From: Ext_mail John Hill Sent: Thursday, August 19, 2010 6:56 PM To: Nancy Cline Subject: Agreement ***************************************************************************** IMPORTANT/CONFIDENTIAL: This message contains information from the law firm of Cowles & Thompson, P.C. which may be privileged, confidential, and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient or the employee, or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution, or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately at our telephone number (214) 672-2000 ****************************************************************************** Nancy, attached is a red-lined copy of the Project Supplemental Agreement with Dallas County with a few changes. Also attached is a comparison of the document that was reviewed earlier this year and the document you forwarded last week, showing changes also by red-lining. There a quite a few numbers and descriptions of the project that have changed, so please review to determine if the changes are acceptable. Below are some notes and comments regarding the document: 1. Please review the “Whereas” clauses to confirm that the dollar amounts (e.g., $2,937,600 from COG) are accurate. 2. Should confirm that the Master Agreement identified in Article II, paragraph 1, as being the one “authorized by County Commissioners Court Order 2002- 1375 dated July 30, 2002,” is the Master Agreement between the County and the Town. 3. Note that Article II, paragraph 4 incorporates into the agreement “PSA Project 17701, Segment F, between COUNTY and City of Farmers Branch.” Are you familiar with that? 4. The Project description has been changed (Article IV). Please review to determine if it is acceptable. 5. In the description of Segment A and Segment F in Article IV (and in other places), there is a reference to the “south pedestrian bridge.” I took a look at the maps attached, and did not see the south pedestrian bridge identified. Since it is referenced in the agreement, it would be helpful to show it on the maps. 6. Note that a paragraph in Article V, that stated that the County represented that there are no circumstances presently affecting the County, that could reasonably expected to affect its ability to provide funding. The paragraph read as follows: Notwithstanding the foregoing, with respect to the funding to be provided by COUNTY, COUNTY represents that there are no circumstances presently affecting COUNTY that could reasonably be expected to adversely affect its ability to appropriate and budget funds for the payment of sums due under this PSA, and COUNTY reasonably believes that funds can be obtained in amounts sufficient to make all COUNTY payments under this PSA. I would prefer to have that paragraph in, but since the County has deleted it, it’s not likely the County will accept that language, and it is not included in the attached draft. If you would like to include it again, please let me know. 7. Note that a provision has been added to Article VII as paragraph 3 that provides for the Town to enter into a Regional Toll Revenue Advanced Funding Agreement. It states: TOWN will enter into an Regional Toll Revenue Advanced Funding Agreement (RTRAFA) with the Texas Department of Transportation (TxDOT) to secure funding awarded during the 2009-10 Sustainable Development Call For Projects as identified in ATTACHMENT “B”. Please review to determine if that is acceptable. 8. There are a number of references to Attachment “A” throughout the document, but there is no Attachment “A” attached. The first attachment is labeled Attachment “A1,” and so the Attachment “A” references are deleted throughout. 9. Article VIII, paragraph 4 states in part that “[f]unding for each segment is detailed in Table B1 of ATTACHMENT ‘B’”. I think the reference to Attachment B should be to Attachment B2 (that change is included in the attached). However, it does not look like Table B1 details the funding by segment. 10. It appears that the County funding amount of $2,130,000 is for all segments - Segments A-E (all within the Town) and Segment F (within Farmers Branch). Is that accurate? 11. Note a couple of items that have been deleted in Article VII regarding the County’s responsibilities (each of these is deleted from the prior draft): The County will provide MCIP funding for multimodal pathways dedicated for public usage that enhance non-vehicular mobility. The County will provide MCIP funding for County approved multimodal access that provides enhanced capacity on regional thoroughfares. 12. Note that in Article IX, Funding, the amount of $100,000 for County “in-house project delivery costs” has been removed. In its place has been substituted language that leaves the amount of County in-house project delivery costs open, so that it can be any amount. Consider adding a “not-to-exceed” dollar amount for those in-house project delivery costs. 13. The first sentence of Article IX, paragraph 2 states that the total amount of County funding for the Project is $2,130,000. If I understand correctly, however, the cost of the Project will be paid from these and from other sources as well. The second sentence states: If the total PROJECT costs excluding trail amenities or utility betterments should exceed this amount, the TOWN and COUNTY agree to amend the Project's scope to remain within the current estimated Not To Exceed Amount or all County Commissioners Court approved, additional PROJECT costs. If it’s anticipated that the total Project costs will exceed the amount that the County will fund, then it looks like this second sentence should be modified. Further, why should be Project’s scope be modified if the total Project costs exceed the $2,130,000 that the County will pay; couldn’t the Town come up with funding from another source so that the Project scope would not need to be modified? Also, in this second sentence, it’s not completely clear what is meant by the “estimated Not To Exceed Amount” and what is meant by “all County Commissioners Court approved, additional PROJECT costs.” 14. A new first sentence was added to paragraph 3 of Article IX that reads: TOWN agrees to encumber an amount adequate for total estimated PROJECT costs as determined prior to the commencement of each PROJECT milestone. Please review to determine if that is acceptable. 15. Paragraph 5 of Article IX states: The TOWN will be responsible for the TOWN share of MCIP eligible costs which are estimated to be Five Million Dollars and no cents ($5,000,000.00). If the total project costs should exceed this amount, the TOWN agrees to amend the project’s scope to remain within the current estimated not to exceed amount or be responsible for all additional project costs. Regarding the first sentence, it’s not clear if the Town’s share of the MCIP eligible costs $5,000,000, or if the MCIP eligible costs $5,000,000 and the Town’s share is some portion of that amount. The second sentence refers to the total Project costs exceeding that amount. If the Town’s share is $5,000,000 and the County is providing $2,130,000, won’t the total Project costs exceed the Town’s share (and so shouldn’t it state something like “If the total Project costs exceed the Town’s share and the County’s share”)? 16. Note the addition of paragraph 12 of Article X that concerns contingent funding: Contingent. This PSA is also expressly subject to and contingent upon executing a funding agreement with the Texas Department of Transportation who will be distributing the $2,937,600 in NCTCOG Sustainable Development funding awarded in June 2010 by the Regional Transportation Council. This does not state whether it is the County, the Town, or both, that will be executing that funding agreement. 17. Attachment A1, under “Specific R.O.W. Alignment Description,” includes language that authorizes the County to acquire property within the Town for the project. Is that language necessary? John