HomeMy WebLinkAboutContract 40683CI�I`Y SECRETARY
ONTRACT NO..�t �.
TEMPORARY PERMIT AGREEMENT
(CITY/UPRR Culvert Extension Temporary Shoring)
This Temporary Permit Agreement ("Agreement") is made and entered into as of August LL,
2010 (the "Effective Date") by and between the CITY OF FORT WORTH, TEXAS, a Texas
home rule municipality ("City") and UNION PACIFIC RAILROAD COMPANY, a Delaware
corporation ("UPRR").
WHEREAS, City and UPRR are parties to that certain January 83 2Q09 "Formal Agreement", as
amended, among City, UPRR, the Texas Department of Transportation and the North Texas
Tollway Authority (the "NTTA") (as amended, the "Formal Agreement") pursuant to which the
parties established certain agreements and understandings with respect to the design,
construction, operation and maintenance of Southwest Parkway/SH 121 ("SWP/SH 121") over
and across the Davidson Yard, which is owned and operated by the UPRR;
WHEREAS, as result of SWP/SH 121 and the track relocations necessitated thereby, UPRR and
the City have entered into that certain First Amendment to Drainage and Waterway Agreement
dated as of September 23, 2009 (the "Drainage Facilities Extension Agreement") pursuant to
which, in connection with other work being performed by UPRR pursuant to the Formal
Agreement, UPRR has agreed at its expense to extend and make certain modifications to the
northern -most and southern -most ends of certain underground drainage facilities previously
installed by the City within Davidson Yard and owned and maintained by the City (the
"Drainage Facilities Modifications");
WHEREAS, to construct the northern -most portion of the Drainage Facilities Modifications
UPRR's contractor will need to enter certain real property owned by the City immediately north
of Davidson Yard in an area of approximately 20 feet by 300 feet as shown on the sketch
attached hereto as Exhibit A and incorporated herein for all purposes and hereinafter referred to
as "Premises". The City has agreed to grant the temporary access rights of UPRR with respect to
the Premises to enable the performance of the Drainage Facilities Modifications by UPRR for the
benefit of the City, and
NOW, THEREFORE, for and in consideration of the premises, terms, conditions, covenants
and performances contained herein and in the Formal Agreement and the Drainage Facilities
Extension Agreement, City and UPRR hereby enter into this Agreement and agree as follows:
PERMITTED USE OF PREMISES
1. City agrees that UPRR and its contractors, subcontractors, agents, consultants and
employees, may use the Premises for the sole purpose of installing temporary shoring necessary
for the performance of the Drainage Facilities Modifications, including without limitation the
installation of soil nails below the surface of the Premises at the approximate depths shown in the
cross -sections on the Premises, and having the composition and diameters shown on the
drawings prepared by Craig Olden Inc. titled "Union Pacific Railroad Temporary Shoring @
Culvert 249.93, Section 3, Fort Worth, Texas" and consisting of 4 pages, attached hereto as
Exhibit B and incorporated herein for all purposes.
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OFFICIAL RECORD
CITY SECRETARY
FT WORTH, TX
TERM
2. This Agreement commences on the Effective Date and terminates upon the first to occur
of (i) the date of completion of the Drainage Facilities Modifications and (ii) the one hundred
eightieth th) day after the Effectiv
e ve Date (the "Termination Date").
ACCEPTANCE OF PREMISES/DISCLAIMER
3. UPRR acknowledges that, except as otherwise may be agreed by the City and UPRR, it is
occupying the Premises "AS IS" with all faults, including but not limited to any and all
pollutants, asbestos, underground storage tanks and/or any other hazardous materials, and that
City has not made any representations or warranties as to the condition of such Premises. UPRR
hereby waives any and all causes of action, claims, demands, and damages based on any
warranty, express or implied, including but not limited to any implied warranty of suitability for
a particular purpose, any and all warranties of habitability, and any other implied warranties not
expressly set forth in the Agreement. UPRR acknowledges and agrees that UPRR has fully
exercised the right to inspect the Premises for any defects as to the suitability of such
property for the purpose to which UPRR intends to put the Premises. This Agreement is
subject to all covenants, easements, reservations, restrictions and other matters applicable to
the Premises, and UPRR is using the property subject to rights, if any, of any other persons
or entities. Except for the maintenance obligations previously undertaken pursuant to the
Drainage Facilities Extension Agreement, the City will not have to make any expenditure,
incur any monetary obligation or liability of any kind whatsoever in connection with this
Agreement. The provisions of this Section 3 shall survive the termination of this Agreement.
COMPLIANCE WITH LAW
4. UPRR, at its own expense, will comply with all Federal, State, municipal and other laws,
codes, ordinances, rules and regulations applicable to the Premises and UPRR's work on the
Premises. UPRR shall not discharge sewage, garbage, oil or gas on the Premises. UPRR shall
not commit any act or permit any act which creates or may create a nuisance in or upon the
Premises during the term of this Agreement. UPRR, at its sole cost and expense, shall take any
and all corrective action deemed necessary or desirable by City, and as required by any
applicable Federal, State, municipal and other laws, codes, ordinances, rules and regulations to
clean up, remove and abate any and all soil contamination, groundwater contamination or any
other contamination of the Premises caused directly or indirectly by UPRR's release or discharge
of any hazardous, toxic or otherwise harmful substances in, on, under and around the Premises.
Notwithstanding anything herein to the contrary, no part of the Premises shall be used for the
manufacture or storage of flammable, explosive or hazardous materials or for any occupation or
use that City deems to be hazardous to the adjacent highway users, whether City employees or
agents, or the traveling public. The provisions of this Section 4 shall survive the termination of
this Agreement.
TRAFFIC CONTROL PLANS
5. Since UPRR's temporary use of the Premises will not require any interruption of the use
of the adjoining City street, no traffic control plans will be needed.
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RESTORATION OF PREMISES
6. Within ninety (90) days after the Termination Date, UPRR shall at its expense restore the
surface of the Premises to its original condition, free of any damage, to include: (i) removing
any drills, pipes and construction materials from the surface of the Premises and (n) establishing
grass in any surface areas that were disturbed in accordance with the same standard that City
uses for its highway projects. City agrees that UPRR has a right of access to the Premises during
said ninety (90) day period to perform its obligations under this Section 6. The City specifically
agrees that the Section 1, as depicted on Exhibit `B," soil nails installed under the surface of the
Premises pursuant to the rights granted to UPRR under this Agreement may be abandoned in
place on the completion of the Drainage Facilities Modifications and neither UPRR nor its
contractor shall be required to remove them. The Section 2, as depicted on Exhibit "B," soil
nails will be removed by UPRR.
INDEMNITY, DEFF,NSE, AND HOLD HARMLESS
7. It is acknowledged and agreed that City shall not have any liability, responsibility or
obligation with respect to UPRR's use or occupancy of the Premises, including but not limited to
any liability for injuries to UPRR's employees, agents, invitees, or any third parties, or damage
to UPRR's property, or the property of UPRR's employees, agents, invitees, or any third parties,
arising from or as a result of UPRR's use or occupancy of the Premises, or UPRR's failure to
perform its obligations hereunder, except to the extent and in the proportion that the aforesaid
arise out of the negligent acts or omissions of City, its employees, agents, invitees, or others
working by or through City. UPRR expressly covenants and agrees to protect, indemnify,
release, defend and hold City and its officers, directors, representatives, employees, invitees,
agents, and contractors free and harmless from and against any and all claims, demands,
damages, liens, stop notices, liabilities, losses, costs and expenses, including reasonable
attorneys' fees and court costs, actions, causes of action or suits in equity, of whatsoever kind or
nature (collectively, "Liabilities"), arising from or as a result of (directly or indirectly) UPRR's
use or occupancy of the Premises, except to the extent and in the proportion that the aforesaid
arise out of the negligent acts or omissions of City, its employees, agents, invitees, or others
working by or through City.
LIABILITY INSURANCE
8. At all times during this Agreement, UPRR's general contractor for the Drainage Facilities
Modifications, at its sole cost and expense, shall carry commercial general liability insurance
coverage with a company licensed by the Texas Department of Insurance and in a minimum
amount of $1,000,000.00 for each occurrence and $2,000,000.00 general aggregate; which policy
shall insure against bodily injury, death and property damage and shall include (i) coverage for
premises and operations; and (ii) contractual liability coverage insuring the obligations of UPRR
under the terms of this Agreement, including but not limited to the indemnity obligations herein.
The liability insurance policy required herein shall name City as an additional insured and shall
include a waiver of subrogation endorsement in a form acceptable to City. UPRR shall furnish
or cause to be furnished City with a certificate of insurance evidencing all coverage required
herein prior to the commencement of this Agreement. UPRR shall cause the insurance carrier to
certify that such insurance will not be canceled without thirty (30) days prior written notice to
City. UPRR's obligation to cause its general contractor to cause the insurance described in this
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Agreement to continue beyond the term of this Agreement in the event UPRR remains in
possession of the Premises for any reason. City acknowledges that UPRR is self -insured.
DISPUTE RESOLUTION
9. Any dispute between the parties to this Agreement arising out of or relating to this
Agreement, including, without limitation, all rights to receive payments from, or the benefits of
performance by the other party hereto, shall be resolved exclusively as set out in Section III.R.I
of the Formal Agreement.
NOTICES
1 Q. Any notice required or permitted under this Agreement must be in writing and will be
deemed to be delivered (whether actually received or not) when deposited with the United States
Postal Service, postage prepaid, certified mail, return receipt requested, when delivered
personally, or sent by a recognized air courier service, and addressed to the intended recipient at
the address shown in this Agreement. A notice shall be deemed received by a party upon
personal receipt if sent by messenger or by certified mail, or one business day after its timely
deposit if sent with a recognized air carrier service. Any address for notice may be changed by
written notice delivered as provided herein.
UNION PACIFIC RAILROAD
24125 Aldine Westfield Rd.
Spring, Texas 77373
Attention: Ted Haskell
CITY OF FORT WORTH COMPANY
1000 Throckmorton Street
Fort Worth, Texas 76102
Attention: City Manager
GENERAL PROVISIONS
11. If any part of this Agreement for any reason is declared invalid, such decision shall not
affect the validity of any remaining portion, which remaining portion shall remain in full force
and effect as if this Agreement had been executed with the invalid portion eliminated. To the
extent this Agreement conflicts with any other agreement of the parties hereto, including the
Formal Agreement, this Agreement shall control and supersede any prior understandings or
written or oral agreements between the parties concerning the Premises and with respect to the
subject matter contained herein. It is expressly understood that City does not purport hereby to
grant any right, claim, title or easement in or upon highway right of way. This Agreement is
personal to UPRR. It is non -assignable and any attempt to assign this Agreement will terminate
the license privileges granted to UPRR hereunder. Time is of the essence. Unless otherwise
specified, all references to "days" mean calendar days. Business days exclude Saturdays,
Sundays, and legal public holidays. If the date for performance of any obligation falls on a
Saturday, Sunday, or legal public holiday, the date for performance will be the next following
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regular business day. Each party to this Agreement represents to the other that it is fully
authorized to enter into this Agreement and to perform its obligations hereunder.
UNION PACIFIC RAILROAD COMPANY
By: ee. ec. 4 lz
Name:
Lawrence
Title: Assistant Vice President -Law
Date: RAAC�,JJ
c::C1%U
CITY OF FORT WORTH
By:
Fernando
Costa
Assistant City Manager
Date:
APPROVED AS TO FORM:
Amy J. R
Assistant
Attorney
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M&C Review Page 1 of 4
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COUNCIL ACTION: Approved on 9/22/2009
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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
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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-PT2, 55, 56-PT1, 56-PT2, 59, 60, 61, 62-PT1, 62-PT2, 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
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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 $49,870,000 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 and/or 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:
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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.gdf
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)
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