R-06-10-12-11A1 - 10/12/2006RESOLUTION NO. R -06-10-12-11A1
WHEREAS, the City of Round Rock ("City") and Dell U.S.A. L.P.
("Dell") desire to construct drainage channel improvements on the Dell
East Subdivision property and on property owned by Manville Water
Supply Corporation ("Project"), and
WHEREAS, the City and Dell have agreed to participate in the
cost of design and construction of said Project, as set forth in a
Cost Participation Agreement, 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, a Cost Participation Agreement with Dell U.S.A.
L.P., 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 12th day of October 00
Ni' W L, Mayor
t of Round Rock, Texas
CHRISTINE R. MARTINEZ, City Secre
(a PFDesktop ::ODMA'WORLDOX/O:/wdox'RESOLUTPR61012A1. WPD'rmc
THE STATE OF TEXAS §
§ KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF WILLIAMSON
COST PARTICIPATION AGREEMENT
WHEREAS, the City of Round Rock (the "City") and Dell U.S.A. L.P. ("Dell") desire to
enter into this Cost Participation Agreement ("Agreement") for a drainage channel repair project
from the south boundary of Windy Park, Section 2 Subdivision and continuing approximately 300
feet generally in a southerly direction within drainage easements on the Dell East Subdivision
property and on property owned by Manville Water Supply Corporation, as generally depicted in
Exhibit A attached hereto (the "Project"); and
WHEREAS, the City and Dell have agreed to participate in the cost of the design and
construction of said Project,
NOW THEREFORE, this Agreement is made by and among the City and Dell as follows:
I. Scope of Project
1.01. The Parties agree that it is necessary and desirable to construct the Project from the
south boundary of Windy Park, Section 2 Subdivision and continuing approximately 300 feet
generally in a southerly direction within drainage easements on the Dell East Subdivision property
and on property owned by Manville Water Supply Corporation as shown on Exhibit A.
II. Design and Engineering
2.01 Dell will furnish to the City plans and specifications for the Project sealed by an
engineer for review and acceptance by the City. Upon acceptance of the plans, Dell will furnish to
the City one set of the plans suitable for the City to make copies of the plans.
2.02 The plans shall conform to the City's Design and Construction Standards.
2.03 The City's share of Dell's cost to complete engineering and design for the Project is
established at $12,000.00. This amount shall be deducted from amount Dell contributes to the
construction cost of the Project.
2.04 The City will prepare a project manual for the Project including standard items such
as bid and contract documents, general and special conditions, and technical specifications.
2.05 Dell will provide bid proposal items and quantities, and any specifications for the
construction of the Project not contained in the plans, for review and acceptance by the City. Dell
will ensure that the furnished bid proposal items and quantities, and any specifications not contained
in the plans, are in a form suitable for inclusion in the City's project manual, and are authorized for
inclusion in the City's project manual as evidenced by an engineer's seal.
103212
2.06 The City will provide copies of plans and project manuals needed for bidding
purposes.
2.07 The City will prepare for and advertise for bids.
2.08 The City will, jointly with the Dell representative and Dell's Engineer, conduct the
bid opening meeting. The City shall prepare a tabulation of the bids. Upon establishment of the
lowest responsible bidder as evidenced by the City's bid tabulation, Dell's Engineer shall research
the low bidder's qualifications and references and provide a recommendation to the City whether or
not the low bidder is responsible . If Dell's Engineer determines that the low bidder is not
responsible and the City agrees, , Dell's engineer shall continue to research the other bidders until a
responsible bidder is identified, or all bidders are disqualified as not responsible. The final
determination of the responsibility of the low bidder shall be made by the City in its sole discretion.
2.09 The City will award the contract for work to the lowest responsible bidder, administer
the contract, act as project manager for the Project and provide for inspection of the Project.
2.10 The City and Dell will ensure that all regulatory permits and approvals necessary to
construct the Project are obtained.
2.11 Dell will provide engineering services during the construction phase of the Project.
2.12 Dell will deposit with the City a sum of money equal to one half plus 12.5% of the bid
price for construction, less $12,000,00, for the Project within one week of the bid award. The City
will not be obligated to continue the Project unless Dell has made this deposit.
2.13 The City will pay the contractor in periodic payments under the contract from the
funding deposited by Dell or from the allocated funds set aside by the City for the Project.
2.14 Upon satisfactory completion of the Project, the City Engineer will issue an
acceptance letter and the City will subsequently return any money deposited by Dell in excess of one
half of the final total construction cost of the Project, less $12,000.00, within 30 days of the date of
the acceptance letter.
2.15 If the lowest responsible bid for construction of the Project exceeds $250,000.00, the
City or Dell may terminate this Agreement prior to award of a contract by the City under 2.09 above
without further obligation.
III. Miscellaneous Provisions
3.01. Applicable Law. This Agreement is being executed and delivered, and is to be
performed, under the laws of the State of Texas which shall govern the validity, construction,
enforcement and interpretation of this Agreement, unless otherwise specified herein.
3.02. Venue. In the event that judicial action is necessary for the interpretation or
enforcement of any of the covenants or conditions contained herein, the City and Dell agree and
2
consent to the jurisdiction of the District Courts and County Courts at Law of Williamson County,
Texas, and of the United States District Court for the Western District of Texas (Austin Division),
and acknowledge that such courts shall constitute proper and convenient forums for the resolution of
any actions between the City and the Dell with respect to the subject matter hereof, and agree that
such courts shall be the exclusive forums for the resolution of any actions between the City and the
Dell with respect to the subject matter hereof.
3.03. Mutual Assistance. The City and Dell will do all things reasonably necessary or
appropriate to carry out the terms and provisions of this Agreement, and to aid and assist each other
in carrying out such terms and provisions of this Agreement.
3.04. Representations and Warranties. The City and Dell represent and warrant to each
other that this Agreement is within their authority, and that each of them are duly authorized and
empowered to enter into this Agreement, unless otherwise ordered by a court of competent
jurisdiction.
3.05. Default. If either the City or Dell should default in the performance of any obligations
of this Agreement, the other parties shall provide such defaulting party written notice of the default,
and a minimum period of thirty (30) days to cure such default, prior to instituting an action for
breach or pursuing any other remedy for default.
3.06. Attorney's Fees. In the event any legal action or proceeding is commenced between
the City and Dell to enforce provisions of this Agreement and recover damages for breach, the
prevailing party in such legal action shall be entitled to recover its reasonable attorney's fees and
expenses incurred by reason of such action, to the extent allowed by law.
3.07. Entire Agreement. This Agreement contains the entire agreement between the parties.
This Agreement may only be amended, altered or revoked by written instrument signed by the all of
the parties hereto.
3.08. Binding Effect. This Agreement shall be binding on and inure to the benefit of the
parties, their respective successors and assigns.
3.09. Assignment. The parties may not assign all or part of their rights and obligations to a
third party except upon thirty days written notice the other party.
3.10. Notice. Any notice and or statement required and permitted to be delivered shall be
deemed delivered by actual delivery, facsimile with receipt of confirmation, or by depositing the
same in the United States mail, certified with return receipt requested, postage prepaid, addressed to
the appropriate party at the following addresses:
3
City
with a copy to:
Dell
with a copy to:
James R. Nuse, P.E.
City Manager
221 E. Main St.
Round Rock, Texas 78664
Ph: (512) 218-5401
Fx: (512) 218-7097
Stephan L. Sheets
Sheets & Crossfield, P.C.
309 E. Main St.
Round Rock, Texas 78664
Ph: (512) 255-8877
Fx: (512) 255-8986
Jeffrey Krech
Facilities Manager
MS ####
One Dell Way
Round Rock TX 78682
Ph: (512) 728-6202
Fx: (512) 283-6202
Email: jeffreykrech@dell.com
Rebecca Yates
Dell Legal
MS RR1-33
One Dell Way
Round Rock TX 78682
Ph: (512) 728-0216
Fx: (512) ###-####
Email: Rebeccayates@dell.com
Either party may designate a different address at any time upon written notice to
the other party.
3.11. Interpretation. Each of the parties have been represented by counsel of their choosing
in the negotiation and preparation of this Agreement. Regardless of which party prepared the initial
draft of this Agreement, this Agreement shall, in the event of any dispute, however its meaning or
application, be interpreted fairly and reasonably and neither more strongly for or against any party.
3.12. Severability. In the event any provisions of this Agreement are illegal, invalid or
unenforceable under present or future laws, and in that event, it is the intention of the parties that the
remainder of this Agreement shall not be affected. It is also the intention of the parties of this
Agreement that in lieu of each clause and provision that is found to be illegal, invalid or
4
unenforceable, a provision be added to this Agreement which is legal, valid or enforceable and is as
similar in terms as possible to the provision found to be illegal, invalid or unenforceable.
3.13. Paragraph Headings. The paragraph headings contained in this Agreement are for
convenience only and will in no way enlarge or limit the scope or meaning of the various and several
paragraphs.
3.14. No Third Party Beneficiaries. This Agreement is not intended to confer any rights,
privileges or causes of action upon any third party.
3.15. Force Majeure. Except as otherwise provided herein, an equitable adjustment shall be
made for delay or failure in performing if such delay or failure is caused, prevented, or restricted by
conditions beyond that Party's reasonable control (a ` force majeure event"). Aforce majeure event
for the purposes of this Agreement shall include, but not be limited to, acts of God, fire; explosion,
vandalism; storm or similar occurrences; orders or acts of military or civil authority; litigation;
changes in law, rules, or regulations outside the control of the affected Party; national emergencies or
insurrections; riots; acts of terrorism; or supplier failures, shortages or breach or delay. Except as
otherwise expressly provided, herein, there shall be an equitable adjustment allowed for performance
under this Agreement as the result of any event of force majeure.
3.16. Exhibits. The following Exhibit A is attached and incorporated by reference for all
purposes:
Exhibit A: Description of Project
3.17. No Joint Venture. It is acknowledged and agreed by the parties that the terms hereof
are not intended to and shall not be deemed to create any partnership or joint venture among the
parties.
EXECUTED to be effective as of the day of , 2006 .
CITY OF ROUND ROCK, TEXAS,
a home rule city and municipal corporation
By:
Nyle Maxwell, Mayor
DELL U.S.A. L.P
a Texas Limited Partnership
By:
Mary T. Manning, Director, Americas Facilities
5
Windy Park Subdivision
Manville Water Supply Corporation
Property
Dell East Subdivision
Property
Proposed Drainage Channel
Improvements
rND-
ROU
,.�
Proposed Drainage Channel Improvements
Exibit A to Cost Participation Agreement between the City of Round Rock and Deli USA L.P.
N
s
T:engineeringlcou cil maps/
deka nhage_channelblw_sheet
▪ Ryan 8
• Sergio M
Ode:
09/26/06
DATE: October 5, 2006
SUBJECT: City Council Meeting, October 12, 2006
ITEM: 11.A.1. Consider a resolution authorizing the Mayor to execute a Cost
Participation Agreement with Dell USA L.P. for a drainage channel
repair project.
Department: Engineering and Development Service
Staff Person: Danny Halden, City Engineer
Justification:
The channel has steadily deteriorated over the years. Holes have developed in the concrete
lining and these holes are allowing storm water to progressively undercut the lining, leading
to further deterioration. During large storm events, erosive water carries debris and soil
away from the damaged areas into the downstream channel. The deterioration of the
channel has made necessary equipment access difficult but also dangerous because of the
unknown support capabilities of the existing concrete lining.
Funding:
Cost: $120,000.00
Source of funds: 2002 G. O. Bonds
Outside Resources: Dell USA L.P.
Background Information:
In 1994/1995, the City managed a Texas Capital Fund Project that established public
infrastructure around the developing Dell campuses. This project included drainage channel
improvements from Gattis School Road through Windy Park Subdivision up to the Dell
property along the east side of Greenlawn Boulevard. In 1998, Dell developed the east
campus and established a retention pond east of Buildings 7 & 8. This pond discharges into
the south end of the aforementioned channel. It appears that over time, water piping
around the pond's outlet structure as well as the discharges over the pond spillway have
undercut the concrete lining of the channel. Once the subgrade had eroded, it left an
unsupported concrete channel lining. Subsequently, holes developed in various areas due to
hydraulic forces, unsupported concrete weight, expansion/contraction cracking, and/or other
reasons. Upon inspection of the failed areas, it appears that much of the reinforcing steel
had not been properly placed within the concrete. Dell has requested that the City
participate in the channel repair by managing the contract for the repair and contributing to
half of the cost.
Public Comment: N/A
EXECUTED
DOCUMENT
FOLLOWS
0D0-9
NoV 07 2a6
THE STATE OF TEXAS
§ KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF WILLIAMSON
COST PARTICIPATION AGREEMENT
WHEREAS, the City of Round Rock (the "City") and Dell U.S.A. L.P. ("Dell") desire to
enter into this Cost Participation Agreement ("Agreement") for a drainage channel repair project
from the south boundary of Windy Park, Section 2 Subdivision and continuing approximately 300
feet generally in a southerly direction within drainage easements on the Dell East Subdivision
property and on property owned by Manville Water Supply Corporation, as generally depicted in
Exhibit A attached hereto (the "Project"); and
WHEREAS, the City and Dell have agreed to participate in the cost of the design and
construction of said Project,
NOW THEREFORE, this Agreement is made by and among the City and Dell as follows:
I. Scope of Prosect
1.01. The Parties agree that it is necessary and desirable to construct the Project from the
south boundary of Windy Park, Section 2 Subdivision and continuing approximately 300 feet
generally in a southerly direction within drainage easements on the Dell East Subdivision property
and on property owned by Manville Water Supply Corporation as shown on Exhibit A.
II. Design and Engineering
2.01 Dell will furnish to the City plans and specifications for the Project sealed by an
engineer for review and acceptance by the City. Upon acceptance of the plans, Dell will furnish to
the City one set of the plans suitable for the City to make copies of the plans.
2.02 The plans shall conform to the City's Design and Construction Standards.
2.03 The City's share of Dell's cost to complete engineering and design for the Project is
established at $12,000.00. This amount shall be deducted from amount Dell contributes to the
construction cost of the Project.
2.04 The City will prepare a project manual for the Project including standard items such
as bid and contract documents, general and special conditions, and technical specifications.
2.05 Dell will provide bid proposal items and quantities, and any specifications for the
construction of the Project not contained in the plans, for review and acceptance by the City. Dell
will ensure that the furnished bid proposal items and quantities, and any specifications not contained
in the plans, are in a form suitable for inclusion in the City's project manual, and are authorized for
inclusion in the City's project manual as evidenced by an engineer's seal.
103212
2.06 The City will provide copies of plans and project manuals needed for bidding
purposes.
2.07 The City will prepare for and advertise for bids.
2.08 The City will, jointly with the Dell representative and Dell's Engineer, conduct the
bid opening meeting. The City shall prepare a tabulation of the bids. Upon establishment of the
lowest responsible bidder as evidenced by the City's bid tabulation, Dell's Engineer shall research
the low bidder's qualifications and references and provide a recommendation to the City whether or
not the low bidder is responsible . If Dell's Engineer determines that the low bidder is not
responsible and the City agrees, , Dell's engineer shall continue to research the other bidders until a
responsible bidder is identified, or all bidders are disqualified as not responsible. The final
determination of the responsibility of the low bidder shall be made by the City in its sole discretion.
2.09 The City will award the contract for work to the lowest responsible bidder, administer
the contract, act as project manager for the Project and provide for inspection of the Project.
2.10 The City and Dell will ensure that all regulatory permits and approvals necessary to
construct the Project are obtained.
2.11 Dell will provide engineering services during the construction phase of the Project.
2.12 Dell will deposit with the City a sum of money equal to one half plus 12.5% of the bid
price for construction, less $12,000,00, for the Project within one week of the bid award. The City
will not be obligated to continue the Project unless Dell has made this deposit.
2.13 The City will pay the contractor in periodic payments under the contract from the
funding deposited by Dell or from the allocated funds set aside by the City for the Project.
2.14 Upon satisfactory completion of the Project, the City Engineer will issue an
acceptance letter and the City will subsequently return any money deposited by Dell in excess of one
half of the final total construction cost of the Project, less $12,000.00, within 30 days of the date of
the acceptance letter.
2.15 If the lowest responsible bid for construction of the Project exceeds $250,000.00, the
City or Dell may terminate this Agreement prior to award of a contract by the City under 2.09 above
without further obligation.
III. Miscellaneous Provisions
3.01. Applicable Law. This Agreement is being executed and delivered, and is to be
performed, under the laws of the State of Texas which shall govern the validity, construction,
enforcement and interpretation of this Agreement, unless otherwise specified herein.
3.02. Venue. In the event that judicial action is necessary for the interpretation or
enforcement of any of the covenants or conditions contained herein, the City and Dell agree and
2
consent to the jurisdiction of the District Courts and County Courts at Law of Williamson County,
Texas, and of the United States District Court for the Western District of Texas (Austin Division),
and acknowledge that such courts shall constitute proper and convenient forums for the resolution of
any actions between the City and the Dell with respect to the subject matter hereof, and agree that
such courts shall be the exclusive forums for the resolution of any actions between the City and the
Dell with respect to the subject matter hereof.
3.03. Mutual Assistance. The City and Dell will do all things reasonably necessary or
appropriate to carry out the terms and provisions of this Agreement, and to aid and assist each other
in carrying out such terms and provisions of this Agreement.
3.04. Representations and Warranties. The City and Dell represent and warrant to each
other that this Agreement is within their authority, and that each of them are duly authorized and
empowered to enter into this Agreement, unless otherwise ordered by a court of competent
jurisdiction.
3.05. Default. If either the City or Dell should default in the performance of any obligations
of this Agreement, the other parties shall provide such defaulting party written notice of the default,
and a minimum period of thirty (30) days to cure such default, prior to instituting an action for
breach or pursuing any other remedy for default.
3.06. Attorney's Fees. In the event any legal action or proceeding is commenced between
the City and Dell to enforce provisions of this Agreement and recover damages for breach, the
prevailing party in such legal action shall be entitled to recover its reasonable attorney's fees and
expenses incurred by reason of such action, to the extent allowed by law.
3.07. Entire Agreement. This Agreement contains the entire agreement between the parties.
This Agreement may only be amended, altered or revoked by written instrument signed by the all of
the parties hereto.
3.08. Binding Effect. This Agreement shall be binding on and inure to the benefit of the
parties, their respective successors and assigns.
3.09. Assignment. The parties may not assign all or part of their rights and obligations to a
third party except upon thirty days written notice the other party.
3.10. Notice. Any notice and or statement required and permitted to be delivered shall be
deemed delivered by actual delivery, facsimile with receipt of confirmation, or by depositing the
same in the United States mail, certified with return receipt requested, postage prepaid, addressed to
the appropriate party at the following addresses:
3
City
with a copy to:
Dell
with a copy to:
James R. Nuse, P.E.
City Manager
221 E. Main St.
Round Rock, Texas 78664
Ph: (512) 218-5401
Fx: (512) 218-7097
Stephan L. Sheets
Sheets & Crossfield, P.C.
309 E. Main St.
Round Rock, Texas 78664
Ph: (512) 255-8877
Fx: (512) 255-8986
Jeffrey Krech
Facilities Manager
MS ####
One Dell Way
Round Rock TX 78682
Ph: (512) 728-6202
Fx: (512) 283-6202
Email: jeffrey krech@dell.com
Rebecca Yates
Dell Legal
MS RR1-33
One Dell Way
Round Rock TX 78682
Ph: (512) 728-0216
Fx: (512) ###-####
Email: Rebeccayates@dell.com
Either party may designate a different address at any time upon written notice to
the other party.
3.11. Interpretation. Each of the parties have been represented by counsel of their choosing
in the negotiation and preparation of this Agreement. Regardless of which party prepared the initial
draft of this Agreement, this Agreement shall, in the event of any dispute, however its meaning or
application, be interpreted fairly and reasonably and neither more strongly for or against any party.
3.12. Severability. In the event any provisions of this Agreement are illegal, invalid or
unenforceable under present or future laws, and in that event, it is the intention of the parties that the
remainder of this Agreement shall not be affected. It is also the intention of the parties of this
Agreement that in lieu of each clause and provision that is found to be illegal, invalid or
4
unenforceable, a provision be added to this Agreement which is legal, valid or enforceable and is as
similar in terms as possible to the provision found to be illegal, invalid or unenforceable.
3.13. Paragraph Headings. The paragraph headings contained in this Agreement are for
convenience only and will in no way enlarge or limit the scope or meaning of the various and several
paragraphs.
3.14. No Third Party Beneficiaries. This Agreement is not intended to confer any rights,
privileges or causes of action upon any third party.
3.15. Force Majeure. Except as otherwise provided herein, an equitable adjustment shall be
made for delay or failure in performing if such delay or failure is caused, prevented, or restricted by
conditions beyond that Party's reasonable control (a `force majeure event"). Aforce majeure event
for the purposes of this Agreement shall include, but not be limited to, acts of God, fire; explosion,
vandalism; storm or similar occurrences; orders or acts of military or civil authority; litigation;
changes in law, rules, or regulations outside the control of the affected Party; national emergencies or
insurrections; riots; acts of terrorism; or supplier failures, shortages or breach or delay. Except as
otherwise expressly provided, herein, there shall be an equitable adjustment allowed for performance
under this Agreement as the result of any event of force majeure.
3.16. Exhibits. The following Exhibit A is attached and incorporated by reference for all
purposes:
Exhibit A: Description of Project
3.17. No Joint Venture. It is acknowledged and agreed by the parties that the terms hereof
are not intended to and shall not be deemed to create any partnership or joint venture among the
parties. ^^
EXECUTED to be effective as of the oto day of O , 2006 .
CITY OF ROUN I ROCK, TEXAS,
a ho - ru rporation
B
DELL U.S.A. L.P
a Texas
Limited Partnership
By:
Mary (';,fanning, Di#ect Americas Facilities
5
s>
Manville Water Supply Corporation
Property
r1 111
Dell East Subdivision
Property
Proposed Drainage Channel
Improvements
JNDOiKI r
Proposed Drainage Channel Improvements
Exibit A to Cost Participation Agreement between the City of Round Rock and Dell USA L.P.
N
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T:enginearing/council maps/
dell tlninage_channel_blue_sheet
agar: Ryan B
Sergio M
aa:
09/26/06