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