HomeMy WebLinkAboutContract 47352 t4� CITY SECRETARY �7z
RECEIVED CONTRACT N0. ( J��
DEC 2 2 2015
WY OF FORTWORTII PROJECT
CITYSECRETARY REIMBURSEMENT AGREEMENT
CITY OF FORT WORTH, TEXAS — GENERAL ELECTRIC RAILWAY TRACK INSTALLATION
ALLIANCE AIRPORT RUNWAY EXTENSION PROJECT
THIS AGREEMENT is made and entered into by and between the CITY OF FORT
WORTH, a Texas home-rule municipal corporation ("City"), by and through its duly authorized
assistant city manager, as authorized by the City Council, and GE Manufacturing Solutions,
LLC, a Delaware limited liability company with a mailing address of 12850 Three Wide Dr., Fort
Worth, Texas 76177 ("Company").
WITNESSETH:
WHEREAS, Company owns and operates a locomotive manufacturing facility located at
12850 Three Wide Dr., Fort Worth, Texas 76177 ("Facility") in Denton County, Texas; and
WHEREAS, on August 19, 2009, City authorized the execution of a Local Project
Advance Funding Agreement ("LPAFA") with the Texas Department of Transportation
("TxDOT") which provided $80,000,000.00 in local Regional Toll Revenue ("RTR") funds to City
to support the relocation of FM 156 and the Burlington Northern Santa Fe ("BNSF") mainline
track to support the extension of the Alliance Airport runway; and
WHEREAS, the decision by Company to establish the Facility at its current location was
based, in material part, on the plan for Company to be able to acquire and utilize (for purposes
as a test track for locomotives) a portion of the BNSF existing mainline track that would be
available following the BNSF mainline track relocation in support of the Alliance Airport runway
extension, including a railroad crossing bridge over the existing two lane state highway 114; and
WHEREAS, as part of the relocation of FM 156, TxDOT required a new intersection of
FM 156 and SH 114, and the initial plan for such intersection included at-grade railroad
crossings by the existing BNSF mainline track. TxDOT has let for construction the SH 114/FM
156 intersection project which now eliminates the at-grade railroad crossings, as well as the
railroad bridge over the existing two lane SH 114 that was to be part of Company's intended test
track; and
WHEREAS, in an effort to mitigate the impact of the proposed SH 114/FM 156 project
on Company, the North Central Texas Council of Governments ("NCTCOG"), with cooperation
by City, has committed to working in good faith to establish a rail line, totaling a distance of 3.0
miles, for Company's use as a test track for locomotives ("Test Track Project"); and
WHEREAS, the NCTCOG, City, Company, and Denton County developed a plan that
would no longer require use of the railroad bridge over SH 114, and would allow for TxDOT to
eliminate the at-grade railroad crossings as well as remove the railroad bridge, but that would
continue to use a portion of the existing BNSF main line to be abandoned by BNSF as part of
the Alliance Airport Runway extension project, and construct 7,100 feet of new rail line; and
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OFFICIALJe
Reimbursement Agreement CITY���C
City of Fort Worth&GE Manufacturing Solutions, LLCM• WOR
GE Test Track Project
Page 1 of 6 `
WHEREAS, the NCTCOG, acting through the Regional Transportation Council,
approved the use of up to $12,000,000.00 of the RTR funds for the Test Track Project at its
October 9, 2014, regular meeting, and such funds are held in trust by the City and constitute
fully available funds, and are not subject to any further appropriation or authorization of any
kind; and
WHEREAS, Company has agreed to obtain all necessary rights-of-way, acquire any
required land, and lead the design and construction efforts related to the Test Track Project,
subject to reimbursement by City of costs and expenses incurred by the Company as detailed
herein; and
WHEREAS, City has agreed to reimburse Company in an amount up to $12,000,000.00
solely from RTR funds, and not from any other funding source, for the costs and expenses
incurred by Company with respect to the right-of-way acquisition, design and construction
efforts related to the Test Track Project, and such reimbursement has been approved by the
City Council of City pursuant to M&C C-27302 and Ordinance No. 21758-05-2015
("Reimbursement Funds"); and
WHEREAS, City acknowledges that pending completion of the Test Track Project,
Company will be utilizing, on a temporary basis, track owned by BNSF located between SH-114
and Alliance Airport for purposes of track testing locomotives manufactured by Company at the
Facility and Company acknowledges that City is in the process of extending Double Eagle
Boulevard and installing an at-grade crossing across this section of BNSF track connecting to
FM 156; and
WHEREAS, City has further agreed that the Reimbursement Funds may be used to
reimburse Company for costs and expenses incurred by Company with respect to flagging
services required at such Double Eagle Boulevard crossing during track testing of Company's
locomotives during Company's temporary use of such BNSF track; and
WHEREAS, with respect to such flagging services, City and Company agree that: (i)
such flagging services shall be arranged by City during the construction of the Double Eagle
Boulevard crossing, and shall be arranged by Company once such crossing is completed; (ii)
City and Company shall coordinate schedules as needed to ensure appropriate flagging
services are arranged; and (iii) Company shall conduct no locomotive track testing across the
Double Eagle Boulevard crossing during the times of 7:00 — 9:00 a.m. and 4:00 — 6:00 p.m. on
weekdays.
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements
hereinafter set forth, and for other good and valuable consideration the receipt and sufficiency of
which is deemed hereby acknowledged, it is hereby agreed by and between City and Company
as follows:
1. RECITALS:
The recitals, above, are incorporated into this Agreement insofar as they contain
material elements germane to the parties, including, without limitation: (i) the
amount and availability of the Reimbursement Funds for reimbursement of
Company's expenses incurred with respect to land acquisition, design and
construction of the Test Track Project; (ii) the rights and responsibilities of the
Reimbursement Agreement
City of Fort Worth&GE Manufacturing Solutions, LLC
GE Test Track Project
Page 2 of 6
parties with respect to the flagging services and expenses at the Double Eagle
Boulevard crossing; and (iii) the availability of Reimbursement Funds for
reimbursement of Company's expenses incurred with respect to such flagging
services.
2. REIMBURSEMENT BY CITY:
Upon submission by Company to City of statements showing actual expenditures
of Company, or its affiliates, for the Test Track Project, City shall reimburse
Company for such expenditures (up to the aggregate amount of Reimbursement
Funds) within thirty (30) business days of submission via electronic funds transfer
to GE's account specified below:
Deutsche Bank (ACH and Wires)
Account: 50268101
Routing (ABA): 021001033
60 Wall Street
New York, New York 10005
Company shall submit such statements not more often than every 30 calendar
days to City's authorized employee, Bryan Beck, for purposes of reimbursement.
For clarity, Company may periodically submit statements showing actual
expenditures for reimbursement, and in no event shall Company be required to
wait for completion of the Test Track Project for reimbursement.
3. RESPONSIBILITY OF COMPANY: Company will be responsible for: (i)
obtaining all such necessary rights—of-way and acquiring land for the Test Track
Project; and (ii) the design and construction of the Test Track Project, utilizing its
design standards and procurement and letting-procedures for the construction of
an industrial plant railroad.
Company shall have the exclusive right to control the details of its operations and
responsibilities and shall be solely responsible for the acts and omissions of its
officers, agents, servants, employees, contractors, subcontractors, patrons,
licensees and invitees. Company acknowledges that the doctrine of respondeat
superior shall not apply as between City and Company, its officers, agents,
employees, contractors and subcontractors. Company further agrees that
nothing herein shall be construed as the creation of an owner-prime contractor
relationship, partnership, or joint enterprise between City and Company.
4. AUDIT: City shall have the right, upon reasonable notice and during normal
business hours, to audit and obtain copies of the relevant books, records, and
accounts of Company relating to the acquisition, design and construction efforts
to verify the accuracy of the actual costs incurred by Company for the Test Track
Project up to twelve (12) months after the final presented invoice by Company.
5. COVENANT: City covenants and agrees that: (a) it shall not use the
Reimbursement Funds for any other purpose other than to reimburse Company
for the acquisition, design and construction efforts related to the Test Track
Project and for flagging services for the Double Eagle Boulevard crossing as
Reimbursement Agreement
City of Fort Worth&GE Manufacturing Solutions, LLC
GE Test Track Project
Page 3 of 6
described herein; (b) no further action of any kind is required to appropriate, or
authorize the use of, the Reimbursement Funds in accordance with this
Agreement; and (c) this Agreement is subject to Section 271.152 of the Texas
Local Government Code or any successor thereto.
6. INDEMNITY: EACH PARTY ("INDEMNIFYING PARTY") AGREES, TO THE
EXTENT PERMITTED BY LAW, TO DEFEND, INDEMNIFY, AND HOLD THE
OTHER PARTY ("INDEMNIFIED PARTY"), ITS OFFICERS, AGENTS,
SERVANTS, AND EMPLOYEES HARMLESS FROM AND AGAINST ANY AND
ALL CLAIMS, LAWSUITS, ACTIONS, DAMAGES, COSTS, AND EXPENSES
OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY
DAMAGE OR LOSS AND PERSONAL INJURY (INCLUDING DEATH) TO THE
EXTENT DIRECTLY ARISING OUT OF OR BE OCCASIONED BY ANY
NEGLIGENT ACT OR OMISSION OR INTENTIONAL MISCONDUCT OF
INDEMNIFYING PARTY, ITS OFFICERS, AGENTS, ASSOCIATES,
EMPLOYEES, CONTRACTORS, OR SUBCONTRACTORS RELATED TO THE
PERFORMANCE OF THIS AGREEMENT. IN THE EVENT OF JOINT AND
CONCURRENT NEGLIGENCE OF BOTH COMPANY AND CITY,
RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED COMPARATIVELY IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. EXCEPT AS
SET FORTH IN SECTION 5, HERETO, NOTHING HEREIN SHALL BE
CONSTRUED AS A WAIVER OF THE CITY'S GOVERNMENTAL IMMUNITY
AS FURTHER PROVIDED BY THE LAWS OF TEXAS.
7. NO THIRD PARTY RIGHTS: This Agreement is solely for the benefit of the City
and Company and Company's affiliates, and neither the City nor Company
intends by any provision of this Agreement to create any rights in any third-party
beneficiaries or to confer any benefit or enforceable rights, under this Agreement
or otherwise, upon anyone other than the City and Company, including the public
in general.
8. VENUE AND JURISDICTION: This Agreement shall be governed by the laws of
the State of Texas. Venue for any action brought to interpret or enforce, or
arising out of or incident to, the terms of this Agreement shall be in Tarrant
County, Texas or the United States District Court for the Northern District of
Texas, Fort Worth Division.
9. COUNTERPARTS: This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
10. ASSIGNMENT AND SUCCESSORS: Company shall not assign all or any part of
its rights or privileges under this Agreement without the prior written consent of
City, which consent will not be unreasonably withheld. Any attempted
assignment without the City's prior written approval shall be void and constitute a
breach of this Agreement.
11. ENTIRETY OF AGREEMENT; TERM: This Agreement (including its Exhibits)
constitutes the entire agreement between the parties hereto relating to the
subject matter hereof, and no alterations of the terms and conditions of this
Reimbursement Agreement
City of Fort Worth&GE Manufacturing Solutions, LLC
GE Test Track Project
Page 4 of 6
Agreement shall be valid unless in writing and signed by both of the parties
hereto. This Agreement shall be binding upon and inure to the benefit of the
parties hereto, their successors and Company's assigns. This Agreement will
automatically terminate upon the full satisfaction of the parties' obligations
hereunder.
[SIGNATURE PAGE FOLLOWS]
Reimbursement Agreement
City of Fort Worth&GE Manufacturing Solutions,LLC
GE Test Track Project
Page 5 of 6
IN WITNESS WHEREOF, this Agreement shall become effective as of the date it
becomes fully executed by the parties.
GE MANUFACTURING SOLUTIONS, LLC CITY OF FORT WORTH
a Delaware limited liability company
By: I By: .. itlw► o/
Walter ya, Presid` fsus J. Chapa
UAssistant City Manager
Date: �EC 16, Q'g Date: /2 • a z• Zo 7
R mmended by:
I AL
BrUn Beck, P.E.
Re io al Transportation Coordinator
Cit anager's Office
Armroved as to Form and Legality:
Douglas W Black
Sr. Assistant City Attorney
M&C: C-27302 Attest: 000 0
Date: �' ►'f- fTAAA6 ,
p
ry J K r
City Sec ry °° ��o°��'�
OFFICIAL RECORD
Reimbursement Agreement CITY SECRETARY
City of Fort Worth&GE Manufacturing Solutions, LLC FT. WORTH, TX
GE Test Track Project ---- — - —u
Page 6 of 6
City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: on 5/19/2015 -Ordinance No. 21758-Q5 X015
DATE: Tuesday, May 19, 2015 REFERENCE NO.: C-27302
LOG NAME: 02GE TEST TRACK PROJECT
SUBJECT:
Authorize Reimbursement Agreement with General Electric Company or a Division or Affiliate Thereof, in
an Amount Not to Exceed $12,000,000.00 for the GE Test Track Project Associated with the GE
Locomotive Facility in the Vicinity of the Intersection of State Highway 114 and FM 156 and Adopt
Appropriation Ordinance (COUNCIL DISTRICT 7)
RECOMMENDATION:
It is recommended that the City Council:
1. Authorize a transfer in the amount of$12,000,000.00 from the Aviation Grants Fund to the Grant
Capital Projects Fund;
2. Adopt the attached appropriation ordinance increasing estimated receipts and appropriations in the
amount of$12,000,000.00 in the Grant Capital Projects Fund; and
3. Authorize the execution of a Reimbursement Agreement with General Electric Company or a Division
or Affiliate Thereof, in an amount not to exceed $12,000,000.00 for right-of-way acquisition, design and
construction for the GE Test Track Project associated with the GE Locomotive Facility.
DISCUSSION:
On August 19, 2009, (M&C C-23734, City Secretary Contract No. 39068) the City Council authorized the
execution of a Local Project Advance Funding Agreement(LPAFA)with the Texas Department of
Transportation (TxDOT)which provided $80,000,000.00 in local Regional Toll Revenue (RTR) funds to
the City to support the relocation of the FM 156 and the Burlington Northern Santa Fe (BNSF) mainline
track (termed the Multimodal Transportation Improvements)to support the extension of the Alliance
Airport Runway. The parties contemplated a reimbursement of the majority of the $80,000,000.00 to
TxDOT as future revenues became available.
On January 29, 2013, (M&C C-26078, City Secretary Contract No. 44176) the City Council authorized the
execution of a Interlocal Cooperation Agreement with the North Central Texas Council of Governments
(NCTCOG) that provided for the process to reimburse the NCTCOG for$51,300,000.00 of the
$80,000,000.00 as funds became available from future FAA grants directed to Alliance Airport in excess of
funds needed to complete the runway extension work.
The current scope of the LPAFA includes funding for the relocation of the BNSF mainline track and the
relocation of FM 156. Since execution of that Agreement, TxDOT has let for construction the SH 114/FM
156 interchange. This project eliminates the existing at-grade railroad crossing of the existing two lane SH
114 General Electric Company (GE) planned to use to test their locomotives. In an effort to mitigate the
impact of the proposed SH 114/FM 156 project, the NCTCOG, the City, GE and Denton County developed
a plan to use the existing BNSF main line to be abandoned by BNSF as a part of the Alliance Runway
Logname: 02GE TEST TRACK PROJECT Page 1 of 2
extension project, north of SH 114 (9,500 feet) and construct 7,100 feet of new rail line for a total distance
of 3.0 miles for GE's use as a test track. The NCTCOG, acting though the Regional Transportation
Council, approved the use of to $12,000,000.00 of the RTR funds for the GE Test Track Project at its
October 9, 2014 regular meeting.
The funds associated with the improvements contemplated in this action are from excess funds held in
trust by the City and would otherwise be returned to the NCTCOG at the completion of the Multimodal
Transportation Project. No City funds will be expended as part of this project.
This project will not be a capital asset of the City.
FISCAL INFORMATION /CERTIFICATION:
The Financial Management Services Director certifies that upon the approval of the above
recommendation and the adoption of the attached appropriation ordinance, funds will be available in the
Grant Capital Projects Fund.
FUND CENTERS:
TO Fund/Account/Centers FROM Fund/Account/Centers
GR74 476014 020302388880 $12.000.000.00 GR14 538070 055302388000 $12.000.000.00
GR74 539900 020302388800 $12.000.000.00 GR74 539900 055302388000 $12.000.000.00
CERTIFICATIONS:
Submitted for City Manager's Office by: Trikinya Johnson (8476)
Originating Department Head: Fernando Costa (6122)
Additional Information Contact: Bryan Beck (7909)
ATTACHMENTS
1. 02GE TEST TRACK PROJECT GR74 A015R.docx (Public)
2. Available Funds Information.docx (CFW Intemal)
Logname: 02GE TEST TRACK PROJECT Page 2 of 2