Ordinance No. 7,291950413 -10
ORDINANCE NO. 7291
s
AN ORDINANCE AUTHORIZING AND DIRECTING THE MAYOR TO
EXECUTE AND THE CITY CLERK TO ATTEST TO AN AGREEMENT WITH
SOUTHERN PACIFIC TRANSPORTATION COMPANY FOR INSTALLATION
AND MAINTENANCE OF A WATER LINE UNDER THE RAILROAD TRACKS
ON MASSEY TOMPKINS ROAD; AUTHORIZING PAYMENT BY THE CITY
OF BAYTOWN, THE SUM OF TWO THOUSAND NINE HUNDRED SIXTY
AND N01100 DOLLARS ($2,960.00); MAKING OTHER PROVISIONS
RELATED THERETO; AND PROVIDING FOR THE EFFECTIVE DATE
THEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS:
Section 1: That the City Council of the City of Baytown,
Texas, hereby authorizes and directs the Mayor and City Clerk of
the City of Baytown to execute and attest to an agreement with
Southern Pacific Transportation Company for installation and
maintenance of a water line under the railroad tracks on Massey
Tompkins Road. A copy of said agreement is attached hereto, marked
Exhibit "A," and made a part hereof for all intents and purposes.
Section 2: That the City Council of the City of Baytown
authorizes payment to Southern Pacific Transportation Company of
the sum of TWO THOUSAND NINE HUNDRED SIXTY AND N01100 DOLLARS
($2,960.00), pursuant to the Agreement.
Section 3: That pursuant to the provisions of Texas Local
Government Code Annotated § 252.048, the City Manager is hereby
granted general authority to approve any change order involving a
decrease or an increase in costs of FIFTEEN THOUSAND AND N01100
DOLLARS ($15,000.00) or less, subject to the provision that the
original contract price may not be increased by more than
twenty -five (250) or decreased by more than twenty -five (25%)
percent without the consent of the contractor to such decrease.
Section 4: This ordinance shall take effect immediately from
and after its passage by the City Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative vote of the
City Council of the City of Baytown this the 13th day of April,
1995.
��& (7, �
PETE C. ALFARO, Mayor
•
950413 -10a
• ATTEST:
ILEEN P. HALL, City Clerk
APPROVED AS TO FORM:
I CIO RAMIREZ, City Attorney
• legal / council /4- 13- 95authAGREEsouthem
Form G.S. 3400 Appik -cLI as l4 f<.im Ly General Counsel
Rt-vA 5edi DCG:V I C-x 4, 3992
MA,rr_h 2.1. 1993
Page 1 of 6
RELMIS: THA -19,95
UNDERGROUND PIPELINE
(SEWER - WATER - STORM DRAIN - ETC.)
THIS AGREEMENT, made this day of , 1995, by
and between SOUTHERN PACIFIC TRANSPORTATION COMPANY, a Delaware
corporation, (Licensor), and CITY of BAYTOWN, a municipal
corporation, address: P. O. Box 424, Baytown, Texas 77522 -0424,
(Licensee);
1. Grant of Rights: Licensor hereby grants to Licensee the
right to construct, reconstruct, maintain arid operate, subject to
Lhe terms of this Agreement, an underground 12 -inch water pipeline
(herein called "structure "), at or near Baytown, County of Harris,
State of Texas, in the location shown ors the attached print of
Drawing TBA--19.95 -X, dated March 26, 1994.
This grant is subject arid subordinate to the prior and
continuing riylrL ur Licensor, its successors and assigns, to use
all of its property in Lhe cunciuot Of its business, Licensor
reserving full rights, consistent with the rights herein granted,
to construct, reconstruc:L, mdinLain and operate existing and
additional transportation, communication, pipeline and power
facilities upon, over and beneath its premiae3.
2. Identifying Markers: Markers in form and size
satisfactory to Licensor slydll be installed and constantly
maintained by Licensee; aL property lines or such
locations as Licensor shall desiynaLe and Shall be relocated or
removed by Licensee upon request of L:i.cerisor. The absence of
markers does not constitute a warranty by Licensor that there are
no subsurface installations.
EXHIBIT A
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Page 2 of 6
3. Costs: Upon execution hereof, Licensee shall pay Licensor
Four Hundred Sixty Dollars ($460) partially to defray cost of
handling.
Licensee shall bear the enLire cost of constructing,
reconstruCLing, maintaining and uperaLing said structure on
Licensor's premises. Licensee shall reimburse Licensor for all
cost and expense to Licensor irl furnishing any materials or
performing any labor in connection with such work, including, but
not limited to, installation of falsework and other protection
beneath or along Licensee's tracks, and furnishing such watchmen,
flagmeri and inspectors as Licensor, deems necessary.
4. Construction and MainLeoanue: said structure shall be
constructed, reconstructed and maintained are accordance with plans
approved by Licensor. hpproval by Licensor shall not curlst'itute a
warranty by Licensor that such plans conform with federal, state
and /or local codes and regulations applicable thereLo. All work
upon or in connection with said structure shall be done to
Licensee's satisfaction at such times acid ir1 such manner as not to
interfere with Licensor's operations. In Lice construction,
reconstruction and maintenance of said strucLure, Licensee shall
keep Licensors premises in a neat and safe condition, failing
which Licensor may do so at Licensee's expense. If required by
Licensor in its use of Licensor's premises, Licensee shall
reconstruct, relocate or alter said structure. Except in
emergencies, Licensee shall give Licensor five (5) days' written
notice of the day and hour it proposes to do any work on said
structure.
Licensee shall cooperate with Licensor in making any tests
Licensor requires of any installation or (;ul-ldition which in its
judgment may have adverse effect on any of the facilities of
Licensor. All costs incurred by the test's, or any corrections
thereafter, shall be borne by Licensee.
No change shall be made by Licensee in tree commodity being
conveyed through said structure withouL Licensor's prior writtcn
approval.
5. The rights herein granted are subject to the rights of
Licensor (or anyone acting with Lhe permission of Licensor) to
construct, reconstruct, maintain and operate fiber optic and other
• telecommunications systems (sysLews) in, upon, along, across and
beneath the premises and rights -of -ways of Licensor including the
premises through which said structure shall. be constructed.
form C.S. 3400 Approved as to form by Genere3 cuunbVI Fie �eN 23. 1993
Revived: rawco.k er 4, 1992
• Page 3 of 6
Licensee agrees to reimburse Licensor and /or the owner of the
system(s) for all expenses which either may incur which expenses
would not have been incurred except by reason of the use of the
premises by Licensee, its agents, employees or invitees including
relocation costs or any damages incurred by such owner due to
injury to the system(s).
Licensee, at least five (5) days prior to performing any
digging activities On the premises of Licensor, must Gall 1- 800 -AT--
FIBER (available 24 hours) to receive a Southern Pacific Telecom-
munications Company control number. Licensee will be advised if a
telecommunications system is buried anywhere on or about the
premises of Licensor in the location where Licensee will perform
such digging activities. If there is a Lelec:onununications system,
Licensee will be advised as to Lhe uwner of the telecommunications
system and provided instructions on arranging for a cable locator
and will be advised whether relocation or oLher protection for the
telecommunications system is required prior to Leginning any work
on the premises of Licensor.
6 It is the express intention of the parties hereto that
the indemnity provided for in this Agreement is as follows: To the
extent allowed by law, Licensee agrees to release, defend and
Indemnify Licensor from and against any and all liability, cost and
expense for injury to or death of persuns and damage to or
destruction of property (including, but nuL limited to, the
property and employees of each of the parties hereto), when arising
or resulting out of or in any way coni,ected with the performance of
work under this Agreement, except when due Lo Lhe sole negligence,
gross negligence, willful 11tj.s(:u4ldut:t or criminal actions of
Licensor. This covenant of indemnity shall continue in full force
and effect notwithstanding the full payment of all sums due under
this Agreement, or the Sa UbZautlon, discharge or termination of
this Agreement in any manner whatsoever.
The term "Licensor" as used in this se(:Lion shall include the
successors, assigns and affiliaLed QuRipanies of Licensor, and any
oLheL i,ailrouJ company operating upon Licensor's•tracks.
7. Condemnation: In the event all or any portion of
Licensor's premises sliall be condemned or taken for public use,
• Licensee shall receive c:ompeii6aLion only for the taking and
damaging of said structure. Any compensation or damages for taking
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Page 4 of 6
said premises or Licensee's interest therein awarded to Licensee
shall be assigned by Licensee to Licensor.
8. Termination: This Agreement may be germinated by either
party hereto by giving sixty (60) days' written notice to that
effect to the other party and Licensee: shall thereupon remove said
structure and appurtenances and restore the premises of Licensor to
Licensor's satisfaction failing which Licensor may arrange to do so
at Licensee's expense.
If Licensee makes default in respect to any covenant or
condition on Licensee's part hereunder and fails to correct such
default within thirty (30) days' after receipt of notice from
Licensor so to do, Licensor may forthwith terminate this Agreement
by notice to Licensee.
9. Environmental Protection: Licensee Shall, at its expense,
comply with all, applicable laws, r'eyulations, rules and orders
regardless of when they become or became etl:ective, including,
without limitation, those rel.ating to hedlLh, safety, noise,
environmental protection, wasLe disposal, and water and air
quality, and furnish satisfactory evidenu(-- of Such compliance upon
request of Licensor.
Should any discharge, leakage, spillage, emission or pollution
of any type occur upon or arise from the premises covered hereunder:
as a result of Licensee's use, presence, oper'aLlolls or exercise of
the rights granted hereunder, Licensee shall iitunediately notify
Licensor and shall, at Licensee's expense, be obligated to clean
all property affected thereby, whether owned or controlled by
Licensor or any third persons to the satisfaction of Licensor
(insofar as the property owned ur' Gontrolled by Licensor is
concerned) and any governmental body having jurisdiction in the
matter. Licensor may, at its option, clear, Licensoe's premises; if
Licensor elects to do so, Licensee shall pay Licensor the cost: of
such cleanup promptly upon the receipt of a bill therefor. Licensee
agrees to release, indemnify and defend Liuetlsor from and against
all liability, cost and expense (including, without limitation, any
fines, penalties, judgments, l.itigation c.u5Ls and attorney fees)
incurred by Licensor as a result of Licensee's breach of this
section, or as a result of any sucli discharge, leakage, spillage,
emission or pollution, regardless of whethe.e such liability, cost
or expense arises during the time this Agreement is in effect or
thereafter, unless such liability, cost or expense is caused by the
• sole negligence, gross negligence, willful misconduct or criminal
actions of Licensor, its officers, agents or employees.
Ybrm C.S. .1doo Rpp,vreO Oa to form by Goncrol Caunzcl
rc�1 :.ode baeem!•cr 4. 1!19'
•
March 23, 1993
Page 5 of 6
lo.Contractors: No work on Licensor's premises shall be
commenced by any contractor for Licensee until such contractor has
entered into Licensor's standard Contrdct'Or's Right of Entry
agreement covering such work.
11. Non- assignability: This Agreerslent is not assignable, in
whole or in part, by Licensee without Licensor's prior written
consent.
12. Liens: Licensee shall pay in full all persons who
perform labor on said premises for Licensee, and will not suffer
any mechanics' or materialmen's liens to be enforced against
Licensor's premises for work done or materials furnished at
Licensee's instance or requesS - If any such liens are filed
thereon, Licensee agrees Lo remove the same at Licensee's own coot
and expense and to pay any judgment which may be entered thereon or
thereunder. 5hould the Licensee fail, neglect or refuse so to do,
Licensor shall have the riyhL Lu pay any amount required to release
any such lien or liens, or to deferid any action brought thereon,
and to pay any judgment entered therein, and the Licensee shall be
liable to the Licensor for all costs, ddluages, and reasonable
attorney fees, and any amounts expended in defending any
proceedings or in the payment of any said liens ur any judgment
obtained therefor.
13. Said structure shall be installed in accordance with
minimum requirements of Form CS 1791, also attached and made a part
hereof.
14. As monetary consideration for Lhe permission herein given
Licensee shall pay to Licensor the sum of Two Thousand five Hundred
Dollars ($2500)_ Acceptance by Licensor of monetary consideration
shall not be construed as a waiver by Licensor of its right to
LerminaLe as set forth in Section a hereof.
15. This Agreement contains all the ayl;-eelnellts of the parties
relating to the subject matter hereof and is the full and final
expression of the agreement between the parties.
16. This Agreement shall in all respects be interpreted and
construed in accordance with and governed by Lhe laws of the state
of Texas and the City, regardless of Lhe place of its execution or
performance. The place of making and the place of performance for
all purposes shall he BayLuwn, Harris County, Texas.
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Fora C - -• 3400 +4pprovcd ad lu fuam by Gancral CoultreJ Mairch 23, 1993
qo -A —d, b.—L— 4, 1992
0 Page 6 of 6
IN WITNESS WHEREOF the parties hereto have caused these
presents to be executed in duplicate the day and year first herein
written.
•
LICENSOR
By
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1�nl�gAr�Onbset�
LICENSEE
By
(Title)