Loading...
HomeMy WebLinkAboutItem 08 - DART License AgreementMEMO TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: BRUNO RUMBELOW, CITY MANAGER MEETING DATE: OCTOBER 21, 2014 RECOMMENDATION: City Council consider approving a License Agreement with Dallas Area Rapid Transit, authorize the City Manager to execute Municipal Corridor Use License No. 980909 and take any necessary action. On February 12, 1997, the City of Grapevine and DART entered into a license agreement to construct the Cotton Belt hike & bike trail. Over the past 17 years, the agreement has been amended twice to allow the Cities of Colleyville, Hurst and North Richland Hills to construct a hike & bike trail in DART right-of-way. Over the past 10 months, representatives from Colleyville, Hurst, North Richland Hills and Grapevine have met with DART to construct a new agreement. This new agreement has been vetted by attorneys for each municipality and DART's legal team. The most significant change to the new license agreement is the clarification of the term `maintenance' and that the agreement lasts into perpetuity unless the City of Grapevine chooses to terminate it. The maintenance responsibilities across the corridor will require that it be maintained by each city as Grapevine has done since the trail was installed several years ago. Staff recommends approval of the agreement. KM 10/16/2014 (3:16:15 PM) 10/3/14 clean AGREEMENT NO. LICENSE AGREEMENT THIS Agreement ("License"), is made by and between DALLAS AREA RAPID TRANSIT ("Licensor"), a regional transportation authority, created, organized and existing pursuant to Chapter 452, Texas Transportation Code, as amended (the "Act") and the CITY OF GRAPEVINE, CITY OF COLLEYVILLE, CITY OF HURST and CITY OF NORTH RICHLAND HILLS ("Licensees"), each a Texas municipal corporation acting herein by and through its duly authorized official, whose mailing address is respectively: P. O. Box 95104, Grapevine, Texas 76099, 5109 Bransford Road, Colleyville, Texas 76034, 1505 Precinct Line Road, Hurst, Texas 76054 and 7301 NE Loop 820, North Richland Hills, Texas. Pursuant to an agreement between Licensor and Fort Worth & Western Railroad, (hereinafter the "Railroad"), freight railroad operations exist on Licensor's corridor. 1. Purpose. Licensor hereby grants a license (the "License") to Licensees for the purposes of constructing, installing, maintaining and operating a hike and bike trail, commonly known as the "Cotton Belt Hike & Bike Trail" (the "Permitted Improvement"), beginning at approximately Mile Post 612.50, in Grapevine, Tarrant County, Texas and ending at approximately Mile Post 625.60, in North Richland Hills, Tarrant County, Texas, more particularly described as shown in Exhibits "A-1" through "A-4", dated March 20, 2014, attached hereto and incorporated herein for all pertinent purposes, (the "Property"). The Property shall be used by Licensees solely for the purpose of operating and maintaining the Permitted Improvement (the "Permitted Use"). Licensees' right to enter upon and use the Property shall be limited solely to the Permitted Use and the Permitted Improvement. 2. Term. This License shall begin on the V day of , 2014 (the "Term") and continue thereafter until terminated by either party as provided herein. 3. Consideration. As consideration for the granting of this License for the use of the Licensed Property, Licensees covenant and agree to mow and maintain the entirety, property line to property line, of the DART Property situated within Licensees' respective city limits, keeping the Property free of overgrown vegetation, obstructing trees, debris and any material which could result in unsafe and/or unsanitary conditions. Paragraph 11 of this License clarifies the maintenance of the Property and the word "maintain" in this License. 4. 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 Licensor, any Railroad, utility, or communication company, public or private; (b) all vested rights presently owned by any Railroad, utility or communication company, located within the Property; and (c) any existing lease, license or other interest in the Property granted by Licensor to any individual, corporation or other entity, public or private. 5. Design, Construction, Operation and Maintenance. Licensor's use of the Property and adjoining property may include the use of electrically powered equipment. Notwithstanding Licensor's inclusion within its system of measures designed to reduce stray current which may cause corrosion, Licensees are hereby warned that such measures may not prevent electrical current being present in proximity to the Permitted Improvement and that such presence could produce corrosive effects to the Permitted Improvement. Licensees waive any claim and release Licensor with regard to any claim arising from such corrosion. Cities of Grapevine, Colleyville, Hurst and NRH 1 of 7 Mile Post 612.50 thru 625.60 Pedestrian Hike & Bike Trail 10/3/14 clean 5.01. All design, construction, reconstruction, replacement, removal, operation and maintenance of the Permitted Improvement on the Property shall be done in such a manner so as not to interfere in any way with the operations of Licensor or Railroad operations. Cathodic protection or other stray current corrosion control measures of the Permitted Improvement as required shall be made a part of the design and construction of the Permitted Improvement. 5.02. During the design phase and prior to commencing any 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 Licensor and the Railroad. Such approval shall not be unreasonably withheld. No work shall commence until said plans have been approved by Licensor and the Railroad. 5.03. Licensees agree to design, construct and maintain the Permitted Improvement in such a manner so as not to create a hazard to the use of the Property, and further agree to pay any damages which may arise by reason of Licensees' use of the Property under this License. 5.04. Licensees covenant and agree to institute and maintain a reasonable testing program to determine whether or not additional cathodic protection of their Permitted Improvement is necessary and if it is or should become necessary, such protection shall be immediately instituted by Licensees at their sole cost and expense. 5.05. Licensor makes no warranties regarding surface or subsurface installations on the Property. Licensees shall conduct their own surface and subsurface inspections of same and will not rely on the absence or presence of markers. 5.06. Licensees shall provide to Licensor final construction drawings ("as-builts") that are signed and sealed by a Texas Professional Engineer within sixty ("60") days of completion of the Permitted Improvement. 6. Governmental Approvals. Licensees, at their sole cost and expense, shall be 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. 7. Licensor's Standard Contract and Insurance. No work on the Property shall be commenced by Licensees or any contractor for Licensees until such Licensees or contractor shall have executed Licensor's "Construction Agreement And Contractor's Right Of Entry" covering such work, and has furnished insurance coverage in such amounts and types as shall be satisfactory to Licensor. A company - issued photo identification of Licensees' employees, contractors or agents shall be required to work on the Property. Routine maintenance that is required under this License is excepted from the requirements of this Section and must meet the requirements of Section 11. 8. Duty of Care in Construction. Licensees or their 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 Licensor. If Licensees or their contractor causes damage to the Property or such adjacent property, the Licensees and/or their contractor shall immediately make appropriate replacement or repair the damage at no cost or expense to Licensor. If Licensees or their contractor fail or refuse to make any such repair or replacement, Licensor shall have the right, but not the obligation, to make or effect any such repair or replacement at the sole cost and expense of Licensees, which cost and expense Licensees agrees to pay to Licensor upon demand. Cities of Grapevine, Colleyville, Hurst and NRH 2 of 7 Mile Post 612.50 thru 625.60 Pedestrian Hike & Bike "Trail 10/3/14 clean 9. Environmental Protection. 9.01. Licensees shall not use or permit the use of the Property for any purpose that may be in violation of any local, state or federal laws pertaining to health or the environment, including but not limited to, the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), the Resource Conservation and Recovery Act ("RCRA"), the Clean Water Act ("CWA") and the Clean Air Act ("CAA"). 9.02. Licensees warrant 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 ensure that no such hazardous substance or solid waste is discharged onto the Property by Licensees or their contractors. 9.03. 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. 9.04. To the extent allowed by law, Licensees shall indemnify and hold Licensor and Railroad harmless against all cost of environmental clean up to the Property resulting from Licensees' use of the Property under this License. 10. Mechanic's Liens Not Permitted. Licensees 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 Licensees' instance or request. 11. Maintenance of Completed Improvement. The Permitted Improvement shall be maintained by the Licensees in such a manner as to keep the Property in a good and safe condition with respect to Licensees' use. Licensees understand that the Permitted Improvement will require various types of continuous maintenance (e.g. mowing, edging, tree trimming, removing litter, removing overgrown vegetation, removing obstructing trees and shrubs, keeping drainage ditches clear of debris, etc.) to ensure that the Property is maintained to a safe and manageable condition. Licensees agree to maintain the Property as per each of Licensees' city ordinances or code. Prior to performing any maintenance on the Property, Licensees shall contact the Railroad (via email and phone) and secure "Form C" working privileges, on each separate occurrence, to perform the required maintenance. Licensees understand that work may be performed only after written approval (via e-mail or letter) has been given by the Railroad and satisfactory evidence of sufficient insurance coverage is provided to Licensor. Each City's "beginning point" and "ending point" of maintenance is defined in the list below. CITY OF BEGINNING POINT OF MAINTENANCE ENDING POINT OF MAINTENANCE LOCATION OF CONSTRUCTED TRAIL Grapevine MP 612.50 Texan Trl. MP 617.00 Brumlow Ave. Ball St. to Brumlow Ave. (S. of tracks) Colle ville MP 617.00 Brumlow Ave. MP 619.74 LD Lockett Pk. J. McCain Rd. to LD Lockett Pk. (N. of tracks) Hurst MP 619.74 LD Lockett Pk. I MP 620.67 Precinct Line LD Lockett Pk. to Precinct Line (N. of tracks, I then crosses over to S. side at Precinct Line) NRH MP 620.67 Precinct Line I MP 625.60 NE Lou 820 1 Precinct Line to Browning St. S. of tracks) In the event Licensor notifies Licensees of the failure to maintain the Property or otherwise comply with this Agreement, and Licensees shall not have remedied the failure within thirty (30) days from the date of such notice, Licensor shall have the right, but not the obligation, to remedy such failure at the sole cost Cities of Grapevine, Colleyville, Hurst and NRH 3 of 7 Mile Post 612.50 thru 625.60 Pedestrian Hike & Bike Trail 10/3/14 clean and expense of Licensees. In the event Licensor exercises its right to remedy Licensees' failure, Licensees agree to immediately pay to Licensor all costs incurred by Licensor upon demand. 12. Future Use by Licensor. 12.01. This License is made expressly subject and subordinate to the right of Licensor to use the Property for any purpose whatsoever. 12.02. In the event that Licensor shall, at any time subsequent to the date of this License, at its sole discretion, determine that the relocation of the Permitted Improvement shall be necessary or convenient for Licensor 's use of the Property, Licensees shall, at their sole cost and expense, relocate said Permitted Improvement so as not to interfere with Licensor 's, or Licensor 's assigns, use of the Property. In this regard, Licensor may, but is not obligated to, designate other property for the relocation of the Permitted Improvement. Licensor shall give Licensees a minimum of thirty (30) days written notice of any required relocation. Licensees shall promptly commence to make the relocation thereafter and shall diligently complete the relocation within a reasonable period. 13. Relocation Benefits. The parties hereto agree that the construction of the Permitted Improvement on the Property shall be subsequent to the acquisition of the Property by Licensor and that Licensees do hereby waive any and all claim that they may have under the Act, or otherwise, regarding the payment of any and all relocation benefits and that all costs associated with any relocation of such Permitted Improvement shall be borne by Licensees. 14. Duration of License. This License shall terminate and be of no further force and effect: (a) in the event Licensees shall discontinue or abandon the use of the Permitted Improvement; (b) in the event Licensees shall relocate the Permitted Improvement from the Property; (c) upon termination in accordance with paragraph 19 of this License, whichever event first occurs. PROVIDED, HOWEVER, that any indemnifications provided for herein shall survive such termination. 15. Compliance With Laws and Regulations. Licensees agrees to abide by and be governed by all laws, ordinances and regulations of any and all governmental entities having jurisdiction over the Licensees and by railroad regulations, policies and operating procedures established by the Railroad, or other applicable railroad regulating bodies, and Licensees agree, to the extent allowed by law, to indemnify and hold Licensor harmless from any failure to so abide and all actions resulting therefrom. 16. Indemnification. To the extent allowed by law, Licensees shall at all times protect, indemnify, defend and hold Licensor and the Railroad harmless against and from any and all loss, cost, damage or expense, including attorney's fees and including, without limitation, claims of negligence, arising out of this License (including by example and not limitation, Licensees' acts or failure to act hereunder), Licensees' use in any way of the Property, or arising from any accident or other occurrence on or about the Property, resulting in personal injury, death, or property damage, except to the extent fault is judicially determined against Licensor. 17. Termination of License. At such time as this License may be terminated or canceled for any reason whatsoever, Licensees, upon written request by Licensor, shall remove the improvements made by Licensees and appurtenances owned by Licensees, situated in, on, under or attached to the Property and shall restore the Property to the condition existing at the date of execution of this License, at the Licensees' sole expense. 18. Assignment. Licensees shall not assign or transfer their rights under this License in whole or in part, or permit any other person or entity to use the License hereby granted without the prior written consent of Licensor which Licensor is under no obligation to grant. Cities of Grapevine, Colleyville, Hurst and NRH 4 of 7 Mile Post 612.50 thru 625.60 Pedestrian hike & Bike Trail 10/3/14 clean 19. Methods of Termination. This License may be terminated in any of the following ways: 19.01. The entire License may be terminated by written agreement of all parties; or 19.02. The entire License may be terminated by written agreement of Licensor; or 19.03. The entire License may be terminated by written agreement of all Licensees; or 19.04. Any Licensee may terminate it's interest herein (and related obligations) by written notice to all other parties which notice shall include an executed assignment and assumption agreement, in form and substance approved by Licensor, by a creditworthy substitute Licensee, as determined by Licensor. 20. Miscellaneous. 20.01. Notice. When notice is permitted or required by this License, 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 OR 1401 Pacific Avenue Dallas, Texas 75202-7210 ATTN: Railroad Management LICENSEES: City of Grapevine OR 200 S. Main Street Grapevine, Texas 76051 City of Colleyville 100 Main Street Colleyville, Texas 76034 City of Hurst 1505 Precinct Line Road Hurst, Texas 76054 City of North Richland Hills 7301 NE Loop 820 North Richland Hills, Texas 76180 P. O. Box 660163 Dallas, Texas 75266-7210 P. O. Box 95104 Grapevine, Texas 76099 Any party may from time to time designate another and different address for receipt of notice by giving written notice of such change of address. 20.02. Governing Law. This License shall be construed under and in accordance with the laws of the State of Texas. 20.03. Entirety and Amendments. This License 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 party against whom enforcement is sought. 20.04. Parties Bound. This License shall be binding upon and inure to the benefit of the Cities of Grapevine, Colleyville, Hurst and MRH 5 of 7 Mile Post 612.50 thru 625.60 Pedestrian Hike &c bike 'frail 10/3/14 clean executing parties and their respective heirs, personal representatives, successors and assigns. 20.05. Number and Gender. Words of any gender used in this License 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. 20.06. No Joint Enterprise. The parties do not intend that this License be construed as finding that the parties have formed a joint enterprise. The purposes for which each party has entered into this License are separate and distinct. It is not the intent of any of the parties that a joint enterprise relationship is being entered into and the parties hereto specifically disclaim such relationship. This License does not constitute a joint enterprise, as there are no common pecuniary interests, no common purpose and no equal right of control among the parties hereto. 20.07. Mowing Schedule. Licensees agree to coordinate with each other and the Railroad to establish a mowing schedule in order to minimize any conflict with the Railroad's operations. Licensees shall provide Licensor and Railroad a copy of the mowing schedule on January 1st of each calendar year. 21. New Agreement. It is mutually agreed and understood that this License cancels and supersedes License No. 970201, dated February 12, 1997, and License No. 980909, dated September 30, 1998, or any agreements prior to this License, granted by Licensor or Licensor's predecessor railroads in regard to this License Agreement for Cotton Belt Hike & Bike Trail. (Signatures on Next Page) Cities of Grapevine, Colleyville, Hurst and NRH 6 of 7 Mile Post 612.50 thru 625.60 Pedestrian Mike & Bike Frail 10/3/14 clean IN WITNESS WHEREOF, the parties have executed this License in duplicate originals, effective on the last date signed. LICENSOR: DALLAS AREA RAPID TRANSIT By: Date: Printed Name: Title: LICENSEES: CITY OF GRAPEVINE By: Date: Printed Name: Title: CITY OF COLLEYVILLE By: Date: Printed Name: Title: CITY OF HURST By: Date: Printed Name: Title: CITY OF NORTH RICHLAND HILLS By: Date: Printed Name: Title: Cities of Grapevine, Colleyville, Hurst and NRH 7 of 7 Mile Post 612.50 thru 625.60 Pedestrian Hike & Bike Trail