Resolution 2014-28RESOLUTION NO. 2014 -28(R)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WYLIE,
TEXAS, HEREBY AUTHORIZING THE CITY MANAGER TO
EXECUTE A LICENSE AGREEMENT BETWEEN THE CITY WYLIE
AND DALLAS AREA RAPID TRANSIT FOR A 12 -INCH STEEL PIPE
CROSSING THE COTTON BELT LINE.
WHEREAS, the City of Wylie desires to enter into a License Agreement for the purposes of
constructing, installing, maintaining and operating one (1) 8 -inch water pipeline encased in a
12 -inch steel pipe (the "Permitted Improvement ") across the Cotton Belt Line at Mile Post
580.92 in Wylie, Collin County, Texas.
WHEREAS, the City Council of the City of Wylie has determined that the need exists for the
approval of this License Agreement to allow for the operation and maintenance of one (1) fl-
inch water pipeline encased in a 12 -inch steel pipe as previously described; and
WHEREAS, the City Council of the City of Wylie does hereby approve the License Agreement
for the purposes of constructing, installing, maintaining and operating one (1) 8 -inch water
pipeline encased in a 12 -inch steel pipe (the "Permitted Improvement ") across the Cotton Belt
Line at Mile Post 580.92 in Wylie, Collin County, Texas.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF WYLIE, TEXAS:
SECTION 1: The City Manager of the City of Wylie, Texas, is hereby authorized to
execute, on behalf of the City Council of the City of Wylie, Texas, a License Agreement for the
purposes of constructing, installing, maintaining and operating one (1) 8 -inch water pipeline
encased in a 12 -inch steel pipe (the "Permitted Improvement ") across the Cotton Belt Line at
Mile Post 580.92 in Wylie, Collin County, Texas, which is attached hereto as Exhibit "A."
SECTION 2: This Resolution shall take effect immediately upon its passage.
RESOLVED THIS THE 9th day of September, 2014.
ATTEST TO:
Carole Ehrlich, it Secretary
Resolution No. 2014 -28(R)
License Agreement No. 220665 with Dallas Area Rapid
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EXHIBIT "A"
License Agreement
AGREEMENT NO. 220665
LICENSE AGREEMENT
THIS Agreement ( "License "), is made by and between DALLAS AREA RAPID TRANSIT
( "Licensor "), a regional transportation authority, created, organized and existing pursuant to Chapter 452,
Texas Transportation Code, as amended (the "Act ") and CITY OF WYLIE, ( "Licensee "), a Texas
municipal corporation, acting herein by and through its duly authorized official, whose mailing address is
300 Country Club Road, Building 100, Wylie, Texas 75098.
Pursuant to an agreement between Licensor and Kansas City Southern Railway, (hereinafter the
"Railroad "), freight railroad operations exist on Licensor's corridor.
1. Purpose. Licensor hereby grants a license (the "License ") to Licensee for the purposes of constructing,
installing, maintaining and operating one (1) 8 -inch water pipeline encased in a 12 -inch steel pipe (the
"Permitted Improvement ") crossing Licensor's Cotton Belt Line, at Mile Post 580.92, in Wylie, Collin
County, Texas, more particularly described as shown on Exhibit "A -1" and "A -2 ", dated November 1,
1991, attached hereto and incorporated herein for all pertinent purposes, (the "Property").
The Property shall be used by Licensee solely for the purpose of operating and maintaining the
Permitted Improvement (the "Permitted Use "). Licensee's right to enter upon and use the Property shall
be limited solely to the Permitted Use and the Permitted Improvement.
2. Term. This License shall begin on the 1St day of October, 2014 (the "Term ") and continue thereafter
until terminated by either party as provided herein.
3. Consideration.
3.01. The consideration for the granting of this License shall be (a) payment by Licensee to
Licensor of the following License Fee:
October 1, 2014 $ 600.00
October 1, 2015 $1,098.00
October 1, 2016 $1,596.00
October 1, 2017 $2,095.00
annually in advance, payable on October 1 (the "License Fee "), and (b) the payment annually of the
License Fee on October 1 of all succeeding years after 2017, based on the annual payment on October 1,
2017, PROVIDED, HOWEVER, that the License Fee shall be adjusted annually beginning October 1,
2018 through October 1, 2027 by a Cost of Living Adjustment in the amount of 2.5% of the License Fee,
and the Cost of Living Adjustment shall not be applied to the License Fee after the October 1, 2027
adjustment, and (c) the performance by Licensee of each of the obligations undertaken by Licensee in this
License.
3.02. Any payment not received by Licensor by the 10th day after it is due, shall bear a late
charge of $25.00 to help offset the administrative cost involved in handling such late payment.
3.03. For any payment not received by Licensor by the 15th day after it is due, such payment
shall bear interest at the rate of 18% per annum from the date it was due until it is paid, in addition to the
late charge.
City of Wylie 1 of 6 Mile Post 580.92
One 8 -inch Water Line
3.04. Acceptance of any License Fee by Licensor after written notice of termination or expiration
of this License shall not waive, reinstate, continue or extend the terms of this License.
4. Non Exclusive License. This License is non - exclusive and is subject to (a) any existing utility,
drainage or communication facility located in, on, under, or upon the Property owned by Licensor, any
Railroad, utility, or communication company, public or private; (b) all vested rights presently owned by
any Railroad, utility or communication company, located within the boundaries of the Property; and (c)
any existing lease, license or other interest in the Property granted by Licensor to any individual,
corporation or other entity, public or private.
5. Design, Construction, Operation and Maintenance. Licensor's use of the Property and adjoining
property may include the use of electrically powered equipment. Notwithstanding Licensor'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 Improvement and that such presence could produce corrosive effects to the
Permitted Improvement. Licensee waives any claim and releases Licensor with regard to any claim
arising from such corrosion.
5.01. All design, construction, reconstruction, replacement, removal, operation and maintenance
of the Permitted Improvement on the Property shall be done in such a manner so as not to interfere in any
way with the operations of Licensor or other Railroad operations. In particular, cathodic protection or
other stray current corrosion control measures of the Permitted Improvement as required shall be made a
part of the design and construction of the Permitted Improvement.
5.02. During the design phase and prior to commencing any construction on the Property, a copy
of the construction plans showing the exact location, type and depth of the construction, any cathodic
protection measures and any working area, shall be submitted for written approval to Licensor and
Railroad. Such approval shall not be unreasonably withheld. No work shall commence until said plans
have been approved by Licensor.
5.03. Licensee agrees to design, construct and maintain the Permitted Improvement 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.
5.04. Licensee covenants and agrees to institute and maintain a reasonable testing program to
determine whether or not additional cathodic protection of its Permitted Improvement 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. Licensor makes no warranty regarding subsurface installations on the Property.
Licensee shall conduct its own inspection of same and will not rely on the absence or presence of
markers.
5.06. Licensee shall provide to Licensor final construction drawings ( "as- builts ") that are
signed and sealed by a Texas Professional Engineer within sixty ( "60 ") days of completion of the
project.
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.
City of Wylie 2 of 6 Mile Post 580.92
One 8 -inch Water Line
7. Licensor'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 Licensor 's
Construction Agreement and Contractor's Right of Entry covering such work, and has furnished
insurance coverage in such amounts and types as shall be satisfactory to Licensor. A company- issued
photo identification of Licensee's employees, contractors or agents shall be required to work on the
Property.
8. Duty of Care in Construction. Licensee or its contractor shall use reasonable care during the
construction 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 Licensor. If
Licensee or its contractor causes damage to the Property or any adjacent property, the Licensee and/or its
contractor shall immediately replace or repair the damage at no cost or expense to Licensor. If Licensee
or its contractor fails or refuses to make or effect any such repair or replacement, Licensor 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 Licensor 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 local, state or federal laws pertaining to health or the environment, including but not
limited to, the Comprehensive Environmental Response, Compensation and Liability Act ( "CERCLA "),
the Resource Conservation and Recovery Act ( "RCRA "), the Clean Water Act ( "CWA ") and the Clean
Air Act ( "CAA ").
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 ensure that no such hazardous substance or solid waste will ever be discharged onto the
Property by Licensee or its Contractors.
9.03. The terms "hazardous substance" and "release" shall have the meanings specified in
CERCLA and the terms "solid waste" and "disposal" (or "disposed ") shall have the meanings specified in
the RCRA; PROVIDED, HOWEVER, that in the event either CERCLA or RCRA is amended so as to
broaden the meaning of any term defined thereby, such broader meaning shall apply subsequent to the
effective date of such amendment; and PROVIDED FURTHER, that to the extent that the laws of the
State of Texas establish a meaning for "hazardous substance ", "release ", "solid waste ", or "disposal ",
which is broader than that specified in either CERCLA or RCRA, such broader meaning shall apply.
9.04. Licensee shall indemnify, defend and hold Licensor and Railroad harmless against all
cost of environmental clean up to the Property resulting from Licensee's use of the Property under
this License.
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. The Permitted Improvement 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. In the event the Licensee fails to maintain the Property as required, upon discovery,
Licensor 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, Licensor shall have the right, but
not the obligation to remedy such failure at the sole cost and expense of Licensee. In the event Licensor
City of Wylie 3 of 6 Mile Post 580.92
One 8 -inch Water Line
exercises its right to remedy Licensee's failure, Licensee agrees to immediately pay to Licensor all costs
incurred by Licensor upon demand.
12. Future Use by Licensor.
12.01. This License is made expressly subject and subordinate to the right of Licensor to use the
Property for any purpose whatsoever.
12.02. In the event that Licensor shall, at any time subsequent to the date of this License, at its
sole discretion, determine that the relocation of the Permitted Improvement shall be necessary or
convenient for Licensor 's use of the Property, Licensee shall, at its sole cost and expense relocate said
Permitted Improvement so as not to interfere with Licensor 's or Licensor 's assigns use of the Property.
In this regard, Licensor may, but is not obligated to, designate other property for the relocation of the
Permitted Improvement. Licensor shall give a minimum of thirty (30) days written notice of any required
relocation. Licensee shall promptly commence to make the required changes thereafter and shall
diligently complete the relocation as required within a reasonable period.
13. Relocation Benefits. The parties hereto agree that the construction of the Permitted Improvement on
the Property shall be subsequent to the acquisition of the Property by Licensor and that Licensee does
hereby waive any and all claim that it may have under the Act, or otherwise, regarding the payment of
any and all relocation benefits and that all costs associated with any relocation of such Improvements
shall be borne by Licensee.
14. 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 Improvement; (b) in the event
Licensee shall relocate the Permitted Improvement from the Property; (c) upon termination in accordance
with paragraph 19 of this License, whichever event first occurs.
15. Compliance With Laws and Regulations. Licensee agrees to abide by and be governed by all
laws, ordinances and regulations of any and all governmental entities having jurisdiction over the
Licensee and by railroad regulations, policies and operating procedures established by the
Railroad, or other applicable railroad regulating bodies, and Licensee agrees to indemnify and hold
Licensor harmless from any failure to so abide and all actions resulting therefrom.
16. Indemnification. Licensee shall at all times protect, indemnify, defend and hold Licensor and
the Railroad harmless against and from any and all loss, cost, damage or expense, including
attorney's fees and including, without limitation, claims of negligence, arising out of this License
(including by example and not limitation, Licensee's acts or failure to act hereunder), Licensee's
use in any way of the Property, or arising from any accident or other occurrence on or about the
Property, resulting in personal injury, death, or property damage, except to the extent fault is
judicially determined against Licensor.
17. Termination of License. At such time as this License may be terminated or canceled for any reason
whatsoever, Licensee, upon request by Licensor, shall remove all improvements and appurtenances
owned by it, situated in, on, under or attached to the Property, regardless of whether or not such
improvements were placed thereon by Licensee, and shall restore the Property to a condition satisfactory
to Licensor, at Licensee's sole expense.
18. Assignment. Licensee shall not assign or transfer its rights under this License in whole or in part, or
permit any other person or entity to use the License hereby granted without the prior written consent of
Licensor which Licensor is under no obligation to grant.
City of Wylie 4 of 6 Mile Post 580.92
One 8 -inch Water Line
19. Methods of Termination. This License may be terminated in either of the following ways:
19.01. By written agreement of both parties; or
19.02. By either party giving the other party thirty (30) days written notice.
20. Miscellaneous.
20.01. Notice. When notice is permitted or required by this License, 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 OR
1401 Pacific Avenue P. O. Box 660163
Dallas, Texas 75202 -7210 Dallas, Texas 75266 -7210
ATTN: Railroad Management
LICENSEE: City of Wylie
300 Country Club Road, Building 100
Wylie, Texas 75098
ATTN: Public Services Director
Either party may from time to time designate another and different address for receipt of notice
by giving written notice of such change of address.
20.02. Governing Law. This License shall be construed under and in accordance with the laws
of the State of Texas.
20.03. Entirety and Amendments. This License 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.
20.04. Parties Bound. This License shall be binding upon and inure to the benefit of the
executing parties and their respective heirs, personal representatives, successors and assigns.
20.05. Number and Gender. Words of any gender used in this License 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.
20.06. No Joint Enterprise. The parties do not intend that this License be construed as finding
that the parties have formed a joint enterprise. The purposes for which each party has entered into this
License are separate and distinct. It is not the intent of any of the parties that a joint enterprise
relationship is being entered into and the parties hereto specifically disclaim such relationship. This
License does not constitute a joint enterprise, as there are no common pecuniary interests, no common
purpose and no equal right of control among the parties hereto.
20.07. New Agreement. It is mutually agreed and understood that this License cancels and
supersedes, effective October 1, 2014, License No. 920904, dated September 9, 1992, or any previous
agreements granted by Licensor or Licensor's predecessor railroads in regard to this water line.
City of Wylie 5 of 6 Mile Post 580.92
One 8 -inch Water Line
20.08. Counterparts. The parties may execute this License in multiple originals and when taken
together, those originals constitute a whole.
IN WITNESS WHEREOF, the parties have executed this License in multiple originals on the
date signed by the last signing party.
LICENSOR: DALLAS AREA RAPID TRANSIT
IM
TIMOTHY H. MCKAY, P.E.
Executive Vice President
Growth/Regional Development
Date:
LICENSEE: CITY OF
BY:
Printed Name:
Title:
Date:
City of Wylie 6 of 6 Mile Post 580.92
One 8 -inch Water Line
APPLICANT—TO FILL -IN AL- ZUFORMATION.LINES OR WA• IF 1T.DOO NOT APPL'l.
• lM , NEW'_ INSTALLATION Cl RECONSTRUC110N
PIPE. LINB: CARRYING d, 171, NNMBLE OR HAZARDOUS SUBSTANCES
Dallas Area Rapid Transit (:SEE RAILROAD STANDARD C.S. 1742 )
with _ i ON_; -nj 3amu SUBSTANCfs
The City of Wylie ( SEE RAILROAD STANDARD C_S. 1741 )
Exhibit °A -1" .2a404.5� o° CULVERT
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APPLICANTInvestors Netw ,..nternation
ADDRESS --25 0_rr�� 9ni.G _Lane,:..5ait9 J1? • - -- • -- - -- — .. --- - -- --
CITY Dallas �- - _ -- ____ —' STATE ..$Afi _...._._.MZIP 15-2IQ ---- ---
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ENGINEERING PLANS .' CALCULATIONS" SPECIFICATIONS. A140 SOILS REPORT.
Crossing is at Commerce Street or go
DISTANCE TO PERMANENT RAILWAY- sTRUGTURE .I�_fi,II0a1.E.�long the R.R. to F.M. 341
ANGLE OF CROSSING WITH TRACKS � _- .------- • --- -- -- -• crossing in Wylie, T%
SOIL CLASSIFICATION _S_111 (CH)
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SPECIFICATION AND GRADE . . . . . . . Sch -An-- 31,_000 PSI
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.MINIMUM YIELD STRENGTH 7000_ 35�OOD PSI
TYPE OF JOINT. . . • .&I+17„ pigot_ .
COATING MATERIAL'
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LOCATION OF BORING OR JACKING PIT• FROM CENTERLINE OF TRACK .5.U..=_buth_.atdes._
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DISTANCE OF CASING PERPENOICULAR FROM CENTERLINE OF TRACK R 55'
YENTS: NUMBER _Q_ SIZE --= DISTANCE OUT FROM CENTERLINE L ___- R -
DISTANCE TO SHUT-OFF YALYES ON EACH SIDE OF R /Ws . . . L 17-D ._ R 20
BURY: BASE OF RAIL TO TOP OF CASING' . . . . . . . . . 5.01 -
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TELECOM ATABO01 283 -4237 TO VER4FY LOCATION AND PRIOR TO 01138INEL
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