HomeMy WebLinkAboutContract 53194 CITY SECRETARY
REG�`��p Cy:'ki,l`i f�AGT NO.
�E Fo��wo RAIL CROSSING LICENSE AGREEMENT
THIS AGREEMENT made as of the #1-6 day of b-ecembe.r 2019, 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 drainage facilities (hereinafter"Facility"), upon and along
the property of Licensor in an area between mile post 2.65 and mile post 2.7, Fort
Worth Subdivision, Fort Worth, Tarrant County, Texas, as more particularly
described in conformity with the location, plans and dimensions marked Exhibit"A"
(hereinafter "Premises") attached hereto and made a part hereof,
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:
(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.
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Mistletoe Station Drainage Project—MP 2.65 to MP 2.7 Page 1
(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 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
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Mistletoe Station Drainage Project—MP 2.65 to MP 2.7 Page 2
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.
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
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Mistletoe Station Drainage Project—MP 2.65 to MP 2.7 Page 3
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 trenching, and there shall be a minimum of Zero feet
(0) of groundcover from the top of the reinforced box culvert. The Facility shall be
constructed, operated, maintained, repaired, renewed, modified and/or
reconstructed by Licensee in strict conformity with AREMA standards for a cased
water 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
drainage 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 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,
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Mistletoe Station Drainage Project—MP 2.65 to MP 2.7 Page 4
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.
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.
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(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 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
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Mistletoe Station Drainage Project—MP 2.65 to MP 2.7 Page 6
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 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.
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Mistletoe Station Drainage Project—MP 2.65 to MP 2.7 Page 7
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
(11) OTHER CONTRACTORS, OTHER THAN CONTRACTOR
HIRED BY LICENSOR AND THEIR RESPECTIVE DIRECTORS, OFFICERS,
EMPLOYEES, SERVANTS, AGENTS, REPRESENTATIVES AND INVITEES.
"LICENSEE" SHALL BE COMPRISED OF:
(1) LICENSEE, ITS AFFILIATE COMPANIES, AND
THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SERVANTS,
AGENTS, REPRESENTATIVES AND INVITEES; AND
(11) 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:
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(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
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,
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$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.
(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 VI or better and authorized to do business in the state(s) in which the service
is to be provided.
Q) 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
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Mistletoe Station Drainage Project—MP 2.65 to MP 2.7 Page 10
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.
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.
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
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Mistletoe Station Drainage Project—MP 2.65 to MP 2.7 Page 11
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.
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:
RAIL CROSSING LICENSE AGREEMENT
Mistletoe Station Drainage Project—MP 2.65 to MP 2.7 Page 12
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.
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
RAIL CROSSING LICENSE AGREEMENT
Mistletoe Station Drainage Project—MP 2.65 to MP 2.7 Page 13
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.
(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.
RAIL CROSSING LICENSE AGREEMENT
Mistletoe Station Drainage Project—MP 2.65 to MP 2.7 Page 14
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.
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.
RAIL CROSSING LICENSE AGREEMENT
Mistletoe Station Drainage Project—MP 2.65 to MP 2.7 Page 15
(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.
IN WITNESS WHEREOF, the parties hereto have executed this agreement
in duplicate as of the day and year first herein written.
LICENSEE: LICENSOR:
CITY OF FORT WORTH FORT WORTH &WESTERN
RAILROAD COMPANY
BY: _ By: ��
PRINT: p�— nn Kevin Erasmus, President & CEO
TITLE: - U--7
DATE: 2 l j Date:
APPVJ.4
RE MMENDE
By:
Name:
Randle Harwood, Director of Planning and Development
OFF90AL RECORD
RAIL CROSSING LICENSE AGREEMENT CBE��RE'�QRy
Mistletoe Station Drainage Project—MP 2.65 to MP 2.7
FT WORTH, TX
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.
1
AP O ED AS TO FORM AND LEGALITY
By:
Name:
Doug Blac , Istant CitJ Attorney
ATTEST:
a YAa s `
City Se r t
.........
�-mot P �.`,.` P'�'� • -
OFFICIAL RECORD
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