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HomeMy WebLinkAboutResolution - 2000-R0187 - Agreement - West Texas & Lubbock Railroad - 06_20_2000Resolution No. 2000-R 0187 June 20, 2000 Item No. 84 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock an agreement with the West Texas & Lubbock Railroad entitled "First Amendment to the `Agreement For the Relocation of a Portion of the Seagraves, Whiteface and Lubbock Railroad for Construction of a Controlled Access Highway Facility in the City of Lubbock"' and any other related documents. Said Agreement is attached hereto and incorporated in this Resolution as if fully set forth herein and shall be included in the minutes of the Council. Passed by the City Council this 20th day of June , 2000. Y SI ON, MAYOR A T: 7 L - _' - KlythieTell, City Secretary APPROVED AS TO CONTENT: `�� R-4t�� Ji am, S ategic lanning Manager APPROVED AS TO FORM: Linda Chamales, Supervising Attorney- Office Practice gs/ccdocs/rr amendmenucs June 9,2000 Resolution Po. 2000—RO187 June 20, 2000 Item No. 84 FIRST AMENDMENT TO THE "AGREEMENT FOR THE RELOCATION OF A PORTION OF THE SEAGRAVES, WHITEFACE AND LUBBOCK RAILROAD FOR CONSTRUCTION OF A CONTROLLED ACCESS HIGHWAY FACILITY IN THE CITY OF LUBBOCK, TEXAS" This amendment agreement is entered into by and between the West Texas and Lubbock Railroad Company, Inc., a Texas Corporation, hereinafter called "RAILROAD" and the City of Lubbock, Texas, hereinafter called "CITY" to be effective on the date last executed. WITNESSETH WHEREAS, the City and Seagraves, Whiteface and Lubbock Railroad Corporation entered into an Agreement dated March 8, 1991, for the purpose of relocating the Seagraves, Whiteface and Lubbock Railroad for construction of a controlled access highway facility in the City of Lubbock; and WHEREAS, the City and the Railroad have agreed to modify the agreement to clarify current ownership of the railroad and to reflect other agreements regarding the construction of the New Facility and the conveyance of the Old Right -of -Way; NOW, THEREFORE, in consideration of the promises and of the mutual covenants and agreements of the parties hereto, the parties agree to the following amendments to the March 8, 1991, agreement: 1. Since the date of the agreement herein, referenced, ownership of the Seagraves, Whiteface, and Lubbock Railroad Corporation has changed and the railroad is now owned and operated by the West Texas and Lubbock Railroad Company, Inc. All references in said agreement to the Seagraves, Whiteface and Lubbock Railroad Corporation shall be amended to read West Texas and Lubbock Railroad Company, Inc.; and 2. Article 2 introductory paragraph is deleted and replaced by the following paragraph: "ARTICLE 2. Responsibilities of CITY and RAILROAD in effecting the relocation of the RAILROAD's operations from the Old Right -of -Way to the New Right,of--Way including plans, specifications and construction of the New Facilities (as hereinafter defined):" Amendment to Agreement for Railroad Relocation Page 1 3. Article 2, sub -paragraph D, Section (vi) is deleted and replaced by the following paragraph: "(vi) one rail siting, at approximately the location of the switches identified in (v) above, containing storage capabilities of at least forty (40) railcars;" 4 Article 2, sub -paragraph K is amended as follows: "K. The City will, at no expense to the Railroad, obtain the approval of the Interstate Commerce Commission, the Texas Railroad Commission, the Surface Transportation Board and any other necessary governmental body for the Railroad to abandon the Old Right -of -Way and relocate and continue its operations over and upon the New Right -of -Way. (Remainder of sub -paragraph K is unchanged)." 5. Article 2, sub -paragraph S, is added to read as follows: "S. The City will, at its own expense, resurface the track of the existing railroad mainline (Levelland) between the south terminal from approximately the intersection of Upland Street northwestward approximately 13,200 feet to the proposed "Y" connection. (i). `Resurfacing' shall include the following services a. Surveying existing alignment to determine both horizontal and vertical placement; and b. Reviewing existing horizontal and vertical alignment to incorporate modifications to allow upgrade to 40 mph; and c. Developing plan, profile, and summary of work to include 1) Replacement of defective crossties and tie spikes not to exceed 33% (with all defective crossties to be removed being marked by a Railroad representative), but reusing existing tie plate and anchors; and 2) Cleaning of crib between all ties to allow placement of ballast; and 3) Placement of minimum of six (6) inches of ballast under tie throughout. d. Providing smooth transitions at proposed yard and "Y" locations; and e. Construction observation during removal and installation of specified times. Amendment to Agreement for Railroad Relocation Page 2 (ii). `Resurfacing' shall not include the following services a. Modification or replacement of at -grade crossings; or b. Modifications or replacement of at -grade signal systems and protection equipment. No attempt will be made to update existing signal system to 40 mph design speed; or c. Replacement of the rail or guard rail; or d. Replacement of turnouts; or e. Rail grinding or other alteration of the existing rail; or f. Modification or reconstruction of subgrade or subballast; or g. Modification or reconstruction of drainage or drainage structures." 6. Article 2, sub -paragraph L is deleted and replaced by the following section: "L. The RAILROAD shall secure an agreement from the BNSF (formerly AT&SF) allowing the RAILROAD to connect with the BNSF at the new track intersection northwest of Loop 289 and shall gain track rights from BNSF from this connection to the downtown yard ("BNSF Agreement"). Said BNSF Agreement shall ensure the RAILROAD's ability to connect with BNSF with at least the same frequency as now occurs in connection with the Old Right -Of -Way and shall otherwise be satisfactory to the RAILROAD in all respects. Written confirmation of said BNSF Agreement, signed by both parties shall be a condition precedent to conveyance of the New Facility, RAILROAD shall, prior to incurring any expenses under this sub -paragraph, submit to the CITY for its approval a schedule or schedules identifying the rates for all professionals and personnel to be retained or used by the RAILROAD in the exercise of its rights granted in this sub -paragraph. Said schedule or schedules shall to the extent possible, also identify the range of costs that may be incurred by the RAILROAD. Said schedule or schedules may be disapproved by the CITY only if they are unreasonable, and approval by the CITY may not be unreasonably withheld or delayed. All reasonable fees, costs and expenses incurred by the RAILROAD in connection with the exercise of the rights granted it in this sub -paragraph and which are in conformance with the schedule or schedules previously approved by the CITY shall, upon monthly submission of a detailed invoice to the CITY and upon the CITY's approval thereof, be promptly paid by the CITY, and such approval shall not be unreasonably withheld or delayed." Amendment to Agreement for Railroad Relocation Page 3 7. Article 2, subparagraph N is deleted and replaced by the following section: "N. Upon completion of the New Facilities, the CITY shall provide the RAILROAD with an American Land Title Association ("A.L.T.A.") Survey, or its equivalent, of the New Right -of -Way, certified to the RAILROAD and prepared by a registered Texas land surveyor, showing all improvements, the New Facilities, lot lines, utility easements, roads and showing no encroachments. RAILROAD agrees that the CITY's provision of both Final Right -of -Way Maps for the New Right of Way and `As Built' Construction Plans for the New Facilities will be deemed equivalent to an A.L.T.A. survey for the purposes of this section." 8. Article 3, Conveyance is deleted and replaced by the following article: "Article 3. Conveyance. (a) Promptly after the CITY' S payment to the RAILROAD of all sums agreed to in the `Agreement Between West Texas and Lubbock Railroad Company, Inc. and the City of Lubbock Regarding Conveyance of a Portion of the Railroad Right of Way to the State of Texas for Highway Construction' (`Conveyance Agreement') executed simultaneously herewith, and satisfaction of all other conditions precedent set forth in said agreement, the RAILROAD will convey to the STATE, by quit -claim deed (in the form attached hereto as Exhibit "B" and made a part hereof for all purposes) the RAILROAD's right, title and interest in the Old Right -of -Way. The CITY, the STATE and the RAILROAD hereby agree, and the CITY and STATE hereby acknowledge the conveyance of the Old Right -of -Way `AS IS', with any and all defects of any kind and nature, including, without limitation, title defects of any kind and nature, including, without limitation, title defects and all environmental defects, known or unknown. Concurrently with RAILROAD's conveyance of the Old Right -of -Way to the State, the RAILROAD will convey to the State by Assignment and Bill of Sale (in the form attached hereto as Exhibits "C" and "D" and made a part hereof for all purposes), `AS IS and WHERE IS' any and all personalty associated with the Old Right -of -Way, including but not limited to, all rails, ties, tie plates. spikes, switches, gates, lights, trackage and appurtenances (the `Old Facilities'), but specifically excluding the following personalty which the RAILROAD has designated that it will salvage pursuant to Article 8 of this Agreement: all metal track materials including but not limited to rails, tie plates, spikes, switches, gates, lights, signals, connectors, crossings, trackage and appurtenant facilities. Amendment to Agreement for Railroad Relocation Page 4 Promptly after the CITY's completion and the RAILROAD's acceptance of the New Facilities, the CITY will convey to the RAILROAD, by recordable warranty deed, good and indefeasible fee simple title to the New Right -of -Way, subject only to the Permitted Exceptions. The CITY will also convey to the RAILROAD, by good and merchantable Bill of Sale, all right, title and interest of the CITY in and to the New Facilities, free and clear of any and all claims and liens. Notwithstanding anything herein to the contrary, if on the Conveyance Date the CITY has possession but does not have fee simple title to one or more parcels in the New Right —of -Way as a result of ongoing eminent domain proceedings, the CITY shall transfer possession of said parcel or parcels to the RAILROAD on the Conveyance Date and shall, upon the conclusion of said eminent domain proceeding or proceedings, convey to the RAILROAD, by recordable warranty deed, good and indefeasible fee simple title to said parcel or parcels, subject only to the Permitted Exceptions. (b) The date upon which the aforesaid conveyance from the CITY to the RAILROAD shall take place will be identified herein as the `Conveyance Date.' (c) On the Conveyance Date, there shall be delivered to the RAILROAD an owner's title insurance policy that is consistent with the then most recent commitment for title insurance approved by the RAILROAD, showing title to the New Right -of -Way in the RAILROAD, subject only to the Permitted Exceptions." 9. Article 4. Additional Consideration, is deleted and replaced by the following article: "Article 4. Additional Consideration. As and for additional consideration for RAILROAD's agreement to convey the Old Right -of -Way and relocate its operations to the New Right —of --Way as set forth above, the CITY hereby agrees to pay the RAILROAD, on the date RAILROAD conveys the Old Right -of -Way to the STATE, an amount equal to the difference between the Agreed Value of the Old Right -of -Way (as hereinafter defined) and the Agreed Value of the New Right -of -Way (as hereinafter defined), in accordance with the terms of the Conveyance Agreement executed simultaneously herewith. a. For purposes of this Agreement, the `Agreed Value of the New Right - of -Way' shall be three hundred fifty thousand dollars ($350,000.00). b. For purposes of this Agreement, the `Agreed Value of the Old Right - of -Way' shall be nine million, six hundred fifteen thousand dollars ($9,615,000.00)." Amendment to Agreement for Railroad Relocation Page 5 10. Article 8. RAILROAD's Salvage Rights. Is deleted and replaced by the following article: "Article 8. RAILROAD's Salvage Rights. The RAILROAD may, at its option, salvage that portion of the "Old Facilities" identified in. Article 3 (a) as designated for salvage ("Salvage Rights"). The salvage operations, if undertaken, will be performed by the RAILROAD at no cost to the CITY. CITY will notify RAILROAD approximately sixty (60) days prior to the anticipated completion date of the New Facilities. Since the salvage operations cannot take place until after the Conveyance Date, the RAILROAD will cooperate with the CITY and STATE to schedule the salvage operations so as not to unreasonably interfere with the construction of the East-West Freeway, and barring unforeseen circumstances, shall cause the salvage operation to be completed within 90 days from the Conveyance Date. IN the event the Railroad assigns other rights set out in the Relocation Agreement and/or this Amendment, the Salvage Rights will remain the sole and exclusive right of the West Texas and Lubbock Railroad Company, Inc." 11. Article 10, subsection c, is deleted and replaced by the following section: %. The agreement by and between the CITY and the STATE dated February 12, 1991, relating to the respective responsibilities of each of them for the relocation of the RAILROAD in furtherance of construction of the East-West Freeway is in full force and effect, as amended by the Modification Agreement dated June 5, 1991, the Second Modification Agreement dated May 30, 1997. True copies of each Modification Agreement are attached hereto as Exhibits C and D. The CITY further represents and warrants that neither it nor the STATE is in default of the aforesaid agreements at this time, and in the event of any default by either party thereunder, the CITY shall notify the RAILROAD, in writing, promptly upon the occurrence of such default." IT IS FURTHER AGREED by and between the parties hereto that the Agreement referenced herein, except as modified by this Agreement, shall remain in all respects as originally written and shall continue to be effective as of the dates of the respective Agreements. Amendment to Agreement for Railroad Relocation Page 6 IN TESTIMONY WHEREOF, the Railroad and the City have executed duplicate counterparts of this agreement on the dates indicated. CITY OF LUBBOCK WEST TEXAS & LUBBOCK RAILROAD COMPANY, INC. By: By: ! Date: r_Fyc ' 1 m e APB 7L%ate:---](a ATTEST: AAjd. I j eAAf J, 6 // k - - V-A kaythA Darnell, City Secr ry APP OVE TO CONTENT: /*L--:� — Richard Burdine, Assistant City Manager APPROVED AS TO FORM: Linda Chamales, Supervising Attorney APPROVED AS TO CONTENT EXECUTIO COMMENDED: 7 Carl R tley, P.E. District Engiv6er State of Texas Department of Tr sportation Date: Off'% LC: 11929 — RR -Amendment Amendment to Agreement for Railroad Relocation Page 7