HomeMy WebLinkAboutResolution 2002-056
RESOLUTION NO. 2002-056
BE IT RESOLVED by the City Council of the City of North Richland Hills, Texas,
that:
1.
The City Manager be, and is hereby authorized to execute the attached license
agreement with DART for a golf cart crossing at Iron Horse Golf Course under the
Cotton Belt Line located at Mile Post 626.19, as the act and deed of the City.
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Patricia Hutson, City Secretary
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Oscar Trevino, Mayor
APPROVED AS TO CONTENT:
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rvÝike CDrtis, Pu lie Works Director
AGREEMENT NO. 200280
LICENSE AGREEMENT
THIS Agreement, by and between DALLAS AREA RAPID TRANSIT ("DART"), a regional transportation
authority, created, organized and existing pursuant to Chapter 452, Texas Transportation Code,
VAT.C.S., as amended (the "Act") and CITY OF NORTH RICHLAND HILLS, a Texas municipal
corporation ("Licensee"), acting herein by and through its duly authorized official, whose mailing
address is Post Office Box 820609 North Richland Hills, TX 76182-0609.
WIT N E SSE T H:
I. Purpose, DART hereby grants a license to Licensee for the purposes of maintaining and operating
an asphalt cart path for golf carts (the "Permitted Improvement") underneath DART's Cotton Belt Line at
Mile Post 626.19, in North Richland Hills, Tarrant County, Texas, more particularly described as shown
in Exhibit "A" attached hereto and incorporated herein for all pertinent purposes, (the "Property").
The Property shall be used by Licensee solely for the purpose of operating and maintaining the
Permitted Improvement (the "Permitted Use"). Licensee's right to enter upon and use the Property shall
be limited solely to the Permitted Use and the Permitted Improvement.
2. Term, The term of this License shall begin on the 1st day of July, 2002 (the "Term") and continue
thereafter until terminated by either party as provided herein.
3. Consideration
3.01 The consideration for the granting of this License shall be (a) payment by Licensee to
DART the sum of SIX HUNDRED AND NO/100 ($600.00) DOLLARS per annum, payable annually in
advance (the "Licensee Fee"), and (b) the performance by Licensee of each of the obligations
undertaken by Licensee in this License.
3.02 Any payment not received by DART by the 10th day after it is due, shall bear a late
charge of $25.00 to help offset the administrative cost involved in handling such late payment.
3.03 For any payment not received by DART by the 15th day after it is due, such payment
shall bear interest at the rate of 18% per annum from the date it was due until it is paid, in addition to
the late charge. .
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 DART, any
railroad, utility, or communication company, public or private; (b) to all vested rights presently owned by
any railroad, utility or communication company, located within the boundaries of the Property; and (c) to
any existing lease, license or other interest in the Property granted by DART to any individual,
corporation or other entity, public or private.
5. Construction, Operation and Maintenance. DART's use of the Property and adjoining property
may include the use of electrically powered equipment. Notwithstanding DART's inclusion within its
system of measures designed to reduce strfiy current which may cause corrosion. Licensee is hereby
warned that such measures may not prevent electrical current being present in proximity to the
Permitted Improvements and that such presence could produce corrosive effects to the
Permitted Improvements,
5.01. All design, construction, reconstruction, replacement, removal, operation and maintenance
of the Permitted Improvement on the Property shall be done in such a manner so as not to interfere in
any way with the operations of DART or other railroad operations. In particular, cathodic protection or
other stray current corrosion control measures of the Permitted Improvements as required shall be
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made a part of the design and construction of the Permitted Improvements.
5.02. During the design phase and prior to commencing any construction on the Property, a
copy of the construction plans showing the exact location, type and depth of the construction, any
cathodic protection measures and any working area, shall be submitted for written approval to DART
and Fort Worth & Western Railroad (the "Railroad", whether one or more). Such approval shall not be
unreasonably withheld. No work shall commence until said plans have been approved by DART.
5.03. By acceptance of this license, Licensee agrees to design and construct the Permitted
Improvement in such a manner so as not ,to create a hazard to the use of the Property, and further
agrees to pay any damages which may arise by reason of Licensee's use of the Property under this
Agreement.
5.04 By acceptance of this license, Licensee covenants and agrees to institute and maintain a
reasonable testing program to determine whether or not additional cathodic protection of its Permitted
Improvements is necessary and if it is or should become necessary, such protection shall be
immediately instituted by Licensee at its sole cost and expense.
5.05. Absence of markers does not constitute a warranty by DART that there are no
subsurface installations on the Property,
6. Governmental Approvals. Licensee, 'at its sole cost and expense, shall be responsible for and
shall obtain, any and all licenses, permits, or other approvals from any and all governmental agencies,
federal, state or local, required to carry on any activity permitted herein.
7. DART's Standard Contract and Insurance. Prior to occupancy of premises under this agreement,
Licensee agrees to procure and maintain at its sole cost and expense, the following types and amounts
of insurance with an insurer or insurers and form satisfactory to DART:
Comprehensive general and automobile liability insurance with contractual liability endorsement and
products and completed operations hazards included, which shall provide coverage for combined single
limits of not less than $2,000,000, as further outlined below.
All insurance coverage's required by the att'ached agreement shall provide the following as a minimum
standard:
(a) Comprehensive General Liability With Contractual Liability Endorsement.
- Combined single limit of at least $2,000,000.
- DART, Railroad and all affiliated companies and organizations are named as additional
insureds without any qualifications or restrictions.
- DART must have 30 days notice of cancellation or modification.
(b) Comprehensive Automobile Liability Policy
- Combined single limit of at least $2,000,000.
- DART and Railroad are named as additional insureds without any qualifications or restrictions.
- must have 30 days notice of cancellation or modification.
(c) Workers' Compensation Insurance
- Providing Statutory Benefits under the Workers' Compensation Act of the State of Texas
and/or any other State or Federa1 Law or Laws applicable to the Licensee's employees
performing the work under this agreement.
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- Employer's Liability Insurance with limits of liability of not less than $500,000 each accident
$100,000 each employee for disease and $500,000 policy limit for disease.
- Endorsed with a Waiver of Subrogation Endorsement, waiving the carrier's right of recovery
under subrogation or otherwise from the Authority.
(d) Licensee agrees to furnish DART Certificates of Insurance (or, as and when DART may direct,
copies of the actual insurance policies) as evidence of the coverage's outlined in (a), (b) and (c)
above. Approval will be expedited if all required coverage's and the following endorsements are
included on the Certificates:
- Endorsement showing DART and its affiliate companies and organizations named as additional
insureds. The certificate must specify that the endorsement is applicable to the General Liability
and Auto Liability Policies.
- Contractual liability endorsement.
- Endorsement removing exclusions from contractual liability endorsement for operations within
50 feet of a railroad or the purchase of a Railroad Protective Policy.
- Endorsement removing exclusions for XCU hazards.
- Waiver of subrogation endorsement specific to Workers' Compensation.
8. Duty of Care in Construction, Licensee or its Licensee 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 DART. If the
failure to use reasonable care by the Licensee or its Licensee causes damage to the Property or any
adjacent property, the Licensee and/or its Licensee shall immediately replace or repair the damage at
no cost or expense to DART. If Licensee or its Licensee fails or refuses to make or effect any such
repair or replacement, DART 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 DART 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 laws pertaining to health or the environment, including without limitation, the
Comprehensive Environmental Response, .Compensation and Liability Act of 1980 ("CERCLA"), the
Resource Conservation and Recovery Act of 1976 ("RCRA"), the Texas Water Code and the Texas
Solid Waste Disposal Act.
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 insure that no such hazardous substance or solid waste will ever be discharged
onto the Property by Licensee or its Licensees.
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 th~reby, such broader meaning shall apply subsequent to the
effective date of such amendment; and PROVIDED FURTHER, that to the extent that the laws of the
State of Texas establish a meaning for "hazardous substance", "release", "solid waste", or "disposal",
which is broader than that specified in either CERCLA or RCRA, such broader meaning shall apply.
9.04. Licensee shall indemnify and hold DART harmless against all cost of environmental clean
up to the Property resulting from Licensee's use of the Property under this Agreement.
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10. Mechanic's Liens Not Permitted, Lièensee shall fully pay for all labor and materials used in, on,
or about the Property and will not permit or suffer any mechanic's or materialmen's liens of any nature
to be affixed against the Property by reason of any work done or materials furnished to the Property at
Licensee's instance or request.
11. Maintenance of Completed Improvements. The Permitted Improvement shall be maintained by
the Licensee in such a manner as to keep the Property in a good and safe condition with respect to
Licensee's use. In the event the Licensee fails to maintain the Property as required, upon discovery,
DART 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, DART shall have the right, but
not the obligation to remedy such failure at the sole cost and expense of Licensee. In the event DART
exercises its right to remedy Licensee's failure, Licensee agrees to immediately pay to DART all costs
incurred by DART upon demand.
12. Future Use by DART,
12.01. This license is made expressly subject and subordinate to the right of DART to use the
Property for any purpose whatsoever.
12.02. In the event that DART shall, at any time subsequent to the date of this Agreement, at its
sole discretion, determine that the relocation of the Permitted Improvements shall be necessary or
convenient for DART's use of the Property, Licensee shall, at its sole cost and expense relocate said
Permitted Improvements so as not to interfere with DART's or DART's assigns use of the Property. In
this regard, DART 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 DART.
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 Agreement, whichever event first occurs.
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, polici~s and operating procedures established by the Railroad, or
other applicable railroad regulating bodies, and Licensee agrees to indemnify and hold DART harmless
from any failure to so abide and all actions resulting therefrom.
15. Indemnification,
15.01. Licensee shall defend, protect, and keep DART and Railroad forever harmless and
indemnified against and from any penalty or damage or charge imposed upon DART for any violation of
any law, ordinance, rule or regulation arising out of the use of the Property by Licensee, its employees,
officers, agents, Licensees, or assigns, or those holding under Licensee;
15.02. Licensee shall at all times protect, indemnify and it is the express intention of the
parties hereto that Licensee hold DART ,and Railroad harmless against and from any and all loss,
cost, damage or expense incurred by DART, including attorney's fees, arising out of or from any
accident or other occurrence on or about said Property resulting from use of the Property by Licensee,
its officers, employees, and agents;
15.03. Licensee shall at all times protect, indemnify and hold DART and Railroad harmless
against and from any and all loss, cost, damage or expense, including attorney's fees arising out of any
failure of Licensee, its employees, officers, agents, Licensees or assigns in any respect to comply with
and perform all the requirements and provisions hereof.
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16. Action Upon Termination of License. At such time as this license may be terminated or
canceled for any reason whatever, Licensee, upon request by DART, shall remove all improvements
and appurtenances owned by it, situated in, under or attached to the Property, regardless of whether or
not such improvements were placed thereon by Licensee or others, and shall restore the Property to
the condition satisfactory to DART, at Licensee's sole expense.
17. Assignment, Licensee shall not assign or transfer its rights under this Agreement in whole or in
part, or permit any other person or entity to use the License hereby granted without the prior written
consent of DART which DART is under no pbligation to grant.
18. Methods of Termination. This Agreement may be terminated in any of the following ways:
18.01. Written Agreement of both parties;
18.02. By either party giving the other party thirty (30) days written notice;
18.03. By either party, upon failure of the other party to perform its obligations as set forth in this
Agreement.
19. Relocation Benefits. The parties hereto agree that the construction of the Permitted
Improvements on the Property shall be subsequent to the acquisition of the Property by DART and that
the Licensee does hereby waive any and all claim that it may have under the Act, or otherwise,
regarding the payment of any and all relocation benefits and that all costs associated with any
relocation of such Improvements shall be borne by the Licensee.
20. Miscellaneous,
20.01. Notice. When notice is permitted or required by this Agreement, 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:
DART:
Dallas Area Rapid Transit
P. O. Box 660163
Dallas, Texas 75266-7210
A TIN: Railroad Management
LICENSEE:
City of North Richland Hills
P. O. Box 820609
North Richland Hills, TX 76182-0609
Either party may from time to time designate another and different address for receipt of notice
by giving notice of such change of address.
20.02. Attornev Fees. Any signatory to this Agreement who is the prevailing party in any legal
proceeding against any other signatory brought under or with relation to this Agreement shall be entitled
to recover court costs and reasonable attorney fees from the non-prevailing party.
20.03. Governinq Law. This Agreement shall be construed under and in accordance with the
laws of the State of Texas.
20.04. Entiretv and Amendments. This Agreement embodies the entire agreement between the
parties and supersedes all prior agreements and understandings, if any, relating to the Property and the
matters addressed herein, and may be amended or supplemented only by a written instrument
executed by the party against whom enforcement is sought.
20.05. Parties Bound. This Agreement shall be binding upon and inure to the benefit of the
executing parties and their respective heirs, 'personal representatives, successors and assigns.
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20.06. Number and Gender. Words of any gender used in this Agreement 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.
IN WITNESS WHEREOF, the parties hav~ executed this Agreement in multiple originals this JJ1l
day of ~ v \1 ,2002.
LICENSOR:
DALLAS AREA RAPID TRANSIT
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LICENSEE:
CITY OF NORTH RICHLAND HILLS
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Printed Name: ~ .:- .,J ~,Js /:/1'>1
Title: ÚTY 1J7/1l11/J- ~
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ÓART General Counsel
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