HomeMy WebLinkAboutContract 38136 CITY SECRETAF',
CONTRACT NO T
SOUTHWEST PARKWAY/SH 121
UNION PACIFIC RAILROAD / PROJECT PARTNERS
FORMAL AGREEMENT
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CITY SECRE EARY
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TABLE OF CONTENTS
Page
ARTICLEI RECITALS..................................................................................................1
ARTICLE II THE HUMP LEAD AGREEMENT...............................................................2
A. The Hump Lead..........................................................................................2
ARTICLE III THE FORMAL AGREEMENT.....................................................................3
A. The 4+4+4 Plan..........................................................................................4
B. The North Mainline Bypass Tracks.............................................................5
C. The Trinity River Railroad Bridge and Easterly Extension of
Trackage ....................................................................................................5
D. Permitting Obligations ................................................................................6
E. Timetable....................................................................................................7
F. SWP/SH 121 Design Issues.....................................................................12
G. Construction Safety and Yard Operational Issues....................................13
H. Respective Right-of-Way Obligations.......................................................15
I. Financial Obligations................................................................................17
J. Environmental Obligations........................................................................21
K. Other Obligations. ....................................................................................23
L. Termination Events and Rights on May 19, 2009.....................................25
M. Finalizing this Formal Agreement.............................................................28
.r N. Obligations of TxDOT and the Project Partners 28
0. Press Releases ........................................................................................29
_ P. Miscellaneous...........................................................................................29
Q. Events of Default......................................................................................35
R. Dispute Resolution ...................................................................................36
i ATTACHMENT 1 — UPRR HUMP LEAD ESTIMATE
ATTACHMENT 2 — INTENTIONALLY OMITTED
ATTACHMENT 3 — DEPICTION OF "4+4+4 Plan," "North Mainline Bypass
Tracks,"
And "Trinity River Railroad Bridge"
_ ATTACHMENT 4 — SWP/SH 121 CONSTRUCTION TO BE COMMENCED
UPON
SUCCESSFUL HUMP LEAD TEST
ATTACHMENT 5 — DESCRIPTION OF RIGHT-OF WAY
ATTACHMENT 6 — $95 MILLION COST ESTIMATE
ATTACHMENT 7 — FORMS AND CERTIFICATIONS FOR
INVOICES AND PAY REQUESTS
ATTACHMENT 8 — ILLUSTRATION OF SUBSECTION 111.1.3. CALCULATION
ATTACHMENT 9 — DEPICTION OF RETAINING WALLS
ATTACHMENT 10 — THE PERMITS
-i-
SOUTHWEST PARKWAY/SH 121
UNION PACIFIC RAILROAD / PROJECT PARTNERS
FORMAL AGREEMENT
i
This FORMAL AGREEMENT (this "Formal Agreement") is executed as of the 8th day of
January, 2009, by and between the UNION PACIFIC RAILROAD COMPANY, a
Delaware corporation ("UPRR"), the TEXAS DEPARTMENT OF TRANSPORTATION,
an agency of the State of Texas ("TxDOT"), the CITY OF FORT WORTH, TEXAS, a
Texas home-rule municipality (the "City"), and the NORTH TEXAS TOLLWAY
AUTHORITY, a regional tollway authority and political subdivision of the State of Texas
(the "NTTA") pertaining to the construction of the Southwest Parkway/ SH 121 project
("SWP/SH 1211'); all such entities are sometimes referred to collectively as "Parties" or
individually as a "Party;" further, TxDOT, the City, and the NTTA are sometimes referred
to collectively as the "Project Partners."
ARTICLE I
RECITALS
WHEREAS, the NTTA is a regional tollway authority created and operating pursuant to
Chapter 366 of the Texas Transportation Code under which the NTTA is authorized to
design, finance, construct, operate, and maintain turnpike projects within its service
area; and
WHEREAS, on July 29, 1999, the Texas Transportation Commission passed Minute
Order 107892, authorizing TxDOT to construct the SWP/SH 121 as a turnpike project
from IH 30 to Alta Mesa Boulevard; and
WHEREAS, the Project Partners executed that certain Agreement Between The City Of
Fort Worth, The North Texas Tollway Authority, And The Texas Department Of
Transportation Concerning Development Of The Southwest Parkway, dated as of
November 28, 2000, as subsequently amended (the "Project Partners Agreement"), to
effectuate their agreement to cooperate with each other to develop SWP/SH 121; and
WHEREAS, SWP/SH 121 affects the Davidson Yard owned and operated by UPRR
and located within the City's municipal limits (the "Davidson Yard"); and
WHEREAS, the Project Partners had extensive negotiations over several months with
UPRR regarding the undertakings of UPRR and the Project Partners with respect to the
SWP/SH 121's effect on UPRR's rail operations in the Davidson Yard; and
WHEREAS, the NTTA, the City, and UPRR first reached agreement regarding the
design, construction, testing, and ultimate removal of a "hump lead" in the Davidson
Yard, so as to determine if it may be used successfully for UPRR's operations during
construction of SWP/SH 121, said agreement being set forth in that certain Hump Lead
Agreement dated as of November 19, 2008 (the "Hump Lead Agreement"); and
us
WHEREAS, the Parties have reached agreement on certain additional aspects of the
design, construction, operation, and maintenance of SWP/SH 121 across the Davidson
Yard, as more fully set forth herein;
ARTICLE II
THE HUMP LEAD AGREEMENT
A. The Hump Lead
1. Promptly upon the complete execution of the Hump Lead Agreement,
UPRR began to diligently design, construct, and test a temporary hump
lead (the "Hump Lead"), the cost of which shall be paid to UPRR
_ (estimated by UPRR to be in the amount of $2.452 million as shown on
Attachment 1 to this Formal Agreement) by the NTTA (with the City,
pursuant to a separate agreement, reimbursing the NTTA a one-half
share), as set forth in the Hump Lead Agreement. The Hump Lead
Agreement provides that the Parties will resolve any disputes regarding
the accuracy or appropriateness of invoices, costs, or other charges as set
forth in subsection III.P.9. and in Section III.R.
2. The Hump Lead shall be tested to determine if it is capable of maintaining
the safety and productivity of current UPRR operations during construction
of SWP/SH 121 in accordance with the terms and criteria set forth in the
Hump Lead Agreement. If the Hump Lead test ultimately fails to meet the
Criteria within the time frame specified in the Hump Lead Agreement,
UPRR will immediately cease incurring Hump Lead design, construction
(which in all references in the Hump Lead Agreement includes the
purchase of required materials), testing, and removal costs and refund to
the City and the NTTA within 30 days 50% of the sum they collectively
remitted to UPRR to cover costs incurred for the design, construction, and
. testing of the Hump Lead, and no other work, including any under this
Formal Agreement, will proceed until and unless a suitable solution is
implemented pursuant to the terms of the Hump Lead Agreement and this
t Formal Agreement. Provided that UPRR performs its obligations
regarding the Hump Lead (including, if applicable, any refunding to the
City and the NTTA under this subsection I.A.2.), UPRR shall have sole
ownership of all track and other materials acquired or constructed in
accordance with the Hump Lead Agreement.
.. 3. The design, construction, and testing costs for the Hump Lead are
included in the estimated $95 million total costs described in Section III.I.;
the cost of the design, construction, and testing of any alternative
- configuration of the Hump Lead pursuant to a written amendment to the
Hump Lead Agreement (if any) are not included in either the original
$95 million estimate or the recalculation at the point of 50% design
completion described in Section 111.1.
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i 4. All of the Parties' rights and obligations under this Formal Agreement shall
be terminable if UPRR is ultimately unable to accomplish a successful test
of the Hump Lead. The Parties acknowledge and agree that entry into the
Hump Lead Agreement does not constitute a waiver of any Party's legal
rights, including without limitation UPRR's right of preemption under
federal law. UPRR's right of preemption under federal law (as well as any
other Party's other legal rights) shall not be deemed waived until and
unless the Parties' termination rights provided in Section III.L. have
expired or have been waived, at which time (and without any additional
action by any Party), the Parties shall be deemed to have waived any
defenses (including UPRR's right of preemption under federal law) to, or
other rights to contest or object to, the full performance of this Formal
Agreement, including any effort or action to enforce its terms by specific
performance or otherwise, and in no event shall such defenses or other
- rights be raised as a defense or bar to the full enforcement hereof;
notwithstanding the foregoing, any Party's uncured breach of this Formal
Agreement may be used as a defense to performance hereunder by any
non-breaching Party. In the event this Formal Agreement is terminated
under Section III.L., no waiver of UPRR's right of preemption (or of any
other Party's other legal rights) shall be deemed to have occurred.
5. UPRR, the City, and the NTTA hereby amend the Hump Lead Agreement
to correct and change all references therein to "Union Pacific Railroad
Corporation"to "Union Pacific Railroad Company."
ARTICLE III
THE FORMAL AGREEMENT
The Parties intend, acknowledge, and agree that the NTTA is the only Project Partner
that will enter and construct improvements in and around the Davidson Yard or other
UPRR property pursuant to this Formal Agreement. In those instances throughout this
Formal Agreement in which the NTTA is authorized and granted rights to enter, and/or
to construct improvements in or around, the Davidson Yard or other UPRR property
under certain conditions, controls, timetables, or restrictions, that authorization and
grant is exclusive (except, of course, for the NTTA's contractors, subcontractors,
consultants, employees, and agents) and no other Project Partner(s) should be deemed
or construed as being similarly authorized, whether subject to or exempt from those
conditions, controls, timetables, and restrictions. If the Project Partners determine that
TxDOT or the City requires similar entry and construction authorization and rights, they
will request same, in writing, from UPRR, and UPRR will not unreasonably withhold or
delay its consent, provided that in all events such other Project Partner shall exercise
` that authorization and those rights subject to the same conditions, controls, timetables,
and restrictions as applied to the NTTA's exercise thereof pursuant to this
Formal Agreement.
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A. THE 4+4+4 PLAN
For the purposes of this Formal Agreement, the "4+4+4 Plan" defined in Section III.A.
includes the scope of work to be performed by UPRR pursuant to Sections III.A. and B.,
including the construction of the "North Mainline Bypass Tracks" defined in Section
III.B., which, notwithstanding anything contained herein to the contrary, is a component
of the 4+4+4 Plan.
1. The Parties have agreed upon an approach to allow and expedite the
construction of SWP/SH 121 across UPRR's Davidson Yard in a manner
which mitigates the impacts of SWP/SH 121 on the uninterrupted flow of
railroad traffic in and around the Davidson Yard and without causing the
resulting construction activities to take place above an operating track.
2. One feature of that approach is the "4+4+4 Plan," including the
reconfiguration of the Davidson Yard interior and all associated work, all
as conceptually depicted on Attachment 3 and Attachment 4, which
facilitates construction sequencing which the Parties agree will limit
temporary track closures to only those tracks beneath a single span of the
two bridges composing the "SWP/SH 121 Bridge" and a single span of the
one bridge composing the "Hulen Street Bridge" (as those terms are
defined in subsection III.E.4.) then being constructed, proceeding
sequentially with the temporary closure of only one of three four-track
series in UPRR's departure yard at a time, then the Hump Lead, and then
the existing, permanent hump lead, so that in no event shall more than
one four-track series in the departure yard be temporarily closed and at all
times either the Hump Lead or the permanent hump lead shall be fully
operational, and three mainline bypass tracks as well as the tracks
connecting the receiving yard to the hump lead shall be fully operational at
all times, all as further set forth in the terms and conditions of this Formal
Agreement. Upon completion of the SWP/SH 121 Bridge and the Hulen
Street Bridge, the now-existing bridge carrying Hulen Street shall be
demolished using the same sequential method of temporary track
closures.
3. Subject to the provisions of subsection III.F.1. and Section III.I., the City
and the NTTA will pay UPRR the cost of the design, permitting, and
construction of the 4+4+4 Plan.
4. Subject to the terms of subsection III.F.1., UPRR shall be responsible for
preparing the design for the 4+4+4 Plan, and UPRR and the Project
Partners will work collaboratively and in good faith to develop mutually
compatible designs that provide coexistence of both UPRR and SWP/SH
121 functions, as conceptually depicted on Attachment 3.
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5. UPRR will construct all components of the 4+4+4 Plan, except for the
retaining walls to be designed and constructed by the NTTA pursuant to
subsection III.K.1.
B. THE NORTH MAINLINE BYPASS TRACKS
1. A second feature of the 4+4+4 Plan is to reroute trackage to permit
SWP/SH 121 work to be accomplished, and thereby allow and expedite
the construction of SWP/SH 121 without construction activities occurring
above an operating track, by means of the two-track "North Mainline
Bypass Tracks," and all associated work from a point approximately 350
feet west of Hulen Street (mile post 249.90) to, but not including, the west
abutment of the Trinity River Railroad Bridge (defined below), all as
conceptually depicted on Attachment 3.
2. Subject to the provisions of Section III.I., the City and the NTTA will fund
the design, permitting, and construction of the North Mainline Bypass
Tracks, as a component of the 4+4+4 Plan.
3. Subject to the terms of subsection III.F.1., UPRR shall be responsible for
4' preparing the design for the North Mainline Bypass Tracks, and UPRR
and the Project Partners will work collaboratively and in good faith to
develop mutually compatible designs that provide coexistence of both
UPRR and SWP/SH 121 functions, as conceptually depicted on
Attachment 3.
4. The Parties shall allocate construction activities for the North Mainline
Bypass Tracks maximizing the use of their respective strengths and
experience — specifically, UPRR shall construct all trackage and the NTTA
shall construct the retaining walls described in subsection III.K.1.
C. THE TRINITY RIVER RAILROAD BRIDGE AND EASTERLY EXTENSION OF TRACKAGE
1. At UPRR's sole discretion, it may elect to construct a new two-track bridge
(or, alternatively, two single-track bridges) extending the North Mainline
Bypass Tracks from and including the west abutment of that bridge and
continuing east across the Trinity River (hereinafter, however designed
and constructed, the "Trinity_ River Railroad Bridge"), all as conceptually
depicted on Attachment 3.
2. If UPRR elects to construct the Trinity River Railroad Bridge (which it must
declare within 60 days following the effective date of this Formal
Agreement), it will be responsible for the design, permitting, and
construction, and for all resulting costs except as provided in
subsection III.C.4. and in Attachment 9, of said Trinity River Railroad
Bridge and of extending the two North Mainline Bypass Tracks from their
terminus at the west abutment of the Trinity River Railroad Bridge
continuing east across the Trinity River from mile post 248.00 on the
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Dallas Subdivision and connecting to the existing four mainlines at Mile
Post 247.36 near Summit Avenue, including the design and construction
of any retaining walls east of the west limit of Forest Park Boulevard to
Mile Post 247.36 near Summit Avenue necessary to support the extension
of track.
3. If UPRR elects to construct the Trinity River Railroad Bridge, the Project
Partners will defer construction (which shall be conducted by the NTTA) of
the two most-southern sections of the nearby bridge carrying SWP/SH
121 over the Trinity River (the "Trinity River SWP/SH 121 Bridge") until the
earlier to occur of (a) UPRR's completion of its construction obligations
' under this Formal Agreement or (b) the expiration of the "UPRR
Construction Period" defined in subsection III.E.5. Thereafter, UPRR will
use all reasonable means to prevent its construction activities for the
Trinity River Railroad Bridge from interfering with, or increasing the costs
of, the Trinity River SWP/SH 121 Bridge.
4. If UPRR elects to construct the Trinity River Railroad Bridge, the NTTA, in
addition to its other retaining wall obligations provided in this Formal
Agreement, will design, construct, and maintain retaining walls necessary
for co-existence of SWP/SH 121, UPRR facilities, and TxDOT facilities
from mile post 248.00 on the Dallas Subdivision to the west side of Forest
Park Boulevard. Such costs will be the responsibility of the City and the
.. NTTA as part of their SWP/SH 121 work and are excluded from the
calculation of the City's and the NTTA's payments to UPRR specified in
Section 111.1. Any additional walls necessary from the west side of Forest
Park Boulevard to the existing four mainlines near Summit Avenue are
specifically excluded from the City's and the NTTA's responsibilities and
shall be designed, constructed, maintained, and funded by UPRR.
D. PERMITTING OBLIGATIONS
1. UPRR shall be responsible for obtaining the necessary "Permits," as
defined in subsection III.E.5., for the 4+4+4 Plan, the North Mainline
Bypass Tracks, and, if UPRR elects to construct it, the Trinity River
Railroad Bridge and the easterly extension of trackage toward Summit
Avenue. The Project Partners shall support, but not be a party to, UPRR's
permitting process described above.
2. The City and the NTTA shall be responsible for obtaining any necessary
Permits for the 4+4+4 Plan retaining walls, except for the retaining walls to
be constructed by UPRR pursuant to subsections III.C.4. and III.K.1.
3. Insofar as UPRR's receipt of the necessary Permits affects the completion
of SWP/SH 121 as described under Section III.E., UPRR agrees to use all
reasonable, good faith efforts to expedite the identification, preparation,
filing, and advancement of all necessary Permit applications for the 4+4+4
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Plan, the North Mainline Bypass Tracks, and, if UPRR elects to construct
it, the Trinity River Railroad Bridge. Additionally, within 30 days after the
complete execution and delivery of this Formal Agreement, the Parties
shall agree upon milestones (which may be based on the completion of
various deliverables or other tasks, instead of calendar dates) that UPRR
intends to meet regarding the steps it must timely perform to file for those
Permits, in distinction to the actions of third parties UPRR cannot control.
The foregoing milestones shall constitute guidelines (rather than deadlines
which serve as events of default) and in no event will UPRR be liable in
damages (including, without limitation, consequential, punitive, or
damages for delay) if UPRR misses any such milestone.
4. Each Party shall contemporaneously provide the other Parties a copy of
any application it files for a Permit. Each Party acknowledges and agrees
that the other Parties may contact any of the entities issuing the Permits to
assist regarding (or otherwise monitor) the issuance of any Permit.
E. TIMETABLE
1. Promptly upon the execution of this Formal Agreement, the Parties shall
diligently and with all reasonable, good faith efforts undertake and
advance their respective obligations thereunder, including their respective
funding, design, and permitting obligations. Notwithstanding the
foregoing, and subject to the other provisions of this Formal Agreement
governing construction sequencing (including without limitation
subsections III.C.3., III.E.4., and III.E.5.), the Parties shall not advance
their construction activities in or adjacent to the Davidson Yard until after
the execution and delivery of this Formal Agreement, the successful
testing of the Hump Lead, and the expiration of the termination rights set
_ forth in Section III.L.
2. Without limiting the foregoing, after the execution and delivery of this
Formal Agreement, the successful testing of the Hump Lead, and the
expiration of the termination rights set forth in Section III.L., and the
Parties' simultaneous conveyance to one another of all temporary
construction easements (or delivery of license agreements terminable only
upon either (a) completion of UPRR's work identified in this Formal
Agreement or (b) a default under their terms, and otherwise reasonably
acceptable to the Parties receiving and providing the license agreements)
necessary to perform their respective rights and obligations under the
terms of this Formal Agreement, the NTTA may undertake the
construction of all portions of SWP/SH 121 depicted in aqua on
Attachment 4 and specifically those portions shown in green depicting the
tv work that should most efficiently be completed by the NTTA before UPRR
begins construction of its portion of the 4+4+4 Plan and the North Mainline
Bypass Tracks, provided, however, that the Project Partners may not
undertake construction (which shall be conducted by the NTTA) of the
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portion of SWP/SH 121 depicted in red on Attachment 4 until the
commencement of such portion is authorized pursuant to
Section III.E.4. below.
3. Promptly upon the execution and delivery of this Formal Agreement,
w. UPRR shall diligently advance its design and permitting obligations
regarding the 4+4+4 Plan, the North Mainline Bypass Tracks, and, if it
elects to construct it, the Trinity River Railroad Bridge. Without limiting the
foregoing, upon the execution and delivery of this Formal Agreement,
UPRR's satisfactory testing of the Hump Lead, the expiration of the
termination rights set forth in Section III.L., and the Project Partners' and
UPRR's conveyance of the temporary construction easements or delivery
of license agreements to one another pursuant to subsection III.E.2.
above, UPRR further shall undertake all construction work that does not
require permitting as soon as reasonably possible (taking into
consideration the NTTA's progress constructing the Project Partners'
retaining walls and any other structures that must be coordinated with
UPRR's work in the manner set forth in the "Construction Schedule"
described in subsection III.E.4.), it being the shared intent of the Parties
that all of their respective obligations be advanced concurrently and not
sequentially consistent with the other provisions of this Formal Agreement
governing construction sequencing (including without limitation
subsections III.C.3., III.E.4., and III.E.5.) so as to support the completion of
SWP/SH 121 by the December 31, 2012 scheduled opening date. To that
end, UPRR shall promptly undertake and diligently advance other portions
of its work obligations as soon as each is properly permitted and to the
extent practicable in light of the NTTA's progress constructing the Project
Partners' retaining walls that must be coordinated with UPRR's work in
accordance with the Construction Schedule.
4. Additionally, the Parties acknowledge their agreement that SWP/SH 121
work shown in red on Attachment 4 shall not be conducted either in the
Davidson Yard or adjacent to the Trinity River Railroad Bridge until the
earlier to occur of (a) UPRR's completion of its construction obligations
„ under this Formal Agreement or (b) the expiration of the UPRR
Construction Period. As more specifically set forth in the provisions of this
Formal Agreement governing construction sequencing, the Parties shall
work collaboratively to identify sequencing and other methods to expedite
construction of both UPRR's work and the two bridges carrying SWP/SH
121 (the "SWP/SH 121 Bridge") and the new bridge carrying Hulen Street
(together with the demolition of the existing bridge carrying Hulen Street)
(the "Hulen Street Bridge") over the Davidson Yard, including opportunities
for the NTTA to accelerate construction during normally occurring periods
of reduced UPRR operations or planned maintenance by UPRR, provided
that UPRR does not currently anticipate any such periods during the
construction of SWP/SH 121. To that end and to facilitate the
uninterrupted flow of rail traffic in and around the Yard, prior to the
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May 19, 2009 expiration of the period described in Section III.L. UPRR
and the NTTA shall develop a detailed schedule, satisfactory to the
Parties, consistent with the terms of this Formal Agreement setting forth
the construction of the SWP/SH 121 Bridge and the Hulen Street Bridge
and also sequencing the construction of the Trinity River SWP/SH 121
Bridge with the Trinity River Railroad Bridge (if UPRR elects to construct
same), that supports both the completion of UPRR's work within the
period described in subsection III.E.5. below, and the opening of the
SWP/SH 121 main lanes and Hulen Street by the December 31, 2012
scheduled opening date (the "Construction Schedule"). The milestones in
the Construction Schedule shall constitute guidelines (rather than
deadlines which serve as events of default) and in no event will any Party
be liable in damages if that Party misses any such milestone.
5. Notwithstanding anything to the contrary contained in subsections III.D.3.
and III.E.4., UPRR shall complete all of its construction obligations not
later than 24 months following the last to occur of: (a) the issuance of the
last regulatory permit, certificate, approval or permission required for its
work contemplated under this Formal Agreement (including, without
limitation, the Trinity River Railroad Bridge, the North Mainline Bypass
Track extension west of Hulen Street, and the easterly extension of
trackage toward Summit Avenue), as well as the issuance of required
_ permits, certificates, approvals, or permissions from the City to enter,
cross, construct improvements upon, and occupy the City's rights-of-way,
including at Forest Park Boulevard, Old University Drive, University Drive,
Rogers Road, the existing bike trail, and the Forest Park Miniature
Railroad (to be more particularly defined in this Formal Agreement
consistent with subsection III.P.8. and called the "Permits"), and (b) the
satisfaction or waiver by the Parties of their rights to terminate this Formal
Agreement pursuant to Section III.L., subject to delays to the extent
resulting from (i) force majeure events such as acts of God, materially
unseasonable weather, fire, explosion, flooding, acts of terrorism,
embargoes, derailments, labor strikes, organized labor "slowdowns," labor
interruptions and labor or materials shortages beyond UPRR's control that
materially affect UPRR's ability to perform its construction obligations,
(ii) the presence of Hazardous Materials as provided in subsection III.J.1.,
(iii) the failure of the Project Partners to make any payment required under
this Formal Agreement within either (A) 15 days of the date due under this
Formal Agreement or (B) when an invoice from UPRR is required, within
45 days of the Project Partners' deemed receipt of UPRR's invoice for the
same, (iv) the failure of the Project Partners to perform any of their
material obligations under this Formal Agreement, (v) the failure of the
NTTA to complete the retaining walls or other identified work that must
+ precede UPRR's work which the NTTA is obligated to design and
construct under this Formal Agreement and in accordance with the
Construction Schedule, (vi) UPRR's inability to obtain in a timely manner
necessary property interests or licenses from TxDOT to enter, cross,
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construct improvements on, or occupy TxDOT right-of-way, or (vii) a
material change in the Project Partners' plans and specifications (which
- shall be prepared by the NTTA) from what has previously been approved
pursuant to subsection III1.1. requiring additional review and approval by
UPRR in the same manner as described in subsection III.L.1., said 24-
month period, as it may be extended under this subsection III.E.5., being
hereinafter referred to as the "UPRR Construction Period." Upon
advancing completion of the plans for the UPRR construction work for a
period of 150 days from the date of the execution of the Hump Lead
Agreement to at least the 50% completion level, UPRR and the NTTA
shall review the Construction Schedule to determine if, based on more
fully developed information, the UPRR Construction Period can be
shortened without additional cost to UPRR, which may occur only with
UPRR's concurrence, which it may withhold in its discretion.
6. Upon, but not prior to, the earlier to occur of (a) UPRR's completion of its
construction obligations under this Formal Agreement or (b) the expiration
of the UPRR Construction Period, the NTTA may commence and diligently
advance its remaining construction activities in the Davidson Yard. If
UPRR has completed its construction obligations under this Formal
Agreement prior to the expiration of the UPRR Construction Period as
described in clause (a) of the preceding sentence, UPRR and the NTTA
will meet to review the Construction Schedule to confirm it avoids 24/7 use
of the Davidson Yard for active construction except as otherwise required
for prudent construction practices (e.g., to complete a concrete pour) and
avoids the use of the entire Davidson Yard simultaneously for construction
purposes, yet still projects that the NTTA can achieve the December 31,
2012 scheduled opening for SWP/SH 121 using reasonable construction
approaches and sequencing. UPRR and the NTTA, prior to
commencement of the Project Partners' work (which shall be conducted
by the NTTA), shall convene a meeting which includes the NTTA's
contractors and key consultants to explain the operation of the Davidson
Yard and UPRR's generally applicable operational and safety standards,
norms, and procedures.
7. If UPRR has not completed its construction obligations under this Formal
Agreement before the expiration of the UPRR Construction Period,
(a) UPRR shall promptly prepare a Davidson Yard Operations Plan that
describes how Davidson Yard operations will be modified in a manner
which enables the NTTA to complete its remaining construction
obligations in the Davidson Yard within a twelve-month period using
reasonable approaches and sequencing and at no additional cost than
had UPRR timely completed its work, (b) UPRR and the NTTA shall
promptly convene a meeting among themselves to discuss and reach
agreement upon the aforesaid Operations Plan with the objectives of (i)
enabling the NTTA to complete its remaining construction obligations in
the Davidson Yard within a twelve-month period despite resulting
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y operational challenges and other difficulties for UPRR, on the one hand,
and (ii) preventing material disruptions to interstate commerce despite the
best efforts of UPRR pursuant to clause (i) of this sentence, on the other.
Subsequently, UPRR and the NTTA will convene a meeting prior to the
commencement of the Project Partners' construction activity (which shall
be conducted by the NTTA) which includes the NTTA's contractors and
key consultants to explain the operation of the Davidson Yard and UPRR's
generally acceptable operational and safety standards, norms, and
procedures. UPRR and the NTTA will use all reasonable efforts to
forecast if UPRR will not complete its construction obligations prior to the
expiration of the UPRR Construction Period in order to hold the meeting
described in this subsection III.E.7. on or about 30 days in advance of
that expiration.
�., 8. Regardless of whether the NTTA enters the Davidson Yard pursuant to
subsection III.E.6. or III.E.7., the NTTA will complete its construction
activity within the Davidson Yard within 12 months of the earlier to occur of
(a) UPRR's written notification that it has completed its construction
activities under this Formal Agreement or (b) the expiration of the UPRR
Construction Period (provided that in all events the NTTA is actually then
allowed entry by UPRR into the Davidson Yard in accordance with this
Formal Agreement for the purpose of advancing their aforesaid remaining
construction activities), subject to delays to the extent resulting from (i)
force majeure events such as acts of God, materially unseasonable
weather, fire, explosion, flooding, acts of terrorism, embargoes,
derailments, labor strikes, organized labor"slowdowns," labor interruptions
and labor or materials shortages beyond the NTTA's control that materially
affect the NTTA's ability to perform its construction obligations, (ii) the
presence of Hazardous Materials as provided in Section III.J., (iii) the
failure of UPRR to make any payment required under this Formal
Agreement within either (A) 15 days of the date due under this Formal
Agreement or (B) when an invoice from the Project Partners is required,
within 45 days of UPRR's deemed receipt of the Project Partners' invoice
for the same, (iv) the failure of UPRR to perform any of its material
obligations under this Formal Agreement, (v) the Project Partners' inability
to obtain in a timely manner necessary property interests or licenses from
UPRR to enter, cross, construct improvements on, or occupy UPRR
property, (vi) the failure of UPRR to complete any of its work which it is
obligated to design and construct under this Formal Agreement, (vii) a
material change in UPRR's plans and specifications from what has
previously been approved pursuant to subsection III1.1. requiring
additional review and approval by the NTTA in the same manner as
described in subsection III1.1., or (viii) the exercise of UPRR's stoppage
and other rights pursuant to subsections III.G. 3. and 4., said 12-month
period, as it may be extended under this subsection III.E.8., being
hereinafter referred to as the "NTTA Construction Period." If the NTTA
fails to complete its construction activities prior to the expiration of the
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NTTA Construction Period, UPRR and the NTTA shall meet to adjust the
Construction Schedule to allow the NTTA's construction to continue, but
with no material interference with UPRR's activities, as more specifically
set forth in the following sentences. Despite the resulting construction
challenges and other difficulties for the NTTA, following the expiration of
_r the NTTA Construction Period the NTTA shall reasonably adjust its
practices to restore full normal operations at the Davidson Yard during
NTfA's remaining construction activities. UPRR shall continue to extend
reasonable accommodation to expedite the completion of the NTTA's
required construction, but the final two sentences of subsection III.G.4. will
then be deemed amended to provide that UPRR shall pay only 50% of the
incremental mobilization/demobilization and similar costs actually incurred
by the NTTA directly resulting from a work abatement under that
subsection (but not under subsection III.G.3.), and UPRR will in no event
owe such additional amounts as the Parties may later determine pursuant
to the final sentence of that subsection and in conjunction with the
preparation of the Construction Schedule; additionally, the maximum
cumulative amount of costs for which UPRR may be liable after the
expiration of the NTTA Construction Period and pursuant to this sentence
shall be Two Hundred Fifty Thousand Dollars ($250,000.00).
9. UPRR will not unreasonably exercise its safety and other rights described
in Section III.G. to prevent the NTTA from advancing its construction
obligations as described in this Section III.E. or so as to impair the NTfA's
ability to complete its work prior to the conclusion of the NTTA
Construction Period.
F. SWP/SH 121 DESIGN Issues
1. As further provided in subsection III1.1., the Parties will use all
reasonable and good faith efforts to design their respective improvements
so as to permit them to be constructed and to thereafter coexist without
interference or increase in construction costs and with no impairment of
safety or productivity from mile post 249.90 to the western abutment of the
Trinity River Railroad Bridge or, if UPRR elects to construct the Trinity
River Railroad Bridge and related trackage, continuing east across the
Trinity River and extending from Mile Post 248.00 on the Dallas
Subdivision and connecting to the existing four mainlines at Mile Post
247.36.
2. The NTTA (on behalf of the Project Partners) has conceptually agreed that
the bridge pier south of the relocated south bypass tracks will be designed
with an opening to allow two future departure yard tracks and necessary
access roads on the south side of the Davidson Yard under and to the
west of Hulen Street.
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G. CONSTRUCTION SAFETY AND YARD OPERATIONAL ISSUES
1. As noted above, the Project Partners have agreed to refrain from
conducting construction activities for SWP/SH 121 above operating UPRR
track. Additionally, this Formal Agreement further describes the conditions
for the undertaking of work within the Davidson Yard, including, without
limitation, the requirements of (a) prior written approval, which if requested
in accordance with this Formal Agreement shall not be unreasonably
- withheld or delayed, of the UPRR Designated Individual for the
commencement of those activities, (b) the NTTA's general contractor's
provision of on-site UPRR flagmen, at the NTTA's expense, within 25 feet
of an operating track and (c) the NTTA's general contractor satisfying
certain insurance requirements.
2. UPRR shall designate, and identify to the NTTA, a single management-
level individual well-familiar with the Davidson Yard and this Formal
Agreement, authorized to render decisions, to serve as a liaison between
the NTTA's contractor and UPRR operating personnel, and to exercise
UPRR's stoppage rights under this Section III.G. (the "UPRR Designated
Individual"). Until notified to the contrary, that UPRR Designated
Individual is Ed Adelman, whose contact information is as follows:
5701 West Vickery
Fort Worth, Texas 76107
817-353-7035
edadelman(cD-up.com
If Ed Adelman becomes unavailable for any reason, UPRR will reasonably
consider any recommendations provided by the NTTA with respect to
-= selecting and maintaining a replacement UPRR Designated Individual with
a positive and professional working relationship with the NTTA.
3. If the UPRR Designated Individual reasonably determines, in accordance
with UPRR's generally applicable operational and safety standards, norms
and procedures, that an unsafe condition in the Davidson Yard
necessitates the suspension of SWP/SH 121 construction activities, the
UPRR Designated Individual shall notify the NTTA which, regardless of
whether it agrees with the reasonableness of the UPRR Designated
Individual's determination, will cease any construction or other activities as
soon as it may safely do so for the period of time necessary to
immediately meet with the NTTA's contractor(s) and the UPRR
Designated Representative and remedy the situation, subject to the final
approval of UPRR through the UPRR Designated Individual, not to be
unreasonably withheld or delayed. UPRR will work diligently and
cooperatively with the NTTA to mitigate any unsafe condition to minimize
the need or duration of such a stoppage so to retain the December 31,
2012 scheduled opening day for SWP/SH 121 or such other scheduled
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opening date as was in effect prior to the stoppage without requiring a
Project Partner to incur overtime or other additional or extraordinary costs
and resources for expedited work.
4. Further, and subject to the provisions of subsection III.E.7., upon the
request of the UPRR Designated Individual, any SWP/SH 121
construction activities that are reasonably likely to affect UPRR
maintaining normal productivity within the Davidson Yard or to create an
impediment to train traffic in and around the Yard must be mutually
developed by the NTTA and UPRR and included in the project
specifications and special provisions for any applicable construction
Y contract. The Parties shall work diligently and collaboratively to finalize
and establish such specifications and provisions subject to the approval of
the UPRR Designated Individual, such approval not to be unreasonably
withheld or delayed, so to the greatest extent feasible (which will not be
construed to require payment by the NTTA of overtime, or incurring
additional or extraordinary costs and resources for expedited work) retain
.. the December 31, 2012 scheduled opening day for SWP/SH 121.
However, if after execution of the construction contract such specifications
and special provisions fail to perform as expected, and the UPRR
•. Designated Individual reasonably determines that, due to unforeseeable
events, UPRR's accommodation of construction activities pursuant to this
Formal Agreement are creating a material loss of normal productivity
••� within the Yard or an material impediment to train traffic in and around the
Yard, the NTTA will immediately meet with the NTTA's contractor and use
all reasonable efforts to remedy the unforeseen situation. Additionally, if
the UPRR Designated Representative reasonably determines that no
reasonable alternative exists but that the NTTA's construction must abate
for a period of time to avoid an unanticipated risk of imminent material
disruption to interstate commerce, the UPRR Designated Individual may
so notify the NTTA, which, regardless of whether it agrees with the
reasonableness of the UPRR Designated Individual's determination, will
cease any construction or other activities as soon as it may safely do so
only for the period of time necessary to mitigate the aforesaid
unanticipated risk of imminent material disruption to interstate commerce,
MW on the one hand, and to ensure to the greatest extent feasible (which will
not be construed to require payment by the NTTA of overtime, or incurring
additional or extraordinary costs or resources for expedited work) the
December 31, 2012 scheduled opening day for SWP/SH 121, on the
other. Provided that the NTTA's default under this Formal Agreement did
not cause the unanticipated risk of imminent material disruption of
interstate commerce, UPRR shall (a) pay the incremental mobilization/
demobilization and similar costs actually incurred by the NTTA directly
resulting from the determination of the UPRR Designated Individual and
work abatement under this subsection III.G. 4. (but not under subsection
III.G.3.) and (b) provide additional and reasonable work opportunities and
scheduling to make up for construction time lost to the NTTA due to the
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abatement. In conjunction with UPRR's and the NTTA's preparation of the
Construction Schedule in accordance with subsection III.E.4., the Parties
shall address the consequences of UPRR seeking the work abatement
described in the preceding two sentences more than a specified number
of instances or days during the NTTA's construction activities under this
Formal Agreement.
5. Any work stoppage or abatement under this Section III.G. that continues
for more than 24 hours shall be promptly brought to the attention of the
Parties' upper management for evaluation and possible action.
6. The NTTA and TOOT have entered into a term sheet pursuant to which
the Project Partners Agreement will be amended to provide, among other
things, that the NTTA will construct all SWP/SH 121 interchanges. As a
result, and except as provided in the following sentence, Section III.E.,
Section III.F. and this Section III.G. anticipate that the NTTA will construct
all, or virtually all, of SWP/SH 121 extending near and through the
Davidson Yard. If the term sheet between the NTTA and TOOT
regarding interchanges or any other allocation of SWP/SH 121 design or
construction responsibilities between the Project Partners is modified, then
- UPRR and the Project Partners shall promptly meet and formalize the
reallocation between the Project Partners of their respective construction
rights and obligations under this Formal Agreement so as to permit
TOOT and/or the City to exercise all or part of the NTTA's rights
hereunder, but only subject to the same terms and restrictions applicable
to the NTTA's exercise thereof.
H. RESPECTIVE RIGHT-OF-WAY OBLIGATIONS
1. As more specifically set forth in Section III.L., the Parties do not anticipate
that UPRR's property requirements will be precisely known prior to the
execution and delivery of this Formal Agreement. Consequently, the
Parties agree to work diligently and in good faith to identify all required
property interests prior to May 19, 2009.
2. The Project Partners will convey to UPRR the reasonably acceptable
permanent property rights (in distinction to the temporary rights described
in subsection III.E.2.) (a) to accommodate the trackage and other
structures UPRR is required to construct from the west end of the
Davidson Yard to Summit Avenue near railroad milepost 247.1 and (b) to
provide UPRR vehicular access to public roads at two locations depicted
conceptually on Attachment 4 and generally described as (i) a location at
the east end of Davidson Yard near railroad milepost 248.4, as a
replacement for the existing Kimzey Street entrance providing access to
the proposed MONT-UNI Frontage Road, and (ii) a second location west
of Summit Avenue near railroad milepost 247.1, providing access to the
proposed IH 30 EBFR Frontage Road. Except as otherwise agreed
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between the City and UPRR regarding the City's facilities, neither TOOT
nor the City will be required to close or relocate any portion of its currently
operating facilities in order to provide UPRR the above-described property
rights (except for agreed-upon temporary closures necessitated by
construction). If UPRR elects to construct the Trinity River Railroad
Bridge, the Project Partners will provide UPRR the reasonably acceptable
permanent property rights to use such property owned by the Project
Partners as is necessary to accommodate the trackage to be constructed
east of the Trinity River to Summit Avenue as conceptually depicted on
Attachment 3. To the extent provided by law, UPRR will pay fair market
appraised value for any of the foregoing property rights in this subsection
,. III.H.2. directly to the parties currently holding those property rights, which
value has been included in (and shall not further adjust) the amount owed
by the Project Partners set forth in Section III.!.
w
3. Simultaneously with the UPRR's receipt of the property rights generally
described above (including, without limitation, the release/provision of
access rights UPRR needs from TOOT), UPRR shall provide the City
and/or the NTTA (as the City and the NTTA shall jointly instruct UPRR on
or before April 15, 2009) (a) the parcels to be acquired in fee title (to the
- extent UPRR holds fee title and otherwise such property interest as UPRR
may convey), subject to reservations necessary to accommodate UPRR
structures or uses now existing and/or contemplated under this Formal
Agreement, (b) the temporary construction and utility easements, (c) the
aerial/footing/bridge easement rights required for the construction of
SWP/SH 121 (including for the reconstruction of the Hulen Street Bridge),
and (d) the reasonable, non-revocable, access rights needed by the NTTA
or the City for the maintenance and inspection of the SWP/SH 121 and
Hulen Street facilities, respectively, over and adjacent to the UPRR
.. property (in addition to the general access rights described in
subsection III.H.4.), which are conceptually described on Attachment 5,
provided these property interests shall not include utility easements
= unrelated to the SWP/SH121 Bridge construction sought from UPRR by
the City of Fort Worth, which are the subject of separate negotiations. At
that time UPRR will also provide to the NTTA or TOOT (as those parties
shall jointly designate in writing on or before May 19, 2009 as described in
subsection III.G.6.) such property rights and licenses as are necessary for
the construction and operation of the interchange of SWP/SH 121 and
�. IH 30, which is identified as Parcels 11-PT1 and 11-PT2 on Attachment 5
(provided that the Parties acknowledge that the acreage of Parcel 11-PT1
will be reduced from what is shown on Attachment 5).
4. The party conveying any property interest will reserve all mineral rights,
but such conveyance shall restrict and prohibit such party from using the
R surface for the exploration or extraction of minerals. The instruments
conveying any property interest under this Section III.H. shall contain such
reservation, together with such restriction and prohibition, and shall
-16-
additionally provide the receiving party reasonable access rights for the
inspection and maintenance of its constructed improvements in
accordance with safe and customary practices. TxDOT real estate and
rights conveyed under this Section III.H. shall be conveyed or otherwise
provided in accordance with TxDOT's standard policies and rules
regarding control of access and permissible driveway locations. The Party
receiving a permanent property right in a parcel shall discharge all costs
incurred in surveying and obtaining title insurance for that parcel, and shall
accordingly determine the nature and extent of any such title insurance, if
any. The Parties will evaluate the possible advantages of using a single
(or limited number of) surveyor(s).
+.r
5. Notwithstanding anything to the contrary contained in subsections III.H.2.
and III.H.3. regarding the timing of the Parties' real property conveyances,
the Parties shall simultaneously provide one another without charge the
temporary property rights and licenses described in subsection III.E.2. to
one another as and when reasonably necessary to perform obligations
under the terms and conditions of this Formal Agreement. The Parties
acknowledge and confirm that any such temporary property rights or
licenses shall have effect only for a limited purpose and time consistent
with this Formal Agreement (and that the documentation of such property
rights and licenses shall explicitly note such limits), while interests of an
unlimited duration shall be made by conveyance of the ultimate interests.
As provided in Section III.L., the ultimate interests to be acquired by the
Parties, in distinction to temporary property rights and licenses, shall be
conveyed on or before May 19, 2009 provided and on the condition that
(a) UPRR will simultaneously acquire all third-party real estate interests
described in Section III.L., (b) UPRR will simultaneously acquire the
interests from TOOT to be provided to UPRR pursuant to this Formal
Agreement, provided UPRR has previously applied to acquire (and is
diligently pursuing) those TOOT property rights and licenses under all
statutory and TOOT procedures (including, without limitation, appraisal
and Texas Transportation Commission approvals, if any), and (c) the
termination rights described below in Section 1111. have been terminated
or waived.
I. FINANCIAL OBLIGATIONS
'" 1. The City's and the NTTA's plan to acquire real property interests in
UPRR's Davidson Yard by means of the exercise of the power of eminent
domain has resulted in a dispute between UPRR and both the City and
the NTTA. UPRR has asserted preemption defenses under federal law
which it alleges would, if successful, prevent the City and the NTTA from
either acquiring or occupying the Davidson Yard. All Parties acknowledge
and agree that the Hump Lead Agreement and this Formal Agreement are
designed to effect a settlement of the aforesaid dispute which will, on the
terms and conditions set forth therein, ultimately require UPRR to waive
-17-
the aforesaid defenses, convey valuable real estate interests to the
Project Partners, allegedly cause UPRR to incur damages to its special
use property and damages to the remainder of the Davidson Yard and
future expansion and improvement thereof, and UPRR's incurrence of
additional design, construction and management costs to accommodate
the Project Partners' proposal, in return for which the City and the NTTA
shall pay in settlement the amount $95,000,000, subject to adjustment
pursuant to subsections 111.1.3. and 111.1.6., in full satisfaction (subject to the
Project Partners' compliance with the terms of this Formal Agreement) of
all the real estate interests and all alleged UPRR claims, damages, and
costs. The City and the NTTA, in turn, dispute all or part of UPRR's
alleged claims, damages, and costs. Without constituting an admission by
any of the Parties, the amount to be funded by the City and the NTTA for
the design, permitting, and construction of the 4+4+4 Plan and the North
Mainline Bypass Tracks components of the aforesaid consideration
provided to the Project Partners by UPRR, including any work by in-house
labor and personnel, including work that must be performed by UPRR
forces in accordance with labor agreements, and UPRR management time
and expense associated with actions required by UPRR to maintain
operations during construction of SWP/SH 121, are estimated to be
$72 million as shown in the estimate set forth on Attachment 6.
2. Subject to adjustment pursuant to subsections 111.1.3. and 111.1.6., the total
financial obligation of the Project Partners for the aforesaid settlement,
including their funding the 4+4+4 Plan and the North Mainline Bypass
Tracks, the Hump Lead, acquiring the property interests, and fulfilling their
other funding responsibilities to UPRR under this Formal Agreement shall
be $95 million. The Project Partners acknowledge that the calculation of
the aforesaid $95 million, and its recalculation pursuant to subsections
111.1.3. and 111.1.6., does not include: the costs that the NTTA's general
contractor must incur in providing adequate construction flagging for
construction of SWP/SH 121, and the cost of the design, construction,
testing, dismantling, and removal of any alternative configuration of the
Hump Lead if the Parties elect to undertake same by means of a written
amendment to the Hump Lead Agreement (if any).
3. If, on the basis of UPRR's professional engineer's review of the plans for
the 4+4+4 Plan and the North Mainline Bypass Tracks then prepared and
available as of the 150t" day after the execution date of the Hump Lead
Agreement (and advanced to at least the 50% completion level), UPRR's
professional engineer's opinion of the estimated cost of the work
described on Attachment 6 as composing the $72 million adjustable
portion of the $95 million financial obligation is greater than $72 million
(utilizing a contingency of no more than 15%), upon approval of a
'+ corresponding amendment to this Formal Agreement by the respective
governing body, the City's and the NTTA's $95 million financial obligation
will be increased by 50% of that amount, with UPRR responsible for the
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remaining 50% of the increase. If additional action by the Project
Partners' governing bodies are required, it must be obtained on or before
�► May 19, 2009 as a contingency under subsection III.L.6. If the UPRR
professional engineer's opinion of the estimated cost of the work
composing that adjustable portion is lower than $72 million, the $95 million
financial obligation shall not be reduced. Thereafter, the $72 million (and,
as a result, the $95 million) financial obligation will be reduced as provided
in subsection 111.1.6. This Formal Agreement includes in Section III.R. a
process to resolve any dispute between UPRR, on the one hand, and the
City and the NTTA, on the other hand, regarding the amount of UPRR's
professional engineer's opinion regarding such costs. The mechanics of
the calculation described in this subsection 111.1.6. is illustrated on
Attachment 7.
4. Except as provided in the Hump Lead Agreement and in subsection 111.1.5.
respecting the $1.5 million payment of UPRR's design costs, payments to
UPRR of the $95 million financial obligation will be made beginning upon
May 20, 2009 and only after the expiration of the termination rights' set
forth in Section III.L. based upon UPRR pay requests as the performance
of UPRR's obligations pertaining to the $72 million adjustable portion
(adjusted pursuant to subsection 111.1.3. and reduced pursuant to
subsection 111.1.6.) progresses and in the following manner. The cost of
materials pertaining to work described under the $72 million adjustable
portion shall be paid as those costs are incurred by UPRR; additionally,
the City and the NTTA will advance funds to pay those materials costs as
necessary to accelerate completion of construction of UPRR's obligations
under this Formal Agreement, including without limitation the ordering of
lead-time materials such as steel, rail, ties, turn-outs and signal
equipment. Labor charges shall be paid by the City and the NTTA based
on the percentage of completion of the UPRR work described listed under
the $72 million adjustable portion (adjusted pursuant to subsection 111.1.3.
and reduced pursuant to subsection 111.1.6.) as certified by UPRR and
reviewed and reasonably approved by the Project Partners Designated
Individual. The $23 million component of the aforesaid settlement shall be
paid by the City and the NTTA as follows: (a) $11.5 million upon the
mutual conveyances of the permanent property interests (in distinction to
temporary easements or licenses) described in Section III.H., and (b) the
aw remaining $11.5 million to be paid by the City and the NTTA based on the
percentage of completion of the UPRR work described listed under the
$72 million adjustable portion (adjusted pursuant to subsection 111.1.3. and
on reduced pursuant to subsection 111.1.6.), provided, however, that a
holdback of $5 million of the $23 million nonadjustable portion shall be
established to be remitted to UPRR (together with all of any other
.. remaining portion of the $23 million and the $72 million [as adjusted] not
previously paid to UPRR) promptly upon the first to occur of:
(i) completion of the construction of SWP/SH 121 from the east abutment
- of the Trinity River Railroad Bridge to the south abutments of the SWP/SH
-19-
121 Bridge and the Hulen Street Bridge over the Davidson Yard, or (ii) the
expiration of the NTTA Construction Period. Forms and certifications by
which UPRR will invoice and request payment of the amounts described in
this Section 111.1. are set forth on Attachment 7. Any delayed payments
properly owing to UPRR shall bear interest at the rate per annum of 6.3%
commencing from the date due; UPRR may stop its performance of this
Formal Agreement if such nonpayment in full continues for more than (A)
15 days from the applicable fixed payment date set forth in this Formal
Agreement or (B) 45 days from the date of the Project Partners' deemed
receipt of the applicable required UPRR invoice, as the case may be, with
the performance of UPRR obligations to be extended for each day such
nonpayment by the City and the NTTA continues beyond said 15- and 45-
day respective periods. The Parties will resolve any disputes regarding
the accuracy of invoices, costs, or other charges as set forth in
subsection III.P.9. and in Section III.R. UPRR shall have sole ownership
of all structures (including track) and other materials it constructs or
acquires in accordance with this Formal Agreement, except with respect to
the culvert extensions and other associated channel work covered by or
modified per the existing Drainage & Waterway Agreement dated April 15,
1991, audit number 154808, between UPRR and the City, and the City will
retain ownership of and maintenance responsibilities for these
adjustments constructed by UPRR per the above referenced agreement.
Similarly, the NTTA (or any other Project Partner) shall have sole
ownership of all structures and other materials it constructs or acquires in
accordance with this Formal Agreement.
5. Subsequent to the execution of this Formal Agreement but prior to the
successful testing of the Hump Lead and the expiration of the termination
rights' set forth in Section III.L., the City and the NTTA will nonetheless
reimburse UPRR, up to the amount of $1.5 million, for in-house and third-
party costs UPRR has incurred prior to the effective date of this Formal
Agreement or will thereafter incur in preparing the design of the 4+4+4
Plan and North Mainline Bypass Tracks, all for the purpose of advancing
that design for a period of 150 days from the date of the execution of the
Hump Lead Agreement to at least the 50% completion level. Invoices
complying with the terms of this subsection 111.1.5. shall be due and paid to
UPRR within 30 days from their effective date of receipt by the "Project
Partners Designated Individual" defined in subsection III.K.5., regardless
of whether said invoice is issued after this Formal Agreement has been
terminated, provided that invoices issued after such termination may only
include the costs of services and work performed prior to the termination
of this Formal Agreement; any such invoice shall include reasonable
supporting information regarding the invoiced amount, which in the case of
in-house labor and services shall be UPRR's customarily maintained
•• internal logs typically provided to parties with which UPRR similarly
contracts. This $1.5 million amount is included in the Project Partner's
$95 million total funding obligation.
-20-
6. Notwithstanding anything to the contrary set forth in this Formal
Agreement, a portion (but not all) of the estimated design and construction
costs of the retaining walls from 350 feet west of Hulen Street to the west
abutment of the Trinity River Railroad Bridge to be designed, permitted,
and constructed by the NTTA is included in the $72 million adjustable
portion of the $95 million and therefore will be credited to the City and the
NTTA and thus removed from their financial obligation in the manner
described below. Attachment 8 currently includes $8.493 million as an
estimate of additional costs resulting from substituting a different type of
retaining wall (a drilled-shaft wall for a mechanically stabilized earth [MSE]
wall) and increasing the height of walls in order to achieve coexistence
between SWP/SH 121 and UPRR's facilities. The Parties agree that the
$8.493 million is part of the overall adjustment of the aforesaid $72 million
portion of the $95 million pursuant to subsection 111.1.3., and that prior to
the UPRR professional engineer's review of the $72 million adjustable
portion of the $95 million pursuant to subsection 111.1.3., the City and the
NTTA shall provide the UPRR professional engineer the Project Partners'
professional engineer's opinion as to whether the aforesaid $8.493 million
estimate should be adjusted up or down, with the mathematical outcome
to be included in the overall subsection 111.1.3. adjustment. Because the
NTTA is designing, permitting, and building the applicable retaining walls
instead of UPRR, the $72 million adjustable portion of the City's and the
NTTA's financial obligation (as it may have been adjusted upward
pursuant to subsection 111.1.3.) will then be reduced by the $8.493 million
(as it may have been adjusted up or down pursuant to this subsection
.. 111.1.6.) and that $72 million amount, as reduced, and the total $95 million,
as identically reduced, shall constitute the City's and the NTTA's financial
obligation thereafter. Provided, however, if the Project Partners'
professional engineer's opinion regarding the $8.493 million is contested
by UPRR's professional engineer, it shall be resolved through the dispute
resolution process in Section III.R. Similarly, amounts paid by the City
and the NTTA under the Hump Lead Agreement and that portion of the
$1.5 million actually advanced by the City and the NTTA to UPRR under
subsection 111.1.5. (which are included in the $72 million adjustable portion
of the $95 million) will be credited to the City and the NTTA and removed
from their financial obligation.
_ J. ENVIRONMENTAL OBLIGATIONS
1. UPRR will be responsible for promptly and diligently addressing, through
clean-up or other appropriate and lawful steps, based on a property use
appropriate risk-based clean-up standard, any "Hazardous Materials," as
hereafter defined, it or the Project Partners encounter while performing
.. construction work contemplated by this Formal Agreement within the real
estate rights and interests transferred by UPRR to the Project Partners.
Except as provided in subsection III.J.3., if soil excavated in the course of
the NTTA's construction of SWP/SH 121 on property that has been
-21-
transferred by UPRR to any of them is identified as containing hazardous
materials which exceed regulatory action levels for highway projects
based on a risk-based cleanup standard and, consequently, requires
special treatment or disposal ("Hazardous Materials"), UPRR may elect:
(a) to accept delivery of the identified soil and handle it properly, or (b) to
reimburse the Project Partners for their reasonable and necessary costs
incurred due to the presence of Hazardous Materials, which are in excess
of the normal excavation and disposal costs that would have been
incurred otherwise ("Incremental Costs") associated with such soil.
Provided that UPRR is discharging its obligations in accordance with the
preceding sentence, the UPRR Construction Period will be extended
•• accordingly. The foregoing clean-up obligation is in lieu of any form of
indemnity by UPRR for the benefit of the Project Partners. Nothing in this
subsection, however, is intended to shift the burden of costs to the Project
Partners that are otherwise the responsibility of UPRR under this
Formal Agreement.
�+ 2. Notwithstanding subsection III.J.1., the Project Partners will be
responsible for promptly and diligently addressing, through cleanup or
other appropriate and lawful steps, based on a property use appropriate
- risk-based clean-up standard, any Hazardous Materials UPRR or the
Project Partners encounter while performing construction work
contemplated by this Formal Agreement within the real estate rights and
interests transferred by the Project Partners to UPRR. If soil excavated by
UPRR in the course of UPRR's construction of improvements
contemplated by this Formal Agreement on property that has been
3 transferred to it by the Project Partners is identified as containing
Hazardous Materials, the Project Partners may elect: (a) to accept delivery
of the identified soil and handle it properly, or (b) to reimburse UPRR for
its Incremental Costs associated with such soil. Provided that the Project
Partners are discharging their obligations in accordance with the
preceding sentence, the NTTA Construction Period will be extended
accordingly. The foregoing cleanup obligation is in lieu of any form of
indemnity by the Project Partners for the benefit of UPRR. Nothing in this
subsection, however, is intended to shift the burden of costs to UPRR that
are otherwise the responsibility of the Project Partners under this
Formal Agreement.
3. The NTTA will be responsible for hauling and disposal of excavated soils
from the construction of the footings for the SWP/SH 121 and the Hulen
Street Bridges to be constructed over the Davidson Yard in instances in
-` which foundations, railroad ties, and similar structures are located by the
NTTA at a depth within 5 feet below the final top of rail of the lowest
adjacent track and two feet below final ground surface where existing or
planned operating track is not within 30 feet of such foundations, railroad
ties and similar located structures. The NTTA will be responsible for
hauling such facilities and materials off-site (except as provided in
-22-
subsection III.J.6.) at the NTTA's expense; any such structures and
materials located below the depths described in the preceding sentence
may remain in place.
4. Subject to the terms of subsections III.J.1., 2., and 3., all property and
property interests transferred by any Party shall be made on an "as
is/where is" basis and without any representation or indemnity or
contractual assumption of responsibility regarding environmental
conditions thereon and each Party receiving such a transfer shall release
the transferring Party from liability apart from the transferring Party's
obligations under this Section III.J. Each transferring Party's obligation
under this Section III.J. with respect to a transferred parcel shall terminate
30 days following the date that the construction work contemplated by this
Formal Agreement within such transferred parcel is complete.
Notwithstanding anything in this Section III.J. to the contrary, each Party
shall be fully responsible for the release of any Hazardous Materials by it
or its employees, agents, contractors, or subcontractors that occurs during
the performance of any of the construction work contemplated by this
Formal Agreement.
5. Each Party will be provided a right-of-entry to conduct Phase I and Phase
II environmental testing, which testing (if any) must be concluded prior to
May 19, 2009. Additionally, the Parties will share with one another any
notices, reports, or similar materials they possess regarding the
transferred property.
6. The Parties will cooperate to facilitate the reuse, within the respective
property interests acquired pursuant to this Formal Agreement, of any soil
excavated during the course of any construction work contemplated by
this Formal Agreement to the extent doing so would be feasible,
commercially reasonable, and allowed under applicable laws without the
need for authorization from or notice to any environmental agency.
K. OTHER OBLIGATIONS.
1. The City and the NTTA will pay for (subject to the credit described in
subsection 111.1.6.), design, obtain necessary permits for, and construct,
and maintain all required retaining walls for co-existence of UPRR facilities
and TOOT facilities and for the construction and operation of
SH121/SWP extending from 350 feet west of Hulen Street (mile post
249.90) to the west side of Forest Park Boulevard. UPRR will be
responsible for the payment, design, construction, and maintenance of all
retaining walls necessary for the extension of trackage from a point 350
feet west of Hulen Street to the west limit of the Davidson Yard and from
the west side of Forest Park Boulevard to the existing four mainlines at
' approximate milepost 247.36 near Summit Avenue. The limits of the
-23-
retaining walls (and of the Parties' respective obligations relating thereto)
are depicted on Attachment 9.
2. Subject to the provisions of (and included in the calculation of) the $95
million financial obligation described in Section III.I., the City and the
NTTA will fund the design and construction by UPRR of the replacement
team track at a location to be agreed between the Project Partners and
UPRR that is compatible with both UPRR's operations and SWP/SH 121.
UPRR will promptly advance that work consistent with the pertinent
provisions of this Formal Agreement; alternatively, UPRR may spend the
reasonable costs of designing and constructing the replacement team
track remitted by the City and the NTTA on other items.
3. The Project Partners will use reasonable and diligent efforts to cooperate
MW with UPRR to attempt to obtain a new Davidson Yard entrance from
Edwards Ranch Road, provided that they will not be required to incur any
costs or liability in doing so and the Parties' other rights and obligations
under this Formal Agreement shall not be conditioned upon obtaining
that entrance.
4. At the time this Formal Agreement is executed and delivered, the vast
majority of the engineering design work for UPRR's work has not been
completed. Any improvements to the Davidson Yard not generally
described in this Formal Agreement as the responsibility of the Project
Partners will be funded and undertaken by UPRR, provided UPRR shall
not undertake additional improvements not appearing or otherwise
indicated in the finalized plans and designs described in subsection III1.1.
that will either (a) impede its completion of the improvements herein
described or (b) otherwise delay completion, require changes in the
R finalized plans and designs, or impair the operation, of SWP/SH 121 as
indicated in its finalized plans and designs. After all plans and designs for
the Project Partners' and UPRR's construction have been finalized
pursuant to subsection III.L.1., the Project Partners shall not without the
written consent of UPRR, not to be unreasonably withheld or delayed,
materially modify or expand the SWP/SH 121 project as it relates to the
.. Davidson Yard or, if UPRR so elects, UPRR's extension of track from the
west abutment of the Trinity River Bridge to the existing four mainlines at
approximate milepost 247.36 near Summit Avenue in a manner that will
ter either (i) impede UPRR's completion of the improvements shown on its
finalized plans and designs or (ii) impose constraints on, or require
changes in, the layout or the operation of the Davidson Yard and such
track extension beyond those shown in the finalized plans and designs
described in subsection III.L.1. or otherwise already approved by UPRR.
Any Party seeking another Party's consent to a material modification,
addition, or expansion of any finalized plans and designs shall reimburse
the consenting Party for its reasonable review costs.
-24-
5. The Project Partners will provide a designated Project Partners
management-level employee suitably authorized to render decisions on
behalf of all the Project Partners and serve as liaison between the UPRR
operations personnel during the construction in the Davidson Yard and the
Project Partners (the "Project Partners Designated Individual"). Until
notified to the contrary, that individual is Rick Herrington of the NTTA,
whose contact information is:
5900 W. Plano Parkway, Suite 100
Plano, Texas 75093
214-461-2020
rherrington@ntta.org
Notwithstanding any provision to the contrary in the Hump Lead
Agreement or this Formal Agreement, an invoice from UPRR shall be
-+ deemed received by the Project Partners upon its personal delivery to the
Project Partners Designated Individual, one business day after its deposit
with a recognized overnight air courier service addressed to the Project
Partners Designated Individual at his or her address then-provided to
UPRR, or upon the Project Partners Designated Individual's actual receipt.
6. UPRR shall contemporaneously provide a copy of any written
communication delivered to the Project Partners Designated Individual to
Bryan Beck with the City and to the District Engineer of TxDOT's Fort
Worth District office.
7. UPRR and the Project Partners shall each provide such other
management support as needed to facilitate the performance by the
Parties of their respective obligations under this Formal Agreement.
8. To the extent not provided under subsections III.H.2., III.H.3., and III.H.4.,
UPRR and the applicable Project Partners shall collaboratively and in
good faith work to finalize agreements for the continued long-term
maintenance of their respective structures contemplated by this Formal
Agreement, which agreements will also address the manner in which
those structures may be removed in the future if the applicable owner
so elects.
9. The Chairman of UPRR, the Mayor of the City, and the Chairman of the
NTTA intend to meet, either telephonically or in person, not less frequently
than once a month throughout the period of time that the Parties are
advancing their activities under this Formal Agreement to discuss any
outstanding issues related thereto.
L. TERMINATION EVENTS AND RIGHTS ON MAY 19, 2009
1. The design of the work to be performed by the NTTA and UPRR has not
advanced sufficiently (a) to prepare the Construction Schedule described
-25-
in subsection III.E.4., as well as to address the work abatement issue
discussed in the concluding sentence of subsection III.G.4., or (b) to
confirm designs that will ensure that (i) the Parties' respective structures
will coexist (including without limitation IH 30) without impairing the safety,
productivity, construction costs, or efficient operation of their respective
operations, (ii) the SWP/SH 121 design addresses to UPRR's satisfaction
the issues discussed in subsection III.F.2., and (iii) the retaining walls to
be constructed by the Parties are acceptable to the Parties. The Parties
will work diligently and in good faith to prepare the Construction Schedule
and to finalize all plans and designs so as to confirm such coexistence
and reasonable accommodation of future expansion on or before
^� May 19, 2009. The Project Partners have indicated that they are unwilling
to make any change to the alignment or location of SWP/SH 121 that
would reopen its Final Environmental Impact Statement, provided that the
.. foregoing indication by the Project Partners does not obligate, bind, or
estop UPRR in any manner or waive any of UPRR's rights, claims, or
defenses regarding preemption, environmental laws, or otherwise. If the
Parties fail to satisfy the conditions set forth in this subsection III.L.1., said
satisfaction to be evidenced in writing and executed by the Parties prior to
that time, this Formal Agreement may be terminated by any Party
delivering written notice thereof to all other Parties on or before
June 2, 2009.
2. Similarly, the design of the work to be performed by the Project Partners
and UPRR has not advanced sufficiently to precisely identify the property
rights or licenses required to accomplish the construction and operation of
their improvements described under this Formal Agreement (including
without limitation property rights or licenses required from both TxDOT
pursuant to Section III.H. and from third parties by UPRR at their fair
market value). The Parties will work diligently and in good faith to finalize
all plans and designs so as to confirm the description of and obtain such
necessary property rights which the Parties need from one another and/or
+ execute such licenses (including without limitation property rights or
licenses required from both TOOT pursuant to Section III.H. and
A subsection III.K.8. and from third parties by UPRR at their fair market
value) on or before May 19, 2009. Except as provided in the following
sentence, if the Parties fail to satisfy the condition set forth in this
subsection III.L.2., said satisfaction to be evidenced by written, authorized,
executed, acknowledged, and fully recordable conveyance instruments
and/or executed licenses exchanged between the Parties and between
,,. UPRR and TOOT (pursuant to Section III.H.) and between UPRR and the
aforesaid third parties in satisfaction of all of their respective property
interest or license needs prior to that time, this Formal Agreement may be
terminated by any Party delivering written notice thereof to all other
Parties on or before June 2, 2009. Notwithstanding the foregoing
sentence, if the property rights or licenses required by UPRR from TOOT
are the only remaining property rights and licenses that have not been
-26-
r
granted on May 19, 2009, this Formal Agreement may not be terminated,
provided UPRR has applied to obtain those rights or licenses from TxDOT
-� and is pursuing them with reasonable diligence. The Project Partners
acknowledge and agree that, to the best of their current actual knowledge,
they do not require the conveyance of property rights or licenses from third
parties (other than UPRR) in order to proceed with their obligations under
the Hump Lead Agreement or this Formal Agreement. The City and the
NTTA agree to provide assistance to UPRR in UPRR's efforts to obtain
-� property interests and licenses from both TxDOT (pursuant to
Section III.H.) and from third parties, provided that the City and the NTTA
will not be required to incur any costs or liability in doing so.
3. In addition to the foregoing, UPRR shall have the right, prior to
May 19, 2009, to terminate this Formal Agreement if it reasonably
-� determines that the Permits it must obtain for its work described in this
Formal Agreement will not be available prior to January 1, 2010 or on
reasonably acceptable terms and conditions proximately related to the
work in question.
4. In addition to the foregoing, the Project Partners shall have the right, prior
to May 19, 2009, to terminate this Formal Agreement if they reasonably
determine that UPRR is unlikely to obtain its required Permits prior to
January 1, 2010. Notwithstanding the foregoing, if prior to May 19, 2009
all of the Permits are issued to and obtained by UPRR, the Project
Partners' termination right under this subsection III.L.4. shall terminate.
5. If any Party reasonably determines on the basis of the environmental due
diligence investigation conducted pursuant to subsection III.J.5. that the
results of said investigations are unsatisfactory with respect to property
that Party is to receive or convey under this Formal Agreement, that Party
may terminate this Formal Agreement on written notice given to the other
Parties on or before May 19, 2009.
6. If on or before May 19, 2009, either (a) sufficient funds have not been
officially appropriated and budgeted or are otherwise unavailable through
aw other legal and dependable means to satisfy a Project Partner's
obligations under this Formal Agreement, including without limitation
subsections III.1.1. and 111.1.5. or (b) a Project Partner is unwilling to
execute and deliver an amendment to this Formal Agreement approving
and authorizing an adjustment to the $72 million component described in
subsection 111.1.3., then that Project Partner will immediately notify the
other Parties of such occurrence on or before May 19, 2009 and this
Formal Agreement may be terminated by any Party delivering written
notice thereof to all other Parties on or before June 2, 2009. In addition to
the foregoing, the Project Partners will provide monthly status reports to
UPRR on the respective Project Partner's efforts to authorize and
r appropriate sufficient funds, whether by means of budgeting funds on
�. -27-
hand or through bond issues or borrowing, to fulfill the Project Partners'
obligations under this Formal Agreement, including the adjustment of the
$72 million component payable by the City and the NTTA pursuant to
subsection 111.1.3.
7. If this Formal Agreement terminates (a) due to the expiration of the
Maximum Test Period under the Hump Lead Agreement without the Hump
Lead testing successfully or (b) pursuant to subsections III1.1., 2., 4., 5.,
or 6., this Formal Agreement shall be of no further force or effect and no
reimbursements (including for any Hump Lead costs or the $1.5 million
advanced to UPRR pursuant to subsection 111.1.5.) shall be owing between
the Parties. If UPRR terminates this Formal Agreement pursuant to
subsection III.L.3., this Formal Agreement shall be of no further force or
effect, provided that UPRR shall promptly reimburse the City and the
NTTA for one-half of that portion of the $1.5 million advanced to UPRR
pursuant to subsection 111.1.5. (but not Hump Lead costs).
M. FINALIZING THIS FORMAL AGREEMENT
The Parties acknowledge that the condition set forth in Section III.C. of the Hump
Lead Agreement that this Formal Agreement be fully executed within 30 business
days following the complete execution and delivery of the Hump Lead Agreement
has been fully satisfied.
N. OBLIGATIONS OF TxDOT AND THE PROJECT PARTNERS
1. Without in any manner abrogating or otherwise affecting any obligation of
the Project Partners to UPRR, this Formal Agreement does not affect the
rights and obligations of TxDOT, the City, and the NTTA amongst
themselves regarding the development of SWP/SH 121. The Project
Partners Agreement established support for SWP/SH 121 to be developed
by the NTTA, but specified, among other matters, that TxDOT's
participation in the development is subject to future review and approval
by the Texas Transportation Commission.
2. Any conveyances of property rights by TxDOT are subject to the review
and approval by the Texas Transportation Commission. However, a
license described in subsection III.E.2. needed by UPRR to accommodate
its construction of improvements under this Formal Agreement may be
provided by TxDOT's Fort Worth District without action by the Texas
Transportation Commission and at no cost. As noted in subsection
III.G.6., the Parties acknowledge that TxDOT and the NTTA have entered
into a term sheet indicating their shared intent that, among other things,
the NTTA, instead of TxDOT, will construct the IH 30 interchange, in which
case the related right-of-way provisions in this Formal Agreement shall
benefit the NTTA and not TxDOT.
-28-
O. PRESS RELEASES
As noted in subsection 111.1.1., the negotiation and execution of the Hump Lead
Agreement and this Formal Agreement resulted from an effort to agree to a
settlement of disputes, thus avoiding Surface Transportation Board litigation and
the imminent threat of eminent domain proceedings.
The Parties shall coordinate the timing of and comments in press releases and
public announcements related to the full execution and delivery of this Formal
Agreement to assure consistency with the contents hereof. As noted above,
UPRR will not waive, or be deemed to have waived, its right to assert federal
preemption until such time that not only this Formal Agreement is fully executed
and delivered, but also such time that the Parties' respective rights to terminate
this Formal Agreement under Section III.L. have been either terminated or
waived. Likewise, the Project Partners will not waive, or be deemed to have
waived, any right to pursue condemnation of UPRR property (including the filing
of any related action with the Surface Transportation Board or in eminent
domain) until such time that not only this Formal Agreement is fully executed and
delivered, but also such time that the Parties' respective rights to terminate this
Formal Agreement under Section III.L. have been either terminated or waived.
P. MISCELLANEOUS
1. Amendments to this Formal Agreement shall only be valid if in writing and
signed by all of the Parties.
2. All notices to be provided under this Formal Agreement shall be delivered
personally or sent by a recognized overnight air courier service,
addressed to such Party at the following addresses:
UPRR: Union Pacific Railroad Company
Attn: AVP Engineering — Design and Construction
1400 Douglas Street— STOP 0910
Omaha, NE 68179-0910
With a copy to:
Union Pacific Railroad Company
Attn: Real Estate Attorney
r 1400 Douglas Street— STOP 1580
Omaha, NE 68179-1580
TxDOT: Amadeo Saenz Jr., P.E.
Executive Director
Texas Department of Transportation
125 East 11 th Street
Austin, TX 78701
-29-
The City: Dale A. Fisseler, P.E.
City Manager
City of Fort Worth
1000 Throckmorton Street
Fort Worth, TX 76102
NTTA: Rick Herrington
Deputy Executive Director
�• North Texas Tollway Authority
Suite 100
5900 West Piano Parkway
Plano, TX 75093
A notice shall be deemed received by a Party upon its personal delivery to
�• that Party, one business day after its deposit with a recognized overnight
air courier service properly addressed to that Party, or upon that Party's
actual receipt. Any Party may change its notice address by notifying the
other Parties at their then-current notice addresses.
3. The Parties agree that no Party is an agent, partner, servant, or employee
of any other party. This Formal Agreement does not in any way create a
partnership, joint venture, joint enterprise or principal/agent relationship
between the Parties.
4. The Parties shall comply with all applicable federal, state, and local laws,
statutes, ordinances, rules and regulations, and the orders and decrees of
any courts or administrative bodies or tribunals in any manner affecting
the performance of this Formal Agreement.
•• 5. This Formal Agreement and the Hump Lead Agreement constitute the
only agreements between UPRR and the Project Partners and
supersedes any prior understandings or written or oral agreements
respecting their subject matter.
6. Except as provided in subsection III.G.6., the rights and obligations of any
Party hereunder shall not be assigned without the prior written consent of
the other Parties. The obligations created under this Formal Agreement
are binding upon the Parties and their successors and permitted assigns.
7. The Parties shall maintain all books, documents, papers, accounting
records, and other documentation relating to costs incurred under the
F� Final Agreement and shall make such materials available to each other
upon a reasonable request.
8. Due to the important role the Permits play in the commencement of the
UPRR Construction Period and the need to avoid future disputes between
the Parties, this Formal Agreement includes a comprehensive list of all
Permits required for UPRR's work under this Formal Agreement and
-30-
known to UPRR and the Project Partners upon the execution and delivery
thereof consistent with the definition provided in subsection III.E.5. The
Permits are those listed on Attachment 10. Additional Permits not now
known to UPRR and discovered as work progresses under this Formal
Agreement may be added to the Permits, but conditions or tasks known by
UPRR upon execution of this Formal Agreement will not be re-
characterized as Permits.
9. As indicated in the Hump Lead Agreement, this Formal Agreement
includes a disputes resolution process applicable to the Parties under
Section III.R., as well as provisions dealing with events of default and
remedies under Section III.Q. Among its other uses, the Parties shall
utilize the disputes resolution process if any Party (the "Paying Party")
disagrees with the accuracy or appropriateness of any invoice, cost, or
charge that it is presented under this Formal Agreement. If the Paying
Party discovers the alleged inaccuracy prior to the due date for the
invoice, cost, or charge, it will bring the matter to the attention of the Party
seeking payment (the "Invoicing Party") and they will attempt to resolve
the disagreement prior to the due date. If the matter is not resolved prior
to the due date, the payment will nonetheless be made by the Paying
Party and the matter referred to the dispute resolution process. If any
portion of the payment is later determined to have exceeded the amount
properly due at the time of the invoice, cost, or charge, the Paying Party
shall be reimbursed that portion by the Invoicing Party, with interest at
6.3% per annum on that portion from the date it was improperly paid,
within 30 days; alternatively, the Paying Party may set off that amount (the
improperly paid portion plus interest) from any invoice, cost, or charge
subsequently presented to it by the Invoicing Party. Any payment by the
Paying Party shall neither (a) relieve the Invoicing Party of its obligations
under this Formal Agreement to the extent those obligations have not
been properly performed nor (b) effect an accord and satisfaction; as set
forth above, after making any payment that is later determined to be
inaccurate or inappropriate, the Paying Party may recover same as
provided in this subsection III.P.9.
10. Each of the Parties (in such capacity, the "Representing Party") hereby
represents, warrants and covenants to the other Parties as of the effective
date hereof, as set forth below.
(a) Organization and Authority. The Representing Party is either a
Delaware corporation, in the case of UPRR, an agency of the State
_ of Texas, in the case of TOOT, a Texas home rule municipality, in
the case of the City, or a regional tollway authority and political
subdivision of the State of Texas, in the case of NTTA, is duly
organized, validly existing and, in the case of UPRR, in good
standing under the applicable laws of the jurisdiction in which it has
been formed, and has all requisite power and authority to own,
-31-
lease and operate its assets and to conduct its business as now
being conducted. The Representing Party is not in default under or
in violation of any provision of the documents, laws and regulations
governing its formation and existence.
(b) Authority Relative to this Formal Agreement. The Representing
Party has full power and authority to enter into, execute and deliver
this Formal Agreement and the ancillary agreements explicitly
referenced herein, including, without limitation, the Hump Lead
Agreement (collectively, the "Additional Documents") to which it is a
party and to perform fully its obligations hereunder and thereunder.
The Representing Party has taken all action required by any
statute, law, code, regulation, treaty or other state or federal
legislative, executive or administrative requirement or by its articles
of incorporation, charter, by-laws or other organizational documents
to authorize the execution and delivery of and performance of its
obligations under this Formal Agreement and the Additional
Documents to which such Representing Party is a party. This
Formal Agreement and the Additional Documents to which the
Representing Party is a party have been duly and validly executed
and delivered by the Representing Party and, assuming due
authorization, execution and delivery by the other Parties,
constitute valid and binding legal obligations of the Representing
Party, enforceable against the Representing Party in accordance
with their terms, subject only to applicable bankruptcy, insolvency
and similar laws affecting the enforceability of the rights of creditors
generally and general principles of equity. Notwithstanding
anything to the contrary contained in this subsection III.P.10.b., the
Parties acknowledge and agree that the Project Partners have not
received authorization, nor have all actions been taken (including
action by the Texas Transportation Commission or the Fort Worth
City Council), for the Project Partners to convey any of the
permanent property interests anticipated by this Formal Agreement.
(c) Appropriation of Funds. Each Representing Party other than UPRR
has obtained final and binding authorization from all necessary
persons or entities for an appropriation or, in the case of NTTA, a
designated source of funds sufficient to cover such Representing
Party's share of all anticipated amounts due to UPRR under the
Hump Lead Agreement and under this Formal Agreement with
respect to the $1,500,000 payment to UPRR for design costs under
subsection 111.1.5. The appropriate portions of the funds so
appropriated or designated will be available to such Representing
Party for disbursement without condition, deduction or offset except
as expressly set forth in this Formal Agreement or the Hump Lead
Agreement on the dates its share of such amounts due to UPRR
are payable hereunder or thereunder. The Parties acknowledge
-32-
and agree that this subsection III.P.10.c. is inapplicable to TxDOT
insofar as this Formal Agreement and the Additional Documents do
= not anticipate any amounts being due to UPRR by TxDOT.
(d) Absence of Conflicts. The execution, delivery and performance of
- this Formal Agreement and the Additional Documents, and the
transactions contemplated hereby and thereby, do not and will not
(i) conflict with or result in any violation of or constitute a breach or
default under any provision of any statute, law, code, regulation,
treaty or other state or federal legislative, executive or
administrative requirement or any of the articles of incorporation,
charter, by-laws or other organizational documents applicable to or
governing the creation and existence of such Representing Party,
(ii) violate, conflict with or result in a violation or breach of, or
constitute a default (with or without due notice or lapse of time or
both) under, or permit the termination of, or require any notice
under, or require the consent of any other parry to, or result in the
acceleration of, or entitle any party to accelerate any obligation or
agreement, or result in the loss of any benefit or the imposition of
any fee or penalty, or give rise to the creation of any lien upon any
of the assets of such Representing Party, in each case under any
of the terms, conditions or provisions of any debt, note, bond,
mortgage, indenture, deed of trust, license, lease, permit,
agreement or other instrument or obligation to which such
Representing Party is a party or by which such Representing Party
or any of its assets may be bound or affected, or (iii) violate any
judgment to which such Representing Party or any of its assets is
bound or subject.
(e) Consents. Except with respect to the Project Partners' conveyance
of any permanent property interests anticipated in this Formal
Agreement, no notice to and no permit, authorization, consent or
approval of any governmental entity or other person or entity is
necessary for the performance by the Representing Party of its
obligations under this Formal Agreement or the Additional
Documents.
(f) Brokers. No agent, broker, investment banker, financial advisor,
finder or other Person is or will be entitled to any brokerage
commission, finder's fee or like payment in connection with any of
the transactions contemplated by this Formal Agreement based
upon such arrangements made by or on behalf of the Representing
Party.
(g) Survival. The Representing Party's representations and warranties
shall survive for a period of 12 months after the later to occur of (i)
the date of the last payment made by such Representing Party
-33-
hereunder, and (ii) the date of performance of the final obligation of
the Representing Party to another Party hereunder.
(h) No Third Party Beneficiaries. The Parties to this Formal Agreement
do not intend for any third party to obtain any rights by virtue of this
Formal Agreement. By entering into this Formal Agreement, the
Parties do not intend to create any obligations express or implied
other than those stated in this Formal Agreement; further, this
Formal Agreement shall not create any rights in any party not a
` signatory to this Formal Agreement.
11. All references in this Formal Agreement to "days" shall refer to calendar
days unless otherwise explicitly indicated.
12. Without limiting the terms of subsection III.P.10., the signatories to this
Formal Agreement warrant that each has the authority to enter into this
Formal Agreement on behalf of the Party represented.
13. As part of the good and valuable consideration provided one another
under this Formal Agreement, the Parties agree to limit the nature and
scope of the monetary damages for which they may be liable or
responsible under this Formal Agreement. Without in any manner limiting
any defenses available on any basis to any Party after taking into account
any waivers effected under or pursuant to this Formal Agreement
(including any contract defenses available to any Party, provided that any
counterclaim shall be subject to the provisions of this subsection III.P.13.)
or the ability of any Party to seek or obtain equitable relief or other non-
monetary remedies (including, without limitation, specific performance)
available to that Party, no Party under this Formal Agreement shall as a
result of any default under or breach of this Formal Agreement be liable
for monetary damages in excess of or in addition to direct, actual
damages, including having no liability for any consequential damages, lost
profits, delay damages (except as expressly illustrated below), punitive
damages, special damages, or indirect damages, and each Party hereby
waives its rights to the aforesaid damages in excess of or in addition to
direct, actual damages and hereby releases all other Parties from any
liability for such aforesaid damages in excess of or in addition to direct,
actual damages. The Parties agree that direct, actual damages specifically
include, without limitation, the following: (a) damages for nonpayment of
all agreed contract payments and specific reimbursement amounts
expressly required to be paid by one Party to another Party hereunder
(e.g., all amounts due to UPRR under Sections II.A. and III.I., and all
amounts, if any, due the Project Partners under subsections II.A.2. and
III1.7.), (b) damages related to claims for bodily injury or damage to
tangible personal property, (c) damages arising from the breach of or
default under covenant obligations contained in this Formal Agreement
which are expressly included in direct, actual damages by reference to this
-34-
subsection III.P.13., and (d) amounts owed by the Project Partners to their
contractors as a result of delay, disruption, hindrance, or acceleration
_ resulting from UPRR's breach or default under this Formal Agreement.
Illustrative of the foregoing, in the event of a UPRR breach or default,
UPRR will in no event be liable for delay damages for lost project tolls or
other revenues on SWP/SH 121 or for escalating construction costs due to
inflation or similar factors, but would be liable for amounts owed by the
Project Partners to their contractors as a result of delay, disruption,
_. hindrance, or acceleration resulting from UPRR's breach or default under
this Formal Agreement. Additionally, in any instance under this Formal
Agreement in which the Parties have stipulated the amount of damages
owing in a certain circumstance (e.g., as the Parties commit to do in the
concluding two sentences of subsection III.G.4. and in the concluding
sentence of subsection III.E.8.), such stipulated amount shall be the
exclusive monetary damages that can be sought or recovered.
Finally, and in addition to the reservation of defenses and the limitations of
monetary damages provisions set forth or referenced above, the Parties
agree that the maximum cumulative amount of actual, direct damages for
which either UPRR, on the one hand, or the Project Partners, on the other
hand, may be liable with respect to defaults under or breaches of this
Formal Agreement shall be Seven Million Five Hundred Thousand Dollars
($7,500,000.00), provided however that recovery from a Party on account
of either (a) nonpayment of all agreed contract payments and specific
reimbursement amounts expressly required to be paid by such Party to
another Party hereunder or (b) claims for bodily injury or damage to
tangible personal property, shall not be limited by such maximum
cumulative amount. The Parties agree that any incremental
mobilization/demobilization and similar costs, together with any penalties
or other damages, due to the NTTA under the concluding two sentences
of subsection III.G.4. (and limited to only mobilization/demobilization and
similar costs up to the cumulative amount of $250,000.00 under the
circumstances described in subsection III.E.8.) shall be deemed to be
actual, direct damages included in the calculation of such maximum
cumulative amount set forth in the preceding sentence. The Parties
acknowledge that, as a matter of law, TxDOT, the City, and the NTTA are
subject to the Texas Tort Claims Act.
Q. EVENTS OF DEFAULT
The happening of any one or more of the following listed events shall constitute a
breach of this Formal Agreement on the part of a Party:
1. Such Party fails to pay any sum of money required to be paid hereunder to
another Party when due under this Formal Agreement or under any of the
Additional Documents, provided that if such sum does not have a specific
due date expressly provided for under this Formal Agreement, such sum
-35-
shall be due 30 days after written demand from the Party entitled to
receive payment of such sum; or
2. Such Party fails to perform any term, covenant or condition of this Formal
Agreement or of any of the Additional Documents, except those requiring
the payment of a sum of money, within the period permitted hereunder or
under such Additional Document, taking into account any extension of
such period explicitly provided under this Formal Agreement or such
Additional Document for force majeure or other circumstance, and such
Party fails to cure such breach within 10 days after written notice from any
other Party.
If any Party believes that any event or condition claimed by another Party to be
breach is not in fact an breach, such Party shall have the right to contest such
claim by giving written notice of such contest for resolution pursuant to
Section III.R. below.
R. DISPUTE RESOLUTION
The Parties agree that any disputes among the Parties to this Formal Agreement
arising out of or relating to this Formal Agreement (a "Dispute"), including, without
limitation, all rights to receive payments from, or the benefits of performance by,
another Party hereto inuring to a Party under or as a result of this Formal
.. Agreement and all obligations to make payments or perform duties owed by a Party
arising under or as a result of this Formal Agreement, shall be resolved exclusively
as set out in this Section III.R. Disputes regarding either (a) design, engineering,
construction methods, construction sequencing, operations or any other matters
that involve or affect the functionality, safety or operation of the Davidson Yard,
SWP/SH 121 or any of the other highways, roads, bridges or tracks referenced
herein or (b) any Party's failure to provide, or interference with, UPRR's or the
NTTA's right and ability to advance its construction activities during, with respect
to UPRR, the UPRR Construction Period, or, with respect to the NTTA, during
the NTTA Construction Period, pursuant to this Formal Agreement (the "Non-
Arbitrable Disputes") shall be resolved solely by the procedures set forth in
subsection III.R.1. and shall not be subject to mediation or arbitration, but shall
instead, if not resolved under subsection III.R.1., be resolved either by a final,
non-appealable order of a court of competent jurisdiction or by the subsequent
agreement of all of the Involved Parties (as hereinafter defined). Except as
provided in the following sentence, disputes regarding all other Disputes (the
"Arbitrable Disputes") shall be resolved by the procedures set forth in
subsections III.R.1., 2., and 3. Notwithstanding anything to the contrary contained
in this Section III.R. or otherwise in this Formal Agreement, TOOT cannot agree,
and does not agree, to final, exclusive, and binding arbitration and, consequently, a
Dispute with TOOT (whether an Arbitrable Dispute or a Non-Arbitrable Dispute)
� shall under no circumstances be resolved by the procedures set forth in subsection
III.R.3., but shall instead, if not resolved under subsection III.R.1., be resolved as
provided in the penultimate sentence of subsection III.R.2.
.� -36-
1. Informal Resolution. If any Party believes a Dispute exists, that Party
may notify all of the other Parties pursuant to the notice provisions of this
Formal Agreement that a Dispute exists, and of the specific nature of the
Dispute. For a period of 10 business days after receipt of such notice, all
Parties shall negotiate in good faith to resolve the Dispute. If the
negotiations are not successful, any Party may notify in writing the other
Parties that the provisions of this Section III.R. shall be invoked (the
"Resolution Start Notice"). The Resolution Start Notice shall include (a) a
statement of such Party's position on the Dispute, (b) a summary of the
reasons supporting such Party's position and (c) a proposed resolution to
such Dispute that would be satisfactory to such Party. Within 5 business
days from receipt of the Resolution Start Notice, each Party receiving
such Resolution Start Notice shall either (i) notify the other Parties that it
is not involved in or affected by such Dispute and will not participate in
the resolution thereof or (ii) deliver to the other Parties a written response
to the Dispute (a "Resolution Response Notice"). Each Resolution
Response Notice shall include (x) a statement of such Party's position on
the Dispute, (y) a summary of the reasons supporting such Party's
position and (z) a proposed resolution of such Dispute that would be
satisfactory to such Party. If a Party either notifies the other Parties that it
is not involved in or affected by such Dispute or fails to issue a Resolution
Response Notice within the applicable time period, such Party shall be
excluded from the resolution process for such Dispute and the Party
sending the Resolution Start Notice and the Parties timely delivering
Resolution Response Notices shall be deemed to be the "Involved
Parties" with respect to such Dispute, provided however that if any
Involved Party gives written notice to the other Involved Parties within 15
business days after receipt of the Resolution Start Notice claiming that a
Party desiring or deemed to be uninvolved in such Dispute is a necessary
party to the resolution of such Dispute, such Party shall be deemed an
Involved Party and shall participate in the resolution process. Each Party
hereby designates the following senior executive of such Party (the
"Designated Executive") and agrees that such Designated Executives
shall have full authority to resolve such Dispute. The Designated
Executive for UPRR shall be John Hovanec. The Designated Executive
for NTTA shall be Rick Herrington. The Designated Executive for the City
shall be Bryan Beck. The Designated Executive for TOOT shall be
Maribel Chavez. In the event any Designated Executive is no longer
employed by the applicable Party or has undertaken a new position with
such Party that does not include responsibilities related to this Formal
Agreement, such Party shall designate a replacement, and deliver written
notice of such replacement to the other Parties. Any Party may also
replace its Designated Executive upon written notice to the other Parties.
The Designated Executives shall immediately begin to communicate
regarding the Dispute, including attendance at a personal meeting if
requested by any other Designated Executive, and shall exercise good
-37-
faith efforts to resolve the Dispute fairly and completely within 30 days
from the date of the last Resolution Response Notice.
If the Dispute has not been resolved within 30 days of the submission of
such Dispute to the Designated Executives (or at any time after such
.� submission, if any Involved Party believes that time is of the essence with
respect to such Dispute and that the resolution process should be
expedited), then any Involved Party may by written notice to the other
Involved Parties refer the Dispute to the Chief Executive Officers (or
persons having equivalent decision-making authority regardless of title) of
the Involved Parties for their review and resolution.
2. Non-Binding Mediation. If the applicable Chief Executive Officers do not
resolve the Dispute within 20 days of submission to them, then any
Involved Party may give written notice to the other Involved Parties of its
intent to mediate the Dispute. If the Involved Parties do not agree upon a
mediator within 20 days following the other Involved Parties' receipt of the
notice of the intent to mediate, any Involved Party may refer the matter to
the Austin office of the American Arbitration Association for non-binding
mediation. The Designated Executives for the Involved Parties shall
attend the mediation in person. The applicable Chief Executive Officers
will not be required to attend the mediation in person, but will remain
involved in the mediation process to consult with the Designated
Executives. Subject to the availability of the mediator, any mediation
shall be initiated within 30 days (or other mutually agreed time period) of
the selection of the mediator, and the mediation process must be
concluded within 45 days (or other mutually agreed time period) from the
mediation start date.
If such mediation is concluded without a resolution to the Dispute that is
satisfactory to all of the Involved Parties, (a) if such Dispute is an
Arbitrable Dispute, it shall be resolved pursuant to the procedures set
forth in subsection III.R.3., or (b) if such Dispute is a Non-Arbitrable
Dispute, it shall not be subject to the procedures set forth in such
subsection III.R.3., but shall instead be resolved either by a final, non-
appealable order of a court of competent jurisdiction or by the subsequent
agreement of all of the Involved Parties. Notwithstanding the foregoing,
.. any Dispute (whether an Arbitrable Dispute or a Non-Arbitrable Dispute)
in which TxDOT is an Involved Party shall not be subject to the
procedures set forth in such subsection III.R.3., but instead the Party
asserting the Dispute may seek to resolve the Dispute through either its
exercise of any remedy or means available in law or equity or by the
subsequent agreement of all of the Involved Parties. The costs and
., expenses of mediation, including compensation and expenses of the
mediator, but excluding attorneys' fees incurred by any Party, shall be
borne 50% by UPRR and 50% by the other Involved Parties, unless such
-38-
Dispute is between the Project Partners, in which case each Project
Partner shall bear an equal share of such costs, compensation and
expenses.
3. Final, Exclusive and Binding Arbitration. Any Arbitrable Dispute that is
not resolved consistent with the procedures in subsections III.R.1. and 2.
and does not include TxDOT as an Involved Party shall be finally
resolved by final, exclusive, and binding arbitration under this subsection
III.R.3. Judgment upon the award rendered by the arbitral tribunal may be
entered in any court having jurisdiction thereof.
•. (a) The arbitration process will be commenced by the initiating Party giving
written notice to the other Involved Parties of its intention to
arbitrate such Arbitrable Dispute (the "Arbitration Demand"). The
Arbitration Demand specifically shall identify the questions to be
submitted for arbitration. The other Involved Parties, within 10
business days after receipt of the Arbitration Demand, shall submit a
written response to the initiating Party and the other Involved Parties
that specifically responds to the questions identified in the Arbitration
Demand and identifies any additional questions (which may include
counterclaims or additional claims against the initiating Party arising
under this Formal Agreement) to be submitted for arbitration in
connection with such Arbitrable Dispute. The initiating Party, within
10 business days after receipt of the last of such response(s), shall
deliver to each other Involved Party a written response that
specifically responds to any new questions identified in such
response(s).
(b) Venue for the arbitration shall be as set out below, unless
otherwise mutually agreed by the Involved Parties. Within 20
business days after the Arbitration Demand is made, UPRR shall
choose one arbitrator and the Involved Party or Parties that are
Project Partners will jointly designate one arbitrator (collectively,
the "party arbitrators") and shall notify the other Involved Parties of
such choice. Within 10 days after notice is served of their
appointment by such Involved Parties, the two arbitrators so
chosen will appoint a third arbitrator (the "Chairperson"). The three
arbitrators are hereinafter referred to as the "Arbitration Panel".
Disputes which primarily involve interpretations of the scope or
nature of the Parties' legal rights and obligations under this Formal
Agreement shall be determined by arbitrators who are practicing
attorneys or retired judges having at least 10 years experience of
involvement in the litigation or arbitration of public or commercial
., contract disputes. Disputes which primarily involve claims or
defenses based on the nature of the construction to be performed
pursuant to this Formal Agreement or the facts and circumstances
surrounding the execution of such construction shall be determined
.. -39-
by arbitrators who have at least 10 years experience of involvement
in both large-scale rail transportation and large-scale highway
transportation projects as either an officer or construction manager
_ at a nationally recognized construction, construction management,
or civil engineering firm that has not been employed by any of the
Project Partners or UPRR during the past 5 years. If the selecting
Involved Parties disagree about the type of arbitrators to be
appointed for any Dispute, each such selecting Involved Party shall
designate the type of arbitrator it deems appropriate and the party
arbitrators shall select a Chairperson of the type they deem
appropriate. The Chairperson shall preside over the Arbitration
Panel. Any issue presented to the Arbitration Panel shall be decided
by two or more of the arbitrators; provided, however, that in the event
two or more panel members cannot reach agreement on any
particular issue, the issue shall be decided by the Chairperson. If
the two arbitrators so chosen are unable to select a Chairperson
as provided above, the Chairperson shall be selected by a Judge of
the United States Federal District Court sitting in Austin, upon a
.. petition that forthwith shall be filed by the two arbitrators selected by
the Involved Parties. Once the arbitration process has commenced
and until it has concluded, the arbitrators shall not communicate ex
parte with any of the Involved Parties or their representatives
concerning the arbitration. The Arbitration Panel, when complete, shall
meet forthwith with the Involved Parties in an initial hearing to discuss
*r procedures and preliminary issues.
(c) At the request of any Involved Party, or at the discretion of the Arbitration
-• Panel, and consistent with the expedited nature of the arbitration
procedure set forth in this Formal Agreement, the Arbitration Panel
may direct the following discovery:
(i) the production of documents and other information;
(ii) the depositions of select witnesses identified by the Involved
Parties; and
(iii) answers to written interrogatories or requests for admissions.
(d) The Arbitration Panel may, in its discretion, apply the standards of
y Federal Rule of Civil Procedure 26 in order to resolve any disputes
that may arise in connection with these discovery procedures. In
addition, at the request of any Involved Party, the Arbitration Panel
may enter such protective orders as are appropriate to protect trade
secret, proprietary and confidential information.
-40-
(e) The discovery and disclosure addressed in this Section III.R. shall
be completed within 90 days after the initial hearing. If necessary
to compel attendance of witnesses to provide testimony at
depositions or at trial or to provide documents, any Involved Party
or the Arbitration Panel may petition any court of competent
jurisdiction to issue subpoenas compelling discovery.
(f) The Arbitration Panel shall, with reasonable diligence (not to
exceed 120 days after the initial hearing) conduct an evidentiary
hearing, and such other proceedings as they deem appropriate,
and complete those proceedings. The evidentiary hearing, and all
other hearings, will be held after reasonable notice is given of the
time and place to the Involved Parties. At the evidentiary hearing,
each Involved Party will be permitted to present its case, witnesses
and evidence, if any, in the presence of the other Involved Parties,
' and to conduct direct and cross-examination as the Arbitration
Panel may decide is appropriate. Witnesses will testify under oath
and the oath taken shall have the same effect as testifying before a
court of competent jurisdiction. The Involved Parties may offer
such evidence as is relevant and material to such Arbitrable
Dispute and shall admit such evidence as the Arbitration Panel may
deem necessary to an understanding and determination of such
Dispute. Conformity to legal rules of evidence shall not be
_ necessary; provided, however, that the Arbitration Panel may
consider the requirements of the Federal Rules of Evidence in
resolving issues that may arise concerning the admissibility of
_ evidence. All evidence shall be taken in the presence of all of the
arbitrators and all of the Involved Parties. A written transcript of the
hearing may, at the request of any Involved Party, be made. If
more than one Involved Party requests a transcript, the requesting
Involved Parties shall split the cost. If one or more Involved Parties
requests a transcript, it or they shall pay the cost but shall have no
obligation to provide a copy to the other Involved Parties. Within 10
days after the close of the evidentiary hearing, each Involved Party
shall have the right to submit a written brief setting forth such
Involved Party's position.
(g) A majority of the Arbitration Panel (or the Chairperson if a majority
"3 cannot be obtained) forthwith shall issue its arbitration decision,
which shall be in writing and delivered to all Involved Parties, within
30 days after the deadline for submittal of written briefs, provided,
that the Project Partners and UPRR acknowledge and agree that
any damages awarded under these arbitration proceedings are and
shall be expressly limited as provided in subsection III.P.13. of this
Formal Agreement and all of the limitations and maximum amounts
set forth in such subsection shall apply to any such awards
-41-
regardless of any action or holdings to the contrary by the arbitrators
therein. The Arbitration Panel shall interpret this Formal Agreement
and shall follow the statutory and common law that applies to the
Arbitrable Dispute. The Arbitration Panel is hereby expressly
authorized to include interest on any amounts awarded accruing
*■ prior to the date of such award at the rate and on the terms provided
for in subsection 111.1.4. of this Formal Agreement. Nothing
contained herein shall be deemed to give the Arbitration Panel any
authority, power or right to change, modify, add to or subtract from
any of the provisions of this Formal Agreement. The decision will
state the reasons upon which it is based. The decision will be final
and binding upon all of the Involved Parties, but shall not in any way
affect the rights or obligations of the Parties which were not Involved
Parties. The Involved Parties forthwith shall comply therewith.
- Judgment in any court of competent jurisdiction on the Arbitration
Panel's decision and award may be entered on the request of any
Involved Party or of the Arbitration Panel. Such judgment shall have
the same effect as any other judgment entered by such court where
venue is appropriate and there is jurisdiction over the Involved
Parties and the subject matter of the Dispute. Payment of damages
pursuant to the arbitration decision shall be made within 30 days
after entry of the Arbitration Panel's decision, whether or not it has
yet been reflected in a judgment of any such court. UPRR, the City
and the NTTA each hereby expressly agrees that the Arbitration
Panel shall have jurisdiction to render a decision as set forth in this
Section III.R. and that a court shall have jurisdiction to enter a
A
judgment on the Arbitration Panel's award and that neither the
rendering of such award or the entry of judgment on such award are
preempted under state or federal law, and UPRR, the City and the
NTTA each expressly waives any defense to the Arbitration Panel
rendering an award or the entry of judgment on such award based
on state or federal preemption.
(h) Unless otherwise ordered by the Arbitration Panel, each of the
Involved Parties shall bear the costs of the arbitrator selected by it, its
own attorneys fees, and its own other costs associated with the
arbitration, and UPRR, on the one hand, and the other Involved
Parties, on the other hand, shall each bear 50% of the fees and costs
incurred in connection with the Chairperson, unless such Dispute is
between the City and the NTTA in which case the City and NTTA
will each bear 50% of such fees and costs incurred in connection
with the Chairperson. The deadlines set forth in this subsection
III.R.3. may be extended by the agreement of the Involved Parties,
by the Arbitration Panel or at the request of any Involved Party upon
a showing of good cause. The Arbitration Panel shall have the
power and discretion, anything to the contrary in law or custom or
�. -42-
contract notwithstanding, to award attorneys fees and costs in whole
or in part to any Involved Party at any point in the proceedings
pursuant to this Section III.R. of this Formal Agreement and/or if the
Arbitration Panel determines that an Involved Party has acted in a
dilatory manner, has proceeded in bad faith, or has caused
unnecessary delay or needlessly increased the cost of the
arbitration procedure.
4. Performance. Subject to the terms of subsection 111.1.4, each of the Parties
shall continue performance under this Formal Agreement during the process
of resolving a Dispute, except to the extent that such performance is made
commercially impracticable by reason of the existence of the Dispute. If it is
•• contested that the ability to perform was made impracticable by the Dispute,
that issue and damages relating thereto shall be decided by the Arbitration
Panel in any evidentiary hearing and related proceedings.
5. Interim Relief. Notwithstanding the foregoing, any Party may resort to any
court of competent jurisdiction to the extent reasonably necessary to (a) avoid
expiration of a claim that might eventually be permitted, including claims
seeking orders requiring compliance with this Section III.R., (b) obtain interim
relief, including injunctive relief, to preserve the status quo or prevent
irreparable harm, or (c) vindicate a Party's intellectual property rights,
including, without limitation, the recovery of money damages for infringement
or other misappropriation.
6. Confidentiality. The informal dispute resolution, mediation, and arbitration
and all proceedings thereunder shall be confidential and, absent a court order
or subpoena, no Party, nor any mediator, or arbitrator may disclose to any
third party the existence, content (including communications, documents and
pleadings), or results of any proceeding hereunder without the prior written
consent of each Party.
7. Choice of Law and Forum. The Parties hereby agree that Texas law will
apply to any Dispute, without giving effect to any conflict of law rules or other
rules that might render such law inapplicable or unavailable. The Parties
agree that all mediations and all arbitrations shall be conducted in Austin,
Texas, except to the extent the Parties explicitly agree otherwise in writing.
The Parties (except TxDOT) agree to sign all documents and to do all other
things reasonably necessary to submit any such matter to arbitration and
further agree to, and hereby do, waive any and all rights they or either of them
may at any time have to revoke their agreement hereunder to submit to
arbitration and to abide by the decision rendered thereunder.
8. Governing Rules. Unless otherwise agreed by the Parties at the time of such
election, the rules governing mediation or arbitration shall be the Construction
-43-
Industry Dispute Resolution Procedures of the American Arbitration
Association.
[REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK]
ow -44-
EXECUTED as of the date first written above.
UNION PACIFIC RAILROAD COMPANY,
a Delaware corporation
By:
Name: James R. Young
Title: President & Chief Executive Officer
r
CITY OF FORT WORTH,
a Texas home-rule municipality
i
.� Fernando Costa,
Assistant City Manager
Date: �-/ 9
Reco ended by:
By: � All
Nam k, •�.
Title: "01 p�,�All1 GEC.
Department: C&d
ATTEST:
Marty HeAdrilx
City Secretary
Authorization:C
Date: _
L" APPROVED AS TO FORM:
By:
Am msey,
Assistant City Attorney
A
ECORD
ETARY
H,TX
TEXAS DEPARTMENT OF
TRANSPORTATION
By: -
` Amadeo Saenz, Jr., ,
Executive Director
Date:_ 4 2Td p
NORTH TEXAS TOLLWAY AUTHORITY
By:
71 Janice D. Davis,
Interim Executive Director
Date:
APPROVED AS TO FORM:
LOCKE LORD BISSELL & LIDDELL, LLP
General Counsel
�. By:
Frank E. Slpvenson, II
+r
1 1
Formal Agreement
11/05/08
ATTACHMENT 1
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Attachment 1: P. 4 of 5
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Attachment 1: P. 5 of 5
ATTACHMENT 2
INTENTIONALLY OMITTED
Attachment 2: P. 1 of 1
,r
- NORTH BYP
Davidson Yard
TRACKS 3 : 7
214
.
Interior Reconfiguration ,, WEST OF HULE �
MILEPOST 257 �i' - � a TO W. ABUT
d - #'' r" - RINITY RIVER f ,
STING UPRR ROW-
�'i MILEPOST 250
L m
Possible Edward Ranch �� ----- _® � -- ---- - _ -- --_ - - _ _/ � EXISTING UPRfl ROW l � �\ • ^- _.___ -- - - -------_ --__ _ _. _ -- - r I _
Road U PRR Access -
_
LEGEND
® III ' - - - ----- --
Southwest Parkway/SH 121 III = III Temporary
-- Existing UPRR ROW \\ EXISTING UPRR ROW_- - Hump Lead
Southwest Parkway ROW I - -
`,
® ROW Acquisition(UPRR) �.�, - � �\ _s_.-•-
Davidson Yard Crossing
Coexistence ROW -
(UPRRrrxDOT/FtW)
0 100 200 No
GRAPHIC SCALE IN FEET ,*.- \ -.• I / \ ¢� -
f
i
Southwest Parkway/ SH 121
Union Pacific Railroad Project Partners Conceptual 4+4+4 Plan y, ':' : ORT�VORTH NTTA.TH NOR TEYAS TOLLWAYAUTHORITY
Formal Agreement Attachment 3 (1 of 3) -
i
i
Nt
AF
TRACKS 350' r `+ Y `.
WEST OF HUL -
f TO W. ABUT STA.417 CUUO '
t 9STA.450+00.00 J
RINITY RIVE
STA.3a5-00.00
L /
i ertY
�c R
a.
51 IT
s
_ _
3-- RR Bridge
_41 Trinity River
— --- . — -
---- -----. _ --. -_____... ISTING U -
46
ASSUMED ONCOR ELECTRIC EMENT EXISTING UPRR ROW
L3oC9�3 - � •7 r •
Z!.L;6E4 ANCOR IIECT,I�Ig f ` .Y .•�_
b
Davidson Yard
` r� _ 1 Interior Reconfiguration ' , ; LEGEND
Southwest Parkway/SH 121
_ '°' 4—P.—1,•' �'�'�� _ � r� IL �` , � Existing UPRR ROW
: -"
- Southwest Parkway ROW
® ROW Acquisition(UPRR)
Davidson Yard Crossing
® Coexistence ROW
(UPRRITxDOT/FtW)
a too 200 Sao
GMPHICSGY_EWFEET iucra
Southwest Parkway 1 SH 121 I
Union Pacific Railroad Project Partners Conceptual 4+4+4 Plan gy ORTWORT i
.: �� _ NORTH TEXAS TOLLIYAY AUTHORITY
Formal Agreement Attachment 3 (2 of 3)
it
le
4.
■ • • ?1r'� 1 STA.360,00.00 V 1 T ` 4r_ fir•. -f,�j/ •' r
STA.380fD0.OD STA. 7 0.00'. - ` / 9
STA.385-00.00 a e -
IT
lei 41
PAM
Y�
� r � 3•
• • • • 1'f,s h '=}
NORTH BYPASS jj�
f, � r
r TRACKS 350' „_ , �� }r j• .: °
WEST OF H U LE N TO W. ABUT ,� � ►' �r� ?} , `�,
TRINITY RIV
/ LEGEND
4"_,` `�r`4.,` `; •s4 ti.` Southwest Parkway/SH 121
Existing UPRR ROW
3!. ._ .ems i `-' _ Southwest Parkway ROW
4 y ® ROW Acquisition(UPRR)
® Coexistence ROW
(UPRR/TxDOT/FtW)
0 100 200 300
i
GRAPHIC SCALE IN FEET arz.ce
Southwest Parkway/ SH 121
Union Pacific Railroad Project Partners Concept trA.TE y NORTH W TOLLWAYAUTHOR?Y
Formal Agreement Attachment 3 (3 of 3) __
f
1-
~P AfT,
Davidson Yard t
a Interior Reconfiguration
g
ti
LU
o
a
CD
a
II � Z
it
—
�� •
== , EXISTING UPRR ROW - /
v/
®�
' p
- - - _ - _- LEGEND
SWP/SH 121 (Construction
(Aqua) per Term Sheet Article 111.E.2)
(Green) SWP/S
Construction l tionRequired)
SWP/SH 121 (Deferred
(Red) Construction)
_-- Existing UPRR ROW
SWP ROW
Imom
Southwest Parkway I SH 121 _
Union Pacific Railroad Project Partners ®n�ce p ua � RTWORTH
ruira:
Formal Agreement Attachment 4 (1 of 9) _ NORTH,EX4ST°uWAYa°TM°Rm
I
t
I ' = w —
_ {/ - - Davidson Yard
N EXISTIN UPRtbV�
- Interior Reconfiguration
F ' � A4
�E; = �: ,_ i3—t• �---- 9 fly , J 9( I
p=
EXISTING UPRR ROW- -------- --____------
�.
LEGEND
g SWP/SH 121 (Construction
(Aqua) per Term SheetArticle III.E.2)
SWP/SH 121 (Early
(Green) Construction Required)
SWP/SH 121 (Deferred
(Red) Construction)
Existing UPRR ROW
SWP ROW
I
Southwest Parkway I SH 121
Union Pacific Railroad Project Partners Conceptual Phasing Plan FORT WORTH HNTTA o
Formal Agreement Attachment 4 (2 of 9)
. ALI NOR PASS I
�,
a cp Davidson Yard a TRACKS 350 Z.-Interior Reconfiguration cA2g WEST OF HULEN
N
-
TO W. ABUT
-
TRINITY RIVE r
=QdP ULL B^e
-- --_ ---
w.e
r — —� -- — -- -- — —- —--__=
-- -- - _ -
_
In—
�— aa•ms - �r qyv u�r(
+L_ 'ser
----------------
LEGEND
EXISTING UP'RR ROW �� -� SWP/SH 121(Construction
® (Aqua) per Term Sheet Article III.E.2)
SWP/SH 121 (Early
(Green) Construction Required)
SWP/SH 121(Deferred
(Red) Construction)
--- Existing UPRR ROW
�\ d SWP ROW
Southwest Parkway 1 SH 121 November 2008
Union Pacific Railroad Project Partners - - FORTWORT
Conceptual Phasing an H, - NNTraORm
Formal Agreement Attachment 4 (3 of 9) - -
NORTH B
TRACKS 350 -
( WEST OF HULEN' P. _ JO !%
1 4 g2a 53 `f� --- -----
M TO W. ABUT =
TRINITY RIVER - - -
Q 01,
a
ma i / -
�� N
' N. --
..r - / -
Required
ll
r - - (Retaining • ♦ 1
L
————————
Davidson Yard '
Interior Reconfiguration
- - --- LEGEND
. -^.' .
SWP/SH 121 (Construction
— (Aqua) per Term Sheet Article IILE.2)
(Green) Construction lRequired)
WP/
� SWP/SH 121 (Deferred
_ - -- - - ASSUMED ONCOR ELECTRIC EASEMEN (Red) Construction)
-- Existing UPRR ROW
SWP ROW
Southwest Parkway/SH 121 1
Union Pacific Railroad Project Partners Conceptual Phasing Plan �= W , TH NTTA.
Formal Agreement Attachment 4 (4 of 9)
�� --- *a++°-vim NORTH TEXAS TOLLWAY AUiI/OR!!Y
- `
:.
z Mzm --------
y-
---------------
--------------
g,
- - - �P,_--- -� __ _ _- _- _ _.ii ' ' I � � - •_tea I _ -.._ _ - -_.
-r 4
_ __-
- - -- - RTH BYPAS-' NO - -- - _- - - -
--- -
--- -- TRACKS 350`' - - -
--- -
- EST OF HOLE = — -- .
TO W. ABUT
— i TRINITY RIVER
--- —
T
o
—T—
---- ------
4'X4' MATE - -
- LEGEND
�„P r SWP/SH 121 (Construction
- (Aqua) per Term Sheet Article II I.E.2)
Davidson Yard _ SWP (Early
�, (Green)) Construction
Required)
. 0 . -� _ �..� .�.+ `" � �- Construction)
(Deferred
Interior Reconfiguration _ _ .� _Red
me AM w RROW
® _ Existing UPR
8 - - - -- —�—-- -- -- - . '� .. ,_... ! .,..•'ra" `� SWP ROW
EXISTING UPRR ROW
Southwest Parkway I SH 121
Union Pacific Railroad Project Partners NTTA
Formal Agreement Attachment 4 (5 of 9) Hoxnirn .
- ro
-. -. - - '• ,°®;,`.�..m rasrouwavaunwrr- _ -- -_ _
r Fs�
-- -= =-=---
----------------
-------------
% rj •
----- -------------
1�8 ------ --------
mac .= I- - �_� — --
..........
— — ORTH BYPASS I
i -
- _
TRACKS 350 — - - - - -- --- _ _ --
EST OF HULEN — -- - _
TO W. ABUT +, 40
—.' * o INNO
RINITY RIVER ,
F 7—
-------------
ow
r
..�5vs r �e r.
_ `� - m •" " f , I I LEGEND
"'�• '"" �' '°` t i F SWP/SH 121 (Construction
(Aqua)
�,. per Term Sheet Article IILE.2)
devow-, SWP/SH 121 (Early
_ ; . .. (Green) Construction Required)
SWP/SH 121 (Deferred
EXISTING R0 (Red) Construction)
VIM _—. " .. ,n , i:y :, �'+ ---- Existing UPRR ROW
';
SWP ROW
was 4"
lie
� 4
bow
. .h
a
Southwest Parkway 1 SH 121 • '
Union Pacific Railroad Project Partners o' Ce['� u ORTWORTA TTA.
I" , � NORTH 7IXAs TOLLWAY AUTHORITY
Formal Agreement Attachment 4 (6 of 9) _ — _
NION
� Pit,
ti► �� c
f. Joint Use Area 5 Joint Use Area 4— —� � -
Joint Use Area 6 Construction
Deferred
Early Construction
Required Vehicular UPRR
Access01
=
----
,
-0111 - -
SK
MEAN-
.. � � _ � -�����--. � _ _ � Trinity River ���
soft, y _ Earl Construction
— Railroad
Raild Bridge y
Required
Early Construction
Required (Retaining Wall)
W
_ East End Yard >r:.
Modification - ,
-el LEGEND
�~ (Green) Construction Required)
: J. Construction)121(Deferred
Existing UPRR•O
SWPROW
:O
_ November 2008
IIIIII
AMIN
- Joint Use Area 2
Joint Use Area 3
i <
1111111IM-110 �
Early Construction
RequiredASO
� . 1jf1■�II:fIjrP
1 ... .■lift (k
Early Construction /
k Required (UPRR)
- _ - — Ea Constructio .:
Construction Deferred - Required
- - - - (Retaining Wall) `'
Al
f
C r k
November 2008
■ ■ ■ I - - - - - - uHiON 1 I I 1 1
E
l
— fs,=•
i
I
-
C
MML
-----------
I-PT2 - -— --- -
Vehicular UPRR
—_--- 7.
I� No.�4- — ----_ _-- - -- - _ _ - Access
Q
/
.s
` Y Easterly Extension
= w of Trackage. (UPRR)
9Ar .t
9
4. i
fJl
LEGEND
r , SWP/SH 121 (Construction
fir f (Aqua) per Term Sheet Article III.E.2)4A__ _1�
i
SWP/SH 121 (Early
r ',, \ y �` h► 1 l ��� !ir ,,, (Green) Construction Required)
+�y SWP/SH 121 (Deferred
/I !a.7 f (Red) Construction)
-_-
+� � .�? + '► � � '*� '`'��„,,�,r, Existing UPRR ROW
SWP ROW
Mr
IqW
. . - � � � .,,gyp ,� ��,, � �`+, -, �� t '�� s � ,� - ��� ,��' , �� ����'�►,�l� �:
Southwest Parkway 1 SH 121 ' " "`
Union Pacific Railroad Project Partners ==-- FORT WORTH N'rrA.
HORTN TIXAS TOLLWAY AUTHORITY
Formal Agreement Attachment 4 (9 of 9)
i
ATTACHMENT 5
DESCRIPTION OF RIGHT-OF WAY
PARCELS TO BE ACQUIRED BY THE NTTA/PROJECT PARTNERS FROM UPRR:
19.225 Acres Total
Parcel11-PT1 - 1.178ac
Parcel 11-PT2 - 0.023ac
Parcel49 - 0.105ac
Parcel58-PT1 - 4.905ac
Parcel58-PT2 - 10.195ac
Parcel 58-PT3 - 2.819ac
JOINT USE PROPERTY RIGHTS TO BE ACQUIRED BY UPRR FROM TXDOT,"AREAS OF CO-
EXISTENCE":
2.87 Acres Total
Area 1 — 1.05ac
Area 2 — 0.02ac
Area 3 — 0.04ac
Area 4 — 0.12ac
Area 5 — 0.15ac
Area 6 — 1.08ac
Area 7— 0.12ac
Area 8 — 0.29ac
NOTE: ALL PARCELS AND RIGHTS DESCRIBED ABOVE ARE SUBJECT TO
CHANGE (INCLUDING A REDUCTION IN SIZE) PURSUANT TO SECTION III.H. AND
SUBSECTION III.L.2.; FURTHER THE PARTIES ACKNOWLEDGE THAT THE
ACREAGE OF PARCEL 11-PT1 WILL BE REDUCED FROM WHAT IS SHOWN
ABOVE.
Attachment 5: P. 1 of 1
UPRR @ SH121 YARD RECONFIGURATION
Attachment
NORTH BYPASS NORTH BYPASS
PROPOSED DAVIDSON TRACKS 350'WEST TRACKS 350'WEST UST END YARD
QUANTITY UNIT PRICE LINE ITEM COSTS YARD INTERIOR OF HULEN TO W. OF HULEN TO W. MODIFICATION
RECONFIGURATION ABUT TRINITY ABUT TRINITY TOTALS
BEGIN RAIL END RIVER(EXCLUDES RIVER(ADD'L
CLASS ITEM DESCRIPTION STATION RAIL STATION UNIT ADD'L WALLS) WALLS ONLY
EW EW1 P EP ROW(INCLUDING PREP ROW OR HUMP LEAD 13165.00.00 13250.00.00 S A 85 1000. 6000 5000
EW EW2 EXCAVAT NFUR L INCLU ING XCAVA I ION FOR HUMPL 731fi5+00.00 13250.00.00 CV 870s .00 83619 93619
EW EW3 MBANKMENT FOR RAIL INCLUDING EMBANKMENTFORHUMPLEAD 13186.W.00 13250.00.00 CV 701 .00 29630 629630
EW EW9 SUBBALLAST FOR AIL INC UDING U BALLAST FOR HUMPL 13165+00.00 13250r00.00 CY f5 Is 5.00 7%333 708333
EW NBEWt PAEP ROW 13095.00.00 73193.00.00 S A % 1,000. 98000 98000 0
EW NBEW2 EXCAVATION FOR AIL 130%+00.00 13793.00.00 CV 181481 5.00 %7407 907407 0
EW NBEW3 EMBANKMENT FOR ARIL 13095.00.00 13193.Op.00 CY 181481 8.00 1451852 1131862
EW NBEW4 SUBBALLAST FOR RAIL 13096.00,00 13193.00.00 C 2 044 5.00 1727000 1127000 0
villas IDIOM
R SVC RDt U RR S VICE R AD TO MO PAC BRIDGE 22'WIDE 6^HMAC 6^LIME TAT)IN LUDING O RELOCATION AT HU LEAD 13230.00.00 13277.00.00 SV 21 511 2.00 84 368 88 3 8
RD NRIE UP RR SERVICE ROAD FORNORTH BYPASSVAR.WIDTH 6"HMAC 6"LIME TR 130%+00.00 13193.W.00 S /0889 2.00 348444 348444 0
RD NR2E U RR ADOITIONALSERVICE ROAD FOR NOR BVP VAR,WIDTH 6•HMAC 6^LIME Tq 13095+00.00 13193.00.00 S 10889 2.00 4441 348444
RD NR3E UPA ADOI7KNJ.SERVICE ROAD FOR NOR HGYP-VAR.WIDTH 6'HMAC 6^LIME TA f30%.D0.00 13193+00.00 S 70.BB9 2.00 348444 48411 0
RD ENTRANCE UPRRENiRANGEOFFOFSWPFRONTAGE 13110+00.00 13120,00.00 SV 3200 2.00 $102.400 $102.400 0
DRN D1 CHAIN 1322145.00 13232.50.00 LF 300 .00 1 000 S31 A60
D N 02 CHAIN LEXCAV 13221.45.00 13292.30.00 LF 1,06 .00 1950 1950
ORN 03 4-8'E'CU V 249.93 8'x8'RCB 13196.35.00 131% .00 LF 200 $84.000 4 000
URN D1 CHANNEL EXCAV 131%.85.00 13202,85.00 LF 600 Sw.00 5181000 SIB.DOO
DRN D5 1.10k4'CULV 240.8210'x8' CB 13198.10.00 191% .00 LF 1 75 $675.00 50625 0S25
DRN D6 CHANNEL EXCAV 13196.S5.D0 13202.85.00 LF 11 0 S30.00 18000 18
DRN D7 2C CMP 13155.20.00 t31574,60.00 L 240 .00 $12,000 12000
DRN D8 IB^CMP 13/40.20.00 13140 .00 LF 60 S80.00 $4,800 800
DRN D9 440 CULV.218.764<x4RCB 13133+%.00 13134.65.00 LF 240 .00 8000 8000
DRN D10 2,IXi'DDLY.208.6/24Y1' C 13126.30.00 131%+70.W LF 80 S200.00 $16.000 $16,D00
DRN N81 1.1 D'x81RCB 13173.00.00 LF 75 $675.00 $50.625 $50,625 0
DRN RR 48"CMP 13151+00.00 LF 75 0.00 000 6,000 0
DRN N83 48"CMP 13142.00.00 LF 75 0.00 $6000 600021
DRN NB4 23'x8'RC 13127.00.00 LF 75 0.00 6000 6000
SUBTOTAL
Attachment 6: p. 1 of 2
aftnil-t 6 for UPRR Apr" N& Pape f of 2 10/28/2008
UPRR @ SH121 YARD RECONFIGURATION
Attachment 6
NORTH BYPASS NORTH BYPASS
PROPOSED DAVIDSON TRACKS 360'WEST TRACKS 350'WEST EAST END YARD
QUANTITY UNIT PRICE LINE ITEM COSTS YARD INTERIOR OF HULEN TO W. OF HULEN TO W. MDOIFICATION
RECONFIGURATION ABUT TRINITY ABUT TRINITY TOTALS
RIVER(EXCLUDES RIVER(ADUL
BEGIN RAIL END ADD'L WALLS) WALLS ONLY
CLASS ITEM DESCRIPTION STATION RAIL STATION UNIT
PAR.WCLUDING LEAD TRACK AND TURNOUTS AND NECESSARY REMOVALS FOR HUMP LEAD
RR RRI PR TRACK
PROPOSED MAIN LINE FOR 4.4.4 CONTRACTOR LABOR 131]0+00.00 13210.00.00 LF 5 755 150.00 63 25a 863 250
RR RR2 PROPOSED MAIN UN TRACK OR 4Na4 UPRR UNION LABOR 73165.00.00 13215.00.00 LF $250.00 S250.000 $250.000
RR RR3 PROPOSED YARD TRACK FOR 4.4.4 UPRR UNION LABOR 13165+M,M 13215.00.00 LF 33,400 190.00 U6000 346000
FIR RR5 PROPOSED NI5 TURNOUTSFOR 4Na4 UPRR UNION LABOR EA 2 150000.00 300000 $300,000
RR RR6 PROPOSED 89 OR all TURNOUTSF W±A UPRR UNION LABOR EA /4 120000.00 1680000 1680000
RR RR7 REMOVED TRACK FOR 4N UNIDN LABOR 13104+02.61 13245+82.41 LF 29130 .00 73900 873 000
R FIRS REMOVED TURNOUTS FOR 4W1 4 UNION LABOR EA /8 $7,500.00 $135,000 $135,000
RR FIRS ADORIONAL HUMP LEAD ITEMS NOT INCLUDED IN OTHER ITEMS LISTED ABOV COMM SIGNAL UTILITIES ETC LS 1 538 435.00 538436 538,436
RR NBt PROPOSED MAIN LINE TRACK FOR NORTH BYPASS CONTRACTOR LABOR 13095+00.0o 19193+00.00 LF 191440 150.00 2 918000 2 Bf 8 000 '0
RR NB2 PROPOSED MAIN LINE TRACK FOR NORTH BYPASS UPRR UNION LABOR 13095+00.00 19193+00.00 L 500 50.00 126201 125000 0
RR NBWALL5 UPGRADE SWP MSE WALL TO DRILLED SHAFT EAST OF HULEN BETWEEN N.BYPASS AND SWP NOT REWIRED FORS P 466.00.00 474+00.00 SF 18 6B7 0.00 836 850 934 860
RR NBWALL5 ADO'L D.S.RETAINING WALL EAST OF HULEN BETWEEN N.BYPASS AND SWP NOT REQUIRED O S P 185+00.00 174+00.00 S 8,685 100.00 BBB.600 868 500
RR NBWALL6 ADD'L D.S.RETAI ING WALL AT HULEN CROSSING BETWEEN N.BYPASS AND VICKERV NOT flEQU1flED FOR 9W 13186+00.00 131%.D0.00 SF 1,1 100.00 1,915 000 0 i 8/6,000
RR NB3 PROPOSED Jt15 TURNOUTS FOR NORTH BYPASS UPRR UNION LABOR 13104.02.61 13193+00.00 EA 3 150 000.00 450 000 45 000 0
RR N94 PROPOSED TEAM TRACK NEAR 700 YARD 13149+00,00 13163+00.00 EA 14 190.00 266000 288000 0
RR NB5 PROPOSEDSTORAGE/FENCING MODIFICATIONS TO ACCOMMODATE TEAM TRACK 13149+00.00 13163.00.00 EA 1 00000,00 200000 2 000 so
RR NBBRIDGEi BRIDGE OVER STREAM/WATERS OF THE U.S. 13133+00.00 13134+00.00 LF 100 26000.00 600000 2600000 0
RR NBWALL4 ADO'L O.S.RETAINING WALL BETWEEN MONTGOMERV AND UNIVERSITY NOT gEQDINED FOR SWP 300+60.00 400.60.00 F 12.227 100.00 1,222 700 0 1 222 700
RR NSWALL3 UPGRADE SWP MSE WALL TO DRILLED SHAFT BETWEEN UNIVERSITY AND TRINIT'RIVERNOT REQUIRED FOR SWP 395+00.00 390.0o.W SF 2414 60.00 120]00 0 120700
RR NSWALL3 ADD'LD.S.RETAINING WALL BETWEEN UNIVERSITY AND TRINITY RIVER NOT REQUIRED FOfl SWP 385+00.00 390+00.00 S 5308 100.00 530800 0 530,800
RR RAIL TRAFFIC RAIL ON WALL BETWEEN MONTGOMERYAND TRINITY RIVER RAIL BIDE 305+5%MOO 400.50.00 lF 1 500 S50.Doj S75,000 75 000 75,000
RR NSBRIDGE2 HOGERS ROAD BRIDGE FOR EAST YARD MODIFICATIONS 13104,00.00 13105.00.00 LF 0 000.00 1 400000 1 400 000 0
RR NBSRIDGE3 UNIVERSITY DRIVE BRIDGE FOR EAST YARD MODIFICATIONS 13101.50.00 13103+00.00 LF 150 000.00 S31000.000 $3.000.000 so
RR MISCRRI CENTRALIZED TRAFFIC CONTROL SYSTEM FOR BYPASS UPRR UNION LABOR 13165.00.00 13215.M.001 LS 1 1 7 700 000.00 $7,700,000 1 300 ODO J2,400 003 0
SUBTOTAL CONSTRUCTION COS
ESCALATION COSTS TO MID POINT OF CONSTRUCTION(9.75%) 1 485880 1 875180 542 8%'
ESCALATED TOTAL CONSTRUCTION COST
PROPOSED DAVIDSON YARD INTERIOR RECONFIGURATION 1%
NORTH BYPASS TRACKS ONLY(TO,BUT NOT ACROSS EAST CLEAR FORK TRINITY RIVER) DESIGN OF IMPROVEMENTS(6°i,) 51,003,541 81266,468 $366,fi23
10,780
®EAST END OF DAVIDSON YARD MODIFICATIONS(TO EAST CLEAR FORK TRINITY RIVER) CONSTRUCTION CONTINGENCY(15%) 2508.852 $3,166,170 111151
TOTALS CONSTRUCTION MANAGEMENT I7%) 1,170]9] $1,477 548 427727
FLAGGING II°io) 167257 211078 1104
TOTAL C N TRU TI N ,2 91 ,3 9 ,4 ,
4.4.4 PLUS EAST YARD IMPROVEMENTS PLUS NORTH BYPASS IMPROVEMENTS TO WEST ABUTMENT TRINITY RIVER } } I } 571,575,755
SUBJECT TO THE TERM OF SECTION ILLS:(A)INCLUDES 18,493A37 FOR RETAINING WALLS TO BE CONSTRUCTED BY THE PROJECT
PARTNERS AS PART OF THEIR CONSTRUCTION CONTRACTS;(b)THE SB.493M WILL BE PAID BY THE PROJECT PARTNERS AS PART OF
THEIR ROADWAY CONSTRUCTION CONTRACTS AND WILL NOT BE PAYABLE TO THE UPRR. USE $72,000,000
REIMBURSEMENT FOR CONVEYANCE OF PROPERTY,AIR RIGHTS AND EASEMENTS,TEMPORARY USE OF UPRR FACILITIES,UPRR
MANAGEMENT TIME AND EXPENSES ASSOCIATED WITH ACTIONS BY UPRR TO MAINTAIN OPERATIONS DURING CONSTRUCTION OF
SWP I SN 121 AND FOR OTHER CONSIDERATION SET FORTH IN SECTION 111.1.1 $23,000,000
TOTAL $95,000,000
Attachment 6: p.2 of 2
attachmem 6 for UPRR A9roamaM.49 P g.2 of 2 10/2a/2008
ATTACHMENT 7
FORMS AND CERTIFICATIONS FOR
INVOICES AND PAY REQUESTS
[to be subsequently agreed upon by the Parties]
Attachment 7: P. 1 of 1
ATTACHMENT 8
ILLUSTRATION OF SUBSECTION 111.1.3. CALCULATION
Illustrative Example of Costs
to be Paid by Project
Partners and UPRR
($Millions)
CASE 1 (Base 2 3 4 5 6 7 8
Case)
Estimated UP Costs for Davidson Yard Construction $63.5 $63.5 $63.5 $65.5 $61.5 $61.5 $67.5 $61.5
Estimated Partner Costs for 8 5 $10.5 $6.5 $10.5 $10.5 $12.5 $8_5 $6._5
Co-existence Retaining Walls
Total Costs $72.0 $74.0 $70.0 $76.0 $72.0 $74.0 $76.0 $68.0
Partners Obligation $72.0 $73.0 $72.0 $74.0 $72.0 $73.0 $74.0 $72.0
UPRR Obligation $0.0 $1_0 $0.0 $2.0 $0.0 $1_0 $2_0 $0.0
Total Obligations $72.0 $74.0 $72.0 $76.0 $72.0 $74.0 $76.0 $72.0
Payments by UPRR to Partners $0.0 $1.0 $0.0 $1.0 $0.0 $1.0 $0.0 $0.0
Payments by Partners to UPRR $63.5 $63.5 $65.5 $64.5 $61.5 $61.5 $65.5 $65.5
Cash to UPRR from Partners $0.0 $0.0 $2.0 $0.0 $0.0 $0.0 $0.0 $4.0
UPRR Total Outlay $0.0 $1.0 ($2.0) $2.0 $0.0 $1.0 $2.0 ($4.0)
Partners Total Outlay $72.0 $73.0 $72.0 $74.0 $72.0 $73.0 $74.0 $72.0
Attachment 8: P. 1 of 1
RETAINING WALLS
Party Performing City and Union Pacific
Construction & $72M NTTA RR
Maintenance
West End of Davidson Yard to 350' X
West of Hulen St. UP III.K.1.
350' West of Hulen St. to the West $8.5M*
Back Wall of the Trinity River Bridge NTTA III.K.1.
West Back Wall of the Trinity River
Bridge to the West Edge of Forest $3.3M**
Park Blvd NTTA III.K.1.
West Edge of Forest Park Blvd to $2.5M
Summit Ave. UP III.K.1.
Notes: * $8.5 Million Estimate to be included in adjustment at 150 days from the signing #
of Term Sheet;The balance of the City and NTTA's cost is outside of both the$72M
and $95M estimate
** City and NTTA-Outside of both the$72M and $95M Estimate
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LEGEND:
EXISTING TRACK
PROPOSED TRACK ATTACHMENT 9
UP TRACK EXTENSION
PROPOSED ROADWAYS ® DECEMBER 22,2008
ATTACHMENT 10
THE PERMITS
Trinity River Bridge
1.) USACE 404 Permit
2.) CDC (Corridor Development Permit)
3.) FPDP (Floodplain Development Permit)
West Backwall of Trinity to Quad Mains (near Summit)
1.) USACE 404 Permit for crossing of Leslie Creek
2.) Approval for crossing the FWWR and the Fort Worth Transportation Authority (T)
3.) Approvals from City of Ft. Worth for Crossings (Forest Park Boulevard, Old
University Drive, bike trail, and Forest Park Miniature Railroad)
West Backwall of Trinity River to 350' west of Hulen Street
1.) USACE 404 Permit
2.) Approvals from City of Ft. Worth for Crossings (University Drive, Rogers Road)
3.) Possible FRA approval for signal adjustments due to phasing and new
construction
350' west of Hulen to west end of Davidson Yard
1.) USACE 404 Permit
2.) FPDP (Floodplain Development Permit)
r.
Attachment 10: P. 1 of 1
COUNCIL ACTION: Approved on 1/6/2009
DATE: 1/6/2009 REFERENCE NO.: C-23268 LOG NAME: 02SWP-
UPRRAGMT
CODE: C TYPE: NON-CONSENT PUBLIC NO
HEARING:
SUBJECT: Authorize Execution of a Formal Agreement with the North Texas Tollway Authority, the
Texas Department of Transportation and the Union Pacific Railroad, Co., to Facilitate
Construction and Operation of the Southwest Parkway Across the Davidson Rail Yard and
Authorize Execution of a Related Reimbursement Agreement with the North Texas Tollway
Authority
RECOMMENDATION:
It is recommended that the City Council Authorize the City Manager to execute:
1. The attached Formal Agreement with the North Texas Tollway Authority, the Texas Department of
Transportation and the Union Pacific Railroad, Co., under which the City must initially commit payment of
$750,000.00 for design and by May 19, 2009, appropriate an additional $45,500,000.00 to facilitate
construction and operation of the Southwest Parkway across the Davidson Rail Yard; and
2. A related agreement with the North Texas Tollway Authority under which the North Texas Tollway
Authority will pay the railroad directly and the City will reimburse the North Texas Tollway Authority up to its
share of the costs of the Formal Agreement.
DISCUSSION:
The City, the North Texas Tollway Authority ("NTTA") and the Texas Department of Transportation
("TxDOT") (collectively the "Project Partners") have been in negotiations with the Union Pacific Railroad,
Co., ("UPRR") concerning the right to cross Davidson Yard and obtain associated right-of-way
interests. UPRR has indicated that this yard is one of the busiest classification yards in the United States
and that significant accommodations would be needed to ensure continued and uninterrupted rail
operations prior to any Southwest Parkway construction in the Davidson Yard.
On November 11, 2008, (M&C C-23188) Council authorized execution of an agreement with the NTTA and
UPRR for the design, construction and testing of a temporary hump lead in the UPRR Davidson Yard (the
"Hump Lead Agreement"). The Hump Lead Agreement will automatically terminate if a Formal Agreement
(the Agreement) is not executed and delivered by UPRR, the City, NTTA and TxDOT by January 8, 2009.
Staff is confident that the Agreement, if approved, will be a workable document that will allow the Southwest
Parkway to move forward quickly while protecting and enhancing the Union Pacific Railroad's
network. However, this Agreement is complicated and some outstanding issues are still unresolved. In
order to provide a framework to move forward but still allow all the parties to the Agreement the ability to
protect their interests, the Agreement contains several termination events that could occur six months from
its execution.
The Agreement includes termination provisions which must be waived or expire by May 19, 2009, in order
for the Agreement to remain in effect. Those provisions include an event of termination if:
1. The Hump Lead is not successfully tested;
2. The plans and co-existence are not approved;
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 under the Formal Agreement;
4. The necessary property rights or licenses have not been delivered;
5. UPRR determines it will not obtain the required permits under reasonably acceptable terms and
conditions proximately related to the work in question prior to January 1, 2010;
6. The Project Partners reasonably determine UPRR is unlikely to obtain its required permits prior to
January 1, 2010; or
7. A party reasonably determines on the basis of the environmental due diligence investigation conducted
pursuant to the Agreement that the results of said investigations are unsatisfactory with respect to property
that party is to receive or convey.
The current estimated cost of this process is $95,000,000.00 inclusive of the previously approved Hump
Lead and the Formal Agreement design costs. This cost is to be shared equally between the City and
NTTA as set forth below.
City NTTA
Total Process $ 47500000.00 $ 47500000.00
Hump Lead ($1,250,000.00) ($1,250,000.00)
Formal Agreement - design portion upon execution ($750,000.00) ($750,000.00)
Remaining Funds - to obtain before May 19, 2009 $ 45500000.00 $ 45500000.00
This leaves a remaining City obligation of$45,500,000.00. City staff is actively seeking funding support
from the Regional Transportation Council for the remainder of the City's financial obligation and has positive
initial response from the North Central Texas Council of Governments' staff that funds are available for this
purpose.
The Southwest Parkway is located in COUNCIL DISTRICTS 3, 6 and 9 and benefits the entire City.
FISCAL INFORMATION/CERTIFICATION:
The Financial Management Services Director certifies that funds are available in the current capital budget,
as appropriated, of the 2007 Critical Capital Projects Fund.
TO Fund/Account/Centers FROM Fund/Account/Centers
C295 541100 303210000541 $750,000.00
Submitted for City Manager's Office by: Fernando Costa (6122)
Originating Department Head: Randle Harwood (6101)
Additional Information Contact: Bryan Beck (7909)
ATTACHMENTS
SWP ATTACHMENTS 1 2.pdf
SWP ATTACMENTS 5 - 10.pdf
SWP FORMAL AGREEMENT.pdf
swp-SH121 uprr attachment 3 (1-3) form agree 122208.pdf
swp-SH121 uprr attachment 4 (1-9) form agree 122208.pdf