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HomeMy WebLinkAboutItem 03 - Dart License AgreementMEMO TO: FROM: MEETING DATE: SUBJECT: RECOMMENDATION: ITEM 0 HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL ROGER NELSON, CITY MANAGER Aef& OCTOBER 1, 2002 DART LICENSE AGREEMENT — WALMART & SAM'S CLUB "AT GRADE" CROSSINGS City Council consider approving a License Agreement with Dallas Area Rapid Transit granting the two "at grade" crossings into the Walmart and Sam's Club site, authorize payment in the amount of $ 135,000.00 for said crossings, and take any necessary action. FUNDING SOURCE: Funds for the License Agreement in an amount of $ 135,000.00 have been provided to the City by Walmart. BACKGROUND: Staff has finalized negotiations with DART representatives to grant the two "at grade" crossings from SH 26 into the Walmart & Sam's Club site. The principal access drive crossing will be located at the signalized intersection of SH 26 and Ernest Dean Parkway and the second one will be located approximately 800 feet southwest along SH 26. The charge for the two crossings has been established by DART at $ 135,000.00. Walmart agreed to this cost in early summer and forwarded a check to the City for the cost. DART officials had asked the City to hold the funds until the License Agreement was approved by the City and both could be subimiitted in a single package. DART has forwarded their standard License Agreement to the City for approval and execution. Staff recommends approval. JSL/dsm O:\agenda\10-1-02\DART License — Walmart Crossings September 20, 2002 (11:14AM) AGREEMENT # LICENSE AGREEMENT THIS AGREEMENT, by and between DALLAS AREA RAPID TRANSIT, ("DART"), a regional transportation authority, created, organized and existing pursuant to � Article 1118y, V.A.T.C.S., as amended (the Act ), and the CITY OF GRAPEVINE, a Texas municipal corporation ("Licensee"), acting herein by and through its duly authorized city manager, whose mailing address is Post Office Box 95104, Grapevine, Texas 76099. WITNESSETH: The consideration for the granting of this License shall bea ()payment by Licensee of ONE HUNDRED THIRTY FIVE THOUSAND AND NO/100 ($135,000.00) DOLLARS payable in advance, and performance by Licensee of all of the covenants and agreements contained e in this�lAgreement to be performed by Licensee, DART HEREBY GRANTS A LICENSE to Licensee for the purpose of constructing, installing and, maintaining two (2) at -grade public road crossings to access Sam's Club & Wal-Mart site, consisting of (1) a seven (7) lane median divided roadway crossing at Mile Post 614.61 and (2) a two (2) lane median divided roadway crossing at Mile Post 614.78, and all pavement, pavement markings, drainage, drainage facilities, signage and warning devices (the "Permitted Improvements") in Grapevine, Tarrant County, Texas, more particularly as shown in Exhibit "A" attached hereto and incorporated herein for all pertinent purposes, (the "Property ). The Property shall be used by Licensee solely for the purpose of installation, maintenance and subsequent use of the Permitted Improvements (the "Permitted Uses"). Licensee's right to enter upon and use the Property shall be limited solely to the Permitted Uses and the Permitted Improvements. This License is granted subject to the terms and conditions set out below. 1. Term. The term of this license shall be perpetual subject, however, to termination by either party as provided herein. 2. Non Exclusive License. This license is non-exclusive and is subject to (a) any existing utility, drainage or communication facility located in, on, under, or upon the Property owned by DART, any railroad, utility, or communication company, public or private; (b) to all vested rights presently owned by any railroad, utility or communication r company, public or private, for the use of the Property for facilities presently located within the boundaries of the Property; and (c) to any existing lease, license or other interest in the Property granted by DART to any individual, corporation or other entity, public or private. Page 1 of 7 3. Design, Constructinn, Operation and Maintenance DART's use of the Property and adjoining property may include the use of electrically powered equipment. Notwithstanding DART's inclusion within its system of measures designed to reduce stray current which may cause corrosion, Licensee is hereby warned that such measures may not prevent electrical current being present in proximity to the Permitted Improvements and that such presence could produce corrosive effects to the Permitted Improvements. 3.01. All design, construction, reconstruction, replacement, removal, operation and maintenance of the Permitted Improvements on the Property shall be done in such a manner so as not to interfere in any way with the operations of DART or other railroad operations, if any (the "Railroad", whether one or more). In particular, cathodic protection or other stray current corrosion control measures of the Permitted Improvements as required shall be made a part of the design and construction of the Permitted Improvements. The Railroad shall assume future maintenance responsibility for all warning devices following proper installation by the Railroad's contractor, at the expense of Licensee. Licensee agrees to reimburse DART or Railroad for any material or labor provided for the installation and maintenance of the Permitted Improvements. DART's trains and Railroad's trains shall have the ability to preempt traffic at all times. 3.02. During the design phase and prior to commencing construction on the Property, a copy of the construction plans showing the exact location, type and depth of the construction, any cathodic protection measures and any working area, shall be submitted for written approval to DART and the Railroad, if any, when the construction is going to be within the area of Railroad operations. Such approval shall not be unreasonably withheld. No work shall commence until said plans have been approved by DART and Railroad. 3.03. By acceptance of this license, Licensee agrees to design and construct the Permitted Improvements,in such a manner so as not to create a hazard to the use of the Property, and further agrees to pay any damages which may arise by reason of Licensee's use of the Property under this Agreement. 3.04. By acceptance of this license, Licensee covenants and agrees to institute and maintain a reasonable testing program to determine whether or not additional cathodic protection of its Permitted Improvements is necessary and if it is or should become necessary, such protection shall be immediately instituted by Licensee at its sole cost and expense. 3.05. Absence of markers does not constitute a warranty by DART that there are no subsurface installations on the Property. 3.06. If at any time, traffic volume or other circumstances should warrant a grade separation for the crossing licensed hereunder, Licensee shall be responsible for the installation of such grade separation to DART's standards, at no cost to DART. 'Page 2 of 7 4. Governmental Approvals. Licensee, at its sole cost and expense, shall be w responsible for and shall obtain, any and all licenses, permits, or other approvals from any and all governmental agencies, federal, state or local, required to carry on any activity permitted herein. 5. DART's Standard Contract and Insurance. No work on the Property shall be commenced by Licensee or any contractor for Licensee until such Licensee or contractor shall have executed DART's Standard Contractors Agreement covering such work, and has furnished insurance coverage in such amounts and types as shall be satisfactory to DART. 6. Duty of Care in Construction Licensee or its contractor shall use reasonable care during the construction period and thereafter, to avoid damaging any existing buildings, equipment and vegetation on or about the Property and any adjacent property owned by or under the control of DART. If the failure to use reasonable care by the Licensee or its contractor causes damage to the Property or such adjacent property, the Licensee and/or its contractor shallurimediately replace or repair the damage at no cost or expense to DART. If Licensee or its contractor fails or refuses to make such replacement, DART shall have the right, but not the obligation, to make or effect any such repair or replacement at the sole cost and expense of Licensee, which cost and expense Licensee agrees to pay to DART. 7. Environmental Protection. 7.01 Licensee shall not use or permit the use of the Property for any purpose that may be in violation of any laws pertaining to health or the environment, including without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), the Resource Conservation and Recovery Act of 1976 ("RCRA"), the Texas Water Code and the Texas Solid Waste Disposal Act. 7.02. Licensee warrants that the Permitted Use of the Property will not result in the disposal or other release of any hazardous substance or solid waste on or to the Property, and that it will take all steps necessary to insure that no such hazardous substance or solid waste will ever be discharged onto the Property by Licensee or its Contractors. 7.03. The terms "hazardous substance" and "release" shall have the meanings specified in CERCLA and the terms "solid waste" and "disposal" (or "disposed") shall have the meanings specified in the RCRA; PROVIDED, HOWEVER, that in the event either CERCLA or RCRA is amended so as to broaden the meaning of any term defined thereby, such broader meaning shall apply subsequent to the effective date of such amendment; and PROVIDED FURTHER, that to the extent that the laws of the State of Texas establish a meaning for "hazardous substance", "release", "solid waste", or "disposal", which is broader than that specified in either CERCLA or RCRA, such broader meaning shall apply. Page 3 of 7 7.04. Licensee shall indemnify and hold DART harmless against all cost of environmental clean up to the Property resulting from Licensee's use of the Property under this Agreement. ' 8. Mechanic's Liens Not Permitted. Licensee shall fully pay for all labor and materials used in, on, or about the Property and will not permit or suffer any mechanic's or materialmen's liens of any nature to be affixed against the Property by reason of any work done or materials furnished to the Property at Licensee's instance or request. 9. Maintenance of Completed Improvements. After the Permitted Improvements have been constructed, they shall be maintained by the Licensee in such a manner as to keep the Property in a good and safe condition with respect to Licensee's use. In the event the Licensee fails to maintain the Property as required, upon discovery, DART shall notify Licensee of such occurrence in writing. In the event Licensee shall not have remedied the failure within ten (10) days from the date of such notice, DART shall have the right, but not the obligation to remedy such failure at the sole cost and expense of Licensee. In the event DART exercises its right to remedy Licensee's failure, Licensee agrees to immediately pay to DART all costs incurred by DART upon demand. 10. Future Use by DART. 10.01. This license is made expressly subject and subordinate to the right of DART to use the Property for any purpose whatsoever. 10.02. In the event that DART shall, at any time subsequent to the date of this Agreement, at its sole discretion, determine that the relocation of the Permitted Improvements shall be necessary or convenient for DART's use of the Property, or that the crossing must be modified, including but not limited to the installation of warning devices, Licensee shall, at its sole cost and expense make such modifications or relocate said Permitted Improvements so as not to interfere with DART's or DART's assigns use of the Property. In this regard, DART may, but is not obligated to, designate other property for the relocation of the Permitted Improvements. A minimum of thirty (30) days written notice for the exercise of one or more of the above actions shall be given by DART, and Licensee shall promptly commence to make the required changes and complete them as quickly as possible. 11. Duration of License. This license shall terminate and be of no further force and effect (a) in the event Licensee shall discontinue or abandon the use of the Permitted Improvements; (b) in the event Licensee shall relocate the Permitted Improvements from the Property; (c) upon termination in accordance with paragraph 16 of this Agreement, whichever event first occurs. Page 4 of 7 12. Compliance With Laws and Regulations, Licensee agrees to abide by and be governed by all laws, ordinances and regulations of any and all governmental entities having jurisdiction over the Licensee and by railroad regulations, policies and operating procedures established by the Railroad, or other applicable railroad regulating bodies, and Licensee agrees to indemnify and hold DART harmless from any failure to so abide and all actions resulting therefrom. Licensee acknowledges federal railroad regulatory agency's requirements for whistles at at -grade public and private road crossings. 13. Indemnification. 13.01. Licensee shall defend, protect and keep DART and Railroad forever harmless and indemnified against and from any penalty, or damage, or charge, imposed for any violation of any law, ordinance, rule or regulation arising out of the use of the Property by Licensee, whether occasioned by the neglect of Licensee, its employees, officers, agents, contractors or assigns, or those holding under Licensee; 13.02. Licensee shall at all times protect, indemnify and it is the intention of the parties hereto that Licensee hold DART and Railroad harmless against and from any and all loss, cost, damage or expense, including attorney's fees, arising out of, or from any accident or other occurrence on or about the Property causing personal injury, death, or property damage, except when caused by the willful misconduct or negligence of DART or Railroad, their officers, employees or agents, and then only to the extent of the proportion of any fault determined against DART for its willful misconduct or negligence; 13.03. Licensee shall at all times protect, indemnify and hold DART and Railroad harmless against and from any and all loss, cost, damage or expense, including attorney's fees, arising out of or from any and all claims or causes of action resulting from any failure of Licensee, its officers, A employees, agents, contractors or assigns in any respect to comply with and perform all the requirements and provisions hereof. 14. Action Upon Termination of License At such time as this license may be terminated or cancelled for any reason whatever, Licensee, upon request by DART, shall remove all improvements and appurtenances owned by it, situated in, under or attached to the Property and shall restore the Property to the condition existing at the date of execution of this License, at Licensee's sole expense. 15. As ent. Licensee shall not assign or transfer its rights under this Agreement in whole or in part, or peimit any other person or entity to use the License hereby granted without the prior written consent of DART which DART is under no obligation to grant. Page 5 of 7 16. Methods of Termination. This Agreement may be terminated in any of the following ways: 16.01. Written Agreement of both parties; notice. 16.02. By either party giving the other party thirty (30) days written 16.03. By either parry, upon failure of the other parry to perform its obligations as set forth in this Agreement. 17. Miscellaneous. 17.01. Notice. When notice is permitted or required by this Agreement, it shall be in writing and shall be deemed delivered when delivered in person or when placed, postage prepaid, in the U.S. Mail, Certified, Return Receipt Requested, and addressed to the parties at the following addresses: LICENSOR: Dallas Area Rapid Transit P. O. Box 660163 Dallas, Texas 75266-7210 Attn: Railroad Management LICENSEE: City of Grapevine P. O. Box 95104 Grapevine, TX 76099 Attn: Public Works Either parry may from time to time designate another and different address for receipt of notice by giving notice of such change of address. 17.02. Attorney Fees. Any signatory to this Agreement who is the prevailing party in any legal proceeding against any other signatory brought under or with relation to this Agreement shall be entitled to recover court costs and reasonable attorney fees from the non -prevailing party. 17.03 Governing Law; This Agreement shall be construed under and in accordance with the laws of the State of Texas. 17.04 Entirety and Amendments. This Agreement embodies the entire agreement between the parties and supersedes all prior agreements and understandings, if any, relating to the Property and the matters addressed herein, and may be amended or supplemented only by a written instrument executed by the parry against whom enforcement is sought. 17.05. Parties Bound. This Agreement shall be binding upon and inure to the benefit of the executing parties and their respective heirs, personal representatives, successors and assigns. Page 6 of 7 17.06. Number and Gender. Words of any gender used in this Agreement shall be held and construed to include any other gender; and words in the singular shall include the plural and vice versa, unless the text clearly requires otherwise. IN WITNESS WHEREOF, the parties have executed this Agreement in multiple originals this day of 20 LICENSOR: DALLAS AREA RAPID TRANSIT GARY C. 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