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2016-203ORDINANCE NO. 2� 16-2�3 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, TO EXECUTE A"RAIL SPUR INTERRUPTION AGREEMENT" BETWEEN THE CITY OF DENTON AND TETR.A PAK, INC., REGARDING THE PUBLIC DRAINAGE IMPROVEMENTS 1N AND AROUND THE AREA EAST OF S. WESTERN BLVD. AND NORTH OF TETR.A PAK AND PETERBILT; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Denton desires to construct public drainage improvements in and around the area east of S. Western Blvd. and north of both Tetra Pak and Peterbilt; WHEREAS, the construction of the public drainage improvements will require the interruption of the use of the rail spur by which Tetra Pak, Inc. receives its raw materials; WHEREAS, the City and Tetra Pak, Inc. have reached an agreement which provides for interruption of the rail spur to occur to allow for the construction of the public drainage improvements and the allocation of costs and potential damages; WHEREAS, Denton finds these public drainage improvements and this agreement ancillary to the same to be in the best interest of Denton; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON ORDAlNS: SECTION 1. The recitals provided in this Ordinance, as set forth above, are adopted by the City Council as findings of the City Council. SECTION 2. The City Manager, or his designee, is authorized to execute on behalf of the City of Denton (i) the Rail Spur Interruption Agreement, between the City and Tetra Pak, Inc., substantially in the form attached as Exhibit "A" which includes the matters set forth in the recitals aUove; and (ii) any other documents related to the terms and conditions of the Rail Spur Interruption Agreement. SECTION 3. If any section, article, paragraph, sentence, phrase, clause or word in this ordinance, or application thereof to any persons or circumstances, is held invalid or unconstitutional by a court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance; the City Council declares that it would have ordained such remaining portion despite such invalidity, and such remaining portion shall remain in full force and effect. SECTION 4. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this thc�� day of �� www mmmmmIT _, 2016. ��.., � ,� �„�'°' M� � � .� �� ,�.��' CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY �� By. ��o � � .� .. � APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY� .. .._. � �.,, RAIL SPUR INTERRUPTION AGREEMENT THIS AGREEMENT is between TETRA PAK, INC., a Texas corporation ("Tetra Pak") and the CITY OF DENTON, a Texas home rule municipal corporation ("benton"). RECITALS: A. Denton desires to construct public drainage improvements ("Drainage Facilities") in the land described as the Drainage Easement Area (described and illustrated on the attached Exhibit "A"), The installation and construction of, and other work necessary for the completion of, the Dralnage Facilfties are collectively referred to as the "Drainage Work". B. The construction of Drainage Work in the Drainage Easement Area includes the placement of one or more box culverts under an existing rail spur that serves Tetra Pak, The rail spur is identified on Exhibit "A", The use of this rail spur would be interrupted, and not available for Tetra Pak's normal rail delivery, between August 23, 2016 and September 18, 2016 ("Interruption Period"). C. Tetra Pak has agreed to the rail spur being unavailable for deliveries during the Interruption Period. Tetra Pak has also made arrangements wlth its suppliers, at no additional cost to It, to obtain materials required during the Interruption Period to be delivered to it before the commencement of the Interruption Period. These materials will be located in rail cars located on that portion of the rail spur south of the Drainage Easement Area. D. Denton, as set forth below, has agreed to compensate Tetra Pak for the actual costs associated with the internal rail movement of any materials delivered in advance of the Interruption Period. AGREEMENTS: In consideration of the mutual conditions and agreements set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged, Tetra Pak and Denton agree as follows: 1. Interruption Period. The parties agree that the portion of the raii spur located within the Drainage Easement Area will not be available for use by Tetra Pak, or any entity on behalf of Tetra Pak, during the Interruption Perlod. 2. Expenses Related to Internal Rail Movement of Materials Delivered in Advance of the Interruptfon Period. Denton agrees to pay for the actual expenses Tetra Pak incurs from Trac-Work, Inc. forthe internal rafl movement of required materials delivered in advance ofthe Interruption Period. Tetra Pak has the option to either seek reimbursement from Denton, forward unpaid invoices to Denton, or allow Trac-Work, Inc. to invoice Denton directly. All payments will be made by Denton within thirty (30) days of receipt. 3. Liquidated Damages; No Further Damages or Remedies. A. Liquidated Damages. In the event Tetra Pak has not received its regularly scheduled delivery of materials by rail on September 19, 2016 the parties have agreed that Tetra Pak will be paid by Denton, as liquidated damages, the amount of Eight Thousand Dollars and Page 1 of 4— Rall Spur Interruption Agreement no/cents ($8,000.00) per day, beginning September 19, 2016, and continuing each day untfl Tetra Pak receives its first dellvery by rail. B. No Further Damages or Remedies. The liquidated damages set forth in paragraph 3.A. above are the only damages available to Tetra Pak for Denton's breach of this Agreement. The parties agree that Denton will not be responsible, or held liable, for any direct, indirect, consequential, speculative, special, incidental or punitive losses or damages that Tetra Pak may incur as a result of Denton's failure to timely complete the Drainage Work. 4. Force Majeure. The deadline for completion of the Drainage Work may be extended by written notice from Denton to Tetra Pak, but only if the need for such extenslon is for reasons of Force Majeure beyond Denton's control and only if Denton has been and is continuously and diligently pursuing completion of the same using its best reasonable efforts. "Force Majeure" means an event or circumstance which prevents one party from performing its obligations hereunder, which is not within the reasonable control of the claiming party, and which, by the exercise of due diligence, the claiming party is unable to overcome or avofd or cause to be avoided, Force Majeure shall include, without limitation, strike, stoppage in tabor, riot, significant fire, flood or ice damage, tornados, invasion, insurgency, civil war, commotion, insurrection, blockades, embargoes, sabotage, epidemics, explosions, acts of terrorism, military or usurped power, order of any court granted in any bona fide legal proceeding or action, order of any civil, military or governmental authority (either de facto or de jure and including, without limltation, orders of governmental and administrative agencies that conflict with the terms ofthis Agreement), or acts of God or publlc enemies, Notwithstanding the above, claims by Denton for Force Majeure shall not include delays as a result of acts or omissions of Denton or governmental entities or agencies underthe control of Denton. 5. Successors and Asslgns. The acknowledgments and agreements of Tetra Pak and Denton shall inure to the benefit of and be enforceable by Tetra Pak and Denton, as well as their respective legal representatives, successors and asslgns and be binding upon and enforceable against Tetra Pak, Denton and any of their legal representatives, successors and permitted assigns. 6. Choice of Law. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE UNITED STATES OF AMERICA AND THE LAWS OF THE STATE OF TEXAS, WITWOUT REGARD TO ITS CONFLICT OF RULES. THIS AGREEMENT IS PERFORMABLE IN, AND THE EXCLUSIVE VENUE FOR ANY ACTION BROUGHT W17H RESPECTHEREfO, SHALLLIE IN COURT50F COMPETEN7JURISDICTION IN DENTON COUNTY, TEXAS. 7. Headings. The titles and article headings contained herein are for purposes of identification only and shall not be considered in construing this Agreement. 8. Notices, Any notice, report or demand by Tetra Pak and/or Denton with respect to this Agreement shall be in writing and shall be deemed to have been sufficiently given or served to the receiving party for all purposes upon such party's actual receipt or refusal of receipt when sent by (i) registered or certified mall, return receipt requested, or (ii) personal hand delivery, or (lii) overnight courier servlce, to the receiving party, as applicable, at the address shown beneath the signatures below, 8. Entire Agreement, This Agreement and the exhibits attached hereto contain the entire agreement of the parties with respect to the subject matter of this Agreement, and supersede all prior Page 2 of 4— Rall Spur Interruption Agreement negotiations, agreements and understandings with respect thereto. This Agreement may only be amended by a written document duly executed by all parties. 9. Severability. If any provision of this Contract is held unenforceable, then such provlsion will be modified to reflect the partfes' intentfon. Ali remaining provisions of this Contract shall remain in full force and effect. 10. Effective Date. This Agreement will become effective when all the parties have signed it. The date this Agreement is signed by the last party to sign it (as indlcated by the date stated under that parry's signature) will be deemed the EfFective Date of the same. IN WITNESS WHEREOF, the parties hereto have executed this Agreement in the manner approprlate to each, effective as of the date referenced in the first paragraph hereof. TETRA PAK: TETRA PAK, INC., a Texas �+�r :�r° �lia�n �_ .�. .� �.�...�..��.� � �f� ��tt�re Ch�f �s �� .�..� � .�_�_ W __.�.. _ �.� ��_.__ _.�.�� . �� _ . .._..�m Printed Name �� I��- Su��Cu ChQc'h Title � Executed by Tetra Pak on ik�.��day of \./ c-i,�J , 2016. Notice Address: � 3300 Afrport Road Denton, Texas 76207 � � � ,w..�_.��_ �...�.... Tel. No, (940) 565-8800 gna�ure Fax No. (940) � �� ,,,��"� ��'��-.�� Pr�n��c� Name �_-�� " � ...�. .� �.�� _�._�� _ T � �� ,: e Page 3 of 4— Rail Spur Interruption Agreement DENTON: CITY OF DENTON, a Texas k��rn l� r�°runi�i� I�cwr��r��i�s .��,„ By• �crr��.�;�rrrr�V a City Mar�� . �M� Executed by City of Denton on th�� day �af _ W,�;� ��,�.�[d16. ATTEST: µ� JEN �� WALTERS, CITY ��G =TARY gy; "` ,,m.,� ��,� �° ��.. ,� .� -- �,'�P�q ,� AS TO l.l�: a Q� FORM: ANITA BURGESS, CITY ATfORNEY � �� BY�.�. ._. � — ._.. Notice Address: City of Denton, Texas - City Attorney 215 E. McKinney Street Denton, Texas 76201 Tel, No. (940) 349-8333 Fax No. (940) 382-7923 Page 4 of 4— Rail Spur Interruption Agreement I�q �VI�VP�� IPA.u�6M. �IR��Y:29�m 6p BAm. tt W ...��.�.......,. �.�r ELEV N � � T� O O � . ..�,,,��.�..�..._ . . . �. i „ ��. ,. . . ..... �j ff�� 1�,.,�� Po � 1 �I � � f '�.. MI�,'V � I �� ' . � . . . 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