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HomeMy WebLinkAboutContract 42990 (2)REIMBURSEMENT AGREEMENT CHANGE ORDER IMPROVEMENTS TO EDWARDS RANCH ROAD This Agreement is made and entered into as of the 23rd day of August, 2011 (the "Effective Date"), by and between UNION PACIFIC RAILROAD C =1 MPANY, a Delaware corporation ("UPRR") and the CITY OF FORT WORTH, TEXAS, a Texas home -rule municipality ("City"). The UPRR and the City may be referred to herein individually as a "Party" or collectively as the "Parties". RECITALS: A. The UPRR, the City, the North Texas Tollway Authority ("NTTA") and the Texas Department of Transportation ("TxDOT") (City, NTTA and TxDOT are sometimes referred to as the "Project Partners") entered into that certain Southwest Parkway/SH 121 Union Pacific Railroad/Project Partners Formal Agreement executed as of January 8, 2009 and subsequently amended (the "Formal Agreement"), pursuant to which the UPRR and the Project Partners established certain agreements and understandings with respect to the design, construction, operation and maintenance of the Southwest Parkway/SH 121 ("SWP/SH 121 "). B. UPRR is the fee owner of that certain rail yard facility located in Fort Worth, Texas commonly known as the "UPRR's Davidson Yard" and is in the process of reconfiguring rail yard improvements within UPRR's Davidson Yard; C. Edwards Geren Limited ("Edwards"), a Texas limited partnership, is the fee owner of certain real estate located in Fort Worth, Texas, (the "Edwards Ranch") located adjacent to a portion of "UPRR's Davidson Yard"; D. Edwards has conveyed the right-of-way for Edwards Ranch Road, a planned public street, to the City by deeds recorded as Instruments #D207361583 and #D209197959, Real Property Records of Tarrant County Texas (the "Real Property Records"), pursuant to the Infrastructure Development Agreement dated April 26, 2005 between Edwards and the City, City Secretary Contract No. 31709 (the "IDA"). E. The IDA obligates the City of Fort Worth to complete the construction of Edwards Ranch Road at the City's expense; F. The construction of Phase 1 of Edwards Ranch Road from Bryant Irvin Road east to the eastern boundary of the Vickery diversion channel, City of Fort Worth Project #00107, DOE Project #4906, has been completed; G. The City has awarded the construction contract for Phase 2 of Edwards Ranch Road from the eastern boundary of the Vickery diversion channel to a point south of the State Highway 121T right-of-way, City of Fort Worth Project #5.994, T/PW Project #6221-541200- 303230010788, to L. H. Lacy Co., LTD ("Lacy") and such construction has commenced and has been substantially completed, with formal acceptance by the City to be imminent/ OFFICIAL RECORD CITY SECRETARY • FT. WORN, TX REIMBURSEMENT AGREEMENT CHANGE ORDER IMPROVEMENTS TO EDWARDS RANCH ROAD -I'-age- -0f 61-4838684W-7 UJ t:i-I4: i u 5 H. UPRR desires to construct, at its expense, on private property a new "Railroad Private Driveway for the purpose of providing vehicular access to and from UPRR's Davidson Yard to Edwards Ranch Road; I. In order to access the Railroad Private Driveway from Edwards Ranch Road it is necessary to design and construct the following features (collectively, the "Change Order Improvements') in the public right-of-way of Edwards Ranch Road as conceptually depicted in Exhibit A, attached hereto and made part hereof: the median cut (the "Median Cut '), the single - lane left turn lane on northeast bound Edwards Ranch Road sufficient to enable over -the -road trucks to enter UPRR s Davidson Yard by means of said left t turn toward the Railroad Private Roadway (the "Left Turn Lane"), and the road apron and curb drop at the terminus of the Railroad Private Driveway and Edwards Ranch Road (collectively, the ` Road Apron"); J. UPRR requested that the City enter into a change order with Lacy for the construction of the Change Order Improvements (the "Change Order") as part of the Edwards Ranch Road Phase 2 construction pursuant to the IDA; K. Edwards was willing, at Edwards expense, to contract with Dunaway Associates (` Dunaway") to prepare the final plans for the Change Order Improvements (the "Change Order Plans") in order to get a bid from Lacy for the amount of the Change Order on the terms and conditions set forth in this Agreement; and L UPRR is willing to pay the City directly for the construction of the Change Order Improvements on the terms and conditions set forth in this Agreement. AGREEMENT: NOW, THEREFORE, in consideration of the mutual covenants and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged the Parties mutually agree, as follows: 1. City Responsibilities. The City will cause the construction, installation and acceptance of the Change Order Improvements under its construction agreement with L.H. Lacy Co., LTD. 2. UPRR Responsibilities. UPRR shall reimburse the City for the actual final cost of the construction of the Change Order Improvements, currently estimated to be $34,700, within thirty (30) days of receipt of their acceptance by the City and a substantiated invoice from the City. 3. Miscellaneous. (a) Entire Agreement; Recitals. This Agreement is the entire agreement between the Parties concerning the design and construction of the Change Order Improvement. The Recitals set forth above are hereby incorporated Into this Agreement and made part hereof. This Agreement is not intended to modify or alter the Formal Agreement and is to be considered REIMBURSEMENT AGREEMENT CHANGE ORDER IMPROVEMENTS TO EDWARDS RANCH ROAD Page 2 of 614868684\V-7 separate and apart from the Formal Agreement. If there is any conflict between this Agreement and the Formal Agreement, the Formal Agreement shall control. (b) Representations and Warranties. Each Party hereby represents and warrants to the other Party that (i) such Party has full power and authority to execute and deliver this Agreement and to effectuate the terms hereof without the approval or consent of any other person that has not been obtained and (ii) this Agreement constitutes the legal, valid and binding obligation and agreement of such Party, enforceable against such Party in accordance with its terms. Without limiting the foregoing, the signatories to this Agreement warrant that each has the authority to enter into this Agreement on behalf of the Party represented. (c) Venue and Jurisdiction. If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas — Fort Worth Division. This Agreement shall be construed in accordance with the laws of the State of Texas. (d) Transfer or Assignment. No Party shall assign this Agreement or any of the rights or responsibilities hereunder without prior written approval of the other Party. (e) Contract Construction. The Parties acknowledge that each Party and, if it so chooses, its counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party must not be employed in the interpretation of this Agreement or any amendments or exhibits hereto. (f) No Third Party Beneficiaries. This Agreement shall inure only to the benefit of the Parties hereto and third persons not privy hereto shall not, in any form or manner, be considered a third party beneficiary of this Agreement Each Party hereto shall be solely responsible for the fulfillment of its own contracts or commitments. (g) Amendment. No amendment of this Agreement shall be effective unless agreed to in writing by all Parties. (h) Authority Each Party represents that it has full authority to enter into this Agreement, grant the rights and benefits herein described, and satisfy the obligations hereunder, without violating the rights of any third parties or breaching any agreements with third parties. (i) Severability. The provisions of this Agreement are severable, and if any word, phrase, clause, sentence, paragraph, section or other part of this Agreement or the application thereof to any person or circumstance shall ever be held by any court of competent jurisdiction to be invalid or unconstitutional for any reason, the remainder of this Agreement and the application of such word phrase, clause, sentence, paragraph, section or other part of this Agreement to other persons or circumstances shall not be affected thereby and this Agreement shall be construed as if such invalid or unconstitutional portion had never been contained therein. (j) Headings. The headings contained herein are for the convenience in reference and are not intended to define or limit the scope of any provision of this Agreement. REIMBURSEMENT AGREEMENT CHANCE ORDER IMPROVEMENTS TO EDWARDS Rig NCH ROAD Page 3 of 614868684\V-7 (k) Execution. This Agreement may be executed in multiple counterparts, each of which for all purposes is deemed an original, and all of which constitute collectively one agreement. (Remainder of Page Intentionally Left Blank) REIMBURSEMENT AGREEMENT CHANGE ORDER IMPROVEMENTS TO EDWARDS RANCH ROAD Page 4 of 614868684\V-7 IN WI"I'NESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the Effective Date first herein written. UNION PACIFIC RAILROAD COMPANY, a Delaware corporation By: Name: Title: 4/1144,41- Lawrence E lzorek Assistant Vice President - Law Approved as to Form and Legality: • • cage/ Title SeAsitaset OGyet4de 49) • CITY OF FORT WORTH, Fernando Costa Assistant City Manager Recommended By: Bryan Beck, P.E., Sr. Capital Projects Officer Planning and Development Department Approved as to Form and Legality: Douglas W. Black Assistant City Attorney ATTEST: Mary J. Kayser City Secretary Authorization: M&C C-25108 Date: 8.23.11 OFFICIAL- RECORD CITY SECRETARY FT. WORTH, TX 11 REIMBURSEMENT AGREEMENT CHANGE ORDER IMPROVEMENTS TO EDWARDS RANCH ROAD Page 5 of 6148686841V-7 IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the Effective Date first herein written. UNION PACIFIC RAIERO a Delaware corporation By: Name: Title: COMPANY, Approved as to Form and Legality: Name Title Aziody el? 14. ti 4,1>Ces —14 /by 0000000 00, ‘Zit tun, A ° OA itlAusco.scNar CITY OF FORT WORTH, >slassese-a ‘batar Fernando Costa Assistant City Manager Recommended By: B , . Beck, P.E., Sr. ' apital Projects Officer Planning and Development Department Approved as to Form and Legality: Douglas W. Black Assistant City Attorney ATTEST: Mary J. KayseJ✓ City Secretary Authorization: M&C C-25108 Date: 8.23.11 REIMBURSEMENT AGREEMENT CHANGE ORDER IMPROVEMENTS TO EDWARDS RANCH ROAD OFFICIAL RLCORL ©ITY SECRETARY rat WORTHS TX Page 5=O€-414868684V V ZIBIRX1 1 1 .. FINAL DESIGN AND DRIVEWAY LOCA7108 SSW TO APPROVALS BY 71,1E CITY OF RAT NORM U? 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