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2002-118WlRELINE CROSSING LOCATED AT MILE POST 721.180, 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 HEREBY ORDAINS: SECTION 1. The City Manager or his designee is hereby authorized to execute a Wireline Crossing Agreement with Union Pacific Railroad Company for an electric wireline located at mile post 721.180, Choctaw Subdivision, City of Denton, Denton County, Texas substantially in the form of the Agreement 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 /~ ~-~-~ day of /~f['/ ,2002. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CI{FY SECRETARY HERB~~.~ATTORNEY BY: // f/ / WLX.DOC 940204 Form Approved, AVP-Law Folder No52074-97 WIRELINE CROSSING AGREEMENT Mile Post 721.180, Choctaw Subdivisio.n/Branch Location: Denton, Denton County, Texas "Licensor"), and CITY OF DENTON, a Texas municipal corporation, whose address is City Hall East, 601 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 ONE THOUSAND FIVE HUNDRED DOLLARS ($1,500.00). Article II. LICENSOR GRANTS RIGHT In consideration of the license fee to be paid by the Licensee and in further consideration or'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 an overhead 13.2 kv wireline crossing (hereinafter the "Wireline") in the location shown and in conformity with the dimensions and specifications indicated on the attached print marked Exhibit "A". Under no circumstances shall Licensee modify the use of the Wireline for a purpose other than the above-mentioned, and said Wireline 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 IlL 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 Wireline (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 receipt of a copy of the Contractor's Right of Entry Agreement and understanding of its terms, provisions, and requirements, and will inform its contractor of the need to execute the Agreement. Under no circumstances will Licensee's contractor be 'allowed onto Licensor's premises without first executing the Contractor's Righ~ of Entry Agreement. Article V. INSURANCE A. The Licensee, at its expense, shall provide the the Licensor a Certificate of Insurance, identifying Folder No. 2074-97, issued by its insurance carrier, confirming the existence of such insurance and that the policy or policies comain 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 'Wireline' located on Railroad fight-of-way at Mile Post 721.180 on the Choctaw Subdivision. at or near Denton, Denton County, Texas. If the Licensee named in this Agreement is a public entity subject to any applicable statutory tort laws, the limits of insurance described above shall be the limits the Licensee then has in effect or which is required by applicable current or subsequent law, whichever is greater, a portion of which may be self insured with the consent and approval of the Licensor. C. All insurance correspondence shall be directed to: Folder No. 2074-97, Union Pacific Railroad Company, Real Estate Department, 1800 Famam 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 held 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 &the Licensee, agents and/or employees, that causes or contributes to (1) any damage to or destruction o f 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 proper~y. 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 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 (b) 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: I. The prosecution of any work contemplated by this agreement including the installation. construction, maintenance, repair, renewal, modification, reconstruction, relocation, or removal of the Wireline or any pan thereof; or 2. The presence, operation, or use of the Wireline or contents escaping therefrom, except to the extent that the Loss is caused by the sole and direct negligence of the Licensor. ARTICLE Vll. 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 cxecmed in duplicate as of the date first herein xwirten. UNION PACIFIC RAILROAD COMPANY / * contracts Representative/r-. By: ~ I..~"~~//// City : PLACE ARROW INDICATING NORTH IRE~ION RELATIYE TO CROSSING O~RHEAD WIRELINE CROSSING OVER 750 VOLTS NO SCALE NOTEt ALL AVAILABLE DIMENSIONS MUST BE FILLED IN TO EXPEDITE THIS APPLICATION, NOTE5: (s~ ~n ~s u s) ~s~ ~ ~s u s) A~ HORIZO~AL DIST~ES TO ~ ~SUR~ AT REG~ ANGLES ~ [ ~ ~A~, ~T AS ~T~ EXHIBIT 'A" UNION PACIFIC RAILROAD CO. M. p.7~ I, t~O E. 5. OVERHEAD W[RELINE CROS$Ih FILE NO. DAT WARNING WLX.EXB ~01 lA % gx/-IIBrr B Section I. LRv~ATION AND SUBORDINATION OF RIGHTS GRANTED. (a) The foregoing grant of right is su~ect crud su]nardinate to the prior and conthlu~ng right and obl/gation o{ the Licensor to use ond mc,~nt,"~n its eniire property including the righl crud power of the Licensor to construct, matntaln; repair, renew, use, operate, chonge, mod/by or relocate rcd]ro~d tracks, sign,w~, cornmun.i¢c~tion, Abet optics, or other wirehnes, pipelines and other faclitttes upon, along or across any or c~ pens of its property, all or cmy d which moS, be freely done at any tirae or times by the L~censor w~thout flexility to the Licensee or to any ather party fo~' coml:-~ensalion or dcr~nages. (b) The foregoing greet is ,-,1so suhiect to (:~ outstanding superior rights (including those In Ievor o{ ]~censeee and lessees of the Licensor's property, and others) ced the hght of the Licensor to renew and extend the same. and is made without covenant of t~tle or for quiet enloyrnent. Section 2. CONSTRUC1MON, MALNTENANCE AND OPERATION, (a) .~ the W/reline or any pen thereof is to be located ~ the top of the ratls of any track or conu'nur~c~on (:md signal lines, mcludhsg stalk wires, overhead clearance pro',~.ded by the W/reline shall be no less hhon that shown on ~t A. The W~rel/ne shall be constructed, operated, mcdnta~ned, rel::x:dred, renewed, modified end/or reconstructed by the Licensee in strict conferralW wi~h the Specifications prescribed in the current issue at the National Electrical S~e~ Cede of the Americcm National Standards Institute. In the event such Speci/ications coruqict in czny respec~ ,.~th the requirements of any federal state or municipal Jaw or regulation, such requirements shat] govern on c~l points of conBict, but in ali other respects the Specihcations ~hc~l apply. (b) All work performed on properS/ of Ihe Licensor /r. connection with the construction, mcnntencmce, repent, renewal, mod~[ication or reconstruction of the Wire~/ne shaIl be done to the sc~is{aation of the Licensor. (c) If the Wirellne ~s an ex~sflng one not cor~ormlng !n its construction to Ihe above provisions of this Section 2, the hcensee shcB. withe nmety (90) days ~ter the date hereof, reconstru:i it sa as to conform therewith. The Wkeline sha]~ be const~cted, ma/ntcaned ced operated by the Licensee in such mcmner as not to be or constitute hazard to ay/etlon. Wi~h respect to ~he Wirehne the Licensee, withou~ e.,cpense to the Licensor. 'w~fl comply with al! reqU~ements of Icky and of pub[/c authority~ whether federal, state or local, including but not lirnited to aviation authorities. (e) In the operation of the Wirehne, the Licensee sh-~.l not transmit electric current at a chfference of potential tn excess of the voltage L~c[lcated on Ex.~bit A. L~ the voltage in,coted is in excess of seven hundred rift'! (750) volts, ced the Wirelgne is, or is to be. buried at any location on the property of the hcenscr outside track balkzst sections or roadbed, the Licen.~ee ~hall msta[I metalhc conduit, or non-metlife cond.,.dt encczsed in cr minimum of three (3) inches of concrete w~th (3 mu'hmum of four (4) feet of ground cover the enli.re length of the Wireltne on the proper~ of the Licensor. A W~reline buried by removal of the so)l shall have, at a depth of one (1) foot beneath the surface of the ground cflrectIy above the Wirehne, a six (6) inch wide ,,v~rung tape be~n~,g the warning, "Danger-High Voltage." or equivalent word/ng. A Wireline encased fn conduit, jacked or bored under the prope~! of the Licensor, must be identified by placing wcn'r,Jng signs, to be instal]ed and properly mCnnt~ned at the expense ef the hcensee, at e~ch edge of the [Jcensor's propen7. The Dcensee shall not utilize the signs m lieu of the warnmg tape where portions of the ca~ing are installed By direct buns]. Section 3. NOTIQ-~ OF COh~ENCEMENT QF WORK. [f cm. emergency should arise requinng lrnme~e attention, the Licensee sho.~ provide as much notice as practicable to Licensor before comrnenc/ng ~y work. ~ ~l other situ~ions, the ~censee shal~ notify the hce~or ~ l~st ~en (D) d~s (or such other time ~s the ~censor may all~) in advice of the co~encement of ~y work upon properW of the Licensor m co~ec~ion ~th the construction, m~nten~ce, rep~r renew}, modlhc~lo~, reconstrucUon, reloc~ion or remo~ of the Wirehne. ~1 such work sh~l be pressured ~ligen~y to complehen. wlx.exb Page ! of 4 Exhibit B HICIR 21 '~1;~2 ~'2:40 FR UPPJ~'NJUNt--NI:I'II-~IHtm- e~ ~r ,~o~,.~ ............ The Dcensee shc~ bear the entire cost and expense incurred in.connection w/th the construction, mainlenonce, repair and renewal and any crud all modification, revision, relocation, removal or reconstruction of me Wireline, including any and all expense which may be incurred by the L/censor in connection therewith for Super~sion or inspection, or othemtise. Section 5. REINFORCENfENT., RELOCATION OR REMOVAL OF W'IRELEqE. fa) The license herein granted is subject to the needs and requirements of the L/censor in the operation aL ils railroad and in the improvement crud use of ils property, and the Licensee shall, at Ihe sole expense of the Licensee. reinforce or encase the W~reline (if it is an underground facility) to the satisfaction of the Licensor. or moue cfi] or any portion of the Wirehne to such new location, as the Licensor may designate, whenever in the furtherance of its needs and requirements, the L/censor shall find such act/on necessary or desirable. (b) All the terms, conditions and stipulations herein expressed with reference to the Wireline on property of the L/censor Ln the localion hereinbefore described shcrll, so far as the W~reBne remains on the property, apply to the Wireline as mod. flied, changed or relocated within the contemplation of this section. Sect/on 6. IN"FE]~'~. In the operation and maintencmce of the Wu'aline the Licensee shall take all suitable precaution to prevent amy interference (by induction, leakage of electricity, or othervhse) with the operation al the signal, communtccflion lines or other installations or facilities of the Licensor or of its tenants; and If. at any lime. the operation or maintenance of the Wirehne results in any electrostatic effects w~ch the Licensor deems undesirable or harmful, or causes interference ~,"ith the operation of the sign,'~l, communication lines or o!her installations or facilities, as now existing or which mcr/herecrfler be pro,.,-ided by the L/censor and/or its tenants, the Lmensee shall, at the sole expense of the Licensee. immediately take such action os mcr/be necessary to el/m/nme such interterence. Section 7. PROTECTION OF FIBER OPTIC CA.~L~SYSTEMS. (o) Fiber optic ccible symems may be buried on the Licensor's property. Ih-election el the fiber optic cable systems is of e~reme importance since any break cou!d chsrupt service to users resulting in business interruption and loss of re*~enue and prehts. Licensee shall telephone the L/censor at 1-800-336-9193 (a 24-hoar number) to determine i.f fiber optic cable is buried cm~,*here on the L/censor's premises to be used by the L/censee If it is, Licensee ',mil telephone the telecommurucations cempamy(ies) involved, arrange for a cable locater, make arrangements for relocation or other protection of the fiber optic cable, cd] at Licensee's expense, crud ~ commence no work on the righ~ of way until all such protection or relocation ham been accomphshed. Licensee shall indemnJ[~! crud hold the Licensor h,,~,,less from cud against all costs, liabi3ity and expense whatso~.,er (including, without l/m/taticu, attorneys' fees, court costs and expenses) arising out of or c~used in any way by Licensee's fa/lure to comply with the provisions of this pazogrcrph. hc~rmless fr~o~m cud against all costs, liability and expense whatsoever [inc!uding. without limitmmn. ~to~ 'ya-qgL~. court costs and expermes) caused by the negligence of the Licensee. ils con!rector, agents and/or e~2T..u~esultm~ in (1) amy damage to or destruction of any telecommunications system on Licensor's p~ (2) any talus/to or de~h of any person employed b,! or on behcr2f of any telecorm'nunlcations com~s con~ractor, agents cud/or employees, on licensor s properl'y, except ti such costs. 1/ability o~crased solely by the chr~ct active neghgence of the Licenser. L/censee Mrther agrees that i~ee,k recourse ago/est Licensor for an7 clcnm or ccr,:se of action for ~leged los~ .o.f profit~ se_nnce or o!h. er .consequential d~nage to a telecommuruc~[~z.ony using 'Licensor s (a) The Licensee aha]] folly pm/for all mnter/cds joined or cEfixed to and labor performed upoT~pert,/cf the Licensor in connection with the construction, maintenance, repair, renewal, mo,'-~Iftcation or reconstructlcn of the %Virehne. and shall not permit or suHer any mechonic's or materialman's lien o{ any k/nd or nature to be enforced ega~nst the property for any work done or materials funmShed thereon c~ the instance or request or on behalf of the Licensee. The Licensee shall indemnify cnud ~lxexb Page 2 of 4 Exhibtl B MAR 21' 2002 i2:41 FR UPRR-CDNT-RE~q E~TRTE 40~ ~ J~o ,u ~-~ ..... Wt-X.£XB 950112 ~lbrm ^!~p~vod. AVP-L~w hold h~ th~ ~en~or ~g~n~ ~d ff~ ~ ~d ~ ~, clX. d~m~d~. ~o~t~ ~d ~ens~s of wh~r n~re in ~ w~ ~ ~th or ~ out of ouch ~k done, l~r perfo~. ~ ~erials {ur~$hed. (b) The ~cens~ sh~ promptly p~ ~ &~ch~ge ~ ~es. c~ges ~d os~essment~ 1~ upon. in reset to. or on ancount al the W~e~ne, to pr~ent ~e s~e from b~o~g.a ch~ge or lien upon pro~ of ~e ~e~or, ~ ~o ~ the t~es. ch~ges ~d assessments le~ u~n or ~ resp~t to ~ch pro~ sh~ not be ~cr~ ~use of the l~ion, cons~ction or m~ten~ce of ~e W~e~e or ~y ~pr~ement, ~p~ce or ~re co~ ~ere~ placed upon such Frope~, or On acco~t of the ~censee's ~ere~ :hereim ~ere such t~ ch~ge or ~sessm~t m~ not ~ s~e~ made or a~sess~ to ~e Dee~ee ~ sh~ be ~luded ~ the ~sessment of the prope~ of the ~ce~or, ~en the hce~ee shall ~ to the Dcensor ~ ~t~le pro~ion of such t~es d~e~ed ~ the ~lue of the ~ce~s~'~ proper~ upon proper~ of the ~censor as comp~ed ~th the en~e v~ue of such pro~rW. Section 9. RESTORATION OF I/CENSOR'S PROPERTY. In the ~vent the Dcensor authorizes the Licensee to take down any fence of the Licensor or in any mcmner move or d~sturb any of the other property of the Dcensor In connection with the construction, rn~ntenance, repmr, renewal. modification, reconslruction, relocation or removed of the Wireline, then tn that event the Licensee shall, as soon as possible and at Licensee's sole expense, restore such fence crud other properly to the scene condition os the same were in before such fence wus taken down or such other property was moved or disturbed, and ~he Licensee shdil indemnify and hold harmless the Licensor. its officers, agents mud employees, against crud from amy crud cf/1 liability, loss, darnagez, penalties, claims. demands, costs and expenses of whatsoever nature, including court costs and attorneys' fees. which ma,/result from injury to or death of persons whomsoever, or damage to or loss or destruction of prope,'~/ whatsoever, when such injury, death. damage, loss or destruction grows out of or cnS_ses from the talcing down of may fence or the m~'ing or distuzbcmce of any other propemy of the Licensor. $echon lO. INDEMNITY. ]ocotion of the Licensee's installation crud their officers, agents, and employees: "Loss' includes foss, demmads, oct/ohs, ca-uses of action, penalties, cos~s, ~d e~enses of wh~so~er n~ure, Jnc~u~g couM~~orneys[ fees, w~ch m~ resull fr, om~ (~) injure/ ~o or d~h o{ person~ whomso~er (}nclu~n~ the ~c~ice~g~s, e~p!oyees, the ~censees officers, ~gents. ~d empI~fees, os well ~s any other per~~~or~!~ des~mchon cf property whatsoever (Including Licensee's propemy, d~mage to th~~. e~mmnt, or other prope~ of the Dce~or. or properW in its c~e or cust~y). (b) ~ a m~or inducement ~d in cen~der~fon of the B~ ~cense~ees to m~mdy =d hold h~,,dess ~e Ucensor from ~y Los~us ,o or ~isos kern: ~/ 1, ~e pro~ecuho~~icn, cons~uc(~on, Section 11. REMOVAL OF WI~EI Il,rE UPON T'F..R MII, IATJ, QN OF AGREEMENT. Prior to the termination of this Agreement howsoever, the Iicensee sh~l, at Licensee's ~ole expense, remove the W, rehne from the prope~/ef the Licensor and restore such property to as good a condition as il was in .before the Wirelme ',,,-a.* originally conslructed, aU to the sati~fa.-'ztion of the Licensor. II the licensee fails to do the foregoing, the Licensor may' perform the work of remov~ mad restorahon at the expense of the L/censee. The Licensor shall not be hoble to the L/c~nsee for any dcn'nage susta/ned by the Licensee as a result of the removal of the WtrelJne by the Licensor os in this section prowded. nor sh~21 such action preiud/ce or [mpa/..' any r/ght o[ act[on for dcanages or ether'rose that the Licensor ma'/. at the time of such removal, have against the Lmensoe. M~C~R 2i 2121~7. '12:41 FR WI~.EXB ~80112 ~rm Appmved. AVP-Lsw Section 12. W~ BREACH. The wc~ver by the L/censor of the bre~zch o! any condition, covenant or agreement herein contcfined to be kept, obser',~ecl and performed by the ~censee shall in no way impair the right of the Licensor to avcdi itself of any remedy for any subsequent breach thereof. Section 13. l .~LrvI]NATION'. fa) If the Licensee does not use the right herein granted or theW[reline for one (1) year, or if the Licensee continue,' m 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 Licermee specifying such default, the L/censor mcr/, at its option, forthwith immediately terminate this Agreemeni by written notice. (b) In addition to the provisions of subparagraph (c0 ,',_bare. this Agreement may be terminated by ~..a'itten notice given by either pcn~7 hereto to the other on any date in such not/ce ~ated, not less, however, than thirty (30) days subsequent to the date upon which such notice shall be g~ver, (c) Notice of de[crudt and notice of ter.u*hnation may be served persenc~Uy upon the Licensee or by racing Io the last known address of the Licensee. Termination of this Agreemen~ for cmy re,san shall not affect cmy of the rights or obB. gations o[ the pcrrties hereto which may have accrued, or liabilib/, accrued or otherwise, which mcr/h~te arisen prior thereto. Section 14. AGREEMENT NQT TO BE AS SIGN]F~D. The Licensee shafl not assign this Agreement, in whole or in part, or any rights herein grated, vnthout the :wit,~en consent af the Licensor. and it is agreed that any transfer or c, ssignment or attempted transfer or assignment of this A~eement or any of the rights herein granted, whelher veluntcn7. by operation of Ice, v. or othe,-wise. ~rlthout such consent in w,...~ing, shcfll be c~bsalutely void and. at the option of the Licensor, shall terminate this Agreement. Section i5. SUCCESSORS AND ASSIGNS. Subject to the provisions of Section 14 hereof, this Agreement shall be binding upon and inure to ~.he benefit of the hereto, their heizs, executors, actmL~strators, successors crnd ass~cjns. TOTAL PAGE.OB ~