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Home My WebLink AboutContract 40233-A2 (2)CIT1f SECRETARY CC)NTRACT NO.:0 L, SECOND AMENDMENT TO BNSF RELOCATION AGREEMENT This SECON® AMEN®MENT TO BNSF RELOCATION AGREEMENT (this 'Amendment") is between the City of Fort Worth, Texas, (the "City") and the BNSF Railway Company ("BNSF") to be effective P, V , 2011. The City and BNSF are herein referred to collectively as the "Parties." WHEREAS, the Parties entered into that certain "BNSF RELOCATION AGREEMENT" effective May 17, 2010 (the "Agreement"); WHEREAS, by mutual agreement of the Parties, this Agreement was amended on June 1, 2011 to extend the period during which to agree upon the BNSF final Relocation Plans and the City Final Relocation Plans; WHEREAS, all terms used in this Amendment with initial capital letters shall have the meanings given to such terms in the Agreement; WHEREAS, the Parties desire to extend the period during which the Conditions Precedent will be satisfied; and WHEREAS, the Parties have awarded Relocation Work Contracts and desire to extend the period during which the remaining Relocation Work Contracts will be awarded. NOW THEREFORE, in consideration of the mutual obligations of and benefits to the Parties set forth in this Amendment, the Parties agree as follows: 1. Section 6, "RELOCATION WORK CONTRACTS," of the Agreement is amended, in its entirety, to read as follows: "6. RELOCATION WORK CONTRACTS. The BNSF Relocation Work will be performed under Relocation Worl< Contracts reasonably approved by the Project Manager and Airport Manager. Relocation Work Contracts shall be awarded or otherwise made effective as soon as possible after satisfaction of all Conditions Precedent, and provided all Conditions Precedent have been satisfied on or before March 15, 2012, all Relocation Work Contracts shall be awarded no later than April 16, 2012. If all Relocation Work Contracts are not awarded or made effective by April 16, 2012, and if sufficient Public Funds to pay the BNSF Relocation Cost and City Relocation Cost are no longer available, then the City may terminate this Agreement upon Notice to BNSF without regard to force majeure and without opportunity to cure; whereupon, neither Party shall have any further duties, obligations rights, or remedies under this Agreement (except for the City's obligation to reimburse BNSF for the costs of preparing the BNSF Final Relocation Plans and other BNSF Relocation Costs as set out in Section 5 above). All Relocation Work Contracts shall require the Contractor to: Page 1 Second Amendment to BNSF Relocation Agreement RECORD CITY SECRETARY (a) complete the work covered by the contract in accordance with specific, detailed performance milestones consistent with the final schedules included in the BNSF Final Relocation Plans (subject to force majeure); (b) give the Project Manager and Airport Manager immediate Notice of any fact or circumstance (including any claim by the Contractor of an event of force majeure) that would result in the Contractor's failure or inability to meet any performance milestone (including a detailed description of such facts or circumstances and a plan of action to avoid or mitigate the effects of any delay); (c) give the Project Manager and Airport Manager immediate Notice of any fact or circumstance which, with the giving of notice or passage of time, could, in the judgment of the Contractor, constitute an event of default under the Relocation Work Contract; (d) give the Project Manager and Airport Manager immediate Notice of any notice or communication given or received by the Contractor under the Relocation Work Contract alleging an event of default by either party under the contract (in which case the Project Manager and Airport Manager shall have access to all non -confidential and non - privileged information within the Contractor's possession or control regarding the alleged default and the right to participate in the resolution of the alleged default), and (e) where practical, separately identify the cost of work performed in Denton County from work performed in Tarrant County. A copy of each Relocation Work Contract, including amendments and Change Orders thereto, shall be provided to the Project Manager and Airport Manager within 10 days after each contract, amendment, or Change Order is fully executed or otherwise made effective. Notwithstanding the foregoing, BNSF has the right, in its sole discretion, to decide whether the BNSF Relocation Work or any part thereof (including, but not limited to, engineering, construction management, grading and demolition) will be performed by third -party contractors or by BNSF employees working under applicable collective bargaining agreements. Any work performed by BNSF employees shall be deemed to satisfy the foregoing contract award requirement and all other requirements herein regarding Relocation Work Contracts. BNSF shall supply the documentation required for Draw Requests in connection with such work." 2. Section 8.b. of the Agreement is amended in its entirety to read as follows: "b. If the Conditions Precedent have not been satisfied or, with regard to items (3) and (4), "substantially" satisfied, on or before March 15, 2012, BNSF shall give Notice of such failure to the City, and the City shall have 15 days within which to satisfy or substantially satisfy, as the case may be, the conditions. If the City fails to satisfy or substantially satisfy, as the case may be, the Conditions Precedent within such 15-day period, BNSF may suspend performance of this Agreement. "Substantial" satisfaction means (i) with respect to the Replacement Property as set out in condition (3), that BNSF reasonably determines that the parcels of Replacement Property conveyed to BNSF or for which the City has provided an RoE or Writ will allow BNSF to begin the BNSF Relocation Work and pursue completion in phases with minimum impact on overall schedule, and (ii) with respect to the relocation of John Day Road/Barnwood Drive and Keller Haslet Road as set out in condition (4), that BNSF reasonably Page 2 Second Amendment to BNSF Relocation Agreement 1090\010\1918'7.4 determines that notwithstanding minor delays in the award of construction contracts, BNSF will nevertheless be able to begin the BNSF Relocation Work and pursue completion in phases with minimum impact on overall schedule." 3. Section 8.f of the Agreement is amended, in its entirety, to read as follows: "f. Notwithstanding anything to the contrary contained in this Agreement, in the event BNSF has not obtained all of the BNSF Regulatory Permits by March 15, 2012, BNSF shall have the right to suspend the BNSF Relocation Work until BNSF has obtained all of the BNSF Regulatory Permits." 4. The definition of Title Company is revised to read as follows: "Title Company" means Stewart Title Company as to all portions of the Main Line or the Replacement Property located in Denton County, Texas, and means Alamo Title Company as to all portions of the Main Line or the Replacement Property located in Tarrant County, Texas. 5. Except as amended by this Amendment, the Agreement shall remain in full force and effect. APPROVED AS TO FORM AND SUBSTANCE: ' w w� By: ZA4t!f Name: Theodore P. Gorski, Jr. Title: Assistant Oty AttoTf Date: D-1 tX � ?,*// THE CITY OF FORT WORTH, TEXAS Name: Tom Higgin Title: City Manager Date: Lag A BNSF RAILWAY COMPANY, a Delaware corporation Name: Mark D. Ude Title: AVP — Corporate Real Estate Development Date: �A 11 woo 1 vo° OW o 0 °o 0C ca a Pages �� Second Amendment to BNSF Relocation Agreement OFFICIAL RECORD CITY SECRETARY FT. WORTH TX 1090\010\19187.4 Name: Ron Gonzales OFFICIAL R�COEtD CITY �ECE��T'ARY Second Amendment to BNSF Relocation Agreement