HomeMy WebLinkAboutContract 41064Tracking No. 10-41389
PIPELINE LICENSE
CAIN SECRETARY
CONTRACT NCL,711.();)
THIS PIPELINE LICENSE ("License") is made to be effective November 3, 2010 (the "Effective
Date") by and between MU RAILWAY COMPANY, a Delaware corporation ("Licensor") and CITY OF
FORT WORTH, a Texas corporation ("Licensee").
NOW THERFFORE, in consideration of the mutual covenants contained horoin, the parties agree to
the following:
GEN RAL
1. 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, 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, sixteen (16") inches in diameter
(collectively, the "PIPELINE"), across or along Licensor's rail corridor at or near the station of Saginaw,
County of Tarrant, State of Texas, Line Segment 7500, Mile Post 353.14 as shown on the attached Drawing
No. 1=50054, dated September 16, 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 water, 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-rata 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 bearAhe=cost of flagger services
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OFFICIAL RE
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-1 CITY SECRETARY
fl WORTH, TX
4; DRAFT Rev. 8-19-09
Tracking No. 10-41389
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 invoice. In the event that Licensee
shall fail to pay any monies due to Licensor within thirty (30) days after the invoice date, then Licensee
shall pay interest on such unpaid sum from 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 (2-112%), 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 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 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 or across the
Premises; or
Form 424; DRAFT Rev. 8-19-09
Tracking No. 10-41389
(iii) 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 3 above.
LICENSEE'S OPERATIONS
11. (a) Licensee shall notify Licensors Roadmaster, Michael Watkins, 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 (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 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 Licensors 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
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Tracking No. 10-41389
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 use of Licensor's rail corridor, including, without limitation, the
relocation 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
fines, 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 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:
(I) filled in to surrounding ground level with compacted bentonite grout, or
(ii) 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.
Form 424; DRAFT Rev. 8 19 09
Tracking No. 10-41389
16. Licensee's on -site supervisors shall retain/maintain a fully executed copy of this License at all
times while on the Premises.
LIABILITY
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 LICENSOR'S AFFILIATED COMPANIES PARTNERS, SUCCESSORS, ASSIGNS, LEGAL
REPRESENTATIVES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS
(COLLECTIVELY, "INDEMNITEES") FOR, FROM AND AGAINST ANY AND ALL CLAIMS,
LIABILITIES FINES, PENALTIES, COSTS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION,
S UITS, DEMANDS, JUDGMENTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT
COSTS, ATTORNEYS' FEES AND COSTS OF INVESTIGATION, REMOVAL AND REMEDIATION AND
GOVERNMENTAL OVERSIGHT COSTS) ENVIRONMENTAL OR OTHERWISE (COLLECTIVELY
'LIABILITIES') OF ANY NATURE, KIND OR DESCRIPTION OF ANY PERSON OR ENTITY DIRECTLY
OR INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE OR IN PART):
(1)
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
N EGLIGENCE 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
N OW AND FOREVER WAIVE ANY AND ALL CLAIMS, REGARDLESS WHETHER BASED ON STRICT
L IABILITY, 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
Tracking No. 10 41389
P ERMITTED 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 LIMITED TO, ASSERTIONS OF EMPLOYMENT BY AN 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
N EGLIGENCE, INTENTIONAL ACTS, OR STRICT LIABILITY OF ANY INDEMNITEE RELATED TO
S UCH 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.
P ERSONAL 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
N O 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 a self -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 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
Form 424; DRAFT Rev. 8-19-09
Tracking No. 10-41389
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 policy holder and shall not apply to Licensor's 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' Lability (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
Tracking No. 10-41389
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, 000.00.
I elect to participate in Licensor's Blanket Policy;
I elect not to participate in Licensor's F3lanket Policy.
•
Other Requirements:
Where allowable by law, all policies (applying to coverage listed above) shall contain no exclusion
for punitive damages and certificates of insurance shall reflect that no exclusion exists.
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 Toss 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 certificate(s) 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
Tracking No. 10-41389
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
the indemnity provisions of this License. Damages recoverable by Licensor shall not be limited by the
amount of the required insurance coverage
For purposes of this Section 19, Licensor shall mean "Burlington Northern Santa Fe Corporation",
"BNSF Railway Company" and the subsidiaries, successors, assigns and affiliates of each.
ENVIRONMENTAL
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
Form 424; DRAFT Rev. 8-19-09
Tracking No. 10-41389
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.
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 AND SHALL NOT INCLUDE ANY IMPLIED DUTIES OR IMPLIED WARRANTIES, NOW
OR IN THE FUTURE. NO REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE BY LICENSOR
OTHER THAN THOSE CONTAINED IN THIS LICENSE. LICENSEE HEREBY WAIVES ANY AND ALL
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PREMISES OR WHICH MAY EXIST
BY OPERATION OF LAW OR IN EQUITY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY, HABITABILITY OR FITNESS FOR A PARTICULAR PURPOSE,
QUIET ENJOYMENT
23. LICENSOR DOES NOT WARRANT ITS TITLE TO THE PREMISES NOR UNDERTAKE TO
DEFEND LICENSEE IN THE PEACEABLE POSSESSION OR LJSE 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 [imitation 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. 10-41389
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
Licensor's ability to enforce any Section of this License. The remedy set forth in this Section 25 shall 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.
SURRENDER
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. 10-41389
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 pnor 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,
except for a 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. 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 (i) placed in the United States mail, certified, return receipt requested, or (it) 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 s 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: City of Fort Worth
1000 Throckmorton
Fort Worth, Texas 76102
with a copy to:
City Attorney
City of Fort Worth
1000 Throckmorton Street
Fort Worth, Texas 76102
Form 424; DRAFT Rev. 8-19-09
- 12 -
Tracking No. 10-41389
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, arty 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
signature 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.
Form 424; DRAFT Rev. 8-19-09
13-
Tracking No, 10-41389
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:
By:
Jones Lang LaSalle Global Services - RR, Inc,
3017 Lou Menk Drive, Suite 100
Fort Worth, TX 76131-2800
Name: Ed Darter
Title: Vice President National Accounts
Date:
LICENSEE:
CITY OF FORT WORTH, a Texas corporation
1000 Throckmorton
Fort Worth, Texas 76102
By:
Name:
Title:
Date:
Aii:ested by
0
0
Marty Hendrix,
tt
it NO RE 4;:) .kr. sly'
see>200--a•-‘Csis_
rnseicto C'csta.
sit'Fw (1a
9.�Za�o
OFFICIAL RECORD
CITY SECRETARY
Ft WORTH, TX
Form 424; DRAFT Rev. 8-19-09
- 14-
TRACKING NO. 10-41389
EXHIBIT "e
ATTACHED TO CONTRACT BETWEEN
BNSF RAILWAY COMPANY
AND
CITY OF FORT WORTH
SCALE: 1 IN. = 100 FT. 4.
TEXAS DIV.
FORT WORTH SUBDIV. L.S. 7500
DATE 09/16/2010 �F alpt��l,l�
It
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-malt
MAIN STREET
PROPERTY LINE
n71 914kR IN[14bn,41,tnlyn� n�gmie,lliwa el,pl'.nenutshniln'lyyu p IUUAUL,Im„n�.'_
...". 1 � _ r"` �`11ral .moo a`" r :.
E ' STING 16" WL �_J
1
TM alb• 20?
�. �w-r w�nxlrl-Wv u v=e r��' -- �'a'-v=1•:r wr-r ' iz+`uguatitavw....1.t"
TO TEMPLE
NOTE
CONNECTING TO EXISTING
16" WATER LINE
SIZE:
CONTENTS:
PIPE MATERIAL:
SPECIFICATION/GRADE
WALL THICKNESS:
COATING:
11b -.._ ._..a. ......._.._... ,y---.' r._ -
ry«jylr... .,... _ ..._
nnwn awn fifth
1
d
' ,.£mgvnm,unV.u...u.EUaulwa
PROPERTY
SOLD
tlo
Mmenro:lu.Yr.... ..1..�.
In.,-4—. .n.4,.,u...,.w...liFi^`
mn.mpouuittilti91B1
y4i1i.eraaumm�e.,,muamunn�nomnmvl., n
I ri tIPAtCJIIBbIai�.a,pllpn¢imn
PcI 6
• N.J.unw..,..M Ma' ' .-L-..-.,___ �,r-a.=.•�:4
0
PROPERTY LINE
CARRIER
PIPE
16"
WATER
DIP
AWWA C151
0.3"
ASPHALTIC
..au. fiIt.1..,.,,.,,.m,,,w..l,Ulwtw.n.
MP 353.14
ES 18645+74
DESCRIPTION OF PIPELINE
PIPELINE SHOWN BOLD
CASING
PIPE
N/A
0
0
CD
I
1Z if
.4".11.11Lukaatralatz Flamm. Ian lama
trn
• h
et
mnasann
iji.......,..,�....,...,... nta'laalr
hi!
IITO GAINESVILLE
CARRIER
PIPE
LENGTH ON R/W: 251
WORKING PRESSURE 75 PSI
BURY: BASE/RAIL TO TOP OF CASING
BURY: NATURAL GROUND
BURY: ROADWAY DITCHES
CATHODIC PROTECTION
VENTS: NUMBER N/A SIZE — HEIGHT OF VENT ABOVE GROUND
NOTE: CASING TO BE JACKED OR DRY BORED ONLY
AT SAGINAW
COUNTY OF TARRANT
STATE OF TX
CASING
PIPE
N/A
7.2'
4.51
N/A
YES
JwD
0
0
rn
0
In
w
CC
DRAWING NO. 1-50054
JONES LANG
LASALLE.
November 3, 2010
Ms. Theresa Khammash
City of Fort Worth
Engineering Department
900 Monroe Street Suite 404
Fort Worth, Texas 76102
Dear Ms. Khammash:
Jones Lang LaSalle Americas, Inc.
3017 Lou Menk Drive, Suite 100
Fort Worth, Texas 76131-2800
tel +1 817-230-2600, fax +1 817 306-8265
Tracking no. 10-41389
Enclosed please find one (1) fully executed Pipeline Agreement for the City of Fort Worth. A
copy of the executed Agreement must be available upon request at the job site
allowing authorization to do the work. Please contact Roadmaster at telephone (940)
482 8433 or cell phone (405) 406-6305, at least ten (10) days in advance of entry for each
location and BEFORE YOU DIG, CALL 1-800-533-2891 If you need additional information
please contact me at (817) 230-2627.
Sin - e �,
►! !!:11.
Annette Je , • ' s
Sr. Contract Specialist
Enclosure
cc: Jason Watkins, BNSF, 100 East McCart, Krum,TX. 73249