R-11-03-10-10C3 - 3/10/2011RESOLUTION NO. R -11-03-10-10C3
WHEREAS, the City of Round Rock wishes to enter into a Utility Adjustment Agreement
with Southwestern Bell Telephone Company d/b/a AT&T Texas ("AT&T") for the replacement of
existing overhead communications facilities with equivalent communication facilities in connection
with the Southwest Area Downtown Infrastructure Improvements 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 said Utility
Adjustment Agreement with AT&T, 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 10th day of March, 2011.
64-''
ALAN MCGRAW, Mayor
City of Round Rock, Texas
ATTEST:
SARA L. WHITE, City Secretary
O:\wdox\SCCInts\0112\ 1104\MUNICIPAL\00215778.DOC/rmc
AT&T Texas
West Main Street Duct Bank
February, 2011
UTILITY ADJUSTMENT AGREEMENT
EXHIBIT
THIS AGREEMENT, by and between the City of Round Rock, Texas, hereinafter identified as the
"City", and Southwestern Bell Telephone Company, d/b/a AT&T Texas, hereinafter identified as
"AT&T", is as follows:
WITNESSETH
WHEREAS, the City proposes to redevelop and beautify an area of the City generally within the
boundaries set forth on Exhibit A-1, attached hereto and hereinafter referred to as the "Project;" and
WHEREAS, redevelopment and beautification involves, among other things, the removal and relocation
of aerial utility facilities ("Facilities") into a City -owned underground duct bank facility (the "Duct
Bank") composed of concrete surrounding conduit pipes, and related manholes, handholes and other
appurtenances, constructed for the purpose of installing wire, fiber optic cable, and facilities for public
utilities; and
WHEREAS, the Duct Bank is to be located within public utility easements and/or roadway right of way
and generally located along alignments as shown in Exhibits A and J. as Segments 1 through 8; and
WHEREAS, the Duct Bank consists of three (3) different types of duct banks referred to as "E2", "E4",
and "E8" on Exhibits B-1, B-2, and B-3, and;
WHEREAS, pursuant to state and federal law, and subject to exceptions set forth herein, City is required
to reimburse AT&T for the costs of removal, relocation, or grade separation of AT&T's facilities
impacted by Project; and
WHEREAS, City has undertaken the design and construction of the Duct Bank and the Project; and
WHEREAS, the City has notified AT&T that the current location of certain of its facilities and
appurtenances (the "AT&T Facilities") are in conflict with the Project, and AT&T has agreed that the
City may undertake the removal, relocation, or other necessary adjustment of existing AT&T Facilities
impacted by the Project, as well as the construction and placement of four 4" conduits, designated as
conduits numbered 1, 2, 3, and 4 on Exhibits B-1, B-2, and B-3, and any necessary manholes, hand holes,
and other appurtenances (collectively, the "AT&T Conduit Facilities"), to be owned by AT&T and
located within the Duct Bank„ as necessary to accommodate the Project (collectively the "Adjustment");
and
WHEREAS, AT&T recognizes that time is of the essence in completing the work contemplated herein;
and
WHEREAS, the City and AT&T desire to implement the Adjustment of AT&T Facilities by entering
into this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of these premises and of the mutual covenants and agreements of
the parties hereto and other good and valuable consideration, the receipt and sufficiency of which being
hereby acknowledged, the City, and AT&T agree as follows:
AT T Utility Adjustment Agmt- 01-26-11 (00212993).DOC
1. Preparation of Plans.
The City has previously prepared plans, required specifications, and cost estimates (collectively,
the "Plans"), for the construction of the Duct Bank and the Adjustment of the AT&T Facilities,
including the construction and placement of the AT&T Conduit Facilities within the City -owned
Duct Bank. The AT&T Conduit Facilities are described on and identified in the Plans. For the
purposes of identification, a copy of the cover sheet of the Plans is attached hereto as Exhibit C.
2. Review and Approval by City and AT&T.
(a) The Plans for the construction of the Duct Bank and the Adjustment of the AT&T
Facilities have been previously reviewed and are hereby approved by AT&T. By approving the
Plans, AT&T confirmsthat the Plans are in compliance with AT&T's standards described in
paragraph 3(c).
(b) AT&T and City hereby agree upon the schedule for the construction and completion of
the Duct Bank and the Adjustment of the AT&T Facilities as shown in Exhibit D
3. Design and Construction Standards. All design and construction performed for the Adjustment
work which is the subject of this Agreement shall comply with and conform to the following:
(a) All applicable local, state and federal laws, regulations, decrees, ordinances and the policies
of City;
(b) The terms of all governmental permits or other approvals, as well as any private approvals
of third parties necessary for such work; and
(c) The standard specifications, standards of practice, and construction methods (collectively,
"standards") which AT&T customarily applies to facilities comparable to the AT&T
Facilities that are constructed by AT&T or for AT&T by its contractors at AT&T's
expense, which standards are current at the time this Agreement is signed by AT&T.
AT&T acknowledges receipt from the City of Project plans necessary to comply with the foregoing.
In case of any inconsistency among any of the standards referenced in this Agreement, the most
stringent standard shall apply.
4. Construction by City.
(a) AT&T hereby requests that the City perform, and City agrees to perform, the construction
necessary for the Adjustment of the AT&T Facilities and the City hereby agrees to perform
such construction, with the exception of splicing work performed by AT&T. The
Adjustment shall be performed in a good and workmanlike manner, and in accordance with
the Plans (except as modified pursuant to Paragraph 14).
(b) City shall retain such contractor or contractors as are necessary for the Adjustment of the
AT&T Facilities through the City's normal procedures, which contractors are subject to
City's and AT&T's approval.
5. City Responsible for Costs of Work. All work to be performed pursuant to this Agreement or
in connection with the Adjustment, whether performed by City, AT&T, or their contractors, shall
be at the sole cost and expense of the City, including but not limited to the engineering, splicing,
inspection, and other costs of AT&T. All costs charged to the City by AT&T shall be reasonable
and shall be computed using rates and schedules not exceeding those applicable to similar work
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performed by or for AT&T at AT&T's expense. The costs paid by the City pursuant to this
Agreement shall constitute full compensation to AT&T for all costs incurred by AT&T in
Adjusting the AT&T Facilities (including without limitation costs of relinquishing and/or
acquiring right of way). AT&T shall not be entitled to compensation for any Adjustment(s)
covered by this Agreement, including costs with respect to real property interests (either acquired
or relinquished), except as set forth in this Agreement.
6. Costs of the Work
The costs for Adjustment of the AT&T Facilities shall be derived from AT&T's direct and
indirect costs, including without limitation the costs incurred by AT&T for engineering design or
design review prior to or after execution of this Agreement, review, administration, inspection,
splicing, and the costs for any materials acquired by AT&T for or used in the Adjustment.
AT&T's costs are estimated on Exhibit E, attached hereto.
7. Billing, Payment, Records and Audits
(a) The City shall, upon completion of all the Adjustment work to be performed pursuant to
this Agreement and upon receipt of a final invoice from AT&T complying with the
requirements of Paragraph 8, make payment to AT&T in the amount of ninety percent
(90%) of AT&T's eligible costs as set forth in Paragraph 6, and as shown in such final
invoice (less amounts previously paid, and applicable credits). After completion of the
City's audit referenced in Paragraph 7(c) and the parties' mutual determination of any
necessary adjustment to the final invoice resulting therefrom, the City shall make any final
payment due to AT&T so that total payments will equal the total amount reflected on such
final invoice (as adjusted, if applicable). In the event the City chooses to audit the final
invoice, such audit shall be undertaken by the City within thirty (30) days of receipt of the
final invoice, and shall be completed within sixty (60) days thereafter.
(b) When requested by AT&T and properly invoiced in accordance with Paragraph 8, the City
shall make intermediate payments to AT&T based upon the progress of the work completed
at not more than monthly intervals, and such payments shall not exceed eighty percent
(80%) of AT&T's eligible costs as shown in each such invoice (less applicable credits).
Intermediate payments shall not be construed as final payment for any items included in the
intermediate payment.
(c) AT&T shall maintain complete and accurate cost records for all work performed pursuant
to this Agreement. AT&T shall maintain such records for four (4) years after receipt of
final payment hereunder. The City and its representatives shall be allowed to audit such
records during AT&T's regular business hours. Unsupported charges will not be
considered eligible for reimbursement. The parties shall mutually agree upon (and shall
promptly implement by payment or refund, as applicable) any financial adjustment found
necessary by the City's audit.
8. Invoices. The original and three (3) copies of each invoice shall be submitted to the City at the
address for notices stated in Paragraph 20, unless otherwise directed by the City pursuant to
Paragraph 20. AT&T shall make commercially reasonable efforts to submit final invoices not
later than one hundred twenty (120) days after completion of the Adjustment.
9. Betterment and Salvage.
The parties agree that the Adjustment pursuant to the Plans does not include any Betterment.
10. Project Management. City will provide project management during the Adjustment of the
AT&T Facilities.
11. Utility Investigations. City shall comply with the notification and locate process established
under the Underground Facility Damage Prevention and Safety Act, Ch. 251, Texas Utilities code
(the "One -Call Statute"). If the horizontal markings provided in response to City' s compliance
with the One -Call Statute indicate a potential conflict, City shall take all additional actions that
may be necessary to physically locate the facilities which are owned and/or operated by AT&T
and may be impacted by the Project.
12. Inspection and Acceptance by AT&T.
(a) Throughout the Adjustment construction hereunder, AT&T shall provide adequate
inspectors for such construction. The work shall be inspected by AT&T's inspector(s) at
least once each working day, and more often if such inspections are necessary for prudent
installation. Further, upon request by City or its contractors, AT&T shall furnish an
inspector at any reasonable time in which construction is underway pursuant to this
Agreement, including occasions when construction is underway in excess of the usual forty
(40) hour work week and at such other times as reasonably required. AT&T agrees to
promptly notify City of any concerns resulting from any such inspection.
(b) AT&T shall perform a final inspection of the Adjustment and the AT&T Conduit Facilities,
including conducting any tests as are necessary or appropriate, within ten (10) business
days after written notice of completion of construction hereunder. As part of the final
inspection, City shall, in the presence of AT&T's inspector, utilize a measuring pull tape to
demonstrate duct integrity and to obtain accurate footage for cable placement. AT&T shall
accept such construction if it is consistent with the performance standards described in
Paragraph 3, by giving written notice of such acceptance to City within said ten (10) day
period. If AT&T does not accept the construction, then AT&T shall, not later than the
expiration of said ten (10) day period, notify City in writing of its grounds for non-
acceptance and suggestions for correcting the problem, and if the suggested corrections are
justified, City will comply. AT&T shall re -inspect any revised construction (and re -test if
appropriate) and give notice of acceptance, not later than ten (10) business days after
completion of corrective work.
(c) From and after AT&T's acceptance (or deemed acceptance) of the AT&T Conduit
Facilities, AT&T agrees to accept ownership of, and full operation and maintenance
responsibility for the AT&T Conduit Facilities. City agrees that AT&T may have access to
the AT&T Conduit Facilities in the future, if necessary for repair, maintenance or
replacement, under reasonable procedures applicable to the City's right-of-way generally.
(d) City shall require all contractors to warranty all work performed. All warranties of work
shall be for a minimum period of two (2) year following acceptance of the work by City.
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13. Field Modifications. City shall provide AT&T with documentation of any approved field
modifications, including Utility Adjustment Field Modifications as well as minor changes
described in Paragraph 14, occurring in the Adjustment of the AT&T Facilities.
14. Amendments and Modifications. This Agreement and the Plans, once approved pursuant to
paragraph 2, may be amended or modified only by a written instrument executed by the parties
hereto.
For purposes of this Paragraph 14, "Utility Adjustment Field Modification" shall mean any
horizontal or vertical design change from the Plans previously approved by the City and AT&T,
due either to design of the Project or to conditions not accurately reflected in the approved Plans
(e.g., shifting the alignment of an 8 in. water line to miss a roadway drainage structure). A Utility
Adjustment Field Modification must be agreed upon by the City and AT&T. A minor change
(e.g., an additional water valve, an added utility marker at a ROW line, a change in vertical bend,
etc.) will not be considered a Utility Adjustment Field Modification and will not require written
approval of the Parties, but shall be shown in the documentation required pursuant to
Paragraph 13.
15. Relationship of the Parties. This Agreement does not in any way, and shall not be construed to,
create a principal/agent or joint venture relationship between the parties hereto and under no
circumstances shall AT&T or City be considered as or represent itself to be an agent of the other.
16. Entire Agreement. This Agreement embodies the entire agreement between the parties and
there are no oral or written agreements between the parties or any representations made which are
not expressly set forth herein.
17. Assignment; Binding Effect. Neither AT&T nor City may assign any of its rights or delegate
any of its duties under this Agreement without the prior written consent of the other party, which
consent may not be unreasonably withheld or delayed.
This Agreement shall bind AT&T, the City and their successors and permitted assigns, and
nothing in this Agreement nor in any approval subsequently provided by either party hereto shall
be construed as giving any benefits, rights, remedies, or claims to any other person, firm,
corporation or other entity, including, without limitation, any contractor or other party retained
for the Adjustment work or the public in general.
18. Breach by AT&T or City. If either party claims that the other has breached any of its
obligations under this Agreement, the party will notify the other in writing of such breach, and the
breaching party shall have 30 days following receipt of such notice in which to cure such breach,
before the non -breaching party may invoke any remedies which may be available to it as a result
of such breach; provided, however, that both during and after such period the breaching party
shall have the right, but not the obligation, to cure any breach.
19. Traffic Control. The City shall provide traffic control made necessary by the Adjustment work
performed by the City pursuant to this Agreement, in compliance with the requirements of the
Texas Manual on Uniform Traffic Control Devices. Betterment percentages calculated in
Paragraph 9 shall also apply to traffic control costs.
20. Notices. Except as otherwise expressly provided in this Agreement, all notices or
communications pursuant to this Agreement shall be sent or delivered to the following:
5
City:
With copy to:
AT&T:
With copy to:
City Manager
221 E. Main St.
Round Rock, Texas 78664
Phone: (512) 218-5400
Fax: (512) 218-7097
Stephan L. Sheets
City Attorney
309 E. Main St.
Round Rock, Texas 78664
Phone: (512) 255-8877
Fax: (512) 255-8986
Felix Arguijo
Area Manager
712 E. Huntland Drive, Room 229.
Austin, Texas 78752
Phone: (512) 870-4777
Fax: (512) 870-4711
David Welsch
General Attorney
208 S. Akard, Room 2930
Dallas, Texas 75202
Phone: (214) 757-3393
Fax: (214) 761-4065
Any notice or demand required herein shall be given (a) personally, (b) by certified or registered
mail, postage prepaid, return receipt requested, (c) by confirmed fax, or (d) by reliable messenger
or overnight courier to the appropriate address set forth above. Any notice served personally
shall be deemed delivered upon receipt, served by facsimile transmission shall be deem delivered
on the date of receipt as shown on the received facsimile, and served by certified or registered
mail or by reliable messenger or overnight courier shall be deemed delivered on the date of
receipt as shown on the addressee's registry or certification of receipt or on the date receipt is
refused as shown on the records or manifest of the U.S. Postal Service or such courier. Either
party may from time to time designate any other address for this purpose by written notice to the
other party; the City may designate another address by written notice to both parties.
21. Approvals. Any acceptance, approval, or any other like action (collectively "Approval")
required or permitted to be given by AT&T or the City pursuant to this Agreement:
(a) Must be in writing to be effective (except if deemed granted pursuant hereto),
(b) Shall not be unreasonably withheld or delayed; and if Approval is withheld, such
withholding shall be in writing and shall state with specificity the reason for withholding
such Approval, and every effort shall be made to identify with as much detail as possible
what changes are required for Approval.
6
22. Time.
(a) Time is of the essence in the performance of this Agreement.
(b) All references to "days" herein shall be construed to refer to calendar days, unless
otherwise stated.
(c) Neither the AT&T nor the City shall be liable to the other for any delay in performance
under this Agreement from any cause beyond its control and without its fault or negligence
("Force Majeure"), such as acts of God, acts of civil or military authority, fire, earthquake,
strike, unusually severe weather, floods or power blackouts.
23. Continuing Performance. In the event of a dispute, the parties agree to continue their respective
performance hereunder to the extent feasible in light of the dispute, including paying billings, and
such continuation of efforts and payment of billings shall not be construed as a waiver of any
legal right.
24. Equitable Relief. The parties acknowledge and agree that delays in Adjustment of the AT&T
Facilities will impact the public convenience, safety and welfare, and that (without limiting the
parties' remedies hereunder) monetary damages would be inadequate to compensate for delays in
the construction of the Project. Consequently, the parties hereto shall be entitled to specific
performance or other equitable relief in the event of any breach of this Agreement which
threatens to delay construction of the Project; provided, however, that the fact that specific
performance or other equitable relief may be granted shall not prejudice any claims for payment
or otherwise related to performance of the Adjustment work hereunder.
25. Authority. City and AT&T each represents and warrants to the other party that the warranting
party possesses the legal authority to enter into this Agreement and that it has taken all actions
necessary to exercise that authority and to lawfully authorize its undersigned signatory to execute
this Agreement and to bind such party to its terms. Each person executing this Agreement on
behalf of a party warrants that he or she is duly authorized to enter into this Agreement on behalf
of such party and to bind it to the terms hereof.
26. Cooperation. The parties acknowledge that the timely completion of the Project will be
influenced by the ability of the parties to coordinate their activities, communicate with each other,
and respond promptly to reasonable requests. Subject to the terms and conditions of this
Agreement, the parties agree to take all steps reasonably required to coordinate their respective
duties hereunder in a manner consistent with the City's current and future construction schedules
for the Project.
27. Termination. If the Project is canceled or modified so as to eliminate the necessity of the
Adjustment work described herein, then the City shall notify AT&T in writing and City reserves
the right to thereupon terminate this Agreement. Upon such termination, City shall be
responsible for restoring AT&T Facilities to an operable condition at City's cost, and the parties
shall negotiate in good faith an amendment that shall provide mutually acceptable terms and
conditions for handling the respective rights and liabilities of the parties relating to such
termination.
28. Nondiscrimination. Each party hereto agrees, with respect to the work performed by such party
pursuant to this Agreement, that such party shall not discriminate on the grounds of race, color,
7
sex, national origin or disability in the selection and/or retention of contractors and consultants,
including procurement of materials and leases of equipment.
29. Captions. The captions and headings of the various paragraphs of this Agreement are for
convenience and identification only, and shall not be deemed to limit or define the contest of their
respective paragraphs.
30. Counterparts. This Agreement may be executed in any number of counterparts. Each such
counterpart hereof shall be deemed to be an original instrument but all such counterparts together
shall constitute one and the same instrument.
31. Effective Date. This Agreement shall become effective upon the date of signing by the last party
signing this Agreement.
32. Limitation of Liability
NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY,
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL,
INCIDENTAL, INDIRECT, PUNITIVE, RELIANCE OR CONSEQUENTIAL DAMAGES,
WHETHER FORESEEABLE OR NOT, INCLUDING, BUT NOT LIMITED TO, LOSS OF
PROPI I S OR REVENUE, COST OF CAPITAL, COST OF REPLACEMENT SERVICES, OR
CLAIMS OF CUSTOMERS OR OF ANY OTHER THIRD PARTIES, OCCASIONED BY
ANY CAUSE WHATSOEVER, INCLUDING, WITHOUT LIMITATION BREACH OF
CONTRACT, BREACH OF WARRANTY, NEGLIGENCE OR STRICT LIABILITY.
33. No Waiver. Nothing herein shall be construed to limit AT&T's rights to reconfigure its
facilities within the area described on Exhibit A-1 in the future, including its rights to place
additional or replacement facilities within the public rights of way or platted or private easements,
to abandon facilities, or to replace, repair or modify existing facilities; provided however, that
AT&T shall place any necessary additional or replacement lines or cables within the AT&T
Conduit Facilities if such Facilities are usable, have available capacity and provide connections to
the locations necessary.
CITY OF ROUND ROCK
By:
Authorized Signature
Printed
Name: Alan McGraw
SOUTHWESTERN BELL TELEPHONE
COMPANY
ly Authorized Representative
By:
Printed
Name:
Title: Mayor Title:
Date: Date:
8
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Exhibit A
Easement Segments for Southwest Downtown Project
Segment No. 1
Starting at Point A, as shown on Exhibit A-1, identified by the x:y coordinates
of 3132031.94, 10158333.17 (NAD 83, Texas State Plane Central, FIPS
4203), thence a distance of 115.0 feet to Point B, identified by the x:y
coordinates of 3132127.16, 10158365.78 (NAD 83, Texas State Plane
Central, FIPS 4203).
Segment No. 2
Starting at Point B, as shown on Exhibit A-1, identified by the x:y coordinates
of 3132127.16, 10158365.78 (NAD 83, Texas State Plane Central, FIPS
4203), thence a distance of 220.0 feet to Point C, identified by the x:y
coordinates of 3132335.23, 10158438.76 (NAD 83, Texas State Plane
Central, FIPS 4203).
Segment No. 3
Starting at Point D, as shown on Exhibit A-1, identified by the x:y
coordinates of 3131519.35, 10158548.68 (NAD 83, Texas State Plane
Central, FIPS 4203), thence a distance of 165.0 feet to Point E, identified by
the x:y coordinates of 3131367.88, 10158495.73 (NAD 83, Texas State
Plane Central, FIPS 4203).
Segment No. 4
Starting at Point E, as shown on Exhibit A-1, identified by the x:y. coordinates
of 3131367.88, 10158495.73 (NAD 83, Texas State Plane Central, FIPS
4203), thence a distance of 165.0 feet to Point F, identified by the x:y
coordinates of 3131424.22, 10158338.73 (NAD 83, Texas State Plane
Central, FIPS 4203).
Segment No. 5
Starting at Point F, as shown on Exhibit A-1, identified by the x:y coordinates
of 3131424.22, 10158338.73 (NAD 83, Texas State Plane Central, FIPS
4203), thence a distance of 327.0 feet to Point G, identified by the x:y
coordinates of 3131131.74, 10158236.69 (NAD 83, Texas State Plane
Central, FIPS 4203).
EXHIBIT
Page 1 of 2
l
Segment No. 6
Starting at Point G, as shown on Exhibit A-1, identified by the x:y
coordinates of 3131131.74, 10158236.69 (NAD 83, Texas State Plane
Central, FIPS 4203), thence a distance of 55.0 feet to Point H, identified by
the x:y coordinates of 3131103.08, 10158288.28 (NAD 83, Texas State
Plane Central, FIPS 4203).
Segment No. 7
Starting at Point G, as shown on Exhibit A-1, identified by the x:y
coordinates of 3131131.74, 10158236.69 (NAD 83, Texas State Plane
Central, FIPS 4203), thence a distance of 73.0 feet to Point I, identified by
the x:y coordinates of 3131053.12, 10158213.76 (NAD 83, Texas State
Plane Central, FIPS 4203).
Segment No. 8
Starting at Point G, as shown on Exhibit A-1, identified by the x:y
coordinates of 3131131.74, 10158236.69 (NAD 83, Texas State Plane
Central, FIPS 4203), thence a distance of 65.0 feet to Point 3, identified by
the x:y coordinates of 3131141.56, 10158181.00 (NAD 83, Texas State
Plane Central, FIPS 4203).
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• FROM AT&T AUSTIN CMC
NON) 8.23 10 9:12/ST. 9:11/NO. 4860711391 P 3
AT&T Texas
Page 1
at&t
APPLICATION and LETTER OF AGREEMENT FOR CONSTRUCTION SERVICES
August 23, 2010
BILL TO: City of Round Rook
WORK SITE LOCATION;
DESCRIPTION OP CONSTRUCTION
SERVICES TO BE PERFORMED;
CWOTS Record Number: 1429T10
At N. Harris St. & corner of W. Main St & Blair St.
The work will consist of relocating the aerial facititio*.
LABOR EXPENSE: $25,404.08 MATERIAL EXPENSE; $8,305.94
OVERHEAD EXPENSE: $0 TARIFF/ LICENSE AGREEMENT EXPENSE: $0
ES'T'IMATED CHARGE FOR
CONSTRUCTION SERVICES:
ESTIMATED COST: $33,710.83
•" (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 to accordance with Southwestern Bell Telephone Companye 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 August 23, 2010. 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 $33,710.83 prior to commencement of the work.
Charges for construotion 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 afl work
activity an the project until payment is made.
When the Parties agree to interval Billing', the balance of the Contract Price or Aotual Cost (as applicable) will be
made In month/ 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 o u o : months to complete.
EXHIBIT
FROM AT&T AUSTIN CMC
at&t
TAXES
(MON) 8. 23` 10 9:12/ST, 9:11/NO. 4860711391 F 4
AT&T Texas
Page 2
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 told" 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
mailed 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 Oanoelle#ion from the amount of -the advance payment. Any amount remaining will be
refunded to Applicant.
CHANGES IN SCOPE OF WORK OR CHAt S,IN r lELD CONDITIONS
Should concealed eencitions 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.
FROM AT&T AUSTIN C},C
at&t
(1{0N) 8. 23` 10 9:12/ST. 9:1 1/NO. 4860711391 P 5
AT&T Texas
Page 3
Shouicj Applicant or its agents, servants, or employees order or seek changes in the scope of the work,
Southwestern Belt 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, it 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 en 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 protect be used to charge
Southwestern Bell Telephone Company with responsibility for any alleged delay on the project.
NO DAMAGE Fon 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 circumstanoes 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 patties 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 10 recover attorney's fees and costs of arbttratton. Texas law governs the application of this agreement
and all terms contained therein,
INDEMNIFICATION AND HOLD HARMLESS
Appiioant, 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.
FROM -AT&T AUSTIN CMC (MON) 8.23' 10 9:12/ST, 9:11/NO. 4860711391 P 6
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 protect 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
TE EPHONE COMPANY:
Authorized Signature J�J ` • = AA
Title: Manager-Cus om Work Order Department
Title or Relationship to Company or individual
Company: _ Company: Southwestern Bell Telephone Comoany
Printed Name: Printed Name; Karen Benton,
Date:
Date: aunt 'si ^� 24_'Q�'u c 2 �, 2 D //
Ci Council Agenda Summar Sheet
ROUND ROCK, TEXAS �_A.-�.K_ ..,.._....,_��.����.._�.�__
PURPOSE. PASSION. PROSPERITY
Agenda Item No. 10C3.
Agenda Caption:
Consider a resolution authorizing the Mayor to execute a Utility Adjustment Agreement
with Southwestern Bell Telephone Company, dba AT&T Texas for the West Main Street
Duct Bank Project.
Meeting Date: March 10, 2011
Department: Infrastructure Development and Construction Management
Staff Person making presentation: Tom Word, P.E.
Chief of Public Works Operations
Item Summary:
The Southwest Downtown project required the relocation of dry utility infrastructure. This Utility Adjustment
Agreement is for Southwestern Bell Telephone Company, d/b/a AT&T Texas to replace the existing overhead
communications facilities with equivalent communication facilities utilizing manholes, duct banks and installation of
pedestals by the City of Round Rock in accordance with Southwestern Bell Telephone Company, d/b/a AT&T Texas
specifications for the Southwest Downtown District project.
Construction for this project started in December of 2010 and is scheduled for completion in September 2011. The
project provides for the reconstruction of Main Street, sidewalks and landscaping from San Saba Street to Blair
Street.
This is the second of two documents required by Southwestern Bell Telephone Company, d/b/a AT&T Texas. The
first document is an Application and Letter of Agreement for Constructions Services.
Strategic Plan Relevance:
26.0 - Construct major elements of the transportation and mobility system as approved by Council in the Master
Transportation Plan.
Cost: $33,710.83
Source of Funds: 4B -Round Rock Transportation Corporation -Construction
Date of Public Hearing (if required): N/A
Recommended Action: Approval
EXECUTED
DOCUMENT
FOLLOWS
AT&T Texas
West Main Street Duct Bank
February, 2011
UTILITY ADJUSTMENT AGREEMENT
THIS AGREEMENT, by and between the City of Round Rock, Texas, hereinafter identified as the
"City", and Southwestern Bell Telephone Company, d/b/a AT&T Texas, hereinafter identified as
"AT&T", is as follows:
WITNESSETH
WHEREAS, the City proposes to redevelop and beautify an area of the City generally within the
boundaries set forth on Exhibit A-1, attached hereto and hereinafter referred to as the "Project;" and
WHEREAS, redevelopment and beautification involves, among other things, the removal and relocation
of aerial utility facilities ("Facilities") into a City -owned underground duct bank facility (the "Duct
Bank") composed of concrete surrounding conduit pipes, and related manholes, handholes and other
appurtenances, constructed for the purpose of installing wire, fiber optic cable, and facilities for public
utilities; and
WHEREAS, the Duct Bank is to be located within public utility easements and/or roadway right of way
and generally located along alignments as shown in Exhibits A and AA1 as Segments 1 through 8; and
WHEREAS, the Duct Bank consists of three (3) different types of duct banks referred to as "E2", "E4",
and "E8" on Exhibits B-1, B-2, and B-3, and;
WHEREAS, pursuant to state and federal law, and subject to exceptions set forth herein, City is required
to reimburse AT&T for the costs of removal, relocation, or grade separation of AT&T's facilities
impacted by Project; and
WHEREAS, City has undertaken the design and construction of the Duct Bank and the Project; and
WHEREAS, the City has notified AT&T that the current location of certain of its facilities and
appurtenances (the "AT&T Facilities") are in conflict with the Project, and AT&T has agreed that the
City may undertake the removal, relocation, or other necessary adjustment of existing AT&T Facilities
impacted by the Project, as well as the construction and placement of four 4" conduits, designated as
conduits numbered 1, 2, 3, and 4 on Exhibits B-1, B-2, and B-3, and any necessary manholes, hand holes,
and other appurtenances (collectively, the "AT&T Conduit Facilities"), to be owned by AT&T and
located within the Duct Bank„ as necessary to accommodate the Project (collectively the "Adjustment");
and
WHEREAS, AT&T recognizes that time is of the essence in completing the work contemplated herein;
and
WHEREAS, the City and AT&T desire to implement the Adjustment of AT&T Facilities by entering
into this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of these premises and of the mutual covenants and agreements of
the parties hereto and other good and valuable consideration, the receipt and sufficiency of which being
hereby acknowledged, the City, and AT&T agree as follows:
AT T Utility Adjustment Agmt- 01-26-11 (00212993).DOC
— I1— cog —LD—Io4,3
1. Preparation of Plans.
The City has previously prepared plans, required specifications, and cost estimates (collectively,
the "Plans"), for the construction of the Duct Bank and the Adjustment of the AT&T Facilities,
including the construction and placement of the AT&T Conduit Facilities within the City -owned
Duct Bank. The AT&T Conduit Facilities are described on and identified in the Plans. For the
purposes of identification, a copy of the cover sheet of the Plans is attached hereto as Exhibit C.
2. Review and Approval by City and AT&T.
(a) The Plans for the construction of the Duct Bank and the Adjustment of the AT&T
Facilities have been previously reviewed and are hereby approved by AT&T. By approving the
Plans, AT&T confirms that the Plans are in compliance with AT&T's standards described in
paragraph 3(c).
(b) AT&T and City hereby agree upon the schedule for the construction and completion of
the Duct Bank and the Adjustment of the AT&T Facilities as shown in Exhibit D
3. Design and Construction Standards. All design and construction performed for the Adjustment
work which is the subject of this Agreement shall comply with and conform to the following:
(a) All applicable local, state and federal laws, regulations, decrees, ordinances and the policies
of City;
(b) The terms of all governmental permits or other approvals, as well as any private approvals
of third parties necessary for such work; and
(c) The standard specifications, standards of practice, and construction methods (collectively,
"standards") which AT&T customarily applies to facilities comparable to the AT&T
Facilities that are constructed by AT&T or for AT&T by its contractors at AT&T's
expense, which standards are current at the time this Agreement is signed by AT&T.
AT&T acknowledges receipt from the City of Project plans necessary to comply with the foregoing.
In case of any inconsistency among any of the standards referenced in this Agreement, the most
stringent standard shall apply.
4. Construction by City.
(a) AT&T hereby requests that the City perform, and City agrees to perform, the construction
necessary for the Adjustment of the AT&T Facilities and the City hereby agrees to perform
such construction, with the exception of splicing work performed by AT&T. The
Adjustment shall be performed in a good and workmanlike manner, and in accordance with
the Plans (except as modified pursuant to Paragraph 14).
(b) City shall retain such contractor or contractors as are necessary for the Adjustment of the
AT&T Facilities through the City's normal procedures, which contractors are subject to
City's and AT&T's approval.
5. City Responsible for Costs of Work. All work to be performed pursuant to this Agreement or
in connection with the Adjustment, whether performed by City, AT&T, or their contractors, shall
be at the sole cost and expense of the City, including but not limited to the engineering, splicing,
inspection, and other costs of AT&T. All costs charged to the City by AT&T shall be reasonable
and shall be computed using rates and schedules not exceeding those applicable to similar work
2
performed by or for AT&T at AT&T's expense. The costs paid by the City pursuant to this
Agreement shall constitute full compensation to AT&T for all costs incurred by AT&T in
Adjusting the AT&T Facilities (including without limitation costs of relinquishing and/or
acquiring right of way). AT&T shall not be entitled to compensation for any Adjustment(s)
covered by this Agreement, including costs with respect to real property interests (either acquired
or relinquished), except as set forth in this Agreement.
6. Costs of the Work
The costs for Adjustment of the AT&T Facilities shall be derived from AT&T's direct and
indirect costs, including without limitation the costs incurred by AT&T for engineering design or
design review prior to or after execution of this Agreement, review, administration, inspection,
splicing, and the costs for any materials acquired by AT&T for or used in the Adjustment.
AT&T's costs are estimated on Exhibit E, attached hereto.
7. Billing, Payment, Records and Audits
(a) The City shall, upon completion of all the Adjustment work to be performed pursuant to
this Agreement and upon receipt of a final invoice from AT&T complying with the
requirements of Paragraph 8, make payment to AT&T in the amount of ninety percent
(90%) of AT&T's eligible costs as set forth in Paragraph 6, and as shown in such final
invoice (less amounts previously paid, and applicable credits). After completion of the
City's audit referenced in Paragraph 7(c) and the parties' mutual determination of any
necessary adjustment to the final invoice resulting therefrom, the City shall make any final
payment due to AT&T so that total payments will equal the total amount reflected on such
final invoice (as adjusted, if applicable). In the event the City chooses to audit the final
invoice, such audit shall be undertaken by the City within thirty (30) days of receipt of the
final invoice, and shall be completed within sixty (60) days thereafter.
(b) When requested by AT&T and properly invoiced in accordance with Paragraph 8, the City
shall make intermediate payments to AT&T based upon the progress of the work completed
at not more than monthly intervals, and such payments shall not exceed eighty percent
(80%) of AT&T's eligible costs as shown in each such invoice (less applicable credits).
Intermediate payments shall not be construed as final payment for any items included in the
intermediate payment.
(c) AT&T shall maintain complete and accurate cost records for all work performed pursuant
to this Agreement. AT&T shall maintain such records for four (4) years after receipt of
final payment hereunder. The City and its representatives shall be allowed to audit such
records during AT&T's regular business hours. Unsupported charges will not be
considered eligible for reimbursement. The parties shall mutually agree upon (and shall
promptly implement by payment or refund, as applicable) any financial adjustment found
necessary by the City's audit.
8. Invoices. The original and three (3) copies of each invoice shall be submitted to the City at the
address for notices stated in Paragraph 20, unless otherwise directed by the City pursuant to
Paragraph 20. AT&T shall make commercially reasonable efforts to submit final invoices not
later than one hundred twenty (120) days after completion of the Adjustment.
9. Betterment and Salvage.
The parties agree that the Adjustment pursuant to the Plans does not include any Betterment.
3
10. Project Management. City will provide project management during the Adjustment of the
AT&T Facilities.
11. Utility Investigations. City shall comply with the notification and locate process established
under the Underground Facility Damage Prevention and Safety Act, Ch. 251, Texas Utilities code
(the "One -Call Statute"). If the horizontal markings provided in response to City's compliance
with the One -Call Statute indicate a potential conflict, City shall take all additional actions that
may be necessary to physically locate the facilities which are owned and/or operated by AT&T
and may be impacted by the Project.
12. Inspection and Acceptance by AT&T.
(a) Throughout the Adjustment construction hereunder, AT&T shall provide adequate
inspectors for such construction. The work shall be inspected by AT&T's inspector(s) at
least once each working day, and more often if such inspections are necessary for prudent
installation. Further, upon request by City or its contractors, AT&T shall furnish an
inspector at any reasonable time in which construction is underway pursuant to this
Agreement, including occasions when construction is underway in excess of the usual forty
(40) hour work week and at such other times as reasonably required. AT&T agrees to
promptly notify City of any concerns resulting from any such inspection.
(b) AT&T shall perform a final inspection of the Adjustment and the AT&T Conduit Facilities,
including conducting any tests as are necessary or appropriate, within ten (10) business
days after written notice of completion of construction hereunder. As part of the final
inspection, City shall, in the presence of AT&T's inspector, utilize a measuring pull tape to
demonstrate duct integrity and to obtain accurate footage for cable placement. AT&T shall
accept such construction if it is consistent with the performance standards described in
Paragraph 3, by giving written notice of such acceptance to City within said ten (10) day
period. If AT&T does not accept the construction, then AT&T shall, not later than the
expiration of said ten (10) day period, notify City in writing of its grounds for non-
acceptance and suggestions for correcting the problem, and if the suggested corrections are
justified, City will comply. AT&T shall re -inspect any revised construction (and re -test if
appropriate) and give notice of acceptance, not later than ten (10) business days after
completion of corrective work.
(c) From and after AT&T's acceptance (or deemed acceptance) of the AT&T Conduit
Facilities, AT&T agrees to accept ownership of, and full operation and maintenance
responsibility for the AT&T Conduit Facilities. City agrees that AT&T may have access to
the AT&T Conduit Facilities in the future, if necessary for repair, maintenance or
replacement, under reasonable procedures applicable to the City's right-of-way generally.
(d) City shall require all contractors to warranty all work performed. All warranties of work
shall be for a minimum period of two (2) year following acceptance of the work by City.
4
13. Field Modifications. City shall provide AT&T with documentation of any approved field
modifications, including Utility Adjustment Field Modifications as well as minor changes
described in Paragraph 14, occurring in the Adjustment of the AT&T Facilities.
14. Amendments and Modifications. This Agreement and the Plans, once approved pursuant to
paragraph 2, may be amended or modified only by a written instrument executed by the parties
hereto.
For purposes of this Paragraph 14, "Utility Adjustment Field Modification" shall mean any
horizontal or vertical design change from the Plans previously approved by the City and AT&T,
due either to design of the Project or to conditions not accurately reflected in the approved Plans
(e.g., shifting the alignment of an 8 in. water line to miss a roadway drainage structure). A Utility
Adjustment Field Modification must be agreed upon by the City and AT&T. A minor change
(e.g., an additional water valve, an added utility marker at a ROW line, a change in vertical bend,
etc.) will not be considered a Utility Adjustment Field Modification and will not require written
approval of the Parties, but shall be shown in the documentation required pursuant to
Paragraph 13.
15. Relationship of the Parties. This Agreement does not in any way, and shall not be construed to,
create a principal/agent or joint venture relationship between the parties hereto and under no
circumstances shall AT&T or City be considered as or represent itself to be an agent of the other.
16. Entire Agreement. This Agreement embodies the entire agreement between the parties and
there are no oral or written agreements between the parties or any representations made which are
not expressly set forth herein.
17. Assignment; Binding Effect. Neither AT&T nor City may assign any of its rights or delegate
any of its duties under this Agreement without the prior written consent of the other party, which
consent may not be unreasonably withheld or delayed.
This Agreement shall bind AT&T, the City and their successors and permitted assigns, and
nothing in this Agreement nor in any approval subsequently provided by either party hereto shall
be construed as giving any benefits, rights, remedies, or claims to any other person, firm,
corporation or other entity, including, without limitation, any contractor or other party retained
for the Adjustment work or the public in general.
18. Breach by AT&T or City. If either party claims that the other has breached any of its
obligations under this Agreement, the party will notify the other in writing of such breach, and the
breaching party shall have 30 days following receipt of such notice in which to cure such breach,
before the non -breaching party may invoke any remedies which may be available to it as a result
of such breach; provided, however, that both during and after such period the breaching party
shall have the right, but not the obligation, to cure any breach.
19. Traffic Control. The City shall provide traffic control made necessary by the Adjustment work
performed by the City pursuant to this Agreement, in compliance with the requirements of the
Texas Manual on Uniform Traffic Control Devices. Betterment percentages calculated in
Paragraph 9 shall also apply to traffic control costs.
20. Notices. Except as otherwise expressly provided in this Agreement, all notices or
communications pursuant to this Agreement shall be sent or delivered to the following:
5
City:
With copy to:
AT&T:
With copy to:
City Manager
221 E. Main St.
Round Rock, Texas 78664
Phone: (512) 218-5400
Fax: (512) 218-7097
Stephan L. Sheets
City Attorney
309 E. Main St.
Round Rock, Texas 78664
Phone: (512) 255-8877
Fax: (512) 255-8986
Felix Arguijo
Area Manager
712 E. Huntland Drive, Room 229.
Austin, Texas 78752
Phone: (512) 870-4777
Fax: (512) 870-4711
David Welsch
General Attorney
208 S. Akard, Room 2930
Dallas, Texas 75202
Phone: (214) 757-3393
Fax: (214) 761-4065
Any notice or demand required herein shall be given (a) personally, (b) by certified or registered
mail, postage prepaid, return receipt requested, (c) by confirmed fax, or (d) by reliable messenger
or overnight courier to the appropriate address set forth above. Any notice served personally
shall be deemed delivered upon receipt, served by facsimile transmission shall be deem delivered
on the date of receipt as shown on the received facsimile, and served by certified or registered
mail or by reliable messenger or overnight courier shall be deemed delivered on the date of
receipt as shown on the addressee's registry or certification of receipt or on the date receipt is
refused as shown on the records or manifest of the U.S. Postal Service or such courier. Either
party may from time to time designate any other address for this purpose by written notice to the
other party; the City may designate another address by written notice to both parties.
21. Approvals. Any acceptance, approval, or any other like action (collectively "Approval")
required or permitted to be given by AT&T or the City pursuant to this Agreement:
(a) Must be in writing to be effective (except if deemed granted pursuant hereto),
(b) Shall not be unreasonably withheld or delayed; and if Approval is withheld, such
withholding shall be in writing and shall state with specificity the reason for withholding
such Approval, and every effort shall be made to identify with as much detail as possible
what changes are required for Approval.
6
22. Time.
(a) Time is of the essence in the performance of this Agreement.
(b) All references to "days" herein shall be construed to refer to calendar days, unless
otherwise stated.
(c) Neither the AT&T nor the City shall be liable to the other for any delay in performance
under this Agreement from any cause beyond its control and without its fault or negligence
("Force Majeure"), such as acts of God, acts of civil or military authority, fire, earthquake,
strike, unusually severe weather, floods or power blackouts.
23. Continuing Performance. In the event of a dispute, the parties agree to continue their respective
performance hereunder to the extent feasible in light of the dispute, including paying billings, and
such continuation of efforts and payment of billings shall not be construed as a waiver of any
legal right.
24. Equitable Relief. The parties acknowledge and agree that delays in Adjustment of the AT&T
Facilities will impact the public convenience, safety and welfare, and that (without limiting the
parties' remedies hereunder) monetary damages would be inadequate to compensate for delays in
the construction of the Project. Consequently, the parties hereto shall be entitled to specific
performance or other equitable relief in the event of any breach of this Agreement which
threatens to delay construction of the Project; provided, however, that the fact that specific
performance or other equitable relief may be granted shall not prejudice any claims for payment
or otherwise related to performance of the Adjustment work hereunder.
25. Authority. City and AT&T each represents and warrants to the other party that the warranting
party possesses the legal authority to enter into this Agreement and that it has taken all actions
necessary to exercise that authority and to lawfully authorize its undersigned signatory to execute
this Agreement and to bind such party to its terms. Each person executing this Agreement on
behalf of a party warrants that he or she is duly authorized to enter into this Agreement on behalf
of such party and to bind it to the terms hereof.
26. Cooperation. The parties acknowledge that the timely completion of the Project will be
influenced by the ability of the parties to coordinate their activities, communicate with each other,
and respond promptly to reasonable requests. Subject to the terms and conditions of this
Agreement, the parties agree to take all steps reasonably required to coordinate their respective
duties hereunder in a manner consistent with the City's current and future construction schedules
for the Project.
27. Termination. If the Project is canceled or modified so as to eliminate the necessity of the
Adjustment work described herein, then the City shall notify AT&T in writing and City reserves
the right to thereupon terminate this Agreement. Upon such termination, City shall be
responsible for restoring AT&T Facilities to an operable condition at City's cost, and the parties
shall negotiate in good faith an amendment that shall provide mutually acceptable terms and
conditions for handling the respective rights and liabilities of the parties relating to such
termination.
28. Nondiscrimination. Each party hereto agrees, with respect to the work performed by such party
pursuant to this Agreement, that such party shall not discriminate on the grounds of race, color,
7
sex, national origin or disability in the selection and/or retention of contractors and consultants,
including procurement of materials and leases of equipment.
29. Captions. The captions and headings of the various paragraphs of this Agreement are for
convenience and identification only, and shall not be deemed to limit or define the contest of their
respective paragraphs.
30. Counterparts. This Agreement may be executed in any number of counterparts. Each such
counterpart hereof shall be deemed to be an original instrument but all such counterparts together
shall constitute one and the same instrument.
31. Effective Date. This Agreement shall become effective upon the date of signing by the last party
signing this Agreement.
32. Limitation of Liability
NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY,
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL,
INCIDENTAL, INDIRECT, PUNITIVE, RELIANCE OR CONSEQUENTIAL DAMAGES,
WHETHER FORESEEABLE OR NOT, INCLUDING, BUT NOT LIMITED TO, LOSS OF
PROFITS OR REVENUE, COST OF CAPITAL, COST OF REPLACEMENT SERVICES, OR
CLAIMS OF CUSTOMERS OR OF ANY OTHER THIRD PARTIES, OCCASIONED BY
ANY CAUSE WHATSOEVER, INCLUDING, WITHOUT LIMITATION BREACH OF
CONTRACT, BREACH OF WARRANTY, NEGLIGENCE OR STRICT LIABILITY.
33. No Waiver. Nothing herein shall be construed to limit AT&T's rights to reconfigure its
facilities within the area described on Exhibit A-1 in the future, including its rights to place
additional or replacement facilities within the public rights of way or platted or private easements,
to abandon facilities, or to replace, repair or modify existing facilities; provided however, that
AT&T shall place any necessary additional or replacement lines or cables within the AT&T
Conduit Facilities if such Facilities are usable, have available capacity and provide connections to
the locations necessary.
CITY OF ROUND ROCK
By:
Authorized Signature
Printed
Name: Alan McGraw
SOUTHW STERN BELL TELEPHONE
By:
Dul Authorized Representative
Printed
i
Name:
Title: Mayor ''11 ! Title:
Date: " LO ' 1' ` Date:
8
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Exhibit A
Easement Segments for Southwest Downtown Project
Segment No. 1.
Starting at Point A, as shown on Exhibit A-1, identified by the x:y coordinates
of 3132031.94, 10158333.17 (NAD 83, Texas State Plane Central, FIPS
4203), thence a distance of 115.0 feet to Point B, identified by the x:y
coordinates of 3132127.16, 10158365.78 (NAD 83, Texas State Plane
Central, FIPS 4203).
Segment No. 2
Starting at Point B, as shown on Exhibit A-1, identified by the x:y coordinates
of 3132127.16, 10158365.78 (NAD 83, Texas State Plane Central, FIPS
4203), thence a distance of 220.0 feet to Point C, identified by the x:y
coordinates of 3132335.23, 10158438.76 (NAD 83, Texas State Plane
Central, FIPS 4203).
Segment No. 3
Starting at Point D, as shown on Exhibit A-1, identified by the x:y
coordinates of 3131519.35, 10158548.68 (NAD 83, Texas State Plane
Central, FIPS 4203), thence a distance of 165.0 feet to Point E, identified by
the x:y coordinates of 3131367.88, 10158495.73 (NAD 83, Texas State
Plane Central, FIPS 4203).
Segment No. 4
Starting at Point E, as shown on Exhibit A-1, identified by the x:y. coordinates
of 3131367.88, 10158495.73 (NAD 83, Texas State Plane Central, FIPS
4203), thence a distance of 165.0 feet to Point F, identified by the x:y
coordinates of 3131424.22, 10158338.73 (NAD 83, Texas State Plane
Central, FIPS 4203).
Segment No. 5
Starting at Point F, as shown on Exhibit A-1, identified by the x:y coordinates
of 3131424.22, 10158338.73 (NAD 83, Texas State Plane Central, FIPS
4203), thence a distance of 327.0 feet to Point G, identified by the x:y
coordinates of 3131131.74, 10158236.69 (NAD 83, Texas State Plane
Central, FIPS 4203).
EXHIBIT
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Page 1 of 2
1
Segment No. 6
Starting at Point G, as shown on Exhibit A-1, identified by the x:y
coordinates of 3131131.74, 10158236.69 (NAD 83, Texas State Plane
Central, FIPS 4203), thence a distance of 55.0 feet to Point H, identified by
the x:y coordinates of 3131103.08, 10158288.28 (NAD 83, Texas State
Plane Central, FIPS 4203).
Segment No. 7
Starting at Point G, as shown on Exhibit A-1, identified by the x:y
coordinates of 3131131.74, 10158236.69 (NAD 83, Texas State Plane
Central, FIPS 4203), thence a distance of 73.0 feet to Point I, identified by
the x:y coordinates of 3131053.12, 10158213.76 (NAD 83, Texas State
Plane Central, FIPS 4203).
Segment No. 8
Starting at Point G, as shown on Exhibit A-1, identified by the x:y
coordinates of 3131131.74, 10158236.69 (NAD 83, Texas State Plane
Central, FIPS 4203), thence a distance of 65.0 feet to Point 3, identified by
the x:y coordinates of 3131141.56, 10158181.00 (NAD 83, Texas State
Plane Central, FIPS 4203).
EXHIBIT
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FROM AT&T AUSTIN CNC
atslt
((ONr) 8. 23' 10 9:12/ST. 9:11/NO. 4860711391 P 3
AT&T Texas
Page 1
APPLICATION end LETTER OF AGREEMENT FOR CONSTRUCTION SERVICES
August 23, 2010
BILL TO: City of Round Rook
WORK SITE LOCATION;
DESCRIPTION OP CONSTRUCTION
SERVICES TO BE PERFORMED:
CWOTS Record Number: 1428T10
At N. Harris St. & corner of W. Main St & Blair St.
The work will consist of relocating the aerial facilities.
LABOR EXPENSE: $25,404.89 MATERIAL EXPENSE; $8,305.94
OVERHEAD EXPENSE; $0 TARIFF/ LICENSE AGREEMENT EXPENSE: $0
ESTIMATED CHARGE FOR
CONSTRUCTION SERVICES:
ESTIMATED COST: $33,710.83
*_* (Actual charges may exceed this estimated cost.) ***
Applicant requests that Southwestern Bell Telephone Company dib/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 altocated costs for labor, engineering, materials, transportation, motor vehicles, tool and
supply expenses and sundry billings from subcontractors 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 coats 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 decays, or changes In the scope of the
work.
ESTIMATED PRICE QUOTE
The above estimated price is guaranteed for 60 days from August 23, 2010. 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 maybe higher
than the estimated price set out above.
PAYMENT
Applicant agrees to make an advance payment of $33,710.83 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 E=stimated 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 $2$,000 and work will take 6 or more months to complete.
.FROM AT&T AUSTIN C}tC (MON) 8.23' 10 9:12/ST. 9:11A0. 4860711391 P 4
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 atop 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 Applloant. 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 muse inform
Southwestern Bell Telephone Company, in writing of the cancellation. Southwestern Sell 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 Belt 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 casts 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 giAliggS.IN FIELD CONDI IONS
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 10
cornpiete the work. Southwestern Bell Telephone Company will request such additional funding and/or additional
time through a request for a change order.
Cond€tions 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.
FROM AT&T AUSTIN CMC
at&t
(1d0N) 8. 23' 10 9:12/ST. 9:11/N0, 4860711391 P 5
AT&T Texas
Page 3
Shout() Applicant or its agents, servants, or employees order or seek changes inethe scope of the work,
Southwestern Beit Telephone Company is entitled to seek from Applicant, ite 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 tile 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 Belt 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
tinder no circumstances will Southwestern Bell Telephone Company be heid 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
stricey an estimate and not binding on Southwestern Bell Telephone Company, its agents, servants, or employees.
All estimated completion dates are subjeot 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 d€spate or claim shall be submitted to binding arbitration before the
enticed 10 rrecoverican tion Association. The r attorney's fees and costs of arbarties itratioer n, agree Texas law goverinsgthe applicatiin onsuch
of thisdispute
agreement
and all terms contained therein,
INDEMNIFICATION AND HOLD AR LESS
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.
FROM.AT&T AUSTIN 0160
at&t
(MON) 6.23' 10 9:12/ST. 9:1 I/NO. 4860711391 P 6
Page 4
ENTIRE AGREEMENT
The parties agree that the terms set forth herein constitute the entire agreement and there are no other
agreements regarding the protect 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 sewing said writing via certified mail, return receipt requested
ACCEPTED FOR CUSTOMER:
ACCEPTED FOR SOUTHWESTER BLL
TE EPHONE COMPANY:
Authorized Signature Title: Manager-Custorrt Work Order Department
Title or Relationship to Company or Individual
Company: - Company: Southwestern Bell Telephone Company
Printed Name: Printed Name: Karen Benton
Date: Date. August -234w
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