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HomeMy WebLinkAboutRes 2015-07-06 DGNO Grade Crossing Maintenance.pdfCITY OF ANNA, TEXAS RESOLUTION NO. 2015-07-06 A RESOLUTION OF THE CITY OF ANNA, TEXAS APPROVING A GRADE CROSSING MAINTENANCE AGREEMENT WITH DALLAS, GARLAND & NORTHEASTERN RAILROAD, INC. WHEREAS, he Dallas, Garland & Northeastern Railroad ("Railway") operates a railroad over track and other railroad -related facilities located on a contiguous right-of-way between Sherman, TX to Plano, TX owned by the Dallas Area Rapid Transit Agency ("DART"), and WHEREAS, the City of Anna, Texas ("City") has requested that Railway construct and maintain a crossing of a roadway at grade, over and across the right-of-way and track operated by Railway at milepost 306.10 CR 422 to be renamed Finley Blvd.,"); and WHEREAS Railway is willing to perform the construction, maintenance of the Crossing for City's use and City is willing to accept same, subject to the terms and conditions set forth in a Grade Crossing Maintenance Agreement; 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 2. Approval of Maintenance Agreement. The City Council of the City of Anna, Texas hereby approves the Grade Crossing Maintenance 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 2151 day of July, 2015. ATTEST: APPROVED: Mirenda McQuagge-Walden Mayor, Mike Crist Acting City Secretary CITY OF ANNA O F ,4) v Y ♦ QSy`'``�� ♦ h M .♦ r✓Ilya -�� e ♦ � \\\ RESP r Tl a N% 2015-07-06 2015-07-06 IC7eTel�i��l�il GRADE CROSSING DESIGN & CONSTRUCTION RELUBURSEMENT AGREEMENT This Grade Crossing Design & Construction Reimbursement Agreement ("Agreement") is made as of the day of /1"', , 20%S , by and between the Dallas, Garland & Northeastern Railroad, Inc., a Texas corporation with an address of 425 East Southlake Boulevard, Southlake, Texas 76092 ("Railway"); and Anna Crossing AMC, Ltd. , whose mailing address is Anna. Crossing AMC, Ltd., 8214 Westchester Drive, Suite 710, Dallas, Texas 75225 ("User"). WITNESSETH: Whereas, Railway operates a railroad over track and other railroad -related facilities located on a contiguous right-of-way between Sherman, TX and Plano, TX, such right-of-way owned by the Dallas Area Rapid Transit Agency ("DART"); and Whereas, User has requested that Railway design and construct a crossing structure in order that a roadway can cross at grade, over and across the right-of-way and track operated by Railway at milepost 306.10 CR 422 to be renamed Taylor Drive and more particularly described in Exhibit A, attached hereto and incorporated herein by reference ("Crossing"); and Whereas Railway is willing to perform the design and construction for the purpose described above and User is willing to accept same, subject to the terms and conditions set forth herein; Now therefore, Railway and User agree as follows: 1. Design and Construction of the Crossing. Railway in consideration of the covenants and conditions hereinafter stated on the part of the User to be kept and performed, hereby agrees to design and construct the at -grade Crossing across and over Railway's tracks, right of way and property of DART at the location aforesaid (all and any part of the Crossing, including security gates, surface and crossing warning signs shall also be referred to as the "Crossing"); provided that construction of the Crossing shall be done by Railway in accordance with Section 3 hereof, and provided further, however, that Railway reserves the right to perform all work on DART's property, including work- related to the maintenance, repair, renewal or removal of the Crossing in which event User shall pay Railway the entire cost and expenses of all labor and materials furnished by Railway in performing such work, including any expense incurred in protecting trains, persons using the Crossing, or other property; and provided finther that User restricts such use of the Crossing in accordance with Section 3 hereof 2. Costs of Construction of Crossing, Rent, Standards of Performance (a) Construction Costs. Prior to construction, User agrees to deposit with Railway the sum of $430,089.50 (the "Deposit"), being the estimated cost of construction of the Crossing including standard fixed signs and security gates as per Exhibit B, attached hereto and made a part hereof. Upon completion of the construction of the Crossing, Railway shall furnish to User a detailed statement showing the cost of the work, including materials used for constructing the Crossing. In the event the Deposit is less than the actual cost borne by Railway, User shall promptly pay such additional cost to Railway. Should the Deposit be in excess of the actual cost of construction, Railway shall promptly refund the difference to User. (b) Maintenance Charles. A condition precedent of the term of this Agreement is that Railway is able to enter into a separate agreement with the City of Anna (the "City") whereby the City pays Railway for the maintenance, repair and renewal of the Crossing. 2 ; /° 3. Public Crossing. (a) The Crossing shall be a public one, and shall be located, constructed and maintained in exact accordance with Exhibit A, and no departure shall at any time be made therefrom except upon permission in writing granted by Railway. Supervision over the location of the construction work, inspection of the repair, alteration, renewal, relocation and removal of the Crossing shall be subject to the approval of Railway and DART, or their respective successors or assigns. (b) User shall not in any way, or at any time, interfere with or obstruct Railway's right- of-way, ight- of way, the movement of Railway's trains and other railroad operations, or interfere with Railway's use of the right-of-way, or use thereof by Railway's assigns, invitees, lessees or licensees. 4. Warranty Disclaimer. By its review, approval or preparation of plans, specifications, drawings or other documents pursuant to this Agreement (collectively, the "Plans"), Railroad signifies only that the Plans and the Crossing proposed to be constructed in accordance with the Plans satisfy Railroad's requirements. Railroad expressly disclaims all other representations and warranties in connection with the Plans, including, but not limited to, the integrity, suitability or fitness for the purposes of User or any other persons of such Plans or the Project constructed in accordance with the Plans. 5. Indemnification and Insurance. Not Applicable 6. Assignment. 3 �r (a) The rights conferred hereby shall be the privilege of User only, and no assignment or transfer hereof shall be made without the consent and agreement in writing of Railway being first had and obtained. (b) The Crossing provides convenient access to property owned or developed by User. In the event ownership transfers to any other person, firm or corporation, User shall provide thirty (30) days' prior written notice of such transfer to Railway. Upon receipt of such notice, Railway may terminate this Agreement immediately upon notice delivered to User, unless Railway agrees to a written assignment of this Agreement or the establishment of a new agreement with such person, firm or corporation. (c) Despite the attempt by User to transfer this license in violation of paragraphs 6(a) and 6(b), User will retain all liability including that which would otherwise be transferred to the transferee of User. 7. Permits and Approvals. The burden of obtaining all permits and approvals which may be necessary and appropriate for the construction of the Crossing shall be upon User and shall be at the sole risk, cost and expense of User whose responsibility it shall be to comply with all Federal, State, and Local laws and assume all cost and expense and responsibility in connection therewith, without any liability whatsoever on the part of the Railway. 8. Notices. All notices which may or are required to be given, or served or sent by any party to the other parties pursuant to this Agreement shall be in writing and shall be deemed to have been properly given or sent, if hand delivered or mailed by registered or certified mail, return receipt requested, with postage prepaid. Each notice shall be mailed as aforesaid shall be deemed sufficiently given, served or sent for all purposes at the time such notice shall be 4 �j�� deposited in the mail properly addressed and, in any event, upon receipt of the addressee. Until any party notifies the others of any new addresses, such notices shall be addressed as follows: If to Railway: 425 East Southlake Boulevard, Southlake, Texas 76092 If to User: Anna Crossing AMC, Ltd. , 8214 Westchester Drive, Suite 710 Dallas, Texas 75225 9. Term and Termination. This Agreement is for an initial term of one (1) year for the initial construction of the Crossing, subject to termination by the Railway or User upon thirty (30) days prior written notice, and subject to termination at any time for breach of any of the terms and conditions set forth in this Agreement. The provisions and stipulations of this Agreement are a part of the consideration of the licensing of the Crossing, and in the event User shall fail to comply with any of the covenants and conditions, then, at the option of the Railway, this Agreement shall be terminated with full legal rights and remedies retained by the Railway, including but not limited to the right to reenter, repossess, and remove the crossing if it shall elect to do so. The terms of Section 5 shall survive any termination of this Agreement for so long as User or its successor uses the Crossing. 10. Crossing Removal. Should the use of the Crossing be abandoned or the agreement with DART for the existence of the Crossing be terminated for any reason, then this agreement shall be terminable by either party upon thirty (30) days' written notice to the other, and User will, at its sole cost and in a manner satisfactory to Railway and/or DART, remove the portion of the Crossing located within the limits of said right of way or property of DART, and restore DART's 5 property and track to the condition existing prior to the construction and/or improvement or location of the Crossing within the limits of said right of way; provided Railway, at its option, may remove the Crossing within the track area and restore its property and track, and User will, in such event, upon bill rendered therefor, pay to Railway the entire cost incurred by it in such removal and restoration. 11. Merger. This Agreement constitutes the complete and exclusive statement of the Agreement between the parties which supersedes all proposals, oral or written, and all other communications between the parties related to the subject matter of this Agreement. Any future change or modification of this Agreement must be in writing and signed by both parties. 6 z/T� IN WITNESS WHEREOF, intending to be legally bound, the parties hereto have caused this Grade Crossing Design & Construction Agreement to be duly executed and delivered as of the day and year first above written. Dallas, Garland & Northeastern Railroad, Inc. B Y� Name: Title:Wie C — V Anna Crossing AMC, Ltd, a Texas limited partnership By: Anna Crossing GP Corporation, a Texas Corporation, its General Partner By: Adam Bucz c, Director l Is Name: FA > ; Witnesses as to User Title: b / 1-1 e. z Exhibit "A" dqiL______~~______________ 0 22 C6 IL ti EY gel Exhibit "B" Cast Estimate DALLAS, GARLAND & NORTHEASTERN RAILROAD, INC. (DGNO) ANNA, (Collin), TX - CR 4221 Taylor Drive DOT9: 765310M CENTRAL Region RAILROAD II : 14DGH005R RRMP.:3061 MCKINNEYSubdivision XORAO#: VEMI"476 Summary CROSSING WARNING SYSTEM 51176,700.00 (Includes all design, requisition, labor, materials. shop vMng, and installation) CROSSING SURFACFIRESURFACE $185,000.Do (Includes alldesign, mquisition.labor, materials, and installation) TRACK GRADE AND REHABILITATION $0.00 (Includes all design, requishion. Iabor, materials, and installation) PRELIMINARY ENGINEERING (Phase l) $17,620.50 (includes CONTRACT Labor for all Engineering, Agency Coordination, and Projad Management) (Skorburg has Pre -paid this amount) �n ..v,468.OD AGREEMENTS 8 APPROVALS (Phase 2) (includes CONTRACT Labor for all Engineering. Agency Coordination, and Project Management) (Skgrburg has Prt`pa.,d this amount) 512,6Di_DD CONSTRUCTION ENGINEERING (Phase 3) (Includes CONTRACT Labor for all Engineering, Agency Coordination, and Project Management) CIRCUfrDES1ON $10,000.00 (Skoburg has Pre -pail this amount) $6,000D CONSTRUCTION ENGINEERING INSPECTION (Estimated Construction Engineering Inspection cost based on 4 days @ $1500 per day) UTILITYCROSSING $0.00 (0 new Wily crossings a $4000 per crossing. includes application, engineering review, and right of entry) RIGHT OF E.7NTRY FEE $0.00 (RIgM of Enby Fee of $1.500 is valid for 00 days, atter 00 days, additional fees of $750 per 30 days are regtiaed.) FLAGGING SERVICES $10,500.00 (Estimated Flagging Servicas cost based on 10 days (off $1050 per day) AC POWER SERVICE $5,000.00 (includes all Power -Service Charges ratincluded in othercosts) OTHER (Description Required) $0.00 TOTAL, ESTIMATE COST DATE 1120115 RESPONSIBLE PARTY: Name: SKORBURG Numbe:NIA Contact John Arnold $430,089.90 (USO) NOTE: This Estimate has been prepared based onside conditions, anticipated work duration periods, material prices. laborrates. manpower, resource availability, and otherfactors Imam as of the date prepared. The actual cost for Railroad work may differ based upon the agency's requirements, their contractors work procedures, and/or other conditions that became apparent once construction commences orduring the progress of the work. if any emended time elapses from the date ofthis Estimate, the Railroad veil reserve the right to update the estimate to current price values, and require agency's approval before any work by Railroad ve01 commence.