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HomeMy WebLinkAboutContract 20326 P, INTERLOCAL AGREEMENT BETWEEN DALLAS AREA RAPID TRANSIT, FORT WORTH TRANSPORTATION AUTHORITY CM SECRETARY AND 80NMGT NO.,i3.0-5-2. THE CITY OF FORT WORTH AND THE CITY OF DALLAS FOR THE INITIATION AND OPERATION OF COMMUTER RAIL SERVICE ALONG THE RAILTRAN CORRIDOR WHEREAS, pursuant to the Interlocal Cooperation Act, Chapter 791, Texas Government Code, the City of Fort Worth and the City of Dallas, (hereinafter referred to as the "Cities" ) , acting by and through DFW RAILTRAN ( "RAILTRAN" ) , a common administrative agency established by the Cities organized under the laws of the State of Texas pursuant to Section 791 .013 of the Texas Government Code, Dallas Area Rapid Transit (hereinafter referred to as "DART" ) and the Fort Worth Transportation Authority (hereinafter referred to as "the T" ) , both metropolitan transportation authorities created and existing pursuant to Article 1118y, Texas Revised Civil Statutes (hereinafter referred to jointly as the "Transit Authorities" ) , may exercise jointly the power to provide governmental services for the public health, safety and welfare; and WHEREAS, pursuant to Article 1182k, Texas Revised Civil Statutes, all railroad-related activities by public agencies, separately or jointly exercised, are public and governmental functions for the public purpose and necessity; and WHEREAS, it would be mutually beneficial to the citizens of the Cities and of the Transit Authorities, service areas to have commuter rail service connecting the Cities of Dallas and Fort Worth with each other and with DFW International Airport to relieve traffic congestion, provide transportation opportunities and aid in attaining federal air quality standards; and WHEREAS, the Cities acquired certain railroad rights-of-way connecting the Cities on July 7, 1983; and WHEREAS, the Dallas Area Rapid Transit Authority and the Fort Worth Transportation Authority and the Cities have agreed to execute a mutually beneficial Interlocal Cooperative Agreement for the development of commuter rail service along the RAILTRAN Corridor; and WHEREAS, the Cities are desirous of providing the RAILTRAN Corridor for use by the Transit Authorities for Commuter Rail Service in accordance with the Freight Agreements ; and WHEREAS, the Transit Authorities are desirous of acting jointly to provide such service in the RAILTRAN Corridor; and Neu/ii- Interlocal Cooperative Agreement + "W Page 1 WHEREAS, the parties desire to enter into this Interlocal Agreement (hereinafter called "ILA" ) to define the respective rights and responsibilities related to the use of the RAILTRAN Corridor for Commuter Rail and Passenger Rail Services; NOW THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the Cities and the Transit Authorities (hereinafter referred to as the "parties" ) agree as follows : ?ARTICLE I DEFINITIONS 1.1 In addition to those terms defined elsewhere in this Agreement, the following terms, when used in this Agreement as written below, shall have the following specified meanings: 1. 1. 1 "MKT Operating Rights Agreement" means that contract entered into on February 27, 1984, by the Cities and the Missouri-Kansas-Texas Railroad Company (hereinafter referred to as "MKT" ) , wherein subject to certain conditions, MKT transferred its easement for rail freight operations to the Cities. Subsequent to the execution of the Operating Rights Agreement, the MKT transferred its interests and obligations under the Operating Rights Agreement to the Missouri Pacific Railroad Company (hereinafter referred to as "MP" ) . 1 .1.2 "Joint Use Agreement" means that contract entered into on August 16, 1993, by the Cities and the Missouri Pacific Railroad Company, wherein subject to certain conditions, MP transferred its interests and obligations under the MKT Operating Rights Agreement to the Cities. 1. 1.3 "Trackage Rights Agreement" means that contract entered into on August 16, 1993, by the Cities and the Burlington Northern Railroad Company (hereinafter the "BN" ) , wherein the Cities and the BN modified certain of their respective rights and obligations under previously existing agreements. 1 . 1 .4 "RAILTRAN Corridor" means the railroad right-of-way and related property extending between the Cities and acquired by the Cities for mass transit and other public purposes. 1 . 1 .5 "Freight Agreements" means the MKT Operating Agreement, Joint Use Agreement and Trackage Rights Agreement. 1 . 1 . 6 "Irving Service" means the first phase of Commuter Rail Service in the RAILTRAN Corridor, planned to Interlocal cooperative Agreement Page 2 be developed and implemented by DART by mid-1995, and expected to operate between Dallas Union Station and DART's South Irving Transit Center. 1 . 1 .7 "Fort Worth Service", also referred to as Phase 2A in the Freight Agreements, means a future phase of commuter rail service in the RAILTRAN Corridor, including the planned Intermodal Transportation Center improvements, expected to operate between the Dallas and Fort Worth Central Business Districts . 1 .1 .8 "Commuter Rail Service" means operating passenger trains by, or under the control of, the Transit Authorities as described in the Freight Agreements. 1 .1 .9 "Passenger Rail Service" means all non-commuter rail passenger service. 1. 1.10 "Maintenance-of-Way" means the labor, material, tools and equipment required to maintain all aspects of the railroad tracks, structures (including but not limited to bridges, culverts and walls) , signals and communications so as to permit legal operation of speeds up to 60 mph by commuter rail trains. It does not mean the activities to maintain the RAILTRAN Corridor outside the limits of the ballast section of the tracks used by Commuter or Passenger Rail Service. ARTICLE II RIGHTS AND OBLIGATIONS OF THE PARTIES 2 .1 RAILTRAN: 2 . 1 . 1 Provision of RAILTRAN Corridor: RAILTRAN shall provide the RAILTRAN Corridor to the Transit Authorities for their use for Commuter Rail Service at no rental charge. The plans and specifications for the line improvements and upgrades required by the Freight Agreements will be provided to the Transit Authorities for their review and comment. RAILTRAN shall have the obligation to obtain and to provide to the Transit Authorities whatever additional right-of-way may be reasonably necessary in order to provide Fort Worth Service. 2 . 1 .2 Use of RAILTRAN Revenue: Nothing in this Agreement shall obligate RAILTRAN to use its revenue to subsidize the operation of the Commuter Rail Service. The Cities shall not be required to provide general revenue funds for any purpose of this Agreement. Interlocal Cooperative Agreement Page 3 2 . 1 .3 Commuter Rail Service Operation: RAILTRAN authorizes the Transit Authorities to exercise RAILTRAN's rights as the Rail Passenger Service Operator Designee, as provided for in the Freight Agreements, to the extent reasonably necessary to provide Commuter Rail Service, except as specifically provided herein. The Transit Authorities may, subject to the provisions of the Freight Agreements, elect to transfer some or all of these rights and responsibilities to a designee, including the designation of an operator of Commuter Rail Service to a third party. operation by the Transit Authorities or their Designee shall be in accordance with the Freight Agreements. In the event Commuter Rail Service is discontinued, as provided for in this Agreement, the authorization herein granted shall terminate. Nothing in this Agreement shall affect the Cities' right to allow other freight and passenger uses on the line in accordance with the Freight Agreements and this Agreement as long as such service is coordinated with and does not unreasonably interfere with the freight users and the Transit Authorities. Any revenue generated from such use will remain with RAILTRAN for use in the Corridor. All costs associated with providing such additional service shall be borne by RAILTRAN. 2 . 1 .4 Dispatch and Maintenance-of-Way: RAILTRAN shall arrange for a qualified dispatcher designee and qualified maintenance of way designee which designee shall be subject to the approval of the Transit Authorities, whose approval shall not be unreasonably withheld. Class 1 Railroads, with the exception of Amtrak, shall be deemed qualified and approved by the Transit Authorities through the execution of this agreement; no other approval process is required. Dispatching shall - be performed in accordance with the operating rules established by the Transit Authorities for the RAILTRAN Corridor in accordance with the Freight Agreements. RAILTR.AN or its designee shall provide all maintenance of way in the entire RAILTR.AN Corridor. In the event that RAILTRAN does not execute a long- term agreement with one or both of the existing Class I railroads on the line, RAILTRAN may supplement this ILA by transferring dispatch and maintenance of way responsibilities to the Transit Authorities for such term and under such conditions as may be negotiated, subject to the limitations imposed by the Freight Agreements regarding the contracting of these functions to non-Class I railroads . Interlocal cooperative Agreement Page 4 2 . 1 .5 Equipment Maintenance Facility and Medical Market Center Station: RAILTRAN has acquired, at its expense, with assistance from DART, the sites for the Equipment Maintenance Facility and the Medical Market Center Station. RAILTRAN will provide both sites to the Transit Authorities for Commuter Rail Service use at no rental expense to the Transit Authorities. 2 .2 Transit Authorities: 2 .2 .1 Operation: The Transit Authorities will set the schedules for Commuter Rail Service along the RAILTRAN Corridor in accordance with the Freight Agreements. The total annualized charges for maintenance-of-way and dispatching shall be established by the agreements between RAILTRAN and its respective designees. The Transit Authorities agree to pay monthly the share of the total annualized maintenance-of-way and dispatching costs for the RAILTRAN Corridor that can be reasonably attributed to Commuter Rail Service. RAILTRAN shall consult with the Transit Authorities regarding these costs prior to and during negotiations with RAILTRAN's respective designees. 2 .2 .2 Capital Costs: The Transit Authorities shall pay for any capital costs attributable to Commuter Rail Service other than those described in the Financing Plan (Appendix A) . 2 .2 .3 Commuter Rail Stations: The Transit Authorities may provide land, construct, and maintain commuter rail stations for the Fort Worth Service as identified in the RAILTRAN Planning and Implementation Study prepared by NCTCOG. Any other passenger stations to be constructed on the RAILTRAN Corridor shall be by mutual agreement of the parties to this Agreement. All of the benefits which may be obtained or developed from the construction or operation of the station sites shall belong to the Transit Authorities regardless of whether such development rights arise solely from or can be traced to real property owned by the Transit Authorities or RAILTRAN. Any and all revenue arising from these rights shall be utilized to provide Commuter Rail Service in the RAILTRAN Corridor. 2 .2 .4 Equipment And Maintenance. The Transit Authorities will be the responsible parties for the purchase, construction and maintenance of equipment and passenger-only facilities that may be reasonably necessary for the initiation of Commuter Interlocal cooperative Agreement Page 5 Rail Service to be provided along the RAILTRAN Corridor. 2 .3 Mutual Obligation of the Parties: 2 .3 . 1 Technical Committee: An advisory committee shall be established (hereinafter referred to as the "Technical Committee" ) to help coordinate operational issues among all rail transportation providers on the RAILTRAN Corridor as required by the provisions of the Freight Agreements. The Technical Committee shall serve in an advisory capacity to all of the parties. The membership on the Technical Committee shall be comprised of the following five (5) representatives of the entities described and in the following numbers: RAILTRAN - 1 representative Transit Authorities 2 representatives from the Transit Authorities as established by the DART/FWTA ILA Burlington Northern Railroad - 1 representative Union Pacific Railroad - 1 representative The Technical Committee shall establish rules and procedures for its operation. 2 .3 .2 Initiation of Service: All of the parties agree to use their best efforts to insure the start of commuter rail passenger service on the RAILTRAN Corridor to Irving within eighteen (18) months from the execution of this Agreement. The parties agree to exercise their best efforts to implement the Fort Worth Service within two (2 ) years of the initiation of the Irving Service. 2 .3 .3 DFW International Airport Service: The parties agree to use their best efforts to implement service to the Dallas Fort Worth International Airport within two years of agreement between RAILTRAN, the Transit Authorities, and the DFW International Airport Board on a feasible method of delivery of service to the Airport. This expansion of service, however, must be approved by all the parties to this contract and the City Councils of Dallas and Fort Worth. 2 . 3 .4 Financing Plan: The parties agree that the financing for the implementation of the Commuter Rail Service as described in paragraph 2 . 3 .2 shall be in accordance with the Financing Plan attached Page 6 Interlocal cooperative Agreement hereto as Appendix A and incorporated herein for all purposes. 2 .4 Disposition of Property in the Event of Discontinuation of Commuter Rail Service: 2 .4 .1 Discontinuance of Commuter Rail Service: If Commuter Rail Service is initiated and such service is not provided for a period of twenty-four (24) consecutive months, or if such service is not initiated within five years from the date of this Agreement, such service shall be deemed to be discontinued. 2 .4.2 Real Property Ownership Within Right-of-Way of RAILTRAN Corridor: In the event of the discontinuance of Commuter Rail Service, all permanent improvements which the Transit Authorities have constructed within the right-of- way of the RAILTRAN Corridor shall become the property of RAILTRAN. Permanent improvements shall be defined as those improvements which after construction, become a part of the realty and are not moveable fixtures. The Transit Authorities shall be allowed to remove and retain from the right-of-way any and all fixtures purchased and installed by the Transit Authorities as long as the removal of these fixtures does not impair RAILTRAN's ability to maintain freight service. 2 .4.3 Real Property Ownership Abutting the RAILTRAN Corridor: In the event of the discontinuance of Commuter Rail Service the Transit Authorities agree that RAILTRAN shall have the first option to purchase all real property and improvements owned by the Transit Authorities which abut but are outside .of the right-of-way. If, however, RAILTRAN and the Transit Authorities cannot reach an agreement with respect to the terms and conditions of said purchase within a period of ninety (90) days from the discontinuance of service, the Transit Authorities shall be relieved of this obligation and shall have the right to sell such real property and improvements to a third party. 2 .4.4 Equipment Maintenance Facility Site: If service is discontinued as defined in paragraph 2 .4. 1 above, RAILTRAN shall have, within a period of ninety (90) days from the date of the discontinuance of the service, the right to purchase, at fair market value, the real property improvements made by the Transit Authorities at the Equipment Maintenance Facility Site. The appraised value shall not include the value of the real property already purchased by RAILTRAN. The fair market value for Interlocal Cooperative Agreement Page 7 the real property improvements shall be established by an appraisal performed by an independent appraiser being agreed upon by RAILTRAN and the Transit Authorities. The cost of the appraisal will be borne equally by RAILTRAN and the Transit Authorities. RAILTRAN and the Transit Authorities shall have a period of thirty (30) days in which to mutually agree upon an appraiser to perform the appraisal. In the event RAILTRAN and the Transit Authorities cannot mutually agree upon an appraiser to perform the appraisal within the thirty (30) day time period, RAILTRAN and the Transit Authorities each shall, within fifteen ( 15 ) days from the expiration of said thirty (30) day time period, select an appraiser and submit the name of such appraiser to the other. At the end of such fifteen (15) day period or after both parties have received the name of the other parties' appraiser, whichever time shall occur first, the appraiser selected by RAILTRAN and the appraiser selected by the Transit Authorities shall within a period of fifteen (15 ) days select a third appraiser and the appraisal for the real property improvements shall be prepared by the three appraisers by majority vote within a period of ninety (90) days from the selection of the third appraiser. If the appraisal is to be performed in this manner, RAILTRAN shall pay the cost incurred for its appraiser, the Transit Authorities shall pay the cost incurred by its appraiser, and the cost of the third appraiser shall be borne equally by both RAILTRAN and the Transit Authorities. If RAILTRAN elects not to purchase the real property improvements made by the Transit Authorities, the Transit Authorities shall purchase the Equipment Maintenance Facility site from RAILTRAN. The value of the site shall be determined by an appraiser agreed upon by both RAILTRAN and the Transit Authorities. In the event RAILTRAN and the Transit Authorities cannot agree upon an appraiser to determine the value of the Equipment Maintenance Facility site, then the appraisal shall be performed in the same method, under the same conditions and within the same time periods as provided for above. The time period shall be calculated from the date RAILTRAN notifies the Transit Authorities that it does not desire to purchase the real property improvements made by the Transit Authorities or ninety (90) days from the discontinuance of service as defined in paragraph 2 .4 . 1 above, whichever shall be earlier. The appraisal shall not include the value of site work or of other improvements which the Transit Authorities have constructed on the Equipment Maintenance Facility site. The purchase price of Interlocal Cooperative Agreement Page 8 the Equipment Maintenance Facility site shall be the appraised value as determined and shall be paid to the Cities within ninety (90) days after the completion of the appraisal. 2 .4.5 Medical/Market Center Site: If service is discontinued as defined in paragraph 2 .4 . 1 above, RAILTRAN shall have, within a period of ninety (90) days from the date of the discontinuance of the service, the right to purchase, at fair market value, the real property improvements made by the Transit Authorities at the Medical/Market Center Site. If this should occur, the Medical/Market Center Site or improvements will be appraised and purchased in the same manner as outlined in Section 2 .4.4 above. ARTICLE III INSURANCE AND INDEMNITY 3 . 1 Insurance: The parties agree to maintain commercial general liability insurance (or self-insurance) , including broad form contractual coverage, and commercial automobile liability, to cover their liability to others arising from their ownership, activities and obligations identified within this agreement, including property ownership, rights of way, operating rights, dispatching, signaling and control, equipment maintenance, trackage rights, freight and passenger services, construction and maintenance. The Transit Authorities, as a condition to operation of Commuter Rail Service, agree to maintain, at their expense liability insurance (or self-insurance) with an insurer acceptable to RAILTRAN, naming RAILTRAN as an additional insured and in amounts and coverage sufficient to cover the liability exposure arising out of the Transit Authorities' operation of Commuter Rail Service and assumed by RAILTRAN pursuant to the Freight Agreements and to the Dallas Right-of- Way District Agreement. The Transit Authorities may delegate this obligation to the Commuter Rail Service operator. The parties will exercise their best efforts to maintain the insurance in full force, with an amount and insurer (or self- insurance) that is acceptable to all other parties. Minimum limits of coverage will be established by the Freight Agreements or by mutual agreement of the parties and reviewed for adequacy and other considerations periodically. A certificate of insurance, or other evidence of financial strength will be furnished to each party to this agreement on the annual anniversary date. Certificates will remain in effect until 30 days after notice of cancellation to all parties has been provided. Znterlocal Cooperative Agreement Page 9 3 .2 Indemnity: The Cities agree to hold harmless, defend and indemnify the Transit Authorities, their directors, employees, agents, and assigns, for any and all claims for loss, damage (except punitive or exemplary damages) or injury, expenses (including but not limited to attorney's fees, investigation and defense costs) , suits, judgments, and interest owed, arising from the Cities activities, responsibilities and obligations, as defined in this agreement, and arising from, but not limited to, the ownership of the land and improvements, right of way, dispatching and control of operations, maintenance of way, signals and controls, and related business invitees of the Cities. The Transit Authorities agree to hold harmless, defend and indemnify the Cities, their directors, employees, agents and assigns, for any and all claims for loss, damage (except punitive and exemplary damages) or injury, expenses (including but not limited to attorney's fees, investigation and defense costs) , suits, judgments and interest owed, arising from the Transit Authorities activities, responsibilities, and obligations, as defined in this agreement, and arising from, but not limited to, the Commuter Rail Service operations, related business invitees of the Transit Authorities, commuter rail facilities, equipment and vehicles, including equipment and related maintenance operations that may occur on the Cities' owned sites. If any claims, as defined above, are attributable to the joint or concurrent liability of the Cities and the Transit Authorities then such claims shall be borne in such proportions as may be determined by mutual agreement of the parties or by final judgment rendered by a Court of appropriate jurisdiction. Should mutual agreement between the parties fail to occur, nothing in this agreement shall preclude any of the parties from the disposition of its own liability prior to the final adjudication of the claim. A settlement effected by one party to this agreement shall not binding on any other party. ARTICLE IV TERM TERMINATION and DEFAULT 4 . 1 Term: The term of this Agreement shall be for ninety-nine years and shall commence upon execution of this Agreement by all parties. 4 .2 Termination for Default: Notwithstanding any other provision in this Agreement, the parties individually reserve the right to terminate this Agreement at any time in the event: Interlocal Cooperative Agreement Page 10 (A) There is a discontinuance of service as defined in paragraph 2 .4 above. (B) Any party to this Agreement fails substantially to comply with any term, condition or obligation of this Agreement, the non-defaulting party shall notify the defaulting party in writing of the specific nature of such failure and allow the defaulting party a period of ninety (90) days to cure such breach or satisy the non-defaulting party that a cure shall be forthcoming within a timeframe acceptable to the non-defaulting party. If the defaulting party does not cure or satisfy the non- defaulting party that the default will be cured within such timeframe, within the ninety (90) day period, the non-defaulting party shall have the option of terminating this Agreement, enforcing specific performance of the same, and/or pursuing any other remedies available to it as allowed by law. 4 .3 Mutual Termination of Parties: The parties may terminate this Agreement by mutual agreement at any time. ARTICLE V CONDEMNATION 5. 1 Condemnation of Entire Corridor: In the event that any governmental agency or agencies institutes a successful action or proceeding for the condemnation of the entire RAILTRAN Corridor, this Agreement shall be canceled as of the date that possession is taken from the Cities. 5 .2 Condemnation of a Portion of the Corridor: In the event that any governmental agency or agencies institutes a successful action or proceeding for the condemnation of a portion of the RAILTRAN Corridor, then the parties shall jointly determine whether such taking would make it physically impossible to provide Commuter Rail Service and shall convey their joint findings to RAILTRAN. 5 .3 Effect of Condemnation on Service: In the event of a condemnation of all or part of the RAILTRAN Corridor, the parties shall determine jointly the feasibility of continuing any existing service under this Agreement. The parties may then enter jointly or separately into such agreements as may be necessary and appropriate with the condemning agency or agencies in order to provide for continuation and/or expansion of service. lnterlocal Cooperative Agreement Page 11 5 .4 Claims for Damages Arising from Condemnation: The parties will jointly develop a claim or claims for damages resulting from any condemnation. The amount of such damages payable to the Transit Authorities shall be limited to awards for loss of improvements furnished and installed by the Transit Authorities. ARTICLE VI MISCELLANEOUS 6. 1 Force Majeure: It is expressly understood and agreed by the parties to this Agreement that if the performance of any provision of this Agreement is delayed by reason of war, civil commotion, act of God, governmental restrictions, regulations or interferences, fire or other casualty, court injunction, or any circumstances which are reasonably beyond the control of the party obligated or permitted under the terms of this Agreement to do or perform the same, regardless of whether any such circumstance is similar to any of those enumerated herein, the party so obligated or permitted shall be excused from doing or performing the same during such period of delay, so that the period of time applicable to such requirement shall be extended for a period of time equal to the period of time such party was delayed. 6.2 Contractual Relationship: It is specifically understood and agreed that the relationship described in this Agreement between the parties is contractual in nature and is not to be construed to create a partnership or joint venture or agency relationship between the parties. Nor shall any party be liable for any debts incurred by the other party in the conduct of such other party's business or functions. 6.3 Counterparts: This Agreement may be executed in multiple counterparts. Each such counterpart shall be deemed an original of this Agreement, so that in making proof of this Agreement, it shall only be necessary to produce or account for one such counterpart. 6.4 Complete Agreement: : This Agreement embodies all of the agreements of the parties relating to its subject matter, supersedes all prior understandings and agreements regarding such subject matter, and may be amended, modified, or supplemented only by an instrument or instruments in writing executed by all of the parties. 6.5 Captions: The captions, headings, and arrangements used in this Agreement are for convenience only and shall not in any way affect, limit, amplify, or modify its terms and provision. 6 . 6 Governing Law and Venue: This Agreement and all agreements entered into in connection with the transactions contemplated Page 12 Interlocal Cooperative Agreement by this Agreement are, and will be, executed and delivered, and are intended to be performed in the County of Dallas and the County of Tarrant, State of Texas, and the laws of Texas shall govern the validity, construction, enforcement, and interpretation of this Agreement. In the event of litigation between the parties hereto, their successors or assigns, with regard to this Agreement and any subsequent supplementary agreements or amendments, venue shall lie exclusively in either Tarrant County or Dallas County, Texas . 6.7 Severability: In the event any one or more of the provisions contained in this Agreement shall be for any reason held to be invalid, illegal or unenforceable in any respect such invalidity, illegality or unenforceability shall not effect any other provision(s) hereof, and this Agreement shall be revised so as to cure such invalid, illegal or unenforceable provision(s ) to carry out as near as possible the original intent of the parties. 6.8 Changed Circumstances: If future federal, state or local statue, ordinance, regulation, rule or action render this Agreement in whole or in part, illegal, invalid, unenforceable or impractical, the parties agree to delete and/or to modify such portions of the Agreement as are necessary to render it valid, enforceable and/or practical. Each section, paragraph or provision of this Agreement shall be considered severable, and if for any reason any section, paragraph, or provision herein is determined to be invalid under current or future law, regulation or rule, such invalidity shall not impair the operation of or otherwise affect the valid portions of this instrument. 6.9 Enforcement: If any party initiates an action to enforce any provision of this Agreement or for damages by reason of an alleged breach of any provision hereof, the prevailing party shall be entitled to receive from the other parties all reasonable and necessary costs and expenses, including reasonable attorneys, fees and costs incurred in connection with such action. 6. 10 Survival: All of the terms, conditions, warranties and representations contained in this Agreement shall survive, in accordance with their terms, and shall survive the execution hereof. In addition, a Transit Authority may elect to assume the rights and responsibilities of the other under this Agreement, if the other Transit Authority is the terminated party, as defined in the Interlocal Cooperative Agreement separately executed between DART and the T. 6 . 11 Incorporation of Exhibits and Schedules : All Exhibits and Schedules attached hereto are by this reference incorporated herein and made a part hereof for all purposes as if fully set forth herein. Interlocal Cooperative Agreement Page 13 6. 12 References: The use of the words "hereof, " "herein, " "hereunder, " and words of similar import shall refer to this entire Agreement, and not to any particular section, subsection, clause, or paragraph of this Agreement, unless the context clearly indicates otherwise. 6. 13 Further Assurances: Each party agrees to perform any further acts and to sign and deliver any further documents which may be reasonably necessary to carry out the provision of this Agreement. 6. 14 Non-appropriation: Notwithstanding any other provision of . this Agreement, in the event that insufficient funds are appropriated by the governing body of any of the parties to satisfy any obligation of a party under this Agreement, the party shall notify all other parties to this Agreement of such occurrence and this Agreement shall terminate on the last day of the fiscal year for which sufficient appropriations were made, without penalty or expense to that party of any kind whatsoever, except as to the funds previously appropriated. Provided, however, that the remaining parties may agree to appropriate the necessary funds to avoid termination of this Agreement. 6. 15 Notice: Whenever this Agreement requires or permits any consent, approval, notice, request, proposal, or demand from one party to another, the content, approval, notice, request, proposal, or demand must be in writing to be effective and shall be delivered to the party intended to receive it at the address(es) shown below: If to DART: Executive Director Dallas Area Rapid Transit P. O. Box 660163 Dallas, Texas 75266 With a copy to: General Counsel Dallas Area Rapid Transit P. O. Box 660163 Dallas, Texas 75266 if to the T: General Manager Fort Worth Transportation Authority 1813 E. Lancaster Fort Worth, Texas 76103 With a copy to: General Counsel Fort Worth Transportation Authority 1813 E. Lancaster Fort Worth, Texas 76103 Interlocal Cooperative Agreement Page 14 If to RAILTRAN: RAILTRAN Manager City of Fort Worth 1000 Throckmorton Fort Worth, Texas 76102-6311 With a copy to: Fort Worth City Attorney's Office City of Fort Worth 1000 Throckmorton Fort Worth, Texas 76102-6311 Dallas City Attorney's Office City of Dallas 1500 Marilla Dallas, Texas 75201 or to such other addresses and addressees as the parties may request, in writing, from time to time. EXECUTED AND EFFECTIVE THIS,-Vkg DAY OF 1994 . APPROVED AS TO FORM: DALLAS AREA RAPID TRANSIT Office of Genera Counsel BY: BY: 1 oger S o Ile, Executive Director APPROVED AS TO FORM: FORT WORTH TRANSPORTATION Office of General Counsel AUTHORITY BY: BY: �U v hn P. Bartosiewicz eneral Manager Interlocal cooperative Agreement Page 15 ATTEST: CITY OF DALLAS BY: ` /G Robert S. Sloan City Secretary City of Dallas APPROVED AS TO FORM: CITY OF DALLAS Sam Lindsay, City Attorney John L. Ware, City Manager BY: _ c BY: Edward H. Perry Teodoro Benavides Assistant City Attorney Assistant City Manager ATTEST: BY: Alice Church City Secretary City of Fort,,Worth APPROVED AS TO FORM AND CITY OF FORT WORTH LEGALITY: Wade Adkins, City Attorney �' __ /J-e't BY: 'w'/ .cl BY: David L. Yett . Robert Terrell Assistant Cit Attorney City Manager APPROVAL RECOMMENDED: Cmtraat Au i__°atiiRr� BY:, ` 4isa A. Pyles Date RAI RAN Manager Interlocal Cooperative Agreement Page 16 APPENDIX A FINANCING PLAN The parties agree to use their best efforts and appropriate sources of revenue to finance all capital costs for the initiation of Commuter Rail Service from Downtown Dallas to Downtown Fort Worth. The parties shall have the following responsibilities in financing these costs: RAILTRAN: 1 . Purchase of the Equipment Facility site and the Medical Market Center Station site. 2 . Purchase of the additional right of way needed to connect Dal Wor junction to the T and P Station in Downtown Fort Worth including the local match for the additional right of way portion of TX-03-0168. Total amount of these items will not exceed $2 .2 million in RAILTRAN funds. 3 . Local match for TX-03-0153 . 4 . Dedication of the freight railroad's portion of any capital expansion expenditures in accordance with the Freight Agreements. 5. Local match for the Eastern Subregion Congestion Mitigation/Air Quality (CMAQ) grant for the Irving Service and the Western Subregion Congestion Mitigation/Air Quality (CMAQ) grant for the Fort Worth Service. Any other funds needed to construct the line upgrades and improvements required for initiation of Commuter Rail Service in the Freight Agreements . DART: 1. Funds committed in DART Financial Plan for the Irving Service. 2 . Acquiring federal funds and providing match for the commuter rail portion TX-90-X272-01. 3 . Local and federal funds required to buy equipment and construct the portion of the line from South Irving to the Dallas/Tarrant County line. Local match will not exceed $1 .35 million. 4. Support the City of Dallas as the grantee for the Eastern Subregion's CMAQ grant for Commuter Rail Service. 5 . Any other funds needed to provide the Irving Service and any Dallas County portion of the Fort Worth Service. The T: 1 . Funds committed in its current Five Year Service Plan for the Fort Worth Service. 2 . The contribution to the Equipment Maintenance Facility as defined in the DART/T Agreement, not to exceed $1 million. 3 . Acquiring additional federal funds and providing the local match for the Intermodal Transportation Center portions of TX- 03-0168. 4 . Support and be the grantee for the Western Subregion' s CMAQ grant for Commuter Rail Service. 5 . Any other funds needed to provide the Fort Worth Service and any Tarrant County portion of the Irving Service. Znterlocal cooperative Agreement Page 17 940024 RESOLUTION Dallas Area Rapid Transit RESOLUTION of the DALLAS AREA RAPID TRANSIT (Executive Committee) RAILTRAN Interlocal Agreement WHEREAS, DART is desirous of providing commuter rail service between Union Station, Dallas and the South Irving Transit Center, Irving; and WHEREAS, the Cities of Dallas and Fort Worth (hereinafter "the Cities"), through their administrative agency D/FW RAILTRAN own the rail corridor over which DART commuter rail service would be provided; and WHEREAS, DART, the Cities and the Fort Worth Transportation Authority(hereinafter "the T") have a shared interest in the eventual introduction of commuter rail service throughout the entire rail corridor and to DFW International Airport; and WHEREAS, the Cities have executed agreements with the freight railroads operating on the rail corridor that give the Cities the right to operate commuter rail service; and WHEREAS, the Cities wish to transfer jointly to DART and the T those operating rights. NOW, THEREFORE, BE IT RESOLVED by the Dallas Area Rapid Transit Board of Directors that the Executive Director, or his designee, is authorized to execute the RAILTRAN Interlocal Cooperative Agreement for the provision of commuter rail service between Dallas and Fort Worth with the Cities of Dallas and Fort Worth and with the Fort Worth Transportation Authority. Norma Stanton Kathy Ingle Secretary Chairman A 01-504 1pjb 1- 11119194 is 940 024 APPROVED AS TO FORM: ATTEST: Q_,2-� DART Counsel Roger Snoble Executive Director January 25. 1994 , Date A01-504 1pjb 2- 11/19/94 SENT BY:Xerox Telecopier 7021 ; 3- 1-94 ; 7:55AM ; 2149484118-► 8178718134;# 2 COUNOL CHAMtBM :7A� Ge7 WHEREAS, the City of Dallas and the City of Fort Worth, Texas, municipal corporations (collectively designated as the "Cities") 0 puursuant toetheiD/FW$Railtran contract dated January connecting 8, 984; andie,e ' P . fig, a substantial portion of the cost • of acquiring these Rights-of-Way connecting the Cities was paid from state and federal grants, identified as U14TA Project Tx-3-0082; and WH MW the cities• entered into a contract for the management, operation and maintenance of property acquired for passenger rail transportation, other ratl transportation, additional other public purposes and uses incidental theretol, which contract resulted in the Cities acting colleciivsly .as "RAILTRAN"; and WgRpj=, it would be mutually beneficial to the citizens of the Cities of Dallas and Fort Worth to have commuter . railroad service operating on the Railtran Right-of-Kay between the Cities ("Railtran Corridor") to relieve traffic congestion and aid in attaining federal air quality standards; WE==;, the Burlington Northern Railroad Company ("BN"y and Missour (" i Pacific Railroad ' Company MP") have . certain operating rights for their freight systems over the Railtran Corridors WHERgA3, the Cities have 'entered into agreements with the BN and MP to ensure the priority of commuter railroad service on the Railtran Corridor and the Cities desire to transfer. certain 'rights and responsibilities to the Dallas Area Rapid Transit ("DART") and . the Fort Worth Transportation authority ("T") (collectively designated as the "Transit Authorities") In order to implement commuter railroad service on the Railtran Corridor;' Now, Therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DALLAS: SECTION 1. That the City Manager, upon approval as to form by the City Attorney, is hereby authorized to execute an interlocal agreement with the Transit Authorities which is based. substantially on the terms and pravisions •outlined in the summary of the Proposed agreement attached to this: resolutton as Exhibit A. SECTION 2'. That this rase tnke effect immodiatoly from and after its passage in a th the provisions of the Charter of .the City of Dal cco=dingly �o resolved. . Approved as to form: 1 a SAM LINDSAY, My Abmey sro4r JAN ` - By s� <<srYe 6 , borne - APMoveB A/*110 MANAGNA D Of OWN 0 FlMMi6� �. 4N sssaoi�a 03/-02/94 12:09 N0.771 902 Fwt &jbrt/f'Tl&ll dan Audm IINY EXECUTIVE COMMITTEE ACTION AL AGREEMENT I DATE NuMblR CE SUsiour. of�- 01/20/94•= - 94-05 1N1'ERI-OC BACKGROLIlYD Negotiations have been underway in earnest the last six months to negotiate an Interlocal Agreement (ILA) between the T, DART, and the Cities of Fort Worth and Dallas. The agreement provides access to the RAILTRAN corridor for the Transit Authorities to provide commuter rail service. At the July 15, 1993 (IR 93-25) the Executive Committee fortes to all of on the e"deal pr points""deal points" for the ILA. The negotiated agreement con summary of the agreement, the agreement and risk analysis is attached. in its most general terms, the agreement provides the RAILTRAN corridor to the Transit Authorities to operate commuter rail service. It specifies the contributions of the parties for developbnt a necessary d operation of commuter rail service and gives the Transit Authorities all of the respo to operate the service. It is a 99 year agreement that requires insurance coverages and contains certain provisions regarding disposition of property and termination in the event of discontinuance of commuter rail service. The drafting of the agreement was done by the T's Special Counsel, Morton L. Herman. The Executive Committee's RAILTRAN subcommittee has reviewed the ILA in detail. It was first discussed at a meeting on were drafted and1993 corporated the agreement by changes he other suggested. The wording Chang i„Qnt on January 6, 1944. parties. The Subcommittee again reviewed the agree The ILA has been approved by the RAILTRAN Policy Committee. The DART Board has been briefed on the agreement and is supportive of its passage which is expected to occur on January 25, 1994. The Fort Worth City Council was briefed on the agreement on January 4. 1994 and is expected to adopt it on January 25, 1994. The Dallas 211994 meeting,received its briefing on January 5, 1994 and approved the ILA at their January N It is recommended that the T's Executive Committee: 1. Approve the Interlocal Agreement, and; 2. Authorize the General Manager to execute the agreement on behalf of the T. � !0 3� �Y p�uT1YE eoMumm: SECRETARY"e APPROVED �' p OtMER�ELCIIl64 PATE/ �' 9 City of Fort Wculk Texas Mayor and Council Communication DATE REFERENCE NUMBER LOG NAME PAGE 01/25/94 G-10531 02RAPID 1 of 1 SUBJECT APPROVAL OF AN INTERLOCAL COOPERATIVE AGREEMENT BETWEEN DALLAS, FORT WORTH, FORT WORTH TRANSIT AUTHORITY, AND DALLAS AREA RAPID TRANSIT FOR IMPLEMENTATION OF COMMUTER RAIL SERVICE RECOMMENDATION: The RAILTRAN Policy Committee recommends that the Council authorize the City Manager to execute the attached Interlocal Agreement between the Cities of Fort Worth and Dallas and the Fort Worth Transportation Authority and Dallas Area Rapid Transit (Transit Authorities) for the implementation of commuter rail service on the RAILTRAN Corridor. DISCUSSION: The attached agreement establishes the conditions under which commuter rail service will be implemented on the RAILTRAN Corridor. The 99 year agreement outlines the rights and obligations of the Cities as RAILTRAN and the Transit Authorities. It provides that the Transit Authorities will pay no rent for the Corridor but will be required to pay all costs attributable to commuter rail service. No RAILTRAN revenue or general fund revenue from either city will be required for the operation of commuter rail service. Appropriate insurance will be maintained by all parties as required. All parties commit to the implementation of commuter rail service from Dallas to Irving in 18 months after execution of the Agreement and 24 months thereafter for service to Fort Worth. The T Executive Committee approved the agreement on January 20, 1994. It was approved by the Dallas City Council on January 12, 1994 and will be considered by the DART Board on January 25, 1994. Attachment BT:I Submitted for City Manger's FUND ACCOUNT CENTER AMOUNT CITY SFCRErARY Office by: (to) APPROVIU Originating Department Head: OOUNCIL n , 25 ??N (from) For Additional Information flan Contact: "tv of F00.t Wa Tawas