HomeMy WebLinkAboutRES 01-052 RESOLUTION NO. 01-052
BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF BEAUMONT:
THAT the City Council hereby approves the License Agreement with the Burlington
Northern and Santa Fe Railway Company for the Concord Road Widening - Phase III
Project. The agreement is substantially in the form as Exhibit "A" attached hereto and
made a part hereof for all purposes
PASSED BY THE CITY COUNCIL of the City of Beaumont this the 20th day of
February, 2001.
- Mayor -
GACGIRESOLUTPAGENDAI AES
Form Approved
by VP-Law 99-20832
LICENSE
THIS LICENSE, made as of the 14th day of February, 2001, subject to the terms and
conditions set forth herein, between THE BURLINGTON NORTHERN AND SANTA FE
RAILWAY COMPANY, its successors and assigns, a Delaware corporation (hereinafter called
"Licensor"), and THE CITY OF BEAUMONT, a Texas municipal corporation, and its contractors
and subcontractors (hereinafter collectively called "Licensee"). Mailing address: 801 Main
Street, Beaumont, TX 77704.
WITNESSETH, That the parties hereto for the considerations hereinafter expressed
covenant and agree as follows:
1. Licensor hereby licenses Licensee, subject to the rights and easements
hereinafter excepted and reserved and upon the terms and conditions hereinafter set
forth, the area of Licensor's property shown on the attached Drawing no. 3-17525, dated
6/4/99, attached hereto, marked Exhibit "A", and made a part hereof, (hereinafter called
"Premises") situated at or near Beaumont, County of Jefferson, State of Texas, Line
Segment 7503, Mile Post 4.37 to 3.99. If any of the Premises is subject to existing
leases or licenses, Licensee shall, prior to entering upon the Premises, obtain the written
consent of any existing Lessee or Licensee.
2. This agreement shall be effective February 15, 2001 and shall continue for ten
(10) years from said date, subject to prior termination as hereinafter described.
3. Any contractors or subcontractors performing work on the Premises of Licensor,
entering the Premises on behalf of Licensee, shall be deemed the agents of Licensee.
4. (a) Licensee shall pay Licensor as compensation for the use of the Premises
the sum of Thirteen Thousand Nine Hundred Fifty Two and 00/100ths Dollars,
($13,952.00) payable in advance.
(b) Licensee additionally agrees to reimburse Licensor (within thirty (30) days
after receipt of written advice from Licensor) for all cost and expense incurred by
Licensor in connection with Licensee's work on the Premises, including but not limited to
the furnishing of Licensor's Flagman ($500.00 per eight hour day, $95.00 per hour
thereafter):
5. In case of the eviction of Licensee by anyone owning or claiming title to or any
interest in the Premises, Licensor shall not be liable to Licensee for any damage of any
nature whatsoever, or to refund any compensation paid hereunder. This License is
made expressly subject to any and all leases and licenses which may affect the
Premises, and Licensee shall not disturb in any manner any improvements of Licensor
or Licensor's existing licenses or leases.
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EXHIBIT "A"
6. Licensee shall use the Premises only to construct, maintain and operate a 10' by
6' concrete box culvert and a 2000 foot long storm sewer pipeline. In the event Licensee
shall use Premises for any other purpose whatsoever, Licensor may declare this License
at an end and prevent Licensee from using or remaining upon Premises, with or without
process of law. Use or storage on the Premises of any hazardous materials is prohibited
and a breach of this License. Licensee shall not have possession of Premises to the
exclusion of Licensor or any others who have obtained permission or authority from
Licensor to use the Premises, or who may obtain such permission or authority from
Licensor in the future, any such future permission or authority shall be subject to the
rights granted to Licensee in this License..
7. (a) Licensee shall notify Licensor's Roadmaster, Jack Campbell at 505 West
Avenue F, Silsbee, TX 77656-3525, telephone 409-385-1565 /fax 1566, at least five (5)
days in advance of entering upon Premises to enable scheduling Inspector and/or
Flagman, if necessary. After completion of use of the Premises for the purpose identified
in Section 6 herein, Licensee shall notify Licensor in writing that such use has been
completed in accordance with Section 22 herein.
(b) In performing the work described in Section 6, Licensee and its
contractors and subcontractors forces shall use only public roadways to cross from one
side of Licensor's tracks to the other.
8. 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 fifteen (15)
feet of the centerline of any railroad track unless approved by Licensor. Prior to any
boring 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, the Licensee
shall have the right to use suitable detection equipment or other generally accepted
industry practice (p.c., 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. Should Licensee request, thirty (30)
working days in advance of requested entry, Licensor will provide Licensee any
information that Licensor has in its possession concerning the existence and
approximate location of underground utilities and pipelines on the Premises and, prior to
any such boring, the Licensee will review all such material to preclude Licensee's fouling
any existing pipelines or structures. Licensor does not warrant the accuracy of
information relating to subsurface conditions and Licensee's operations will be subject at
all times to-the liability provisions herein.
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9. Any open hole, boring or well constructed upon Premises by Licensee shall be
safely covered and secured at all times when Licensee is not physically 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: (a) filled in to surrounding
ground level with compacted bentonite grout; or (b) otherwise secured or retired as
required by federal, state or local law or regulation, or by any governmental agency
having jurisdiction over the Premises. All excavated materials shall be properly
disposed of by Licensee and shall not be left on the Premises for more than ten (10)
days.
10. Upon completion of each portion of its work on the Premises as set forth in this
License, Licensee shall: (1) remove all of its equipment from the Premises; (2) restore
any damage to the Premises caused by Licensee; (3) remedy any unsafe conditions on
the Premises created by Licensee; and (4) leave the Premises in as functional and safe
a condition as that which existed at the time of the initial entry by Licensee pursuant to
this License.
11. Licensee's on-site supervision shall retain/maintain a fully-executed copy of this
License at all times while on the Premises.
12. In using the Premises, Licensee shall comply with any and all requirements
imposed by federal or state statutes, or by ordinances, orders, or regulations of any
governmental body having jurisdiction thereover.
13. (A) EXCEPT AS SET FORTH IN SECTION 13 (B), LICENSEE SHALL
RELEASE, INDEMNIFY, AND HOLD HARMLESS LICENSOR FOR ALL LOSSES,
DAMAGES, EXPENSES, INJURIES OR DEATH TO LICENSEE, ITS EMPLOYEES,
AGENTS AND CONTRACTORS, ARISING IN ANY MANNER FROM THE
PERFORMANCE OF THIS AGREEMENT, EXCEPT TO THE EXTENT PROXIMATELY
CAUSED BY LICENSOR'S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT
TO THE EXTENT ALLOWED BY TEXAS LAW.
LICENSEE FURTHER AGREES TO RELEASE, INDEMNIFY, AND HOLD
HARMLESS LICENSOR FOR ALL LOSSES, DAMAGES, EXPENSES, INJURIES, OR
DEATH TO ANY PERSON, INCLUDING LICENSOR, WHICH ARISE IN ANY MANNER
FROM THE CONSTRUCTION, MAINTENANCE, USE, STATE OF REPAIR OR
PRESENCE OF LICENSEE'S IMPROVEMENTS, EXCEPT TO THE EXTENT
RESULTING SOLELY FROM THE NEGLIGENCE OR WILLFUL MISCONDUCT OF
LICENSOR.
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(B) WHENEVER ANY EMPLOYEE, AGENT OR CONTRACTOR OF
LICENSEE OR ANY OF LICENSEE'S PARTIES MAKES ANY CLAIM FOR
PERSONAL INJURY OR DEATH AGAINST LICENSOR WITHIN THE MEANING OF
THE FEDERAL EMPLOYERS' LIABILITY ACT, OR ANY APPLICABLE SAFETY ACT,
(45 U.S.C. § 51 ET. SEQ.), FOR ANY INCIDENT CAUSED, WHOLLY OR IN PART, BY
PROPERTY, EQUIPMENT, FIXTURES OR CONDITION BELONGING TO OR
SUBJECT TO THE CONTROL OF LICENSEE, OR CLAIMS OR ALLEGES THAT HE
OR SHE IS AN EMPLOYEE OF LICENSOR OR IS FURTHERING THE
OPERATIONAL ACTIVITIES OF LICENSOR, LICENSEE AGREES TO INDEMNIFY
AND HOLD HARMLESS LICENSOR FOR ALL LOSSES, DAMAGES, COSTS OR
EXPENSES RELATED TO SUCH CLAIM, REGARDLESS OF LICENSOR'S
NEGLIGENCE.
14. (a) Licensee shall cause its Contractor, at its expense, to procure and
maintain throughout the term of this License, and thereafter until all property of Licensee
is removed from the Premises, a comprehensive general form of insurance covering
liability, including, but not limited to, Public Liability, Personal Injury and Property
Damage, as well as Contractual Liability in the amount of $1,000,000 per occurrence
and $2,000,000 in the aggregate. Such insurance shall contain no exclusion with
respect to property of Licensor in the care, custody or control of Licensee. Licensee shall
also, at its expense, procure and maintain throughout the term of this License an
automobile liability policy with limits of One Million and No/100 Dollars ($1,000,000)
covering "any auto". LICENSOR AND STAUBACH GLOBAL SERVICES, INC. SHALL
BE NAMED AS AN ADDITIONAL INSURED.
(b) All risk insurance on the property of Licensee, or in Licensee's care,
custody and control, shall contain a waiver of subrogation of claims against Licensor.
Licensee shall maintain Workers Compensation insurance which shall contain a waiver
of subrogation against Licensor.
(c) All insurance shall be placed with insurance companies licensed to do
business in the State in which the Premises are located, with a current Best's Insurance
Guide Rating of B and Class X, or better. Licensee shall provide, and thereafter maintain
in effect, a current Certificate of Insurance evidencing such insurance. When any
portion of or all of the Premises are located within 50 feet of a railroad track, insurance
must provide for coverage of incidents occurring within fifty (50) feet of a railroad track,
and any provision in the insurance policy to the contrary must be specifically deleted.
Each policy shall provide that it shall not be canceled or materially changed unless at
least thirty (30) days' prior written notice of cancellation or change shall have been
mailed by the insurance company to Licensor at the address designated herein.
(d), A Railroad Protective Liability- insurance policy issued in the name of
Licensor with limits of $2,000,000 for bodily injury and property damage per occurrence
with an aggregate of $6,000,000 must be provided when construction work will be
performed within fifty (50) feet of Licensor's tracks. The policy will remain in force during
the construction phase of this project and must be provided prior to Licensor signing this
license.
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(e) In lieu of providing a Railroad Protective Liability Insurance policy,
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 $2,870.00.
❑ I elect to participate in Licensors Blanket Policy;
❑ I elect not to participate in Licensors Blanket Policy.
(f) The furnishing of insurance required by this Section 14 shall in no way limit or
diminish the liability or responsibility of Licensee as provided under any Section of this
License.
15. Any notice to be given by either party shall be deemed to be properly served if
deposited with the United States Postal Service, or other acceptable mailing service,
postage prepaid, addressed to either party, at the addresses and department shown
beneath signature of the parties.
16. 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.
17. It is understood and agreed that this License shall not be placed of public record.
18. All questions concerning the interpretation or application of provisions of this
License shall be decided according to the laws of the State in which the Premises are
located.
19. 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.
20. 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.
21. This License may be terminated at any time by either party upon thirty (30) days
notice in writing to be served upon the other party, stating therein the date that such
termination shall take place, and upon the expiration of the time specified in such notice
this License and all rights of Licensee hereunder shall absolutely cease and determine.
22. Upon the termination of this License in any manner herein provided, Licensee
shall forthwith surrender to Licensor the possession of the Premises and shall restore
the Premises in accordance with Section 10, and in case Licensee shall fail within
ninety (90) days after the date of such termination to make such restoration, then
Licensor may contract to restore the Premises for the account of Licensee, and in such
event Licensee, within thirty (30) days after-the rendition of written advice therefore,
shall reimburse Licensor for the cost so incurred.
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23. If Licensee fails to surrender to Licensor the Premises, upon termination of this
License, all the liabilities and obligations of Licensee hereunder shall continue in effect
until the Premises are surrendered; and no termination hereof shall release Licensee
from any liability or obligation hereunder, whether of indemnity or otherwise, resulting
from any acts, omissions or events happening prior to the date of termination or the
date, if later, when the Premises have been restored as provided in Section 10 hereof.
24. It is understood and agreed that nothing contained herein shall be construed as a
commitment to grant Licensee or any principal of Licensee a conveyance or any other
interest in any part of the Premises.
25. This License is the full and complete agreement between Licensor and Licensee
with respect to all matters relating to use of the Premises, and supersedes any and all
other agreements between the parties hereto relating to use of the Premises.
26. Neither Licensee, nor the heirs, legal representatives, successors or assigns of
Licensee, nor any subsequent assignee, shall undedease or sublet this License nor
assign or transfer this License or any interest herein, without the prior written consent
and approval of Licensor.
Staubach Global Services, Inc. is acting as agent for The Burlington Northern And Santa
Fe Railway Company.
IN WITNESS WHEREOF, this License has been duly executed, in duplicate, by the
parties hereto as of the day and year first above written.
THE BURLINGTON NORTHERN AND SANTA FE RAILWAY
COMPANY
By: Staubach Global Services, Inc.
Its Attorney in Fact
5650 N. Riverside Drive, Suite 101
Fort Worth, TX 76137
By:
Title:
CITY OF BEAUMONT
801 Main Street
Beaumont,TX 77704
By:
Title:
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ihA�l lfw fit).JJ. GtIt7.)L- -.-
EXHIBIT "A"
ATTACHED TO CONTRACT BETWEEN
THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY
AND
CITY OF BEAUMONT
FORT WORTH. TEXAS SECTION: - V-
SCALE: 1 IN.=1-�Q FT. TOWNSHIP: __ MAP
GULF _DIV. RANGE: - PARCEL
SILSBEE SUBDiV. L.s. 7503
DATE 06/04/1999
�G
C�
TP
RR TRESTLE
AND EXISTING PROPERTY LINE
5'x10'BOX CULVERT
TO SILSBEE 50'14-4 1 TO BEAUMONT-
{#-#{#-4-FI-F 4 1 1 11 1 H-Ii I{1-444-H 4-144!11-#1-F I-1 1 1 /1-4+FFH 1 14 1-1+1 1 1 1 1 1 Vt I I f-f-Fi-Fi-Fij i f 1 f I 1"-11-#1 4 4 1 1 1 1 F#fH.#.+1 1 4-+4i 4#+1-11 1 1-1-f-44#1
f 1 f 1 f I+I#4 1 f I 1 H-F#+H�-Fi-F-1-FFii 4 1 1 1 1 4 1-+1 I 1-4-f 1 11 1 1 1 1 4 1
f 50' 2000'
. _..._
MP 4.37
ES 210.84 �MP 3.99
PROPERTY LINE ES 230.92
DESCRIPTION OF PIPELINE
PIPELINE SHOWN BOLD
CARRIER CASING CARRIER CASING
PIPE PIPE PIPE PIPE
SIZE: 10,x6, N/A LENGTH ON R/W: 2022' N/A
CONTENTS: ST WORKING PRESSURE: GRAVITY
PIPE MATERIAL: C BURY: BASE/RAIL TO TOP OF CASING 6. .. -.
SPECIFICATION / GRADE: - BURY: NATURAL GROUND _
WALL THICKNESS: - BURY: ROADWAY DITCHES 3
COATING: N/A - _ CATHODIC PROTECTION N/A _
VENTS: NUMBER N/A SIZE - HEIGHT OF VENT ABOVE GROUND
NOTE: CASING TO BE JACKED OR DRY BORED ONLY
AT BEAUMONT
COUNTY OF JEFFERSON STATE OF TX Tf1M
DRAWING NO. 3-17525