HomeMy WebLinkAboutContract 36563 CITY CRETAR'Y�
CONTRACT NQ,
AUD
DRAIN.DOC 920301
Form Approved,AVP-Law
Folder No. 02451-70
DRAINAGE FACILITY & WATERWAY
AGREEMENT
Mile Post: 246.6, Ft Worth Subdivision
Location: Fort Worth,Tarrant County,Texas
THIS AGREEMENT ("Agreement") is made and entered into as of June 08, 2007, ("Effective
Date") by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation,
("Licensor") and CITY OF FORT WORTH,TEXAS, a Texas municipal corporation to be addressed at
1000 Throckmorton, Fort Worth,Texas ("Licensee").
RECITALS:
In order to improve drainage conditions the Licensee desires to construct a drainage facility
relocation and improvement project in the vicinity of Licensor's right of way at Mile Post 246.6 on the Ft
Worth Subdivision, located at or near Fort Worth,Tarrant County, Texas (hereinafter the "Premises").
The drainage facilities to be constructed by the Licensee, at Licensee's expense, on the Premises
are hereinafter collectively referred to as the "Drainage Facility". The Drainage Facility and Premises are
shown on the print dated June 12, 2007, marked Exhibit"A",hereto attached.
The Railroad is agreeable to the Licensee constructing, maintaining and using the Drainage
Facility upon the terms and conditions set forth herein.
AGREEMENT:
NOW,THEREFORb,,-1TIS AGREED by and between the parties hereto as follows:
Article 1. LICENSOR GRANTS RIGHT.
In 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 use the Drainage Facility.
Article 2. CONSTRUCTION WORK TO BE PERFORMED BY LICENSEE.
The Licensee, at its sole expense, shall construct the Drainage Facility and perform the work
described in the Recitals above and/or described in Exhibit"A".
Article 3. 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 attac ed
b
02451-70.drn Articles of Agreement
01-30-08 PO4:50 IN
Article 4. DEFERRED CONSTRUCTION.
The Licensor and Licensee acknowledge that conditions inherent in the Drainage Facility may
cause the complete stabilization of Licensor's trackage supported by new cuts or fills to be deferred
beyond the construction period, and that Licensor's operation over the roadbed during the seasoning
period will impose extraordinary maintenance costs in the event of caving, sliding, slipping, sinking or
settling, including damage to rip-rapping or protective work in connection therewith, as well as settlement
and consolidation of tracks and ballast, until the seasoning period is complete. Therefore, the Licensee
will pay to the Licensor, as a part of the consideration for this Agreement, all that part of the cost and
expense of extraordinary maintenance(hereinafter referred to as "Deferred Construction")associated with
the Drainage Facility which can be attributed to failure of subgrade, settlement, and consolidation of
subballast, or roadbed, or any combination thereof, which are incurred during the period commencing
immediately following completion of the work on the Drainage Facility by the Licensee or its contractor
and ending five years thereafter. The Deferred Construction costs aforesaid shall include reimbursement
of the extra cost, in excess of normal maintenance costs, of maintaining embankments and that portion of
said tracks above subgrade in accordance with acceptable maintenance standards,and will include cost of
maintaining proper alignment,proper surface and use of ballast and other necessary materials.
Article 5. ONE-TIME PAYMENT.
Upon execution and delivery of this Agreement,the Licensee shall pay to the Licensor a one-time
License Fee of Forty One Thousand Nine Hundred Twenty Three DOLLARS($41,923.00).
Article 6. TERM: TERMINATION.
(A) This License shall commence on the date of execution by both parties and shall continue
for a period of Twenty-Five (25) years, subject to prior termination as hereafter described, and shall
continue thereafter on a month to month basis unless terminated by either party giving thirty days prior
written notice.
B. Notice of default and notice of termination may be served personally upon the Licensee or by
mailing to the last known address of the Licensee. Termination of this Agreement for any reason shall
not affect any of the rights or obligations of the parties hereto which may have accrued, or liabilities,
accrued or otherwise,which may have arisen prior thereto.
Article 7. IF WORK IS TO BE PERFORMED BY CONTRACTOR.
If a contractor is to do any of the work performed on the Drainage Facility or Premises(including
initial construction and subsequent relocation or substantial maintenance and repair work), then the
Licensee shall require its contractor to execute the Railroad's 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.
14 �
02451-70.dm Articles of Agreement June 21,2007
Article 8. INSURANCE.
(SEE CITY'S EXHIBIT"C"TO BE ATTACHED)
All insurance correspondence shall be directed to:
Tom Judkins
Folder No. 2439-19
Union Pacific Railroad Company
Real Estate Department
1400 Douglas Street STOP 1690
Omaha,NE 68179-1690
Article 9. SPECIAL PROVISION—RAILROAD FLAGMAN; WHEN REQUIRED;
FLAGGING CHARGES.
A. No work of any kind shall be performed, and no person, equipment, machinery, tool(s),
material(s), vehicle(s), or thing(s) shall be located, operated, placed, or stored within 25 feet of any of
Railroad's track(s) at any time, for any reason, unless and until a Railroad flagman is provided to watch
for trains, pursuant to the terms of the attached Exhibit `B'. All expenses connected with the furnishing
of said flagman shall be at the sole cost and expense of the Licensee, who shall promptly pay to Railroad
all charges connected therewith,within 30 days after presentation of a bill therefore.
B. One and one-half times the current hourly rate is paid for overtime, Saturdays and
Sundays; two and one-half times current hourly rate for holidays.
C. Wage rates are subject to change, at any time, by law or by agreement between the
Railroad and its employees, and may be retroactive as a result of negotiations or a ruling of an authorized
Governmental Agency. Additional charges on labor are also subject to change. If the wage rate or
additional charges are changed, the Licensee shall pay on the basis of the new rates and charges.
D. Reimbursement to the Railroad will be required covering the full eight hour day during
which any flagman is furnished,unless he can be assigned to other Railroad work during a portion of such
day, in which event reimbursement will not be required for the portion of the day during which the
flagman is engaged in other work. Reimbursement will also be required for any day not actually worked
by said flagman following his assignment to work on the project for which the Railroad is required to pay
the flagman and which could not reasonably be avoided by the Railroad Company by assignment of such
flagman to other work, even though the Licensee may not be working during such time.
E. Arrangements for flagging are to be made at least Ten (10) days in advance of
commencing work,with the Railroad Manager of Track Maintenance.
Article 10. SPECIAL PROVISIONS.
Abandoned pipe must be removed or ends plugged and filled with grout or a low strength
flowable concrete material.
The manholes must be designed for HS-20 loading and must be installed safely, as to not create a
tripping or stumbling hazard.
02451-70.dm Articles of Agreement June 21,2007
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: 4gt-U&al'/��
CONTRACTS
4-s54- bi yea�61
CITY OF ORT WORTH, TEXAS
By:
Title:
APP Off E® AS TO
FO IVI A LEGALITY:
f
A SI TANT'0IT ATMRNEY
Attested By;
Li
Marty Hendr i.
I'ity Seer,
Contract uuntho ization
21 D
Date
D
02451-70.dm Articles of Agreement June 21,2007
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Drainage Exhibit B 920301Form Approved AVP-Law
EXHIBIT B
TO DRAINAGE FACILITY&WATERWAY AGREEMENT
TERMS AND CONDITIONS
Section 1. LIMITATION AND SUBORDINATION OF RIGHTS GRANTED.
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 property including the right and power of the
Licensor to construct, maintain, repair, renew, use, operate, change, modify or relocate railroad tracks,
signal, communication, fiber optics, or other 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 times by the Licensor
without liability to the Licensee 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. It shall be Licensee's sole
obligation to obtain such additional permission, license and grants necessary on account of any such
existing rights.
Section 2. CONSTRUCTION,MAINTENANCE AND OPERATION.
a) The Licensee shall submit the design of the Drainage Facility to the Licensor for Licensor's prior
approval. All work performed on property of the Licensor in connection with the construction,
maintenance, repair, renewal, modification or reconstruction of the Drainage Facility shall be done to the
satisfaction of the Licensor and in substantial conformance to the specifications, notes and cross sections
shown on Exhibit A.
b) The Licensee, at its sole expense, shall operate, maintain and use the Drainage Facility in a good
and safe condition and shall keep the Drainage Facility free and clear of debris, sediment or obstructive
matter which may or could interfere with or impede the proper functioning of the Drainage Facility.
c) The Licensee shall not cross any trackage of Licensor with any vehicles except at existing, open
public crossings. The Drainage Facility shall be installed by an approved method of construction, or if by
the jacking and boring method, during jacking operations, the Licensee agrees to fill voids created
between the embankment and pipe by pressure grouting. The Licensee shall provide adequate barrier
protection around the entire excavation area.
d) During the performance of excavating, constructing and maintaining the Drainage Facility, or any
part thereof, the Licensee shall not excavate near the toe of the track embankment of the trackbed and will
protect the track-bed in the design, construction and maintenance of the Drainage Facility. In the event of
any settlement of the Licensor's embankment caused by excavation of the Drainage Facility, the Licensee,
at its sole expense, shall restore Licensor's embankment to its proper grade and dimensions.
e) Prior to the commencement of any work in connection with the construction,maintenance,repair,
renewal, modification, relocation, reconstruction or removal of the Drainage Facility where it passes
underneath the roadbed and track or tracks of the Licensor, the Licensee shall submit to the Licensor
plans setting out the method and manner of handling the work, including the shoring and cribbing, if any,
required to protect the Licensor's operations, and shall not proceed with the work until such plans have
been approved by the Vice President-Engineering Services of the Licensor and then the work shall be
Drainage.Exb
Drainage Exhibit B 920301Form Approved AVP-Law
done to the satisfaction of the Vice President-Engineering 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 Drainage Facility, and, in the event the Licensor provides
such support, the Licensee shall pay to the Licensor, within fifteen (15) days after bills shall have been
rendered therefore, all expense incurred by the Licensor in connection therewith, which expense shall
include all assignable costs.
Section 3. NOTICE OF COMMENCEMENT 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 Drainage Facility.
All such work shall be prosecuted diligently to completion.
Section 4. LICENSEE TO BEAR ENTIRE EXPENSE.
The Licensee shall bear the entire cost and expense incurred in connection with the construction,
maintenance, repair and renewal and any and all modification, revision, relocation, removal or
reconstruction of the Drainage Facility, including any and all expense which may be incurred by the
Licensor in connection therewith for inspection, flagging, or otherwise.
Section 5. REINFORCEMENT, RELOCATION OR REMOVAL OF DRAINAGE
FACILITY.
(a) 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 Pipeline, Licensee
shall at it's sole expense, within one hundred eighty (180) days after receiving written notice from
Licensor to such effect, make such changes in the Pipeline, as in the sole discretion of the 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 Pipeline(s).
b) All the terms, conditions and stipulations herein expressed with reference to the Drainage Facility
on property of the Licensor in the location hereinbefore described shall, so far as the Drainage Facility
remains on the property, apply to the Drainage Facility as modified, changed or relocated within the
contemplation of this section.
Section 6. NO INTERFERENCE WITH LICENSOR'S OPERATION.
The Drainage Facility 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 FIBER OPTIC CABLE SYSTEMS.
a) Fiber optic cable systems may be buried on the Licensor's property. Protection of the fiber optic
cable systems is of extreme importance since any break could disrupt service to users resulting in business
Draina e.Exb
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Drainage Exhibit B 920301Form Approved AVP-Law
interruption and loss of revenue and profits. Licensee shall telephone the Licensor at 1-800-336-9193 (a
24-hour number) to determine if fiber optic cable is buried anywhere on the Licensor's premises to be
used by the Licensee. If it is, Licensee will telephone the telecommunications company(ies) involved,
arrange for a cable locator, make arrangements for relocation or other protection of the fiber optic cable,
and will commence no work on the right of way until all such protection or relocation has been
accomplished.
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 contractor, agents and/or employees, that causes or contributes to (1) any damage to or
destruction of any telecommunications system on Licensor's property, and (2) any injury to or death of
any person employed by or on behalf of any telecommunications company, and/or its contractor, agents
and/or employees, on Licensor's property. Licensee shall not have or seek recourse against Licensor for
any claim or cause of action 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 8. CLAIMS AND LIENS FOR LABOR AND MATERIAL; TAXES.
a) The Licensee shall fully pay for all materials joined or affixed to and labor performed upon
property of the Licensor in connection with the construction, maintenance, repair, renewal, modification
or reconstruction of the Drainage Facility, and shall not permit or suffer any mechanic's or materialman's
lien of any kind or nature to be enforced against the property for any work done or materials furnished
thereon at the instance or request or on behalf of the Licensee. The Licensee shall indemnify and hold
harmless the Licensor against and from any and all liens, claims, demands, costs and expenses of
whatsoever nature in any way 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 Drainage Facility, 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 not be increased because of the location, construction or maintenance of the Drainage
Facility or any improvement, appliance or fixture connected therewith placed upon such property, or on
account of the Licensee's 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 Licensee's property upon property of the Licensor as compared with the entire value of such
property
Section 9. RESTORATION OF LICENSOR'S PROPERTY.
a) In the event the Licensor authorizes the Licensee to take down any fence of the Licensor or in any
manner move or disturb any of the other property of the Licensor in connection with the construction,
maintenance,repair,renewal,modification,reconstruction,relocation or removal of the Drainage Facility,
then in that event the Licensee shall, as soon as possible and at Licensee's 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, damages, claims, demands,
costs and expenses of whatsoever nature, including court costs and attorneys'fees, which may result from
injury to or death of persons whomsoever, or damage to or loss or destruction of property whatsoever,
Drainage.Exb
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Drainage Exhibit B 920301Form Approved AVP-Law
when such injury, death, damage, loss or destruction grows out of or arises from the taking down of any
fence or the moving or disturbance of any other property of the Licensor.
b)The Railroad right-of-way must be returned to its original condition or better.
Section 10. INDEMNITY.
a) 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 attorneys' 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 and adjacent property and crops, damage to the roadbed,
tracks, equipment, or other property of the Licensor, or property in its care or custody).
b) To the extent it may lawfully do so, the Licensee agrees to assume the risk of loss or damage to
the Drainage Facility and to indemnify and hold harmless the Licensor from any Loss which is due to or
arises from(i)the installation, construction, maintenance,repair,reconstruction,removal, use or existence
of the Drainage Facility and appurtenances thereto, or any part thereof, including any break in the
Drainage Facility wall or structure or any leakage, flow of water or flooding from the Drainage Facility,
or (ii)Licensee's failure to comply with or perform any of the terms and conditions set forth in this
Agreement, except to the extent that the Loss is caused by the sole and direct negligence of the Licensor;
provided, however, that the foregoing indemnification provisions shall not apply to any claims, damages,
costs and expenses that have been fully compensated for through the insurance required of Licensee in
Exhibit B-1, or required of Licensee's contractor under the separate Contractor's Right of Entry
Agreement.
c) Any liability of either party hereunder to one of its employees under any Workers' Compensation
Act or the Federal Employers'Liability Act shall not be questioned or in any way challenged by the other
party,nor shall any jury or court findings,resulting from any employee's suit against either party pursuant
to any such Act(s), be relied upon or used by either party in any attempt to assert common law liability
against the other.
Section 11. WAIVER 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.
Section 12. AGREEMENT NOT TO BE ASSIGNED.
The Licensee 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 transfer or assignment or attempted
transfer or assignment of this Agreement or any 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 Licensor, shall terminate this Agreement.
Drainage.Exb lJl+�S�� s"`:5VV'1D1
Drainage Exhibit B 920301Form Approved AVP-Law
Section 13. SUCCESSORS AND ASSIGNS.
Subject to the provisions of Section 12 hereof, this Agreement shall be binding upon and inure to
the benefit of the parties hereto,their heirs, executors, administrators, successors and assigns.
c
Drainage.Exb
Exhibit B
PL/WL/DRAINAGE INS.
Form Approved,AVP-Law Updated 03/01/2003
Form Approved,AVP-Law
Updated 08/2006
EXHIBIT C *City to Provide Statement of Self Insurance)
9
EXHIBIT"C"
The City of Fort Worth is a self-funded entity subject to statutory tort laws. The City
does not maintain a commercial policy of general liability insurance and/or auto liability
insurance. City owned property is covered under the City of Fort Worth Fire and
Extended coverage program by a commercial insurance policy. Statutory workers'
compensation insurance, coverage is self-funded to the $500,000.00 retention limit per
incident over which commercial coverage responds with no upper cap; and, employer's
liability coverage is maintained at the $1,000,000.00 policy limit.
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Page 1 of 1
City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 11/27/2007
DATE: Tuesday, November 27, 2007
LOG NAME: 30KELLIS MAY REFERENCE NO.: **C-22533
SUBJECT:
Authorization to Enter into a 25 year Drainage Facility and Waterway Agreement with Union Pacific
Railroad for Installation of a Storm Drain Located at Milepost 246.6 (DOE# 4705_02451-70)
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to enter a 25 year Drainage Facility and
Waterway Agreement with Union Pacific Railroad Company for a one-time cost of$41,923. The City of Fort
Worth will incur all costs for this agreement.
DISCUSSION:
In 2001 and 2002, storms caused severe flooding to homes, churches and roadways located on or near
Kellis Street and May Street due to an undersized storm drain system. The storm drain improvement is
necessary to prevent flooding to these areas in the future. The Kellis-May Drainage improvement is also
part of the 2004 Capital Improvement Program. The pipeline will be located at milepost 246.6.
The property is located in COUNCIL DISTRICT 9, Mapsco 91J.
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that funds are available in the current capital budget, as appropriated, of the
Street Improvements Fund.
TO Fund/AccountlCenters FROM Fund/AccountlCenters
C200 541100 209280008941 $41,923.00
Submitted for City Manager's Office by: Marc A. Ott (8476)
Originating Department Head: A. Douglas Rademaker (6157)
Additional Information Contact: Lisa Scotford (8364)
http://www.cfwnet.org/council_packet/Reports/mc_print.asp 1/31/2008