HomeMy WebLinkAboutItem 10 - The T AgreementITEM # /0
MEMO TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: BRUNO RUMBELOW, CITY MANAGER
MEETING DATE: MAY 15, 2007
SUBJECT: THE T AGREEMENT
Attached is a "marked up" version of The T Agreement for your review prior to Tuesday
night's scheduled approval of the agreement so that you can clearly see the changes
(based upon Council and The T Board input) since the May 1, 2007 workshop. A clean
copy of the agreement will be provided on Tuesday night.
I have also attached the May 1St Major Points memo. While a few of the items have
changed, the majority have not so this remains good summary information.
Please let me know if you have any questions.
May 10, 2007 (1:31 PM)
'GT E R A S
MEMORANDUM CITY OF GRAPEVINE TEXAS
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: BRUNO RUMBELOW, CITY MANAGER /S
DATE: MAY 1, 2007
SUBJECT: MAJOR POINTS OF THE T INTERLOCAL AGREEMENT
The following are the major deal points in the agreement that will be reviewed this
evening with the Council and the 4B Board.
The attorneys are continuing to work together on finalizing this agreement. We look
forward to your input tonight and should changes be necessary, we will work to
accomplish them prior to the May 15t" meeting.
Section 1.
1.1.8 Project - establishes that a part of the project is an inter -city trolley service. The
project will pay for some level of trolley service between the major destination areas in
Grapevine in addition to commuter rail service.
1.1.9 Sales Tax - defines that the sales tax to be paid in this agreement is the 3/8th of
a cent in 4B sales tax revenue. Further, that funds attributable to a Chapter 380 grant
(the Henry Schein deal) are exempt.
1.2.4 a -e Exhibits - are being completed by The T staff this week and will be included
in the packet on May 15, 2007.
1.2.4 a -I Design Standards - all city standards/ordinances are to be followed in the
construction of the stations in Grapevine.
Section 2.
2.1 Budget - Updated quarterly and cannot be changed without the mutual agreement
of the parties. Further, the City's TRE and NETS payments will be made from this
budget.
2.2.1 Grapevine Funds - Grapevine will receive and transfer, within 30 days of receipt,
of the funds to The T. The T will provide a quarterly accounting of the Project Funds
and the Grapevine Funds. We reserve the right to audit the financial records at any
time.
2.2.2 Schedule - this exhibit is being prepared by The T staff. Failure on the part of the
T to achieve the project schedule may result in mediation and if that effort is
unsuccessful in resolving the dispute, then Grapevine may elect to withold or suspend
the transfer of funds until the schedule is recovered.
The T will provide quarterly reports and (upon request) give progress update
presentations to the City Council.
2.3 and 2.4 Other Resouces - a reflection of the other financial partners in the
commuter rail project.
2.5 Rail Service to other Cities - establishes that for other cities along the corridor to
receive service, they will have to dedicate 3/8th of a cent of their sales tax or the cash
equivalent thereof.
2.6 Regional Rail Initiative - recognizes that if the voters approve a sales tax measure
in the future for mass transit and if Grapevine is subject to the tax (and that the tax is
greater than 3/8th of a cent) that Grapevine's 4B sales tax will cease. If the amount in
this initiative is lower (than the 3/8th cent) Grapevine will be required (along with the
other participating cities along the route) to make up the difference with our 4B funding.
Section 3. Use of Project Funds
3.1 Spending of Funds - all funds must be spent according to the project budget.
3.2 Eligible expenditures - a -k detail the eligible expenditure of project funds.
3.3.1 Responsiblities after construction — The T is responsible for operation and
maintenance along the corridor and stations. Grapevine will maintain added features
over and above the standard baseline station.
3.3.4 Service Levels - assures seven day a week service plus expanded service
during special events (such as Main Street Days and Grapefest) as requested by
Grapevine.
4.1 c Crossings - in Grapevine are to be constructed and permitted as Quiet Zone
designated. All at -grade crossings will be maintained.
4.1 d Project Advisory Committees — one or more committees are to be formed for
this project, a policy advisory committee that is made up of Governing Body members
(or their designee) and a technical advisory committee made up of a staff, designated
by the City Manager, that oversee the techncial development of the project.
4.1 f Grapevine Stations - station location and designs subject to Grapevine approval
and, where applicable, DFW approval.
4.1 j Security - establish and fund a security and safety plan as well as an emergency
plan for incidents that may occur at stations or along the corridor.
4.1 1 Strategic Plan - strategic plans are required no less than every five years to
assess service capacity, ridership projections, station usage and needs and other
factors that may require changes to the servies being provided in this agreement.
4.2 a Station Funding - above the baseline cost of a station, Grapevine will fund fifty
percent of the upgrade to the Grapevine Main Street Station.
4.2 f Airport Station outside the gate - provides that no additional Grapevine funds
(outside of the project funds; which include Grapevine's 3/8 cent contributions) for DFW
stations.
4.3 a Airport Station inside the gate - DFW will fund the construction located inside
the airport terminal complex.
4.3 f Grapevine Vintage Railroad - will be preserved and protected in this corridor so
that operations may continue once commuter rail is operational.
Section 5. Term
5.1 Term - this provision (35 years) is set by the requirements to receive New Starts
funding and anticipates a five-year term to before the project is fully operational.
Further there are renewal terms for two successive 15 -year terms.
5.3 Dispute Resolution - standard dispute resolution language is included in this
agreement as a reasonable guide for resolution of disputes between the City and The T.
INTERLOCAL AGREEMENT
REGARDING COMMUTER RAIL SERVICE
by and between
THE FORT WORTH TRANSPORTATION AUTHORITY
and
THE CITY OF GRAPEVINE, TEXAS
This Interlocal Agreement Regarding Commuter Rail Service (the "Agreement") is made
this day of , 2007, between THE FORT WORTH TRANSPORTATION
AUTHORITY (hereinafter referred to as "The T"), a regional transportation authority created
and existing pursuant to Chapter 452 of The Texas Government Code, and the CITY OF
GRAPEVINE, TEXAS (hereinafter referred to as "Grapevine"). (Grapevine and The T may
hereinafter together be referred to as "the Parties.")
RECITALS:
WHEREAS:
A. The T provides public transportation services in the Greater Fort Worth area; and
B. 'Pursuant to the Interlocal Cooperation Act, Chapter 791, Texas Government
Code, Grapevine and The T may exercise jointly the power to provide governmental services for
the public health, safety and welfare; and
C. 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
D. The T and Grapevine have agreed that it would be mutually beneficial to the
citizens of Grapevine and The T service area to have commuter rail service connecting the
southwest area of Fort Worth to Grapevine and the Dallas -Fort Worth International Airport to
relieve traffic congestion, provide transportation opportunities and aid in attaining federal air
quality standards; and
E. Grapevine and The T have agreed to execute a mutually beneficial Interlocal
Cooperative Agreement (hereinafter referred to as the "ILA"), granting Grapevine and The T
certain rights and responsibilities related to commuter rail service along the Southwest -to -
Northeast Corridor (hereinafter referred to as the "Corridor"); and
F. Grapevine and The T desire to enter into this ILA 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 capital and operating funds
for the development and operation of the commuter rail service and operational standards
and service levels, and entering into an Operating and Maintenance Agreement setting forth their
respective rights and obligations with regard to the operation and ongoing maintenance of such
commuter rail service; and
G. All expenditures 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:
SECTION 1
INTERPRETATION
1.1 Defined Terms.
As used in this Agreement, the following terms will have the meanings respectively
assigned to them below, which meanings will be applicable equally to the singular and the plural
forms of The Terms so defined:
1.1.1 "Agreement" means this Interlocal Agreement Regarding Commuter Rail
Service, as amended, supplemented or restated from time to time.
1.1.2 "County" means Tarrant County, Texas.
1.1.3 "Grapevine Funds" refers to 3/8 of one cent from Grapevine's 4B
Economic Development Corporation Sales Tax revenue as collected and other funds
dedicated or contributed by Grapevine to the Project at Grapevine's sole discretion.
includinganv interest accrued thereon3.
1.1.4 "Facilities" means all stations, station parking facilities, trackage right of
way, and structures constructed, relocated, improved or otherwise modified pursuant to
the terms of this Agreement, including signals and communication facilities.
1.1.5 "Airport" means Dallas -Fort Worth International Airport.
1.1.6 "Dispute" means any disagreement, failure to agree or other dispute
between The T and Grapevine arising out of or in connection with this Agreement,
including with respect to the interpretation, construction, breach, performance, validity or
termination hereof.
1.1.7 "Southwest to Northeast Corridor" (also referred to as "the Corridor")
means the rail right-of-way, trackage and commuter line from the southwest Tarrant
County area through Grapevine and to the Airport. It is anticipated that the Corridor and
the Locally Preferred Alternative (LPA) will be the existing route Cotton Belt Line
2
through the T&P Station and Intermodal Transportation Center ("ITC"), as shown and
described on the attached Exhibit "C".
1.1.8 "Project" means the acquisition, construction, operation and maintenance
of the Corridor and all rail Facilities and Stations appurtenant thereto. Prejeet shail also
inel114- .`s �C ititf?d-a u 2 ;i 5+ru.ii:�pvi g+ut +; ", ,.lude,� b + + limited +
�
i"+o,- eity t1re ley seryiees 6 including real property acauisition.7
1.1.9 "Sales Tax" refers to 3/8 of one cent from Grapevine's 4B Economic
Development Corporation Sales Tax revenue as collected and dedicated or contributed by
Grapevine to the Project, including any interest accrued thereon$. The Sales Tax shall not
include any sales tax revenue generated by or from and/or attributable to a Chapter 380
Economic Development Incentive Agreement. The Sales Tax shall further not include the
one half of the amount of funds necessary to provide9 associated and ancillary
nr-
will be dedicated to such intra -city trolley services that will be deducted from the Sales
Tax.1 i
1.1.10 "Station" or "Stations" means Passenger stations, including but not limited
to, real property for Station, 12associateddriveways, parking areas and facilities, bus
and/or shuttle drop off and pick up zones, passenger drop off and pick up zones, covered
platform, ramps , ticket kiosks, narking areas. 13andancillary improvements on the
Corridor.
1.2 Construction and Interpretation of this Agreement.
In this Agreement:
1.2.1 the recitals and headings to Sections are for convenience only and will not
affect the interpretation of this Agreement;
1.2.2 words importing the singular include the plural and vice versa, and the
words importing gender include all genders;
1.2.3 the words "include" and "including" are to be construed as meaning
"including without limitation;"
1.2.4. all exhibits attached hereto and listed as follows:
(a) Preliminary Project Summary
(b) Preliminary Project Cost Estimate Bud et 14*
(c) Preliminary Corridor Map*
(d) Project Schedule* [Grapevine requests that at least an initial
schedule be prepared and included at time of anproval]1s
(e) Performance Standards*; these should include the following items:
i. Design and Construction Standards — All applicable
portions of the Project must conform to the zoning,
subdivision design and construction standards adopted by
the City of Grapevine for paving, drainage, landscaping,
streetscape, public utilities, and structures; and
ii.
Utility u elee,atio s a a 16Station" Improvements. The T
will identify a base estimated amount for funding for each
station and associated parking facility (if any). including
real property acquisition 18 (the "standard station baseline");
the standard station baseline shall be consistent with the
standard existing stations, exclusive of the ITC: 19amounts
exceeding the standard station baseline for station
enhancements required by Grapevine for the Downtown
Grapevine Station ° will be split fifty percent each between
the T and Grapevine. Grapevine's additional funding shall
come from funds other than the Sales Tax.
The City of Grapevine will provide to The T copies of all
applicable city ordinances, regulations for development of the
Project and Facilities, Grapevine's Comprehensive Plan, all
applicable zoning ordinances, and its Historic Preservation
Ordinance, and any other laws, regulations codes or ordinances to
which this Project would be required to comply.
(fl Operating and Maintenance Agreement.*
* The parties acknowledge that these items marked with an asterisk(*)
may not yet exist, may or may not be possible to complete prior to the
time of the execution of the Agreement, and as such any are preliminary
and will be adjusted over time and finalized at a later date subject to the
mutual agreement of the Parties. The Operatic and Maintenance
Agreement shall provide as�=s relative to the Downtown Grapevine
Station. 21
The Downtown Grapevine Station shall be owned by Grapevine.
Grapevine shall assume sole authority for the management of the
Station improvements including the structured parking facility. Any
revenue generated by the structured_ parking facility shall accrue to
Grapevine. 22
1.2.5. Subject to section 1.2.4 (f), above, all matters stated hereinabove are found
to be true and correct and are incorporated herein by reference as if copied in their
entirety.
SECTION 2
BUDGET AND FUNDING
2.1 Project Budget
The Project Budget also referred to as the "Preluninary Proiect Cost Estimate"123,
which is included herewith as Exhibit B, shall detail all scheduled Project expenditures. The
Project Budget shall also detail all scheduled_24and available sources of funding for the Project.
The Project Budget shall be updated on an as needed basis, but not less than quarterly, upon the
mutual agreement of the parties hereto. The Project Budget will also include Grapevine's annual
costs for its participation in North East Transportation Service ("NETS"), along with
Grapevine's annual contribution for the Trinity Railway Express ("TRE"). Grapevine's NETS,25
and TRE costs shall be funded with the Grapevine Funds. The Project Budget is subiect to the
mutual agreement of grapevine and The T26.
2.2 Grapevine Funds.
2.2.1 Grapevine will dedicate and set aside the Sales Tax revenue for the
Project as Grapevine Funds from and after the date Grapevine begins to receive funds
from Grapevine's 4B sales tax. Grapevine Funds will be transferred to The T within 30
days of receipt of funds from the State of Texas; no request from the T will be required.
The T will send at least quarterly an accounting of the Project Funds and Grapevine
Funds. Grapevine reserves the right to audit or inspect The T's Project records upon
request during normal business hours.
2.2.2 The Project Schedule is attached hereto as Exhibit D. The Project
Schedule includes a schedule of benchmarks and deliverables which serve as the basis of
Grapevine's participation in the Agreement. In the event of any failure by The T to
substantially achieve the provisions of the Project Schedule, and following the
completion of Dispute Resolution pursuant to Section 5.3 herein, Grapevine may
withhold or suspend funding until such time as the Schedule is recovered. The T will
provide quarterly progess reports to Grapevine and progress update presentations to the
Grapevine City Council upon request.
2.3 The T Funds and Resources.
The T will dedicate such funds necessary to meet its obligations for use in connection
with the Project, consistent with the Project Budget. This Agreement is subject to the future
availability of funds, pursuant to Section 452.108, Texas Transportation Code.
2.4 Application for Other Funds.
The T will apply for and pursue the following additional potential sources for funding the
Project, which funds shall be reflected in the Project Budget:
(a) The County
(b) North Central Texas Council of Governments ("COG")
(c) The Texas Mobility Fund
(d) Federal funding sources
(e) Other funds
2.5 Rail Service to Other Cities.
The parties contemplate that cities through which the Southwest to Northeast Corridor
passes may seek passenger rail service thereon from The T. Pursuant to this Agreement,
Grapevine is dedicating significant funds to commence passenger rail service on the Corridor.
The parties recognize that it would be inequitable to permit other cities to receive service on the
Corridor without bearing a like portion of the costs associated with commencing passenger rail
service on the Corridor. The T shall not authorize, permit, or provide commuter rail service to
any other entity on terms or conditions more favorable or less burdensome to such entity than
those applied to Grapevine pursuant to this Agreement, in order that no entity be granted an
unfair competitive advantage over Grapevine, and to provide all parties equal protection under
the law. Accordingly, other cities may be granted access to the Corridor only to the extent that
such cities contribute to the Project on the same or similar terms as Grapevine, by dedicating 3/8
of one cent of sales tax revenue, or the cash equivalent thereof as adjusted, to The T.
2.6 Regional Rail Initiative Tax
The parties recognize a regional rail initiative may be formed and that a sales tax
may be levied in the future within the County or the surrounding region, the proceeds of which
may be dedicated to providing passenger rail service. Should such a tax be levied and Grapevine
is subject to the tax, and the regional rail tax is equal to or exceeds 3/8 of a cent, Grapevine's
dedication of Sales Tax, as referred to in paragraph 2.2.1 hereinabove, will cease. If a Regional
Rail Initiative is passed and the amount for individual cities is less than 3/8 cent sales tax to join
the Regional Rail Initiative, then cities along this Corridor will be required to provide the
difference between the amount needed for the Regional Rail Initiative and the equivalent of 3/8
cent sales tax for their cities in order to have a station on this corridor.
SECTION 3
USE OF PROJECT FUNDS
3.1 Project Funds
All funds shall be spent in full accordance with the Project Budget. All costs
must be reasonable and consistent with policies and procedures mandated by State or Federal
law, and the T's normal operating procedures. All expenditures must be accorded consistent
treatment and determined in accordance with generally accepted accounting principles
("GAAP"). Grapevine reserves the right to audit all budgets, work schedules and accounts of the
Project at Grapevine's sole expense.
3.2 Anticipated Planning, Engineering and Construction Work.
Project funds may be expended, for the following, consistent with the Project
Budget:
(a) performing engineering, surveying, and design review related to the
Project;
(b) performing any studies, analyses, surveys and review required to obtain
any federal, state or other governmental approvals for the Project;
(c) performing any studies, analyses, surveys and review required to obtain
any federal, state or other governmental funding for the Project;
(d) environmental planning;
(e) labor, materials, tools and equipment required for the Project;
(fl acquisition of real property required for the Project (to the extent eminent
domain becomes necessary for any real property in Grapevine, Grapevine
shall exercise such right and shall be credited for all such costs, including
but not limited to land costs, attorney fees, and valuation experts which
shall be paid from the Sales Tax 27):
(g) construction of rail Facilities related to the Project;
(h) construction of Stations for the Project;
(i) changing or modifying Facilities as required to complete the Project;
0) procurement of rolling stock and related equipment.
(k) performing any and all work which The T deems necessary for the
approval, funding, construction and completion of the Project, including,
without limitation, improvement to the TRE Equipment Maintenance
Facility to accommodate maintenance of rolling stock and Maintenance of
Way (MOW) equipment.
3.3 Responsibilities after Construction.
3.3.1 After completion of construction of the Project and acceptance thereof by
The T, The T shall be responsible for the operation and maintenance of the Corridor and
Stations. The28Except for the Downtown _ Gra evine Station, the 29 T will maintain the
stag-eBs3OStations31, per 1.2.4 (e), above, and parking facilities including the platforms,
canopies, surface parking lots and drives, landscaping, signage and lighting. Grapevine
will maintain a V 11LV fae-111{.,
lity , ,
lad32t
retail sh"s and ethef feawFes ovef and above the standard baseline
w t ,,!,n Grvine Station utilizing funds other than the Sales Tax33.
3.3.2 After completion of construction of the Project, and acceptance thereof by
The T, Grapevine will be responsible for the continual partial funding of the Project's
operation through the Sales Tax until this Agreement expires or is terminated as
otherwise provided for herein.
3.3.3 Prior to completion of construction of the Project, the parties will enter
into operating and maintenance agreements with regard to the operation of the Corridor
for commuter rail service as provided in Section 1.2.4 (e) and (f), above, which will
delineate the rights and obligations of the parties to this Agreement, as well as of any
additional participating cities or governmental entities. Such operating and maintenance
agreement is wholly subject to the mutual agreement of the parties.
3.3.4 The Parties anticipate the initial operating level of service will be
substantially similar to the existing TRE level of service plus limited Sunday service.
Additional trains will be made available to and provided in order to serve special
Grapevine events and festivals upon the request of Grapevine.
SECTION 4
RESPONSIBILITIES OF THE PARTIES
4.1 Responsibilities of the T
The T shall be responsible to:
(a) Comply with all applicable state and federal laws, ordinances, and
regulations for development of the Project and Facilities. Such
improvements will provide for orderly development of the Project, which
shall to the extent The T is not exempt therefrom, also meet Grapevine's
Comprehensive Plan, Zoning Ordinance, Historic Preservation Ordinance
or other local ordinance.
(b) Use Grapevine's standard specifications, details, and standards in its
designs and construction plans for all improvements in the city limits of
Grapevine, and in fe&=danec34accordance 35 with Subsection 1.2.4(e),
above.
(c) The T will contract for an Environmental Impact Study ("EIS") that will
include preparation and submittal for review by Grapevine of a Traffic
Impact Analysis ("TIA") for existing and proposed Stations and road
crossings of the rail line by streets at -grade; establishing a requirement
that such at -grade crossing to be maintained at a level of service ("LOS")
equal to B or better; definition of any required improvements; and
addressing integration of the nearby local traffic signal network into the
train signal system at grade crossings when signalized intersections are
within 500 feet of the rail line. Subject to Subsection 4.2(g), below, at
grade crossings shall be constructed and permitted to be Quiet Zone
designated, and at grade crossings shall be maintained. The T shall be
responsible for preparing any Engineering Study necessary to qualify for
Quiet Zone Status.
(d) Establish a Project Advisory Committee, consisting of Grapevine and Fort
Worth representatives, Grapevine City Council and staff, and The T Board
members and staff, to provide input on transportation and development
issues associated with the Project.
(e) Establish procedures for maintenance of traffic, continuing access to
adjacent properties, and uninterrupted utility operations during
construction.
(fl Grapevine Stations — The T will provide a minimum of two (2) stations, in
accordance with Subsection 1.2.4(e) above, which are designed for
passenger comfort and safety during boarding and disembarking,
including access for disabled persons. The station locations and design
will be subject to Grapevine approval, and where applicable the approval
of D -FW International Airport. Such Stations shall include enhancements
as may be requested by Grapevine, including but not limited to associated
meeting room space, premium architectural features, structured narking.
36andmixed use spaces, also subject to Subsection 1.2.4(e), above.
(g) Provide architectural amenities, including but not limited to canopies,
shelters, structures, benches, signage, landscaping, public art, and
mitigation measures to address undesirable sound, vibration, and visual
intrusion at stations and along the Corridor within the Grapevine city
limits, all in accordance wits 7subiect t038 Subsection 1.2.4(e) and
39above.
(h) Provide for ongoing maintenance of the Corridor.
(i) Develop operational standards for train operations, and such operations
will minimize impact on traffic at at -grade roadway crossings. Such
standards may require integration of the train signal control system with
the adjacent traffic signal network along the rail alignment.
(j) Establish and fund a security and safety plan for all hours of operation
with emphasis on Stations and within trains, including an emergency plan
for incidents that may occur at Stations, on trains, and along the Corridor.
(k) Prepare and update at least annually a Financial Plan for the Project,
which shall be submitted to the Grapevine for review and comment.
(1) Conduct commuter rail strategic plan in not less than 5 -year increments to
assess rail service capacity, ridership projections, station usage and needs,
parking and access provisions, traffic and roadway considerations, transit
oriented development, and growth patterns around stations and existing
and projected rail alignment(s).
40Provide limited advertising snare within the commuter rail cars for
Grapevine's special events when such special events will utilize tlh-e
Project, at no cost to Grapevine. 41
42 The T shall in no event bear any responsibility to provide bus or trolled
based paratransit services complimentary to any bus or trolley service
operated by Grapevine or any affiliated or associated Grapevine entity.43
4.2 Responsibilities of Grapevine.
Grapevine shall be responsible to:
(a) Review and approve the design and construction documents for Project
improvements in the city limits of Grapevine. Grapevine will cooperate
with the T in achieving the goals and schedules of the Project by
expeditiously reviewing all submitted documents.
(b) Provide timely, accurate, and complete information with respect to its
regulations, requirements, and development regulations.
(c) Consult with the T and cooperate as fully as possible to meet Project
objectives as it relates to portions of the Project in the City of Grapevine.
(d) Provide funding as set forth in Subsections 1.1.3, 1.1.9 and 2.2 above.
(e) Grapevine will fund fifty percent (50%) of the upgrade of the Grapevine
Main Street Station.
M Grapevine will maintain an active voice on the other station at the north
end of D -FW International Airport being constructed as a part of the
Project. Grapevine, however, will provide no funding for such station.
(g) Grapevine will apply with the Federal Railroad Administration for Quiet
Zones within the Grapevine city limit.
(b�
44 Grapevine will be solely responsible to provide bus or trolley based
paratransit services complimentary to any bus or trolley service operated
by Grapevine or any affiliated or associated Grapevine entity. 45
4.3 Mutual commitments of the parties
(a) The Parties reserve the right to terminate this Agreement, subject to the
dispute resolution provisions of Section 5.3 herein.
(b) The parties shall coordinate and cooperate on the adoption of a regional
public transportation system, the commuter rail corridor on the Cotton
Belt rail line from Fort Worth through Grapevine.
(c) Notification of Action – The T and Grapevine each will inform the other
in advance of The T Board briefings or City Council briefings, public
hearings, or official actions related to the Project, its implementation, or
operation.
(d) Notwithstanding the above, the Term and performance of this Agreement
shall at all times be subject to the appropriation of sufficient funds to and
by each party.
(e) D -FW International Airport will fund the Station located inside the Airport
Terminal Complex.–Grapevine-Funds will be available for a standard
station baseline for the Grapevine Station on D -FW propertv outside of the
Terminal Complex.46
M The Parties agree to preserve and protect the Vintage R
Operations47GrapevineVinta e Railroad operations 48 that currently operate
on the Corridor. The T or its operations contractor will be responsible for
dispatching all trains on the Corridor and scheduling after commuter rail
service begins.
SECTION 5
TERM, TERMINATION, AND DISPUTE RESOLUTION
5.1 Term
The parties acknowledge that the Federal Transit Administration requires a
NewStarts project term to be at least 30 years after project construction completion. The
parties further anticipate at lease a five (5) year build -out of the project.
Grapevine agrees that it will not unilaterally call an election to consider the
cessation of collection of the Sales Tax referred to in Subsection 1.1.9. above unless
otherwise obligated by law.49 —
This Agreement shall be in full force and effect for an initial term of thirty-five
(35) 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 Term, as the case may be.
Any reference to "Term" as used in this Agreement shall include the Initial Term and the
Renewal Terms.
5.2 Termination.
5.2.1 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.
5.2.2 Upon termination of this Agreement as provided above, any unexpended
Grapevine Funds applicable to the Project shall be returned to Grapevine in the same
proportion as the Grapevine Funds bear to the overall funding of the Project up to that
point, less Grapevine's proportionate share of costs related to such termination.
5.3. Dispute Resolution
The parties hereby agree to make a good faith effort to resolve disputes arising
under this Agreement through informal discussions between the parties. In the event that
a dispute cannot be resolved through informal discussions, prior to initiating an
alternative remedy 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) calendar days, by
accepting the proposed resolution, rejecting the proposed resolution or by proposing an
alternative resolution to the dispute. Within twenty (20) calendar days of receipt of the
party's written response, if such response is a rejection or a counter -proposal, the other
party must either accept the counter -proposal 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 6
MISCELLANEOUS PROVISIONS
6.1 Representatives.
The T's President, or his or her designee(s), shall be the principal representative of
The T in all matters relating to this Agreement. Grapevine's City Manager, or his or her
designee(s), shall be the principal representative of Grapevine in all matters relating to
this Agreement. Grapevine's representative shall have access to the records pertaining to
the Project. The T hereby agrees to provide periodic and timely communications to
Grapevine's representative with regard to any material aspect of the Project.
6.2 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,
addressed as follows:
To The T:
Richard L. Ruddell
President/Executive Director
Fort Worth Transportation Authority
1600 E. Lancaster
Fort Worth, Texas 76102
With a copy to:
Sylvia M. Hartless
General Counsel
Fort Worth Transportation Authority
1600 E. Lancaster Ave.
Fort Worth, Texas 76102
To Grapevine:
Office of the City Manager
200 S. Main Street
Grapevine, Texas 76051
With a copy to :
Matthew Boyle
Boyle & Lowry, L.L.P.
4201 Wingren, Suite 108
Irving, Texas 75062
6.3 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 parry 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.
6.4 No Third Party Rights.
THE CITY OF GRAPEVINE AND THE T AGREE THAT NEITHER IS THE
AGENT, SERVANT, OFFICER AND/OR EMPLOYEE OF THE OTHER AND, THAT
NOTHING IN THIS AGREEMENT CREATES, GRANTS, OR ASSIGNS RIGHTS OR
RESPONSIBILITIES TO ACT AS A JOINT VENTURER, PARTNERSHIP, OR
AGENT TO THE OTHER. IN ADDITION:
GRAPEVINE AGREES TO BE RESPONSIBLE FOR ANY LIABILITY OR
DAMAGES GRAPEVINE MAY SUFFER AS A RESULT OF CLAIMS, DEMANDS,
COSTS OR JUDGMENTS, INCLUDING WITHOUT LIMITATION REASONABLE
ATTORNEYS' FEES, AGAINST GRAPEVINE, 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) OR CORPORATION(S) OCCURRING
DURING THE PERFORMANCE OF THIS AGREEMENT AND CAUSED BY THE
SOLE NEGLIGENCE OF GRAPEVINE, ITS AGENTS, SERVANTS, 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) OR CORPORATION(S) OCCURRING DURING
THE PERFORMANCE OF THIS AGREEMENT AND CAUSED BY THE SOLE
NEGLIGENCE OF THE T,, ITS AGENTS, 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.
6.5 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.
6.6 Entire Agreement.
This Agreement, including any Exhibits 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.
6.7 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.
6.8 Assignment.
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.
6.9 Applicable Law.
This Agreement shall be governed by and interpreted under the laws of the State
of Texas.
6.10 Venue.
Venue as to any dispute, claim, or litigation with regard to this Agreemenf shall
lie in Tarrant County, Texas.
6.11 Agreement Contingency.
This Agreement is contingent, and will become effective only, upon approval by
both the Board of Directors of The T and the Grapevine City Council.
6.12 Grapevine Not a Member City of The T.
This Agreement contemplates the provision of commuter rail service only, and no
other transportation services. Grapevine hereby acknowledges that it is not a member of
The T or any other project or operations of The T.
EXECUTED this day of May, 2007.
FORT WORTH TRANSPORTATION CITY OF GRAPEVINE, TEXAS
AUTHORITY
By: By:
Richard L. Ruddell
President/Executive Director
APPROVED AS TO FORM:
Name: Bruno Rumbelow
Its: City Manager
APPROVED AS TO FORM
By: By:
51
Sylvia M. Hartless Matthev�C 5'
Qty Attorney
General Counsel n tto ey at Lav',
Attest: 53
Bv.
Linda Huff. City Secreta 55