee agrees to
indemnify and hold harmless the IJcensor fr~l..,~.~~
1. The prosecution of ~~on, ........ construction,'--
maintenanc~pe[ine or any part
thereof; or / ' ,
_~ _ _pt te the e:.'t",,zt tn_r: the Lc"..: !-." c~-':cd 57 th: -. :'!c _'a'nd dtr:ct neg!tgence cf thc Liccnzcr. ~
Section 11. REMOVAL OF PiPE LINE UPON TERM[NAT[ON OF AGREEMENT.
Prior to the terminal;on of this Agreement howsoever, the Licensee shall, at Licensees sole expense, remove the
P:pe!ine from those portions of the proper~y not occupied by the roadbed and track or tracks of the Licensor and shall restore, to
the satisfaction of the Licensor, such portions of such prope~/to as good a cond/!ion as the'/',,,,'ere in at the time al the cons!ruction
of the lqpehne. If the Licensee fails to do the foregoing, the Licensor mQy do such work of removal and restoration at the cost and
expense of the Licensee. The Licensor ma'/, at its option, upon such termination, at the entire cost and expense,of the Licensee,
rem.~ve the portions of the Pipeline located underneath its roadbed end track or tracks and restore such roadbed to as good a
condition as it was in at the time of the construction of the Pipeline, or it ma,/permit the Licensee to do such work of removal and
restoration to the satisfaction of the Licensor. In the event of the removed by the Licensor of the propert/of the Licensee and of the
res:eration of the roadbed and property as herein provided, the Licensor shall in no manner be liable to the Licensee for an7
damage sustained by the Licensee for or on account thereof, and such removal and restoration shall in no manner prejudice or
lrr.,pa:r an'/right of action for damages, or atherw'ise, that the L/censor may have against the Licensee.
Section 12. WAIVER OF BREACH.
The ;vaiver by the Licensor of the breach of (:my condition, covenant or agreement herein contained to be kept, obse.wed
and performed by the Licensee sha~! in no way impair [he right of the Licensor to avail itself of any remedy for any subsequent
breach thereof.
pix e×b Page 3 of 4 Exhibil B
· F. OrT~ Appr~oved. AVP-L~w
Section 13. TERMINATION.
(o) ~' lhe Licensee does not use ~he right herein grcmted or ~he Pipeline for one (l) year. or if the Licensee con(inues in def~.~ll
Licensor to the Licensee speci[ying such default, the Licensor mcr/. ~ its option, forthv,'~th tmn~.e:/,.ate[y terminate hs Agreement
by writlen notice.
(b) Inaddtontotneproasons of subparagrc~ph (a) above, thisAgreemen .,r.a'7 be erm~n~ed b,.,'V,,Ti en no ice given by either
party hereto to the other on any date in such nohce stated, not less. however. !hah thirty (30) dcr,'s subsequem ~o th~= da~= ueon
which such notice shall be given.
(c) Notice of default and notice of termination may be served personally upon the b. censee or by mailing to the las! known
adcL'ess of the Licensee. Termination of this Agreement for cmy reason sh~l not ~fect cmF of the rights or obi gahons of ne per: ies
here!o which mcr/' have accrued, or liabilities, accrued or otherwise, which mcr.,' have ar sen pr er hereto
Sect,.on 14. AGREEMEN'T NOT TO BE ASSIGNED.
The Licensee shc~II not assign this Agreement in whole or in pcrrt, or any rights herein grm".!ed, without the written consem
of the Dcensor, end it is agreed that cmy transfer or assignment or attempted transfer or assignment of this Agreement or any of
Ihe rights herein granted, whether voluntary, by operation o[ lcrYv, or othervnse, vAIhout such consent in writing, sh~l be c~solutely
void and, at the option of the Licensor, shall lermin~e this Agreement,
Section [5. SUCCESSORS AND ASSIGNS.
Subject ~o the provisions of Section [4 hereof this Agreement shall be binding upon and inure to the benef:t of the parties
hereto, their heirs, executors, adminis~ra':ors, successors crud assigns
pix cxb Page 4 of 4 Exhibit B