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HomeMy WebLinkAboutResolution 2000-079 RESOLUTION NO. 2000-79 that: BE IT RESOLVED by the City Council of the City of North Richland Hills, Texas, 1. The City Manager be, and is hereby authorized to execute the attached license agreement with DART for a 30-inch wastewater line crossing under the Cotton belt Line southwest of Calloway Branch at Mile Post 623.836, as an act and deed of the City. PASSED AND APPROVED, this 23rd day of October, 2000. C" . i\ 1 } 1 I / '\"'" . ,(l¿t.l(! I, Clýl'c:t~_ Chàrles Scoma, Mayor ATTEST: (~:;? MVC:(á ;tIttt~ Patricia Hutson, City Secretary / APPRO\fE1¥ AS T9tlEÇ1ALJTY: J ,.i" /1/' ,)/'" ' , "<' / , ,/ /1 '\...,.C/¿...')l", Re~/McEntire, St\tk5mêy for ttrê City APPROVED AS TO CONTENT: AGREEMENT # r J (: ( [¡ ..s 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, formerly Article 1118y, VAT.C.S., as amended (the "Act") and the CITY OF NORTH RICH LAND HILLS, a municipal corporation, ("Licensee"), acting herein by and through its duly authorized city manager, whose mailing address is P.O. Box 820609, North Richland Hills, Texas 76182-0609, WIT N E SSE T H: I. Purpose. DART hereby grants a license to Licensee for the purposes of constructing, installing, maintaining and operating one (1) buried 30-inch sanitary sewer pipeline (the "Permitted Improvement") crossing approximately 73.8 feet east of Tecnol Boulevard at Mile Post 623.836, in North Richland Hills, Tarrant County, Texas, more particularly described as shown in Exhibits "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 October, 2000 (the "Term") and continue thereafter until terminated by either party as provided herein, 3. Consideration. The consideration for the granting of this License shall be (a) payment by Licensee to DART the sum of THREE THOUSAND TWO HUNDRED SEVENTY AND NO/100 ($3,270.00) DOLLARS cash in hand paid by Licensee to DART (the "Licensee Fee"), and (b) the performance by Licensee of each of the obligations undertaken by Licensee in this License. 4. Non Exclusive License. This license is non-exclusive and is subject to (a) any existing utility, drainage or communication facility located in, on, under, or upon the Property owned by 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 stray current which may cause corrosion. Licensee is hereby warned that such measures may not prevent electrical current being present in proximity to the Permitted Improvements and that such presence could produce corrosive effects to the Permitted Improvements. 5.01. All 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 the operating Railroad (whether one or more). 5.02. 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. Such approval shall not be unreasonably withheld. No work shall commence until said plans have been approved by DART. One (1) bUried 30" sanitary sewer pipeline Page 1 of 5 M.P. 623.836 5.03. By acceptance of this license, Licensee agrees to maintain the Permitted Improvement in such a manner so as not to create a hazard to the use of the Property, and further agrees to pay any damages which may arise by reason of Licensee's use of the Property under this Agreement. 5.04. 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. No work on the Property shall be commenced by Licensee or any contractor for Licensee until such Licensee or contractor shall have executed DART's Standard Construction Agreement and Contractor's Right of Entry covering such work, and has furnished insurance coverage in such amounts and types as shall be satisfactory to DART. 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 DART. 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 replace or repair the damage at no cost or expense to DART. If Licensee or its contractor fails or refuses to make such 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 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 Contractors. 9.03. The terms "hazardous substance" and "release" shall have the meanings specified in CERCLA and the terms "solid waste" and "disposal" (or "disposed") shall have the meanings specified in the RCRA; PROVIDED, HOWEVER, that in the event either CERCLA or RCRA is amended so as to broaden the meaning of any term defined thereby, such broader meaning shall apply subsequent to the effective date of such amendment; and PROVIDED FURTHER, that to the extent that the laws of the State of Texas establish a meaning for "hazardous substance", "release", "solid waste", or "disposal", which is broader than that specified in either CERCLA or RCRA, such broader meaning shall apply. 9.04. Licensee shall indemnify 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. 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. One (1) buried 3D" san,tary sewer p,peline Page 2 of 5 M.P. 623.836 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, policies 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 the 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, its employees, officers, agents, contractors, 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 the Railroad harmless against and from any and all loss, cost, damage or expense, 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, agents, customers and invitees; 15.03. Licensee shall at all times protect, indemnify and hold DART and the Railroad harmless against and from any and all loss, cost, damage or expense, including attorney's fees arising out of any failure of Licensee or the Railroad, their employees, officers, agents, contractors or assigns in any respect to comply with and perform all the requirements and provisions hereof. 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 and shall restore the Property to the condition satisfactory to DART, at Licensee's sole expense. One (1) bUried 30" sanrtary sewer pipeline Page 3 of 5 M.P. 623.836 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 obligation 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 sixty (60) 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 TTN: Railroad Management LICENSEE: City of North Richland Hills P.O. Box 820609 North Richland Hills, Texas 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, Entirety 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. 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. One (1) buried 30" sanitary sewer pipeline Page 4 of 5 M.P. 623,836 IN WITNESS WHEREOF, the parties have executed this Agreement in multiple originals this ; I s f day of I\. h. , 2000. LICENSOR: DALLAS AREA RAPID TRANSIT BY: //\ (' t¿ ':>"'-- RodER SNðáLE PresidenUExecutive Director LICENSEE: CITY OF NORTH RICHLAND HILLS I 'I / . . I BY: /: l, ' ! 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