HomeMy WebLinkAbout1997 Ordinance No. 051•
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ORDINANCE NO . Q
SERIES OF 1997
BY AUTHORITY
COUNCIL BILL NO. 51
INTRODUCED BY COUNCIL
MEMBER WIGGINS
AN ORDINANCE AUTHORIZING TWO AGREEMENTS ENTITLED "PIPE LINE
LICENSE" BETWEEN THE BURLINGTON NORTHERN AND SANTA FE
RAILWAY COMPANY AND THE CITY OF ENGLEWOOD , COLORADO.
WHEREAS, in conjunction with the Windermere Project the City is trying to
increase capacity and replace the major water lines which consist of a 24" treated
and a 36" raw water line which should be replaced because the existing pipes are 50
years old; and
WHEREAS , the railroads require water mains be protected within their right-of-
way; and
WHEREAS, these Pipe Line License Agreements enable the City Utilities
Department a nonexclusive license to construct and maintain one 24" and one 36"
water pipe line across and along Line Segment 7304, which is south of Tufts Avenue
and east of Santa Fe Drive; and
WHEREAS, the pipe lines shall be used exclusively for treated and raw water for
the City;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF ENGLEWOOD , COLORADO , AS FOLLOWS :
Section l. The two Agreements entitled "Pipe Line License" between the
Burlington Northern and Santa Fe Railway Company and the City of Englewood,
Colorado , attached hereto as Exhibit 1 and 2, are hereby accepted and approved by the
Englewood City Council.
Section 2. The Director of Utilities is authorized to execute the Licenses for and on
behalf of the City of Englewood, Colorado .
Introduced, read in full , and passed on first reading on the 2nd day of June , 1997 .
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Published as a Bill for an Ordinance on the 5th day of June, 1997.
Read by title and passed on final reading on the 16th day of June, 1997.
Published by title as Ordinance No . £1, Series of 1997, on the 19th day of June,
1997.
I , Loucrishia A. Ellis , City Clerk of the City of Englewood, Colorado, hereby
certify that the above and foregoing is a true copy of the Ordinance passed on final
reading and published by title as Ordinance No . 5 /, Series of 1 97 .
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Form Approved
by VP-Law
AFH 50-97
Contract No: _____ _
PIPE LINE LICENSE
THIS LICENSE , made this 23rd day of April , 1997 , 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"),
party of the first part, and CITY OF ENGLEWOOD , a Colorado corporation (hereinafter,
whether one or more , called "Licensee"), party of the second part.
WITNESSETH , That the parties hereto for the consideration hereinafter expressed
covenant and agree as follows:
1. Subject to the terms and conditions hereinafter set forth, Licensor grants a
nonexclusive license to Licensee to construct and maintain one (1) pipe line(s), 24-
inches inches in diameter (hereinafter, whether one or more pipe lines, called the "PIPE
LINE "), across or along the ra il corridor of Licensor at or near the station of Englewood ,
County of Arapahoe , State of Colorado , Line Segment 7304, Mile Post 727.93 , the
location of the PIPE LINE being more particularly shown upon the print hereto attached ,
No . 1-10465 dated Apr il 2, 1997, marked "Exhibit A" and made a part hereof.
2. This agreement shall be effective May 9, 1997.
3. Licensee shall use the PIPE LINE solely for carrying water and shall not use it to
carry any other commodity or for any other purpose whatsoever.
4. Licensee shall pay Licensor as compensation for this license the sum of Two
Thousand Five Hundred and No/100 Dollars ($2 ,500).
5. Licensee shall , at its own cost and subject to the supervision and control of
Licensor's field engineer, locate and/or relocate , construct and ma intain the PIPE LINE
in such a manner and of such material that it will not at any time be a source of danger
to or interference with the present or future tracks, roadbed or rail corridor of Licensor,
or the safe operation of its railroad. When the PIPE LINE is used for oil, gas, petroleum
products , or other flammable or highly volatile substances under pressure. the PIPE
LINE shall be constructed, installed and thereafter maintained in conformity with the
plans and specifications shown on print hereto attached , marked Exhibit B and made a
part thereof. If at any time Licensee shall, in the j udgment of Licensor, fail to perform
properly its obligations under this paragraph, Licensor may, at its option, arrange for the
performance of such work as it deems necessary for the safe operation of its railroad ,
and in such event Licensee agrees to pay, within fifteen (15) days after bill shall have
been rendered therefor, the cost so incurred by Licensor, but failure on the part of
Licensor to perform the obligations of Licensee shall not release Licensee from li ability
hereunder for loss or damage occasioned thereby.
6. Licensee shall reimburse Licensor for any expense incurred by Licensor for false
work to support Licensor's tracks and for flagman to protect its traffic during installation
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and maintenance periods and for any and all other expense incurred by Licensor on
account of the PIPE LINE. (The current rate, subject to change without notice, for
furnishing of Licensor's Flagman is a minimum daily charge of $300.00, for the first eight
hours, or any part thereof, per day, with an hourly charge of $45.00 per hour for any
time over eight hours per day).
7. 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 (.§..:.9.:., 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.
8. Prior to installation, five (5) days advance notice must be given to Licensor's
Roadmaster, Jim Underwood at 711 West 31 Street Denver, Colorado 80216, telephone
(303) 480-6413 .
9. (a) Except as set forth in Section 9 (b), when permitted by the Colorado
Constitution and subject to the provisions of 24-10-101 C.R.S.,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 for Licensor's gross negligence or intentional
misconduct.
When permitted by the Colorado Constitution and subject to the provisions of 24-
10-101 C.R.S., 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 p ipelines.
(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. e51 et. seq.), for any incident caused, wholly or in part, by property, equipment,
fixtures or condition belonging to or subject to the contra.I 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.
10. If at any time during the term hereof Licensor shall desire to make any use of its
rail corridor with which the pipeline will in any way interfere, including the relocation of
existing or the construction of new pipelines and other facilities in which it shall have an
interest, Licensee shall, at Licensee 's own cost, within thirty (30) days after receiving
written notice from Licensor to such effect, make such changes in the pipeline as in the
judgment of Licensor may be necessary to avoid interference with the proposed use of
its rail corridor.
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11. (a) Licensee shall, at its expense, procure and maintain throughout the term·
of this License 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 rail corridor of
Licensor in the care, custody or control of Licensee. LICENSOR AND CATELLUS
MANAGEMENT CORPORATION SHALL BE NAMED AN ADDITIONAL INSURED.
(b) All risk insurance on the PIPE LINE of the Licensee , or Licensor's
property 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 PIPE LINE is located, with a current Best's Insurance
Guide Rating of B and Class X, or better. Licensee shall provide Licensor in advance of
said installation a Certificate of Insurance evidencing such insurance. 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.
(d) A Railroad Protective Liability insurance pol icy 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 .
(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 $1000.
0 I elect to participate in Licensor's Blanket Policy;
0 I elect not to participate in Licensor's Blanket Policy.
(f) The furnishing of insurance required by this Section shall in no way limit
or diminish the liability or responsibility of Licensee as provided under any Section of this
License .
(g) Licensee shall be allowed to self-insure any or all of t he insurance
coverages referenced above.
12. Upon written notice from Licensor, Licensee agrees to assume the defense of
any lawsuit, or other proceeding brought against Licensor by any public body, individual,
partnership , corporation, or other legal entity, relating to any matter covered by this
License for which Licensee has an obligation to assume ~ability for and/or save and hold
harmless Licensor.but only when and to the extenw perm itted by the Colorado
Constitution and subject to the provisions of 24-10-101 C.R .S ., if so permitted , Licensee
shall also pay all the costs incident to such defense includ i ng, but not limited to ,
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attorneys' fees, investigators' fees, litigation expenses, settlement payments, and
amounts paid in satisfaction of judgments.
13. (a) Licensee shall comply with all federal, state and local environmental laws
and regulations in its use of Licensor's rail corridor, including, but not limited to, the
Resource Conservation and Recovery Act, as amended (RCRA), and the
Comprehensive Environmental Response, Compensation, and Liability Act, as amended
(CERCLA). Licensee shall not maintain a treatment, storage, transfer or disposal facility,
or underground storage tank, as defined by RCRA, on or under Licensor's rail corridor.
Licensee shall not release or suffer the release of oil or hazardous substances, as
defined by CERCLA, on Licensor's rail corridor. Notwithstanding any other requirements
in this contract, Licensee assumes all responsibility for the investigation and cleanup of
such release and shall indemnify and when permitted by the Colorado Constitution and
subject to the provisions of 24-10-101 C.R.S., defend Licensor and its agents for all
costs and claims, including consultant and attorney fees, arising in any manner out of
such release or Licensee's failure to comply with environmental laws, regardless of
whether such costs or claims are caused or contributed to by the negligence or alleged
negligence of Licensor, except to the extent such costs or claims are proximately
caused by Licensor's gross negligence or intentional misconduct.
(b) Licensee shall give Licensor timely notice of any release, violation of
environmental laws or inspection or inquiry by governmental authorities charged with
enforcing environmental laws with respect to Licensor's rail corridor. Licensee also shall
give Licensor timely notice of all measures undertaken by or on behalf of Licensee to
investigate, remediate, respond to or otherwise cure such release or violation.
(c) In the event that Licensor receives notice from Licensee or otherwise of a
release or violation of environmental laws which occurred or is occurring during the term
of this License, Licensor may require Licensee, at Licensee's sole expense, to take
timely measures to investigate, remediate, respond to or otherwise cure such release or
violation.
14. If default shall be made in any of the covenants or agreements of Licensee
contained in this document, or in case of any assignment or transfer of this License by
operation of law, Licensor may, at its option, terminate this License by serving five (5)
days' notice in writing upon Licensee; but 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 shall
be in addition to, and not in limitation of, any other remedies that Licensor may have at
law or in equity.
15. 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 the PIPE LINE and shall indemnify Licensor against any loss, liability or expense
incurred by Licensor on account of such liens. Licensor is hereby authorized to post any
notices or take any other action upon or with respect to the PIPE LINE that is or may be
permitted by law to prevent the attachment of any such liens to Licensor's premises;
provided, however, that failure of Licensor to take any such action shall not relieve
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Licensee of any obligation or liability under this Section or any other Section of this
License .
16. In the case of eviction of Licensee by anyone owning or obtaining title to the rail
corridor on which the PIPE LINE is located, or the abandonment by Licensor of said rail
corridor , Licensor shall not be liable to Licensee for any damage of any nature
whatsoever or to refund any payment made by Licensee to Licensor hereunder, except
the proportionate part of any recurring rental charge which may have been paid
hereunder in advance.
17. Ahy 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.
18. 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.
19. Any contractor or subcontractor performing work on or in connection with the
PIPE LINE shall for the purpose of this license, be conclusively deemed to be the
servant and agent of Licensee acting on behalf and within the scope of such contractor's
or subcontractor's employment for Licensee.
20. Neither Licensee, nor the heirs, legal representatives, successors or assigns of
Licensee , nor any subsequent assignee, shall underlease or sublet the PIPE LINE nor
assign or transfer this License or any interest herein, without the prior written consent
and approval of Licensor.
21. It is understood and agreed that this License shall not be placed of public record.
22. All the covenants and provisions of this License shall be binding upon the heirs,
legal representatives, successors and assigns of Licensee. No assignment by Licensee
shall be binding upon Licensor without the written consent of Licensor in each instance.
23. 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 PIPE LINE is
located.
24. To the maximum extent possible, each prov1s1on 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.
25. 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.
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26. Notwithstanding any other provisions of this license , Licensee shall comply with
all statutes, ordinances , rules , regulations , orders and decisions issued by any federal ,
state or local governmental body or agency established thereby relating to Licensee's
use of Licensor's premises hereunder.
27. This license is given by Licensor and accepted by Licensee upon the express
condition that the same may be term i nated 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 that upon the termination of this license in this or
any other manner herein provided , Licensee , upon demand of Licensor, shall abandon
the use of the PIPE LINE and remove the same and restore t he rail corridor of Licensor,
as near as possible , to the same condition in which it was prior to the placing of the
PIPE LINE thereunder . In case Licensee shall fail to restore Licensor's rail corridor
w ithin Thirty (30) days after the effective date of termination, Licensor may proceed with
such work at the expense of Licensee. No termination hereof shall release Licensee
from any liability or obligation hereunder, whether of indemn ity or otherwise, resulting
from any acts, omissions or events happening prior to the date the PIPE LINE is
removed and the rail corridor of Licensor restored as above provided .
28. This License is the full and complete agreement between Licensor and Licensee
w ith respect to all matters relating to license on the Premises, and supersedes any and
all other agreements between the parties hereto relat ing to license on the Premises .
Catellus Management Corporation is acting as agent for The Burlington Northern And
Santa Fe Railway Company.
WHEREOF, the parties have executed this agreement in duplicate the day and year first
above written.
THE BURLINGTON NORTHERN AND SANTA FE RAILWAY
COMPANY
By:
By : Catellus Management Corporation
Its Attorney in Fact
4545 Fuller Drive, Suite 105
Irving , TX 75038
James A. Ball , Manager Contracts
CITY OF ENGLEWOOD
Utilities Department
3400 South Elati Street
Englewood , CO 80110-2304
By:
T itle :
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L.· EXH I B IT II A I/ AFH 50·97
ATTACHED TO CONTRACT BETWEEN
THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY
AND
CITY OF ENGLEWOOD
FORT WORTH. TEXAS
SCALE: 1 IN.=1.QQ_ FT.
COLORADO DIV.
v-4
MAP 30
PARC EL .1...&a
PIKES PEAK SUBDIV. L.S. ~
DATE 04102/1997
SIZE:
CONTENTS:
PIPE MATERIAL:
SPECIFICATION I GRADE:
WALL TH I CK NESS:
COATING:
CARRIER
PIPE
2 4 II
WATER
DIP
CL 53 o. 4 7 11
EPOXY
DESCR IPTION OF PIPELINE
PIPELINE SHOWN BOLD
CASING
PIPE
3 6 II
STEE L
ASTM A36
0.688 11
N/A
CARR !ER
PIPE
LENGTH ON R/W: 1 00 I
WORK I NG PRESSURE: 1 00 PS I
BURY: BASE/RAIL TO TOP OF CASING
BURY: NATURAL GROUND
BURY: ROADWAY DITCHES
CATHODIC PROTECTION
CASING
PIPE
1 00 I
10.0'
8. O'
3 ' MIN
N/A
VENTS: NUMBER NI A SIZE __ HEIGHT OF VENT ABOVE GROUND __
NEAR ENGLEWOOD
COUNTY OF ARAPAHOE
NOTE: CASING TO BE JACKED OR ORY BORED ONLY
STATE OF CO SPK
DRAWING NO. 1-10465
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Form Approved
by VP-Law
AFH 24-97
Contract No: _____ _
PIPE LINE LICENSE
THIS LICENSE, made this 23rd day of April, 1997, 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"),
party of the first part, and CITY OF ENGLEWOOD , a Colorado corporation (hereinafter,
whether one or more, called "Licensee"), party of the second part.
WITNESSETH, That the parties hereto for the consideration hereinafter expressed
covenant and agree as follows:
1. Subject to the terms and conditions hereinafter set forth, Licensor grants a
nonexclusive license to Licensee to construct and maintain one (1) pipe line(s), 36-
inches inches in diameter (hereinafter, whether one or more pipe lines, called the "PIPE
LINE"), across or along the rail corridor of Licensor at or near the station of Englewood,
County of Arapahoe , State of Colorado, Line Segment 7304, Mile Post 727.94, the
location of the PIPE LINE being more particularly shown upon the print hereto attached,
No. 1-10401 dated April 2, 1997, marked "Exhibit A" and made a part hereof.
2. This agreement shall be effective May 9, 1997.
3. Licensee shall use the PIPE LINE solely for carrying water and shall not use it to
carry any other commodity or for any other purpose whatsoever.
4. Licensee shall pay Licensor as compensation for this license the sum of Two
Thousand Five Hundred and No/100 Dollars ($2 ,500).
5. Licensee shall, at its own cost and subject to the supervision and control of
Licensor's field engineer, locate and/or relocate, construct and maintain the PIPE LINE
in such a manner and of such material that it will not at any time be a source of danger
to or interference with the present or future tracks, roadbed or rail corridor of Licensor,
or the safe operation of its railroad. When the PIPE LINE is used for oil. gas. petroleum
products, or other flammable or highly volatile substances under pressure. the PIPE
LINE shall be constructed , installed and thereafter maintained in conformity with the
plans and specifications shown on print hereto attached, marked Exhibit B and made a
part thereof. If at any time Licensee shall, in the judgment of Licensor, fail to perform
properly its obligations under this paragraph , Licensor may, at its option , arrange for the
performance of such work as it deems necessary for the safe operation of its railroad,
and in such event Licensee agrees to pay , within fifteen (15) days after bill shall have
been rendered therefor, the cost so incurred by Licensor, but failure on the part of
Licensor to perform the obligations of Licensee shall not release Licensee from liability
hereunder for loss or damage occasioned thereby.
6. Licensee shall reimburse Licensor for any expense incurred by Licensor for false
work to support Licensor's tracks and for flagman to protect its traffic during installation
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and maintenance periods and for any and all other expense incurred by Licensor on
account of the PIPE LINE. (The current rate , subject to change without notice , for
furn ishing of Licensor's Flagman is a minimum daily charge of $300 .00 , for the first eight
hours , or any part thereof, per day, with an hourly charge of $45.00 per hour for any
time over eight hours per day).
7 . Pr ior to any boring work on or about any portion of the Premises , Licensee shall
explo re the proposed location for such work w it h hand tools to a depth of at least three
(3 ) feet below the surface of the ground to determine whether pipelines or other
structures ex ist below t he 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 (~, consulting with the Underground Services Assoc iation )
to determine the existence or location of pipelines and other subsurface structures pr ior
to drilling or excavating with mechanized equipment.
8. Prior to installation, five (5) days advance notice must be given to Licensor's
Roadmaster , Jim Underwood at 711 West 31 Street Denver , Colorado 80216 , telephone
(303 ) 480-6413 .
9. (a) Except as set forth in Section 9 (b), when perm itted by the Colorado
Const itution and subject to the provisions of 24-10-101 C.R.S. Licensee shall release ,
indemnify , and hold harmless Licensor for all losses , damages, expenses , injuries or
death to Licensee , its employees , agents and contractors , aris ing in any manner from
the performance of this agreement, except for Licensor 's gross neg ligence or intentional
misconduct.
When permitted by the Colorado Constitution and subject to the provisions of 24-
10-101 C.R.S ., Licensee further agrees to release, indemnify , and hold harmless
Licensor for all losses , damages, expenses , injuries , or death to any pe rson , including
Licensor , which arise in any manner from the construction, maintenance , use , state of
repa ir or presence of Licensee 's pipelines.
(b ) Whenever any employee , agent or contractor of Licensee or any of
Licensee's Parties makes any claim for personal injury or death aga inst Licensor with in
the meaning of the Federal Employers ' Liability Act , or any applicable safety act, (45
U.S.C. e51 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 o r
alleges that he or she is an employee of Licensor or is further ing 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.
10. If at any time during the term hereof Licensor shall desire to make any use of its
rail corridor with which the pipeline will in any way interfere, inc luding the relocation of
existing or the construction of new pipe li nes and other facilities in which it shall have an
interest, Licensee shall , at Licensee's own cost , with in thirty (30) days after receiving
written notice from Licensor to such effect , make such changes in the pipeline as in the
judgment of Licensor may be necessary to avo id interference with the proposed use of
its rail corridor .
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11. (a) Licensee shall, at its expense , procure and maintain throughout the term
of this License 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 exclus ion with respect to rail corridor of
Licensor in the care , custody or control of Licensee. LICENSOR AND CATELLUS
MANAGEMENT CORPORATION SHALL BE NAMED AN ADDITIONAL INSURED.
(b ) All risk insurance on the PIPE LINE of the Licensee, or Licensor's
property 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 PIPE LINE is located , w ith a current Best's Insurance
Guide Rating of B and Class X, or better. Licensee shall provide Licensor in advance of
said installation a Certificate of Insurance evidencing such insurance. Insurance must
provide for coverage of incidents occurring w ithin fifty (50) feet of a railroad track, and
any provision in the insurance pol icy to the contrary must be spec ifica ll y deleted .
(d) A Ra ilroad 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 .
(e) In lieu of providing a Railroad Protective Liability Insurance policy ,
Licensee may participate in Licensor's Blanket Ra ilroad Protective Liab ility Insurance
Policy available to Licensee or its contractor. The limits of coverage are the same as
above. The cost is $1000 .
D I elect to participate in Licensor 's Blanket Policy ;
D I elect not to participate in Licensor's Blanket Policy.
(f) The furnishing of insurance required by this Section shall in no way limit
or diminish the liability or responsibility of Li censee as provided under any Section of this
License .
(g) Licensee shall be a llowed to self-insure any or all of the insurance
coverages referenced above.
12. Upon wr itten not ice from Licensor , Licensee agrees to assume the defense of
any lawsuit, or other proceeding brought against Licensor by any public body, individual ,
partnership, corporation , or other legal entity, relating to any matter covered by this
License for wh ich Licensee has an obligation to assume liability for and/or save and hold
harmless Licensor , but only when and to the extent perm itted by the Colorado
Constitution and subject to the provisions of 24-10-101 C.R.C . if so permitted. Licensee
shall also pay all the costs incident to such defense including , but not limited to,
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attorneys' fees, investigators' fees, litigation expenses, settlement payments, and
amounts paid in satisfaction of judgments.
13. (a) Licensee shall comply with all federal , state and local environmental laws
and regulations in its use of Licensor's rail corridor, including, but not limited to, the
Resource Conservation and Recovery Act, as amended (RCRA), and the
Comprehensive Environmental Response , Compensation , and Liability Act, as amended
(CERCLA). Licensee shall not maintain a treatment, storage, transfer or disposal facility,
or underground storage tank , as defined by RCRA, on or under Licensor 's rail corridor.
Licensee shall not release or suffer the release of oil or hazardous substances, as
defined by CERCLA , on Licensor's rail corridor. Notwithstanding any other requirements
in this contract, Licensee assumes all responsibility for the investigation and cleanup of
such release and when permitted by the Colorado Constitution and subject to the
provisions of 24-10-101 C.R.S ., shall indemnify and defend Licensor and its agents for
all costs and claims, includ ing consultant and attorney fees, arising in any manner out of
such release or Licensee 's failure to comply with environmental laws, regardless of
whether such costs or cla ims are caused or contributed to by the negligence or alleged
negligence of Licensor, except to the extent such costs or claims are proximately
caused by Licensor's gross negligence or intentional misconduct.
(b) Licensee shall give Licensor timely notice of any re lease , violation of
environmental laws or inspection or inquiry by governmental authorities charged with
enforcing environmental laws with respect to Licensor's rail corr idor. Licensee also shall
give Licensor timely notice of all measures undertaken by or on behalf of Licensee to
investigate, remediate, respond to or otherwise cure such release or violation.
(c ) In the event that Licensor receives notice from Licensee or otherwise of a
release or violation of environmental laws which occurred or is occurring during the term
of this License , Licensor may require Licensee, at Licensee 's sole expense , to take
timely measures to investigate , remediate , respond to or otherwise cure such release or
violation .
14. If default shall be made in any of the covenants or agreements of Licensee
contained in this document, or in case of any assignment or transfer of this License by
operation of law , Licensor may , at its option, terminate this License by serving five (5)
days' notice in writing upon Licensee; but 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 defau lts , 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 Sect ion shall
be in addition to , and not in limitation of , any other remedies that Licensor may have at
law or in equity.
15. 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 the PIPE LINE and shall indemnify Licensor against any loss , liability or expense
incurred by Licensor on account of such liens . Licensor is hereby authorized to post any
notices or take any other act ion upon or with respect to the PIPE LINE that is or may be
permitted by law to prevent the attachment of any such liens to Licensor's premises;
provided , however, that failure of Licensor to take any such action shall not relieve
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Licensee of any obligation or liability under this Section or any other Section of this
License.
16. In the case of eviction of Licensee by anyone owning or obtaining title to the rail
corridor on which the PIPE LINE is located, or the abandonment by Licensor of said rail
corridor, Licensor shall not be liable to Licensee for any damage of any nature
whatsoever or to refund any payment made by Licensee to Licensor hereunder, except
the proportionate part of any recurring rental charge which may have been paid
hereunder in advance.
17. 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.
18. 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.
19. Any contractor or subcontractor performing work on or in connection with the
PIPE LINE shall for the purpose of this license, be conclusively deemed to be the
servant and agent of Licensee acting on behalf and within the scope of such contractor's
or subcontractor's employment for Licensee .
20. Neither Licensee , nor the heirs , legal representatives, successors or assigns of
Licensee, nor any subsequent assignee, shall underlease or sublet the PIPE LINE nor
assign or transfer this License or any interest herein, without the prior written consent
and approval of Licensor.
21 . It is understood and agreed that this License shall not be placed of public record.
22. All the covenants and provisions of this License shall be binding upon the heirs,
legal representatives, successors and assigns of Licensee. No assignment by Licensee
shall be binding upon Licensor without the written consent of Licensor in each instance.
23. 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 PIPE LINE is
located.
24 . To the maximum extent possible , each prov1s1on 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.
25. 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.
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26. Notwithstanding any other provisions of this license, Licensee shall comply with
all statutes, ordinances, rules, regulations, orders and decisions issued by any federal,
state or local governmental body or agency established thereby relating to Licensee's
use of Licensor's premises hereunder.
27. This license is given by Licensor and accepted by Licensee upon the express
condition that the same 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 that upon the termination of this license in this or
any other manner herein provided, Licensee, upon demand of Licensor, shall abandon
the use of the PIPE LINE and remove the same and restore the rail corridor of Licensor,
as near as possible, to the same condition in which it was prior to the placing of the
PIPE LINE thereunder. In case Licensee shall fail to restore Licensor's rail corridor
within Thirty (30) days after the effective date of termination, Licensor may proceed with
such work at the expense of Licensee. 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 the PIPE LINE is
removed and the rail corridor of Licensor restored as above provided.
28. This License is the full and complete agreement between Licensor and Licensee
with respect to all matters relating to license on the Premises, and supersedes any and
all other agreements between the parties hereto relating to license on the Premises.
Catellus Management Corporation is acting as agent for The Burlington Northern And
Santa Fe Railway Company.
WHEREOF, the parties have executed this agreement in duplicate the day and year first
above written.
THE BURLINGTON NORTHERN AND SANTA FE RAILWAY
COMPANY
By:
By: Catellus Management Corporation
Its Attorney in Fact
4545 Fuller Drive, Suite 105
Irving , TX 75038
James A. Ball, Manager Contracts
CITY OF ENGLEWOOD
Utilities Department
3400 South Elati Street
Englewood, CO 80110-2304
By:
Title:
6 of 6
EXHIBIT "A" AFH-24-97
ATTACHED TO CONTRACT BETWEEN
THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY
AND
CITY OF ENGLEWOOD, CO
FORT WORTH. TEXAS
SCALE: 1 IN.=1.QQ_ FT.
v-4
MAP :3Q
COLORADO DIV. PARCEL ll&
PIKES PEAK SUBDIV. L.S. Dill
DA TE 04/02/199 7
CARRIER CASING CARRIER
PIPE PIPE PIPE
SIZE: 3 Q II 4 8 II LENGTH ON R/W: 1QQ'
CONTENTS: WATER WORKING PRESSURE: 40 PSI
PI PE MATER I AL: DIP STEEL BURY: BASE/RAIL TO TOP OF CAS[NG
SPECIFICATION I GRADE: CL 53 A36 BURY: NATURAL GROUND
WALL THICKNESS: Q, 58 II o. 688 11 BURY: ROADWAY DITCHES
COATING: EPOXY EPOXY CATHODIC PROTECTION
VENTS: NUMBER NIA SIZE __ HEIGHT OF VENT ABOVE GROUND __
NEAR ENGLEWOOD
COUNTY OFARAPAHOE
NOTE: CASlNG TO BE JACKED OR DRY BORED ONLY
STATE OF CO
CASING
PIPE
1 QQ'
9'
7.5 JI MIN
N/A
SPK
DRAWING NO. 1-10401
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Date
May 19, 1997
INITIATED BY
Utilities Department
COUNCIL COMMUNICATION
Agenda Item Subject
Pipe Line License from the
Burlington Northern and Santa
Fe Railway Co.
STAFF SOURCE
Stewart H. Fonda, Director of Utilities
COUNCIL GOAL AND PREVIOUS COUNCIL ACTION
None .
RECOMMENDED ACTION
Council approval, by Ordinance, of the Pipe Line License Agreements between the City of Englewood e (COE) and Burlington Northern and Santa Fe Railway Company (BNSF).
•
BACKGROUND, ANALYSIS, AND ALTERNATIVES IDENTIFIED
In conjunction with the Windermere Project Englewood is trying to upsize and replace the major water
lines. The 24" treated and the 36" raw line should be replaced because the existing pipes are 50
years old pipe. The railroads require water mains be protected within their right-of-way .
The Pipe Line License Agreements enable the City of Englewood Utilities Department a nonexlcusive
license to construct and maintain one 24" and one 36" water pipe line across and along Line Segment
7304, which is south of Tufts Ave and east of Santa Fe. The pipe lines shall be used exclusively for
treated and raw water for the City of Englewood.
FINANCIAL IMPACT
The City shall pay Burlington Northern and Santa Fe Railway Company $2,500 plus $250 contract
and processing fee for each line for a total of $5,500.
LIST OF ATTACHMENTS
Pipe Line License
Ordinance