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HomeMy WebLinkAboutResolution 1993-025 RESOLUTION NO. 93-25 that: BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF NORTH RICHLAND HILLS, TEXAS, The Mayor be, and is hereby, authorized to execute the agreement between the City of North Richland Hills, Texas and Dallas Area Rapid Transit concerning the concrete channel liner improvements on Walker's Branch Channel in DART right-of-way just downstream of Stonybrooke South Addition, a copy of which is attached to this resolution, as the act and deed of the City of North Richland Hills. PASSED AND APPROVED this 14th day of June, 1993, A.D. APPROVED: ATTEST: '- 1 _n"r- Tommy Brown, ayor ----... ~ .... - "..,--,,-~-_._._...-~~"-_._.__._--~,------- AGREEMENT # q307/~ LICENSE AGREEMENT THIS Agreement, made by and between DALLAS AREA RAPID TRANSIT ("DART"), a regional transportation authority, created, organized and existing pursuant to Article 1118y, V.A.T.C'.S., as amended (the "Act") and the CITY OF NORTH RICHLAND HILLS, a municipal corporati,on, ("Licensee"), acting herein by and through its duly authorized officer, whose mailing address is P. o. Box 820609, North Richland Hills, Texas (76182). WIT N E SSE T H: 1. Purpose. DART hereby grants to Licensee the privilege of constructing and maintaining a concrete channel liner (the "Permitted Improvements") under the existing Walkers Branch railroad trestle' on property owned by DART at Mile Post 621.84 in North Richland Hills, Tarrant County, Texas at the location set out on the plat marked Exhibit "A" attached hereto and incorporated herein (the "Property"). 2. Nature of Permitted Improvements. The Permitted Improvements shall be constructed and maintained on the Property, in conformance with the Construction Plans submitted to DART on March 30, 1993 for approval, prior to commencement of any construction, and by reference is incorporated herein. 3. Term. The term of this License shall begin on the first day of July, 1993, (the "License Date") and continue thereafter until terminated as provided herein. ., 4. Consideration. As consideration for the granting of this License, Licensee shall perform at its own expense all construct'ion and maintenance of the Permitted Improvements, including keeping the drainage channel free of brush and debris. 5. Non-Exclusive License. This license is non-exclusive and is subject to (a) any existing utility, drainage or communication facili ty located in, on, under, or upon the Property owned by DART, any railroad, utility, or communication co~pany, 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. 6. Construction, Operation and Maintenance. 6.01. All 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 DART or other railroad operations, if any. Property, a 6.02. copy of Prior to commencing construction the construction plans showing the on the exact CHANNEL. DOCjms 1 location, type and depth of the construction, and any working area, shall be submitted for written approval to DART and the operating 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. 6.03. By acceptance of this License, Licensee agrees to 'construct 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 Agreement. 6. 04 . Absence of markers does not constitute a warranty by DART that there are no subsurface installations on the Property. 7. 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. 8. 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 Contractors Agreement covering such work, and has furnished insurance coverage in such amounts and types as shall be satisfactory to DART. 9. Dutv 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 adj acent 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 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. 10. Environmental Protection. 10.01. 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, inçluding 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. 10.02. 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 CHANNEL. DOCjms 2 hazardous substance or solid waste will ever be discharged onto the Property by Licensee or its Contractors. 10. 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 slzlch 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. , 10.04. Licensee shall indemnify and hold DART and Railroad harmless against all cost of environmental clean up to the Property resulting from Licensee's use of the Property under this Agreement. 11. Mechanic's Liens Not Permitted. Licensee shall fully pay for all labor and materials used in, on, or a~out 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. 12. Maintenance of Completed Improvements. After the Permitted Improvements have been constructed, they 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 maintqin 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. 13. Future Use bv DART. 13.01. This License is made expressly subject and subordinate to the right of DART to use the Property for any purpose whatsoever. 13.02. In the event that DART shall, at any time subsequent to the date of this Agreement, at its sole discretion, determine that the removal or the repair of the Permitted Improvements shall be necessary or convenient for DART's use of the Property, Licensee shall, at its sole cost and expense remove or make repairs to said Permitted Improvements so as not to interfere with DART's or DART's assigns construction or maintenance of the Property. Licensee agrëes to repair any damaged paving in the event the existing bridge structure must be renewed. A minimum of thirty (30) days written notice for the CHANNEL. DOCjms 3 exercise of one or more of the above actions shall be given by DART. 14. 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. 15. 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 remove the Permitted Improvements from the Property; or (c) upon termination in accordance with paragraph 20 of this Agreement, whichever event first occurs. 16. 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 railro~d 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. 17. Indemnification. 17.01. Licensee shall defend, protect, and keep DART 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; 17.02. 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, including attorney'S fees, 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 DART or Railroad, their officers, employees or agents, and then only to the extent of the proportion of any fault determined against DART or Railroad for their willful misconduct or negligence'; 17.03. 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, contractors or assigns in any respect to ,comply with and perform all the requirements and provisions hereof. 18. Action Upon Termination of License. At such time as CHANNEL. DOCjms 4 this License may be terminated or cancelled 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 existing at the date of execution of this License, at Licensee's sole expense. 19. Assiqnment. 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. 20. Methods of Termination. This Agreement may be terminated in any of the following ways: 20.01. Written Agreement of both parties; 20.02. By either party giving the other party thirty (30) days written notice; 20.03. By either party, upon failure of the other party to perform its obligations as set forth in this Agreement. 21. Miscellaneous. 21.01. 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 75266-7230 ATTN: Manager of Right of Way LICENSEE: City of North Richland Hills P. O. Box 820609 North Richland Hills, TX 76182 ATTN: Director of Public Works Either party may from time to time designate another and different address for receipt of notice by giving notice of such' change of address. 21.02. 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. 21.03. Governinq Law. This Agreement shall be construed under and in accordance with the laws of the state of Texas. 21.04. Entiretv and Amendments. This Agreement embodies the entire agreement between the parties and supersedes all prior agreements and understandings, if any, relating to the CHANNEL. DOCj ms I 5 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. 21.05. 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 . ! assJ.gns. 21. 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 ha~~~uted this A~~.eement in multiple originals this '? day of ~ ' 19~ LICENSOR: DALLAS AREA RAPID TRANSIT BY:j¿t~7ðL~, ~ prin ed Name: VIC'roR H. BURKE Tit Ie: C-.eneral Manager LICENSEE: CITY OF NORTH RICHLAND HILLS Tommy Brown CJ.ty Att0J:"ney CHANNEL. DOCjms 6 ." i- " 01 ..... UI . . 0 . 0 0>- 0 >- :'1 "'2 "'2 r " 01 N '" in o r // / ~S / ,/ f;I I ~/ ~ I /~..J /., _._.J UI I --'-'1 ~ ( \ f' \~ ~ \ \ /~: '" \--~ \---..- i \ \\ ~ \~~\/I ~ ~ 0~d~ lJ ;u o lJ o en -~ o \ ,Tj' 2 I, 5' 50' t."';"E- . ~ ~ þ 01 . ~ N ... UI '" ~ / '~\í \~ UTILITY E~MNT. © DART Dallas Area Rapid Transit P.O. Box 660163 Dallas. Tx. 75266-0163 EXHIBIT A attachrÅ“nt to License Agreement between DALLAS AREA RAPID 'I'RANSIT and CITY OF NORm RICHLAND HILIS for Walkers Branch concrete channel liner @ Mile Post 621.84