ST9604-AG 970708 ~' AGENDA REQUEST FORM
CITY COUNCIL MEETINQ: July 8, 1997 ITEM # WS-3
WORK SESSION
A. Discussion of Town Center Complex Master PXan.
B. Discussion of Fairway Drive DART Crossing.
C. Discussion of Agenda Items.
CITY MANAGBR.'S REVIEW:
MEMORANDUM
FROM THE
DEPARTMENT OF ENGINEERING
To: Mayor and City Council
From: Ken Griffin, P.E., Director of Engineering & Public Works ~7
RE: Discussion of a Public Crossing License Ag'eements with Dallas Area
Rapid Transit (DART) for the proposed Fairway Drive, the existing
"Thompson" Crossing" and the Coppell Road crossing.
Date: July 8, 1997
The attached information includes copies of the proposed License, Agreements for Fairway
Drive, "Thompson Crossing" and Coppell Road crossing. It also includes the resolution by
DART granting the at grade public crossing for Fairway Drive. This information is the
culmination of long and tedious discussions with DART on acquiring the at grade crossing m
extend Fairway Drive to alleviate traffic in the general area. Along with those negotiations,
DART has requested that the other crossings in Coppell without license agreements be included.
Those crossings include Coppell Road and the "Thompson Crossing".
Each of these agreements are attached for your review.
"CITY OF COPPELL ENGINEERING - EXCELLENCE BY DESIGN"
Dallas Area Rapid Transit
P.O. Box 660163
Dallas, Texas 75266-0163
214/749-3278
June 18, 1997 x:'. :--- ;:C~ ,,
\' ;' ""
Mr. Jim Witt "''~ '
City Manager
City of Coppell
P. O. Box 478
Coppell, Texas 75019
Re: Public Crossing License Agreement covering the proposed Fairway Drive
Dear Mr. Witt:
Three (3) copies of the referenced agreement are enclosed for review and approval. If
satisfactory, please see that all three originals are signed and returned to my attention together
with the consideration due and the signed agreements for the existing "Thompson" Crossing and
the Coppell Road crossing. A copy of the Resolution passed unanimously by the DART Board on
April 22, 1997 is also enclosed. Upon signature by Mr. Snoble or Mr. B!aydes, one
fully-executed License for each crossing will be returned for your records.
Please contact me at (214) 749-2917 if I can be of assistance to any of the parties involved in the
review and approval process.
Sincerely,
"Jan Seidner
Manager, Railroad Facilities
Commuter Rail & Railroad Management
J1V[S2
Enclosures
97007d,
RESOLUTION
RESOLUTION
Dolkts Asoo Rapid Tronslt of the
DALLAS AREA RAPID TRANSIT
(Executive Committee)
Grant of a License Agreement for an At-Grade Public Road Crossing in Coppert
WHEREAS, the City of Coppell has requested an at-grade public mad crossing of Fairway Drive
across the Cotton Belt railroad right-of-way; and
WHEREAS, on February 26, 1996 by Board Resolution No. 960033, DART adopted a policy to
reduce the number of public and private at-grade crossings; and
WHEREAS, the Federal Railxoad Administration and the Texas Department of 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 Coppell's 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 President/Executive Director or his designee is authorized to execute a license agreement
granting an at-grade public road crossing for Fairway Drive to the City of Coppell.
i
535.SA/~/s~ch I 04/22/97 - 9-2.9 AM
970074
APPROVED AS TO FORM: ATTEST:
President/Executive Director
April 22. 1~c)7
Date
S3$.SAM/sich 2 04/"22./97 - 9:29 AM
AGREEMENT #
PUBLIC CROSSING LICENSE AGREEMENT
THIS AGREEMENT, by and between DALLAS AREA RAPID TRANSIT, ("DART"), a
r~ional 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 CLic~nse~"), acting herein by and through its duly authoriz~ city manager, whos~ mailing
address is P. O. Box 478, Coppell, Texas 75019,
WITNESSETH:
1. Purpose. DART hereby grants a license to License~ for the purpose of constructing,
reconstructing, maintaining and using the existing Coppell Road (DOT No. 789 747I), a Public Road
Crossing (the "Permitted Improvements"), across DART's tracks on the DART right-of-way at Mile Post
609.01 in Coppcll, Dallas County, Texas, more particularly described and shown on the plat marked
Exhibit "A" attached hereto and incorporated hcrein for all pertinent purposes, (the "Property").
The tcrrn "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 Licensec 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. Liccnscc'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; Co) 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 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
Coppell Road Page 1 of 5
interfere in any way with the operations of DART or other railroad operations (the "Railroad", whether one
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, type and depth of the construction, any cathodie
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.
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 ear~' 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 ~'ork on the Property 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 furrushed 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 Cede 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 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.
8.03. The terms "haT-~rdous 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 mended so as to
Coppell Road Page 2 of 5
broaden the meaning of any term defined thereby, such broader meaning shall apply subsequent to the
effective date of such amendment; and PROVIDED FLIRTHER, that to the extent that the laws'of the State
of Texas establish a meaning for "haT_ardous 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 fury 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 Permitted Improvements shall be
maintained by Licensee in such a manner as to keep the Properly 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 (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 Pertained Improvements from the Properly; 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 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 regulator)' 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 adsing out of the use of the Property by Liccrtsee, whether occasioned by the
neglect of Liccnscc, its employees, officers, agents, contractors or assigns, or those holding under Licensec;
14.02. Licensee shall at all times protect, indemnify and it is the intention of the parties
hereto that Licensee hold DART and Railroad hamsless against and from any and all loss, cost, damage
or expense, including attorney's fees, arising out of, or from any accidcnt 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 dctermined against DART for its willful misconduct or negligence;
14.03. Licensce 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.
Coppell Road Page 3 of 5
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 thc Property to a
condition satisfactory to DARTs representative, at Licensee's sole expense.
16. Assignment. Licensee shall not assign or transfer its rights under this Agreemcnt to any other
person or entity without the prior written consent of DART.
17. Methods of Termlnation. 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 patty 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 Agreemcnt.
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 Coppeli - .
P. O. Box 478
Coppeil, 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 Fee~. 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 paxties and supersedes all prior agreements and understandings, if any, relating to the Property ~knd 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, sucxessors and assigns.
Coppeil Road Page 4 of 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 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
dayof . ,19
LICENSOR: DALLAS AREA RAPID TRANSIT
By:
Lonnie E. Blaydes, Jr.
Vice 'President
Commuter Rail & Railroad Management . .
LICENSEE: CITY OF COPPELL
By:.
Printed Name:
Title:
APPROVED AS TO FORM:
Office of DART General Counsel
Coppell Road Page 5 of 5
EXHIBIT A
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~ J. Ft. ,4NDER,SON H.P. ~ M~KINNEY ~ ~ILLI~
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FOR PROPERTY IN THIS VICINITY SEE
AGREEMENT #
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, Coppe!!, Texas 75019, .
WITNESSETH:
1. Purpose. DART hereby grants a license to Licensee for the purpose of constructing,
reconstructing, maintaining and using the "J. E. Thompson" (DOT No. 789 753M) existing timber Road
Crossing (the "Permitted Improvements"), across DARTs tracks on the DART right-of-way at Mile Post
605.14 in Coppell, Dallas County, Texas, more particularly described and shown on the plat madcod
Exhibit "A" attached hereto and incorporated herein for all pertinent purposes, (the "Property").
The term "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 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 granting of this License, by the end of fiscal year
1999, Licensee shall:
2.0201, Bring approaches of the Thompson Crossing to city standard;
2.0202. Reconstruct the Thompson Crossing including ugrade of rail, if necessary;
2.0303. Install full warning protection devices at the Thompson Crossing; and
2.0304. Work ~th the authorities to restrict the exit from the Thompson Crossing
to a right mm 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 O~Tted by
any railroad, utility or communication company, public or pdvate, for the use of the Property for facilities
J.E.Thompson Xing Page I of 6
presently 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. Design, Construction, Operation and Maintenance. DARTs use of the Property and
adjoining property may include the use of electrically powered equipment. Notwithstanding DAR'I~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 effect~
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
interfere in any way with the operations of DART or other railroad operations (the "Railroad", whether one
or more). In particular, ~cathodic protection or other stray current corrosion control inca/urea 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 sho~ng the exact location, type and depth of the construction, any cathodic
protection measures and any working area, shall be submitted for v, Titten approval tO DART and the
Railroad, when the construction is going to be v6thin the area of Railroad operations. Such approval shall
not be unreasonably x~thheld. 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 creatc a hazard to thc use of the Property, and furthcr agrees
to pay any damages which may arise by reason of Licensee's use of the Propert)' 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.
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 DARTs
Standard Contractors Agreement 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, Operation and Maintenance. Licensee or its contractor shall
use reasonable care during the construction, reconstruction, operation and maintenance period and
].E.Thompson Xing Page 2 of 6
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 eate 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 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 ~ecute 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 CCERCLA"), 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 baTardous substance or solid waste on or to the Property, an4 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 "ba?_ardous 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 def'med 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.
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 ~vill 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.
11. Maintenance of Completed Improvements. The Permitted Improvements shall be
maintained by the Licensee in such a manner as to keep the Property in a good and safe co/~dition 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 Licensee. In the event
Licensee fails to maintain the Property as required, upon discovery, DART shall notif~ 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
J.E.Thompson Xing Page 3 of 6
cost and expense of Licensee. In the event DART exercises its fight to remedy Licensee's failure, Licensec
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 fight 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'ALgre~nent,
at its sole discretion, determin~ 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, Licensee shall, at its sole cost and expense make such
modifications or relocate said Permitted Improvements so as not to interfere with DARTs or DARTs
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 promp~y
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 Licensec 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.
1:5. Indemnification.
15.01. 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;
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 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 propoaion 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 attomey's fees, arising out
of or from any and all claims or causes of action resulting from any failure of Licensee, its officers,
J.E.Thompson Xing Page 4 of 6
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 a
condition satisfactory to DART's representative, 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 panics;
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 I:~ in
writing and shall be deemed delivered when delivered in person or when placed, postage prepaid, in tl~
U.S. Mail, Certified, Rcturn Receipt Requested, and addressed to the parties at the following addressca:
LICENSOR: Dallas Area Rapid Transit
P. O. Box 660163
Dallas, Texas 75266-7210
Attn: Railroad Management
LICENSEE: City of Coppell
P. O. Box 478
Coppc!l, Texas 75019
Attn: City Engineer
Either party may from time to time designate another and different address for receipt 9f 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 agreemere between
the parties and supersedes all prior agreements and understandings, if any, relating to the Property and the
l.E.Thompson Xing Page 5 of 6
matters addressed herein, and may be amended 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 vers~
unless the text clearly requires othenvise.
IN WITNESS WHEREOF, the panics have executed this Agreement in mukiple originals this
__dayof , 19
LICENSOR: DALLAS AREA RAPID TRANSIT
By:
Lonnie E. Blaydes, Jr.
Vice President
Commuter Rail & Railroad Management
LICENSEE: CiTY OF COPPELL · -
By:.
Printed Name:
Title:
APPROVED AS TO FORM:
Office of DART General Counsel
J.E.Thompson >Ling Page 6 of 6
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PROFILE EXHIBIT A
AGREEMENT #
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,
WITNESSETH:
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, 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
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 granting 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 Dri~,,e and
Beltline Road;
Fairway Dr Page ! of 7
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 crossings 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~scai 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 right 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; Co) 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 Property 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
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
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, cathodic 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 DART's 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 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. 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 effedt '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
CCERCLA"), 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·
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 Licensee. 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 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 DARTs use of the Property, or that the crossing must be
modified, including but not limited to the installation of grade crossing signals, Licensee shall, at
its sole cost and expense make such modifications or relocate said Permitted Improvements so as
not to interfere with DARTs or DARTs 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; (b) 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 entiiies 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
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;
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. AI~ 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
Coppell, Texas 75019
Attn: City Engineer
Fairway Dr Page 6 of 7
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
this __ day of ,19
LICENSOR: DALLAS AREA RAPID TRANSIT
By:.
Roger Snoble
President/Executive Director
LICENSEE: CITY OF COPPELL
By:
Printed Name:
Title:
APPROVED AS TO FORM: · .
Office of DART General Counsel
Fairway Dr Page 7 of 7
EXHIBIT A