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HomeMy WebLinkAboutContract 40233-A3 ANTY SEC I I P CONTRACT lie THIRD D A FNDM NT TO BNSF RELOCATION AGREEMENT This THIRD AMENDMENT TO BNSF RELOCATION AGREEMENT E (this "Amendment" is between the City of Fort Worth, Tula, (thy and the BNSF Railway a m a "I13NIS17" to he effective 2013. The City and BNSF are herein referred to collectively as the, "Parties." WHEREAS, the Parties entered into that certain "BNSF RELOCATION AGREEMENT effective May 17, 2010; as amended effective urge 1, 2 1 " to extiena the eri ld during which to ,agree upon the NSF Final Relocation Pleas and the City Final Relocation laps; and as further amended effective December 151 2011, to xte nd the period during which the Conditions Precedent will' he satisfied" rid to extend the ,period during which the remilaining Relocation Work Contracts will be awarded as ame ded" the "Agree rat" WHEREAS, Hillwood Enterprises, L.P. "`Hillwood"), BNSF, General Electric Company ("GE"), and the City entered into that certain non-hind�in "Project RR - Terra Sheet'''' dated May 12, 201`1 (the "Term Sheet"),,, pursuant, to which the Parties agreed to seek to, emend this Agreement so that the Existing Main Lire Segment ort would be conveyed' to the City or GE WHEREAS, all terms used in this Amendment with i'nilti'al capital letters shall have the meanings given to such terms in the Agreement; WHEREAS, the Parties desire to further amend the Agreement to further extend the period during which the Conditions Precedent will be satisfied and to further extend the period during which the remaining Relocation Work Contracts will he awarded, sur d t o al!low for conveyance, of B F's interest in the Existing, Main Lire Segment North to the City, subject to -the rights, if any, of Millwood or its affiliates or assigns' and OFFICIAL R CITY SECRETARY FTO WORTH,T gel Third Amendment to BLASE Relocation Ag reement 2,1 201S .0 I V E 20130531 Alliance Third Amendment to Relo Agreement 1 ).Tor Executi n.do WHEREAS, concurrently, herewith the Parties have entered into that certain, i "Exchanqe Agreement") to Exchange Agreement in the form attached as Exhiblit A (the effectuate the Land Exchange described in Section `10 of the Agreement, NOW THEREFORE, in consideration f' the mutual obligations of and benefits to the Parties set forth in this Amendment the Parties agree as follows: 1. The definition for "RoU and the d finit,ioln for "Writ" are deleted from Section 2 of the Agreement. 2. Section 6, "RELOCATION WORK CONTRACTS,"' of the Agreement is amended, in its entirety, to read as follows.- 116. RELO,CATION' WORK CONTRACTS. The BNSF Relocation Work will be performed under Relocation Work Contracts rel anon ahilt' approved by the Project Manager and Airport Manager. Relocation Work Contracts, shall be awarded or otherwise made effective as soon as possible after satisfaction of all Conditions Precedent, and provided all Conditions Precedent have been satisfied on or before J!uly 31, 2013, all Relocation Work Contracts shill be awarded no later than September 301, 2013. If all Relocation Work Contracts are not awarded or made effective by September 30, 2013, and if sufficient Public Funds, to, play the BN!SF Relocation Cost and City Relocation Cost are no, longer avai,lable, then the City may terminate this I force majeure and without Agreement upon Notice to BNSF w�*th�olu�t regard, to f opportunity t o cure; whereupon, neither Party shall have any further duties, obligations, rights, or remedies under this Agreement (except for the City's obligation to reimburse B,NSF for the costs of preparing the BNSF Final Relocation Plans, and other B,NSF Relocation Costs as set out in Section 5 above). All Relocation Work Contracts shall require the Contractor to., (a) complete the work covered by the contract in accordance with specific, detailed performance milestones consistent with the final schedules included in the BNSF Final Relocation Plans (subject to force majeure); (b) giive the Project Manager and Airport Manager immediate Notice of any fact or circumstance (including any claim by the Contractor of an event of force majeure) that would result in Page, 2 Third Amendment to BNSF Relocation Agreement 20130531 Ahiance,Third'Amendment to Relo Agreement(1 1)_For Execution.doc the Contractor's failure or inability to meet any performance milestone (inclu din g a detailed description of such facts or circumstances and a, plan of action to avoid or mitigate the effects of' any delay); (c) give the Project Manager and Airport Manager ,immediate Notice of any fact or circumstance which, with the giving of notice or passage of time, co Ida in the judgment of the Contractor, constitute an event of default under the Relocation Work Contract- (d) give the Project Manager and Airport Manager immediate Notice of any notice or communication given or received by the Contractor under the Relocation Work Contract alleging an event of default by either party under the contract in which case the Project Manager and Airport Manager shall have access to all non- confidential and non-privileged information, withlin: the Contractoris possession or control regarding the alleged default and the right to participate in the r ollu�tion of the alleged default), and (e) where practical, separately identify the cost of work performed in Denton County from work performed in Tarrant County. A copy of' each Relocation Work Contract inc,luding amendments and Change Orders thereto, shall be provided to -the Project Manager and Airport Manager withlin 101 days after each contracty amendment, or Change Order is fully executed or otherwise made, effective. Notwithstanding the foregoing, BNSF has, the right, in its sole discretion, to decide whether the B,N Relocation Work or any part 'thereof (including, but not limited to, engineering, construction management, grading and d'emolli'tion) will be performed by third-party contractors or by BNSF employees working under applicable, collective bargaining agreements. Any work performed by BNSF' eniployees shall be deemed to satisfy the foregoing, contract award requirement and all other requirements herein reg:ardling Relocation 'Work Cointracts. BNSF shall supply the documentation required for Draw Requests in connection with such work." 3. The Conditions Precedent set forth in Section 8.a.(1), Section 8.a. , ,and Section 8.,a.(5) of the Agreement have been satisfied. The Conditions Precedent set forth, in Section 8.a.(2,) of' the Agreement shall be satisfied upon delivery to BNS,F of a written, certificate from a City official stating that the information set forth, in that certain Memorandum for Clarification Regarding! Public Funds Available for BNSF Railroad Reto:cation Proit ect dated December 12, 2011, is still, accurate as of the date of this Page 3 Third Amendment to BNSF Relocation,Agreement 201305,31 Alliance Third Amendment to Relio Agreement(1 1)_For Execution-doe A /-\menidm,e,nit as to the current estimated cost of the BNSF Relocation Cost anid City Relocation Cost, and subject to Section 8.e of the Agreement. The Condition Precedent set forth in Section 8.a.(3) will be satisfied upon City's performance of those actions, set forth in Section 4 of this Amendment. 4. Section 8.a.(3) of the Agreement is amended in its entirety to read as follows.- "(3) Pursuant to Section 10 below, the City has conveyed to BNS,F by deed or easement, as specified by BNSF al!l parcel's (whether acquired from third pairties or already owned by the City) necessary for BNSF to construct, the Main Line and Connector Track as depicted on the BNSF Final Relocation Plans (collectively, the 'Replacement Property"), or (with respect to "Parcel Pl" (Vann Cattle), "Parcel P27" (Redus), and "Parcel 51 (Wiley) only), the City has assigned to B,NSF by Designee Agreement (as hereinafter defined) the City's rights to those three parcels, 5. Section 8.b. of the Agreement is amended in its entirety to read as follows: 11b. If the Conditions Precedent have not been satisfied on or before July 31, 2013, B,NSF shall give Notice of such failure to the City, and the City shall have 15 days within which to satisfy the conditions. If the City fails to satisfy the Conditions Plrecedent, within such 151-day period) B,NSF may suspend performance of this Agreement. BNSF shall have the right, but not the obligation, to waive any or, al'l of the Conditions Precedent at any time prior to satisfaction thereof, or to commence the BNSF Relocation Work without waiving the right to require the City to complete any or all of the Conditions Precedent.)) 6. Section 8.f of the Agreement is amended, in its entirety, to read as follows: 14f. Notwithstanding anything to the contrary contained in this Agreement, in the event BNSF has not obtained all of the BNSF Regulatory Permits by July 31, 2013" BNSF shall have the right to suspend the N'SF Relocation Work until' BNSF has obtained all of the BNSF Regulatory Peirm,its.," Page 4 Third Amendment to BNSF Relocation Agreement 20130531 Alliance Third Amendment to Relo Agreement(11 for Execution.doe 7. F i'rst CI The Parties agree that the "First Closing" under the Agreement may take place in multiple phased closings, as set forth in more detail in the Exchange Agreement, and on the terms and conditions set forth there,in. In the event of any conflict between the Agreement and the Exchange Agreement, the Agreement shall control, provided that if the, Exchange Agreement contains specific language pertaining to areas not addressed in the Agreement, the Exchange Agreement shall control., 8. The third sentence of Section 101.a(1)l of' the Agreement is deleted in its e nt 1 rety. 9. Section 10.b(l) of the Agreement is amended, in its entirety, to read as follows.., "(1)(i) Exist cl Main Line Seqlment North BNSF shall convey its interest in the land underlying Existing Main Line Segment North to, the City at the Second Cl! sing as set forth below. BNSF's, obligation to convey Existing Main Line Segment North to the City shall be su�b,ject to the rights, if any, that Hillwood or its affiliates or assigns may hold to the Existing Main Line Segment Noirth�. �(1)(ii) Existing, Main Line Se ment South. BNSF shall convey its interest 0 1 in the land underlying Existing Main Line Segment South to the City at the Second Closing as set forth below. 10. There shall be added a new sentence at the end of Section 1 O(b)(2) of the Agreement as follows: "'Cilty acknowledges that BNSF has entered into, a Track Operating Agreement (thee "TOK) with GE, as contemplated by the Term Sheet, allowing GE the right to use the Existing Main! Line Segment North. The TOA will terminate upon the transfer of the Existing Main Line Segment North at the, Second Closing." 11 The parties agree that the City shall not have the option to transfer, convey or assign any tract of Replacement Property to BNSF by a "right-of-entry." In addition, 'the, City and BNSF agree that the City will not provide to BNSF a writ of' possession, to any tract, but will assign to BNSF its rights to any tract of Replacement Property for which (i), a condemnation hearing has been held, (ii) the City has paid the Page 5 Third Amendment to BNSF Relocation Agreement 201130531 Alliance Third Amendment to Relo Agreement(11) ,Far Execution.doc award established by the Commissioner s Court, but, (iii) such award has been appealed by the pity or the o demnee and such appeal' has not been finally determined. Such assignment shall be in the form attached to this Amendment as Exhibit B (the "'Desici rye e Agreemient"). If the City desires to provide BINISF access to any tract(s) of Replacement Property by Desig�nee Agreement, the City shall provide written notice thereof to B,NSF identifying such tract(s), and the City and' BNSF shall mutually, agree u on the timing ,and' d'el'i'very of such Designee Agreernent(s). In the event the City initially provides only a Diesi�ginee Agreement as to any tract of Replacement Property, the City shall diligently pursue acquisition of such tract (including promptly paying any amount over and above the Commissioner's Court award' as so determined at the conclusion of the appeals process) and convey to BNSF such tract of Replacement Property by deed without warranty or easement as determined by BNSF as soon as the City completes such acquisition!. 12. The first sentence of Section 1O.0 1 of the Ag reemienit is hereby amended to read as follows.- "At the First Closing, and subject to the following sentence, the City shall convey to BNSF all of the Replacement Property by deed or easement, depending on BINISF's determinatioln ." 13. The second sentence of Section 1 O0) of the Agreement is hereby deleted in its entirety. 14. The third sentence of Section 10.,c(l) is hereby amended to read as follows: The First Closing shall occur on the date designated by the City to BASF with no less than thirty (30) days prior written notice, and in no event prior to the completion by BNSF of its due diligence review and approval of all Replacement Property to be transferred to, BNSF as described above; provided, however, that concurrently with such written noticel City shall deliver to BN'SIF current updates of any title, commitments,, Phase I and Phase 11 reports, which are dated more than 610 days before the date of such written notice (unless BNSF decides it its sole discretion to accept title commitments, Phase I and Phase 11 reports which are dated more than 60 days but less than 180 days before the date of such written notice)." Page 61 Third Amendment to BNSF Relocation Agreement 201305,31 Alliance Third Amendment to Relo Agreement(11)_=or Execution.doc 15. The phrase "acquired by R or Writ" is deleted from, the second sentence of Section 101.C(2) of the Agreement and replaced with "transferred, to BNSF by Designee Agreement 16. Except as amended' by this Amendment, the Agreement shall remain in full force a,nd eff ect SHE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK., SIGNATURES: APPEAR ON THE NEXT PAGE. Page 7 Third Amendment to BNSF Relocation Agreement 20130531 Alliance Third Amendment to Relo Agreement(1 1i For Executiondoc /AvP A ROVED AS TO FORM AND BNSF RAILWAY COMPANY, a SUBSTANCE.- Delaware corporation By: 7 By: Name,: Theodore P. Gorski,i Jr. Name: Mark D. Ulde Title.: Assistant 0_%ity Attorney Title: AVP — Corporate Real, Estate Date: W Development Date- 6t/ THE CITY F' FORT WORTH, TEXAS 00( By: Name: Tom Higgins Title.- City Manager Date.- ()0000 41,ipr A ,"too, "j ATTEST: IS r Qr e OA, GO od, ooioo By.; J�*J, Name.- Mary J. K er Title.- City Secretary Date: OIFFJCIAL�RE VRAR CITY SE TX Page8 ' VQ Q UIRED D Third Amendment to B�NSF Relocation Agreement 20130,531 Aiiiance Third'Amendment to Relo Agreement 1)—For Execution.doc I fine n 11 0 4 01 11