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HomeMy WebLinkAbout14-088 - BNSF Railway Company - Cooperative Funding Agreement14 -088 Council Approval N/A COOPERATIVE FUNDING AGREEMENT This Cooperative Funding Agreement ( "Agreement ") is entered into this 8th day of July, 2014 by the City of Tukwila, Washington, a municipal entity ( "City ") and BNSF Railway Company, a Delaware corporation ("BNSF"). City and BNSF are collectively referred to as the ( "Parties "). RECITALS WHEREAS, the City desires to work with BNSF towards agreeing on a mutually acceptable replacement vehicular access point (the "Proposed Project ") for the South Seattle Intermodal Facility ( "Facility "); and WHEREAS, the City and BNSF wish to co -fund a study to prepare draft survey, conceptual (10 %) design and constructability and feasibility review for at least three (3) alternatives for replacement access to the Facility ( "Study"), and WHEREAS, the City intends to engage a consultant to perform the Study; and WHEREAS, BNSF is willing to pay one -half (1/2) of the out of pocket costs incurred by the City for the Study, upon the terms and conditions herein, up to a maximum contribution amount from BNSF of One Hundred Fifty Thousand Dollars ($150,000). NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements hereinafter expressed, the parties mutually agree as follows: AGREEMENT 1. Services to be Performed by the City. The City shall: A. Prepare the draft Request for Proposals for the Study for review and approval by BNSF, timely forward to BNSF proposals received from prospective consultants, provide all required public notices and publications concerning the requests for proposals and awarding of a contract to a consultant, and any amendments thereto, approved by BNSF and City ( "Consultant "). B. Provide necessary staff, legal, financial, engineering and transportation assistance to Consultant to perform the Study. C. Forward the interim or draft results and final results of the Study to BNSF. After the final results of the Study are delivered, City and BNSF will determine if there is a mutually acceptable alternative access that they wish to pursue further. 2. Funding. A. The City shall submit to BNSF an itemized statement for its actual out -of- pocket expenses incurred by the City for the Consultant's work on the Study to assist in performing its obligations hereunder (the "City Expenses "). Such statements shall CWDOCS 627289v2 1 ° I O iSIA'NC/ be submitted on a regular periodic basis, but no more often than monthly. B. BNSF will reimburse City within 30 days after receipt of statements described above one half of the City Expenses set forth in such statements, up to the total reimbursement from BNSF of One Hundred Fifty Thousand Dollars ($150,000). Only payments made to the Consultant pursuant to scope of work agreed to by BNSF shall be considered City Expenses for purposes of this Agreement. C. Notwithstanding the fact that BNSF has agreed to pay for a portion of the City Expenses, BNSF hereby understands and agrees that the Consultants represent the City and not the BNSF. BNSF further understands and agrees with City that the Consultants are providing their services to the City and solely at the direction of the City. Accordingly, BNSF shall in no manner be held responsible or accountable to City for the quality of advice or services provided by Consultants or actions taken by the City in reliance upon or pursuant to such advice or services. D. The City shall be solely responsible for paying all sums due the Consultant. BNSF shall have no liability to the Consultant for payment of such sums to the Consultant and BNSF's only obligation is to pay its portion of the City Expenses as set forth herein. City shall obtain appropriate lien waivers from the Consultants waiving any right to place liens on any BNSF property as a result of work performed by such Consultants as contemplated in this Agreement. 3. Disbursement of Funds. 4. Termination. A. In the event the BNSF fails to perform any of its obligations herein, the City may terminate this Agreement, at its sole discretion if the BNSF fails to cure the default within thirty (30) days after written notice to the BNSF of the default. Termination by the City shall also terminate any duties and obligations of the City and BNSF with respect to this Agreement; provided that, the obligations set forth in Section 4.D shall survive termination. B. City may terminate this Agreement, in its sole discretion, at any time by written notice to BNSF. Termination by the City shall also terminate any duties and obligations of the City and BNSF with respect to this Agreement; provided that, the obligations set forth in Section 4.E shall survive termination. C. The parties hereto acknowledge that the BNSF may, in its sole discretion, elect to discontinue pursuit of the Proposed Project at any time. Upon written notice by the BNSF to the City, this Agreement shall terminate. Termination by the BNSF shall also terminate any duties and obligations of the City and BNSF with respect to this Agreement; provided that, the obligations set forth in Section 4.D shall survive termination. CWDOCS 627289v2 2 D. Upon any termination, pursuant to paragraph 5.A or 5.0 above, BNSF shall reimburse the City for one -half (1/2) of all City Expenses incurred under this Agreement to the date of termination. E. Upon any termination pursuant to paragraph 5.B above, the City shall reimburse BNSF for all City Expenses BNSF has paid pursuant to this Agreement. Such payments shall be made within thirty (30) days after such termination. F. Each Party expressly acknowledges and agrees that this Agreement creates no obligation on the part of either of the Parties to proceed with the Proposed Project. G. Notice of termination given pursuant to this Section shall in writing and given no less than ten (10) days in advance of the effective date of termination. 5. Notice. Any notice, approval, request or consent required by or asked to be given under this Agreement shall be deemed to be given if in writing and mailed by United States mail, postage prepaid, or delivered by hand, and addressed as follows: To the City: With a copy to: David Cline, City Administrator City of Tukwila 6200 Southcenter Boulevard Tukwila, WA 98188 To the BNSF: Attention: Colleen Weatherford BNSF Railway Company 2500 Lou Menk Drive, AOB -1 Fort Worth, Texas 76131 City Attorney 6200 Southcenter Boulevard Tukwila WA 98188 With copies to: David Rankin Senior General Attorney BNSF Railway Company 2500 Lou Menk Drive, AOB -3 Fort Worth, Texas 76131 Each party may specify that notice be addressed to any other person or address by giving to the other party ten (10) days prior written notice thereof The parties hereto have caused this Agreement to be executed by their duly authorized representatives the day and year first above written. REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK CWDOCS 627289v2 3 CITY OF TUKWILA, WASHINGTION By: Its: Attest: By: Its: City Clerk Approved as to form: City Attorney 0 BNSF RAILWAY COMPANY B Its: General Director — Business Unit Operations CWDOCS 627289v2 4