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HomeMy WebLinkAboutResolution - 3559 - Agreement - SWLR - Railroad Relocation, E-W Freeway 22-28 Copied Crooked - 02/28/1991Resolution No. 3559 February 28, 1991 Item 413 JWF:js 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 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" in such form as approved by the Assistant City Manager for Development Services and the City Attorney's Office of the City of Lubbock, said Agreement to be entered into by and between the City of Lubbock and Seagraves, Whiteface and Lubbock Railroad, attached herewith, which shall be spread upon the minutes of the Council and as spread upon the minutes of this Council shall constitute and be a part of this Resolution as if fully copied herein in detail. Passed by the City Council this 28th 1991. ATTEST: natte ecreta APPROVED AS TO CONTENT: Jame. Bertram, Assistant City Mannqqk for Development Services APPROVED AS TO FORM: a I.P P" J.t u ingim, ssi tant City Attarney day of February a� 4 r B. C. cMINN, MAYOR R3S:Sj 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 agreement (the "Agreement") is entered into as of the bih day of Mem , 1991, by and between the City of Lubbock, Texas (hereinafter called the "CITY"), acting by and through its duly authorized official, pursuant to City Council Resolution Number 3559, dated February 28, 1991, and City Council Resolution Number 3173, dated August 10, 1989, and the Seagraves, Whiteface and Lubbock Railroad Corporation (hereinafter called the "RAILROAD"), acting through its duly authorized official. WITNESSETH• WHEREAS, the Department of Highways and Public Transportation of the State of Texas (hereinafter called the "STATE") and the CITY have, for the purpose of decreasing hazards to life and property, promoting public safety, improving traffic conditions and encouraging the CITY's orderly development, deemed it necessary to construct a controlled access highway facility in the City of Lubbock as a part of the State Highway System (which facility shall be referred to as the "East-West Freeway" for purposes of this Agreement); WHEREAS, in Lubbock County, Texas, the STATE owns, operates and maintains U.S. Highway 82 as a part of its State Highway System; WHEREAS, the STATE and CITY have, for the purposes of decreasing hazards to life and property, promoting public safety, improving traffic conditions, and encouraging the orderly development of the CITY, deemed it necessary to improve a 6.8 - mile segment of said East-West Freeway, extending from South Loop 289 (SW), northeasterly and thence easterly to a crossing with Interstate Highway 27; WHEREAS, the recommended design and alignment of the improved East-West Freeway will necessitate the acquisition of a portion of the RAILROAD's existing right-of-way, and the relocation of the RAILROAD's operations from such right-of-way to an alternative right-of-way; WHEREAS, the STATE and the CITY have agreed upon the respective responsibilities of each of them in relation to relocation of the RAILROAD's operations in furtherance of construction of the East-West Freeway, and have entered into an agreement which defines such responsibilities pursuant to Texas Civil Statutes Article 6673b; WHEREAS, in furtherance of construction of the East-West Freeway, the CITY has requested that the RAILROAD convey to the CITY or its nominee a portion of its existing right-of-way and relocate its railroad operations from such right-of-way to an alternate right-of-way to be provided by the CITY, and the RAILROAD has agreed to cooperate with the CITY upon the terms and conditions set forth in this Agreement; and WHEREAS, the CITY and the RAILROAD desire to enter into an agreement to define their respective responsibilities and obligations, in accordance with the powers granted the CITY under the provisions of Article 1105c, Vernon's Annotated Civil Statutes of the State of Texas. NOW, THEREFORE, in consideration of the recitals set forth above, the mutual covenants and agreements of the parties hereinafter contained, and other good and valuable consideration, the parties hereto agree as follows: AGREEMENT ARTICLE 1. Exchange of Land. Upon satisfaction of all of the conditions precedent set forth in this Agreement, the RAILROAD agrees to: (i) convey to the STATE (as the CITY's nominee) all right, title and interest held by the RAILROAD in and to the RAILROAD's present real property right- of-way proximal to the U.S. Highway 82 corridor, between a point to be agreed upon by the parties located southwest of the intersection of U.S. Highway 82 and Loop 289 (SW) and a point just east of University Avenue (the "Old Right -Of -Way"). The parties agree that, in determining the southwestern -most point of the Old Right -Of -Way, they shall use all reasonable efforts to provide, to the maximum extent possible, for the RAILROAD's continued use and operation of the tracks on its Whiteface Line in the proximity of Loop 289 (SW) and the Brownfield Road Bridge. A map of the Old Right -Of -Way (with approximate beginning and ending points) is attached hereto as Exhibit A and made a part hereof for illustrative purposes only; and accept from the CITY, in exchange for the conveyance of the Old Right -Of -Way to the STATE, fee simple title, less mineral rights, to a new right-of-way to be located by agreement of the parties between West Loop 289 and Reese Air Force Base, connecting the RAILROAD's existing right-of- way along the U.S. Highway 82 corridor southwest of Loop 289, with the right-of-way of the Atchison, Topeka and Santa Fe Railroad ("AT&SF") KO along the U.S. Highway 84 corridor northwest of Loop 289 (the "New Right -Of -Way"). Hereinafter, "fee simple title" shall be understood in this Agreement to exclude any and all mineral rights. Notwithstanding anything in this subparagraph to the contrary, at those locations where the New Right -Of -Way intersects with pre-existing public roads, RAILROAD will accept from CITY in lieu of fee simple title, and CITY will, to the extent authorized by law, convey, assign and/or transfer to RAILROAD, joint operating agreements, perpetual easements and any and all other documents and agreements, in a form acceptable to RAILROAD, which allow for RAILROAD's use of and operation of its railroad on, over and across said intersections. A proposed location for the New Right -Of -Way is identified on Exhibit A attached hereto and made a part hereof, for illustrative purposes only. ARTICLE 2. Conditions Precedent to Conveyance of Old Right -Of - Way. The RAILROAD's agreement to convey the Old Right -Of -Way to the STATE is subject to and conditioned upon satisfaction of each of the following conditions precedent: A. The CITY will, at its expense, perform or cause to be performed all surveying, engineering and other professional services necessary to identify, analyze, design and plan alternative routes for the New Right - Of -Way. The RAILROAD shall be permitted to participate with the CITY in reviewing and analyzing all reports, data and information compiled in connection with the analysis of alternative routes for the New Right -Of - Way. When the CITY has made its determination of the appropriate New Right -Of -Way, it shall notify the RAILROAD, in writing, and provide the RAILROAD with a right-of-way schematic of such proposed New Right -Of - Way, along with other relevant data and identifying information as may be necessary for RAILROAD's review and consideration of such proposal. The final determination of the location of the New Right -Of -Way shall be subject to the RAILROAD's approval, which shall not be unreasonably withheld or delayed. B. Promptly after the CITY and the RAILROAD have agreed upon the location of the New Right -Of -Way, the CITY will, at its expense, prepare or cause to be prepared environmental -impact studies and all other studies, tests and analyses of and relating to the New Right -Of - Way as may be required to comply with applicable federal, state and local law requirements. The CITY shall make all such studies, tests and information available to the RAILROAD, for its review. Notwithstanding the RAILROAD's right to review such 3 information submitted by the CITY, the CITY shall have the sole responsibility of procuring all studies, tests and data as may be required by applicable federal, state or local laws, and RAILROAD shall have no liability for compliance with such laws. The CITY will cause the New Right -Of -Way to meet or exceed all federal, state and local laws, regulations, orders and decisions for and relating to the protection of the environment. C. From and after the date upon which the RAILROAD and the CITY agree upon the location of the New Right -Of -Way, the CITY shall, upon request of the RAILROAD, and at no expense to the RAILROAD, conduct such site and soil inspections, testing or other investigations on or of the property comprising the New Right -Of -Way and shall otherwise to do that which is reasonably necessary, to the satisfaction of the RAILROAD, to determine the suitability of the New Right -Of -Way for the uses intended by the RAILROAD, and to determine whether there is present on or under the New Right -Of -Way (or whether there is any evidence of an escape, seepage or leakage from the property underlying the New Right -Of - Way into or upon any land, watercourse or body of water) any hazardous or toxic chemicals, substances, mixtures, wastes, contaminants or pollutants within the meaning of any federal, state or local statute, regulation or ordinance, or other wastes or petroleum ("Hazardous Substances"). D. The CITY will take all actions and do all things necessary and appropriate to effect the relocation of the RAILROAD's operations from the Old Right -Of -Way to the New Right -Of -Way, including construction of the New Facilities (as hereinafter defined) in accordance with plans and specifications approved by the RAILROAD. For purposes of this Agreement, the term "New Facilities" shall mean and include, at a minimum, the following: (i) new rails, ties, tie plates, spikes, switches, gates, lights, trackage and appurtenances as are necessary and appropriate for the operation of the railroad by the RAILROAD on, over and across the New Right -Of -Way; (ii) a smooth, uninterrupted connection between the trackage and facilities on the New Right -Of -Way and the RAILROAD's existing track on its right-of- way southwest of Loop 289; 4 (iii) switches allowing smooth interchange at the intersection of the New Right -Of -Way and the RAILROAD's existing tracks on its Whiteface Line; (iv) a switch connection on the New Right -Of -Way proximally east of Reese Air Force Base, so as to allow for future service to Reese Air Force Base; (v) switches providing smooth access with the AT&SF tracks at the point northwest of Loop 289 where the New Right -Of -Way will intersect with the AT&SF tracks; (vi) a railcar yard, at approximately the location of the switches identified in (v) above, containing at least three tracks, with each track capable of storing at least forty (40) railcars; and (vii) a yard, located along the RAILROAD's Whiteface Line and having access to a public road, suitable for the loading and unloading of aggregate and other commodities comparable to the yard presently being used by the RAILROAD at the approximate location of the intersection of U.S. Highway 82 and Loop 289 (SW). E. The CITY will, at its expense, prepare or cause to be prepared all site -plans, designs, construction plans and specifications for the New Facilities. The CITY will submit the construction plans and specifications to the RAILROAD for review and approval. Once the RAILROAD has approved same, the CITY shall secure the STATE's concurrence as to all construction plans and specifications. F. The CITY will, at no expense to the RAILROAD, secure all necessary and appropriate licenses, permits and approvals in connection with (i) the acquisition of the Old Right -Of -Way, (ii) assemblage of the acreage for conveyance of the New Right -Of -Way, (iii) construction of the New Facilities and (iv) relocation of the RAILROAD's operations from the Old Right -Of -Way to the New Right -Of -Way. Upon the RAILROAD's request, the CITY shall provide the RAILROAD with copies of such permits, licenses and approvals. Upon request of the CITY, the RAILROAD will cooperate with the CITY in any proceeding or action necessary to obtain said licenses, permits and approvals. Any such action or proceeding shall be conducted by the CITY without any cost or expense to the RAILROAD. 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 5 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. G. The CITY shall deliver to the RAILROAD copies of final, detailed plans and specifications for the New Right -Of - Way and the New Facilities, which shall be subject to prior approval by the RAILROAD, together with evidence satisfactory to the RAILROAD that the STATE has concurred in such plans and specifications and the appropriate local authorities have approved such plans and specifications as satisfying the terms of any agreements, ordinances, regulations or requirements applicable to the relocation. The CITY will not cause or permit any changes or modifications in the plans or specifications or any deviations therefrom which would materially adversely effect the scope or quality of the New Right -Of -Way or the New Facilities without the prior written consent of the RAILROAD and all necessary federal, state or local authorities. H. The CITY will, at its expense, cause the New Facilities to be constructed and completed in good and workmanlike manner, free from liens or encumbrances of any nature. The CITY will provide construction administration for the New Facilities and will inspect construction as progress requires, in accordance with the CITY's ordinances, rules, regulations and custom. The CITY will permit the RAILROAD or its representatives at all reasonable times and as often as the RAILROAD may reasonably request to inspect the New Facilities and the materials to be used in the construction thereof, and to examine all detailed plans and drawings which relate to construction of the New Facilities and/or the New Right -Of -Way. The CITY will require its contractors, sub -contractors and materialmen to cooperate with the RAILROAD to enable it and its representatives to exercise its rights hereunder. I. The RAILROAD shall have the right to appoint such independent engineers, inspectors or consultants to assist the RAILROAD in analyzing the surveys, 2 topographical data, engineering studies and environmental studies relating to the New Right -Of -Way, the plans and specifications for the New Facilities, to conduct monthly compliance inspections and to prepare reports regarding all of the above for the RAILROAD. 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. J. The New Right -Of -Way and New Facilities shall comply with all federal, state and local laws, regulations and requirements relating to the construction and operation of railroad lines, including, without limiting the generality of the foregoing, all regulations and requirements promulgated by the United States Department of Transportation, the Federal Railroad Administration, the Interstate Commerce Commission, the Texas Railroad Commission and the Texas Department of Highways and Public Transportation. K. The CITY will, at no expense to the RAILROAD, obtain the approval of the Interstate Commerce Commission, the Texas Railroad Commission 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. Upon request of the CITY, the RAILROAD will cooperate with the CITY in any proceeding necessary to obtain said approval, provided, however, that RAILROAD shall not be obligated to abandon the Old Right -of -Way or relocate its operations to the New Right -Of -Way unless and until the transactions contemplated by this Agreement have been consummated. Any such proceedings shall be conducted by the CITY without any cost or expense to. the RAILROAD. RAILROAD shall, prior to incurring any expenses under this sub -paragraph, submit to the CITY for its approval a schedule or schedules identifying 7 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. L. The RAILROAD shall secure an agreement from the AT&SF allowing the RAILROAD to interchange with the AT&SF at the new track intersection northwest of Loop 289. Said agreement shall ensure the RAILROAD's ability to interchange with the AT&SF 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. 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. M. The RAILROAD and its agents, engineers and other representatives shall have thirty (30) days from the date of the CITY's completion of the New Facilities to inspect, examine, obtain engineering inspections and to secure such assurances and otherwise do that which, in the RAILROAD's opinion, is necessary to determine the structural and mechanical condition of the New Facilities on the New Right -Of -Way and the suitability 8 of such improvements for the uses intended by the RAILROAD. 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. 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. O. (a) The CITY shall furnish to the RAILROAD a commitment for an A.L.T.A., or its equivalent, Owner's Form B policy of title insurance for the entire New Right -Of -Way, issued by a title insurance company licensed to do business in Texas and acceptable to the RAILROAD. Said commitment for title insurance shall be in the amount of the Agreed Value of the New Right -Of - Way (as hereinafter defined) and shall show good and indefeasible title to the New Right -Of -Way in the CITY, subject only to general taxes not yet due and payable, pre-existing public roads, mineral rights, and other covenants and agreements of record which are acceptable to the RAILROAD (the "Permitted Exceptions"). If the commitment for title insurance discloses unpermitted exceptions, the CITY shall, prior to the Conveyance Date, have said exceptions removed or insured over to the satisfaction of the RAILROAD. If the CITY fails to have the exceptions removed or insured against, RAILROAD may, within sixty (60) days of written notice of such failure terminate this Agreement. In the event RAILROAD does not terminate this Agreement within said sixty (60) days, any and all exceptions disclosed on the title commitment shall be deemed Permitted Exceptions. /1P 9 (b) The CITY may from time to time furnish to the RAILROAD a commitment or commitments for title insurance for one or more parcels contained within the New Right -Of -Way for the sole purpose of determining if any of the exceptions contained therein are Permitted Exceptions. All such exceptions which the RAILROAD accepts and acknowledges, in writing, as Permitted Exceptions shall, thereafter, be Permitted Exceptions in the said commitment for title insurance for the entire New Right -Of -Way as provided in sub -paragraph (a) hereof. Nothing herein shall relieve the CITY of its obligations under sub -paragraph (a) hereof. P. The CITY shall, in accordance with Article 1105c, Vernon's Annotated Civil Statutes of Texas, and any applicable federal and state laws and policies governing the acquisition of real property, at its expense, acquire fee simple title to all parcels of real estate which comprise the New Right -Of -Way. In the event the CITY is unable to purchase any portion of the New Right -Of -Way in fee simple on a voluntary basis, the CITY shall commence eminent domain proceedings pursuant to Article 1105c, sec. 14. Upon request of the CITY the RAILROAD will, at no cost to the RAILROAD, cooperate with the CITY and will join in any eminent domain proceeding. Q. In addition to acquiring the real estate comprising the New Right -Of -Way, the CITY shall secure all necessary and appropriate utility easements and provide all electrical utility hook-ups and/or tie-ins as are necessary and appropriate for the operation of a railroad by the RAILROAD on, over and across the New Right -Of -Way and at the intersection of the New Right - Of -Way with RAILROAD's existing right-of-way and the new intersection with AT&SF, and shall secure all additional necessary and appropriate utility hook-ups and/or tie-ins as are deemed appropriate by the engineering studies called for under Article 2. R. (a) The CITY shall cause each contractor, materialman and any other person or entity, excluding the STATE and all professional design and engineering consultants, directly performing work under contract with the CITY in connection with the construction of the New Right - Of -Way and New Facilities to warrant, for the benefit of the CITY and the RAILROAD, as a third -party beneficiary: (i) that the work, services and/or materials performed and/or provided by that person or entity are in full compliance and conformance with any and all of the CITY's plans, terms, conditions, designs, specifications and requirements applicable to said work, services and/or materials; (ii) that the work, services and/or materials performed and/or 10 8 provided by that person or entity are free from material defects; and (iii) that all construction and/or installations by that person or entity are performed in a good and workmanlike manner and are in good working order. Said warranties shall be limited in time and shall only extend for a period of two ( 2 ) years from the Conveyance Date; and the breach of said warranties shall require the said contractor, materialman and other person or entity, at his or its cost, to promptly repair and/or replace the condition resulting in the breach. (b) The CITY shall cause such consultant, contractor, materialman and any other person or entity, excluding the STATE and all professional design and engineering consultants, directly performing work under contract with the CITY in connection with the construction of the New Right -Of -Way and New Facilities to indemnify and hold the CITY and the RAILROAD, as a third -party beneficiary, harmless from and against any claim, cost, expense, damage, liability, loss or deficiency suffered or incurred by the CITY or the RAILROAD (including, without limitation, reasonable attorneys' fees and other reasonable costs and expenses incident to any suit, action or proceeding) arising out of or resulting from the breach of the warranties set forth in sub- paragraph R.(a) of this Article. (c) The CITY shall cause all professional design and engineering consultants, contractors, materialmen and any other person or entity, excluding the STATE, directly performing work under contract with the CITY in connection with the design and construction of the New Right -Of -Way and New Facilities to indemnify and hold the CITY and the RAILROAD, as a third -party beneficiary, harmless from and against any claim, cost, expense, damage, liability, loss or deficiency suffered or incurred by the CITY or the RAILROAD (including, without limitation, reasonable attorney's fees and other reasonable costs and expenses incident to any suit, action or proceeding) arising out of or resulting from any negligent act, error or omission by said professional design and engineering consultant, contractor, materialman and other person or entity and any negligent act, error or omission of their agents, employees, contractors or officers. (d) The CITY shall cause each "prime contractor", as defined in Article 5160, Vernon's Annotated Civil Statutes, under contract with the CITY in connection with the design and construction of the New Right -Of - Way and the New Facilities to provide a bond or bonds as are required under Article 5160, Vernon's Annotated Civil Statutes. 11 (e) The CITY shall cause each professional design and engineering consultant, contractor, materialman and other person or entity, excluding the STATE, directly performing work under contract with the CITY in connection with the design and construction of the New Right -Of -Way and New Facilities to obtain and have in full force for the entire term of the contract a policy or policies of insurance as reasonably required by the CITY and RAILROAD so that the CITY and RAILROAD are fully protected and indemnified from liability and claims for damages or loss to property, including the CITY's and RAILROAD's property, and the loss of use thereof, personal injury, bodily injury, including death, and such other risks as the CITY and RAILROAD shall reasonably require. The said person or entity shall obtain and maintain insurance coverage in companies satisfactory to the CITY and RAILROAD and in such amounts as are customarily required for like contracts for Workmen's Compensation, Employer's Liability, Comprehensive Primary General Liability, Comprehensive Automobile Liability, errors and omissions, and such other types and coverages as may be requested by the CITY and RAILROAD. Before commencement of any work, said entity or person shall provide the CITY with a certificate or certificates of insurance evidencing the existence of said policy or policies of insurance, and showing the CITY and the RAILROAD as additional insureds thereunder. (f) All contracts between the CITY and said professional design and engineering consultants, contractors, materialmen and other persons or entities, excluding the STATE, shall expressly identify and designate the RAILROAD as a third -party beneficiary of the aforesaid warranties and indemnities. The RAILROAD shall have the right to approve the CITY's contracts with the professional design and engineering consultants, contractors, materialmen and other persons or entities in connection with the design and construction of the New Right -Of -Way and New Facilities. All bid specifications in connection with the design and construction of the New Right -Of -Way and New Facilities shall advise the bidders that: (i) the successful bidder must satisfy the RAILROAD as to the bidder's ability to perform the work and meet all contractual obligations set forth in the contract to be executed; and (ii) the RAILROAD shall be required to approve the contract as to form prior to execution. ARTICLE 3. Conveyance. (a) Promptly after the CITY's completion and the RAILROAD's acceptance of the New Facilities, the CITY's payment to the RAILROAD of all sums agreed to herein, and satisfaction of all other conditions precedent set forth in this Agreement, the RAILROAD will convey to the STATE, by quit -claim 12 deed, the RAILROAD's right, title and interest in the Old Right - Of -Way. The CITY and the RAILROAD hereby agree, and the CITY hereby acknowledges 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 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 "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 any or all of such personalty which the RAILROAD designates it will salvage pursuant to Article 8 of this Agreement. (b) Concurrently with the RAILROAD's conveyances to the STATE, 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. (c) The date upon which the aforesaid conveyances shall take place will be identified herein as the "Conveyance Date". (d) 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. 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 Conveyance Date, 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). a. For purposes of this Agreement, the "Agreed Value of the New Right -Of -Way" shall be equal to the actual amount paid by the CITY to third party property owners 13 to acquire the parcels comprising the New Right -Of -Way, less the fair market value of any improvements removed from the New Right -Of -Way to make way for the New Facilities. The CITY will in good faith use its best efforts to acquire the New Right -Of -Way for the least amount of money. b. For purposes of this Agreement, the "Agreed Value of the Old Right -Of -Way" shall be an amount mutually agreed upon by the CITY and the RAILROAD or, if mutual agreement cannot be reached, an amount determined as follows: (i) The CITY shall cause to be retained a mutually agreed upon registered M.A.I. appraiser with at least five years experience appraising like properties (the "First Appraiser") to determine a fair market value of the highest and best use of the Old Right -Of -Way and to determine all damages and all enhancements to the remainder of the RAILROAD's property and operations. If the determination by the First Appraiser is mutually acceptable to the parties, the determination will become the "Agreed Value of the Old Right -Of -Way. (ii) If the determination by the First Appraiser is not mutually acceptable to the parties, then the CITY shall cause to be retained a second mutually agreed-upon, registered M.A.I. appraiser with at least five years experience appraising like properties (the "Second Appraiser") to determine a fair market value of the highest and best use of the Old Right -Of -Way and to determine the damages and enhancements to the remainder of the RAILROAD's property and operations. If the Second Appraiser is retained and if the determination by the Second Appraiser is mutually acceptable to the parties, the determination will become the "Agreed Value of the Old Right -Of -Way". (iii) If the determination by the Second Appraiser is not mutually acceptable to the parties, then the CITY will cause to be instituted eminent domain proceedings for a determination of damages for the Old Right -Of -Way. The determination of damages contained in a final, non -appealable order entered in the eminent domain proceeding, or at any earlier stage as mutually agreed by the parties, shall be accepted by the parties as the "Agreed Value of the Old Right -Of -Way" and, thereafter, the parties hereby agree to cause the eminent domain proceedings to be dismissed. Notwithstanding the institution of eminent domain proceedings hereunder, all other terms, conditions, covenants and agreements in this Agreement shall remain in full force and effect. The RAILROAD shall incur no costs or expenses in connection with the appraisals provided for herein, and all fees, costs and expenses (including reasonable attorneys' fees) incurred by the RAILROAD in connection with the eminent domain proceeding shall be paid by the CITY. 0 14 C. The First Appraiser and the Second Appraiser shall, in determining the fair market value of the highest and best use of the Old Right -Of -Way and in determining the damages and enhancements to the remainder of the RAILROAD's property and operations, to the extent they are in accordance with the provisions of Article 1105c Vernons Annotated Civil Statutes, take into account the following items: (i) the lease revenue and all other revenues generated by the property and the loss of that revenue as a result of the relocation; (ii) the customers, shippers and shipments that may be lost as a result of the relocation; (iii) the impact and cost of increased or decreased operating costs and expenses as a result of the relocation; and (iv) the impact and effect on the value of the remainder of the RAILROAD's remaining right-of-way east of the Old Right -Of -Way. The foregoing items are not exclusive, and the First Appraiser and Second Appraiser shall take into account any and all additional facts and circumstances which will enable the appraiser to determine the fair market value of the highest and best use of the Old Right -Of - Way and to determine all damages and all enhancements to the remainder of the RAILROAD's property and operations. ARTICLE 5. Prorations. General real estate taxes and any special assessments ("Taxes") for the year in which the Conveyance Date occurs shall be prorated as of the Conveyance Date. Taxes shall be prorated based upon 100% of the most recent ascertainable tax bill. ARTICLE 6. Relocation Assistance. The CITY in cooperation with the STATE will provide relocation assistance to the RAILROAD as may be determined to be eligible under the State of Texas Relocation Assistance Program. ARTICLE 7. CITY Recommendations. The CITY will, at its expense, and as additional consideration for the agreements of the RAILROAD set forth herein, study and make recommendations to the RAILROAD regarding the optimum location for a "piggy back" facility, a parking lot for an excursion train, and a possible maintenance facility for the RAILROAD. ARTICLE 8. RAILROAD's Salvage Rights. The RAILROAD may, at its option, salvage any of the Old Facilities. The salvage operations, if undertaken, will be performed by the RAILROAD at no cost to the CITY. Prior to undertaking the appraisals called for in Article 4 hereof, the RAILROAD will notify the CITY as to what, if any, of the Old Facilities will be salvaged. Since the salvage operations cannot take place until after the Conveyance Date, the RAILROAD will cooperate with the CITY to schedule the salvage operations so as not to unreasonably interfere with the construction of the East-West Freeway, and, barring unforeseen 15 circumstances, shall cause the salvage operation to be completed within 120 days from the Conveyance Date. ARTICLE 9. Possession. The CITY hereby agrees to deliver possession of the New Right -Of -Way to the RAILROAD on the Conveyance Date. Immediately following the Conveyance Date, the RAILROAD shall commence the relocation of its RAILROAD operations from the Old Right -Of -Way to the New Right -Of -Way, provided, however, that the RAILROAD shall be entitled to remain on the Old Right -Of -Way for the purpose of salvaging the Old Facilities as provided in Article 8, above. ARTICLE 10. Representations of the CITY. The CITY represents and warrants to the RAILROAD, its successors and assigns, the following: a. The CITY is a municipal corporation and has full power and the authority to enter into this Agreement and to perform all of the covenants, agreements and obligations of the CITY hereunder; b. The New Facilities to be conveyed pursuant to the terms of this Agreement will be constructed in good and workmanlike manner and will be in good working order on the Conveyance Date. If any of the New Facilities are not in good working order, for a period of two (2) years from the Conveyance Date, then CITY and RAILROAD shall, at no cost to the RAILROAD, jointly pursue any contractor, engineer, materialman and other person or entity who provided the non -conforming work or materials under the warranties heretofore set forth in Article 2, Paragraph R. C. 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 (a true and correct copy of which is attached hereto as Exhibit B) is in full force and effect, and has not been amended since the date thereof. The CITY further represents and warrants that neither it nor the STATE is in default of the aforesaid agreement 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. ARTICLE 11. Default. If either party shall default in the performance of any of the provisions hereof, and said default shall remain uncured for twenty (20) days after the non - defaulting party shall have mailed written notice to the defaulting party specifying the default and demanding the same to be remedied, then the non -defaulting party may, at its option, do one or both of the following: (i) suspend any further 16 0 performance by it under this agreement, (ii) proceed by appropriate court action to enforce performance by the defaulting party or to recover damages for breach of contract, or both. The foregoing remedies are not exclusive but are cumulative and are in addition to any and all other remedies the nondefaulting party may then and there have at law or in equity. If either party commences an action against the other to enforce any of the terms of this agreement or because of the breach of either party of any of the terms of this agreement, then the prevailing party after final judgment shall be paid its attorneys' fees, costs and expenses incurred in connection with the prosecution or defense of such action. ARTICLE 12. Survival of Representations and Warranties . The representations and warranties made in this Agreement by either party to the other shall be deemed to be remade on the Conveyance Date and shall be true and correct in all material respects at such time. No representation or warranty made or provided in this Agreement shall be deemed to be merged in any closing or conveyance document unless expressly otherwise agreed to in writing. Notwithstanding anything contained in this Article, all representations and warranties by the CITY shall be limited in time to two (2) years from the Conveyance Date. ARTICLE 13. Miscellaneous. (a) The RAILROAD hereby agrees to make available to the CITY, upon request of the CITY and at no expense to the RAILROAD, all records and other information deemed necessary by the CITY to assess the impact of the relocations This assessment will be made available to the RAILROAD upon request. The RAILROAD will grant permission to the CITY or its agents to enter upon the Old Right -of -Way for the purposes of surveying, testing and other similar activities, provided these activities do not unreasonably interfere with the operation of the RAILROAD. Any records or other information made available to the CITY pursuant to this sub -paragraph which is designated by the RAILROAD as confidential business information shall be maintained by the CITY in strict confidence and shall not be copied, disclosed to any other person or used in any manner except as is necessary for the CITY to assess the impact of the relocation. All such confidential information and records shall be returned to the RAILROAD on the Conveyance Date. (b) Changes in the time frame, character, cost or obligations authorized herein shall be enacted by written amendment before additional work may be performed or additional cost incurred. Any amendment to this Agreement must be executed by both parties. (c) The CITY and RAILROAD shall comply with all applicable laws and regulations, and the orders and final decrees of any court of final jurisdiction in any manner affecting the performance of this Agreement. (d) The CITY and the RAILROAD, respectively, bind themselves, their successors, assigns and legal representatives to the other /901 . 17 V Paw -a 4r Ai o � r� o s �4 M 0 q) i W n w -d Q party to this Agreement and the successors, assigns and legal representatives of such other party with respect to all covenants and provisions of this Agreement. (e) In case one or more of the provisions contained in this agreement shall for any reason be held invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceable provision thereof and this Agreement shall be construed as if.such invalid, illegal, or unenforceable provision has never been contained herein. (f) This Agreement contains the entire understanding between the parties hereto and no modifications of this Agreement shall be valid until it is agreed upon by the CITY and the RAILROAD in writing. (g) This Agreement constitutes the sole and only agreement of the parties thereto and supersedes any prior understanding or written or oral agreements between the CITY and the RAILROAD respecting the within subject matter. (h) This Agreement shall be governed, construed and enforced in accordance with the laws of the State of Texas. (i) This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, and all of such counterparts shall together constitute one agreement. (j) In addition to the acts and deeds recited herein and contemplated to be performed, executed and/or delivered by the CITY to the RAILROAD, the CITY and the RAILROAD agree to perform, execute and/or deliver or cause to be performed, executed and/or delivered on the Conveyance Date or prior to or after the Conveyance Date, as the case may be, any and all further acts, deeds and assurances as may be reasonably necessary to consummate the transactions contemplated hereby. (k) Any notice which a party may be required or may desire to give hereunder shall be deemed to have been given: (i) when delivered, if delivered personally; (ii) three days after deposit in the United States mail, certified or registered with postage prepaid; or (iii) one business day after deposit with a nationally recognized overnight courier, if addressed as follows: If to CITY: City Manager P.O. Box 2000 Lubbock, Texas 79457 or 1625 13th Street Lubbock, Texas 79401 18 If to RAILROAD: c/o Temco Corporation 100 E. Scranton Avenue Lake Bluff, Illinois 60044 Attention: Gary W. Leydig, General Counsel or to such other address as a party may have furnished to the other party, in writing. (1) All approvals required by any party in this Agreement shall not be unreasonably withheld. IN WITNESS WHEREOF, the CITY and RAILROAD have executed this Agreement on the day and year above indicated. SEAGRAVES, WHITEFACE AND CITY OF LUBBOCK LUBBOCK RAILROAD By: By :1E,/ z - . Chairman OT the Board B.C. McMin , Mayor ATTEST: By: o/ �lEey ,455/S7'gN7 Secretary ATTEST: to Boyd, Citi Sedretary AS TO CONTENT: By: Ja es E. Bertram, As is nt City Manager for evelopment Services APPROVED AS TO FORM: By: Worth Fullingim 67 ssistant City Attorney 19 - : nPl?4T PROP O$ D RAIL -ROAD - ELOCATION OIU,,TE'..* ...................... ......................... .s9 n - EXHIBIT X IT i _ p U -•7 26 a i i \ m 4 h 2641 aI D ::::bo-:•: i'7+c ,t xiii T ......... •El .:. •:::::::.. : �1 f�. ::•: •r:;•:;•:::or;•:... `. ...... 2. --f j L I, HURLWOOt% —� L. aU /WOLFFORTH e4 G 13 M�� . fr Tt f4- - _� _ _ 4 r FF 7 •- J — - _--+ 1 77. }} �r - t I i �' —J LOOP rr C4hEA --I "OLD RIGHT—OF— lAYr I ! Sneaord V� aU /WOLFFORTH e4 G 13 M�� . fr Tt f4- - _� _ _ 4 r FF 7 •- J — - _--+ 1 77. }} �r - t I i �' —J LOOP rr C4hEA --I "OLD RIGHT—OF— lAYr I ! Sneaord EXHIBIT B CITY OF LUBBOCK § ., COUNTY OF t tJBSOCK § ;�... STATE OF TEXAS , A IT - Before me, the undersigned authority, personally appeared Ranette Boyd, who, being by•me duly sworn, deposed as follows: My name is Ranette Boyd, I am of soundmind, capable of makin .. . affidavit, and personally, acquainted with the facts herein stated g this I am the custodian of the records of the City Secretary's Office for • - the City of Lubbock, Texas. known as Resolution #3527 of the aCity ed Coun�o i, one } Council of the (Cityaof Lubbock'.fro -the permanent Minutes Record. This one } m ' as City Secretary in the regular course of3business ra�dOrds is kept by me course of business of the City Secretary of the City of Lubbock, tTexhe asgorar an employee or representatives of the City Secretary of the Cit Lubbock, Texas, with knowledge of the act, event, condition Opinion, of iagnosis, recorded to make the record or to transmit Information thereof to be included in such record; and the record was made at or near the time or reasonably soon thereafter. The records attac original or exact duplicates of the original, hed hereto are the • ant ; BEFORE ME, the undersigned authority, a Notary Public in County, Texas, on this day personally appeared Ranette Boyd, knand own for said be the person whose name is subscribed to the foregoing instrument andme to acknowledged to me that she executed the same for the purposes and consideration therein expressed; 1992. GIVEN UNDER MY HAND AND SEAL OF OFFICE this 25th day of January, (seal) Notary Public, State of Texas My commission expires: 10-17-92 • January 24, 199 Item #is ti JWF:da. ' BE IT �.tSOLVED BY THE.CITY COUNCIL OFTHE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is directed to execute for and on behalf of the Cit o herby authorize ; :.;.. entitled "Agreement for the relocation of a Portion City an-.,agreem Whiteface, and Lubbock Railroad for construction o; highway facility iR the City of the Seagraves, entered into by and between the Cit a agreement acces . Lubbock..Texas," said agreement to be Oepartment of Highways and Public Transportation, attached ck and the Xherewite shall be spread upon the minutes of the Council and as spread herewith, e minutes of this Council shall constitute and be a Fart of this Res as if fully copied herein in detail. F ad upon the olut; Passed by the City Council this day of 15 ATTEST: • •L C .1NN, tAYOR ane�te Boyd, City ecretary APPROVED AS TO CONTENT: aures E.:. Manager forrOevelopmenttServices APPROVED AS TO FORM: . � t Cit A torneyin4 m, Assistant M :! STATE OF TEXAS i%u�WluLtutt „V, �.) COUNTY OF TRAVIS J'. AGREEMENT FOR THE RELQCATION OF A PORTIOK OF 1'THE SEAGRAVES, WHITEFACE, AND LUBBOCK RAILROAD • FOR CONSTRUCTION OFA CO:iTROLLED ACCESS HIGHWAY FACILITY :.. IN THE CITY OF LUBBOCK* TEXAS .This agreement is entered into byandbetween the Stat and through the State Department of Highways and public Transportation,of hereinafter called to Depart nt of H a Texas, acting by May 24 t to Minute Order Number $$793dt d y I989, and the City of Lubb k authorized official pursuant to ResolutioniNumberand 3173, datediAugusty10 e 1989, hereinafter called the City, to be effective on the date last st WITNESSETH WHEREAS, the State and City have, for the Purpose of decreas'in life and property, promotingg hazards to and encouraging the City's rderlycdevelopment, deimprovemedtitfo1ececonditians, construct a controlled access highway facility in the City necessary a art State Highway a par to g t SYstem and to be known as the East-West .Freeway for the the Purposes of this agreement; and ' WHEREAS, in LUBBOCK COUNTY U. S. Highway 82 as a part of hState ofitsStatewHighwayrSystemnd maintains WHEREAS and Property. -promoting State and City have, for the purposes of decreasing hazards life and and encouraging orderly devlopment of the improve dedmedritic conditions, improve a 6.8 mile segment of necessary to loop Z$g S41 said East-West Freeway, extending from South Interstate Hi way 27; andly and thence easterly to a crossing with WHEREAS, the recommended design and alignment o necessitate the acquisition of a portion of the right of wa relocation of related tracks f the improved facility will Relocation, of the Seagraves9eWh�tefade�iands� hereinafter way dtthe called the Railroad, which is owned and operated Railroad, hereinafter Whiteface and Lubbock Railroad Corporation; p Y the Seagraves, WHEREAS ' and the State and the City have agreed upon the respective responsibilities of each for the Relocation in furtherance of Of the East-West Freeway, and desire to enter an appropriate agreement for such purposes -pursuant to Texas Civil Statutes Article 6673 construction a, • i AGREEMENT NOW, THEREFORE, in consideraition•of the premises and of the mutual convenants and agreements of the parties hereto, to be by them res ectiv 1 kept and perfgrTed as hereinafter set forth, it is agreed as follows. y ARTICLE 1. TA'City will effect the Relocation from the present track alignment proximal to the U. S -.Highway 82 corridor between a point southwest of the crossing with Loop 289 (SW) and gust east of University Avenue, to a new alignment yet to be determined between West Loo 2fl n Reese Air Force Base, connecting with existing tracts along p and U S• Highway 82 corridor southwest of Loop 289, and with those the il. S. Highway 84 corridor northwest of Loop 289, together withasuchalong other trackage connections as may be required. ARTICLE 2. The City will perform all engineering.services necessary to research, investigate, and analyte alternative routes for the Reloction ARTICLE 3. The Cit will ' Y prepare environmental studies for the Relocation in a fora suitable for inclusion with the State's environmental studies for the East-West Freeway, and will provide for the State's f those Relocation studies. formal review of ARTICLE 4. The City will conduct appropriate public involvement Perform/prepare drainage analysis, survey, design, constructioand specifications, and right of way maps for the Relocation. Then fans, and specifications and cost estimates for the Relocation will be submitted to the State for review and comment. - ARTICLE 5. .. •• - •=.� ._. The City, in accordance with applicable Federal and State laws and pol cies governing the acquisition of real right of way for the new railroad alignment andpwi�lradustlallceliriblel utilities for the new railroad alignment necessary for the Relocation. ` ARTICLE 6. on. ns ec�onstruction ofthe relocatedprovide Railroad facilities. an for and will road facilities. - ARTICLE 7 The City will effect conveyance or cause to be conveyed to the State all of the title and interest owned by the Seagraves, Whitefa Lubbock Railroad Corporation on and along the existing RailroadCe' and from the new railroad alignment to just east of University Avenue. of way Conveyance shall be free and clear of all encumbrances. ARTICLE The State will provide relocation assistance as may be ned to be eligible under its Relocation Assistance Program, ARTICLE '9. The State will provide the lesser of ninet g 1� '8 40d.00 of the eligible costs incurred b y ('") Percent or Relocation. Reimbursement to the City stall berequested in in according the the State's standard billing procedures with reimbursements being no more than once accordance with Per month. Eligible costs" are those that the State -2-. . 4r normally recognizes in railroad adjustments undertaken by the State pursuant applicable Federal and State laws and policies. The sum of ant $10,800,000.00 represents ninety .(90%) percent of the currently estimated eligible costs:of the Relocation. In the event that actual eligible costs exceed estimated eligible costs, the State will consider amending this agreement to provide for appropriate increase in. State funding as may be feasible withift'.the State's budgetary constraints and other commitments. ARTICLE 10. Upon completion of'the respective b by the City, it will furnish the State a final audit nofall Costsnassociated With the Relocation, and such other information or records as the State may require for cost verification. In addition, the State reserves the right to audit costs billed to the State by the City to determine eligibility as provided in Article 9 of this agreement. ARTICLE 11. This agreement may be terminated by any of the following conditions: •. A. BY mutual consent of.both parties. •_ _B• BY either party, upon the failure of the other part to fulfill •'its responsibilities and obligations as set forth in this .. agreement. C. By satisfactory completion and acceptance of all services an Obligations described herein. d The termination of this agreement shall extinguish all rights, duties, obligations and liabilities of the State and the City under this agreement. If the termination is due to the failure of the City to fulfill its contractual obligations, the State will notify the City that possible breach of contract has occurred. Within thirty (30) days from the State's written notification, the City must remedy the breach as outlined by the State. In the event the City does not remedy the breach to the satisfaction of the State, the State may terminate this agreement or suspend performance thereunder and the parties shall conclude their activities relating to the Relocation and proceed to a final audit in accordance with Article 10. If the termination is due to the failure of the State to fulfill its contractual obligations, the City will notify the.'$tate that possible breach of contract has occurred. Within thirty (30) days•from the City's written notification, the State must remedy the breach as outlined -by the City. the event the State does not remedy the breach to the satisfaction of the In City, the City may terminate this agreement or suspend performance thereunder, and the parties shall conclude their activities relating to Relocation and proceed to a final audit in accordance with Article 10. the ARTICLE 12. Changes in the time frame, character, cost or obligations authorized herein shall be enacted by written amendment before additional work may be performed or additional cost incurred. Any amendment to thi agreement must be executed.by both parties. s ARTICLE 13. The City and State shall comply with all applicable laws and regulations, and the orders and final decrees of any court of final Jurisdiction in any manner affecting the performance of this agreement. ARTICLE I4. The State and;:the City, respectively. bin successors, assigns and legal respresentatives to the otherpartyagreement and. -the successors, assigns and legal representativesP o ih other party with respect to all covenants and provsisofthis 4agreement. ARTICLE Is. T'jO,the extent permitted by law t save harmless;;the State from al.l claims and'7iabilithe ieshdue toactivitiand esitself, its agents, employees;••contractors or officers performed under this of -agreement and which result from an error, omission or negligent act of s City or any person contracted or employed by the Cit the °..: permitted by law, the City shall also indemnify and saveharmless the •• ' from any and all expense, including attorney fees, which mi h ss the State: by the State In litigation or otherwise resisting said Claim Orbe incurred which might be imposed..on the State as the result of such activities of City, its agents, employees, contractors or officers. ARTICLE 16. In case one or.more of the provisions contained in s agreement shall for any reason -be held invalid, illegal or unenforceable r in and this agreement shall be construed as if such invalid,farceabTe provision or tha re unenforceable provision has never been contained herein. illegal ARTICLE 17. This agreement contains the entire understandingbetween parties hereto and no modification of this agreement shall bvalid is agreed upon by the State and the City in writing, ntii it ARTICLE 18• This agreement constitutes the sole ar, parties thereto and supersedes an d only agreement of the Prior agreements between the State and matter. theCityurespectingnthe withinesubr ora) ,sect IN TESTIMONY WHEREOF, the State and City have executed counterparts of this agreement on the dates indicated. duplicate IL - 4 - . -5_. CITY OF LU.88OCK THE STATE OF TEXAS "r Certified as being executed for the purpose and effect of By: 48-4MC�iinn.*�ayyc�r� activating and/or carrying out the orders,established policies, or work , programs heretofore approved and authorized by the State Highway Date: January 24, 1391 and Public Transportation Commission under the authority Minute - • � ' ' of Order 82513. - .. ...: .. :. ATTEST: ..: .. , ., By: • `, G y n y, P.E. Righ of ay Engineer Ran tte Boyd, City Sec to y •., ;. a APPROVED AS TO CONTENT: - ... Recommended by: Jamas Citk Ma Bertram, Ass stant ager for Development • CW1 Servic s Wi lliam M. Pope, P.E. District Engineer APPROVED AS TO FORM: ' 4orth Fu ingim istant City Attorney -5_.