HomeMy WebLinkAboutItem 12 - DART LicenseMEMO TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: BRUNO RUMBELOW, CITY MANAGER VA
MEETING DATE: JUNE 7, 2011
SUBJECT: DART LICENSE - 12" WATER LINE CROSSING MILE POST
614.75
RECOMMENDATION
City Council consider approving a License Agreement with Dallas Area Rapid Transit
(DART) for the construction of a 12" waterline crossing the DART rail line in the vicinity of
the Walmart/Sam's complex, authorize staff to execute said agreement and take any
necessary action.
FUNDING:
Funds for the $600 annual fee are available in the Water Distribution Operating Budget,
Account # 200 -44573 -530 -1.
BACKGROUND:
NorthGate Constructors is relocating a 12" waterline crossing of State Highway 26 in the
vicinity of Ernest Dean Parkway. This new crossing continues across the DART rail line at
Mlle Post 614.75 to the City water system on the north side of the rail line.
This new crossing of the DART rail line ROW, which replaces an old crossing, requires a
new license agreement that is site specific.
Staff recommends approval.
R :IAGENDA12011\06 -07 -1 MART License SH 26 - Walmart.doc
AGREEMENT NO. 220210
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 CITY OF GRAPEVINE ( "Licensee "), a Texas
municipal corporation acting herein by and through its duly authorized official, whose mailing address is
P.O. Box 95104, Grapevine, Texas 76099.
Pursuant to an agreement between Licensor and the Ft. Worth & Western Railroad, (hereinafter
the "Railroad "), freight railroad operations exist on Licensors corridor.
WITNESSETH:
1. Purpose. Licensor hereby grants a license (the "License ") to Licensee for the purposes of constructing,
installing, maintaining and operating a 13.2" waterline encased in a 24" pipe (the "Permitted
Improvement ") crossing the Cotton Belt approximately 1,690 feet west of State Highway 114, at Mile
Post 614.75, in Grapevine, Tarrant County, Texas, more particularly described as shown in Exhibits "A-
1" and "A -2 ", dated April 21, 2011, attached hereto and incorporated herein for all pertinent purposes,
(the "Property")
The Property shall be used by Licensee solely for the purpose of operating and maintaining the
Permitted Improvement (the "Permitted Use "). Licensee's 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 I" day of May, 201 (the "Term ") and continue thereafter
until terminated by either party as provided herein.
3. Consideration.
3.01. The consideration for the granting of this License shall be (a) payment by Licensee to
Licensor the sum of SIX HUNDRED AND N01100 ($600.00) DOLLARS per annum, payable annually
in advance (the "License Fee "), and (b) the performance by Licensee of each of the obligations
undertaken by Licensee in this License, PROVIDED, HOWEVER, that the "License Fee" shall be
adjusted annually as follows:
a) The adjustment and change in the License Fee shall be determined according to the cost of
living changes in the Consumer Price Index for All Urban Consumers — (CPI -U), Dallas -Fort.
Worth, TX., "All Items ", as published by the Bureau of Labor Statistics, U.S. Department of
Labor (the "CPI Index ").
b) The CPI Index figure for -the month of May, 2011 is hereby fixed and established as the Base
Index Figure in the computation of adjustment of rentals herein provided for. At the
commencement of each annual period as provided herein, the CPI Index for the month of
January of such year shall be ascertained and noted and the rent for the next annual period
shall be adjusted by increasing or decreasing the License Fee, percentage -wise as the CPI
Index for the month of January has increased or decreased as compared with the Base Index
Figure as herein fixed, PROVIDED HOWEVER, that under no circumstances shall the
License Fee ever be less than $600.00 per year.
c) If any time during the term hereof the U.S. Bureau of Labor Statistics shall discontinue the
LICENSE-City of Grapevine- W. of SH -114 1 of 6 We Post 614.75
13.2 -inch Water Line
issuance of the CPI Index, the parties shall use any other standard nationally recognized cost -
of- living index for the Dallas -Fort Worth area then issued and available, which is published
by the U.S. Government.
Acceptance of any License Fee by Licensor after written notice of termination or expiration
of this License shall not waive, reinstate, continue or extend the terms of this License.
3.02. Any payment not received by Licensor by the 10th day after it is due, shall bear a late
charge of $25.00 to help offset the administrative cost involved in handling such late payment.
3.03. For any payment not received by Licensor by the 15th day after it is due, such payment
shall bear interest at the rate of 18% per annum from the date it was due until it is paid, in addition to the
late charge.
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 boundaries of 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 Licensors 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 Improvement and that such presence could produce corrosive effects to the
Permitted Improvement.
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 other Railroad operations. In particular, 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
Railroad. Such approval shall not be unreasonably withheld. No work shall commence until said plans
have been approved by Licensor.
5.03. By acceptance of this License, Licensee agrees 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 agrees to pay any damages which may arise by reason of Licensee's use of the Property under this
License.
5.04. 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
Improvement is necessary and if it is or should. become necessary, such protection shall be immediately
instituted by Licensee at its sole cost and expense.
5.05. Absence of markers does not constitute a warranty by Licensor that there are no
subsurface installations on the Property.
LICENSE -City of Grapevine- W. of SH -114 2 of 6 We Post 614.75
13.2 -inch Water Line
5.06. Licensee shall provide to Licensor final construction drawings ("as- builts") that are
signed and sealed by a Texas Professional Engineer within sixty ( 1160") days of completion of the
project.
6. Governmental Approvals. Licensee, at its 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
Licensee or any contractor for Licensee until such Licensee or contractor shall have executed Licensor 's
Standard Contractor's Agreement 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
Licensee's employees, contractors or agents shall be required to work on the Property.
8. 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 Licensor. If the
failure to use reasonable care by the Licensee or its contractor causes damage to the Property or any
adjacent property, the Licensee and/or its contractor shall immediately replace or repair the damage at no
cost or expense to Licensor. If Licensee or its contractor fails or refuses to make or effect 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 Licensee, which cost and expense Licensee agrees to pay to
Licensor upon demand.
9. Environmental Protection.
9.01. Licensee 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. 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 ensure that no such hazardous substance or solid waste will ever be discharged onto the
Property by Licensee or its 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 lawn 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. Licensee shall indemnify and hold Licensor and Railroad harmless against all cost of
environmental clean up to the Property resulting from Licensee's use of the Property under this
License.
10. 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
LICENSE -City of Grapevine- W. of SH -114 3 of 6 Mile Post 614.75
132-inch Water Lice
affixed against the Property by reason of any work done or materials furnished to the Property at
Licensee's instance or request.
11. Maintenance of Completed Improvements. The Permitted Improvement 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,
Licensor 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, Licensor shall have the right, but
not the obligation to remedy such failure at the sole cost and expense of Licensee. In the event Licensor
exercises its right to remedy Licensee's failure, Licensee agrees 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, Licensee shall, at its 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. -A minimum of thirty (30) days written notice for the exercise of one or more of
the above actions shall be given by Licensor. Relocation will occur within thirty (30) days, unless
extended by mutual agreement of the parties.
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 Licensee does
hereby waive any and all claim that it 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 Improvements
shall be borne by Licensee.
14. 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 Improvement; (b) in the event
Licensee shall relocate the Permitted Improvement from the Property; (c) upon termination in accordance
with paragraph 19 of this License, whichever event first occurs.
15. 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 Licensor harmless from any failure to so abide and all actions resulting therefrom.
16. Indemnification.
16.01. Licensee shall defend, protect, and keep Licensor and the 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, its
employees, officers; agents, contractors, or assigns, or those holding under Licensee;
16.02. Licensee shall at all times protect, indemnify and it is the express intention of the
parties hereto that Licensee hold Licensor and the Railroad harmless against and from any and all
LICENSE-City of Grapevine- W. of SH -114 4 of 6 We Post 614.75
13.2 -inch Water Line
loss, cost, damage or expense, including attorney's fees and including claims of negligence, arising
out of or from any accident or other occurrence on or about said Property resulting from use of the
Property by Licensee, its officers, employees, agents, customers and invitees;
16.03. Licensee shall at all times protect, indemnify and hold Licensor and the Railroad
harmless against and from any and all loss, cost, damage or expense, including attorney's fees and
including claims of negligence, arising out of any failure of Licensee, its employees, officers, agents,
contractors or assigns in any respect to comply with and perform all the requirements and
provisions hereof.
17. Termination of License. At such time as this License may be terminated or canceled for any reason
whatsoever, Licensee, upon request by Licensor, shall remove all improvement_ s and appurtenances
owned by it, situated in, on, under or attached to the Property, regardless of whether or not such
improvements were placed thereon by Licensee, and shall restore the Property to a condition satisfactory
to Licensor, at Licensee's sole expense.
18. Assignment. Licensee shall not assign or transfer its 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.
19. Methods of Termination. This License may be terminated in any of the following ways:
19.01. By written agreement of both parties;
19.02. By either party giving the other party thirty (30) days written notice;
19.03. By either party, upon failure of the other party to perform its obligations as set forth in
this License.
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.B. Mail,
Certified, Return Receipt Requested, and addressed to the parties at the following addresses:
LICENSOR: Dallas Area Rapid Transit OR
01 Pacific Avenue P. O. Box 660163
Dallas, Texas 75202 -7210 Dallas, Texas 75266 -7210
ATTN.- Railroad Management
LICENSEE: City of Grapevine
P.O. Box 95104
Grapevine, Texas 76099
ATTN: Mr. Stan Laster
Either 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
LICENSE -City of Grgxwine- W. of SH -114 5 of 6 We Post 614.75
13.2 -inch water Line
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
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 fording
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. New Agreement. It is mutually agreed and understood that this License cancels and
supersedes an existing 12" waterline which has no License Number. That existing 12" line is to
abandoned and grouted, per detailed plans as shown on Exhibit "A -1" and "A -2 ".
IN WITNESS WHEREOF, the parties have executed this License in duplicate originals this
day of 92011.
LICENSOR: DALLAS AREA RAPID TRANSIT
R.
TIMOTHY H. MCKAY
Senior Vice President
Rail Program Development
LICENSEE: CITY OF GRAPEVINE
M
BRUNO RUM 3ELOW
City Manager
LICENS &City of Grapevine- W. of SH -114 6 of 6 Mile Post 614.75
13.2 -inch Water Line