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2005-314 ORDINANCE NO. 2005-M AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AUTHORIZING THE ASSISTANT CITY MANAGER FOR UTILITIES TO EXECUTE TWO ADVANCE FUNDING AGREEMENTS FOR VOLUNTARY UTILITY RELOCATION CONTRIBUTIONS ON STATE HIGHWAY IMPROVEMENT PROJECTS BY AND BETWEEN THE CITY OF DENTON, TEXAS AND THE TEXAS DEPARTMENT OF TRANSPORTATION; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the "Loop 288 Project" designated by the Texas Department of Transportation ("TXDOT") from U.S. Highway 380 to ill 35-E is ready to commence construction on the TXDOT highway improvement generally described as LP 288 CSJ; 2250-01- 012.021; provided that the City of Denton, Texas enters into two (2) agreements with TXDOT, which agreements provide for the water and the sewer improvements that need 10 be moved in order to complete the relocation of water and sewer facilities; and 1he City of Denton and TXDOT agree that it is more economical and/or efficient for their relocation to be effected by including the contract to relocate said water and sewer facilities in the TXDOT Highway Construction Contract; and WHEREAS, the first Advance Funding Agreement which is to be entered into by the City and TXDOT respecting the existing water lines that will, at all times, remain in the ownership of the City of Denton, provides that certain wa1er facilities shall be relocated and adjusted along the route of the Loop 288 Project; the estimated amount of this Advanced Funding Contract is in the sum of $1,454,000 (and the appended Standard Utility Agreement, Utility Joint Use Agreement, and/or the Agreement to Contribute Funds, which constitute a part of the Advance Funding Agreement); and WHEREAS, the second Advance Funding Agreement which is to be entered into by the City and TXDOT respecting the existing sewer lines that will, at all times, remain in the ownership of the City of Denton, provides that certain sewer facilities shall be relocated and adjusted along the route of the Loop 288 Project; the estimated amount of this second Advanced Funding Agreement is in the sum of $1,390,000 (and the appended Standard Utility Agreement, Utility Join1 Use Agreement and/or the Agreement to Contribute Funds, which constitute a part of the second Advance Funding Agreement); and WHEREAS, the two said Agreements provide for the Actual Cost Agreement; the Schedule of Payments for the City of Denton, subject to final audit; and the Work Responsibilities of the City and of TXDOT regarding the Loop 288 Project; and WHEREAS, the City Council having considered the two Advanced Funding Agreements that are required by TXDOT, and considering the importance of the Loop 288 Project to the citizens of Denton, Texas, is of the opinion that it should approve the two above-referenced Advanced Funding Agreements by and between the City and TXDOT; NOW THEREFORE I THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: . SECTION I. That the City Council authorizes and in all things approves the execution of the two Advanced Funding Agreements by and between the City of Denton and TXDOT by Howard Martin, Assistant City Manager for Utilities; copies of the two Advanced Funding Agreements are attached hereto as Exhibits "A" and "B" hereto and are incorporated by reference herein; said first Agreement being in the amount of $1,454.000 as to water facilities, being Exhibit "A"; the second Agreement being in the amount of $1,390,000 as to sewer facilities, being Exhibit "B." SECTION 2. That the City Manager is hereby authorized by the City Council to expend all funds and to make such payments as are necessary under the two Advanced Funding Agreements that are attached hereto and incorporated herein by reference. SECTION 3. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the 4fA dayof tZeilJUA/ ,2005. ~~vL EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY~~~'--- W, ~-kv ~ APPROVED AS TO LEGAL FORM: EDWIN M. SNYDER, CITY ATTORNEY By lJ~1Jj)4 Cd 1) S:\Our Documents\Ordinances\05\TXDOT-Advanced Funding Agreements-Loop 288 Project-Z005.doc 2 THE STATE OF TEXAS !i COUNTY OF TRAVIS !i ADVANCE FUNDING AGREEMENT FOR VOLUNTARY UTILITY RELOCATION CONTRIBUTIONS ON STATE HIGHWAY IMPROVEMENT PROJECTS CSJ: 2250-01-012,021 Project Name: LP 288 County: Denton Location: from US 380 to IH 35E THIS AGREEMENT IS MADE BY AND BETWEEN the State of Texas, acting through the Texas Department ofTransportation ("State") and the Citv of Denton ("Utility"), WITNESSETH WHEREAS, Transportation Code, Chapters 201, 221, 227 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 !i227.015, Transportation Code, !i361.234 authorize the State to regulate the placement of public utility facilities along a state highway; and, WHEREAS, Texas Transportation Commission Minute Order Numbers 108410 & 109862 authorizes the State to undertake and complete a highway improvement generally described as: LP 288 CSJ: 2250-01-012. 021 ("Project"); and, WHEREAS, Utility possesses facilities that are affected by the abovementioned highway improvement, and Utility and the State agree that it is more economical and/or efficient for such relocation to be effected by including said contract in the State's highway construction contract; and, 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 Article 1. lime 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 herein has been completed and accepted by all parties or unless terminated, as hereinafter provided. ' Article 2. Project Funding and Work Responsibilities 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. AFA-AFAUtility Page 1 of 7 Revised 8/17/04 CSJ: 2250-01-012,021 Project Name: LP 288 Article 3. Termination This agreement may be terminated in the following manner. . by mutual written agreement and consent of both parties . by either party upon the failure of the other party to fulfill the obligations set forth herein . by the State if it determines that the performance of the Project or utility work is not in the best interest of the State. 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. Article 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. 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. Article 5. 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. Article 6. 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. Article 7. 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. 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 its expiration. Article 9. Inspection and Conduct of Work AF A - AF AUtility Page 2 of 7 Revised 8/17/04 CSJ: 2250-01-012,021 Project Name: LP 288 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 !i21.31 et. seq. adopted by the State and incorporated herein by reference, or special specifications approved by the State. Article 10. 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. Article 11. Notices All notices to either party by the other required under this agreement shall be delivered personally or sent by certified orU.S. mail, postage prepaid or sent by electronic mail, (electronic notice being permitted to the extent permitted by law but only after a separate written consent of the parties), addressed to such party at the following addresses: Utility: Howard Martin, Assistant City Manager City of Denton 215 East McKinney Street Denton, TX 76201 State: Claud P. Elsom, III 2624 W. Prairie St. Denton, TX 76201 All notices shall be deemed given on the date so delivered or so deposited in the mail, unless otherwise provided herein. 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 delivered personally or by certified U.S. mail and such request shall be honored and carried out by the other party. Article .12. Insurance. If this agreement authorizes the Local Govemment or its contractor to perform any work on State right of way, before beginning work the entity performing the.work shall provide the State with a fully executed copy of the State's Form 1560 Certificate of Insurance verifying the existence of coverage in the amounts and types specified on the Certificate of Insurance for all persons and entities working on State right of way. This coverage shall be maintained until all work on the State right of way is complete, If coverage is not maintained, all work on State right of way shall cease immediately, and the State may recover damages and all costs of completing the work. Article 13. Signatory Warranty The signatories to this agreement warrant that each has the authority to enter into this agreement on behalf of the party they represent. IN WITNESS WHEREOF, THE STATE AND THE UTILITY have executed duplicate counterparts to effectuate this agreement. ' AFA-AFAUtility Page 3 of7 Revised 8/17/04 CSJ: 2250-01-012,021 Project Name: LP 288 THE STATE OF TEXAS Executed for the Executive Director and approved for the Texas Transportation Commission for the purpose and effect of activating and/or carrying out the orders, established policies or work programs heretofore apPj~v~ and authorized by the Texas Transportation Commission. By (;\J A.::... .L R Date I 6! ~ <f' ( ~~ District Engineer By Date ItJ /1/. /&5" I I Typed or Printed Name and Howard Martin, Assistant Citv Manaaer Citv of Denton, Texas A~ J By "''\1 it~ lA aJ *0 A ,1-/ \J Date I 0/ 1/ os- , I AFA-AFAUtility Page 4 of 7 Revised 8/17/04 CSJ: 2250-01-012,021 Project Name: LP 288 ATTACHMENT A Payment Provision and Work Responsibilities Description of the Work Items The parties agree that the existing water lines shall be relocated and adjustments shall be made along LP 288. The water line facilities 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 is $1,454,000.00. The parties agree that it is their intent to complete the relocation improvements within this estimate of cost. 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 line's items 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, which are attached to and made a part of this contract. Schedule of Payments Forty - Five (45) days prior tei the date set for receipt of the Project construction bids, Utility shall remit its financial share for the Project's estimated utility 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 is estimated to be $1,454,000.00. (See Attachment B - Estimated Utility Costs) In the event the State determines that additional funding is required by Utility at any time during the construction administration of the utility improvements, the State will notify Utility in writing. Utility will make payment to the State within thirty (30) days from receipt of the State's written notification. Upon completion of the Project and associated utility improvements, the State will perform an audit of the Project and utility improvement costs. In the event it is determined that the funding provided by Utility will be insufficient to cover the costs for the utility work outlined under this Agreement, the State will provide a written notice to Utility. Utility will make payment to the State within thirty (30) days from the receipt of the State's written notification. I n the event the amount paid is more than the actual cost of Utility's share, as herein established, then the excess amount will be returned to Utility. Work Responsibilities The Utility shall provide the following services under this contract: . Responsible for engaging the services of a Texas Registered professional Engineer to prepare drawings and technical specifications for the water line's relocations and adjustments along LP 288. Utility will provide the plans and specifications to the State to include in the current planning specifications and estimate package being prepared by representatives of TxDOT's Denton Area Office. . Secure all necessary permitting as may be required for the installation of the water lines. . Arrange and coordinate with the contractor, through the State, materials and equipment testing, rejection of work not conforming to minimum requirements of the construction contract AFA - AFAUtilily Page 5 of 7 Revised 8/17/04 CSJ: 2250-01-012,021 Project Name: LP 288 documents, maintenance of the proposed water lines during construction, and the relocation of the water lines and connection of services to customers. · Advise the State of work that Utility determines should be corrected or rejected. o Arrange, observe, and inspect all acceptance testing and notify the State of the results of these activities. o 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. o Assume all responsibility for the maintenance of the existing water lines during and upon . completion of the construction contract. o Ensure all TCEQ and all other regulatory rules, regulations and laws are strictly adhered to. o 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 his concurrence. · Utility agrees that all construction activities performed by Utility's staff for the relocations and adjustments will be coordinated through the Project Engineer. The State shall provide the following services under this contract: o Combine the water lines. relocation and adjustment plans with the plans being prepared for the Project. o 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. o Advertise for construction. bids, issue bid proposals, receive and tabulate the bids and award and administer the contract for construction of the Project. o 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 to Utility for review and approval together with an evaluation. Utility agrees to review and either approve or disapprove all change orders within five (5) business days after receipt of such order unless Utility Board's approval is necessary in which case Utility shall bring the item to Utility Board as soon as reasonably possible. o Provide overall project management to supervise the day-to-day activities of the construction and monitor the activities of the contractor to promote the timely and efficient completion of the Project in accordance with the approved Plans and Specifications and construction schedule. o Conduct field observations and coordinate with Utility's inspectors and the contractor to cure defects and deficiencies in the construction prior to final acceptance. o Make timely payment to the contractor for work performed in connection with the Project. o Ensure access and permit Utility's inspectors and other authorized representatives to inspect the water line construction at all times. o Conduct and coordinate final inspection of the Project in the presence of Utility's Representative and/or Inspector, transmit final list of items to be completed or repaired and observe contractor correction of same. ' o Maintain job file. AFA-AFAUtility Page 6 of 7 Revised 8/17/04 CSJ: 2250-01-012,021 Project Name: LP 288 ATTACHMENT B Estimated Utility Costs Based on various calculations, Following are those amounts due and payable for Utility District's costs associated with this project. Total Estimated Costs $1,454,000.00 Less Betterment Amount Due from Utility $ 0.00 Amount of total utility relocation Costs $1,454,000.00 Estimated Amount Eligible for Reimbursement (Calculated eligibility Ratio - 0 %) $0.00 Amount of Utility Adjustment Due from Utility $1,454,000.00 Estimated amount to be included in Construction Agreement A. Betterment $ 0.00 B. Utility Adjustment $1,454,000.00 GRAND TOTAL $1,454,000.00 Betterment Ratio Calculation Estimated Betterment Costs 1. ... 2. ... Betterment Calculation: Total Costs of Betterment (Estimated) Total Costs of Project (Estimated) $ 0.00 $ 1,454,000.00 Betterment Percentage for'final cost determination: relocation o % of final cost of Determination of Betterment"'; Comparison of estimated cost to replace as is verses estimated costs associated with the betterment. Item A: Item B: ... AFA - AFAUtility Page 7 of 7 Revised 8/17/04 CSJ: 2250-01-012,021 Project Nam~: LP 288 County: Dent6n Location: from US 380 to IH 35E THE STATE OF TEXAS 9 COUNTY OF TRAVIS 9 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 the City of Denton ("Utility"), WITNESSETH WHEREAS, Transportation Code, Chapters 201, 221, 227 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 ~227.015, Transportation Code, ~361.234 authorize the State to regulate the placement of public utility facilities along a state highway; and, WHEREAS, Texas Transportation Commission Minute Order Numbers 108410 & 109862 authorizes the State to undertake and complete a highway improvement generally described as: LP 288 CSJ: 2250-01-012. 021 ("Project"); and, WHEREAS, Utility possesses facilities that are affected by the abovementioned highway improvement, and Utility and the State agree that it is more economical and/or efficient for such relocation to be effected by including said contract in the State's highway construction contract; and, 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 Article 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 herein has been completed and accepted by all parties or unless terminated, as hereinafter provided. Article 2. Project Funding and Work Responsibilities The State will authorize the perfonnance of only those Project items of work which are eligible for relocation reimbursements or for which Utility has requested and has agreed tei 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. . AFA-AFAUtility Page 1 of7 Reyised 8/17/04 CSJ: 2250-01-012,021 Project Name: LP 288 Article 3. Termination This agreement may be terminated in the following manner: . by mutual written agreement and consent of both parties . by either party upon the failure of the other party to fulfill the obligations set forth herein . by the State if it determines that the performance of the Project or utility work is not in the best interest of the State. 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. Article 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. 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. Article 5. 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 appli'cable laws or regulations, all as time to time may be amended. Article 6. 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. Article 7. 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. Article 8. Amendments By mutual written consent ofthe parties, the scope of work and payment provisions of this agreement may be amended prior to its expiration. Article 9. Inspection and Conduct of Work AFA-AFAUtility Page 2 of 7 Reyised 8/17/04 CSJ: 2250-01-012,021 Project Name: LP 288 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 921.31 et. seq. adopted by the State and incorporated herein by reference, or special specifications approved by the State. Article 10. 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. Article 11. 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 or sent by electronic mail, (electronic notice being permitted to the extent permitted by law but only after a separate written consent of the parties), addressed to such party at the following addresses: Utility: Howard Martin, Assistant City Manager City of Denton 215 East McKinney Street Denton, TX 76201 State: Claud P. Elsom, III 2624 W. Prairie St. Denton, TX 76201 All notices shall be deemed given on the date so delivered orso deposited in the mail, unless otherwise provided herein. 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 delivered personally or by certified U.S. mail and such request shall be honored and carried out by the other party. Article 12. Insurance. If this agreement authorizes the Local Govemment or its contractor to perform any work on State right of way, before beginning work the entity performing the work shall provide the State with a fully executed copy of the State's Form 1560 Certificate of Insurance verifying the existence of coverage in the amounts and types specified on the Certificate of Insurance for all persons and entities working on State right bf way. This coverage shall be maintained until all work on the State right of way is complete. If coverage is not maintained, all work on State right of way shall cease immediately, and the State may recover damages and all costs of completing the work. Article 13. Signatory Warranty The signatories to this agreement warrant that each has the authority to enter into this agreement on behalf of the party they represent. IN WITNESS WHEREOF, THE STATE AND THE UTILITY have executed duplicate counterparts to effectuate this agreement. AFA-AFAUtility Page 3 of7 Revised 8/17/04 CSJ: 2250-01-012,021 Project Name: LP 288 THE STATE OF TEXAS Executed for the Executive Director and approved for the Texas Transportation Commission for the purpose and effect of activating and/or carrying out the orders, established policies or work programs heretofore approved nd authorized by the Texas Transportation Commission. , By Date It:) 114 tru- District Engineer By Date /0 / t/-/fJb- I ( Typed or Printed Name and Tit Howard Martin, Assistant City Manaqer City of Denton, Texas By Date IO/1f / OS , I AFA-AFAUtility Page 4 of 7 Revised 8/17/04 CSJ: 2250-01-012,021 Project Name: LP 288 ATTACHMENT A Payment Provision and Work Responsibilities Description of the Work Items The parties agree that the existing sewer lines shall be relocated and adjustments shall be made along LP 288. The sewer line facilities 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 is $1.390.000.00. The parties agree that it is their intent to complete the relocation improvements within this estimate of cost. 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 sewer line's items 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, which are attached to and made a part of this contract. Schedule of Payments Forty - Five (45) days prior to the date set for receipt of the Project construction bids, Utility shall remit its financial share for the Project's estimated utility 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 is estimated to be $1,390,000:00. (See Attachment B - Estimated Utility Costs) In the event the State determines that additional funding is required by Utility at any time during the construction administration of the utility improvements, the State will notify Utility in writing. Utility will make payment to the State within thirty (30) days from receipt of the State's written notification. Upon completion of the Project and associated utility improvements, the State will perform an audit of the Project and utility improvement costs. In the event it is determined that the funding provided by Utility will be insufficient to cover the costs for the utility work outlined under this Agreement, the State will provide a written notice to Utility. Utility will make payment to the State within thirty (30) days from the receipt of the State's written notification. I n the event the amount paid is more than the actual cost of Utility's share, as herein established, then the excess amount will be returned to Utility. Work Responsibilities The Utility shall provide the following services under this contract: . Responsible for engaging the services of a Texas Registered professional Engineer to prepare drawings and technical specifications for the sewer line's relocations and adjustments along LP 288. Utility will provide the plans and specifications to the State to include in the current planning specifications and estimate package being prepared by representatives of TxDOT's Denton Area Office. . Secure all necessary permitting as may be required for the installation of the sewer lines. . Arrange and coordinate with the contractor, through the State, materials and equipment testing, rejection of work not conforming to minimum requirements of the construction contract AFA - AFAUtility Page 5 of 7 Revised 8/17/04 CSJ: 2250-01-012,021 Project Name: LP 288 documents, maintenance of the proposed sewer lines during construction, and the relocation of the sewer lines and connection of services to customers. . Advise the State of work that Utility determines should be corrected or rejected. . Arrange, observe, and inspect all acceptance testing and notify the State of the results of these activities. . 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. . Assume all responsibility for the maintenance of the existing sewer lines during and upon completion of the construction contract. . Ensure all TCEQ and all other regulatory rules, regulations and laws are strictly adhered to. . 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 his concurrence. . Utility agrees that all construction activities performed by Utility's staff for the relocations and adjustments will be coordinated through the Project Engineer. The State shall provide the following services under this contract: . Combine the sewer lines relocation and adjustment plans with the plans being prepared for the Project. . 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. . Advertise for construction bids, issue bid proposals, receive and tabulate the bids and award and administer the contract for construction of the Project. . 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 to Utility for review and approval together with an evaluation. Utility agrees to review and either approve or disapprove all change orders within five (5) business days after receipt of such order unless Utility Board's approval is necessary in which case Utility shall bring the item to Utility Board as soon as reasonably possible. . Provide overall project management to supervise the day-to-day activities of the construction and monitor the activities of the contractor to promote the timely and efficient completion of the Project in a=rdance with the approved Plans and Specifications and construction schedule. . Conduct field observations and coordinate with Utility's inspectors and the contractor to cure . defects and deficiencies in the construction prior to final acceptance. . Make timely payment to the contractor for work performed in connection with the Project. . Ensure access and permit Utility's inspectors and other authorized representatives to inspect the sewer line construction at all times. , . Conduct and coordinate final inspection of the Project in the presence of Utility's Representative and/or Inspector, transmit final list of items to be completed or repaired and observe contractor correction of same. . Maintain job file. AFA-AFAUtility Page 6 of 7 Revised 8/17/04 CSJ: 2250-01-012,021 Project Name: LP 288 ATTACHMENT B Estimated Utility Costs Based on yarious calculations, Following are those amounts due and payable for Utility District's costs associated with this project. Total Estimated Costs $1,390,000.00 Less Betterment Amount Due from Utility $ 0.00 Amount of total utility relocation Costs $1,390,000.00 Estimated Amount Eligible for Reimbursement (Calculated eligibility Ratio - 0 %) $0.00 Amount of Utility Adjustment Due from Utility $1,390,000.00 Estimated amount to be included in Construction Agreement A. Betterment $ 0.00 B. Utility Adjustment $1,390,000.00 GRAND TOTAL $1,390,000.00 Betterment Ratio Calculation Estimated Betterment Costs 1. ... 2. ... Betterment Calculation: Total Costs of Betterment (Estimated) Total Costs of Project (Estimated) $ 0.00 $1,390,000.00 Betterment Percentage for final cost determination: relocation o % of final cost of Determination of Betterment - Comparison of estimated cost to replace as is verses estimated costs associated with the betterment. Item A: Item B: ... AFA-AFAUtility Page 7 of 7 Reyised 8/17/04