Vj ·. "\) ~ ) t ~ s::-· ~ . l ('\. ® ~ ~ ~ :;l ~ ~ ~ ~ ~ ~ ~ '' . .. ( I ...,1 • l.o RESOLUTION NO. R97-047 A RESOLUTION BY THE CITY COUNCIL OF THE TOWN OF ADDISON, TEXAS, AUTHORIZING THE CITY MANAGER TO ENTER INTO AN · INTERLOCAL AGREEMENT BETWEEN THE TOWN OF ADDISON AND DART FOR THE SPECTRUM RAILROAD CROSSING. WHEREAS, in a continued effort by the Town of Addison to improve traffic congestion throughout the Town, the town desires to extend Spectrum Drive north across DART's railroad tracks and DART's right-of-way at Mile Post 598.09; and WHEREAS, the at-grade crossing of Spectrum Road across DART's railroad tracks will require $300,000 worth of safety improvements to the crossing to be paid by the Town of Addison; and WHEREAS, the granting of this license shall not be construed in any way to constitute a dedication of the property to the public; now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE TOWN OF ADDISON, TEXAS: THAT, the City Council does hereby authorize the City Manager to enter into an interlocal agreement between the Town of Addison and DART for the Spectrum Railroad Crossing. DULY PASSED BY THE CITY COUNCIL OF THE TOWN OF ADDISON, TEXAS, this the 24th day of June, 1997. ATTEST: CtvfoEAd City Secretary OFFICE OF THE CITY SECRETARY RESOLUTION NO. R97-047 •. I ' . DART Dallas Area Rapid Transit , P.O. Box 660163 · Dallas, Texas 75266-0163 214/749-3278 September 5, 1997 Mr. John R. Baumgartner, P.E. Director of Public Works Town of Addison P. O.Box 144 Addison, Texas 75001 Re: License Agreement No. 970904 covering the proposed Spectrum Drive crossing Dear Mr. Baumgartner: 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 (2f4) 749-2917 if I can be of assistance with any future crossings of DART-owned railroad properties. Sincerely, ~~ Jan Seidner Mui.ager, Railroad Facilities Commuter Rail & Railroad Management JMS: Enclosure / AGREEMENT #____,CJ'---'7c...;:Q=---<-CJ-=Q'-4L.___ LICENSE AGREEMENT TillS 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 TOWN OF ADDISON, a home rule city ("Licensee"), acting herein by and through its duly authorized city manager, whose mailing address is P. 0. Box 144, Addison, Texas 75001, WITNESSETH: 1. Purpose. DART hereby grants a license to Licensee for the purpose of constructing, installing, and maintaining a paved four-lane Public Road Crossing (the "Permitted Improvements"), forty-eight (48) feet in width, extending Spectrum Drive across DARTs tracks on the DART right-Qf-way at Mile Post 598.09 in Addison, 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 Permitted Improvements shall include the the concrete pre-cast 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 · ---· · · ·L-tCENSEE-TifATlHE-GRANTING-OF THIStlCENSE-sHA:L-L-NO'i BE ee>NSTRUED!N"--· · · ANY WAY TO CONSTITUTE A DEDICATION OF THE PROPERTY TO THE PUBLIC. Licensee's right to enter upon and use the Property shall be entirely subject to the terms and provisions of this License Agreement. 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, and in lieu of closure of two (2) public or private at-grade highway/rail crossings within the town limits of Addison, Licensee shall . place the sum of $300,000.00 into a special fund (the "Crossing Fund") to be used for providing additional · warning/median protection devices at certain high traffic count highway-rail crossings within the Town of Addison as mutually determined and agreed upon between DART and Licensee. Licensee shall monitor all expenditures from the Crossing Fund until money is depleted, subject to audit by DART. 3. Term. The term of this license shall be perpetual subject, however, to termination by either party as provided herein. 4. Non Exclusive License. I his hcense IS non-exclus1ve and IS subject to (a) any extsbng 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 faciiities Spectrum Drive I of6 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 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. 5.0 1. 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 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 any construction or installation 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 sball commence until said plans have been approved by DART and Railroad. · ----5;03;--By-acceptance-{)f-this-license,-Licensee -agrees-to-design, -ronstruc~-install-and __ maintain 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. Governmental Approvals. Licensee, at its sole cost and expense, shall be responsible for and shall obtain, any and all licenses, permits, or other approvals from any and all governmental agencies, federal, state or local, required to carry on any activity permitted herein. 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 sball have executed DART's Standard Contractors Agreement covering such work, and has furnished insurance coverage in such amounts and types as sball be satisfactory to DART. Spectrum Drive 2 of6 8. Dutv 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 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. 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 ("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 · ·--· --cERei:.:A-and·the-terrns-"solid-waste'~and...!'dispesal"-(or ~'disposed'~) .shalLhave..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 hnprovements 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; PROVIDED, HOWEVER, with respect to the warning protection devices installed as Permitted Improvements, such devices shall be maintained by the Railroad, upon acceptance of installation in accordance with approved plans, subject to reimbursement therefor by Licensee. In t!le event the Licensee fails to maintain the Properey as-reqtti-red;-tipen Eliseevery, 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 Spectrum Drive 3 of6 ---···-·-·-----·--"'--.:. _____ , _________ , 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 Pennitted 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 Pennitted 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 Pennitted Improvements. A minimum of thirty (30) days written notice for 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 Lieensee shall discontinue or abandon the use of the Pennitted Improvements; (b) in the event Licensee shall relocate the Pennitted Improvements from the Property; (c) upon termination in accordance with paragraph 18 of this Agreement, 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-gevemmental~ntities having. jurisdiction.o¥er 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 federal and state railroad regulatory agency requirements for the blowing of whistles when approaching at-grade public and private road crossings. 15. Indemnification. 15.DI. 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 hannless agaiust 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; 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, Spectrum Drive 4 of6 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 in whole or in part, or pennit any other person or entity to use the License hereby granted without the prior written consentofDARTwhich DART is under no obligation to grant. 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 pennitted 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. 0. Box 660163 Dallas, Texas 75266-7210 Attn: Railroad Management LICENSEE: Town of Addison P. 0. Box 144 Addison, Texas 75001 Attn: Director of Public Works Either party may from time to time designate another and different address for receipt of notice by giving notice of such change of address. · 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 sliall be entitled to recover court costs and reasonable attorney fees from the non-prevailing party. 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 amended or supplemented only by a written instnunent executed by the party against whom enforcement is sought. Spectnun Drive 5 of6 ~---..c... ____________ ,....;,_· ·-·--..-:..~--~_._.;,;_._, ___ :..:__..;. ________________________ --------------· ------···· 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. 11 IN ~S WHEREOF, the parties have executed this Agreement in multiple originals this ~.t.Udayof «m A ,_.u, 19q:Z_. LICENSOR: LICENSEE: APPROVED AS TO FORM: ··--~. Office of DART General Counsel Specbum Drive DALLAS AREA RAPID TRANSIT By:~ • .ry ROge~ r-'Q President/Executive Director 6 of6 '. BELT LINE ROAD (Not to Scale) tmum ADDISON CIRCLE • ADDISON AIRPORT EXHIBIT A KELLER t:l 0 0 ::::: z ... EXHIBIT 1 -STUDY AREA: FUTURE SPECIRUM DRIVE EXTENSION VERDE VALLEY FUTURE HIGHWAY-RAIL CROSSING Dallas Area Rapid Transit RESOLUTION of the DALLAS AREA RAPID TRANSIT (Executive Committee) 96 013 8 RESOLUTION Grant of a License for an At-Grade Public Road Crossing in Addison WHEREAS, the Town of Addison has requested an at-grade public road crossing on Spectrum Drive to cross the Cotton Belt railroad right-of-way; and WHEREAS, by Board Resolution No. 960033, DART adopted a policy to reduce the nwnber of public and private at-grade crossings; and WHEREAS, the Federal Railroad Administration and the Texas Department of Transportation have similar policies to eliminate or consolidate public and private at-grade, highway-rail crossings; and WHEREAS, because no realistic closure possibilities exist, and the proposed at-grade road crossing-is -a-critical -element-in-Addison's proposed-Addison~ €ircle-development,-additional--warning protection devices will be added at existing crossings in lieu of closure. 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 for an at-grade public road crossing in Addison, as shown in Attachment I, subject to the Town of Addison providing additional warning protection devices at existing at-grade public road crossings in Addison, Texas at a cost to the Town of$300,000. B~ APPROVED AS TO FORM: ATTEST: DART Counsel President/Executive Director August 13, 1996 Date 516.SAM/skh 08/13/96-3:18PM (Not to Scale) tt~~t ADDISON CIRCLE ~ ADDISON AIRPORT ·-·-FUTUREROADWAY AUGNMENTS · ra ~J>e:~:-lia g 0 ll: z ... ~6 01 3 8 @FUTURE HIGHWAY-RAIL CROSSING ~~-~~~E~xmrn~~IT~lw·~STUDJU~Y~ARE-~A~:~~~--~-- ----------------~ FUTURE SPECIRUM DRIVE EXTENSION RESOLUTION NO. R97-047 A RESOLUTION BY THE CITY COUNCIL OF THE TOWN OF ADDISON, TEXAS, AUTHORIZING THE CITY MANAGER TO ENTER INTO AN ·INTERLOCAL AGREEMENT BETWEEN THE TOWN OF ADDISON AND DART FOR THE SPECTRUM RAILROAD CROSSING. WHEREAS, in a continued effort by the Town of Addison to improve traffic congestion throughout the Town, the town desires to extend Spectrum Drive north across DART's railroad tracks and DART's right-of-way at Mile Post 598.09; and WHEREAS, the at-grade crossing of Spectrum Road across DART's railroad tracks will require $300,000 worth of safety improvements to the crossing to be paid by the Town of Addison; and WHEREAS, the granting of this license shall not be construed in any way to constitute a dedication of the property to the public; now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE TOWN OF ADDISON, TEXAS: THAT, the City Council does hereby authorize the City Manager to enter into an interlocal agreement between the Town of Addison and DART for the Spectrum Railroad Crossing. DULY PASSED BY THE CITY COUNCIL OF THE TOWN OF ADDISON, TEXAS, this the 24th day of June, 1997. ATTEST: c21'1~ City Secretary OFFICE OF THE CITY SECRETARY RESOLUTION NO. R97-047 DART Dallas Area Rapid Transit _, P.O. Box 660163 · Dallas, Texas 75266-0163 214/749-3278 September 5, 1997 Mr. JohnR. Baumgartner, P.E. Director of Public Works Town of Addison P. 0. Box 144 Addison, Texas 75001 Re: License Agreement No. 970904 covering the proposed Spectrum Drive crossing Dear Mr. Baumgartner: 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 crossings of DART-owned railroad properties. Sincerely, ~~ Lfan Seidner Manager, Railroad Facilities Commuter Rail & Railroad Management JMS: Enclosure / AGREEMENT #_____,9'---'7'----'Q=---<-CJ-=Q=----'*'---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 TOWN OF ADDISON, a home rule city ("Licensee"), acting herein by and through its duly authorized city manager, whose mailing address is P. 0. Box 144, Addison, Texas 75001, WITNESSETH: I. Purpose. DART hereby grants a license to Licensee for the purpose of constructing, installing, and maintaining a paved four-lane Public Road Crossing (the "Permitted Improvements"), forty-eight (48) feet in width, extending Spectrum Drive across DART's tracks on the DART right-of-way at Mile Post 598:09 in Addison, 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 Permitted Improvements shall include the concrete pre-cast 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 · ·L-JCENSEE-THAITHE"GRANTING-OF TlfiS"tleENSE-sHAL-r;-N01 BE eONSTRUED1~ANY WAY TO CONSTITUTE A DEDICATION OF THE PROPERTY TO THE PUBLIC. Licensee's right to enter upon and use the Property shall be entirely subject to the terms and provisions of this License Agreement. 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, and in lieu of closure of two (2) public or private at-grade highway/rail crossings within the town limits of Addison, Licensee shall place the sum of $300,000.00 into a special fund (the "Crossing Fund") to be used for providing additional warning/median protection devices at certain high traffic rount highway-rail crossings within the Town of Addison as mutually determined and agreed upon between DART and Licensee. Licensee shall monitpr all expenditures from the Crossing Fund until money is depleted, subject to audit by DART. 3. Term. The term of this license shall be perpetual subject, however, to termination by either party as provided herein. 4. Non Exclus1ve L1cense. Ifus hcense ts non-exclusive and IS subject to (a) any extsttng 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 Spectrum Drive I of6 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, Ooeration 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 hnprovements 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 measures of the Pe~tted hnprovements as required shall be made a part of the design and construction of the Permitted hnprovements. 5.02. During the design phase and prior to commencing any construction or installation 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. -----· -· -----s:o-J:--By--acceptance--of--this-license,-L-icensee -agrees-to-design, -censtruct,install-and maintain the Permitted hnprovements 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 hnprovements 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. Governmental Approvals. Licensee, at its sole cost and expense, shall be responsible for and shall obtain, any and all licenses, permits, or other approvals from any and all governmental agencies, federal, state or local, required to carry on any activity permitted herein. 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. Spectrum Drive 2 of6 8. Duty of Care in Construction. Operation and Maintenance. Licensee or its contractor sball 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 damage at no cost or expense to DART. If Licensee or its contractor fails or refuses to make such replacement, DART sball 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. 9. Environmental Protection. 9.01 Licensee shall not use or pennit 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. 9.02. Licensee warrants that the Pennitted 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 · -cEReLA -and-1he-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 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 Pennitted. Licensee sball fully pay for all labor and materials used in, on, or about the Property and will not pennit 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 and safe condition with respect to Licensee's use; PROVIDED, HOWEVER, with respect to the warning protection devices installed as Permitted Improvements, such devices shall be maintained by the Railroad, upon acceptance of installation in accordance with approved plans, subject to reimbursement therefor by Licensee. Th the event the' Licensee fails to maintain the Pwperty-as-feqttired;-11IJ61HiisOOYery, DART shaU 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 Spectrum Drive 3 of6 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, Licensee 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; (b) in the event Licensee shall relocate the Permitted Improvements from the Property; (c) upon termination in accordance with paragraph 18 of this Agreement, whichever event first occurs. 14. Compliance With Laws and Regulations. Licensee agrees to abide by and be governed by all ·taws,-ordinances-and -regulations cl'any and aU-gevernmental-entities having. jurisdiction.o:ver 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 federal and state railroad regulatory agency requirements for the blowing of whistles when approaching at-grade public and 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 ofthe parties hereto that Licensee hold DART and Railroad harmless against and from any and all loss, cost, diunage 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, Spectrum Drive 4 of6 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 in whole or in part, or permit any other person or entity to use the License hereby granted without the prior written consent of DART which DART is under no obligation to grant •. 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. 19.0 1. 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. 0. Box 660163 Dallas, Texas 75266-7210 Attn: Railroad Management LICENSEE: Town of Addison P. 0. Box 144 Addison, Texas 75001 -----------------------Attn: Director of Public Works Either party may from time to time designate another and different address for receipt of notice by giving notice of such change of address. · 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 Entiretv 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. Spectrum Drive 5 of6 • > 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. 11 IN ~SS WHEREOF, the parties have executed this Agreement in multiple originals this .f.t.0day of~« mhV , 19 ' Jtv f!__u . ' EVALUATION CRITERIA FOR ENGINEERING POINTS MULTIPLffiR SCORE 1. The firm's experience, as well as 0-10, 4 )-ll proposed subcontractors, in successfully perfurming similar assignments, ~ in scope and size, for others within the last five (5) years, by personnel still on the firm's staff. Prime and.Sub have worked together before. Jy)..a-v~ 2. Professional background of key personnel o-fo 4 ?-.._1 and experience in engineering, surveying, ~ project administration, and resident project .~ representation. The firm's current staff, both in size and related experience, is qualilied to provide the desired service. Indicate length of time key employees have been with the firm as well as their home office location. e&J.;J 3. Location of main office and/or branch office 0-10 1 that will provide services and experience in the local area. ~ 4. Management approach to this project. (Include 0-10 1 ~ QA/QC, schedule and budget programs). -~-. 5. Technical approach to this project. (Include 0-10 1 7 ~~ computer capacity). ---~-6. Previous clients, for similar projects express 0-10 2 satisfaction with the firm's work (Short listed firms only, if necessary). 7. Oral presentation (short listed firms only, if 0-10 4 ---necessary). 'c EVALUATION CRITERIA FOR ENGINEERING , ' POINTS MULTIPLIER SCORE ' ~ ~ l. The firm's experience, as well as 0-10 4 OlV /4-proposed subcontractors, in success-7 ~-fully performing similar assignments, in scope and size, for others within the ~~---last five (5) years, by personnel still on the firm's staff. Prime and.Sub have worked together before. ~~ 2. Professional background of key personnel 0-lO 4 __l_f and experience in engineering, surveying, ~ ~\ project administration, and resident project representation. The firm's current staff, both in size and related experience, is qualilied to provide the desired service. Indicate length of time key employees have been with the firm as well as their home office location. JJ43. Location of main office and/or branch office 0-lO 1 ~ that will provide services and experience in the local area. ry4t 4. Management approach to this project. (Include 0-lO I ll QA/QC, schedule and budget programs). 5. Technical approach to this project. (Include 0-lO 1 _L computer capacity). 6. Previous clients, for similar projects express 0-lO 2 satisfaction with the firm's work (Short listed firms only, if necessary). 7. Oral presentation (short listed firms only, if 0-lO 4 necessary). '/! )" ~ ~~ ' -EVALUATION CRITERIA FOR ENGINEERING POINTS MULTIPLIER SCORE ~ -? ~gf l. The firm's experience, as well as 0-10 4 7(, ~~/proposed subcontractors, in successfully performing similar assignments, .f ~~scope and size, for others within the ast five (5) years, by personnel still on the firm's staff. Prime and.Sub have worked together before. 2. Professional background of key personnel 0-10 f 4 3?-.. and experience in engineering, surveying, project administration, and resident project ~~~ representation. The firm's current staff, . both in size and related experience, is qualilied to provide the desired service. Indicate length of time key employees have been with the firm as well as their home office location. ~3. Location of main office and/or branch office 0-10 that will provide services and experience in the local area. ~ 4. Management approach to this project. (Include 0-10 I '? ---QAIQC, schedule and budget programs). ~~~ 5. Technical approach to this project. (Include 0-10 1 CJ ~ computer capacity). 6. Previous clients, for similar projects express 0-10 2 satisfaction with the firm's work (Short listed firms only, if necessary). 7. Oral presentation (short listed firms only, if 0-10 4 necessary). q; . ?11-TE-§;M8/25 EVALUATION CRITERIA FOR ENGINEERING > > POINTS MULTIPLffiR SCORE 1. The firm's experience, as well as 0-10 proposed subcontractors, in success-t 4 M fully performing similar assignments, in scope and size, for others within the last five (5) years, by personnel still on the firm's staff. Prime and.Sub have worked together before. 2. Professional background of key personnel 0-10 (o 4 _nand experience in engineering, surveying, project administration, and resident project representation. The firm's current staff, both in size and related experience, is qualified to provide the desired service. Indicate length of time key employees have been with the firm as well as their home office location. q 3. Location of main office and/or branch office 0-10 q l that will provide services and experience in the local area. r 4. Management approach to this project. (Include 0-10 t I --QA/QC, schedule and budget programs). ~ 5. Technical approach to this project. (Include 0-10 ? I ---com puler capacity). _13 6. Previous clients, for similar projects express 0-10 2 satisfaction with the firm's work (Short listed firms only, if necessary). 7. Oral presentation (short listed firms only, if 0-10 4 necessary). GttJ ' ' EVALUATION CRITERIA FOR ENGINEERING POINTS MULTIPLIER SCORE L The firm's experience, as well as 0-10 q 4 5(o proposed subcontractors, in successfully performing similar assignments, in scope and size, for others within the last five (5) years, by personnel still on the firm's staff. Prime and.Sub have worked together before. 2. Professional background of key personnel 0-10 l{ 4 )l--and experience in engineering, surveying, project administration, and resident project representation. The firm's current staff, both in size and related experience, is qualitied to provide the desired service. Indicate length of time ke~ employees have lieen _:::Wlt!i ~~ fii!!! as well as ilieir ~ome o!§:~ locattonh 3. Location of main office and/or branch office 0-10 2 I ~ ---that will provide services and experience in the local area. (p 4. Management approach to this project. (Include 0-10 (, I ---QAIQC, schedule and budget programs). 5. Technical approach to this project. (Include 0-10 1 I computer capacity). 6. Previous clients, for similar projects express 0-10 2 satisfaction with the firm's work (Short listed firms only, if necessary). 7. Oral presentation (short listed firms only, if 0-IO 4 necessary). vJ-lP-lL~ eM ~+-~ ~.t--4 \)) ,eo.,\L &ft-/0, c... . ~-l ~C!?~~J ru-r .Jd--4/ft ~.~~ ' ~:.._ \.Jl~ ~VM~, ClbF-~ tf ~ ~ lft~-rnJ '' EVALUATION CRITERIA FOR ENGINEERING I. The firm's experience, as well as proposed subcontractors, in successfully performing similar assignments, in scope and size, for others within the last five (5) years, by personnel still on the firm's staff. Prime and.Sub have worked together before. Professional background of key personnel and experience in engineering, surveying, project administration, and resident project representation. The firm's current staff, both in size and related experience, is qualified to provide the desired service. Indicate length of time key employees have been with the firm as well as their home office location. 3. Location of main office and/or branch office that will provide services and experience in the local area. 4. Management approach to this project. (Include QA/QC, schedule and budget programs). 5.. Technical approach to this project. (Include computer capacity).