Loading...
R-09-05-14-9G5 - 5/14/2009RESOLUTION NO. R -09-05-14-9G5 WHEREAS, plans have been completed for the widening and expansion of FM 1460 from a two-lane roadway to a four -lane roadway between Old Settlers Boulevard to approximately 1000' north of University Boulevard ("Project"), and WHEREAS, Waterstone Development, Inc., ("Developer") acknowledges that the construction of the Project will greatly enhance the value of Developer's adjacent properties and agrees to contribute up to 50% of the Project cost, and WHEREAS, the City of Round Rock and Developer desire to enter into a Development Commitment Agreement to memorialize respective cost obligations regarding the Project, Now Therefore BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS, That the Mayor is hereby authorized and directed to execute on behalf of the City the attached Developer Commitment Agreement, a copy of same being attached hereto as Exhibit "A" and incorporated herein for all purposes. The City Council hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Resolution was adopted was posted and that such meeting was open to the public as required by law at all times during which this Resolution and the subject matter hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act, Chapter 551, Texas Government Code, as amended. o: \.+dox\scants\0113\0905 \MUNICTPAL\R9151403.noq:mc RESOLVED this 14th day of May, 2009. ALAN MCGRAW, Mayor City of Round Rock, Texas ATTEST: 94014/1t/L-' 14/Ake SARA L. WHITE, City Secretary DEVELOPER COMMITMENT AGREEMENT EXHIBIT "An This DEVELOPER COMMITMENT AGREEMENT ("Agreement") is made by and between AVERY CENTER DEVCO, INC., a Texas corporation (hereinafter called the "Developer"), and the CITY OF ROUND ROCK, TEXAS, (hereinafter called "City"), both acting by and through their duly authorized officials. WITNESSETH: WHEREAS, the City has or will have entered into an Advanced Funding Agreement (the "AFA") with the Texas Department of Transportation ("TxDOT") regarding the construction of the widening of FM 1460 from a two-lane roadway to a four -lane roadway (the "Project), and WHEREAS, the AFA contemplates the expenditure of approximately $19,000,000 for the Project, and WHEREAS, the TxDOT, through the AFA, has or will have agreed to assume responsibility for the construction of the Project and has or will have committed to funding $10,000,000 to the Project (the "TxDOT Participation"), and WHEREAS, the City, through the AFA, has or will have committed to be responsible for funding the balance of the Project not covered by the TxDOT Participation, and WHEREAS, the City and the County have or will have entered into an Interlocal Agreement to share equally all Project Costs, as defined herein, not covered by the TxDOT Participation, and WHEREAS, the Developer acknowledges that the construction of the Project will greatly enhance the value of Developer's adjacent properties, WHEREAS, the Developer acknowledges that without its participation as provided for herein, the Project could be delayed indefinitely, which would have a negative impact on its development plans, NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements of the parties hereto, to be by them respectively kept and performed as hereinafter set forth, Developer and the City do agree as follows: Article 1. Definitions AGREEMENT 1.1. Developer Participation shall mean fifty percent (50%) of the Project Costs which are in excess of the TxDOT Participation, provided however that the Developer Participation shall in no event exceed $5,000,000. 00160234.DOC Page 1 of 5 1.2. Project Costs shall mean all of those items listed in Attachment "A" of the AFA and other Project items included in the AFA that are the responsibility of the City, including, but not limited to, relocation of utilities and right-of-way acquisition costs. All change orders, if any, shall be included in the Project Costs. 1.3. TxDOT Participation shall mean the first $10,000,000 of Project Costs which has been committed to the Project by TxDOT, as set forth in the AFA,. Article 2. Developer Participation. Developer agrees to pay to the City the Developer Participation as provided below. At least seventy (70) days prior to the date set by TxDOT for receipt of the construction bids, Developer shall remit to the City, Three Million Dollars ($3,000,000). Within ten (10) days following the award of the contract by TxDOT, the Developer shall remit to the City the balance of the Developer Participation.. Article 3. TxDOT Compliance with Conditions of this Agreement and the AFA between City and Developer acknowledges that the City is entering into an AFA with TxDOT for the payment of Project Costs regarding the Project. Developer acknowledges that it is the responsibility of the City to fund all of the Project Costs, over and above the TxDOT Participation. Developer agrees to share responsibility with the City to comply with all of the terms and conditions in said AFA as stated herein. The AFA is incorporated into this Agreement, said AFA being attached hereto as Exhibit "A". If Developer defaults in paying any of the Developer Participation, in addition to any other remedy that City and County has to remedy such default, Developer agrees that the City and the County shall share equally in the proceeds of the first issuance of bonds from the Avery Centre Road Districts No. 1 and 2, up to the amount in default plus interest at 7%, compounded annually. Article 5. Miscellaneous. 5.1 Mutual Assistance. The City and the Developer will do all things reasonably necessary or appropriate to carry out the terms and provisions of this Agreement, and to aid and assist each other in carrying out such terms and provisions of this Agreement. 5.2 Representations and Warranties. The City represents and warrants to the Developer that this Agreement is within its authority, and that it is duly authorized and empowered to enter into this Agreement, unless otherwise ordered by a court of competent jurisdiction. Developer represents and warrants to the City that it has the requisite authority to enter into this Agreement. 00160234.DOC Page 2 of 5 5.3 Default. If either the City or the Developer should default in the performance of any obligations of this Agreement, the other party shall provide such defaulting party written notice of the default, and a minimum period of thirty (30) days to cure such default, prior to instituting an action for breach or pursuing any other remedy for default. If the defaulting party remains in default after notice and opportunity to cure, the non -defaulting party shall have the right to pursue any remedy at law or in equity for the defaulting party's breach. 5.4 Attorney's Fees. In the event any legal action or proceeding is commenced between the City and the Developer to enforce provisions of this Agreement and recover damages for breach, the prevailing party in such legal action shall be entitled to recover its reasonable attorney's fees and expenses incurred by reason of such action, to the extent allowed by law. 5.5 Entire Agreement. This Agreement contains the entire agreement between the parties. This Agreement may only be amended, altered or revoked by written instrument signed by the City and the Developer. 5.6 Binding Effect. This Agreement shall be binding on and inure to the benefit of the parties, their respective successors and assigns. 5.7 Assignment. Developer may not assign all or part of its rights and obligations to a third party without the written consent of the City. 5.8 Amendment. This Agreement may be amended by the mutual written agreement of the parties. 5.9 Termination. The City may terminate this Agreement if, in its own determination, it is unable or unwilling to participate in the Project, unless Developer has remitted payment as required in Article 2, herein. 5.10 Notice. Any notice and or statement required and permitted to be delivered shall be deemed delivered by actual delivery, facsimile with receipt of confirmation, or by depositing the same in the United States mail, certified with return receipt requested, postage prepaid, addressed to the appropriate party at the following addresses: Developer: AVERY CENTER DEVCO, INC. with a copy to: 00160234.DOC Page 3 of 5 City: with a copy to: Jim Nuse, City Manager City of Round Rock 221 East Main St. Round Rock, TX 78664 Ph: (512) 218-5401 Fx: (512) 218-7097 Steve Sheets, City Attorney 221 East Main St. Round Rock, TX 78664 Ph: (512) 255-8877 Fx: (512) 255-8986 Either party may designate a different address at any time upon written notice to the other party. 5.10 Interpretation. Each of the parties has been represented by counsel of their choosing in the negotiation and preparation of this Agreement. Regardless of which party prepared the initial draft of this Agreement, this Agreement shall, in the event of any dispute, however its meaning or application, be interpreted fairly and reasonably and neither more strongly for or against any party. 5.11 Applicable Law. This Agreement is made, and shall be construed and interpreted, under the laws of the State of Texas and venue shall lie in Williamson County, Texas. 5.12 Severability. In the event any provisions of this Agreement are illegal, invalid or unenforceable under present or future laws, and in that event, it is the intention of the parties that the remainder of this Agreement shall not be affected. It is also the intention of the parties of this Agreement that in lieu of each clause and provision that is found to be illegal, invalid or unenforceable, a provision be added to this Agreement which is legal, valid or enforceable and is as similar in terms as possible to the provision found to be illegal, invalid or unenforceable. 5.13 Paragraph Headings. The paragraph headings contained in this Agreement are for convenience only and will in no way enlarge or limit the scope or meaning of the various and several paragraphs. 5.14 No Third Party Beneficiaries. This Agreement is not intended to confer any rights, privileges or causes of action upon any third party. 00160234.DOC Page 4 of 5 5.15 Exhibit. The following Exhibit "A" is attached and incorporated by reference for all purposes: Exhibit "A": Advance Funding Agreement 5.16 No Joint Venture. It is acknowledged and agreed by the parties that the terms hereof are not intended to and shall not be deemed to create any partnership or joint venture among the parties. The City, its past, present and future officers, elected officials, employees and agents of the City, do not assume any responsibilities or liabilities to any third party in connection with the development of the Project or the design, construction or operation of any portion of the Project. 5.17 Effective Date. Effective Date. This Agreement becomes effective when signed by the last party whose signature makes this Agreement fully executed. IN WITNESS WHEREOF, DEVELOPER AND THE CITY have executed duplicate counterparts to effectuate this Agreement. AVERY CENTER DEVCO, INC. By: By: THE CITY OF ROUND ROCK, TEXAS By: Date: 00160234.DOC Page 5 of 5 EXHIBIT THE STATE OF TEXAS § THE COUNTY OF TRAVIS § CSJ #2211-02-021 District # 14 -Austin Code Chart 64 #36750 FM 1460: from Old Settlers to University Blvd. CFDA # 20.205 ar ORIGINAL ADVANCE FUNDING AGREEMENT FOR VOLUNTARY LOCAL GOVERNMENT CONTRIBUTIONS TO TRANSPORTATION IMPROVEMENT PROJECTS WITH NO REQUIRED MATCH THIS AGREEMENT IS MADE BY AND BETWEEN the State of Texas, acting by and through the Texas Department of Transportation, hereinafter called the "State", and the City of Round Rock, acting by and through its duly authorized officials, hereinafter called the "Local Government," WITNESSETH WHEREAS, Transportation Code, Chapters 201, 221, 227, and 361, authorize the State to lay out, construct, maintain, and operate a system of streets, roads, and highways that comprise the State Highway System; and, WHEREAS, Government Code, Chapter 791, and Transportation Code, §201.209 and Chapter 221, authorize the State to contract with municipalities and political subdivisions; and, WHEREAS, Commission Minute Order Number 111734 authorizes the State to undertake and complete a highway improvement generally described as widen to a 4 -lane roadway facility; and, WHEREAS, the Local Government has requested that the State allow the Local Government to participate in said improvement by funding that portion of the Improvement described as widen FM 1460 from a two-lane roadway to a 4 -lane roadway from Old Settlers to University Boulevard within the City of Round Rock, hereinafter called the "Project; and, WHEREAS, the State has determined that such participation is in the best interest of the citizens of the State; NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements of the parties hereto, to be by them respectively kept and performed as hereinafter set forth, the State and the Local Government do agree as follows: AGREEMENT Article 1. Time Period Covered This agreement becomes effective when signed by the last party whose signing makes the agreement fully executed, and the State and the Local Government will consider it to be in full force and effect until the Project described herein has been completed and accepted by all parties or unless terminated, as hereinafter provided. Article 2. Project Funding and Work Responsibilities The State will authorize the performance of only those Project items of work which the Local Government has requested and has agreed to pay for as described In Attachment A, Payment Provision and Work Responsibilities which is attached to and made a part of this contract. AFA-AFA VoITIP Page 1 of 8 Revised 02/02/2009 CSJ #2211-02-021 District # 14 -Austin Code Chart 64 #36750 FM 1460: from Old Settlers to University Blvd. CFDA # 20.205 In addition to identifying those items of work paid for by payments to the State, Attachment A, Payment Provision and Work Responsibilities, also specifies those Project items of work that are the responsibility of the Local Government and will be carried out and completed by the Local Government, at no cost to the State. The State shall provide a fixed amount of $10,000,000 towards the total construction bld item costs. At least sixty (60) days prior to the date set for receipt of the construction bids, the Local Government shall remit half of the estimated balance of the construction cost as found in the Latest Engineers Estimate. -TJpon award of the construction contract the Local Government shall remit the 6atance of the construction costs in incremental payments of equal value by the 5th of each month beginning with the month after the receipt of bids for twelve (12) consecutive months. In the event that the State determines that additional funding by the Local Government is required at any time during the Project, the State will notify the Local Government in writing. The Local Government shall make payment to the State within thirty (30) days from receipt of the State's written notification. Whenever funds are paid by the Local Government to the State under this Agreement, the Local Government shdll remit a check or warrant made payable to the "Texas Department of Transportation Trust Fund." The check or warrant shall be deposited by the State in an escrow account to be managed by the State. Funds in the escrow account may only be applied by the State to the Project. If, after final Project accounting, excess funds remain in the escrow account, those funds may be applied by the State to the Local Government's contractual obligations to the State under another advance funding agreement. Article 3. Right of Access If the Local Government is the owner of any part of the Project site, the Local Government shall permit the State or its authorized representative access to the site to perform any activities required to execute the work. Article 4. Adjustments Outside the Project Site The Local aoxernment will provide for all necessary right-of-way acquisition and all necessary utility adjustments.. Article 6. Responsibilities of the Parties The State and the Local Government agree that neither party is an agent, servant, or employee of the .other party and each party agrees it is responsible for Its individual acts and deeds as well as the acts and deeds of its contractors, employees, representatives, and agents. Article 6. Document and Information Exchange The Local Government agrees to electronically deliver to the State all general notes, specifications, contract provision requirements and related documentation in a Microsoft® Word or similar document. If requested by the State, the Local Government will use the State's document template. The Local Government shall also provide a detailed construction time estimate including types of activities and month in the format required by the State. This requirement applies whether the local government creates the documents with its own forces or by hiring a consultant or professional AFA-AFA VoITIP Page 2 of 8 Revised 02/02/2009 CSJ #2211-02-021 District # 14 -Austin Code Chart 64 #36750 FM 1460: from Old Settlers to University Blvd. CFDA # 20.205 provider. At the request of the State, the Local Government shall submit any information required by the State in the format directed by the State. Article 7. Interest The State will not pay interest on funds provided by the Local Government. Funds provided by the Local Government will be deposited into, and retained in, the State Treasury. Article 8. Inspection and Conduct of Work • Unless otherwise specifically stated In Attachment A, Project Budget and Description, to this contract, the State will supervise and inspect all work performed hereunder and provide such engineering inspection and testing services as may be required to ensure that the Project is accomplished in accordance with the approved plans and specifications. All correspondence and instructions to the contractor performing the work will be the sole responsibility of the State. Unless otherwise specifically stated in Attachment A to this contract, all work will be performed in accordance with the Standard Specifications for Construction and Maintenance of Highways, Streets, and Bridges adopted by the State and incorporated herein by reference, or special specifications approved by the State. Article 9. Increased Costs In the event it is determined that the funding provided by the Local Government will be insufficient to cover the State's cost for performance of the Local Government's requested work, the Local Government will pay to the State the additional funds necessary to cover the anticipated additional cost. The State shall send the Local Government a written notification stating the amount of additional funding needed and stating the reasons for the needed additional funds. The Local Government shall pay the funds to the State within 30 days of the written notification, unless otherwise agreed to by all parties to this agreement. If the Local Government cannot pay the additional funds, this contract shall be mutually terminated in accord with Article 11 - Termination. If this is a fixed price agreement as specified in Attachment A, Project Budget and Description, this provision shall only apply in the event changed site conditions are discovered or as mutually agreed upon by the State and the Local Government. If any existing or future local ordinances, commissioners court orders, rules, policies, or other directives, including but not limited to outdoor advertising billboards and storm water drainage facility requirements, are more restrictive than State or Federal Regulations, or if any other locally proposed changes, including but not limited to plats or replats, result in increased costs, then any increased costs associated with the ordinances or changes will be paid by the local government. The cost of providing right of way acquired by the State shall mean the total expenses in acquiring the property interests either through negotiations or eminent domain proceedings, including but not limited to expenses related to relocation, removal, and adjustment of eligible utilities. Article 10. Maintenance Upon completion of the Project, the State will assume responsibility for the maintenance of the completed Project unless otherwise specified in Attachment A to this agreement. Article 11. Termination This agreement may be terminated in the following manner: + by mutual written agreement and consent of both parties; • by either party upon the failure of the other party to fulfill the obligations set forth herein; AFA-AFA VoITIP Page 3 of 8 Revised 02/02/2009 CSJ#2211-02-021 District # 14 -Austin Code Chart 64 #36750 FM 1460: from Old Settlers to University Blvd. CFDA # 20.205 • by the State if it determines that the performance of the Project is not in the best interest of the State. If the agreement is terminated in accordance with the above provisions, the Local Government will be responsible for the payment of Project costs incurred by the State on behalf of the Local Government up to the time of termination. • Upon completion of the Project, the State will perform an audit of the Project costs. Any funds due to the Local Government, the State, or the Federal Government will be promptly paid by the owing party. Article 12. Notices All notices to either party by the other required under this agreement shall be delivered personally or sent by certified or U.S. mail, postage prepaid or sent by electronic mail, (electronic notice being permitted to the extent permitted by law but only after a separate written consent of the parties), addressed to such party at the following addresses: Local Government: Mayor 221 E. Main Street Round Rock, Texas 78664 State: Austin District Engineer P.O. Drawer 15426 Austin, Texas 78761-5426 All notices shall be deemed given on the date so delivered or so deposited in the mail, unless otherwise provided herein. Either party may change the above address by sending written notice of the change to the other party. Either party may request in writing that such notices shall be delivered personally or by certified U.S. mail and such request shall be honored and carried out by the other party. Article 13. Sole Agreement In the event the terms of the agreement are in conflict with the provisions of any other existing agreements between the Local Government and the State, the latest agreement shall take precedence over the other agreements in matters related to the Project. Article 14. Successors and Assigns The State and the Local Government each binds itself, its successors, executors, assigns, and administrators to the other party to this agreement and to the successors, executors, assigns, and administrators of such other party in respect to all covenants of this agreement. Article 15. Amendments By mutual written consent of the parties, this contract may be amended prior to its expiration. Article 16. State Auditor The state auditor may conduct an audit or investigation of any entity receiving funds from the state directly under the contract or indirectly through a subcontract under the contract. Acceptance of funds directly under the contract or indirectly through a subcontract under this contract acts as acceptance of the authority of the state auditor, under the direction of the legislative audit committee, to conduct an audit or investigation in connection with those funds. An entity that is the subject of an audit or investigation must provide the state auditor with access to any information the state auditor considers relevant to the investigation or audit. AFA-AFA_VoITIP Page 4 of 8 Revised 02/02/2009 CSJ #2211-02-021 District # 14 -Austin Code Chart 64 #36750 FM 1460: from Old Settlers to University Blvd. CFDA # 20.205 Article 17. Insurance If this agreement authorizes the Local Government or its contractor to perform any work on State right of way, before beginning work the entity performing the work shall provide the State with a fully executed copy of the State's Form 1560 Certificate of Insurance verifying the existence of coverage in the amounts and types specified on the Certificate of Insurance for all persons and entitles working on State right of way. This coverage shall be maintained until all work on the State right of way is complete. If coverage is not maintained, all work on State right of way shall cease immediately, and the State may recover damages and all costs of completing the work. Article 18. Debarment The parties are prohibited from making any award at any tier to any party that is debarred or suspended or otherwise excluded from or ineligible for participation in Federal Assistance Programs under Executive Order 12549, "Debarment and Suspension." By executing this agreement, the [Contractor, Local Government, Engineer, or whatever] certifies that it is not currently debarred, suspended, or otherwise excluded from or ineligible for participation in Federal Assistance Programs under Executive Order 12549. The parties to this contract shall require any party to a subcontract or purchase order awarded under this contract to certify its eligibility to receive Federal funds and, when requested by the State, to furnish a copy of the certification. Article 19. Signatory Warranty The signatories to this agreement warrant that each has the authority to enter into this agreement on behalf of the party they represent., IN WITNESS WHEREOF, THE STATE AND THE LOCAL GOVERNMENT have executed duplicate counterparts to effectuate this agreement. AFA-AFA VoITIP Page 5 of 8 Revised 02/02/2009 CSJ #2211-02-021 District # 14 -Austin Code Chart 64 #36750 FM 1460: from Old Settlers to University Blvd. CFDA # 20.205 THE STATE OF TEXAS Executed for the Executive Director and approved for the Texas Transportation Commission for the purpose and effect of activating and/or carrying out the orders, established policies or work programs heretofore approved and authorized by the Texas Transportation Commission. By Date Robert B. Daigh, PE District Engineer THE LOCAL GOVERNMENT Name of the Local Government City of Round Rock By Date Typed or Printed Name and Title AFA-AFA VoITIP Page 6 of 8 Revised 02/02/2009 CSJ #2211-02-021 District # 14 -Austin Code Chart 641/36750 FM 1460: from Old Settlers to University Blvd. CFDA # 20.205 ATTACHMENT A Payment Provision The State will pay a fixed amount of $10,000,000 towards the cost of construction bld Items for the widening of FM 1460 from a 2 -lane roadway to a 4 -lane facility. The Local Government will pay the balance of the construction bid item costs for the Project. The Local Government's estimated cost of this additional work is $9,000,000, for the construction bld items. The State has estimated the project to be as follows: Description Total Estimate Cost State Participation Local Participation Cost % Cost t X?. ,:tl�.a:. :,� 1. ; : s3 r::: t ..€' : ;. 5,. t#. , , , Construction of the widening of a 2 -lane roadway to a 4 -lane facility $19,000,000 Fixed $10,000,000 .:• $9,000,000 ,Sr• .4 '1 I. - {- Fli is S jig MTc., aYY .. �1�0 OOQ '`'f ; ' k Q 'y!s900;000; Direct State Costs (including plan review, inspection and oversight) $0 0% $0 0% $0 Indirect State Costs (no local participation required except for service projects) • $0 0% $0 0% $0 TOTAL $19,000,000 $10,000,000 $9,000,000 Direct or Indirect Costs will not be charged. Local Government's Participation = $1,000.000 It is further understood that the State will include only those items for the improvements as requested and required by the Local Government. This is an estimate only; final participation amounts will be based on actual charges to the project. AFA-AFA VoITIP (1,5; t.; 000 Page 7 of 8 Revised 02/02/2009 Work Responsibilities Environmental Requirements CSJ #2211-02-021 District # 14 -Austin Code Chart 64 #36750 FM 1460; from Old Settlers to University Blvd, CFDA # 20.205 A. The State shall prepare the appropriate environmental documentation and secure environmental clearance for the Project. B. To the extent required to complete the Project, the State will be responsible for the mitigation and remediation of any environmental problems associated with the development of the Project. Engineering Services A. The Local Government shall prepare or cause to be prepared the engineering plans, specifications, and estimates (PS&E) necessary for the development of the Project. The PS&E shall be prepared in accordance with all applicable laws, policies and regulations, deemed necessary by the State. B. The engineering plans shall be developed in accordance with the Texas Department of Transportation Roadway Design Manual, the current edition of the Standard Specifications for Construction and Maintenance of Highways, Streets, and Bridges and the Texas Accessibility Standards. C. The Local Government shall submit a copy of the redlined plans provided by the State with all applicable plan submittals to indicate that QC/QA was undertaken. D. The Local Government shall submit the completed PS&E to the State for review and approval five months prior to the State's anticipated bid opening date. Construction Responsibilities A. The State shall advertise for construction bids, issue bid proposals, receive and tabulate the bids and award and administer the contract for construction of the Project. Administration of the contract includes the responsibility for construction engineering and for issuance of any change orders, supplemental agreements, amendments, or additional work orders, which may become necessary subsequent to the award of the construction contract. B. The State will use its approved contract letting and award procedures to let and award the construction contract. C. The Local Government will retain a consultant engineer for construction phase services. Those services entail shop drawing review, preparation of any re -design, alternative design or additional design details needed during construction. The consultant engineer will also be available to respond to questions relating to the plans. AFA-AFA VoITIP Page 8 of 8 Revised 02/02/2009 DATE: May 7, 2009 SUBJECT: City Council Meeting — May 14, 2009 ITEM: 9G5. Consider a resolution authorizing the Mayor to execute a Developer Commitment Agreement with Waterstone Development, Inc. for the expansion of north A.W. Grimes Boulevard (FM 1460). Department: Staff Person: Justification: Transportation Services Tom Word, P.E., Chief of Public Works Operations The FM 1460 North expansion is currently estimated at $19 million; the Texas Department of Transportation (TxDOT) has committed to providing $10 million toward this project; the developer of Avery Center, Waterstone Development, has agreed to contribute 50% of the funding shortfall (currently estimated at $9 million) not to exceed $5 million. The remained of the funding will be split between Williamson County and the City of Round Rock through the interlocal agreement being considered on this same meeting agenda. Funding: Cost: $0.00 Source of funds: N/A Outside Resources: Texas Department of Transportation Waterstone Development Background Information: A.W. Grimes Boulevard (FM 1460) between University Boulevard and Old Settlers Boulevard is a rural two lane roadway which is experiencing high volumes of traffic. Further, this roadway bisects the Avery Center development, which will significantly add to the high traffic volumes. Plans have been completed for the widening of this roadway; however, until now funding has not been available - the current estimated cost of this roadway is $19 million. Recently, TxDOT was notified that $10 million would be available from the American Reinvestment and Recovery Act to construct this roadway. With this agreement, Waterstone Development has agreed to contribute up to 50% of the funding shortfall, not to exceed $5 million. The remainder will be divided evenly between Williamson County and the City of Round Rock via an interlocal agreement also being considered on this meeting agenda. The City's costs will be captured in an Advance Funding Agreement with the Texas Department of Transportation. Public Comment: N/A DEVELOPER COMMITMENT AGREEMENT This DEVELOPER COMMITMENT AGREEMENT ("Agreement") is made by and between AVERY CENTER DEVCO, INC, a Texas corporation (hereinafter called the "Developer"), and the CITY OF ROUND ROCK, TEXAS, (hereinafter called "City"), both acting by and through their duly authorized officials. WITNESSETH: WHEREAS, the City has or will have entered into an Advanced Funding Agreement (the "AFA") with the Texas Department of Transportation ("TxDOT") regarding the construction of the widening of FM 1460 from a two-lane roadway to a four -lane roadway (the "Project), and WHEREAS, the AFA contemplates the expenditure of approximately $19,000,000 for the Project, and WHEREAS, the TxDOT, through the AFA, has or will have agreed to assume responsibility for the construction of the Project and has or will have committed to funding $10,000,000 to the Project (the "TxDOT Participation"), and WHEREAS, the City, through the AFA, has or will have committed to be responsible for funding the balance of the Project not covered by the TxDOT Participation, and WHEREAS, the City and the County have or will have entered into an Interlocal Agreement to share equally all Project Costs, as defined herein, not covered by the TxDOT Participation, and WHEREAS, the Developer acknowledges that the construction of the Project will greatly enhance the value of Developer's adjacent properties, WHEREAS, the Developer acknowledges that without its participation as provided for herein, the Project could be delayed indefinitely, which would have a negative impact on its development plans, NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements of the parties hereto, to be by them respectively kept and performed as hereinafter set forth, Developer and the City do agree as follows: Article 1. Definitions AGREEMENT 1.1. Developer Participation shall mean fifty percent (50%) of the Project Costs which are in excess of the TxDOT Participation, provided however that the Developer Participation shall in no event exceed $5,000,000. 00160234.DOC Page 1 of 5 (Lroctrf5 - ((t -plc 1.2. Project Costs shall mean all of those items listed in Attachment "A" of the AFA and other Project items included in the AFA that are the responsibility of the City, including, but not limited to, relocation of utilities and right-of-way acquisition costs. All change orders, if any, shall be included in the Project Costs. 1.3. TxDOT Participation shall mean the first $10,000,000 of Project Costs which has been committed to the Project by TxDOT, as set forth in the AFA. Article 2. Developer Participation. Developer agrees to pay to the City the Developer Participation as provided below. At least seventy (70) days prior to the date set by TxDOT for receipt of the construction bids, Developer shall remit to the City, Three Million Dollars ($3,000,000). Within ten (10) days following the award of the contract by TxDOT, the Developer shall remit to the City the balance of the Developer Participation.. Article 3. TxDOT Compliance with Conditions of this Agreement and the AFA between City and Developer acknowledges that the City is entering into an AFA with TxDOT for the payment of Project Costs regarding the Project. Developer acknowledges that it is the responsibility of the City to fund all of the Project Costs, over and above the TxDOT Participation. Developer agrees to share responsibility with the City to comply with all of the terms and conditions in said AFA as stated herein. The AFA is incorporated into this Agreement, said AFA being attached hereto as Exhibit "A". If Developer defaults in paying any of the Developer Participation, in addition to any other remedy that City and County has to remedy such default, Developer agrees that the City and the County shall share equally in the proceeds of the first issuance of bonds from the Avery Centre Road Districts No. 1 and 2, up to the amount in default plus interest at 7%, compounded annually. Article 5. Miscellaneous. 5.1 Mutual Assistance. The City and the Developer will do all things reasonably necessary or appropriate to carry out the terms and provisions of this Agreement, and to aid and assist each other in carrying out such terms and provisions of this Agreement. 5.2 Representations and Warranties. The City represents and warrants to the Developer that this Agreement is within its authority, and that it is duly authorized and empowered to enter into this Agreement, unless otherwise ordered by a court of competent jurisdiction. Developer represents and warrants to the City that it has the requisite authority to enter into this Agreement. 00160234.DOC Page 2 of 5 5.3 Default. If either the City or the Developer should default in the performance of any obligations of this Agreement, the other party shall provide such defaulting party written notice of the default, and a minimum period of thirty (30) days to cure such default, prior to instituting an action for breach or pursuing any other remedy for default. If the defaulting party remains in default after notice and opportunity to cure, the non -defaulting party shall have the right to pursue any remedy at law or in equity for the defaulting party's breach. 5.4 Attorney's Fees. In the event any legal action or proceeding is commenced between the City and the Developer to enforce provisions of this Agreement and recover damages for breach, the prevailing party in such legal action shall be entitled to recover its reasonable attorney's fees and expenses incurred by reason of such action, to the extent allowed by law. 5.5 Entire Agreement. This Agreement contains the entire agreement between the parties. This Agreement may only be amended, altered or revoked by written instrument signed by the City and the Developer. 5.6 Binding Effect. This Agreement shall be binding on and inure to the benefit of the parties, their respective successors and assigns. 5.7 Assignment. Developer may not assign all or part of its rights and obligations to a third party without the written consent of the City. 5.8 Amendment. This Agreement may be amended by the mutual written agreement of the parties. 5.9 Termination. The City may terminate this Agreement if, in its own determination, it is unable or unwilling to participate in the Project, unless Developer has remitted payment as required in Article 2, herein. 5.10 Notice. Any notice and or statement required and permitted to be delivered shall be deemed delivered by actual delivery, facsimile with receipt of confirmation, or by depositing the same in the United States mail, certified with return receipt requested, postage prepaid, addressed to the appropriate party at the following addresses: Developer: AVERY CENTER DEVCO, INC. with a copy to: 00160234.DOC Page 3 of 5 City: with a copy to: Jim Nuse, City Manager City of Round Rock 221 East Main St. Round Rock, TX 78664 Ph: (512)218-5401 Fx: (512) 218-7097 Steve Sheets, City Attorney 221 East Main St. Round Rock, TX 78664 Ph: (512) 255-8877 Fx: (512) 255-8986 Either party may designate a different address at any time upon written notice to the other party. 5.10 Interpretation Each of the parties has been represented by counsel of their choosing in the negotiation and preparation of this Agreement. Regardless of which party prepared the initial draft of this Agreement, this Agreement shall, in the event of any dispute, however its meaning or application, be interpreted fairly and reasonably and neither more strongly for or against any party. 5.11 Applicable Law. This Agreement is made, and shall be construed and interpreted, under the laws of the State of Texas and venue shall lie in Williamson County, Texas. 5.12 Severability. In the event any provisions of this Agreement are illegal, invalid or unenforceable under present or future laws, and in that event, it is the intention of the parties that the remainder of this Agreement shall not be affected. It is also the intention of the parties of this Agreement that in lieu of each clause and provision that is found to be illegal, invalid or unenforceable, a provision be added to this Agreement which is legal, valid or enforceable and is as similar in terms as possible to the provision found to be illegal, invalid or unenforceable. 5.13 Paragraph Headings. The paragraph headings contained in this Agreement are for convenience only and will in no way enlarge or limit the scope or meaning of the various and several paragraphs. 5.14 No Third Party Beneficiaries. This Agreement is not intended to confer any rights, privileges or causes of action upon any third party. 00160234.DOC Page 4 of 5 5.15 Exhibit. The following Exhibit "A" is attached and incorporated by reference for all purposes: Exhibit "A": Advance Funding Agreement 5.16 No Joint Venture. It is acknowledged and agreed by the parties that the terms hereof are not intended to and shall not be deemed to create any partnership or joint venture among the parties. The City, its past, present and future officers, elected officials, employees and agents of the City, do not assume any responsibilities or liabilities to any third party in connection with the development of the Project or the design, construction or operation of any portion of the Project. 5.17 Effective Date. Effective Date. This Agreement becomes effective when signed by the last party whose signature makes this Agreement fully executed. IN WITNESS WHEREOF, DEVELOPER AND THE CITY have executed duplicate counterparts to effectuate this Agreement. AVERY CENTER DEVCO, INC. By: By: THE CITYOF ROUND ROCK, TEXAS YO By: (� Date: (4'•09 00160234.DOC Page 5 of 5 EXHIBIT THE STATE OF TEXAS THE COUNTY OF TRAVIS CSJ /12211-02-021 District /114 -Austin Code Chart 64 436750 FM 1460: from Old Settlers to University Blvd. CFDA # 20.205 ORIGINAL ADVANCE FUNDING AGREEMENT FOR VOLUNTARY LOCAL GOVERNMENT CONTRIBUTIONS TO TRANSPORTATION IMPROVEMENT PROJECTS WITH NO REQUIRED MATCH THIS AGREEMENT IS MADE BY AND BETWEEN the State of Texas, acting by and through the Texas Department of Transportation, hereinafter called the "State", and the City of Round Rock, acting by and through its duly authorized officials, hereinafter called the "Local Government" WITNESSETH WHEREAS, Transportation Code, Chapters 201, 221, 227, and 361, authorize the State to lay out, construct, maintain, and operate a system of streets, roads, and highways that comprise the State Highway System; and, WHEREAS, Government Code, Chapter 791, and Transportation Code, §201.209 and Chapter 221, authorize the State to contract with municipalities and political subdivisions; and, WHEREAS, Commission Minute Order Number 111734 authorizes the State to undertake and complete a highway improvement generally described as widen to a 4 -lane roadway facility; and, WHEREAS, the Local Government has requested that the State allow the Local Government to participate in said improvement by funding that portion of the Improvement described as widen FM 1460 from a two-lane roadway to a 4 -lane roadway from Old Settlers to University Boulevard within the City of Round Rock, hereinafter called the "Project"; and, WHEREAS, the State has determined that such participation is in the best interest of the citizens of the State; NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements of the parties hereto, to be by them respectively kept and performed as hereinafter set forth, the State and the Local Government do agree as follows: AGREEMENT Article 1. Time Period Covered This agreement becomes effective when signed by the last party whose signing makes the agreement fully executed, and the State and the Local Government will consider it to be in full force and effect until the Project described herein has been completed and accepted by all parties or unless terminated, as hereinafter provided. Article 2. Project Funding and Work Responsibilities The State will authorize the performance of only those Project items of work which the Local Government has requested and has agreed to pay for as described in Attachment A, Payment Provision and Work Responsibilities which is attached to and made a part of this contract. AFA-AFA VoITIP Page 1 of 8 Revised 02/02/2009 CSJ #2211-02-021 District # I4 -Austin Code Chart 64 #36750 FM 1460: from Old Settlers to University Blvd. CFDA # 20.205 In addition to identifying those items of work paid for by payments to the State, Attachment A, Payment Provision and Work Responsibilities, also specifies those Project items of work that are the responsibility of the Local Government and wilt be carried out and completed by the Local Government, at no cost to the State. The State shall provide a fixed amount of $10,000,000 towards the total construction bld item costs. At least sixty (60) days prior to the date set for receipt of the construction bids, the Local Government shall remit half of the estimated balance of the construction cost esfound in the Latest Engineers Estimate. "groan award of the construction contract the Local Government shaft-Fel—nit the balance of the construction costs in incremental payments of equal value by the 5th of each month beginning with the month after the receipt of bids for twelve (12) consecutive months. In the event that the State determines that additional funding by the Local Government is required at any time during the Project, the State will notify the Local Government in writing. The Local Government shall make payment to the State within thirty (30) days from receipt of the State's written notification. Whenever funds are paid by the Local Government to the State under this Agreement, the Local Government shall remit a check or warrant made payable to the "Texas Department of Transportation Trust Fund." The check or warrant shall be deposited by the State in an escrow account to be managed by the State. Funds in the escrow account may only be applied by the State to the Project. If, after final Project accounting, excess funds remain in the escrow account, those funds may be applied by the State to the Local Government's contractual obligations to the State under another advance funding agreement. Article 3. Right of Access If the Local Government is the owner of any part of the Project site, the Local Government shall permit the State or its authorized representative access to the site to perform any activities required to execute the work. Article 4. Adjustments Outside the Project Site The Local Government will provide for all necessary right-of-way acquisition and all necessary utility adjustments. Article 5. Responsibilities of the Parties The State and the Local Government agree that neither party is an agent, servant, or employee of the other party and each party agrees it is responsible for its individual acts and deeds as well as the acts and deeds of its contractors, employees, representatives, and agents. Article 6. Document and Information Exchange The Local Government agrees to electronically deliver to the State all general notes, specifications, contract provision requirements and related documentation in a Microsoft® Word or similar document. If requested by the State, the Local Government will use the State's document template. The Local Government shall also provide a detailed construction time estimate including types of activities and month in the format required by the State. This requirement applies whether the local government creates the documents with its own forces or by hiring a consultant or professional AFA-AFA_VoITIP Page 2 of 8 Revised 02/02/2009 CSJ #2211-02-021 District # 14 -Austin Code Chart 64 #36750 FM 1460: from Old Settlers to University Blvd. CFDA # 20.205 provider. At the request of the State, the Local Government shall submit any information required by the State in the format directed by the State. Article 7. Interest The State will not pay interest on funds provided by the Local Government. Funds provided by the Local Government will be deposited into, and retained in, the State Treasury. Article 8. Inspection and Conduct of Work Unless otherwise specifically stated in Attachment A, Protect Budget and Description, to this contract, the State will supervise and inspect all work performed hereunder and provide such engineering inspection and testing services as may be required to ensure that the Project is accomplished in accordance with the approved plans and specifications. All correspondence and instructions to the contractor performing the work will be the sole responsibility of the State. Unless otherwise specifically stated in Attachment A to this contract, all work will be performed in accordance with the Standard Specifications for Construction and Maintenance of Highways, Streets, and Bridges adopted by the State and incorporated herein by reference, or special specifications approved by the State. Article 9. Increased Costs In the event it is determined that the funding provided by the Local Government will be insufficient to cover the State's cost for performance of the Local Government's requested work, the Local Government will pay to the State the additional funds necessary to cover the anticipated additional cost. The State shall send the Local Government a written notification stating the amount of additional funding needed and stating the reasons for the needed additional funds. The Local Government shall pay the funds to the State within 30 days of the written notification, unless otherwise agreed to by all parties to this agreement. If the Local Government cannot pay the additional funds, this contract shall be mutually terminated in accord with Article 11 - Termination. If this is a fixed price agreement as specified in Attachment A, Project Budget and Description, this provision shall only apply in the event changed site conditions are discovered or as mutually agreed upon by the State and the Local Government. If any existing or future local ordinances, commissioners court orders, rules, policies, or other directives, including but not limited to outdoor advertising billboards and storm water drainage facility requirements, are more restrictive than State or Federal Regulations, or if any other locally proposed changes, including but not limited to plats or replats, result in increased costs, then any increased costs associated with the ordinances or changes will be paid by the local government. The cost of providing right of way acquired by the State shall mean the total expenses in acquiring the property interests either through negotiations or eminent domain proceedings, including but not limited to expenses related to relocation, removal, and adjustment of eligible utilities. Article 10. Maintenance Upon completion of the Project, the State will assume responsibility for the maintenance of the completed Project unless otherwise specified in Attachment A to this agreement. Article 11. Termination This agreement may be terminated in the following manner: ♦ by mutual written agreement and consent of both parties; • by either party upon the failure of the other party to fulfill the obligations set forth herein; AFA-AFA VoITIP Page 3 of 8 Revised 02/02/2009 CSJ /12211-02-021 District # 14 -Austin Code Chart 64 #36750 FM 1460: from Old Settlers to University Blvd. CFDA # 20.205 ♦ by the State if it determines that the performance of the Project is not in the best interest of the State. If the agreement is terminated in accordance with the above provisions, the Local Government will be responsible for the payment of Project costs incurred by the State on behalf of the Local Government up to the time of termination. a Upon completion of the Project, the State will perform an audit of the Project costs. Any funds due to the Local Government, the State, or the Federal Government will be promptly paid by the owing party. Article 12. Notices All notices to either party by the other required under this agreement shall be delivered personally or sent by certified or U.S. mail, postage prepaid or sent by electronic mail, (electronic notice being permitted to the extent permitted by law but only after a separate written consent of the parties), addressed to such party at the following addresses: Local Government: Mayor 221 E. Main Street Round Rock, Texas 78664 State: Austin District Engineer P.O. Drawer 15426 Austin, Texas 78761-5426 All notices shall be deemed given on the date so delivered or so deposited in the mail, unless otherwise provided herein. Either party may change the above address by sending written notice of the change to the other party. Either party may request in writing that such notices shall be delivered personally or by certified U.S. mail and such request shall be honored and carried out.by the other party. Article 13. Sole Agreement In the event the terms of the agreement are in conflict with the provisions of any other existing agreements between the Local Government and the State, the latest agreement shall take precedence over the other agreements in matters related to the Project. Article 14. Successors and Assigns The State and the Local Government each binds itself, its successors, executors, assigns, and administrators to the other party to this agreement and to the successors, executors, assigns, and administrators of such other party in respect to all covenants of this agreement. Article 15. Amendments By mutual written consent of the parties, this contract may be amended prior to its expiration. Article16. State Auditor The state auditor may conduct an audit or investigation of any entity receiving funds from the state directly under the contract or indirectly through a subcontract under the contract. Acceptance of funds directly under the contract or indirectly through a subcontract under this contract acts as acceptance of the authority of the state auditor, under the direction of the legislative audit committee, to conduct an audit or investigation in connection with those funds. An entity that is the subject of an audit or investigation must provide the state auditor with access to any information the state auditor considers relevant to the investigation or audit. AFA-AFA_VoITIP Page 4 of 8 Revised 02/02/2009 CSJ #2211-02-021 District # 14 -Austin Code Chart 64 436750 FM 3460: from Old Settlers to University Blvd. CFDA # 20.205 Article 17. Insurance If this agreement authorizes the Local Government or its contractor to perform any work on State right of way, before beginning work the entity performing the work shall provide the State with a fully executed copy of the State's Form 1560 Certificate of Insurance verifying the existence of coverage in the amounts and types specified on the Certificate of Insurance for all persons and entities working on State right of way. This coverage shall be maintained until all work on the State right of way is complete. If coverage is not maintained, all work on State right of way shall cease immediately, and the State may recover damages and all costs of completing the work. Article 18. Debarment The parties are prohibited from making any award at any tier to any party that is debarred or suspended or otherwise excluded from or ineligible for participation in Federal Assistance Programs under Executive Order 12549, "Debarment and Suspension." By executing this agreement, the [Contractor, Local Government, Engineer, or whatever] certifies that it is not currently debarred, suspended, or otherwise excluded from or ineligible for participation in Federal Assistance Programs under Executive Order 12549. The parties to this contract shall require any party to a subcontract or purchase order awarded under this contract to certify its eligibility to receive Federal funds and, when requested by the State, to furnish a copy of the certification. Article 19. Signatory Warranty The signatories to this agreement warrant that each has the authority to enter into this agreement on behalf of the party they represent._ IN WITNESS WHEREOF, THE STATE AND THE LOCAL GOVERNMENT have executed duplicate counterparts to effectuate this agreement. AFA-AFA_VoITIP Page 5 of 8 Revised 02/02/2009 CSJ #2211-02-021 District # 14 -Austin Code Chart 64 #36750 FM 1460: from Old Settlers to University Blvd. CFDA # 20.205 THE STATE OF TEXAS Executed for the Executive Director and approved for the Texas Transportation Commission for the purpose and effect of activating and/or carrying out the orders, established policies or work programs heretofore approved and authorized by the Texas Transportation Commission. By Date Robert B. Daigh, PE District Engineer THE LOCAL GOVERNMENT Name of the Local Government City of Round Rock By Date Typed or Printed Name and Title AFA-AFA VoITIP Page 6 of 8 Revised 02/02/2009 CSJ #2211-02-021 District # 14 -Austin Code Chart 64 #36750 FM 1460: from Old Settlers to University Blvd. CFDA # 20.205 ATTACHMENT A Payment Provision The State will pay a fixed amount of $10,000,000 towards the cost of construction bid Items for the widening of FM 1460 from a 2 -lane roadway to a 4 -lane facility. The Local Government will pay the balance of the construction bid item costs for the Project. The Local Government's estimated cost of this additional work Is $9,000,000, for the construction bid items. The State has estimated the project to be as follows: Description Total Estimate Cost State Participation Local Participation %y Cost % Cost �t ry� �79%!. -'.: ?4.7's .ie�, r.c:. '.c.," }} rtf'._ta 46� '�gtt R %v`�: o, 3 � ,'f Construction widening roadway facilii�tt�y�� of the of a 2 -lane to a 4 -lane $19,000,000 Fixed $10,000,000 $9,000,000 5qy '' n: et .s 4t �.0 � $1 ;bOb,000.*; .'j'' ` '$9,(1Q0000 Direct State Costs (including plan review, inspection and oversight) $0 0% $0 0% $0 Indirect State Costs (no local participation required except for service projects) $0 0% $0 0% $0 TOTAL $19,000,000 $10,000,000 $9,000,000 Direct or Indirect Costs will not be charged. Local Government's Participation = 1,9 000 000 It is further understood that the State will include only those items for the improvements as requested and required by the Local Government. This is an estimate only; final participation amounts will be based on actual charges to the project. AFA-AFA VoITIP q ^�l i OCC)OV Z ?t Sj CL0 Page 7 of 8 Revised 02/02/2009 Work Responsibilities Environmental Requirements CSJ #2211-02-021 District # 14 -Austin Code Chart 64 #36750 FM 1460: from Old Settlers to University Blvd. CFDA # 20.205 A. The State shall prepare the appropriate environmental documentation and secure environmental clearance for the Project. B. To the extent required to complete the Project, the State will be responsible for the mitigation and remediation of any environmental problems associated with the development of the Project. Engineering Services A. The Local Government shall prepare or cause to be prepared the engineering plans, specifications, and estimates (PS&E) necessary for the development of the Project. The PS&E shall be prepared in accordance with all applicable laws, policies and regulations, deemed necessary by the State. B. The engineering plans shall be developed in accordance with the Texas Department of Transportation Roadway Design Manual, the current edition of the Standard Specifications for Construction and Maintenance of Highways, Streets, and Bridges and the Texas Accessibility Standards. C. The Local Government shall submit a copy of the redlined plans provided by the State with all applicable plan submittals to indicate that QC/QA was undertaken. D. The Local Government shall submit the completed PS&E to the State for review and approval five months prior to the State's anticipated bid opening date. Construction Responsibilities A. The State shall advertise for construction bids, issue bid proposals, receive and tabulate the bids and award and administer the contract for construction of the Project. Administration of the contract includes the responsibility for construction engineering and for issuance of any change orders, supplemental agreements, amendments, or additional work orders, which may become necessary subsequent to the award of the construction contract. B. The State will use its approved contract letting and award procedures to let and award the construction contract. C. The Local Government will retain a consultant engineer for construction phase services. Those services entail shop drawing review, preparation of any re -design, alternative design or additional design details needed during construction. The consultant engineer will also be available to respond to questions relating to the plans. AFA-AFA_VoITIP Page 8 of 8 Revised 02/02/2009