HomeMy WebLinkAboutPR 15095: KCS - PIPELINE CROSSING CONTRACT-MEMORANDUM ,
CITY OF PORT ARTHUR
UTILITY OPERATIONS DEPARTMENT
TO: Stephen Fitzgibbons, City Manager '
FROM:. Kelly Eldridge, Director of Utility Operations ll ~ n j /J~
DATE: February 16, 2009 ° !~!~'C
SUBJECT: Proposed Resolution No. 15095 °
COMMENTS
RECOMMENDATION
1 recommend that the City Council approve Proposed Resolution No.,15095 authorizing the execution of a
Pipeline Crossing Contract with Kansas City Southern Railway Company a Missouri corporation, to install a
sanitary sewer-force main across their railroad right-of--way near the intersection of 39'h Street. '
BACKGROUND
In one of our Phase II SS rehabilitation projects, we need to cross the KCS Railway ROW with a force main
from our 39`h St. lift station and tie into an existing 24" force main already in this ROW. This project will
eliminate the largest sanitary sewer overflow intown (at 9'h Ave. & 38th St.) by diverting flow from this LS to
bypass two other lifr stations (& their collection systems) and still reach the same discharge point. In years past,.
KCS simply granted a permit for crossings, but now use this `contract' form of permitting. It appears to be
similar to their older regulations, formalizing some sections- and adding others (like their insurance
requirements). Lisa Cotten, the City's Safety & Risk Management Coordinator, has arranged with our
insurance carrier to provide documentation of our insurance coverage for provision to KCS.
BUDGET/FISCAL EFFECT
Mr. M. Qureshi, P.E. has been negotiating terms ofthis crossing permit for several months with KCS, and has
gotten them to reduce their normal $1,000/year fee down to a one time payment of $1.00 for this crossing..
Funds aze available in Fund No. 426-1625-532.83-00, Project No. 426013.
STAFF/EMPLOYEE EFFECT
City staff designed and will oversee this project.
SUMMARY
I recommend that the City Council approve Proposed Resolution No. 15095 authorizing the execution of a
Pipeline Crossing Contract with Kansas City Southern Railway Company a Missouri corporation, to install a
sanitary sewer force main across their railroad right-of--way near the intersection of 39'" Street.
P.R. No. 15095 .
02-16-09
RESOLUTION NO.
A RESOLUTION AUTHORIZING THE EXECUTION OF A
PIPELINE CROSSING CONTRACT IN THE AMOUNT OF $1.00 .
FOR THE 39`h STREET ZIFT -,STATION FORCE MAIN
DIVERSION PROJECT NO. 426013, BETWEEN THE, CITY OF
PORT ARTHUR AND KANSAS. CITY SOUTHERN RAILWAY
COMPANY, A MISSOURI CORPORATION, ?:000UNT NO.426-
1625-532.83-00, PROJECT NO. 426013.
WHEREAS, the City is currently under an Agreed Order with the TCEQ to rehabilitate its
sanitary sewer system; and,
WHEREAS, there exists a need to divert sewage from the 39th St. lifr station in order to
eliminate a constructed Sanitary Sewer Overflow by the construction of a sanitary sewer force main;
and.
WHEREAS, the City of Port Arthur desires to construct such force main across Kansas City
Southern Railway right-of--way near 39`h Street in accordance with the conditions provided in this
Pipeline Crossing Contract; NOW THEREFORE,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PORT ARTHUR:
THAT the City Council of the City of Port Arthur, hereby authorizes the City
Manager of the City of Port Arthur to execute on behalf of the City of Port Arthur a Pipeline
Crossing Contract between the City of Port Arthur and Kansas City Southern Raihvay Company a
Missouri corporation, a copy attached hereto as Exhibit "A"; and,
THAT a copy of the caption of this Resolution be spread upon.the Minutes of the City
Council.
A
a P.R. No. 15095'
' 02-16-09
Page 2 of 2
READ, ADOPTED AND APPROVED THIS day ofd , 2009
at a Regulaz Meeting of the City Council of the City of Port Arthur, Texas, by the following vote:
AYES: Mayor
Councilmembers:
NOES: ~~
Deloiis Prince
Mayor
ATTEST:
Terri Hanks
Acting City Secretary
.APPROVED AS TO FORM:
Mark Sokolow ~ QN ~ ~ ~ / , ~ 1
City Attorney ""'~" /
APPROVED FOR ADMINISTRATION:
Stephen Fitzgibbons
City Manager
~~~~ (~
Kelly Eldri~e
Director of Utility Operations
_ i
EXHIBIT A
(Reference No: 08-207)
PIPELINE CROSSING CONTRACT
THIS AGREEMENT is entered into this 24°i day of February, 2009 by and between THE
KANSAS CITY SOUTHERN RAILWAY COMPANY a Missouri corporation, called herein "Licensor", and
CITY OF PORT ARTHUR, to be addressed at 444 4'h Street, Post Office Box 1089, Port Arthur, Texas 77641,.
called herein "Licensee".
I. Licensor, without any warranty or guaranteebf suitability of the premises for Licensee's or any
other purpose, hereby permits Licensee a license to construct, maintain, operate, use and remove a proposed sewer-- - -
pipeline under Licensor's tracks and right-of--way at Mile Post 780.84 (Beaumont Subdivision) at or near Part Arthur
(Jefferson County), Texas, the course of the pipeline being described as follows:
As indicated on print of drawing no. 08=207, dated January 6, 2009, marked Exhibit "A",
attached hereto and incorporated herein by reference. ~ ,
The rights granted under [his Agreement are subject to all outstanding superior rights whether or not of
record (including those in favor of licensees and lessee"s of Licensor's property, and others) and the right of Licensor
to renew and extend the same, and is made without covenant of title, or for quiet enjoyment. Licensor does not
warrant title and Licensee accepts the rights granted herein and shall make no claim against Licensor Tor deficiency
of title. Licensee acknowledges that the Licensor's interest in the rightofway varies from segmenfto segment and
may include lesser interests than fee title. Licensee shall, at Licensee's sole cost and expense, obtain any and all
necessary rights and consents from parties other than Licensor which may have or claim any right, title or interest in
the property upon which the Licensor's right-of--way is located.
2. The carrier pipe shall consist of 6.9" x 103' PVC C-900 (AWWA) having a minimum wall
thickness of 0.45", which carrier pipe shall be encased in a 10.75" x 103' steel casing pipe having a minimum wall
thickness of 0.25" and a minimum yield point of 35,000 PSI. Maximum operating pressure of the pipelineshall not
be Beater than 150 PSI. Licensee expressly agrees that its under-track installation shall be by dry bore and. jack
method and that no boring or excavation shall occur within Licensor's right-of--way, nor shall any boring occur in
[he track embankment. The angle of the pipeline crossing beneath Licensor's property and tracks shall be no less
than seventy-six degrees (76°).
Construction, maintenance, operation, use and removal of the pipeline shall not endanger the safety or
condition of Licensor's property in any way, or the operation. of trains or cazs, and the pipeline shall be laid at a
minimum depth of six feet (6') belowlhe bottom of Licenser's base of rail and at a minimum depth of three feet (3 °)
below ground level at all other points on the right-of--way. Excavations made on Licensor's .property shall be
promptly refilled by Licensee, the earth well tamped, and the ground left in the same condition as before laying of
the pipeline. - -
The pipeline shall be maintained so as to prevent the escape of its contents being conveyed. Connections or
valves shall not be placed in the pipeline nearer than forty feet (40') from the center of-Licensor's nearest track.
Further, the pipeline and its operation and use, shall comply with any and all applicable governmental laws, rules,
and regulations. The parties hereby incorporate the requirements of 41 C.F.R. §§ 60-1.4(a)(7), 60-250.5, 60-741.5,
and 29 C.F. R. part 470, relating to equal employment opportunity, if applicable. If required by Licensor; gates and
check valves shall be placed in convenient locations.
Page 1 of 6
(Reference No. 08=207)
Construction, maintenance, operation, use and removal of the pipeline shall not endanger the safety or
condition of Licensor's employees or property in any way, or the operation of trains or cars. The location of the
pipeline shall;be marked, with markers maintained and plainly visible aLthe rightof--way lines.
3. Licensee shall promptly make necessary repairs to the pipeline, and, in [he event of Licensee's
failure to do so, repairs may be made by Licensor at Licensee's expense; which cost Licensee expressly agrees to pay
upon presentation of the bill.
Should Licensor at any time decide a change in the location or other changes in the pipeline are desirable, .
Licensor shall make written notification to Licensee requesting such changes. In case Licensee- shall fail within
thirty (30) days after notice from Licensor to make such changes, Licensor shall have the right, but not the duty;
to make such changes a[ Licensee's expense, which expense Licensee expressly agrees to pay upon receipt of the
bill. .
LICENSEE HEREBY ASSUMES ANY AA'D ALL RISKS ARISING OUT OF, INCH)ENT TO, OR
IN ANY WAY CONNECTED WITH. THE CONSTRUCTION, MAINTENANCE, OPERATION, USE OR
REMOVAL OF THE PH'ELINE. IN CONSH)ERATION OF THE PRP/II,EGES HEREIN GRANTED,
LICENSEE, TO THE FULLEST EXTENT PERMITTED BY LAW, EXPRESSLY AGREES TO DEFEND,
INDEMNIFY AND SAVE HARMLESS LICENSOR AND ANY OTHER RAILWAY COMPANIES
OPERATING OVER OR USING THE TRACKS OF LICENSOR, ITS OR THEH2 OFFICERS, AGENTS,
SERVANTS AND EMPLOYEES, SUCCESSORS .AND ASSIGNS, AS THE CASE MAP BE, FROM AND
AGAINST ANY AND ALL ACTIONS; PROCEEDINGS, CLAIMS, DEMANDS, LOSSES, OUTLAYS,
DAMAGES, LIABILITIES AND EXPENSES' (WIIETHER ARISING IN OR BASED UPON TORT,
CONTRACT„ STRICT LLABILITP, OR OTHERWISE) INCLUDING ATTORrNEYS' FEES, WHICH
MAY BE INCURRED ON ACCOUNT OF INJURY TO OR DEATH OF ANY PERSON WHOMSOEVER,
OR LOSS OF OR DAMAGE TO ANY .PROPERTY IN AN'Y WAY, DH2ECTLY OR INDH2ECTLY,
RESULTING FROM, ARISING. OUT OF, OR CONNECTED WITH THE CONSTRUCTION,
MAINTENANCE, OPERATION, USE OR REMOVAL OF THE PH'ELINE BY LICENSEE OR BY
ANYONE ACTING IN ITS BEHALF, ITS OR THEH2, AS THE CASE MAY BE, EXERCISE OF OR
PERFORMANCE OF OR ITS OR THEH2 FAILURE TO EXERCISE OR PERFORD4 ANY OF THE
RIGHTS, PRIVILEGES, DUTIES OR OBLIGATIONS GRANTED OR IMPOSED UNDER THE
PROVISIONS OF THIS AGREEMENT. LICENSEE, TO THE FULLEST EXTENT PERMITTED BY
LAW, AGREES TO DEFEND, INDEIIINIFY AND SAVE HARMLESS LICENSOR AND OTHER
RAILWAY. COMPANIES OPERATING OVER'OR USING THE TRACKS OF LICENSOR, ITS OR
THEH2 OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, SUCCESSORS AND ASSIGNS FROM
AND AGAINST THEHi OWN NEGLIGENCE, EXCEPT FOR SUCH INJURY, DEATH, LOSS OR
DAMAGE WHICH MAY BE DUE TO THE SOLE ACTIVE NEGLIGENCE OF LICENSOR, ITS
OFFICERS, AGENTS, SERVANTS, OR EMPLOYEES. LICENSEE HEREBY RELEASES LICENSOR
AND OTHER RAILWAY COMPANIES OPERATING OVER THE TRACKS FROM ANY DAMAGE TO
THE PIPELINE FROM ANY CAUSE WHATSOEVER. .
4. I[ shall be the exclusive duty and responsibility of Licensee to inspect the property subject to this
Agreement to make sure that i[ is safe forthe entry of its employees, agents and contractors. Licensee shall advise
all of its employees, agents and contractors entering the property of any safety hazards on the property,. including,
without limitation, the presence of moving vehicles, buried cables, tripping hazards and overhead wires. Licensee
Page 2 of 6
(Reference No. 08-207)
shall instruct all. of its employees, agents and contractors entering the property that all persons, equipment and
supplies must maintain a distance of at least twenty-five feet (25') from the centerline of the track unless authorized
by [he on-site railroad flagman to be closer[han twenty-five feet (25')..Licensee shall ensure that no personnel,
equipment or supplies under its control are within the clearance point of the track when moving railroad equipment
may be seen from or heard at the property subject to this Agreement. Finally, Licensee shall adopt, publish and
enforce safety rules for its employees, agents and contractors that will be on Licensoe's right of way consistent with
the requirements of [his Section.
5. Rights herein granted are personal and may not be assigned without Licensor'swritten consent. The
provisions of this Agreement shall be binding upon the successors and permitted assigns of both parties.
6. Upon termination of this Ageement, Licensee-shall immediately remove. the pipeline from the
property of Licensor and restore the property to its original state. Upon failure of Licensee to remove the pipeline
and restore the property to its original state, Licensor may remove it and restore the property to its original state at
Licensee's expense, which cost and expense Licensee agrees to pay.
7. Licensee shall not enter nor commence construction on or under Licensor's property or right-0f-way
unless accompanied by a qualified flagman. Licensee will be responsible for all flagging expenses and arranging
the necessary flagging associated with the installation. Arrangements for flagging protection can be made by
contacting an approved Licensor qualified flagging contractor at least thirty (30) business days in advance of the
commencement of work on or under Licensors property. Licensors designation of a company or individual as a
"qualified" flagman or flagman provider shall be construed solely as Licensors willingness [o allow said individual
or entity to provide flagging services on Licensor's property without further proof of qualification, and shall not be
construed as an endorsement or other verification of the abilities or qualifications of said flagman or flagman
provider by Licensor. All flagmen provided hereunder shall be treated solely as independent contractors of
Licensee, with no relationship to Licensor, for all purposes hereunder. Licensee and its agents, employees and
contractors will clear [he tracks when directed to do so by the flagman. The presence of the flagman will not relieve
Licensee of its duty'to keep. all of its agents, employees and contractors clear of the tracks when trains are in
dangerous proximity [o the licensed area. The actions or inactions of [he flagman shall be construed for all purposes
hereunder as the actions or inactions of the Licensee, and shall be governed by Licensee's duties of defense,
indemnification, and saving harmless under Section 3 of [his Agreement
Licensor will provide, at Licensee's expense; an inspector to oversee Licensee's work on Licensor's
property. To enable Licensor to make an inspector available [o oversee [he work that is to be performed under
this Agreement, Licensee must.submit a written scheduling request to Licensor's scheduling agent, which request
is received by [he scheduling agent a minimum of thirty (30) Business Days before Licensee proposes to
commence work on Licensoes property. (A "Business Day" is any day Monday through Friday which is neither
a federal holiday nor a state holiday at [he address of Licensors scheduling agent stated below.) The request
must contain Licensee's name, the date of this Agreement, the location of the work to be performed, and how
many consecutive Business Days will be required for,Licensee to complete the work. Licensee's written request
must be delivered to Licensors scheduling agent at the following location:
Mr. Marc Villines
Bartlett & West, Inc..
1200 SW Executive Drive
Topeka, Kansas 66615
Page 3 of 6
(Reference No. 08-207)
Phone: 785-272-2252, ext. 110
Fax: 785-228-3298
Email kcsrequests@bartwest.com
If Licensee's scheduling request fails to reach Licensor's scheduline agent at least thirty (30) Business
Days before Licensee's proposed commencement of work Licensor may if it is unable to obtain an insoector
suitable to Licensor refuse to allow commencement of the work on the Licensee's proposed corrunencement date
If Licensor will no[ allow the work to proceed on Licensee's proposed commencement date because the
scheduling request did not reach Licensor's scheduling agent in time, Licensor will inform Licensee of this fact as
promptly as possible and work with Licensee to arrange an alternative commencement date for the work.
The inspector will remain at the site on a reasonably continuous basis to oversee the work, and charges
will accrue for each day spent awaiting the completion of the work and the installation of appropriate signs
marking where Licensee's facilities enter and leave Licensor's right of way. Licensee will, within thirty. (30) days
of receipt of a bill from Licensor specifying in reasonable detail Licensors costs and expenses of providing the
inspector, reimburse Licensor for all of Licensor's costs and expenses of providing an inspector.
Once Licensee has submitted its scheduling request to Licensor's agent, should Licensee require a change to
the scheduled date, Licensee shall provide Licensor's scheduling agent at least two (2) Business Days' notice prior to
the requested start date of the work If Licensee fails to provide hvo (2) Business Days' notice of the change, Licensee
shall be charged, and agrees to pay, the daily rate, and any travel costs actually incurred, for the inspector for one day.
8. Licensee agrees to pay to Licensor for the use of Licensor's right of way and the privilege hereby
granted aone-time'fee of One and 00/100 Dollars ($1.00). Licensor reserves the right to change f_ee as conditions
warrant upon thirty (30) days notice in writing to Licensee.
9. This Agreement shall continue in force for one (1) year and thereafrer until terminated by thirty (30)
days notice in writing given by either party to the other.
10. Environmental Protection: Licensee shall not permit hazardous waste, hazardous. substances or
hazardous materials (as those teens are defined in any federal, state or local law, rule, regulation or ordinance) on or
in the area covered by this Agreement without the wrtten consent of Licensor. -
Licensee shall at all times keep the.area covered 6y this Agreement in a safe, clean and sanitary condition,
and shall not mutilate, damage, misuse, -alter or permit waste therein. Should any discharge, leakage, spillage or
emission of any hazardous waste; hazardous substance or hazardous material or pollution of any kind occur upon, in,
into, under or from [he area covered by this Agreement due to Licensee's use and occupancy thereof, Licensee, at its
sale cost and expense, shall clean all property affected thereby, to the satisfaction of.Licensor and any govenunental .
body having jurisdiction [hereover. '
Licensee shall comply with all applicable ordinances, rules, regulations; requirements and laws whatsoever
including (by way of illustration only and not bq way of limitation) any governmental authority or court controlling
environmental standards and conditions on the premises and shall furnish satisfactory evidence of such compliance
upon request by Licensor. IF, AS A RESULT OF LICENSEE'S OPERATION HEREUNDER, ANY SUCH
ORDINANCE, RULE; REGULATION, REQUII2EMENT, DECREE,. CONSENT DECREE, JUDGMENT,
PERMIT OR LAW IS VIOLATED, OR IF, AS A RESULT OE ANY ACTION BY LICENSEE, ANY
' Page 4 of 6
(Reference No. 08-207)
HAZARDOUS OR TOXIC WASTE, MATERIALS OR SUBSTANCES SHOULD ENTER ~OR
OTHERWISE AFFECT ANY PART OF THE AREA COVERED BY THIS AGREEMENT (INCLUDING
SURFACE, SUBSURFACE, AIRBORNE AND/OR GROUND CONTAMINATION), LICENSEE SHALL
DEFEND, INDEMNIFY AND SAVE HARMLESS LICENSOR FROM AND AGAINST ANY PENALTIES,
FINES, COSTS, RESPONSE, REMEDIAL, REMOVAL `AND CLEAN-UP COSTS, CORRECTIVE
ACTION, NATURAL RESOURCE DADiAGE AND DAMAGES AND EXPENSES OF ANY OTHER
NATURE WHATSOEVER, INCLUDING LEGAL FEES AND COURT COSTS, IMPOSED UPON OR
INCURRED BY LICENSOR, CAUSED BY, RESULTING FROM OR.IN.CONNECTION WITIi-SUCH
VIOLATION OR VIOLATIONS.
FOR THE PURPOSES OF THIS ENVH2ONMENTAL PROTECTION SECTION, LICENSEE
AGREES TO DEFEND, INDEMNIFY AND SAVE HARMLESS LICENSOR FROM AND AGAINST ANI'
AND ALL CLAIMS, DEMANDS, ACTIONS; LIABILITY, RESPONSIIIILITY AND CAUSES OF
ACTION (R'HETHER ARISING IN OR OUT OF TORT, CONTRACT, STRICT LIABILITY, OR
OTHERWISE) ASSERTED AGAINST THEM FOR DEATH; INJURY, LOSS OR DAMAGE RESULTING
TO LICENSOR'S EMPLOYEES OR PROPERTY, OR TO LICENSEE OR LICENSEE'S EMPLOYEES
OR PROPERTY, OR TO ANY OTHER PERSONS OR THEH2 .PROPERTY, AND FOR ALL
PENALTIES, FINES, COSTS, RESPONSE, REMOVAL, .REMEDIAL AND CLEAN UP COSTS,
CORRECTIVE ACTION, NATURAL RESOURCE DAMAGE AND DADiAGES AND EXPENSES OF
ANY OTHER NATURE WHATSOEVER, INCLUDING LEGAL FEES AN'D COURT COSTS, ARISING
FROM, RELATED TO OR HAPPENING IN CONNECTION WITH THE USE. OF THE AREA
COVERED BY THIS AGREEMENT BY LICENSEE AND. ITS AGENTS,. SERVANTS, EMPLOYEES,
CONTRACTORS AND REPRESENTATIVES.
FOR THE PURPOSES OF THIS ENVIRONMENTAL PROTECTION `SECTION',. LICENSEE
FURTHER AGREES THAT ITS OBLIGATION OF DEFENSE, INDEMNIFICATION AND SAVING
HARMLESS HEREUNDER SHALL BE STRICT AND ABSOLUTE AND SHALL REMAIN IN FULL
EFFECT H2RESPECTIVE OF ANY NEGLIGENCE ON THE PART'OF LICENSOR.
11. So long as this Agreement is in effect. Licensee agrees to maintain comprehensive general
liability, and contrac[uaP liability insurance with minimucri limits of two million dollars ($2,000,000.00) per
occurrence, four million dollars ($4,000,000.00) aggregate. Licensee shall provide automobile liability coverage
in the amount of one million dollars ($1,000,000.00) combined single limit In addition, Licensee shall provide or
require minimum statutory worker's compensation coverage for all covered employees who are on Railway
Company's property. Licensee must also provide Railroad Protective Liability Insurance naming the Railway
Company as the Irisured with coverage of at least two million dollars ($2,000,000.00) per occurrence and six
million dollars ($6,000,000.00) aggregate. Each policy. must be issued by financially. reputable insurers licensed
to do business in all jurisdictions where work is performed during the term of the Agreement. A certificate of
insurance will 'be provided to Railway Company by Licensee, reasonably satisfactory in form and content,
evidencing that all required coverage is in force and have been endorsed to provide that no policy will be canceled
or materially altered without first giving the Railway Company thirty (30) day's prior written notice. Commercial
general- liability policy will name Railway Company as an additional insured and, to the fullest extent allowed
under law, will contain a waiver of subrogation in favor of Railway Company. All policies will be primary to any
insurance or self-insurance the Railway Company may maintain for acts or omissions of Licensee or anyone for
whom Licensee is responsible. Licensee will include copies of relevant endorsements or policy provisions with
the required certificate of insurance. Nothing contained in this Section limits Licensee's liability to the Railway
• Page 5 of 6
(Reference No. 08-207)
Company to the limits of insurance certified or carried by: Licensee. If Licensee utilizes subcontractors in
performance of this Agreement; the subcontractors must meet the same insurance requirements as the Licensee. If
a subcontractor does not meet [he coverage requirements of this Section, subcontractor must either supplement [he
deficient areas of coverage or Licensee must certify that Licensee has acquired sufficient coverage to supplement n
the deficiency of subcontractor.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in duplicate by
their authorized representatives as of the date first above written.
THE KANSAS CITY SOUTHERN RAILWAY COMPANY
By:
Title:
Date:
CITY OF PORT ARTHUR-
. ~. By:
' Title:
Date:
Page 6 of 6
