2017-205S:\Legal\Our Documents\Ordinances\17\TxDOT Ordinance Lillian Miller to 2499.doc
ORDINANCE NO. 2017-205
AN ORDINANCE OF THE CITY OF DENTON, TEXAS APPROVING AN ADVANCE
FUNDING AGREEMENT BETWEEN THE CITY OF DENTON AND THE TEXAS
DEPARTMENT OF TRANSPORTATION FOR RELOCATION OF PUBLIC UTILITY
FACILITIES ALONG FM 2181 FROM LILLIAN MILLER PARKWAY TO WEST OF FM
2499 IN DENTON COUNTY; AUTHORIZING THE EXPENDITURE OF FUNDS
THEREFOR; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City of Denton (the "City") and the Texas Department of Transportation
("TxDOT") desire to enter into an Local Project Advance Funding Agreement for relocation of
existing water mains, wastewater mains and associated appurtenances along FM 2181 from
Lillian Miller Parkway to West of FM 2499 in the City of Denton, Denton County, due to the
widening of a 2 -lane rural roadway to a 6 -land divided urban roadway; and
WHEREAS, the City Council finds that the Local Project Advance Funding Agreement
is in the public interest; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION L The findings and recitations contained in the preamble of this Ordinance
are incorporated herein by reference.
SECTION 2. The City Manager, or his designee, is hereby authorized to execute the
Local Project Advance Funding Agreement on behalf of the City with TxDOT, is further
authorized to carry out the rights and duties of the City under the Local Project Advance Funding
Agreement, including the expenditure of funds provided for therein.
SECTION 3m. This Ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the
ATTEST:
JENNIFER WALTERS, Cl'.I''Y SECRETARY
APPROVVD ASTO LEGAL FORM:
AARON LEAL, INTERIM CITY ATTORNEY
�µ.
BY:
Page 1
CHRIS
CCSJ #: 2054-02-015
ROW CSJ: 2054-02-017; 2054-02-018 U#:15084 (Wastewater)
ROW CSJ: 2054-02-017; 2054-02-018 U#:15090 (Water)
District #: 18 -Dallas
Code Chart 64 #: #: 11400
Project: FM 2181
Limits: Lillian Miller Parkway in Denton to West of FM 2499
(Barrel Strap Road
County: Denton
STATE OF TEXAS §
COUNTY OF TRAVIS §
ADVANCE FUNDING AGREEMENT FOR VOLUNTARY UTILITY RELOCATION
CONTRIBUTIONS ON STATE HIGHWAY IMPROVEMENT PROJECTS
THIS AGREEMENT is made by and between the State of Texas, acting through the Texas
Department of Transportation ("State") and theit ofd Denton ("Utility"),
WITNESSETH
WHEREAS, Transportation Code, Chapters 201, 221, and 361, authorize the State to lay out,
construct, maintain, and operate a system of streets, roads and highways that comprise the
State Highway System; and,
WHEREAS, Transportation Code, Chapter 203, Subchapter E, Transportation Code §203.092
authorizes the State to regulate the placement of public utility facilities along a state highway;
and,
WHEREAS, Texas Transportation Commission Minute Order Numbers .11433 ,_1.14491 and
114670 authorize the State to undertake and complete a highway improvement generally
described as the widening of a 2 -lane rural roadway to a 6 -lane divided urban roadway on FM
2181 from Lillian Miller Parkway in Denton to West of FM 2499 (Barrel Strap Road) in Denton
County ("Project"); and,
WHEREAS, Utility possesses facilities that are affected by the above mentioned highway
improvement and Utility, and the State agrees that it is more economical or efficient for such
relocation to be effected by including said contract in the State's highway construction contract;
NOW THEREFORE, in consideration of the premises and of the mutual covenants and
agreements of the parties hereto, to be by them kept and performed as hereafter set forth, the
State and Utility do agree as follows:
AGREEMENT
1. Time Period Covered
This agreement becomes effective when signed by the last party whose signing makes the
agreement fully executed, and the State and Utility will consider it to be in full force and
effect until the Project described in this agreement has been completed and accepted by all
parties or unless terminated, as provided.
AFA—AFA—Utility Page 1 of 5 Revised 02/26/2016
CCSJ #: 2054-02-015
ROW CSJ: 2054-02-017; 2054-02-018 U#:15084 (Wastewater)
ROW CSJ: 2054-02-017; 2054-02-018 U#:15090 (Water)
District #: 18 -Dallas
Code Chart 64 #: #: 11400
Project: FM 2181
Limits: Lillian Miller Parkway in Denton to West of FM 2499
(Barrel Strap Road
County: Denton
2. Project Funding and Work Responsibilities
A. The State will authorize the performance of only those Project items of work which are
eligible for relocation reimbursements or for which Utility has requested and has agreed
to pay for as described in Attachment A - Payment Provision and Work Responsibilities,
which is attached to and made a part of this contract. In addition to identifying those
items of work to be paid for by payments to the State, Attachment A - Payment Provision
and Work Responsibilities, also specifies those Project items of work that are the
responsibility of Utility and will be carried out and completed by Utility, at no cost to the
State. The Utility shall be responsible for costs that are shown on Attachment B,
Estimated Utility Costs, which is attached to and made a part of this agreement.
The utility bid costs for water and wastewater, as shown in Attachment B, are fixed. The
Utility will be responsible for any cost resulting from any change orders made at the
request of the Utility.
B. If the Utility will perform any work under this contract for which reimbursement will be
provided by or through the State, the Utility must complete training before a letter of
authority is issued. Training is complete when at least one individual who is working
actively and directly on the Project successfully completes and receives a certificate for
the course entitled Local Government Project Procedures and Qualification for the
Texas Department of Transportation. The Utility shall provide the certificate of
qualification to the State. The individual who receives the training certificate may be an
employee of the Utility or an employee of a firm that has been contracted by the Utility to
perform oversight of the Project. The State in its discretion may deny reimbursement if
the Utility has not designated a qualified individual to oversee the Project.
C. Payment under this contract beyond the end of the current fiscal biennium is subject to
availability of appropriated funds. If funds are not appropriated, this contract shall be
terminated immediately with no liability to either party.
3. Termination
A. This agreement may be terminated in the following manner:
1. By mutual written agreement and consent of both parties;
2. By either party upon the failure of the other party to fulfill the obligations set forth in
this agreement; or
3. By the State if it determines that the performance of the Project or utility work is not in
the best interest of the State.
B. If the agreement is terminated in accordance with the above provisions, Utility will be
responsible for the payment of Project costs incurred by the State on behalf of Utility up
to the time of termination.
4. Right of Access
If Utility is the owner of any part of the Project site, Utility shall permit the State or its
authorized representative access to the site to perform any activities required to execute the
work.
AFA—AFA—Utility Page 2 of 5 Revised 02/26/2016
CCSJ #: 2054-02-015
ROW CSJ: 2054-02-017; 2054-02-018 U#:15084 (Wastewater)
ROW CSJ: 2054-02-017; 2054-02-018 U#:15090 (Water)
District #: 18 -Dallas
Code Chart 64 #: #: 11400
Project: FM 2181
Limits: Lillian Miller Parkway in Denton to West of FM 2499
(Barrel Strap Road
County: Denton
5. Adjustments Outside the Project Site
Utility will provide for all necessary right of way and utility adjustments needed for
performance of the work on sites not owned or to be acquired by the State.
6. Responsibilities of the Parties and Indemnity
Utility acknowledges that it is not an agent, servant, employee of the State, nor is it engaged
in a joint enterprise, and 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. To the extent
permitted by law, Utility agrees to indemnify and hold harmless the State, its agents and
employees, from all suits, actions, or claims and from all liability and damages for any and
all injuries or damages sustained by any person or property in consequence with the
performance of design, construction, maintenance, or operation of the Utility facility. Such
indemnity includes but is not limited to any claims or amounts arising or recovered under the
"Worker's Compensation Law", the Texas Tort Claims Act, Chapter 101, Texas Civil
Practice and Remedies Code; or any other applicable laws or regulations, all as time to time
may be amended.
7. Sole Agreement
In the event the terms of the agreement are in conflict with the provisions of any other
existing agreements between Utility and the State, the latest agreement shall take
precedence over the other agreements in matters related to the Project.
8. Successors and Assigns
The State and Utility each binds itself, its successors, executors, assigns, and
administrators to the other party to this agreement and to the successors, executors,
assigns, and administrators of such other party in respect to all covenants of this
agreement.
9. Amendments
By mutual written consent of the parties, the scope of work and payment provisions of this
agreement may be amended prior to its expiration.
10. Inspection and Conduct of Work
Unless otherwise specifically stated in Attachment A - Payment Provision and Work
Responsibilities, to this contract, the State will supervise and inspect all work performed
hereunder and provide such engineering inspection and testing services as may be required
to ensure that the Project 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. Unless otherwise specifically stated in
Attachment A to this contract, all work will be performed in accordance with the Utility
Accommodation Rules as set forth in 43 Texas Administrative Code §21.31 et. seq. adopted
AFA—AFA—Utility Page 3 of 5 Revised 02/26/2016
CCSJ #: 2054-02-015
ROW CSJ: 2054-02-017; 2054-02-018 1-14:15084 (Wastewater)
ROW CSJ: 2054-02-017; 2054-02-018 Ll#:15090 (Water)
District #: 18 -Dallas
Code Chart 64 #: #: 11400
Project: FM 2181
Limits: Lillian Miller Parkway in Denton to West of FM 2499
(Barrel Strap Road
County: Denton
by the State and incorporated in this agreement by reference, or special specifications
approved by the State.
11. Maintenance
Upon completion of the Project, Utility will assume responsibility for the maintenance of the
completed Utility facility unless otherwise specified in Attachment A to this agreement.
12. Notices
All notices to either party by the other required under this agreement shall be delivered
personally or sent by certified or U.S. mail, postage prepaid, addressed to such party at the
following addresses:
Utility: I State:
City Engineer Director of Contract Services
City of Denton TexasDePartnierit of Transportation
901 A Texas Street 125 E. 11 " Street
Denton, Texas 76209 Austin, Texas 78701
All notices shall be deemed given on the date so delivered or so deposited in the mail,
unless otherwise provided in this agreement. Either party may change the above address
by sending written notice of the change to the other party. Either party may request in
writing that such notices shall be delivered personally or by certified U.S. mail and such
request shall be honored and carried out by the other party.
13. State Auditor
The state auditor may conduct an audit or investigation of any entity receiving funds from
the State directly under this contract or indirectly through a subcontract under this contract.
Acceptance of funds directly under this contract or indirectly through a subcontract under
this contract acts as acceptance of the authority of the state auditor, under the direction of
the legislative audit committee, to conduct an audit or investigation in connection with those
funds. An entity that is the subject of an audit or investigation must provide the state auditor
with access to any information the state auditor considers relevant to the investigation or
audit.
14. Signatory Warranty
Each signatory warrants that the signatory has necessary authority to execute this
agreement on behalf of the entity represented.
AFA—AFA—Utility Page 4 of 5 Revised 02/26/2016
CCSJ #: 2054-02-015
ROW CSJ: 2054-02-017; 2054-02-018 U#:15084 (Wastewater)
ROW CSJ: 2054-02-017; 2054-02-018 U#:15090 (Water)
District #: 18 -Dallas
Code Chart 64 #: #: 11400
Project: FM 2181
Limits: Lillian Miller Parkway in Denton to West of FM 2499
(Barrel Strap Road
County: Denton
15. Access to Information
The Utility is required to make any information created or exchanged with the state pursuant
to this contract, and not otherwise excepted from disclosure under the Texas Public
Information Act, available in a format that is accessible by the public at no additional charge
to the state.
THIS AGREEMENT IS EXECUTED by the State and the Utility in duplicate.
THE UTILITY- CITY OF DENTON THE STATE OF TEXAS
µ.n�
By. y•
Todd k-lileman James K. Selman, P.E.
City Manager Dallas District Engineer
Texas Department of Transportation
Date: Date; ....
Approved as to Form:.
Aaron Leal
Interim City Attorney
kXaraonLoal
Interim City Attorney
ATTEST:
Jennifer Walters
City
AFA—AFA—Utility Page 5 of 5 Revised 02/26/2016
CCSJ #: 2054-02-015
ROW CSJ: 2054-02-017; 2054-02-018 U#:15084 (Wastewater)
ROW CSJ: 2054-02-017; 2054-02-018 U#:15090 (Water)
District #: 18 -Dallas
Code Chart 64 #: #: 11400
Project: FM 2181
Limits: Lillian Miller Parkway in Denton to West of FM 2499
(Barrel Strap Road
County: Denton
ATTACHMENT A
PAYMENT PROVISION AND WORK RESPONSIBILITIES
1. Description of the Work Items
The parties agree Ilam the existir°a�yaater�ra�alns, wastewater mains and associated
? urtenartpes shall be relocated and adjustments shall be made along FM 2181 from Lillian
MHIer Park w ry to, West of FM 249 (BarrelStr, RoaM in the City cif Denton Denton County.
The wager n wastewater mains s and associated amurtenances shall be owned, operated,
and maintained by Utility from and after completion and final acceptance by the State and
Utility. The estimated total construction cost for the relocated and adjusted facilities for
wasterwater (U# 15084) is be JL295 8'56. The estimated total construction cost for the
relocated and adjusted facilities for water (U# 15090) is ;$80 ,9mL0. 7. The estimated total
construction cost for wastewater and water facilities is $ f 59,829.03, The parties agree that it
is their intent to complete the relocation improvements within this estimate of cost.
2. Actual Cost Agreement
Utility will be responsible for paying all costs associated with the planning, specification, and
estimate (PS&E) development, and construction of the proposed utility work to the extent such
is not reimbursed pursuant to state law. All the costs associated with construction of the water
mains and wastewater rnains and was sod aced qw Last nances for the Project shall be provided
as defined under the Standard Utility Agreement, Utility Joint Use Agreement, and/or the
Agreement to Contribute Funds executed between the State and Utility.
3. Schedule of Payments
A. At least forty-five (45) days prior to the date set for receipt of the construction bids, the Utility
shall remit its remaining financial share for the State's estimated construction oversight and
construction costs. Utility must advance to the State one hundred percent (100%) of its
share of the estimated Project utility construction costs. The amount to be advanced for the
utility improvements for wastewater (U# 15084) is estimated to be 1i 295x.,852.05. The
amount to be advanced for the utility improvements for water (U# 15090) is estimated to be
$i;3 !7037. The total amount to be advanced for the utility improvements for wasterwater
(U# 15084) and water (U# 15090) is $;Ll .8 29,.03,. The (See Attachment B - Estimated
Utility Costs)
B. In the event the State determines that additional funding is required by the Utility at any time
during the Project, the State will notify the Utility in writing. The utility bid costs for water and
wastewater, as shown in Attachment B, are fixed. The Utility will be responsible for any cost
resulting from any change orders made at the request of the Utility. The Utility will make
payment to the State within thirty (30) days from receipt of the State's written notification.
C. Whenever funds are paid by the Utility to the State under this agreement, the Utility will
remit a warrant made payable to the "Texas Department of Transportation." The warrant
AFA-AFA_Utility Page 1 of 3 Attachment A
CCSJ #: 2054-02-015
ROW CSJ: 2054-02-017; 2054-02-018 U#:15084 (Wastewater)
ROW CSJ: 2054-02-017; 2054-02-018 U#:15090 (Water)
District #: 18 -Dallas
Code Chart 64 #: #: 11400
Project: FM 2181
Limits: Lillian Miller Parkway in Denton to West of FM 2499
(Barrel Strap Road
County: Denton
will be deposited by the State and managed by the State. Until the final Project accounting,
funds may only be applied by the State to the Project.
D. Upon completion of the Project, the State will perform an audit of the Project costs. Any
funds due by the Utility, the State, or the Federal Government will be promptly paid by the
owing party.
4. Work Responsibilities
A. The Utility shall provide the following services under this contract:
i. Responsible for engaging the services of a Texas Registered Professional Engineer to
prepare drawings and technical specifications for waterline relocations and
adjustments along FM 2181 from L illian Miller Park ± o We t of FM 2499 (Barrel
Sara Rom in the City of De:0tona Denton -S �gnly
ii. Provide the plans and specifications to the State to include in the current planning
specifications and estimate package being prepared by representatives of the Texas
Department of Transportation's mDaHas District - Denton_w!ZgtAnW Ar gLfLic .
iii. Secure all necessary permitting as may be required for the installation of the water
mains, Wastewater mains and as<,caciatod urtelaance.
iv. Arrange and coordinate with the contractor, through the State, materials and
equipment testing, rejection of all work not conforming to minimum requirements of the
construction contract documents, maintenance of the proposed water main
wvastewaterr rnalns„ and associated aP pw.artenanc during construction, and the
relocation of water mains, and Jnr stew t r mains and ~associated a :)urtenance and
connection of services to customers.
V. Advise the State of work that Utility determines should be corrected or rejected.
vi. Arrange, observe, and inspect all acceptance testing and notify the State of the results
of these activities.
vii. Provide inspection services for the construction, notify the State of defects and
deficiencies in the work, and observe actions of the contractor to correct such defects
and deficiencies.
viii. Assume all responsibility for the maintenance of the existingy��gitor rLfi wastewat r
mains and w,associated appurteiiances during and upon completion of the construction
contract.
ix. Ensure all Texas Commission on Environmental Quality and all other regulatory rules,
regulations and laws are strictly adhered to.
X. Prepare and submit both a certificate of substantial completion and a list of observed
items requiring completion or correction for the relocations and adjustments to the
Project Engineer for concurrence.
xi. Coordinate all construction activities performed by Utility's staff for the relocations and
adjustments through the Project Engineer.
AFA—AFA_Utility Page 2 of 3 Attachment A
CCSJ#:2D54-02f)15
ROW CSJ: 2054-02-017;205402-018U#15084(Vaotewater)
ROW CSJ: 205402-017;2054-02'018U#15090(Vator)
District #: 18 -Dallas
Code Chart O4#: #: 11400
Project: FM 2181
Limits: Lillian Miller Parkway inDenton 10West ofRN2499
(Barrel Strap Road
County: Denton
B. The State shall providethe following services under this contract:
i Combine the water mains, wastewatier mains and associated a p rtenances relocation
and adjustment plans with the plans being prepared for the Project.
ii. Review and approve the final construction plans prior to any construction -related
activities. In order to ensure federal and/or state funding eligibility, projects must be
authorized by the State prior to advertising for construction.
iii. Advertise for construction bids, issue bid proposals, receive and tabulate the bids, and
award and administer the contract for construction of the Project.
iv. Negotiate and administer all field changes and change orders required for the Project.
All change orders increasing construction costs for Utility's Project shall be submitted
tOUtility for review and approval together with 8Oevaluation. Utility agrees tOreview
and either approve or disapprove all change orders within five (5) business days after
approvalreceipt of such order unless Denton Cit Council's is necessary in whichC8G8
Utility shall bring the item to Denton City Council as soon as reasonably possible.
V. Provide overall project construction and z.-h-"ement � activities .'ervise the � contractor day-to-day tathe timely and
efficient completion ofthe Project inaooOujanCaviththe@pprovedP|ono8nd
Specifications and construction schedule.
vi. Conduct field observations and coordinate with Utility's inspectors and the contractor to
cure defects and deficiencies in the construction prior to final acceptance.
vii. Make timely payment tOthe contractor for work performed inconnection with the
Project.
viii. Ensure access and permit Utility's inspectors and other authorized representatives to
inspect the waterline construction ctall times.
ix. Conduct and coordinate final inspection ofthe Project inthupraaenCaofUd|ity'G
Engineer and Inspector, transmit final list nfitems tob8completed nrrepaired and
observe contractor correction ofsame.
CCSJ #: 2054-02-015
ROW CSJ: 2054-02-017; 2054-02-018 U#:15084 (Wastewater)
ROW CSJ: 2054-02-017; 2054-02-018 U#:15090 (Water)
District #: 18 -Dallas
Code Chart 64 #: #: 11400
Project: FM 2181
Limits: Lillian Miller Parkway in Denton to West of FM 2499
(Barrel Strap Road
County: Denton
ATTACHMENT B
ESTIMATED UTILITY COSTS
WASTEWATER U#: 15084
Based on various calculations, following are those amounts due and payable for Utility's costs
associated with this project. The utility bid costs for water and wastewater are fixed. The Utility
will be responsible for any cost resulting from any change orders made at the request of the Utility.
With the exception of change order requests from the Utility, the State will be responsible
for 100% of the project cost overruns after the Utility funding reaches its maximum obligated
amount.
Description Amount
Total Bid Costs $1,311,339.33
Less Betterment Amount Due from Utility (.12%) $1,573 61
Amount of:.. -: .m ......-.....�.-._.m. ..._.� ....... ....��:�
Total Utility Relocation Costs $1,309,765.72
Estimated Amount Eligible for Reimbursement (calculated meligibility ratio �0 ,9.4p
3
Amount of Utility Adjustment Due from Utility $171557606.30
Ri "-"f of-1Nay Contrib11 ution of Funds to theStat-
WW e � - N/A
(Participation - Estimated % of Estimated Amount Eligible for Reimbursement - n/a) $0
Estimated Amount to beincludedin Construction Agreement:..
A. Betterment $1,573.61
B. Utility Adjustment $1,155,606.30
C. Barricades - 2% $23,112.13
D. Mobilization - 5% $57,780.31
E. EnaineerinalContin.aencv - 5% $57,780.31
TOTAL DUE TO STATE FROM UTILITY (Wastewater) $1,295,852.66
AFA-AFA_Utility Page 1 of 2 Attachment B
CCSJ #: 2054-02-015
ROW CSJ: 2054-02-017; 2054-02-018 U#:15084 (Wastewater)
ROW CSJ: 2054-02-017; 2054-02-018 U#:15090 (Water)
District #: 18 -Dallas
Code Chart 64 #: #: 11400
Project: FM 2181
Limits: Lillian Miller Parkway in Denton to West of FM 2499
(Barrel Strap Road
County: Denton
WATER U#:15090
Based on various calculations, following are those amounts due and payable for Utility's costs
associated with this project. The utility bid costs for water and wastewater are fixed. The Utility
will be responsible for any cost resulting from any change orders made at the request of the Utility.
With the exception of change order requests from the Utility, the State will be responsible
for 100% of the project cost overruns after the Utility funding reaches its maximum obligated
amount.
Description Amount
Total Bid Costs $3,561,346.61
Less Betterment Amount Due from Utility (3.2%)
$117,168 30
Amount of Total Utility Relocation Costs $3,444,178.31
m
._-._. . urse . nt -X ( m -_ .. _ .. i 80.64 � ,777 385..
Estimated Amount Eligible for ielmbursement calculated eligibilityrano /0) $2 5.39
Amount of Utility Adjustment Due from Utility $666,792.92
RighWay
_.Contribution
. ontr �.� �.f Fun o State — N/A
(Participation— Estimated / of Estimated Amount Eligible for Rei
m_bursement
— n/a) $0
Estimated
Aemount _..- b
to be included in Construction Agreement:
nt $117,168.30
B. Utility Adjustment $666,792.92
C. Barricades — 2% $13,335.86
D. Mobilization — 5% $33,339.65
Enoineerina/Continoencv — 5% $33,339 65
- — mm .__._ mmao.,u ,u �,. oma --.-.n
TOTAL DUE TO STATE FROM UTILITY (Water) $863,976.37
GRAND TOTAL DUE TO STATE FROM UTILITY (Wastewater and Water) A $„159,829.03
AFA—AFA_Utility Page 2 of 2 Attachment B