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Item 4LCITY OF SOUTHLAKE MEMORANDUM (October 2, 2012) To: Shana Yelverton, City Manager From: Robert H. Price, P.E., Director of Public Works Subject: Approve a Memorandum of Understanding (MOU) for the planning, design, and construction of a turnaround bridge (East Side Only) at SH 114 and Carroll Avenue between Gateway Church, Cooper and Stebbins, Tarrant County, and the City of Southlake each committing $250,000 toward the project Action Requested: Approve a Memorandum of Understanding (MOU) for the planning, design, and construction of a turnaround bridge (East Side Only) at SH 114 and Carroll Avenue between Gateway Church, Cooper and Stebbins, Tarrant County, and the City of Southlake each committing $250,000 toward the project. Background Information: The DFW Connector project originally anticipated the inclusion of a direct ramp connection between SH 114 and FM 1709, otherwise known as Southlake Blvd. Due to cost constraints, the aforementioned ramp was deleted from the project. This ramp was projected to provide primary access to much of Southlake's retail district. While access to the retail district of Southlake, adjacent to SH 114 is still possible through exits provided on eastbound SH 114, it is now projected that a larger amount of traffic accessing the retail district located between Kimball Avenue and Carroll Avenue, including the Town Square development will utilize the Carroll Avenue interchange. The additional projected traffic will place additional stress on the capacity provided in the Carroll Avenue /SH 114 intersection. A "grade separated" Texas Turnaround located on the east side of the Carroll Avenue /SH 114 intersection bridge has been identified as a solution to addressing the additional traffic volume. Gateway Church, Cooper and Stebbins, Inc. (the developer of Southlake Town Square), Tarrant County, the City of Southlake and TxDOT have come to an understanding that this project is of a significant importance to both the adjacent major property owners, the City, the County and the State. This Memorandum of Understanding (MOU) is an agreement between the four of the five parties, excluding TxDOT. Once the MOU is executed, a subsequent Local Project Advance Funding Agreement (LPAFA) between the City of Southlake and TxDOT will be submitted for the City Council's consideration. The anticipated project cost is $1,800,000 with $900,000 of the construction cost being provided by state funds. Per the proposed MOU between the City and the other three parties, the city of Southlake as well as the other three parties are responsible for the anticipated cost of $250,000 each. The Memorandum of Understanding further states that any Project enhancements are subject to the review and approval of TxDOT and the requesting party shall be solely responsible for any additional costs. As the design of the turnaround gets underway, staff proposes to present to the City Council in a future work session the relevant portions of the city's adopted Urban Design Study to determine what project enhancements will be incorporated into this project. Financial Considerations: The approval of this Memorandum of Understanding (MOU) establishes a commitment of $250,000 toward the planning, design and construction of the SH114 turnaround located on the east side of the Carroll Avenue interchange for the city. An equal financial commitment is made by the remaining three parties to the agreement. It is also anticipated that state funds in the amount of $900,000 will be made available for the construction of the project. The cost of the project is estimated at $1,800,000. The City Council authorized $100,000 for the SH114 Texas Turnaround project in the FY 2012 Capital Improvement Project budget. Additional funds to meet the city's commitment of $250,000 toward this project are available from funds authorized in the adopted FY 2013 Capital Improvement Project (CIP) budget for the Traffic Signal at Watermere and FM 1709 Improvement Project. Council adopted the proposed FY 2013 CIP budget with an amendment to utilize Red Light Camera funds for the construction of the proposed signal in lieu of General Fund dollars as originally proposed by staff. In addition, the proposed Five -Year CIP plan included in this year's Annual budget also included $250,000 of planned expenses in 2015. It is anticipated that the funds will be needed before the 2015 CIP funds will be available. Strategic Link: The construction of a turnaround bridge located on the east side of Carroll Avenue provided for under this Memorandum of Understanding links to the City's strategy map relative to the focus areas of Mobility, Infrastructure, and Partnerships. The specific corporate objectives that are met by this construction project include: providing travel convenience throughout the city and region, collaborating with select partners to implement service solutions, and investing to provide and maintain high quality public assets. Citizen Input/ Board Review: N/A Legal Review: This Memorandum has been reviewed by the City Attorney. Alternatives: The City Council may approve or deny the agreement. Supporting Documents: Memorandum of Understanding Location Map Staff Recommendation: Approve a Memorandum of Understanding (MOU) for the planning, design, and construction of a turnaround bridge (East Side Only) at SH 114 and Carroll Blvd. between Gateway Church, Cooper and Stebbins, Tarrant County, and the City of Southlake each committing $250,000 toward the project. Staff Contact: Robert H. Price, P.E., Public Works Director Gordon J. Mayer, Jr., P.E., City Engineer Cheryl Taylor, P.E., Civil Engineer Memorandum of Understanding Between Gateway Church, Cooper and Stebbins, Tarrant County, and the City of Southlake, Texas This Memorandum of Understanding (the "MOU ") is hereby entered into by Gateway Church, Cooper and Stebbins, Tarrant County, and the City of Southlake regarding the planning, design, and construction of a turnaround bridge (East Side Only) at SH 114 and Carroll Blvd. in Southlake, Texas (hereinafter referred to as the "Project "). (the entities party hereto may hereinafter together be referred to as the "Parties ".) RECITALS: WHEREAS, the Project is shown and described in the attached Exhibit "A ", which exhibit is incorporated herein by reference; and WHEREAS, parties agree that the Project would benefit the citizens of Southlake and Tarrant County, by relieving traffic congestion, providing transportation opportunities, and furthering efforts to attain federal air quality standards; and WHEREAS, the initial cost estimate for the design, engineering, and construction of the Project is $1.8mm, which includes a fifteen percent (15 %) contingency as described in the attached Exhibit `B ", which exhibit is incorporated herein by reference; and WHEREAS, an application for Project funding has been made to the North Central Texas Council of Governments; and WHEREAS, the parties have agreed to share the remaining costs of the Project jointly as provided for herein; and WHEREAS, Gateway Church has agreed to provide initial funding of the engineering design for the Project utilizing Kimley -Horn and Associates for such services as part of Gateway Church's cost participation; and WHEREAS, this Agreement is subject to the execution of an agreement between the City of Southlake and Tarrant County and a Local Transportation Project Advance Funding Agreement ( "LPAFA ") with the Texas Department of Transportation ( "TxDOT "); NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements of the Parties, it is agreed as follows: SECTION 1 REAFFIRMATION OF THE PREMISES The above - stated premises are agreed to be true and correct and are incorporated into the body of this MOU by reference as if copied in their entirety. SECTION 2. AUTHORITY FOR AGREEMENT The Parties represent and confirm that the signatories to this Agreement have been duly authorized to fully bind the respective party to the Agreement, except as otherwise provided for herein. SECTION 3. PROJECT FUNDING The Parties agree to share the total Project costs, including design, engineering, geotechnical work, and construction on an equal basis. The Parties recognize that the City of Southlake and /or TxDOT, whichever actually lets the construction contract, reserve the unilateral right to not let any contract for any portion of the Project unless and until each party's share of the costs has been fully paid and tendered as provided herein. TxDOT has proposed matching funding for the Project in the amount of $900,000. TxDOT has further agreed to waive its standard design review, inspection, and project management fees. The individual contributions of the parties hereto will be $250,000 each. The City of Southlake shall serve as the repository for Project funds, and each of the Parties shall be entitled to a regular accounting of all Project funds. Upon completion of the Project, remaining Project funds will be distributed to each of the Parties in amounts proportionate to their contributions. SECTION 4. PROJECT DESIGN AND PLANS All design work for the Project will be done by Kimley -Horn and Associates. Gateway Church will directly fund the costs for Kimley -Horn and Associates as part of its Project cost contribution, and provide the City of Southlake with evidence of the amounts paid. The Project will be designed in accordance with TxDOT's standards and specifications. Upon completion, the Project plans will be distributed to each of the Parties for consideration and review. Each of the Parties shall approve or disapprove the plans within ten (10) business days of receipt of the plans, which approval may not be unreasonably withheld. If any party requests any additional Project enhancements above and beyond TxDOT's standards and specifications, such enhancements are subject to the review and approval of TxDOT and the requesting party shall be solely responsible for any additional costs. SECTION 5. CONSTRUCTION The Project shall be constructed by TxDOT in accordance with a LPAFA between the City of Southlake and TxDOT. Should the total Project costs exceed the estimate of $1.8 million, in accordance with the LPAFA, then such additional costs will be shared by the parties in equal amounts. The City of Southlake shall provide advance notice to the parties to this MOU as to the additional cost and reason for additional expense. The parties to this MOU shall provide authorization in writing and within 10 days of notification. The City may require notification by the parties before any change order to the LPAFA is approved. -2- SECTION 6. 1VIISCELLANEOUS A. Each of the Parties shall be responsible for providing adequate funds to cover their committed participation at such a time as the funds are needed for the construction of the project by TxDOT. In the event the study overlaps funding years, the respective funding shares will be spread over the overlapping funding years. B. The Parties, or their representatives will meet periodically as mutually agreed to coordinate the implementation of the Project C. It is expressly understood and agreed by the parties to this MOU that if the performance of any provision is delayed by reason of war, civil commotion, act of God, governmental restrictions, regulations or interferences, fire or other casualty, court injunction, or any circumstances which are reasonably beyond the control of the party obligated or permitted under the terms of this MOU to do or perform the same, regardless of whether any such circumstance is similar to any of those enumerated herein, the party so obligated or permitted shall be excused from doing or performing the same during such period of delay, so that the period of time applicable to such requirement shall be extended for a period of time equal to the period of time such party was delayed. D. It is specifically understood and agreed that the relationship described in this MOU is contractual in nature and is not to be construed to create a partnership or joint venture or agency relationship between the parties. Nor shall either party be liable for any debts or liabilities incurred by the other party for operations or activities not contemplated by this MOU. E. This MOU may be executed in multiple counterparts. Each such counterpart shall be deemed an original of this MOU, so that in making proof of this MOU, it shall only be necessary to produce or account for one such counterpart. F. Any captions, headings, and arrangements used in this MOU are for convenience only and shall not in any way affect, limit, amplify, or modify its terms and provision. G. This MOU and all agreements entered into in connection with the transactions contemplated by this MOU are, and will be, executed and delivered, and are intended to be performed in the County of Tarrant, State of Texas, and the laws of Texas shall govern the validity, construction, enforcement, and interpretation of this MOU. In the event of litigation between the parties hereto, their successors or assigns, with regard to this MOU and any subsequent supplementary agreements or amendments, venue shall lie exclusively in Tarrant County, Texas. H. In the event any one or more of the provisions contained in this MOU 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(s) hereof, and this MOU shall be revised so as to cure such invalid, illegal or unenforceable provision(s) to carry out as near as possible the original intent of the parties. -3- L If future federal, state or local statute, ordinance, regulation, rule or action render this MOU or in part, illegal, invalid, unenforceable or impractical, the parties agree to delete and /or to modify such portions of the MOU as are necessary to render it valid, enforceable and /or practical. Each section, paragraph or provision of this MOU shall be considered severable, and if for any reason any section, paragraph, or provision herein is determined to be invalid under current or future law, regulation or rule, such invalidity shall not impair the operation of or otherwise affect the valid portions of this instrument. In the event that a future federal, state or local statute, ordinance, regulation, rule or action renders this MOU in whole illegal, invalid, unenforceable or impractical and either one or both of the parties to this MOU agree that it is impossible or impracticable to continue to the purpose of this MOU, then, this MOU, if not already terminated by operation of law, may be terminated by either party. J. If any party initiates an action to enforce any provision of this MOU or for damages by reason of an alleged breach of any provision hereof, the prevailing party shall be entitled to receive from the other parties all reasonable and necessary costs and expenses, including reasonable attorneys' fees and costs incurred in connection with such action. K. All of the terms, conditions, warranties and representations contained in this MOU shall survive, in accordance with their terms, and shall survive the execution hereof. L. It is expressly understood and agreed that, in the execution of this MOU, neither of the parties waives, nor shall be deemed hereby to waive, any immunity, defense, or liability limitation protection that would otherwise be available to it against claims arising in the exercise of governmental powers and functions. By entering into this MOU the parties do not intend to create any obligations, expressed or implied, other than those set forth herein and this agreement shall not create any rights in parties not signatories hereto. M. Whenever this MOU requires or permits any consent, approval, notice, request, proposal, or demand from one party to another, the content, approval, notice, request, proposal, or demand must be in writing to be effective and shall be delivered to the party intended to receive it at the address(es) shown below: If to Gateway Church: If to Tarrant County: If to Cooper and Stebbins: If to the City of Southlake: City of Southlake Director of Public Works 1400 Main St., Ste 320 Southlake, Tx 76092 N. The parties deem the execution date of this MOU to be the date on which the last of the parties hereto execute this document. me CITY OF SOUTHLAKE Date: 1 2012 APPROVED AS TO FORM: TARRANT COUNTY Date: , 2012 APPROVED AS TO FORM: By: By: City Attorney City of Southlake GATEWAY CHURCH By: By: Date: 1 2012 CORPORATE ACKNOWLEDGMENT: The State of Texas County of COOPER AND STEBBINS Date: , 2012 Before me, the undersigned, on this day personally appeared of Gateway Church proved to me through the presentation of a valid Texas Driver =s License to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he /she executed the same for the purposes and consideration therein expressed. Mr./Ms_ furthermore attested that he /she is signing this in his/her capacity as of Gateway Church and that such capacity makes his signature valid to bind Gateway Church Seal: GIVEN UNDER MY HAND AND SEAL OF OFFICE this _ day of , 2012. My Commission Expires: -5- Notary Public in and for the State of Texas CORPORATE ACKNOWLEDGMENT: The State of Texas County of Before me, the undersigned, on this day personally appeared of Cooper and Stebbins proved to me through the presentation of a valid Texas Driver =s License to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he /she executed the same for the purposes and consideration therein expressed. Mr./Ms_ furthermore attested that he /she is signing this in his/her capacity as of Cooper and Stebbins and that such capacity makes his signature valid to bind the company, Cooper and Stebbins Seal: GIVEN UNDER MY HAND AND SEAL OF OFFICE this _ day of , 2012. My Commission Expires: Notary Public in and for the State of Texas 0I EXHIBIT T ID OtTi mnr 't! f Fh}i 4 -- - - -" rr1E , f, Basis of Estimate: Location for the bridge was chosen to avoid a large utility line, this would have increased the cost of the project. Also the choice of the new location gives us an approximately 25% shorter bridge with spans perpendicular to SH 114 versus skew. We checked the vertical clearance between the proposed turnaround bridge and existing SH 114. NB & SB worst -case scenarios using the same structure depth as existing bridge and we got approximately 18.2 feet on vertical clearances. EXHIBIT B CSJ # District # Code Chart 64 # Project: SH 114 At N. Carroll Ave. Attachment A Payment Provision and Work Responsibilities PART RIGHT OF WAY AND ELIGIBLE UTILITIES f II FNVIRONNIFNTAL D ENGINEERING > nvironmental by Local Gav'k Total Federal State Local $0 Estimate Participation Participation Participation �� Cost $b' 100% $211,475 SUBTOTAL Description $0 Funding Actual Funding Actual Funding Eskimated _ -Q $D 0 °la Share Participation 51kar Participation Share % Cast Right of Way by Local Government $0 0 %0 $0z E 00 /4 $0 100% $0 Utilities by Local Government $0 0% 0% $0 100 % $0 SUBTOTAL $0 $0 "A« $0 $0 f II FNVIRONNIFNTAL D ENGINEERING > nvironmental by Local Gav'k $0 0% 0 $0 $0 100% $0 Engineering by Local Government $211,475 kD /O m �� 0 % $b' 100% $211,475 SUBTOTAL $211,475 $0 $0 ` _ $0 $211,475 .� �;o, ('OITRLJC�TIAtiI Construction by State _ _ $f 3b3185 0% _ $ Q l° $0 100% $1,393,856 Mobilization rs -m9 0% ' $0 Oda $0 100% $128,204 (Est. @ lob /. of Construction) x $125,204; $0 0 %0 $0 100% $0 Traffic Control , 6 _ -Q $D 0 °la $0 100% $46,000 (Est. 12 months) IA $0 $0 $0 suaTtAL Y $a $0 $1,5 s 5 ,oso _ NAK I IV Dll EfE .T STATF COSTS Engineering Plan Review (Est. @ I% of Construction) rs -m9 Engineering & Contingency (Insp. & WAI1/ = 0% $0 0 %0 $0 100% $0 oversight) (Est @ 12% or const.) y Y IA $0 $0 $0 SUBTOTAL VAK I V TOTAL PROJECT COST TOTAL $1,792,186 $0 $ $$ 1,776,535 Initial payment for Right of Way = $00 Total Local Government Estimated Project Cost = $1,776,535 Total Estimated Amount Required from the Local Government to the State = $1,565,060 Direct State Cast will be based on actual charges This is an estimate only; final Local Govemment costs will be based on actual charges to the Project AFA— LPAFA_VolProl Page 1 of 1 Revised 08/13/12 LOCATION MAP Al r. 1- `E 4f tr ti • . ti