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HomeMy WebLinkAboutContract 40284PIPELINE LICENSE Tracking No. 10-40144 CITY SECRETARY CONTRACT NO, THIS PIPELINE LICENSE ("License") is made to be effective May 28, 2010 (the "Effective Date") by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Licensor") and CITY OF FORT WORTH, a Texas corporation ("Licensee"). NOW o the following: THEREFORE, in consideration of the mutual covenants contained herein, the parties agree t GENERAL 1. Licensor hereby grants Licensee a non-exclusive license, subject to all rights, interests, and estates of--third-partied-including, without -limitation, any -leases, use -rights, asements, liens, or other encumbrances, and upon the terms and conditions set forth below, to construct 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) pipeline, eight (8) inches in diameter inside a twenty inch (20") steel casing (collectively, the "PIPELINE"), across or along Licensor's rail corridor at or near the station of Fort Worth, County of Tarrant, State of Texas, Line Segment 7500, Mile Post 349.60 as shown on the attached Drawing No. 1-48467, dated February 4, 2010, attached hereto as Exhibit "A" and incorporated herein by reference (the "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, repair, maintenance or replacement of such improvements. 3. Licensee shall use the Premises solely for construction, maintenance, and use of the PIPELINE in accordance with the Drawings and Specifications. The PIPELINE shall carry wastewater, and Licensee shall not use the PIPELINE to carry any other material or use the Premises for any other purpose. 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 (i) to refund Licensee any compensation paid hereunder, except for the pro -rats part of any recurring charge paid in advance, or (ii) for any damage Licensee sustains in connection therewith. 5. Any contractors or subcontractors performing work on the PIPELINE or entering the Premises on behalf of Licensee shall be deemed servants and agents of Licensee for purposes of this License. TERM 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 month - to -month basis unless terminated by either party giving thirty (30) days prior written notice. COMPENSATION 7. (a) Licensee shall pay Licensor, prior to the Effective Date, the sum of Two Thousand Five Hundred and No/100 Dollars ($2,500.00) as compensation for the use of the Premises. (b) Licensee agrees to reimburse Licensor (pursuant to the terms of Section 7(c) below) 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 PIPELINE, including but not limited to the furnishing of Licensor's flaggers and any vehicle rental costs incurred. Licensee shall bear the cost of flagger services Form 424; DRAFT Rev. 8-19-09 -1- 06-07-1 0 P03:!r4 I N p: Tracking No. 1040144 and other safety measures provided by Licensor, when deemed necessary by Licensor's representative. Flagging costs shall include, but not be limited to, the following: pay for at least an eight (8) hour basic day with time and one-half or double time for overtime, rest days and holidays (as applicable); vacation allowance; paid holidays (as applicable); Licensor and unemployment insurance; public liability and property damage insurance; health and welfare benefits; transportation; meals; lodging and supervision. Negotiations for Licensor labor or collective bargaining agreements and rate changes authorized by appropriate Federal authorities may increase flagging rates. Flagging rates in effect at the time of performance by the flaggers will be used to calculate the flagging costs pursuant to this Section 7(b). Licensor shall give Licensee at least forty-eight (48) hours notice of its intent to provide flaggers to the extent the same is reasonably practicable. (c) All invoices are due thirty (30) days after the date of invoicein_ the -event --that- Licensee shamfait-pa9 any monies "due to licensor within thirty (30) days after the invoice date, then Licensee to -shall pay interest on such unpaid sum from the due date until paid at an annual rate equal to the lesser of (i) the prime rate last published in The Wall Street Journal in the preceding December plus two and one- half percent (2-1/2%), or (ii) the maximum rate permitted by law. COMPLIANCE WITH LAWS 8. (a) Licensee shall observe and comply with any and all laws, statutes, regulations, ordinances, orders, covenants, restrictions, or decisions of any court of competent jurisdiction ("Legal Requirements") relating to the construction, maintenance, and use of the PIPELINE and the use of the Premises. (b) Prior to entering the Premises, Licensee shall and shall cause its contractors) to comply with all of Licensor's applicable safety rules and regulations. Licensee must ensure that each of its employees, contractors, agents or invitees entering upon the Premises completes the safety training program at the Website "www.contractororientation.com" (the "Safety Orientation") within one year prior to entering upon the Premises. Additionally, Licensee must ensure that each and every employee of Licensee, its contractors, agents and invitees possess a card certifying completion of the Safety Orientation prior to entering upon the Premises. Licensee must renew the Safety Orientation annually. 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: (i) to maintain, use, operate, repair, replace, modify and relocate any utility, power or communication pipe/lines/cables and appurtenances (other than the PIPELINE) and other facilities or structures of like character upon, over, under or across the Premises existing as of the Effective Date; (ii) to construct, maintain, renew, use, operate, change, modify and relocate any tracks or additional facilities, structures and related appurtenances upon, over, under Premises; or or across the to use the Premises in any manner as Licensor in its sole discretion deems appropriate, provided Licensor uses alt commercially reasonable efforts to .avoid material interference with the use Of the Premises by Licensee for the purpose specified in Section 3 above: Form 424; DRAFT Rev. 8-19-09 -2- Tracking No. 10-40144 LICENSEE'S OPERATIONS 11. (a) Licensee shall notify Licensor's Roadmaster, at 100 East McCart, Krum, TX. 76249, telephone (940) 482-8433 or cell phone (405) 406-6305, at least ten (10) business days prior to installation of the PIPELINE and prior to entering the Premises for any subsequent maintenance thereon. In the event of emergency, Licensee shall notify Licensor of Licensee's entry onto the Premises at the telephone number above as soon as practicable and shall promptly thereafter follow up with written notice of such entry. (b) While on the Premises, Licensee shall use only public roadways to cross from one side of Licensor's tracks to the other. 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 (i) the existence or use of present or future tracks, roadbeds or property of Licensor, (ii) the safe operation and activities of Licensor or existing third parties, or (iii) the rights or interests of third parties. 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 and maintain the PIPELINE in such a manner and of such material that it will not at any time be a source of danger to or interference with (1) the existence or use of present or future tracks, roadbeds, or property of Licensor, (ii) the safe operation and activities of Licensor or existing third parties, or (iii) the rights or interests of third parties. The construction of the PIPELINE shall be completed within one (1) year of the Effective Date, and any subsequent maintenance shall be completed within one (1) year of initiation. Upon completion of the construction of the PIPELINE and after performing any subsequent maintenance thereon, Licensee shall, at Licensee's own cost and expense, restore the Premises to substantially their state as of the Effective Date, unless otherwise approved in advance by Licensor in writing. On or before expiration or termination of this License for any reason, Licensee shall, at its sole cost and expense, surrender the Premises to Licensor pursuant to the terms and conditions set forth in Section 26 hereof. (c) Licensor may direct one or more of its field engineers to observe or inspect the construction and/or maintenance of the PIPELINE at any time for compliance with the Drawings and Specifications and Legal Requirements. If ordered at any time to halt construction or maintenance of the PIPELINE 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 PIPELINE, it being solely Licensee's responsibility to ensure that the PIPELINE is constructed and maintained 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 Form 424; DRAFT Rev. 8-19-09 -3- Tracking No. 10-40144 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 12, 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, pursuant to the terms of Section 7(c). Licensor's failure to perform any obligations of Licensee shall not alter the liability allocation hereunder. 13. 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 its sole expense, within ninety (90) days after receiving written notice from Licensor to such effect, make such changes in the PIPELINE as in the sole discretion of Licensor may be necessary to avoid -interference with the proposed asp ofitioerrsor`s call corridor, intruding; withouiimitation, the reiocafton of the PIPELINE, or the construction of a new pipeline to replace the PIPELINE. Notwithstanding the foregoing Licensee agrees to make all emergency changes and minor adjustments, as determined by Licensor in its sole discretion to the PIPELINE promptly upon Licensor's request. 14. (a) Prior to Licensee conducting any boring, excavation, or similar 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, 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. Licensee may request information from Licensor concerning the existence and approximate location of Licensor's underground lines, utilities, and pipelines at or near the vicinity of the proposed PIPELINE by contacting Licensor at telephone number 1-800-362-9624 (option 1, option 2, and then option 4) at least thirty (30) business days prior to installation of the PIPELINE. Upon receiving Licensee's timely request, Licensor will provide Licensee with the information Licensor has in its possession regarding any existing underground lines, utilities, and pipelines at or near the vicinity of the proposed PIPELINE and, if applicable, identify the location of such lines on the Premises pursuant to Licensor's standard procedures. Licensor does not warrant the accuracy or completeness of information relating to subsurface conditions of the Premises and Licensee's operations will be subject at all times to the liability provisions herein. (b) For all bores greater than 26-inch diameter and at a depth less than 10.0 feet below bottom of rail, a soil investigation will need to be performed by 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. 15. Any open hole, boring or well constructed on the Premises by Licensee shall be safely covered and secured at atl 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: (i) filled in to surrounding ground level with compacted bentonite grout; or otherwise secured < excavated materials must be properly Requirements, r retired in accordance with any applicable Legal Requirement. No may remain on Licensor's property for more than ten (10) days, but di sposed of by Licensee in accordance with applicable Legal -4- Form 424; DRAFT Rev. 8-19-09 Tracking No. 1040144 16. Licensee's on -site supervisors shall retain/maintain a fully executed copy of this License at all times while on the Premises. 17. (a) TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL AND SHALL CAUSE ITS CONTRACTOR TO RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS LICENSOR AND LICENSER'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 -COS-TS,-ATTORNEYSLFEE&AND COSTS-OF1 ESTIGATIOM-REMOVAL AND REMEOI-ATIOfl 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 PARTY BY LICENSEE, OR (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 ("LICENSEE PARTIES"), 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 17(a), LICENSEE SHALL AND SHALL CAUSE ITS CONTRACTOR TO NOW AND FOREVER WAIVE ANY AND ALL CLAIMS, REGARDLESS WHETHER BASED ON STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, THAT LICENSOR IS AN "OWNER", "OPERATOR", "ARRANGER", OR "TRANSPORTER" WITH RESPECT TO THE PIPELINE FOR THE PURPOSES OF THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT, AS AMENDED ("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 Form 424; DRAFT Rev. 8-19-09 -5- Tracking No. 1040144 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) IF ANY EMPLOYEE OF ANY LICENSEE PARTY ASSERTS THAT HE OR SHE IS AN EMPLOYEE OF ANY INDEMNITEE, TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE FURTHER AGREES, AND SHALL CAUSE ITS CONTRACTOR TO AGREE TO RELEASE, INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES HARMLESS FROM AND AGAINST ANY LIABILITIES ARISING OUT OF OR RELATED TO (IN WHOLE OR IN PART) ANY SUCH ASSERTION INCLUDING, BUT NOT--LIMtTED-TO _ASSERTIONS- OP EMPLOYMENT- BY- W INDEMNITEE- RELATED -TO -THE - FOLLOWING OR ANY PROCEEDINGS THEREUNDER: THE FEDERAL EMPLOYERS' LIABILITY ACT ("FELA") CLAIMS BASED ON ACTUAL OR ALLEGED VIOLATIONS OF ANY FEDERAL, STATE OR LOCAL LEGAL REQUIREMENTS OR REGULATIONS; THE SAFETY APPLIANCE ACT; THE LOCOMOTIVE INSPECTION ACT; THE OCCUPATIONAL SAFETY AND HEALTH ACT; THE RESOURCE CONSERVATION AND RECOVERY ACT; AND ANY SIMILAR STATE OR FEDERAL STATUTE. LICENSEE'S OBLIGATIONS UNDER THIS SECTION 17(c) ARE REGARDLESS OF ANY NEGLIGENCE, INTENTIONAL ACTS, OR STRICT LIABILITY OF ANY INDEMNITEE RELATED TO SUCH CAUSES OF ACTION. (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 18. 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 19. Licensor acknowledges that the City of Fort Worth is basically aself-funded entity. 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. (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 but in no event less than the amount otherwise carried by Licensee. Coverage must be purchased on a post 1998 ISO 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 occurrence or equivalent and include -6- Form 424; DRAFT Rev. 8-19-09 Tracking No. 1040144 This policy shall also contain the following endorsements, which shall be indicated on the certificate of insurance: ■ 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. ■ Waiver of subrogation in favor of and acceptable to Licensor. ■ Additional insured endorsement in favor of and acceptable to Licensor and Jones Lang LaSalle Global Services - RR, Inc. ■ Separation of insureds. ■ The policy shall be primary and non-contributing with respect to any insurance carried by Licensor. It is agreed that the workers' compensation and employers' liability related exclusions in the Commercial General Liability Insurance policy(s) required herein are intended to apply to employees of --- the-polioy-holder-and--shalt-not-apply-to--Licensors-employees: 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. ■ Waiver of subrogation in favor of and acceptable to Licensor. ■ Additional insured endorsement in favor or and acceptable to Licensor. ■ Separation of insureds. ■ The policy shall be primary and non-contributing with respect to any insurance carried by Licensor. (c) Workers' Compensation and Employers' Liability Insurance. This insurance shall include coverage for, but not limited to: ■ Licensee's statutory liability under the workers' compensation Legal Requirements of the state(s) in which the work is to be performed. If optional under state Legal Requirements, 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. This policy shall also contain the following endorsements or language, which shall be indicated on the certificate of insurance: ■ Waiver of subrogation in favor of and acceptable to Licensor. (d) Railroad Protective Liability Insurance. This insurance shall name only 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 PIPELINE. THE CONSTRUCTION OF THE PIPELINE SHALL BE COMPLETED WITHIN ONE (1) YEAR OF THE EFFECTIVE DATE. If further maintenance of the PIPELINE is needed at a later date, an additional Railroad Protective Liability Insurance Policy shall be required. 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 Licensor prior to performing any work or services under this License. Form 424; DRAFT Rev. 8-19-09 -7- A Tracking No. 1040144 In lieu of providing a Date, Licensee may available to Licensee $1, 000.00. 44; Railroad Protective Liability Policy, for a period of one participate in Licensor's Blanket Railroad Protective or its contractor. The limits of coverage are the sar t elect to participate in Licensor's Blanket Policy; ❑ I elect not to ii partcipate n Licensor's Blanket Policy. Other Requirements: Where allowable by law, all policies for -punitive damages-and-certifioat s-oMsura�r ce shaft reflect That no exclusion"exi`sts: — (1) year from the Effective Liability Insurance Policy ie as above. The cost is (applying to coverage listed above) shall contain no exclusion Licensee agrees to waive its right of recovery against Licensor for all claims and suits against Licensor. In addition, its insurers, through a policy endorsement, must waive their right of subrogation against Licensor for all claims and suits, and the certificate of insurance must reflect the waiver of subrogation endorsement. Licensee further waives its right of recovery, and its insurers must also waive their right of subrogation against Licensor for loss of Licensee's owned or leased property, or property under Licensee's care, custody, or control. With the exception of Railroad Protective Liability Insurance, Licensee is allowed to self insure. Any deductible, self insured retention or other financial responsibility for claims shall be covered directly by Licensee in lieu of insurance. Any and all Licensor liabilities that would otherwise, in accordance with the provisions of this License, be covered by Licensee's insurance will be covered as if Licensee elected not to include a deductible, self -insured retention, or other financial responsibility for claims. Prior to entering the Premises, 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. 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. In the event of a claim or lawsuit involving Licensor arising out of this License, Licensee will make available any required policy covering such claim or lawsuit. 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 state(s) in which the service is to be provided. If coverage is purchased on a "claims made" basis, Licensee hereby agrees to maintain coverage in force for a minimum of three years after expiration or termination of this License. Annually, Licensee agrees to provide evidence of such coverage as required hereunder. Licensee represents 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 License. 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. Form 424; DRAFT Rev. 8-19-09 -8- C CA Tracking No. 1040144 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, 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 19 shall entitle, but not require, Licensor to terminate this License immediately. Acceptance of a certificate that does not comply with this Section shall not operate as a waiver of Licensee's obligations hereunder. 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 indemnit�ovisio sn o tfiis is ne se _Damages recoverable v icensor Qhnll no a limifiarl v th-in amount of the required insurance coverage. For purposes of this Section 19, Licensor shall mean "Burlington Northern Santa Fe Corporation", "BNSF Railway Company" and the subsidiaries, successors, assigns and affiliates of each. if�►►�/G%7`►1� ilk: �\7 20. (a) Licensee shall strictly comply with all federal, state and local environmental Legal Requirements 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 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 PIPELINE on Licensor's property. Licensee agrees periodically to furnish Licensor with proof, satisfactory to Licensor that Licensee is in compliance with the provisions of this Section. (c) Licensee shall give Licensor immediate notice to Licensor's Resource Operations Center at (800) 832-5452 of any known (i) release of hazardous substances on, from, or affecting the Premises, (ii) violation of Environmental Laws, or (iii) 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, from, or affecting 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. (d) In the event that Licensor has notice from Licensee or otherwise of a release or violation of Environmental Laws arising in any way with respect to the PIPELINE 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. (e) Licensee shall promptly report to Licensor in writing any conditions or activities upon the Premises known to Licensee which create a risk of harm to persons, property or the environment and shall take whatever action is necessary to prevent injury to persons, property, or the environment arising out of such conditions or activities, provided, however, that Licensee's reporting to Licensor shall not relieve -9- Form 424; DRAFT Rev. 8-19-09 Tracking No. 1040144 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. ALTERATIONS 21. 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 22. LICENSOR'S DUTIES AND WARRANTIES ARE LIMITED TO THOSE EXPRESSLY STATED IN ____ THIS -LICENSE N13FSHAL-NOfifiNCLUDE-ANY-tMPLIEIrDUTCES Oft 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 23. LICENSOR DOES NOT WARRANT ITS TITLE TO THE PREMISES NOR UNDERTAKE TO DEFEND LICENSEE IN THE PEACEABLE POSSESSION OR USE THEREOF. NO COVENANT OF QUIET ENJOYMENT IS MADE. LIENS AND CHARGES 24. 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 24 or any other Section of this License. Licensee shall pay when due any taxes, assessments or other charges (collectively, "Taxes") levied or assessed by any governmental or quasi -governmental body upon the PIPELINE or any other improvements constructed or installed on the Premises by or for Licensee (collectively, the "Improvements") or any Taxes levied or assessed against Licensor or the Premises that are attributable to the Improvements. DEFAULT AND REMEDIES: OTHER TERMINATION RIGHTS 25. In addition to and not in limitation of Licensor's right to terminate for failure to provide evidence of insurance as required pursuant to the terms of Section 19, the following events are also deemed to be events of default pursuant to which Licensor has the right to terminate as set forth below: (a) If default shall be made in any of Licensee's covenants or agreements contained in this License or in case of any assignment or transfer of this License in violation of Section 27 below, 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 Form 424; DRAFT Rev. 8-19-09 -10- Tracking No. 1040144 Licensee ten (10) days after the Licensee fails to cure such default during the specified cure period. Notwithstanding the foregoing, Licensor shall have the right to terminate this License immediately in the event Licensee fails to provide evidence of insurance as required in Section 19. (b) Should Licensee not comply fully with the obligations of Section 20(b) regarding the handling or transporting of hazardous waste or hazardous material, notwithstanding anything contained in any other provision of this License, Licensor may, at its option, terminate this License by serving five (5) days' notice of termination upon Licensee. (c) 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 J cerrsor's-atsititv to � Section o is License. he remedy se ffirth in is ec oin 2� shai(be in addition to, and not in limitation of, any other remedies that Licensor may have at law or in equity. (d) In addition to and not in limitation of Licensor's rights to terminate this License for failure to provide evidence of insurance or occurrence of defaults as described above, this License may be terminated by Licensor, at any time, by serving thirty (30) days' written notice of termination upon Licensee. (e) This License may be terminated by Licensee upon execution of Licensor's then -current Mutual Termination Letter Agreement. Upon expiration of the time specified in such notice, this License and all rights of Licensee shall absolutely cease. 26. (a) On or before expiration or termination of this License for any reason, Licensee shall, at its sole cost and expense: (i) if so directed by Licensor in writing, remove the Improvements, the PIPELINE and all appurtenances thereto, or, at the sole discretion of Licensor, fill and cap or otherwise appropriately decommission the PIPELINE with a method satisfactory to Licensor, (ii) report and restore any damage to the Premises or Licensor's other property arising from, growing out of, or connected with Licensee's use of the Premises; (iii) remedy any unsafe conditions on the Premises created or aggravated by Licensee; and (iv) leave the Premises in substantially the condition which existed as of the Effective Date of this License, normal wear and tear excepted. (b) Upon any expiration or termination of this License, if Licensee fails to surrender the Premises to Licensor or if Licensee fails to complete its obligations under Section 26(a) above (the "Restoration Obligations"), Licensee shall have a limited license to enter upon the Premises solely to the extent necessary for Licensee to complete the Restoration Obligations, and all liabilities and obligations of Licensee hereunder shall continue in effect until the Premises are surrendered and the Restoration Obligations are completed. Neither termination nor expiration shall release Licensee 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, if later, the date when Licensee surrenders the Premises and all of the Restoration Obligations are completed, Form 424; DRAFT Rev. 8-19-09 -11- Tracking No. 1040144 ASSIGNMENT 27. Licensee may not sell, assign, transfer, or hypothecate this License or any interest herein (either voluntarily or by operation of law) without the prior written consent of Licensor, which consent may be withheld by Licensor for any reason. Any attempted assignment by Licensee in violation of this Section 27 shall be absolutely void. For purposes of this Section 27, the word "assign" shall include without limitation (a) any sale of the equity interests of Licensee following which the equity interest holders of Licensee immediately prior to such sale own, directly or indirectly, less than 50% of the combined voting power of the outstanding voting equity interests of Licensee, (b) any sale of all or substantially all of the assets of (1) Licensee and (ii) to the extent such entities exist, Licensee's parent and subsidiaries, taken as a whole, or (c) any reorganization, recapitalization, merger or consolidation involving Licensee, except for _ , recapitalization, merger or conso illation following w icF►-the equity interest floLders o Licensee immediately prior to such reorganization, recapitalization, merger or consolidation own, directly or indirectly, at least 50% of the combined voting power of the outstanding voting equity interests of Licensee or any successor thereto or the entity resulting from such reorganization, recapitalization, merger or consolidation. THIS LICENSE SHALL NOT RUN WITH THE LAND WITHOUT THE EXPRESS WRITTEN CONSENT OF LICENSOR, SUCH CONSENT TO BE IN LICENSOR'S SOLE DISCRETION. NOTICES 28. Any notice, invoice, or other writing 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 (1) 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: Jones Lang LaSalle Global Services - RR, Inc. 3017 Lou Menk Drive, Suite 100 Fort Worth, TX 76131-2800 Attn: Licenses/Permits with a copy to: BNSF Railway Company 2500 Lou Menk Dr. — AOB3 Fort Worth, TX 76131 Attn* Senior Manager Real Estate If to Licensee: with a copy to: City of Fort Worth 1000 Throckmorton Fort Worth, Texas 76102 City Attorney City of Fort Worth 1000 Throckmorton Street Fort Worth, Texas 76102 -12- Form 424; DRAFT Rev. 8-19-09 Tracking No, 1040144 RECORDATION 29. it is understood and agreed that this License shall not be placed or allowed to be placed on public record. APPLICABLE LAW 30. All questions concerning the interpretation or application of provisions of this License shall be decided according to the substantive laws of the State of Texas, without regard to conflicts of law provisions, and venue for any lawsuit that may arise shall be in Tarrant County, SEVERABILITY 31. 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 32. 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 33. 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. 34. 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. 35. No provision of this License shall be construed in favor of, or against, any particular party by reason of any presumption with respect to the drafting of this License; both parties, being represented by counsel and having fully participated in the negotiation of this instrument, hereby agree that this License shall not be subject to the principle that a contract would be construed against the party which drafted the same. 36. This License may be executed in multiple counterparts, each of which shall, for all purposes, be deemed an original but which together shall constitute one and the same instrument, and the signature pages from any counterpart may be appended to any other counterpart to assemble fully executed documents, and counterparts of this License may also be exchanged via email or electronic facsimile machines and any email or electronic facsimile of any party's signature shall be deemed to be an original i sgnature for all purposes. 37. All provisions contained in this License shall be binding upon, inure to the benefit of, and be enforceable by the respective successors and assigns of Licensor and Licensee to the same extent as if each such successor and assign was named a party to this License. J Form 424; DRAFT Rev. 8-19-09 -13- C] Tracking No. 1040144 38. Jones Lang LaSalle Global Services - RR, Inc. is acting as representative for BNSF Railway Company. IN WITNESS WHEREOF, this License has been duly executed by the parties hereto as of the date below each party's signature; to be effective, however, as of the Effective Date. LICENSOR: BNSF RAILWAY COMPANY, a Delaware corporation By: Jones Lang LaSalle Global Services - RR, Inc. --304-7- Lou-Menk-Dray Suite 49^ Fort Worth, TX 76131-2800 By: Name: Ed Darter Title: Vice President National Accounts Date: cr ' c t if - /y LICENSEE: CITY OF FORT WORTH, a Texas corporation By: Name: Title: Date: 1000 Throckmorton Fort Worth, Texas 76102 ''°���VED AS TO FARM AND LEGALITY: �24; DRAFT Rev. 8-19-09 e � A TRACKING NO. 10-40144 SCALE: 1 IN.= 100 FT. EXHIBIT "A" ATTACHED TO CONTRACT BETWEEN BNSF RAILWAY COMPANY AND CITY OF FORT FT WORTH SUBDIV. L.S. 7500 DATE 02/04/2010 R'"''°~~"BNSF 11Novo "omw� pet —���- BF-9307 BNSF 3447-047 SIZE: CONTENTS: PIPE MAMMAL*. SPECIFICATION/GRADE: WALL THICKNESS: COATING: pc19 WORTH O TX-21 S-05A MP 349.60 +t{.� ES 18456+ 9� 1 i � u DESCRIPTION OF PIPELINE PIPELINE SHOWN BOLD CARRIER CASING PIPE PIPE 0 �r f ® � FIB.OPT: 195018 ZZ t...-- TO CASING PIPE LENGTH ON R/W: 100' 100' WORKING PRESSURE: N/A BURY: BASE/RAIL TO TOP OF CASING BURY: NATURAL GROUND 6.5 BURY: ROADWAY DITCHES N/A CATHODIC PROTECTION r N/A VENTS: NUMBER N/A SIZE N/A HEIGHT OF VENT ABOVE GROUND N/A NOTE: CASING TO BE JACKED OR DRY BORED ONLY AT FORT WORTH COUNTY OF TARRANT STATE OF TX CARRIER PIPE m W DRAWING N0. 1-4B467 MEMORANDUM TO THE RECORD: TO: CONTRACT FILE N0.40284 DATE: June 8, 2010 FROM: Marty Hendrix, City Secretary SUBJECT: CONTRACT ON FILE NOT OFFICIAL RECORD BACKGROUND On June 7, 2010, the City Secretary's Office received four copies of a contract from Theresa Khammash, Transportation and Public Works Department, but she requested the one with original signatures back to file with Tarrant County. She also stated that they would return the original back to our office once they received the document back from Tarrant County. Allison Tidwell, Administrative Records Technician, informed Ms. Khammash that in the future, they would need to provide enough copies so that we could obtain an original on file. AUTHORIZATION TO RELEASE OFFICIAL COPY Per the direction of City Secretary Marty Hendrix, a on of the contract was placed in the contract file and the original was returned to the Transportation and Public Works Department. The T/PW Department has also been informed that if the City Secretary's Office does not receive the original back, the copy in the file will become the original.