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HomeMy WebLinkAboutContract 40233ciry sECRerarty CONTRACT NO. 4pa, BNSF RELOCATION AGREEMENT This BNSF RELOCATION AGREEMENT (this "Agreement") is between the City oI Fort Worth, Texas, (the "L:LUL ") and the BNSF Railway Company ("BNSF") to be effectiveAM A , 2010 (the "Effective Date"). The term of this Agreement shall begin on the Effective Date and terminate on the Second Closing, unless sooner terminated as set forth herein. WHEREAS, all terms with initial capital letters that are not defined in the text of this Agreement shall have the meanings given to them in Section 2 of this Agreement; WHEREAS, the City has a plan (as described in a series of annual Alliance Airport Capital Improvement Plans) to improve Alliance Airport by extending the runway and taxiways, which extensions will necessitate (i) the acquisition by the City of BNSF's interest in the land underlying portions of BNSF's existing main rail line, (ii) the relocation of a portion of BNSF's existing main rail line, (iii) the removal of BNSF Improvements located within portions of BNSF's existing main rail line, (iv) the relocation of Non-BNSF Improvements located within a portion of BNSF's existing main rail line, and (v) the construction of a new BNSF rail line connecting the IMF to the ADF; WHEREAS, BNSF must be compensated for the City's acquisition of BNSF's interest in the land underlying the Existing Main Line Segments; `JVHEREAS, the acquisition bji the li•ty { QAICC� +,.r.,r.+ ' +h rJ i �r„Jorlyir�g i of uivvi s it llGl GJl in �i ie anu ui iuci i n i the Existing Main Line Segments is for a public purpose; WHEREAS, the Parties desire to avoid the uncertainty associated with determining the fair market value of BNSF's interest in the land underlying the Existing Main Line Segments; WHEREAS, the Parties desire to avoid the greater uncertainty of determining damages, if any, to the remainder of the land Cl" improvements owned by BNSF; OFFICIAL RECORD 1115963v8 CITY SECRETARY FT WORTH, TX Page 1 F WHEREAS, the Parties desire to avoid the costs and expenses of condemnation proceedings; WHEREAS, the Parties acknowledge that Section 273.003 of the Texas Local Government Code provides that if it is necessary for a municipality to relocate a railroad facility, the municipality, at its sole expense, shall pay for the actual cost of a comparable replacement facility without enhancement of the facility, after deducting the net salvage value derived from the old facility; WHEREAS, the Parties believe that by proceeding with this Agreement at this time, BNSF's interest in the land underlying the Existing Main Line Segments will be acquired at the lowest cost to the City; WHEREAS, pursuant to 14 CFR Section 151.24(a), this Agreement provides for the acquisition of an interest in land at a cost that is not the actual cost or the amount of an award in eminent domain proceedings; WHEREAS, it is contemplated that all Non-BNSF Improvements located within the Existing Main Line Segment North will be relocated by parties other than BNSF as part of a new state highway interchange project at the intersection of SH 114 and FM 156, which state project, including the relocation of the Non-BNSF Improvements, is not part of this Agreement; WHEREAS, the City's plan to improve Alliance Airport necessitates that the City acquire certain parcels of real property from BNSF for runway improvements and from third parties for construction of the Main Line and Connector Track, which acquisitions the City intends to accomplish by negotiation or, if necessary, by condemnation in accordance with the Uniform Relocation Assistance and Real Property Acquisition Act of 1970 and 49 CFR Part 24, Uniform Relocation Assistance and Real Property for Federal and Federally Assisted Programs; WHEREAS, AN the construction of the Main Line, (ii) the conveyance to the City of BNSF's interest in the land underlying the Existing Main Line Segment North in Page 2 1115963v8 accordance with Section 10 below, (iii) the removal of none, all or any portion of the BNSF Improvements located within the Existing Main Line Segment North, as determined by BNSF in its sole discretion, (iv) the conveyance to the City of BNSF's interest in the land underlying the Existing Main Line Segment South in accordance with Section 10 below, (v) the removal of none, all, or any portion of the BNSF Improvements located within the Existing Main Line Segment South, as determined by BNSF in its sole discretion, (vi) the construction of the Connector Track; and (vi) all other activities reasonably necessary to accomplish the foregoing are hereinafter collectively referred to as the "BNSF Relocation"; WHEREAS, all work that is necessary to complete the BNSF Relocation is hereinafter collectively referred to as the "BNSF Relocation Work". The BNSF Relocation Work shall not include any removal or relocation of Non-BNSF Improvements from within the Existing Main Line Segments, and BNSF shall have no obligation with respect to any Non-BNSF Improvements within the Existing Main Line Segments; WHEREAS, the actual cost to perform the BNSF Relocation Work and complete the BNSF Relocation (including, without limitation, the costs of all items identified in the BNSF Final Relocation Plans and the cost of obtaining the BNSF Regulatory Permits) is hereinafter referred to as the "BNSF Relocation Cost"; WHEREAS, the BNSF Consideration and City Relocation Cost are intended to be the actual cost of a comparable replacement facility without enhancement, after deducting the net salvage value derived from the old facility (as reasonably determined by BNSF); WHEREAS, (i) the acquisition, by negotiated purchase or condemnation, of right- of-way for the Main Line and the Connector Track, (ii) the removal and relocation of all Non-BNSF Improvements and all remaining BNSF Improvements from within the Existing Main Line Segment South, (iii) the curing of title objections to BNSF's interest in the land underlying the Existing Main Line Segment South, (iv) the relocation of John Page 3 1115963v8 Day Road/Barnwood Drive and Keller -Haslet Road, and (v) all other activities reasonably necessary to accomplish the foregoing are hereinafter collectively referred to as the "City Relocation Work' , WHEREAS, the actual cost to perform the City Relocation Work (including, without limitation, the cost of all items identified in the City Final Relocation Plans, the cost of obtaining the City Regulatory Permits, and the cost to cure Objections) is hereinafter referred to as the "City Relocation Cost' , WHEREAS, if Public Funds are insufficient to pay the full amount of the BNSF Relocation Cost and the City Relocation Cost, the City shall seek additional funds including, but not limited to, additional funds from the FAA; WHEREAS, subject to the terms of this Agreement, the Parties intend that (i) BNSF will obtain the BNSF Regulatory Permits for and perform the BNSF Relocation Work in accordance with the BNSF Final Relocation Plans, and (ii) the City will perform the City Relocation Work in accordance with the City Final Relocation Plans and obtain the City Regulatory Permits; WHEREAS, subject to the terms of this Agreement, the City will pay for the BNSF Relocation Cost and City Relocation Cost from Public Funds; WHEREAS, the Airport Manager, on behalf of the City, has management oversight responsibility for the Airport Improvement Project; and WHEREAS, the Project Manager, on behalf of the City, has project management responsibility for the Airport Improvement Project. NOW THEREFORE, for good and valuable consideration which the Parties acknowledge, and for the mutual covenants of the Parties as set forth in this Agreement, the Parties agree as follows: 1. RECITALS. The recitals set forth in the preceding "WHEREAS" clauses form the basis upon which the Parties have entered into this Agreement and establish the intent Page 4 1115963v8 of the Parties in entering into this Agreement. If it becomes necessary to interpret any provision of this Agreement, the intent of the Parties, as evidenced by the recitals, shall be taken into consideration and, to the maximum extent possible, given effect. 2. DEFINTIONS. The Parties acknowledge and agree that the definitions contained in this Section 2 also include certain covenants binding on the Parties. "ADF" means BNSF's existing automobile distribution facility. "Agreement "means this BNSF Relocation Agreement. "Airport Improvement Project" means the BNSF Relocation Work and the City Relocation Work together with the runway and taxiway extensions at Alliance Airport, all as more fully described in the annual Alliance Airport Capital Improvement Plans, as amended. "Airport Manager" means Alliance Air Management, Ltd. "Alliance Airport" means the Fort Worth Alliance Airport. "BNSF" means BNSF Railway Company, a Delaware corporation. "BNSF Consideration" is defined in Section 9.a of this Agreement. "BNSF Final Relocation Plans" means final engineering plans, drawings, and specifications based on 100% design for the BNSF Relocation Work (prepared in accordance with all applicable laws, regulations, rules, policies, and procedures, including the BNSF Regulatory Permits), a final itemized estimate of the BNSF Relocation Cost (including, but not limited to, the cost of Property Information, any cost to BNSF of curing Objections, BNSF's outside attorneys' and consultants' fees, and BNSF's costs to effectuate the conveyances required by Section 10 of this Agreement), and final schedules to complete the BNSF Relocation Work. The BNSF Relocation Cost shall include a contingency of 10%, and BNSF shall have the right to apply the contingency and any cost savings from any line items towards cost overruns on other Page 5 1115963v8 line items without the City's consent. The BNSF Final Relocation Plans shall be deemed amended by any Change Order without requiring a formal amendment to this Agreement. "BNSF Improvements" mean all improvements that are located wn the Existing Main Line Segments and that are owned or controlled by BNSF or its Related Entities. "BNSF Regulatory Permits" means all permits, authorizations, consents, exemptions, and approvals required from any regulatory entity, agency, or organization for any of the BNSF Relocation Work and for the abandonment of BNSF's entire existing main line between the points BNSF's existing main line intersects with the Main Line, including, but not limited to, the dedications and conveyances required by this Agreement and any necessary approvals from the Surface Transportation Board, but specifically excluding the City Regulatory Permits. "BNSF Relocation" is defined in the recitals above. "BNSF Relocation Cost" is defined in the recitals above. "BNSF Relocation Work" is defined in the recitals above. "Change Order" means any written amendment to any Relocation Work Contract or any other written agreement between the City and BNSF that changes the BNSF Final Relocation Plans, BNSF Relocation Work, or the BNSF Relocation Cost; provided that the con sent and joinder of tI le City VVIII not be necessary for any Change Order deemed reasonably necessary by BNSF to perform the BNSF Relocation Work, provided such Change Order will not increase the BNSF Relocation Cost over the total amount set forth in the BNSF Final Relocation Plans, including any contingency. In the event any Change Order deemed reasonably necessary by BNSF will cause an increase in the BNSF Relocation Cost as set forth in the BNSF Final Relocation Plans, then BNSF and City shall promptly meet to discuss same and each shall use Commercially Reasonable Efforts to reach a mutually satisfactory decision on the proposed Change Order. If the Parties cannot reach a decision on the proposed Change Order within 10 days after 1115963v8 BNSF first proposed the Change Order to the City, then BNSF shall have the right to suspend the BNSF Relocation Work until such issue is resolved. "ultv" means the City of Fort Worth, Texas. "City Attorney" means the City Attorney or any Assistant City Attorney of the City. "City Final Relocation Plans" means final engineering plans, drawings, and specifications based on 100% design for the City Relocation Work (prepared in accordance with all applicable laws, regulations, rules, policies, and procedures, including City Regulatory Permits), a final itemized estimate of the City Relocation Cost, and final schedules to complete the City Relocation Work. The City Relocation Cost shall include a contingency of up to 20% as applied to the acquisition of the Replacement Property, and a contingency of up to 10% for (i) title curative efforts applicable to the Existing Main Line Segment South; (ii) the removal and relocation of BNSF Improvements and Non-BNSF Improvements from within the Existing Main Line Segment South; and (iii) the relocation of John Day Road/Barnwood Drive and Keller Haslet Road. The City shall have the right, without BNSF's consent, to apply cost savings from any line item toward cost overruns on other line items. "City Regulatory Permits" means all permits, authorizations, consents, exemptions, and approvals required from the FAA (including, but not limited to, the Supplemental Environmental Assessment) or that pertain to environmental matters for any of the BNSF Relnnatinn In/ork or City Relocation Work, inch iding, but not limited to, the acquisitions and conveyances required by this Agreement. "City Relocation Work" is defined in the recitals above. "City Relocation Cost" is defined in the recitals above. "Closing" and "Closings" are defined in Section 10.c of this Agreement. Page 7 1115963v8 t "Commercially Reasonable Efforts" mean good faith efforts which, taking into consideration all surrounding facts and circumstances, are considered ordinary and customary in the industry, including modest expenditures of time and money. "Conditions Precedent" are defined in Section 8 of this Agreement. "Connector Track" means a new rail line connecting the IMF to the ADF, including the necessary relocation or modification of all existing public and private utilities impacted by the Connector Track, as generally depicted on Exhibit A. 'Contractor" means any person or entity hired or employed by BNSF to perform any of the BNSF Relocation Work, including general contractors and each of their respective sub -contractors. "Default" is defined in Section 12 of this Agreement. "Department" means the Department of Aviation of the City. "Draw Request" means a written request from BNSF to the City requesting reimbursement for portions of the BNSF Relocation Cost paid or incurred by BNSF in performing the BNSF Relocation Work. Draw Requests shall (i) be in materially the same form as the sample previously delivered to City, (ii) (where practical) separately identify the cost for work performed in Denton County from work performed in Tarrant County, and (iii) include reasonable back-up documentation, evidence of payment, lien releases from any Contractors who are not BNSF employees, and certificates of completion (if applicable). "Due Diligence Materials" is defined in Section 10.a(3) of this Agreement. "Effective Date" means the date of this Agreement first set forth above. "Existing Main Line Segment North" means that portion of BNSF's existing main rail line shown on Exhibit B and labeled as such. 1115963v8 "Existing Main Line Segment South" means that portion of BNSF's existing main rail line shown on Exhibit B and labeled as such. "Existing Main Line Segments" means the Existing Main Line Segment North and Existing Main Line Segment South. "FAA" means the U.S. Department of Transportation, Federal Aviation Administration. "Final Relocation Plans" means, collectively, the BNSF Final Relocation Plans and the City Final Relocation Plans. "First Closing" is defined in Section 10.c (1) of this Agreement. "IMF" means BNSF's existing Alliance intermodal facility. "Main Line" means BNSF's relocated main line, including the necessary relocation or modification of all existing public and private utilities impacted by the Main Line, as generally depicted on Exhibit A . "Non-BNSF Improvements" mean all improvements other than the BNSF Improvements (including, but not limited to, public and private utilities) that are located within the Existing Main Line Segments. "Notice" means any notice, deliverable, or other communication required by, contemplated by, or otherwise given under this Agreement in accordance with Section 11 of this Agreement. "Objections" mean written objections of the City to the Property Information or any matter shown or referenced in any of the Property Information. All monetary liens and encumbrances (except liens for current year taxes, not yet due and payable) shall be Objections. "Party" and "Parties" mean the City and BNSF, individually and collectively. Page 9 1115963v8 'Permitted Exceptions" mean, with respect to any interest in real property, (i) any matter shown or referenced in the applicable Property Information to which the City does not object within the time periods required by this Agreement, (ii) any Objection that the City waives in writing, and (iii) the BNSF Improvements and Non-BNSF Improvements. "Phase I" is defined in Section 10.a(3) of this Agreement. "Preliminary Relocation Plans" means preliminary engineering plans, drawings, and specifications for the BNSF Relocation Work and City Relocation Work prepared by the Project Manager, a preliminary itemized estimate of the BNSF Relocation Cost and City Relocation Cost, and preliminary schedules to complete the BNSF Relocation Work and City Relocation Work. "Project Manager" means the Fort Worth office of Jacobs Engineering Group, Inc. "Property Information" means the following information regarding the Existing Main Line Segments: (i) a metes and bounds description of such segments; (ii) a title commitment covering such segments (including legible copies of all documents or instruments shown or referenced therein) issued by the Title Company; (iii) a survey of such segments in form, including certification, reasonably approved by the City Attorney; and (iv) all written information in the possession or direct control of BNSF's designated document custodian which relate to (A) any environmental assessments and reports, whether prepared in-house or by third parties, (B) any contracts or agreements relating to such real property nor ceniices being prnviried or to he prnvHed to same, (C) any soil or engineering reports, and (D) any written notices, reports, citations, orders from any governmental authority or any applications to any governmental authority with respect to use of the real property, including as to clauses (A) — (D), any new information coming into the possession of BNSF's designated document custodian meeting the criteria in such clauses. Page 10 1115963v8 "Public Funds" means current and future grant funds received by the City from the FAA and any other funds received by the City that may be used to pay all or any .portion of the BNSF Relocation Cost and City Relocation Cost. "Related Enes" means, as to BNSF, its predecessors, successors, assigns, subsidiaries, parent or related corporations, related partnerships, and other related entities of any kind which are directly engaged in railroad operations. "Relocation Work Contract" means a contract, agreement, or other written arrangement or understanding of any kind with a Contractor (including all exhibits and attachments thereto) pursuant to which the BNSF Relocation Work will be performed in accordance with the BNSF Final Relocation Plans. "Replacement Property" is defined in Section 8.a of this Agreement. "RoE" is defined in Section 8.a(3) of this Agreement. "Second Closing" is defined in Section 10.c (2) of this Agreement. "Supplemental Environmental Assessment" means the "Fort Worth Alliance Airport Supplemental Environmental Assessment for Alliance Airport Runway Extension Project Proposed New Alignment of the Burlington Northern Santa Fe (BNSF) Railway Tarrant and Denton Counties, Texas December 2009." "Title Company" means Rattikin Title Company, 201 Main Street, Suite 800, Fort Worth, Texas 76102, Attn: Larry Townsend (817-334-1324). "Title Work" is defined in Section 10.a(3) of this Agreement. "Vacated Rights of Way" is defined in Section 10.a (2) of this Agreement. "Writ" is defined in Section 8.a(3) of this Agreement. Page 11 1115963v8 3. BNSF OBLIGATIONS. a. BNSF shall be responsible for damages incurred by City arising solely from a Default by BNSF under this Agreement. b. BNSF shall be responsible for the adjustment, removal, or relocation of 1 any utility facilities under or within the Main Line and Connector Track, the costs of which shall be included in the BNSF Relocation Cost. c. In performing the BNSF Relocation Work, BNSF shall comply with all applicable laws, statutes, ordinances, rules, regulations, orders and decrees, including the BNSF Regulatory Permits; however, (i) the City shall be responsible for compliance with all environmental requirements, and (ii) nothing in this Agreement shall be construed as a waiver of any preemption right that BNSF may have to the applicability of any of the foregoing. d. If any of the BNSF Relocation Work is to be performed by BNSF on state right-of-way, BNSF shall cause the Contractors to provide evidence of insurance and maintain coverage at the limits customarily required by BNSF of its Contractors. e. All books and records of BNSF related to the BNSF Relocation Work will be made available to the City for 120 days after completion of the BNSF Relocation Work for the purpose of conducting an audit. f. �;pon Completion, BNSF shall be respol ISlble for mail itei aiiCe Of the i�iaini Line and Connector Track. g. BNSF shall allow City and its agents access to the BNSF Relocation Work, provided such access is in compliance with BNSF's standard right of entry agreements and safety procedures. h. BNSF shall keep complete and accurate records related to the BNSF Relocation Work for four years after completion of the BNSF Relocation Work. Page 12 1115963v8 i. BNSF shall provide City spending reports in BNSF's standard form and otherwise in a form required by the Draw Requests. 4. PRELIMINARY RELOCATION PLANS. Concurrently herewith, the City shall cause the Project Manager to deliver the Preliminary Relocation Plans to BNSF. BNSF shall have 30 days from the Effective Date to review the Preliminary Relocation Plans and provide written comments to the Project Manager and Airport Manager. The failure of BNSF to provide written comments within such 30-day period shall constitute approval of the Preliminary Relocation Plans by BNSF. Any approval by BNSF shall mean only that the applicable subject matter meets the subjective standards of BNSF, and such approval by BNSF shall not be deemed a representation or warranty that any plans and specifications are structurally sound and appropriate or that any plans and specifications meet applicable regulations, laws, statutes or local ordinances and/or building codes. The City shall not have any right to rely on any approval by BNSF, and will be solely responsible for making its own determination as to whether the Preliminary Relocation Plans are adequate and meet its needs. The City and BNSF shall use their respective Commercially Reasonable Efforts to agree upon the Preliminary Relocation Plans as soon as possible; however, if they are unable to agree, the decision of BNSF shall control provided (i) the work resulting from the BNSF decision is performed in a manner that is consistent with the procedures and standards that BNSF would otherwise normally use in the ordinary course of its railroad business, and (ii) the Parties agree that -the costs and expenses of the work resulting from the BNSF decision will be eligible for reimbursement from Public Funds. 5. FINAL RELOCATION PLANS. Within 120 days after the earlier of the date the Parties agree on the Preliminary Relocation Plans or the date the Preliminary Relocation Plans are deemed approved by BNSF, BNSF shall have identified a final alignment for the Main Line and Connector Track with enough certainty and specificity to allow the Project Manager to begin preparing legal descriptions and surveys of the Replacement Property. Within 270 days after the earlier of the date the Parties agree on the Preliminary Relocation Plans or the date the Preliminary Relocation Plans are Page 13 1115963v8 deemed approved by BNSF, BNSF shall deliver the BNSF Final Relocation Plans to the Project Manager, and City shall deliver the City Final Relocation Plans to BNSF. City acknowledges that BNSF has estimated that preparation of the BNSF Final Relocation Plans will take approximately 270 days at a cost of approximately $2,000,000. City authorizes BNSF to commence preparation of the BNSF Final Relocation Plans, and agrees to reimburse BNSF for its costs of same and other BNSF Relocation Costs as set out in Section 9 below. Notwithstanding anything to the contrary contained herein, once BNSF receives such reimbursement, BNSF shall have no obligation to repay such reimbursement to the City even if such costs are disallowed or this Agreement is terminated. The City shall have 30 days to review the BNSF Final Relocation Plans and provide written comments to BNSF, and BNSF shall have 30 days to review the City Final Relocation Plans and provide written comments to City. The failure of the City or BNSF, as the case may be, to provide written comments within such 30-day period shall constitute approval of the BNSF Final Relocation Plans by the City or approval of the City Final Relocation Plans by BNSF, as the case may be. The City and BNSF shall use their respective Commercially Reasonable Efforts to agree upon the Final Relocation Plans as soon as possible. If notwithstanding their respective Commercially Reasonable Efforts, the Parties cannot agree upon the Final Relocation Plans, then either Party may terminate this Agreement without Notice of Default or opportunity to cure; whereupon, neither Party shall have any further duties, obligations, rights, or remedies under this Agreement other than the City's obligation to reimburse BNSF for its costs in preparing the BNSF Final Relocation Plans and the other BNSF Relocation Costs as set out above and in Section 9 below, which amount shall be due to BNSF even if this Agreement is terminated. 6. RELOCATION WORK CONTRACTS. The BNSF Relocation Work will be performed under Relocation Work Contracts reasonably approved by the Project Manager and Airport Manager. Relocation Work Contracts shall be awarded or otherwise made effective as soon as possible after satisfaction of all Conditions Precedent, and provided all Conditions Precedent have been satisfied on or before June 1, 2011, such Relocation Work Contracts shall be awarded no later than 1115963v8 September 17, 2011. If the Relocation Work Contracts are not awarded or made effective by September 17, 2011, and if sufficient Public Funds to pay the BNSF Relocation Cost and City Relocation Cost are no longer available, then the City may terminate this Agreement upon Notice to BNSF without regard to force majeure and without opportunity to cure; whereupon, neither Party shall have any further duties, obligations rights, or remedies under this Agreement (except for the City's obligation to reimburse BNSF for the costs of preparing the BNSF Final Relocation Plans and other BNSF Relocation Costs as set out in Section 5 above). All Relocation Work Contracts shall require the Contractor to: (a) complete the work covered by the contract in accordance with specific, detailed performance milestones consistent with the final schedules included in the BNSF Final Relocation Plans (subject to force majeure); (b) give the Project Manager and Airport Manager immediate Notice of any fact or circumstance (including any claim by the Contractor of an event of force majeure) that would result in the Contractor's failure or inability to meet any performance milestone (including a detailed description of such facts or circumstances and a plan of action to avoid or mitigate the effects of any delay); (c) give the Project Manager and Airport Manager immediate Notice of any fact or circumstance which, with the giving of notice or passage of time, could, in the judgment of the Contractor, constitute an event of default under the Relocation Work Contract; (d) give the Project Manager and Airport Manager immediate Notice of any notice or communication given or received by the Contractor under the Relocation Work Contract alleging an event of default by either party under the contract (in which case the Project Manager and Airport Manager shall have access to all non -confidential and non -privileged information within the Contractor's possession or control regarding the alleged default and the right to participate in the resolution of the alleged default), and (e) where practical, separately identify the cost of work performed in Denton County from work performed in Tarrant County. A copy of each Relocation Work Contract, including amendments and Change Orders thereto, shall be provided to the Project Manager and Airport Manager within 10 days after each contract, amendment, or Change Order is fully executed or otherwise made effective. Notwithstanding the foregoing, BNSF has the right, in its sole Page 15 1115963v8 discretion, to decide whether the BNSF Relocation Work or any part thereof (including, but not limited to, engineering, construction management, grading and demolition) will be performed by third -party contractors or by BNSF employees working under applicable collective bargaining agreements. Any work performed by BNSF employees shall be deemed to satisfy the foregoing contract award requirement and all other requirements herein regarding Relocation Work Contracts. BNSF shall supply the documentation required for Draw Requests in connection with such work. 7. STATUS REPORTS. a. BNSF Status Reports. BNSF shall provide written reports to the Project Manager and Airport Manager no less frequently than monthly regarding the status of the BNSF Relocation Work and containing such information as the Project Manager and Airport Manager may reasonably request from time to time including, but not limited to, (i) a detailed comparison of the work completed under each Relocation Work Contract with the specific, detailed performance milestones for such work as set forth in the contract, and (ii) any proposed or anticipated Change Orders. BNSF shall use Commercially Reasonable Efforts to give prompt Notice to the Project Manager and Airport Manager of any fact or circumstance which, with the giving of notice or passage of time, could, in the judgment of BNSF, constitute an event of default under any Relocation Work Contract. BNSF shall also use Commercially Reasonable Efforts to give prompt Notice to the Project Manager and Airport Manager of any notice or communication given or received by BNSF alleging an event of default under any Relocation Work Contract; and the Project Manager and Airport Manager shall have access to all non -confidential and non -privileged information within BNSF's possession or control regarding the alleged default and the right to participate, at its sole cost, in the resolution of the alleged default. b. City Status Reports. The City shall cause the Project Manager to provide written reports to BNSF no less frequently than monthly regarding the status of the City Relocation Work, including (i) an itemized accounting of the City Relocation Costs that Page 16 1115963v8 have been paid from Public Funds and that remain to be paid from Public Funds to complete the City Relocation Work and BNSF Relocation Work, and (ii) any anticipated changes to the schedule for performance of the City Relocation Work. 8. COMPLETION OF WORK. a. BNSF shall commence, and thereafter diligently pursue to completion using its Commercially Reasonable Efforts, the BNSF Relocation Work in accordance with the BNSF Final Relocation Plans when all of the following conditions (collectively, the "Conditions Precedent") have been satisfied: (1) The City and BNSF have agreed upon the amount to be paid by City to BNSF at the Second Closing as cash compensation for BNCC) s real property interests; (2) The amount of Public Funds available exceeds the BNSF Relocation Cost and City Relocation Cost; (3) Pursuant to Section 10 below, the City has either (i) conveyed to BNSF by deed or easement as specified by BNSF, or (ii) provided to BNSF an unqualified, permanent right -of -entry in form reasonably satisfactory to BNSF ("RoE") to, or (iii) provided to BNSF a writ of possession ("Writ") to, all parcels (whether acquired from third parties or already owned by the City) necessary for BNSF to construct the Main Line and Connector Track as depicted on the BNSF Final Relocation Plans (collectively, the "Replacement Property"); (4) The City has awarded construction contracts to relocate John Day Road/Barnwood Drive and Keller Haslet Road in a manner that effectuates grade separation from the Main Line; and (5) BNSF has obtained all the BNSF Regulatory Permits necessary to commence the BNSF Relocation Work and has approved the City Final Relocation Plans and any terms or conditions of the City Regulatory Permits that impact BNSF, and City has approved the BNSF Final Relocation Plans. Page 17 1115963v8 The City acknowledges and agrees that any delay in satisfying any Condition Precedent could delay the project schedule for a longer period of time than the actual number of days of delay in satisfying the Condition Precedent if such delay causes BNSF to miss applicable construction seasons or impacts BNSF work force schedules. b. If the Conditions Precedent have not been satisfied or, with regard to items (3) and (4), "substantially" satisfied, on or before June 1, 2011, BNSF shall give Notice of such failure to the City, and the City shall have 15 days within which to satisfy or substantially satisfy, as the case may be, the conditions. If the City fails to satisfy or substantially satisfy, as the case may be, the Conditions Precedent within such 15-day period, BNSF may suspend performance of this Agreement. "Substantial" satisfaction means (i) with respect to the Replacement Property as set out in condition (3), that BNSF reasonably determines that the parcels of Replacement Property conveyed to BNSF or for which the City has provided an RoE or Writ will allow BNSF to begin the BNSF Relocation Work and pursue completion in phases with minimum impact on overall schedule, and (ii) with respect to the relocation of John Day Road/Barnwood Drive and Keller Haslet Road as set out in condition (4), that BNSF reasonably determines that notwithstanding minor delays in the award of construction contracts, BNSF will nevertheless be able to begin the BNSF Relocation Work and pursue completion in phases with minimum impact on overall schedule. c. Any work performed by the City or its agents in connection with the relocation of John Day Road/Barnwood Drive and Keller Haslet Road that requires access to property owned or controlled by BNSF shall be performed pursuant to a separate Construction and Maintenance Agreement between BNSF and the City, including BNSF's standard "Contractor Requirements" and "Utility Accommodation Policy." In the event of any direct conflict between this Agreement and such separate agreement, requirements, and policies, this Agreement shall control, provided that if such separate agreement, requirements, and policies contain specific language pertaining to areas not addressed herein, such separate agreement, requirements, and policies shall control. Existing at -grade crossings of BNSF's current rail line into the IMF 1115963v8 shall continue over and across the Main Line; provided, however, the existing at -grade vehicular or pedestrian crossings of BNSF's existing main line at John Day Road/Barnwood Drive and Keller Haslet Road shall be reconstructed as grade separated across the Main Line and Connector Track. No new at -grade vehicular or pedestrian crossings of the Main Line or Connector Track shall be permitted. d. Upon completion of the BNSF Relocation Work, in phases if applicable, BNSF shall execute such certificates and other instruments evidencing completion as may be reasonably requested by the Project Manager or Airport Manager and approved by BNSF. e. Notwithstanding anything to the contrary contained in this Agreement, if BNSF reasonably determines at any time that there are insufficient Public Funds to pay the entire BNSF Relocation Cost and City Relocation Cost, BNSF may send Notice to City, and if BNSF reasonably determines that such insufficiency has not been remedied within sixty (60) days after delivery of such Notice, BNSF may then suspend the BNSF Relocation Work until BNSF is reasonably satisfied that sufficient Public Funds are or will be made available. BNSF further has the unilateral right to suspend the BNSF Relocation Work if any Draw Request that BNSF reasonably determines is otherwise eligible for payment is not paid within thirty (30) days after it is submitted to the Project Manager in accordance with this Agreement, or the City and BNSF cannot agree on any proposed Change Order that requires the City's consent within 10 days after BNSF proposes the Change Order. f. Notwithstanding anything to the contrary contained in this Agreement, in the event BNSF has not obtained all of the BNSF Regulatory Permits by December 31, 2011, BNSF shall have the right to suspend the BNSF Relocation Work until BNSF has obtained all of the BNSF Regulatory Permits. Page 19 1115963v8 9. PAYMENT OF BNSF RELOCATION COST. a. Reimbursement to BNSF of the BNSF Relocation Cost, payment to BNSF of the cash compensation (to be agreed upon) for BNSF's real property interests, and the conveyance to BNSF of the Replacement Property in accordance with this Agreement (collectively, the "BNSF Consideration"), shall constitute full compensation to BNSF for the City's acquisition of BNSF's interest in the land underlying the Existing Main Line Segments and causing the relocation of a portion of BNSF's existing main rail line. The BNSF Consideration is a customary, fair, and reasonable measure of the just compensation to which BNSF is entitled for such interests and relocation. BNSF knowingly and voluntarily agrees to look solely to this Agreement for payment of the BNSF Consideration and waives all other compensation, including compensation based on an appraisal, for the value of BNSF's interest in the land underlying the Existing Main Line Segments and the costs of relocating a portion of BNSF's existing main rail line. b. BNSF will perform the BNSF Relocation Work or portions thereof on an actual cost basis when BNSF, in its sole discretion, determines it is required by its labor agreements to perform such work with its own employees working under applicable collective bargaining agreements. The City shall reimburse BNSF for the BNSF Relocation Cost in accordance with this Agreement. The parties agree that BNSF's preliminary engineering, design, and contract preparation costs, and the costs and fees of its outside consultants and attorneys, are part of the BNSF Relocation Cost even though such work may have preceded the date of this Agreement. c. The City agrees to reimburse BNSF for work of an emergency nature caused by the City or the City's contractors in connection with the Airport Improvement Project which BNSF deems is reasonably necessary for the immediate restoration of railroad operations or for the protection of persons or BNSF property. Such work may be performed by BNSF without prior approval of the City, and the City agrees to fully reimburse BNSF for all such emergency work. Page 20 1115963v8 d. BNSF may charge, as part of the BNSF Relocation Cost, for insurance premiums (excluding self-insurance expenses) to cover the cost of employers liability insurance (including, without limitation, liability under the Federal Employer's Liability Act) in connection with the construction of the BNSF Relocation Work. e. From and after the Effective Date of this Agreement, BNSF has the right to submit monthly Draw Requests to the Project Manager. The City shall cause all eligible costs to be reimbursed to BNSF. The City will cause the Project Manager to review each Draw Request and recommend to the Airport Manager within 10 days after receiving each Draw Request the portion of the Draw Request that should be paid and the portion denied based on whether the costs covered by the Draw Request are eligible for reimbursement from Public Funds. The City shall cause the Airport Manager to review the Project Manager's recommendation and recommend to the Department within five days after receiving the Project Manager's recommendation the portion of the Draw Request that should be paid and the portion denied based on whether the costs covered by the Draw Request are eligible for reimbursement from Public Funds. The City shall cause the Department to review the Airport Manager's recommendation within 10 days after receiving it and within such time period the City shall cause to be paid to BNSF by wire transfer of immediately available funds the portion of the Draw Request that is eligible for reimbursement from Public Funds. In addition to any other remedies available to BNSF under this Agreement, if any Draw Request otherwise eligible for payment is not paid within 25 days after the date the request is submitted to the Project Manager, BNSF will assess a finance charge of .033% per day (12% per annum) on any unpaid amount due under the Draw Request. The finance charge shall continue to accrue daily until the date payment is received by BNSF, not the date payment is made. Finance charges will be assessed on delinquent sums as of the end of the month and will be reduced by amounts in dispute and any unposted payments received by the month's end. Finance charges will be noted on Draw Requests sent to the City under this Section. Page 21 1115963v8 f. The decision as to whether to pay a Draw Request, in whole or in part, from Public Funds shall be made by the Department; however, the Department shall use Commercially Reasonably Efforts to maximize the availability of funds to pay the actual and final BNSF Relocation Cost. For purposes of this Agreement, costs shall be eligible for reimbursement if at the time the Draw Request is submitted to the Project Manager the costs set forth therein are included in the BNSF Final Relocation Plans as part of the BNSF Relocation Cost. g. Any denial of all or any part of a Draw Request shall be given to BNSF in writing and shall set forth, in detail, the basis for denial. A denial does not prejudice the right of BNSF to correct any deficiency or mistake and resubmit the denied amount for payment as part of a subsequent Draw Request. h. City agrees that it shall keep all Public Funds separate and apart from any other funds of the City, and shall first use the Public Funds solely to pay the full amount of the BNSF Relocation Cost and City Relocation Cost and for no other purpose. The City, acting through the Airport Manager, will seek additional Public Funds if needed to pay the BNSF Relocation Cost. i. If any part of the BNSF Relocation Cost already paid with Public Funds should be disallowed as a result of a Default by BNSF under this Agreement so as to require the City to repay such part, then BNSF shall repay the City such part. BNSF shall have the right, at its expense, to represent its interests with regard to any matter concerning the BNSF Relocation Work or payment of the BNSF Relocation Cost, and City agrees to fully cooperate with and assist BNSF in justifying the allowance of the entire BNSF Relocation Cost. BNSF shall have no obligation to repay any amount previously paid to BNSF, except as a result of a Default by BNSF under this Agreement as set forth above. j. The City represents and warrants to BNSF that the City will comply with all conditions and requirements regarding the use of Public Funds, and there are or will be Page 22 1115963v8 no conditions or requirements that BNSF will be responsible to satisfy or implement regarding the use of Public Funds. 10. LAND EXCHANGE. The Existing Mainline Segments shall be conveyed to the City by BNSF and the Replacement Property shall be acquired by the City and then conveyed to BNSF pursuant to a property exchange agreement on BNSF's standard form and including the terms and conditions set forth below (the "Land Exchange"). In the event of any conflict between this Agreement and such standard form, this Agreement shall control, provided that if such standard form agreement contains specific language pertaining to areas not addressed herein, the standard form agreement shall control. a. (1) Property to be Convened by City to BNSF. Replacement Property. The City shall acquire at its sole cost and expense the Replacement Property. BNSF shall have no obligation with respect to the acquisition of the Replacement Property. The City shall convey or provide an RoE or Writ for the Replacement Property to BNSF at the First Closing as set forth below. (2) Vacated Rights of Way. The City shall vacate its interest in any streets and alleys within the Main Line or Connector Track (the "Vacated Rights of Way"), and shall convey such interests to BNSF at the First Closing as set forth below. The Vacated Rights of Way shall be included in the definition of the "Replacement Property" (3) Due Diligence Period. As to each tract of the Replacement Property, BNSF shall be allowed a reasonable due diligence period (not to exceed forty-five (45) days after the later to occur of (i) BNSF's receipt of written authority to enter, and (ii) BNSF's receipt of the last of the Due Diligence Materials, the Survey, the Phase I, and the Title Work [all as defined below in this subsection]) to perform an inspection and Page 23 1115963v8 review the materials related to each tract of the Replacement Property; such 45-day period as to each tract of the Replacement Property is hereinafter referred to as "BNSF's Due Diligence Period." BNSF shall perform investigations of such property as it deems necessary to determine the condition of the property, including without limitation, the environmental condition and condition of title. The City shall provide BNSF with copies of all studies, reports, and other due diligence materials in the possession of or prepared or obtained by or on behalf of the City relating to each tract of the Replacement Property (collectively, the "Due Diligence Materials") as soon as reasonably possible after obtaining same. The City shall cause an ALTA/ASCM Land Title survey of each tract of the Replacement Property (respectively, each a "Survey") to be prepared at the City's expense and certified to BNSF, and shall submit each Survey to BNSF for review and comment as soon as reasonably possible. The City shall obtain a Phase I environmental report for each tract of the Replacement Property (respectively, each a "Phase I") at City's expense and certified to BNSF, and shall submit each Phase I to BNSF for review and comment as soon as reasonably possible. The City shall further obtain and submit to BNSF for review and comment as soon as reasonably possible a TLT ; Cwner's Policy Title Insurance Commitment from Title Company covering each tract of the Replacement Property, together with copies of all exceptions to title referenced therein (collectively for each respective tract of Replacement Property, the "Title Work"). Upon completion of such investigation and receipt by BNSF of the Due Diligence Materials, the Survey, the Phase I, and the Title Work for each tract of the Replacement Property, BNSF may deliver Notice to City of any objections regarding such tract. The failure to deliver to City Notice of any objections prior to Page 24 1115963v8 expiration of BNSF's Due Diligence Period for such tract shall be deemed acceptance of same by BNSF; provided, however, that if there is a material change in the condition of such tract, or BNSF learns that the Due Diligence Materials are materially inaccurate, or there is a material change in the Survey, Phase I, or Title Work, then BNSF may send Notice of its objections as to those new matters at any time prior to the First Closing. The City shall have the option, but not the obligation, to cure any of BNSF's objections, but the City shall be deemed to have agreed to cure all of such objections unless City delivers Notice to BNSF to the contrary within fifteen (15) days after City's receipt of BNSF's objections. As soon as reasonably possible after BNSF has completed its investigation of each tract of the Replacement Property, BNSF shall designate whether it desires an easement interest or fee simple interest in such tract to be conveyed to BNSF. BNSF shall have no obligation to accept any tract of the Replacement Property unless City (i) conveys the requested interest (i.e., either fee simple or easement), (ii) cures all of BNSF's objections which were delivered to City prior to the expiration of BNSF's Due Diligence Period for such tract, and (iii) cures all of BNSF's objections as to newly -discovered or changed matters which were delivered to City after expiration of BNSF's Due Diligence Period for such tract. BNiSF's authority to enter each tract of the Replacement Property shall continue until such tract is conveyed for purposes of confirming there have been no material changes to such tracts. (4) Condition of Property; Conveyance. Following approval by BNSF, the Replacement Property shall be conveyed to BNSF in "as is" condition, and BNSF shall release the City from all claims and liabilities arising out of the condition of such property, including without limitation, the environmental condition. The foregoing Page 25 1115963v8 release shall not include any claims or liabilities for any condition to the extent such condition is caused, contributed to, exacerbated or aggravated by the City after the date of conveyance. b. (1) Property to be Conveyed by BNSF to City. Property. BNSF shall convey its interests in the land underlying the Existing Main Line Segments to the City at the Second Closing as set forth below. (2) Due Diligence Period. BNSF, at its cost and expense (but subject to reimbursement as part of the BNSF Relocation Cost), shall deliver to the Project Manager and Airport Manager as soon as reasonably possible (but not later than 90 days after the Effective Date of this Agreement) Property Information for the Existing Main Line Segments. The City shall have 30 days after BNSF's delivery of the last of the Property Information during which to provide Objections. If the City fails to object within such 30-day period, then all matters shown or referenced in the Property Information to which the City does not object shall be considered Permitted Exceptions. Permitted Exceptions for the Existing Main Line Segment North shall include all BNSF Improvements and all Non®BNSF Improvements located therein that do not interfere with the completion of the Airport Improvement Project. BNSF shall have the option, but not the obligation, to cure any or all Objections to the extent necessary to complete the Airport Improvement Project. The cost to cure such Objections (excluding the removal of monetary liens and encumbrances) shall be included in the Final Relocation Plans. The City may waive any Objection in writing, whereupon the waived objection shall become a Permitted Exception. If BNSF fails or refuses to cure any Objections, the City shall have the right to cure same at its sole cost and expense as part of the City Relocation Cost. Notwithstanding anything to the contrary contained herein, BNSF shall, at BNSF's option, either (i) cause to be removed or cured all monetary liens encumbering the Existing Main Line Segments, or (ii) indemnify City, Title Company and its underwriter from any liability for any monetary liens and encumbrances such that Title Company will issue an Owner's Title Policy to City that does not include any Page 26 1115963v8 monetary liens. The cost to BNSF to cure and/or indemnify against monetary liens shall be paid by BNSF and shall not be part of the BNSF Relocation Cost or otherwise part of the BNSF Consideration. (3) BNSF's interest in the land underlying the Existing Main Line Segments shall be conveyed to the City in "as is" condition, and the City shall release BNSF from all claims and liabilities arising out of the condition of such property, including without limitation, the environmental condition. The foregoing release shall not include any claims or liabilities for any condition to the extent such condition is caused, contributed to, exacerbated or aggravated by BNSF after the date of conveyance. Notwithstanding the above, BNSF shall have the option at any time prior to the Second Closing to remove all or any of the BNSF Improvements located on or under the Existing Main Line Segments and retain possession of such BNSF Improvements without compensation to City, and the costs of such removal shall be BNSF Relocation Costs. c. Closings. The First Closing and Second Closing described below are referred to herein each as a "Closing if and collectively as the "Closings". The Closings shall occur at the offices of the Title Company. (1) First Closing. At the First Closing, the City shall convey to BNSF all of the Replacement Property by deed (or easement, depending on BNSF's determination), or shall otherwise provide a RoE or Writ that will allow BNSF to commence the BNSF Relocation Work. In the event the City initially provides only a RoE or Writ to any tract of Replacement Property, the City shall diligently pursue acquisition of such tract and convey to BNSF by deed without warrant or easement as determined by BNSF as soon as City acquires title. The First Closing shall occur on the date designated by the City to BNSF with no less than thirty (30) days prior written notice, and in no event prior to the completion by BNSF of its due diligence review and approval of all Replacement Page 27 1115963v8 Property to be transferred to BNSF as described above; provided, however, that concurrently with such written notice, City shall deliver to BNSF current updates of any title commitments and Phase I reports which are dated more than 60 days before the date of such written notice. The City shall be responsible for all costs associated with the Closing. (2) Second Closing. At the Second Closing, BNSF shall convey to the City BNSF's interest in the Existing Main Line Segments, and City shall pay to BNSF the cash portion of the BNSF Consideration, Within 30 days after the later of (a) BNSF having determined (with Notice of the determination provided to the Project Manager and Airport Manager) that the Main Line and Connector Track have been completed, accepted by BNSF, and placed in service (including conveyance to BNSF of any remaining deed or easement for any tract of Replacement Property originally acquired by RoE or Writ), and (b) BNSF having received full payment of the BNSF Relocation Cost, BNSF, at its cost and expense, shall convey its interest in the Existing Main Line Segments to the City by a deed without warranty (or other instrument in the event BNSF does not own fee simple title) subject only to the Permitted Exceptions. The City acknowledges and affirms that BNSF may not hold fee simple title to such tracts, and that BNSF's interest in all or part of such tracts, if any, may rise only to the level of an easement for railroad purposes. The City expressly releases BNSF and its Related Entities from any claims that the City or its successors may have as a result of a relocation of the existing main line of rail running over or adjacent to such tracts. The conveyance of BNSF's interest in such tracts to the City by BNSF will be made in accordance with BNSF's standard procedures for conveyances of real property, including a release from the City of any claims against BNSF related to the presence of hazardous substances. There will be no proration of ad valorem real estate taxes. The City shall be responsible for all costs associated with Closing. In the event of any conflict between this Agreement and such standard procedures for conveyances of real property, this Agreement shall control, provided that if such standard procedures Page 28 1115963v8 contain specific language pertaining to areas not addressed herein, such standard procedures shall control. 11. NOTICES. Any notice or communication required or contemplated by this Agreement (a "Notice") shall be deemed to have been delivered, given, or provided: (i) five business days after being deposited in the United States mail, CERTIFIED MAIL or REGISTERED MAIL, postage prepaid, return receipt requested; (ii) when delivered to the notice address by a nationally recognized, overnight delivery service (such as FedEx or UPS) as evidenced by the signature of any person at the Notice address (whether or not such person is the named recipient of the Notice); or (iii) when otherwise delivered to the Notice address as evidenced by the signature of any person at the Notice address (whether or not such person is the named recipient for purpose of the Notice); and addressed to the named recipient as follows: If to the City: The City of Fort Worth, Texas Attn: Theodore P. Gorski, Jr., Esq. 1000 Throckmorton Street Fort Worth, TX 76102 Phone: (817) 392-7627 E-mail: t.gorski@fortworthgov.org With a copy to: Alliance Air Management, Ltd. Attn: Tim Ward 2221 Alliance Blvd., Suite 100 Fort Worth, TX 761774300 Phone: (817) 890-1000 E-mail: tim.ward@hillwood.com If to BNSF BNSF Railway Company Attn: Robert J. Boileau/AVP —Engineering Services 2 300 Lou Menk Drive, O013-3 Fort Worth, TX 76131 Phone: (817) 352-2118 E-mail: robert.boileau@bnsf.com 1115963v8 With a copy to: BNSF Railway Company Attn: Mark D. Ude/AVP — Facilities and Property Management 2500 Lou Menk Drive, AOB-3 Phone: (817) 352-6470 E-mail: mark.ude@bnsf.com With a copy to: BNSF Railway Company Attn: Richard P. Chamberlain/Law Dept. 2500 Lou Menk Drive, AOB-3 Phone: (817) 352-2308 E-mail: richard.chamberlain@bnsf.com 12. DEFAULT. No Party shall be in default under this Agreement (a "Default") unless Notice of an alleged failure of a Party to perform has been given (which Notice shall set forth in reasonable detail the nature of the alleged failure) and such Party has been given a reasonable time to cure based on the nature of the alleged failure, but in no event less than 30 days. 13. REMEDIES. Anon -defaulting Party shall be entitled to all remedies available at law or in equity. Without limiting the generality of the foregoing, (i) any Default by BNSF shall entitle the City to withhold payment of any portion of a Draw Request related to the failure to perform that resulted in the Default and (ii) any Default by City shall entitle BNSF to immediately suspend any further BNSF Relocation Work. If BNSF suspends BNSF Relocation Work for more than six (6) months, either party shall have the right to terminate this Agreement and/or pursue any other remedies available at law or ii 1 equity. 14. FORCE MAJEURE. Each Party shall use good faith, due diligence, and reasonable care in the performance of its obligations under this Agreement, and time shall be of the essence in such performance. If a Party is unable, due to force majeure, to perform its obligations under this Agreement (excluding payment of any sums as and when due hereunder), then such obligations shall be temporarily suspended. Within three business days after the occurrence of a force majeure, the Party claiming the right Page 30 1115963v8 to temporarily suspend its performance shall give Notice to the other Party, including a detailed explanation of the force majeure and a description of the action that will be taken to remedy the force majeure and resume full performance at the earliest possible time. The term "force majeure" shall include events or circumstances that are not within the reasonable control of the Party whose performance is suspended and that could not have been avoided by such Party with the exercise of good faith, due diligence, and reasonable care. 15. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the Parties and supersedes all prior agreements, whether oral or written, covering the subject matter of this Agreement. This Agreement shall not be modified or amended except in writing signed by the Parties. 16. SEVERABILITY. The provisions of this Agreement are severable, and in the event any provision of this Agreement, or the application thereof to any person or circumstance, is held or determined to be invalid, illegal, or unenforceable, and if such invalidity, unenforceability, or illegality does not cause substantial deviation from the underlying intent of the Parties as expressed in this Agreement, then such provision shall be deemed severed from this Agreement with respect to such person, entity, or circumstance without invalidating the remainder of this Agreement or the application of such provision to other persons, entities, or circumstances. 17. NO PARTNERSHIP OR JOINT VENTURE. Nothing contained in this Agreement is intended or shall be construed as creating a partnership or joint venture between the Parties. 18. INDIVIDUALS NOT LIABLE. No director, officer, elected or appointed official, or employee of either of the Parties shall be personally liable in the event of any Default. 19. COUNTERPARTS. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and such counterparts, when taken together, shall constitute one instrument. Page 31 1115963v8 20. ASSIGNMENT. Neither Party may assign, in whole or in part, its rights, title, or interest under this Agreement without the prior written consent of the other Party. 21. SURVIVAL. The City's obligation to reimburse BNSF for any portion of the BNSF Relocation Cost incurred by BNSF shall survive any termination of this Agreement. 22. EXHIBITS. The following Exhibits are attached to and made a part of this Agreement for all purposes: Exhibit A: Main Line and Connector Track: Exhibit B: Existing Main Line Segments. Page 32 1115963v8 APPROVED AS TO FORM AND SUBSTANCE: By: TitlE Date THE CITY OF FORT WORTH, TEXAS By: . Title: Date s r. cny 5'/7/0 City Secretary Contract Authorization . \� Date Page 33 BNSF RAILWAY COMPANY, a Delaware corporation By: Title. Date: S/►y /ram OF1=ICIAL RECORD CITY SECRETARY F:T WORTH, TX 1115963v6 EXHIBIT A op bi: -0 Fit -milt IT I F —.,. —a is �- 1r� t. jFho d _qll IF IL IF IF All , i ii FIFI to • ;, (% i � �: ire, t L !/ i� +i r ID a•_�7b I ill 11 �b, rr-"k=04, I � ;k w I �tAMlF,&Ift_t -to �.tzI ! i� ,Ft % �IMI ,1 All -OFF Icey i lost SON, jf- t 3` Idol a ;� t . r l s —r took '= •Ir t - FI r� Pit.r ^s. J _*. !I ,ID it I is •- b -�I J-OFF ���` vial �,ito of Lhe rUty bf Furt Vh;r;h 1/)ris, COUNCIL ACTION: Approved on 5/4/2010 DATE: 5/4/2010 REFERENCE NO.: C-24205 LOG NAME: AGREE RELOCATION AGREEMENT CODE: C TYPE: NOW PUBLIC CONSENT HEARING. NO SUBJECT: Authorize the Execution of an Agreement with Burlington Northern Santa Fe Railway in an Amount Up to $95,000,000.00 for the Design and Construction of the Relocated Railroad Mainline and Connector Track and Conveyance of Right -of -Way to the City for the Alliance Fort Worth Airport Runway Extension Project (COUNCIL DISTRICT 2) RECOMMENDATION: It is recommended that the City Council authorize the City Manager to execute an Agreement with Burlington Northern Santa Fe Railway in an amount up to $95,000,000.00 for the design and construction of the relocated railroad mainline and connector track and conveyance of right of way to the City for the Alliance Airport Runway Extension Project. DISCUSSION: On September 18, 1992, (M&C C-13529) the City Council approved an Agreement with Burlington Northern Santa Fe Railroad (BNSF) for right of way acquisition, design and construction of a relocated mainline and connector track and conveyance of right of way to the City to allow for the Fort Worth Alliance Airport Runway Extension. Due to the unavailability of funds at that time the project was not completed. Commencing in 2001, the Federal Aviation Administration (FAA) has issued a series of annual grants for the Runway Extension Project. In addition, funding from other sources including Tarrant County Bond Funds, a United States Department of Transportation (USDOT) earmark and State Highway 121 Toll Road Funds as approved by the Regional Transportation Commission have allowed this project to move forward. Sufficient funds are now available to move forward with the railroad relocation portion of the project. The Agreement between BNSF and the City requires the City to acquire the necessary right-of-way for the relocated mainline and connector track and for BNSF to design and construct the relocated mainline and connector track. BNSF will be reimbursed for the cost of design and construction. Upon completion of the relocated mainline and connector track BNSF will convey certain portions of the abandoned mainline to the City. The funding sources will be a combination of the Texas Department of Transportation Advanced Funding Agreement ($80,000,000.00) and FAA Discretionary Grants (up to $51,300,000.00). This project is located in COUNCIL DISTRICT 2, Mapsco 7P FISCAL INFORMATION/CERTIFICATION: The Financial Management Services Director certifies that funds are available in the current capital budget, as appropriated, of the Airports Grant Fund. TO Fund/Account/Centers FROM Fund/AccounllCenters GR14 539120 055302388800 80 000 000.00 GR14 539120 055218265300 2 000 000.00 Submitted for City Manager's Office by: Originating Department Head: Additional Information Contact: GR14 539120 055218265800 GR14 541200 055218339800 Fernando Costa (6122) Kent Penney (5403) Ruseena Johnson (5407) ATTACHMENTS 55AFW RELOCATION AGREEMENT Main Track Relocation rev2.pdf so$ off of too Im so 1 L t 3