R-05-10-13-10F3 - 10/13/2005 RESOLUTION NO. R-05-10-13-10F3
WHEREAS, the City of Round Rock wishes to enter into a
Reimbursement Agreement with McLeod USA Telecommunications Services
("McLeod") for the relocation of fiber optic cables owned by McLeod in
connection with the IH-35 Area 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 Reimbursement Agreement with McLeod USA
Telecommunications Services, 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 13th day of October, 2 05 .
WE ayor
City of Round Rock, Texas
/`- • lam,
CHRISTINE R. MARTINEZ, City Secretar
@PFDesktop\::ODMA/WORLDOX/0:/WDOX/RESOLUTI/R51013F3.WPD/sc
REIMBURSEMENT AGREEMENT
This Reimbursement Agreement ("Agreement") made this day of October, 2005, by and
between McLEODUSA TELECOMMUNICATIONS SERVICES,a r� I A corporation,having a business
address at 5310 Harvest Hill Road, Suite 170, Dallas, Texas 75230 ("McLeodUSA") and the CITY OF
ROUND ROCK, a Texas home-rule municipal corporation, having a business address at 221 East Main
Street,Round Rock,Texas 78664("COW').
WITNESSETH:
WHEREAS, CORR and a private developer are widening a roadway and other road
improvements along IH-35 between Chandler Road and Westinghouse Road(the"Project");and
and WHEREAS, McLeodUSA has a fiber duct system that is in conflict with the CORR's Project;
WHEREAS, CORR has requested that McLeodUSA relocate or cause to be relocated their fiber
duct system and will assist McLeodUSA by performing those services set forth on Exhibit"A," attached
hereto and made a part hereof,and
WHEREAS,McLeodUSA has agreed to the relocation and to the performance of the services set
forth on Exhibit `B," attached hereto and made a part hereof ("Relocation Services") and within the
timeframes set forth on Exhibit"C,"attached hereto and made a part hereof("Schedule");and
WHEREAS, CORR agrees to reimburse McLeodUSA for the actual expenses incurred by
McLeodUSA related to the Relocation Services requested by the CORR.
follows: NOW,THEREFORE,in consideration of mutual promises contained herein,the parties agree as
1. McLeodUSA agrees to provide the Relocation Services to place approximately 2,900'of 4— 1.9"
ducts and replace 3,700' of 192 fiber cable as is more fully described in Exhibit B. The starting date will
be fixed by mutual agreement of the parties hereto and the Work to be done in accordance with the
Schedule.
2. CORR agrees to reimburse McLeodUSA the actual costs of the Relocation Services that is
estimated to be One Hundred Twenty-two Thousand Two Hundred Eighty-five and N0/100 Dollars
($122,285.00), as are more fully set forth on Exhibit"D,"attached hereto and made a party hereof("Cost
Estimate"). Should the total costs for the Relocation Services exceed the Cost Estimate by no more than
twenty percent (20%), then McLeodUSA shall submit to CORR a detailed written report itemizing the
total additional costs incurred, including all supporting information documenting all amounts incurred for
which reimbursement is claimed and verifying that the Relocation Services are in accordance with the
requirements of this Agreement and that any change orders for the Relocation Services were submitted to
and approved by CORR prior to incurring such additional costs. Upon completion of the Relocation
Services, McLeodUSA shall present CORR with a detailed invoice of the actual Relocation Services
performed and CORR agrees to make,within thirty(30)days from the date of a properly detailed invoice,a
one-time full reimbursement payment of the actual costs, so long as such actual costs do not exceed One
Hundred Twenty-two Thousand Two Hundred Eighty-five and NO/100 Dollars ($122,285.00), by
more than twenty percent (20%). Neither enhancement or betterment costs, nor any costs in excess of
twenty percent (20%) of the initial estimate of One Hundred Twenty-two Thousand Two Hundred
Eighty-five and No/100 Dollars($122,285.00)shall be reimbursed by CORR.
3. The obligation of CORR to make a cost reimbursement payment under this Agreement does not
constitute a general obligation or indebtedness of CORR for which CORR is obligated to levy, pledge or
collect any form of taxation.
EXHIBIT
Page 1 of 2
n1A11n
4. The parties agree to exercise all due caution while causing any work to be done near the fiber optic
ducts in order to prevent damages to the fiber duct system.
5. Not withstanding any other provision of this Agreement, in no event shall either party be liable to
the other for any indirect, consequential or incidental damages, including but without limitation, loss of
revenue, loss of customers or loss of profits arising from this Agreement and the performance or non-
performance of obligations hereunder.
6. McLeodUSA agrees to indemnify and hold harmless CORR, its officers, agents and employees,
against and from any and all liability, loss and expense and shall defend all claims resulting from loss of
life or damage or injury to persons or property directly or indirectly resulting from the work performed by
McLeodUSA to the extent such loss,damage or injury,is caused by the negligence or willful misconduct of
McLeodUSA or its agents or arises out of or in connection with the Relocation Services. As a necessary
condition for such indemnity to be enforceable against McLeodUSA:
(i) McLeodUSA shall be notified in writing promptly of any and all claims, liability, loss
and expense for which the CORR seeks indemnification from McLeodUSA,and
(ii) (ii) McLeodUSA shall have sole control of the defense of any and all claims, liability,
loss and expense and all negotiations for their settlement or compromise.
7. This Agreement shall be enforceable in Round Rock, Williamson County, Texas, and if legal
action is necessary by either party with respect to the enforcement of any or all of the terms or conditions
herein, exclusive venue for the same shall lie in Williamson County, Texas. This Agreement shall be
governed by and construed in accordance with the laws and court decisions of the State of Texas.
8. No party may assign its rights and obligations under this Agreement without the prior written
consent of the other party,which consent shall not be unreasonably withheld,conditioned,or delayed.
9. This Agreement shall be binding upon and inure to the benefit of the parties to this Agreement and
their respective heirs, executors, administrators, personal representatives, legal representatives, successors
and assigns,subject to the provisions of Section 8.
10. In case any one or more of the provisions contained in this Agreement shall for any reason be
held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provision of the Agreement, and this Agreement shall be constructed as if such
invalid,illegal,or unenforceable provision had never been contained in the Agreement.
Effective date of agreement as of date of approved by the City Council:
CITY OF ROUND ROCK McLEODUSA TELECOMMUNICATIONS
SERVICES,INC.
By: By:
Nyle Maxwell,Mayor Printed Name:
ATTEST:
By: APPROVED
Christine Martinez �� j f�
City Secretary 1
Law Group
APPROVED AS TO FORM: Date
By:
Stephan L.Sheets
Page 2 of 2
DATE: October 7, 2005
SUBJECT: City Council Meeting - October 13, 2005
ITEM: 10.F.3. Consider a resolution authorizing the Mayor to execute a
Reimbursement Agreement with McLeod USA
Telecommunications Services for the IH-35 Area
Improvements Project.
DeRartment: Transportation Services
Staff Person: Tom Martin, Director of Transportation Services
Justification:
This agreement will provide reimbursement to McLeod USA Communications for
adjusting the location of their fiber optic cable. The cable location is in conflict with
Chandler Road in conjunction with the IH-35 Area Improvements Project.
Funding:
Cost: $ 122, 285.00
Source of funds: Round Rock Transportation System Development Corporation
Outside Resources: McLeod USA Communications
Background Information:
This work is for the relocation of utilities within the right-of-way of the IH-35 Area
Improvements Project. This project was awarded by the Highway Commission in
September and is scheduled for construction in December.
Public Comment: N/A
EXECUTED
DOCUMENT
FOLLOWS
REIMBURSEMENT AGREEMENT
This Reimbursement Agreement ("Agreement") made this 13 day of October, 2005, by and
between McLEODUSA TELECOMMUNICATIONS SERVICES,an i L>- corporation,having a business
address at 5310 Harvest Hill Road, Suite 170, Dallas, Texas 75230 ("McLeodUSA") and the CITY OF
ROUND ROCK, a Texas home-rule municipal corporation, having a business address at 221 East Main
Street,Round Rock,Texas 78664("CORR").
WITNESSETH:
WHEREAS, CORR and a private developer are widening a roadway and other road
improvements along IH-35 between Chandler Road and Westinghouse Road(the"Project");and
and WHEREAS, McLeodUSA has a fiber duct system that is in conflict with the CORR's Project;
WHEREAS, CORR has requested that McLeodUSA relocate or cause to be relocated their fiber
duct system and will assist McLeodUSA by performing those services set forth on Exhibit "A," attached
hereto and made a part hereof,and
WHEREAS,McLeodUSA has agreed to the relocation and to the performance of the services set
forth on Exhibit `B," attached hereto and made a part hereof ("Relocation Services") and within the
timeframes set forth on Exhibit"C,"attached hereto and made a part hereof("Schedule");and
WHEREAS, CORR agrees to reimburse McLeodUSA for the actual expenses incurred by
McLeodUSA related to the Relocation Services requested by the CORR.
follows: NOW,THEREFORE,in consideration of mutual promises contained herein, the parties agree as
1. McLeodUSA agrees to provide the Relocation Services to place approximately 2,900' of 4— 1.9"
ducts and replace 3,700' of 192 fiber cable as is more fully described in Exhibit B. The starting date will
be fixed by mutual agreement of the parties hereto and the Work to be done in accordance with the
Schedule.
2. CORR agrees to reimburse McLeodUSA the actual costs of the Relocation Services that is
estimated to be One Hundred Twenty-two Thousand Two Hundred Eighty-five and NO/100 Dollars
($122,285.00), as are more fully set forth on Exhibit "D,"attached hereto and made a party hereof("Cost
Estimate"). Should the total costs for the Relocation Services exceed the Cost Estimate by no more than
twenty percent (20%), then McLeodUSA shall submit to CORR a detailed written report itemizing the
total additional costs incurred, including all supporting information documenting all amounts incurred for
which reimbursement is claimed and verifying that the Relocation Services are in accordance with the
requirements of this Agreement and that any change orders for the Relocation Services were submitted to
and approved by CORR prior to incurring such additional costs. Upon completion of the Relocation
Services, McLeodUSA shall present CORR with a detailed invoice of the actual Relocation Services
performed and CORR agrees to make,within thirty(30)days from the date of a properly detailed invoice,a
one-time full reimbursement payment of the actual costs, so long as such actual costs do not exceed One
Hundred Twenty-two Thousand Two Hundred Eighty-five and NO/100 Dollars ($122,285.00), by
more than twenty percent (20%). Neither enhancement or betterment costs, nor any costs in excess of
twenty percent (20%) of the initial estimate of One Hundred Twenty-two Thousand Two Hundred
Eighty-five and No/100 Dollars($122,285.00)shall be reimbursed by CORR.
3. The obligation of CORR to make a cost reimbursement payment under this Agreement does not
constitute a general obligation or indebtedness of CORR for which CORR is obligated to levy, pledge or
collect any form of taxation.
R-05-10-13-10F3
Page ] of 2
4. The parties agree to exercise all due caution while causing any work to be done near the fiber optic
ducts in order to prevent damages to the fiber duct system.
5. Not withstanding any other provision of this Agreement, in no event shall either party be liable to
the other for any indirect, consequential or incidental damages, including but without limitation, loss of
revenue, loss of customers or loss of profits arising from this Agreement and the performance or non-
performance of obligations hereunder.
6. McLeodUSA agrees to indemnify and hold harmless CORR, its officers, agents and employees,
against and from any and all liability, loss and expense and shall defend all claims resulting from loss of
life or damage or injury to persons or property directly or indirectly resulting from the work performed by
McLeodUSA to the extent such loss,damage or injury,is caused by the negligence or willful misconduct of
McLeodUSA or its agents or arises out of or in connection with the Relocation Services. As a necessary
condition for such indemnity to be enforceable against McLeodUSA:
(i) McLeodUSA shall be notified in writing promptly of any and all claims, liability, loss
and expense for which the CORR seeks indemnification from McLeodUSA,and
(ii) (ii) McLeodUSA shall have sole control of the defense of any and all claims, liability,
loss and expense and all negotiations for their settlement or compromise.
7. This Agreement shall be enforceable in Round Rock, Williamson County, Texas, and if legal
action is necessary by either party with respect to the enforcement of any or all of the terms or conditions
herein, exclusive venue for the same shall lie in Williamson County, Texas. This Agreement shall be
governed by and construed in accordance with the laws and court decisions of the State of Texas.
8. No party may assign its rights and obligations under this Agreement without the prior written
consent of the other party,which consent shall not be unreasonably withheld,conditioned,or delayed.
9. This Agreement shall be binding upon and inure to the benefit of the parties to this Agreement and
their respective heirs, executors, administrators, personal representatives, legal representatives, successors
and assigns,subject to the provisions of Section 8.
10. In case any one or more of the provisions contained in this Agreement shall for any reason be
held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provision of the Agreement, and this Agreement shall be constructed as if such
invalid,illegal,or unenforceable provision had never been contained in the Agreement.
Effective date of agreement as of date of approved by the City Council:
CITY OF ROUND ROCK McLEODUSA TELECOMMUNICATIONS
SERVICES,INC.
By: By
axw ,Mayor Punted Name: r
ATTEST:
By:
Christine Martinez
City Secretary APPROVED
ANe
D AS TO RM:
B Law Group
Date
p
han L LSheets
Page 2 of 2