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CONTRACT NO. 4k3
THIRD AMENDMENT TO FORMAL AGREEMENT
SOUTHWEST PARKWAY/SH 121
THIS THIRD AMENDMENT TO FORMAL AGREEMENT (this "Amendment") is made and
entered into as of the 20`h day of August, 2009 (the "Effective Date"), by and between UNION PACIFIC
RAILROAD COMPANY, a Delaware corporation (the "Railroad"), the NORTH TEXAS TOLLWAY
AUTHORITY, a regional tollway authority and political subdivision of the State of Texas (the
"NTTA"), the CITY OF FORT WORTH, TEXAS, a Texas home-rule municipality (the "Cily"), and
the TEXAS DEPARTMENT OF TRANSPORTATION, an agency of the State of Texas ("TxDOT").
The Railroad,the NTTA,the City and TxDOT are herein collectively called the"Parties".
RECITALS:
A. The Railroad, the NTTA, the City and TxDOT (TxDOT, the NTTA and the City are
sometimes herein collectively called the "Project Partners"), entered into that certain Southwest
Parkway/SH 121 Union Pacific Railroad/Project Partners Formal Agreement executed as of January 8,
2009 (the "Formal Agreement"), pursuant to which the Railroad and the Project Partners established
certain agreements and understandings with respect to the design, construction, operation and
maintenance of 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 Railroad'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 Railroad(the "Crossing Project").
C. In connection with the Crossing Project, (i) the Railroad will design and construct the
4+4+4 Plan, including the design and construction of the North Mainline Bypass Tracks, (ii)the Railroad
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 Railroad's
Davidson Yard from the right of way of SWP/SH 121 and other properties of the Project Partners, and
(iii) the Railroad has elected to design and construct the Trinity River Railroad Bridge, the easterly
extension of trackage and certain other related improvements(collectively,the"Railroad Prplect").
D. In connection with the Crossing Project, the City will design and construct certain
relocated and new water and sewer lines under the Railroad's Davidson Yard as part of the development
of SWP/SH 121 (the"City Utility Work").
E. Section III.L. of the Formal Agreement(i) acknowledged that, as of the date of execution
of the Formal Agreement,the design, investigation and due diligence of, and with respect to, the Crossing
Project, the Railroad Project and the City Utility Work (collectively, the "Project") had not progressed to
a point that would enable the Parties to (1) establish a mutually acceptable Construction Schedule for the
Project, (2) determine that the Parties' respective structures would coexist, (3) identify the respective
property interests that the Parties would require from third parties and from one another for the Project,
(4) determine whether the necessary Permits for the Project could be obtained on a timely basis and on
easonably acce le-terms and conditions, (5) determine whether the environmental condition of the
relevant properties was satisfactory, and (6) determine the financial feasibility and availability of funds
OFFICIAL RECQRU
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for the Project (collectively, the "Conditions Precedent"); and (ii) afforded any of the Parties the right to
terminate the Formal Agreement if such Conditions Precedent had not been addressed to their satisfaction
by May 19, 2009.
F. Pursuant to a First Amendment to Formal Agreement dated as of May 19, 2009, the
Parties (i) extended the date by which the Conditions Precedent were to be satisfied to June 17, 2009 and
(ii) the date by which notice of termination must be given with respect to certain of such Conditions
Precedent to July 1, 2009.
G. Pursuant to a Second Amendment to Formal Agreement dated as of June 17, 2009, the
Parties (i) extended the date by which the Conditions Precedent were to be satisfied to August 20, 2009
and (ii)the date by which notice of termination must be given with respect to certain of such Conditions
Precedent to September 3, 2009.
H. The Parties desire to enter into this Amendment to further extend the date by which the
Conditions Precedent are to be satisfied and the date by which notice of termination must be given with
respect to certain of such Conditions Precedent.
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. Defined Terms. Capitalized terms used but not defined in this Amendment shall have the
meanings given to such terms in the Formal Agreement.
2. Extension of Period to Satisfy Conditions Precedent. Sections III.E.4, III.H.I, III.1-1.3,
III.H.5, IILI.3, III.J.5, IILL.1, IILL.2 and III.L.6 of the Formal Agreement are hereby amended by
deleting each the references therein to "August 20, 2009" and substituting "September 1, 2009" in place
thereof. In addition, Section III.I.4 of the Formal Agreement is hereby amended by deleting the reference
therein to"May 20, 2009"and substituting"September 2, 2009" in place thereof.
3. Extension of Date by Which Termination Notice Must be Given. Sections III.L.3, III.L.4
and III.L.5 of the Formal Agreement are hereby deleted in their entirety and the following are substituted
as new Sections III.L.3, III.L.4 and III.L.5 in place thereof:
3. In addition to the foregoing, if UPRR reasonably determines, on or before
September 1, 2009, that the Permits it must obtain for its work described in this
Formal Agreement will not be available prior to January 1, 2010 or on reasonably
acceptable terms and conditions proximately related to the work in question, UPRR
shall have the right to terminate this Formal Agreement by delivering written notice
thereof to all other Parties on or before September 3, 2009.
4. In addition to the foregoing, if any Project Partner reasonably determines, on or
before September 1, 2009, that UPRR is unlikely to obtain its required Permits prior
to January 1, 2010, any such Project Partner shall have the right to terminate this
Formal Agreement by delivering written notice thereof to all other Parties on or
before September 3, 2009. Notwithstanding the foregoing, if prior to September 1,
2009 all of the Permits are issued to and obtained by UPRR, the Project Partners'
termination right under this subsection III.L.4. shall terminate.
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5. If any Party reasonably determines, on or before September 1, 2009, on the basis of
the environmental due diligence investigation conducted pursuant to
subsection III.J.5. that the results of said investigations are unsatisfactory with
respect to property that Party is to receive or convey under this Formal Agreement,
that Party may terminate this Formal Agreement on written notice given to the other
Parties on or before September 3,2009.
4. Termination Notices under Section III.L. Notwithstanding anything in Section III.P.2 of
the Formal Agreement to the contrary, the Parties hereby stipulate and agree that any notice of
termination given by a Party under Section III.L of the Formal Agreement may be given, in addition to
the means currently provided in the Formal Agreement, via electronic mail (*.pdf or similar file types)
and shall be effective when sent if sent before 6:00 p.m. central time and otherwise shall be deemed sent
on the next succeeding business day, provided a copy of such notice is also sent pursuant to one of the
methods authorized under Section III.P.2 of the Formal Agreement. The email addresses for the notice
parties under the Formal Agreement are as follows: (a) UPRR, to gsulliva@up.com, (b) TxDOT, to
mchavez@dot.state.tx.us, (c) the City at amy.ramsey@fortworthgov.org, and (d) NTTA, to
rherrington@ntta.org.
5. Miscellaneous.
(a) Representations and Warranties. Each of the Parties hereby represents and
warrants to the other Parties that (i) such Party has full power and authority to execute and deliver this
Amendment and to effectuate the terms hereof without the approval or consent of any other Person that
has not been obtained; and (ii) this Amendment 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 Amendment warrant that each has the authority to enter into this
Amendment on behalf of the Party represented.
(b) No Other Modifications. Notwithstanding anything to the contrary contained
herein or inferred hereby, or in any other instrument executed by the Parties, or in any other action or
conduct undertaken by the Parties on or before the date of execution hereof, the agreements, covenants
and provisions contained herein constitute the only evidence of the Parties' agreement to modify the
terms and provisions of the Formal Agreement. No express or implied consent to any further
modifications of the Formal Agreement shall be inferred or implied from the Parties' execution of this
Amendment.
(c) No Waivers. The Parties hereby agree that neither the purchase of materials, the
commencement of any field work (including site mobilization, fiber-optic relocation, or grading), nor the
undertaking of any other design, acquisition or construction-related steps by any of the Parties in
anticipation that the Parties' will be able to timely and collectively satisfy the Conditions Precedent shall
not constitute a satisfaction, modification or waiver by such Party or Parties of any of the Conditions
Precedent or of such Parry's or Parties' related termination rights under Section III.L. of the Formal
Agreement nor a waiver of any rights or defenses available to the Parties at law (including by statute) or
in equity in the event this Agreement is terminated in accordance with its terms.
(d) Choice of Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
TEXAS WITHOUT GIVING EFFECT TO ANY PRINCIPLES OF CONFLICTS OF LAWS.
(e) Execution. This Amendment may be executed in multiple counterparts, each of
which for all purposes is deemed an original, and all of which constitute collectively one agreement.
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Signatures of this Amendment transmitted by facsimile or via electronic mail (*.pdf or similar file types)
shall be valid and effective to bind the Party so signing.
[Signature Pages Follow]
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IN WITNESS WHEREOF,the Parties have caused this Amendment to be duly executed as of the
Effective Date first herein written.
UNION PACIFIC RAILROAD COMPANY,
a Delaware corporation
I By: I
Name e ena E. 06 k
Title; Assistant We President.Law i
II
1
NORTH TEXAS TOLLWAY AUTHORITY
I
By: I
Name:
Title:
i
s
i
APPROVED AS TO FORM: 1
t
LOCKE LORD BISSELL&LIDDELL,LLP,
General Counsel
I
i
By:
Name: i
Title:
i
i
I
OFFICIAL RECORD
I
&'!'#ATY SECRETARY
FT WORTH,TX
I
Signature Pages to
Third Amendment to Formal Agreement
DAL:0567318/47205:1874660v2
i
IN WITNESS WHEREOF,the Parties have caused this Amendment to be duly executed as of the
Effective Date first herein written.
UNION PACIFIC RAILROAD COMPANY,
a Delaware corporation
By:
Name:
Title:
NORTH TEXAS TOLLWAY AUTHORITY
By: a= ���
Name:_ All qtvt 1 it $*ft
Title: +— ''D:r
APPROVED AS TO FORM:
LOCKE LORD BISSELL&LIDDELL,LLP,
General Counsel
By:
Nam : i �--
Title: faifi�te.�
OFFICIAL.RECORD
CITY SECRETARY
TWORTH,TX
Signature Pages to
Third Amendment to Formal Agreement
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CITY OF FORT WORTH,
Fernando Costa
Assistant City Manager
RECOMMENDED BY;
Bryan Beck,P.E.,Program Manager
City Manager's Office
APPROVED AS TO FORM:
Amy J.Ramsey
Assistant City Attorney
ATTEST:
Mary Hendrix
City Secretary
Authorization:
Date: August ,2009
TEXAS.DEPARTMENT OF TRANSPORTATION
By:alOW4 zfax-1
Name:
Title: c rL .+R
OFFICIAL RECORD ,
CITY
FT WORT IIITA
Signature Pages to
Third Amendment to Formal Agreement
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CITY OF FORT WORTH,
Fernando Costa
Assistant City Manager
RECOMMENDED BY:
- 04
Bryaf B ck, P.E., Program Manager
City nager's Office
APPROVED AS TO FORM
e
Amy J. R sey
Assistant City Attomey
jw4w,",
ATTEST:
Matey Hendrix
City Secretary
Authorization:
Date: August J&, 2009
TEXAS DEPARTMENT OF TRANSPORTATION
By:
Name:
Title:
OFFICIAL RECOR[�,I.
CITY SECRETARY
' FT.WORTH,TX `
Signature Pages to
Third Amendment to Formal Agreement
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Official site of the City of Fort Worth,Texas
CITY COUNCIL AGENDA FoRTWoRTH
COUNCIL ACTION: Approved on 8/18/2009
REFERENCE ** 02SWP AMEND3 UPRR
DATE: 8/18/2009 NO.: C-23716 LOG NAME: FORMAL AGREEMENT
CODE: C TYPE: CONSENT PUBLIC NO
HEARING:
SUBJECT: Authorize Amendment No. 3 to City Secretary Contract No. 38136, a Formal Agreement
with the North Texas Tollway Authority, the Texas Department of Transportation and the
Union Pacific Railroad Company so as to Provide an Extension of Certain Deadlines
Associated with the Southwest Parkway Project
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to execute Amendment No. 3 to
City Secretary Contract No. 38136, a Formal Agreement with the North Texas Tollway Authority, the
Texas Department of Transportation and the Union Pacific Railroad Company, to change "August 20,
2009"to "September 1, 2009" throughout to provide an extension of certain deadlines associated with
the Southwest Parkway project.
DISCUSSION:
On January 6, 2009, (M&C C-23268) City Council approved a Formal Agreement (Agreement) with
North Texas Tollway Authority (NTTA), the Texas Department of Transportation (TxDOT) and the
Union Pacific Railroad Company (UPRR) to facilitate construction and operation of the Southwest
Parkway across the Davidson Rail Yard. The Agreement contains termination provisions to be satisfied
by a certain date. Those provisions include an event of termination if:
The Hump Lead is not successfully tested;
The plans and co-existence are not approved;
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 under the
Agreement;
The necessary property rights or licenses have not been delivered;
UPRR determines it will not obtain the required permits under reasonably acceptable terms and
conditions proximately related to the work in question prior to January 1, 2010;
The project partners reasonably determine UPRR is unlikely to obtain its required permits prior to
January 1, 2010; or
A party reasonably determines on the basis of the environmental due diligence investigation
conducted pursuant to the Agreement that the results of said investigations are unsatisfactory with
respect to property that party is to receive or convey.
The UPRR has approved the Hump Lead and the parties to the Agreement have worked diligently to
satisfy all issues to meet the deadlines.
The May 19, 2009 deadline has been extended twice previously through Amendment No. 1 and
Amendment No. 2. However, given the complex nature of the agreement, staff is seeking to further
extend the deadline to September 1, 2009. The September 3, 2009 notice deadline will remain the
same.
Staff is hopeful that this extension will allow remaining issues to be resolved and permit the parties to
move forward with construction of the Southwest Parkway across the Davidson Rail Yard.
The project is located in COUNCIL DISTRICTS 3, 6 and 9.
FISCAL INFORMATION/CERTIFICATION:
The Financial Management Services Director certifies that this action will have no material effect on
City funds.
TO Fund/Account/Centers FROM Fund/Account/Centers
Submitted for City Manager's Office by. Fernando Costa (6122)
Originating Department Head: Randle Harwood (6101)
Additional Information Contact: Bryan Beck (7909)
ATTACHMENTS