HomeMy WebLinkAbout38-93 RESOLUTIONe•
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RESOLUTION NO. 3R-93
A RESOLUTION AUTHORIZING AN AGREEMENT WITH
THE ARKANSAS STATE HIGHWAY COMMISSION FOR
HIGHWAY -UTILITY CONSTRUCTION/RELOCATION.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1. That the City Council hereby authorizes an agreement with the Arkansas
State Highway Commission for highway -utility construction/relocation. A copy of the
agreement is attached hereto marked Exhibit "A" and made a part hereof.
PASSED AND APPROVED this 23rd day of Sch., 1993.
ATTEST:
. .,y .;
Sherry Thomas, City Clerk
APPROVED:
By:
(teaktIA--
Hanna, Mayor
Rev. 10-28-92
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ARKANSAS STATE HIGHWAY COMMISSION
HIGHWAY -UTILITY CONSTRUCTION / RELOCATION AGREEMENT
State Job No. 4837
(Utilities) County Washington
Federal Aid Project FEGC-042-1 (4)
AC - CA
AC - UA X
LS - CA _
LS - UA
Route 180 section 0
Job Location Garland Ave. - Hwy. 471 Utility Owner Fayetteville Water &
Sewer
, .THIS AGREEMENT, made and entered into this a(� - day of /t1(/
197�11 , by and between the Arkansas State Highway Commission, acting 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
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 according 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 ex-
isting utility facilities and/or secure "Department's" approval of the con-
struction 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 participate in the cost of
such work to the extent such costs are eligible for reimbursement 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, in-
cluding Federal -Aid Policy Guide Part 645 issued by the United States Depart-
ment of Transportation, Federal Highway Administration, December 9, 1991,
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 at-
tached 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 accordance with the applicable provisions and require-
ments of the Arkansas State Highway Commission Utility Accommodation Policy as
adopted on September 20, 1989, by Commission Minute Order 89-455, as amended
and supplemented, and which by this reference are hereby made a part of this
agreement; and ouch reimbursement shall be in the eligible proportionate
Sewer - By abandoning approximately 1,498 feet (varying in sizes from 6" to
12") sewer mains, manholes, services and appurtenances. Restore the function
by installing approximately 1,502 feet (varying in sizes from 6" to 12")
mains, manholes, services and appurtenances. Of the 1,498 feet approximately
589 feet is located on private right of way and is reimbursable (estimated
reimbursable cost $71,135.75).
The reimbursement factor is determined by dividing the total estimated reim-
bursable construction cost by total estimated construction cost.
$92,922.68 ; $365,642.00 = 25.41%
Total Estimated Construction Cost
Construction Engineering **
Easements
Health Department Review Fee
$ 365,642.00
$ 35,970.00
$ 3,000.00
$ 500.00
$ 405,112.00
5405,112.00 X 25.41% $102,938.96
Work to be by contract by bid,
* The pro rata factor will be updated by "Owner" after the actual quantities
are installed at billing time.
** Fixed Upper Limit $40,000.00
and such adjustment, relocation, or construction being shown in detail in
"Owner's" plans, sketches, estimate of cost, and specifications (when ap-
plicable) which are attached hereto and made a part hereof; and
WHEREAS: The "Department" desires to implement the herein described
utility adjustments or relocations and approve the proposed utility construc-
tion 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 conveyance 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 properties as shown on the approved plane or
sketch maps attached hereto and made a part hereof, said License and Permis-
sion 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 ad-
justing of "Owner's" utility facilities located on, over, under, or across
highway right of way or other highway property under provisions of this Per-
mit, "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
amount of (or under lump sum payment procedures, the amount representative of)
the reasonable and actual cost of the adjustment of "Owner's" existing
facilities, less betterments (except that betterments required by the highway
construction on eligible facilities may be reimbursed) and
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",
provided 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 enjoyment, being as defined by "Department" in its regula-
tions; and
WHEREAS: Where the new and/or relocated utility facilities referred to
herein are located or constructed along, on, or across a fully controlled ac-
cess highway, the design and future servicing of such facilities must comply
with the policy set forth in "A Policy on the Accommodation of Utilities
within Freeway Right -of -Way" adopted by the American Association of State
Highway and Transportation Officials - February, 1989 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 ad-
jacent public roads, streets or drives, or (c) trails along or near the high-
way 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 protection 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 device■ to
provide adequate warning and protection to persons and property 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" harm-
less from liability in all respects. Due precaution and care for the protec
tion 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 what-
soever along, on or across the controlled access highway; and
WHEREAS: The proposed highway improvement necessitates the adjustment,
relocation, and/or "Department's" approval of the proposed locations of cer-
tain facilities of "Owner" as described in the following description of work.
Adjust water and sewer facilities to clear highway construction by:
Water - Abandoning approximately 3,998 feet (varying in sizes from 2" to 12")
waterlines, service lines and all appurtenances. Restore the function by in-
stalling approximately 2,776 feet (varying in sizes from 2" to 12") services,
encasements and appurtenances. Of the 3,998 feet approximately 470 feet is
located on private right of way and is reimbursable (estimated reimbursable
cost $ 21,786.93).
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be removed or adjusted are located on property in which "Owner" holds a com-
pensable property interest under the Law of Arkansas as it exists at tho time
of such request.
2. Where applicable hereunder by reason of new highway construction or
existing 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 subsequently acquired in the same lands, and which property
rights "Owner" shall retain so long as "Owner" (or "Owner's" successors or as-
signs) continues such use and occupancy 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" con-
venience; 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 ad may be eligible for reimburse-
ment 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,
relocation, 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 incon-
venient 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. "Department" shall furnish "Owner" a written work authorization to
proceed with approved utility adjustments not less than 30 days before start-
ing work on the project, and such authorization shall designate the name and
location of the Engineer in charge of the project and incorporate this agree-
ment by reference.
5. "Department's" Engineer shall schedule and furnish 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" in scheduling and supervising "Owner's" work to attend said con-
ference.
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 informed of progress and activity related to the work being per-
formed, and shall furnish notice when the work is completed.
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7. "Owner" shall perform the work with "Owner's" forces and/or with con-
tract 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 agree-
ment. The work shall be performed with "Owner's" forces unless it is stated in
the attached statement of work or a subsequent change request that "Owner" is
not adequately staffed or equipped to perform the work with its own forces at
the time the relocation work is required, in which case, the work shall be
performed with contract forces in accordance with the requirements of Federal
Aid Policy Guide Part 645 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 cost 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 thereof 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 compensable in eminent domain. "Owner" further cer-
tifies 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 antedates any right■
held by "Department" in the utility locations on which reimbursement for ad-
justment or construction cost is to be paid hereunder.
9. "Owner" has determined; and "Department" concurs, that a credit for
accrued 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 con-
struction provided for hereunder is 25.41% eligible for reimburse-
ment 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 es-
timate of cost), and which net actual cost (or representative net actual cost
if payment to be "lump sum") is estimated in the amount of $ 405,112.00
of which $ 102,938.96 is estimated to be the eligible reimbursable
amount (to be paid by the "Department" and $ 302,173.04 is the estimated
nonreimbursable amount (the proportionate share of the cost to be borne by
"Owner"); and the basis for such cost proration or allocation between "Owner"
and "Department" to be followed in billing and payment stages 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.
B. X
C.
A Work Order System
Agency.
A system developed
"Department".
The estimated lump
as a firm commitment
prescribed by the applicable Regulatory
and used
by "Owner" and accepted by the
sum reimbursable amount
reasonable total
work.
(not over
agreed as representative of the
costs for all required
reimbursable
$25,000)
actual and
adjustment
"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 120 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 performing 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 un-
sightly condition.
14. Unless reimbursement is to be according to lump sum procedure (11.C),
"Owner" shall collect and hold in reserve all unreusable material which is not
to be returned to stock and is to be credit to the job at less than the sal-
vage value of reusable materials for inspection by the "Department's" desig-
nated Engineer. Failure to furnish written notice to said Engineer of the
time and place for inspection 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 reusable salvage value of all removed material
returned to reusable materials stores.
15. If requested by "Owner" in writing, "Department" shall make inter-
mediate progress payment of ninety percent (90%) of eligible billed costs for
utility work hereunder, at no more than monthly intervals, upon receipt of
certified statements in four (4) copies for periodic unpaid costs, provided
the intermediate billed amount is $5,000.00 or more (except that no inter-
mediate payments shall be made on "Lump Sum" Agreements.) No such inter-
mediate 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 sup-
porting detail in four (4) copies covering all billed amounts, including in-
termediate 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 completed by "Owner" for acceptance by
"Department" upon being certified correct by "Department's" Engineer.
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17. The "Department", upon receiving from "Owner" the final billing docu-
ments complete as listed next above, shall reimburse "Owner" for the eligible
actual cost, lees all applicable credits and prior -payments, if any, for
making the adjustments in "Owner's" facilities as agreed herein; and in reim-
bursing "Owner", the "Department" shall make initial or semifinal payment to
"Owner" for the work in the amount of ninety percent (90%) of the eligible
reimbursable amount billed. The retained eligible 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 reimburse-
ment to the "Owner" shall not exceed the total amount found eligible for reim-
bursement as reflected by an audit pursuant to Federal Aid Policy Guide Part
645 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, ounces
sore or assigns.
19. Notwithstanding anything hereinbefore written, neither the "Owner"
nor the "Department" by execution of this Agreement waives or relinquishes any
rights which either may legally have within the limits of the Law or Constitu-
tion, 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.
FAYETTEVILLE WATER & SEWER
Ti le ; Mayor
Ti le n nn ,
ARKANSAS STATE HIGHWAY COMMISSION
Acting By and Through The
HIGHWAY AND TRANSPORTATION DEPARTMENT
ctor of Highways & Transportation
Chief, Right of Way Division
IJ�
Title Chief -Utilities Section
Right of Way Division