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Item 4F MemoItem 4F Page 1 of 2 M E M O R A N D U M (October 15, 2019) To: Shana Yelverton, City Manager From: Rob Cohen, Director of Public Works Subject: Approve a no cost amendment to the original Local Project Advance Funding Agreement (LPAFA) with TxDOT for the reconstruction and widening of FM 1938 from a 2 lane road to a 4 lane divided roadway from FM 1709 to Randol Mill Avenue. Action Requested: Approve a no cost amendment to the original Local Project Advance Funding Agreement (LPAFA) with TxDOT for the reconstruction and widening of FM 1938 from a 2 lane road to a 4 lane divided roadway from FM 1709 to Randol Mill Avenue. Background Information: On July 7, 2014, the City of Southlake entered into a Local Project Advance Funding Agreement (LPAFA) with the Texas Department of Transportation (TxDOT) for the construction of the FM 1938 Phase 2 project. This project consists of the widening of FM 1938 (Davis Boulevard) from a 2 lane road to a 4 lane divided roadway from FM 1709 (Southlake Boulevard) to Randol Mill Avenue. The original agreement outlines the local government’s participation for the construction costs for Phase 2 in the amount of $2,260,290. The percentage of these construction cost responsibilities for the cities of Southlake and Keller is defined in a separate Interlocal Agreement as shown in the below table. Interlocal Agreement Participation City of Southlake share (78.03%) $ 1,763,704.28 City of Keller share (21.97%) $ 496,585.71 Total $ 2,260,290.00 NCTCOG has assisted with securing and allocating Federal funds to offset the majority of the significant increase in this project’s costs. TxDOT has also allocated additional funding since the original LPAFA was signed in 2014. Item 4F Page 2 of 2 Attachment C-1 of the revised LPAFA, Project Budget Estimate and Sources of Funds, identifies the following changes in federal and state funding for this project: • Construction Direct State Costs funding has changed to 100% State funding. • Construction cost for Federal fixed funding has increased from $18,595,920 to $20 million dollars. • State fixed funding has increased from $6,003,409 to $9,853,799 million dollars. • The State is now responsible for overruns 100%. Therefore, these changes do not affect the City’s contribution towards construction. Financial Considerations: The revised Local Project Advance Funding Agreement (LPAFA) with TxDOT is a no cost amendment and does not change the City’s funding share of the project. Strategic Link: This item links to the City’s Strategy Map strategic focus areas of Mobility and Partnerships & Volunteerism. It specifically relates to the City’s Corporate Objectives, B2: Collaborate with Select Partners to Implement Service Solutions, and F1: Adhere to Financial Management Principles & Budget. Citizen Input/ Board Review: None. Legal Review: The City Attorney has reviewed the agreement. Alternatives: The City Council may approve or deny the agreement. Staff Recommendation: Approve a no cost amendment to the original Local Project Advance Funding Agreement (LPAFA) with TxDOT for the reconstruction and widening of FM 1938 from a 2 lane road to a 4 lane divided roadway from FM 1709 to Randol Mill Avenue. Supporting Documents: Attachment A: Advance Funding Agreement Amendment #1 Attachment B: ILA with Keller for Construction Cost Sharing Staff Contact: Rob Cohen, Director of Public Works Kyle D. Hogue, P.E., Deputy Director/City Engineer CSJ #1978-01-050 District # 02-Fort Worth Code Chart 64 # 40050 Project: FM 1938 F e d e r a l H i g h w a y A d m i n i s t r a t i o n CFDA Title: Highway Planning and C o n s t r u c t i o n CFDA No.: 20.205 Not Research and Development AFA–AFA_Amend Page 1 of 8 Revised 03/23/16 STATE OF TEXAS § COUNTY OF TRAVIS § ADVANCE FUNDING AGREEMENT AMENDMENT # 1 THIS AMENDMENT is made by and between the State of Texas, acting through the Texas Department of Transportation, called the State, and City of Southlake, acting by and through its duly authorized officials, called the Local Government. W I T N E S S E T H WHEREAS, the State and the Local Government executed a contract on July 7th of 2014 to effectuate their agreement as reconstruction and widening of FM 1938 from a two lane road to a four lane divided roadway from FM 1709 to Randol Mill Road and FM 1938/FM1709 intersection improvements, approximately 1000’ in each direction; and, WHEREAS, it has become necessary to amend that contract; NOW THEREFORE, in consideration of the premises and of the mutual covenants and agreements of the parties, the State and the Local Government do agree as follows: A G R E E M E N T 1. Description of Amended Items Article 8, Compliance with Texas Accessibility Standards and ADA, language is deleted in its entirety and replaced with the following: Compliance with Accessibility Standards All parties to this Agreement shall ensure that the plans for and the construction of all projects subject to this Agreement are in compliance with standards issued or approved by the Texas Department of Licensing and Regulation (TDLR) as meeting or consistent with minimum accessibility requirements of the Americans with Disabilities Act (P.L. 101-336) (ADA). Article 12, Local Project Sources and Uses of Funds, language is deleted in its entirety and replaced with the following: A. A Project Budget Estimate is provided in Attachment C. The State and the Federal Government will not reimburse the Local Government for any work performed before the CSJ #1978-01-050 District # 02-Fort Worth Code Chart 64 # 40050 Project: FM 1938 F e d e r a l H i g h w a y A d m i n i s t r a t i o n CFDA Title: Highway Planning and C o n s t r u c t i o n CFDA No.: 20.205 Not Research and Development AFA–AFA_Amend Page 2 of 8 Revised 03/23/16 federal spending authority is formally obligated to the Project by the Federal Highway Administration. After federal funds have been obligated, the State will send to the Local Government a copy of the formal documentation showing the obligation of funds including federal award information. The Local Government is responsible for one hundred percent (100%) of the cost of any work performed under its direction or control before the Federal spending authority is formally obligated. B. If the Local Government will perform any work under this contract for which reimbursement will be provided by or through the State, the Local Government must complete training before federal spending authority is obligated. Training is complete when at least one individual who is working actively and directly on the Project successfully completes and receives a certificate for the course entitled Local Government Project Procedures and Qualification for the Texas Department of Transportation. The Local Government shall provide the certificate of qualification to the State. The individual who receives the training certificate may be an employee of the Local Government or an employee of a firm that has been contracted by the Local Government to perform oversight of the Project. The State in its discretion may deny reimbursement if the Local Government has not designated a qualified individual to oversee the Project. C. A Source of Funds estimate based on the Transportation Improvement Program (TIP) is also provided in Attachment C. Attachment C shows the percentage and estimated dollar amount to be contributed to the project by federal, state, and local sources. The parties agree that the LPAFA may be amended from time to time as required to meet the funding commitments based on revisions to the TIP, Federal Project Authorization and Agreement (FPAA), or other federal document. D. The Local Government is responsible for all non-federal and non-state funding, unless otherwise provided for in this agreement or through amendment of this agreement. Where Special Approval has been granted by the State, the Local Government shall only in that instance be responsible for overruns in excess of the amount to be paid by the Local Government. E. Prior to the performance of any engineering review work by the State, the Local Government will pay to the State the amount specified in Attachment C. At a minimum, this amount shall equal the Local Government's funding share for the estimated cost of preliminary engineering for the project. At least sixty (60) days prior to the date set for receipt of the construction bids, the Local Government shall remit its remaining financial share for the State’s estimated construction oversight and construction costs. F. Whenever funds are paid by the Local Government to the State under this Agreement, the Local Government shall remit a check or warrant made payable to the "Texas Department of Transportation." The check or warrant shall be deposited by the State and managed by the State. Funds may only be applied by the State to the Project. If after final Project accounting any excess funds remain, those funds may be applied by the State to the Local Government's contractual obligations to the State under another advance funding agreement with approval by appropriate personnel of the Local Government. G. If any existing or future local ordinances, commissioners court orders, rules, policies, or other directives, including but not limited to outdoor advertising billboards and storm water drainage facility requirements, are more restrictive than State or Federal Regulations, or if any other CSJ #1978-01-050 District # 02-Fort Worth Code Chart 64 # 40050 Project: FM 1938 F e d e r a l H i g h w a y A d m i n i s t r a t i o n CFDA Title: Highway Planning and C o n s t r u c t i o n CFDA No.: 20.205 Not Research and Development AFA–AFA_Amend Page 3 of 8 Revised 03/23/16 locally proposed changes, including but not limited to plats or replats, result in increased costs, then any increased costs associated with the ordinances or changes will be paid by the Local Government. The cost of providing right of way acquired by the State shall mean the total expenses in acquiring the property interests either through negotiations or eminent domain proceedings, including but not limited to expenses related to relocation, removal, and adjustment of eligible utilities. H. When Special Approval has been granted by the State so that the Local Government bears the responsibility for paying cost overruns, the Local Government shall make payment to the State within thirty (30) days from receipt of the State’s written notification of those amounts. I. The state auditor may conduct an audit or investigation of any entity receiving funds from the State directly under this contract or indirectly through a subcontract under this contract. Acceptance of funds directly under this contract or indirectly through a subcontract under this contract acts as acceptance of the authority of the state auditor, under the direction of the legislative audit committee, to conduct an audit or investigation in connection with those funds. Any entity that is the subject of an audit or investigation must provide the state auditor with access to any information the state auditor considers relevant to the investigation or audit. J. Payment under this contract beyond the end of the current fiscal biennium is subject to availability of appropriated funds. If funds are not appropriated, this contract shall be terminated immediately with no liability to either party. K. The Local Government is authorized to submit requests for reimbursement by submitting the original of an itemized invoice in a form and containing all items required by the State no more frequently than monthly and no later than ninety (90) days after costs are incurred. If the Local Government submits invoices more than ninety (90) days after the costs are incurred, and if federal funding is reduced as a result, the State shall have no responsibility to reimburse the Local Government for those costs. Article 16, Debarment Certification, language is deleted in its entirety and replaced with the following: The parties are prohibited from making any award at any tier to any party that is debarred or suspended or otherwise excluded from or ineligible for participation in Federal Assistance Programs under Executive Order 12549, “Debarment and Suspension.” By executing this Agreement, the Local Government certifies that it and its principals are not currently debarred, suspended, or otherwise excluded from or ineligible for participation in Federal Assistance Programs under Executive Order 12549 and further certifies that it will not do business with any party, to include principals, that is currently debarred, suspended, or otherwise excluded from or ineligible for participation in Federal Assistance Programs under Executive Order 12549. The parties to this contract shall require any party to a subcontract or purchase order awarded under this contract to certify its eligibility to receive federal funds and, when requested by the State, to furnish a copy of the certification. Article 17, Cost Principles and Office of Management and Budget (OMB) Audit Requirements, language is deleted is in its entirety and replaced with the following: CSJ #1978-01-050 District # 02-Fort Worth Code Chart 64 # 40050 Project: FM 1938 F e d e r a l H i g h w a y A d m i n i s t r a t i o n CFDA Title: Highway Planning and C o n s t r u c t i o n CFDA No.: 20.205 Not Research and Development AFA–AFA_Amend Page 4 of 8 Revised 03/23/16 In order to be reimbursed with federal funds, the parties shall comply with the Cost Principles established in 2 CFR 200 that specify that all reimbursed costs are allowable, reasonable, and allocable to the Project. Article 19, Civil Rights Compliance, language is deleted in its entirety and replaced with the following: A. Compliance with Regulations: The Local Government will comply with the Acts and the Regulations relative to Nondiscrimination in Federally-assisted programs of the U.S. Department of Transportation (USDOT), the Federal Highway Administration (FHWA), as they may be amended from time to time, which are herein incorporated by reference and made part of this agreement. B. Nondiscrimination: The Local Government, with regard to the work performed by it during the contract, will not discriminate on the grounds of race, color, or national origin in the selection and retention of subcontractors, including procurement of materials and leases of equipment. The Local Government will not participate directly or indirectly in the discrimination prohibited by the Acts and the Regulations, including employment practices when the contract covers any activity, project, or program set forth in Appendix B of 49 CFR Part 21. C. Solicitations for Subcontracts, Including Procurement of Materials and Equipment: In all solicitations either by competitive bidding or negotiation made by the Local Government for work to be performed under a subcontract, including procurement of materials or leases of equipment, each potential subcontractor or supplier will be notified by the Local Government of the Local Government’s obligations under this contract and the Acts and Regulations relative to Nondiscrimination on the grounds of race, color, or national origin. D. Information and Reports: The Local Government will provide all information and reports required by the Acts, the Regulations, and directives issued pursuant thereto, and will permit access to its books, records, accounts, other sources of information, and facilities as may be determined by the State or the FHWA to be pertinent to ascertain compliance with such Acts, Regulations or directives. Where any information required of the Local Government is in the exclusive possession of another who fails or refuses to furnish this information, the Local Government will so certify to the State or the Federal Highway Administration, as appropriate, and will set forth what efforts it has made to obtain the information. E. Sanctions for Noncompliance: In the event of the Local Government's noncompliance with the Nondiscrimination provisions of this contract, the State will impose such contract sanctions as it or the FHWA may determine to be appropriate, including, but not limited to: a. withholding of payments to the Local Government under the contract until the Local Government complies and/or b. cancelling, terminating, or suspending of the contract, in whole or in part. F. Incorporation of Provisions: The Local Government will include the provisions of paragraphs (A) through (F) in every subcontract, including procurement of materials and leases of equipment, unless exempt by the Acts, the Regulations and directives issued pursuant thereto. The Local Government will take such action with respect to any subcontract or procurement as the State or the FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, that if the Local Government becomes involved in, or is CSJ #1978-01-050 District # 02-Fort Worth Code Chart 64 # 40050 Project: FM 1938 F e d e r a l H i g h w a y A d m i n i s t r a t i o n CFDA Title: Highway Planning and C o n s t r u c t i o n CFDA No.: 20.205 Not Research and Development AFA–AFA_Amend Page 5 of 8 Revised 03/23/16 threatened with, litigation with a subcontractor or supplier because of such direction, the Local Government may request the State to enter into such litigation to protect the interests of the State. In addition, the Local Government may request the United States to enter into such litigation to protect the interests of the United States. Article 21, Federal Funding Accountability and Transparency Act Requirements, language is deleted in its entirety and replaced with the following: A. Any recipient of funds under this Agreement agrees to comply with the Federal Funding Accountability and Transparency Act (FFATA) and implementing regulations at 2 CFR Part 170, including Appendix A. This agreement is subject to the following award terms: http://www.gpo.gov/fdsys/pkg/FR-2010-09-14/pdf/2010-22705.pdf and http://www.gpo.gov/fdsys/pkg/FR-2010-09-14/pdf/2010-22706.pdf B. The Local Government agrees that it shall: 1. Obtain and provide to the State a System for Award Management (SAM) number (Federal Acquisition Regulation, Part 4, Sub-part 4.11) if this award provides more than $25,000 in Federal funding. The SAM number may be obtained by visiting the SAM website whose address is: https://www.sam.gov/portal/public/SAM/ 2. Obtain and provide to the State a Data Universal Numbering System (DUNS) number, a unique nine-character number that allows the Federal government to track the distribution of federal money. The DUNS number may be requested free of charge for all businesses and entities required to do so by visiting the Dun & Bradstreet (D&B) on-line registration website http://fedgov.dnb.com/webform; and 3. Report the total compensation and names of its top five (5) executives to the State if: i. More than 80% of annual gross revenues are from the Federal government, and those revenues are greater than $25,000,000; and ii. The compensation information is not already available through reporting to the U.S. Securities and Exchange Commission Article 22, Single Audit Report, language is deleted in its entirety and replaced with the following: A. The parties shall comply with the requirements of the Single Audit Act of 1984, P.L. 98-502, ensuring that the single audit report includes the coverage stipulated in 2 CFR 200. B. If threshold expenditures of $750,000 or more are met during the fiscal year, the Local Government must submit a Single Audit Report and Management Letter (if applicable) to TxDOT's Compliance Division, 125 East 11th Street, Austin, TX 78701 or contact TxDOT’s Compliance Division at singleaudits@txdot.gov. C. If expenditures are less than the threshold during the Local Government's fiscal year, the Local Government must submit a statement to TxDOT's Compliance Division as follows: "We did not meet the $______ expenditure threshold and therefore, are not required to have a single audit performed for FY ______." CSJ #1978-01-050 District # 02-Fort Worth Code Chart 64 # 40050 Project: FM 1938 F e d e r a l H i g h w a y A d m i n i s t r a t i o n CFDA Title: Highway Planning and C o n s t r u c t i o n CFDA No.: 20.205 Not Research and Development AFA–AFA_Amend Page 6 of 8 Revised 03/23/16 D. For each year the project remains open for federal funding expenditures, the Local Government will be responsible for filing a report or statement as described above. The required annual filing shall extend throughout the life of the agreement, unless otherwise amended or the project has been formally closed out and no charges have been incurred within the current fiscal year. Article 23, Pertinent Non-Discrimination Authorities, is added with the following: During the performance of this contract, the Local Government, for itself, its assignees, and successors in interest agree to comply with the following nondiscrimination statutes and authorities; including but not limited to: A. Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), (prohibits discrimination on the basis of race, color, national origin); and 49 CFR Part 21. B. The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal-aid programs and projects). C. Federal-Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), as amended, (prohibits discrimination on the basis of sex). D. Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.) as amended, (prohibits discrimination on the basis of disability); and 49 CFR Part 27. E. The Age Discrimination Act of 1975, as amended, (49 U.S.C. § 6101 et seq.), (prohibits discrimination on the basis of age). F. Airport and Airway Improvement Act of 1982, (49 U.S.C. Chapter 471, Section 47123), as amended, (prohibits discrimination based on race, creed, color, national origin, or sex). G. The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms “programs or activities” to include all of the programs or activities of the Federal-aid recipients, subrecipients and contractors, whether such programs or activities are Federally funded or not). H. Titles II and III of the Americans with Disabilities Act, which prohibits discrimination on the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. §§ 12131-12189) as implemented by Department of Transportation regulations at 49 C.F.R. parts 37 and 38. I. The Federal Aviation Administration’s Nondiscrimination statute (49 U.S.C. § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex). J. Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, which ensures nondiscrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations. K. Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of limited English proficiency (LEP). To ensure compliance with Title CSJ #1978-01-050 District # 02-Fort Worth Code Chart 64 # 40050 Project: FM 1938 F e d e r a l H i g h w a y A d m i n i s t r a t i o n CFDA Title: Highway Planning and C o n s t r u c t i o n CFDA No.: 20.205 Not Research and Development AFA–AFA_Amend Page 7 of 8 Revised 03/23/16 VI, the parties must take reasonable steps to ensure that LEP persons have meaningful access to the programs (70 Fed. Reg. at 74087 to 74100). L. Title IX of the Education Amendments of 1972, as amended, which prohibits the parties from discriminating because of sex in education programs or activities (20 U.S.C. 1681 et seq.). Attachment A, Resolution or Ordinance, is deleted in its entirety and replaced with Attachment A-1, Resolution or Ordinance, which is attached to this amendment. Attachment C, Project Budget Estimate and Source of Funds, is deleted in its entirety, and replaced with Attachment C-1, Project Budget, which is attached to this amendment. Construction Direct State Costs funding has changed to 100% State funding. Construction cost for federal fixed funds have increased to $20,000,000.00 and State fixed funds have increased to $4,600,000.00. The State is responsible for overruns. All other provisions of the original contract are unchanged and remain in full force and effect. 2. Signatory Warranty Each signatory warrants that the signatory has necessary authority to execute this agreement on behalf of the entity represented. CSJ #1978-01-050 District # 02-Fort Worth Code Chart 64 # 40050 Project: FM 1938 F e d e r a l H i g h w a y A d m i n i s t r a t i o n CFDA Title: Highway Planning and C o n s t r u c t i o n CFDA No.: 20.205 Not Research and Development AFA–AFA_Amend Page 8 of 8 Revised 03/23/16 THIS AGREEMENT IS EXECUTED by the State and the Local Government in duplicate. THE LOCAL GOVERNMENT _________________________________ Signature _________________________________ Typed or Printed Name _________________________________ Title _________________________________ Date THE STATE OF TEXAS _________________________________ Kenneth Stewart Director of Contract Services Texas Department of Transportation _________________________________ Date CSJ #1978-01-050 District # 02-Fort Worth Code Chart 64 # 40050 Project: FM 1938 Federal Highway Administration CFDA Title: Highway Planning and C o n s t r u c t i o n CFDA No.: 20.205 Not Research and Development AFA-LPAFA_ShortGen.doc Page 1 of 1 Attachment A-1 ATTACHMENT A-1 RESOLUTION OR ORDINANCE (SEE ATTACHMENTS) CSJ #1978-01-050 District # 02-Fort Worth Code Chart 64 # 40050 Project: FM 1938 Federal Highway Administration CFDA Title: Highway Planning and C o n s t r u c t i o n CFDA No.: 20.205 Not Research and Development AFA-LPAFA_ShortGen.doc Page 1 of 1 Attachment C-1 ATTACHMENT C-1 PROJECT BUDGET ESTIMATE AND SOURCE OF FUNDS Costs will be allocated based on applicable Federal funding and a fixed amount of Local Government funding until Local Government funding reaches the maximum obligated amount. The State will then be responsible for 100% of the costs. Work Performed by the Local Government Description Total Est. Cost Federal Funding Payments by State Local Participation Cost Cost Cost Right of Way $3,500,000 $0 $0 $3,500,000 Engineering $1,500,000 $0 $0 $1,500,000 Work Performed by the State Description Total Est. Cost Federal Funding State Participation Payments by Local Gov’t Cost Cost Cost Construction (Federal funds) $25,000,000 $20,000,000 $4,600,000 $400,000 Construction (Local funds) $1,860,290 $0 $0 $1,860,290 State Costs for Review, Inspection, and Oversight of Work Performed by the Local Government Description Total Est. Cost Federal Funding State Participation Payments by Local Gov’t Cost Cost Cost Environmental Direct State Costs $37,499 $0 $0 $37,499 Right of Way Direct State Costs $1 $0 $0 $1 Engineering Direct State Costs $37,499 $0 $0 $37,499 Utility Direct State Costs $1 $0 $0 $1 Construction Direct State Costs $3,350,504 $0 $3,350,504 $0 Indirect State Costs $1,903,295 $0 $1,903,295 $0 TOTAL $37,189,089 $20,000,000 $9,853,799 $7,335,290 Initial payment made by the Local Government to the State: $2,335,290.00 Payment to be made by the Local Government at the time of Amendment execution: $0.00 Total payment by the Local Government to the State $2,335,290.00 The total amount of Local Government participation shall not exceed the amount appearing above.