HomeMy WebLinkAboutContract 39255NRACT NO Y
REIMBURSEMENT AGREEMENT
This Agreement is made and entered into ,as of the % 1 I. s log (the
'Effective Date" ), by and between UNION PACIFIC RAILROAD COMPANY, a Delaware
corporation ("UPRR") and the CITY OF FORT WORTH, TEXAS, a Texas home -rule
municipality ("C"). The UPRR and the City may be referred to herein individually as a
"Party" or collectively as the "Parties".
RECITALS:
A. The UPRR, the City, the North Texas Tollway Authority ("NTTA") and the Texas
Department of Transportation ("TxDOT") (City, NTTA and TxDOT are sometimes
referred to as the "Project Partners") entered into that certain Southwest Parkway/SH 121
Union Pacific Railroad/Project Partners Formal Agreement executed as of January 8,
2009 and subsequently amended (the "Formal Agreement"), pursuant to which the UPRR
and the Project Partners established certain agreements and understandings with respect
to the design, construction, operation and maintenance of the Southwest Parkway/SH 121
("SWP/SH 121 ").
B. Part of the development of SWP/SH 121 involves (i) the design and construction of the
two new SWP/SH 121 Bridges and the new Hulen Street Bridge, (ii) the design and
construction of certain retaining walls and related drainage systems at various locations
along the boundaries separating the North Mainline Bypass Tracks and other portions of
the UPRR's Davidson Yard from the right of way of SWP/SH 121 and other properties of
the Project Partners, and (iii) the demolition of the now -existing bridge carrying Hulen
Street, all of which shall take place upon, over, across or adjacent to the Davidson Yard,
which is owned and operated by the UPRR (the "Crossing Project").
C. In connection with the Crossing Project, (i) the UPRR will design and construct the
4+4+4 Plan, including the design and construction of the North Mainline Bypass Tracks,
(ii) the UPRR will design and construct certain retaining walls and related drainage
systems at various locations along the boundaries separating the North Mainline Bypass
Tracks and other portions of the UPRR's Davidson Yard from the right of way of
SWP/SH 121 and other properties of the Project Partners, and (iii) the UPRR has elected
to design and construct the Trinity River Railroad Bridge, the easterly extension of
trackage and certain other related improvements (collectively, the "Railroad Project").
D. The City has determined a public need for a Trinity River East Bank Maintenance Road
for access to the flood protection systems in the river corridor as well as public access to
the Trinity River open spaces system.
E. For ease of administration and economies of scale, the City requests that the UPRR
procure the design and construction of the Trinity River East Bank Maintenance Road as
part of UPRR's Railroad Project and accept reimbursement from the City as described in
this Agreement.
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual covenants and conditions set forth
herein, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties mutually agree, as follows:
1. UPRR Responsibilities.
(a) The UPRR will procure the design of the Trinity River East Bank
Maintenance Road under its design agreement with Hanson Wilson, Inc. for the Railroad Project.
The estimated cost of the design of the Trinity River East Bank Maintenance Road is less than
$285000.00.
(b) The UPRR will cause the construction of the Trinity River East Bank
Maintenance Road under its construction agreement with Polivka International Company, Inc.
For the Railroad Project. The estimated cost of the construction of the Trinity River East Bank
Maintenance Road is less than $70,000,00.
2. City Responsibilities.
(a) The City shall reimburse the UPRR for the actual final cost of the design
of the Trinity River East Bank Maintenance Road within ten (10) business days of receipt of an
invoice and the sealed plans and related documents.
(b) The City shall reimburse the UPRR for the actual final cost of the
construction of the Trinity River East Bank Maintenance Road within ten (10) business days of
receipt of a substantiated invoice.
3. Miscellaneous.
(a) Entire Agreement. This Agreement is the entire agreement between the
Parties concerning the design and construction of the Trinity River USE Bank Maintenance
Road. This Agreement is not intended to modify or alter the Formal Agreement and is to be
considered separate and apart from the Formal Agreement. If there is any conflict between this
Agreement and the Formal Agreement, the Formal Agreement shall control.
(b) Representations and Warranties. Each Party hereby represents and
warrants to the other Party that (i) such Party has full power and authority to execute and deliver
this Agreement and to effectuate the terms hereof without the approval or consent of any other
person that has not been obtained; and (ii) this Agreement constitutes the legal, valid and binding
obligation and agreement of such Party, enforceable against such Party in accordance with its
terms. Without limiting the foregoing, the signatories to this Agreement warrant that each has the
authority to enter into this Agreement on behalf of the Party represented.
(c) Venue and Jurisdiction. If any action, whether real or asserted, at law or
in equity, arises on the basis of any provision of this Agreement, venue for such action shall lie
in state courts located in Tarrant County, Texas or the United States District Court for the
Northern District of Texas — Fort Worth Division, This Agreement shall -be construed in
accordance with the laws of the State of Texas.
(d) Transfer or Assignment. No Party shall assign this Agreement or any of
the rights or responsibilities hereunder without prior written approval of the other Party.
(e) Contract Construction. The Parties acknowledge that each Party and, if it
so chooses, its counsel have reviewed and revised this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the drafting party must
not be employed in the interpretation of this Agreement or any amendments or exhibits hereto.
(� No Third Party Beneficiaries. This Agreement shall inure only to the
benefit of the Parties hereto and third persons not privy hereto shall not, in any form or manner,
be considered a third party beneficiary of this Agreement. Each Party hereto shall be solely
responsible for the fulfillment of its own contracts or commitments.
(g) Amendment. No amendment of this Agreement shall be effective unless
agreed to in writing by all Parties.
(h) Authority. Each Party represents that it has full authority to enter into this
Agreement, grant the rights and benefits herein described, and satisfy the obligations hereunder,
without violating the rights of any third parties or breaching any agreements with third parties.
(i) Severability. The provisions of this Agreement are severable, and if any
word, phrase, clause, sentence, paragraph, section or other part of this Agreement or the
application thereof to any person or circumstance shall ever be held by any court of competent
jurisdiction to be invalid or unconstitutional for any reason, the remainder of this Agreement and
the application of such word, phrase, clause, sentence, paragraph, section, or other part of this
Agreement to other persons or circumstances shall not be affected thereby and this Agreement
shall be construed as if such invalid or unconstitutional portion had never been contained therein.
(j) Headings. The headings contained herein are for the convenience in
reference and are not intended to define or limit the scope of any provision of this Agreement.
(k) Execution. This Agreement may be executed in multiple counterparts,
each of which for all purposes is deemed an original, and all of which constitute collectively one
agreement.
(Remainder of Page Intentionally Left Blank)
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the
Effective Date first herein written.
UNION PACIFIC RAILROAD COMPANY,
a Delaware corporation
Namd✓.' LewrPnGP E Wzorek
Title: Assistant Vice President = Law
Approved as to Form and Legality:
By: , t/it
Name: S / �. a .J
Title: Sew.: eI d Q—,a-e J A+k i
CITY OF FORT WORTH,
Fernando Costa
Assistant City Manager
Recommended By:
City
P.E., Program Manager
is Office
Approved as to Form and Legality:
ATTEST:
City Secretary �1
Authorization: C-o1
Date:
OFFICI�#L RECORQ
CITY SECRETARY
FT. WORTH, TX
Official site of the City of Fort Worth, Texas
FORT WOUH
COUNCIL ACTION: Approved on 9/22/2009
REFERENCE 02SWP AMEND5 UPRR
DATE: 9/22/2009 NO.: C-23781 LOG NAME. FORMAL AGREEMENT
CODE: C TYPE: CONSENT PUBLIC NO
HEARING:
SUBJECT: Authorize Amendment No. 5 to City Secretary Contract No. 38136, a Formal Agreement
Associated with the Southwest Parkway Project, Between the North Texas Tollway
Authority, the Texas Department of Transportation and the Union Pacific Railroad
Company; Authorize Related Easements, Encroachment, Reimbursement, Community
Facility, Construction Coordination, Access and Maintenance, Temporary Permit,
Highway Overpass Easement and Right of Entry Agreements; Authorize Amendment No.
1 to a Drainage and Waterway Agreement and Authorize Deeds
RECOMMENDATION:
It is recommended that the City Council:
1. Authorize the City Manager to execute the following documents associated with the Southwest Parkway
project:
a. Encroachment Agreement with Union Pacific Railroad Company and waive administrative fees
related thereto;
b. Community Facilities Agreement with Union Pacific Railroad Company and waive administrative
(not materials testing or inspection) fees related thereto;
c. Easements from the Union Pacific Railroad Company to the City of Fort Worth for water and sewer
pipelines at no cost with the Union Pacific Railroad Company responsible for cost of future relocations it
requests, if any;
d. Reimbursement Agreement with Union Pacific Railroad Company in an amount up to $100,000.00
for the design and construction costs related to the Trinity River East Bank Maintenance Road;
e. Construction Coordination Agreement setting forth Union Pacific Railroad Company, the North
Texas Tollway Authority and City of Fort Worth construction coordination procedures;
f. Temporary Permit Agreements for construction activities of Union Pacific Railroad Company, the
City of Fort Worth and the North Texas Tollway Authority on property not owned by the constructing party;
g. Right -of -Entry Agreements for construction activities by Union Pacific Railroad Company on
property the City of Fort Worth has the right to possess but has not yet obtained fee ownership;
h. Highway Overpass Easement Agreement for the new Hulen Street Bridge to be constructed on and
over Union Pacific Railroad Company property;
i. Access and Maintenance Agreement for access and maintenance for the Hulen Street Bridge and
water and sewer utilities constructed by the City of Fort Worth on Union Pacific Railroad Company property;
j. Amendment No. 1 to a Drainage and Waterway Agreement with Union Pacific Railroad Company to
provide that Union Pacific Railroad Company will make necessary modifications to City drainage facilities at
the Union Pacific Railroad Company's sole cost and expense and that City of Fort Worth will maintain said
facilities at City 's sole cost and expense;
k. Amendment No. 5 to City Secretary Contract No. 38136, a Formal Agreement with the North Texas
Tollway Authority, Union Pacific Railroad Company and the Texas Department of Transportation to, among
other things, establish funding sources, remove the parties' termination rights and authorize mutually
agreeable property right conveyances;
2. Authorize conveyance in accordance with Amendment No. 5, of:
a. Portions of parcels 51, 61 and 65 shown as 09-10 PT6 and PT8 (shown on the attached) to the
Texas Department of Transportation, provided that the City of Fort Worth obtains fee ownership of the
parcels;
b. Parcels 51, Save and Except 09-10 PT6, provided the City obtains fee ownership of parcel 51, 53-
PT1, 53-PT21 55, 56-PT1, 56-PT2, 59, 60, 61, 62-PT1, 62-PT21 65, Save and Except 09-10 PT8, provided
the City obtains fee ownership of parcel 65 and 66 - 89, shown on the attached, to the North Texas Tollway
Authority; and
3. Direct staff to reserve $500,000.00 from Bond Funds Transfer SWP00015 for environmental remediation
on City -owned property that will be encumbered in a future council action.
DISCUSSION:
The 2004 Capital Improvement Program included funds for the Southwest Parkway 121T project.
Subsequent funding was included in the 2007 Critical Capital Program.
On January 6, 2009, (M&C C-23268) City Council approved a Formal Agreement with the North Texas
Tollway Authority (NTTA), the Texas Department of Transportation (TXDOT) and Union Pacific Railroad
Company (UPRR) to facilitate construction and operation of the Southwest Parkway across the Davidson
Rail Yard (City Secretary Contract No. 38136) (City, NTTA and TxDOT are sometimes referred to as the
"Project Partners"). Subsequently, the Formal Agreement was amended four times to extend certain
termination dates associated with conditions precedent. During that time, staff has been working to satisfy
all conditions and negotiate all related agreements, encroachments, easements, permits and property
interests necessary for the execution of the final agreement between the Project Partners and UPRR.
Encroachment Agreement
Under the Formal Agreement, UPRR is required to obtain necessary easements or encroachments onto
and over City -owned property for construction, operation and maintenance of the related UPRR rail
improvements. Staff has reviewed and approved the construction plans submitted by UPRR for the crossing
of four City streets (Rogers Road, University Drive, Old University Drive and Forest Park Boulevard) and
the proposed encroachments have been reviewed and approved by the committee. City Council approval is
required to grant encroachments into City owned right-of-way and waiver of the related $600.00
administrative fee.
Community Facilities Agreement
The Community Facilities Agreement (CFA) covers infrastructure work in City right-of-way that UPRR is
required to perform in connection with its above described construction activities. There is no City
participation in the CFA, but Council authorization is requested for the waiver of administrative fees
associated with the CFA. The waiver does not include the materials testing and inspection fees, only the
$500.00 staff administration fee.
Water and Sanitary Sewer Easements
Construction of the project requires the Water Department's relocation, at City cost and expense, of large
water and sanitary sewer lines. Typically, UPRR only grants licenses for utility lines and those licenses
require relocation at City expense. However, in this case permanent easements have been negotiated for
lines being relocated. The easements will be provided at no cost to the City and any future relocation
requested by UPRR will be at UPRR's sole cost and expense.
Trinity River East Bank Maintenance Road
The City Council appointed a 15 member Citizen's Advisory Group to develop a Corridor Master Plan for
the Southwest Parkway. In developing the Corridor Master Plan, the Citizens Advisory Group identified the
need to access the east bank of the Trinity River for maintenance and recreation. Staff has negotiated for
the UPRR to cause the design and construction of a 10 foot wide maintenance road across the entire
UPRR rail corridor as part of UPRR's project design and construction agreements. Under the proposed
Reimbursement Agreement, the City will reimburse UPRR those design and construction costs in an
amount up to $100,000,00.
Amendment No. 5
Due to the complex nature of the Formal Agreement, the May 19, 2009, deadline was extended four times
by Amendment Nos. 1 through 4 to September 23, 2009. The Formal Agreement contains termination
provisions to be satisfied by a date certain. The termination events and current status are listed below:
1. The Hump Lead is not successfully tested:
Current Status: The Hump Lead has been successfully tested and accepted by UPRR.
2. The plans and coexistences are not approved:
Current Status: The parties are satisfied that the coexistence issues have been resolved.
3. Sufficient funds have not been officially appropriated and budgeted or are otherwise unavailable through
other legal and dependable means to satisfy a project partner's obligations:
Current Status: NTTA is accepting the approximated $95 million obligation associated with the Formal
Agreement. TxDOT and NTTA will execute the necessary funding agreements including a $4918707000 toll
equity grant which will defray roughly half of NTTA's financial commitment. The City will have no funding
obligations under this item.
4. The necessary property rights or licenses have not been delivered:
Current Status: The necessary property rights Al licenses have been identified to the satisfaction
of the parties. The actual conveyances will be completed at a future date.
5. UPRR determines it will not obtain the required Permits as defined by the Formal Agreement under
reasonably acceptable terms and conditions proximately related to the work in question prior to January 1,
2010:
Current Status: The Permits as defined by the Formal Agreement and Attachment 10 thereto will be
revised in Amendment No. 5 to remove Fort Worth and Western Railroad's crossing approval. With that
deletion, UPRR is satisfied it will obtain the Permits prior to January 1, 2010.
6. The Project Partners reasonably determine UPRR is unlikely to obtain its required permits prior to
January 1, 2010:
Current Status: The Project Partners are satisfied that UPRR will obtain the Permits as revised by
Amendment No. 5 prior to January 1, 2010.
7. A party reasonably determines on the basis of the environmental due diligence investigation conducted
pursuant to the Formal Agreement that the results of said investigations are unsatisfactory with respect to
property that party is to receive or convey:
Current Status: All Parties are satisfied as to their respective obligations in regards to environmental
due diligence. The City will be required to remediate a portion of Parcel 51 (Howell Instruments) at its sole
cost pursuant to Amendment No. 5. This portion of property will be conveyed to TxDOT and a then there
will be a separate conveyance from TxDOT to the UPRR to allow for rail use. Remediation costs are
estimated to not exceed $500,000.00. Environmental Management is presently advertising invitations to bid
for performance of the work needed for this effort.
City Council approval of the above recommendations will ensure the Project Partners rights to complete
construction of the Southwest Parkway and the new Hulen Street Bridge over the Davidson Yard.
The project is located in COUNCIL DISTRICTS 3, 6 and 9.
FISCAL INFORMATION/CERTIFICATION:
The Financial Management Services Director certifies that funds are available in the current capital budget,
as appropriated, of the 2007 Critical Capital Projects Fund.
TO Fund/Account/Centers
Submitted for City Manager's Office bv:
Originating Department Head:
Additional Information Contact:
ATTACHMENTS
PROPERTY MAPS.pdf
FROM Fund/Account/Centers
C295 539120 303210000570 $500,000.00
C295 539120 303210000580 $100,000.00
Fernando Costa (6122)
Randle Harwood (6101)
Bryan Beck (7909)