20061617 Ver 1_DOT Comments_20060125

STATE OF NORTH CAROLINA
DEPARTMENT OF TRANSPORTATION
MICHAEL F. EASLEY
GOVERNOR
January 25, 2006
Mr. Dean Hatfield
The Louis Berger Group
1513 Walnut Street, Suite 250
Cary, NC 27511
Dear Dean:
LYNDo TIPPETT
SECRETARY
Attached is a fully executed copy of the agreement between the Department of
Transportation and Wendell Falls Development for the construction of a bridge
and interchange at Eagle Rock Road and US 64 Bypass in Wake County.
The developer shall be responsible for all aspects of this project. Work will be to
state standards and specifications and subject to departmental approval and
inspection. The Department has no financial obligations under the terms of this
agreement.
Roadway Design Engineer Chris Haire has scheduled a scoping meeting on
February 8 for the DOT's various branches and units and your staff to review the
project. This will be an opportunity for everyone to discuss the major project
phases and process for review/approval as the project progresses.
Please provide the original to Mercury Development. A copy is provided for your
files. Let me know if you have any questions at this time.
Sincerely,
Sandy ce
Attachment
cc: Deborah Barbour, Director, Preconstruction
Jon Nance, Division Engineer
Calvin Leggett, Program Development
MAILING ADDRESS: TELEPHONE: [phone] LOCATION:
NC DEPARTMENT OF TRANSPORTATION FAX: [phone] TRANSPORTATION BUILDING
STATE HIGHWAY ADMINISTRATOR 1 SOUTH WILMINGTON STREET
1536 WIL SERVICE CENTER WEBSITE: WWW.DOH.DOT.STATE.NC.US RALEIGH NC
RALEIGH NC 27699-1536

WAKE COUNTY
WENDELL FALLS DEVELOPMENT, LLC
PROJECT:
NORTH CAROLINA DEPARTMENT OF
TRANSPORTATION
THIS AGREEMENT, made and entered into this the ANf '200
between the DEPARTMENT OF TRANSPORTATION, an agency of the tate of
North Carolina, hereinafter referred to as the "Department", and WENDELL
FALLS DEVELOPMENT, LLC, hereinafter referred to as the "Developer";
WITNESSETH:
WHEREAS, the Developer has proposed to construct a bridge and interchange at
mile marker 427 on US 64/264 in Wake County, North Carolina hereinafter
referred to as the "Project'; and
WHEREAS, the Developer will commit to the design and engineering of the
Project under the terms and conditions herein for the purposes of analyzing the
cost effectiveness of the project as it related to the Developer's development
adjacent to the Project to the east; and
WHEREAS, the Developer will proceed with construction of the Project under the
following terms and conditions after a full review of the completed plans and
specifications of the project and a review of the estimated cost and benefits to the
Developer.
NOW, THEREFORE, the parties hereto, each in consideration of the promises and
undertakings of the other as herein provided, do hereby covenant and agree, each
with the other as follows:
1. The Project shall consist of the following:
(A) A grade -separated interchange with Knightdale Eagle Rock Road (SR -2501)
and the proposed Wendell Falls Parkway and US 64 Bypass. The ramps, loops
and Y -line for the proposed interchange will be confined by the existing right-of-
way that has been previously acquired by the Department. The Y -line roadway
cross section within the control of access will be determined during the scoping
process for the Project and determined by a department approved Traffic Impact

Analysis provided by the Developer (design should be based on twenty year traffic
projections after construction). Preliminary design was part of the R -2547C TIP
Project drawings and is illustrated on Exhibit A. The interchange concept was
originally proposed as part of the recently completed US 64 Knightdale Bypass
Design Build Project. The final construction documents will convert the
interchange design concept in SI Units (Metric) to English Units
(B) The Developer shall be responsible for the construction of the roadways
connecting the interchange ramps to existing state owned roadways. Upon
completion the Project will be taken onto the state highway system for
maintenance. The Department shall review and approve the design and
construction of the Project. The Project shall be. constructed to state standards for
highway construction. Every effort will be made to construct the west side of the
Project within the existing right of way.
(C) All intersections except the Y -line within the Project shall be at -grade
intersections.
(D) The Department shall have sole authority to approve driveway connections
and median crossovers and intersections onto state maintained roadways.
(E) The right of way shall include all temporary and permanent construction and
drainage easements needed for construction of the Project. The width and location
of the roadway, structure, right of way, and construction and drainage easements
shall be determined during the planning and design phases of the Project.
2. All work will be in accordance with the approved Project plans and
specifications and state standards for highway construction. All work associated
with the Project will be done at no expense to the Department and paid for 100%
by the Developer.
3. The Developer shall be responsible for the preparation of all necessary planning
and environmental documents and shall obtain any environmental permits needed
for construction of the Project. All documents are subject to reasonable review
and approval by the Department and shall be prepared in accordance with the
Department's standards and regulations. For purposes of this Agreement, the
words or "reasonably" shall mean a standard applying normal policy and
procedures without undue delay and determined at the discretion of the
Department. The Developer shall provide the Department with a copy of any
engineering contracts prior to award of the contracts to allow the Department to
reasonably ensure the scope of work is adequate.. The Developer shall be
permitted to withhold the pricing terms of such contracts. Upon completion of the
final environmental and planning documents, the Developer shall provide the
Department copies of the documents as needed for its records. In the event a
public hearing and/or meeting is needed, the Developer shall prepare any maps
and materials reasonably needed and conduct a public hearing and/or meeting.
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Any amendments or changes to the planning document and/or permits associated
with the construction of the Project shall be the responsibility of the Developer.
4. The Developer shall be responsible for the design and preparation of all plans
and specifications needed to construct the Project. All contracts and work shall be
in accordance with the Department's policies and procedures and are subject to the
Department's reasonable review and approval.
5. Any utility relocation required for the construction of the Project, if constructed,
shall be the responsibility of the Developer and shall be done at no cost to the
Department. Any encroachment agreement for utilities within the right of way
shall be on the Department's forms, and in accordance with Department
regulations. If constructed, all utilities required to be relocated shall be removed
prior to construction unless said relocation work is included in the contract
specifications. The Developer may include the installation of new utilities in the
construction contract with all costs associated with said installation being 100%
the responsibility of the Developer. All additional work is subject to the review
and approval of the Department and the necessary encroachment agreements will
be obtained. If constructed, additional utility work shall be shown in the
construction contract and specifications as a separate bid item with the possibility
of deletion prior to award of the contract.
6. It is anticipated construction of the interchange and ramps will be within the
right of way limits previously acquired by the Department as part of Project
R-2547. The Developer shall make a "best faith" effort to acquire any additional
right of way that may be needed on the west side of the interchange. In the event
the Developer cannot acquire the necessary right of way to connect the ramps to
the existing state roadway, the Department, at its discretion, may acquire the
necessary right of way subject to 100% reimbursement of all costs by the
Developer. Encroachment agreements and construction easements in and along
the Project, within the right of way of US 64/ (the "Expressway"), and other
Department rights-of-ways on the Developer's properties will be provided by the
Department at no cost to the Developer. Encroachments will be pursuant to the
Department's standard form encroachment agreement and pursuant to Department
regulations for any existing encroachments or construction easements.
7. If constructed, the Developer shall enter into and shall administer the
construction contract for said Project and the procedures set out herein below shall
be followed:
(A) The construction engineering and supervision will be furnished by the
Developer.
(B) The Department's Division Engineer for the Fifth Division, at his discretion,
may assign a resident engineer to the Project who shall have the right to inspect
any portion of the work being performed by the Developer or the Developer's
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contractor to ensure compliance with the provisions of this Agreement. The
resident engineer will be the Department's representative on the Project.
(C) During construction of the Project, if any changes in the plans or work are
necessary, such changes must be approved by the Fifth Division Engineer prior to
the work being performed.
(D) The Department's Fifth Division Engineer shall have the right to inspect,
sample or test, and approve or reject any portion of the Project during
construction.
(E) The Developer shall be responsible for all sampling and testing required
however, upon written request from the Developer, the Department will consider
pre -testing items that are included in the Department's established statewide
program.
(F) The Developer shall sample and test all materials in reasonable close
conformity with the Departments Guide for Process Control and Acceptance
Sampling and Testing.
(G) All materials incorporated into the Project and- workmanship performed by the
contractor shall be in reasonable close conformity with the Standards and
Specifications of the Department.
(H) Upon completion of the Project, the Department's Fifth Division Engineer
shall be furnished with copies of all test reports and certification that all materials
and construction were in reasonable close conformity with the Standards and
Specifications of the Department.
(I) upon completion of the Project, the Developer will furnish the Fifth Division
Engineer with two (2) complete sets of As -Built plans.
(J) The Division Engineer will be responsible for final acceptance of the
completed work on behalf of the Department.
(K) The Developer will be responsible for ensuring that the contractor complies
with the terms of the contract and any instructions issued by the Division Engineer
as a result of any review or inspection made by said Division Engineer.
(L) During construction of the Project, the Developer shall provide and maintain
adequate barricades, signs, signal lights, flag men, and other warning devices for
the protection of traffic in conformation with the 2004 Edition of the North
Carolina Supplement to the Manual on Uniform Traffic Control Devices for
Streets and Highways published by the Federal Highway Administration.
(M) All construction work shall be in accordance with Department policies and
procedures for highway construction. Driveway permits will be reviewed and
approved by the Department according to standard policies and procedures. ,
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8. If constructed, the Department shall reasonably approve necessary or desirable
changes to the plans and specifications as construction progresses. The Developer
may propose change orders or request modifications to any change orders as long
as the modifications are in compliance with the applicable Department guidelines
and acceptable to the Department.
9. The Project plans shall include design and specifications for the installation of
all traffic control devices needed upon completion of the Project, such plans and
designs to be provided by the Developer and approved by the Department.
10. If constructed, the Developer shall be responsible for all costs associated with
the Project. The Developer's estimated construction cost is $9,000,000.
If constructed, the Developer shall submit to the Department a bond, cash, letter of
credit or other financial mechanism reasonably acceptable to the Department as
collateral for the costs of the Project. The collateral must be in a format and from
a financial institution acceptable to the Department. These funds shall be used by
the Department to complete the Project in the event the Developer defaults on the
obligations set out in this Agreement. Collateral shall be due within thirty (30)
days of written notification by the Department, but in no event no later than the
date immediately prior to the date on which the Developer advertises for
construction of the Project. The collateral will be reduced as the Project
progresses through the -various stages. Notwithstanding any provision of this
Agreement or the collateral documents to the contrary, the Department shall have
no rights to enforce any remedies against such collateral until twenty (20) days
after written notice to the Developer that a default of the Developer's obligations
under this Agreement has occurred, (unless there is a danger or threat to the safety
of the public), that a default of the Developer's obligations under this Agreement.
The Developer shall be permitted to cure any such default within a time period
acceptable to the Department.
11. The Project shall remain an active, ongoing Project with each phase (planning,
design, and construction) proceeding in a timely manner. The parties hereto expect
that the design, engineering, and construction of the Project shall be completed in
calendar year 2009.
If the Developer fails to complete the Project within five (5) years from the date of
this Agreement, the Department shall no longer be obligated under the terms of
this Agreement; provided, however; in the event of material shortages,
governmental moratoria, strikes, lock -outs, riots, national emergency, acts of God
other natural disasters or other similar causes not within the Developer's control,
the Developer shall have additional time, the duration of which shall equal the
duration of such events.
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12. If constructed, upon completion of the Project, and final inspection and
approval by the Department, the Project will be taken onto the State Highway
System and shall be maintained and controlled by the Department.
13. Prior to June 30, 2006, the Developer shall provide documentation of the local
municipal planning organization (MPO) approval of the proposed alignment of the
roadway segment of the Project.
14. The Developer agrees to indemnify and hold harmless the Department, to the
extent allowed by law, for any third party claims for payment or damages, of any
nature, asserted against the Department in connection with any aspect of the
Project. Furthermore, the Developer shall be responsible for ensuring compliance
with state and local environmental laws and regulations and ordinances and shall
indemnify the Department against any fines, assessments or other penalties
resulting from noncompliance by any entity performing work under contract with
the Developer.
15. This Agreement may not be amended except in writing executed by all parties.
16. This Agreement shall be binding upon the Developer, its successors and
assigns. The Developer may not assign its interest in his Agreement without the
written consent of the Department, which consent shall not be withheld by the
Department provided the Department is reasonably satisfied with the development
expertise and financial condition of the assignee and upon such consent, the
Developer shall be released from any obligations hereunder. The Department
shall provide written assurances of the validity and enforceability of its obligations
under this Agreement to any such successors and assigns of the Developer upon
reasonable request therefore. The Developer shall provide to the Department
written assurances of the validity and'enforceability of this Agreement prior to
assignment.
17. If any provision herein contained which by its nature and effect is required to
be observed kept or performed after the construction of the Project, it shall
survive.
18. This Agreement may be executed in multiple counterparts, each of which shall
be deemed to be an original, and all of which shall constitute one and the same
instrument.
0

IN WITNESS WHEREOF, this Agreement has been executed, in duplicate, the
day and year heretofore set out, on the part of the Department and the Developer
by authority duly given.
WENDELL FALLS DEVELOPMENT, LLC
TITLE:NASE
STATE HIGHWAY ADMINISTRATOR
7
WITNESS:
I
APPROVED AS TO FORM:
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SPE I L EPUTY
ATTO Y GENERAL