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HomeMy WebLinkAboutRES 83-347 R E S O L U T I O N BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Manager be, and he is hereby , authorized to amend an agreement with Jefferson County Drainage District No. 6 , in the form attached hereto as Exhibit "A" , to provide for a crossing of the Atchison, Topeka and Santa Fe Railway Company right-of-way with the Cartwright/Corley Drainage Channel. PASSED BY THE CITY COUNCIL of the City of Beaumont this the day of ��I�'`,,.a(��� , 19 . N - Mayor - a SECRETARY'S CONTRACT NO. 000 THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY and CITY OF BEAUMONT, JEFFERSON COUNTY, TEXAS AGREEMENT Relating to the construction, operation and maintenance of a new Santa Fe Silsbee District Bridge No. 74.8 to provide an opening for the City of Beaumont's drainage channel at Railway Mile Post 74 + 4002 feet and covering right of way for construction, operation and maintenance of said channel. DATED: EXHIBI1 "A'• AGREEMENT, Made this day of 19 , between THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a Delaware corporation (hereinafter called "Santa Fe"), as First Party; and CITY OF BEAUMONT, JEFFERSON COUNTY, TEXAS, acting herein by its Mayor, hereunto duly authorized (hereinafter called "City"), as Second Party. WITNESSETH: R E C I T A L S: Whereas, City has undertaken the development of the Cartwright-Corley drainage project which will necessitate constructing, operating and maintaining a drainage channel, in the vicinity of Santa Fe's Southern Division, Silsbee District Mile Post 74 + 4002 ft. , which will carry drainage propagated by diversion and subdivision improvements upstream from Santa Fe's track (hereinafter called "Project") . WHEREAS, Santa Fe operates and maintains a railroad which, as now situated, will be crossed by the Project which will necessitate the construction, operation and maintenance of a new Santa Fe Bridge No. 74.8. WHEREAS, Santa Fe is willing to undertake the construction of a new bridge and other work incidental thereto and inasmuch as City will benefit therefrom, cost of such work shall be borne by City as hereinafter provided. WHEREAS, Santa Fe is agreeable to City or its Contractor constructing, operating and maintaining City's said Project upon the terms and conditions hereinafter stated. AGREEMENT ARTICLE I 1. Santa Fe, for and in consideration of the sum of One and No/100ths Dollars ($1.00) cash to it paid by City, the receipt whereof is hereby acknowledged, and of the full and faithful performance by City of its covenants hereinafter set forth, hereby licenses City to use a certain portion of Santa Fe's property situated in Jefferson County, Texas, for the purpose of constructing, operating and maintaining Project, the property, license to use which is hereby given, being shown in red on print AGM-E, Amarillo X-7342, dated May 27,• 1983; hereto attached, marked Exhibit "A", and made a part hereof. 2. Santa Fe shall construct and maintain at City's expense the new bridge which will consist of a 5 span, 62 foot, T-rail bridge on encased steel shell piles according to Santa Fe's normal standards, complete in place at location indicated on attached Exhibit "A". Santa Fe shall perform at City's expense all structural engineering and design services for the bridge and if necessary shall procure construction contractors which at Santa Fe's sole discretion shall be deemed most advantageous for Santa Fe's purposes to perform portions of the work. 3. Santa Fe shall perform at City's expense all track and miscellaneous work which becomes necessary as a direct consequence of the Project including placing Bridge No. 74.8 and the relocation of the track known as 11th Street team track. 4. Santa Fe will excavate at City's expense the amount required to construct said bridge. 5. Santa Fe shall hereafter maintain said Bridge 74.8 at City's entire expense. 6. Santa Fe shall, after completion of the work herein contemplated, perform normal maintenance on the railway track or tracks (the part resting on the Bridge, consisting of the ballast, ties, rail, fastenings and all appurtenant parts). ARTICLE II In consideration of the aforesaid license, City covenants and - 2 - agrees to and with Santa Fe as follows: 1. City will use the licensed premises exclusively as a site for said drainage Project. 2. City will not let or sublet the whole or any part of the licensed premises for any purpose whatsoever, or assign this license without the written consent of Santa Fe in each instance. 3. That in case of eviction of City by anyone owning or claiming title to the whole or any part of the licensed premises, Santa Fe shall not be liable to City for any damage of any nature whatsoever. 4. City will prepare plans and specifications for the construction of said Project except as provided in Article I, Section 2, which three (3) copies of plans and specifications shall be submitted to Santa Fe for approval before any contract for construction is awarded or work done on said Project. No changes in these plans and specifications are to be made without the written approval of such changes by Santa Fe. 5. City will, at no expense to Santa Fe, and subject to the supervision and control of Santa Fe, locate, construct and maintain the Project in such a manner that it will not at any time be a source of danger to or interference with the present or future tracks, roadbed and property of Santa Fe, or the safe operation of its railroad. City shall construct and maintain the Project in such a manner as not to permit damage to Santa Fe's property or adjoining property. In the event of a breach of this covenant at any time, City will, within ten (10) days after receipt of a written notice from Santa Fe thereof, do whatever may be necessary to fulfill its obligations under this section and, failing so to do within - 3 - -�-3�/,7 said time, Santa Fe may do so 'at City's expense, bill for which City will promptly pay. 6. City assumes the entire responsibility for the construction, operation and maintenance of the Project upon, under or across Santa Fe's right of way, other than the responsibility for maintenance assumed by Santa Fe in Article I, Paragraph 6 hereof, and nothing contained herein shall ever be construed so as to place upon Santa Fe any manner of liability for the diversion of water from its natural course, or for injury to or death of any person, or for damage to or loss of property, arising from the construction, operation and maintenance of the Project. 7. That if the maintenance and use of said Project upon said premises shall necessitate the moving or relocation of any portion of Santa Fe's right-of-way fence, or fences, pole lines, or adjustments to the track or any other railroad facilities, the cost of such moving, relocation and adjustments shall be borne by City. 8. That it will do no work on Santa Fe's property without first contacting Santa Fe's Superintendent at Temple, Texas, and securing his approval of such work. 9. That if contract or contracts are to be let by City for the construction of the work to be undertaken by it hereunder, said contract or contracts shall provide: A. Standard Manufacturer's and Contractors' Liability Insurance. The Contractor shall furnish evidence to the Santa Fe that, with respect to the operations he performs, he carries regular Contractors' Liability Insurance providing for a limit of not less than One Million Dollars ($1,000,000.00) for all damages arising out of bodily injuries to/or death of one or more persons in any one occurrence, and Property Damage Liability Insurance providing for a limit of not less than Five Hundred Thousand Dollars - 4 - ($500,000.00) for all damages arising out of injury to/or destruction of property in any one occurrence and subject to that limit per occurrence, a total (or aggregate) limit of One Million Dollars ($1,000,000.00) for all damages arising out of injury to/or destruction of property during the policy period. If any part of the work is sublet similar insurance shall be provided by or in behalf of the subcontractors to cover their operations. B. Contractors' Protective Liability Insurance. The Contractor shall furnish evidence to the Santa Fe that, with respect to the operations performed for him by subcontractors, he carries in his own behalf regular Contractors' Protective Liability Insurance providing for a limit of not less than One Million Dollars ($1,000,000.00) for all damages arising out of bodily injuries to/or death of one or more persons in any one occurrence, and Protective Property Damage Liability Insurance providing for a limit of not less than Five Hundred Thousand Dollars ($500,000.00) for all damages arising out of injury to/or destruction of property in any one occurrence and subject to that limit per occurence, a total (or aggregate) limit of One Million Dollars ($1,000,000.00) for all damages arising out of injury to/or destruction of property during the policy period. C. Railroads' Protective Liability and Property Damage and Physical Damage to Property Insurance. The Contractor shall furnish an original policy to the Santa Fe for and in behalf of the company which, with respect to the operations he or any of his subcontractors perform, provides the Standard Railroad Protective Liability Policy, with coverage as outlined in General Casualty Bulletins No. 258, dated July 9, 1958, No. 345, dated February 19, 1965, and No. 365, dated August 4, 1967, issued by the State Board of Insurance of Texas, providing for Bodily Injury, Death and Property Damage limited to a combined amount of Two Million Dollars ($2,000,000.00) per occurrence, and subject to a total (or aggregate) limit of Six Million Dollars ($6,000,000.00). D. General. The insurance, as specified in paragraphs A. and B. above, shall be carried until all work required to be performed under the terms of the contract is satisfactorily completed as evidence by the formal acceptance by the Santa Fe. The insurance, as specified in paragraph C. above, shall be carried until all work to be performed on the Santa Fe's right-of-way has been completed. 10. That no legal right of Santa Fe to maintain, use and relocate any railroad facilities now located upon the licensed premises, or to - 5 - construct, maintain, use and ' relocate such track, or tracks, or other railroad facilities as it may desire upon or across the licensed premises shall be in anywise affected by the giving of this license. 11. That if, at any time during the term hereof, Santa Fe shall desire to make any use of the licensed property with which the Project will in any way interfere, including the relocation of existing or the construction of new tracks, pole lines, wires, conduits, etc. , in which it shall have an interest, City shall at no expense to Santa Fe, make such changes in the Project as in the judgment of the Santa Fe may be necessary to avoid interference with the proposed use of its property, however, the use of the property by Santa Fe will not be allowed to affect or restrict the drainage structure contemplated by this agreement. 12. City will release and vacate the licensed premises occupied by any or all of said Project, remove the drainage channel from the licensed premises and otherwise fully restore the premises to the condition in which they existed prior to the beginning of the work herein covered, immediately after the need for such Project ceases to exist. 13. That Santa Fe does not assume any liability for injury to or damage to any person or property incident to or that may arise during and in connection with: A. The use, occupancy or enjoyment, in accordance with agreement by the City of the lands, premises and right of way of Santa Fe; or B. The placement of said Project, the construction of, performance of, maintenance of or failure to properly and safely construct, operate, maintain, repair and use the Project at the aforesaid location. The City agrees to use, occupy and enjoy the license herein given and to use, improve and maintain the Project with all reasonable diligence and precaution to avoid damage to or obstruction of or interference with the operations of the railroad. - 6 - 14. The City shall assume and will save and hold harmless the Santa Fe from and against any and all liability to all persons whomsoever by reason of any injury to or death of persons or damage to property which may directly result from or which is incident to the construction, maintenance, use, operation or existence of said Project on the Santa Fe's premises, or the removal thereof from said premises, or to the restoration of or failure to restore said premises to their prior or other condition as herein provided. It is further agreed that if any claim or liability shall arise from the joint or concurring negligence of the parties hereto, other than that assumed wholly by the City, it shall be borne by them equally. It is understood that it is not the intention of the parties hereto to create liability for the benefit of third parties, but this agreement shall be for the benefit of the parties hereto. For the purposes of this Section 14 said Project shall be construed to include Santa Fe's bridge, unless damage to such bridge is caused by negligence of City. 15. That if it is determined necessary by Santa Fe, during the construction or maintenance of said Project, to provide flagmen and inspectors to insure the safety of railroad operations, the cost of providing such flagmen and inspectors will be borne by City. 16. That this license is made subject to all valid, existing and future contracts, agreements, licenses and easements which may affect said licensed property, covering roads, public and private; pole lines and appurtenances; water lines, or other facilities. 17. That all of the covenants hereof shall inure to the benefit of the successors and assigns of Santa Fe, to the same extent as to Santa Fe. - 7 - ' ARTICLE III In consideration of the aforesaid license the parties mutually agree as follows: 1. Santa Fe will, upon execution of this agreement, furnish all necessary materials and perform the work covered under Sections 2, 3 and 4 of Article I. 2. City or its contractors shall do the major excavation and all channel improvements across Santa Fe's right of way and under Santa Fe's bridge at no expense to Santa Fe. 3. City shall not levy any assessment against Santa Fe for the improvements to the drainage system contemplated herein. 4. City will pay Santa Fe in advance the sum of $153,000.00, which is the estimated cost for the referenced railroad bridge and associated track and signal work. If the actual cost to construct the bridge and make associated track changes is less than estimated, Santa Fe will refund excess to City promptly upon closeout of project. If the actual cost to construct the bridge and make associated track changes is more than estimated, City will pay the difference upon demand by Santa Fe, but such overage shall not exceed ten (10%) per cent of the estimated cost in any event. 5. All of the covenants and agreements herein contained shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto, respectively. ARTICLE IV The parties mutually agree that this license, subject to the provision of Section 12 of Article II, shall be effective from its date, - 8 - te43-3V 7 and thereafter so long as said Project shall be located upon the licensed premises and be maintained in accordance with the provisions of Section 5 of Article II hereof. IN TESTIMONY WHEREOF, the parties hereto have caused these presents to be executed in duplicate on the day and year first above stated. THE ATCHISON, TOPEKA AND AND ATTEST: SANTA FE RAILWAY COMPANY, By Its Executive Vice President Assistant Secretary for Railway Company CITY OF BEAUMONT, By Its City Manager 0816E/JG - 9 - �O ��3 tl STATE OF ILLINOIS ) COUNTY OF COOK ) Before me, , a Notary Public in and for said County and State, on this day personally appeared , President of The Atchison, Topeka and Santa Fe Railway Company, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration and in the capacity therein expressed, and as the act and deed of said Railway Company. 19 Given under my hand and seal of office this day of , Notary Public within and for the County of Cook, State of Illinois My commission expires: THE STATE OF TEXAS ) COUNTY OF JEFFERSON ) BEFORE me, , a Notary Public in and for said State and County, on this day personally appeared , City Manager of the City of Beaumont, Jefferson County, Texas, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration and in the capacity therein expressed, and as the act and deed of the City of Beaumont, Texas. GIVEN under my hand and seal of office this the day of 19 Notary Public within and for the County of Jefferson, State of Texas - 10 - R E S 0L U T I 0 N --000-- BE IT KNOWN that on this day of , 19 , at a regular meeting of the governing body of the City of , there came on to be considered the matter of execution of a license between the said City of and The Atchison, Topeka and Santa Fe Railway Company, relating to , at or near said City of whereupon the following proceedings were had: It was moved, seconded and unanimously voted that , City Manager, be authorized and empowered to execute on behalf of the City of , such license, copy of which is hereto attached, and the same be recorded in the Minutes of the City Commission at the foot of this resolution. STATE OF § COUNTY OF § I, City Secretary, do hereby certify that the above and foregoing is a true and correct copy of a resolution passed by the City Commission of said City in regular session on , 19 , as the same appears of record in Book , Page , Minutes of said City Commission. IN TESTIMONY WHEREOF, witness my hand and the Seal of said City, this day of , 19 City Secretary (SEAL) )64�?-3�0 - 11 -