HomeMy WebLinkAboutContract 40233 CITY SECRIE
CONTRAC
ZTY
BNSF' E:LOCATIO N AGREEMENT
This BNSF RELOCATION AG RE T (this ��Agreement) is between the City
of Fort Worth, Texas, (the �� �, and the BNSF Railway Company "BNSF" to be
W or
effective , 2010 (the "Effective Date"). The term of this ,agreement
shall begin on the Effective Efate and terminate on the Second Closing, unless sooner
terminated as set forth herein.
WHEREAS, all terns with initial capital letters that are not defined in the text of
this Agreement shall have the meanings given to them in Section 2 of this Agreement;
WHEREAS, the City has a plan (as, described in a series of annual Alliance
Airport Capital Improvement Plans) to improve, Alliance Airport by extending the runway
and taxiways, which extensions will necessitate (i) the acquisition by the City of BNSF's
interest in the land underlying portions of E NSF's existing main rail line, (ii) the
i
relocation of a portion of BNSF"s existing main rail line, (iii) the removal of E I SF
Improvements located within portions of E NSFs existing main rail fine, (iv) the
relocation of Ikon B,NSF Improvements located within a portion of BNS,F's existing main
rail line, and the construction of'a new E ISF rail line connecting the IMF to the ADF
WHEREAS, E NSF must be compensated for the City's acquisition of BNSF's
interest in the land underlying the Existing Main Line Segments;
WHERE/AS% the ac ui�ition b the City of E l` SF's interest in the land undeIIYf11
1
he Existing plain Line Segments is for public rose;
t p purpose;
I
WHEREAS the Parties desire to avoid the uncertainty associated with �
determining the fair market value of BNSF's interest in the land underlying the Existing
'lain Line Segments-
WHEREAS,
i
the Parties desire to avoid the greater uncertainty of' determining i
damages, if any, to the remainder of the land and improvements owned b BNS,F--
...............
f
Hr
J
i iHr�rririi r(I'rt
Page 1 !
1 96 v8
H ^�
,O Ik ? r Vey,6
i
r
r
>. r
f
i
WHEREAS, the Parties desire to avoid the costs and expenses of condemnation
proceedings;
WHEREAS, the Parties acknowledge that Section 273.003 of the Texas Local
Government code provides that if it is necessary for a municipality to relocate a railroad
facility, the municipality, at its sole expense, shall pay for the actual cost of a
comparable replacement facility without enhancement of the facility, after deducting the
net salvage value derived from the old facility;
WHEREAS, the Parties believe that by proceeding with this Agreement at this
time, BNSF's interest in the land underlying the Existing Main Line Segments will be
acquired at the lowest cost to the City;
WHEREAS, pursuant to 14 CFR Section 151.24(a), this Agreement provides for
the acquisition of an interest in land at a cost that is not the actual cost or the amount of
an award in eminent domain proceedings;
WHEREAS, it is contemplated that all Non-BNSF Improvements located within
the Existing Main Line Segment North will be relocated by parties other than BNSF as
part of a new state highway interchange project at the intersection of SH 114 and FM
150, which state project, including the relocation of the Non-BNSF Improvements, is not
part of this Agreement;
WHEREAS, the city's plan to improve Alliance Airport necessitates that the City
acquire certain parcels of real property from BNSF for runway improvements and from
third parties for construction of the Main Line and Connector Track, which acquisitions
the City intends to accomplish 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;
WHEREAS, (i) the construction of the Main Line, (ii) the conveyance to the city
of BNSF's interest in the land underlying the Existing Main Line Segment North in
Page 2
1115963v8
E
accordance with Section 10 below, (iii) the removal of none, all or any portion of the
BNSF Improvements located within the Existing Main Line Segment North, as
determined by BNSF in its sole discretion, [iv] the conveyance to the city of BNSF's
interest in the land underlying the Existing Main Line Segment South in accordance with
Section 10 below, (v) the removal of none, all, or any portion of the BNSF
Improvements located within the Existing Maui Line Segment South, as determined by
BNSF in its sole discretion, (vi) the construction of the connector Track; and (vi) all
other activities reasonably necessary to accomplish the foregoing are hereinafter
collectively referred to as the "BNSF Relocation";
WHEREAS, all work that is necessary to complete the BNSF Relocation is
hereinafter collectively referred to as the "BNSF Relocation Work". The BNSF
Relocation Work shall not include any removal or relocation of Non-BNSF
Improvements from within the Existing Main Line Segments, and BNSF shall have no
obligation with respect to any Non-BNSF Improvements within the Existing Main Line
Segments;
WHEREAS, the actual cost to perform the BNSF Relocation Work and complete
the BNSF Relocation (including, without limitation, the costs of all items identified in the
BNSF Final Relocation Plans and the cost of obtaining the BNSF Regulatory Permits) is
hereinafter referred to as the "BNSF Relocation Cost";
WHEREAS, the BNSF consideration and City Relocation cost are intended to
be the actual cost of a comparable replacement facility -without enhancement, after
deducting the net salvage value derived from the old facility (as reasonably determined
by BNSF);
WHEREAS, (i) the acquisition, by negotiated purchase or condemnation, of right-
of-way for the Main Line and the connector Track, (ii) the removal and relocation of all
Non-BNSF Improvements and all remaining BNSF Improvements from within the
Existing Main Line Segment South, (iii) the curing of title objections to BNSF's interest in
the land underlying the Existing Main Line Segment South, (iv) the relocation of John
Page 3
11159B3v8
Day Road/Barnwood Drive and Keller-Haslet Road, and (v) all other activities
reasonably necessary to accomplish the foregoing are hereinafter collectively referred
to as the "Citv Relocation Work";
WHEREAS, the actual cost to perform the City Relocation Work (including,
without limitation, the cost of all items identified in the City Final Relocation Plans, the
cost of obtaining the City Regulatory Permits, and the cost to cure Objections) is
hereinafter referred to as the "Cit Relocation Cost";
WHEREAS, if Public Funds are insufficient to pay the full amount of the BNSF
Relocation Cost and the City Relocation Cost, the City shall seek additional funds
including, but not limited to, additional funds from the FAA;
WHEREAS, subject to the terms of this Agreement, the Parties intend that (i)
BNSF will obtain the BNSF Regulatory Permits for and perform the BNSF Relocation
'llllork in accordance with the BNSF Final Relocation Plans, and (ii) the City will perform
the City Relocation Work in accordance with the City Final Relocation Plans and obtain
the City Regulatory Permits;
WHEREAS, subject to the terms of this Agreement, the City will pay for the
BNSF Relocation Cost and city Relocation Cost from Public Funds;
WHEREAS, the Airport Manager, on behalf of the City, has management
oversight responsibility for the Airport Improvement Project; and
WHEREAS, the Project Manager, on behalf of the City, has project management
responsibility for the Airport Improvement Project.
NOW THEREFORE, for good and valuable consideration which the Parties
acknowledge, and for the mutual covenants of the Parties as set forth in this
Agreement, the Parties agree as follows:
1. RECITALS. The recitals set forth in the preceding "WHEREAS" clauses form the
basis upon which the Parties have entered into this Agreement and establish the intent
Page 4
1115963v8
of the Parties in entering into this Agreement. If it becomes necessary to interpret any
provision of this Agreement, the intent of the Parties, as evidenced by the recitals, shall
be taken into consideration and, to the maximum extent possible, given effect.
2, DEFI NTIONS. The Parties acknowledge and agree that the definitions contained
in this Section 2 also include certain covenants binding on the Parties.
"ADF" means BNSF's existing automobile distribution facility.
"Agreement "means this BNSF Relocation Agreement.
"Airport Improvement Project" means the BNSF Relocation Work and the City
Relocation Work together with the runway and taxiway extensions at Alliance Airport, all
as more fully described in the annual Alliance Airport Capital Improvement Plans, as
amended.
"Airport Mana er" means Alliance Air Management, Ltd.
"Alliance Airport" means the Fort Worth Alliance Airport.
"BNSF" means BNSF Railway Company, a Delaware corporation.
"BNSF Consideration is defined in Section 9.a of this Agreement.
"BNSF Final Relocation Plans" means final engineering plans, drawings, and
specifications based on 100% design for the BNSF Relocation Work (prepared in
accordance with all applicable laws, regulations, rules, policies, and procedures,
including the BNSF Regulatory Permits), a final itemized estimate of the BNSF
Relocation cost includin , but not limited to, the cost of Property Information, any cost
� g
to BNSF of curing Objections, BNSF's outside attorneys' and consultants' fees, and
BNSF's costs to effectuate the conveyances required by Section 10 of this Agreement),
and final schedules to complete the BNSF Relocation Work. The BNSF Relocation cost
shall include a contingency of 10%, and BNSF shall have the right to apply the
g Y
contingency and an cost savings from any line items towards cost overruns on other
� Y Y �
Page 5
1115963v8
3
line items without the City's consent. The BNSF Final Relocation Plans shall be deemed
amended by any Change order without requiring a formal amendment to this
Agreement.
"BNSF Improvements" mean all improvements that are located within the Existing Main
Line Segments and that are owned or controlled by BNSF or its Related Entities. :,
"BNSF Regulatory Permits" means all permits, authorizations, consents, exemptions,
and approvals required from any regulatory entity, agency, or organization for any of the
BNSF Relocation Work and for the abandonment of BNSF's entire existing main line
between the points BNSF=s existing main line intersects with the Main Line, including,
but not limited to, the dedications and conveyances required by this Agreement and any
necessary approvals from the Surface Transportation Board, but specifically excluding
the City Regulatory Permits.
"BNSF Relocation" is defined in the recitals above.
"BNSF Relocation cost" is defined in the recitals above.
"BNSF Relocation Work" is defined in the recitals above.
"Change Order" means any written amendment to any Relocation Work Contract or any
other written agreement between the City and BNSF that changes the BNSF Final
Relocation Plans, BNSF Relocation Work, or the BNSF Relocation Cost; provided that
U ie consent and joinder of the city will not be necessary for any Change age Order deep T led
reasonably necessary by BNSF to perform the BNSF Relocation Work, provided such
Change Order will not increase the BNSF Relocation Cost over the total amount set
forth in the BNSF Final Relocation Plans, including any contingency. In the event any
Change Order deemed reasonably necessary by BNSF will cause an increase in the
BNSF Relocation Cost as set forth in the BNSF Final Relocation Plans, then BNSF and
Cit y shall promptly meet to discuss same and each shall use commercially Reasonable
Efforts to reach a mutually satisfactory decision on the proposed change Order. If the
Parties cannot reach a decision on the proposed change Order within 10 days after
Page 6
1 1 1 5963v8
s `
BNSF first proposed the Change order to the City, then BNSF shall have the right to
suspend the BNSF Relocation Work until such issue is resolved.
"City" means the City of Fort Worth, Texas.
"City Attorney" means the City Attorney or any Assistant city Attorney of the City.
"City Final Relocation Plans" means final engineering plans, drawings, and
specifications based on 100% design for the City Relocation Work (prepared in
accordance with all applicable laws, regulations, rules, policies, and procedures,
including City Regulatory Permits), a final itemized estimate of the city Relocation cost,
and final schedules to complete the City Relocation Work. The City Relocation Cost
shall include a contingency of up to 20% as applied to the acquisition of the
Replacement Property, and a contingency of up to 10% for (i) title curative efforts
applicable to the Existing Main Line Segment South; (ii) the removal and relocation of
BNSF Improvements and Non-BNSF Improvements from within the Existing Main Line
Segment South; and (iii) the relocation of John Day Road/Barnwood Drive and Keller
Haslet Road. The City shall have the right, without BNSF's consent, to apply cost
savings from any line item toward cost overruns on other line items.
"City Re._ulatory Permits" means all permits, authorizations, consents, exemptions, and
approvals required from the FAA (including, but not limited to, the Supplemental
Environmental Assessment) or that pertain to environmental matters for any of the
BNSF Relocation Work or city Relocation Work, including, bust not limited to, the
acquisitions and conveyances required by this Agreement.
"City Relocation Work" is defined in the recitals above.
"City Relocation Cost" is defined in the recitals above.
"Closin " and "Closing" are defined in Section 10.c of this Agreement.
Page 7
1115963v8
"Commercially Reasonable Efforts" mean good faith efforts which, taking into
consideration all surrounding facts and circumstances, are considered ordinary and
customary in the industry, including modest expenditures of time and money,
"Conditions Precedent" are defined in Section 8 of this Agreement.
"Connector Track" means a new rail line connecting the IMF to the ADF, including the
necessary relocation or modification of all existing public and private utilities impacted
by the Connector Track, as generally depicted on Exhibit A.
"Contractor" means any person or entity hired or employed by BNSF to perform any of
the BNSF Relocation Work, including general contractors and each of their respective
sub-contractors.
"Default" is defined in Section 12 of this Agreement.
"Department" means the Department of Aviation of the City.
"Draw Request" means a written request from BNSF to the city requesting
reimbursement for portions of the BNSF Relocation cost paid or incurred by BNSF in
performing the BNSF Relocation Work. Draw Requests shall (i) be in materially the
same form as the sample previously delivered to City, (ii) (where practical) separately
identify the cost for work performed in Denton county from work performed in Tarrant
County, and (iii) include reasonable backup documentation, evidence of payment, lien
releases from an y contractors who are not BNSF employees, and certificates of
completion (if applicable).
"Due Diligence Materials" is defined in Section 1 o.a(3) of this Agreement.
"Effective Date" means the date of this Agreement first set forth above.
"Existing Main Line Segment North's means that portion of BNSF=s existing main rail line
shown on Exhibit B and labeled as such.
Page 8
1115983x8
";Existing Main Line Segment South" means that portion of BNSF's existing main rail line
shown on Exhibit B and labeled as such.
"Existing Main Line Segments" means the Existing Main Line Segment North and
Existing Main Line Segment South.
"FAA" means the U.S. Department of Transportation, Federal Aviation Administration.
"Final Relocation Plans" means, collectively, the BNSF Final Relocation Plans and the
City Final Relocation Plans.
"First Closin " is defined in Section 1 O.c (1) of this Agreement.
"IMF" means BNSF's existing Alliance intermodal facility.
"Main Line" means BNSF's relocated main line, including the necessary relocation or
modification of all existing public and private utilities impacted by the Main Line, as
generally depicted on Exhibit A .
"Non-BNSF Improvements" mean all improvements other than the BNSF Improvements
(including, but not limited to, public and private utilities) that are located within the
Existing Main Line Segments.
"Notice" means any notice, deliverable, or other communication required by
contemplated by, or otherwise given under this Agreement in accordance with Section
11 of this Agreement.
"Ob'ections" mean written objections of the city to the Property Information or any
matter shown or referenced in any of the Property Information. All monetary liens and
encumbrances (except liens for current year taxes, not yet due and payable) shall be
Objections.
"Party" and "Parties" mean the city and BNSF, individually and collectively.
Page 9
"Permitted Exceptions" mean, with respect to any interest in real property, (i) any matter
shown or referenced in the applicable Property Information to which the city does not
object within the time periods required by this Agreement, [ii] any objection that the City
waives in writing, and (iii) the BNSF Improvements and Non-BNSF Improvements.
"Phase I" is defined in Section 10.a(3) of this Agreement.
"Prelimina Relocation Plans" means preliminary engineering plans, drawings, and
specifications for the BNSF Relocation Work and City Relocation Work prepared by the
Project Manager, a preliminary itemized estimate of the BNSF Relocation Cost and City
Relocation Cost, and preliminary schedules to complete the BNSF Relocation Work and
City Relocation Work.
"Project Manager" means the Fort Worth office of Jacobs Engineering Croup, Inc.
"Property Information" means the following information regarding the Existing Main Line
Segments: (i) a metes and bounds description of such segments; (ii) a title commitment
covering such segments (including legible copies of all documents or instruments
shown or referenced therein) issued by the Title Company; (iii) a survey of such
segments in form, including certification, reasonably approved by the city Attorney; and
[iv] all written information in the possession or direct control of BNSF's designated
document custodian which relate to (A) any environmental assessments and reports,
whether prepared in-house or by third parties, (B) any contracts or agreements relating
to Si rh real ronerty or services heing nrnvided or to he nrnvirled to sane, LC'] An soil
P
or engineering reports, and (D) any written notices, reports, citations, orders from any
governmental authority or any applications to any governmental authority with respect to
use of the real property, including as to clauses (A) -- (D), any new information coming
into the p ossession of BNSF's designated document custodian meeting the criteria in
such clauses.
Page 10
1 1 1 5963v8
"Public Funds" means current and future grant funds received by the City from the FAA
and any other funds received by the city that may be used to pay all or any .portion of
the BNSF Relocation cost and City Relocation cost.
"Related Entities" means, as to BNSF, its predecessors, successors, assigns,
subsidiaries, parent or related corporations, related partnerships, and other related
entities of any kind which are directly engaged in railroad operations.
"Relocation Work Contract" means a contract, agreement, or other written arrangement
or understanding of any kind with a Contractor (including all exhibits and attachments
thereto) pursuant to which the BNSF Relocation Work will be performed in accordance
with the BNSF Final Relocation Plans.
"Replacement Property" is defined in Section 8.a of this Agreement.
"RoU is defined in Section 8.a[3] of this Agreement.
"Second Closis defined in Section 10.c (2) of this Agreement.
"Supplemental Environmental Assessment" means the "Fort Worth Alliance Airport
Supplemental Environmental Assessment for Alliance Airport Runway Extension Project
Proposed New Alignment of the Burlington Northern Santa Fe (BNSF) Railway Tarrant
and Denton Counties, Texas December 2009."
"Title Company_" means Rattikin Title Company, 201 Main Street, Suite 840, Fort Worth,
Texas 75102, Attn: Larry Townsend (817-334-1324).
"Title Work" is defined in section 10.a(3) of this Agreement.
"Vacated Rights of Way" is defined in Section 10.a (2) of this Agreement.
"Writ" is defined in Section 8.a(3) of this Agreement.
Page 11
11159G3v8
3. BNSF OBLIGATIONS.
a. BNSF shall be responsible for damages incurred by City arising solely
from a Default by BNSF under this Agreement.
b, BNSF shall be responsible for the adjustment, removal, or relocation of
any utility facilities under or within the Main Line and Connector Track, the costs of
which shall be included in the BNSF Relocation Cost.
C. In performing the BNSF Relocation Work, BNSF shall comply with all
applicable laws, statutes, ordinances, rules, regulations, orders and decrees, including
the BNSF Regulatory Permits; however, (i) the City shall be responsible for compliance
with all environmental requirements, and (ii) nothing in this Agreement shall be
construed as a waiver of any preemption right that BNSF may have to the applicability
of any of the foregoing.
d. If any of the BNSF Relocation Work is to be performed by BNSF on state
right-of-way, BNSF shall cause the Contractors to provide evidence of insurance and
maintain coverage at the limits customarily required by BNSF of its contractors.
e. All books and records of BNSF related to the BNSF Relocation Work will
be made available to the City for 120 days after completion of the BNSF Relocation
Work for the purpose of conducting an audit.
f. Upon col 1 Ipletionl, BNSF shall be responsible, for maintenance Ice of the Main
Line and connector Track,
g. BNSF shall allow City and its agents access to the BNSF Relocation
Work, provided such access is in compliance with BNSF's standard right of entry
agreements and safety procedures.
h. BNSF shall keep complete and accurate records related to the BNSF
Relocation Work for four years after completion of the BNSF Relocation Work.
Page 12
1115963v8
i. BNSF shall provide City spending reports in BNSF's standard form and
otherwise in a form required by the Draw Requests.
4. PRELIMINARY RELOCATION PLANS. Concurrently herewith, the City shall
cause the Project Manager to deliver the Preliminary Relocation Plans to BNSF, BNSF
shall have 30 days from the Effective Date to review the Preliminary Relocation Plans
and provide written comments to the Project Manager and Airport Manager. The failure
of BNSF to provide written comments within such 30-day period shall constitute
approval of the Preliminary Relocation Plans by BNSF. Any approval by BNSF shall
mean only that the applicable subject matter meets the subjective standards of BNSF,
and such approval by BNSF shall not be deemed a representation or warranty that any
plans and specifications are structurally sound and appropriate or that any plans and
specifications meet applicable regulations, laws, statutes or local ordinances and/or
building codes. The City shall not have any right to rely on any approval by BNSF, and
will be solely responsible for making its own determination as to whether the Preliminary
Relocation Plans are adequate and meet its needs. The City and BNSF shall use their
respective commercially Reasonable Efforts to agree upon the Preliminary Relocation
Plans as soon as possible; however, if they are unable to agree, the decision of BNSF
shall control provided (1) the wont resulting from the BNSF decision is performed in a
manner that is consistent with the procedures and standards that BNSF would
otherwise normally use in the ordinary course of its railroad business, and (ii) the
Parties agree that the costs and expenses of.the work resulting from the BNSF decision
will be eligible for reimi)ursement from Public Funds.
5. FINAL RELOCATION PLANS. Within 120 days after the earlier of the date the
Parties agree on the Preliminary Relocation Plans or the date the Preliminary
Relocation Plans are deemed approved by BNSF, BNSF shall have identified a final
alignment for the Main Line and Connector Track with enough certainty and specificity
to allow the Project Manager to begin preparing legal descriptions and surveys of the
Replacement Property. Within 270 days after the earlier of the date the Parties agree on
the Preliminary Relocation Plans or the date the Preliminary Relocation Plans are
Page 13
1 1 1 5953v8
deemed approved by BNSF, BNSF shall deliver the BNSF Final Relocation Plans to the
Project Manager, and city shall deliver the city Final Relocation Plans to BNSF. City
acknowledges that BNSF has estimated that preparation of the BNSF Final Relocation
Plans will take approximately 270 days at a cost of approximately $2,000,000. City
authorizes BNSF to commence preparation of the BNSF Final Relocation Plans, and
agrees to reimburse BNSF for its costs of same and other BNSF Relocation costs as
set out in Section 9 below. Notwithstanding anything to the contrary contained herein,
once BNSF receives such reimbursement, BNSF shall have no obligation to repay such
reimbursement to the city even if such costs are disallowed or this Agreement is
terminated. The city shall have 30 days to review the BNSF Final Relocation Plans and
provide written comments to BNSF, and BNSF shall have 30 days to review the City
Final Relocation Plans and provide written comments to City. The failure of the City or
BNSF, as the case may be, to provide written comments within such 30-day period shall
constitute approval of the BNSF Final Relocation Plans by the city or approval of the
City Final Relocation Plans by BNSF, as the case may be. The City and BNSF shall
use their respective commercially Reasonable Efforts to agree upon the Final
Relocation Plans as soon as possible. If notwithstanding their respective commercially
Reasonable Efforts, the Parties cannot agree upon the Final Relocation Plans, then
either Party may terminate this Agreement without Notice of Default or opportunity to
cure; whereupon, neither Party shall have any further duties, obligations, rights, or
remedies under this Agreement other than the City's obligation to reimburse BNSF for
its costs in preparing the BNSF Final Relocation Plans and the other BNSF Relocation
Costs as set out above and in Section 9 below; which amount shall be due to BNSF
even if this Agreement is terminated.
0. RELOCATION WORK CONTRACTS. The BNSF Relocation Work will be
performed under Relocation Work contracts reasonably approved by the Project
Manager and Airport Manager. Relocation work Contracts shall be awarded or
otherwise made effective as soon as possible after satisfaction of all conditions
Precedent, and provided all Conditions Precedent have been satisfied on or before
June 1, 2011, such Relocation Work contracts shall be awarded no later than
5.
Page 14
1115963v8
September 17, 20 1 1. If the Relocation Work Contracts are not awarded or made
effective by September 17, 2011, and if sufficient Public Funds to pay the BNSF
Relocation Cost and City Relocation Cost are no longer available, then the City may
terminate this Agreement upon Notice to BNSF without regard to force majeure and
without opportunity to cure; whereupon, neither Party shall have any further duties,
obligations rights, or remedies under this Agreement (except for the city's obligation to
reimburse BNSF for the costs of preparing the BNSF Final Relocation Plans and other
BNSF Relocation Costs as set out in Section 5 above). All Relocation Work Contracts
shall require the Contractor to: (a) complete the work covered by the contract in
accordance with specific, detailed performance milestones consistent with the final
schedules included in the BNSF Final Relocation Plans (subject to force majeure); (b)
give the Project Manager and Airport Manager immediate Notice of any fact or
circumstance (including any claim by the Contractor of an event of force majeure) that
would result in the Contractor's failure or inability to meet any performance milestone
(including a detailed description of such facts or circumstances and a plan of action to
avoid or mitigate the effects of any delay); (c) give the Project Manager and Airport
Manager immediate Notice of any fact or circumstance which, with the giving of notice
or passage of tune, could, in the judgment of the Contractor, constitute an event of
default under the Relocation 1111'ork Contract= (d) give the Project Manager and Airport
Manager immediate Notice of any notice or communication given or received by the
Contractor under the Relocation work Contract alleging an event of default by either
party under the contract (in which case the Project Manager and Airport Manager shall
have access to all non-confidential and non--privileged information within the
Contractor's possession or control regarding the alleged default and the right to
participate in the resolution of the alleged default), and (e) where practical, separately
identify the cost of work performed in Denton county from work performed in Tarrant
County. A copy of each Relocation Work Contract, including amendments and Change
Orders thereto, shall be provided to the Project Manager and Airport Manager within 10
days after each contract, amendment, or Change Order is fully executed or otherwise
made effective. Notwithstanding the foregoing, BNSF has the right, in its sole
Page 15
1115963v8
discretion, to decide whether the BNSF Relocation Work or any part thereof (including,
but not limited to, engineering, construction management, grading and demolition) will
be performed by third-party contractors or by BNSF employees working under
applicable collective bargaining agreements. Any work performed by BNSF employees
shall be deemed to satisfy the foregoing contract award requirement and all other
requirements herein regarding Relocation Work Contracts. BNSF shall supply the
documentation required for Draw Requests in connection with such work.
7. STATUS REPORTS.
a. BNSF Status Reports. BNSF shall provide written reports to the Project
Manager and Airport Manager no less frequently than monthly regarding the status of
the BNSF Relocation Work and containing such information as the Project Manager and
Airport Manager may reasonably request from time to time including, but not limited to,
(i) a detailed comparison of the work completed under each Relocation Work Contract
with the specific, detailed performance milestones for such work as set forth in the
contract, and (ii) any proposed or anticipated Change orders. BNSF shall use
Commercially Reasonable Efforts to give prompt Notice to the Project Manager and
Airport Manager of any fact or circumstance which, with the giving of notice or passage
of time, could, in the judgment of BNSF, constitute an event of default under any
Relocation Work Contract. BNSF shall also use Commercially Reasonable Efforts to
give prompt Notice to the Project Manager and Airport Manager of any notice or
communication given or received by BNSF alleging an event of default under any
Relocation work Contract; and the Project Manager and Airport Manager shall have
access to all non-confidential and non-privileged information within BNSF's possession
or control regarding the alleged default and the right to participate, at its sole cost, in the
g g
resolution of the alleged default.
b. City Status Reports. The City shall cause the Project Manager to provide
written reports to BNSF no less frequently than monthly regarding the status of the city
Relocation Work, including (i) an itemized accounting of the City Relocation costs that
Page 16
1115983v8
have been paid from Public Funds and that remain to be paid from Public Funds to
complete the City Relocation Work and BNSF Relocation Work, and (ii) any anticipated
changes to the schedule for performance of the City Relocation Work.
8. COMPLETION of WORK.
a. BNSF shall commence, and thereafter diligently pursue to completion
using its commercially Reasonable Efforts, the BNSF Relocation Work in accordance
with the BNSF Final Relocation Plans when all of the following conditions (collectively,
the "Conditions Precedent") have been satisfied:
(1) The City and BNSF have agreed upon the amount to be paid by city to
BNSF at the Second Closing as cash compensation for BNSF's real property interests;
(2) The amount of Public Funds available exceeds the BNSF Relocation Cost
and city Relocation cost;
(3) Pursuant to Section 10 below, the City has either (i) conveyed to BNSF
by deed or easement as specified by BNSF, or (ii) provided to BNSF an unqualified,
permanent right-of-entry in form reasonably satisfactory to BNSF ("RoE") to, or (iii)
provided to BNSF a writ of possession ("Writ") to, all parcels (whether acquired from third
parties 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
"Re lacement Pro
(4) The City has awarded construction contracts to relocate John Day
Road/Barnwood Drive and Keller Haslet Road in a manner that effectuates grade
separation from the Main Line; and
(5) BNSF has obtained all the BNSF Regulatory Permits necessary to
commence the BNSF Relocation Work and has approved the City Final Relocation Plans
and an terms or conditions of the City Regulatory Permits that impact BNSF, and City
y y
has approved the BNSF Final Relocation Plans.
Y
5
Page 17
1115963v8
The city acknowledges and agrees that any delay in satisfying any condition
Precedent could delay the project schedule for a longer period of time than the actual
number of days of delay in satisfying the Condition Precedent if such delay causes BNSF
to miss applicable construction seasons or impacts BNSF work force schedules.
b. If the Conditions Precedent have not been satisfied or, with regard to
items [3] and (4), "substantially" satisfied, on or before June 1, 2011, BNSF shall give
Notice of such failure to the city, and the city shall have 15 days within which to satisfy
or substantially satisfy, as the case may be, the conditions. If the City fails to satisfy or
substantially satisfy, as the case may be, the Conditions Precedent within such 15-day
period, BNSF may suspend performance of this Agreement. "Substantial" satisfaction
means (1) with respect to the Replacement Property as set out in condition (3), that
BNSF reasonably determines that the parcels of Replacement Property conveyed to
BNSF or for which the City has provided an RoE or Writ will allow BNSF to begin the
BNSF Relocation Work and pursue completion in phases with minimum impact on
overall schedule, and (ii) with respect to the relocation of John Day Road/Barnwood
Drive and Keller Haslet Road as set out in condition (4), that BNSF reasonably
determines that notwithstanding minor delays in the award of construction contracts,
BNSF will nevertheless be able to begin the BNSF Relocation Work and pursue
completion in phases with minimum impact on overall schedule.
C. Any work performed by the city or its agents in connection with the
relocation of John Day Road/Barnwood Drive and Keller Haslet Road that requires
access to property owned or controlled by BNSF shall be performed pursuant to a
separate Construction and Maintenance Agreement between BNSF and the City,
including BNSF's standard "contractor Requirements" and "Utility Accommodation
Policy.1) In the event of any direct conflict between this Agreement and such separate
agreement, requirements, and policies, this Agreement shall control, provided that if
such g
separate agreement, requirements, and policies contain specific language
p
pertaining ertainin to areas not addressed herein, such separate agreement, requirements, and
policies shall control. Existing at-grade crossings of BNSF's current rail line into the IMF
Page 13
1118963v8
shall continue over and across the Main Line; provided, however, the existing at-grade
vehicular or pedestrian crossings of BNSF's existing main line at John Day
Road/Barnwood Drive and Keller 1-haslet Road shall be reconstructed as grade
separated across the Main Line and Connector Track. No new at-grade vehicular or
pedestrian crossings of the Main Line or Connector Track shall be permitted.
d. Upon completion of the BNSF Relocation Work, in phases if applicable,
BNSF shall execute such certificates and other instruments evidencing completion as
may be reasonably requested by the Project Manager or Airport Manager and approved
by BNSF.
e. Notwithstanding anything to the contrary contained in this Agreement, if
BNSF reasonably determines at any time that there are insufficient Public Funds to pay
the entire BNSF Relocation Cost and City Relocation cost, BNSF may send Notice to
City, and if BNSF reasonably determines that such insufficiency has not been remedied
within sixty (00) days after delivery of such Notice, BNSF may then suspend the BNSF-
Relocation Work until BNSF is reasonably satisfied that sufficient Public Funds are or
will be made available. BNSF further has the unilateral right to suspend the BNSF
Relocation Work if any Draw Request that BNSF reasonably determines is otherwise
eligible for payment is not paid within thirty (30) days after it is submitted to the Project
Manager in accordance with this Agreement, or the City and BNSF cannot agree on any
proposed Change order that requires the City's consent within 10 days after BNSF
proposes the Change Order.
f. Notwithstanding anything to the contrary contained in this Agreement, in
the event BNSF has not obtained all of the BNSF Regulatory Permits by December 31,
2011, BNSF shall have the right to suspend the BNSF Relocation Work until BNSF has
obtained all of the BNSF Regulatory Permits.
Page 19
9. PAYMENT of BNSF RELOCATION COST.
a. Reimbursement to BNSF of the BNSF Relocation Cost, payment to BNSF
of the cash compensation (to be agreed upon) for BNSF's real property interests, and
the conveyance to BNSF of the Replacement Property in accordance with this
Agreement (collectively, the "BNSF Consideration"), shall constitute full compensation
to BNSF for the City's acquisition of BNSF's interest in the land underlying the Existing
Main Line Segments and causing the relocation of a portion of BNSF's existing main rail
line. The BNSF consideration is a customary, fair, and reasonable measure of the just
compensation to which BNSF is entitled for such interests and relocation. BNSF
knowingly and voluntarily agrees to look solely to this Agreement for payment of the
BNSF consideration and waives all other compensation, including compensation based
on an appraisal, for the value of BNSF's interest in the land underlying the Existing Main
Line Segments and the costs of relocating a portion of BNSF's existing main rail line.
b. BNSF will perform the BNSF Relocation Work or portions thereof on an
actual cost basis when BNSF, in its sole discretion, determines it is required by its labor
agreements to perform such work with its own employees working under applicable
collective bargaining agreements. The city shall reimburse BNSF for the BNSF
Relocation Cost in accordance with this Agreement. The parties agree that BNSF's
preliminary relimina engineering, design, and contract preparation costs, and the costs and fees
of its outside consultants and attorneys, are part of the BNSF Relocation Cost even
though such work may have preceded the date of this Agreement.
C. The City agrees rees to reimburse BNSF for work of an emergency nature
caused b the City or the City's contractors in connection with the Airport Improvement
Y Y Y
Project which BNSF deems is reasonably necessary for the immediate restoration of
� Y �
railroad operations or for the protection of persons or BNSF property. Such work may
p p
be performed b BNSF without prior approval of the City, and the City agrees to fully
p Y p pP
reimburse BNSF for all such emergency work.
Page 20
1 1 1 5953v8
d. BNSF may charge, as part of the BNSF Relocation cost, for insurance
premiums [excluding self-insurance expenses] to cover the cost of employers liability
insurance (including, without limitation, liability under the Federal Employer's Liability
Act) in connection with the construction of the BNSF Relocation Work.
e. From and after the Effective Date of this Agreement, BNSF has the right to
submit monthly Draw Requests to the Project Manager. The City shall cause all eligible
costs to be reimbursed to BNSF. The City will cause the Project Manager to review
each Draw Request and recommend to the Airport Manager within 10 days after
receiving each Draw Request the portion of the Drag Request that should be paid and
the portion denied based on whether the costs covered by the Draw Request are
eligible for reimbursement from Public Funds. The City shall cause the Airport Manager
to review the Project Manager's recommendation and recommend to the Department
within five days after receiving the Project Manager's recommendation the portion of the
Draw Request that should be paid and the portion denied based on whether the costs
covered by the Draw Request are eligible for reimbursement from Public Funds. The
City shall cause the Department to review the Airport Manager's recommendation within
10 days after receiving it and within such time period the City shall cause to be paid to
BNSF by wire transfer of immediately available funds the portion of the Draw Request
that is eligible for reimbursement from Public Funds. In addition to any other remedies
available to BNSF under this Agreement, if any Draw Request otherwise eligible for
payment is not paid within 25 days after the date the request is submitted to the Project
Manager, BNSF will assess a finance charge of .033% per day (12% per annum) on
any unpaid amount due under the Draw Request. The finance charge shall continue to
accrue daily ntil the date payment is received by BNSF, not the date payment is made.
Y pY
Finance charges will be assessed on delinquent sums as of the end of the month and
g q
will be reduced b amounts in dispute and an un osted payments received by the
y � Y �
month's end. Finance charges will be noted on Draw Requests uests sent to the city under g q
this Section.
Page 21
1115983v8
F
f. The decision as to whether to pay a Draw Request, in whole or in part,
from Public Funds shall be made by the Department; however, the Department shall
use commercially Reasonably Efforts to maximize the availability of funds to pay the
actual and final BNSF Relocation cost. For purposes of this Agreement, costs shall be
eligible for reimbursement if at the time the Draw Request is submitted to the Project
Manager the costs set forth therein are included in the BNSF Final Relocation Plans as
part of the BNSF Relocation Cost.
g. Any denial of all or any part of a Draw Request shall be given to BNSF in
writing and shall set forth, in detail, the basis for denial. A denial does not prejudice the
right of BNSF to correct any deficiency or mistake and resubmit the denied amount for
payment as part of a subsequent Draw Request.
h. City agrees that it*shall keep all Public Funds separate and apart from 'any
other funds of the City, and shall first use the Public Funds solely to pay the full amount
of the BNSF Relocation Cost and City Relocation Cost and for no other purpose. The
City, acting through the Airport Manager, will seek additional Public Funds if needed to
pay the BNSF Relocation cost.
i. If any part of the BNSF Relocation Cost already paid with Public Funds
should be disallowed as a result of a Default by BNSF under this Agreement so as to
require the City to a such part, then BNSF shall repay the City such part. BNSF
q Y repay
shall have the right, at its expense, to represent its interests with regard to any matter
concerning he BNSF Relocation Work or payment of the BNSF Relocation cost, and
g pY
City agrees a to full cooperate with and assist BNSF in justifying the allowance of the
Y coo p
entire BNSF Relocation Cost. BNSF shall have no obligation to repay any amount
previously p except reviousl aid to BNSF, t as a result of a Default by BNSF under this Agreement
p
as set forth above.
j. The re
The City resents and warrants to BNSF that the City will comply with all
�
conditions and requirements regarding the use of Public Funds, and there are or will be
q g g
Page 22
1115953v8
no conditions or requirements that BNSF will be responsible to satisfy or implement
regarding the use of Public Funds.
10. LAND EXCHANGE.
The Existing Mainline Segments shall be conveyed to the City by BNSF and the
Replacement Property shall be acquired by the City and then conveyed to BNSF
pursuant to a property exchange agreement on BNSF's standard form and including the
terms and conditions set forth below (the "Land Exchan: "). In the event of any conflict
between this Agreement and such standard form, this Agreement shall control, provided
that if such standard form agreement contains specific language pertaining to areas not
addressed herein, the standard form agreement shall control.
a. Property to be Conveyed by Citv to BNSF.
(1) Replacement Property. The City shall acquire at its sole cost and
expense the Replacement Property. BNSF shall have no obligation with respect to the
acquisition of the Replacement Property. The city sha11 convey or provide an RoE or
Writ for the Replacement Property to BNSF at the First Closing as set forth below.
(2) Vacated Ri hts of lllla . The City shall vacate its interest in any streets
and alleys within the Main Line or Connector Track (the "Vacated Rights of_Vlla F"), and
shall convey such interests to BNSF at the First Closing as set forth below. The
Vacated Rights of Allay shall be included in the definition of the `Replacement Property".
(3) Due Dili ence Period. As to each tract of the Replacement Property,
BNSF shall be allowed a reasonable due diligence period (not to exceed forty-five (45)
days after the later to occur of (i) BNSF's recei t of written authority to enter, and (ii)
y p
BNSF's receipt of the last of the Due Diligence Materials, the Survey, the Phase 1, and
the Title Work all as defined below in this subsection to perform an inspection and
Page 23
11189G3v8
review the materials related -to each tract of the Replacement Property; such 45-day
period as to each tract of the Replacement Property is hereinafter referred to as
"BNSF's Due Diligence Period." BNSF shall perform investigations of such property as
it deems necessary to determine the condition of the property, including without
limitation, the environmental condition and condition of title. The City shall provide
BNSF with copies of all studies, reports, and other due diligence materials in the
possession of or prepared or obtained by or on behalf of the City relating to each tract of
the Replacement Property [collectively, the "Due Dili ence Materials"] as soon as
reasonably possible after obtaining same. The City shall cause an ALTAIASCM Land
Title survey of each tract of the Replacement Property (respectively, each a "Surve ") to
be prepared at the City's expense and certified to BNSF, and shall submit each Survey
to BNSF for review and comment as soon as reasonably possible. The City shall obtain
a Phase I environmental report for each tract of the Replacement Property (respectively,
each a "Phase I") at City's expense and certified to BNSF, and shall submit each Phase
I to BNSF for review and comment as soon as reasonably possible. The City shall
further obtain and submit to BNSF for review and comment as soon as reasonably
0 possible a TL T A Owner's Policy Title lnIsurcal ice Commitment from Title Con�Nany
covering each tract of the Replacement Property, together with copies of all exceptions
to title referenced therein (collectively for each respective tract of Replacement
Property, the "Title Work"). Upon completion of such investigation and receipt by BNSF
of the Due Diligence Materials, the Survey, the Phase 1, and the Title Work for each
tract of the Replacement Property, BNSF may deliver Notice to city of any objections
regarding such tract. The failure to deliver to City Notice of any objections prior to
g g
Page 24
1115963v8
expiration of BNSF's Due Diligence Period for such tract shall be deemed acceptance of
same by BNSF; provided, however, that if there is a material change in the condition of
such tract, or,BNSF learns that the Due Diligence Materials are materially inaccurate, or
there is a material change in the Survey, Phase 1, or Title work, then BNSF may send
Notice of its objections as to those new matters at any time prior to the First Closing.
The city shall have the option, but not the obligation, to cure any of BNSF's objections,
but the City shall be deemed to have agreed to cure all of such objections unless city
delivers Notice to BNSF to the contrary within fifteen (15) days after City's receipt of
BNSF's objections. As soon as reasonably possible after BNSF has completed its
investigation of each tract of the Replacement Property, BNSF shall designate whether
it desires an easement interest or fee simple interest in such tract to be conveyed to
BNSF. BNSF shall have no obligation to accept any tract of the Replacement Property
unless city (i) conveys the requested interest (i.e., either fee simple or easement), (ii)
cures all of BNSF's objections which were delivered to City prior to the expiration of
BNSF's Due Diligence Period for such tract, and [ill] cures all of BNSF's objections as to
newt Y-discovered or changed matters which were delivered to City after expiration of
BNSF's Due Dili ence Period for such tract. BNSF's authority to enter each tract of the
g
Replacement Property shall continue until such tract is conveyed for purposes of
p p Y
confirmin g there have been no material changes to such tracts.
(4) Condition of Property; Conveyance. Following approval by BNSF, the
Replacement Property shall be conveyed to BNSF in as is condition, and BNSF shall
p � Y Y
release the City from all claims and liabilities arising out of the condition of such
property, including without limitation, the environmental condition. The foregoing
g
Page 25
1115963x8
release shall not include any claims or liabilities for any condition to the extent such
condition is caused, contributed to, exacerbated or aggravated by the city after the date
of conveyance.
b. Property to be Conveyed by BNSF to
(1) Property, BNSF shall convey its interests in the land underlying the
Existing Main Line Segments to the city at the Second Closing as set forth below.
(2) Due Diligence Period. BNSF, at its cost and expense (but subject to
reimbursement as part of the BNSF Relocation Cost), shall deliver to the Project
Manager and Airport Manager as soon as reasonably possible (but not later than 90
days after the Effective Date of this Agreement) Property Information for the Existing
Main Line Segments. The City shall have 39 days after BNSF's delivery of the last of
the Property Information during which to provide Objections. If the City fails to object
within such 39-day period, then all matters shown or referenced in the Property
Information to which the City does not object shall be considered Permitted Exceptions.
Permitted Exceptions for the Existing Main Line Segment North shall include all BNSF
p g
Improvements and all Non-BNSF Improvements located therein that do not interfere
with the completion of the Airport Improvement Project. BNSF shall have the option, but
p P P �
not the obligation, to cure an or all Objections to the extent necessary to complete the
g Y �
j
Airport Improvement Project. The cost to cure such-Objections (excluding the removal
P p �
of monetary iens and encumbrances -shall be included in the Final Relocation Plans.
rY �
Th e City may waive any Objection in writing, whereupon the waived objection shall
become a Permitted Exception. If BNSF fails or refuses to cure any Objections, the City
have the right to cure same at its sole cost and hall h expense as part of the city g P
Relocation cost. Notwithstanding anything to the contra contained herein, BNSF shall,
Reloc g Yt g contrary
at BNSF's (i)either o tion cause to be removed or cured all monetary liens
p
encumbering the Existing Main Line Segments, or (ii) indemnify City, Title Company and
en g 9 g
its underwriter from an liability for an monetary liens and encumbrances such that
Y Y Y rY
Title Company will issue an Owner's Title Polk to City that does not include any
p Y Y
Page 26
1115963v8
monetary liens. The cost to BNSF to cure and/or indemnify against monetary liens shall
be paid by BNSF and shall not be part of the BNSF Relocation cost or otherwise part of
the BNSF consideration.
(3) BNSF's interest in the land underlying the Existing Main Line Segments
shall be conveyed to the city in "as is" condition, and the City shall release BNSF from
all claims and liabilities arising out of the condition of such property, including without
limitation, the environmental condition. The foregoing release shall not include any
claims or liabilities for any condition to the extent such condition is caused, contributed
to, exacerbated or aggravated by BNSF after the date of conveyance. Notwithstanding
the above, BNSF shall have the option at any time prior to the Second closing to
remove all or an of the BNSF Improvements located on or under the Existing Main Line
Y �
Segments and retain possession of such BNSF Improvements Without compensation to
City, and the costs of such removal shall be BNSF Relocation costs.
C. Closings. The First Closing and Second closing described below are
referred to herein each as a "Closing and collectively as the "Closings". The Closings
shall occur at the offices of the Title Company.
(1) First Closin . At the First closing, the City shall convey to BNSF all of the
Replacement Property by deed t or easement, depending on BNSF's determination), or
shall otherwise p rovide a RoE or Writ that will allow BNSF to commence the BNSF
Relocation Work. In the event the City initially provides Y rovides onl a RoE or Writ to any tract of
Replacement Property the City shall diligently p ursue acquisition of such tract and
convey Y to BNSF b deed without warrant or easement as determined by BNSF as soon
as City q g acquires title. The First Closing shall occur on the date designated by the City to
BNSF With no less than thirty (30) rior written notice and in no event prior to the
da s prior
completion b BNSF of its due diligence review and approval of all Replacement
P Y g
Page 27
1115963v8
Property to be transferred to BNSF as described above; provided, however, that
concurrently with such written notice, City shall deliver to BNSF current updates of any
title commitments and Phase I reports which are dated more than 60 days before the
date of such written notice. The City shall be responsible for all costs associated with
the Closing.
(2) Second Cl At the Second Closing, BNSF shall convey to the City
BNSF's interest in the Existin g Main Line Segments, and City shall pay to BNSF the
cash portion of the BNSF Consideration. Within 30 days after the later of (a) BNSF
having determined (with Notice of the determination provided to the Project Manager
and Airport Manager) that the Main Line and Connector Track have been completed,
accepted by BNSF, and placed in service (including conveyance to BNSF of any
remaining deed or easement for any tract of Replacement Property originally acquired
by RoE or Writ), and (b) BNSF having received full payment of the BNSF Relocation
Cost, BNSF, at its cost and expense, shall convey its interest in the Existing Main Line
Segments to the City by a deed without warranty (or other instrument in the event BNSF
does not own fee simple title) subject only to the Permitted Exceptions. The City
acknowledges and affirms that BNSF may not hold fee simple title to such tracts, and
that BNSF's interest in all or h art of such tracts, if any, may rise only to the level of an
easement for railroad purposes. The City expressly releases BNSF and its Related
Entities from an claims that the City or its successors may have as a result of a
Y Y
relocation of the existin g main line of rail running over or adjacent to such tracts. The
conveyance of BNSF's interest in such tracts to the City by BNSF will be made in
accordance with BNSF's standard p rocedures for conveyances of real property,
release from the City of an claims against BNSF related to the presence of
including a Y Y g
hazardous substances. There will be no p roration of ad valorem real estate taxes. The
i shall be responsible for all costs associated with Closing. In the event of any
City p
conflict between this Agreement and such standard procedures for conveyances of real
c g p
property= this Agreement shall control, provided that if such standard procedures
Page 23
1 1 1 5953v8
contain specific language pertaining to areas not addressed herein, such standard
procedures shall control.
11. NOTICES. Any notice or communication required or contemplated by this
Agreement (a "Notice") shall be deemed to have been delivered, given, or provided: (i)
five business days after being deposited in the United States. mail, CERTIFIED MAIL or
REGISTERED MAIL, postage prepaid, return receipt requested; (ii) when delivered to
the notice address by a nationally recognized, overnight delivery service (such as
Fed Ex or UPS) as evidenced by the signature of any person at the Notice address
(whether or not such person is the named recipient of the Notice); or (iii) when
otherwise delivered to the Notice address as evidenced by the signature of any person
at the Notice address (whether or not such person is the named recipient for purpose of
the Notice); and addressed to the named recipient as follows:
If to the Cit : The City of Fort Worth, Texas
Attn: Theodore P. Gorski, Jr., Esq.
1000 Throckmorton Street
Fort Worth, TX 70102
Phone: (817) 392-7027
E-mail: t.gorski@fortworthgov.org
With a copy to: Alliance Air Management, Ltd.
Attn: Tim Ward
2221 Alliance Blvd., Suite 109
Fort Worth, TX 70177-4300
Phone: (817) 890-1 nnn
E-mail: tim.ward@hillwood.com
If to BNSF: BNSF Railway company
Attn: Robert J. Boileau/AVP --- Engineering Services
2000 Lou Menk Drive, 0013-3
Fort Worth, TX 70131
Phone: (817) 352-2118
E-mail: robert.boileau@bnsf.com
Page 29
11159G3v8
With a copy to: BNSF Railway Company
Attn: Mark D. Ude/AVP Facilities and Property
Management
2500 Lou Menk Drive, AOB-3
Phone: (817) 352-6470
E-mail: mark.ude @bnsf.com
With a copv to: BNSF Railway Company
Attn: Richard P. Chamberlain/Law Dept.
2500 Lou Menk Drive, AOB-3
Phone: (817) 352-2308
E-mail: richard.chamberlaln@bnsf.com
12. DEFAULT. No Party shall be in default under this Agreement (a "Default") unless
Notice of an alleged failure of a Party to perform has been given (which Notice shall set
forth in reasonable detail the nature of the alleged failure) and such Party has been
given a reasonable time to cure based on the nature of the alleged failure: but in no
event less than 30 days.
13. REMEDIES. A non-defaulting Party shall be entitled to all remedies available at
law or in equity. Without limiting the generality of the foregoing, (i) any Default by BNSF
shall entitle the City to withhold payment of any portion of a Drag Request related to the
failure to perform that resulted in the Default and (ii) any Default by city shall entitle
BNSF to immediately p an suspend further BNSF Relocation Work. If BNSF suspends
v
BNSF Relocation Work for more than six (6) months, either party shall have the right to
terminate this Agreement and/or pursue any other reI T edies available at lave or �#
equity.
14. FORCE MAJEURE. Each Party shall use good 'faith, due diligence, and
reasonable care in the p erformance of its obligations under this Agreement, and time
shall be of the essence in such p erformance. if a Party is unable, due to force majeure,
to erform its obligations under this Agreement (excluding payment of any sums as and
p g g
when due hereunder then such obligations shall be temporarily suspended. Within
}, g
three business days after the occurrence of a force majeure, the Party claiming the right
Page 30
1 1 1 5963v8
to temporarily suspend its performance shall give Notice to the other Party, including a
detailed explanation of the force majeure and a description of the action that will be
taken to remedy the force majeure and resume full performance at the earliest possible
time. The term "force majeure" shall include events or circumstances that are not within
the reasonable control of the Party whose performance is suspended and that could not
have been avoided by such Party with the exercise of good faith, due diligence, and
reasonable care.
15. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the Parties and supersedes all prior agreements, whether oral or written,
covering the subject matter of this Agreement, This Agreement shall not be modified or
amended except in writing signed by the Parties.
16. SEVERABILITY. The provisions of this Agreement are severable, and in the
event any provision of this Agreement, or the application thereof to any person or
circumstance, is held or determined to be invalid, illegal, or unenforceable, and if such
invalidity, unenforceability, or illegality does not cause substantial deviation from the
underlying intent of the Parties as expressed in this Agreement, then such provision
shall be deemed severed from this Agreement with respect to such person, entity, or
circumstance without invalidatin g the remainder of this Agreement or the application of
such provision to other persons, entities, or circumstances.
17. NO PARTNERSHIP OR JOINT VENTURE. Nothing contained in this Agreement
is intended or shall be construed as creating a partnership or joint venture between the
Parties.
18. INDIVIDUALS NOT LIABLE, No director, officer, elected or appointed official, or
employee of either of the Parties shall be personally liable in the event of any Default.
p Y
19. COUNTERPARTS. This Agreement may be executed in'multiple counterparts,
each of which shall be deemed an original, and such counterparts, when taken together,
shall constitute one instrument.
Page 31
1115963v8
20. ASSIGNMENT. Neither Party may assign, in whole or in part, its rights, title, or
interest under this Agreement without the prior written consent of the other Party.
21. SURVIVAL. The city's obligation to reimburse BNSF for any portion of the BNSF
Relocation Cost incurred by BNSF shall survive any termination of this Agreement,
EXHIBITS. The following Exhibits are attached to and made a part of this
Agreement for all purposes:
Exhibit A: Main Line and connector Track.
Exhibit B: Existing Main Line Segments.
Page 32
A
APPROVED ASTO FORM AND B F RAILWAY COMPANY, a
SUBSTANCE: f Delaware corporation
A
By*
Title: Assistant 0 At i,ey By:
Date: Title- Is"1111'r— C4-L:p
Date:
THE CITY OF FORT WORTH,
TEXAS
By"
p
Title: �UA&Ve
Date.-
ATTEST',-
O 00
0 A
0.0
0� 0
0 %0
Q
0
'0",
0
yo.
woo
Citv Secr
% o
boo 00
0000000
Contra Author iza tip
u
D a t e
Ir
MR,
R E C
lu
Page 33
111596,3v6
r
EXHIBIT A
Mainline and Co'nnector Trace ,: r
r,
y i
'r
K
Y
� b
n
i
P
1
I
f
q mmuur.,
i
»
o `
J
G
y 1
� t
�I
Y �
1
,y
M
P r;
i
u
n�
t
u
1
S �
n c
l"
i
�G Y
a
rt
h
1'
1
f
E r'
r
u 1
60
/
I
n
r
u
rim i i
dim
fr
r
f
q,
1,1
Exhibit
h
1115963v
J
1
EXHIBIT I,.
r
i
I
J
w
e
;
? 41 rte.1
II
I I
I t �
I V
I
I
I�
7 r-
I
v i
I r"
i
9J.
I I
a�w
i
I ,
J
. zJ�
i
I .
III �
i
G'
r
f
r, I
e
rI
r
i
� I
it I
x/
f
I
I,
l
s
r �
� I
'
r'
a
r
I
�i.
i
1
Exhibit "B"
1115963v8
ci I J
CITYCO'UNCIL AGENDA FORTIVOR-I"111
COUNCIL ACTION: Approved on 6/4120110
DATE: 5/4/20101 REFERENCE NO.:C-24205 LOG NAME,- 55AFW RELOCATION
AGREEMENT
CODE: C TYPE: NOW PUBLIH C NO
CONSENT EARING:
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 Ri,ght-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 Septer-riber 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 Federal 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 relloicated mainline and connector track and for BNSF to
design,and construct the relocated mainline and connector track. BN'SF 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 comb:inaltioln of the Texas Department of Transportation Advanced
Funding Agreement($80,000,000.o0),and FAA Discretionary Grants (up to$51,300,000.00).
This project is located in COUNCIL DISTRICT 2, Mapsco 7P.
FISCAL INFORIVIATIONICERTIFICATION.,
The Financial Management Services Director certifies that funds are available in the current capital
budget, as appropriated, of the Airports Grant Fund.
TO Fund/Account/Centers FROM Fund/Account/Centers
QR14 539120 055302388800 $E0,�Q00J0_W1QQ_
GR14 539120 055218265300 $2
GR14 ._53912!0.055218265800 $3,3QQ& QO,0
QR14 541200 055218339800 VQQ00,000Z:
Submitted for City Man r'. Office by- Fernando Costa ( 1 2)
!r ginatin Pgparwtment Head: lent Penney(5403)
Additional'Information_Contact: Ruseena Johnson(5407)
ATTACHMENTS
55AFW RELOCATION AGREEMENT Main Track Relocation revs' pdf
NO IN il 111
SUNNI
EXHIBIT A.
lainline and Connector Tr
k
!�lll if r,
1
g 1.
I
1,
r
f
i
J
r
J
r
uk' f f
J
r-
Ip
M', KPA Map
'MU 4A4N�F rv4 61EYm: 1