HomeMy WebLinkAboutItem 11 - Fort Worth Transportation AuthorityMEMO TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: BRUNO RUMBELOW, CITY MANAGE
MEETING DATE: NOVEMBER 17, 2015
SUBJECT: AMENDMENT TO INTERLOCAL AGREEMENT WITH FWTA
RECOMMENDATION:
City Council to consider amending the Interlocal Agreement with FWTA
FUNDING SOURCE:
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BACKGROUND:
In order to ensure equity, the original Interlocal Agreement (ILA) that was approved by
the City and the Fort Worth Transportation Authority (The T) included a provision that no
other City could be served by TEX Rail at a rate less than 3/8 of a cent of sales tax or
equivalent without the permission of Grapevine.
The City of North Richland Hills has a very strong interest in pursuing the TEX Rail and
would provide a benefit to the TEX Rail project by substantially increasing ridership,
however, North Richland Hills is unable to meet the 3/8 of one cent contribution. The T,
recognizing the importance of the ridership from the North Richland Hills station, has
agreed to rebate a portion of Grapevine's sales tax contribution until North Richland Hills
meets the full 3/8 of one cent contribution.
The attached amendment modifies the original ILA between the T and the City of
Grapevine to provide an allowance for North Richland Hills to enter the TEX Rail project
in exchange for an annual rebate to the City of Grapevine until the full 3/8 of one cent
contribution is met by North Richland Hills.
Staff recommends approval.
11/12/2015 (10:55:54 AM)
FIRST AMENDMENT TO
INTERLOCAL AGREEMENT
REGARDING COMMUTER RAIL SERVICE
BY AND BETWEEN
THE FORT WORTH TRANSPORTATION AUTHORITY
AND
THE CITY OF GRAPEVINE, TEXAS,
This First Amendment to the Interlocal Agreement Regarding Commuter Rail Service
("Amendment") is made and entered into by and between the Fort Worth Transportation
Authority ("The T"), a regional political subdivision of the State of Texas, and the City of
Grapevine, Texas ("Grapevine"), also a political subdivision of the State of Texas and a home
rule municipal corporation. The T and Grapevine may collectively be referred to as "the Parties"
or individually as a "Party."
WHEREAS, the Parties entered into the Interlocal Agreement Regarding Commuter Rail
Service (therein referred to as the "Agreement") on May 30, 2007; and
WHEREAS, Section 1.1.7 of the Agreement defines the "Southwest to Northeast
Corridor" (also referred to as "the Corridor") as the rail right-of-way, trackage and commuter
line from the southwest Tarrant County area through Grapevine and to the Dallas -Fort Worth
International Airport ("Airport").
WHEREAS, Section 1.1.8 of the Agreement defines the "Project" as the acquisition,
construction, operation and maintenance of the Corridor and all rail Facilities and Stations
appurtenant thereto, including real property acquisition; and
WHEREAS, the "TEX Rail Project" is a 27 -mile commuter rail project being developed
by The T, in agreement with the Federal Transit Administration and the Federal Aviation
Administration, both of the U.S. Department of Transportation, to extend passenger rail service
Page 1
from downtown Fort Worth, through Haltom City, the City of North Richland Hills, Texas
("NRH"), and Grapevine to the northern entrance of the Airport; and
WHEREAS, the TEX Rail Project and the Project in the Agreement have effectively
become the same endeavor; and
WHEREAS, Section 2.5 of the Agreement includes a most favored nations provision in
favor of Grapevine; and
WHEREAS, The T has proposed to enter into an arrangement with NRH (the "NRH
Agreement') on terms which are not the same or similar to those in the Agreement; and
WHEREAS, The T and Grapevine wish to continue their cooperative efforts towards the
development and provision of rail service through the TEX Rail Project along the Corridor; and
WHEREAS, the Parties understand that the ridership estimated for NRH constitutes a
critical component towards achieving the necessary Federal funding for the TEX Rail Project
and that the loss of NRH ridership would put the TEX Rail Project at risk of significant delay or
termination; and
WHEREAS, to further the TEX Rail Project and in return for the compensation specified
below, Grapevine will consider approval of the NRH Agreement; and
WHEREAS, the Parties agree that the approval of this Amendment is in the mutual
interests of both Parties and is in the best interests of the health, safety, and welfare of the public.
NOW, THEREFORE, in consideration of the covenants, conditions, and provisions set
forth in this Amendment, the receipt and sufficiency of which are hereby affirmed, the Parties
agree to this Amendment as follows:
1. All matters stated hereinabove are found to be true and correct and are incorporated herein by
reference as if copied in their entirety.
Page 2
2. Section 1.2.4(e)(ii). of the Agreement is hereby amended by adding the following to the end
of Section 1.2.4(e)(ii):
Station Improvements. The Parties acknowledge and agree that the money refunded by
The T to Grapevine under Subsection 2.5.2 is in addition to, and not in lieu of, the fifty
percent contribution that The T is already obligated to make under this Subsection
1.2.4(e)(ii) for the station enhancements for the Downtown Grapevine Station.
3. Section 2.5 of the Agreement is hereby amended as follows:
Section 2.5 is re -designated as Subsection 2.5.1 and new Subsection 2.5.2., Subsection
2.5.3, and Subsection 2.5.4 are added as follows:
2.5.2. Grapevine contributes 3/8th of one cent of Grapevine's annual sales tax revenue to
The T, less specified exemptions for Grapevine's shuttle service and certain economic
development agreements. An agreement between The T and the City of North Richland
Hills, Texas ("NRH") permits NRH to pay less than 3/8th of one cent of NRH's annual
sales tax revenue to The T for a set number of years (the "NRH Agreement"). As
compensation to Grapevine for accepting the NRH Agreement, The T agrees to refund to
Grapevine, in annual payments (the "Annual Refund"), the first payment being made on
May 1, 2024, a sum of money calculated using audited data from NRH and Grapevine's
immediately previous annual fiscal year audit and applying this formula: Grapevine's
Annual Refund equals A minus (A multiplied by B) minus C where A is 3/8th's of one
cent of NRH's annual sales tax revenue; B is the product of dividing the amount of
Grapevine's shuttle service exemption plus certain of Grapevine's economic
development agreements by Grapevine's 3/8th of one cent annual sales tax revenue; and
C is NRH's actual annual contribution to The T for that given year, including, without
limitation, all contributions to The T resulting from any tax increment financing district
established by NRH. Grapevine will continue to receive this Annual Refund from The T
until NRH's annual contribution to The T equals a full 3/8th's of one cent of NRH's
annual sales tax revenue. A graphic estimate of Grapevine's Annual Refund is attached
Exhibit A, provided, however, that the Parties acknowledge that the actual Annual
Refund may differ from that estimate..
2.5.3. Grapevine shall have the right to approve rail service to other cities in the future on
varied or different terms as provided in Section 2.5 of this Agreement. In considering
such arrangements, priority will be placed on achieving the original intent of the Parties
set forth in Section 2.5, as much as reasonably possible, while furthering the interests of
the TEX Rail Project. Grapevine reserves the right to demand reasonable revisions to the
Agreement in accordance with Section 2.5 as a condition of approving any future
arrangements, including the obligation for The T to make monetary adjustments with
Grapevine to make it whole.
2.5.4 Grapevine hereby accepts and approves the NRH Agreement in the form attached
hereto as Exhibit B. This approval is wholly contingent upon the additional consideration
provided for in Subsection 2.5.2.
4. Section 4.3 of the Agreement is amended by adding the following new subsection (g):
Page 3
(g) The Parties acknowledge that the funds used for the design and construction of the
TEX Rail Project will include federal funds. Each Party agrees to comply with all
applicable federal and state requirements in the performance of its rights and obligations
under this Agreement, and to reasonably support the other Party's compliance if
requested, including, without limitation, in all bidding and other procurement activities
and regarding retention of records and access thereto, audit, and inspection rights. A
Party requesting or causing an audit or inspection of the other Party's records will
reimburse the other Party for all reasonable costs of that inspection or audit.
(h) The Parties acknowledge that Grapevine's Annual Refund will be not be subject to
the restrictions described in Subsection (g) above or any other restriction arising from or
relating to the TEX Rail Project..
5. Based on the above and foregoing, the Parties agree that these revisions shall be considered a
part of the Agreement referred to above and incorporated by reference for all purposes.
These revisions shall be subject to any and all other provisions of the Agreement, with the
exception of the parts or provisions of the Agreement, which have been revised by this
Amendment.
In witness whereof, the undersigned Parties have executed this amendment on the day of
CITY OF GRAPEVINE
BY:
2015.
BRUNO RUMBELOW, CITY MANAGER
ATTEST:
BY:
TARA BROOKS, CITY SECRETARY
APPROVED AS TO FORM:
IM
CITY ATTORNEY
Page 4
FORT WORTH TRANSPORTATION AUTHORITY
In
, PRESIDENT/ CEO
Page 5
EXHIBIT A - Estimate of Grapevine's
GRAPHIC ESTIMATE
Annual Refund from The T
4,000,000
3,500,000
3,000,000
2,500,000
2,000,000
1,500,000
1,000,000
500,000
r'O �O �O r'O �O �'O r'O �O �O r'O �O r'O �'O
%u' �Tl �'S c�6' c�� �� �9 v'O ` 7 `�� `�v' `�Tt `�cS
■ NRH's Annual Contribution to The T ■ Grapevine's Estimated Refund
THE FORT WORTH TRANSPORTATION AUTHORITY
and
THE CITY OF NORTH RICHLAND HILLS, TEXAS
INTERLOCAL AGREEMENT
REGARDING COMMUTER RAIL SERVICE
INTERLOCAL AGREEMENT
REGARDING CUmmu TER RAIL SERVICE
by and between
THE FORT WORTH TRANSPORTATION AUTHORITY
and
THE CITY OF NORTH RICHLAND HILLS, TEXAS
This Interlocal Agreement Regarding Commuter Rail Service (the "Agreement") is to
be effective as of the 46!f-" of 2415 between THE FORT WORTH
TRANSPORTATION AUTHORI'T'Y (hereinafter referred to as "The T'), a regional
transportation authority created and existing pursuant to Chapter 452 of the Texas
Transportation Code, and the CITY OF NORTH RICHLAND HILLS, TEXAS (hereinafter
referred to as '"NRH"), (NRH and The T may together be referred to as "the Parties," or
individually as a "Party")
RECITALS,
WHEREAS!
A. The T provides public transportation services in the Greater Fort Worth area,
and has developed plans for a commuter rail project known as "TEX Rail' (the "TEX Rail
Project"); and
B. The TEX Rail Project will be constructed, operated, and maintained by The T
over an approximately twenty -severs -mile corridor of rail right -of --way, trackage, and
commuter line as established by the Federal Transit Administration Record of Decision dated
September 29, 2014 and amended on April 17, 2415 (the "Corridor"), running from the T&P
Station to the Intermodal Transportation Center (the '*ITC") in downtown Fort Worth and
then to the Dallas/Fort Worth International Airport (the "DFW Airport"); and
C. A portion of the Corridor extends through the municipal limits of NRH, which
is not a member city of The'i; and
D. Pursuant to the Interlocal Cooperation Act, Chapter 791, 'Texas Government
Code, NRVI and The T may contract with one another to increase their efficiency and
effectiveness; and
E. Pursuant to Article 1182k, Texas Revised Civil Statutes, all railroad -related
activities by public agencies, separately or jointly exercised, are public and governmental
functions exercised for a public purpose and as matters of public necessity; and
F. The T and NRH have agreed that it would be mutually beneficial to the
citizens of NRH and The T service area to have commuter rail service, provided by the
TEX Rail Project, connecting downtown Fort Worth to NRH and the DFW Airport to
relieve traffic congestion, provide transportation opportunities, and aid in attaining federal
air quality standards; and
G. NRH and The T have agreed to execute a mutually beneficial interlocal
agreement (hereinafter referred to as the "ILA"), granting to NRH and The T certain rights,
and binding thein with certain responsibilities, related to commuter rail service along the
Corridor; and
H. NRH and The T desire to enter into this Agreement to define their respective
rights and responsibilities regarding the provision of commuter rail service along the
Corridor including, but not limited to, the means through which they will raise funds for the
operation and maintenance of the commuter rail service, and, if desired by The T, later
entering into additional agreement(s) further detailing and setting forth their respective rights
and obligations with regard to the operation and ongoing maintenance of such commuter rail
service, provided that any such additional agreement(s), and specifically any change to the
rights and obligations under this Agreement effected by such agreement, are wholly subject
to the mutual agreement of'the Parties; and
1. All payments required to be made under this Agreement shall be made with
current funds available to the Parties.
NOW, THEREFORE, in consideration of the covenants and agreements herein, the receipt
and sufficiency of which are hereby confirmed, the Parties agree as follows:
SEC'T'ION 1
RESPONSIBILITIES OF THE T
1.1 The TEX Rail Project, Generally.
Except as otherwise provided in this Agreement and in The T's agreements with other
cities along the Corridor and with other TEX Rail Project stakeholders, The T shall be
responsible for designing, constructing, operating, and maintaining the TEX Rail Prosect,
1.2 Design and Construction of the TEX Rail Project
1.2.1 The T will design and construct the TEX Rail Project in compliance with all
applicable state and federal laws.
1.2.2 The design and construction of the TEX Rail Project shall also comply with
the zoning, subdivision design, and construction standards adopted by NRH for paving,
drainage, landscaping, streetscape, public utilities, and structures, together with NR.M's
Comprehensive Plan, Zoning Ordinance, Historic Preservation Ordinance or other local
ordinance, but only to the extent (a) the applicable improvements are by their nature subject
thereto and (b) The T is not otherwise exempt therefrom.
13 Construction ofthe NRljl Stations,
1.3.1 For the purposes of this Agreement, "Station" or "Stations" means passenger
stations composed of a covered platform and surface parking, together with the real
property required for the construction and operation of the Station, and, if applicable,
associated driveways, bus and/or shuttle drop-off and pick-up zones, passenger drop-off
and pick-up zones, ramps, ticket kiosks, and ancillary improvements on the Corridor.
1.3.2 Subject to NRH's obligations under Section 2, The T will design and
construct two (2) Stations within HRH's municipal limits ((he "-NRH Stations") and will
use all reasonable efforts to cause the NRH Stations to be substantially complete on or
before commencement of service for the TEX Rail -Project. The NRH Stations will be
similar to other TEX Rail stations (exclusive of the T&P Station and the ITC) and
designed for passenger comfort and safety during boarding and disembarking, including
access for disabled persons, the locations and design of the NRH Stations will be subject
to NRH approval, not to be unreasonably withheld or delayed.
1.4 Ogetalipp apt Maintenance of the TEX Rail Project.
1.4.1 Subject to NRI -i's obligations under Section 2, after completion of
construction of the TEX hail Project and acceptance thereof by The T, The T will operate
the TEX Rail Project and provide for the ongoing maintenance of the Corridor, The T will
develop standards for train operations, and such operations will minimize impact on traffic
at at -grade roadway crossings within NRH's municipal limits to the greatest extent
reasonably possible. Such standards may require integration of the train signal control
system with the adjacent traffic signal network along the rail alignment.
1.4.2 'The T will establish and fund a security and safety plan for all hours of
operation, with an emphasis on Stations and within trains, including an emergency plan for
incidents that may occur at Stations, on trains, and along the Corridor.
1.4.3 The T will maintain the NRI-/ Stations and parking facilities, including the
platforms, canopies, surface parking lots and drives, landscaping, signage and lighting at
the same level as it provides at other TEX Rail stations (exclusive of the T&P Station and
the ITC).
IAA The T shall have no responsibility to provide bus or trolley -based paratransit
services complimentary to any bus or trolley service operated by NRH or any affiliated or
associated NRH entity.
SECTION 2
RESPONSIBILITIES OF NRH
2.1 The TEX Rail Project. Generally.
For and in consideration of The T's obligations set forth in this Agreement, including
those contained in Section 1 above, NRH agrees to support the TEX Rail Project as set forth
below.
2,2 Support of The T"s Design and Construction of the TEX Rail Project.
2.2.1 Subject to the License Agreement between Dallas Area Rapid Transit, NRH,
and others, dated January 1, 2015 for the purpose of constructing, installing, maintaining and
operating a hike and bike trail commonly known as the "Cotton Belt 1 -like & Bike Trial" (the
"Permitted Improvement"), the Permitted Improvement shall be maintained by NRH in such
a manner as to keep the Property (as defined below) in a good and safe condition. NRH
understands that the Permitted Improvement will require various types of continuous
maintenance (e.g. mowing, edging, tree trimming, removing litter, removing overgrown
vegetation, removing obstructing trees and shrubs, keeping drainage ditches clear of debris,
etc.) to ensure that the Cotton Belt rigbt-of-way between MP 620.67 Precinct Line Road
and MP 625.60 NE Loop 820 (the `Property") is maintained to a gond, safe and
manageable condition, In addition, NRI -t agrees to maintain the Property to not less than
the condition required of private property as per its city ordinances or codes. Prior to
performing any maintenance on the Property, NRH shalt contact The T (via email and
phone) and secure "Form C" working privileges, on each separate occurrence, to perform
the required maintenance. NRH understands that work may be performed only after written
approval (via e-mail or letter) has been given by The T and satisfactory evidence of
sufficient insurance coverage is provided by NRH. In the event The T notifies NRH of
the failure to maintain the Property or to otherwise comply with this subsection 2.2.1, and
NRH shall not have remedied the failure within thirty (30) days from the date of such
notice, The T shall have the right, but not the obligation, to remedy such failure at the
sole cost and expense of NRH. In the event NRH exercises its right to remedy NRH's
failure, NRH agrees to immediately pay to The T all costs incurred by'rhe T upon demand.
If NRH's failure to maintain the Property results in a condition that impairs the safe or
efficient operation of TEX Rail or otherwise creates an emergency, The T may remedy that
condition, at NRH's cost, after The T provides NRH only such notice as is reasonable under
the circumstances, if any.
2.12 NRI -I will provide to The T copies of all applicable city ordinances,
regulations for development, NRH's Comprehensive Plan, all applicable zoning ordinances,
and its Historic Preservation Ordinance, and any other laws, regulations codes or
ordinances with which NRH believes some portion of the design or construction of the
TEX Rail Project must comply, specifying such portion and the basis for NRH's
determination that compliance is required.
2.2.3 To the extent NRIVs review and approval is required for a portion of the
design or construction of the TEX Rail Project, NRH will cooperate with The T in
achieving the goals and schedules of the TEX Rail Project by expeditiously reviewing all
submitted documents and not unreasonably withholding or delaying its approval.
Additionally, NRH will provide timely, accurate, and complete information with respect to
its regulations, requirements, and development regulations applicable to the TEX Rail
Project. Furthermore, NRH will waive all fees typically applied to design and construction
projects, including fees for plans review, construction inspection, plat and zoning
application, water and wastewater 'impact, and sign permits.
2.2.4 NRH will apply with the Federal Railroad Administration for Quiet Zones
withiii the NRH :municipal limits with respect to the TEX Rail Project.
2.2 .5 Without limiting the foregoing, NRH will consult with The T and cooperate as
fully as possible to meet TEX Rail Project objectives as they relate to portions ofthe TEX
Rail Project within the NRI4 municipal limits.
2.3 The NRH Funds.
2.3.1 In accordance with the terms of this Section 2.3, NRH will dedicate, pledge,
and set aside the NRH Funds (as defined below) for The T's application against the
operating, maintenance, debt service, and other costs resulting from,or relating to the TEX
Rail Project. Solely for the purpose of computing the NRH Funds, the Parties acknowledge
that NRH has adopted a one percent (I%) local sales and use tax within NRH as authorized
by the Municipal Sales and Use Tax Act, Texas Tax Code. Chapter 321 (the "Sales and Use
Tax").
2.3.2 Except as modified by Section 3.1 below, NRH's remittance of the monetary
support pursuant to this Section 2.3 will be funded from any available source. NRH's
monetary support will commence as soon as practicable after the execution of this
Agreement with the contribution to The T of certain land necessary for the TEX Rail
parking at the Iron Horse Station; it will continue with the contribution of finds beginning
no later than January 1, 2423 in an amount not less than $2,000,000. The total annual
contribution from all sources will escalate at 5% per annum to 3/8 of one cent of the Sales
and Use Tax no later than January 1, 2035 and thereafter must remain at that level (all such
funds collectively constituting the "NRH Funds'), All computations of the NRH Funds
will be based on the amounts reported by the Texas Comptroller of Public Accounts. The
NRH Funds will be payable to The T monthly. The monthly contribution will be based on
an agreed-upon contribution schedule or 3/8 of one cent ofNRH's prior ►nonth allocation of
Sales and Use Tax. The Parties will mutually agree on the level of feeder or circulator bus
service supporting the NRH Stations,
2.4 Other Responsibilities of NRI -1.
2.4.1 The Parties agree that a feeder or circulator bus system is necessary to support
the TEX Rail ridership to and from the NRH Stations. NRH will be solely responsible to
provide such bus or trolley -based feeder or circulator service adequate to support TEX Rail
ridership as agreed by the Parties. Once the NRH Funds reach the equivalent of 3/8 of one
cent of the Sales and Use Tax, NRH may deduct one half (1/2) of the amount of funds
necessary to provide associated and ancillary bus or trolley service operated by NRH or any
affiliated or associated NRH entity that complies with this subsection. The deduction for
feeder or circulator bus service may not exceed ten percent (101%) of the NRH funds. Until
such time as NRH Funds reach the equivalent of 318 of one cent of the Sales and Use Tax,
NRH has sole authority for determining the level of feeder bus service so long as NRH is
not seeking reimbursement from those NRH Funds.
SECTION 3
BUDGET AND FUNDING
3.1 Regional Rail Initiative Tax.
The Parties acknowledge that a regional rail initiative may be farmed and that a sales
tax may be levied in the future within Tarrant County or the surrounding region, the proceeds
of which being dedicated to providing passenger rail service (the "Regional Rail Tax"), if
NRH is subject to a Regional Rail Tax that equals or exceeds the equivalent of 318 of one
cent of the Sales and Use Tax, which is the maximutn and escalated amount of the NRH
Funds, then for so long as that Regional Rail Tax is remitted to The T, NRIVS obligations to
transfer the NRH Funds to The T are suspended. If NRH is subject to a Regional Rail Tax
less than the equivalent of 3/8 of one cent of the Sales and Use Tax, then NRH shall
transfer to The T the difference between the Regional Rail Tax and 3/8 of one cent of Sales
and Use Tax in accordance with Section 2.3 above.
SECTION 4
TERM, TERMINATION, AND DISPUTE RESOLUTION
4.1 Term.
This Agreement shall be in full fbrce and effect for an initial term of forty (40)
years, unless otherwise earlier terminated as provided for herein. Thereafter, the term of
this Agreement will be automatically renewed for two (2) successive terms of fifteen (15)
years each (each, a "Renewal Term"), unless either Party gives written notice of its election
to terminate this Agreement no less than one hundred eighty (180) days prior to the
expiration of the Initial Term, or current Renewal Tenn, as the case may be. Any reference to
"Tenn" as used in this Agreement shall include the Initial Term and the Renewal Terms.
4.2 Termination.
Except as otherwise provided for herein, this Agreement may be terminated only
upon the joint decision of the Parties and as evidenced by a written instrument executed in
like manner as this Agreement.
4.3 Dispute Resolution.
The Parties hereby agree to make a good faith effort to resolve any disagreement,
failure to agree, or other dispute between The T and NRH arising out of or in connection with
this Agreement, including with respect to the interpretation, construction, breach,
performance, validity, or termination hereof (a `=Dispute") through informal discussions
between the Parties. In the event that a Dispute cannot be resolved through informal
discussions, prior to initiating an alternative rernedy either Party must submit a written
complaint to the individual set forth in this Agreement for purposes of notice that sets forth
with specificity the basis of the complaint and a proposed resolution to- the Dispute. The Party
receiving the complaint shall respond in writing to such written complaint within thirty (30)
days, by accepting the proposed resolution, rejecting the proposed resolution, or by proposing
an alternative resolution to the Dispute. Within twenty (20) days of receipt of the Party's
written response, if such response is a rejection or a counterproposal, the other Party must
either accept the counterproposal or request that the Dispute be reconsidered and mediated by
an independent third party that is mutually agreed upon by the Parties. If the Dispute is
mediated, both Parties shall participate in good faith and attempt to resolve the Dispute to
their mutual satisfaction. Each Party shall be responsible for its own costs incurred in
connection with such mediation, but shall also be responsible for one-half of all of the out-of-
pocket costs of and incurred by such independent third party in connection with such
mediation. In the event that the Dispute is unable to be resolved through mediation, both
Parties shall have full legal remedies allowed by law.
Failure by either Party to raise a Dispute through this process shall not constitute
waiver or acceptance of an alleged violation of this Agreement. The provisions of this section
are strictly limited in scope to serving as a prerequisite to the enforcement of remedies
under this Agreement.
SECTION 5
MISCELLANEOUS PROVISIONS
5.1 Rel2resentatives.
The T's President/CEO, or his or her designee(s), shall be the principal representative
of The T in all matters relating to this Agreement. NRI -I's City Manager, or his or her
designee(s), shall be the principal representative of NRH in all matters relating to this
Agreement. HRH's representative shall have access to the records pertaining to the TEX
Rail Project. The T hereby agrees to provide periodic and timely communications to
NRH's representative with regard to any material aspect of the TEX Rail Project,
5.2 'Notices.
Notices sent pursuant to this Agreement will be deemed to have been delivered five
(5) days after having been placed in the United States mail, first class mail, prepaid, and
addressed as follows:
To The T:
To NRH:
Paul J Ballard
President/Chief Executive Officer
Fort Worth Transportation Authority
1600 F. Lancaster Ave.
Fort Worth, Texas 76102
Marg Hindman
City Manager
City of North Richland Hills
7301 NE Loop 820
North Richland Hills, Texas 76180
5.3 Force Majeure,
Each Party will be excused from the performance of any of its obligations hereunder,
except obligations involving the payment of money to the other Party, during the time when
such nonperformance is caused by fire, earthquake, flood, explosion, wreck, casualty, labor
strike, unavoidable accident, riot, insurrection, civil disturbance, act of public enemy,
embargo, war, extreme and violent weather conditions, inability to obtain labor, materials or
supplies, or any other similar cause beyond the nonperforming Party's reasonable control,
provided the nonperforming Party gives notice to the other Party within ten (10) days
following the nonperforming Party's knowledge of such event, setting forth the facts giving
rise to such nonperformance and the number of days of delay expected to be caused thereby.
5.4 No Third -Party Rights,
NRH AND THE T AGREE THAT NEITHER IS THE AGENT, SERVANT,
OFFICER, AND/OR EMPLOYEE OF THE OTHER AND, THAT NOTHING IN THIS
AGREEMENT CREATES, GRANT'S, OR ASSIGNS RIGHTS OR RESPONSIBILITIES
TO ACT AS A JOINT VENTURER, PARTNERSHIP, OR AGENT TO THE OTHER, OR
CREATES A JOINT ENTERPRISE,
NRI•-! AGREES TO BE RESPONSIBLE FOR ANY LIABILITY OR DAMAGES
NRI -I MAY SUFFER AS A RESULT OF CLAIMS, DEMANDS, COSTS, OR
JUDGMENTS, INCLUDING WITHOUT LIMITATION REASONABLE ATTORNEYS'
FEES, AGAINST NRH, ARISING► OUT OF ITS PERFORMANCE OF THIS
AGREEMENT, OR ARISING FROM ANY ACCIDENT, INJURY, OR DAMAGE.,
WHATSOEVER, TO ANY PERSON OR PERSONS, OR TO THE PROPERTY OF ANY
PERSON(S), CORPORATION(S), OR OTHER ENTITIES OCCURRING DURING THE
PERFORMANCE OF THIS AGREEMENT AND CAUSED BY THE SOLE
NEGLIGENCE OF NRH, ITS AGENTS, SERVANT'S, OFFICERS, AND/OR
EMPLOYEES.
THE T AGREES TO BE RESPONSIBLE FOR ANY LIABILITY OR DAMAGES
THAT THE T MAY SUFFER AS A RESULT OF CLAIMS, DEMANDS, COSTS, OR
JUDGMENTS, INCLUDING WITHOUT LIMITATION REASONABLE ATTORNEYS'
FEES, AGAINST THE T, ARISING OUT OF ITS PERFORMANCE OF THIS
AGREEMENT, OR ARISING FROM ANY ACCIDENT, INJURY, OR DAMAGE,
WHATSOEVER, TO ANY PERSON OR PERSONS, OR TO THE PROPERTY OF ANY
PERSON(S), CORPORATION(S), OR OTHER ENTITIES OCCURRING DURING THE
PERFORMANCE OF THIS AGREEMENT AND CAUSED BY THE SOLE
NEGLIGENCE OF THE T, ITS AGEN'T'S, SERVANTS, OFFICERS AND/OR
EMPLOYEES.
THE ABOVE NOTWITHSTANDING, NOTHING IN THIS AGREEMENT SHALL
BE CONSTRUED AS A WAIVER OF ANY GOVERNMENTAL IMMUNITY
AVAILABLE TO THE PARTIES UNDER. TEXAS LAW, NOR A WAIVER OF ANY
DEFENSES OF THE PARTIES UNDER TEXAS LAW.
Except as expressly set forth herein, the representations, warranties, terms, and
provisions of this Agreement are for the exclusive benefit of the Parties hereto and no other
person or entity will have any right or claim against either Party by reason of any of these
terms and provisions or be entitled to enforce those terms and provisions against either
Party.
5.5 Severability.
If any part, term or provision of this Agreement is judicially determined to be
illegal or in conflict with any applicable law, the validity of the remaining portions or
provisions will not be affected., and the rights and obligations of the Parties will be
construed and enforced as if this Agreement did not contain the particular part, term or
provision held to be invalid or illegal.
5.6 Entire Agreement.
This Agreement, including any Exhibit hereto, is intended as the complete
integration of all understandings between the Parties. No prior or contemporaneous
addition, deletion, or other amendment will have any force or effect unless embodied in
writing. No subsequent novation, renewal, addition, deletion, or other amendment hereto will
have any force or effect unless embodied in a written amendment or other agreement executed
by the authorized representatives of the Parties,
5.7 Captions and Headings.
The captions and headings set forth herein are for convenience of reference only and
will not be construed so as to define or limit the terms and provisions hereof.
5.8 Assignmeq
All the contents of this Agreement shall inure to the benefit of and shall be
binding upon the Party's successors and assigns, except that no Party may assign any of its
rights or obligations hereunder without the prior written consent of the other Party, which
consent will not be unreasonably withheld or delayed.
Texas.
5.9 Applicable Law.
This Agreement shall be governed by and interpreted under the laws of the State of
5, l O Venue,
Venue as to any Dispute, claim, or litigation with regard to this Agreement shall lis in
Tarrant County, Texas.
5.11 Agreement Contingency.
This Agreement is contingent, and will become effective only, upon approval by both
the Board of Directors of The T and the NRH City Council.
5.12 NRH h!ot a Member City of The T.
This Agreement contemplates the provision of commuter rail service only, and no other
transportation services. NRH hereby acknowledges that it is not a member of The T or any
other project or operations of The T.
[Signature Page Follows]
EXECUTED this day of i. -
N 2015.
7
FORT WORTH TRANSPORTATION CITY OF NORTH RIC14LAND HILLS,
AUTHORITY
Irl
By
mypilard Mark Hindman
PresideiitChjef Executive Officer City Manager
N -I]
A
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