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R-04-03-11-11D1 - 3/11/2004RESOLUTION NO. R -04-03-11-11D1 • WHEREAS, the Texas Turnpike Authority Division of the Texas Department of Transportation ("TTA") is authorized to design, construct, and operate a turnpike project generally described as SH 45 from McNeil Road to High Country Boulevard ("Project"), and WHEREAS, the City of Round Rock has requested that the TTA undertake the construction and/or reconstruction of certain City of Round Rock .water and wastewater facilities impacted by the Project, and WHEREAS, the TTA desires to enter into a Utility Adjustment Agreement with the City of Round Rock for the construction and/or reconstruction of certain City of Round Rock water and wastewater facilities, Now Therefore BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS, That the Mayor is hereby authorized and directed to execute on behalf of the City a Utility Adjustment Agreement with the Texas Turnpike Authority Division of .the Texas Department of Transportation in connection with the -construction of SH 45 from McNeil Road to High Country Boulevard, a copy of said •Agreement being attached hereto as Dxhibit "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. ,-)PFDesktop\::ODMA/WDRLDOX/O:/WDCX/Rr'.SO1urI/R40311D1 .WPD!sc RESOLVED this llth day of March, 2004. -rem N1 ELS0,! AT' : , Mayor PRO -76/Y) City' -u -r Round Rock, Texas CHRISTINE R. MARTINEZ, City Secret 2 Texas Turnpike Authority Division Form TTA -U -35 -TM Page 1 of 6 Rev. 9/13/02 County: Williamson CSJ No: 0683-06-011 Highway: SH 45 Limits: Mc Neil Road to High Country Blvd. Fed Proj. No.: N/A UTILITY ADJUSTMENT AGREEMENT (TTA Managed) Agreement No.: TTA -U-65 THIS AGREEMENT, by and between the STATE OF TEXAS, acting by and through the Texas Turnpike Authority Division of the Texas Department of Transportation, hereinafter identified as the "TTA", and City of Round Rock, hereinafter referred to as the "Owner", is to be effective as of the date this Agreement is signed by the TTA. WITNESSETH WHEREAS, the TTA is authorized to design, construct, operate, maintain, and improve turnpike projects as part of the state highway system throughout the State of Texas, all in conformance with the provisions of Chapter 361, Texas Transportation Code, as amended; and WHEREAS, the TTA proposes to design, construct, and operate such a project generally described as follows: County Williamson Highway SH 45 located from Mc Neil Road to High Country Bivd. (hereinafter referred to as the "Project"); and WHEREAS, pursuant to Section 361.234 of the Texas Transportation Code, the TTA shall pay the cost of adjusting, removing or relocating certain utility facilities of the Owner impacted by the Project; and WHEREAS, the TTA may request Federal participation in payment of costs incurred in the adjusting, removing or relocating of Owner's facilities; and WHEREAS, the Owner has requested that the TTA undertake the construction and/or reconstruction of Owner's Water and Wastewater [type of utility] and appurtenances (the "Owner Utilities") that currently are in locational conflict with the construction of the Project; and WHEREAS, the Owner recognizes that time is of the essence in completing the work contemplated hereunder; and WHEREAS, the TTA desires to implement the adjustment removal or relocation of Owner Utilities by entering into this agreement with Owner. Sec5U-65 TTA ManagedCORR.doc le a EXHIBIT ITAII Texas Turnpike Authority Division Form TTA -U -35 -TM Page 2 of 6 Rev. 9/13/02 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 TTA and the Owner agree as follows: 1. Check box that applies (only one): ® The TTA or its designee has hired engineering firm(s) acceptable to the Owner to perform all engineering services needed for the preparation of plans, required specifications, and construction documents, attached hereto as Exhibit A, for relocation and reconstruction of the Owner Utilities which are necessary as a part of the construction of the Project. The final plans, required specifications and construction documents shall be deemed accepted by the Owner unless the Owner notifies the TTA of any requested changes thereto within ten business days of the Owner's execution of this Agreement. ❑ The Owner has provided plans, specifications and cost estimates which are attached hereto as Exhibit A for the relocation and reconstruction of the Owner Utilities and made a part hereof, and Owner represents and warrants that such plans, specifications and cost estimates are prepared in the form and manner that conform to the TxDOT Utility Accommodation Policy, set forth in 42 Tex. Admin. Code §21.31, et seq., as amended. All such plans, required specifications, and construction documents shall be subject to the review and acceptance by the TTA prior to the awarding of any contract or contracts for the implementation thereof. Owner shall also provide to the TTA a utility plan view map (in both paper and electronic format) illustrating the location of existing and proposed utility facilities on the TTA's right-of-way map of the Project. In preparation of the plans, specifications and cost estimates, Owner represents as follows (check one box that applies): ❑ Owner's employees were utilized to prepare the plans, specifications and cost estimates, and the charges therefor do not exceed the Owner's typical costs for such work. ❑ Owner utilized consulting engineers to prepare the plans, specifications and cost estimates, and the fees for such work are not based upon a percentage of construction costs. Further, the fees for such work encompass only the work necessary to prepare the plans, specifications and cost estimates for relocation of the Owner Utilities on the Project and do not include fees for work done on any other project. The fees of the consulting engineers are reasonable and are comparable to the fees typically charged by consulting engineers in the locale of the Project for comparable work for the Owner. 2. The Owner hereby requests that the TTA relocate and reconstruct the Owner Utilities necessary for the construction, operation, and maintenance of the Project according to Owner -approved final plans, the required specifications and the construction documents, Sec5U-65 TTA ManagedCORR.doc Texas Turnpike Authority Division Form TTA -U -35 -TM Page 3 of 6 Rev. 9/13/02 and the TTA hereby agrees to relocate and reconstruct the Owner Utilities in accordance with such plans, specifications, and construction documents. 3. The TTA shall retain such prime contractor or contractors as necessary to construct the Project, which contractor(s) shall either undertake itself or subcontract the relocation and reconstruction of the Owner Utilities. Such prime contractor shall be selected through the TTA's normal bidding procedures. Such prime contractor(s) as the TTA utilizes for the Project shall furnish performance and payments bonds pursuant to Chapter 2253, Texas Government Code, as amended. 4. The costs for relocating and reconstructing the Owner Utilities under this agreement will be derived from the accumulated total of utility items as set forth in the general construction contract, plus the Owner's indirect costs which are estimated below: The Owner shall retain records of such indirect costs in accordance with the provisions of 23 CFR Part 645, Subpart A. The Owner has determined that the method to be used in developing the indirect costs associated with the adjustment, removal or relocation shall be specified for the method checked and described below: ❑ (1) Actual related indirect costs accumulated in accordance with a work order accounting procedure prescribed by the applicable Federal or State regulatory body. ® (2) Actual related indirect costs accumulated in accordance with an established accounting procedure developed by the Owner and which the Owner uses in its regular operations. n (3) An agreed sum of $ , as supported by the analysis of estimated costs attached hereto. If costs are developed under procedure (1) and (2), above, the TTA will, upon satisfactory completion of the adjustment, removal or relocation and upon receipt of a final billing prepared in the form and manner prescribed by 23 CFR Part 645, Subpart A, and amendments thereto, make full payment in the amount of ninety percent (90%) of the eligible indirect costs shown in the final billing prior to the required audit, and, after such audit, shall make final payment in an amount so that total payments will equal the amount found eligible for reimbursement by the final audit. When requested by the Owner, the TTA will make intermediate payments based upon the progress of the work completed at not more than monthly intervals to Owner when property billed, and such payments will not exceed eighty percent (80%) of the eligible indirect cost as shown in each such billing. Intermediate payments shall not be construed as final payment for any items included in the intermediate payment. Sec5U-65 TTA ManagedCORR.doc Texas Turnpike Authority Division Form TTA -U -35 -TM Page 4 of 6 Rev. 9/13/02 Such invoices shall list each of the services performed, the amount of time spent and date on which the service was performed. The original and four (4) copies of said invoices shall be submitted to: Central Texas Turnpike Project, 1421 Wells Branch Parkway, Building 2, Suite 210, Pflugerville, Texas 78660, Attention: Mike Williams. The Owner shall maintain complete and accurate cost records for all work performed pursuant to this Agreement. The TTA and its representatives shall be allowed to inspect said records during the Owner's regular business hours. Unsupported charges will not be considered eligible for reimbursement. All records relating to its work under this Agreement shall be maintained by the Owner for four (4) years after receipt of final payment from the TTA. If indirect costs are developed under procedure (3) above, the TTA will, upon satisfactory completion of the adjustment, removal or relocation and upon receipt of a billing prepared in acceptable form and manner, make payment to Owner in the agreed amount. 5. All work to be performed pursuant to this Agreement, with the exception of betterment, shall be at the sole cost and expense of the TTA, including but not limited to the engineering and inspection costs of the Owner. All costs charged to the TTA shall be computed using rates and schedules not exceeding those applicable to the Owner's performance of similar work and shall be subject to pre -approval by the TTA. Owner agrees that costs referenced in 23 CFR 645.117(d)(2) are not eligible for reimbursement. 6. The TTA will provide project management during the relocation and reconstruction of Owner Utilities. 7. At the TTA's request, the Owner shall assist the TTA in locating the Owner Utilities and appurtenances being relocated, adjusted, and reconstructed. 8. The Owner is to provide during the relocation and reconstruction of the Owner Utilities, adequate inspectors on the Project, and each relocated or reconstructed utility shall be inspected by such inspector or inspectors at least once each working day, and more often if such inspections are necessary for prudent installation. Further, during the performance of this Agreement, the Owner shall furnish an inspector at any reasonable time in which construction is underway, including occasions when construction is underway in excess of the usual forty (40) hour work week and at such other times as reasonably required, should the TTA or its contractors request one. 9. Any upgrading of the Owner Utilities being relocated that is not attributable to the Project construction and is made solely for the benefit of and at the election of the Owner, including but not limited to an increase in the capacity of existing facilities or an expansion of the existing facilities, shall be deemed a "betterment". Should the Owner determine that it wishes to change, modify, or enlarge any of the Owner Utilities to be adjusted under this Agreement that results in a betterment, it shall do so at its own expense and without causing any delay in the Project. The Owner shall provide such additional advance funding attributable to any betterment. Sec5U-65 TTA ManagedCORR.doc Texas Turnpike Authority Division Form TTA -U -35 -TM Page 5 of 6 Rev. 9/13/02 10. In order to account for betterment, the Owner shall provide comparative estimates for (i) all work to be performed, including work attributable to betterment, and (ii) non - betterment work associated only with the replacement of existing Owner Utilities, which estimates are subject to agreement by the TTA. A betterment credit to the TTA shall be calculated by subtracting (ii) from (i), which remainder shall be divided by (i), to arrive at the percentage of the work attributable to betterment. The TTA shall reimburse the Owner that portion of the Owner's indirect costs listed in Paragraph 4 above equal to the approved costs, less the betterment credit. After application of the betterment credit, the TTA will then apply the credit, if any, for salvage material. 11. The TTA will be responsible for costs resulting from Owner Utilities design revisions and relocations necessitated by design changes to the Project upon the same terms specified herein. 12. The TTA shall provide the Owner with the documentation of any significant field modifications encountered in the relocation and reconstruction of the Owner Utilities. 13. The Owner acknowledges that it owns, operates, and maintains and shall continue to own operate and maintain the Owner Utilities after final completion of the work required to adjust, relocate, or reconstruct the Owner Utilities. In no event shall the TTA become responsible for making any repairs, for maintenance, or for discharging the cost of same. The Owner shall accept the responsibility for all future repairs and maintenance of said Owner Utilities. 14. 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 the Owner or the TTA be considered as or represent itself to be an agent of the other. 15. 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. This Agreement may be amended only by a written instrument executed by the parties hereto. 16. This Agreement shall bind the Owner, the TTA, and their successors and assigns, and has been entered into for their sole benefit. 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 relocation work or the public in general. 17. Time is of the essence in the performance of this Agreement. 18. The Owner represents and warrants that the person executing this Agreement is duly authorized to enter into this Agreement on behalf of the Owner and to bind the Owner to the terms hereof. Sec5U-65 TTA ManagedCORR.doc Texas Turnpike Authority Division Form TTA -U -35 -TM Page 6 of 6 Rev. 9/13/02 19. It is expressly understood that this Agreement may be terminated by the TTA at any time up to the date that work under this Agreement is authorized and that such termination will not create any liability on the part of the TTA. EXECUTED on behalf of the Owner by its duly authorized representative; and on behalf of the State of Texas, acting by and through the Texas Turnpike Authority Division of the Texas Department of Transportation. OWNER: The State of Texas Certified as being executed for the purpose and City of Round Rock effect of activating and/or carrying out the [Utility Name] orders, established policies or work programs heretofore approved and authorized by the By: Texas Transportation Commission. Duly Authorized Representative Print Name: By: Title: Division Director Date: Texas Turnpike Authority Division Texas Department of Transportation Date: Sec5U-65 TTA ManagedCORR.doc DATE: March 5, 2004 SUBJECT: City Council Meeting - March 11, 2004 ITEM: 11.D.1. Consider a resolution authorizing the Mayor to execute a Utility Adjustment Agreement with the Texas Turnpike Authority Division of the Texas Department of Transportation in connection with the construction of SH 45 from McNeil Road to High Country Boulevard. Department: Transportation Services Staff Person: Tom Word, Chief of Public Works Operations Justification: This Agreement is made by and between the Texas Turnpike Authority (TTA) Division of the Texas Department of Transportation (TxDOT) and the City of Round Rock. TTA proposes to undertake the relocation of the water and wastewater lines and appurtenances that currently are in conflict with the construction of SH 45 from McNeil Road to High Country Blvd. The TTA will be paying for the cost of adjusting, removing or relocating certain utility facilities of the City of Round Rock impacted by the Project and will reimburse the City for certain costs incurred by the City associated with the relocations. Funding: Cost: N/A Source of funds: The State of Texas and Williamson County assume the cost of the utility relocation or adjustment work. Outside Resources: Texas Turnpike Authority Division of TxDOT Background Information: This agreement demonstrates Round Rock's support for and facilitates the construction of the SH 45 project. Public Comment: N/A