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Home My WebLink AboutR-2373-2-05RESOLUTION NO.2373-2-OS(R) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ALLEN, COLLIN COUNTY, TEXAS, APPROVING THE TERMS AND CONDITIONS OF AN INTERLOCAL AGREEMENT BY AND BETWEEN DALLAS AREA RAPID TRANSIT AND THE CITY OF ALLEN, TEXAS, CONCERNING THE REPLACEMENT OF THE DART RAILROAD CROSSINGS AT BETHANY DRIVE, MCDERMOTT DRIVE AND EXCHANGE PARKWAY; AUTHORIZING ITS EXECUTION BY THE CITY MANAGER; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Allen, Texas, has been presented a proposed Interlocal Agreement by and between the Dallas Area Rapid Transit (DART), and the City of Allen, Texas, for the replacement of the DART railroad crossings at Bethany Drive, McDermott Drive and Exchange Parkway; and, WHEREAS, DART has granted no trackage rights to any milroad for the movement of freight through the City of Allen; and, WHEREAS, the City is willing to accept the risk involved to pay for the replacement of the rail should the Surface Transportation Board require DART to replace the mil within the City's streets in order to again make the rail line serviceable for freight mil customers; and, WHEREAS, upon full review and consideration of the Agreement, and all matters related thereto, the City ' Council is of the opinion and finds that the terms and conditions thereof should be approved, and that the City Manager should be authorized to execute the Agreement on behalf of the City of Allen, Tens. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ALLEN, COLLIN COUNTY, TEXAS, THAT: SECTION 1. The Agreement attached hereto having been reviewed by the City Council of the City of Allen, Texas, and found to be acceptable and in the best interest of the City and its citizens, be, and the same is hereby, in all things approved, and the City Manager or his designee is hereby authorized to execute the Agreement on behalf of the City of Allen, Texas. SECTION 2. This Resolution and the Interlocal Agreement are hereby approved by the affirmative vote of the majority of the members of the City Council of the City of Allen, Texas, at a regularly scheduled meeting of the City Council. SECTION 3. This Resolution shall become effective immediately from and after its passage. DULY PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF ALLEN, COLLIN COUNTY, TEXAS, ON THIS THE STM DAY OF FEBRUARY 2005. APPROVED: Steph l� ' ATTEST: � Shelley B. Geoio, TRMC, CITY MCRETARY THE STATE OF TEXAS COUNTY OF DALLAS KNOW ALL MEN BY THESE PRESENTS: INTERLOCAL AGREEMENT This Agreement (the "Agreement") made and entered by and between DALLAS AREA RAPE) TRANSIT ("DART"), a regional transportation authority organized and existing pursuant to Chapter 452, Texas Transportation Code, and the CITY OF ALLEN (the "City"), a Texas municipal corporation. WITNESSETH: WHEREAS, DART owns and manages certain railroad right-of-way, the Sherman Subdivision Line (the "DART Property") within the corporate limits of the City of Allen; and WHEREAS, DART bas granted no trackage rights to any railroad for the movement of freight through the City of Allen; and WHEREAS, it is DART's intention to officially apply with the Surface Transportation Board for abandonment of freight rail operations on the Sherman Subdivision Line through the City of Allen, specifically between Plano Parkway in Plano and Stacy Road in Allen; and WHEREAS, within the City are three major bighway-rail grade crossings of the Sherman Subdivision Line, which are located at Bethany Drive, DOT No. 763397U, McDermott Drive, DOT No. 912034N, and Exchange Parkway, DOT No. 748323P, and; WHEREAS, the City of Allen proposes to remove the rail, construct and reconstruct a new highway -rail grade crossing surface, and hereafter maintain each of the three major crossings, Bethany Drive, McDermott Drive, and Exchange Parkway, and; WHEREAS, the abandonment process has not yet been completed and DART continues to be responsible for its common carrier obligations to the Surface Transportation Board, and; WHEREAS, the City is willing to not only accept the risk involved, but to pay for the replacement of the rail should the Surface Transportation Board require DART to replace the mil within the City's streets in order to again make the mil line serviceable for freight rail customers, and; WHEREAS, the City will maintain all the highway -rail grade crossings of the Sherman Subdivision Line within the City at the City's sole cost and expense. NOW, THEREFORE, in consideration of the premises and other good and valuable consideration in hand received by each of the parties, the sufficiency of which is hereby acknowledged, DART and the City do hereby agree as follows: Cary of Allen ILA ] Jan 2005 Highway/Railroad Crossings DART Obligations. 1.01 DART will allow the City to remove the rail, construct and reconstruct a new highway -rail grade crossing surface, and hereafter maintain each of the three major crossings located at Bethany Drive, McDermott Drive, and Exchange Parkway. 1.02 DART shall file with the Surface Transportation Board for abandonment of freight mil operations on the Sherman Subdivision Line through the City of Allen, specifically between Plano Parkway in Plano and Stacy Road in Allen. 1.03 DART will retain full legal rights of ownership of the Sherman Subdivision mil corridor right-of-way as though the rails remained in place and intact and will preserve the corridor for future transit use. 2. City Obligations. 2.01 The City shall remove the rail from the three major highway -rail grade crossings, located at Bethany Drive, DOT No. 763397U, McDermott Drive, DOT No. 912034N, and Exchange Parkway, DOT No. 748323P, construct a new highway -rail grade crossing surface at each, and thereafter maintain the crossing surface of each crossing. 2.02 The City shall maintain all the public highway -rail grade crossings of the Sherman Subdivision Line within the City at the City's sole cost and expense. 2.03 The City accepts the risk of the replacement of the mil should the Surface Transportation Board require DART to replace the rail within the City's streets crossing the Sherman Subdivision Line in order to again make the rail line serviceable for freight rail customers. 2.04 The City accepts the responsibility for the replacement of the rail and full reconstruction of the crossings with pre -cast concrete crossing panels in accordance with railroad industry standards should it be required. 3. Notices. Any notice required or permitted to be given by either party to the other shall be in writing and shall be deemed to have been duly given when delivered personally or three (3) days following the deposit of such notice in the United States Mail, sent by certified mail, return receipt requested, in a postage paid envelope addressed to the party at the address set out below: DART: Dallas Area Rapid Transit P.O. Box 660163 Dallas, Texas 75266-7210 Attn: Vice President, Commuter Rail & Railroad Management City of Allen IIA 2 Jan 2005 Highway/Railroad Crossings CITY: City of Allen 305 Century Parkway Allen, Texas 75013-8042 Atm: Engineering Department With copy to: Peter G. Smith Nichols, Jackson, Dillard, Hager & Smith, L.L.P. 1800 Lincoln Plaza 500 N. Akard Dallas, Texas 75201 4. Indemnity. To the extent permitted by Texas law, the City agrees to indemnify and defend DART, its directors, officers and employees, against any and all negligence claims, demands, causes of action, costs and liabilities, including reasonable attorney fees and court costs, arising out of, or resulting from the City's negligent acts or omissions pertaining to its performance under this Agreement. To the extent permitted by Texas law, DART agrees to indemnify and defend the City, its council, officers and employees, against any and all negligence claims, demands, causes of action, costs and liabilities, including reasonable attorney fees and court costs, arising out of, or resulting from DART's negligent acts or omissions pertaining to its performance under this Agreement. In the event of joint and concurrent negligence of both DART and the City, responsibility and indemnity, if any, shall be apportioned comparatively in accordance with the laws of the State of Texas, without, however, waiving any governmental immunity available to either party under Texas Law and without waiving any defense of the parties under Texas Law. The provisions of this paragraph are solely for the benefit of the parties hereto and are not intended to create or grant any rights, contractual or otherwise to any third person or entity. 5. Entirety and Amendments. This Agreement embodies the entire agreement between the parties and supersedes all prior agreements and understandings, if any relating to the matters addressed herein, and may be amended or supplemented only by a written instrument executed by the party against whom enforcement is sought. 6. Parties Bound. This Agreement shall be binding upon and inure to the benefit of the executing parties and their respective successors and approved assigns. 7. Number and Gender. Words of any gender used in this Agreement shall be held and construed to include any other gender; and words in the singular shall include the plural and vice versa, unless the text clearly requires otherwise. 8. Governing Law; Venue. This Agreement shall be construed under and in accordance with the laws of the State of Texas. Venue for any legal action arising by virtue of this Agreement shall lie in Dallas County, Texas. 9. Signature Authority. Each of the individuals signing this Agreement on behalf of the parties warrants that he is duly and properly authorized to execute this Agreement on behalf of his respective entity. City of All. ILA 3 Jan 2005 Highway/Railroad Crowings 10. Prior Agreements. The responsibility for maintaining a smooth crossing at the Exchange Parkway highway -rail grade crossing of the Sherman Subdivision Line within Allen was previously addressed in an agreement entitled "Texas Department of Transportation Railroad Force Account Agreement' dated April 25, 1996, between Southern Pacific Transportation Company (the "Railroad'), The State of Texas and the City of Allen, (the "TxDOT Agreement"), wherein the Railroad agreed to assume responsibility for maintaining smooth crossings to the satisfaction of the City. It is the intention of the City, and the City hereby agrees, to assume all of the Railroad's responsibilities under the TxDOT Agreement for maintaining the Exchange Parkway highway -mil grade crossing of the Sherman Subdivision Line within the City of Allen, and to release the Railroad from all such responsibility. IN WITNESS WHEREOF, the parties have executed this Agreement in duplicate originals this '79 th day o h4a 2005. DALLAS AREA RAPID TRANSIT Ey: Gary C. as Preside xecutive Director CITY OF ALLEN Peter H. Vargas City Manager APPROVED AS TO FORM: ��Peter G. Smith City Attorney City of Allen ILA 4 Jan 2005 Highway/Railmed Crossings