HomeMy WebLinkAboutContract 45235 (2)Tracking No. 13-48040
'PIPELINE LICENSE
SECRETAPY
CONTRACT NO, _ �,
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THIS PIPELINE LICENSE ("License") is made to be effective October 30, 2013 (the "Effective
Date") by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Licensor") and CITY OF
FORT WORTH, a Texas corporation ("Licensee").
NOW THEREFORE, in consideration of the mutual covenants contained herein, the parties
agree to the following:
GENERAL
1. Licensor hereby grants Licensee 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) concrete pipeline, twenty-four (24) inches in
diameter (the "PIPELINE"), across or along Licensor's rail corridor at or near the station of Fort Worth,
County of Tarrant, State of Texas, Line Segment 7500, Mile Post 338.66 as shown on the attached
Drawing No. 1-58287, dated October 15, 2013, 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 PIPELINI
in accordance with the Drawings and Specifications. The PIPELINE shall carry storm 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 -rats part of any recurring
charge paid in advance, or (ii) for any damage Licensee sustains in connection therewith.
5. Any contractors or subcontractors performing work on the PIPELINE or entering the Premises on
behalf of Licensee shall be deemed servants and agents of Licensee for purposes of this License.
TERM
6. This License shall commence on the Effective Date and shall continue for a period of Twenty-five
(25) years, subject to prior termination as hereinafter described, and shall continue thereafter on a
month -to -month basis unless terminated by either party giving thirty (30) days prior written notice.
COMPENSATION
7. (a) Licensee shall pay Licensor, prior to the Effective Date, the sum of Three Thousand and
No/100 Dollars ($3,000.00) 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 -or
Licensor's flaggers and any vehicle rental costs incurred. Licensee shall bear thdifittaiiitAity
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Tracking No. 13-48040
services 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 fad 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 (2-1/2%), or (11) 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; Rev 2-9-12
Tracking No. 13-48040
(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 Licensor's Roadmaster, 600 Gresham, Cleburne,TX. 76031 at
telephone (817) 224-7009 or cell phone (817) 304-3549, 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 Licensor% 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 Section will alter in any way the liability allocation provided by this License. If at any time Licensee
Form 424 Rev 2-9-12
Tracking No. 13-48040
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 dulling or excavating with mechanized equipment.
Licensee may request information from Licensor concerning the existence and approximate location of
Licensor's underground lines, utilities and pipelines at or near the vicinity of the proposed PIPELINE by
notifying 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 notice
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 sail 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
Form 424; Rev 2-9-12
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Tracking No. 13-48040
must be properly disposed of by Licensee in accordance with applicable Legal
Requirements
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,
SUITS, DEMANDS, JUDGMENTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT
COSTS, ATTORNEYS' FEES AND COSTS OF INVESTIGATION, REMOVAL AND REMEDIATION
AND GOVERNMENTAL OVERSIGHT COSTS) ENVIRONMENTAL OR OTHERWISE (COLLECTIVELY
"LIABILITIES") OF ANY NATURE, KIND OR DESCRIPTION OF ANY PERSON OR ENTITY
DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE
OR IN PART):
(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 PART BY LICENSEE, OR
(v) ANY ACT OR OMISSION OF LICENSEE OR LICENSEE'S OFFICERS, AGENTS,
INVITEES, EMPLOYEES, OR CONTRACTORS, OR ANYONE DIRECTLY OR
INDIRECTLY EMPLOYED BY ANY OF THEM, OR ANYONE THEY CONTROL OR
EXERCISE CONTROL. OVER ("LICENSEE PARTIES"),
EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO, IN WHOLE OR IN PART, ANY
NEGLIGENCE OF ANY INDEMNITEE. THE ONLY LIABILITIES WITH RESPECT TO WHICH
LICENSEE S OBLIGATION TO INDEMNIFY THE INDEMNITEES DOES NOT APPLY ARE
LIABILITIES TO THE EXTENT PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF AN INDEMNITEE
THE INDEMNIFICATION AND RELEASE REQUIRED ABOVE SHALL NOT APPLY IN THE EVENT
THE DISCHARGE, RELEASE OR ESCAPE OF HAZARDOUS SUBSTANCES OR CONTAMINANTS,
OR ASBESTOS IS PROXIMATELY AND WHOLLY CAUSED BY LICENSOR'S SOLE NEGLIGENCE.
(b) FURTHER, TO THE FULLEST EXTENT PERMITTED BY LAW, NOTWITHSTANDING
THE LIMITATION IN SECTION 17(a), LICENSEE SHALL AND SHALL CAUSE ITS CONTRACTOR TO
NOW AND FOREVER WAIVE ANY AND ALL CLAIMS, REGARDLESS WHETHER BASED ON
STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, THAT LICENSOR IS AN "OWNER",
"OPERATOR', "ARRANGER' , OR "TRANSPORTER" WITH RESPECT TO THE PIPELINE FOR THE
PURPOSES OF THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND
LIABILITY ACT, AS AMENDED ("CERCLA") OR OTHER ENVIRONMENTAL LAWS. LICENSEE
Form 424; Rev 2-9-12
Tracking No. 13-48040
WILL INDEMNIFY, DEFEND AND HOLD THE INDEMNITEES HARMLESS FROM ANY AND ALL
SUCH CLAIMS REGARDLESS OF THE NEGLIGENCE OF THE INDEMNITEES. TO THE FULLEST
EXTENT PERMITTED BY LAW, LICENSEE FURTHER AGREES THAT THE USE OF THE PREMISES
AS CONTEMPLATED BY THIS LICENSE SHALL NOT IN ANY WAY SUBJECT LICENSOR TO
CLAIMS THAT LICENSOR IS OTHER THAN A COMMON CARRIER FOR PURPOSES OF
ENVIRONMENTAL LAWS AND EXPRESSLY AGREES TO INDEMNIFY DEFEND, AND HOLD THE
INDEMNITEES HARMLESS FOR ANY AND ALL SUCH CLAIMS. IN NO EVENT SHALL LICENSOR
BE RESPONSIBLE FOR THE ENVIRONMENTAL CONDITION OF THE PREMISES.
(c) 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 NEGLIGENCE, INTENTIONAL ACTS, OR STRICT LIABILITY OF ANY
INDEMNITEE RELATED TO SUCH CAUSES OF ACTION.
(d) Upon written notice from Licensor, Licensee agrees to assume the defense of any lawsuit
or other proceeding brought against any Indemnitee by any entity, relating to any matter covered by this
License for which Licensee has an obligation to assume liability for and/or save and hold harmless any
lndemnitee Licensee shall pay all costs incident to such defense, including, but not limited to, attorneys'
fees, investigators' fees, litigation and appeal expenses, settlement payments, and amounts paid in
satisfaction of judgments.
PERSONAL PROPERTY WAIVER
18. ALL PERSONAL PROPERTY, INCLUDING, BUT NOT LIMITED TO, FIXTURES, EQUIPMENT,
OR RELATED MATERIALS UPON THE PREMISES WILL BE AT THE RISK OF LICENSEE ONLY,
AND NO INDEMNITEE WILL BE LIABLE FOR ANY DAMAGE THERETO OR
THEFT THEREOF, WHETHER OR NOT DUE IN WHOLE OR IN PART TO THE NEGLIGENCE OF
ANY INDEMNITEE
INSURANCE
19. Licensor acknowledges that the City of Fort Worth is basically 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.
(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:
Form 424; Rev 2-9-12
■
■
■
Bodily Injury and Property Damage
Personal Injury and Advertising Injury
Fire legal liability
Products and completed operations
Tracking No. 13-48040
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
Brokerage, 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 of and acceptable to Licensor.
• Separation of insureds.
• The policy shall be primary and non-contributing with respect to any insurance carried by
Licensor.
(c) Workers' Compensation and Employers' Liability Insurance. This insurance shall include
coverage for, but not limited to:
• Licensee s statutory liability under the workers' compensation Legal Requirements of the state(s)
in which the work is to be performed. If optional under state Legal Requirements, the insurance
must cover all employees anyway.
■ Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 by disease
policy limit, $500 000 by disease each employee.
This policy shall also contain the following endorsements or language, which shall be indicated on the
certificate of insurance:
■ Waiver of subrogation in favor of and acceptable to Licensor.
(d) Railroad Protective Liability Insurance. This insurance shall name only Licensor as the Insured
with coverage of at least $5,000,000 per occurrence and $10,000,000 in the aggregate. The coverage
obtained under this policy shall only be effective during the initial installation and/or construction of the
PIPELINE THE CONSTRUCTION OF THE PIPELINE SHALL BE COMPLETED WITHIN ONE (1)
YEAR OF THE EFFECTIVE DATE. If further maintenance of the PIPELINE is needed at a later date, an
additional Railroad Protective Liability Insurance Policy shall be required. The policy shall be issued on
a standard ISO form CG 00 35 10 93 and include the following:
■ Endorsed to include the Pollution Exclusion Amendment (ISO form CG 28 31 10 93).
■ Endorsed to include the Limited Seepage and Pollution Endorsement.
Form 424; Rev 2 9 12
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Tracking No. 13-48040
Endorsed to include Evacuation Expense Coverage Endorsement.
El 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.
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
$1150.00.
Other Requirements:
elect to participate in Licensor's Blanket Policy;
I elect not to participate in Licensor's Blanket Policy.
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 loss of Licensee's owned or leased property, or property
under Licensee's care, custody, or control.
With the exception of Railroad Protective Liability Insurance, Licensee is allowed to self insure.
Any deductible, self insured retention or other financial responsibility for claims shall be covered directly
by Licensee in lieu of insurance. Any and all Licensor liabilities that would otherwise, in accordance with
the provisions of this License, be covered by Licensee's insurance will be covered as if Licensee elected
not to include a deductible, self -insured retention, or other financial responsibility for claims.
Prior to entering the Premises, Licensee shall furnish to Licensor an acceptable 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
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.
Form 424; Rev 2-9-12
Tracking No. 13-48040
Not more frequently than once every five years, Licensor may reasonably modify the required
insurance coverage to reflect then -current risk management practices in the railroad industry and
underwriting practices in the insurance industry.
If any portion of the operation is to be subcontracted by Licensee, Licensee shall require that the
subcontractor shall provide and maintain insurance coverages as set forth herein, naming Licensor as
an additional insured, and shall require that the subcontractor shall release, 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 LLC",
"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.
Form 424; Rev 2-9-12
Tracking No. 13-48040
(e) Licensee shall promptly report to Licensor in writing any conditions or activities upon the
Premises known to Licensee which create a risk of harm to persons, property or the environment and
shall take whatever action is necessary to prevent injury to persons, property, or the environment arising
out of such conditions or activities; provided, however, that Licensee's reporting to Licensor shall not
relieve 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.
N O 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,
N OW 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
P URPOSE.
QUIET ENJOYMENT
23. LICENSOR DOES NOT WARRANT ITS TITLE TO THE PREMISES NOR UNDERTAKE TO
DEFEND LICENSEE IN THE PEACEABLE POSSESSION OR USE THEREOF. NO COVENANT OF
QUIET ENJOYMENT IS MADE.
LIENS AND CHARGES
24. Licensee shall promptly pay and discharge any and all liens arising out of any construction,
alterations or repairs done, suffered or permitted to be done by Licensee on Premises. Licensor is
hereby authorized to post any notices or take any other action upon or with respect to Premises that is
o r 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
u nder this Section 24 or any other Section of this License. Licensee shall pay when due any taxes,
assessments or other charges (collectively, "Taxes") levied or assessed by any governmental or quasi -
governmental body upon the PIPELINE or any other improvements constructed or installed on the
Premises by or for Licensee (collectively, the 'Improvements") or any Taxes levied or assessed against
Licensor or the Premises that are attributable to the Improvements.
DEFAULT AND REMEDIES; OTHER TERMINATION RIGHTS
25. In addition to and not in limitation of Licensor's right to terminate for failure to provide evidence of
insurance as required pursuant to the terms of Section 19 the following events are also deemed to be
events of default pursuant to which Licensor has the right to terminate as set forth below:
(a) If default shall be made in any of Licensee's covenants or agreements contained in this
License or in case of any assignment or transfer of this License in violation of Section 27 below,
Licensor shall give Licensee ten (10) days written notice of such default and shall give Licensee sixty
Form 424; Rev 2-9-12
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Tracking No. 13-48040
(60) days to cure or such additional period as agreed to by Licensor. If Licensee has commenced to
cure such default but is unable to complete such cure due to circumstances beyond the Licensee's
reasonable control, Licensor shall extend Licensee's time to cure an additional thirty (30) days or such
additional time as agreed to by Licensor. Licensor may, at its option, terminate this License by serving
written notice upon Licensee ten (10) days after the Licensee fails to cure such default during the
specified cure period. 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
Form 424; Rev 2-9-12
- 11 -
Tracking No. 13-48040
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.
ASSIGNMENT
27. Licensee may not sell, assign, transfer, or hypothecate this License or any interest herein (either
voluntarily or by operation of law) without the prior written consent of Licensor, which consent may be
withheld by Licensor for any reason. Any attempted assignment by Licensee in violation of this
Section 27 shall be absolutely void. For purposes of this Section 27, the word "assign" shall include
without limitation (a) any sale of the equity interests of Licensee following which the equity interest
holders of Licensee immediately prior to such sale own, directly or indirectly less than 50% of the
combined voting power of the outstanding voting equity interests of Licensee, (b) any sale of all or
substantially all of the assets of (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 (1) placed in the United States mail certified, return receipt requested, or (i1) 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 Tess than thirty (30) days' advance written notice of such change
in address
If to Licensor
with a copy to:
If to Licensee:
with a copy to:
Jones Lang LaSalle Brokerage, Inc.
4300 Amon Carter Blvd. Suite 100
Fort Worth, TX 76155
Attn: Licenses/Permits
BNSF Railway Company
2500 Lou Menk Dr. — AOB3
Fort Worth, TX 76131
Attn: Senior Manager Real Estate
City of Fort Worth
1000 Throckmorton
Fort Worth, Texas 76102
City Attorney
City of Fort Worth
1000 Throckmorton Street
Fort Worth, Texas 76102
-12-
Form 424; Rev 2-9-12
Tracking No. 13 48040
RECORDATION
29. It is understood and agreed that this License shall not be placed or allowed to be placed on
public record.
APPLICABLE LAW
30. All questions concerning the interpretation or application of provisions of this License shall be
decided according to the substantive laws of the State of Texas, without regard to conflicts of law
provisions, and venue for any lawsuit that may arise shall be in Tarrant County,
SEVERABILITY
31. To the maximum extent possible, each provision of this License shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision of this License shall be
prohibited by, or held to be invalid under applicable law, such provision shall be ineffective solely to the
extent of such prohibition or invalidity, and this shall not invalidate the remainder of such provision or any
other provision of this License.
INTEGRATION
32. This License is the full and complete agreement between Licensor and Licensee with respect to
all matters relating to Licensee's use of the Premises, and supersedes any and all other agreements
between the parties hereto relating to Licensee's use of the Premises as described herein However,
nothing herein is intended to terminate any surviving obligation of Licensee or Licensee's obligation to
defend and hold Licensor harmless in any prior written agreement between the parties.
MISCELLANEOUS
33. In the event that Licensee consists of two or more parties, all the covenants and agreements of
Licensee herein contained shall be the joint and several covenants and agreements of such parties.
34. The waiver by Licensor of the breach of any provision herein by Licensee shall in no way impair
the right of Licensor to enforce that provision for any subsequent breach thereof.
35. No provision of this License shall be construed in favor of, or against, any particular party by
reason of any presumption with respect to the drafting of this License; both parties, being represented
by counsel and having fully participated in the negotiation of this instrument hereby agree that this
License shall not be subject to the principle that a contract would be construed against the party which
drafted the same.
36. This License may be executed in multiple counterparts, each of which shall, for all purposes, be
deemed an original but which together shall constitute one and the same instrument, and the signature
pages from any counterpart may be appended to any other counterpart to assemble fully executed
documents, and counterparts of this License may also be exchanged via email or electronic facsimile
machines and any email or electronic facsimile of any party's signature shall be deemed to be an original
signature for all purposes.
Form 424; Rev 2-9-12
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Tracking No. 13-48040
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.
38. Jones Lang LaSalle Brokerage, Inc. is acting as representative for BNSF Railway Company.
IN WITNESS WHEREOF, this License has been duly executed by the parties hereto as of the
date below each party's signature; to be effective, however, as of the Effective Date.
LICENSOR:
BNSF RAILWAY COMPANY, a Delaware corporation
By: Jones Lang LaSalle Global Brokerage, Inc.
4300 Amon Carter Blvd., Suite 100
Fort Worth, TX 7615
By:
Name:
Title:
Date:
LICENSEE:
gar
CITY OF FORT WORTH, a Texas corporation
1000 Throckmorton
Fort Worth, Texas 76102
By:
Name:
Title:
Date:
ffenando 6oth.
aid G4 flanagrr
Sib/is
APPROVED ,AS TO FORM AND LEGALITY:
T
ATTORNEY
4 C4 Secretaky
_14_
OFFICIAL RECORD
CITY SECRETARY
Mier, TX
,9-12--
TRACKING ING NO0
13=40040
EX1111 "An
ATTACHED TO CONTRACT BETWEEN
R IL Y C V.? Alni
AND
CITY OF ORT WOR I H
SCALEg I I N o l 1 OO FT 0
TEXAS DIVO
FT WORTH SUBD I V 0 L 0 S 0 1E00
DATE 10/15/2013
' 2
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11
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MP 338.66
ES 17581 45
f
PROPERTY qiNE
SECTION:
TOWNSHIP
RANGE:
MERIDIAN
0�
1
DESCRIPTION OF PIPELINE
PIPELINE SHOWN BOLD
CARRIER
PIPE
SIZE: 24"
CONTENTS: STORM WATER
PIPE MATERIAL: CONCRETE
SPEC IF ICAT I ON/GRADE 0 4 4 000 P
t°IAL L THICKNESS: 4 0 _ -
COATING:
CASING
PIPE
\c'
4
PROPERTY LINE
i'I . s t. —
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i �1
-
--
_ - ' _- r—•
4
•
•
r
1 '
r
;'
•
r
Ne=
CARRIER CASING
PIPE PIPE
LENGTH ON RAT: 15 s
WORK I NG PRESSURE: GRAVITY
BURY: BASE/RAIL TO TOP OF PIPE
BURY: NATURAL GROUND
BURY: ROADWAY DITCHES
CATHODIC PROTECTION
VENTS: NUMBER a SIZE g HEIGHT OF VENT ABOVE GROUND
NOTEg PIPE TO BE JACKED OR DRY BORED ONLY
NEAR FORT WORTH
COUNTY OF TARRANT
REVISION 2
STATF OF T)C
c
JLC
DRAWING N00 l c=58287
1
JONES LANG
LASALLE,
October 30, 2013
Mr. Cannon Henry
City of Fort Worth
1000 Throckmorton Street
Story Water Utility Department
Fort Worth, Texas 76102
Dear Mr. Henry:
Jones Lang LaSalle Americas, Inc.
4300 Amon Carter, Suite 100
Fort Worth, Texas 76155
tel +1 817-230-2600, fax +1 817 306-8265
Tracking no. 1348040
Enclosed please find one (1) fully executed Pipeline License between BNSF and the City of
Fort Worth. A copy of the executed Agreement(s) must be available upon request at
the job site allowing authorization to do the work. Please contact the applicable
Roadmaster at (817) 224-7009 or cell phone (817) 304-3549, at least ten (10) days in
advance of any entry and BEFORE YOU DIG, CALL 1-800-533-2891.
If you have any questions or need additional information please contact me at (817) 230-
2627.
Sincere
Annette , a kins
Sr. Contract Specialist
Enclosure
cc: Larry Wilson, BNSF — Iarrv.wilsoncbnsf.com
RECFIVER NM!
7313