2000-221ORDINANCE NO .4006-,;A
AN ORDINANCE AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXE-
CUTE A PIPELINE CROSSING AGREEMENT WITH UNION PACIFIC RAILROAD COM-
PANY FOR A WATER PIPELINE LOCATED AT MILE POST 724 10, CHOCTAW SUBDI-
VISION, CITY OF DENTON, DENTON COUNTY, TEXAS, AUTHORIZING THE EXPEN-
DITURE 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 Pipeline
Crossing Agreement with Union Pacific Railroad Company for a water pipeline located at mile
post 724 10, Choctaw Subdivision, City of Denton, Denton County, Texas which is attached
hereto and incorporated by reference herein (the "Agreement")
ized
SECTION 2 The expenditure of funds as provided in the Agreement is hereby author-
SECTION 3
approval
This ordinance shall become effective immediately upon its passage and
PASSED AND APPROVED this the SO &A day of /11 P . _,2000
&"e" A, d~
EULINE BROCK, MAYOR
ATTEST
JENNIFER WALTERS, CITY SECRETARY
BY ~ ),4a~~
AP OVED AS TO LEGAL FO
HERBERT L PRWTY, CITY TORNEY
BY
\\CH LGL\V0L1\shued\dept\LGL\0ur Documents\Ordmances\00\Pipelme Crossing-mile post 724 10 doc
PL X 940206
Form Approved, AVP-Law
Folder No 946-85
PIPELINE CROSSING
AGREEMENT AUDIT 22l#~
Mile Post 724 10 Choctaw Subdivision
Location Denton, Denton County, Texas
THIS AGREEMENT is made and entered into as of September 27, 1999, by and between
UNION PACIFIC RAILROAD COMPANY, a Delaware corporation (hereinafter the "Licensor"), and
CITY OF DENTON, a Texas municipal corporation, whose address is 901-A Texas St, Denton, Texas
76201 (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 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 only a
16" water pipeline crossing (hereinafter the "Pipeline")
in the location shown and in conformity with the dimensions and specifications indicated on the attached
print dated June 15, 2000, 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.
If a 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 form 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 Right of Entry Agreement
Article V INSURANCE
The Licensee, at its own sole cost and expense, shall provide to the Licensor a Certificate of
Insurance, identifying Folder No. 946-85, issued by its insurance carrier, certifying to the effectiveness
of insurance as follows
a) General Public Liability providing bodily injury and property damage coverage with combined
single limit of at least $1,000,000 each occurrence, a portion of which may be self-insured with
the consent and approval of the Licensor The Licensee will also provide to the Licensor a
Certificate of Insurance 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 724 10 at or
near Denton, Denton County, Texas
b) Such insurance shall be endorsed to provide contractural liability assumed by the Licensee under
this Agreement, and that coverage shall not be cancelled or changed without giving thirty (30)
days' prior written notice to the Licensor
C) 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
d) All insurance correspondence shall be directed to Folder No 946-85, Union Pacific Railroad
Company, Real Estate Department, 1800 Farnam Street, Omaha, NE 68102
Article VI 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
Article VII. 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 the Licensor harmless from and against all costs, liability and expense whatsoever (including without
limitation, attorneys' fees, court costs and expenses) arising out of any act or omission of the Licensee, its
agents and/or employees, that causes or contributes to (1) any damage to or destruction of any
telecommunications system on Licensor's property, and/or (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 further agrees that it shall not have or seek recourse against Licensor for any
claim or cause of action for 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
(a) As used in this Section "Licensor" includes other railroad companies using the Lxcensor'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 attorneys' fees which may result from (a) mlury 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/or (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)
(b) 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
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
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of
the date first herein written
UNION PACIFIC RAILROAD COMPANY
By
01.
CC4 r is Representative
WITNESS CITY CYT_ DENTON
1
By
1 T AGEI
A ROVED AS TO LEG~Ak FORM
HERBERT L,/!tOUT CITY ATTORNEY
BY
06/15/00 15 47 FAIL 9403408376 DENTON-ENG-DEFT- Z02
PLACE ARROW INDICATING NORTH
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A) 15 PIPELINE CROSSING WITHIN DEDICATED STREET ?YES, A NO
B) IF YES, NAME OF STREET
01 DISTRIBUTION LINE OR TRANSMISSION LINE
CI CARRIER PIPE I Water
COMMODITY TO BE CONVEYED
OPERATING PRESSL^^ PSI 11 CCl e
WALL THI CKNESS..TIA- 401 AMETEK L:? (MATERIAL
El CASIWALL THICANESS 7/16 Zgll Steel
IBl1METER WTER IAL
NOTE CASING FAUST HAVE 2- CLEARANLIE BETWEEN GREATEST
OUTSIDE DIAMETER OF CARRIER PIPE AND INTERIOR DIAMETER OF
CASINC PIPE WHEN FURNISHING DIMENSIONS, GIVE OUTSIDE OF
CARRIER PIPE AND INSIDE OF CASING PIPE
F) METRO V DAY CASING PIPE UNDER TRACKISI'
VDAY BORE AND JACK (WET BORE NOT PERMITTED) ,
TUNNEL , OTHER
GI WILL CONSTRUCTION BE BY AN OUTSIDE CONTRACTOR? YES,_ _NO.
H) DISTANCE FROM CENTER LINE OF TRACK TO NEAR FACE OF SkpR1V AND
JACKING PITS WHEN MEASURED AT RIGHT ANGLES TO TRACK.
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FOC I.,001wel03
JUN 15 2000 16 53 9403498376 PAGE 02
PLX980112
Farm Approved. AVP-Lean
Section 1 LDM TION AND cLmORtDINATION OF RIGHTS GAM=
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 properly 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 wirelines,
pipelines and other facilities upon, along or across any or all parts of its property, all or any of which may be freely done
at any time or time by the Licensor without liability to the Licenses 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 title or for quiet enjoyment
Section 2 CONSTRUMON. MAINMNANCE AND OPERATION
a) The pipeline shall be constructed operated maintained, repaired renewed modified and/or reconstructed by
the Liceruee in strict conformity withUrdon pacific Railroad Co Common Standard Specification 1029 adopted November
1949, and all amendments thereof and supplements thereto, which by this reference the event such hereof, except
as maybe modified and approved by the Licensor's Vice President-Engineering Services
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
modification 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, renewal
modification, relocation, reconstruction or removal of the Pipeline where it passes underneath the roadbed and track or
tracks of the Licensor, the Licensee shall submit to the Licensor plane setting out the method and manner of handling the
work including the shoring and cribbing, if any, required to protect the ticensor's operations, and shall not proceed with
the work until such pleas have been approved by the Vice president-Enginearing Services of the Licensor and then the work
shall be done to the satisfaction of the Vice President-Engleering Services or his authorized representative The Licensor
shall have the right if it so elects, to provide such support as it may deem necessary for the safety of its track or tracks
during the time of construction, maintenance, repair, renewal modification, relocation. reconstruction or removal of the
Pipeline, and in the event the L icerum provides such support the Licensee shall pay to the Licensor, within fifteen (15) days
after bills sh011 have been rendered therefor, all expense Incurred by the Licensor in connection therewith, which expense
shall include all assignable costs
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 No= OF gQhO&M1QM= OF WORK
If an emergency should arise requiring immediate attention the Licensee shall provide as much notice as
practicable to Licensor before commencing any work In all other situations, the licensee shall notify the Licensor at least
ten (10) days (or such other time as the Licensor may allow) in advance of the commencement of any work upon property
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 1 icENs E TO BEAR ENTIRE EXPENSE
The Licensee shall bow the entire cost and expense incurred in connection with the construction maintenance,
repair and renewal and arty 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 for supervision inspection. flagging,
or otherwise
plx.exb Pqp 1 of 4 Exh" B
PL X 980112
Pam Awov4 AVP-UW
Section 5 REUMMCEMEM F OCATION OR REMOVAL OF PIPE TNF
a) The license herein granted is subject to 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 shalt at the sole expense of the Licensee, reinforce the
Pipeline, or move all or any portion of the Pipeline to such new location as the Licensor may designate, whenever, in the
furtherance of its needs and requirements, the Licensor shall find such action necessary or desirable
b) All the terms, conditions and stipulations herein expressed with reference to the Pipeline on property of the
Licensor in the location hereinbefors described shalt so for as the Pipeline remains on the properly, apply to the Pipeline
as modified changed or relocated within the contemplation of this section.
Section 8 NO IN "OO4°°ENCF WITH LtCENGOR'a OPEN nON
The Pipeline and all parts thereof within and outside of the limits of the property of the Licensor shall be
constructed and at all times, maintained 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 the Licensor, and
nothing shall be done or suffered to be done by the Licensee at any time that would in any manner impair the safety thereof
Section 7 PROTECTION OF FIRM OPTIC .AR11~_ F SYAcL=
a) Fiber optic cable systems may be burled on the Licensor% 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 stall telephone the Licensor at 1.800M&9193 (a 24-hour number) to determine 9 fiber optic
cable is buried anywhere on the LicensoA premises to be used by the Licensee If it is, Licensee will telephone the
telecommunications company(ion) involved arrange for a cable locator, make arrangements for relocation or other
protection of the fiber optic cable, 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
against all caste, IiahOity and expense whatsoever (including, without limitation attorneys' fees, court costs and expenses)
arising out of or caused in any way by Licensee's failure to comply with the provisions of this paragraph.
b)
hamiless from and against all costs, liability and expense whatsoever (Including, without limitation, ai s, court
costs and expenses) caused by the negligence of the Licensee, its contractor, agents es, resulting in (1)
any damage to or destruction of any telecommunications system on License and/or (2) any injury to or death
of any person employed by or on behalf of arty telecomm company, and/or its contractor, agents and/or
employees, on Licensoe's property, except if s ty or expenses are caused solely by the direct active
negligence of the Licensor Licensee that it shall not have or seek recourse against licensor for any claim
or cause of action fo an of profits or revenue or loss of service or other consequentkil damage to a
teleco n company using Ucensor'e property or a customer or user of services of the fiber oSEE MMCLE
Section 8 C' S AND T JENS FOR TABOR AND MATERIAL TAXES
a) The licensee shall fully pay for all materials joined or affixed to cmd labor performed upon properly in connection with the constrtuctba maintenance, repalr, renewal, modification or reconstruction of the Pipeline, and shall
not permit or suffer arty mechanic's or materiolmm% lien of any kind or nature to be enforced against the properly for any
work done or materials fumished thereon at the instance or request or on behalf of the licensee The Licensee shall
indemnity and hold harmless the Licensor against and from any and all liens, claims, demands, costs and expenses of
whatsoever nature in anyway connected with or growing out of such work done, labor performed or materials furnished
b) The Licensee shall promptly pay or discharge all taxes, charges and assessments levied upon. in respect to, 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 taxes, charges and assessments levied upon or in respect to such property shall rat be increased because of the
location construction or mainlerance of the Pipeline or any improvement appliance or fixture connected therewith placed
upon such property, or on account of the Licensees interest therein. Where such tax, charge or assessment may not be
separately made or assessed to the licensee but shall be included in the assessment of the property of the Licensor, then
the Licensee shall pay to the Licensor an equitable proportion of such taxes determined by the value of the Licensees
property upon property of the Licensor as compared with the entire value of such properly
PIXW& Pap 2 or4 Padubd B
PL X 980111
Fa Approved, AVP LAW
Section 9 gf gjQ3 = OFT TCEN=S PROPERW
In the evert the Licensor authorises the Licensee to take down any fence of the Licensor or ai any manner move
or disturb any of the other properly of the licenser in connection with the constriction, maintenance, repair, renewal,
modification, reconstruction relocation or removal of the Pipeline, then in that event the Licensee shall, as soon as possible
and at Lfcenaee'a 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 Licensor, its officers, agents and employees, against and from any and all liability, loss, ogee, claims,
demands, costs and expenses of whatsoever mdse, including court costa and attorneys' fees, which may alt from (n)ary
to or death of persons whomsoever, or damage to or loss or destruction of property whatsoever, when soh injury, death,
damage, loss or destruction grows out of or arises from the taking down of any fence or the banaa of any
other property of the Licensor
Section 10 INDEMNITY SEE AFMCLE J ~
a)
location of the Licensee's installation and their officers, agents, and employees, "Loess includes loss,
demands, actions, causes of action, penalties, costs, and expenses of whatsoever nature, incl coats and
attorneys' fees, which may result from a) injury to or death of persons whomsoever (includi- eneor a officers,
agents, and employees, the Licensees officers, agents, and employees, as well as any o rson), and/or b) damage
to or loss or destruction of property whatsoever (including Licensee's property, roadbed, tracks, equipment
or other property of the Licensor, or property in its care or custody)
b) As a major inducement and in consideration of the and permission herein granted the Licensee agrees
to indemnify and hold harmless the Licensor from which is due tc or arises from
1 The prosecution of contemplated by this Agreement including the installation, construction
maintenance, rejjO , newal, modification reconstruction relocation. or removal of the Pipeline or any
pant the r
presence, operation or use of the Pipeline or contents escaping therefrom,
Section 11 REMOVAL OF PIPE L» UPON TMOENAMN OF AGREEtv>FT1T
Prior to the termination of this Agreement howsoever, the licensee shall, at Licensee's sole expense,
remove the Pipeline from those portions of the property 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 property to as good a condition as they were
in at the time of the construction of the Pipeline 11 the Licensee falls to do the foregoing, the licensor may do such work
of removal and restoration at the cost and expense of the licensee The Licensor may, at its option upon such termination
at the entire cost and expense of the Licensee, remove the portions of the Pipeline located underneath its roadbed and
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 may permit the Licensee to do such work of removal and restoration to the satisfaction of the Licensor In the event
of the removal by the Licensor of the property of the Licensee and of the restoration of the roadbed and property as herein
provided, the Licensor shall in no manner be liable to the Licensee for any damage sustained by the Licensee for or on
account thereat and such removal and restoration stall in no manner prejudice or impair any right of action for damages,
or otherwise, that the Licensor may have against the Licensee
Section 12 W T OF BREACH
The waiver by the Licensor of the breach of any condition covenant or agreement herein contained to be kept
observed and performed by the Licensee shall in no way impair the right of the Licensor to avail itself of any remedy for
any subsequent breach thereof
Page 3 or4 ExhO l H
plxexb
PL X 980112
Fam Apiro44 AVP•Inr
Section 13 TEt MMATLO!I
a) if the Licensee does not use the right herein granted or the pipeline for 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 llcenuor to the Licensee specifying such default the Licensor may, at its option forthwith immediately
terminate this Agreement by written notice
b) In addition to the provisions of subpaagraph a) above, this Agreement may be terminated by written notice given
by either party hereto to the other on any date in such notice stated, not less, however, than thirty (30) days subsequent to
the date upon which such notice shall be given.
C) Nodoe of default and notice of termination may be seared personally upon the Ucensee or by mailing to the last
known address of the Licensee Tern *xxdon of this Agreement for any reason shall not affect any of the rights or
obligations of the parties hereto which may ban accred, or liabilities, accrued or otherwise, which may have arisen prior
thereto
Section 14 AORI MITNOTTOREASSIC-AM
The 1lcersea shall not assign this Agreement in whole or in part or any rights herein granted without the written
consent of the Licensor, and it is agreed that any b=wfer or assignment or attempted transfer or assignment of this
Agreement or arty 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 Ilceneor, shall terminate this Agreement
Section 15 Stf=gSORS AND ASSIGNS
Subject to the provisions of Section 14 hereof this Agreement stall be binding upon and inure to the benefit of the
parties hereto, their heirs, executors, adminishators, successors and assigns
Page 4 or4 E)dubat B
plsmA