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2000-264 ORDINANCE NO AN ORDINANCE APPROVING A PIPE LINE CROSSING CONTRACT BETWEEN THE CITY OF DENTON AND THE KANSAS CITY SOUTHERN RAILWAY COMPANY RELATING TO THE LOCATION OF A CITY WATER PIPELINE WITHIN RAILROAD RIGHT-OF-WAY LOCATED IMMEDIATELY EAST OF SAID RAILROAD RIGHT-OF- WAY'S INTERSECTION WITH U S HIGHWAY 377 WITHIN THE CITY OF DENTON, 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 Mayor, or her designee, is hereby authorized to execute a Pipeline Crossing Contract between the City of Denton and the Kansas City Southern Railway Company in substantially the form of the Contract which is attached to and made a part of this ordinance for all purposes, for the purpose of locating a City water pipeline within the right-of-way of smd rmlroad SECTION 2 The City Manager is authorized to make the expenditures as set forth in the attached Contract SECTION 3 This ordinance shall become effective immediately upon its passage and approval , ooo PASSED AND APPROVED this the day of EUL1NE BROCK, MAYOR ATTESq~ JENNIFER WALTERS, CITY SECRETARY API~q~OVED AS TO LEGAL FORM HERB~TTORNEY BY ~/// PIPELINE CROSSING CONTRACT TI-lIS AGREEMENT as entered into this /ff~day of /~1_~//~, 2000 between T__I~,, KANSAS CITY SOUTItERN RAILWAY COMPANY, a Missouri co'II'ration called herein "Licensor , and CITY OF DENTON, TEXAS, to be addressed at 221 Elm Street, Denton, Texas 76201, called herein "Licensee" 1 L~censor hereby grants Licensee the right to lay and maintain a proposed 20" water pipeline encased in a 36" x 150' steel casing pipe under Licensor's tracks and property at Mile Post 101 + 2250' at or near Denton, Texas, the course of the pipeline being described as follows As indicated on Klmley-Hom and Associates, Inc, print of Drawing No 061024003 dated 01/10/00, marked Exhthlt"A", attached and made a part hereof 2 The pipeline shall be laid in a manner acceptable to Licensor's Engineer, and plans for the same shall be submitted for his approval before construction work begins Laying, maintenance, operation and use of the pipeline shall not endanger the safety or condition of Licensor's property m any way, or the opera'aon of trains or cars, and the pipeline shall be lind at a munmum depth of twenty-eight (28) feet below the bottom of Licensor's base of rail and at a minimum depth of th~rty, slx roches (36") below the ground at other points on the right-of-way Excavations made on Licensor's property shall be promptly refilled by Licensee, the earth well tamped, the ground left m the same condition as before laying of smd pipeline, and locations of the pipeline marked and the markers malntmned and plmnly visible at the right-of-way lines Installation under tracks shall be by the dry bore and.lack method The pipeline shall be maintained so as to prevent the escape of gas or liquid being conveyed Connectnons or valves shall not be placed ar the pipeline nearer than forty (40) feet from the center of Licensor's nearest track Further, the pipeline and its operation and use, shall comply with any and all applicable governmental laws, rules, and regulations If required by Licensor's Engineer, gates and check valves shall be placed m convenient locations 3 Licensee shall promptly make necessary repairs to the p~pehne, and, in the event of Licensee's failure to do so, repmrs may be made by Licensor at Licensee's expense, which cost Licensee expressly agrees to pay upon presentation of the bill Should Licensor at any t~me decide a change in the location or other changes m the pipeline are desirable, Licensee will at ~ts cost make the changes at Licensor's request, and, upon the failure of Licensee to do so, Lacensor may make such changes at Licensee's expense, which expense Licensee expressly agrees to pay upon receipt of the bill 4 To the extent allowed by Texas law, Licensee agrees to defend, mdemmfy and hold Licensor, its officers, agents and employees, harmless against any and all claims, lawsuits, losses, damages, judgments, costs and expenses for personal injury (including death), property damage or other harm for which recovery of damages is sought, suffered by any person or persons, that may arise out of or be occasioned by any negligent act or omission of City, its officers, agents, associates, employees or independent contractors, m the use, operation or mmntenance of the portion of the 20" water pipeline facilities occupying the right- of-way under this License, except that the mdemmty prowded for m th~s paragraph shall not apply to any llablhty resulting fi.om the sole neghgenee of Licensor, tis officers, agents, employees or independent eontraetors~ and m the event of joint and concurrent negligence of both Licensee, Licensee's construction contractor and Lmensor, responsibility and mdemnaty, if any, shall be apportioned in accordance with the laws of the State of Texas, vathout, however, waiving any governmental immunity available to the City under Texas law and without waiving any defenses of the parties under Texas law The provisions of this paragraph are solely for the benefit of the parties hereto and not intended to create or grant any rights, contractual or otherwise, to any other person or entity Lmensee further agrees that it vall include Licensor as an additional mdenmltee in the construction contract it awards for construction of the 20" water pipeline facilities within the right-of-way Licensee occupies under this License, so that the construction contractor will also mdemmfy Licensor for the contractor's negligent, grossly negligent or strictly liable acts or omissions in the construction of the pipeline 5 It shall be the exclusive duty and responsibility of Licensee to ~nspect the property subject to this Agreement to make sure that it is safe for the entry of its employees, agents and contractors Licensee shall advise all of its employees, agents and contractors entenng the property of any safety hazards on the property, including, without limitation, the presence of moving vehicles, buried cables, rapping hazards and overhead w~res Licensee shall instruct all of its employees, agents and contractors entering the property that all persons, equipment and supplies must mamtaar a d~stance of at least 25 feet from the eenterhne of the track unless authorized by the on-site railroad flagman to be closer than 25 feet Finally, Licensee shall ensure that no personnel, equipment or supplies trader its control are w~thln the clearance point of the track when moving railroad eqmpment may be seen fi.om or heard at the property subject to this Agreement 6 Rights herein granted are personal and may not be assigned without Licensor's written consent The prowslons of this License shall be binding upon the successors and permitted assigns of both parties 7 FEES Lacensee agrees to pay to Licensor for the use of Licensor's right of way and the pnwlege hereby granted the one-ttme fee of FIVE THOUSAND AND NO/100 DOLLARS ($5,000 00) upon execution of this Agreement 8 Upon termination of th~s License, Licensee shall ~mmed~ately remove the pipehne fi.om the property of Licensor Upon failure of the Licensee to remove the pipeline Licensor may remove it at L~censee's expense, which cost and expense Licensee agrees to pay 9 If dtmng mstallalaon, maintenance, or removal of the p~pehne Licensee's equipment or personnel will be closer than 25 feet fi.om the center line of the nearest track, then Lmensor will provide one of ~ts employees as a qualified flagman Licensee is responsible for all flagging expenses, and it will reimburse Licensor for all of Licensor's costs and expenses associated with providing the flagman Licensee and its agents, employees and contractors will clear the tracks when directed to do so by the flagman The presence of the flagman will not relieve Licensee of its duty to keep all of its agents, employees and contractors clear of the tracks when trains are m dangerous proximity to the licensed area, nor will the negligence of the flagman release Licensee fi.om its duty of mdemmficatlon under section 3 of this Agreement Should Licensor consider it necessary or desirable to superwse the installation or removal of the pipeline, then Licensor may do so at Licensee's expanse Licensee will reimburse Licensor for all of 2 Licensor's reasonable costs and expenses within 30 days of receipt of a bill from Licensor specifying in reasonable detail L~eensor's costs and expenses 10 Th~s Agreement shall continue m force for one (1) year and thereafter until terminated by thirty (30) days not, ce m writing g~ven by e~ther party to the other 11 Environmental Protection The L~censee shall not permit hazardous waste, hazardous substances or hazardous materials on or m the area covered by this agreement without the written consent of the Ltcensor The Licensee shall at all times keep the area covered by this agreement m a safe, clean and sanitary eondltton, and shall not mutilate, damage, misuse, alter or permit waste thereto Should any discharge, leakage, spillage or emission of any hazardous waste, hazardous substance or hazardous material or pollution of any kind occur upon, in, into, under or from the area covered by this agreement due to Licensee's use and occupancy thereof, the Ltcensee, at its sole cost and expense, shall clean all property affected thereby, to the sat~sfaction of the Licensor and any governmental body having jurisdiction thereover The Lmansee shall comply with all apphcable ordinances, roles, regulations, reqmrements and laws whatsoever including (by way of lllustrat~on only and not by way of limitation) any govemmental authority or court controlling envtronmental standards and conditions on the premises and shall furnish satisfactory evidence of such compliance upon request by the Licensor IF, AS A RESULT OF THE LICENSEE'S OPERATION HEREUNDER, ANY SUCH ORDINANCE, RULE, REGULATION, REQUIREMENT, DECREE, CONSENT DECREE, JUDGMENT, PERMIT OR LAW IS VIOLATED, OR IF, AS A RESULT OF ANY ACTION BY THE LICENSEE, ANY HAZARDOUS OR TOXIC WASTE, MATERIALS OR SUBSTANCES SHOULD ENTER OR OTHERWISE AFFECT ANY PART OF THE AREA COVERED BY THIS AGREEMENT (INCLUDING SURFACE, SUBSURFACE, AIRBORNE AND/OR GROUND CONTAMINATION), THE LICENSEE SHALL PROTECT, SAVE HARMLESS, DEFEND AND INDEMNIFY THE LICENSOR FROM AND AGAINST ANY PENALTIES, FINES, COSTS, RESPONSE, REMEDIAL, REMOVAL AND CLEAN-UP COSTS, CORRECTiVE ACTION, NATURAL RESOURCE DAMAGE AND DAMAGES AND EXPENSES OF ANY OTHER NATURE WHATSOEVER, INCLUDING LEGAL FEES AND COURT COSTS, IMPOSED UPON OR INCURRED BY THE LICENSOR, CAUSED BY, RESULTING FROM OR IN CONNECTION WITH SUCH VIOLATION OR VIOLATIONS FOR THE PURPOSES OF THIS ENVIRONMENTAL PROTECTION SECTION, THE LICENSEE AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS THE LICENSOR FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, ACTIONS, LIABILITY, RESPONSiBILITY AND CAUSES OF ACTION (WHETHER ARISING IN OR OUT OF TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) ASSERTED AGAINST THEM FOR DEATH, INJURY, LOSS OR DAMAGE RESULTING TO THE LICENSOR'S EMPLOYEES OR PROPERTY, OR TO THE LICENSEE OR THE LICENSEE'S EMPLOYEES OR PROPERTY, OR TO ANY OTHER PERSONS OR THEIR PROPERTY, AND FOR ALL PENALTIES, FINES, COSTS, RESPONSE, REMOVAL, REMEDIAL AND CLEAN LIP COSTS, CORRECTiVE ACTION, NATURAL RESOURCE DAMAGE AND DAMAGES AND EXPENSES OF ANY OTHER NATURE WHATSOEVER, INCLUDING LEGAL FEES AND COURT COSTS, ARISING FROM, RELATED TO OR HAPPENING IN CONNECTION WITH THE USE OF THE AREA COVERED BY THIS AGREEMENT BY THE LICENSEE AND ITS AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS AND REPRESENTATIVES 3 FOR THE PURPOSES OF THIS ENVIRONMENTAL PROTECTION SECTION, THE LICENSEE FURTHER AGREES THAT ITS OBLIGATION OF INDEMNITY HEREUNDER SHALL BE STRICT AND ABSOLUTE AND SHALL REMAIN IN FULL EFFECT IRRESPECTIVE OF ANY NEGLIGENCE ON THE PART OF THE LICENSOR 12 So long as th~s Agreement is m effect, Licensee agrees to maintain comprehensive, general, and contractual habflaty insurance that covers Licensee's maximum potentaal liability under the Texas Tort Claims Act Licensee may discharge this obligation through a self-insurance, self-retention program that satisfies all applicable state laws, roles, and regulataons 13 Licensee agrees to furmsh Licensor with a cemfied copy of resolution or ordinance adopted bY the City of Denton, Texas, authorizing the Mayor and City Clerk to execute this contract on behalf of the City IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in duplicate as of the date first above written THE KANSAS CITY SOUTHERN RAILWAY COMPANY By ( ~ef Engineer Mayor ATTEST-x ~ I U ' y C,tyCle; -- Approved as to form APPROVED AS 10 FORM: CITY ATTOR~IW, Legal Department ? ~L+~ VIS lad cfio+~ ViS