Do you want to work with Jonathan on this? I sent John Hill a bunch of questions. I think we need to sit down with Dallas County… Maybe I will just ask if we can do that. Do you have any time to help? -----Original Message----- From: Ext_mail John Hill Sent: Thursday, March 04, 2010 5:38 PM To: Nancy Cline Cc: Lea Dunn Subject: PSA - Dallas County ***************************************************************************** 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 please find a red-lined copy of the proposed agreement (PSA) with Dallas County. The document includes some comments using the comment function of Microsoft Word. Below are some additional comments and notes regarding the PSA. Some of them include a reference to the Master Agreement. We have on our system here a draft of a document entitled “Master Agreement Governing Transportation Major Capital Improvement Projects.” I don’t know if that is the final Master Agreement that the proposed PSA is referring to, but references to it below are to that draft (so may not be accurate). 1. Note that the Town is designated as the “Lead Agency.” That term is defined in the Master Agreement as “that entity responsible for project management, including, but not limited to planning, design, right-of-way acquisition, approved utility relocation or adjustment and construction.” 2. Article VI.1. states that the “Project limits” are “Spring Valley Road on the north and Brookhaven Community College on the south.” Is that accurate? 3. Note that the Article VI.2. states that the “Standard Basic Project Design” (a term defined in the Master Agreement) “specifically does not include paving and drainage amenities or utility betterments as defined in the Master Facilities Agreement.” “Utility Betterments” is defined in the Master Agreement as: UTILITY BETTERMENT shall mean any increase in the capacity of any UTILITY’S Facility adjusted or relocated as a part of the PROJECT as compared to the existing Facility, or any upgrading of the UTILITY’S Facility above the standard practices, devices or materials, specified by the UTILITY and customarily used by CITY or UTILITY on projects solely financed by CITY or UTILITY. Provided, however, that any upgrading necessary to successfully accomplish the PROJECT shall not be considered a Betterment, and further, that any increase in the capacity of the Utility Facility resulting solely from the replacement of devices or materials no longer regularly manufactured, processed or installed shall not be considered a Betterment, provided that such replacement shall be only to the standard devices or materials currently used on other projects financed solely by CITY or UTILITY . This meaning shall apply to utilities that are part of the project as well as the standard basic street components (See “STANDARD BASIC PROJECT DESIGN”). 4. Note that Article VI.3. provides for right-of-way acquisition as needed, which is the Town’s responsibility: The PROJECT may require the acquisition of right-of-way, which is specifically all real property needed or convenient for roadway and/or drainage purposes as shown in the PROJECT design or right-of-way plans and specifically includes all real property outside of the designed right-of-way needed, if applicable, or convenient to the construction, drainage, interface with adjoining streets or alleys, driveways or other access ways or other PROJECT permanent or temporary easements which is approved by TOWN and COUNTY. Such right-of-­way acquisition, if deemed necessary, shall be the responsibility of the TOWN as LEAD AGENCY, and shall be funded as part of PROJECT costs. 5. Note that Article VII.2. provides in part that the PSA reflects the Town’s “approval of the preferred alignment; proposed estimated budget and funding as shown in the CURRENT COST ESTIMATES AND FUNDING SOURCES, ATTACHMENT ‘B’, and commitment to meet PROJECT funding for each milestone.” 6. Note that Article VII.3. provides that if the Town requests to add relocation or adjustment of Town utilities or Utility Betterments, the Town will pay all of the costs of these additions: If the TOWN requests to add relocation or adjustment of TOWN UTILITIES or UTILITY BETTERMENTS, as defined in the MASTER AGREEMENT, TOWN covenants and agrees that it will pay 100% of the costs of these additions. 7. Note that Article VII.3. provides that if the Town requests to add relocation or adjustment of Town utilities or Utility Betterments, the Town will pay all of the costs of these additions: If the TOWN requests to add relocation or adjustment of TOWN UTILITIES or UTILITY BETTERMENTS, as defined in the MASTER AGREEMENT, TOWN covenants and agrees that it will pay 100% of the costs of these additions. 8. Note that Article VII.4. states that the PSA is conditioned on the Town providing “supplemental funding.” It’s not clear what “supplemental funding” means. 9. It appears that paragraphs 5 and 6 of Article VII should be combined, and they are shown as such in the attached red-lined draft. Please note that this allows the County to require that any of the “transportation infrastructure elements” funded by the County be included as optional items in the construction bidding. Note the time frame in this provision – that the Town will review the bids submitted and furnish a written rejection or acceptance of the bid within 10 days, and that if a bid is accepted, the Town agreed to “encumber an amount adequate, as determined by the COUNTY within thirty (30) days of notification by the COUNTY, for the total estimated project costs as indicated in ATTACHMENT ‘B’.” It doesn’t appear that the time period will be adequate for the Town to act, nor is it clear what the quoted phrase means. Also, if this refers to the Town setting aside funding adequate to cover the amount of the contract, why does it state that the amount is to be “determined by the County”? 10. Note that Article VII.7. requires that all Town records regarding expenditures for the project be retained for 4 years from the termination of the PSA. 11. Article IX.1. provides that the County and the Town “mutually agree to proportionately fund the DIRECT PROJECT and PROGRAM cost.” That is defined in the Master Agreement as follows: DIRECT PROJECT & PROGRAM COSTS shall mean those costs that can be identified specifically with a particular project or program cost objective. These costs generally include compensation of employees for the time devoted and identified specifically to the performance of the project or program, cost of materials acquired, consumed or expended specifically for the purpose of the project or program; equipment changes; damage claims and other approved capital expenditures; change orders; damage claims; travel expenses incurred specifically to carry out the project including, but not limited to, design, right-of-way, road or street drainage, utility relocation and adjustment and construction. Direct Cost does not include either CITY or COUNTY general overhead. 12. The first sentence of Article IX.4. states that: TOWN covenants and agrees that it has included PAVING and DRAINAGE AMENITIES, UTILITY BETTERMENTS as defined in the MASTER AGREEMENT, and relocation or adjustment of TOWN UTILITIES in the PROJECT. Is that accurate? 13. Article IX.5. provides that the Town is “responsible for all costs which are estimated not to exceed” $14,000,000. Is that number correct? Please let me know if you have any questions or comments or would like to discuss. John