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R-09-09-24-11G3 - 9/24/2009RESOLUTION NO. R -09-09-24-11G3 WHEREAS, the City of Round Rock ("City") is planning a street improvements project for the Southwest Area Downtown Infrastructure Phase 1 ("Project") , and WHEREAS, Southwestern Bell Telephone Company d/b/a AT&T Texas ("AT&T") has existing facilities which must be relocated from aerial to the new duct bank in order to proceed with the Project, and WHEREAS, the City and AT&T wish to enter into an Application and Letter of Agreement for Construction Services regarding the relocation of said facilities, 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 said Application and 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. RESOLVED this 24th day of September, 2009. ATTEST: SARA L. WHITE, City Secretary O:\wdox\SCC1nts\0112\0905\MUNICIPAL\R90924G3.DOC/rmc ALAN MCGRAW, Mayor City of Round Rock, Texas AT&T Texas Page 1 at&t APPLICATION and LETTER OF AGREEMENT FOR CONSTRUCTION SERVICES Sept. 4, 2009 BILL TO: City of Round Rock WORK SITE LOCATION: DESCRIPTION OF CONSTRUCTION SERVICES TO BE PERFORMED: LABOR EXPENSE: $106,996.09 OVERHEAD EXPENSE: $0 CWOTS Record Number: 2236T09 At Southwest downtown Phase 1 Relocate the existing AT&T facilities from aerial to the new duct bank placed by the city. Place & splice new cables & terminals & wreck the old cables, poles, terminals & service wires. MATERIAL EXPENSE: $13,462.64 TARIFF/ LICENSE AGREEMENT EXPENSE: $0 ESTIMATED CHARGE FOR ESTIMATED COST: $120,458.73 CONSTRUCTION SERVICES: * (Actual charges may exceed this estimated cost.) Applicant requests that Southwestern Bell Telephone Company d/b/a AT&T Texas, (hereafter "SWBT") perform the above-described construction services on the Applicant's behalf. Applicant agrees to pay the charge(s) indicated above for such services plus applicable taxes. The work is to be done on an "Actual Cost" basis, all charge(s) will be computed in accordance with Southwestern Bell Telephone Company's ordinary accounting practices and will include allocated costs for labor, engineering, materials, transportation, motor vehicles, tool and supply expenses and sundry billings from sub -contractors and suppliers for work and materials related to the job. The Applicant affirms that the cost estimate furnished by the Telephone Company has been considered only as an estimate of approximate costs and that the actual costs incurred by the Telephone Company in doing the work at the particular time and location might be higher. Said estimated cost is subject to change due to any number of factors including, but not limited to, changing conditions in the field, weather delays, or changes in the scope of the work. ESTIMATED PRICE QUOTE The above estimated price is guaranteed for 60 days from September 4, 2009. If the charges are not accepted within 60 days the order will be cancelled and a new order will need to be placed. The second estimate may be higher than the estimated price set out above. PAYMENT Applicant agrees to make an advance payment of $120,458.73 prior to commencement of the work. Charges for construction services and applicable taxes will be billed on a special bill separate from the bill that Applicant receives for telephone service. Applicant, its agents, servants, or employees agree to make payment on change orders within thirty (30) days of the date of signature on the change order. Failure to make payment within the designated thirty (30) day time period will operate to cancel the change order and Southwestern Bell Telephone Company, will cease all work activity on the project until payment is made. When the Parties agree to Interval Billing *, the balance of the Contract Price or Actual Cost (as applicable) will be made in monthly payments. If the Actual Cost made varies from the Estimated Cost, then a correcting adjustment will *be made in the last payment. If the parties cannot agree to Interval Billing, Applicant will make an advanced payment as indicated above. * Applicable to orders over $25,000 and work will take 6 or more months to complete. AT&T Texas Page 2 at&t TAXES Applicant will pay and indemnify SWBT against all sales, use and other taxes (excluding income and franchise taxes), including fees, levies, other similar charges, interest and penalties imposed upon and paid by or assessed on SWBT by reason of its sale and installation of material and provision of construction services under this Application except to the extent a valid tax exemption certificate is provided by Applicant to SWBT prior to the delivery of material and provisioning of construction services. STOP WORK ORDER In the event that Applicant issues a stop work order, or places the project "on hold", at any point during the progress of the work, said stop work order or request to "hold" work must be issued in writing and must be delivered via certified mail, return receipt requested to Karen Benton, 817 W. North Loop Blvd., Room 200, Austin, TX 78756. If Applicant issues a stop work order, or a request to "hold" work, the contract price quoted herein will remain valid until sixty (60) days from the date of the stop work or "hold" work order. At the expiration of the sixty (60) days, the contract price quoted herein will expire and a new contract price will be determined and provided, in writing, to Applicant. The new contract price may be higher than the contract price quoted in this custom work order. If, after issuing a stop work, or "hold" work order, Applicant elects to cancel the contract, Applicant must inform Southwestern Bell Telephone Company, in writing of the cancellation. Southwestern Bell Telephone Company, will deduct any expenses incurred in performing the work from Applicant's advance payment and refund any remaining funds to Applicant. Under no circumstances will Southwestern Bell Telephone Company, be responsible to Applicant for any alleged damages or additional expenses incurred by Applicant as a result of a stop work order or an order to "hold" work on the project. CANCELLATION If the Applicant cancels the work prior to completion, Applicant must notify Southwestern Bell Telephone Company, in writing of said cancellation. If Applicant elects to cancel the work prior to completion, Applicant agrees to pay Southwestern Bell Telephone Company for the costs it has incurred in starting performance under the contract. If Applicant has made an advance payment, Southwestern Bell Telephone Company will deduct its costs and expenses incurred as of the date of Applicant's notice of cancellation from the amount of the advance payment. Any amount remaining will be refunded to Applicant. CHANGES IN SCOPE OF WORK OR CHANGES IN FIELD CONDITIONS Should concealed conditions exist, including conditions that may exist below the surface of the ground, or if conditions exist that could not have been anticipated by Southwestern Bell Telephone Company at the time of this agreement, Southwestern Bell Telephone Company, will be entitled to additional funds and/or additional time to complete the work. Southwestern Bell Telephone Company will request such additional funding and/or additional time through a request for a change order. Conditions that may materially alter the scope of the work and/or the cost associated with the work include but are not'limited to conditions that exist below the surface of the ground and could not have been anticipated at the time of the price quote, above ground barriers, Acts of God affecting the progress or sequencing of the work, labor disputes, and other conditions or circumstances that Southwestern Bell Telephone Company, could not reasonably anticipate at the time of providing the above referenced price quote to Applicant. AT&T Texas Page 3 at&t Should Applicant or its agents, servants, or employees order or seek changes in the scope of the work, Southwestern Bell Telephone Company is entitled to seek from Applicant, its agents, servants, or employees, additional funds as necessary to perform the work, and additional time, as necessary to complete the work. Said request for additional funds and/or additional time will be through change order. All change orders will be in writing. All change orders will be submitted and accepted by Applicant, its agents, servants or employees, before Southwestern Bell Telephone Company, proceeds to execute the work or, if work has been initiated on the project, continues with executing the work except in an emergency endangering life or property. Applicant, its agents, servants or employees, are deemed to have accepted the terms of any change order by signing where indicated on the change order. Under no circumstances will Southwestern Bell Telephone Company request for a change order be deemed or used as evidence of delay on the project. Nor will any change order issued in this project be used to charge Southwestern Bell Telephone Company with responsibility for any alleged delay on the project. NO DAMAGE FOR DELAY Under no circumstances will Southwestern Bell Telephone Company be held liable to Applicant, Applicant's agents, employees or contractors, for any alleged delay on the project that forms the basis for this agreement for construction services. TIME TO COMPLETE Any representation by Southwestern Bell Telephone Company, its agents, servants or employees that the project, or any additional work authorized by change order, will be complete by a certain date or certain time period is strictly an estimate and not binding on Southwestern Bell Telephone Company, its agents, servants, or employees. All estimated completion dates are subject to changing conditions in the field, changes in the scope of the work, relocation of existing utilities not within Southwestern Bell Telephone Company control, Acts of God, weather delays, labor disputes, vendor/contractor disputes, and other conditions or circumstances that Southwestern Bell Telephone Company, its agents, servants, or employees, could not reasonably anticipate at the time of the estimate. CHOICE OF LAW AND ARBITRATION Should any dispute arise between the parties concerning the subject matter of this agreement, or any term contained therein, the parties agree that the dispute or claim shall be submitted to binding arbitration before the American Arbitration Association. The parties further agree that the prevailing party in any such dispute will be entitled to recover attorney's fees and costs of arbitration. Texas law governs the application of this agreement and all terms contained therein. INDEMNIFICATION AND HOLD HARMLESS Applicant, its agents, servants, and employees hereby agree to indemnify and hold harmless Southwestern Bell Telephone Company, and its employees, agents and contractors, from and against any and all claims, costs, expenses, judgments or actions for damage to property or injury or death to persons, and/or arising from or relating to the work that is the subject of this agreement, to the extent any such claims are caused by the negligent acts or omissions of the Applicant, its agents, servants, or employees. AT&T Texas Page 4 at&t ENTIRE AGREEMENT The parties agree that the terms set forth herein constitute the entire agreement and there are no other agreements regarding the project that is the subject of this agreement between the parties. MODIFICATION & NOTICE Any modification to this agreement must be made in writing and signed by both parties. Any party to this agreement may provide the other party with notice of any fact or condition by providing such information in writing and serving said writing via certified mail, return receipt requested ACCEPTED FOR CUSTOMER: ACCEPTED FOR SOUTHWESTER BELL TELEPHONE COMPANY: Authorized Signature Title: Manager -Custom Work Order Department Title or Relationship to Company or Individual Company: Company: Southwestern Bell Telephone Company Printed Name: Printed Name: Karen Benton Date: Date: September 4, 2009 AT&T Texas CWOTS Record # 2236T09 at&t Sept. 4, 2009 Dear Sir.: This letter is in regards to your request for Southwestern Bell Telephone Company to perform construction services for you. Enclosed please find an Application and Letter of Agreement for Construction Services. This application describes the work that you have requested along with the associated charges for us to perform the work. We require advance payment for the full amount quoted on the application or a purchase order may be given by government entities. The name on the contract and the name on the check must be the same. Both the signed original APPLICATION (with an original ink signature) and the advance payment must be received by our office before we can proceed on your behalf. Our mailing address for these documents is listed below: Southwestern Bell Telephone Company Attn: Custom Work Order Department 817 W. North Loop Blvd, Room 200 Austin, Texas 78756 ********** Payment will be accepted via US Postal Service, Over Night Mail Service, or Courier. If you decide not to proceed with this work, please call our office at 512-870-4944 so that we may cancel your request. Please refer to the CWOTS record number at the top of this letter and your application to assist us in locating your file. Our tax identification number is: 43-0529710 Sincerely, Karen Benton Manager -Custom Work Order Department Southwestern Bell Telephone Company (512) 870-4944 DATE: September 17, 2009 SUBJECT: City Council Meeting — September 24, 2009 ITEM: 11G3. Consider a resolution authorizing the Mayor to execute an Application and Letter of Agreement for Construction Services with Southwestern Bell Telephone Company d/b/a AT&T Texas for the relocation of telephone facilities for the Southwest Downtown Phase 1 Project. Department: Staff Person: Justification: Transportation Services Tom Word, P.E., Chief of Public Works Operations This resolution will authorize the Mayor to execute a Letter of Agreement with AT&T for the relocation of their services which is a part of the Southwest Downtown Infrastructure Improvements project. This work includes the relocation of aerial services to the duct banks within the right-of-way. AT&T requires that a signed agreement be on file with their company prior to beginning any work. Execution of this agreement will obligate the City for all costs associated with the relocation of AT&T's facilities detailed in the agreement; the current estimated cost is shown below. Funding: Cost: $120,458.73 Source of funds: 2002 General Obligation Bonds Outside Resources: AT&T Background Information: On January 8, 2009 City Council approved a contract with BRH Garver Construction Company (R -09-01- 08-8B2) for the construction of the Southwest Area Downtown Infrastructure Project. In regards to this project, Council also approved a Utility Adjustment Agreement with AT&T on April 23, 2009 (R -09-04-23- 10D2). Public Comment: N/A EXECUTED DOCUMENT FOLLOWS AT&T Texas Page 1 at&t APPLICATION and LETTER OF AGREEMENT FOR CONSTRUCTION SERVICES Sept. 4, 2009 BILL TO: City of Round Rock WORK SITE LOCATION: DESCRIPTION OF CONSTRUCTION SERVICES TO BE PERFORMED: LABOR EXPENSE: $106,996.09 OVERHEAD EXPENSE: $0 CWOTS Record Number: 2236T09 At Southwest downtown Phase 1 Relocate the existing AT&T facilities from aerial to the new duct bank placed by the city. Place & splice new cables & terminals & wreck the old cables, poles, terminals & service wires. MATERIAL EXPENSE: $13,462.64 TARIFF/ LICENSE AGREEMENT EXPENSE: $0 ESTIMATED CHARGE FOR ESTIMATED COST: $120,458.73 CONSTRUCTION SERVICES: ** (Actual charges may exceed this estimated cost.) *** Applicant requests that Southwestern Bell Telephone Company d/b/a AT&T Texas, (hereafter "SWBT") perform the above-described construction services on the Applicant's behalf. Applicant agrees to pay the charge(s) indicated above for such services plus applicable taxes. The work is to be done on an "Actual Cost" basis, all charge(s) will be computed in accordance with Southwestern Bell Telephone Company's ordinary accounting practices and will include allocated costs for labor, engineering, materials, transportation, motor vehicles, tool and supply expenses and sundry billings from sub -contractors and suppliers for work and materials related to the job. The Applicant affirms that the cost estimate furnished by the Telephone Company has been considered only as an estimate of approximate costs and that the actual costs incurred by the Telephone Company in doing the work at the particular time and location might be higher. Said estimated cost is subject to change due to any number of factors including, but not limited to, changing conditions in the field, weather delays, or changes in the scope of the work. ESTIMATED PRICE QUOTE The above estimated price is guaranteed for 60 days from September 4, 2009. If the charges are not accepted within 60 days the order will be cancelled and a new order will need to be placed. The second estimate may be higher than the estimated price set out above. PAYMENT Applicant agrees to make an advance payment of $120,458.73 prior to commencement of the work. Charges for construction services and applicable taxes will be billed on a special bill separate from the bill that Applicant receives for telephone service. Applicant, its agents, servants, or employees agree to make payment on change orders within thirty (30) days of the date of signature on the change order. Failure to make payment within the designated thirty (30) day time period will operate to cancel the change order and Southwestern Bell Telephone Company, will cease all work activity on the project until payment is made. When the Parties agree to Interval Billing * the balance of the Contract Price or Actual Cost (as applicable) will be made in monthly payments. If the Actual Cost made varies from the Estimated Cost, then a correcting adjustment will be made in the last payment. If the parties cannot agree to Interval Billing, Applicant will make an advanced payment as indicated above. * Applicable to orders over $25,000 and work will take 6 or more months to complete. AT&T Texas Page 2 at&t TAXES Applicant will pay and indemnify SWBT against all sales, use and other taxes (excluding income and franchise taxes), including fees, levies, other similar charges, interest and penalties imposed upon and paid by or assessed on SWBT by reason of its sale and installation of material and provision of construction services under this Application except to the extent a valid tax exemption certificate is provided by Applicant to SWBT prior to the delivery of material and provisioning of construction services. STOP WORK ORDER in the event that Applicant issues a stop work order, or places the project "on hold", at any point during the progress of the work, said stop work order or request to "hold" work must be issued in writing and must be delivered via certified mail, return receipt requested to Karen Benton, 817 W. North Loop Blvd., Room 200, Austin, TX 78756. If Applicant issues a stop work order, or a request to "hold" work, the contract price quoted herein will remain valid until sixty (60) days from the date of the stop work or "hold" work order. At the expiration of the sixty (60) days, the contract price quoted herein will expire and a new contract price will be determined and provided, in writing, to Applicant. The new contract price may be higher than the contract price quoted in this custom work order. If, after issuing a stop work, or "hold" work order, Applicant elects to cancel the contract, Applicant must inform Southwestern Bell Telephone Company, in writing of the cancellation. Southwestern Bell Telephone Company, will deduct any expenses incurred in performing the work from Applicant's advance payment and refund any remaining funds to Applicant. Under no circumstances will Southwestern Bell Telephone Company, be responsible to Applicant for any alleged damages or additional expenses incurred by Applicant as a result of a stop work order or an order to "hold" work on the project. CANCELLATION If the Applicant cancels the work prior to completion, Applicant must notify Southwestern Bell Telephone Company, in writing of said cancellation. If Applicant elects to cancel the work prior to completion, Applicant agrees to pay Southwestern Bell Telephone Company for the costs it has incurred in starting performance under the contract. If Applicant has made an advance payment, Southwestern Bell Telephone Company will deduct its costs and expenses incurred as of the date of Applicant's notice of cancellation from the amount of the advance payment. Any amount remaining will be refunded to Applicant. CHANGES IN SCOPE OF WORK OR CHANGES IN FIELD CONDITIONS Should concealed conditions exist, including conditions that may exist below the surface of the ground, or if conditions exist that could not have been anticipated by Southwestern Bell Telephone Company at the time of this agreement, Southwestern Bell Telephone Company, will be entitled to additional funds and/or additional time to complete the work. Southwestern Bell Telephone Company will request such additional funding and/or additional time through a request for a change order. Conditions that may materially alter the scope of the work and/or the cost associated with the work include but are not limited to conditions that exist below the surface of the ground and could not have been anticipated at the time of the price quote, above ground barriers, Acts of God affecting the progress or sequencing of the work, labor disputes, and other conditions or circumstances that Southwestern Bell Telephone Company, could not reasonably anticipate at the time of providing the above referenced price quote to Applicant. AT&T Texas Page 3 atsct Should Applicant or its agents, servants, or employees order or seek changes in the scope of the work, Southwestern Bell Telephone Company is entitled to seek from Applicant, its agents, servants, or employees, additional funds as necessary to perform the work, and additional time, as necessary to complete the work. Said request for additional funds and/or additional time will be through change order. All change orders will be in writing. All change orders will be submitted and accepted by Applicant, its agents, servants or employees, before Southwestern Bell Telephone Company, proceeds to execute the work or, if work has been initiated on the project, continues with executing the work except in an emergency endangering life or property. Applicant, its agents, servants or employees, are deemed to have accepted the terms of any change order by signing where indicated on the change order. Under no circumstances will Southwestern Bell Telephone Company request for a change order be deemed or used as evidence of delay on the project. Nor will any change order issued in this project be used to charge Southwestern Bell Telephone Company with responsibility for any alleged delay on the project. NO DAMAGE FOR DELAY Under no circumstances will Southwestern Bell Telephone Company be held liable to Applicant, Applicant's agents, employees or contractors, for any alleged delay on the project that forms the basis for this agreement for construction services. TIME TO COMPLETE Any representation by Southwestern Bell Telephone Company, its agents, servants or employees that the project, or any additional work authorized by change order, will be complete by a certain date or certain time period is strictly an estimate and not binding on Southwestern Bell Telephone Company, its agents, servants, or employees. All estimated completion dates are subject to changing conditions in the field, changes in the scope of the work, relocation of existing utilities not within Southwestern Bell Telephone Company control, Acts of God, weather delays, labor disputes, vendor/contractor disputes, and other conditions or circumstances that Southwestern Bell Telephone Company, its agents, servants, or employees, could not reasonably anticipate at the time of the estimate. CHOICE OF LAW AND ARBITRATION Should any dispute arise between the parties concerning the subject matter of this agreement, or any term contained therein, the parties agree that the dispute or claim shall be submitted to binding arbitration before the American Arbitration Association. The parties further agree that the prevailing party in any such dispute will be entitled to recover attorney's fees and costs of arbitration. Texas law governs the application of this agreement and all terms contained therein. INDEMNIFICATION AND HOLD HARMLESS Applicant, its agents, servants, and employees hereby agree to indemnify and hold harmless Southwestern Bell Telephone Company, and its employees, agents and contractors, from and against any and all claims, costs, expenses, judgments or actions for damage to property or injury or death to persons, and/or arising from or relating to the work that is the subject of this agreement, to the extent any such claims are caused by the negligent acts or omissions of the Applicant, its agents, servants, or employees. AT&T Texas Page 4 at&t ENTIRE AGREEMENT The parties agree that the terms set forth herein constitute the entire agreement and there are no other agreements regarding the project that is the subject of this agreement between the parties. MODIFICATION & NOTICE Any modification to this agreement must be made in writing and signed by both parties. Any party to this agreement may provide the other party with notice of any fact or condition by providing such information in writing and serving said writing via certified mail, return receipt requested ACCEPTED FOR CUSTOMER: Authorized Signature Title or Relationship to Company or Individual WlPyar- ACCEPTED FOR SOUTHWESTER BELL TELEPHONE COMPANY: Title: Manager -Custom Work Order Department Company: 4 fy OC 20A.&1d iZetAL Company: Southwestern Bell Telephone Company Printed Name: klint M1/MSOV11 Printed Name: Karen Benton Date: � ltfiwLrC- ( 74 201 Date: Se ierir2o09 oiy-z, Sy Z a3 C)