HomeMy WebLinkAboutContract 57653 Jun 7,2022 CSC No.57653
RAIL CROSSING LICENSE AGREEMENT
THIS AGREEMENT made as of the 1st day of June 2022, by and between
FORT WORTH & WESTERN RAILROAD COMPANY, a Texas Corporation
located at 6300 Ridglea Place, Suite 1200, Fort Worth, Texas 76116 (hereinafter
referred to as "Licensor"), and CITY OF FORT WORTH, a Texas municipal
corporation located at 200 Texas St. Fort Worth, Texas 76102 (hereinafter
referred to as "Licensee").
WITNESSETH:
1. License - Subject to the provisions hereof, Licensor hereby grants to
Licensee, effective as of the first date herein written, a license to install, operate,
maintain, repair and use one (1) twenty-four inch (24") nominal diameter ductile
iron sanitary sewer pipeline with forty-two inch (42") nominal diameter steel
casing, pursuant to Section 6.(c), to transport only sewage (hereinafter "Facility"),
crossing under right-of-way of Licensor located at or near mile post 8.0, Dublin
Subdivision, Benbrook, Tarrant County, Texas (hereinafter "Premises"), as more
particularly shown on Exhibit A attached hereto and made a part hereof, in
conformity with the dimensions and specifications indicated on the drawing(s)
marked Exhibit B, consisting of one (1) page(s), attached hereto and made a part
hereof. Under no circumstances shall Licensee modify the use of the Facility for
a purpose other than the above mentioned and said Facility shall not be used for
any other use, whether such use is currently technologically possible, or whether
such use may come into existence during the life of this Agreement.
Licensee's right to use the Premises is nonexclusive, and Licensor and its
nominees shall have the right to enter and use the Premises for any purposes
that will not unreasonably interfere with the rights granted to Licensee hereunder.
Licensee agrees that Licensor shall not be estopped to revoke this
License pursuant only to events described in Section 14. and Section 16. of this
Agreement, notwithstanding any expenditure, regardless of the amount, that may
be incurred by Licensee with respect to the Premises. Licensee further agrees
that Licensee shall not contest Licensor's right to revoke this License.
2. Term - This Agreement may be continued in effect for so long as the
Facility is used for a public purpose.
3. Fee - Licensee agrees to pay Licensor Twenty-Five Thousand Dollars
($25,000.00) upon execution of this Agreement.
4. Expenses of Licensee - Licensee shall pay the costs and expenses
listed below:
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CITY SECRETARY
FT.WORTH, TX
(a) Taxes - Licensee is a tax exempt entity. Notwithstanding this,
Licensee shall pay charges, fees and assessments validly levied by a taxing
entity on the Premises, if any, by reason of Licensee's activities or by reason of
the Facility. Licensor may pay such charges, fees or assessments, and such
payments shall be repaid.
(b) Utilities - Licensee agrees to pay for all utilities installed at Licensee's
request and for all utility services furnished to Licensee on the Premises.
(c) Other Expenses - In addition to the taxes and utilities as described
above, and unless otherwise specified herein, Licensee shall bear the sole risk
and pay for all costs and expenses of whatever kind and nature which may arise
from this License, including, without limitation, flagmen, inspectors, expenses to
construct, reconstruct, alter, repair and maintain the Premises and Facility and
other improvements in the right of way of Licensor including, but not limited to,
Licensor's infrastructure and Licensor `s property affected by the operation of the
Facility (the "Other Improvements") or personal property located on the Premises
by or on behalf of Licensee.
Licensee further agrees to be responsible for and promptly reimburse the
Licensor for any and all damages, losses or liabilities, including, but not by way of
limitation the costs of business interruption and re-routing and detours of trains
as a result of, or relating to, the installation, operation, maintenance, repair and
use of the Facility within the Premises, to Other Improvements and/or any other
casualty to the Premises or Other Improvements caused directly by the Facility..
(d) Interest -N/A.
(e) Reimbursement to Licensor - If Licensor, which has hereto retained
an easement upon the property upon which the Facility is to be installed, shall
have made payments on behalf of Licensee for any costs or expenses incurred
herein, Licensee shall reimburse Licensor within ten (10) days from the date
amounts for such costs or expenses were incurred.
5. Limitation and Subordination of Rights Granted -
(a) The foregoing grant of right is subject and subordinate to the prior
and continuing right and obligation of Licensor, to use and maintain its entire right
of way including the right and power of Licensor to construct, maintain, repair,
renew, use, operate, change, modify or relocate railroad tracks, signal,
communication, fiber optics, or other wire lines, pipelines and other facilities
upon, along or across any or all parts of its right of way, all or any of which may
be freely done at any time or times by Licensor without liability to Licensee or to
any other party for compensation or damages.
(b) The foregoing grant is also subject to those restrictions, covenants,
conditions, reservations, easements and purchase options of what-so-ever
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nature relating to the Premises and to all zoning laws, regulations, statutes,
restrictions, ordinances being municipal and/or other governmental authorities,
but only to the extent they are in effect and forceable against the Premises. In
addition, Licensor shall have the right to renew, amend, modify and extend any
instrument or agreement with respect to any restrictions, covenants, conditions,
reservations, easements and options. Further, Licensee accepts the Premises
"AS-IS AND WITH ALL FAULTS", Licensor making no warranties as to title or
fitness for the purpose of which Licensee intends to use the Premises.
6. Use -
(a) Qualifications on Use - Licensee shall neither use nor permit any
use of the Premises for any purpose other than that set forth in Section 1 hereof.
This License is subject to all easements, leases, liens, conditions,
restrictions, encumbrances and claims of title which may affect the Premises.
Licensee accepts the Premises (including, without limitation, Licensor-owned
improvements, if any) in their present condition and without any representation or
warranty by Licensor as to the conditions of such Premises or improvements,
and Licensor shall not be responsible for any defect or change of conditions on
the Premises or in such improvements, any damage occurring thereto, or the
existence of any violation of any municipal, county, state or federal law, order,
rule, regulation or ordinance.
Licensee shall not (1) remove any earth or soil outside of tunneling
operations, (2) destroy, cut or remove any timber, trees or firewood standing or
lying thereon, (3) commit any waste thereon, or (4) permit others to commit any
of said acts. Licensee shall not do or suffer to be done in or upon the Premises
any act or thing which is or may be a nuisance. Licensee shall not use or permit
others to use the Premises for any unlawful or immoral purpose.
The Premises shall not be used for displaying signs and notices
other than those connected with the use of the Premises contemplated by this
License.
(b) Maintenance and Repair - Licensee, at its expense and to the
satisfaction of Licensor, shall keep and maintain the Premises, the Facility and
any Other Improvements in good order and repair and in a neat, safe and
workmanlike manner condition, and promptly make all repairs and replacements
that may become necessary to the Premises or the Facility or Other
Improvements or appurtenances thereto, whether structural or nonstructural,
ordinary or extraordinary. If Licensee shall fail to perform its obligations under
this Section 6.(b) Licensor may take action to so keep and maintain the
Premises, the Facility and any Other Improvements or appurtenances thereto,
and Licensee shall reimburse Licensor pursuant to Section 4.(e) of this
Agreement.
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Licensee shall keep and maintain the soil over the Facility thoroughly
compacted and the grade even with the adjacent surface of the ground.
(c) Construction, Alterations and Liens - Licensee shall give Licensor
forty-eight (48) hours' notice at (817) 201-4450 of the proposed dates and
location of construction. In case of emergency, the forty-eight (48) hour notice
may be waived; however, Licensee will make every effort to notify Licensor of
such emergency and that work is being done. If requested, Licensee shall
furnish Licensor with a bond in a form and in an amount satisfactory to Licensor
prior to commencing such construction, reconstruction, alteration or repair.
Installation shall be by dry boring only, and there shall be a minimum of
twenty-three feet (23') of groundcover from the top of the casing to the base of
the rail. The Facility shall be constructed, operated, maintained, repaired,
renewed, modified and/or reconstructed by Licensee in strict conformity with
AREMA standards for a sewage pipeline, except as may be modified and
approved by Licensor's Director Special Projects. Licensor's Director Special
Projects may be contacted at 6300 Ridglea Place, Suite 1200, Fort Worth, Texas
76116, by telephone at (817) 763-8297 or by facsimile at (817) 738-9657. In all
cases of difference or conflict between AREMA standards and the requirements
of any federal, state or municipal law, the more stringent standard shall apply.
Licensee shall prevent the leakage of fluids or material from Licensee's
sewage facility, if any, to such extent as may be necessary to avoid interference
with other electric transmission, signaling or communication lines. Project
markers in form and size satisfactory to Licensor shall be installed and
maintained by Licensee to identify the Facility and its owner at appropriate
locations, or at such locations as Licensor's designates. Such markers shall be
relocated or removed by Licensee within thirty (30) days of the receipt of
Licensor's written request.
Licensee shall keep all equipment, tools and materials stored at least 25
feet from the center line of any operable track. Explosives or other highly
inflammable substances or any hazardous materials regulated pursuant too
federal or state regulation will not be stored on Licensor's property.
Licensee shall remove all of Licensee's tools, equipment and materials
from the Premises promptly upon completion of work, restoring the Premises to
the same state and condition as when Licensee entered thereon.
Absence of markers does not constitute a warranty by Licensor that there
are no subsurface installations.
Licensor has the right to post notices of no responsibility upon the
Premises, and to otherwise notify, actually or constructively, any entity or
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persons supplying services or materials to the Premises that Licensor is not
responsible for the cost thereof. Licensee covenants and agrees to hold
Licensor, Licensor and the Premises harmless from any mechanics' or
materialmen's liens claimed by any person, firm or corporation employed by or
on behalf of Licensee. In the event of the filing of any such liens, Licensee shall
cause such liens to be discharged of record within five (5) days after Licensor's
written notice to do so. To the extent permitted by law, Licensee shall indemnify
and defend Licensor against all liability, cost and expense (including attorneys'
fees) incurred by Licensor as a result of any such lien. Nothing contained herein
shall require Licensee to create a "sinking fund" as described in the Texas
Constitution, Article 11, Section 5.
All work performed on the Premises in connection with the construction,
maintenance, repair, renewal, modification or reconstruction of the Facility shall
be done to the reasonable satisfaction of Licensor.
Except in the case of an emergency as set forth in this Section 6, prior to
the commencement of any work in connection with the construction,
maintenance, repair, renewal, modification, relocation, reconstruction or removal
of the Facility where it passes underneath the roadbed and track or tracks of
Licensor, Licensee shall submit to Licensor plans setting out the method and
manner of handling the work, including the shoring and cribbing, if any, required
to protect Licensor's operations, and shall not proceed with the work until such
plans have been approved by Licensor's Director Special Projects and then the
work shall be done to the satisfaction of the Director Special Projects or his
authorized representative. The Director Special Projects' approval of Licensee's
plans shall operate as Licensor's acceptance of Licensee's deviations, if any,
from specific construction-related terms contained herein. Licensor shall have the
right, if it so elects, to provide such support (whether in the form of personnel,
engineers, subcontractors and/or materials) as Licensor may deem necessary for
the safety of their track or tracks during the time of construction, maintenance,
repair, renewal, modification, relocation, reconstruction or removal of the Facility,
and, in the event Licensor provides such support, Licensee shall pay to Licensor,
within fifteen (15) days after bills shall have been rendered therefor, all expense
incurred by Licensor in connection therewith, which expense shall include all
assignable costs.
(d) Tests - Licensee shall cooperate with Licensor in making any tests
that Licensor may require or any installation or condition relating to Licensee's
property which, in Licensor's judgment, might adversely affect any existing or
future facilities of Licensor.
(e) Damage - If any damage is caused to the Other Improvements, the
land or other property on the Premises, Licensee agrees to promptly repair or
pay the full replacement value of such damaged property (regardless of
amortization) to Licensor, at Licensor's discretion.
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7. Reinforcement Relocation or Removal of Facility -
(a) The license herein granted is subject to the needs and
requirements of Licensor in the operation of its railroad and in the improvement
and use of its right of way, and Licensee shall, at the sole expense of Licensee,
reinforce the Facility, or move all or any portion of the Facility to such new
location as Licensor may designate, whenever, in the furtherance of its needs
and requirements, Licensor shall find such action necessary or desirable unless
such relocation or removal frustrates the original purpose of the Facility.
(b) All the terms, conditions and stipulations herein expressed with
reference to the Facility on right of way of Licensor in the location hereinbefore
described shall, so far as the Facility remains on the right of way, apply to the
Facility as modified, changed or relocated within the contemplation of this
section.
8. No Interference with Licensor's Operation -
(a) The Facility and all parts thereof within and outside of the limits of
the right of way of Licensor shall be constructed and, at all times, maintained,
repaired, renewed and operated in such manner as to cause no interference
whatsoever with the constant, continuous and uninterrupted use of the tracks,
right of way and facilities of Licensor, and nothing shall be done or suffered to be
done by the Licensee at any time that would in any manner impair the safety
thereof.
(b) Licensee shall keep all equipment, tools and materials stored at
least 25 feet from the centerline of any operable track. Explosives or other highly
flammable substances or any hazardous materials regulated pursuant to federal
or state regulation will not be stored on the Premises without the prior approval of
Licensor.
9. Protection of Fiber Optic Cable Systems -
(a) Fiber optic cable systems may be buried on Licensor's right of way.
Protection of the fiber optic cable systems is of extreme importance since any
break could disrupt service to users resulting in business interruption and loss of
revenue and profits. Licensee shall contact Licensor's Director Special Projects
to determine if fiber optic cable is buried anywhere on Licensor's Premises to be
used by Licensee. If it is, Licensee will contact the telecommunications
company(ies) involved, arrange for a cable locator, make arrangements for
relocation or other protection of the fiber optic cable, all at Licensee's expense,
and will commence no work on the right of way until all such protection or
relocation has been accomplished. To the extent permitted by law, and without
requiring the creation of a sinking fund as described in the Texas Constitution,
Article 11, Section 5, Licensee shall indemnify and hold the Licensor harmless
from and against all costs, liability and expense whatsoever (including, without
limitation, attorneys' fees, court costs and expenses) arising out of or caused in
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any way by Licensee's failure to comply with the provisions of this paragraph.
(b) In addition to other indemnity provisions in this Agreement,
Licensee shall, to the extent permitted by law, and without requiring the creation
of a sinking fund as described in the Texas Constitution, Article 11, Section 5,
indemnify and hold Licensor harmless from and against all costs, liability and
expense whatsoever (including, without limitation, attorneys' fees, court costs
and expenses) caused by the negligence of Licensee, its contractor, agents
and/or employees, resulting in (1) any damage to or destruction of any
telecommunications system on Licensor's right of way, and/or (2) any injury to or
death of any person employed by or on behalf of any telecommunications
company, and/or its contractor, agents and/or employees, on Licensor's right of
way, except if such costs, liability or expenses are caused solely by the
gross negligence of Licensor. Licensee further agrees that it shall not have or
seek recourse against Licensor for any claim or cause of action for alleged loss
of profits or revenue or loss of service or other consequential damage to a
telecommunication company using Licensor's right of way or a customer or user
of services of the fiber optic cable on Licensor's right of way.
10.Claims and Liens for Material and Labor; Taxes -
(a) Licensee shall fully pay for all materials joined or affixed to and
labor performed upon right of way of Licensor in connection with the construction,
maintenance, repair, renewal, modification or reconstruction of the Facility, and
shall not permit or suffer any mechanic's or materialman's lien of any kind or
nature to be enforced against the right of way for any work done or materials
furnished thereon at the instance or request or on behalf of Licensee. Licensee
shall, to the extent permitted by law, and without requiring the creation of a
sinking fund as described in the Texas Constitution, Article 11, Section 5,
indemnify and hold harmless Licensor against and from any and all liens, claims,
demands, costs and expenses of whatsoever nature in any way connected with
or growing out of such work done, labor performed, or materials furnished.
11.Indemnification - TO THE EXTENT PERMITTED BY LAW,
LICENSEE SHALL INDEMNIFY, DEFEND AND SAVE HARMLESS LICENSOR
AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVANTS,
SUCCESSORS AND ASSIGNS, FROM AND AGAINST ANY AND ALL SUITS,
ACTIONS, LOSSES, DAMAGES, CLAIMS, LIABILITY, COSTS OR EXPENSES,
OF ANY CHARACTER, TYPE OR DESCRIPTION, INCLUDING ALL
EXPENSES OF LITIGATION, COURT COSTS, AND ATTORNEYS' FEES, FOR
INJURY OR DEATH TO ANY PERSON, OR INJURY TO ANY PROPERTY,
RECEIVED OR SUSTAINED BY ANY PERSON OR PERSONS OR PROPERTY
ARISING OUT OF, OR OCCASIONED BY, DIRECTLY OR INDIRECTLY, THE
PERFORMANCE OF LICENSEE UNDER THIS AGREEMENT, INCLUDING
CLAIMS AND DAMAGES ARISING IN WHOLE OR IN PART FROM THE
NEGLIGENCE OF LICENSOR AND/OR ITS AGENTS AND EMPLOYEES. IT IS
THE EXPRESSED INTENT OF THE PARTIES TO THIS AGREEMENT THAT
THE INDEMNITY PROVIDED FOR IN THIS SECTION IS AN INDEMNITY
EXTENDED BY LICENSEE TO INDEMNIFY AND PROTECT LICENSOR FROM
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THE CONSEQUENCES OF LICENSOR'S OWN NEGLIGENCE, OR THE
NEGLIGENCE OF ITS AGENTS OR EMPLOYEES, WHETHER THAT
NEGLIGENCE IS THE SOLE OR CONTRIBUTORY CAUSE OF THE
RESULTANT INJURY, DEATH, OR DAMAGE. TO THE EXTENT PERMITTED
BY LAW, LICENSEE FURTHER AGREES TO DEFEND, AT ITS OWN
EXPENSE, AND ON BEHALF OF LICENSOR AND IN THE NAME OF
LICENSOR, ANY CLAIM OR LITIGATION BROUGHT IN CONNECTION WITH
ANY SUCH INJURY, DEATH OR DAMAGE. NOTHING CONTAINED HEREIN
SHALL REQUIRE LICENSEE TO CREATE A "SINKING FUND" AS
DESCRIBED IN THE TEXAS CONSTITUTION, ARTICLE 11, SECTION 5.
LICENSEE HEREBY AGREES, IN THE CONDUCT OF ITS
OPERATIONS HEREUNDER, TO ABIDE BY AND COMPLY WITH ALL
APPLICABLE LAWS, STATUTES, RULES AND REGULATIONS OF ANY
FEDERAL, STATE OR MUNICIPAL AUTHORITY, OR ANY OTHER PUBLIC
BODY HAVING JURISDICTION, INCLUDING WITHOUT LIMITATION, LAWS,
ORDINANCES AND GOVERNMENTAL REGULATIONS CONTROLING AIR,
WATER, NOISE, SOLID WASTES AND OTHER POLLUTION, AND
ENVIRONMENTAL DAMAGES, AND TO FILE ALL REPORTS OR
STATEMENTS REQUIRED IN CONNECTION WITH THE CONDUCT OF ITS
BUSINESS. TO THE EXTENT PERMITTED BY LAW, LICENSEE SHALL AND
DOES HEREBY INDEMNIFY AND HOLD HARMLESS LICENSOR FROM ANY
AND ALL LOSS, COST OR EXPENSE WHATSOEVER, INCURRED BY
REASON OF ANY VIOLATION OF SUCH RULES AND REGULATIONS.
NOTHING CONTAINED HEREIN SHALL REQUIRE LICENSEE TO CREATE A
"SINKING FUND" AS DESCRIBED IN THE TEXAS CONSTITUTION, ARTICLE
11, SECTION 5.
FOR PURPOSES OF THIS SECTION 11
"LICENSOR" SHALL BE COMPRISED OF.'
(1) FORT WORTH & WESTERN RAILROAD COMPANY, ITS
PARENT COMPANIES, ITS SUBSIDIARY COMPANIES, ITS AFFILIATE
COMPANIES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS,
EMPLOYEES, SERVANTS, AGENTS, REPRESENTATIVES AND INVITEES;
AND
(II) OTHER CONTRACTORS, OTHER THAN CONTRACTOR
HIRED BY LICENSOR AND THEIR RESPECTIVE DIRECTORS, OFFICERS,
EMPLOYEES, SERVANTS, AGENTS, REPRESENTATIVES AND INVITEES.
"LICENSEE" SHALL BE COMPRISED OF:
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(1) LICENSEE, ITS AFFILIATE COMPANIES, AND
THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SERVANTS,
AGENTS, REPRESENTATIVES AND INVITEES; AND
(II) ANY CONTRACTOR HIRED BY LICENSEE WITH THE
CONSENT OF LICENSOR AND THEIR RESPECTIVE DIRECTORS,
OFFICERS, EMPLOYEES, SERVANTS, AGENTS, REPRESENTATIVES AND
INVITEES OF SUCH CONTRACTOR.
12. Insurance — Licensee is a self-insured entity. Licensee shall require
its contractors to procure and maintain during the life of the construction contract
for installation of the Facilities, the following insurance coverage:
(a) Commercial General Liability Insurance. This insurance shall
contain broad form contractual liability with a combined single limit of a minimum
of $1,000,000 each occurrence and an aggregate limit of at least $2,000,000.
Coverage must be purchased on a post 1998 ISO occurrence or equivalent and
include coverage for, but not limited to, the following:
• Bodily Injury and Property Damage
• Personal Injury and Advertising Injury
• Fire legal liability
• Products and completed operations
This policy shall also contain the following endorsements, which shall be
indicated on the certificate of insurance:
• The exclusions for railroads (except where the Premises are more than
fifty feet (50') from any railroad including but not limited to tracks, bridges,
trestles, roadbeds, terminals, underpasses or crossings), and explosion,
collapse and underground hazard shall be removed.
• Coverage for Licensee's (and Licensor's) employees shall not be excluded
• Waiver of subrogation in favor of Licensor
No other endorsements limiting coverage may be included on the policy with
regard to the work being performed under this Agreement.
(b) Business Automobile Insurance. This insurance shall contain a
combined single limit of at least $1,000,000 per occurrence, and include
coverage for, but not limited to the following:
• Bodily injury and property damage
• Any and all vehicles owned, used or hired
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The policy shall also contain the following endorsements, which shall be
indicated on the certificate of insurance:
• The exclusions for railroads (except where the Premises are more than
fifty feet (50') from any railroad including but not limited to tracks, bridges,
trestles, roadbeds, terminals, underpasses or crossings), and explosion,
collapse and underground hazard shall be removed.
(c) Worker's Compensation and Employers Liability Insurance including
but not limited to:
• Licensee's statutory liability under the workers' compensation laws of the
state affected by this Agreement.
• Employers' Liability (Part B) with limits of at least
$1 ,000,000 each accident,
$1,000,000 disease policy limit
$1,000,000 each employee
(d) Umbrella or Excess Policies — In the event Licensee utilizes
umbrella or excess policies, these policies shall "follow form" and afford no less
coverage than the primary policy.
Other Requirements
(e) Where allowable by law all policies (applying to coverage listed
above) shall contain no exclusion for punitive damages and certificates of
insurance shall reflect that no exclusion exists.
(f) Licensee agrees to waive its right of recovery, and its insurers,
through policy endorsement, agree to waive their right of subrogation against
Licensor. Licensee further waives its right of recovery, and its insurers also
waive their right of subrogation against Licensor for loss of its owned or leased
property or property under its care, custody and control. Licensee's insurance
shall be primary with respect to any insurance carried by Licensor. All waivers of
subrogation shall be indicated on the certificate of insurance.
(g) All policy(ies) required above (excluding Workers Compensation)
shall include a severability of interest endorsement and shall name Licensor as
an additional insured with respect to work performed under this Agreement.
Severability of interest and naming Licensor as additional insured shall be
indicated on the certificate of insurance.
(h) Prior to commencing work, Licensee shall furnish to Licensor
acceptable certificate(s) of insurance evidencing the required coverage,
endorsements, and amendments and referencing the subject mile post.
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(i) Any insurance policy shall be written by a reputable insurance
company acceptable to Licensor or with a current Best's Guide Rating of A- and
Class VII or better and authorized to do business in the state(s) in which the
service is to be provided.
0) Allocated Loss Expense shall be in addition to all policy limits for
coverages referenced above.
(k) Licensor may reasonably modify the required insurance coverage
to reflect future risk management practices in the railroad industry and
underwriting practices in the insurance industry.
(1) Failure to provide evidence as required by this Section shall entitle,
but not require, Licensor to terminate this Agreement immediately. Acceptance
of a certificate that does not comply with this Section shall not operate as a
waiver of Licensee's obligations hereunder.
(m) For purposes of this Section, Licensor shall mean the "Tarantula
Corporation" and "Fort Worth & Western Railroad Company" and the
subsidiaries, successors, assigns and affiliates of each.
(n) If Licensee named in this Agreement is a public entity subject to
any applicable statutory tort laws, the limits of insurance shall be the limits the
Licensee then has in effect or which is required by applicable current or
subsequent law, whichever is greater, a portion of which may be self-insured with
the consent and approval of Licensor.
(o) The fact that insurance is obtained by Licensee, shall not be
deemed to release or diminish the liability of Licensee, including, without
limitation, liability under the indemnity provisions of this Agreement. Damages
recoverable by Licensor shall not be limited by the amount of the required
insurance coverage.
(p) Upon sixty (60) days' notice to User, Railroad may increase limits
or otherwise change the coverage required by this Agreement, consistent with
Railroad's risk management policy, no more frequently than once in any twelve
(12) month period.
In the event Licensee fails to comply with any provisions of this Section
12, this Agreement shall automatically terminate without notice.
13. Destruction of Facility or Premises or Other Improvements - If all
or part of the Facility or Premises or Other Improvements is damaged or
destroyed by fire or other peril, caused in whole or in part by the acts or
omissions of Licensee, Licensee shall restore the Facility or Premises or Other
Improvements to their condition immediately prior to such fire or other peril.
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14. Condemnation - In the event all or any portion of the Premises shall
be taken or condemned for public use (including conveyance by deed in lieu of or
in settlement of condemnation proceedings), this Agreement shall be revoked on
the sooner of the order of possession or the date of the final order of
condemnation or deed. Licensor shall be entitled to all compensation and
damages arising out of such taking or condemnation, or sale in lieu thereof, and
Licensee shall assign to Licensor any and all compensation and damages
awarded to Licensee in connection therewith.
15. Termination - This Agreement shall terminate thirty (30) days after
receipt of written notice from Licensor when (i) Licensee fails to pay the license
fee when due pursuant to Section 3, or (ii) if Licensee is in default pursuant to
Section 16, or (iii) when Licensee ceases to use the Premises for a public
purpose.
(a) General - Termination or revocation of this Agreement shall not
release either party hereto from any liability or obligation hereunder, whether of
indemnity or otherwise, resulting from any acts, omissions, or events which
occurred prior to such termination or revocation, or thereafter in case by the
terms of this Agreement it is provided that anything shall or may have to be done
after such termination or revocations.
(b) Surrender of Premises - Upon termination or revocation of this
Agreement, Licensee shall discontinue the use of the Facility and, within sixty
(60) days, remove the Facility and all other property of Licensee from the
Premises, subject to subsection 15.(a) above. Licensee shall restore the
Premises as nearly as possible to the condition in which they existed prior to the
construction of the Facility. Property of Licensee not removed from the Premises
within sixty (60) days after the termination or revocation of this License shall
become the property of Licensor. Licensee agrees to reimburse Licensor for the
cost and expense incurred by Licensor in restoring the Premises and in disposing
of said property of Licensee not so removed. If Licensee fails to surrender
possession of the Premises upon termination or revocation of this Agreement,
Licensor shall have the right, to the extent permitted by law, to reenter the
Premises and remove therefrom Licensee and any person or entity claiming by
or through Licensee.
16. Default - Licensee shall be in default under this Agreement if
Licensee fails or refuses to pay any amount hereunder when due or if Licensee
fails or refuses to perform any other covenant or condition.
If Licensee fails to cure a default within thirty (30) days after notice from
Licensor to do so, Licensor shall have the right, without further notice and in
addition to any other remedies Licensor may have at law or equity, to revoke this
Agreement forthwith and to retake possession of the Premises.
RAIL CROSSING LICENSE AGREEMENT
COFW Chisholm Trail South Sanitary Sewer
MP 8.0, Dublin Subdivision Page 12
17. Nonwaiver - Licensor's failure to enforce or exercise its rights under
any term, condition or covenant of this Agreement shall not be construed as a
waiver of such rights or of such term, covenant or conditions.
18. Attorneys' Fees - If either party takes any steps or brings any action
to compel performance of or to recover for breach of any term of this Agreement,
the losing party shall pay reasonable attorneys' fees of the prevailing party, in
addition to the amount of judgment and costs.
19. Personal Nature of Agreement - This Agreement is personal to
Licensee. As such, Licensee has no right to assign this Agreement in whole or in
part, or to sublicense the Premises in whole or in part.
20. Notices - Any demands, notices or statements herein requested or
required to be given by one party to the other shall be in writing. Delivery of such
written notice, demands or statements to Licensor shall be conclusively taken as
sufficient if and when delivered in person or deposited in the U.S. mail, registered
or certified, postage fully prepaid, addressed to Licensor at:
with a copy to Licensor at:
Fort Worth & Western Railroad Company
6300 Ridglea Place, Suite 1200,
Fort Worth, Texas 76116
Attention: President & CEO.
Delivery of such written notice, demands or statements to Licensee shall
be conclusively taken as sufficient if and when delivered in person or deposited
in the United States mail, registered or certified, postage fully prepaid, addressed
to Licensee at:
City of Fort Worth.
Attn: TPW-Stormwater Department
200 Texas Street
Fort Worth, Texas 76102
Either party hereto may by written notice change the address to which
such demands, notices or statements may be sent.
21. Time of Essence - Time is of the essence of this Agreement.
22. The terms of this Agreement and all rights and obligations hereunder
shall be governed by the laws of the State of Texas.
RAIL CROSSING LICENSE AGREEMENT
COFW Chisholm Trail South Sanitary Sewer
MP 8 0, Dublin Subdivision Page 13
23. To the maximum extent possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement shall be prohibited by, or held to be
invalid under, applicable law, such provision shall be ineffective solely to the
extent of such prohibition or invalidity, and this shall not invalidate the remainder
of such provision or any other provision of this Agreement.
24. Entire Agreement - The contents of this Agreement are the entire
agreement between the parties and subject to Section 6 (c) with regard to the
Facility plans, supersede all written or oral communication between the parties
prior to its execution, all understanding and negotiations regarding the same
having been merged herein, it being their intention that this be an integrated
agreement.
25. If Work is to be Performed by a Contractor- If a contractor is to do
any of the work performed on the Facility (including initial construction and
subsequent relocation or substantial maintenance and repair work), then
Licensee shall require its contractor to execute Licensor's form Temporary Right
of Entry Agreement. Licensee acknowledges receipt of a copy of the Temporary
Right of Entry Agreement and understanding of its terms, provisions, and
requirements and will inform its contractor of the need to execute the Agreement.
Under no circumstance will Licensee's contractor be allowed onto Licensor's
Premises without first executing the Temporary Right of Entry Agreement.
26. Compliance with Governmental Regulations - Licensee hereby
agrees, in the conduct of its operations hereunder, to abide by and comply with
all applicable laws, statutes, rules and regulations of any federal, state or
municipal authority, or any other public body having jurisdiction, including,
without limitation, laws, ordinances and governmental regulations controlling air,
water, noise, solid wastes and other pollution, and environmental damages, and
to file all reports or statements required in connection with the conduct of its
business.
27. Environmental -
(a) Licensee shall strictly comply with all federal, state and local
environmental laws and regulations in its use of the Premises, including, but not
limited to, the Resource Conservation and Recovery Act, as amended (RCRA),
the Clean Water Act, the Oil Pollution Act, the Hazardous Materials
Transportation Act, CERCLA (collectively referred to as the "Environmental
Laws"). Licensee shall not maintain a treatment, storage, transfer or disposal
facility, or underground storage tank, as defined by Environmental Laws on the
Premises. Licensee shall not release or suffer the release of oil or hazardous
substances, as defined by Environmental Laws on or about the Premises.
RAIL CROSSING LICENSE AGREEMENT
COFW Chisholm Trail South Sanitary Sewer
MP 8.0, Dublin Subdivision Page 14
(b) Licensee shall give immediate notice to Licensor's Operations
Center at (817) 737-2550 of any release of hazardous substances on or from the
Premises, violation of Environmental Laws, or inspection or inquiry by
governmental authorities charged with enforcing Environmental Laws with
respect to Licensee's use of the Premises. Licensee shall use the best efforts to
promptly respond to any release on or from the Premises caused by Licensee.
Licensee also shall give Licensor immediate notice of all measures undertaken
on behalf of Licensee to investigate, remediate, respond to or otherwise cure
such release or violation.
(c) In the event that Licensor has notice from Licensee or otherwise of
a release or violation of Environmental Laws arising in any way with respect to
the Facility which occurred or may occur during the term of this Agreement,
Licensor may require Licensee, at Licensee's sole risk and expense, to take
timely measures to investigate, remediate, respond to or otherwise cure such
release or violation affecting the Premises or Licensor's right-of-way.
(d) Licensee shall promptly report to Licensor in writing any conditions
or activities upon the Premises or Licensor's right of way known to Licensee
which create a risk of harm to persons, property or the environment and, if
caused by Licensee, shall take whatever action is necessary to prevent injury to
persons or property arising out of such conditions or activities; provided,
however, that Licensee's reporting to Licensor shall not relieve Licensee of any
obligation whatsoever imposed on it by this Agreement. Licensee shall promptly
respond to Licensor's request for information regarding said conditions or
activities.
28. Removal of Facility Upon Termination - Prior to the termination
of this Agreement howsoever, Licensee shall, at Licensee's sole expense,
remove (or abandon in place, pursuant to applicable federal, state and local
laws) the Facility from those portions of the right of way not occupied by the
roadbed and track or tracks of Licensor and shall restore, to the satisfaction of
Licensor, such portions of such right of way to as good a condition as they were
in at the time of the construction of the Facility. If Licensee fails to do the
foregoing, Licensor may do such work of removal and restoration at the cost and
expense of Licensee. Licensor may, at its option, upon such termination, at the
entire cost and expense of Licensee, remove the portions of the Facility located
upon, underneath or over its right of way, roadbed and track or tracks and restore
such right of way or roadbed to as good a condition as it was in at the time of the
construction of the Facility, or it may permit Licensee to do such work of removal
and restoration to the satisfaction of Licensor. In the event of the removal by
Licensor of the property of Licensee and of the restoration of the roadbed and
right of way as herein provided, Licensor shall in no manner be liable to Licensee
for any damage sustained by Licensee for or on account thereof, and such
removal and restoration shall in no manner prejudice or impair any right of action
for damages, or otherwise, that Licensor may have against Licensee.
RAIL CROSSING LICENSE AGREEMENT
COFW Chisholm Trail South Sanitary Sewer
MP 8 0, Dublin Subdivision Page 15
29. Waiver of Breach - The waiver by Licensor of the breach of any
condition, covenant or agreement herein contained to be kept, observed and
performed by Licensee shall in no way impair the right of Licensor to avail itself of
any remedy for any subsequent breach thereof.
30. Licensors Obligations Are Several - Licensor's obligations under
this Agreement, and any liability with respect thereto, are limited solely to
Licensor's ownership interest or other rights with respect to its interest in and to
its portion of the Premises owned.
31. Joint Efforts of the Parties - All parties to this Agreement have
had access to counsel and have had an opportunity to read, review, or revise this
Agreement. This Agreement is the result of the joint efforts of the parties and
their counsel. Therefore, the parties agree that this Agreement, or any provision
of it, shall not be construed against the drafter.
32. Miscellaneous -
(a) In the event that two or more parties execute this instrument as
Licensee, all the covenants and agreements of Licensee in this Agreement shall
be the joint and several covenants and agreements of such parties.
(b) In the event of litigation on this instrument and should one or more
clauses be found invalid, all other provisions of the Agreement are to stand as
written.
(c) The terms of this Agreement and all rights and obligations
hereunder shall be governed by the laws of the State of Texas.
(d) This Agreement shall not be modified except by written agreement
of the parties. In the event of any conflict between the provisions of this
Agreement and the provisions of any other written document or agreement
between the parties, the provisions of this Agreement shall control. In the event
of any conflict between the provisions of this Agreement and the provisions of
any other written document or agreement between the parties, the provisions of
this Agreement shall control.
33. Agreement not to be Assigned - Licensee shall not assign this
Agreement, in whole or in part, or any rights herein granted, without the written
consent of Licensor . Licensor's written consent shall not be unreasonably
withheld.
34. Successors and Assigns - Subject to the provisions of Section
33 hereof, this Agreement shall be binding upon and inure to the benefit of the
parties hereto, their heirs, executors, administrators, successors and assigns.
RAIL CROSSING LICENSE AGREEMENT
COFW Chisholm Trail South Sanitary Sewer
MP 8 0, Dublin Subdivision Page 16
IN WITNESS WHEREOF, the parties hereto have executed this
agreement in duplicate as of the day and year first herein written.
CITY OF FORT WORTH, TEXAS: FORT WORTH AND WESTERN
RAILROAD COMPANY:
By- By: - �4
—4—miz/
Dana Burghdoff Kevin Erasmus,
Assistant City Manager President& CEO
Date:
APPROVAL RECOMMENDED:
By:
Christopher Harder, Director
Water Department
APPROVED AS TO FORM AND LEGALITY:
By: .�
Thomas Royce Hansen
Assistant City Attorney
CONTRACT AUTHORIZATION
M&C:
Date Approved: p� °F�RT�aa�
°
ATTEST: 0�o °0
0 °
�v1 g=d
Tannetfie S. Goodall o o
By:Jannette S.Goodall(Jun 7,202207:45 HST) ��� °p°OppppOoo° b�
Jannette Goodall a�nEXASoa
City Secretary
CONTRACT COMPLIANCE MANAGER:
By signing, I acknowledge that I am the person responsible for the monitoring and
administration of this contract, including ensuring all performance and reporting
requirements.
By: CJ,2L.4---,?L
Drew Goodman
Project Manager
OFFICIAL RECORD
CITY SECRETARY
RAIL CROSSING LICENSE AGREEMENT FT.WORTH,TX
COFW Chisholm Trail South Sanitary Sewer
MP 8.0, Dublin Subdivision Page 17
Exhibit A
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CROSSINGRAIL
COFW Chisholm •uth Sanitary Sewer
MP 8.0 Dublin Subdivision -• 18
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Exhibit B
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WORTH,TEXAS SECTION 3 OFFSITE SEW g
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RAIL CROSSING LICENSE AGREEMENT
COFW Chisholm Trail South Sanitary Sewer
MP 8.0, Dublin Subdivision Page 19