HomeMy WebLinkAboutRes 2014-10-09 Public Road Crossing License with DART.pdfCITY OF ANNA, TEXAS
RESOLUTION NO. 2014-10-09
A RESOLUTION OF THE CITY OF ANNA, TEXAS APPROVING A PUBLIC ROAD
CROSSING LICENSE AGREEMENT BETWEEN DALLAS AREA RAPID TRANSIT
("LICENSOR") AND THE CITY OF ANNA, TEXAS ("LICENSEE").
WHEREAS, Licensor now owns certain railroad right-of-way within the city limits of the
Licensee; and
WHEREAS, Licensor has a Trackage Rights Agreement with Dallas, Garland & Northeastern
Railroad (the "Railroad"), whereby the Railroad is responsible for certain maintenance of
existing at -grade highway -rail crossings; and
WHEREAS, there is an existing public road crossing known as County Road 422, Mile Post
306.10, that crosses Licensor's Sherman Line railroad right-of-way, identified as DOT No.
765318M; and
WHEREAS, Licensee proposes widening and reconstruction of the public road crossing,
constructed with new concrete panels, pavement, active warning devices and sidewalks, in
accordance with Licensor's and Railroad's standards;
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
ANNA, TEXAS, THAT:
Section 1. Recitals Incorporated.
The recitals above are incorporated herein as if set forth in full for all purposes.
Section 3. Approval of License Agreement.
The City Council of the City of Anna, Texas hereby approves the Public Road Crossing
License Agreement attached hereto as Exhibit 1, and authorizes, ratifies and approves the
City Manager's execution of same. The City Manager is hereby authorized to execute all
documents and to take all other actions necessary to finalize, act under, and enforce the
Agreement.
PASSED AND APPROVED by the City Council of the City of Anna, Texas, on this the 28th
day of October, 2014.
ATTEST:
APPROVED:
N a Wilkison, City 86cretary �J o Mayor, Mike Crist
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RES. 2014-10-09 Dart License Agreement —Cty Rd 42`le/PtBOfi*�1�.' PAGE 1 OF 1 10-28-14
AGREEMENT No.
PUBLIC ROAD CROSSING LICENSE AGREEMENT
THIS AGREEMENT ("License"), 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 and the CITY OF ANNA, a Texas municipal corporation
("Licensee"), acting by and through its duly authorized official, whose mailing address is P.O. Box 776,
Anna, Collin County, Texas 75409-0776.
WHEREAS, Licensor now owns certain railroad right-of-way within the city limits of the
Licensee; and
WHEREAS, Licensor has a Trackage Rights Agreement with Dallas, Garland & Northeastern
Railroad (the "Railroad"), whereby the Railroad is responsible for certain maintenance of existing at -
grade highway -rail crossings; and
WHEREAS, there is an existing public road crossing known as County Road 422, Mile Post
306.10, that crosses Licensor's Sherman Line railroad right-of-way, identified as DOT No, 765318M; and
WHEREAS, Licensee proposes widening and reconstruction of the public road crossing which
will become known as Taylor Drive, constructed with new concrete panels, pavement, active warning
devices and sidewalks, in accordance with Licensor's and Railroad's standards; NOW, THEREFORE,
1. Purpose. Licensor hereby grants this License to Licensee for the purpose of constructing,
reconstructing, installing and maintaining (the "Permitted Uses") an at -grade, four -lane, median divided,
72 -foot wide public road crossing ("Permitted Improvement"). The Permitted Improvement will be
located within Licensor's railroad right of way, covering an area approximately 9,900 square feet. The
Permitted Improvement will cross Licensor's right-of-way at Mile Post 306.10, in Anna, Collin County,
Texas, more particularly as shown in Exhibit "A", attached hereto and incorporated herein for all
pertinent purposes (the "Property").
The term "public road crossing" shall include the concrete crossing material, pavement, grading,
barricades, street lighting, drainage facilities, signs, pavement markings, active warning devices/signals,
and approaches.
The Property shall be used by Licensee, and the public, solely for the Permitted Uses and the Permitted
Improvement, EXCEPT, HOWEVER, AND IT IS UNDERSTOOD BY BOTH LICENSOR AND
LICENSEE THAT THE GRANTING OF THIS LICENSE SHALL NOT BE CONSTRUED IN ANY
WAY TO CONSTITUTE A DEDICATION TO THE PUBLIC.
2. Consideration. The consideration for the granting of this License shall be:
2.01. The faithful performance by Licensee of all of the covenants and agreements contained in
this License to be performed by Licensee, and
2.02. The payment of the sum of TWO THOUSAND FIVE HUNDRED SEVENTY FIVE
AND NO/100 ($2,575.00) DOLLARS cash in hand paid by Licensee to Licensor as a one-time fee for
the License, and
Anna — Taylor Drive Mile Post 3 06. 10
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2.03. The payment for the entire cost of constructing and maintaining the Permitted
Improvement, including any drainage facilities caused to be required thereof, and
2.04. The reimbursement by Licensee to the Railroad for all labor and materials necessary for
the construction of the Permitted Improvement within the limits of the ties and installation of the active
warning devices, within thirty (30) days upon presentation of invoice by the Railroad, and
2.05. The future costs of reconstruction of the Permitted Improvement within the limits of the
railroad ties. This area of the Permitted Improvement may become impossible to maintain by the
Railroad due to deterioration or obsolescence of the crossing material. In the event maintenance is no
longer possible and reconstruction is necessary, Licensor and Licensee shall agree on the type of
reconstruction, and Licensor shall reconstruct the Permitted Improvement within the limits of the railroad
ties, at the sole cost of the Licensee.
3. Term. This License shall begin on the 1St day of , 2014, and shall be perpetual, subject to
termination by either party as provided herein.
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) 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 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, 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. Licensee waives any claim and releases Licensor with regard to any claim
arising from such corrosion.
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 with any 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 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 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 Licensor
and Railroad.
5.03. Licensee agrees to design, construct, reconstruct and maintain the Permitted Improvement,
except the active warning devices/signals, 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.
Anna—Taylor Drive Mile Post 306.10
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5.04. Licensee 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. Licensee covenants and agrees to contract and enter into a cost reimbursement agreement
with the Railroad to further specify how cost reimbursements will take place. Such reimbursements shall
include the original construction of Permitted Improvement within the limits of the ties. Licensee also
agrees to be responsible for the cost of future reconstruction of the Permitted Improvement upon the
expiration of the useful life.
5.06. Licensee or its contractor shall remove all trees and other vegetation within the railroad
right of way for a distance of 500 feet in all four quadrants of the right of way.
5.07. Licensee shall be responsible for maintenance and liable for damage for any and all
additional drainage created by Licensee's project distributed onto and within Licensor's right of way from
the point of entry to the exit point of Licensor's Property.
5.08. Licensee shall provide traffic control and all necessary safety measures during construction
or maintenance operations to accommodate work by Railroad.
5.09. Licensor makes no warranty regarding subsurface installations on the Property.
Licensee shall conduct its own inspection of same and will not rely on the absence or presence of
markers.
5.10. If at any time, in Licensor's determination, traffic volume or other circumstances should
warrant a grade separation for the Permitted Improvement licensed hereunder, Licensee shall be
responsible for the installation of such grade separation to Licensor's standards, at no cost to Licensor.
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, and 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
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.
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
Licensee or its contractor causes damage to the Property or such adjacent property, the Licensee and/or its
contractor shall immediately make appropriate replacement or repair the damage at no cost or expense to
Licensor. If Licensee or its contractor fails or refuses to make such 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
Anna — Taylor Drive Mile Post 3 06. 10
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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 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. 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
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. After the Permitted Improvement have been
constructed, the active warning devices/signals and the Permitted Improvement within the limits of the
railroad ties (subject to Paragraph 2.05 and 5.05) shall be maintained by the Railroad. Licensee shall
maintain all other Permitted Improvement. In the event the Licensee fails to maintain the Permitted
Improvement or 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, or that the Permitted Improvement must be modified,
including but not limited to the installation of grade crossing signals, Licensee shall, at its sole cost and
expense make such modifications or 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 Licensee a
minimum of thirty (30) days written notice of any required relocation or modification. Licensee shall
promptly commence to make the required changes thereafter and shall diligently complete the
modification or relocation as required within a reasonable period.
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13. 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 18 of this License, whichever event first occurs; PROVIDED, HOWEVER, that any
indemnifications provided for herein shall survive such termination.
14. 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. Licensee
acknowledges the Federal Railroad Administration (FRA) requirements for whistles at at -grade
public and private road crossings and requirements for Positive Train Control (PTC) for
controlling and monitoring train movements to assure safety and efficiency when passenger service
is implemented.
15. Indemnification. Licensee 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, Licensee's acts or failure to act hereunder), Licensee's
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.
16. Termination of License. At such time as this License may be terminated or cancelled for any reason
whatever, Licensee, upon request by Licensor, 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.
17. 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.
18. Methods of Termination. This License may be terminated in either of the following ways:
18.01. Written agreement of both parties; or
18.02. By either party giving the other party thirty (30) days written notice.
19. Miscellaneous.
19.01. 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
P. O. Box 660163 Or
Dallas, Texas 75266-7210
Attn: Railroad Management
1401 Pacific Avenue
Dallas, Texas 75202-7210
Anna—Taylor Drive Mile Post 3 06. 10
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LICENSEE: City of Anna
P.O. Box 776 Or 111 North Powell Parkway
Anna, Texas 75409-0776 Anna, Texas 75409
Either party may from time to time designate another and different address for receipt of notice,
by giving notice of such change of address.
19.02. Governing Law. This License shall be construed under and in accordance with the laws
of the State of Texas.
19.03. 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.
19.04. 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.
19.05. 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.
19.06. Authorization. Licensee shall furnish to Licensor a certified copy of minutes or a City
Resolution adopted by the governing body of Licensee, authorizing the execution of this License on
behalf of the Licensee, or other proof sufficient to establish the authority to execute this License.
19.07. 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.
19.08. Counterparts. The parties may execute this Agreement in multiple originals and when
taken together, those originals constitute a whole.
[Signatures on following page]
Anna — Taylor Drive Mile Post 306.10
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IN WITNESS WHEREOF, the parties have executed this License on the date last signed.
LICENSOR: DALLAS AREA RAPID TRANSIT
I:
TIMOTHY H. MCKAY, P.E.
Executive Vice President
Growth/Regional Development
Date:
LICENSEE: CITY OF ANNA
BY:
PHILIP SANDERS
City Manager
Date:
Anna—Taylor Drive Mile Post 3 06. 10
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