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Item 4ICITY OF SOUTHLAKE MEMORANDUM (January 3, 2012) To: Shana Yelverton, City Manager From: Robert H. Price, P.E., Director of Public Works Subject: Approve two (2) DART license agreements for Emergency Access from State Highway 26 into the various fuel farms by the Southlake Department of Public Safety Action Requested: Approve two (2) DART license agreements for Emergency Access from State Highway 26 into the various fuel farms by the Southlake Department of Public Safety. Background Information: The purpose of this item is to obtain two license agreements from Dallas Area Rapid Transit (DART) for the exclusive use by the Southlake Department of Public Safety for emergency access to two existing railroad crossings into the fuel facilities located just west of State Highway 26. The first crossing located at Mile Post 615.71 (516 feet east of Mustang Ct.) provides direct access into the Magellan facility, previous owned by Conoco - Phillips. The second crossing located at Mile Post 615.99 (1993 feet east of Mustang Court serves the Nustar facility. Both of these existing railroad crossings were closed in 2001 as a result of a joint project with the City of Grapevine to construct a new crossing at Mustang Court which would serve all of the various fuel farm facilities and close the individual access driveways to the various facilities. The emergency access crossings are to remain locked by means of a gate or chains at all times except emergencies. Access to these crossings will be prohibited from use by the general public and /or adjoining property owners. The term of the license shall be perpetual unless otherwise terminated as outlined in the agreement. Financial Considerations: The cost associated with each license agreement is $10 for a total expenditure related to the acquisition of these license agreements of $20. Funding for the future reconstruction of the railroad crossings, should it become necessary, will be budgeted in future capital improvement program annual budgets. Strategic Link: The acquisition of these two DART license agreements for emergency access to the existing fuel farms located west of State Highway 26 link to the city's strategy map relative to the focus area of Safety and Security. The specific corporate objective that is met by this acquisition of these agreements include: Achieving the highest standards of Safety and Security. Citizen Input/ Board Review: N/A Legal Review: The proposed DART License Agreements have been reviewed by the City Attorney's office. Alternatives: The City Council may approve or deny the DART License Agreements for emergency access to the fuel farms located in Southlake, west of State Highway 26. Supporting Documents: DART License Agreement (MP 615.71) DART License Agreement (MP 615.99) Staff Recommendation: Approve two (2) DART license agreements for Emergency Access from State Highway 26 into the various fuel farms by the Southlake Department of Public Safety. Staff Contact: Robert H. Price, P.E., Public Works Director Michael Starr, Fire Chief David Barnes, Fire Marshal AGREEMENT No. LICENSE AGREEMENT FOR EMERGENCY ACCESS 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 (the "Act ") and the CITY OF SOUTHLAKE , a Texas municipal corporation ( "Licensee "), acting by and through its duly authorized official, whose mailing address is 1400 Main Street, Suite 420, Southlake, Texas 76092. WITNESSETH: WHEREAS, Licensor now owns certain railroad right -of -way adjacent to the city limits of the Licensee; and WHEREAS, Licensor has a Trackage Rights Agreement with Fort Worth & Western Railroad (the "Railroad "), whereby the Railroad has responsibilities for certain maintenance or existing at grade road crossings adjacent to the railroad right -of -way; and WHEREAS, Licensor has licensed an existing private road crossing to NuStar Logistics, L.P., as identified as DOT No. 789736W, and WHEREAS, Licensee proposes to assume the NuStar Logistics, L.P., private road crossing and use it for emergency access only, and to keep the crossing barred by a locked gate or chain at all other times, NOW, THEREFORE, 1. Purpose. Licensor hereby grants this License to Licensee for the purpose of maintaining a barricaded, at- grade, 27 -foot x 100 -foot wide road crossing, covering an area of approximately 2,700 - square feet more or less, consisting of concrete pavement, with asphalt installed between each railroad tie and secured with two steel bollards, steel chain and lock (the "Permitted Improvement "), that will be used only for emergency access by the City of Southlake Fire Department and/or Police Department in order to respond to Fire or Police emergencies (the "Permitted Uses "). The crossing (the "Road Crossing ") is located approximately 516 -feet east of Mustang Court within the right -of -way of Licensor's Cotton Belt Line at Mile Post 615.71, in Grapevine, Tarrant County, Texas, more particularly as shown in Exhibit "A ", attached hereto and incorporated herein for all pertinent purposes (the "Property "). The term "Road Crossing" shall include the concrete and asphalt crossing material, pavement, barricades, drainage facilities, signs, pavement markings, approaches, bollards, chain and lock (the "Permitted Improvements "). The Property shall be used by Licensee only, and shall be prohibited to be used by the general public or adjoining property owner(s), and is solely for the Permitted Uses and the Permitted Improvements, 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 Emergency Road Crossing Mile Post 615.71 East of Mustang Court- Southlake 1 of 7 2.02. TEN AND NO /100 ($10.00) DOLLARS cash in hand paid by Licensee to Licensor, and 2.03 The payment for the entire cost of maintaining the emergency road crossing, including any drainage facilities caused to be required thereof, and 2.04 The future costs of reconstruction of the Permitted Improvements within the limits of the railroad ties within the road crossing. This area of the road crossing may become a liability to the Railroad due to deterioration or obsolesce 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 road crossing within the limits of the railroad ties, at the sole cost of the Licensee. 3. Term. This License shall begin on the 1S day of November, 2011, 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. 5.01 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 Licensor or with any railroad operations. 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 and any working area, shall be submitted for written approval to Licensor and the Railroad (the "Railroad ", whether one or more) 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 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 License. 5.04. 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 construction of the crossing surface within the limits of the ties. Licensee also agrees to be responsible for the cost of future reconstruction upon the useful life of the crossing surface. 5.05. Licensee or its contractor shall remove all trees and other vegetation within the railroad right of way for a distance of 300 feet in all four quadrants of the right of way. 5.06. 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. Emergency Road Crossing Mile Post 615.71 East of Mustang Court - Southlake 2 of 7 5.07. Absence of markers does not constitute a warranty by Licensor that there are no subsurface installations on the Property. 5.08. 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 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. 7.01 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 Contractors 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. 7.02 Licensee shall procure and maintain at its sole cost and expense, Commercial General Liability Insurance and Comprehensive Automobile Liability Insurance with a combined single limit of liability of not less than $2,000,000 naming Licensor, and the operating Railroad, as an additional insured without any qualifications or restrictions, and Workers' Compensation Insurance providing statutory benefits. Contractual liability must be included with exclusions for operations within fifty (50) feet of a railroad deleted, and Licensor must be given thirty (30) days prior written notice of any proposed cancellation or modification. The policies shall be endorsed waiving the issuing insurance company's rights of recovery against Licensor and the Railroad, whether by way of subrogation or otherwise 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 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 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. Emergency Road Crossing Mile Post 615.71 East of Mustang Court - Southlake 3 of 7 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, to the extent permitted by law, 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 Improvements have been constructed, the active warning devices /signals and the grade crossing 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 Improvements. In the event the Licensee fails to maintain the Permitted Improvements 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 Improvements shall be necessary or convenient for Licensor 's use of the Property, or that the crossing 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 Improvements so as not to interfere with Licensor's or Licensor's assigns use of the Property, unless Licensee chooses to instead terminate this License as provided herein. In this regard, Licensor 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 Licensor, and Licensee shall promptly commence to make the required changes and complete them as quickly as possible. 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 Improvements; (b) in the event Licensee shall relocate the Permitted Improvements 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. Emergency Road Crossing Mile Post 615.71 East of Mustang Court - Southlake 4 of 7 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 federal railroad regulatory agency's requirements for whistles at at -grade public and private road crossings. 15. Indemnification. 15.01. Licensee, to the extent permitted by law, shall defend, protect and keep Licensor 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; 15.02. Licensee, to the extent permitted by law, shall at all times protect, indemnify and it is the intention of the parties hereto that Licensee hold Licensor and 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, 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 Licensor or Railroad, their officers, employees or agents, and then only to the extent of the proportion of any fault determined against Licensor for its willful misconduct or negligence; 15.03. Licensee, to the extent permitted by law, shall at all times protect, indemnify and hold Licensor 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 hereof. 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 any of the following ways: 18.01. Written agreement of both parties; License. 18.02. By either party giving the other party thirty (30) days written notice; or 18.03. By either party, upon failure of the other party to perform its obligations as set forth in this Emergency Road Crossing Mile Post 615.71 East of Mustang Court- Southlake 5 of 7 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 1401 Pacific Avenue Dallas, Texas 75266 -7210 Dallas, Texas 75202 -7210 Attn: Railroad Management LICENSEE: City of Southlake Attn: City Manager 1400 Main Street Southlake, Texas 76092 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 and Venue This License shall be construed under and in accordance with the laws of the State of Texas. This license is fully performable in Tarrant County, Texas and any action to enforce or construe any provision hereof, and any action for breach hereof, shall be brought in court of competent jurisdiction in such county. 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. New License. It is mutually agreed and understood that this License cancels and supersedes License No. 200795, dated December 11, 2008, or any previous agreements or easements granted by Licensor or Licensor's predecessor railroads in regard to this Agreement. Emergency Road Crossing Mile Post 615.71 East of Mustang Court- Southlake 6 of 7 19.09. No Waiver of Government Immunity. Nothing contained in this License shall be deemed or construed to waive the Licensee's governmental immunity or other legal protections afforded Licensee, including any damage caps, except to the extent expressly stated or necessarily implied hereto. 19.10. No Third Party Beneficiaries. There are no intended third -party beneficiaries of this License, and nothing contained in this License shall be deemed or construed to provide any claims, rights or remedies to any person or entity not named party to this License. IN WITNESS WHEREOF, the parties have executed this License in multiple originals this day of , 2011. LICENSOR: DALLAS AREA RAPID TRANSIT TIMOTHY H. MCKAY Senior Vice President Rail Program Development LICENSEE: CITY OF SOUTHLAKE Printed Name: Title: Emergency Road Crossing Mile Post 615.71 East of Mustang Court - Southlake 7 of 7 V N N V O (�V 0) >, cu U i CD N O U N Q 1 LL U) m ^ x W O U i Q cz (D L O U c� U) I O U) cz m io rn rn T U) U) O L U m O U O O 0) L. O E W fi d 4a.'4ytii•y D O v w u V 7 O u vi c�'� - �� m QE o N w 2E t0 E O E v W + 's K W AGREEMENT No. LICENSE AGREEMENT FOR EMERGENCY ACCESS 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 (the "Act ") and the CITY OF SOUTHLAKE , a Texas municipal corporation ( "Licensee "), acting by and through its duly authorized official, whose mailing address is 1400 Main Street, Suite 420, Southlake, Texas 76092. WITNESSETH: WHEREAS, Licensor now owns certain railroad right -of -way adjacent to the city limits of the Licensee; and WHEREAS, Licensor has a Trackage Rights Agreement with Fort Worth & Western Railroad (the "Railroad "), whereby the Railroad has responsibilities for certain maintenance or existing at grade road crossings adjacent to the railroad right -of -way; and WHEREAS, Licensor has licensed an existing private road crossing to Conoco Phillips Pipeline Company, and WHEREAS, Licensee proposes to assume the Conoco Phillips Pipeline Company, private road crossing and use it for emergency access only, and to keep the crossing barred by a locked gate or chain at all other times, NOW, THEREFORE, 1. Purpose. Licensor hereby grants this License to Licensee for the purpose of maintaining a barricaded, at- grade, 27 -foot x 100 -foot wide road crossing, covering an area of approximately 2,700 - square feet more or less, consisting of concrete pavement, with asphalt installed between each railroad tie and secured with two steel bollards, steel chain and lock (the "Permitted Improvement "), that will be used only for emergency access by the City of Southlake Fire Department and/or Police Department in order to respond to Fire or Police emergencies (the "Permitted Uses "). The crossing (the "Road Crossing ") is located approximately 1,993 -feet east of Mustang Court within the right -of -way of Licensor's Cotton Belt Line at Mile Post 615.99, in Grapevine, Tarrant County, Texas, more particularly as shown in Exhibit "A ", attached hereto and incorporated herein for all pertinent purposes (the "Property "). The term "Road Crossing" shall include the concrete and asphalt crossing material, pavement, barricades, drainage facilities, signs, pavement markings, approaches, bollards, chain and lock (the "Permitted Improvements "). The Property shall be used by Licensee only, and shall be prohibited to be used by the general public or adjoining property owner(s), and is solely for the Permitted Uses and the Permitted Improvements, 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 Emergency Road Crossing Mile Post 615.71 East of Mustang Court- Southlake 1 of 7 2.02. TEN AND NO /100 ($10.00) DOLLARS cash in hand paid by Licensee to Licensor, and 2.03 The payment for the entire cost of maintaining the emergency road crossing, including any drainage facilities caused to be required thereof, and 2.04 The future costs of reconstruction of the Permitted Improvements within the limits of the railroad ties within the road crossing. This area of the road crossing may become a liability to the Railroad due to deterioration or obsolesce 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 road crossing within the limits of the railroad ties, at the sole cost of the Licensee. 3. Term. This License shall begin on the 1S day of November, 2011, 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. 5.01 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 Licensor or with any railroad operations. 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 and any working area, shall be submitted for written approval to Licensor and the Railroad (the "Railroad ", whether one or more) 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 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 License. 5.04. 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 construction of the crossing surface within the limits of the ties. Licensee also agrees to be responsible for the cost of future reconstruction upon the useful life of the crossing surface. 5.05. Licensee or its contractor shall remove all trees and other vegetation within the railroad right of way for a distance of 300 feet in all four quadrants of the right of way. 5.06. 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. Emergency Road Crossing Mile Post 615.71 East of Mustang Court - Southlake 2 of 7 5.07. Absence of markers does not constitute a warranty by Licensor that there are no subsurface installations on the Property. 5.08. 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 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. 7.01 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 Contractors 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. 7.02 Licensee shall procure and maintain at its sole cost and expense, Commercial General Liability Insurance and Comprehensive Automobile Liability Insurance with a combined single limit of liability of not less than $2,000,000 naming Licensor, and the operating Railroad, as an additional insured without any qualifications or restrictions, and Workers' Compensation Insurance providing statutory benefits. Contractual liability must be included with exclusions for operations within fifty (50) feet of a railroad deleted, and Licensor must be given thirty (30) days prior written notice of any proposed cancellation or modification. The policies shall be endorsed waiving the issuing insurance company's rights of recovery against Licensor and the Railroad, whether by way of subrogation or otherwise 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 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 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. Emergency Road Crossing Mile Post 615.71 East of Mustang Court - Southlake 3 of 7 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, to the extent permitted by law, 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 Improvements have been constructed, the active warning devices /signals and the grade crossing 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 Improvements. In the event the Licensee fails to maintain the Permitted Improvements 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 Improvements shall be necessary or convenient for Licensor 's use of the Property, or that the crossing 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 Improvements so as not to interfere with Licensor's or Licensor's assigns use of the Property, unless Licensee chooses to instead terminate this License as provided herein. In this regard, Licensor 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 Licensor, and Licensee shall promptly commence to make the required changes and complete them as quickly as possible. 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 Improvements; (b) in the event Licensee shall relocate the Permitted Improvements 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. Emergency Road Crossing Mile Post 615.71 East of Mustang Court - Southlake 4 of 7 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 federal railroad regulatory agency's requirements for whistles at at -grade public and private road crossings. 15. Indemnification. 15.01. Licensee, to the extent permitted by law, shall defend, protect and keep Licensor 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; 15.02. Licensee, to the extent permitted by law, shall at all times protect, indemnify and it is the intention of the parties hereto that Licensee hold Licensor and 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, 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 Licensor or Railroad, their officers, employees or agents, and then only to the extent of the proportion of any fault determined against Licensor for its willful misconduct or negligence; 15.03. Licensee, to the extent permitted by law, shall at all times protect, indemnify and hold Licensor 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 hereof. 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 any of the following ways: 18.01. Written agreement of both parties; License. 18.02. By either party giving the other party thirty (30) days written notice; or 18.03. By either party, upon failure of the other party to perform its obligations as set forth in this Emergency Road Crossing Mile Post 615.71 East of Mustang Court- Southlake 5 of 7 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 1401 Pacific Avenue Dallas, Texas 75266 -7210 Dallas, Texas 75202 -7210 Attn: Railroad Management LICENSEE: City of Southlake Attn: City Manager 1400 Main Street Southlake, Texas 76092 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 and Venue This License shall be construed under and in accordance with the laws of the State of Texas. This license is fully performable in Tarrant County, Texas and any action to enforce or construe any provision hereof, and any action for breach hereof, shall be brought in court of competent jurisdiction in such county. 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. New License. It is mutually agreed and understood that this License cancels and supersedes License No. 200795, dated December 11, 2008, or any previous agreements or easements granted by Licensor or Licensor's predecessor railroads in regard to this Agreement. Emergency Road Crossing Mile Post 615.71 East of Mustang Court- Southlake 6 of 7 19.09. No Waiver of Government Immunity. Nothing contained in this License shall be deemed or construed to waive the Licensee's governmental immunity or other legal protections afforded Licensee, including any damage caps, except to the extent expressly stated or necessarily implied hereto. 19.10. No Third Party Beneficiaries. There are no intended third -party beneficiaries of this License, and nothing contained in this License shall be deemed or construed to provide any claims, rights or remedies to any person or entity not named party to this License. IN WITNESS WHEREOF, the parties have executed this License in multiple originals this day of , 2011. LICENSOR: DALLAS AREA RAPID TRANSIT TIMOTHY H. MCKAY Senior Vice President Rail Program Development LICENSEE: CITY OF SOUTHLAKE Printed Name: Title: Emergency Road Crossing Mile Post 615.71 East of Mustang Court - Southlake 7 of 7 O N N V O 0) cu U i CD N O U N Q LL N cz X O O O U c� c� m m Q cz O U c� U) I O U) cz m io rn rn T U) U) O L U m O U O O 0) O E W :E K W