ST9604-CN 970728 ..--
AGENDA REQUEST FORM
I I I
CITY COUNCIL MEETING: July 28, 1997 X~ ~ ~
Approval of a Resolution to execute Public Crossing License Agreement wi~ Dallas Area Rapid
Transit (DART) for the propose of constructing, reconstructing, maintaining ~d using public/road
crossings ~d authorized the Mayor to sign.
S~X~ BY: Kenneth M. Griffin, P. E.
.... ks
STAFF ' : .~ A Denial
STAFF CO~S:
This was discussed ~n Work Session a~ ~c luly 8, 1997 Council mccall. ~c a~ched ~omafion
~cludcs ~c resolution by D~T ~ranfing ~e a~ grade public cross~g for [ai~ay Drive. ~s
infomafion is ~c cu~inafion of lon~ and ~edious discussio~ wi~ D~T on acquirin~ ~c a~
Eradc cross~ ~o cx~cnd [a~ay Drive ~o alleviate ~affic in ~c ~cneral area. Alon~ wi~ ~ose
negotiation, D~T has requested ~ ~e o~cr cross~s in Coppcll wi~ou~ licc~c a~rccmcn~s
bc included. ~osc cross~s include Coppell Road ~d ~c "~ompson" cross~.
Stuff rcqucs~ ~t ~s i~m bc approved a~ ~e Co~cil mccfin~ ~d will ~ available ~o ~wcr
~y question.
,4PPROV D
8Y
BUDGET JLWr. $ ~M~T. EST. $ +/- BUD: $
FINANCIKt, COI~..I~S:
DIR. INITIALS: V-7 FIN. REVI CITY MANAGER REVIEW:
Agerids Request Form - Revised 6196 Document Name eng. 1
Dallas Area Rapid Transit
P.O. Box 660163
Dallas, Texas75266-0163
214/749-3278
September 5, 1997
Mr. Kenneth M. Griffin, P.E.
Director of Public Works/City Engineer
City of Coppell
P. O. Box 478
Coppell, Texas 75019
Re: License Agreement No. 970901 covering the proposed Fairway Drive road crossing at Mile
Post 605.69 in Coppell
Dear Mr. Griffin:
Enclosed is a fully-executed agreement as referenced above. Should you need to contact us in the
future regarding this document, please reference the agreement number above.
Please contact me at (214) 749-2917 if I can be of assistance with any future City projects
impacting DART-owned railroad properties.
Sincerely,
Jan Seidner
Manager, Railroad Facilities
Commuter Rail & Railroad Management
JMS:
Enclosure
# 970901
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 CLicensee"), acting herein by and through its duly authorized city manager, whose
mailing address is P. O. Box 478, Coppell, Texas 75019,
WITNE S SETH:
1. Purpose. DART hereby grants a license to Licensee for the purpose of constructing,
maintaining and using a Paved Public Road Crossing (the "Permitted Improvements"), sixty feet in
width, extending Fairway Drive (DOT No. 789 752F) across DART's tracks on the DART
right-of-way at Mile Post 605.69 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 "Paved Public Road Crossing" shall include the concrete 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 construction of the Permitted
Improvements and use by the public EXCEPT, ROWEVER, 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
following:
2.01. The performance by Licensee of each of the obligations undertaken by
Licensee in this License.
2.02. As further consideration for the 8ranting of this License, Licensee shall pay
to DART the sum of $4,200.00 (the "License Fee"), payable on the License Date.
2.03. As further consideration for the granting of this License, Licensee agrees to:
2.0301. Install a traffic light at the intersection of Fairway Drive and
Beltline Road;
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2.0302. Set aside $50,000 to fund certain safety improvements to existing
crossings within the city limits of Coppell as mutually agreed between DART and Licensee.
Licensee shall monitor all expenditures until fund is fully depleted, subject to audit by DART;
2.0303. Pass a resolution finding that no additional erossings of the Cotton
Belt Line are foreseen in the future;
2.0304. Enter into a license agreement with DART for the existing
Coppell Road crossing (DOT No. 789 747J);
2.0305. Enter into a license agreement with DART for the existing
crossing located at Mile Post 605.14 (DOT No. 789 753M, the "Thompson Crossing"); and
2.0306. Perform the below listed improvements to the Thompson Crossing
at Licensee's cost and expense by the end of fiscal year 1999.
2.030601. Improve the approaches of the Thompson Crossing to
city standard;
2.030602. Reconstruct the Thompson Crossing, if necessary,
including ugrade of rail;
2.030603. Install full warning protection devices at the Thompson
Crossing; and
2.030604. Work with TxDOT and other appropriate governmental
authorities to restrict the exit from the Thompson Crossing to fight turn only.
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 existing lease, license or other interest in the Properly granted by DART
to any individual, corporation or other entity, public or private.
5. Design, 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 design, construction, reconstruction, replacement, removal, operation
· and maintenance of the Permitted Improvements on the Property shall be done in such a manner
Fairway Dr Page 2 of 7
so as not to interfere in any way with the operations of DART or other railroad operations (the
"Railroad", whether one or more). In particular, cathodie 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, type and depth of the
construction, any cathodic protection measures 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 been 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 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.
5.06. If at any time, traffic volume or other circumstances should warrant a grade
separation for the crossing licensed hereunder, Licensee shall be responsible for the installation of
such grade separation to DARTs standards, at no cost to DART.
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 Properly shall be
commenced by Licensee or any contractor for Licensee until such Licensee or contractor shall
have executed DARTs Standard Contractors Agreement covering such work, and has furnished
insurance coverage in such mounts and types as shall be satisfactory to DART. ' ·
8. Duty of Care in Construction, Operation and Maintenance. Licensee or its
contractor shall use reasonable care during the construction, operation and maintenance 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
Fairway Dr Page 3 of 7
damage at no cost or expense to DART. If Licensee or its contractor fails or refuses to make
such replacement, DART shall have the fight, 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. The Railroad (or its contractor) shall perform the installation of the
warning protection devices at the crossing, subject to reimbursement for all such cost and expense
by Licensee. Licensee agrees to execute a reimbursement agreement with Railroad (or its
contractor) if required. · ·
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 CRCRA"), 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 RCI~A, 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 matedalmen'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. 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. It is understood by the
parties that the Railroad (or its contractor) shall maintain the warning protection devices, subject
to reimbursement for maintenance costs by Licerl.see. In the event the Licensee fails to maintain
the Property as required, upon discovery, DART shall notify Licensee of such occurrence in
Fairway Dr Page 4 of 7
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 fight, 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, or that the crossing must be
modified, including but not limited to the installation of grade crossing signals, Licensi~ shall, at
its sole cost and expense make such modifications or 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, and Licensee shall promptly commence to make the required changes
and complete them as quickly as possible.
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; Co) in the event Licensee shall relocate the Permitted Improvements from the
Property; or (c) upon termination in accordance with paragraph 18 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. 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.
15. Indemnification
15.01. Licensee shall defend, protect and keep DART and Railroad forever
hamless 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;
15.02. Licensee shall at all times protect, indemnify and it is the intention of the
parties hereto that Licensee hold DART and Railroad harmless against and from any and all
Fairway Dr Page 5 of 7
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;
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 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.
16. 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.
17. 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. · ·
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. Miscellaneous.
19.01. 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 ' '
Attn: Railroad Management
LICENSEE: City of Coppell
P. O. Box 478
Coppelt, Texas 75019
Attn: City Engineer
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Either party may from time to time designate another and different address for receipt of
notice by giving notice of such change of address.
19.02. 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.
19.03 Governing Law. This Agreement shall be construed under and in
accordance with the laws of the State of Texas.
19.04 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 mended or supplemented only by a
written instrument executed by the party against whom enforcement is sought.
19.05. 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.
19.06. 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
thia 22nd day of July ,1997.
LICENSOR: DALLAS AREA RAPID TRANSIT
BY:~'ger~
~td~President/Executive Director
AP VED A~~
~LT General Counsel
Fairway Dr Page 7 of 7
EXHIBIT A
RESOLUTION NO. 072897.2
A RESOLUTION OF ~ CITY COUNCIL OF TltE CITY OF COPPELL,
TEXAS, FINDING THAT NO ADDITIONAL PUBLIC ROAD CROSSINGS OF
COTtONBELT (DART) TRACKS ARE FORESEEN IN TH'F- FUTURE; PROVIDING A
REPEALING CLAUSE; AND PROVIDING AN EFFECTIVE DATE.
WH'F. REAS, the City of Coppert,-Texas and the Dallas Area Rapid Transit (DART)
entered into a. Public Crossing License Agreement for the purpose of constructing, maintaining
and using certain paved public road crossings of the Cottonbelt (DART) tracks; and
WH'K~REAS, as a result of the Public Crossing License Agreement and existing public
road crossings, the City does not anticipate any additional public road crossings of the Cottonbelt
(DART) tracks will be required in the future; :
NOW TH'F. REFORE, BE IT RESOLVED BY TH'E CITY COUNCIL OF THE~
........... CITY. 0F__C_._O_~ELT~ ._TE__nS:
SECTION 1. That as a result of that certain Public Crossing License Agreement by and
between the City of Coppell, Texas and the Dallas Area Rapid Transit (DART) approved by the
City Council on luly 22, 1997 and because of existing public road CrOSsings, the City Council
finds that no additional public road crossings of the Cottonbelt (DART) tracks are foreseen in the
future.
SECTION l. That all provisions of any Resolution of the City of Coppell, Texas, in
conflict with the provisions of this Resolution be, and the same is hereby, repealed, and all' other
provisions not in conflict with the prc~vislons~ef:_tk".3 P,¢~olu.*_~o._-_- ~b~!~_~.~,-~.~c~rc~ aM
" effect.
SECTION 3. This Resolution shall become effective immediately from and after its
passage, as the law and charter in such cases provide.
1
DULY I'ASSED and approved by the C'rty Council of the City of Coppell, TexB, on this
the 28th day of July ,1997.
APPROVED:
c,~bY S~E "'HA~. ~A?OR
ATTEST:
KATt~EEN R0~CH, CITY SECRETARY
APPROVED AS TO FORM:
~ORNEY' -
(Pos~ 7/14/97)
NNI0771
RESOLUTION No. 072897.3
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF COPPELL,
TEXAS, AUTHOIiIZlNG ~ MAYOR TO EXECUTE A PUBLIC CROSS.DIG
LICENSE AGREEMENT WITH DALLAS AREA RAPID TRANSIT FOR THE
PURPOSE OF CONSTRUCTING, RECONSTRUCTING, MAINTAI1N'ING AND USING
A PUBLIC ROAD CROSSINGS; AND PROVIDING AN EFFECTIVE DATE.
WHY~REAS, the City Council desires to authorize the approval and execution of a Public
Crossing License Agreement by and between the City of Coppell, Texas and Dallas'Ar~ Rapid ' '
Transit ("DART'), attached hereto as Exhibit "A";
NOW TITEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF COPPELL, TEXAS:
SECTION 1. That the City Council of the City of Coppelf, Texas hereby, approves the
Public Crossing License Agreement by and between the City of Coppell, Texas and DART,
attached hereto and marked Exhibit "A" and authorizes the Mayor to execute the same.
SECTION 2. This resolution shall become effective immediately from and after its
passage.
DULY PASSED and approved by the City Council of the City of Coppell, Texas, on this
the 22nd day of July, 1997.
.. _ CXNDY Sn~__ ",
' - .... ATTEST:
~~EEN ROACa CITY SEC~T~Y
~PKO~D AS TO FO~:
P~K G. Sa' CITY A~O~Y
8810714
970074
RESOLUTION
RESOLUTION
Dal~ kea Rapid Transit of the
DALLAS AREA RAPID TRANSIT
(Executive Committee)
Grant of a License Agreement for a~At-Grade'PubHCRoad Cr~s'ing in co~pell
WHEREAS, the City of Coppoll has requested an at-grade public mad crossing of Fairway Drive
across the Cotton Belt railroad fight-of-way; and
WHEREAS, on February 26, 1996 by ,Board Resolution No. 9600:33, DART adopted a policy to
reduce the number of public and private at-grade crossings; and
WHEREAS, the Federal Railroad A~stration-and the Texas Departmenrof Transportation
have similar policies to eliminate or consolidate public and private at-grade highway-rail
crossings; and
WHEREAS, no realistic closure possibilities exist, however, the proposed at-grade mad crossing
is a critical element in CoppeWs proposed Riverchase development, and the City is agreeable to
provide certain considerations in lieu of at-grade crossing closures as a condition of the granting
of the license agreement
NOW, THEREFORE, BE IT RESOLVED by the Dallas Area Rapid Transit Board of Directors
that the Prcsidcn~Excctnive Director or his dcsignc~_ is authorized to cxccutc a Hcensc agrccmcnt
granting an at-grade public road crossing for Fairway Drive to the City of Coppell.
515.SAMIskh I 04fZ2tgq - ~-.29 AM
970074
APPROVED AS TO FORM: ATTEST:
DART Counsel
Presid~nt/Executiv~ Director
April 22. 1~)97
Ds,~
33~.SAM/sJch 2 04/22/97 * 9'.29 AM