HomeMy WebLinkAboutRes 2016-04-163 DART License Agreement - Foster Crossing Water Line.pdfCITY OF ANNA, TEXAS RESOLUTION NO. 2016-04-\ laO (DART License Agreement -Foster Crossing Water Line) A RESOLUTION OF THE CITY OF ANNA, TEXAS APPROVING A LICENSE AGREEMENT BETWEEN DALLAS AREA RAPID TRANSIT ("LICENSOR") AND THE CITY OF ANNA, TEXAS ("LICENSEE") TO ALLOW FOR THE CONSTRUCTION AND MAINTENANCE OF THE FOSTER CROSSING WATER LINE PROJECT WITHIN LICENSOR'S RIGHT-OF-WAY. WHEREAS, Licensor 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 rail crossings; and
WHEREAS, there is an existing public road known as County Road 421 that crosses
Licensor's Sherman Line railroad right-of-way near Mile Post 305.53; and
WHEREAS, Licensee proposes to construct and maintain a 12-inch water line within the
public right-of-way of County Road 421, crossing under the railroad right-of-way, 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 2. Approval of License Agreement.
The City Council of the City of Anna, Texas hereby approves the 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 121h
day of April, 2016.
ATTEST:
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Resolution 2016-04-163
DART License Agreement - Foster Crossing Water Line
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AGREEMENT NO. cros 1..5 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 City of Anna ("Licensee"), a Texas Municipal corporation acting herein by and through its duly authorized official, whose mailing address is 111 N. Powell Parkway, Anna, Texas 75409. Pursuant to an agreement between Licensor and Dallas, Garland and Northeastern Railroad Company, (hereinafter the "Railroad"), freight railroad operations exist on Licensor's corridor. 1. Purpose. Licensor hereby grants a license (the "License") to Licensee for the purposes of constructing, installing, maintaining and operating one 12-inch waterline with a 24-inch steel casing that
will be located in the County Road 421 Public Right of Way near the intersection of S.H. 5 and West
Foster Crossing Road (the "Permitted Improvement") crossing the North Sherman Line at Mile Post
305.53, (Latitude: 33 degrees 19'14.37"N, Longitude: 96 degrees 33'23.28"W) in Anna, Collin
County, Texas, more particularly described as shown in Exhibits "A" and "B", 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 1st day of March, 2016 (the "Term") and continue thereafter
until terminated by either party as provided herein.
3. Consideration. The consideration for the granting of this License shall be (a) TEN AND N0/100
($10.00) DOLLARS cash in hand paid by Licensee to Licensor, the sufficiency and receipt, of which is
hereby acknowledged, and (b) the faithful performance by Licensee of all of the covenants and
agreements undertaken by Licensee 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 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 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 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.
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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. 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. 5.04 . 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. 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 .06. Licensee 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
project or a $100.00 fee per month will be assessed until they are received.
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
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 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
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").
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Mile Post 305.53
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, defend 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. 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. Licensor shall give a minimum of thirty (30) days written notice of any required
relocation. Licensee shall promptly commence to make the required changes thereafter and shall
diligently complete the relocation as required 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 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.
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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. 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.
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 improvements 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 either of the following ways:
19.01. By written agreement of both parties; or
19.02. By either party giving the other party thirty (30) days written notice.
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:
LICENSEE:
West Foster Crossing
12-inch Waterline
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Dallas Area Rapid Transit OR
1401 Pacific A venue
Dallas, Texas 75202-7210
ATTN: Railroad Management
City of Anna
111 N . Powell Parkway
Anna, TX 75409
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P. 0. Box 660163
Dallas, Texas 75266-7210
Mile Post 305.53
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 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 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. Counterparts. The parties may execute this Agreement in multiple originals and when
taken together, those originals constitute a whole.
IN WITNESS WHEREOF, the parties have executed this License on the date last signed.
LICENSOR:
LICENSEE:
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DALLAS AREA RAPID TRANSIT
BY: 1Y\ ~ }'\1\0~
MAUREEN MCCOLE
Vice President, Commuter Rail
& Railroad Management
Date: --H-1-+\-"""'-'2 \'-+--\ L--"--""'Q'-'--"l lR.____
Title:~ (:.}-,1
Date: 4/ 1 <J /n
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Mile Post 305.53
DART Dallas Area Rapid Transit P.O. Box 660163 Dallas, Texas 75266-7210 214/749-3619 April 25, 2016
City of Anna
111 N. Powell Pkwy
Anna, TX 75409
Atten: Joseph Johnson
Re: License Agreement for installing, maintammg and operating one 12-inch
waterline, encased in a 24-inch steel casing pipe located in the public right of way
under County Road 421 near the intersection of S.H. 5 and west Foster Crossing
Road crossing North Sherman Line at Mile Post 305.53 in Anna, Collin County,
Texas.
Dear Mr. Johnson:
Enclosed is one fully executed original License Agreement No.220975 for City of Anna
as referenced above. Please reference the License numbers in any future correspondence
regarding this matter.
If you have any questions, please contact me at (214) 749-3619 or via e-mail at
edavis@dart.org.
dI~ly ........... _:-.:.__-1i....;
shandra Davis
Sr. Right of Way Representative
Commuter Rail & Railroad Management