HomeMy WebLinkAboutContract 40233-A1 (2)e
FIRST AMENDMENT TO BNSF RELOCATION AGREEMENT
This FIRST AMENDMENT TO BNSF RELOCATION AGREEMENT (this
"Amendment") is between the City of Fort Worth, Texas, (the "City") and the BNSF Railway
Company ("BNSF") to be effective J uAo� �, 2011. The City and BNSF are herein
referred to collectively as the "Parties."
WHEREAS, the Parties entered into that certain "BNSF RELOCATION AGREEMENT"
effective May 17, 2010 (the "Agreement");
WHEREAS, all terms used in this Amendment with initial capital letters shall have the
meanings given to such terms in the Agreement;
WHEREAS, the Parties desire to extend the period during which to agree upon the BNSF
Final Relocation Plans and the City Final Relocation Plans; and
WHEREAS, the Parties desire to extend the period during which the Conditions
Precedent will be satisfied.
NOW THEREFORE, in consideration of the mutual obligations of and benefits to the
Parties set forth in this Amendment, the Parties agree as follows:
1. Section 5, "FINAL RELOCATION PLANS," of the Agreement is amended, in its
entirety, to read as follows:
"5. FINAL RELOCATION PLANS. Not later than May 31, 2011, 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. Not later than May 31, 2011, BNSF shall deliver the BNSF Final
Relocation Plans (right -of --way and easement requirements) to the Project Manager, and the City
shall deliver the City Final Relocation Plans to BNSF. The City acknowledges that BNSF has
estimated that preparation of the BNSF Final Relocation Plans will cost of approximately
$2,000,000. The 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 elocution Plans, t e
OFFICIAL RECORD
GOVIr SECRETARY
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First Amendment to BNSF Relocation Agreement.DOC 9
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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."
2. Section 6, "RELOCATION WORK CONTRACTS," of the Agreement is
amended, in its entirety, to read as follows:
"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 December 9, 2011, all Relocation Work Contracts shall be
awarded no later than December 31, 2011. If all Relocation Work Contracts are not awarded or
made effective by December 31, 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 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 4!!
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deemed to satisfy the foregoing contract award requirement and all other r CO
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First Amendment to BNSF Relocation Agreemen
CITY SECRETARY
regarding Relocation Work Contracts. BNSF shall supply the documentation required for Draw
Requests in connection with such work."
3. Section 8.b. of the Agreement is amended in its entirety to read as follows:
"b. If the Conditions Precedent have not been satisfied or, with regard to items (3)
and (4), "substantially" satisfied, on or before December 9, 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. "-
4. Except as amended by this Amendment, the Agreement shall remain in full force
and effect.
APPROVED AS TO FORM AND
SUBSTANCE:
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Title: As�tar�t1C.ity�ttorney
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THE CITY OF FORT WORTH, TEXAS
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First Amendment to BNSF Relocation Agreement.DOC
BNSF RAILWAY
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OFFICIAL RECOR®
CITY SECRETARY
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