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4B-R-00-04 - 8/10/2000 RESOLUTION NO. R-00-04 1 WHEREAS, Commission Minute Order 108130 authorizes the Texas Department of Transportation ("TxDOT" ) to undertake and complete highway improvements generally described as the construction of the State Highway 45 westbound frontage road from County Road 172 to County Road 170, and WHEREAS, TxDOT requires the Round Rock Transportation System Development Corporation ("Corporation" ) to participate in said improvements by funding a portion of the improvements, and WHEREAS, the Corporation wishes to enter into said Funding ,\ Agreement with TxDOT for the construction of the State Highway 45 westbound frontage road from County Road 172 to County Road 170, and BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE ROUND ROCK TRANSPORTATION SYSTEM DEVELOPMENT CORPORATION, That the President is hereby authorized and directed to execute on behalf of the a Funding Agreement with TxDOT for the construction of the State Highway 45 westbound frontage road from County Road 172 to County Road 170, a copy of said agreement attached hereto and incorporated herein for all purposes . The Board of Directors 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 K:\WPDOCS\RESOLUTI\RRTSDC\0004.WPD/sc 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, and the Act . RESOLVED this 10th day of August, 2000 . ROUND ROCK TRANSPORTATION SYSTEM DEVELOPMENT,,CORPO".TION 7 Al 41V •,, i !d By. � j �i /(1/ .��- 4-) RO- _,�� A. ST UKA, JR. , President ATTEST: / / // GAY/ MANBECK, Secretary 2 COUNTY :Williamson CSJ :0683-06-007 HIGHWAY :SH 45 LIMITS :County Road 170 to County Road 172 FUNDING AGREEMENT THE STATE OF TEXAS § THE COUNTY OF TRAVIS § THIS AGREEMENT IS MADE BY AND BETWEEN the State of Texas, acting through the Texas Turnpike Authority, a division of the Texas Department of Transportation, hereinafter called the "State," and the Round Rock Transportation System Development Corporation, acting by and through its duly authorized officials,hereinafter called the"Outside Entity." WITNESSETH WHEREAS, Transportation Code §201 et. seq. and Transportation Code §221 authorizes the State to lay out, construct, maintain, and operate a system of streets, roads, and highways that comprise the State Highway System; and, WHEREAS, Commission Minute Order Number 108130 authorizes the State to undertake and complete various improvements generally described as the construction of the State Highway 45 westbound frontage road from County Road 172 to County Road 170, including the transition to the existing roadway east of County Road 170 and the construction of the eastbound frontage road from County Road 172 to Farm to Market Road 1325,hereinafter called the"Project"; and, WHEREAS, the City of Round Rock, Texas, caused the formation of the Outside Entity pursuant to the Development Corporation Act of 1979, as amended, art. 5190.6, § 4B Vernon's Ann. Civ. Stat., to further, in part, the development of streets, roads, drainage and other transportation system improvements within the City of Round Rock; and WHEREAS, in entering into this Agreement the Outside Entity is acting for the benefit of the City of Round Rock and with the consent and approval of the City Council of the City of Round Rock; and 1 88651:65549:AUSTIN:212114.2 WHEREAS, the Outside Entity believes that the Project would benefit the citizens of the City of Round Rock and has therefore requested that the State construct the Project and allow the Outside Entity to participate in certain costs and obligations associated therewith; and WHEREAS,the State has determined that such participation is in the best interest of the citizens of the State; and, WHEREAS, in order to facilitate construction of the Project the Outside Entity has agreed to provide right-of-way (or to pay the costs associated with acquiring right-of-way), relocate (or pay the costs associated with relocation) utility facilities, and to maintain the Project until such time as relocation of utility facilities is complete and existing facilities have been abandoned; NOW THEREFORE, in consideration of the premises and of the mutual covenants and agreements of the parties hereto, to be by them respectively kept and performed as hereinafter set forth,the State and the Outside Entity agree as follows: AGREEMENT ARTICLE 1. TIME PERIOD COVERED This Agreement becomes effective when signed by the last party whose signature makes the agreement fully executed, and said agreement shall be in full force and effect until the Project described herein has been completed and accepted by all parties or until terminated as hereinafter provided. ARTICLE 2. PROJECT FUNDING The State will authorize performance of only those Project items of work which the Outside Entity and the State have agreed to undertake and/or pay for as described in"Payment Provision and Work Responsibilities," as reflected in Attachment "A" which is attached to and made a part of this Agreement. In addition to identifying those items of work, Attachment "A" also specifies those Project items of work that are the responsibility of the Outside Entity and will be carried out and completed by the Outside Entity, at no cost to the State. ARTICLE 3. TERMINATION Without prejudice to any other legal or equitable right or remedy that either party would otherwise possess hereunder, or as a matter of law, each non-defaulting party, upon giving the defaulting party five (5) days prior to written notice, shall be entitled to terminate this Agreement in its 2 I‘t 88651:65549:AUSTIN:212114.2 entirety at any time if a party shall fail to remedy any default within ten (10) days after written notice thereof is received from the non-defaulting party. This Agreement may also be terminated by any of the following methods: Upon mutual written agreement and consent of both parties; By the State, upon thirty (30) days written notice to the Outside Entity, if the State determines that completion of the Project is not in the best interest of the State. Notwithstanding a termination of this Agreement, the Outside Entity shall remain obligated to provide the right-of-way (or funds for acquisition of the right-of-way) for the Project, relocate (or cause the relocation of) utility facilities, and maintain the Project until such time as the State assumes the maintenance obligations. ARTICLE 4. RIGHT OF ACCESS If the Outside Entity is the owner of any part of the Project site, the Outside Entity shall permit the State or its authorized representative access to the site to perform any activities required as contemplated in the Agreement. ARTICLE 5. RESPONSIBILITIES OF THE PARTIES The Outside Entity acknowledges that while it is not an agent, servant,nor employee of the State, it is responsible for its own acts and deeds and for those of its agents or employees during the performance of the work on the Project. The Outside Entity and the City of Round Rock, Texas shall indemnify and hold the State harmless from and against any claims, losses, causes of action or expenses related to or arising from the act or omissions of Outside Entity, its employees, agents and others acting on its behalf. Additionally, the State acknowledges that while it is not an agent, servant, nor employee of the Outside Entity, it is responsible for its own acts and deeds and for those of its agents or employees during the performance of the work on the project. ARTICLE 6. SOLE AGREEMENT In the event the terms of this Agreement are in conflict with the provisions of any other existing agreements between the Outside Entity and the State, the provisions of the most recently executed agreement shall take precedence over the conflicting provisions contained in the other agreements. 3 88651:65549:AUSTIN:212114.2 ARTICLE 7. SUCCESSORS AND ASSIGNS This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors, executors, assigns, and administrators. ARTICLE 8. AMENDMENTS By mutual written consent of the parties, the scope of work and payment provisions of this Agreement may be amended prior to the expiration of this contract. No amendment to this Agreement shall be effective and binding until it is reduced to writing and signed by duly authorized representatives of both parties. ARTICLE 9. INSPECTION AND CONDUCT OF WORK Unless otherwise specifically stated in Attachment "A" to this agreement, the State and/or its consultants shall supervise and inspect all work performed hereunder and provide such engineering inspection and testing services as may be required to ensure that the construction is accomplished in accordance with the approved plans and specifications. All correspondence and instructions to the contractor performing the work will be the sole responsibility of the State. ARTICLE 10. INSPECTION OF BOOKS AND RECORDS The State will, for the purpose of termination of the Agreement prior to completion, examine the books and records of the Outside Entity for the purpose of checking the amount of the work performed by the Outside Entity at the time of contract termination. The Outside Entity shall maintain all books, documents, papers, accounting records, and other documentation relating to costs incurred under this agreement and shall make such materials available to the State, U. S. Department of Transportation (USDOT) or their duly authorized representative for review and inspection at its office during the contract period and for four(4) years from the date of completion of work defined under this contract or until impending litigation is resolved. Additionally,the State USDOT and their duly authorized representatives shall have access to all records of the Outside Entity which are directly applicable to this agreement for the purpose of making audits, examinations, excerpts and transcriptions. ARTICLE 11. APPLICABLE LAWS AND REGULATIONS All parties shall adhere to applicable state and federal requirements in the development and construction of the Project. 4 88651:65549:AUST1N:212114.2 ARTICLE 12. SIGNATORY WARRANTY The signatories to this Agreement warrant that each has the authority to enter into this on behalf of the organization they represent. ARTICLE 13. VENUE Any and all legal action related directly or indirectly to this Agreement must be filed in Travis County,Texas. ARTICLE 14. SIGNATORY WARRANTY The signatories to this agreement warrant that each has the authority to enter into this agreement on behalf of the entity they represent. IN WITNESS WHEREOF, THE STATE AND THE OUTSIDE ENTITY have executed duplicate counterparts to effectuate this Agreement, each of which shall be deemed an original for all purposes, and the City of Round Rock, Texas has executed the Agreement to acknowledge its consent and assumption of certain obligations as specified herein. THE STATE OF TEXAS Certified as being executed for the purpose and effect of activating and/or carrying out the orders, established policies, or work programs heretofore approved and authorized by the Texas Transportation Commission under the authority of Minute Order 108265. y: -Z. ..,•;4411',.1...111 /` _ Date: *. ZO 11ip Russe ., .! p Director,Te< Turnpike Authority, a division of the Texas Department of Transportation 5 , 88651:65549:AUST1N:212114.2 THE OUTSIDE ENTITY Roun. ' : ' ransportatiy System Development Corporation By: � �l/ "J,� f ,.. Date: O i 9100o Nam-• ` • .ert A. Stluka,Jr. Title: President The o ' Fund Roc, By. if /,/.(/Nam!. A. Stluka,Jr. Title: Mayor Approval for the execution of this Agreement by the Round Rock Transportation System Development Corporation was approved by the Round Rock City Council in City Council Resolution No. R-00-08-10-10D1 dated August 10,2000. For the purpose of this Agreement,the address of record for each party is as follows: For the Outside Entity: Round Rock Transportation System Development Corporation do City of Round Rock 221 East Main Street Round Rock, Texas 78664 For the Texas Turnpike Authority, a division of the Texas Department of Transportation Texas Turnpike Authority Texas Department of Transportation 125 E. 11th Street Austin,Texas 78701 Attn: Director 6 88651:65549:AUSTIN:212114.2 For the City of Round Rock: City of Round Rock 221 East Main Street Round Rock,Texas 78664 7 88651:65549:AUSTIN:212114.2 ATTACHMENT "A" Payment Provision and Work Responsibilities 1. Right-of-way The State shall prepare right-of-way maps,property descriptions and other data as needed to properly describe the right-of-way for the Project. All applicable Federal and State laws, governing the acquisition policies for acquiring real property, will be used. The Outside Entity shall be responsible for providing right-of-way for the Project or for reimbursing the State one hundred percent (100%) of its costs incurred in securing those portions of the right-of-way for the Project that Outside Entity is unable to provide. 2. Utility Adjustments/Relocations The proposed construction will require the adjustment, removal or relocation of utility facilities (including, without limitation, equipment and facilities used directly or indirectly in the provision of water, wastewater, gas, electric, telephone, internet, voice, video or data transmission services). The State and/or its consultant shall identify the necessary utility work and notify the appropriate utility companies and the Outside Entity to design and schedule their adjustments. The Outside Entity shall be responsible for one hundred percent (100%)of all costs associated with the relocation and adjustments. Removal or relocation of such utility facilities shall be in accordance with applicable State law, regulations, policies and procedures. In the event additional utilities are required to be adjusted, removed or relocated during the construction of the Project, the Outside Entity will be responsible for one hundred percent(100%)of all costs associated with the additional utility work. 3. Design The State shall be responsible for the cost of designing the relocation of telecommunications, electric, and gas utility infrastructure. The Outside Entity shall be responsible for all costs of designing other utility relocations, including without limitation water and wastewater facilities. 8 88651:65549:AUSTIN:212114.2 4. Environmental Mitigation A. The State shall prepare the appropriate environmental documentation to secure environmental clearance for the Project. B. All costs associated with the remediation of the environmental problems caused by the Outside Entity and/or the property owners shall be the responsibility of the Outside Entity and/or property owners and not the State of Texas. 5. Engineering Services The State shall prepare or cause to be prepared the engineering plans, specifications, and estimates (P.S.&E.) necessary for the development of the Project. The P.S.&E. shall be prepared in accordance with all applicable State and Federal guidelines. 6. Construction Responsibilities After the P.S.&E. is deemed to be complete and approved by the State, the State shall establish a letting date, advertise for construction bids, issue bid proposals, receive and tabulate bids, award/reject a contract for construction of the Project; and construct the Project pursuant to orders and resolutions of the Texas Turnpike Authority and the Texas Transportation Commission. B. The State shall supervise and inspect all work performed by the construction contractor and will provide such engineering, inspection and testing services as may be required to ensure that the construction of the Project is accomplished in accordance with the approved P.S.&E. 7. Maintenance Responsibilities From the date of this Agreement until such time as all necessary utility facility relocations are complete and facilities existing in the right-of-way for the Project have been abandoned, the Outside Entity shall be responsible for maintenance of the Project. Once such relocation work is complete and the facilities have been abandoned, the Outside Entity shall notify the State and the State shall assume responsibility for maintenance within thirty (30) days of receipt of such notice. 9 88651:65549:AUSTIN:212114.2 Payment Provisions and Time of Performance The Project cost, exclusive of right-of-way acquisition, is estimated at $16,350,000.00. The State shall be responsible for one hundred percent (100%) of the costs relating to environmental documents, environmental clearance, plans, specifications and estimates. The Outside Entity shall be responsible for one hundred percent (100%) of the costs relating to utility relocation, right-of- way coordination and/or purchase, and maintenance of the Project until utility relocations are complete, utility facilities have been abandoned, and the State has assumed the maintenance obligation. The Outside Entity shall (i) obtain rights of access to property necessary for construction to begin within five (5) months of the date of this Agreement; and (ii)secure the right-of-way required for the Project and complete the utility relocations required for the Project withinone (1) year of the date of this Agreement. For access rights or right-of-way to,be acquired by the State (through condemnation or other means), the Outside Entity shall reimburse the actual costs incurred by the. State in relation thereto within forty-five(45) days of receipt of an invoice for such costs. • 10 88651:65549:AUSTIN:212114.2 Texas Department of Transportation DEWITT C.GREER STATE HIGHWAY BLDG.•125 E.11TH STREET•AUSTIN,TEXAS 78701-2483•(512)463-8585 August 18, 2000 County: Williamson CSJ: 0683-06-007 Highway: SH 45 Limits: County Road 170 to County Road 172 Tom Word City of Round Rock 2008 Enterprise Dr Round Rock TX 78664 Re: Funding Agreement Dear Mr. Word: A fully executed original counterpart has been enclosed for your files. If you have any questions or need additional information, please contact Robert B. Daigh, P.E., at (512) 936-0905. Sin -rely, 041,1-0, .I " . . Ha sen Special Projects Administrator Texas Turnpike Authority Division Enclosure cc: Stephen Sheets Ed Pensock Teresa Lemons T:\Contracts-Consultant\00-08-18 Round Rock Funding Agreement.doc An Equal Opportunity Employer