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Item 9A Item 9A M E M O R A N D U M (May 5, 2015) To:Shana Yelverton, City Manager From:Robert H. Price, P.E., DirectorofPublic Works Subject:Approve Amendment No.1 toState Highway 114 Texas Turnaround Memorandum of Understandingfor the design and constructionof a south side acceleration laneto be funded by Gateway Church,Tarrant County, and theCity of Southlake Action Requested: Approve Amendment No. 1 to State Highway 114 Texas Turnaround Memorandum of Understanding for the design and construction of a south side acceleration lane to be funded by Gateway Church, Tarrant County, and the City of Southlake. Background Information: Amendment No. 1 to theMemorandum of Understanding (MOU) approved in October, 2012 allows for the design and construction of the addition of a dedicated accelerationlane for the recently constructed S.H. 114 Texas Turnaround at N. Carroll Avenue. This MOU amendment commits three (3) partners: Gateway Church, Tarrant County and the City of Southlake to this project. ATexas Turnaround located on the east side of the Carroll Avenue/SH 114 intersection bridge was constructed as a Public- Private Partnership in 2014as a solution to addressing the additional traffic volumein the Carrol Avenue intersections with the SH114 frontage roads. Gateway Church, Cooper and Stebbins, Inc. (the developer of Southlake Town Square), Tarrant County, the City of Southlake and TxDOT came to an understanding that this project was of a significant importance to both the adjacent major property owners, the City, the County and the State. A Memorandum of Understanding (MOU)was approved by the City Council in October, 2012 establishingan agreement between the four of the five parties, excluding TxDOT. The project wasconstructed for approximately $2,000,000.Per the approvedMOU between the City and the other three parties, the City of Southlake as well as the other three parties werejointly responsible for approximately $250,000 eachwith the city providing additional funding for illumination onthe bridge and other aesthetic improvements. The Texas Turnaround bridge sees very heavy use at varying times throughout the week. Also, because of the unique geometry of the turnaround bridge in relation to the Carroll Ave. bridgeand the acuteangle created by the alignment of N. Carroll Avenue intersecting with the SH114 east bound frontage road, motorists are often confused as to who has the right of wayas they exit the bridge.Immediately following the release of many of the events at Gateway Church, vehicles utilizing the new Texas Turnaround in order to avert the N. Carroll Avenue intersections create a backup on the turnaround bridge as a result of a need to yield to eastbound SH 114 frontage road traffic as well as vehicles originatingfrom north and southbound Carroll Avenue. A solution to this stacking and congestion problem has been recommended by the design engineering firm of Kimley-Horn and Associates (KHA). KHA has suggested that a dedicated egress lane from the Texas Turnaround will allow traffic to more smoothly flow onto the SH114 entrance ramp resulting primarily from Gateway church dismissal peak volumes. It is expected that this improvement will increase the efficiency of the Texas Turnaround by reducing the stacking issue on the bridge; thus relieving much of the traffic congestion at this location. This amendment to the original MOU is also based upon the expectation that funding in the amount of $100,000 will be committed to the project by TxDOT. This amendment to theoriginal MOU also establishes the three (3) partner's financial commitments in the following amounts: $125,000 plus additional funds for a consultant fee for Hodge and Associates by Gateway Church, $100,000 by Tarrant County;and, $75,000 by the City of Southlake. The TxDOT contract is still open and based upon conversations with TxDOT and the project contractor,it is anticipated that the improvements willbe constructed using the existing construction contract and the unit prices in the original contract. If approved, the project schedule anticipates construction to begin andbe completed in 2015. Financial Considerations: The approval of this amendment to the original Memorandum of Understanding (MOU) establishes a city commitment of $75,000 toward the design and construction a dedicated acceleration lane for theSH114 turnaround located on the east side of the Carroll Avenue interchangefor the city.The remaining financial commitments aremade up by the remaining twoparties to the agreement.It is also anticipated thatstate funds in the amount of $100,000 will be made available for the construction of the project. The cost of the project is estimated at $400,000. The City Council has not previously authorized any funds for a dedicated acceleration lane for the SH114 Texas Turnaround project.Available funds for the city’s portion of this proposed project have been identified by the Chief Financial Officer of the city from residual funds. If approved, the FY 2015 Capital ImprovementBudget will be amended later this year to include the project. Strategic Link: The construction of adedicated acceleration lane for the turnaround bridge located on the east side of Carroll Avenue provided for under this Memorandum of Understandinglinksto the City’s strategy map relative to the focus areas of Mobility, Infrastructure, andPartnerships.The specific corporate objectives that are met by this construction projectinclude:providing travel convenience throughout the city and region,collaboratingwith select partners to implement service solutions, and investingto provide and maintain high quality public assets. Citizen Input/ Board Review: N/A Legal Review: This Memorandumhas been reviewed by the City Attorney. Alternatives: The City Council may approve or deny the agreement. Supporting Documents: Amendment No. 1 to theMemorandum of Understanding Project Schematicshowing location Staff Recommendation: Approve Amendment No.1 to Memorandum of Understanding (MOU)for the addition of a dedicated acceleration lane to the design and construction of the State Highway 114 Texas Turnaround at N. Carroll Avenue (east side only) between Gateway Church, Tarrant County, and the City of Southlake each committing funding toward the project. Staff Contact RobertH. Price, P.E., Public Works Director : Cheryl Taylor, P.E., Deputy Director/CityEngineer Amendment No. 1 Memorandum of Understanding Between Gateway Church, Tarrant County, and the City of Southlake, Texas This Amendment No. 1 to the original Memorandum of Understanding (the “MOU”) approved on October 2, 2012 is hereby entered into by Gateway Church, Tarrant County, and the City of Southlake regarding the design, and construction of dedicated acceleration lane on the turnaround bridge 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 proposed acceleration lane 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 further benefit the citizens of Southlake and Tarrant County, by relieving traffic congestion, and furthering efforts to attain federal air quality standards; and WHEREAS, the initial cost estimate for the design, engineering, and construction of the addition of a dedicated acceleration laneis $400,000; 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 THEPREMISES 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 costsless funds committed by the TxDOT, including design, engineering, geotechnical work, and construction on the following basis:. Gateway Church$125,000* Tarrant County $100,000 City of Southlake$75,000 * plus additional funds for a consultant fee for Hodge and Associates The Parties recognize that TxDOT, who willactuallychange order the additional work into the existing TxDOTconstruction contract, reservesthe 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 $100,000. TxDOT has further agreed to waive its standard design review, inspection, and project management fees. 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 fundswill 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. Shouldthe total Project costs exceed the estimate of $400,000, in accordance with the LPAFA, then suchadditional costs will be shared by the parties in equal amounts. The City of Southlake shall provide advance notice tothe parties to this MOUas to the -2- 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. SECTION 6. MISCELLANEOUS 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, -3- illegality or unenforceability shall not affect any other provision(s) hereof, andthis 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. I.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 enteringinto 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: -4- If to Tarrant County: 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 bethe date on which the last of the parties hereto execute this document. CITY OF SOUTHLAKETARRANT COUNTY By:_________________________By:_________________________ Date: __________, 2012Date:__________, 2012 APPROVED AS TO FORM:APPROVEDAS TO FORM: By:_________________________By:_________________________ City Attorney City of Southlake -5- GATEWAY CHURCH By:_________________________ Date: __________, 2012 CORPORATE ACKNOWLEDGMENT: The State of Texas County of 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: Notary Public in and for the State of Texas -6-