HomeMy WebLinkAboutItem 07 - Dart License AgreementITEM •
MEMO TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: ROGER NELSON, CITY MANAGER i
MEETING DATE: FEBRUARY 18, 2003
SUBJECT: DART LICENSE AGREEMENT — DOOLEY STREET "AT GRADE"
CROSSING
RECOMMENDATION:
City Council consider approving a License Agreement with Dallas Area Rapid Transit
granting the "at grade" crossing at South Dooley Street, authorize payment in the amount
of $ 1,200.00 for said crossing, and take any necessary action.
FUNDING SOURCE:
Funds are available in the following accounts:
Funding Source
Account
Amount Award
Percent
99 GO Bonds
178-78106-010
$ 100,000.00
5.1%
99 GO Bonds
178-78105-010
$ 767,223.00
39.0%
OOA GO Bonds
178-78101-012
$ 424,014.40
21.6%
OOA GO Bonds 178-78102-012 $ 673.434.65 $1.200.00 3433
TOTAL
$1,964,672.05 $1,200.00 100%
Budget
Amount Award
Percent
Engineering
$ 275,000.00
14.0%
Construction
$1,383,080.00 $1,200.00
70.4%
ROW
$ 86,000.00
4.4%
Contingency
$ 220.592.05
11.2%
TOTAL
$1,964,672.05 $1,200.00
100%
BACKGROUND:
Staff finalized negotiations with DART representatives granting the City permission to
widen and reconstruct the existing Dooley Street at -grade railroad crossing. The crossing
will be improved in its horizontal alignment and will be signalized with flashing lights and
gates as part of the Dooley Street improvement project. The fee for the crossing has been
established by DART at $ 1,200.00.
February 11, 2003 (2:58PM)
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 be (a) payment by
Licensee of ONE THOUSAND TWO HUNDRED AND NO/100 ($1,200.00)
DOLLARS payable in advance, and (b) the faithful performance by Licensee of all of the
covenants and agreements contained in this Agreement to be performed by Licensee,
DART HEREBY GRANTS A LICENSE to Licensee for the purpose of widening, re-
constructing, installing and maintaining the existing Dooley Road at -grade public road
crossing consisting of a forty-three foot wide concrete roadway crossing at Mile Post
613.20 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 reconstruction,
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
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 Construction 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, 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
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 shall immediately 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 IV Q Y*,Jj Gt�ict c
13.02. Licensee shall at all times protect, indemnify and it is they !4w
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 negligencej,��.
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, employees, agents, contractors or assigns in any
respect to comply with and perform all the requirements and provisions hereot:,,{o �. GF.k+ gIlbakd
by law
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 satisfactory to DART's and
Railroad's representative, at Licensee's sole expense.
15. Assignment. Licensee shall not assign or transfer its rights under this
Agreement in whole or in part, or permit 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;
16.02. By either party giving the other party thirty (30) days written
notice.
16.03. By either party, upon failure of the other party 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 party 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 party 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
s 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 2003.
LICENSOR: DALLAS AREA RAPID TRANSIT
M-
KATHRYN D. WATERS
Vice President
Commuter Rail and Railroad Management
LICENSEE: CITY OF GRAPEVINE
By:
Printed Name:
Title:
Page 7 of 7
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