SS9301-CS 921103 (3) COPPELL PUBLIC WORKS
MEMORANDUM
DATE: November 3, 199'~
TO: Alan D. Ratliff, City Manager
FROM: Steven G. Goram, Director of Public Wo~
RE: Grapevine Creek Sewer Trunk Main - Branch II
DART License Agreement
The above referenced license agreement necessary for the
construction, installation and maintenance of the 24" sanitary
sewer main as part of the Grapevine Creek Branch II sewer project
is attached. This license agreement is necessary so we can enter
the property controlled by DART.
The city Attorney has negotiated and revised this agreement with
DART representatives over the last few months and I have attached
this correspondence to the packet.
For consideration of this agreement, the city must pay DART a
$500.00 fee.
Please review the attached information and if you have any
questions, please let me know. Otherwise, staff requests the
execution of these agreement documents. Thank you.
SGG/sm
cc: Ken Griffin, P.E., City Engineer
Larry Jackson, City Attorney
NICHOLS, JACKSON, KIRK & DILLARD
(Formerly Sallinge~. Nichols, Jackson, Kirk & Dillard) _..
Attorneys & Counselors at Law
LAWRENC¢' W. JACKSON ROBERT E.
:~. ,~RK 1800 Lincoln Plaza .ET~..~. sm.r. ........
ROBER~ L. O'L'~RO '. 500 N. Aka~l `jo.. ~.ERCE
ROSER~ o..E.-..LL Dallas, Texas 75201 c^v,D ~
(214) 954-3333 ~'0.. ~ Rock. ,,,
BRUCE A. STOCKA~*D
ROBERT L. DILLARD, ,JR.
.. LOU,S .,C.O'.S Facsimile (214) 954-3334 C.R;ST~.^ ^.
OF COUNSEL
September 18, 1992
Mr. Steve Goram
City of Coppell
P.O. Box 478
Coppell, Texas 75019
Re: Grapevine Creek Sewer Trunk Main - Branch II DART License Agreement
Our File No. 745
Dear Steve:
After reviewing the above License Agreement you sent me I started negotiations
with the DART representative in an effort to amend paragraph 14 dealing with city
indemnification.
Paragraph 14 as originally proposed by DART would have placed the City in an
untenable position from the standpoint of liability. The way the original provision was
written the City would have had to indemnify and defend DART against any claim growing
out of an accident within the track area of the license even if the accident was caused by
the negligence of DART and occurred on the track above our underground sewer pipe.
I have negotiated a new Indemnification Agreement with DART which requires the
City's indemnification only in case of an accident or occurrence that involves the City's
twenty-four inch sanitary sewer main, the "permitted improvements". Enclosed, therefore,
are new pages 4, 5 and 6 for substitution with the License Agreement previously sent to
the City by DART.
With this change I approve execution of the License Agreement by the City of
Coppell.
If you have any questions concerning this please do not hesitate to contact me.
Very truly yours,
NICHOLS, JACKSON, KIRK & DILLARD
By: ,," ;". - ./.-/
Lawrence W. Jackson
LWJ\mts
enclosure ,.
AGG03062
LICENSE AGREEMENT ~
LICENSE AGREEMENT
THIS Agreement, made this day of 19 by
t
and between DALLAS AREA RAPID TRANSIT ("DART"), a regional
transportation authority, created, organized and existing pursuant
to Article lllSy, V.A.T.C.$., as amended (the "Act") and CITY OF
COPPELL, a municipal corporation, ("Licensee"), acting herein by
and through its duly authorized officer, whose mailing address is
P. O. Box 478, Coppell, Texas (75019).
WITNESS ETH
In consideration of (1) Five Hundred Dollars ($500.00) cash
in hand paid by Licensee to DART, and (2) the faithful performance
by Licensee of all of the covenants and agreements contained in
this Agreement to be performed by Licensee, DART HEREBY GRANTS A
LICENSE to Licensee for the purpose of constructing, installing
and maintaining a 24-inch sanitary sewer main (the "Permitted
Improvements") at Mile Post 606.84 in Coppell, Dallas County,
Texas, more particularly described as shown in Exhibit "A-i" and
"A-2" attached hereto and incorporated herein for all pertinent
purposes, (the "Property").
The Property shall be used by Licensee solely for the purpose
of constructing, installing and maintaining a 24-inch sanitary
sewer main (the "Permitted Uses"). Licensee's right to enter upon
and use the Property shall be limited solely to the Permitted Uses
and the Permitted Improvements.
This License is granted subject to the terms and conditions
set out below.
1. Term. The term of this license shall be perpetual from
the date of execution hereof (the "Term") unless sooner terminated
by either party as provided in Section 17 hereof.
2. 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.
3. Construction, Operation and Maintenance.
3.01. 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.
3.02. Prior to commencing construction on the
COPPELL.DOCjms I
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 DART and the St.
Louis Southwestern Railway Company, ~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.
3.03. 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.
3.04. Absence of markers does not constitute a
warranty by DART that there are no subsurface installations on the
Property.
4. Governmental ApDrovals. 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.
5. 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.
6. 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 to DART upon demand.
7. Environmental Protection.
7.01. 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.
7.02. Licensee warrants that the Permitted Use of
the Property will not result in the disposal or other release of
COPPELL.DOCjms 2
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.
7.03. 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.
7.04. 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.
8. 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.
9. 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 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.
10. Future Use by DART.
10.01. This license is made expressly subject and
subordinate to the right of DART to use the Property for any
purpose whatsoever.
10.02. 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
COPPELL.DOCjms 3
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.
il. Relocation Benefits. The pa~ties 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.
12. 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 the expiration of the Term of the
License; or (d) upon termination in accordance with paragraph 17
of this Agreement, whichever event first occurs.
13. ComDliance 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.
14. Indemnification. Licensee agrees that it will protect,
save 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 or ordinance, whether occasioned by the
neglect of Licensee, its employees, officers, agents, contractors,
or assigns, or those holding under Licensee and that Licensee will
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 or from any
accident or occurrence in any way involving the Permitted
ImDrovements, unless caused by the negligence of DART, and will
protect, indemnify and hold DART and the Railroad harmless against
and from any and all claims and 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.
15. Action Upon Termination of License. At such time as
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.
16. AssiGnment. Licensee shall not assign or transfer its
rights under this Agreement in whole or in part, or permit any
COPPELL.DOCjms 4
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.
17. Methods of Termination. This Agreement may be
terminated in any of the following ways:
17.01. Written Agreement of both parties;
17.02. By either party giving the other party
thirty (30) days written notice;
17.03. By either party, upon failure of the other
party to perform its obligations as set forth in this Agreement;
17.04. Expiration of the Term.
18. Miscellaneous.
18.01. 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
601 Pacific Avenue
Dallas, Texas 75202
ATTN: Manager of Right of Way
LICENSEE: City of Coppell
255 Parkway Blvd.
P. O. Box 478
Coppell, Texas 75019
Either party may from time to time designate another and different
address for receipt of notice by giving notice of such change of
address.
18.02. Attorney 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.
18.03. Governin~ Law. This Agreement shall be
construed under and in accordance with the laws of the State of
Texas.
18.04. 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.
18.05. 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.
COPPELL.DOCjms 5
18.06. 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 singula~ shall include the plural
and vice versa, unless the text clearly'requires otherwise.
IN WITNESS WHEREOF, the parties have executed this Agreement
in multiple originals this day of , 19__.
LICENSOR: DALLAS AREA RAPID TRANSIT
APPROVED AS TO FORM: BY:
JACK W. EVANS
Executive Director
JOHN T. HOEFT, General Counsel
DALLAS AREA RAPID TRANSIT
LICENSEE: CITY OF COPPELL
BY:
Printed Name:
Title:
COPPELL.DOCjms 6
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