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Home My WebLink AboutContract 44537 (2)EXHIBIT A TO CSC 40233-A3 Cm( SECREi� � RACT N0. � � L� � ~� PROPERTY TRANSFER AGREEM� This PROPERTY TRANSFER AGREEMENT ("Agreement") is effective as of. ��.�, 2013 ("Effective Date") between the City of Fort Worth, Texas ("City"), and BNSF RAILWAY �OMPANY, a Delaware corporation ("BNSF"). RECITALS A. This Agreement supplements the BNSF Relocation Agreement executed by and between BNSF and City on May 17, 2010, as amended by that certain First Amendment to BNSF Relocation Agreement dated June 1, 2011, that certain Second Amendment to BNSF Relocation Agreement dated December 15, 2011, and that certain Third Amendment to BNSF Relocation Agreement dated on the Effective Date (hereinafter collectively called the "Relocation Agreement"). Pursuant to Section 10 of the Relocation Agreement, BNSF agreed to transfer real property to the City in exchange for the City transferring replacement real property to BNSF and providing BNSF the cash portion of the BNSF Consideration (as defined in the Relocation Agreement). B. BNSF (i) owns certain tracts of real property located in or near the City in Denton and Tarrant Counties, Texas, as depicted on Exhibit A attached hereto and identified as "Non-Reversionary," and (ii) has acquired certain easement rights in certain tracts of real property located in or near the City in Denton and Tarrant Counties, Texas, as depicted on Exhibit B attached hereto and identified as "Reversionary," and, to the extent available, listed by recording information in Denton and Tarrant Counties, Texas, as applicable, on the schedule attached hereto as Exhibit C(such owned tracts and easement rights are herein collectively called the "BNSF Property"). C. City (i) owns or will own certain tracts of real property located in or near the City in Denton and Tarrant Counties, Texas, and (ii) has acquired or will acquire certain easement rights in or with respect to certain tracts of real property located in or near the City in Denton and Tarrant Counties, T� EYchange Agreement 20130531 Alliance Exchange Agreement (14)_For Execution.doc Page owned tracts and easement f ' � •� �� * : �►! , • ,. : �� '';� ,i1 . QO'�� %K � �.� �_�,�!��C�IVEd JUNL��1� a .= rigl�ts are herein collectively called the "City Property"). Attached hereto as Exhibit D is a list of the recording information for all recorded documents by which City acquired such owned tracts and easement rights, and a notation of the three parcels of City Property for which City has yet to obtain ownership or easement rights. D. In connection with the Relocation Agreement, the City's plan to improve Alliance Airport necessitates that the City acquire the BNSF Property for runway improvements, which the City intends to acquire by negotiation or, if necessary, by condemnation in accordance with the Uniform Relocation Assistance and Real Property Acquisition Act of 1970 and 49 CFR Part 24, Uniform Relocation Assistance and Real Property for Federal and Federally Assisted Programs. Also, as part of the Relocation Agreement, the City has agreed to relocate BNSF by transferring the City Property to BNSF and providing BNSF the cash portion of the BNSF Consideration. E. The BNSF Property and City Property may be collectively referred to hereinafter as the "Exchange Properties" or individually as an "Exchange Property". As used in this Agreement, "Transferor" refers to the party that currently owns and is conveying the respective Exchange Property, and "Transferee" refers to the party to which the respective Exchange Property will be conveyed. The Exchange Properties will be conveyed hereunder pursuant to the terms and conditions of the Relocation Agreement. AGREEMENTS In consideration of the mutual promises and covenants hereinafter set forth, and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: Section 1. Conveyance of the Exchange Properties. A. Subject to the terms and conditions set forth in this Agreement, (i) on the First Closing Date (as defined in the Relocation Agreement), City agrees to convey the Page 2 Exchange Agreement 20130531 Alliance Exchange Agreement (14)_For Execution.doc 1090.010�28682.3 = City Property to BNSF, and (ii) on the Second Closing Date (as defined in the Relocation Agreement), BNSF agrees to convey the BNSF Property to City. B. The City Property will be conveyed by City to BNSF by either (i) a Deed Without Warranty (as to the owned tracts) (herein, a"Deed"), or (ii) an Assignment and Assumption of Easement (as to the tracts for which City owns only easement rights) (herein, an "Assignment"), free and clear of all Encumbrances (as hereinafter defined) except the Permitted Exceptions (as hereinafter defined). C. The BNSF Property will be conveyed by BNSF to City by either Deed (as to the owned tracts) or Assignment (as to the tracts for which BNSF owns only easement rights), free and clear of all Encumbrances except the Permitted Exceptions. Notwithstanding the foregoing or anything in this Agreement to the contrary, however, City acknowledges and affirms that BNSF does not hold fee simple title to all of the BNSF Property and that BNSF's interest in all or part of the BNSF Property may rise only to the level of an easement for railroad purposes. City is willing to accept BNSF's interests in the BNSF Property, if any, on this basis. D. Each Transferee agrees to release the Transferor from any and all claims, liabilities and damages of any kind concerning the interests in the Exchange Properties it is receiving from the Transferor under this Agreement, and agrees that the Transferee shall bear full responsibility for costs of remediating or managing any Hazardous Substances (defined below) located in, on or under the Exchange Properties it is receiving in violation of Environmental Laws (defined below). The provisions of this paragraph shall specifically survive the closing of this transaction and shall be binding on the successors and assigns of each party. Section 2. Title Matters. A. BNSF and City each acknowledge that in accordance with Section 10 of the Relocation Agreement, BNSF and City have received the Property Information (as defined in the Relocation Agreement) for the City Property and the BNSF Property, Page 3 Exchange Agreement 20130531 Alliance Exchange Agreement (14)_For Execution.doc 1090.010�28682.3 re�pectively, and have provided the other party (or, alternatively, have had the opportunity to deliver but have elected not to deliver) written Objections (as defined in the Relocation Agreement) to such Property Information. However, as of the date hereof, not all Objections have been cured. Each party agrees to use commercially reasonable and diligent efforts to cure any Objections it has agreed (or is deemed to have agreed) to cure, and in any event shall cure such Objections prior to (and as a condition ofl the First Closing (as to the City Property) and the Second Closing (as to the BNSF Property). B. Notwithstanding anything in this Agreement to the contrary, in no event will any monetary liens or other monetary Encumbrances (including, but not limited to one or more mortgages of BNSF or its predecessors) affecting the Exchange Properties be Permitted Exceptions. Pursuant to Section 10.b.(2) of the Relocation Agreement, BNSF shall, at BNSF's option, either (i) cause to be removed or cured all monetary liens and monetary Encumbrances affecting the BNSF Property, or (ii) indemnify City, Title Company and its underwriter from any liability for any such monetary liens and monetary Encumbrances affecting the BNSF Property such that Title Company will issue an Owner's Title Policy to City that does not include any monetary liens or monetary Encumbrances. The cost to BNSF to cure and/or indemnify against monetary liens and monetary Encumbrances shall be paid by BNSF and shall not be part of the BNSF Relocation Cost or otherwise part of the BNSF Consideration (as such terms are defined in the Relocation Agreement). C. For purposes of this Agreement, "Encumbrances" shall be defined as all liens, claims, easements, rights-of-way, reservations, restrictions, encroachments, tenancies, leases and any other encumbrances of whatsoever nature affecting the Exchange Properties. "Permitted Exceptions" shall have the same meaning as is set out in the Relocation Agreement. Section 3. Representations and Warranties. Each party represents and warrants to the other party as of the date of this Agreement and as of the respective Closing Date: -..- � Exchange Agreement 20130531 Alliance Exchange Agreement (14)_For Execution.doc 1090.010�28682.3 � � A. It has all necessary power and authority to enter into and consummate this 8 transaction. B. Except as disclosed to the Transferee in the studies or other materials delivered to the Transferee, to the Transferor's current, actual knowledge (without any duty of investigation or inquiry): 1. No actions affecting the Exchange Property and related to Environmental Matters (defined below) or Hazardous Substances (defined below) are pending before any state or federal court or governmental body. 2. No actions affecting the Exchange Property and related to the Transferor are pending before any state or federal court or governmental body. 3. No condemnation actions affecting the Exchange Property are pending. 4. Transferor has not received any notice that any ordinance, regulation, law, or statute pertaining to the Exchange Property has been violated. 5. Except as contemplated by the contingencies under the Relocation Agreement and/or in the Permitted Exceptions, no permission, approval, or consent by third parties or governmental authorities is required for Transferor to consummate this transaction. C. With respect to BNSF, the term "knowledge" as used in this Agreement, including, without limitation, this Section 3, refers to the actual, present knowledge of Kurt Geringer, General Director Real Estate, for BNSF (the "Information Representative"), as of the Effective Date of this Agreement, without any duty of investigation or inquiry of any kind or nature whatsoever. Section 4. Operations Pendinq Closing. Except as otherwise set forth in this Agreement, neither party shall (i) enter into or agree to enter into any lease, easement, license or other agreement concerning occupancy or use of any of City Property or BNSF Property; or (ii) enter into, or consent in writing to, any easement, encumbrance, covenant, -..- Exchange Agreement 20130531 Alliance Exchange Agreement (14)_For Execution.doc 1090.010�28682.3 condition, restriction or right-of-way affecting City Property or BNSF Property, without first obtaining the other party's prior written consent. City and BNSF shall each pay in full prior to the respective Closing Date for all labor, material and services required to be provided by such party or otherwise contracted for by or on behalf of such party. Notwithstanding the above, BNSF shall have the right, but not the obligation, at any time prior to the Second Closing to remove all or any part of the improvements located on the BNSF Property and retain possession of such improvements without compensation to City. Section 5. Conditions to First Closinq and Second Closinq. A. Transferee's obligation to proceed to the First Closing and the Second Closing, as applicable, under this Agreement with respect to the Exchange Property it is acquiring is subject to the following conditions precedent: 1. As of the date of the First Closing and Second Closing, as applicable (respectively, a"Closing Date"), this Agreement is in full force and effect and Transferor has timely perFormed each of its covenants under this Agreement. 2. The representations and warranties of Transferor in this Agreement are true in all material respects as of the Closing Date. 3. As of the Closing Date, there shall have been no material adverse change in the condition of the Exchange Property being acquired by Transferee other than as contemplated in this Agreement. 4. Transferee is able to obtain at Closing the Property Owner Policy (defined below) for the Exchange Property it is acquiring, subject only to the Permitted Exceptions. 5. With regard to the Second Closing, City shall have paid to BNSF the sum of $4,025,872.00 as the cash portion of the BNSF Consideration (as defined in the Relocation Agreement). B. In the event any of the foregoing conditions are not satisfied on or before the Closing Date specified above, Transferee may postpone the Closing Date by written notice -..- . Exchange Agreement 20130531 Alliance Exchange Agreement (14)_For Execution.doc 1090.010�28682.3 , to Transferor until such conditions are satisfied, subject to any termination rights set forth in the Relocation Agreement. If Transferee does not so notify Transferor on or before the Closing Date specified above that such condition has not been satisfied then Transferee shall be deemed to have waived such condition and the parties shall proceed to closing under the remaining terms of this Agreement as if such condition had been satisfied. Section 6. Closinq. A. Each of the First Closing and Second Closing contemplated by this Agreement (respectively, a"Closing") shall occur on the date and in accordance with the terms of Section 10 of the Relocation Agreement, provided, however, that instead of a single First Closing in which City conveys or assigns all of the City Property to BNSF, City may elect, by at least 15 days advance written notice to BNSF, to convey or assign the City Property to BNSF in a series of phased closings, provided further that BNSF shall not be required to accept any tract of City Property by Deed or Assignment until (i) each of BNSF's Objections to such tract has been cured by City, and (ii) City has delivered to BNSF current updates of any Title Reports and Phase I reports (as defined in the Relocation Agreement) and Phase II reports which are dated more than 60 days before the date of such written notice from City. Notwithstanding anything to the contrary, the obligations of each party to consummate this transaction shall be subject to the fulfillment on or before the respective Closing Date of all of the conditions contained within Section 5, any or all of which may be waived only by such party in writing, and the delivery of the following items: B. At the First Closing, City shall deliver to either Alamo Title Company (with respect to the City Property located in Tarrant County) or Stewart Title Company (with respect to City Property located in Denton County) the following: 1. a Deed or Deeds ("City Property Deed") in the form attached to this Agreement as Exhibit E fully executed and acknowledged by City, conveying to BNSF the owned City Property, subject only to the Permitted Exceptions; Page 7 Exchange Agreement 20130531 Alliance Exchange Agreement (14)_For Execution.doc 1090.010�28682.3 2. an Assignment or Assignments ("City Property Assignment") in the form attached to this Agreement as Exhibit F fully executed and acknowledged by City, conveying to BNSF the easement rights owned by City, subject only to the Permitted Exceptions, which City Property Assignment(s) BNSF agrees to execute to evidence its assumption of such easement rights; 3. such other and further documents as may be reasonably required to consummate the transactions contemplated by this Agreement and for each title company to issue its respective Property Owner Policy for the City Property in accordance with the Relocation Agreement; and 4. possession of the City Property free and clear of all tenancies. C. At the Second Closing, BNSF shall deliver to either Alamo Title Company (with respect to the BNSF Property located in Tarrant County) or Stewart Title Company (with respect to BNSF Property located in Denton County) the following: 1. a Deed or Deeds ("BNSF Property Deed") in the form attached to this Agreement as Exhibit G fully executed and acknowledged by BNSF, conveying to City the owned BNSF Property, subject only to the Permitted Exceptions; 2. an Assignment or Assignments ("BNSF Property Assignment") in the form attached to this Agreement as Exhibit H fully executed and acknowledged by BNSF, conveying to City the easement rights owned by BNSF, subject only to the Permitted Exceptions, which BNSF Property Assignment(s) City agrees to execute to evidence its assumption of such easement rights; 3. such other and further documents as may be reasonably required to consummate the transactions contemplated by this Agreement and for each title company to issue its respective Property Owner Policy for the BNSF Property in accordance with the Relocation Agreement; and 4. possession of the BNSF Property free and clear of all tenancies. ".�- : EYchange Agreement 20130531 Alliance Exchange Agreement (14)_For Execution.doc 1090.010�28682.3 a ° D. Closing is conditioned upon the Title Company issuing to each Transferee Q a TLTA Owner's Policy of Title Insurance (each, a"Property Owner Policy") in the amount of: (i) the stated insured amount set out in the Title Report for the City Property, and (ii) $4,025,872.00 for the BNSF Property (provided, however, that to the extent the First Closing takes place in multiple phased closings as provided herein, BNSF and City shall agree on the amount of each Property Owner Policy to be issued for the tracts of City Property conveyed or assigned to BNSF at each respective phased closing). Each Property Owner Policy shall insure the Exchange Property being acquired by such Transferee free and clear of all matters except the standard printed form exceptions and the Permitted Exceptions applicable to such Exchange Property; provided, however, the printed form survey exception shall be limited to "shortages in area," the printed form exception for restrictive covenants shall be marked "none of record" except those restrictive covenants that are Permitted Exceptions, there shall be no exception for rights of parties in possession, and the standard exception for taxes shall read: "Standby fees, taxes and assessments by any taxing authority for the �year of closing] and subsequent years, and subsequent taxes and assessments by any taxing authority for prior years due to change in land usage or ownership." Section 7. Fees and Costs; Taxes. A. City will be solely responsible for all costs associated with the First Closing and Second Closing, including, but not limited to, the premium for each Property Owner Policy for each tract of the City Property and the BNSF Property (including the easement rights), the Surveys (as defined in the Relocation Agreement), environmental reports, recording fees, escrow fees and the cost of obtaining any lien releases for the City Properties. B. Ad valorem taxes, personal property taxes, and special tax assessments ("Taxes") relating to the respective Exchange Property in the year of Closing shall be prorated by City and BNSF as of the respective Closing Date on the basis of the most recent ascertainable Taxes assessed against the Exchange Property being conveyed, with the Transferor to bear the economic burden of such Taxes for periods prior to the Page 9 Exchange Agreement 20130531 Alliance Exchange Agreement (14)_For Execution.doc 1090.010�28682.3 . Closing Date, and the Transferee to bear the economic burden of such Taxes for � periods on and after the Closing Date. City shall cooperate with BNSF to cause City Property to be taxed/assessed as part of BNSF's statewide operations rather than at a county or local level as soon as possible following the First Closing as contemplated in existing state law. BNSF shall use reasonable efforts to cause the City Property to be assessed as part of the BNSF's statewide operations as quickly as possible after the First Closing. The provisions of this paragraph shall specifically survive the closing of this transaction and shall be binding on the successors and assigns of each party. C. Other than as set forth above or elsewhere in this Agreement, each party shall pay its own expenses incurred in connection with the transaction contemplated by this Agreement. Section 8. Condition of Exchanqe Properties; Tests. A. Each Transferee acknowledges and agrees that it has been given the opportunity to fully and thoroughly inspect the Exchange Property it is acquiring, and each Transferee will conduct such inspections and tests as Transferee may deem advisable in such Transferee's discretion to fully evaluate and analyze the Exchange Property it is acquiring and all Property Conditions (as hereinafter defined) related thereto. EACH TRANSFEREE IS ACCEPTING THE EXCHANGE PROPERTY IT IS ACQUIRING ON AN "AS-IS WITH ALL FAULTS" BASIS WITH ANY AND ALL PATENT AND LATENT DEFECTS, INCLUDING THOSE RELATING TO THE ENVIRONMENTAL CONDITION OF SUCH EXCHANGE PROPERTY, AND IS NOT RELYING ON ANY REPRESENTATION OR WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND WHATSOEVER FROM TRANSFEROR AS TO ANY MATTERS CONCERNING SUCH EXCHANGE PROPERTY, including, but not limited to, the physical condition of the Exchange Property; zoning status; tax consequences of this transaction; utilities; operating history or projections or valuation; compliance by the Exchange Property with Environmental Laws (defined below) or other laws, statutes, ordinances, decrees, regulations and other requirements applicable to the Exchange Property; the presence of any Hazardous Substances (defined below), wetlands, Page 10 Exchange Agreement 20130531 Alliance Exchange Agreement (14)_For Execution.doc 1090.010\28682.3 . asbestos, lead, lead-based paint or other lead containing structures, urea formaldehyde, � or other environmentally sensitive building materials in, on, under, or in proximity to the Exchange Property; the condition or existence of any above ground or underground structures or improvements, including tanks and transformers in, on or under the Exchange Property; the condition of title to the Exchange Property, and the existence of any leases, easements, permits, orders, licenses, or other agreements, affecting the Exchange Property being acquired (collectively, the "Property Conditions"). B. Each Transferee represents and warrants to the Transferor that Transferee has not relied and will not rely on, and Transferor is not liable for or bound by, any warranties, guaranties, statements, representations or information pertaining to the Exchange Property the Transferee is acquiring or relating thereto (including specifically, without limitation, any Existing Information related to such Exchange Property or any Exchange Property information packages distributed with respect to such Exchange Property) made or furnished by Transferor, the manager of the Exchange Property being transferred, or any real estate broker or agent representing or purporting to represent Transferor, to whomever made or given, directly or indirectly, orally or in writing. C. Each Transferee assumes the risk that Hazardous Substances or other adverse matters may affect the Exchange Property such Transferee is acquiring that were not revealed by Transferee's inspection and hereby releases Transferor (and Transferor's officers, directors, shareholders, and employees) from any and all present or future claims (including, without limitation, causes of action in tort), known or unknown, arising from or in any way related to the Property Conditions for such Exchange Property or arising from or in any way related to Hazardous Substances in, on, or under the Exchange Property being acquired. D. For purposes of this Agreement: 1. "Environmental Law(s)" means any federal, state or local statute, regulation, code, rule, ordinance, order, judgment, decree, injunction or common Page 11 Exchange Agreement 20130531 Alliance Exchange Agreement (14)_For Execution.doc 1090.010�28682.3 � law pertaining in any way to the protection of human health or the environment, including without limitation, the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Toxic Substances Control Act, and any similar or comparable state or local law. 2. "Hazardous Substance(s)" means any hazardous, toxic, radioactive or infectious substance, material or waste as defined, listed or regulated under any Environmental Law, and includes without limitation petroleum oil and any of its fractions. 3. "Environmental Matters" means matters relating to the generation, manufacture, use, storage, handling, transportation and/or disposal of Hazardous Substances, or conditions with respect to the atmosphere, soil, surFace and ground waters, wetlands, stream sediments, vegetation, endangered species and stormwater runofF or discharge. E. The provisions of this Section 8 shall survive the respective Closing, bind each party and their respective heirs, successors and assigns, shall be included in the Deeds and the Assignments, and shall be covenants running with the land. Section 9. G'1 Miscellaneous. Time is of the essence of this Agreement. This Agreement is binding upon the heirs, executors, administrators, successors, and assigns of each of the parties hereto. B. All notices hereunder shall be in writing and addressed as set forth below, or to such other address as may be designated by the party desiring its address to be changed in a notice to other parties given in like manner: Page 12 Exchange Agreement 20130531 Alliance Exchange Agreement (14)_For Execution.doc 1090.010�28682.3 If to City: If to BNSF: 1000 Throckmorton Street Fort Worth, Texas 76102 Attn: Ted Gorski, Jr. Tel: (817) 392-7627 Fax: (817) 392-8359 BNSF Railway Company 2500 Lou Menk Drive - AOB-3 Fort Worth, Texas 76131-2830 Attn: Kurt Geringer Tel: (817) 352-2384 Fax: (817) 352-7797 Notice will be deemed to have been served and given if (i) delivered in person to the address set forth above, (ii) delivered in person at the Closing (if such party is present at the Closing and the delivery is to be made at Closing), (iii) placed in the United States mail, certified mail, return receipt requested, addressed as set forth above, or (iv) delivered overnight by a nationally recognized service (with evidence of delivery) addressed as set forth above. C. No failure of a party to enforce a provision of this Agreement will be construed as a general or a specific waiver of that provision, or of a party's right to enforce that provision, or of a party's right to enforce any other provisions of this Agreement. No waiver of any breach of any covenant or other provisions herein contained shall be deemed to be a waiver of any preceding or succeeding breach, or of any other covenant or provision herein contained. No extension of time for perFormance of any obligation or act shall be deemed to be an extension of the time for performance of any other obligation or act. D. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be deemed to constitute a single agreement. The execution and delivery of one counterpart by a party shall have Page 13 Exchange Agreement 20130531 Alliance Exchange Agreement (14)_For Execution.doc 1090.010�28682.3 th� same force and effect as if that party had signed all other counterparts. The signatures to this Agreement may be executed on separate pages and when attached to this Agreement shall constitute one complete document. E. This Agreement binds and is for the benefit of both parties and their permitted successors and assigns. No party to this Agreement may assign his or its rights and obligations hereunder without prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed. F. This Agreement is governed by and must be construed in accordance with the laws of the State of Texas. G. This Agreement may not be modified, amended, or terminated except in writing signed by both BNSF and City. This Agreement and the terms of the Relocation Agreement which are not in conflict with this Agreement constitute the entire agreement between the parties with respect to the exchange of the BNSF Property and the City Property and supersedes any prior understandings and agreements between them respecting the subject matter of this Agreement. There are no other representations, agreements, arrangements, or understandings, oral or written, between and among the parties to this Agreement or any of them, relating to the subject matter of this Agreement. H. If the Closing Date or the day for performance of any act required under this Agreement falls on a Saturday, Sunday or legal holiday, then the Closing Date or the day for such perFormance, as the case may be, shall be the next following regular business day. I. Each party and its counsel have reviewed and revised this Agreement. The parties agree that the rule of construction that any ambiguities are to be resolved against the drafting party must not be employed to interpret this Agreement or its amendments or exhibits. J. If any clause or provision of this Agreement is illegal, invalid or Page 14 Exchange Agreement 20130531 Alliance Exchange Agreement (14)_For Execution.doc 1090.010�28682.3 un�nforceable under present or future laws effective during the term of this Agreement, then and in that event, it is the intention of the parties hereto that the remainder of this Agreement shall not be affected thereby, and it is also the intention of the parties to this Agreement that in lieu of each clause or provision of this Agreement that is illegal, invalid or unenforceable, there be added, as a part of this Agreement, a clause or provision as similar in terms to such illegal, invalid or unenforceable clause or provision as may be possible and be legal, valid and enforceable. K. If prior to the respective Closing any portion of the applicable Exchange Property is the actual or threatened subject of a condemnation or eminent domain action, the party to which such Exchange Property is to be conveyed may elect to either terminate this Agreement or proceed to Closing and receive an assignment of all condemnation proceeds for the Exchange Property. L. Unless otherwise specifically provided, all warranties and representations contained in or arising out of this Agreement will survive the respective Closing and conveyance of the BNSF Property and the City Property for a period of two (2) years. Section 10. Default and Remedies. If either party fails to perForm any of its obligations under this Agreement either prior to or at the respective Closing for any reason other than a right to terminate this Agreement expressly set forth herein, then the other party, as its sole and exclusive remedy, may terminate this Agreement by giving the other party written notice of such termination, whereupon this Agreement shall immediately terminate and neither party shall have any further rights or obligations hereunder except for those rights or obligations that expressly survive termination of this Agreement. After the Second Closing, if any dispute arises between the parties with respect to this Agreement or either Closing, neither party is entitled to seek rescission of the conveyances as a remedy, and the only remedies available to an aggrieved party will be to seek monetary damages. Section 11. No Brokers. BNSF represents and warrants to the City that no broker or agent has been involved on behalf of BNSF in connection with this Exchange Page 15 Exchange Agreement 20130531 Alliance Exchange Agreement (14)_For Execution.doc 1090.010�28682.3 ( Agr�eement or the conveyances of the Exchange Property. The City represents and warrants to BNSF that no broker or agent has been involved on behalf of the City in connection with this Exchange Agreement or the conveyances of the Exchange Property. Executed by the parties to be effective as of the Effective Date set forth above. CITY: THE CITY OF FORT WORTH, T�XAS By: Name: Tom Higgins Title: City Manager APPROVED AS TO FORM AND SUBSTANCE: By: % i�. �%1I Theodore P. Gorski, Jr. Assistant City Attorney ATTEST: By: Mary J. City Secretary Page 16 Eschange Agreement 20130531 Alliance Exchange Agreement (14)_For Execution.doc ��;y.:�`u:. w. : �,4,<'' � ��,.�'`�+11 y �o'�Q°po� _� o'' �1 A� .� :`� �; ' � � � ' �IiY SECRE'TARY I .�,. � � 1090.010�28682.3 BNSF: BNSF RAI�WAY COMPANY Delaware corporation By: Name Title Mark D. Ude AVP - Corporate Real Estate Department Exhibits attached to this Agreement: Exhibit A Exhibit B Exhibit C Exhibit D Exhibit E Exhibit F Exhibit G Exhibit H Depiction of BNSF Owned Property Depiction of BNSF Easement Rights Schedule of Recorded Instruments Evidencing BNSF Easement Rights Schedule of Recorded Instruments Evidencing City Ownership and Easement Rights Form City Property Deed Form City Assignment and Assumption of Easement Form BNSF Property Deed Form BNSF Assignment and Assumption of Easement Page 17 Exchange Agreement 20130531 Alliance Exchange Agreement (14)_For Execution.doc 1090.010�25682.3 EXHIBIT A DEPICTION OF BNSF OWNED PROPERTY tlN7��f'J�t11Nt'_KA'hei.i�.r�l-u.�r/dr = _ •x]_�f��-a��.au�f.�x.w..sy n� i�bUru�xr4��a�nl�a�wM�.tieeWiw.- �v�:au,.x t -.� � -s� 3 (� I �� = � a ! 1 Cl � � � ! � � ' .- � � � '. i I y � H- r�� r � � (0 ` � ;; - 3 .# � Q 3 9 �C i 9 1 �1 l � s � �• � s T, I C}E 4 Lc - F�T 4�� cG - j �e. �� 4 � Y i7 � G.��'-iE ['a�K.'.1%` ,. 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':.� . � . � E�ibit A Exchange Agreement 20130531 Alliance Exchange Agreement (14)_For Execution.doc 1090.010�28682.3 DEPICTION OF BNSF EASEMENT RIGHTS .�nu�r,�y..�z�;r.v,��,:._..5:�.d _,.:.....,.e. ..�,Y..-:.+�....i„s:e,.,ro {� It.'Irauvrw��a�-r..�l,isww'�`.uta:�iu.via'�r�.o�ai.riwfVcci�nC � � j' y� 3 r~ W ? �` _': � CJ _� N � � II'� t�iP 366.U9 �. = �� I G. ' .�� e ,� 1 M 9, � I L � N _� . ` F �- r r � I � cca .. � � 3 � � � J Q � r .� � N Y 1� �� Y f�� 6, __—_ _ �� ` � �� = µ� ` j a z. � �, ,, , _ � y Y nry u,G�a?�, �� 1:; S u � i;, �. _ n v , � : � Y� � a 1 a y � R c"-: � + � . � � � '^ � � f'�'�.f. Y • , �{ `s Exchange Agreement 20130531 Alliance Exchange Agreement (14)_For Execution.doc EXHIBIT B � i F � � • # t � �.lS�� ' � . �. k . .. a '�� --.� aw ��a�:,� - �' - � � - � •5�`t �-. --<, s' _ . ' `i 4 � � : ,�� :� ",�:y+. 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G �� I P��+' � � , t_�� -- � ; � � m In � � A 3 � i ti . . � . __.___ _ ' .�,_._ _' _.' ` �_ _ t ts' C � � E i � �. 0. � ' � � � 7 � n � ,. _ ._-..,--�' --".,_ - � --- � € �' n � � � � �� R . _____ _ _ _ _ __ __ _. ._ __. _ . -- -- -- ___ . � � ��, w � w � � �, +.^ A �° �^ . . ((�,' in a :-s 'a � ".s +� � '-.� -� `i 'a ��s� ,.[ � Q Vi N V�i +�+�i` U U V�pi i�h M wp � 'J .�. � ".? ¢O O t_f S �� O O C G? �� f�9 � @ _ � � _ � ' , �- ; � � � '� � � � ; � � , � # � � ., - y„ ��_ ,� � � a� " � =� � Fa a ° �. � � � �. a � f�'- 1+o r" i �� t�'y t3 h3 �� . � 0 0 0 � o �6 � ;�a s+ c o c�s q� .. .. N N �� .,i t.) N N N N N h> M�+ � "' �@ .r. _ .-...... �, _,..- _ N Qr N iN N !.i N IJ '� N iN fd �� .:+ � p�OO�Q OpiC?8� Ca g+� V Ou V C�t4 J C9c�i n N<*'1 1+J �"�'N � N �V jJ ^�' N W!-1 L� ) 4 iJ tii�� 4i��,7,, .�Y+ l� N�� '�'� � K O� �' L+ SOo �� Li '�- �o �" R� . J J ��'J Ve S.. � y~ L; �.7 a �„r � T N y N-�-1 td '�" N � N� ta .�; N..t #>t N�+/ tJ N N Cr ✓- fd ^t � � � • • 'W � x + p�o . O�c R� � � , � v' a � �'-+� '�' j v+ �^ � i'" n .... . � `t � �� z t �: "t !g i � t F f s � � 3 � � Exhibit D- Page 5 of 6 Exchange Ag•eement 20130531 Alliance Exchange Agreement (14)_For Execution.doc K O `C �� w �. � �� ,� � `� �� w °. `°i � z � � � � � �' � 0 a 1090.010�286823 � > � � � � � � Exhibit D- Page 6 of 6 Eschange Agreement 20130531 Alliance Exchange Agreement (14)_For Execution.doc ro ti a � � � �~ .ar � � o� n �C'i � O �' u � O Y � z � � � � � � � � �t n 1090.010�28682.3 EXHIBIT E FORM CITY PROPERTY DEED NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVERS LICENSE NUMBER. DEED WITHOUT WARRANTY STATE OF TEXAS � 0 COUNTY OF � KNOW ALL BY THESE PRESENTS That the CITY OF FORT WORTH, TEXAS ("Grantor"), for and in consideration of the sum of TEN AND NO/100 ($10.00) DOLLARS and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, has GRANTED, BARGAINED, SOLD, and CONVEYED, and by these presents does GRANT, BARGAIN, SEL.L, and CONVEY unto BNSF RAILWAY COMPANY, a Delaware corporation ("Grantee") whose mailing address is 2500 Lou Menk Drive, Fort Worth, Texas 76131, the following described tract(s) of land situated in County, Texas, together with all improvements thereon and all rights and appurtenances appertaining thereto, and all of Grantor's rights and interest, if any, in and to all easements and alleys, highways, or streets in, on, across or adjoining the land, and fixtures thereon (collectively, the "Property"): That/those (_) certain tract(s) of land consisting of a total of approximately acres situated in County, Texas, as more particularly described in Exhibit "A" attached hereto and incorporated herein for all purposes. This Deed is executed by Grantor and accepted by Grantee subject to validly existing E�ibit E Page 1 of 6 Exchange Agreement 20130531 Alliance Exchange Agreement (14)_For Execution.doc 1090.010�286823 ancl enforceable rights, interests, and estates, if any do in fact exist, but only to the extent that the same do in fact exist, of third parties in connection with those items set out and listed on Exhibit "B" hereto (herein called the "Permitted Exceptions"). TO HAVE AND TO HOLD the Property, subject to the Permitted Exceptions, together with all and singular the rights, improvements and appurtenances thereto in anywise belonging unto Grantee, its successors and assigns forever, without express or implied warranty. ALL WARRANTIES THAT MIGHT ARISE BY COMMON LAW AS WELL AS ANTIES I'. N 5.023 1 CODE ITS SUCCESSOR) ARE EXCLUDED. This conveyance is made, however, with full substitution and subrogation of Grantee, and its successors and assigns, in, to and under all covenants and warranties by others heretofore given or made in respect of (including, without limitation, the title to) the Property, any part thereof, or any interest therein. BASIS W IS ACCEPTING THE PROPERTY ON AN "AS-IS WITH A�L F � ANY AND ALL PATENT AND LATENT DEFECTS, INCLUDING TO THE ENVIRONMENTAL CONDITION OF THE PROPERTY, �� E NOT RELYING ON ANY REPRESENTATION OR WARRANTIES, EXPRESS OR = ANY KIND WHATSOEVER FROM GRANTOR AS TO ANY MA CONCERNING THE PROPERTY, including, but not limited to, the physical condition of the Property; zoning status; tax consequences of this conveyance; utilities; operating history or projections or valuation; compliance by the Property with Environmental Laws (meaning any federal, state or local statute, regulation, code, rule, ordinance, order, judgment, decree, injunction or common law pertaining in any way to the protection of human health or the environment, including without limitation, the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Toxic Substances Control Act, and any similar or comparable state or local law) or other laws, statutes, ordinances, decrees, regulations and other requirements applicable to the Property; the presence of any Hazardous Substances (meaning any hazardous, toxic, radioactive or infectious substance, material or waste as defined, listed or regulated under any Environmental Law, and Exhibit E Page 2 of 6 Exchange Agreement 20130531 Alliance Exchange Agreement (14)_For Execution.doc 1090.010�28682.3 in�ludes without limitation petroleum oil and any of its fractions), wetlands, asbestos, lead, lead-based paint or other lead containing structures, urea formaldehyde, or other environmentally sensitive building materials in, on, under, or in proximity to the Property; the condition or existence of any above ground or underground structures or improvements, including tanks and transformers in, on or under the Property; the condition of title to the Property, and the existence of any leases, easements, permits, orders, licenses, or other agreements affecting the Property. [SIGNATURES ON THE FOLLOWING PAGES] E�ibit E Page 3 of 6 Exchange Agreement 20130531 Alliance Exchange Agreement (14)_For Execution.doc 1090.010�28682.3 IN WITNESS WHEREOF, the undersigned has executed this Deed to be effective as of the Effective Date. THE CITY OF FORT WORTH, TEXAS By: � Title: THE STATE OF TEXAS § 0 COUNTY OF TARRANT § The foregoing instrument was acknowledged before me on , 201_, by , of the City of Fort Worth, Texas, on behalf of the City. Notary Public, State of Texas My Commission Expires: E�ibit E Page 4 of 6 Exchange Agreement 20130531 Alliance Exchange Agreement (14)_For Execution.doc 1090.010�286823 EXHIBIT A TO DEED Property Description Exhibit E Page 5 of 6 Exchange Agreement 20130531 Alliance Exchange Agreement (14)_For Execution.doc 1090.010�286823 EXHIBIT B TO DEED Permitted Exce�tions Exhibit E Page 6 of 6 Exchange Agreement 20130531 Aliiance Exchange Agreement (14)_For Execution.doc 1090.010�286823 EXHIBIT F FORM CITY ASSIGNMENT AND ASSUMPTION OF EASEMENT STATE OF TEXAS COUNTY OF � § KNOW ALL MEN BY THESE PRESENTS: � This ASSIGNMENT AND ASSUMPTION OF EASEMENT (the "Assignment") is executed to be effective as of , 201_ (the "Effective Date") by and between the City of Fort Worth, Texas ("Assignor"), and BNSF Railway Company, a Delaware corporation ("Assignee"). RECITA�S: WHEREAS, attached hereto as Schedule 1 is a list of recorded instruments (collectively, the "Easements") recorded in County, Texas, under which Assignor received certain easement rights as more particularly described in the Easements. WHEREAS, Assignor desires to transfer and assign all of Assignor's right, title, interest and obligations under the Easements to Assignee. NOW, THEREFORE, for and in consideration of the agreements set forth in the Assignment, the sum of TEN AND NO/100 DOLLARS ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Assignor and Assignee hereby agree as follows: 1. Assignment. Assignor hereby ASSIGNS, TRANSFERS, and CONVEYS unto Assignee, all of Assignor's right, title and interest in and to the Easements. Assignor agrees to pay, perForm, observe and discharge all liabilities and obligations of Assignor E�ibit F Page 1 of 6 Exchange Agreement 20130531 Alliance Exchange Agreement (14)_For Execution.doc 1090.010�286823 � un°der the Easements which were to be perFormed or which accrued prior to the Effective Date. 2. Assumption. Assignee assumes and agrees to pay, perform, observe and discharge all liabilities and obligations of Assignor under the Easements which are to be perFormed or which accrue on or after the Effective Date. 3. Counter�arts. This Assignment may be executed in counterparts, each of which shall be deemed an original, and both of which together shall constitute one and the same instrument. 4. Attorn�s' Fees. If any action or proceeding is commenced by either party to enforce its rights under this Assignment, the prevailing party in such action or proceeding shall be entitled to recover all reasonable costs and expenses incurred in such action or proceeding, including reasonable attorneys' fees and costs, in addition to any other relief awarded by the court. 5. Applicable Law. This Assignment shall be governed by and interpreted in accordance with the laws of the State of Texas. 6. Titles and Section Headinqs. Titles of sections and subsections contained in this Assignment are inserted for convenience of reference only, and none form a part of this Assignment or are to be used in its construction or interpretation. 7. Bindinq Effect. This Assignment shall be binding upon and inure to the benefit of the parties hereto and their respective transferees, successors and assigns. Assignor and Assignee each agree to execute and deliver such other and further documents as may be necessary to transfer, assign, convey and deliver the Easement and to otherwise accomplish the purposes and intent of this Assignment. 8. Entire Aqreement; Modification. This Assignment supersedes E�ibit F Page 2 of 6 Exchange Agreement 20130531 Alliance Exchange Agreement (14)_For Execution.doc all prior 1090.010�286823 � ag�-eements and constitutes the entire agreement with respect to the subject matter hereof. It may not be altered or modified without the written consent of all parties. 9. No Warranties. ASSIGNEE IS ACCEPTING ASSIGNMENT OF THE EASEMENTS ON AN "AS-IS WITH ALL FAULTS" BASIS WITH ANY AND ALL PATENT AND LATENT DEFECTS, INCLUDING THOSE RELATING TO THE ENVIRONMENTAL CONDITION OF THE PROPERTY WITHIN THE EASEMENTS, AND IS NOT RELYING ON ANY REPRESENTATION OR WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND WHATSOEVER FROM ASSIGNOR AS TO ANY MATTERS CONCERNING SUCH PROPERTY, including, but not limited to, the physical condition of such property; zoning status; tax consequences of this conveyance; utilities; operating history or projections or valuation; compliance by such property with Environmental Laws (meaning any federal, state or local statute, regulation, code, rule, ordinance, order, judgment, decree, injunction or common law pertaining in any way to the protection of human health or the environment, including without limitation, the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Toxic Substances Control Act, and any similar or comparable state or local law) or other laws, statutes, ordinances, decrees, regulations and other requirements applicable to such property; the presence of any Hazardous Substances (meaning any hazardous, toxic, radioactive or infectious substance, material or waste as defined, listed or regulated under any Environmental Law, and includes without limitation petroleum oil and any of its fractions), wetlands, asbestos, lead, lead-based paint or other lead containing structures, urea formaldehyde, or other environmentally sensitive building materials in, on, under, or in proximity to such property; the condition or existence of any above ground or underground structures or improvements, including tanks and transformers in, on or under such property; the condition of title to such property, and the existence of any leases, easements, permits, orders, licenses, or other agreements afFecting the Easements. [the remainder of this page intentionally left blank] Exhibit F Page 3 of 6 Exchange Agreement 20130531 Alliance Exchange Agreement (14)_For Execution.doc 1090.010�28682.3 IN WITNESS WHEREOF, the undersigned has executed this Assignment to be effective as of the Effective Date. ASSIGNOR: THE CITY OF FORT WORTH, TEXAS By: � Title: THE STATE OF TEXAS COUNTY OF TARRANT � � � The foregoing instrument was acknowledged before me on , 201 _, by of the City of Fort Worth, Texas, on behalf of the City. Notary Public, State of Texas My Commission Expires: Exhibit F Page 4 of 6 Exchange Agreement 20130531 Alliance Exchange Agreement (14)_For Execution.doc 1090.010�28682.3 IN"''`WITNESS WHEREOF, the undersigned has executed this Assignment to be effective as of the Effective Date. ASSIGNEE: BNSF RAILWAY COMPANY a Delaware corporation By: Name: Title: THE STATE OF TEXAS COUNTY OF TARRANT � � � The foregoing instrument was acknowledged before me on of BNSF Delaware corporation, on behalf of such corporation. Notary Public, State of Texas My Commission Expires: Exhibit F Page 5 of 6 E�change Agreement 20130531 Alliance Exchange Agreement (14)_For Execution.doc Railway _, 201 _, by Company, a 1090.010�28682.3 SCHEDULE 1 TO ASSIGNMENT LIST OF RECORDED EASEMENTS E�chibit F Page 6 of 6 Exchange Agreement 20130531 Alliance Exchange Agreement (14)_For Execution.doc 1090.010�28682.3 EXHIBIT G FORM BNSF PROPERTY DEED NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUB�IC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVERS LICENSE NUMBER. DEED WITHOUT WARRANTY STATE OF TEXAS �� § KNOW ALL BY THESE PRESENTS COUNTY OF �� That the BNSF RAILWAY COMPANY, a Delaware corporation ("Grantor"), for and in consideration of the sum of TEN AND NO/100 ($10.00) DOLLARS and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, has GRANTED, BARGAINED, SOLD, and CONVEYED, and by these presents does GRANT, BARGAIN, SELL, and CONVEY unto the CITY OF FORT WORTH, TEXAS ("Grantee") whose mailing address is , the following described tract(s) of land situated in County, Texas, together with all improvements thereon and all rights and appurtenances appertaining thereto, and all of Grantor's rights and interest, if any, in and to all easements and alleys, highways, or streets in, on across or adjoining the land, and fixtures thereon (collectively, the "Property"): That/those (_) certain tract(s) of land consisting of a total of approximately acres situated in County, Texas, as more particularly described in Exhibit "A" attached hereto and incorporated herein for all purposes. This Deed is executed by Grantor and accepted by Grantee subject to validly existing E�ibit G Page 1 of 6 Exchange Agreement 20130531 Alliance Exchange Agreement (14)_For Execution.doc 1090.010�28682.3 an`d enforceable rights, interests, and estates, if any do in fact exist, but only to the extent that the same do in fact exist, of third parties in connection with those items set out and listed on Exhibit "B" hereto (herein called the "Permitted Exceptions"). TO HAVE AND TO HOLD the Property, subject to the Permitted Exceptions herein, together with all and singular the rights, improvements and appurtenances thereto in anywise belonging unto Grantee, its successors and assigns forever, without express or implied warranty WELL N = THE TE. ERTY CODE (OR ITS SUCCESSOR) ARE EXCLUDED. This conveyance is made, however, with full substitution and subrogation of Grantee, and its successors and assigns, in, to and under all covenants and warranties by others heretofore given or made in respect of (including, without limitation, the title to) the Property, any part thereof, or any interest therein. ALL WARRANTIES THAT MIGHT ARISE BY COMMON LAW AS 1:7 ACCE ID ALL P THE ..�.� ENTAL ( LATE "AS-IS WITF iEFECTS, INC OF THE PRO FAU LTS" G THOSE '. AND IS NOT RELYING ON ANY REPRESENTATION OR WARRANTIES, EXPRESS OR IM KI 7 � MA CONCERNING THE PROPERTY, including, but not limited to, the physical condition of the Property; zoning status; tax consequences of this conveyance; utilities; operating history or projections or valuation; compliance by the Property with Environmental Laws (meaning any federal, state or local statute, regulation, code, rule, ordinance, order, judgment, decree, injunction or common law pertaining in any way to the protection of human health or the environment, including without limitation, the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Toxic Substances Control Act, and any similar or comparable state or local law) or other laws, statutes, ordinances, decrees, regulations and other requirements applicable to the Property; the presence of any Hazardous Substances (meaning any hazardous, toxic, radioactive or infectious substance, material or waste as defined, listed or regulated under any Environmental Law, and Exhibit G Page 2 of 6 Exchange Agreement 20130531 Alliance Exchange Agreement (14)_For Execution.doc 1090.010�286823 includes without limitation petroleum oil and any of its fractions), wetlands, asbestos, lead, lead-based paint or other lead containing structures, urea formaldehyde, or other environmentally sensitive building materials in, on, under, or in proximity to the Property; the condition or existence of any above ground or underground structures or improvements, including tanks and transformers in, on or under the Property; the condition of title to the Property, and the existence of any leases, easements, permits, orders, licenses, or other agreements affecting the Property. [SIGNATURES ON FOLLOWING PAGES] Exhibit G Page 3 of 6 Exchange Agreement 20130531 Alliance Exchange Agreement (14)_For Execution.doc 1090.010�28682.3 INYWITNESS WHEREOF, the undersigned has executed this Deed to be effective as of the Effective Date. BNSF RAILWAY COMPANY a Delaware corporation By: Name: Title: THE STATE OF TEXAS COUNTY OF TARRANT 0 � � The foregoing instrument was acknowledged before me on of Delaware corporation, on behalf of such corporation. BNSF Railway Notary Public, State of Texas My Commission Expires: E�ibit G Page 4 of 6 Exchange Agreement 20130531 Alliance Exchange Agreement (14)_For Execution.doc _, 201 _, by Company, a 1090.010�28682.3 EXHIBIT A TO DEED Property Description Exhibit G Page 5 of 6 Exchange Agreement 20130531 Alliance Exchange Agreement (14)_For Execution.doc 1090.010�286823 EXHIBIT B TO DEED Permitted Exceptions Exhibit G Page 6 of 6 Exchange Agreement 20130531 Alliance Exchange Agreement (14)_For Execution.doc 1090.010�28682.3 � EXHIBIT H FORM BNSF ASSIGNMENT AND ASSUMPTION OF EASEMENT STATE OF TEXAS COUNTY OF � § KNOW ALL MEN BY THESE PRESENTS: � This ASSIGNMENT AND ASSUMPTION OF EASEMENT (the "Assignment") is executed to be effective as of 201_ (the "Effective Date") by and between BNSF Railway Company, a Delaware corporation ("Assignor"), and the City of Fort Worth, Texas ("Assignee"). RECITALS: WHEREAS, attached hereto as Schedule 1 is a list of recorded instruments (collectively, the "Easements") recorded in County, Texas, under which Assignor received certain easement rights as more particularly described in the Easements. WHEREAS, Assignor desires to transfer and assign all of Assignor's right, title, interest and obligations under the Easements to Assignee. NOW, THEREFORE, for and in consideration of the agreements set forth in the Assignment, the sum of TEN AND NO/100 DOLLARS ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Assignor and Assignee hereby agree as follows: 1. Assignment. Assignor hereby ASSIGNS, TRANSFERS, and CONVEYS unto Assignee, all of Assignor's right, title and interest in and to the Easements. Assignor agrees to pay, perform, observe and discharge all liabilities and obligations of Assignor under the Easements which were to be performed or which accrued prior to the Effective Date. Exhibit H Page 1 of 6 Exchange Agreement 20130531 Alliance Exchange Agreement (14)_For Execution.doc 1090.010�28682.3 2. Ty Assumption. Assignee assumes and agrees to pay, perForm, observe and discharge all liabilities and obligations of Assignor under the Easements which are to be performed or which accrue on or after the Effective Date. 3. Counterparts. This Assignment may be executed in counterparts, each of which shall be deemed an original, and both of which together shall constitute one and the same instrument. 4. Attorneys' Fees. If any action or proceeding is commenced by either party to enforce its rights under this Assignment, the prevailing party in such action or proceeding shall be entitled to recover all reasonable costs and expenses incurred in such action or proceeding, including reasonable attorneys' fees and costs, in addition to any other relief awarded by the court. 5. Applicable Law. This Assignment shall be governed by and interpreted in accordance with the laws of the State of Texas. 6. Titles and Section Headinqs. Titles of sections and subsections contained in this Assignment are inserted for convenience of reference only, and none form a part of this Assignment or are to be used in its construction or interpretation. 7. Bindinq Effect. This Assignment shall be binding upon and inure to the benefit of the parties hereto and their respective transferees, successors and assigns. Assignor and Assignee each agree to execute and deliver such other and further documents as may be necessary to transfer, assign, convey and deliver the Easement and to otherwise accomplish the purposes and intent of this Assignment. 8. Entire Agreement; Modification. This Assignment supersedes all prior agreements and constitutes the entire agreement with respect to the subject matter hereof. It may not be altered or modified without the written consent of all parties. 9. No Warranties. ASSIGNEE IS ACCEPTING ASSIGNMENT OF THE EASEMENTS ON AN "AS-IS WITH ALL FAULTS" BASIS WITH ANY AND ALL E�ibit H Page 2 of 6 Exchange Agreement 20130531 Alliance Exchange Agreement (14)_For Execution.doc 1090.010�286823 P�TENT AND LATENT DEFECTS, INCLUDING THOSE RELATING TO THE ENVIRONMENTAL CONDITION OF THE PROPERTY WITHIN THE EASEMENTS, AND IS NOT RELYING ON ANY REPRESENTATION OR WARRANTIES, EXPRESS OR IMPLIED OF ANY KIND WHATSOEVER FROM ASSIGNOR AS TO ANY MATTERS CONCERNING SUCH PROPERTY, including, but not limited to, the physical condition of such property; zoning status; tax consequences of this conveyance; utilities; operating history or projections or valuation; compliance by such property with Environmental Laws (meaning any federal, state or local statute, regulation, code, rule, ordinance, order, judgment, decree, injunction or common law pertaining in any way to the protection of human health or the environment, including without limitation, the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Toxic Substances Control Act, and any similar or comparable state or local law) or other laws, statutes, ordinances, decrees, regulations and other requirements applicable to such property; the presence of any Hazardous Substances (meaning any hazardous, toxic, radioactive or infectious substance, material or waste as defined, listed or regulated under any ' Environmental Law, and includes without limitation petroleum oil and any of its fractions), wetlands, asbestos, lead, lead-based paint or other lead containing structures, urea formaldehyde, or other environmentally sensitive building materials in, on, under, or in proximity to such property; the condition or existence of any above ground or underground structures or improvements, including tanks and transformers in, on or under such property; the condition of title to such property, and the existence of any leases, easements, permits, orders, licenses, or other agreements affecting the Easements. Notwithstanding the foregoing or anything in this Assignment to the contrary, however, Assignee acknowledges and affirms that Assignor has disclosed to Assignee that Assignor's interest in all or part of the Easements may rise only to the level of an easement for railroad purposes. Assignee is willing to accept Assignor's interest in the Easements, if any, on this basis. Exhibit H Page 3 of 6 Exchange Agreement 20130531 Alliance Exchange Agreement (14)_For Execution.doc 1090.010�28682.3 �; �4IN' WITNESS WHEREOF, the undersigned has executed this Assignment to be effective as of the Effective Date. ASSIGNOR: BNSF RAILWAY COMPANY a Delaware corporation By: Name: Title: THE STATE OF TEXAS COUNTY OF TARRANT � � �� The foregoing instrument was acknowledged before me on _, 201_, by , of BNSF Railway Company, a Delaware corporation, on behalf of such corporation. Notary Public, State of Texas My Commission Expires: E�ibit H Page 4 of 6 Exchange Agreement 20130531 Alliance Exchange Agreement (14)_For Execution.doc 1090.010�28682.3 IN WITNESS WHEREOF, the undersigned has executed this Assignment to be effective as of the Effective Date. ASSIGNEE: THE CITY OF FORT WORTH, TEXAS By: Name: Title: THE STATE OF TEXAS § �, � COUNTY OF TARRANT § The foregoing instrument was acknowledged before me on , 201_, by of the City of Fort Worth, Texas, on behalf of the City. Notary Public, State of Texas My Commission Expires: E�ibit H Page 5 of 6 Exchange Agreement 20130531 Alliance Exchange Agreement (14)_For Execution.doc 1090.010\28682.3 SCHEDULE 1 TO ASSIGNMENT LIST OF RECORDED EASEMENTS Exhibit H Exchange Agreement 20130531 Alliance Exchange Agreement (14)_For Execution.doc Page 6 of 6 1090.010�286823 M&C Review �� .;t ; i ► t .,-.. �;F.. COUNCIL ACTION: Approved on 5/4/2010 � _ - _ - _ _- _ - - , DATE: 5/4/2010 REFERENCE NO.: C-24205 LOG NAME: 55AFW RELOCATION AGREEMENT CODE: C TYPE: " NON- PUBLIC NO CONSENT HEARING: SUBJECT: Authorize the Execution of an Agreement with Burlington Northern Santa Fe Railway in an Amount Up to $95,000,000.00 for the Design and Construction of the Relocated Railroad Mainline and Connector Track and Conveyance of Right-of-Way to the City for the Alliance Fort Worth Airport Runway Extension Project (COUNCIL DISTRICT 2) RECOMMENDATION: It is recommended that the City Council authorize the City Manager to execute an Agreement with Burlington Northern Santa Fe Railway in an amount up to $95,000,000.00 for the design and construction of the relocated railroad mainline and connector track and conveyance of right of way to the City for the Alliance Airport Runway Extension Project. DISCUSSION: On September 18, 1992, (M&C C-13529) the City Council approved an Agreement with Burlington Northern Santa Fe Railroad (BNSF) for right of way acquisition, design and construction of a relocated mainline and connector track and conveyance of right of way to the City to allow for the Fort Worth Alliance Airport Runway Extension. Due to the unavailability of funds at that time the project was not completed. Commencing in 2001, the Federaf Aviation Administration (FAA) has issued a series of annual grants for the Runway Extension Project. In addition, funding from other sources including Tarrant County Bond Funds, a United States Department of Transportation (USDOT) earmark and State Highway 121 Toll Road Funds as approved by the Regional Transportation Commission have allowed this project to move forward. Sufficient funds are now available to move forward with the railroad relocation portion of the project. The Agreement between BNSF and the City requires the City to acquire the necessary right-of-way for the relocated mainline and connector track and for BNSF to design and construct the relocated mainline and connector track. BNSF will be reimbursed for the cost of design and construction. Upon completion of the relocated mainline and connector track BNSF will convey certain portions of the abandoned mainline to the City. The funding sources will be a combination of the Texas Department of Transportation Advanced Funding Agreement ($80,000,000.00) and FAA Discretionary Grants (up to $51,300,000.00). This project is located in COUNCIL DISTRICT 2, Mapsco 7P FISCAL INFORMATION/CERTIFICATION: The Financial Management Services Director certifies that funds are available in the current capital budget, as appropriated, of the Airports Grant Fund. ETO Fund/Account/Centers FROM Fund/Account/Centers GR14 539120 055302388800 GR14 539120 055218265300 Page 1 of 2 C7fficial site af the City of �att 4°Ja�th, Texas ��i�T'��'��R'�I1 '�:� �� $2,000,000.00 http://apps.cfwnet.org/council�acket/mc_review.asp?ID=13362&councildate=5/4/2010 6/12/2013 M&C Review Submitted for Citv Manager's Office bv: Originating Department Head: Additional Information Contact: ATTACHMENTS GR14 539120 055218265800 $3,000,000.00 GR14 541200 055218339800 $10,000,000.00 Fernando Costa (6122) Kent Penney (5403) Ruseena Johnson (5407) 55AFW RELOCATION AGREEMENT Main Track Relocation rev2.pdf http://apps.cfwnet.org/council�acket/mc review.asp?ID=13362&councildate=5/4/2010 Page 2 of 2 6/12/2013