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HomeMy WebLinkAbout40-89 RESOLUTIONRESOLUTION NO. 40-89 3 A RESOLUTION AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A UTILITY RELOCATION AGREEMENT WITH THE ARKANSAS STATE HIGHWAY COMMISSION FOR REIMBURSEMENT OF CITY UTILITY RELOCATION COSTS AT THE CATO SPRINGS ROAD AND U.S. HIGHWAY 71 INTERSECTION. BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE CITY OF FAYETTEVILLE, ARKANSAS: { Section 1. That. the Mayor and City Clerk are hereby authorized and directed to execute an agreement with the Arkansas State Highway Commission for reimbursement of city utility relocation costs at the Cato Springs Road •and U.S. Highway 71 intersection. A copy of the agreement authorized for execution hereby isattached hereto marked Exhibit "A" and, made a part hereof. PASSED AND APPROVED this 18th day of April ATTEST Cf'/ty( Clerk '4 :.7. APPROVED By: , 1989. Mayor T a-tb-80 ,1C--29-85 ARKANSAS STATE HIGHWAY COMMISSION AC - CA X AC = UA LS - CA LS - UA HIGHWAY -UTILITY CONSTRUCTION / RELOCATION AGREEMENT State Job No. R40068 (Utilities) County Washington Federal Aid Project FFIR-075-1 (44) Route 71 ! Section Job Location Hwy. 71 Fayetteville Utility Owner City of Fayetteville Bypass Interchange Water & Sewer THIS AGREEMENT, made and entered into this $ day of t"\Q (qI 19Fn , by and between the Arkansas State Highway Commission, actin by and through the duly authorized representatives of the Arkansas State Highway and Transportation Department, with headquarters at Little Rock, Arkansas, hereinafter referred to as the "Department", and the City of Fayetteville Water & Sewer of Fayetteville , Arkansas , acting by and through its duly authorized representatives, hereinafter referred to as the "Owner", WITNESSETH: WHEREAS: The "Department", in the interest of public safety, convenience, and enjoyment, proposes to make certain highway improvements at the location and accord- ing to the plans and specifications of the "Department" for such work under the job designation as shown above; and as part of the necessary work of such improvements "Owner" must adjust or relocate certain of its existing utility facilities and/or secure "Department's" approval of the construction and location of certain proposed facilities on the right of way of said highway project, and in connection with such adjustments, relocation, and/or new utility construction "Department" shall partici- pate in the costs of such work to the extent such costs are eligible for reimburse- ment from State Highway funds and eligible for participation in Federal funds; and WHEREAS: it is understood by the parties hereto that, for the cost of the adjustment of "Owner's" facilities to be eligible for participation in Federal Funds, the work must be performed and reimbursement made in accordance with Federal Laws, Rules and Regulations applicable to Federal Aid Projects, including Federal - Aid Highway Manual 6-6-3-1 and 6-6-3-2 issued by the United States Department of Transportation, Federal Highway Administration, September 6, 1985', respectively, as amended and supplemented, and. which by this reference are hereby made a part of this agreement with the same force and effect as if attached hereto or recited herein; and WHEREAS; The adjustment or construction of "Owner's" facilities shall be eligible for reimbursement by the "Department" in the proportion that the facilities to be adjusted or constructed are located on property in which "Owner" holds a compensable property interest under the Constitution and Arkansas. Law, and in accord- ance with the applicable provisions and requirements of the Policy of the Arkansas State Highway Commission on the Accommodation and Adjustment of Utilities as adopted on August 26, 1970, by Commission Minute Order 70-300, as amended and supplemented, and which by this reference are hereby_made a part of this agreement; and such reim- bursement shall be in the eligible proportionate amount of (or under lump sum pay- ment procedures, the amount representative of) the reasonable and actual cost of the adjustment of "Owner's" existing facilities, less betterments' (except that better- ments required by the highway construction on eligible facilities may be reimbursed); and H-,UC/RA , 4b-80 .10-29-85 WHEREAS: Under applicable Arkansas Statutes, "Owner" shall be permitted to use, be on, over, or under land or rights of way held by the "Department", pro- vided that such use or occupancy does not in any way or manner interfere with the public use of such property for highway purposes as provided by Law; and the terms and conditions of such use, in the interest of public safety, convenience and en- joyment, being as defined by "Department" in its regulations; and, WHEREAS: Where the new and/or relocated utility facilities referred to herein are located or constructed along, on, or across a fully controlled access highway, the design and future servicing of such facilities must comply with the policy set forth in "A Policy on the Accommodation of Utilities on Freeway Rights of Way" ad- opted by the American Association of State Highway and Transportation Officials --1982 and in accordance with said policy and requirements thereof, access for servicing any utility facilities located along, on, or across such fully controlled access right of way for normal servicing shall not be from the through traffic roadways or the "on" and "off" ramps of the controlled access highway and shall be limited to access via (a) frontage or service roads where provided, (b) nearby or adjacent public roads, streets or drives, or (c) trails along or near the highway right of way lines and connecting only to an intersecting road, street, or drive, from any one or all of which entry may be made to the outer limits of the controlled access right of way. In a case of emergency where immediate action is necessary for pro- tection of the public and to minimize property damage and loss of•investment,"Owner" may at its sole risk and responsibility use the controlled access area as an access route for servicing its utility facilities provided "Owner" uses appropriate safety methods and devices to provide adequate warning and protection to persons and pro- perty of the public, notifies the "Department" as soon as practicable, assumes full responsibility for its operations, including the restoration of highway and utility properties to original equivalent conditions, and saves the "Department" harmless from liability in all respects. Due precaution and care for the protection of the traveling public shall be exercised by "Owner" at any and all times in work on, or servicing of, its facilities due from any cause whatsoever along,:on or across the controlled access highway; and WHEREAS: The proposed highway improvement necessitates the adjustment, reloca- tion, and/or "Department's" approval of the proposed locations of:certain facilities of "Owner" as described in the following description of work. SEE ATTACHED .EXHIBIT "A", • and such adjustment, relocation, or construction being shown in detail in "Owner's" plans, sketches, estimate of cost, and specifications (when applicable) which are attached hereto and made a part hereof; and N ti-UL/ea t 4=1t-86 4 • WHEREAS: The "Department" desires to implement the herein described utility ad- justments or relocations and approve the proposed utility construction of "Owner" by entering into an agreement With said "Owner". NOW, THEREFORE, IT IS HEREBY AGREED: 1. Where applicable hereunder by reason of new utility occupancy or crossing of highway right of way, "Department" hereby grants to "Owner", without any convey- ance of right, title or property interest, either expressed or implied in or to the highway rights of way or other highway properties, License and Permission to install and operate utility facilities on or across "Department's" rights of way or proper- ties as shown on the approved plans or sketch maps attached hereto and made a part hereof, said License and Permission being subject when applicable to the herein stated conditions; and with the understanding and agreement that if any subsequent change in the highway facility or highway use of the highway right of way necessitates moving or adjusting of "Owner's" utility facilities located on, over, under, or across highway right of way or other highway property under provisions of this Permit, "Owner" shall begin such move or adjustment within ninety (90) days after receiving written request from the "Department", and shall exercise due diligence to complete such work without delay or interference to "Department's" operations; and such move or adjustment of "Owner's" facilities to be at "Owner's" expense except where the "Owner's" facilities required to be removed or adjusted are located on property in which "Owner" holds a compensable property interest under the Law of Arkansas as it exists at the time of such request. _ 2. Where applicable hereunder by reason of new highway construction or exist- ing utility rights of way, "Owner" hereby grants to "Department" the right to use for highway purposes the lands within the project limits on or across which "Owner" holds a valid property interest antedating "Department's" rights which were subse- quently acquired in the same. lands, and which property rights "Owner" shall retain so long as "Owner" (or "Owner's" successors or assigns) continues such use and oc- cupancy and does not abandon, and thereby release, such property interest to "Department" through facility removal in making said adjustments.. or by subsequent facility removal for "Owner's" convenience; and the "Department" hereby agrees that "Owner", by granting said right and by said continued joint use and occupancy, does not waive any future claim for reimbursement for adjustment cost as may be eligible for reimbursement by reason of such prior property interest, nor does "Owner" waive any other legal or property right held under the Law or Constitution of the State or the United States. 3. In the event that future construction, reconstruction, expansion, reloca- tion, rehabilitation, betterment, maintenance, or other work on the facilities owned and operated by either the "Department" or the "Owner" in the area jointly occupied or used under either or both the above provisions of this agreement will disturb, detrimentally affect, interfere, or be inconvenient to the facilities or responsibilities of either party, the parties hereto shall reach agreement in writing as to locations, extent, and methods of such work before the work is undertaken. In case of an emergency, and where immediate action is necessary for the protection of the public and to minimize damage to or loss of investment in the property of the "Department" or the "Owner", either party hereto may, at its own responsibility and risk, make any necessary emergency repairs, and shall notify the other party hereto of such action as soon as practicable. 4-10-8Q, 1Q=9-85 4: "Department" shall furhish "Owner" a written work authorization to proceed with approved utility adiustments not less than 30 days before starting work on the project,and said authorization shall designate the name and location of the Engineer in charge of the project.and:incorporate this agreement by reference. 5. "Department's" Engineer shall schedule and furnish written notice of the time and place for a pre -construction conference of representatives of (a) utilities affected'by the highway project, (b) the highway contractor, and ,(c) the Engineer in charge of the project for the purpose of coordinating the proposed work of each respective party so that each may know the requirements of the other, and "Owner" shall cause a representative with authority to act for "Owner" inE scheduling and supervising "Owner's" work to attend said conference. 6. "Owner" shall notify "Department's" designated Engineer, at least three (3) days in advance of the date work is to be started, and shall keep' the. Engineer in- formed of progress and activity related to the work being performed, and shall furnish. notice when the work is completed.. 7. "Owner" shall perform the work with "Owner's" forces and/or with contract forces in the manner as set forth in the attached and approved estimate of cost or as set out in an approved supplement or modification of this agreement. The work shall be performed with "Owner's" forces unless it is stated in the attached state- ment of work or a subsequent change request that "Owner" is not adequately staffed or equipped to perform the work withits own forces at the time the relocation work is required, in which case, the work shall be performed with contiact forces in accordance with the requirements of FHPM 6-6-3-1 as approved by the "Department" and determined to be in the best interest of the project. "Owner" shall maintain adequate records and accounts on the contracts let and work performed by contract forces to be in position at the actual -cost billing stage to support all charges incurred in connection therewith. Any subsequent major change in'the plan or scope of work, the method of performing the work, or in the quantities of major items of materials to be installed or removed, shall have prior approval of the "Department" before any such change is initiated if any additional costs of such changes are to be eligible for reimbursement. 8. "Owner" hereby certified, and "Department" concurs therein, that "Owner" possesses a real property interest in the locations of its existing facilities on which reimbursement for the functional replacement of all or a pro rata part there- of is to be paid by the "Department" as hereinafter set forth, and the damaging of taking of such real property interest by reason of the required adjustment is com- pensable in eminent domain. "Owner" further certifies to holding the right of occupancy in the locations of the existing facilities indicated on the attached plans or sketches as being reimbursable by reason of "Owner's" holding a legally acquired right of way or easement interest, and that such easement or property right antedates any rights held by "Department" in the utility locations on which reimbursement for adjustment or construction cost is to bepaidhereunder. - 11-UC/RA' 4-10-80 2-22-83 10-29-85 9. "Owner" has determined; and "Department" concurs, that a credit for accured depreciation of the existing facilities being replaced is: X (a) Not due the project as only a segment or segments of the utility's service, distribution or transmission lines are involved. (b) Due the project and has been allowed in the estimate of cost. 10. "Department" finds and agrees that the utility adjustment and/or construc- tion provided for hereunder is partially* eligible for reimbursement to "Owner" for the actual cost, less applicable credits (including but not limited in an audit to those credit items as set out in the attached estimate of cost), and which net actual cost (or representative net actual cost if payment to be "lump sum") is estimated in the amount of $ 378,158.00 of which $193,440.00 is estimated to be the eligbile reimbursable amount (to be paid by the "Department" and $ 184,713.00 is the estimated nonreimbursable amount (the proportionate share of the cost to be borne by "Owner"); and the basis for such cost proration or al- location between "Owner" and "Department" to be followed in billing and payment stages is as set out in the attached summary and allocation of estimated costs. 11. "Owner" shall accept as full reimbursement for work hereunder the amount developed or accumulated as eligible actual and related indirect costs in accordance with the following designated account procedure: A. __g_ A Work Order System prescribed by the applicable Regulatory Agency. B. A system developed and used by "Owner" and accepted by the "Department". C. .The estimated lump sum reimbursable amount (not over $25,000) as a firm commitment agreed as representative of the actual and reasonable total reimbursable costs for all required adjustment work. "Owner" further agrees to retain said cost records and accounts for inspection and audit for a period of not less than three (3) years from the date of final payment. 12. "Owner" shall not begin the adjustment work until authorized by the "Department", and shall exercise due diligence to begin work within 30 days and to complete such work within 90 days thereafter and in a manner as will result in no avoidable interference or delay to the "Department's" construction work or in the adjustment of "Owner's" facilities. . 13. "Owner" shall be responsible for any and all hazards to persons, property, and traffic, and shall save the "Department" harmless in all respects from any and all losses, damages, -or injuries caused by any negligent act or omission by "Owner's" employees or agent performdng work under this Agreement; and "Owner" shall, in completing said work, perform clean up and restoration of appearances of the work area, including disposal of surplus materials and debris, so as not to leave the work area in an unsafe or unsightly condition. *See attachment r - 7`4-10'-80 .4'10-29-85 14. Unless reimbursement is to be according to lump sum procedure (11.C), "Owner" shall collect and hold in reserve all unreu5able material which is not to be returned to stock and is to be credited to the job at less than the salvage value of reusable materials for inspection by the "Department's" designated Engineer. Failure to furnish written notice to said Engineer of the time and place for in- spection of such material shall make "Owner" accountable for the reusable salvage value of all material disposed of without notice. Credit shall be given for the re- usable.salvage value of all removed material returned to reusable materials stores. 15. If requested by "Owner" in writing, "Department" shall make intermediate progress payments of ninety percent (90%) of eligible billed costs for utility work hereunder, at no more than monthly intervals, upon receipt of certified state- ments in four (4) copies for periodic unpaid costs, provided the intermediate billed amount is $5,000.00 or more (except that no intermediate payments shall be made on "Lump Sum" Agreements). No such intermediate payment shall be construed as final settlement for any item included in any intermediate billing. 16. "Owner" shall, upon completion of the adjustment and acceptance by the "Department", submit to "Department" a complete and final bill with supporting detail in four (4) copies covering all billed amounts, including intermediate billing, (except that no detail is required under a "Lump Sum" Agreement). Such final billing shall be certified correct by "Owner" and shall cover the total cost and applicable credits for the adjustment of "Owner's" facilities; and "Owner" shall submit one (1).set of "as -built" plans representing the adjustment as com- pleted by "Owner" for acceptance by "Department" upon being certified correct by "Department's" Engineer. 17. The "Department", upon receiving from "Owner" the final billing documents complete as listed next above, shall reimburse "Owner" for the eligible actual cost, less all applicable credits and prior -payments, if any, for making the adjustments in "Owner's" facilities as agreed herein; and in reimbursing "Owner", the"Department" shall make initial or semi-final payment to "Owner" for the work in the amount of ninety percent (90%) of the eligible reimbursable amount billed. The retained eli- gible amount (final settlement) shall be paid "Owner" (allowing time for normal processing) after audit of "Owner's" cost records and accounts. "Owner" agrees to refund any and all amounts paid in initial or partial payments found in the audit to exceed the total amount eligible for reimbursement for work hereunder. Total reimbursement to the "Owner" shall not exceed the total amount found eligible for reimbursement as reflected by an audit pursuant to FHPM 6-6-3-1 of the cost records and accounts of the "Owner" applicable to subject project, except that if the lump sum payment procedure (11.C) is indicated herein then initial and final payment shall be made for one hundred percent (100%) of such agreed lump sum without site audit and without intermediate progress payments; and final payment of said total eligible amount shall satisfy and discharge the "Department's" reimbursement obligations hereunder.' 18. It is mutually agreed by the parties hereto that the provisions of this Agreement pertaining to relative property rights, right of way occupancy permission, access for servicing when applicable, and joint use of rights of way shall continue in full force and effect from the date of execution, and shall be perpetually binding upon each party's legal representatives, successors or assigns. 7:22-77 • 19. Notwithstanding anything hereinbefore written, neither the "Owner" nor the "Department" by e*ecution of this Agreement waives or relinquishes any rights which either may legally have within the limits of the Law or Constitution, either State or Federal. IN WITNESS WHEREOF: The parties hereto have caused this instrument to be executed in triplicate -by their duly authorized representatives the date first herein above written. • CITY OF FAYETTEVIJIF WAU'EN & SEWER eeLorie// Title7244/177e Title ARKANSAS STATE HIGHWAY COMMISSION Acting By and Through The ARKANSAS STATE HIGHWAY AND TRANSPORTATION DEPARTMENT `7 fit.( C{ Direct r of Highways and Transportation Chief-Righf of Way Division Chief-Utili es t tion Right of Way D ision