ST9901-CN 970722 ~ AGREEMENT # 970902
PUBLIC CROSSING 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, as amended (the "Act"), and the CITY OF COPPELL, a Texas municipal
corporation CLieensee"), acting herein by and through its duly authorized city manager, whose mailing
address is P. O. Box 478, Coppall, Texas 75019,
WITNESSETH:
1. Purpose. DART hereby grants a license to Licensee for the purpose of constructing,
reconstructing, maintaining and using the existing Coppell Road (DOT No. 789 747J), a Public Road
Crossing (the "Permitted Improvements"), across DARTs tracks on the DART fight-of-way at Mile Post
609.01 in Coppell, Dallas County, Texas, more particularly described and shown on the plat marked
Exhibit "A" attached hereto and incorporated herein for all pertinent purposes, (the "Property").
The term "Public Road Crossing" shall include the crossing material, pavement, grading,
barricades, street lighting, drainage facilities, signs, warning protection devices and approaches as
designated by DART.
The Property shall be used by Licensee solely for use of the Permitted Improvements by the public
EXCEPT, HOWEVER, AND IT IS UNDERSTOOD BY BOTH DART AND LICENSEE THAT
THE GRANTING OF THIS LICENSE SHALL NOT BE CONSTRUED IN ANY WAY TO
CONSTITUTE A DEDICATION OF THE PROPERTY TO THE PUBLIC. Licensee's right to enter
upon and use the Property shall be limited solely to the Permitted Uses and the Permitted Improvements.
2. Consideration. The consideration for the granting of this License shall be the performance by
Licensee of each of the obligations undertaken by Licensee in this License.
3. Term. The term of this License shall be perpetual subject, however, 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 DART, 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 e.,dsting lease, license or other
interest in the Property granted by DART to any individual, corporation or other entity, public or private.
5. Design, Construction, Operation and Maintenance. DARTs use of the Property and
adjoining property may include the use of electrically powered equipment. Notwithstanding DARTs
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 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
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interfere in any way with the operations of DART or other railroad operations (the "Railroad", wh~hcr ono
or more). In particular, eathodic protection or other stray current corrosion control measures of the
Permitted Improvements as required shall be made a part of the design and construction of the Permitted
Improvements.
5.02. During the design phase and prior to commencing construction on the Property, a
copy of the construction plans showing the exact location, typ~ and depth of the construction, any cathodie
protection measure~ and any working area, shall be submitted for written approval to DART and the
Railroad, 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 boon approved by DART
and Railroad.
5.03. By acceptance of this License, Licensee agrees to design and construct the Permitted
Improvements in such a manner so as not to create a hazard to the use of ~e 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, Licensce 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. Government Approvals and Utilities. 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. Licensee
shall pay for all utilities used in connection with the Permitted Improvements.
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 Contractors Agreement covering such work, and has furnished insurance coverage in such
amounts and types as shall be satisfactory to DART.
8. Environmental Protection.
8.01 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 CCERCLA"), the
Resource Conservation and Recovery Act of 1976 CRCRA"), the Texas Water Code and the Texas Solid
Waste Disposal Act.
8.02. Licensee warrants that the Permitted Use of the Property will not result in the
disposal or other release of any haTardous substance or solid waste on or to the Property, and that it will
take all steps necessary to insure that no such haTardous substance or solid waste will ever be discharged
onto the Property by Licensee or its contractors.
8.03. 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
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broaden the meaning of any term defined thereby, such broadcr 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.
8.04. 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.
9. 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.
10. Maintenance of Completed Improvements. The Pern~i_'tted Improvements shall be
maintained by Licensee in such a manner as to keep the Property in a good and safe condition with respect
to Licensee's use. It is understood by the paxties that the Railroad (or its contractor) shall maintain (a) the
existing warning protection devices and (b) the existing public road crossing between the ends of the ties.
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; or (c) upon termination in
accordance with paragraph 17 whichever event first occurs. ' '
13. Compliance With Laws and Regulations. Licensee agrees to abide by and be govemed 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. Licensee acknowledges the current
applicability of state and federal railroad regulatory agency requirements for the blowing of whistles
when approaching at-grade public or private road crossings.
14. Indemnification.
14.01. 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;
14.02. Licensee shall at all times protect, indemnify and it is the intention of the parties
hereto that Licensee hold DART and Railroad ham~less 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 for its willful misconduct or negligence;
14.03. 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 attomey'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.
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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 a
condition satisfactory to DART's representative, at Licensee's sole expense.
16. Assignment. Licensee shall not assign or transfer its rights under this Agreement to any other
person or entity without the prior written consent of DART.
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.
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:
LICENSOR: Dallas Area Rapid Transit
P. O. Box 660163
Dallas, Texas 75266-7210
Arm: Railroad Management
LICENSEE: City of Coppell . .
P. O. Box 478
Coppeli, Texas 75019
Arm: City Engineer
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 Governing 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 th.e.bene~t of
the executing parties and their respective heirs, personal representatives, successors and assigns.
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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 singular 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
22nd day of July ' 1997
Commuter Rail & Railroad Management . .
APP D A~~
OPP~o~f DDART General Counsel
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EXHIBIT A