HomeMy WebLinkAboutContract 49609-LA1 CITY SECRETARY,
CONTRACT NO. ng#16-56654
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LICENSE
THIS LICENSE ("License"), is made to be effective September 21, 2017, (the "Effective Date") by and between
BNSF RAILWAY COMPANY, a Delaware corporation ("Licensor") and CITY OF FORT WORTH ("Licensee").
In consideration of the mutual covenants contained herein, the parties agree to the following:
GENERAL
1. Grant of License. Licensor hereby grants Licensee a non-exclusive license, subject to all rights, interests, and
estates of third parties, including,without limitation, any leases, use rights, easements, liens or other encumbrances,
and upon the terms and conditions set forth below, to construct and maintain a sidewalk (the "Sidewalk") in strict
accordance with the drawings and specifications approved by Licensor as part of Licensee's application process
(the "Drawings and Specifications"), across or along Licensor's rail corridor at or near Fort Worth, County of
Tarrant, State of Texas, Line Segment 7500, Mile Post 346.412 as shown on the attached Drawing No. 68631,
dated June 7, 2017, attached hereto as Exhibit "A", and incorporated herein by reference (the "Premises").
2. Term. This License shall commence on the Effective Date and shall continue for so long as the Sidewalk is used
for a public purpose.
3. Existing Improvements. 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.
4. Use of the Premises. Licensee shall use Premises solely for the following:
Demolition of existing sidewalk and two storm water inlets.
Removal and replacement of two (2)crash attenuators protecting the column in the middle.
Prime and paint the walls and middle columns.
Prime and paint the outside steel beams on each side of the bridge. The beams will be painted black,
and the old logos and bridge clearance elevations will be painted white.
Remove and install new bridge clearance warning signs. Y.
Install new curb and gutter, sidewalk, and two (2)storm inlets.
Remove and replace existing pavement markings. OFFICIAL RECORD
Install temporary traffic control devices as needed during construction. CITY SECRETARY
On-going Pedestrian access for the public.
FT.WORTH,TX
Licensee shall not use the Premises for any other purpose.
5. Alterations. Except as set forth in this License, 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.
COMPENSATION
6. License Fee. Licensee shall pay Licensor, prior to the Effective Date, the sum of Seven Thousand Four Hundred
and No/100 Dollars ($7,400.00)as compensation for the use of the Premises.
7. Costs and Expenses.
7.1 For the purpose of this License, "cost" or "costs" and "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.
7.2 Licensee agrees to reimburse Licensor (pursuant to the terms of Section 8 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 Sidewalk, 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 and other
safety measures provided by Licensor, when deemed necessary by Licensor's representative. Flagging
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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); railway and unemployment insurance; public liability and property damage
insurance; health and welfare benefits; transportation; meals; lodging and supervision. Negotiations for
railway 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.
8. Payment Terms. All invoices are due thirty(30) days after the date of invoice. If Licensee fails 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 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%2%), or(ii)the maximum rate permitted
by law.
LICENSOR'S RESERVED RIGHTS
9. Reserved Rights of Use. Licensor excepts and reserves the right,to be exercised by Licensor and any other parties
who may obtain written permission or authority from Licensor:
9.1 to maintain, use, operate, repair, replace, modify and relocate any utility, power, or communication
pipe/lines/cables and appurtenances (other than the Sidewalk) and other facilities or structures of like
character upon, over, under or across the Premises existing as of the Effective Date;
9.2 to construct, maintain, renew, use, operate, change, modify and relocate any tracks or additional facilities,
structures and related appurtenances upon, over, under or across the Premises; or
9.3 to use the Premises in any manner as Licensor in its sole discretion deems appropriate, provided Licensor
uses all commercially reasonable efforts to avoid material interference with the use of the Premises by
Licensee for the purpose specified in Section 4 above.
10. Right to Require Relocation. If at any time during the term of this License, Licensor desires the use of its rail
corridor in such a manner as would, in Licensor's reasonable opinion, be interfered with by the Sidewalk, Licensee
shall, at its sole expense, within thirty (30) days after receiving written notice from Licensor to such effect, make
such changes in the Sidewalk 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 Sidewalk or the
construction of a new Sidewalk to replace the Sidewalk. Notwithstanding the foregoing Licensee agrees to make
all emergency changes and minor adjustments, as determined by Licensor in its sole discretion, to the Sidewalk
promptly upon Licensor's request.
LICENSEE'S OPERATIONS
11. Construction and Maintenance.
11.1 Licensee shall notify Licensor's Roadmaster, at 100 East McCart, Krum, TX, telephone (940) 482-8433 or
michael.henderson2CcDbnsf.com, at least ten (10) business days prior to commencement of the activities
describe in Section 4 and prior to entering the Premises for any subsequent maintenance of the Sidewalk.
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.
11.2 Licensee's on-site supervisors shall retain/maintain a fully executed copy of this License at all times while
on the Premises
11.3 While on the Premises, Licensee shall use only public roadways to cross from one side of Licensor's tracks
to the other.
11.4 Licensee shall be responsible for its contractor's actions.
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11.5 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 endanger or interfere 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.
11.6 Licensee shall, at its sole cost and expense construct and maintain the Sidewalk in such a manner and of
such material that the Sidewalk will not at any time endanger or interfere 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. The construction of the Sidewalk shall
be completed within one (1) year of the Effective Date, and any subsequent maintenance shall be
completed within one (1) year of initiation. Within fifteen (15) days after completion of the Sidewalk or the
performance of 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 24 hereof.
11.7 Licensor may direct one or more of its field engineers to observe or inspect the construction and/or
maintenance of the Sidewalk at any time for compliance with the Drawings and Specifications and Legal
Requirements (defined below). If ordered at any time to halt construction or maintenance of the Sidewalk
by Licensor's personnel due to non-compliance with the Drawings and Specifications 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
Sidewalk, it being solely Licensee's responsibility to ensure that the Sidewalk 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 of, 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 11, Licensor may, at its option and at Licensee's sole expense, 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 8. Licensor's
failure to perform any obligations of Licensee shall not alter the liability allocation hereunder.
12. Boring and Excavation.
12.1 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 Sidewalk by contacting Licensor's Telecommunications Helpdesk at
least thirty(30)business days prior to installation of the Sidewalk. 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 Sidewalk 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.
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12.2 For all bores greater than twenty-six(26) inch diameter and at a depth less than ten (10)feet below bottom
of rail, a soil investigation must 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 Licensor's sole discretion a remedial plan to deal with the granular material. Once
Licensor has approved any such remedial plan in writing, Licensee shall, at Licensee's sole cost and
expense, carry out the approved plan in accordance with all terms thereof and hereof.
12.3 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:
12.3.1 filled in to surrounding ground level with compacted bentonite grout; or
12.3.2 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.
LIABILITY AND INSURANCE
13. Liability and Indemnification.
13.1 For purposes of this License: (a) "Indemnitees" means Licensor and Licensor's affiliated companies,
partners, successors, assigns, legal representatives, officers, directors, shareholders, employees, and
agents; (b) "Liabilities" means all claims, liabilities, fines, penalties, costs, damages, losses, liens, causes
of action, suits, demands, judgments, and expenses (including, without limitation, court costs, reasonable
attorneys' fees, costs of investigation, removal and remediation, and governmental oversight costs)
environmental or otherwise; and (c) "Licensee Parties" means Licensee or Licensee's officers, agents,
invitees, licensees, employees, or contractors, or any party directly or indirectly employed by any of them,
or any party they control or exercise control over.
13.2 TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL, AND SHALL CAUSE ITS
CONTRACTOR TO, RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS INDEMNITEES FOR,
FROM, AND AGAINST ANY AND ALL LIABILITIES OF ANY NATURE, KIND, OR DESCRIPTION
DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM,OR RELATED TO(IN WHOLE OR
IN PART):
13.2.1 THIS LICENSE, INCLUDING,WITHOUT LIMITATION, ITS ENVIRONMENTAL PROVISIONS,
13.2.2 ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS LICENSE,
13.2.3 LICENSEE'S OCCUPATION AND USE OF THE PREMISES,
13.2.4 THE ENVIRONMENTAL CONDITION AND STATUS OF THE PREMISES CAUSED BY OR
CONTRIBUTED TO BY LICENSEE, OR
13.2.5 ANY ACT OR OMISSION OF ANY LICENSEE PARTY.
13.3 TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE NOW AND FOREVER WAIVES ANY
AND ALL CLAIMS THAT BY VIRTUE OF ENTERING INTO THIS LICENSE, LICENSOR IS A
GENERATOR, OWNER, OPERATOR, ARRANGER, OR TRANSPORTER FOR THE PURPOSES OF
THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT, AS
AMENDED ("CERCLA")OR OTHER ENVIRONMENTAL LAWS (DEFINED BELOW). LICENSEE WILL,
TO THE FULLEST EXTENT PERMITTED BY LAW, INDEMNIFY, DEFEND, AND HOLD THE
INDEMNITEES HARMLESS FROM ANY AND ALL SUCH CLAIMS. NOTHING IN THIS LICENSE IS
MEANT BY EITHER PARTY TO CONSTITUTE A WAIVER OF ANY INDEMNITEE'S COMMON CARRIER
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DEFENSES AND THIS LICENSE SHOULD NOT BE SO CONSTRUED. IF ANY AGENCY OR COURT
CONSTRUES THIS LICENSE TO BE A WAIVER OF ANY INDEMNITEE'S COMMON CARRIER
DEFENSES, LICENSEE AGREES TO THE FULLEST EXTENT PERMITTED BY LAW, TO INDEMNIFY,
HOLD HARMLESS, AND DEFEND INDEMNITEES FOR ANY LIABILITIES RELATED TO THAT
CONSTRUCTION OF THIS LICENSE. IN NO EVENT AS BETWEEN LICENSOR AND LICENSEE AS
TO USE OF THE PREMISES AS CONTEMPLATED BY THIS LICENSE SHALL LICENSOR BE
RESPONSIBLE TO LICENSEE FOR THE ENVIRONMENTAL CONDITION OF THE PREMISES.
13.4 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 SHALL,AND SHALL
CAUSE ITS CONTRACTOR 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 LIMITED TO, ASSERTIONS OF
EMPLOYMENT BY AN INDEMNITEE RELATED TO THE FOLLOWING OR ANY PROCEEDINGS
THEREUNDER: THE FEDERAL EMPLOYERS' LIABILITY ACT, 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.
13.5 THE FOREGOING OBLIGATIONS OF LICENSEE SHALL NOT APPLY TO THE EXTENT LIABILITIES
ARE PROXIMATELY CAUSED BY (1) THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF
ANY INDEMNITEE OR(2)THE SOLE NEGLIGENCE OF AN INDEMNITEE.
13.6 Intentionally Deleted.
13.7 NOTHING CONTAINED HEREIN SHALL EVER BE CONSTRUED SO AS TO REQUIRE LICENSEE TO
CREATE A SINKING FUND OR TO ASSESS, LEVY AND COLLECT ANY TAX TO FUND ITS
OBLIGATIONS UNDER THIS SECTION.
14. Personal Property Risk of Loss. 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.
15. Insurance. Licensor acknowledges that the City of Fort Worth is basically a self-funded entity, with the exception
of Railroad Protective Liability Insurance. 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. Licensee
shall require its contractor to procure and maintain during the life of this License the following insurance coverage:
15.1 Commercial General Liability Insurance. This insurance shall contain broad form contractual liability with a
combined single limit of a minimum of $2,000,000 each occurrence and an aggregate limit of at least
$4,000,000 but in no event less than the amount otherwise carried by Licensee. Coverage must be
purchased on a post 2004 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 or language, 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
Brokerage, Inc.
■ Separation of insureds.
■ The policy shall be primary and non-contributing with respect to any insurance carried by Licensor.
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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 policy holder
and shall not apply to Licensor's employees.
No other endorsements limiting coverage may be included on the policy.
15.2. 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
This policy shall also contain the following, endorsements, which shall be indicated on the certificate of
insurance:
■ Waiver of subrogation in favor of and acceptable to Licensor.
■ Additional insured endorsement in favor of and acceptable to Licensor.
■ Separation of insureds.
■ The policy shall be primary and non-contributing with respect to any insurance carried by Licensor.
15.3. Workers Compensation and Employers Liability Insurance. This insurance shall include coverage for, but
not limited to:
■ Licensee's statutory liability under the workers'compensation laws of the state(s) in which the services
are to be performed. If optional under state laws, 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.
15.4 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 "". THE
CONSTRUCTION OF THE SIDEWALK SHALL BE COMPLETED WITHIN ONE (1) YEAR OF THE
EFFECTIVE DATE. If further maintenance of the Sidewalk"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 12 03 and include the following:
■ Endorsed to include the Pollution Exclusion Amendment
■ 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.
■ Definition of"Physical Damage to Property" shall be endorsed to read: "means direct and accidental
loss of or damage to all property owned by any named insured and all property in any named insured's
care, custody and control arising out of the acts or omissions of the contractor named on the
Declarations."
In lieu of providing a Railroad Protective Liability Policy for a period of one (1) year from the Effective Date,
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 is $1,388.00.
❑ I elect to participate in Licensor's Blanket Policy;
I elect not to participate in Licensor's Blanket Policy.
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15.5 Other Requirements.
15.5.1 Where allowable by law, all policies (applying to coverage listed above) shall contain no exclusion
for punitive damages.
15.5.2 Licensee agrees to waive its right of recovery against Licensor for all claims and suits against
Licensor. In addition, Licensee's insurers, through the terms of the policy or 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.
15.5.3 With the exception of Railroad Protective Liability Insurance, Licensee is allowed to self-insure.
Any 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 self-insured retention or other financial responsibility for claims.
15.5.4 Prior to entering the Premises, Licensee shall furnish to Licensor an acceptable certificate(s) of
insurance including an original signature of the authorized representative evidencing the required
coverage, endorsements, and amendments. Licensee shall notify Licensor in writing at least thirty
(30) days prior to any cancellation, non-renewal, substitution, or material alteration. 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.
15.5.5 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.
15.5.6 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.
15.5.7 Licensee represents that this License has been thoroughly reviewed by Licensee's insurance
agent(s)/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.
15.5.8 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.
15.5.9 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.
15.5.10 Failure to provide evidence as required by this Section 15 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.
15.5.11 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.
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15.5.12 These insurance provisions are intended to be a separate and distinct obligation on the part of the
Licensee. Therefore, these provisions shall be enforceable and Licensee shall be bound thereby
regardless of whether or not indemnity provisions are determined to be enforceable.
15.5.13 For purposes of this Section 15, Licensor shall mean"Burlington Northern Santa Fe, LLC", "BNSF
Railway Company" and the subsidiaries, successors, assigns and affiliates of each.
COMPLIANCE WITH LAWS REGULATIONS AND ENVIRONMENTAL MATTERS
16. Compliance with Laws, Rules, and Regulations.
16.1 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 use of the Premises as described in Section 4.
16.2 Prior to entering the Premises, Licensee shall and shall cause its contractor(s) 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 orientation program at the
website "www.BNSFcontractor.com" (the "Safety Orientation") within one (1) 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. The Safety Orientation shall be renewed annually or be renewed within one
year prior to entering upon the Premises. Licensee must renew the Safety Orientation annually.
16.3 Licensee shall obtain on or before the date it or its contractor enters the Premises, any and all additional
rights-of way, easements, licenses and other agreements relating to the grant of rights and interests in
and/or access to the Premises (collectively, the "Rights") and such other rights, licenses, permits,
authorizations, and approvals (including without limitation, any necessary local, state, federal or tribal
authorizations and environmental permits) that are necessary in order to permit Licensee to perform the
activities described in Section 4 and otherwise to perform its obligations hereunder in accordance with the
terms and conditions hereof.
16.4 Licensee shall either require that the initial stated term of each such Rights be for a period that does not
expire, in accordance with its ordinary terms, prior to the last day of the term of this License or, if the initial
stated term of any such Right expires in accordance with its ordinary terms on a date earlier than the last
day of the term of this License, Licensee shall, at its cost, exercise any renewal rights thereunder, or
otherwise acquire such extensions, additions and/or replacements as may be necessary, in order to cause
the stated term thereof to be continued until a date that is not earlier than the last day of the term of this
License.
16.5 Upon the expiration or termination of any Right that is necessary in order for Licensee to own, operate or
use the Premises in accordance with the terms and conditions of this License, this License thereby shall
automatically expire upon such expiration or termination of the Right.
17. Environmental.
17.1 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, and 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.
17.2 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 pedestrian improvements 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 17.2.
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17.3 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.
17.4 If Licensor has notice from Licensee or otherwise of a release or violation of Environmental Laws arising in
any way with respect to the Sidewalk 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.
17.5 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 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.
DISCLAIMER OF WARRANTIES
18. No Warranties.
18.1 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.
18.2 LICENSOR MAKES NO WARRANTY, REPRESENTATION OR CONDITION OF ANY KIND, EXPRESS
OR IMPLIED, CONCERNING (A) THE SCOPE OF THE LICENSE OR OTHER RIGHTS GRANTED
HEREUNDER TO LICENSEE OR (B) WHETHER OR NOT LICENSEE'S
CONSTRUCTION, MAINTENANCE, OWNERSHIP, USE OR OPERATION OF THE SIDEWALK WILL
VIOLATE OR INFRINGE UPON THE RIGHTS, INTERESTS AND ESTATES OF THIRD PARTIES,
INCLUDING,WITHOUT LIMITATION,ANY LEASES, USE RIGHTS, EASEMENTS AND LIENS OF ANY
THIRD PARTY.
19. Disclaimer of Warranty for Quiet Enjoyment. 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.
20. Eviction at Risk of Licensee. In case of the eviction of Licensee by anyone owning, claiming title to, or claiming
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-rata part of any recurring charge
paid in advance, or(ii) for any damage Licensee sustains in connection with the eviction.
LIENS AND TAXES
21. Liens and Charges. 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 21 or any other Section of this
License.
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22. Taxes. 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 Sidewalk 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 TERMINATION AND SURRENDER
23. Default and Termination. 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 15, the following events are also deemed to be
events of default pursuant to which Licensor has the right to terminate as set forth below:
23.1 If default shall be made in any of Licensee's covenants, agreements, or obligations contained in this License
and Licensee fails to cure said default within thirty (30) days after written notice is provided to Licensee by
Licensor, or in case of any assignment or transfer of this License in violation of Section 26 below, Licensor
may, at its option, terminate this License by serving five (5) days' notice in writing upon Licensee.
Notwithstanding the foregoing, Licensor shall have the right to terminate this License immediately if
Licensee fails to provide evidence of insurance as required in Section 15.
23.2 Should Licensee not comply fully with the obligations of Section 17 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.
23.3 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 23 shall be in addition to, and
not in limitation of, any other remedies that Licensor may have at law or in equity.
23.4 Intentionally deleted.
24. Surrender of the Premises.
24.1 On or before expiration or termination of this License for any reason, Licensee shall, at its sole cost and
expense:
24.1.1 if so directed by Licensor in writing, remove the Improvements, and all appurtenances thereto;
24.1.2 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;
24.1.3 remedy any unsafe conditions on the Premises created or aggravated by Licensee; and
24.1.4 leave the Premises in substantially the condition which existed as of the Effective Date.
24.2 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 24.1 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.
24.3 If Licensee fails to complete the Restoration Obligations within thirty (30) days after the date of such
termination of its tenancy, then Licensor may, at its election, either: (i) remove the Sidewalk and the other
Improvements or otherwise restore the Premises, and in such event Licensee shall, within thirty (30) days
after receipt of bill therefor, reimburse Licensor for cost incurred, (ii) upon written notice to Licensee, take
Form 423;Rev.20150801
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and hold the Sidewalk and the other Improvements and personal property as its sole property, without
payment or obligation to Licensee therefor, or(iii)specifically enforce Licensee's obligation to restore and/or
pursue any remedy at law or in equity against Licensee for failure to so restore. Further, if Licensor has
consented to the Sidewalk and the other Improvements remaining on the Premises following termination,
Licensee shall, upon request by Licensor, provide a bill of sale in a form acceptable to Licensor conveying
the Sidewalk and the other Improvements to Licensor.
MISCELLANEOUS
25. Successors and Assigns. 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.
26. Assignment.
26.1 Licensee may not sell, assign, transfer, or hypothecate this License or any right, obligation, or interest
herein (either voluntarily or by operation of law, merger, or otherwise) without the prior written consent of
Licensor, which consent may not be unreasonably withheld or delayed by Licensor. Any attempted
assignment by Licensee in violation of this Section 26 shall be a breach of this License and, in addition,
shall be voidable by Licensor in its sole and absolute discretion.
26.2 For purposes of this Section 26, 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(i) 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. Notwithstanding the foregoing, any
reorganization, recapitalization, merger or consolidation following which the equity interest holders of
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 shall not be deemed an assignment. THIS LICENSE SHALL NOT RUN WITH THE LAND
WITHOUT THE EXPRESS WRITTEN CONSENT OF LICENSOR, SUCH CONSENT TO BE IN
LICENSOR'S SOLE DISCRETION.
26.3 Notwithstanding the provisions of Section 26.1 above or anything contained in this License to the contrary,
if Licensee sells, assigns, transfers, or hypothecates this License or any interest herein in contravention of
the provisions of this License (a "Purported Assignment") to another party (a "Purported Transferee"),
the Purported Transferee's enjoyment of the rights and privileges granted under this License shall be
deemed to be the Purported Transferee's agreement to be bound by all of the terms and provisions of this
License, including but not limited to the obligation to comply with the provisions of Section 15 above
concerning insurance requirements. In addition to and not in limitation of the foregoing, Licensee, for itself,
its successors and assigns, shall to the fullest extent permitted by law, indemnify, defend and hold harmless
Licensor for all 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) a Purported Assignment.
26.4 The provisions of this Section 26 shall survive the expiration or earlier termination of this License.
27. Notices. 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(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.
Form 423;Rev.20150801
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If to Licensor: Jones Lang LaSalle Brokerage, Inc.
4200 Buckingham Road, Suite 100
Fort Worth, TX 76155
Attn: Permits/Licenses
with a copy to: BNSF Railway Company
2301 Lou Menk Drive GOB 3W
Fort Worth, TX 76131
Attn: Senior Manager Real Estate
If to Licensee: City of Fort Worth
200 Texas Street
FortWorth, Texas 76102
28. Survival. 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 pedestrian improvements and the other Improvements are
removed and the Premises are restored to its condition as of the Effective Date.
29. Recordation. It is understood and agreed that this License shall not be placed or allowed to be placed on public
record recorded in the public real property records of Tarrant County, Texas. The parties further understand that
Texas law limits the ability of the Licensee to shield from public disclosure any information given to the
Licensee. Accordingly, the parties agree to work together to avoid disclosures of this License or other information
which would result in economic loss or damage to Licensor because of mandatory disclosure requirements to third
persons. The Licensee shall give Licensor reasonable notice of public records requests for this License or other
Licensor documents.
30. Applicable Law. 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.
31. Severability. 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.
32. Integration. 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.
33. Joint and Several Liability. If 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. Waiver. 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. Interpretation.
35.1 This License shall be interpreted in a neutral manner, and not more strongly for or against any party based
upon the source of the draftsmanship; both parties 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. Article titles,
headings to sections and paragraphs and the table of contents (if any) are inserted for convenience of
reference only and are not intended to be a part or to affect the meaning or interpretation hereof. The
exhibit or exhibits referred to herein shall be construed with and as an integral part of this License to the
same extent as if they were set forth verbatim herein.
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35.2 As used herein, "include", "includes" and "including" are deemed to be followed by "without limitation"
whether or not they are in fact followed by such words or words of like import; "writing", "written" and
comparable terms refer to printing, typing, lithography and other means of reproducing words in a visible
form; references to any person are also to that person's successors and permitted assigns; "hereof',
"herein", "hereunder" and comparable terms refer to the entirety hereof and not to any particular article,
section, or other subdivision hereof or attachment hereto; references to any gender include references to
the masculine or feminine as the context requires; references to the plural include the singular and vice
versa; and references to this License or other documents are as amended, modified or supplemented from
time to time.
36. Counterparts. 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 signature for all purposes.
37. Licensor's Representative. Jones Lang LaSalle Brokerage, Inc. is acting as representative for BNSF Railway
Company.
END OF PAGE- SIGNATURE PAGE FOLLOWS
Form 423;Rev.20150801
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Tracking#16-56654
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 Brokerage, Inc.
4200 Buckingham Road, Suite 110
Fort Worth, TX 76155
By:
Mark Ude
Title: AVP Corporate Real Estate Development
Date:
LICENSEE:
CITY OF FORT WORTH
200 Texas Street, Rm 256A
Fort Worth, Texas 76102
By:
Title: 5� %%yc -����P+�
Date: zn
ATTE �O ,...... T
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By: U `�
Ma(y Oys
City Secreta(PI
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ACAS
APPROVED O FOR ND LEG TY:
By:
Jessica Sang ng OFFICIAL RECORD
Assistant Cit torney II
CITY SECRETARY
Form 1295 Certification No. N/A FTS WORTHS TX
M&C: o: /A
CON RA C MPLha
ER:
By s• nin , a n e person responsible for the monitoring and administration of this contract,
includi su i d reporting requirements.
Na e.Title: 1 ) vr0 u�)u►.� nS Jim
Form 423;Rev.20150801
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COORDINATE SYSTEM: TX NC TRACKING NO. 16-56654
uo
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EXHIBIT "A"
Lo
ATTACHED TO CONTRACT BETWEEN
BNSF RAILWAY COMPANY
AND _N_ Q
CITY OF FORT WORTH
SCALE:1 IN = 100 FT
RED RIVER DIV. SURVEY:
FT WORTH SUBDIV. L.S. 7500' �y BAUGH. M
DATE: 6/7/2017 lP
NOTE:BF-1064 CANCELLED BY BF-9307, —{
BNSF 3447-047 SALE OF CERTAIN Q
TELECOMMUNICATIONS EASEMENTS TO { (�
CATELLUS FIBER OPTICS,LLC,
DATED 12-31-1998. Tb
NOTE:ALL RANSUBJCTTO FIBER OPTIC lP�,
EASEMENT UNDER CONTRACT BF 7080
TO LEVEL 3,DATED 6/15/1998 FROM m
FORT WORTH TO STRATFORD,TX. r
O
70' t,
MP 346.4121 C
-97.326583 32.757537'
m
o
nil
LEGEND:
CA PREMISES
[ RIGHT OF WAY LINE
— TRACK
DESCRIPTION:
A PARCEL(S)OF LAND CONTAINING A TOTAL OF 6,998 SQ FT.
(0.16 A.C.)MORE OR LESS SHOWN HATCHED.TO BE USED
FOR PEDESTRIAN IMPROVEMENTS AND
DEMOLITION OF EXISTING SIDEWALK AND TWO STORM WATER INLETS
/REMOVAL AND REPLACEMENT OF TWO(2)CRASH ATTENUATORS PROTECTING THE COLUMN IN THE MIDDLE
PRIME AND PAINT THE WALLS AND MIDDLE COLUMNS
PRIME AND PAINT THE OUTSIDE STEEL BEAMS ON EACH SIDE OF THE BRIDGE.THE BEAMS WILL BE PAINTED BLACK,AND THE
OLD LOGOS AND BRIDGE CLEARANCE ELEVATIONS WILL BE PAINTED WHITE.
REMOVE AND INSTALL NEW BRIDGE CLEARANCE WARNING SIGNS
INSTALL NEW CURB AND GUTTER,SIDEWALK,AND TWO(2)STORM INLETS
'REMOVE AND REPLACE EXISTING PAVEMENT MARKINGS
INSTALL TEMPORARY TRAFFIC CONTROL DEVICES AS NEEDED DURING CONSTRUCTION
FORT WORTH
COUNTY OF TARRANT STATE OF TX SNC
REVISION 2 DRAWING NO. 68631