R-04-02-26-8E6 - 2/26/2004RESOLUTION NO. R -04-02-26-8E6
WHEREAS, Union Pacific Railroad Company ("Union Pacific") and the
City of Round Rock, ("City") previously entered into that one certain
Pipeline License Agreement ("Agreement") dated July 24, 1985, whereby
Union Pacific granted to the City the right to install and maintain a
water pipeline in its right-of-way adjacent to McNeil Road, and
WHEREAS, the Agreement provided that the City would pay to Union
Pacific the sum of $750.00 per year for the rights granted therein, and
WHEREAS, union Pacific assigned its rights to receive payments to
Strong Capital I ("Strong"), a Delaware limited partnership, and
WHEREAS, Strong and the City desire to amend the Agreement to
provide for a discounted lump sum payment, and
WHEREAS, the parties have negotiated a Rental Payment Amendment
("Amendment") that the City Council wishes to approve, Now Therefore
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS,
That the Mayor is hereby authorized and directed to execute on
behalf of the City a Rental Payment Amendment with Strong Capital I, a
copy of same being attached hereto as Exhibit "A" and incorporated
herein for all purposes.
The City Council hereby finds and declares that written notice of
the date, hour, place and subject of the meeting at which this
Resolution was adopted was posted and that such meeting was open to the
public as required by law at all times during which this Resolution and
the subject matter hereof were discussed, considered and formally acted
upon, all as required by the Open Meetings Act, Chapter 551, Texas
Government Code, as amended.
vPPDesktop OT,WA/WORLDOYin DOX/RESOLUTS/R40226E6.WPDis is
RESOLVED this 26th day of February, 2004.
AT.' T:
WELL, Mayor
City of Round Rock, Texas
CHRISTINE R. MARTINEZ, City Secretar
RENTAL PAYMENT AMENDMENT
This Rental Payment Amendment ("Amendment") is entered into as of this day of January,
2004 by and between Strong Capital I, a Delaware limited partnership, ("Strong") and City of Round
Rock, a Texas home rule municipality. ("Licensee").
RECITALS
The Union Pacific Railroad Company ("Union Pacific") or its predecessors in interest and
Licensee or its predecessors in interest are parties to that one certain license agreement described in
Exhibit A (attached hereto) ("Agreement") pursuant to which Licensee was granted certain rights.
Union Pacific has assigned Strong all of the benefits, privileges, rights and interest of Union
Pacific under the Agreement except for certain retained rights; as set forth in a document, a copy of which
is attached hereto as Exhibit B.
Licensee and Strong desire to amend the Agreement as provided herein;
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, Licensee and Strong hereby agree as follows:
1. Contemporaneous with the execution and return of this Amendment, Licensee shall pay
Strong, the sum set forth in Exhibit C ("Discounted Rental").
2. In consideration of the payment of the Discounted Rental, Licensee shall not be obligated
to pay rental payments under the Agreement with respect to the period from the "Effective Date" until the
"Paid up Period" (both defined on Exhibit "C"); provided, that Licensee is not relieved from the
obligation, if any, under the Agreement to pay Union Pacific for services provided by Union Pacific, to
reimburse Union Pacific for amounts paid by Union Pacific, pay Union Pacific any administrative charges
for modifications to the license or pipeline, or to pay any rentals that are or will become due for any periods
before or after, but not during, the Paid -Up Period. In addition, Strong hereby waives its right to terminate
the Agreement during the Paid Up Period, except for uncured default and abandonment as set forth in
paragraph 9 of the Agreement.
3. This Amendment does not amend, release, or modify or otherwise affect the rights of
Union Pacific to terminate the Agreement during the Paid -Up Period if such termination is necessary or
desirable by Union Pacific, at its sole discretion, to accommodate Union Pacific's operations or to enhance
safety or effect a sale of the site covered by the Agreement, provided that if the Agreement is terminated
within ten (10) years after the effective date of this Amendment (such lesser period is herein called the
"Refund Period") then Strong shall refund the unearned Discount Rental, if any, prorated over the Refund
Period calculated as of the date of such termination. For instance, if Audit # CA87807 is terminated by
Union Pacific, then the pro rata portion would be the sum resulting from multiplying $1,327.80 by ten less
the number of years elapsed from the date hereof to the effective date of such termination as provided in the
Agreement. For example, if seven years have elapsed at the time of termination and/or the date in which
the Union Pacific causes Licensee to remove the structure as provided in the Agreement, the refund amount
would be $3,983.40.
2004.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of January
500806 000002 Dallas 1308700.1
EXHIBIT
1
RAILROAD MANAGEMENT
As agent for
STRONG CAPITAL I
"LICENSEE"
By: By:
Name: Name:
Title: Title:
Date: Date:
500806 000002 Dallas 1308700.1 2
xi-tagrr ' `A
MDE- Pipe Line: ROUr.LJ RP"L, TEXAS
City of Round Rock
1,414' west of MP 162
Form 20006
3/71
PIPE LINE LICENSE
THIS AGREE E T, executed in duplicate , this 24th day of July , 19 85,
by and between MISSOURI PACIFIC RAILROAD COMPANY ,
a Delaware corporation, hereinafter called "Carrier", to be addressed at
210 North 13th Street, St. Louis, Missouri 63103, and CITY OF ROUND ROCK, TEXAS
, a municipal corporation,
hereinafter called "Licensee", to be addressed at 214 East Main Street, Round Rock, Texas
78664 , WITNESSETH:
RECITAL S:
Licensee has requested of Carrier license and permission to install,
keep, maintain, use and remove,for the purpose of conveying potable water
, its ductile iron pipe line , 12 inches in diam-
eter, on, along, across and beneath the surface of certain of Carrier's
right of way lands at or near Round Rock ,Williamson County , Texas,
to which Carrier is agreeable but solely upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and of the covenants and agreements
hereinafter contained, it is agreed:
1. Carrier hereby grants, solely to the extent of its right, title and interest,
and Licensee hereby accepts license and permission to install, keep, maintain, use, repair,
renew and ultimately remove its own one certain continuous line of ductile iron
pipe, 12 inches in diameter, and appurtenances, hereinafter called "Pipe Line",
for the purpose of conveying potable water at a maximum pressure of
100 pounds per square inch, on, along, across and beneath the surface of certain of
Carrier's right of way lands, as well as crossing beneath Carrier's track ,hereinafter col-
lectively called "Premises", situated between Engineer's Chaining Station 8546+25
(Mile Post 161.86) and Engineer's Chaining Station 8572+10 (Mile Post 162.3 ),
MIMORKXMXXXX vammommy{ xX , in
Williamson County X2CUIRICI2K Texas , at or near Round Rock .
The license and permission hereinabove granted to Licensee are subject and subordi-
nate, however, to the rights in Carrier, its successors and assigns, its lessees and
licensees, to construct, reconstruct, operate, use, maintain, repair and renew on, beneath
or above Premises any telephone, telegraph, power and signal lines and poles, tracks,
roadways, pipe lines and facilities of similar or different character as are now or in
the future may be located on, beneath or above any of Premises.
The license and permission herein granted (a) are limited to such title and rights
as the Carrier may have in the Premises concerned, and the Licensee shall secure such
permission as may be necessary on account of any other existing rights (including, without
limitation, rights of tenants, subtenants, licensees, and others occupying or using the
Premises concerned with Carrier's permission) and (b) are granted without any warranty,
express or implied. Licensee hereby agrees to exercise the herein -granted rights in such
a manner as not to interfere in any way with any existing prior rights. No damages shall
be recoverable from Carrier because of any dispossession of Licensee or because of any
failure of, defect in, or extinction of Carrier's title.
2. Licensee shall pay and Carrier shall accept the sum of $ 100.00 as a
one-time fee as reimbursement for clerical, administrative and handling expenses plus
- 1 -
Form 20006
3/71
the sum of $ 750.00 annually in advance for the privilege granted herein. It is
understood and agreed that said annual sum may be redetermined by Carrier at the end of
each five-year perigd.this agreement may be in effect.
3. The approximate location of Pipe Line is
on Carrier's Texas District white
xww XISMD'Xii{X
of District Engineer, Dallas
marked Exhibit "A", attached hereto as part hereof.
shown in
print dated
heavy blue
May 29, 1985 ,
, prepared in Office
Texas
Licensee shall install and construct
Pipe Line in accordance with the plans and details shown on said Exhibit "A".
Pipe Line shall consist of the following items located on Premises:
One proposed 12" ductile iron pipe, entering Carrier's southwesterly right of way at
Engineer's Chainage Station 8572+10, Mile Post 162.3; then traveling northeastwardly
a distance of 2,585 feet to existing 10" waterline and exits Carrier's northeasterly
right of way at Engineer's Chainage Station 8546+25, Mile Post 161.86.
If so requested by Carrier, Licensee shall submit to Carrier all plans and speci-
fications with respect to any work to be performed hereunder, which shall be subject to
Carrier's approval. No provision of this or any other paragraph hereof, nor approval
by Carrier of any of Licensee's plans, as provided herein or elsewhere in this agree-
ment, or of Licensee's undertakings, shall relieve Licensee of any responsibility or
liability. Carrier shall have the right to perform, at the expense of Licensee, any
part of the work which, in Carrier's judgment, is deemed necessary (a) for the better
safety of Carrier's property, traffic, employees and patrons, or (b) to avoid labor
disputes which may adversely affect Carrier.
4. Licensee shall at all times keep Pipe Line in good state of repair. All work
by Licensee hereunder shall be performed in a safe and workmanlike manner. Licensee
shall furnish or do, at Licensee's own cost and responsibility, any and all things and
when and as from time to time required to accomplish whatsoever the Licensee attempts
or is bound to do at any time hereunder. Licensee, at its sole cost, shall adjust Pipe
Line to any physical change; as made at any time in any of Carrier's property; at all
times keeping upper surface of Pipe Line at least four and one-half
feet below bottom of rail thereover, and at least three feet beneath surface of ground
beyond ballast section. Licensee shall cause Pipe Line, before being used for anything
inflammable, to conform substantially to the requirements shown on Carrier's Standard
Form No. 24002, marked Exhibit "B", attached hereto as part hereof. Said things,
including the time and manner of doing any work, each shall conform to the requirements
of Carrier as well as of any State, Federal or Municipal authority. Carrier may, act-
ing for Licensee, furnish or do, and Licensee shall pay and bear the cost of, anything
which, herein required of Licensee at any time, either shall not be furnished or done
within 30 days following Carrier's written request therefor or shall be undertaken by
Carrier at Licensee's request; and Licensee on request shall in advance deposit with
Carrier the estimated cost thereof. If deposit be less than actual cost, Licensee shall
pay the difference; if more, Carrier shall repay difference. Payments hereunder shall
be made by Licensee within twenty days following receipt of bill. Licensee shall pay
cost to Carrier for all labor, including wages of foremen, plus 10% to cover supervision
and accounting, plus vacation allowances, paid holidays and health and welfare benefit
payments applicable to said labor, Carrier's cost price of all materials f.o.b. Car-
rier's rails, plus 10% to cover handling and accounting, plus freight at tariff to point
- 2 -
Form 20006
7/69
of use, and excise taxes applicable to said labor and materials. Carrier may con-
nect with and discharge sewage into Pipe Line while serving as sewer.
No facilities shall be erected or installed, and no materials stored or
placed, or equipment operated, nor shall any person acting for Licensee's account
be permitted to be, closer than ten feet (measured horizontally on the ground)
from the nearest rail. No facilities shall be attached to or placed upon any of
Carrier's buildings, structures or improvements. Licensee shall not cross Carrier's
tracks with heavy equipment except at public road crossings, or at such locations
and on such terms and conditions as Carrier may specifically approve.
Licensee shall require any of its contractors and subcontractors to observe
and conform to the conditions and requirements specified herein; and for the pur-
poses of the safety, protective and indemnification provisions hereof, such
contractors and subcontractors, their agents, servants and employees, and other
persons on the Carrier's Premises at the invitation of the Licensee, its contrac-
tors or subcontractors, shall be deemed the agents or employees of the Licensee.
Licensee shall install and at all times keep and maintain Pipe Line in a safe
condition, so that same shall not interfere with, impair, endanger, or prevent the
safe and continuous use and operation of the railroad and property of Carrier, and
shall in any event upon notice in writing from the Carrier promptly maintain, repair,
remove, strengthen or adjust Pipe Line, or any part thereof.
Pipe Line shall, where possible, be installed by boring or jacking.
Where any work in connection with Pipe Line involves excavation, trenching
or boring, plans therefor (including details for protecting Carrier's operations)
shall be submitted to Carrier for advance approval, and special care shall be taken
by Licensee to protect Carrier's property and operations and in backfilling and
securely and soundly tamping suitable earth or fill to prevent washouts, under-
mining or other damage to Carrier's roadbeds, tracks and appurtenances thereon.
Promptly following performance of any work under this agreement, Licensee
shall do all things necessary to restore Premises and any property thereon to an
adequate and proper condition in accordance with good engineering practices.
Licensee shall, except in emergencies, give not less than L.8 hours' written
notice to Carrier of the day and hour it proposes to undertake any construction or
maintenance work (other than minor day-to-day maintenance or inspections), and in
the event of emergency shall exert all effort to notify Carrier with utmost prompt-
ness. Licensee shall maintain close contact and liaison with Carrier's representative
as to the time and manner of performing work on or about Carrier's tracks and prop-
erty so as to minimize interference with Carrier's property, traffic and operations.
Licensee shall suspend construction or repair operations at the direction of the
Carrier when deemed necessary to protect Carrier's property and traffic.
5. If and when from time to time and during such times as Licensee's or its
contractor's operations are of such a nature as to create hazards to operations of
Carrier's engines, cars, trains and employees on and along Carrier's main or other
tracks, the Carrier is hereby granted authority and permission, at Licensee's sole
cost, risk and responsibility, to provide such number of flagmen or watchmen or
3
Form 20006
7/69
other protective services, devices or structures, such as falsework or shoring,
and to make such alterations or adjustments in.its tracks or other facilities
and in the facilities of others on or near Premises, as in the opinion of Car-
rier's Superintendent may be required to protect against such hazards.
6. Licensee hereby agrees to reimburse Carrier for any cost incurred
by Carrier of relocating any signal or telegraph or other communication wire
and pole lines made necessary by the installation of Pipe Line, and for the
repair or replacement of any of Carrier's or any third party's other and dif-
ferent facilities damaged or destroyed or lost by reason of the performance
of any undertaking or the exercise of any of the rights herein granted.
7. The Carrier shall not be responsible for damage to property or
injuries to persons which may arise from or be incident to Licensee's exer-
cise of any permission granted herein.
Licensee further agrees to release, defend, indemnify and hold harmless
the Carrier from and against all costs, expenses, claims, liability arising
from (a) breach of any covenant herein by Licensee, or (b) damage to or destruc-
tion of property owned by or in the care, custody or control of the Carrier, or
(c) liability of the Carrier for (i) bodily injury to or death of its employees
or third persons, and (ii) damage to or destruction of property of third per-
sons, in any manner caused by, arising from, or in connection with the construction,
installation, operation, maintenance, repair, use, presence or removal of the
Pipe Line on, along, across and beneath Carrier's Premises, whether caused or
contributed to by any act, omission or negligence of the Carrier, or otherwise;
as well as (d) liability of the Carrier, howsoever caused and irrespective of
whether caused solely or in part by an act, omission or negligence of the Car-
rier or condition or state of repair of its property and right of way, (i) for
bodily injury to or death of agents, servants, employees or invitees of the
Licensee or of its contractors while on, about, or adjacent to the right of
way of the Carrier for any purpose related to the Pipe Line, (ii) for damage
to or destruction of property of or in the care, custody or control of the
Licensee and its contractors, subcontractors or invitees, or their respective
agents, servants and employees, while on, about or adjacent to the right of
way of the Carrier for any purpose related to the Pipe Line, or (iii) arising
from damage or deterioration to, leakage from, or interruption of, the Pipe
Line or its contents. It is the intention hereof to cover all hazards and
exposure of the Carrier by reason of or in connection with the Pipe Line, and
to fully protect the Carrier from and against all damages, losses, expenses,
claims, costs and liability it would not have suffered, sustained or incurred
but for the permission herein granted or the installation, operation, main-
tenance,euse, presence or existence of the Pipe Line on, along, across, beneath,
about or adjacent to Carrier's Premises. Licensee also agrees to assume all
risk of loss or damage to Pipe Line and the contents thereof regardless of how
caused and regardless of any negligence on the part of Carrier, its agents,
servants or employees, or otherwise.
For purposes hereof, the term "Carrier" shall include MISSOURI PACIFIC
RAILROAD Company and its subsidiary
4
Form 20006
7/69
and affiliated companies and any other carrier operating upon the tracks and
right of way of MISSOURI PACIFIC RAILROAD
Company in the territory concerned, and the respective
officers, employees and servants of any thereof; and damages and liability
shall include the defense and settlement of claims and attorneys' fees and
expenses, etc., in connection therewith.
8. If and when at any time during installation of Pipe Line or at any
other time during term of this License, because of damage to Carrier's main
track or roadbed by reason of breakage of or leakage from the Pipe Line or
from any other reason incident to the existence and maintenance of Pipe Line,
Carrier's Superintendent shall be of the opinion that such a hazard exists as
to make unsafe or temporarily impossible the operation of Carrier's engines
or trains along Carrier's tracks in the vicinity of the Pipe Line and, because
thereof, the said Superintendent shall cause said engines or trains to be
detoured over another route, Licensee shall pay to Carrier, promptly follow-
ing receipt of bill therefor, the additional expense which Carrier shall incur
as a result of having to detour such engines or trains.
If, in Carrier's opinion, changes in its property make it impractical
or unsafe to continue the Pipe Line on Carrier's property, Carrier shall have
the right to terminate this agreement on written notice to Licensee.
Licensee agrees, upon request of Carrier, to take out and keep in force
and effect, for such period as Carrier may require, Contractual Liability
Insurance covering Licensee's liability under this agreement. In the event
that Licensee is a State, City, County or other governmental entity, Licensee
shall procure or cause its contractor to procure Railroad Protective Liability
Insurance in lieu of Contractual Liability Insurance. Such insurance shall
be in form and with such Insurance Company or Companies as shall be satisfactory
to Carrier, and in amounts of $500,000/$1,000,000 for bodily injury coverage
and $500,000/$1,000,000 for property damage coverage (and also the same for
physical damage to property coverage if Railroad Protective Liability Insur-
ance is involved) unless otherwise specified by Carrier.
9. Term hereof shall begin with July 24 19 85 , and continue
thereafter until concluded (1st) by expiration of thirty days fol-
lowing serving, by Licensee on Carrier, or vice versa, of written notice of
intention to end term hereof, or (2nd) at Carrier's election without further
notice by expiration of six months without the Pipe Line having been installed
or by Licensee failing (a-1) to cure any default or (a-2) to show statutory
right to install Pipe Line within thirty days following Carrier's
written request therefor, or (3rd) upon the abandonment by Licensee of Prem-
ises for the purposes herein authorized. Any notice of Carrier shall be deemed
served when deposited postage prepaid in U. S. Mail addressed as aforesaid.
Not later than last day of term hereof Licensee shall remove Pipe Line and
restore Premises to a condition satisfactory to Carrier. Any of Pipe Line
not so removed shall at Carrier's election without notice be deemed abandoned.
Covenants herein shall inure to or bind each party's heirs, legal representa-
tives, successors and assigns; provided: no right of Licensee shall be
5
Form 20006
7/69
transferred or assigned, either voluntarily or involuntarily, except by express
agreement acceptable to Carrier. Carrier or Licensee may waive any default at
any time of the other without affecting, or impairing any right arising from,
any subsequent or other default.
10. In the event that Licensee is a City, County, District or other
governmental entity (other than a State or the United States), Licensee,
when returning this agreement to Carrier (signed), shall cause same to be
accompanied by such order, resolution or ordinance of the governing body of
Licensee, passed and approved as by law prescribed, and duly certified, evi-
dencing the authority of the person executing this agreement on behalf of
Licensee with the power so to do.
IN WITNESS WHEREOF, the parties hereto have duly executed this agreement
as of the day and year first hereinabove written.
WITNESSES:
ATTEST:
/,'/Secretary
(Affix Seal
WITNESSES:
MISSOURI PACIFIC RAILROAD COMPANY
General Manager
As Carrier, First Party Herein.
CITY OF ROUND ROCK
)
/1 /4
By
mayor
6
As Licensee, Second Party Herein.
80
UNION PACIFIC RAILROAD COMPANY
Real Estate Department
R. D. Uhrich
Assistant Vice President
J. A. Anthony
Director -Contracts
D. D. Brown
Director -Real Estate
M. W. Casey
General Director -Special Properties
J. P. Gade
Director -Facility Management
ROUND ROCK CITY OF
214 EAST MAIN STREET
ROUND ROCK, TX 78664
1800 Famam Street
Omaha, Nebraska 68102
Fax (402) 997-3801
August 3, 2001
11
J. L Hawkins
Director -operations Support
M. E. Heenan
Director -Administration & Budgets
D. H. Ughtwine
Director -Real Estate
T. K love
Director -Real Estate
License Audit No: CA87807
Folder No: 0136304
Location of Agreement: ROUND ROCK, TX
RE: Assignment of Certain License Rights to Strong Capital I
Primary Purpose of Agreement: ENCROACHMENT - PIPELINE
Bill Description:
Dear Licensee:
Please be advised that certain of the rights and obligations of Union Pacific Railroad Company under the
above referenced License(s) ("License(s)") have been assigned to Strong Capital I effective as of June 22, 2001,
including without limitation, the right (and related obligations) to collect and administer the rental/license fee.
Union Pacific has retained certain rights and related obligations under the License(s), primarily (but not
exclusively) related to Railroad business activities and safety, and protection of Union Pacific and Union Pacific's
right of way or other property from liability, damage, safety risks and unauthorized uses, including, without
limitation, any obligations of the Licensees under the Licenses to comply with Union Pacific's safety rules, to submit
-plans for construction, modification or replacement of Facilities to Union Pacific for review and approval prior to
implementation, to receive prior notice of and/oracoordinate times of entry on Union Pacifi6's rail corridor, and to
arrange for flagging services to be provided by Union Pacific at such Licensee's expense.
Railroad Management Company, LLC has the responsibility for assuming the administration and
implementation of the assigned rights. If you have any questions concerning the above-described transaction, please
contact them at (214) 750-8028 at the following address:
For Information
Attn: Asset Manager
Railroad Management Company LLC
4514 Cole Avenue Suite 1010
Dallas TX 75205
If you have an unpaid bill that you received from Union Pacific, you should make your payment to Union
Pacific. Railroad Management will bill for all future rental/license fees due on or after June 22, 2001, and your
payment for those bills should be forwarded to their lock box at:
For Payments
Railroad Management Company LLC
PO Box 678161
Dallas TX 75267-8161
Federal Tax ID No: 36-4450608
Sincerely,
g_Cuv,s4 1 Crit7i44-7.
James A. Anthony
. Director Contracts_—
]AA\Strong Notifications 5/1/02 — 7/31/02
Exhibit "C"
City of Round Rock
Discounted
Tu
^c
W
N�/
0
N
0
N
C')
N
CV
>
N co
W
�
W
1-
>,
c
0
0
WILLIAMSON
zs
U
ROUND ROCK
N O
O
LL O
Z
0
Cr)
CO
CO
0
CO
ts
COQ
0
(0 01 ti
N N
07 Ce)
T v-
Discounted Rental Total
Administrative Fee
Grand Total
DATE: February 20, 2004
SUBJECT: City Council Meeting - February 26, 2004
ITEM: 8.E.6. Consider a resolution authorizing the Mayor to execute a
Rental Payment Amendment with Strong Capital I regarding a
water pipeline adjacent to McNeil Road.
Department: Water and Wastewater Utilities
Staff Person: Tom Clark, Utilities Director
Justification: This Rental Payment Agreement will allow the City to make a one
time payment to Strong Capital I for a property lease for a 12" water
line located on property owned by the Union Pacific Railroad
Company.
Funding:
Cost: $13,267.00
Source of funds: Costs will by paid from the Utilities Fiscal Year 2003-
2004 Operating Budget.
Outside Resources: Strong Capital I
Union Pacific Railroad Company
Background Information: The City has a lease agreement with the Union Pacific
Railroad Company for a 12" water line located on its
property. Union Pacific has contracted management of
its property to Strong Capital I. The City has been
paying Union Pacific $750 annually for the lease. Strong
attempted to increase the annual payment from $750
annually to $7,569 annually. Staff negotiated a one-time
payment of $13,267 that will pay for the lease until
2025.
Public Comment: N/A
EXECUTED
DOCUMENT
FOLLOWS
RENTAL PAYMENT AMENDMENT
FEBRUARY
This Rental Payment Amendment ("Amendment") is entered into as of this ado day of 4trnmiry,
2004 by and between Strong Capital I, a Delaware limited partnership, ("Strong") and City of Round
Rock, a Texas home rule municipality. ("Licensee").
RECITALS
The Union Pacific Railroad Company ("Union Pacific") or its predecessors in interest and
Licensee or its predecessors in interest are parties to that one certain license agreement described in
Exhibit A (attached hereto) ("Agreement") pursuant to which Licensee was granted certain rights.
Union Pacific has assigned Strong all of the benefits, privileges, rights and interest of Union
Pacific under the Agreement except for certain retained rights; as set forth in a document, a copy of which
is attached hereto as Exhibit B.
Licensee and Strong desire to amend the Agreement as provided herein;
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, Licensee and Strong hereby agree as follows:
1. Contemporaneous with the execution and return of this Amendment, Licensee shall pay
Strong, the sum set forth in Exhibit C ("Discounted Rental").
2. In consideration of the payment of the Discounted Rental, Licensee shall not be obligated
to pay rental payments under the Agreement with respect to the period from the "Effective Date" until the
"Paid up Period" (both defined on Exhibit "C"); provided, that Licensee is not relieved from the
obligation, if any, under the Agreement to pay Union Pacific for services provided by Union Pacific, to
reimburse Union Pacific for amounts paid by Union Pacific, pay Union Pacific any administrative charges
for modifications to the license or pipeline, or to pay any rentals that are or will become due for any periods
before or after, but not during, the Paid -Up Period. In addition, Strong hereby waives its right to terminate
the Agreement during the Paid Up Period, except for uncured default and abandonment as set forth in
paragraph 9 of the Agreement.
3. This Amendment does not amend, release, or modify or otherwise affect the rights of
Union Pacific to terminate the Agreement during the Paid -Up Period if such termination is necessary or
desirable by Union Pacific, at its sole discretion, to accommodate Union Pacific's operations or to enhance
safety or effect a sale of the site covered by the Agreement, provided that if the Agreement is terminated
within ten (10) years after the effective date of this Amendment (such lesser period is herein called the
"Refund Period") then Strong shall refund the unearned Discount Rental, if any, prorated over the Refund
Period calculated as of the date of such termination. For instance, if Audit # CA87807 is terminated by
Union Pacific, then the pro rata portion would be the sum resulting from multiplying $1,327.80 by ten less
the number of years elapsed from the date hereof to the effective date of such termination as provided in the
Agreement. For example, if seven years have elapsed at the time of termination and/or the date in which
the Union Pacific causes Licensee to remove the structure as provided in the Agreement, the refund amount
would be $3,983.40.
fg1312UPRY
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of Jay alio ,
2004.
. -TAk1S AwtE1\1br li-9s NoT AYNd,Ekip,i\\Ct1Fy c2
C%t%t'Eiz.%SE 14c��.Cf' Md 4 OF i4tE 4-1/4-E1LVistctlSS OF
ME PcE.CZE'EME rr VXPIZ,,S•'cly PRGV10EE.
vy
500806 000002 Dallas 1308700.1
1
RAILROAD MANAGEMENT
As agent for
STRONG CAPITAL I
By: '
Name: C 2t,/ j. 64 N' ivy LE //r X- J LL
"LICENSEE"
Title: /-1-7 N44(C it Title:
Date: . i / A 1 Y Date:
500806 000002 Dallas 1308700.1 2
mm- yDg.)
.,xRiPrr ' A
MDE- Pipe Line: ROULL, RO"` ., TEXAS
City of•Round Rock
1,414' west of MP 162
PIPE LINE LICENSE
Form 20006.
3/71
THIS AGREEMENT, executed in duplicate , this 24th day of July , 19 85,
by and between MISSOURI PACIFIC RAILROAD COMPANY ,
a Delaware corporation, hereinafter called "Carrier", to be addressed at
210 North 13th Street, St. Louis, Missouri 63103, and CITY OF ROUND ROCK, TEXAS
, a municipal corporation,
hereinafter called "Licensee", to be addressed at 214 East Main Street, Round Rock, Texas
78664 , WITNESSETH:
RECITAL S:
Licensee has requested of Carrier license and permission to install,
keep, maintain, use and remove,for the purpose of conveying potable water
, its ductile iron pipe line , 12 inches in diam-
eter, on, along, across and beneath the surface of certain of Carrier's
right of way lands at or near Round Rock , Williamson County , Texas,
to which Carrier is agreeable but solely upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and of the covenants and agreements
hereinafter contained, it is agreed:
1. Carrier hereby grants, solely to the extent of its right, title and interest,
and Licensee hereby accepts license and permission to install, keep, maintain, use, repair,
renew and ultimately remove its own one certain continuous line of ductile iron
pipe, 12 inches in diameter, and appurtenances, hereinafter called "Pipe Line",
for the purpose of conveying potable water at a maximum pressure of
100 pounds per square inch, on, along, across and beneath the surface of certain of
Carrier's right of way lands, as well as crossing beneath Carrier's track ,hereinafter col-
lectively called "Premises", situated between Engineer's Chaining Station 8546+25
(Mile Post 161.86) and Engineer's Chaining Station 8572+10 (Mile Post 162.3 ),
MIXANXXXXXXX )900XION2MXX X;E 7 X , in
Williamson County XNXIEMI0E21 Texas , at or near Round Rock
The license and permission hereinabove granted to Licensee are subject and subordi-
nate, however, to the rights in Carrier, its successors and assigns,its lessees and
licensees, to construct, reconstruct, operate, use, maintain, repair and renew on, beneath
or above Premises any telephone, telegraph, power and signal lines and poles, tracks,
roadways, pipe lines and facilities of similar or different character as are now or in
the future may be located on, beneath or above any of Premises.
The license and permission herein granted (a) are limited to such title and rights
as the Carrier may have in the Premises concerned, and the Licensee shall secure such
permission as may be necessary on account of any other existing rights (including, without
limitation, rights of tenants, subtenants, licensees, and others occupying or using the
Premises concerned with Carrier's permission) and (b) are granted without any warranty,
express or implied. Licensee hereby agrees to exercise the herein -granted rights in such
a manner as not to interfere in any way with any existing prior rights. No damages shall
be recoverable from Carrier because of any dispossession of Licensee or because of any
failure of, defect in, or extinction of Carrier's title.
2. Licensee shall pay and Carrier shall accept the sum of $ 100.00 as a
one-time fee as reimbursement for clerical, administrative and handling expenses plus
- 1 -
Form 20006
3/71
the sum of $ 750.00 annually in advance for the privilege granted herein. It is
understood and agreed that said annual sum may be redetermined by Carrier at the end of
each five-year period:this agreement may be in effect.
3. The approximate location of Pipe Line is shown in heavy blue ,
on Carrier's Texas District white print dated May 29, 1985 ,
NUWAINAXXXIK 30WECLOODUOCC , prepared in Office
of District Engineer, Dallas , Texas ,
marked Exhibit "A", attached hereto as part hereof. Licensee shall install and construct
Pipe Line in accordance with the plans and details shown on said Exhibit "A".
Pipe Line shall consist of the following items located on Premises:
One proposed 12" ductile iron pipe, entering Carrier's southwesterly right of way at
Engineer's Chainage Station 8572+10, Mile Post 162.3; then traveling northeastwardly
a distance of 2,585 feet to existing 10" waterline and exits Carrier's northeasterly
right of way at Engineer's Chainage Station 8546+25, Mile Post 161.86.
If so requested by Carrier, Licensee shall submit to Carrier all plans and speci-
fications with respect to any work to be performed hereunder, which shall be subject to
Carrier's approval. No provision of this or any other paragraph hereof, nor approval
by Carrier of any of Licensee's plans, as provided herein or elsewhere in this agree-
ment, or of Licensee's undertakings, shall relieve Licensee of any responsibility or
liability. Carrier shall have the right to perform, at the expense of Licensee, any
part of the work which, in Carrier's judgment, is deemed necessary (a) for the better
safety of Carrier's property, traffic, employees and patrons, or (b) to avoid labor
disputes which may adversely affect Carrier.
4. Licensee shall at all times keep Pipe Line in good state of repair. All work
by Licensee hereunder shall be performed in a safe and workmanlike manner. Licensee
shall furnish or do, at Licensee's own cost and responsibility, any and all things and
when and as from time to time required to accomplish whatsoever the Licensee attempts
or is bound to do at any time hereunder. Licensee, at its sole cost, shall adjust Pipe
Line to any physical change; as made at any time in any of Carrier's property; at all
times keeping upper surface of Pipe Line at least four and one-half
feet below bottom of rail thereover, and at least three feet beneath surface of ground
beyond ballast section. Licensee shall cause Pipe Line, before being used for anything
inflammable, to conform substantially to the requirements shown on Carrier's Standard
Form No. 24002, marked Exhibit "B", attached hereto as part hereof. Said things,
including the time and manner of doing any work, each shall conform to the requirements
of Carrier as well as of any State, Federal or Municipal authority. Carrier may, act-
ing for Licensee, furnish or do, and Licensee shall pay and bear the cost of, anything
which, herein required of Licensee at any time, either shall not be furnished or done
within 30 days following Carrier's written request therefor or shall be undertaken by
Carrier at Licensee's request; and Licensee on request shall in advance deposit with
Carrier the estimated cost thereof. If deposit be less than actual cost, Licensee shall
pay the difference; if more, Carrier shall repay difference. Payments hereunder shall
be made by Licensee within twenty days following receipt of bill. Licensee shall pay
cost to Carrier for all labor, including wages of foremen, plus 10% to cover supervision
and accounting, plus vacation allowances, paid holidays and health and welfare benefit
payments applicable to said labor, Carrier's cost price of all materials f.o.b. Car-
rier's rails, plus 10% to cover handling and accounting, plus freight at tariff to point
- 2 -
Form 20006
7/69
of use, and excise -taxes applicable to said labor and materials. Carrier may con-
nect with and discharge sewage into Pipe Line while serving as sewer.
No facilities shall be erected or installed, and no materials stored or
placed, or equipment operated, nor shall any person acting for Licensee's account
be permitted to be, closer than ten feet (measured horizontally on the ground)
from the nearest rail. No facilities shall be attached to or placed upon any of
Carrier's buildings, structures or improvements. Licensee shall not cross Carrier's
tracks with heavy equipment except at public road crossings, or at such locations
and on such terms and conditions as Carrier may specifically approve.
Licensee shall require any of its contractors and subcontractors to observe
and conform to the conditions and requirements specified herein; and for the pur-
poses of the safety, protective and indemnification provisions hereof, such
contractors and subcontractors, their agents, servants and employees, and other
persons on the Carrier's Premises at the invitation of the Licensee, its contrac-
tors or subcontractors, shall be deemed the agents or employees of the Licensee.
Licensee shall install and at all times keep and maintain Pipe Line in a safe
condition, so that same shall not interfere with, impair, endanger, or prevent the
safe and continuous use and operation of the railroad and property of Carrier, and
shall in any event upon notice in writing from the Carrier promptly maintain, repair,
remove, strengthen or adjust Pipe Line, or any part thereof.
Pipe Line shall, where possible, be installed by boring or jacking.
Where any work in connection with Pipe Line involves excavation, trenching
or boring, plans therefor (including details for protecting Carrier's operations)
shall be submitted to Carrier for advance approval, and special care shall be taken
by Licensee to protect Carrier's property and operations and in backfilling and
securely and soundly tamping suitable earth or fill to prevent washouts, under-
mining or other damage to Carrier's roadbeds, tracks and appurtenances thereon.
Promptly following performance of any work under this agreement, Licensee
shall do all things necessary to restore Premises and any property thereon to an
adequate and proper condition in accordance with good engineering practices.
Licensee shall, except in emergencies, give not less than 48 hours' written
notice to Carrier of the day and hour it proposes to undertake any construction or
maintenance work (other than minor day-to-day maintenance or inspections), and in
the event of emergency shall exert all effort to notify Carrier with utmost prompt-
ness. Licensee shall maintain close contact and liaison with Carrier's representative
as to the time and manner of performing work on or about Carrier's tracks and prop-
erty so as to minimize interference with Carrier's property, traffic and operations.
Licensee shall suspend construction or repair operations at the direction of the
Carrier when deemed necessary to protect Carrier's property and traffic.
5. If and when frau time to time and during such times as Licensee's or its
contractor's operations are of such a nature as to create hazards to operations of
Carrier's engines, cars, trains and employees on and along Carrier's main or other
tracks, the Carrier is hereby granted authority and permission, at Licensee's sole
cost, risk and responsibility, to provide such number of flagmen or watchmen or
3
Form 20006
7/69
other protective services, devices or structures, such as falsework or shoring,
and to make such alterations or adjustments in.its tracks or other facilities
and in the facilities of others on or near Premises, as in the opinion of Car-
rier's Superintendent may be required to protect against such hazards.
6. Licensee hereby agrees to reimburse Carrier for any cost incurred
by Carrier of relocating any signal or telegraph or other communication wire
and pole lines made necessary by the installation of Pipe Line, and for the
repair or replacement of any of Carrier's or any third party's other and dif-
ferent facilities damaged or destroyed or lost by reason of the performance
of any undertaking or the exercise of any of the rights herein granted.
7. The Carrier shall not be responsible for damage to property or
injuries to persons which may arise from or be incident to Licensee's exer-
cise of any permission granted herein.
Licensee further agrees to release, defend, indemnify and hold harmless
the Carrier from and against all costs, expenses, claims, liability arising
from (a) breach of any covenant herein by Licensee, or (b) damage to or destruc-
tion of property owned by or in the care, custody or control of the Carrier, or
(c) liability of the Carrier for (i) bodily injury to or death of its employees
or third persons, and (ii) damage to or destruction of property of third per-
sons, in any manner caused by, arising from, or in connection with the construction,
installation, operation, maintenance, repair, use, presence or removal of the
Pipe Line on, along, across and beneath Carrier's Premises, whether caused or
contributed to by any act, omission or negligence of the Carrier, or otherwise;
as well as (d) liability of the Carrier, howsoever caused and irrespective of
whether caused solely or in part by an act, omission or negligence of the Car-
rier or condition or state of repair of its property and right of way, (i) for
bodily injury to or death of agents, servants, employees or invitees of the
Licensee or of its contractors while on, about, or adjacent to the right of
way of the Carrier for any purpose related to the Pipe Line, (ii) for damage
to or destruction of property of or in the care, custody or control of the
Licensee and its contractors, subcontractors or invitees, or their respective
agents, servants and employees, while on, about or adjacent to the right of
way of the Carrier for any purpose related to the Pipe Line, or (iii) arising
from damage or deterioration to, leakage from, or interruption of, the Pipe
Line or its contents. It is the intention hereof to cover all hazards and
exposure of the Carrier by reason of or in connection with the Pipe Line, and
to fully protect the Carrier from and against all damages, losses, expenses,
claims, costs and liability it would not have suffered, sustained or incurred
but for the permission herein granted or the installation, operation, main-
tenance, use, presence or existence of the Pipe Line on, along, across, beneath,
about or adjacent to Carrier's Premises. Licensee also agrees to assume all
risk of loss or damage to Pipe Line and the contents thereof regardless of how
caused and regardless of any negligence on the part of Carrier, its agents,
servants or employees, or otherwise.
For purposes hereof, the term "Carrier" shall include MISSOURI PACIFIC
RAILROAD Company and its subsidiary
4
Form 20006
7/69
and affiliated companies and any other carrier operating upon the tracks and
right of way of MISSOURI PACIFIC RAILROAD
Company in the territory concerned, and the respective
officers, employees and servants of any thereof; and damages and liability
shall include the defense and settlement of claims and attorneys' fees and
expenses, etc., in connection therewith.
8. If and when at any time during installation of Pipe Line or at any
other time during term of this License, because of damage to Carrier's main
track or roadbed by reason of breakage of or leakage from the Pipe Line or
from any other reason incident to the existence and maintenance of Pipe Line,
Carrier's Superintendent shall be of the opinion that such a hazard exists as
to make unsafe or temporarily impossible the operation of Carrier's engines
or trains along Carrier's tracks in the vicinity of the Pipe Line and, because
thereof, the said Superintendent shall cause said engines or trains to be
detoured over another route, Licensee shall pay to Carrier, promptly follow-
ing receipt of bill therefor, the additional expense which Carrier shall incur
as a result of having to detour such engines or trains.
If, in Carrier's opinion, changes in its property make it impractical
or unsafe to continue the Pipe Line on Carrier's property, Carrier shall have
the right to terminate this agreement on written notice to Licensee.
Licensee agrees, upon request of Carrier, to take out and keep in force
and effect, for such period as Carrier may require, Contractual Liability
Insurance covering Licensee's liability under this agreement. In the event
that Licensee is a State, City, County or other governmental entity, Licensee
shall procure or cause its contractor to procure Railroad Protective Liability
Insurance in lieu of Contractual Liability Insurance. Such insurance shall
be in form and with such Insurance Company or Companies as shall be satisfactory
to Carrier, and in amounts of $500,000/$1,000,000 for bodily injury coverage
and $500,000/$1,000,000 for property damage coverage (and also the same for
physical damage to property coverage if Railroad Protective Liability Insur-
ance is involved) unless otherwise specified by Carrier.
9. Term hereof shall begin with July 24 1985 , and continue
thereafter until concluded (1st) by expiration of thirty days fol-
lowing serving, by Licensee on Carrier, or vice versa, of written notice of
intention to end term hereof, or (2nd) at Carrier's election without further
notice by expiration of six months without the Pipe Line having been installed
or by Licensee failing (a-1) to cure any default or (a-2) to show statutory
right to install Pipe Line within thirty days following Carrier's
written request therefor, or (3rd) upon the abandonment by Licensee of Prem-
ises for the purposes herein authorized. Any notice of Carrier shall be deemed
served when deposited postage prepaid in U. S. Mail addressed as aforesaid.
Not later than last day of term hereof Licensee shall remove Pipe Line and
restore Premises to a condition satisfactory to Carrier. Any of Pipe Line
not so removed shall at Carrier's election without notice be deemed abandoned.
Covenants herein shall inure to or bind each party's heirs, legal representa-
tives, successors and assigns; provided: no right of Licensee shall be
5
Form 20006
7/69
transferred or assigned, either voluntarily or involuntarily, except by express
agreement acceptable to Carrier. Carrier or Licensee may waive any default at
any time of the other without affecting, or impairing any right arising from,
any subsequent or other default.
10. In the event that Licensee is a City, County, District or other
governmental entity (other than a State or the United States), Licensee,
when returning this agreement to Carrier (signed), shall cause same to be
accompanied by such order, resolution or ordinance of the governing body of
Licensee, passed and approved as by law prescribed, and duly certified, evi-
dencing the authority of the person executing this agreement on behalf of
Licensee with the power so to do.
IN WITNESS WHEREOF, the parties hereto have duly executed this agreement
as of the day and year first hereinabove written.
MISSOURI PACIFIC RAILROAD COMPANY
WITNESSES:
ATTEST:
%T ;,r%tt- - )!/' /
; /Secretary
(Affix Seal ,'
WITNESSES:
General Manager
As Carrier, First Party Herein.
CITY OF ROUND ROCK
By
mayor
6
As Licensee, Second Party Herein.
87807
UNION PACIFIC RAILROAD COMPANY
Real Estate Department
R D. Uhrich
Assistant Vice President
J. A Anthony
Director -Contracts
D. D. Brown
Director -Real Estate
M. W. Casey
General Director -Special Properties
J. P. Gade
Director-Facilfty Management
ROUND ROCK CITY OF
214 EAST MAIN STREET
ROUND ROCK, TX 78664
1800 Famam Street
Omaha, Nebraska 68102
Fax (402) 997-3601
August 3, 2001
Exotai1- '. Q..
J. L Hawkins
Director -Operations Support
M.E. Heenan
Director -Administration & Budgets
D. FL Lightwine
Director -Real Estate
T. K Lave
Director -Real Estate
License Audit No: CA87807
Folder No: 0136304
Location of Agreement: ROUND ROCK, TX
RE: Assignment of Certain License Rights to Strong Capital I
Primary Purpose of Agreement: ENCROACHMENT - PIPELINE
Bill Description:
Dear Licensee:
Please be advised that certain of the rights and obligations of Union Pacific Railroad Company under the
above referenced License(s) ("License(s)") have been assigned to Strong Capital I effective as of June 22, 2001,
including without limitation, the right (and related obligations) to collect and administer the rental/license fee.
Union Pacific has retained certain rights and related obligations under the License(s), primarily (but not
exclusively) related to Railroad business activities and safety, and protection of Union Pacific and Union Pacific's
right of way or other property froth liability, damage, safety risks and unauthorized uses, including, without
limitation, any obligations of the Licensees under the Licenses to comply with Union Pacific's safety rules, to submit
-plans for construction, modification or replacement of Facilities to Union Pacific for review and approval prior to
implementation, to receive prior notice of and/or coordinate times of entry on Union Pacifies rail corridor, and to
arrange for flagging services to be provided by Union Pacific at such Licensee's expense.
Railroad Management Company, LLC has the responsibility for assuming the administration and
implementation of the assigned rights. If you have any questions concerning the above-described transaction, please
contact them at (214) 750-8028 at the following address:
For Information
Attn: Asset Manager
Railroad Management Company LLC
4514 Cole Avenue Suite 1010
Dallas TX 75205
If you have an unpaid bill that you received from Union Pacific, you should make your payment to Union
Pacific. Railroad Management will bill for all future rental/license fees due on or after June 22, 2001, and your
payment for those bills should be forwarded to their lock box at:
For Payments
Railroad Management Company LLC
PO Box 678161
Dallas TX 75267-8161
Federal Tax ID No: 36-4450608
Sincerely,
C. CrkzA4-7.
James A. Anthony
Director Contracts
JAA\Strong Notifications 5/1/02 — 7/31/02
Exhibit "C"
City of Round Rock
(p
C
a)
U)
N
0
M
N
ti
1-
>, H
c
O
U
WILLIAMSON
U
ROUND ROCK
4) N
O
LL
O
co
co
O
co
coU
co 531
ti
N N
M
EH d3
Discounted Rental Total
Administrative Fee
Grand Total