HomeMy WebLinkAboutContract 29161 CITY SECRETARY'
CONTRACT NO,
BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY
REAL ESTATE DONATION CONTRACT
This Real Estate Donation Contract (the "Contract") is entered into this day of
, 200 , by and between The Burlington Northern and Santa Fe Railway Company
(hereafter, NSF"), a Delaware corporation, and City of Fort Worth, Texas. (hereafter, "Donee"), a
Texas municipal corporation.
WITNESSETH
WHEREAS, BNSF is willing to convey to Donee on the terms and conditions contained herein the
real property (hereafter, the "Property") shown on Exhibit A dated December 3, 2002, which is attached
hereto and by this reference made a part hereof.
WHEREAS, Donee is willing to accept the conveyance of the Property on the terms and conditions
set forth herein;
NOW, THEREFORE, for and in consideration of the mutual covenants and conditions set forth
herein, the parties hereby agree as follows:
1. Property to be Conveyed.
(a) Subject to and in accordance with the provisions of this Contract, BNSF will donate and
convey the Property to Donee by Donation Quitclaim Deed, in accordance with the terms, conditions and
reservations contained herein (the "Deed"). No monetary consideration shall be paid by Donee to BNSF
for the Property. Donee shall accept title to the Property and shall assume responsibility for the Property
and shall comply with the terms and conditions of this Contract. Any and all personal property owned by
BNSF located on the Property may be removed by BNSF prior to the Closing Date. Any and all personal
property of BNSF not used in BNSF's daily operations remaining on property as of Closing Date shall
pass to Donee. Donee acknowledges and affirms that Donee's assumption of ownership of the Property in
no way entitles Donee to any right, title, interest or use in, to and of any BNSF trademark, service mark or
other intellectual property.
(b) Donee acknowledges and affirms that BNSF may not hold fee simple title to the Property,
that BNSF's interest in the Property, if any, may rise only to the level of an easement for railroad purposes.
Donee is willing to accept BNSF's title to the Property, if any, on this basis and expressly releases BNSF,
its successors and assigns from any claims that Donee or its successors may have as a result of an
abandonment of the line of rail running over or adjacent to the Property. In light of BNSF's disclosure that
it may not hold a fee interest in the Property, to the extent permitted by law, Donee agrees to indemnify,
defend and hold BNSF harmless from any suit or claim for damages, punitive or otherwise, expenses,
attorneys' fees, or civil penalties that may be imposed on BNSF as the result of any person or entity
claiming an interest in the Property or claiming that BNSF did not have the right to transfer the Property to
Donee. Nothing contained herein shall ever be construed so as to require Donee to levy, assess or collect
any tax to fund its obligations under this paragraph.
2. Proration. All outstanding assessments levied or due in the year the Deed is delivered
shall be paid by Donee. All outstanding assessments due and payable prior to the Closing Date s be
paid by BNSF and any such assessments due and payable after the Closing Dat paid by.JDNWee If
WITHOUT LIMITATION, WARRANTIES AS TO TITLE, MERCHANTABILITY,
HABITABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR CONFORMITY OF THE
PROPERTY TO ITS INTENDED USE.
(b) Donee represents to BNSF that Donee is aware of the risk that Hazardous Substances may
be present on, under, in or about the Property and that Donee has conducted, or will conduct prior to
Closing, such investigations of the Property, including but not limited to, the physical and environmental
conditions thereof, as Donee deems necessary to satisfy itself as to the condition of the Property and will
rely solely upon same and not upon any information provided by or on behalf of BNSF or its agents or
employees with respect thereto. Donee shall assume the risk that adverse matters may not have been
revealed by Donee's investigations, and to the extent permitted by law, Donee indemnifies, holds harmless
and hereby waives, releases and discharges forever BNSF (and BNSF's officers, directors, shareholders,
employees, agents, licensees and invitees) from any and all present or future, known or unknown, claims,
demands causes of action(including, but not limited to, those in contract, tort and strict liability), damages
(including, without limitation, consequential and punitive), losses, injuries, liabilities, costs (including, but
not limited to, fines, penalties, court costs and attorneys' fees) arising from or in any way related to (i) any
latent or patent conditions of the property, (ii) any bodily injury or death or loss or damage to the property
of any person or persons whomever, including the parties hereto, in any manner arising from or growing
out of the acts or omissions, negligent or otherwise, of Donee or its officers, directors, shareholders,
employees, agents, licensees and invitees in connection with the entry upon, occupation or use of the
Property, and/or (iii) any alleged or actual presence, use, storage, generation, manufacture, transport,
release, leak, spill, disposal or other handling of any Hazardous Substances in, on, under or about the
Property. Nothing contained herein shall ever be construed so as to require Donee to assess, collect or levy
any tax to fund its obligation under this paragraph.
(d) As used in this Section, the term losses shall include without limitation (a) the cost of any
investigation,removal,remedial or other response action that is required by any Environmental Law, that is
required by judicial order or by order of or agreement with any governmental authority, or that is necessary
or otherwise is reasonable under the circumstances, (b) capital expenditures necessary to cause the BNSF
remaining property or the operations or business of the BNSF on its remaining property to be in
compliance with the requirements of any Environmental Law, and (c) costs imposed under any
Environmental Law enacted after Closing. As used in this Contract, the term "Environmental Law"
means 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. As used in this Contract, The term "Hazardous Substance"
means any hazardous, toxic, radioactive or infectious substance, material, contaminant or waste as defined,
listed or regulated under any Environmental Law, and includes without limitation, petroleum oil and any of
its fractions.
(e) The rights of BNSF under this Section shall be in addition to and not in lieu of any other
rights or remedies to which it may be entitled under this document or otherwise. This indemnity specifically
includes the obligation of Donee to remove, close, remediate, reimburse or take other actions requested or
required by any governmental agency concerning any hazardous substances or contaminants on the
property.
6. Post-Closing Restrictions/Reservations. The provisions set forth in Exhibit E are
incorporated herein by reference which provisions shall run with the land. BNSF may incorporate or
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restate in the Deed all or part of the provisions set forth in Exhibit E to ensure that such provisions run with
the land and are enforceable against any parties taking any interest in the Property.
7. Default/Remedies. In the event either party breaches any of its obligations hereunder and
such breach is not cured within five business days after written notice thereof from the non-breaching
party, the non-breaching party may terminate this Contract and be entitled to stipulated damages in the
amount of ONE AND NO HUNDREDTHS DOLLARS ($1.00) from the breaching party as its sole
remedy and the parties shall have no further obligation hereunder except for those that expressly survive
termination. The parties' acknowledge and agree that actual damages are difficult to ascertain and that
such sum represents a reasonable estimate of a party's actual damages in the event of such breach.
8. Authority. Donee warrants and affirms that it has the necessary authority to enter into this
Contract and that all of the obligations hereunder are enforceable and legally binding on the Donee and its
successors. The person executing this Contract on behalf of the Donee warrants and affirms that he or she
is fully authorized to do so for and on behalf of the Donee.
9. Miscellaneous. This Contract and the rights and obligations hereunder shall survive
Closing, shall not be merged into the Deed and shall be continuing in nature. The provisions of this
Contract shall be binding upon, and inure to the benefit of, BNSF and Donee and their respective
successors and assigns. This Contract shall be governed by and construed in accordance with the internal laws
of the State in which the Property is located, without reference to the conflicts of laws or choice of law provisions
thereof. The titles of sections and subsections herein have been inserted as a matter of convenience of reference
only and shall not control or affect the meaning cc construction of any of the terms or provisions herein. No
amendment to, or waiver of any provision of, this Contract shall be binding on any of the parties hereto unless
such amendment or waiver is in writing and is executed by the party against whom enforcement of such
amendment is sought. This Contract contains the entire agreement of the parties hereto with respect to the
Property and any other prior understandings or agreements are merged herein and no representations,
inducements,promises or agreements, oral or otherwise,between the parties not embodied herein or incorporated
herein by reference shall be of any force or effect.
10. Execution. This Contract is being forwarded in duplicate and if the terms and conditions
are acceptable, please arrange for signature in the space provided below and return both copies to this
office for further handling. It is specifically agreed and understood by the parties hereto that the Donee
shall, before December 30, 2002 accept and sign this Contract and return both copies to the address set
forth below BNSF's signature below. Failure of the Donee to perform within the time restrictions will
render this Contract null and void in its entirety.
Upon execution of this Contract, a copy will be returned for your file. The formal Donation
Quitclaim Deed (I will need a copy of what the deed will look like) will be prepared in accordance with the
terms and conditions herein set forth.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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Accepted and agreed to the day of 1LnJ1 La 200d (the"Contract Date").
BNSF:
THE BURLINGTON NORTHERN AND
SANTA FE RAILWAY COMPANY,
a Delaware Corporation
By:
Print ane:
Title: - OONERAI DIRECT�� REA4"�fAIE
Address: Staubach Global Services
5650 North Riverside Drive, Suite 101
Fort Worth, Texas 76137
DONEE:
CITY OF FORT WOR
By:
Print Name:
Title:
Address: Dvd
Attachments: APPROVM o LtGALIM..
Exhibit A- Description of Property
Exhibit B- IRS Form 8283 Asa t S At
Exhibit C- Charitable Contribution Receipt
Exhibit D- Conditions to Conveyance
Exhibit E- Post Conveyance Obligations/Restrictions
!ATTESTED BY
Contract .Authorization --
Date
Unt
ff
THIS SURVEY WAS PREPARED WITHOUT THE �C.� TO A t1
MATTERS BENEFIT OTHAT THAT A TITLE THIS TRACTMAY THAT
BE �( CITY OF FORT Exhibit
ARE NOT SHOWN HEREON. Q WORTH
"A
� FEBRUARY 18, 12/03/02
1983
o PSS O S75'0007Q0 'E
&o a6d�4'
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see,
Oti CqA
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LOT 9
do \
37.9 -&
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6o 3 0.277 OF AN `A�s°o. 9A
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o
3 z
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Z 0
LL Z z BLOCK 31
ao
J. JONES SUBDIVISION
z0
N r TO
GULF COLORADO &
0 O SANTA FE RAILWAY
0 3 n COMPANY
4c m VOLUME X, PAGE 274
0O rn D.R.T.C.T.
00 LOT 16
U CAPPED
RON SET ON
1B.5 �c V1P�� WEST SIDE OF
RAILROGON�p�aG
FOUND
AD RAIL
38.2 S6�00
MARK 'Y
SET �� t
COoF/�P
\ Nt� PLACE OF BEGINNING
S O�p�G ACCOMPANYING DESCRIPTION
VP
66
Sketch showing a portion of Lots 9 and 16 of Block 31
J. JONES SUBDIVISION of Block 31 of THE ORIGINAL TOWN OF p�E,0F• F
FORT WORTH, an addition to the City of Fort Worth, Tarrant r,�'�:•'�,�STF;�; y
County, Texas. `� F•.
We marked the corners as shown hereon. """'�••••• c�. •..
The location of the improvements relative to the Lot line DOIJ W.
are as shown hereon. p 1961
The basis for bearings is the east line of Block 31 from 'rAl
previous survey. O'•
BROOKE
-ao p 40 Surveyed on the ground April and May, 2002. BROOKES BA
BROOKES BAKER SURVEYORS s„ EAST BLUFF
(�D� / , � 35- HSt
WORTH. TEXAS 76102
w.w¢wat S[ (.lJ FORT FORT
FILE NAME,U\DDN02\OTB89LIR.DWG
• Exhibit "A"
12/03/02
ESTABLISHED 1880
BROOKES BAKER SURVEYORS
DON W. HICKEY, RPLS, LSLS A PROFESSIONAL CORPORATION BROOKES BAKER (1902-1955)
ALAN W. HICKEY, RPLS TITLE AND TOPOGRAPHIC SURVEYING JOHN F. BAKER (1924-1985)
GAREY W. GILLEY, RPLS, LSLS BROOKES BAKER BUILDING•511 East Blutt Street S.J. BAKER (1927.1999)
CONSULTANT 817-335-7151 •Fax 817-332-4665 FRED M. MORRIS (1920-1999)
bakersur@lasilane.net 19,2002 Fort
Worth,Texas 76102-2200
Page l of ]
Granbury Otlice
930 Hickey Court
Field notes for:- Granbury.Texas 76049
817-279.0232
Fax 817-279-9694
A portion of Lots 9 and 16 of Block 31, J.JONES SUBDIVISION of Block 31 of the ORIGINAL
TOWN OF FORT WORTH, an addition to the City of Fort Worth, Tarrant County,Texas; embracing a
part of the Tract described in the deed to Gulf Colorado& Santa Fe Railway Company recorded in
volume X,page 274 of the Deed Records of Tarrant County,Texas and described by metes and bounds
as follows.
Beginning at a 5/8" capped iron set on the west side of a railroad rail found for the southeast corner of
said Lot 16 at the intersection of the north line of East Fourth Street and the west line of Elm Street.
Thence south 60 degrees-00 minutes-00 seconds west, along the south line of said Lot 16 and the north
line of said East Fourth Street, 97-33/100 feet to a mark "Y" set on concrete retaining wall for the
proposed east right-of-way of the Gulf, Colorado & Santa Fe Railway Co and the north line of said East
Fourth Street..
Thence north 09 degrees-43 minutes-30 seconds west, along the said proposed east right-of-way of the
Gulf Colorado & Santa Fe Railway Company right-of-way, 213-21/100 feet to a 5/8" capped iron set in
the south line of East Third Street in the north line of said Lot 9.
Thence north 60 degrees-00 minutes-00 seconds east, along the north line of said Lot 9 and the south line
of said East Third Street, 18-45/100 feet to a 5/8" capped iron set for the northwest corner of the Tract
described in the deed to the City of Fort Worth recorded February 18, 1983 in the Deed Records of
Tarrant County, Texas.
Thence south 75 degrees-00 minutes-00 seconds east, along the southwesterly line of said City of Fort
Worth Tract, 7-07/100 feet to a 5/8" capped iron set in the west line of said Lot 9 and the west line of
said Elm Street.
Thence south 30 degrees-00 minutes-00 seconds east, along the east line of-said Lot 9 and the west line
of said Elm Street to and along the east line of said Lot 16 a distance of 195-00/100 feet to the place of
beginning and containing 12,065 square feet or 0-277/1000 of an acre.
The basis for bearings is the east line of said Block 31 from previous survey.
Surveyed on the ground April and May, 2002.
BROOKES BAKER SURVEYORS OF
....A.......... C
Don W. Hickey DGN W. HICKEY
............................... ;.
p 1961 �Q ; f7`
A, S S, .-,G,
C`
r
Exhibit "B"
Form 8283 Noncash Charitable Contributions
OMB No. 1545-0908
(Rev.October 1998) ► Attach to your tax return if you claimed a total deduction
of over$500 for all contributed property. Attachment
Dterral co r the trvice Sequence No.55
InteJrtal Rewrxw Service lip. See separate instructions. �
Name(s)shown on your Income tax return Identifying number
Note: Figure the amount of your contribution deduction before completing this form. See your tax return instructions.
Section A—List in this section only items (or groups of similar items) for which you claimed a deduction of$5,000 or
less. Also, list certain publicly traded securities even if the deduction is over $5,000 (see instructions).
MM Information on Donated Property—if you need mores ace, attach a statement.
(a)Name and address of the
1 (b)Description of donated property
donee organization
A
B
C
D
E
Note: lr the amount you claimed as a deduction for an item is$500 or less,you do not have to corn tete columns(d), (e), and(0.
> '<N (c)Data of the (d)Date acquired (e)How acquired (f)Donor's cost (h)Method used to
determine the fair
`K. contribution by donor(mo.,yr.) by donor or adjusted basis f9)Fair market value market value
A
B
EJD
Other Information—Complete line 2 if you gave less than an entire interest in property listed in Part I.
Complete line 3 if conditions were attached to a contribution listed in Part I.
2 If, during the year, you contributed less than the entire interest in the property, complete lines a-e.
a Enter the letter from Part I that identifies the property ► . If Part II applies to more than one property, attach a
separate statement.
b Total amount claimed as a deduction for the property listed in Part I: (1) For this tax year ►
(2) For any prior tax years Do-
c
c Name and address of each organization to which any such contribution was made in a prior year (complete only if different
from the donee organization above):
Name of charitable organization(donee)
Address(number,street.and room or suite no.)
City or town,state,and ZIP code
d For tangible property, enter the place where the property is located or kept Do-
e
e Name of any person, other than the donee organization, having actual possession of the property ►
3 If conditions were attached to any contribution listed in Part I, answer questions a -c and attach the required
statement (see instructions).
a Is there a restriction, either temporary or permanent, on the donee's right to use or dispose of the donated Yes I No
property?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . _
:: .:
b Did you give to anyone (other than the donee organization or another organization participating with the donee ;:::s��; ;> '...
organization in cooperative fundraising)the right to the income from the donated property or to the possessionKiK
:.
of the property, including the right to vote donated securities,to acquire the property by purchase or otherwise,
or to designate the person having such income, possession,or right to acquire? . . . . . . . . . .
c Is there a restriction limiting the donated property fora particular use?
For Paperwork Reduction Act Notice, see page 4 of separate instructions. Cat.No.62299.1 Form 8283 (Rev. 10-98)
Exhibit "B"
Form 8283(Rev. 10-98) Pae 2
Name(s)shown on your income tax return Identifying number
Section B—Appraisal Summary—List in this section only items (or groups of similar items) for which you claimed a
deduction of more than $5,000 per item or group. Exception. Report contributions of certain publicly
traded securities only in Section A.
If you donated art, you may have to attach the complete appraisal. See the Note in Part I below.
Information on Donated Property—To be completed by the taxpayer and/or appraiser.
4 Check type of property:
❑ Art'(contribution of$20,000 or more) ❑ Real Estate ❑ Gems/Jewelry ❑ Stamp Collections
❑ Art' (contribution of less than $20,000) ❑ Coin Collections ❑ Books ❑ Other
'Art includes paintings, sculptures, watercolors, prints, drawings, ceramics, antique furniture, decorative arts, textiles, carpets, silver, rare
manuscripts, historical memorabilia,and other similar objects.
Note: If your total art contribution deduction was$20,000 or more,you must attach a complete copy of the signed appraisal. See instructions.
5 (a)Description of donated property(f you need (b)If tangible property was donated,give a brief summary of the overall (c)Appraised fair
more space,attach a separate statement) physical condition at the time of the gift market value
A
B
C
D
(d)Date acquired (e)How acquired (f)Donor's cost or (g)for bargain sales,enter See instructions
by donor(mo.,yr.) by donor adjusted basis amount received Amount claimed as a r vai. ng a tratl price
deduction of securities
A
B
C
D
Taxpayer (Donor) Statement—List each item included in Part I above that the appraisal identifies as
having a value of$500 or less. See instructions.
I declare that the following item(s)included in Part I above has to the best of my knowledge and belief an appraised value of not more than$500
(per item). Enter Identifying letter from Part I and describe the specific item. See Instructions. ►
Signature of tax a er(donor) ► Date ►
MUM Declaration of Appraiser
I declare that I am not the donor,the donee, a party to the transaction in which the donor acquired the property.employed by, or related to any
of the foregoing persons, or married to any person who is related to any of the foregoing persons. And, if regularly used by the donor,donee,or
party to the transaction, I perforated the majority of my appraisals during my tax year for other persons.
Also, I declare that I hold myself out to the public as an appraiser or perform appraisals on a regular basis;and that because of my qualifications
as described in the appraisal,I am qualified to make appraisals of the type of property being valued.I certify that the appraisal fees were not based
on a percentage of the appraised property value. Furthermore, I understand that a false or fraudulent overstatement of the property value as
described in the qualified appraisal or this appraisal summary may subject me to the penalty under section 6701(a) (aiding and abetting the
understatement of tax liability). I affirm that I have not been barred from presenting evidence or testimony by the Director of Practice.
Sign
Here Signature ► Title ► Date of appraisal ►
Business address(including room or suite no.) Identifying number
City or town,state,and ZIP code
URVOY—Donee Acknowledgment—To be completed by the charitable organization.
This charitable organization acknowledges that it is a qualified organization under section 170(c) and that it received the donated
property as described in Section B, Part I, above on No
(Date)
Furthermore,this organization affirms that in the event it sells,exchanges,or otherwise disposes of the property described in Section
B, Part I (or any portion thereof) within 2 years after the date of receipt, it will file Form 8282, Donee Information Return, with the
IRS and give the donor a copy of that form.This acknowledgment does not represent agreement with the claimed fair market value.
Does the organization intend to use the property for an unrelated use? . .► ❑ Yes ❑ No
Name of charitable organization(donee) Employer identification number
Address(number,street,and room or suite no.) City of town,state,and ZIP code
Authorized signature Title Date
EXHIBIT C
CHARITABLE CONTRIBUTION RECEIPT
Substantiation for Charitable Donations of$250 or More
Internal Revenue Code Section 170(f)(8)requires that the recipient(Donee) of any single charitable gift of
$250 or more give the donor written confirmation of the receipt of such a gift, including a description and a
good faith estimate of the value of any goods and services provided by the recipient (Donee)in exchange
for the donor making the gift.
In order to comply with this code section, hereby certifies that we
received the following contribution from Burlington Northern Santa Fe Corporation:
Cash or check in the amount of: $
Or
Property consisting of:
Date contribution received:
Were any goods and/or services provided to Burlington Northern Santa Fe Corporation in return for this
contribution?
Yes No
If yes, a description of those goods and services is provided below with a statement of monetary value:
Value: $
Organization Name:
Address:
Telephone/Fax:
Organization Tax ID#:
Signature: Date:
Name: Title:
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EXHIBIT D
CONDITIONS TO CONVEYANCE
The following obligations of Donee shall be conditions to BNSF's obligation to consummate the
transaction. In the event any of these conditions are not satisfied by the applicable date indicated below (or
if no date is indicated below then by the date that is 45 days after the Contract Date), BNSF may in its sole
discretion elect to extend such date or terminate this Contract by written notice to Donee.
(a) Donee shall execute and deliver to BNSF the Donee Acknowledgement section of
Internal Revenue Service Form 8283, attached as Exhibit B, and Charitable Contribution Receipt,
attached as Exhibit C, a copy of its letter from the Internal Revenue Service stating that it is a tax
exempt entity which is qualified to receive tax deductible donations and take all actions and execute
and deliver such other documents that are necessary or advisable to allow BNSF to take a tax
deduction with regard to the donation described in this Contract.
(b) If the approval of any governmental agency is required for the donation of the
Property, it is understood and agreed that the consummation of this Contract is conditioned upon
obtaining such approval and that both parties shall use their best efforts to obtain such approval.
(c) Donee shall obtain and deliver to BNSF by the date that is 30 days after the
Contract Date, any survey or plat required, if any, by the applicable city, county or other
governmental authority to convey the Property at Donee's sole cost and expense. Such survey or
plat shall be subject to BNSF's approval in its sole discretion.
(d) Donee shall provide BNSF no later than the date that is 30 days after the Contract
Date, at Donee's sole cost and expense, an MAI appraisal report that provides a market value
estimate of the Property proposed for donation unto the Donee.
(e) Donee shall have performed each of Donee's obligations under this Contract.
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EXHIBIT E
POST CONVEYANCE OBLIGATIONS/RESTRICTIONS
(a) The Property shall be used, kept and maintained as a neighborhood park and/or recreation area. No
commercial endeavor by or authorized by Donee shall be allowed on the Property. Any future transfers of
the Property shall only be allowed to another government agency or a not for profit entity or organization.
Should Donee not comply with requirements noted herein, then the Property shall revert back to BNSF, its
successors and assigns, and Donee, its successors and assigns shall clear any improvements from the
Property at its sole cost and expense. If requested by BNSF, Donee shall execute a quitclaim deed to
further evidence that the Property has reverted back to BNSF.
(b) BNSF reserves access rights across and to the entire Property for emergency purposes as deemed
necessary or advisable by BNSF, without charge and without notification to Donee.
(c) BNSF reserves all rights to all coal, oil, gas, casing-head gas and all ores and minerals of every
kind and nature including sand and gravel underlying the surface of the Property, together with the full
right, privilege and license at any and all times to explore, or drill for and to protect, conserve, mine, take,
remove and market any and all such products in any manner which will not damage structures on the
surface of the Property,together with the right of access at all times to exercise said rights.
(d) BNSF reserves a right of way, in a location to be determined by BNSF(When will this be
determined?, (i) for the continued maintenance, operation and use of all existing driveways, roads, utilities,
tracks, wires and easements of any kind whatsoever on the Property whether owned, operated, used or
maintained by the BNSF, BNSF's licensees or other third parties and whether or not of record, and (ii) for
the installation, construction and situation of facilities necessary to or beneficial for, the operation of
BNSF's railroad, with reasonable right of entry for the repair, reconstruction and replacement thereof,
without limitation as a result of any further enumeration herein. In addition, BNSF reserves a non-
exclusive easement on the Property for the construction, maintenance and operation of one or more
PIPELINES OR FIBER OPTIC CABLES OR LINES, COMMUNICATIONS EQUIPMENT,
CONTROL SYSTEMS AND VARIOUS TYPES OF CABLES, hereafter called"Equipment" as presently
located or may be located in the future on Property. Donee is placed on notice that such Equipment may be
located on or about or under Property. Donee realizes the importance thereof to BNSF's operations. The
Donee or its contractor(s) shall telephone BNSF at it's Communication Network Control Center at (800)
533-2891 (a 24-hour number) (or such other officeltelephone number of BNSF as BNSF may from time to
time notify Donee in writing at Donee's last known address) to determine if Equipment is buried anywhere
on the property; and if so, the Donee or its contractor(s) will contact the owner or operator of the
Equipment involved, and make arrangements with such owner/operators for protection of such equipment
prior to beginning any work on the Property. To the extent permitted by law, Donee shall inemnify, defend
and hold harmless BNSF and such owner/operator from and against any and all liability, cost, expense and
damage arising from or related to any failure of Donee to comply with the provisions of this section.
Notwithstanding anything to the contrary contained herein, BNSF is not transferring, and Donee shall not
have, any right, title or interest in and to any easements related to any Equipment. Nothing contained
herein shall ever be construed so as to require Donnee to assess, collect, or levy any tax to fund its
obligations under this paragraph.
(e) All covenants, conditions and restrictions contained herein shall run with the land and shall be
binding upon the successors and assigns of Donee and inure to the benefit of BNSF and its successors and
assigns.
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(f) If any provision herein or the application thereof to any person or circumstance shall for any reason and
to any extent be held to be invalid or unenforceable, then such provision shall be ignored, and to the maximum
extent possible, the remaining provisions herein shall continue in full force and effect, but without giving effect to
such invalid provision.
(g) Within one hundred eighty (180) days of the date of the Deed, Donee shall, at its sole cost and
expense, construct a protective steel or chain-link type fence a minimum of six (6) feet in height along the
Westerly boundary of the Property or upon the concrete wall that lies adjacent to the Westerly boundary of
the Property. Donee shall thereafter repair, maintain and renew said fence, so as to keep same in good
repair at the sole cost to the Donee. If Donee does not so construct or maintain said fence BNSF may elect
to perform such obligation on Donee's behalf and Donee shall pay BNSF all costs associated with said
construction or future maintenance within thirty (30) days of receipt of any bill and such amounts shall
constitute a lien upon the Property until paid. BNSF shall grant in the Deed a 5 foot wide easement
adjacent to the Westerly boundary of the Property along other property retained by BNSF an easement for
access to so construct and maintain such fence. To the extent permitted by law, Donee shall indemnify,
defend and hold BNSF harmless from and against any liability, cost and expense in connection with any
bodily injury or death or damage or loss to property related to any entry upon such adjacent property by
Donee to perform such construction or maintenance or caused in whole or in party by Donee's negligence
or failure to so construct or maintain such fence. Nothing contained herein shall ever be construed so as to
require Donee to assess, collect or levy any tax to funds its obligations under this paragraph.
(h) BNSF reserves (i) an easement 20 feet wide along the Westerly boundary of the Property for the
construction, reconstruction and maintenance of a wall adjacent to the westerly boundary of the Property
and the footing for the wall and (ii) a slope easement for the construction, reconstruction and maintenance
of the railroad bed slope north of such wall.
9
City of Fort Worth, Texas
"Agar And Council Communication
DATE REFERENCE NUMBER LOG NAME PAGE
10/29/02 C-19326 80VACATE 1 of 2
SUBJECT AUTHORIZATION TO ENTER INTO AN AGREEMENT WITH THE TEXAS DEPARTMENT
OF TRANS PORTA-1-ION AND BURLINGTON NORTHERN SANTA FE RAILROAD TO
VACATE PORTIONS OF TERRY STREET AND EAST FOURTH STREET, CLOSING
THE RAILROAD CROSSING
RECOMMENDATION:
It is recommended that the City Council:
1. Authorize the City Manager to enter into an agreement with the Texas Department of Transportation
(TxDOT) and Burlington Northern Santa Fe Railroad (BNSF) to close the railroad crossing on East
Fourth Street to vehicular and pedestrian traffic in which TxDOT would pay the City up to $7,500 for
the necessary improvements for the closure; and
2. Authorize the City Manager to enter into a Real Estate Donation Contract with BNSF for a .0276
acre tract on the corner of Elm Street and East Fourth Street to be donated to the City as dedicated
park land; and
3. Authorize the City Manager to accept a $32,500 donation from BNSF in consideration of the closure
of the railroad crossing to be used for the installation of a fence along 500 feet of the railroad tracks,
park design and development, and closure of the railroad crossing; and
4. Adopt the attached ordinance (Attachment A) vacating a portion of the 400 block of East Fourth
Street located in the M. Baugh Survey, Abstract No. 106, as recorded in Cabinet B, Slide 1270, Plat
Records, Tarrant County, Texas; and
5. Adopt the attached ordinance (Attachment B) vacating a portion of the 500 block of Terry Street,
east of Lot 2R, Block 89 of the Original Town of Fort Worth and part of the M. Baugh Survey,
Abstract No. 106, as recorded in Cabinet B, Slide 1270, Plat Records, Tarrant County, Texas; and
6. Adopt the attached appropriation ordinance (Attachment C) increasing the estimated receipts and
appropriations in the Parks and Community Services Improvements Fund in the amount of $40,000
from available funds.
DISCUSSION:
City staff has been negotiating a contract with TxDOT and BNSF for the closure of the railroad crossing
in the 400 block of East Fourth Street to vehicular and pedestrian traffic (map of location is Attachment
D). The closure will promote safety by eliminating a railroad crossing.
In order to accomplish the closure, an agreement with the following terms has been proposed:
• TxDOT will compensate the City in the amount of $7,500 for the necessary improvements to
complete the closure; and
City of Fort Worth, Texas
4Vagor and Council Communication
DATE REFERENCE NUMBER LOG NAME PAGE
10/29/02 C-19326 80VACATE 2 of 2
SLIB_IECT AUTHORIZATION TO ENTER INTO AN AGREEMENT WITH THE TEXAS DEPARTMENT
OF TRANSPORTATION AND BURLINGTON NORTHERN SANTA FE RAILROAD TO
VACATE PORTIONS OF TERRY STREET AND EAST FOURTH STREET, CLOSING
THE RAILROAD CROSSING
• The City will vacate a portion of East Fourth Street and Terry Street so the railroad closure will
be permanent. The request to close a portion of the 400 block of East Fourth Street and the
500 block of Terry Street was recommended for approval by the City Plan Commission on
March 27, 2002. Reviewing City departments and utility companies have no objection to this
request. An acceptable replat, when received, will reflect any utility easements that need to be
retained to accommodate existing utilities and related facilities. Tindall Properties, Ltd. (Tindall)
paid all survey costs required for the vacation. In consideration of funds and services donated
to the City by BNSF and Tindall, the vacated right-of-way will revert to the abutting property
owners BNSF and Tindall (Attachment A and B); and
• BNSF will donate a .0277 acre tract on the east side of the tracks to the City to be dedicated as
park land; and
• BNSF will donate $32,500 to the City in consideration of the closure of the railroad crossing to
be used for the installation of a fence along 500 feet of railroad tracks, park design and
development, and closure of the railroad crossing.
This property is located in COUNCIL DISTRICT 9.
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that upon adoption of the attached appropriation ordinance and
completion of the above recommendations, funds will be available in the current capital budget, as
appropriated, of the Parks and Community Services Improvements Fund. The Parks and Community
Services Department and the Transportation and Public Works Department will be responsible for the
collection and deposit of funds due to the City under this agreement.
JP:k
Submitted for City Manager's FUND ACCOUNT CENTER AMOUNT CITY SECRETARY
Office by: (to)
6)C188 488100 080188300110 $32,500.00
Joe Paniagua 6140 6)C188 488100 020188300110 $7,500.00
Originating Department Head: 6)C188 541200 080188300110 $32,500.00
6) C188 541200 020188300110 $7,500.00
Richard Zavala 5704 (from) APPROVED 11/05/02
ORD.#'S 15320, 15321,AND
15322
Additional Information Contact:
City of Fort Worth, Texas
"clyor and Council Communication
DATE REFERENCE NUMBER LOG NAME PAGE
10/29/02 C-19326 80VACATE 3 of 2
SUBJECT AUTHORIZATION TO ENTER INTO AN AGREEMENT WITH THE TEXAS DEPARTMENT
OF TRANSPORTATION AND BURLINGTON NORTHERN SANTA FE RAILROAD TO
VACATE PORTIONS OF TERRY STREET AND EAST FOURTH STREET, CLOSING
THE RAILROAD CROSSING
Cynthia Garcia 7611