Item 4CCITY OF
SOUTHLAKE
MEMORANDUM
(January 4, 2011)
To: Shana Yelverton, City Manager
From: Robert H. Price, P.E., Director of Public Works
Subject: Resolution 10-059, Approve Advance Funding Agreement for a
Transportation Enhancement Project for FM 1709 Sidewalks
Action
Requested: Resolution No. 10-059, Approve Advance Funding Agreement for a
Transportation Enhancement Project for FM 1709 Sidewalks.
Background
Information: The Advance Funding Agreement with TxDOT establishes the
basis for City participation in the Statewide Transportation
Enhancement Program (STEP) for the construction of the FM1709
sidewalks using federal funds. These transportation improvements
will be implemented for public purposes to meet the challenges of
protecting and enhancing communities and the natural environment
and advancing the nation's economic growth and competitiveness.
The STEP is a matching grant that was awarded to the City of
Southlake for the construction of the FM1709 Sidewalk project in
the amount of $1,732,938. The City is responsible for the
engineering design cost of preparing construction plans in TxDOT
format for construction by TxDOT. The City is also responsible for
the 20% match for construction of the sidewalks and the State
Direct Cost for review and management of the project.
Local Participation
Southlake's 20% match $433,234.00
TxDOT Admin Costs (City Funded) $56,508.00
Total $500,234.00
Financial
Considerations: Funding for Southlake's and TxDOT administrative costs is
available in the FY 2009 and FY 2010 General Fund CIP.
Strategic Link: The FM1709 Sidewalk Project links to the City's strategy map
relative to the focus areas of Mobility, Infrastructure, and Quality
Development. The specific corporate objectives that are met by
this construction project include: Providing travel convenience
within city and region, investing to provide and maintain high quality
public assets, and providing high quality customer service.
Citizen Input/
Board Review: N/A
Legal Review: N/A
Alternatives: The City Council may approve or deny the adoption of this
resolution.
Supporting
Documents: Resolution 10-059
Advance Funding Agreement
Location Map
Staff
Contact: Robert H. Price, P.E., Public Works Director
Gordon J. Mayer, Jr., P.E., City Engineer
Cheryl Taylor, P.E., Civil Engineer
RESOLUTION NO. 10-059
A RESOLUTION APPROVING THE ADVANCE
FUNDING AGREEMENT FOR A TRANSPORTATION
ENHANCEMENT PROJECT FOR THE FM1709
SIDEWALKS WITH THE STATE OF TEXAS AND
AUTHORIZING THE MAYOR TO EXECUTE SAME.
WHEREAS, the City of Southlake considers sidewalks and pedestrian
accessibility to be of significant importance to the community; and
WHEREAS, the City of Southlake applied to the Texas Department of
Transportation for Statewide Transportation Enhancement Program funding for
sidewalks along FM 1709 from Pearson Road to SH 114; and
WHEREAS, the Texas Transportation Commission passed Minute Order
112342 to approve federal funding in the amount of $1,732,938.00 for a
Statewide Transportation Enhancement Program project to complete sidewalks
along FM 1709 from Pearson Road to SH 114; and
WHEREAS, the Texas Department of Transportation prepared an
Advanced Funding Agreement for the Statewide Transportation Enhancement
Program project for sidewalks along FM 1709 from Pearson Road to SH 114;
and
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF SOUTHLAKE, TEXAS THAT:
SECTION 1
THAT the Advance Funding Agreement with the State of Texas, acting through
the Texas Department of Transportation, is hereby approved and accepted by
the City of Southlake; and
SECTION 2
This resolution shall take effect upon its passage and approval.
2011.
PASSED AND APPROVED THIS DAY OF ,
ATTEST:
Lori Payne, TRMC
City Secretary
John Terrell, Mayor
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District 9 02-Fort Worth
Code Chart 64 415000
Project: FM 1709
CFDA 4 20.205
Contract 4 OXXF6022
STATE OF TEXAS §
COUNTY OF TRAVIS §
ADVANCE FUNDING AGREEMENT
For A TRANSPORTATION ENHANCEMENT (TE) PROJECT
This Advance Funding Agreement for a transportation enhancement project (the Agreement)
is made by and between the State of Texas, acting by and through the Texas Department of
Transportation, hereinafter called the "State", and the City of Southlake, acting by and through its duly
authorized officials hereinafter called the "Local Government."
WITNESSETH
WHEREAS, the Local Government prepared and submitted to the State a nomination form for
consideration under the Statewide Transportation Enhancement Program for the project which is
briefly described as Southlake F.M. 1709 Sidewalks, hereinafter called the Project; and
WHEREAS, federal law establishes federally funded programs for transportation improvements to
implement its public purposes; and
WHEREAS, Title 23 U.S.C. Section 134 requires that Metropolitan Planning Organizations and the
States' Transportation Agencies to develop transportation plans and programs for urbanized areas of
the State; and
WHEREAS, the Texas Transportation Code, Sections 201.103 and 222.052 establish that the State
shall design, construct and operate a system of highways in cooperation with local governments; and
WHEREAS, federal and state laws require local governments to meet certain contract standards
relating to the management and administration of State and federal funds; and
WHEREAS, the Texas Transportation Commission passed Minute Order 112342 awarding funding
for projects in the 2009 Program Call of the Statewide Transportation Enhancement Program,
including the Project; and
WHEREAS, the rules and procedures for the selection and administration of the Statewide
Transportation Enhancement Program are established in 43 TAC Sections 11.200 et seq.; and
WHEREAS, the governing body of the Local Government has approved entering into this Agreement
by resolution or ordinance dated which is attached hereto and made a part hereof
as Attachment A;
NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements
of the parties hereto, to be by them respectively kept and performed as hereinafter set forth, it is
agreed as follows:
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Contract 4 OXXF6022
AGREEMENT
1. Period of the Agreement
This Agreement becomes effective when signed by the last party whose signing makes the
Agreement fully executed. This Agreement shall remain in effect until terminated as provided in
Article 2.
2. Termination of this Agreement
This agreement may be terminated by any of the following conditions:
• by mutual written consent and agreement of all parties.
• by any party with 90 days written notice.
• by either party, upon the failure of the other party to fulfill the obligations as set forth in this
Agreement. Any cost incurred due to such breach of contract shall be paid by the breaching
party.
A. The termination of this Agreement shall extinguish all rights, duties, obligations and liabilities of
the State under this Agreement. If the potential termination of the Agreement is due to the
failure of the Local Government to fulfill its contractual obligations, the State will notify the
Local Government that possible breach of contract has occurred. The Local Government
should make every effort to remedy the breach within a period mutually agreed upon by both
parties.
B. If the Local Government withdraws from the Project after this Agreement is executed, it shall
be responsible for all direct and indirect Project costs as identified by the State's cost
accounting system.
C. A Project may be eliminated from the program as outlined below. If the Project is eliminated
for any of these reasons, this Agreement will be appropriately terminated. A Project may be
eliminated from the program, and this Agreement terminated, if:
i. The Local Government fails to satisfy any requirements of the program rules cited as 43
TAC §11.200 et seq.
ii. The implementation of the Project would involve significant deviation from the activities as
proposed in the nomination form.
iii. The Local Government withdraws from participation in the Project.
iv. The Project is not implemented within a reasonable time, as determined by the State in
consultation with the Local Government. In absence of information suggesting that a
shorter or longer period is appropriate, four (4) years or less from the date the project was
approved for TE funding by Minute Order will presumed to be a reasonable time. This
project must, therefore be awarded to contract before July, 29, 2014.
v. The State determines that federal funding may be lost due to the Project not being
implemented and completed.
vi. 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.
vii. As scheduled by the District, the Local Government fails to attend bi-annual progress
meetings.
3. Amendments
This Agreement may be amended due to changes in the work or amount of funding required to
complete the Project or other material, or for required changes in the responsibilities of the parties.
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CFDA 9 20.205
Contract 9 OXXF6022
Such amendment must be made through a mutually agreed upon, written amendment that is
executed by the parties.
4. Scope of Work and Use of Project
The scope of work for the Project, which is as shown in Attachment B of the Project Location Map,
described in the nomination form and as approved by the Texas Transportation Commission,
consists of: the construction of missing sidewalk segments along Southlake's major east -west
thoroughfare to provide a continuous walkable corridor, FM 1709 (Southlake Boulevard) for a
distance of 6.1 miles within the City limits. The sidewalk improvements will include landscaping
with irrigation, fencing, curb and gutters, ramps, and street furniture creating a safer and more
Pedestrian friendly environment.
Any project changes proposed must be submitted in writing by the Local Government to the
appropriate District, requesting prior approval through the Design Division. Changes may also
require an amendment to the contract and the approval of FHWA, the Administration, or the TTC.
Any changes undertaken without written approval and contract amendment may jeopardize not
only the federal funding for the changes, but the federal funding of the entire project.
5. Right of Way and Real Property Acquisition
Right-of-way and real property acquisition shall be the responsibility of the Local Government.
Title to right of way and other related real property must be acceptable to the State before funds
may be expended for the improvement of the right of way or real property. If the Local
Government is the owner of any part of the project site under this Agreement, the Local
Government shall permit the State or its authorized representative access to occupy the site to
perform all activities required to execute the work.
All parties to this agreement will comply with and assume the costs for compliance with all the
requirements of Title II and Title III of the Uniform Relocation Assistance and Real Property
Acquisition Policies Act of 1970, Title 42 U.S.C.A. Section 4601 et seq., including those provisions
relating to incidental expenses incurred by the property owners in conveying the real property to
the Local Government, and benefits applicable to the relocation of any displaced person as
defined in 49 CFR Section 24.2(g). Documentation to support such compliance must be
maintained and made available to the State and its representatives for review and inspection.
A. The Local Government shall assume all costs and perform necessary requirements to provide
any necessary evidence of title or right of use in the name of the Local Government to the real
property required for development of the Project. The evidence of title or rights shall be
acceptable to the State, and be free and clear of all encroachments. The Local Government
shall secure and provide easements and any needed rights of entry over any other land
needed to develop the Project according to the approved Project plans. The Local
Government shall be responsible for securing any additional real property required for
completion of the Project.
B. In the event real property is donated to the Local Government after the date of the State's
authorization, the Local Government will provide all documentation to the State regarding fair
market value of the acquired property. The State will review the Local Government's
appraisal, determine the fair market value and credit that amount towards the Local
Government's financial share. If donated property is to be used as a funding match, it may not
be provided by the Local Government. The State will not reimburse the Local Government for
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any real property acquired before execution of this agreement and the State's issuance of a
letter of funding authority.
C. The Local Government shall prepare real property maps, property descriptions, and other data
as needed to properly describe the real property and submit them to the State for approval
prior to the Local Government acquiring the real property. Tracings of the maps shall be
retained by the Local Government for a permanent record.
D. The Local Government agrees to make a determination of property values for each real
property parcel by methods acceptable to the State and to submit to the State a tabulation of
the values so determined, signed by the appropriate Local Government representative. The
tabulations shall list the parcel numbers, ownership, acreage and recommended
compensation. Compensation shall be shown in the component parts of land acquired,
itemization of improvements acquired, damages (if any) and the amounts by which the total
compensation will be reduced if the owner retains improvements. This tabulation shall be
accompanied by an explanation to support the determined values, together with a copy of
information or reports used in calculating all determined values. Expenses incurred by the
Local Government in performing this work may be eligible for reimbursement after the Local
Government has received written authorization by the State to proceed with determination of
real property values. The State will review the data submitted and may base its
reimbursement for parcel acquisitions on these values.
E. Condemnation shall not be used to acquire real property for this enhancement Project.
F. Reimbursement for real property costs will be made to the Local Government for real property
purchased in an amount not to exceed eighty percent (80%) of the cost of the real property
purchased in accordance with the terms and provisions of this agreement. Reimbursement will
be in an amount not to exceed eighty percent (80%) of the State's predetermined value of
each parcel, or the net cost thereof, whichever is less. In addition, reimbursement will be
made to the Local Government for necessary payments to appraisers, expenses incurred in
order to assure good title, and costs associated with the relocation of displaced persons and
personal property as well as incidental expenses.
G. If the Project requires the use of real property to which the Local Government will not hold title,
a separate agreement between the owners of the real property and the Local Government
must be executed prior to execution of this Agreement. The separate agreement must
establish that the Project will be dedicated for public use for a period of time commensurate
with the federal investment. The separate agreement must define the responsibilities of the
parties as to the use of the real property and operation and maintenance of the Project after
completion. This agreement must be approved by the State prior to its execution. A copy of
the executed agreement shall be provided to the State.
H. The Local Government agrees to execute individually or produce a legal document as
necessary to provide for the project's continued use from the date of completion, and agrees to
cause the same to be recorded in the land records of the appropriate jurisdiction.
I. Local governments receiving federal funds must retain an inventory of funded items and
monitor projects in accordance with 23 CFR 710 and 49 CFR 18, and with the procedures
provided in the Local Government Project Procedures manual.
The Local Government agrees to monitor the project to ensure: (1) continued use of the
property for approved activities, and (2) for the repayment of the Federal funds, as appropriate:
L The Local Government agrees to the review of their project accounts and site visits by the
State during the development of the project at any time;
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Project: FM 1709
CFDA 4 20.205
Contract 4 OXXF6022
ii. Upon project completion, the State will continue to perform spot visits
to confirm the project's continued use and upkeep.
6. Utilities
The Local Government shall be responsible for the adjustment, removal, or relocation of utility
facilities in accordance with applicable State laws, regulations, rules, policies, and procedures,
including any cost to the State of a delay resulting from the Local Government's failure to ensure
that utility facilities are adjusted, removed, or relocated before the scheduled beginning of
construction. The Local Government will not be reimbursed with federal or state funds for the cost
of required utility work, unless specified in the TE nomination form and approved by the State.
The Local Government must obtain advance approval for any variance from established
procedures. Before a construction contract is let, the Local Government shall provide, at the
State's request, a certification stating that the Local Government has completed the adjustment of
all utilities that must be adjusted before construction is completed.
7. Environmental Assessment and Mitigation
Development of the Project must comply with the National Environmental Policy Act and the
National Historic Preservation Act of 1966, which require environmental clearance of federal -aid
projects.
A. The Local Government is responsible for the identification and assessment of any
environmental problems associated with the development of the Project.
B. The Local Government is responsible for the cost of any environmental problem's mitigation
and remediation.
C. The Local Government is responsible for providing any public meetings or public hearings
required for development of the environmental assessment.
D. The Local Government shall provide the State with written certification from appropriate
regulatory agency(ies) that identified environmental problems have been remediated.
These costs will not be reimbursed or credited towards the Local Government's financial share of
the Project unless specified in the TE nomination form and approved by the State.
Forty five (45) days prior to any construction contract let date, the Local Government shall provide
a certification to the State that all real property has been acquired, all environmental problems
have been remediated, and all conflicting utilities have been adjusted.
8. Compliance with Texas Accessibility Standards and ADA
All parties to this agreement shall ensure that the plans for and the construction of the project
subject to this Agreement are in compliance with the Texas Accessibility Standards (TAS) issued
by the Texas Department of Licensing and Regulation, under the Architectural Barriers Act, Article
9102, Texas Civil Statutes. The TAS establishes minimum accessibility requirements to be
consistent with minimum accessibility requirements of the Americans with Disabilities Act (P.L.
101-336) (ADA).
9. Architectural and Engineering Services.
Architectural and engineering services will be provided by the Local Government. In procuring
professional services, the parties to this agreement must comply with federal requirements cited in
23 CFR Part 172 if the project is federally funded and with Texas Government Code 2254,
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Project: FM 1709
CFDA 9 20.205
Contract 9 OXXF6022
Subchapter A, in all cases. Professional services contracts for federally funded projects must
conform to federal requirements.
A. The architectural contract documents shall be developed in accordance with the standards of
the American Institute of Architects, the U.S. Secretary of the Interior's Standards for Historic
Preservation Projects, Standards and Guidelines for Archeology and Historic Preservation, the
National Register Bulletin Number 36: Guidelines for Evaluating and Registering Historical
Archeological Sites and in consultation with the State Historic Preservation Officer, as
applicable. The engineering plans shall be developed in accordance with the State's applicable
Standard Specifications for Construction and Maintenance of Highways, Streets and Bridges
and the two AASHTO publications, "A Policy on Geometric Design of Highways and Streets"
and "Guide for the Development of Bicycle Facilities," as applicable. All contract procurement
procedures and documents must adhere to the applicable requirements established in the
Standard Specifications for Construction and Maintenance of Highways, Streets and Bridges.
The use of other systems of specifications shall be approved by the State in writing in
advance.
B. When architectural and/or engineering services are provided by or through the Local
Government, then the following Items 1 & 2 apply.
1. The Local Government shall submit any plans it has completed to the State for review and
approval. The Local Government may also submit the plans to the State for review anytime
prior to completion. The Local Government shall make the necessary revisions determined by
the State. The Local Government will not let the construction contract until all required plans
have received State approval.
2. The Local Government shall submit to the State all documentation relating to authorized
costs incurred for providing architectural and engineering services. Reasonable, allowable,
and allocable costs incurred by the Local Government, after the Local Government has
obtained written authorization from the State to incur costs, will be eligible for reimbursement
at an amount not to exceed eighty percent (80%) of the eligible authorized costs.
C. When architectural and/or engineering services are provided by or through the State, then the
following applies:
The State is responsible for the delivery and performance of any required architectural or
preliminary engineering work. The Local Government may review and comment on the work
as required accomplishing the project purposes. The State will cooperate fully with the Local
Government in accomplishing these project purposes to the degree permitted by State and
Federal law.
10. Construction Responsibilities
A. The State shall advertise for construction bids, issue bid proposals,
receive and tabulate the bids, and award and administer the contract for construction of the
Project. Administration of the contract includes the responsibility for construction engineering and
for issuance of any change orders, supplemental agreements, amendments, or additional work
orders, which may become necessary subsequent to the award of the construction contract. In
order to ensure federal funding eligibility, projects must be authorized by the State prior to
advertising for construction.
B. All contract letting and award procedures must be approved by the State prior to letting and
award of the construction contract, whether the construction contract is awarded by the State or
by the Local Government.
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C. All contract change order review and approval procedures must be approved by the State prior
to start of construction.
D. Upon completion of the Project, the party constructing the project will issue and sign a
"Notification of Completion" acknowledging the Project's construction completion.
For federally funded contracts, the parties to this agreement will comply with federal construction
requirements cited in 23 CFR Part 635 and with requirements cited in 23 CFR Part 633, and shall
include the latest version of Form "FHWA-1273" in the contract bidding documents. If force
account work will be performed, a finding of cost effectiveness shall be made in compliance with
23 CFR Part 635, Subpart B.
Any field changes, supplemental agreements or revisions to the design plans that may occur after
the construction contract is awarded will be mutually agreed to by the State and the Local
Government prior to authorizing the contractor to perform the work. Prior to completion of the
Project, the party responsible for construction will notify the other party to this Agreement of the
anticipated completion date. All parties will be afforded the opportunity to assist in the final review
of the construction services performed by the contractor.
11. Project Maintenance.
Upon completion of the Project, the Local Government will be responsible for maintaining the
completed facility for public use. The property shall be maintained and operated for the purpose
for which it was approved and funded for a period of time commensurate with the federal
investment. Should the Local Government at any time after project completion decide it can no
longer maintain and operate the project for its intended purpose, the Local Government shall
return the federal funds in accordance with CFR federal recapture requirements. Should the Local
Government consider conveying the property, - the State and FHWA must be notified prior to the
sale, transfer, or disposal of any property that received federal funds. Written concurrence of
approval for the transaction detailing any required recapture, must be obtained from FHWA prior
to the transaction. Advance notice from the Local Government of their intended action must be
submitted to the District and the Design Division for an FHWA review a minimum of sixty (60) days
prior to any action being taken by the Local Government. The Local Government shall be held
responsible for reimbursement of all federal funds used or a portion based on a pro-rata amount,
considering the original percentage of federal funds provided and the time elapsed from the
project completion date. This same percentage of reimbursement also applies to any amount of
profit that may be derived from the conveyance of the property, as applicable.
Any manufacturer warranties extended to the Local Government as a result of the Project shall
remain in the name of the Local Government. The State shall not be responsible for honoring any
warranties under this agreement.
Should the Local Government derive any income from the development and operation of the
project, a portion of the proceeds sufficient for the maintenance and upkeep of the property, shall
be set aside for future maintenance. A project income report shall be submitted to the State on a
quarterly basis. Monies set aside according to this provision shall be expended using accounting
procedures established under OMB-133 and with the property management standards
established in Title 49 CFR §18.32.
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Should any historic properties be included in or affected by this federally funded project, the
historic integrity of the property and any contributing features must continue to be preserved
regardless of any approved changes that may occur throughout the life of the project.
12. Local Project Sources and Uses of Funds
A. Project Cost Estimate: A Project Cost Estimate and Payment Schedule is provided in
Attachment C, showing the total estimated development cost of the Project. This estimate
shows the itemized cost of real property, utilities, environmental assessments and remediation,
architectural and engineering activities, construction, and any other substantial items of cost.
To be eligible for reimbursement, costs must have been included in the itemized budget
section of the nomination form approved by the Texas Transportation Commission. The State
and the Federal Government will not reimburse the Local Government for any work performed
before the appropriate formal Federal Project Authorization and Agreement (FPAA) is issued
by the Federal Highway Administration. The Local Government is responsible for 100% of the
cost of any work performed under its direction or control before the FPAA and State Letter of
Authority are formally issued.
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
a letter of authority is issued. 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 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.
B. A Source of Funds estimate is also provided in Attachment C. Attachment C shows the
percentage and absolute dollar amounts to be contributed to the Project by federal, state, and
local sources.
C. The Local Government will be responsible for all non-federal participation costs associated
with the Project, including any overruns in excess of the Project cost estimate and any
operating or maintenance expenses. Donations of real property, cash, materials, and services
required for the development of the Project may be eligible to count towards the local funding
share of a project as in -kind contributions. In order to be considered eligible, in -kind
contributions must be made by other public, non-profit, governmental or non -governmental
organizations. In -kind contributions must be from a source other than the Local Government
that nominated the project. The value of the donated contributions of real property, materials,
or services will be based on fair market value. In -kind contributions of services are limited to
preparation of plans, specifications and estimates. In -kind contributions may be credited
toward no more than twenty percent (N/A%) of the allowable Project's cost; however, they may
not be used to match any direct or indirect TxDOT incurred cost. If a remaining balance of the
Local Government's required match is due after the in -kind contribution's value is applied, the
remainder must be provided in cash. The Local Government may provide additional property,
services, and/or materials above the required local match, to reduce the overall cost of a
Project, but it will not be considered an in -kind contribution.
D. The State will be responsible for securing the federal share of funding required for the
development and construction of the Project, in an amount not to exceed eighty percent (80%)
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Project: FM 1709
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Contract 4 OXXF6022
of the actual cost of the work up to the amount of funds approved for the Project by the Texas
Transportation Commission. Federal funds will be reimbursed on a cost basis. Project costs
incurred prior to Project selection by the Texas Transportation Commission and approval by
the State to proceed are not eligible for reimbursement.
E. Following execution of this Agreement, but prior to the performance of any review work by the
State, the Local Government will pay an amount sufficient to cover the estimated cost for the
State's review. The Local Government shall advance to the State 20 % of TxDOT's
Administrative and associated cost for review of the plans, specifications, and estimate. The
Local Government must also advance to the State 0% of the Project's estimated preliminary
engineering cost, if the State is administering the architectural or engineering contract. The
estimated amount of this advance for this Project's preliminary engineering is $ 2,010
including cash and allowable in -kind contributions. At least sixty (60) days prior to the date set
for receipt of the construction bids, the Local Government must advance to the State 20% of
TxDOT Administrative and associated costs for letting and construction. The Local
Government shall also remit its remaining financial share for the project's estimated
construction and construction engineering costs, if the State is letting the project. The amount
to be advanced for this Project's Construction is estimated to be $ 431,224 , including cash
and allowable in -kind contributions.
F. In the event the State determines that additional funding is required by the Local Government
at any time during the Project, the State will notify the Local Government in writing. The Local
Government is responsible for 20% of the authorized project cost and 100% of any overruns
above the federally authorized amount. The Local Government will make payment to the State
within thirty (30) days from receipt of the State's written notification.
G. Whenever funds are paid by the Local Government to the State under this agreement, the
Local Government will remit a warrant made payable to the "Texas Department of
Transportation Trust Fund." The warrant will be deposited by the State in an escrow account to
be managed by the State. Until the final project accounting, funds in the escrow account may
only be applied by the State to the Project.
H. Upon completion of the Project, the State will perform an audit of the Project costs. Any funds
due by the Local Government, the State, or the Federal Government will be promptly paid by
the owing party. If, after final Project accounting, excess funds remain in the escrow account,
those funds may be applied by the State to the Local Government's contractual obligations to
the State under another advance funding agreement.
I. In the event the Project is not completed, the State may seek reimbursement from the Local
Government of the expended federal funds. The Local Government will remit the required
funds to the State within sixty (60) days from receipt of the State's notification.
J. The State will not pay interest on any funds provided by the Local Government.
K. The State will not execute the contract for the construction of the Project until the required
funding has been made available by the Local Government in accordance with this Agreement.
L. 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
locally proposed changes, including but not limited to plats or re -plats, 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
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expenses in acquiring the property interests through negotiations, including but not limited to
expenses related to relocation, removal, and adjustment of eligible utilities.
M. The state auditor may conduct an audit or investigation of any entity receiving funds from the
state directly under the contract or indirectly through a subcontract under the contract.
Acceptance of funds directly under the 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.
An 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.
N. 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.
O. When the Local Government administers any portion of the project and seeks reimbursement
from the State, such request must be submitted within sixty (60) days from the date the cost is
incurred or reimbursement may be jeopardized.
13. Notices
All notices to either party by the other required under this agreement shall be delivered
personally or sent by certified or U.S. mail, postage prepaid or sent by electronic mail, (electronic
notice being permitted to the extent permitted by law but only after a separate written consent of
the parties), addressed to such party at the following addresses:
Local Government:
City- Manager
City- of Southlake
1400 Main Street Suite 460
Southlake, Texas 76092
State:
Director of Contract Services
Texas Department of Transportation
125 E. 11th
Austin, Texas 78701
All notices shall be deemed given on the date so delivered or so deposited in the mail, unless
otherwise provided herein. Either party may change the above address by sending written
notice of the change to the other party.
Either party may request in writing that such notices shall delivered personally or by certified
U.S. mail and such request shall be honored and carried out by the other party.
14. Legal Construction
In case one or more of the provisions contained in this agreement shall for any reason be held
invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall
not affect any other provisions and this agreement shall be construed as if it did not contain the
invalid, illegal or unenforceable provision.
15. Responsibilities of the Parties
The State and the Local Government agree that neither party is an agent, servant, or employee of
the other party and each party agrees it is responsible for its individual acts and deeds as well as
the acts and deeds of its contractors, employees, representatives, and agents.
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16. Ownership of Documents
Upon completion or termination of this agreement, all documents prepared by the State shall
remain the property of the State. All data prepared under this agreement shall be made available
to the State without restriction or limitation on their further use. All documents produced or
approved or otherwise created by the Local Government shall be transmitted to the State in the
form of photocopy reproduction on a monthly basis as required by the State. The originals shall
remain the property of the Local Government.
17. Document and Information Exchange
The Local Government agrees to electronically deliver to the State all general notes,
specifications, contract provision requirements and related documentation in a Microsoft® Word or
similar document. If requested by the State, the Local Government will use the State's document
template. The Local Government shall also provide a detailed construction time estimate
including types of activities and month in the format required by the State. This requirement
applies whether the Local Government creates the documents with its own forces or by hiring a
consultant or professional provider. At the request of the State, the Local Government shall
submit any information required by the State in the format directed by the State.
18. Compliance with Laws
The parties shall comply with all Federal, State, and Local laws, statutes, ordinances, rules and
regulations, and the orders and decrees of any courts or administrative bodies or tribunals in any
manner affecting the performance of this agreement. When required, the Local Government shall
furnish the State with satisfactory proof of this compliance.
19. Sole Agreement
This Agreement constitutes the sole and only agreement between the parties and supersedes
any prior understandings or written or oral agreements respecting the agreement's subject
matter.
20. Cost Principles
In order to be reimbursed with federal funds, the parties shall comply with the Cost Principles
established in OMB Circular A-87 that specify that all reimbursed costs are allowable, reasonable
and allocable to the Project.
21. Procurement and Property Management Standards
The parties shall adhere to the procurement standards established in Title 49 CFR §18.36 and
with the property management standard established in Title 49 CFR §18.32.
22. Inspection of Books and Records
The parties to this Agreement shall maintain all books, documents, papers, accounting records
and other documentation relating to costs incurred under this Agreement and shall make such
materials available to the State, the Local Government, the Federal Highway Administration
(FHWA), and the U.S. Office of the Inspector General, or their duly authorized representatives for
review and inspection at its office during the contract period and for four (4) years from the date of
completion of work defined under this contract or until any impending litigation, or claims are
resolved. Additionally, the State, the Local Government, and the FHWA and their duly authorized
representatives shall have access to all the governmental records that are directly applicable to
this Agreement for the purpose of making audits, examinations, excerpts, and transcriptions.
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Whenever American Recovery and Reinvestment Act of 2009 (ARRA) funds are used and the
Local Government is performing any work, either directly or through a contractor, it must comply
with the following provisions. If a Local Government is receiving ARRA funds, but is not
performing any work, the following provisions apply, if appropriate, and to the extent
necessary, to comply with ARRA regulations.
In accordance with Section 902 of the ARRA Act of 2009, should this agreement involve the
expenditure of ARRA funds, then the U.S. Comptroller General and its representatives shall have
the authority to:
a. examine any records of the contractor or any of its subcontractors, or any State or local
agency administering such contract, that directly pertain to, and involve transactions relating
to the contract or subcontract; and
b. interview any officer or employee of the contractor or any of its subcontractors, or any State
or local agency administering the contract regarding such contracts.
Nothing in the section previously mentioned shall be interpreted to limit or restrict in any way the
existing authority of the Comptroller General.
In accordance with Section 1515(a) of the ARRA, with respect to each contract or grant awarded
using covered funds, any representative of an appropriate inspector general appointed under
Section 3 or 8G of the Inspector General Act of 1978 (5 U.S.C. App.), is authorized:
a. to examine any records of the contractor or grantee, any of its subcontractors or sub -
grantees, or any State or local agency administering such contract that pertain to and
involve transactions relating to the contract, subcontract, grant, or sub -grant; and
b. to interview any officer or employee of the contractor, grantee or sub -grantee, or agency
regarding such transactions.
Section 1515(b) further provides that nothing in the section previously mentioned shall be
interpreted to limit or restrict in any way the existing authority of an inspector general.
The ARRA requires that the Contractor report monthly employment information for its firm as well
as that of all of its subcontractors. The Contractor, similarly, shall include this reporting
requirement in all of its subcontracts. Failing to include the requirement in agreements with
subcontractors can serve as grounds for contract termination.
Form FHWA-1589, Monthly Employment Report, promulgated by the Federal Highway
Administration (FHWA), captures the necessary monthly employment information and shall be
submitted by the Contractor on a regular basis to the LG (Local Government). It is the
responsibility of the LG to obtain this form from the prime Contractor and any subcontractors and,
the LG shall verify the accuracy, completeness, and reasonableness of the data contained in the
form. The LG shall ensure that this form is submitted by the LG to the State according to the
policies and at the direction of the State.
In order to meet any other FHWA and ARRA reporting requirements, the LG shall provide to the
State all information requested by the State, including data or information in possession of
contractors and subcontractors for completing other necessary reporting forms, and the
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information shall be submitted in the manner required and according to all due dates as set by
the State.
Furthermore, the ARRA mandates that the U.S. Comptroller General's Office shall have authority
to examine the records of the contractor, subcontractor, or local agency relating to the project at
any time.
23. Office of Management and Budget (OMB) Audit Requirements
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 OMB Circular A-133.
Whenever funds from the ARRA Act of 2009 are distributed to a Local Government, the Local
Government must complete its Schedule of Expenditures of Federal Awards (SEFA) and the
Data Collection Form (SF -SAC), as required by OMB Circular A-133, and separately identify any
ARRA expenditures for Federal Awards.
24. Civil Rights Compliance
The Local Government shall comply with the regulations of the Department of Transportation as
they relate to nondiscrimination (49 CFR Chapter 21 and 23 CFR §710.405(B)), and Executive
Order 11246 titled "Equal Employment Opportunity," as amended by Executive Order 11375 and
supplemented in the Department of Labor Regulations (41 CFR Part 60).
25. Disadvantaged Business Enterprise Program Requirements
The parties shall comply with the Disadvantaged/Minority Business Enterprise Program
requirements established in 49 CFR Part 26.
26. Debarment Certifications
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 is not 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.
27. Lobbying Certification
In executing this Agreement, the signatories certify to the best of his or her knowledge and belief,
that:
A. No federal appropriated funds have been paid or will be paid by or on behalf of the parties to
any person for influencing or attempting to influence an officer or employee of any federal
agency, a Member of Congress, an officer or employee of Congress, or an employee of a
Member of Congress in connection with the awarding of any federal contract, the making of any
federal grant, the making of any federal loan, the entering into of any cooperative agreement, and
the extension, continuation, renewal, amendment, or modification of any federal contract, grant,
loan, or cooperative agreement.
B. If any funds other than federal appropriated funds have been paid or will be paid to any person
for influencing or attempting to influence an officer or employee of any agency, a Member of
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Congress, an officer or employee of Congress, or an employee of a Member of Congress in
connection with federal contracts, grants, loans, or cooperative agreements, the signatory for the
Local Government shall complete and submit the federal Standard Form-LLL, "Disclosure Form
to Report Lobbying," in accordance with its instructions.
C. The parties shall require that the language of this certification be included in the award
documents for all sub -awards at all tiers (including subcontracts, sub -grants, and contracts under
grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose
accordingly. Submission of this certification is a prerequisite imposed by Title 31 U.S.C. §1352
for making or entering into this transaction. Any person who fails to file the required certification
shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each
such failure.
28. Insurance
Should this agreement authorize the Local Government or its contractor to perform any work on
State right of way, before beginning work, the entity performing the work shall provide the State
with a fully executed copy of the State's Form 1560 Certificate of Insurance verifying the existence
of coverage in the amounts and types specified on the Certificate of Insurance for all persons and
entities working on State right of way. This coverage shall be maintained until all work on the
State right of way is complete. If coverage is not maintained, all work on State right of way shall
cease immediately, and the State may recover damages and all costs of completing the work.
For projects including buildings, the Local Government agrees to insure the building according to
Department specifications and further agrees to name the Federal Government as a "Loss Payee"
should the building be destroyed.
29. Signatory Warranty.
The signatories to this Agreement warrant that each has the authority to enter into this Agreement
on behalf of the party represented.
IN TESTIMONY HEREOF, the parties hereto have caused these presents to be executed in duplicate
counterparts.
THE LOCAL GOVERNMENT
Shana Yelverton
Title: City Manager
Date:
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Contract 4 OXXF6022
THE STATE OF TEXAS
Executed for the Executive Director and approved for the Texas Transportation Commission for the
purpose and effect of activating and/or carrying out the orders, established policies or work programs
heretofore approved and authorized by the Texas Transportation Commission.
Janice Mullenix
Director of Contract Services
Texas Department of Transportation
Date:
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District # 02-Fort Worth
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CFDA # 20.205
Contract # OXXF6022
ATTACHMENT A
RESOLUTION OF LOCAL GOVERNMENT
Revised 09.16.10 Page 1 of 1 Attachment B
CSJ 91603-03-034 / STP 2011 (228) TE
District 9 02-Fort Worth
Code Chart 64 415000
Project: FM 1709
CFDA 9 20.205
Contract 4 OXXF6022
ATTACHMENT B
PROJECT LOCATION MAP
Revised 09.16.10 Page 1 of 1 Attachment B
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