HomeMy WebLinkAboutContract 36996Tracking No.08-35483
CITY SECRETARY
PIPELINE LICENSE CONTRACT40 > 3
THIS LICENSE ("License"), made as of the 8th day of April 2008, ("Effective Date") by and
between BNSF RAILWAY COMPANY, a Delaware corporation ("Licensor") and CITY OF FORT
WORTH, a Texas corporation ("Licensee").
NOW THEREFORE, in consideration of the mutual covenants contained herein, the parties
agree to the following:
GENERAL
1. Licensor hereby grants Licensee anon -exclusive license, subject to all rights, interests, and
estates of third parties, including, without limitation, any leases, licenses, easements, liens, or
other encumbrances, and upon the terms and conditions set forth below, to construct operate,
within the Premises (as defined below), and maintain, in strict accordance with the drawings
and specifications approved by Licensor as part of Licensee's application process (the
"Drawings and Specifications"), one (1) PIPE LINE(s), sixteen (16) inches in diameter inside a
twenty-seven (27) inch steel casing ("PIPE LINE"), across or along the rail corridor of Licensor
at or near the station of Fort Worth, County of Tarrant, State of Texas, Line Segment 0485,
Mile Post 0.30 as shown on the attached Drawing No. 342941, dated January 9, 2007,
revised February 27, 2008 with final revision April 2, 2008, attached hereto as Exhibit "A" and
made a part hereof ("Premises").
2. Licensee shall not disturb any improvements of Licensor or Licensor's existing lessees,
licensees, easement beneficiaries or lien holders, if any, or interfere with the use of such
improvements.
3. Licensee shall use the Premises solely for construction, operation within the Premises, and
maintenance of a PIPE LINE in accordance with the Drawings and Specifications carrying
water. Licensee shall not use the PIPE LINE to carry any other commodity or use the
Premises for any other purpose.
(a) Licensee covenants that it will not handle or transport "hazardous waste" or "hazardous
substances", as "hazardous waste" and "hazardous substances" may now or in the
future be defined by any federal, state, or local governmental agency or body through
the PIPE LINE on Licensor's property. In the event the PIPE LINE is now or in the
future used in handling, or transporting "hazardous substances", Licensee agrees to
obtain written approval from Licensor and further agrees to comply fully with all
applicable federal, state, and local laws, rules, regulations, orders, decisions and
ordinances (hereinafter referred to as "Standards") concerning "hazardous
substances". Licensee further agrees periodically to furnish Licensor with proof,
satisfactory to Licensor, that Licensee is in such compliance. Should Licensee not
comply fully with the above -stated obligations of this Section, notwithstanding anything
contained in any other provision hereof, Licensor may, at its option, terminate this
License by serving five (5) days' notice of termination upon Licensee. Upon
termination, Licensee shall remove the PIPE LINE and restore Licensor 's property as
herein elsewhere provided.
04-22-08 A08�10 IN
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person and damage to property, including without limitation, employees and property of
Licensor and Licensee and all related expenses, resulting in whole or in part from
Licensee's failure to comply with any Standard issued by any governmental authority
concerning "hazardous substances". Licensee, at its cost, shall assume the defense of
all claims, suits or actions brought for damages, and fines or penalties hereunder,
regardless of whether they are asserted against Licensor or Licensee. Licensee also
agrees to reimburse Licensor for all costs of any kind incurred as a result of the
Licensee's failure to comply with this Section, including, but not limited to, fines,
penalties, clean-up and disposal costs, and legal costs incurred as a result of
Licensee's handling, transporting, or disposing of "hazardous substances" on the
property of Licensor.
4. In case of the eviction of Licensee by anyone owning or claiming title to or any interest in the
Premises, or by the abandonment by Licensor of the affected rail corridor, Licensor shall not
be liable to refund Licensee any compensation paid hereunder, except for the pro -rats part of
any recurring charge paid in advance, or for any damage Licensee sustains in connection
therewith.
5. Any contractors or subcontractors performing work on the PIPE LINE or entering the Premises
on behalf of Licensee shall be deemed servants and agents of Licensee for purposes of this
License.
6. .This License shall commence on the Effective Date and shall continue for a period of Twenty-
five (25) years, subject to prior termination as hereinafter described, and shall continue
thereafter on a month4o-month basis unless terminated by either party giving thirty (30) days
prior written notice.
COMPENSATION
7. (a) Fees for this License have been waived.
(b) Licensee agrees to reimburse Licensor (within thirty (30) days after receipt of bills
therefore) for all costs and expenses incurred by Licensor in connection with
Licensee's use of the Premises or the presence, construction and maintenance of the
PIPE LINE, including but not limited to the furnishing of Licensor's Flagman ($500.00
per eight hour day, $95.00 per hour thereafter). Licensor shall give Licensee at least 48
hours notice of its intent to provide flagmen to the extent the same is reasonably
practicable.
(c) All invoices are due thirty (30) days after the date of invoice. In the event that Licensee
shall fail to pay any monies due to Licensor within thirty (30) days after the invoice
date, then Licensee shall pay interest on such unpaid sum from thirty (30) days after its
invoice date to the date of payment by Licensee at an annual rate equal to (i) the
greater of (a) for the period January 1 through June 30, the prime rate last published in
The Wall Street Journal in the preceding December plus two and one-half percent (2
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1/29/6), and for the period July 1 through December 31, the prime rate last published in
The Wall Street Journal in the preceding June plus two and one-half percent (2 1/2%),
or (b) twelve percent (12%), or (ii) the maximum rate permitted by law, whichever is
leSSE
COMPLIANCE WITH LAWS
8. (a) Licensee shall observe and comply with any and all laws, statutes, regulations,
ordinances, orders, covenants or restrictions ("Legal Requirements") relating to the
construction, maintenance and use of the PIPE LINE and the use of the Premises.
(b) Prior to entering the Premises, Licensee shall and shall cause its contractor to comply
with all Licensors applicable safety rules and regulations. Prior to commencing any
work on the Premises, Licensee shall complete and shall require its contractor to
complete the safety training program at the following Internet Website
"http://www.contractororientation.com". This training must be completed no more than
one year in advance of Licensee's entry on the Premises.
DEFINITION OF COST AND EXPENSE
9. For the purpose of this License, "cost' or "costs" "expense" or "expenses" includes, but is not
limited to, actual labor and material costs including all assignable additives, and material and
supply costs at current value where used.
RIGHT OF LICENSOR TO USE
10. Licensor excepts and reserves the right, to be exercised by Licensor and any other parties
who may obtain written permission or authority from Licensor:
(a) to maintain, renew, use, operate, change, modify and relocate any existing pipe,
power, communication lines and appurtenances and other facilities or structures of like
character upon, over, under or across the Premises;
(b)
(c)
to construct, maintain, renew, use, operate, change, modify and relocate any tracks or
additional facilities or structures upon, over, under or across the Premises; or
to use the Premises in any manner,
appropriate, provided Licensor uses
material interference with the use of
specified in Section 3 above.
LICENSEE'S OPERATIONS
as the Licensor in its sole discretion deems
all commercially reasonable efforts to avoid
the Premises by Licensee for the purpose
11. (a) Licensee shall notify Licensor's Roadmaster at 4028 Deen Road, Fort Worth, TX.
76106 telephone (817) 740-7274, at least five (5) business days prior to installation of
the PIPE LINE and prior to entering the Premises for any subsequent maintenance
thereon.
(b) In performing the work described in Section 3, Licensee shall use only public roadways
to cross from one side of Licensor's tracks to the other.
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12. (a) Under no conditions shall Licensee be permitted to conduct any tests, investigations or
any other activity using mechanized equipment and/or machinery, or place or store any
mechanized equipment, tools or other materials, within twenty-five (25) feet of the
centerline of any, railroad track on the Premises unless Licensee has obtained prior
written approval from Licensor. Licensee shall, at its sole cost and expense, perform
all activities on and about the Premises in such a manner as not at any time to be a
source of danger to or interference with the existence or use of present or future tracks,
roadbed or property of Licensor, or the safe operation and activities of Licensor. If
ordered to cease using the Premises at any time by Licensor's personnel due to any
hazardous condition, Licensee shall immediately do so. Notwithstanding the foregoing
right of Licensor, the parties agree that Licensor has no duty or obligation to monitor
Licensee's use of the Premises to determine the safe nature thereof, it being solely
Licensee's responsibility to ensure that Licensee's use of the Premises is safe. Neither
the exercise nor the failure by Licensor to exercise any rights granted in this Section
will alter the liability allocation provided by this License.
(b) Licensee shall, at its sole cost and expense, construct, operate within the Premises,
and maintain the PIPE LINE in such a manner and of such material that it will not at
any time be a source of danger to or interference with the existence or use of present
or future tracks, roadbed or property of Licensor, or the safe operation and activities of
Licensor. Further, when the PIPE LINE is used for oil, gas, petroleum products, or
other flammable or highly volatile substances under pressure, said PIPE LINE shall be
constructed, installed, operated within the Premises and maintained in conformity with
the plans and specifications shown on the print attached hereto as Exhibit B and made
a part hereof (which, if present, are to be deemed part of the Drawings and
Specifications). Licensor may direct one of its field engineers to observe or inspect the
construction and/or maintenance of the PIPE LINE at any time for compliance with the
Drawings and Specifications. If ordered at any time to halt construction or
maintenance of the PIPE LINE by Licensor's personnel due to non-compliance with the
same or any other hazardous condition, Licensee shall immediately do so.
Notwithstanding the foregoing right of Licensor, the parties agree that Licensor has no
duty or obligation to observe or inspect, or to halt work on, the PIPE LINE, it being
solely Licensee's responsibility to ensure that the PIPE LINE is constructed in strict
accordance with the Drawings and Specifications and in a safe and workmanlike
manner in compliance with all terms hereof. Neither the exercise nor the failure by
Licensor to exercise any right granted by this Section will alter in any way the liability
allocation provided by this License. If at any time Licensee shall, in the sole judgment
of Licensor, fail to properly perform its obligations under this Section, Licensor may,,at
its option and at Licensee's sole expense, and after giving written notice to Licensee,
arrange for the performance of such work as it deems necessary for the safety of its
operations and activities. Licensee shall promptly reimburse Licensor for all costs and
expenses of such work, upon receipt of an invoice for the same. Licensor's failure to
perform any obligations of Licensee shall not alter the liability allocation hereunder.
13. During the construction and operation any subsequent maintenance performed on the PIPE
LINE within the Premises, Licensee shall perform such work in a manner to preclude damage
to the property of Licensor, and preclude interference with the operation of its railroad. Upon
completion of the construction of the PIPE LINE and after performing any subsequent
maintenance thereon, Licensee shall, at Licensee's own cost and expense, restore Licensor's
Premises to their former state as of the Effective Date of this License.
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14. If at any time during the term of this License, Licensor shall desire the use of its rail corridor in
such a manner as would, in Licensor's reasonable opinion, be interfered with by the PIPE
LINE, Licensee shall, at its sole expense, within ninety (90) days after receiving written notice
from Licensor to such effect, make such changes in the PIPE LINE as in the sole discretion of
Licensor may be necessary to avoid interference with the proposed use of Licensor's rail
corridor, including, without limitation, the relocation of the existing or the construction of a new
PIPE LINE(s).
15. (a) Prior to Licensee conducting any boring work on or about any portion of the Premises,
Licensee shall explore the proposed location for such work with hand tools to a depth
of at least three (3) feet below the surface of the ground to determine whether
pipelines or other structures exist below the surface, provided, however, that in lieu of
the foregoing, the Licensee shall have the right to use suitable detection equipment or
other generally accepted industry practice (e.g., consulting with the Underground
Services Association) to determine the existence or location of pipelines and other
subsurface structures prior to drilling or excavating with mechanized equipment. Upon
Licensee's written request, which shall be made thirty (30) business days in advance of
Licensee's requested construction of the PIPE LINE, Licensor will provide Licensee
any information that Licensor has in the possession of its Engineering Department
concerning the existence and approximate location of Licensor's underground utilities
and pipelines at or near the vicinity of the proposed PIPE LINE. Prior to conducting any
such boring work, the Licensee will review all such material. Licensor does not warrant
the accuracy or completeness of information relating to subsurface conditions and
Licensee's operations will be subject at all times to the liability provisions herein.
(b) For all bores greater than 20-inch diameter and at a depth less than 10.0 feet below
bottom of rail, a soil investigation will need to be performed by the Licensee and
reviewed by Licensor prior to construction. This study is to determine if granular
material is present, and to prevent subsidence during the installation process. If the
investigation determines in Licensor's reasonable opinion that granular material is
present, Licensor may select a new location for Licensee's use, or may require
Licensee to furnish for Licensor's review and approval, in its sole discretion a remedial
plan to deal with the granular material. Once Licensor has approved any such
remedial plan in writing, Licensee shall, at its sole cost and expense, carry out the
approved plan in accordance with all terms thereof and hereof.
16. Any open hole, boring or well constructed on the Premises by Licensee shall be safely
covered and secured at all times when Licensee is not working in the actual vicinity thereof.
Following completion of that portion of the work, all holes or borings constructed on the
Premises by Licensee shall be:
(a) filled in to surrounding ground level with compacted bentonite grout; or
(b) otherwise secured or retired in accordance with any applicable Legal Requirement. No
excavated materials may remain on Licensor's property for more than ten (10) days,
but must be properly disposed of by Licensee in accordance with applicable Legal
Requirements.
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114 Upon termination of this License, Licensee shall, at its sole cost and expense:
(a) remove the PIPELINE and all appurtenances thereto, or, at the sole discretion %J the
Licensor, fill and cap or otherwise appropriately decommission the PIPELINE with a
method satisfactory to Licensor;
(b) report and restore any damage to the Premises arising from, growing out of, or
connected with Licensee's use of the Premises;
(c) remedy any unsafe conditions on the Premises created or aggravated by Licensee;
and
(d) leave the Premises in the condition which existed as of the Effective Date of this
License, normal wear and tear excepted.
18. Licensee's on -site supervisions shall retain/maintain a fully executed copy of this License at all
times while on the Premises.
LIABILITY
19. (a) TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL AND SHALL
CAUSE ITS CONTRACTOR TO RELEASE, INDEMNIFY, DEFEND AND HOLD
HARMLESS LICENSOR AND LICENSOR'S AFFILIATED COMPANIES,
PARTNERS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS,
DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS (COLLECTIVELY,
"INDEMNITEES") FOR, FROM AND AGAINST ANY AND ALL CLAIMS,
LIABILITIES, FINES, PENALTIES, COSTS, DAMAGES, LOSSES, LIENS, CAUSES
OF ACTION, SUITS, DEMANDS, JUDGMENTS AND EXPENSES (INCLUDING,
WITHOUT LIMITATION, COURT COSTS, ATTORNEYS' FEES AND COSTS OF
INVESTIGATION, REMOVAL AND REMEDIATION AND GOVERNMENTAL
OVERSIGHT COSTS) ENVIRONMENTAL OR OTHERWISE (COLLECTIVELY
"LIABILITIES") OF ANY NATURE, KIND OR DESCRIPTION OF ANY PERSON OR
ENTITY DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM OR
RELATED TO (IN WHOLE OR IN PART):
(i) THIS LICENSE, INCLUDING, WITHOUT LIMITATION, ITS ENVIRONMENTAL
PROVISIONS,
(ii) ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS LICENSE,
(iii) LICENSEE'S OCCUPATION AND USE OF THE PREMISES,
(iv) THE ENVIRONMENTAL CONDITION AND STATUS OF THE PREMISES
CAUSED BY, AGGRAVATED BY, OR CONTRIBUTED IN WHOLE OR IN
PART BY LICENSEE, OR
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(v) ANY ACT OR OMISSION OF LICENSEE OR LICENSEE'S OFFICERS,
AGENTS, INVITEES, EMPLOYEES, OR CONTRACTORS, OR ANYONE
DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM, OR ANYONE
THEY CONTROL OR EXERCISE CONTROL OVER,
EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO, IN WHOLE
OR IN PART, ANY NEGLIGENCE OF ANY INDEMNITEE. THE ONLY LIABILITIES
WITH RESPECT TO WHICH LICENSEE'S OBLIGATION TO INDEMNIFY THE
INDEMNITEES DOES NOT APPLY ARE LIABILITIES TO THE EXTENT
PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF AN INDEMNITEE.
THE INDEMNIFICATION AND RELEASE REQUIRED ABOVE SHALL NOT APPLY
IN THE EVENT THE DISCHARGE, RELEASE OR ESCAPE OF HAZARDOUS
SUBSTANCES OR CONTAMINANTS, OR ASBESTOS IS PROXIMATELY AND
WHOLLY CAUSED BY LICENSOR'S SOLE NEGLIGENCE.
(b) FURTHER, TO THE FULLEST EXTENT PERMITTED BY LAW,
NOTWITHSTANDING THE LIMITATION IN SECTION 19(a), LICENSEE SHALL AND
SHALL CAUSE ITS CONTRACTOR TO NOW AND FOREVER WAIVE ANY AND
ALL CLAIMS, REGARDLESS WHETHER BASED ON THE STRICT LIABILITY,
NEGLIGENCE OR OTHERWISE, THAT RAILROAD IS AN "OWNER",
"OPERATOR", "ARRANGER", OR "TRANSPORTER" WITH RESPECT TO THE
PREMISES FOR THE PURPOSES OF CERCLA OR OTHER ENVIRONMENTAL
LAWS. LICENSEE WILL INDEMNIFY, DEFEND AND HOLD THE INDEMNITEES
HARMLESS FROM ANY AND ALL SUCH CLAIMS REGARDLESS OF THE
NEGLIGENCE OF THE INDEMNITEES. TO THE FULLEST EXTENT PERMITTED
BY LAW, LICENSEE FURTHER AGREES THAT THE USE OF THE PREMISES AS
CONTEMPLATED BY THIS LICENSE SHALL NOT IN ANY WAY SUBJECT
LICENSOR TO CLAIMS THAT LICENSOR IS OTHER THAN A COMMON CARRIER
FOR PURPOSES OF ENVIRONMENTAL LAWS AND EXPRESSLY AGREES TO
INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES HARMLESS FOR ANY AND
ALL SUCH CLAIMS. IN NO EVENT SHALL LICENSOR BE RESPONSIBLE FOR
THE ENVIRONMENTAL CONDITION OF THE PREMISES.
(c) TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE FURTHER AGREES,
AND SHALL CAUSE ITS CONTRACTOR TO AGREE REGARDLESS OF ANY
NEGLIGENCE OR ALLEGED NEGLIGENCE OF ANY INDEMNITEE, TO
INDEMNIFY, AND HOLD HARMLESS THE INDEMNITEES AGAINST AND ASSUME
THE DEFENSE OF ANY LIABILITIES ASSERTED AGAINST OR SUFFERED BY
ANY INDEMNITEE UNDER OR RELATED TO THE FEDERAL EMPLOYERS'
LIABILITY ACT ("FELA") WHENEVER EMPLOYEES OF LICENSEE OR ANY OF
ITS AGENTS, INVITEES, CONTRACTORS CLAIM OR ALLEGE THAT THEY ARE
EMPLOYEES OF ANY INDEMNITEE OR OTHERWISE. THIS INDEMNITY SHALL
ALSO EXTEND, ON THE SAME BASIS, TO FELA CLAIMS BASED ON ACTUAL OR
ALLEGED VIOLATIONS OF ANY FEDERAL, STATE OR LOCAL LAWS OR
REGULATIONS, INCLUDING BUT NOT LIMITED TO THE SAFETY APPLIANCE
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ACT, THE BOILER INSPECTION ACT, THE OCCUPATIONAL HEALTH AND
SAFETY ACT, THE RESOURCE CONSERVATION AND RECOVERY ACT, AND
ANY SIMILAR STATE OR FEDERAL STATUTE.
(d) Upon written notice from Licensor, Licensee agrees to assume the defense of any
lawsuit or other proceeding brought against any Indemnitee by any entity, relating to
any matter covered by this License for which Licensee has an obligation to assume
liability for and/or save and hold harmless any Indemnitee. Licensee shall pay all costs
incident to such defense, including, but not limited to, attorneys' fees, investigators'
fees, litigation and appeal expenses, settlement payments, and amounts paid in
satisfaction of judgments.
PERSONAL PROPERTY WAIVER
20. ALL PERSONAL PROPERTY, INCLUDING, BUT NOT LIMITED TO, FIXTURES,
EQUIPMENT, OR RELATED MATERIALS UPON THE PREMISES WILL BE AT THE RISK
OF LICENSEE ONLY, AND NO INDEMNITEE WILL BE LIABLE FOR ANY DAMAGE
THERETO OR THEFT THEREOF, WHETHER OR NOT DUE IN WHOLE OR IN PART TO
THE NEGLIGENCE OF ANY INDEMNITEE.
INSURANCE
21. Licensor acknowledges that the City of Fort Worth is basically aself-funded entity and as
such, generally, it does not maintain a commercial liability insurance policy to cover premises
liability. Damages for which the City of Fort Worth would ultimately be found liable would be
paid directly and primarily by the City of Fort Worth and not by a commercial insurance
company. Notwithstanding Licensees' status, Licensee shall require its Contractors at
Contractors' sole cost and expense to procure and maintain during the construction of the
pipeline the following insurance:
A. Commercial General Liability Insurance. This insurance shall contain broad form
contractual liability with a combined single limit of a minimum of $5,000,000 each
occurrence and an aggregate limit of at least $10,000,000. Coverage must be
purchased on a post 1998 ISO occurrence or equivalent and include coverage for, but
not limited to, the following:
♦ Bodily Injury and Property Damage
♦ Personal Injury and Advertising Injury
♦ Fire legal liability
♦ Products and completed operations
This policy shall also contain the following endorsements, which shall be indicated on the
certificate of insurance:
o It is agreed that any workers' compensation exclusion does not apply to
Licensor's payments related to the Federal Employers Liability Act or a Licensor
Wage Continuation Program or similar programs and any payments made are
deemed not to be either payments made or obligations assumed under any
Workers Compensation, disability benefits, or unemployment compensation law
or similar law.
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♦ The definition of insured contract shall be amended to remove any exclusion or
other limitation for any work being done within 50 feet of railroad property.
♦ Any exclusions related to the explosion, collapse and underground hazards
shall be removed.
No other endorsements limiting coverage may be included on the policy.
B. Business Automobile Insurance. This insurance shall contain a combined single
limit of at least $1,000,000 per occurrence, and include coverage for, but not limited to
the following:
♦ Bodily injury and property damage
♦ Any and all vehicles owned, used or hired
C. Workers Compensation and Employers Liability Insurance including coverage for,
but not limited to:
♦ Licensee's statutory liability under the worker's compensation laws of the
states) in which the work is to be performed. If optional under State law, the
insurance must cover all employees anyway.
♦ Employers' Liability (Part B) with limits of at least $500,000 each accident,
$500,000 by disease policy limit, $500,000 by disease each employee
D. Railroad Protective Liability Insurance. This insurance shall name only the Licensor
as the Insured with coverage of at least $5,000,000 per occurrence and $10,000,000 in
the aggregate. The coverage obtained under this policy shall only be effective during
the initial installation and/or construction of the PIPE LINE. The policy shall be issued
on a standard ISO form CG 00 35 10 93 and include the following:
♦ Endorsed to include the Pollution Exclusion Amendment (ISO form CG 28 31
10 93)
♦ Endorsed to include the Limited Seepage and Pollution Endorsement.
♦ Endorsed to include Evacuation Expense Coverage Endorsement.
♦ No other endorsements restricting coverage may be added.
♦ The original policy must be provided to the Licensor prior to performing any
work or services under this Agreement
In lieu of providing a Railroad Protective Liability Policy, Licensee may participate in Licensor's
Blanket Railroad Protective Liability Insurance Policy available to Licensee or its contractor.
The limits of coverage are the same as above. The cost for coverage under the blanket RPLI
policy is $1,000.00 and is being charged to AFE# A079500.
❑ I elect to participate in Licensor's Blanket Policy;
❑ I elect not to participate in Licensor's Blanket Policy.
Other Requirements:
All policies (applying to coverage listed above) shall contain no exclusion for punitive damages
and certificates of insurance shall reflect that no exclusion exists.
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Licensee agrees to waive its right of recovery against Licensor for all claims and suits against
Licensor. In addition, its insurers, through policy endorsement, waive their right of subrogation
against Licensor for all claims and suits. The certificate of insurance must reflect waiver of
subrogation endorsement. Licensee further waives its right of recovery, and its insurers also
waive their right of subrogation against Licensor for loss of its owned or leased property or
property under its care, custody or control.
Licensee's insurance policies through policy endorsement, must include wording which states
that the policy shall be primary and non-contributing with respect to any insurance carried by
Licensor. The certificate of insurance must reflect that the above wording is included in
evidenced policies.
All policy(ies) required above (excluding Workers Compensation and if applicable, Railroad
Protective) shall include a severability of interest endorsement and shall name Licensor and
Staubach Global Services, Inc. as an additional insured with respect to work performed under
this agreement. severability of interest and naming Licensor and Staubach Global Services,
Inc. as additional insureds shall be indicated on the certificate of insurance.
If Licensee elects to include any deductible, self -insured retention or other financial
responsibility for claims, Licensee shall itself directly cover, in lieu of insurance, any and all
Licensor's liabilities that would otherwise, in accordance with the provisions of this License, be
covered by Licensee`s insurance as if Licensee elected not to include a deductible, self -
insured retention or other financial responsibility for claims.
Prior to commencing the Work, Licensee shall furnish to Licensor an acceptable certificates)
of insurance including an original signature of the authorized representative evidencing the
required coverage, endorsements, and amendments and referencing the contract audit/folder
number if available. The policy(ies) shall contain a provision that obligates the insurance
company(ies) issuing such policy(ies) to notify Licensor in writing at least 30 days prior to any
cancellation, non -renewal, substitution or material alteration. This cancellation provision shall
be indicated on the certificate of insurance. Upon request from Licensor, a certified duplicate
original of any required policy shall be furnished.
Any insurance policy shall be written by a reputable insurance company acceptable to
Licensor or with a current Best's Guide Rating of A- and Class VII or better, and authorized to
do business in the states) in which the service is to be provided.
Licensee WARRANTS that this License has been thoroughly reviewed by Licensee's
insurance agents)/broker(s), who have been instructed by Licensee to procure the insurance
coverage required by this Agreement. Allocated Loss Expense shall be in addition to all policy
limits for coverages referenced above.
Not more frequently than once every five years, Licensor may reasonably modify the required
insurance coverage to reflect then -current risk management practices in the railroad industry
and underwriting practices in the insurance industry.
If any portion of the operation is to be subcontracted by Licensee, Licensee shall require that
the subcontractor shall provide and maintain insurance coverages as set forth herein, naming
Licensor as an additional insured, and shall require that the subcontractor shall release,
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defend and indemnify Licensor to the same extent and under the same terms and conditions
as Licensee is required to release, defend and indemnify Licensor herein.
Failure to provide evidence as required by this section shall entitle, but not require, Licensor to
terminate this License immediately.
The fact that insurance (including, without limitation, self-insurance) is obtained by Licensee
shall not be deemed to release or diminish the liability of Licensee including, without limitation,
liability under the indemnity provisions of this License. Damages recoverable by Licensor shall
not be limited by the amount of the required insurance coverage.
For purposes of this section., Licensor shall mean "Burlington Northern Santa Fe Corporation",
The Burlington Northern and Santa Fe Railway Company" and the subsidiaries, successors,
assigns and affiliates of each.
ENVIRONMENTAL
22. (a) Licensee shall strictly comply with all federal, state and local environmental laws and
regulations in its use of the Premises, including, but not limited to, the Resource
Conservation and Recovery Act, as amended (RCRA), the Clean Water Act, the Oil
Pollution Act, the Hazardous Materials Transportation Act, CERCLA (collectively
referred to as the "Environmental Laws"). Licensee shall not maintain a treatment,
storage, transfer or disposal facility, or underground storage tank, as defined by
Environmental Laws on the Premises. Licensee shall not release or suffer the release
of oil or hazardous substances, as defined by Environmental Laws on or about the
Premises.
(b) Licensee shall give Licensor immediate notice to Licensor's Resource Operations
Center at (800) 832-5452 of any release of hazardous substances on or from the
Premises, violation of Environmental Laws, or inspection or inquiry by governmental
authorities charged with enforcing Environmental Laws with respect to Licensee's use
of the Premises. Licensee shall use the best efforts to promptly respond to any
release on or from the Premises. Licensee also shall give Licensor immediate notice of
all measures undertaken on behalf of Licensee to investigate, remediate, respond to or
otherwise cure such release or violation.
(c) In the event that Licensor has notice from Licensee or otherwise of a release or
violation of Environmental Laws on the Premises which occurred or may occur during
the term of this License, Licensor may require Licensee, at Licensee's sole risk and
expense, to take timely measures to investigate, remediate, respond to or otherwise
cure such release or violation affecting the Premises or Licensor's right-of-way.
(d) Licensee shall promptly report to Licensor in writing any conditions or activities upon
the Premises which create a risk of harm to persons, property or the environment and
shall take whatever action is necessary to prevent injury to persons or property arising
out of such conditions or activities; provided, however, that Licensee's reporting to
Licensor shall not relieve Licensee of any obligation whatsoever imposed on it by this
License. Licensee shall promptly respond to Licensor's request for information
regarding said conditions or activities.
11 of 15 Form 424; Rev. 08/27/02
Tracking No. 08-35483
ALTERATIONS
23. Licensee may not make any alterations to the Premises or permanently affix anything to the
Premises or any buildings or other structures adjacent to the Premises without Licensor's prior
written consent.
NO WARRANTIES
24. LICENSOR'S DUTIES AND WARRANTIES ARE LIMITED TO THOSE EXPRESSLY
STATED IN THIS LICENSE AND SHALL NOT INCLUDE ANY IMPLIED DUTIES OR
IMPLIED WARRANTIES, NOW OR IN THE FUTURE. NO REPRESENTATIONS OR
WARRANTIES HAVE BEEN MADE BY LICENSOR OTHER THAN THOSE CONTAINED IN
THIS LICENSE. LICENSEE HEREBY WAIVES ANY AND ALL WARRANTIES, EXPRESS
OR IMPLIED, WITH RESPECT TO THE PREMISES OR WHICH MAY EXIST BY
OPERATION OF LAW OR IN EQUITY, INCLUDING, WITHOUT LIMITATION, ANY
WARRANTY OF MERCHANTABILITY, HABITABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
QUIET ENJOYMENT
25. LICENSOR DOES NOT WARRANT ITS TITLE TO THE PROPERTY NOR UNDERTAKE TO
DEFEND LICENSEE IN THE PEACEABLE POSSESSION OR USE THEREOF. NO
COVENANT OF QUIET ENJOYMENT IS MADE.
DEFAULT
26. If default shall be made in any of the covenants or agreements of Licensee contained in this
document, or in case of any assignment or transfer of this License by operation of law,
Licensor shall give Licensee ten (10) days written notice of such default and shall give
Licensee sixty (60) days to cure or such additional period as agreed to by Licensor. If
Licensee has commenced to cure such default but is unable to complete such cure due to
circumstances beyond the Licensee's reasonable control, Licensor shall extend Licensee's
time to cure an additional thirty (30) days or such additional time as agreed to by Licensor.
Licensor may, at its option, terminate this License by serving written notice upon Licensee ten
(10) days after the Licensee fails to cure such default during the specified cure period. Any
waiver by Licensor of any default or defaults shall not constitute a waiver of the right to
terminate this License for any subsequent default or defaults, nor shall any such waiver in any
way affect Licensor 's ability to enforce any Section of this License. The remedy set forth in
this Section 26 shall be in addition to, and not in limitation of, any other remedies that Licensor
may have at law or in equity.
LIENS
27. Licensee shall promptly pay and discharge any and all liens arising out of any construction,
alterations or repairs done, suffered or permitted to be done by Licensee on Premises.
Licensor is hereby authorized to post any notices or take any other action upon or with respect
to Premises that is or may be permitted by law to prevent the attachment of any such liens to
Premises; provided, however, that failure of Licensor to take any such action shall not relieve
Licensee of any obligation or liability under this Section 27 or any other Section of this License.
12 of 15 Form 424; Rev. 08/27/02
Tracking No. 0&35483
TERMINATION
28. This License may be terminated by Licensor, at any time, by serving ninety (90) days' written
notice of termination upon Licensee. This License may be terminated by Licensee upon
execution of Licensor's Mutual Termination Letter Agreement then in effect. Upon expiration
of the time specified in such notice, this License and all rights of Licensee shall absolutely
cease.
29. If Licensee fails to surrender to Licensor the Premises, upon any termination of this License,
all liabilities and obligations of Licensee hereunder shall continue in effect until the Premises
are surrendered. Termination shall not release Licensee from any liability or obligation,
whether of indemnity or otherwise, resulting from any events happening prior to the date of
termination.
ASSIGNMENT
30. Neither Licensee, nor the heirs, legal representatives, successors or assigns of Licensee, nor
any subsequent assignee, shall assign or transfer this License or any interest herein, without
the prior written consent and approval of Licensor, which may be withheld in Licensor's sole
discretion.
NOTICES
31. Any notice required or permitted to be given hereunder by one party to the other shall be in
writing and the same shall be given and shall be deemed to have been served and given if (i)
placed in the United States mail, certified, return receipt requested, or (ii) deposited into the
custody of a nationally recognized overnight delivery service, addressed to the party to be
notified at the address for such party specified below, or to such other address as the party to
be notified may designate by giving the other party no less than thirty (30) days' advance
written notice of such change in address.
If to Licensor: Staubach Global Services
5650 N. Riverside Drive, Suite 101
Ft. Worth, Texas 76137
Attn: Licenses/Permits
with a copy to: BNSF Railway Company
2500 Lou Menk Dr. — AOB3
Ft. Worth, Texas 76131
Attn: Manager — Land Revenue Management
If to Licensee: City of Fort Worth
1000 Throckmorton
Fort Worth, Texas 76102
13 of 15 Form 424; Rev. 08/27/02
With a copy to: City Attorney
City of Fort Worth
1000 Throckmorton Street
Fort Worth, Texas 76102
SURVIVAL
Tracking No. 08-35483
32. Neither termination nor expiration will release either party from any liability or obligation under
this License, whether of indemnity or otherwise, resulting from any acts, omissions or events
happening prior to the date of termination or expiration, or, if later, the date when the PIPE
LINE and improvements are removed and the Premises are restored to its condition as of the
Effective Date.
RECORDATION
33. It is understood and agreed that this License shall not be placed on public record.
34. All questions concerning the interpretation or application of provisions of this License shall be
decided according to the laws of the State of Texas and venue for any lawsuit that may arise
shall be in Tarrant County.
SEVERABILITY
35. To the maximum extent possible, each provision of this License shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision of this License
shall be prohibited by, or held to be invalid under, applicable law, such provision shall be
ineffective solely to the extent of such prohibition or invalidity, and this shall not invalidate the
remainder of such provision or any other provision of this License.
INTEGRATION
36. This License is the full and complete agreement between Licensor and Licensee with respect
to all matters relating to Licensee's use of the Premises, and supersedes any and all other
agreements between the parties hereto relating to Licensee's use of the Premises as
described herein. However, nothing herein is intended to terminate any surviving obligation of
Licensee or Licensee's obligation to defend and hold Licensor harmless in any prior written
agreement between the parties.
MISCELLANEOUS
37. In the event that Licensee consists of two or more parties, all the covenants and agreements
of Licensee herein contained shall be the joint and several covenants and agreements of such
parties.
14 of 15 Form 424; Rev. 08/27/02
Tracking No. 08-35483
38. The waiver by Licensor of the breach of any provision herein by Licensee shall in no way
impair the right of Licensor to enforce that provision for any subsequent breach thereof.
IN WITNESS WHEREOF, this License has been duly executed, in duplicate, by the parties
hereto as of the day and year first above written.
BNSF RAILWAY COMPANY
By:
P.O. Box 961050
Fort Worth, Texas 76161-0050
Manager —Land Revenue Management
CITY OF FORT WORTH
1000 Throckmorton
Fort Worth, Texas 76102
BY 1---
Fernando Costa, Acting
Title: Assistant City Manager
attested By:
Y t APPROVED AS T®
t try endri F(JRM �D LEGALITY:
p99187ANT CITY �TTARN€Y
ant ract Authorisatips
15 of 15 Form 424; Rev. 08/27/02
TRACKING NO.aB-35483
®e ®e
G�n��� �
ATTACHED TQ`CONTRACT BETWEEN
E3NSE RA i LWAY GOM�'ANY
AND
CITY 0� SORT
SCALE: 1 IN. =400 F T .
TEXAS DIV.
FDRT WORTH SUBDIV. L.S. C?485
DATE 01/09/2QQ8 �v
REV. DATE Q2l27/2005 ���6$�J
REV. DATE 04/IJ2/206B �� �"�,.�,�&
�"" PROPERTY LINE
PROPERTY
'a
SIZE: 1 6 „_ zT,r
CONTENTS: WATER
PIPE 1fATERIA.L: �_ STEEL
SPECIE ICATION f GRADE: CL 250 GR-8
WALL THICKNESS: 0_� 3Q�- a— 37
COATING: NIA N/A
WORTH
s
- - f �,'
CARRIER' CASING
PIPE PIPE
LENGTH ON P,/I'i: 56 ` 56 `
WORKING PRESSURE: 1 OQ PS I
BURY: BASE/RAIL TO TOP OF CASING 6.5'
BURY: NATURAL GROUND 4.3'
BURY: ROADWAY DITCHES 4.3
CATHODIC PROTECTION N/A
VENTS:
NUMBER -
SIZE
- HEIGHT
OF VENT ABOVE GROUND
NOTE:
CASING TO BE
JACKED
CR
DRY BORED
ONLY
NEAR FORT WORTH
COUNTY OF TARRANT
� TRIM LINE
�'
STATE OF TX �Lc
�,`
w
DRA44ING NO. 3- 42941
ICI
A World of Real Estate Knowledge
April 7, 2008
Ms. Laura Chavez
City of Fort Worth
Engineering Department
1000 Throckmorton Street
Fort Worth, Texas 76102
Dear Ms. Chavez:
08-35483
Enclosed please find one (1) fully executed Agreement for your file. A copy of the
executed Agreements must be available upon request at the job site(s) allowing
authorization to do the work. Please contact the Roadmaster at telephone number
(817) 740-7274, at least five days in advance of entry and BEFORE YOU DIG, CALL 1-
800-533=2891. If you need additional information please contact me at (817) 230-2627.
Sr. Contract Specialist
Enclosure
cc: Marlon Gaunt, BNSF, 4028 Deen Road, Fort Worth, Texas 76106
3017 Lou Menlo Drive, Suite 100
Fort Worth, Texas 76131-2800
(817)230-2600 Fax(817)306-8265
www.staubach.com
The Staubach Company
provides global coverage through
DTZ Staubach Tie Leung.
Page 1 of 1
City of Fort Worth, Texas
• • • � �
DATE: Tuesday, March 04, 2008
LOG NAME: 30RXR7.15 REFERENCE NO.: L-14485
SUBJECT:
Authorize Execution of a Pipeline Crossing License Agreement with Burlington Northern and Santa
Fe Railway Company for Installation of a 16" Pipeline Located at Line Segment 0485, Milepost 0.30
and Opposite Mile Post 7.15 (DOE 5840 No. 08-35483)
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to execute a Pipeline Crossing License
Agreement with Burlington Northern and Santa Fe Railway Company fora 25-year term. The developer will
incur all costs associated with obtaining the License Agreement.
DISCUSSION:
The pipeline license agreement is necessary to support the installation and maintenance of a 16" Pipeline
encased in a 27" steel casing for the purpose of supporting the transmission of water to the development of
the Burlington Northern Unit Train Terminal located at Great Southwest Parkway. The pipeline will be
located in Fort Worth Texas, Line segment 0485, at Mile Post 0.30 and Opposite Mile Post 7.15. Burlington
Northern Railroad has accepted our Certificate of Self -Insurance.
The property is located in COUNCIL DISTRICT 2, Mapsco J, M.
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that this transaction has no effect on City funds.
TO FundlAccount(Centers
Submitted for City Manager's Office b�
Originating Department Head:
Additional Information Contact:
FROM Fund/Account/Centers
Fernando Costa (Acting) (8476)
A. Douglas Rademaker (6157)
Laura Chavez (2311)
http://apps.cfwnet.org/council�acket/Reports/mc�rint.asp 4/22/2008