HomeMy WebLinkAboutResolution - 2019-R0455 - Advance Funding Agreement With Txdot - 12/03/2019 Resolution No. 2019-RO455
Item No. 7.8
December 3,2019
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for
and on behalf of the City of Lubbock, an Advance Funding Agreement, Contract No. 15078, by
and between the City of Lubbock and the State of Texas acting through the Texas Department of
Transportation (TxDOT) for the Surface Transportation Program for the Upland Avenue
corridor, from 66th Street to 82nd Street. Said Agreement is attached hereto and incorporated in
this resolution as if fully set forth herein and shall be included in the minutes of the City Council.
Passed by the City Council on December 3,2019
DANIEL M. POPE, MAYOR
ATTEST:
LAP
Rebec a Garza, City Secretary
APPROVED AS TO CONTENT:
Q2 —
J�McEach istant City Manager
APPROVED AS TO FORM:
Kelli Leisure, Assistant City Attorney -
ccdocs/RES.AFA Upland 6611'to 82nd
11.15.19
Resolution No. 2019-RO455
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STATE OF TEXAS §
COUNTY OF TRAVIS §
ADVANCE FUNDING AGREEMENT
For
Surface Transportation Program—Metropolitan Mobility
Off-System
THIS AGREEMENT (Agreement) is made by and between the State of Texas, acting by and through
the Texas Department of Transportation called the "State", and the City of Lubbock, acting by and
through its duly authorized officials, called the "Local Government'. The State and Local Government
shall be collectively referred to as "the parties" hereinafter.
WITNESSETH
WHEREAS, federal law establishes federally funded programs for transportation improvements to
implement its public purposes, and
WHEREAS, the Texas Transportation Code, Section 201.103 establishes that the State shall design,
construct and operate a system of highways in cooperation with local governments, and Section
222.052 authorizes the Texas Transportation Commission to accept contributions from political
subdivisions for development and construction of public roads and the state highway system within
the political subdivision, 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 has codified 43 TAC, Rules 15.50-15.56 that
describe federal, state, and local responsibilities for cost participation in highway improvement and
other transportation projects, and
WHEREAS, the Texas Transportation Commission passed Minute Order Number 115291 authorizing
the State to undertake and complete a highway improvement or other transportation project generally
described as Upland Avenue. The portion of the project work covered by this Agreement is identified
in the Agreement, Article 3, Scope of Work (Project), and
WHEREAS, the Governing Body of the Local Government has approved entering into this Agreement
by resolution, ordinance, or commissioners court order dated 12103/2019, which is attached to and
made a part of this Agreement as Attachment A, Resolution, Ordinance, or Commissioners Court
Order(Attachment A). A map showing the Project location appears in Attachment B, Location Map
Showing Project(Attachment B), which is attached to and made a part of this Agreement.
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NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements
of the parties, to be by them respectively kept and performed as set forth in this Agreement, it is
agreed as follows:
AGREEMENT
1. Responsible Parties:
For the Project covered by this Agreement, the parties shall be responsible for the following
work as stated in the article of the Agreement referenced in the table below:
1 Local Government Utilities Article 8
2. Local Government Environmental Assessment and Mitigation Article 9
3. Local Government Architectural and Engineering Services Article 11
4. State Construction Responsibilities Article 12
5. Local Government Right of Way and Real Property Article 14
2. 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 the Project is completed
or unless terminated as provided below.
3. Scope of Work
The scope of work for the Project consists of the construction of Upland Avenue, from 66th
Street to 82"d Street, widening of a non-freeway, in Lubbock, Texas as shown on Attachment
B.
4. Project Sources and Uses of Funds
The total estimated cost of the Project is shown in Attachment C, Project Budget (Attachment
C) which is attached to and made a part of this Agreement.
A. If the Local Government will perform any work under this Agreement for which
reimbursement will be provided by or through the State, the Local Government must
complete training. If federal funds are being used, the training must be completed
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" and retains qualification
in accordance with applicable TxDOT procedures. Upon request, 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 continuously designated in writing a qualified individual to
work actively on or to directly oversee the Project.
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B. The expected cash contributions from the federal government, the State, the Local
Government, or other parties are shown in Attachment C. The State will pay for only
those Project costs that have been approved by the Texas Transportation Commission.
For projects with federal funds, the State and the federal government will not reimburse
the Local Government for any work performed before the federal spending authority is
formally obligated to the Project by the Federal Highway Administration (FHWA). 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 100% of the cost of any work
performed under its direction or control before the federal spending authority is formally
obligated.
C. Attachment C shows, by major cost categories, the cost estimates and the party
responsible for performing the work for each category. These categories may include
but are not limited to: (1) costs of real property; (2) costs of utility work; (3) casts of
environmental assessment and remediation; (4) cost of preliminary engineering and
design; (5) cost of construction and construction management; and (6) any other local
project costs.
D. The State will be responsible for securing the federal and State share of the funding
required for the development and construction of the local Project. If the Local
Government is due funds for expenses incurred, these funds will be reimbursed to the
Local Government on a cost basis.
E. The Local Government will be responsible for all non-federal or non-State participation
costs associated with the Project, unless otherwise provided for in this Agreement or
approved otherwise in an amendment to this Agreement. For items of work subject to
specified percentage funding, the Local Government shall only in those instances be
responsible for all Project costs that are greater than the maximum State and federal
participation specified in Attachment C and for overruns in excess of the amount
specified in Attachment C to be paid by the Local Government.
F. The budget in Attachment C will clearly state all items subject to fixed price funding,
specified percentage funding, and the periodic payment schedule, when periodic
payments have been approved by the State.
G. When the Local Government bears the responsibility for paying cost overruns, the
Local Government shall make payment to the State within thirty(30) days from the
receipt of the State's written notification of additional funds being due.
H. When fixed price funding is used, the Local Government is responsible for the fixed
price amount specified in Attachment C. Fixed prices are not subject to adjustment
unless (1) differing site conditions are encountered; (2) further definition of the Local
Government's requested scope of work identifies greatly differing costs from those
estimated; (3) work requested by the Local Government is determined to be ineligible
for federal participation; or (4) the adjustment is mutually agreed to by the State and
the Local Government.
I. 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 performed or reviewed by the State for the Project. At least
sixty (60) days prior to the date set for receipt of the construction bids, the Local
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Government shall remit its remaining financial share for the State's estimated
construction oversight and construction cost.
J. 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.
K. 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" or may use the State's Automated Clearing House
(ACH) system for electronic transfer of funds in accordance with instructions provided
by TxDOT's Finance Division. The funds shall be deposited and managed by the State
and may only be applied by the State to the Project.
L. The State will not pay interest on any funds provided by the Local Government.
M. If a waiver for the collection of indirect costs for a service project has been granted
under 43 TAC §15.56, the State will not charge the Local Government for the indirect
costs the State incurs on the Project, unless this Agreement is terminated at the
request of the Local Government prior to completion of the Project.
N. If the Local Government is an Economically Disadvantaged County (EDC) and if the
State has approved adjustments to the standard financing arrangement, this
Agreement reflects those adjustments.
O. Where the Local Government is authorized to perform services under this Agreement
and be reimbursed by the State, 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.
P. Upon completion of the Project, the State will perform a final accounting of the Project
costs for all items of work with specified percentage funding. Any funds due by the
Local Government, the State, or the federal government for these work items will be
promptly paid by the owing party.
Q. The state auditor may conduct an audit or investigation of any entity receiving funds
from the State directly under this Agreement or indirectly through a subcontract under
this Agreement. Acceptance of funds directly under this Agreement or indirectly
through a subcontract under this Agreement 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.
R. Payment under this Agreement beyond the end of the current fiscal biennium is subject
to availability of appropriated funds. If funds are not appropriated, this Agreement shall
be terminated immediately with no liability to either party.
5. Termination of This Agreement
This Agreement shall remain in effect until the Project is completed and accepted by all
parties, unless:
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A. The Agreement is terminated in writing with the mutual consent of the parties;
B. The Agreement is terminated by one party because of a breach, in which case any
costs incurred because of the breach shall be paid by the breaching party;
C. The Local Government elects not to provide funding after the completion of preliminary
engineering, specifications, and estimates (PS&E) and the Project does not proceed
because of insufficient funds, in which case the Local Government agrees to reimburse
the State for its reasonable actual costs incurred during the Project; or
D. The Agreement is terminated by the State because the parties are not able to execute
a mutually agreeable amendment when the costs for Local Government requested
items increase significantly due to differing site conditions, determination that Local
government requested work is ineligible for federal or state cost participation, or a more
thorough definition of the Local Government's proposed work scope identifies greatly
differing costs from those estimated. The State will reimburse Local Government
remaining funds to the Local Government within ninety (90) days of termination; or
E. The Project is inactive for thirty-six (36) consecutive months or longer and no
expenditures have been charged against federal funds, in which case the State may in
its discretion terminate this Agreement.
6. Amendments
Amendments to this Agreement due to changes in the character of the work, terms of the
Agreement, or responsibilities of the parties relating to the Project may be enacted through a
mutually agreed upon, written amendment.
7. Remedies
This Agreement shall not be considered as specifying the exclusive remedy for any agreement
default, but all remedies existing at law and in equity may be availed of by either party to this
Agreement and shall be cumulative.
8. Utilities
The party named in Article 1, Responsible Parties, under AGREEMENT 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. 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 commenced.
9. Environmental Assessment and Mitigation
Development of a transportation 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. The party named in Article 1, Responsible Parties, under
AGREEMENT is responsible for the following:
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A. The identification and assessment of any environmental problems associated with the
development of a local project governed by this Agreement.
B. The cost of any environmental problem's mitigation and remediation.
C. Providing any public meetings or public hearings required for the environmental
assessment process. Public hearings will not be held prior to the approval of the
Project schematic.
D. The preparation of the NEPA documents required for the environmental clearance of
this Project.
If the Local Government is responsible for the environmental assessment and mitigation,
before the advertisement for bids, the Local Government shall provide to the State written
documentation from the appropriate regulatory agency or agencies that all environmental
clearances have been obtained.
10. 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).
11. Architectural and Engineering Services
The party named in Article 1, Responsible Parties, under AGREEMENT has responsibility for
the performance of architectural and engineering services. The engineering plans shall be
developed in accordance with the applicable State's Standard Specifications for Construction
and Maintenance of Highways, Streets and Bridges and the special specifications and special
provisions related to it. For projects on the State highway system, the design shall, at a
minimum conform to applicable State manuals. For projects not on the State highway system,
the design shall, at a minimum, conform to applicable American Association of State Highway
and Transportation Officials (AASHTO) design standards.
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, Subchapter A, in all cases. Professional contracts for federally
funded projects must conform to federal requirements, specifically including the provision for
participation by Disadvantaged Business Enterprises (DBEs), ADA, and environmental
matters. If the Local Government is the responsible party, the Local Government shall submit
its procurement selection process for prior approval by the State. All professional services
contracts must be reviewed and approved by the State prior to execution by the Local
Government.
12. Construction Responsibilities
The party named in Article 1, Responsible Parties, under AGREEMENT is responsible for the
following:
A. 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
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change orders, supplemental agreements, amendments, or additional work orders that
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. If the State is the responsible party, the State will use its approved contract letting and
award procedures to let and award the construction contract.
C. If the Local Government is the responsible party, the Local Government shall submit its
contract letting and award procedures to the State for review and approval prior to
letting.
D. If the Local Government is the responsible party, the State must concur with the low
bidder selection before the Local Government can enter into a contract with the vendor.
E. If the Local Government is the responsible party, the State must review and approve
change orders.
F. Upon completion of the Project, the party responsible for constructing the Project will
issue and sign a "Notification of Completion" acknowledging the Project's construction
completion and submit certification(s) sealed by a professional engineer(s) licensed in
the State of Texas.
G. 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 635, Subpart B.
13. Project Maintenance
The Local Government shall be responsible for maintenance of locally owned roads and
locally owned facilities after completion of the work. The State shall be responsible for
maintenance of the State highway system after completion of the work if the work was on the
State highway system, unless otherwise provided for in existing maintenance agreements with
the Local Government.
14. Right of Way and Real Property
The party named in Article 1, Responsible Parties, under AGREEMENT is responsible for the
provision and acquisition of any needed right of way or real property.
The Local Government shall be responsible for the following:
A. 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.
B. 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.
C. 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.,
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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.
D. 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.
E. 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 any real property acquired before execution of this
Agreement and the obligation of federal spending authority.
F. 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.
G. 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.
H. 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 of the parcel,
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,
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and costs associated with the relocation of displaced persons and personal property as
well as incidental expenses.
I. 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 not less than 10 (ten) years after completion. 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. The separate agreement must be
approved by the State prior to its execution. A copy of the executed agreement shall
be provided to the State.
15. Insurance
If this Agreement authorizes 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.
16. Notices
All notices to either party shall be delivered personally or sent by certified or U.S. mail,
postage prepaid, addressed to that party at the following address:
Local Government: State:
City of Lubbock Texas Department of Transportation
ATTN: City Engineer ATTN: Director of Contract Services
P.O. Box 2000 125 E. 11 th Street
Lubbock, TX 79457 Austin, TX 78701
All notices shall be deemed given on the date delivered in person or deposited in the mail,
unless otherwise provided by this Agreement. 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
notices shall be delivered personally or by certified U.S. mail, and that request shall be carried
out by the other party.
17. Legal Construction
If 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.
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18. 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.
19. 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 and information 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 format directed by the State, on a monthly basis or as required
by the State. The originals shall remain the property of the Local Government. .
20. Compliance with Laws
The parties to this Agreement 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.
21. 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.
22. Cost Principles
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.
23. Procurement and Property Management Standards
The parties to this Agreement shall adhere to the procurement and property management
standards established in 2 CFR 200, Uniform Administrative Requirements, Cost Principles,
and Audit Requirements for Federal Awards, and to the Texas Uniform Grant Management
Standards. The State must pre-approve the Local Government's procurement procedures for
purchases to be eligible for state or federal funds.
24. 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, and, if federally funded, the
FHWA and the U.S. Office of the Inspector General or their duly authorized representatives for
review and inspection at its office during the Agreement period and for seven (7) years from
the date of final reimbursement by FHWA under this Agreement or until any impending
litigation or claims are resolved. Additionally, the State, the Local Government, and the FHWA
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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.
25. Civil Rights Compliance
The parties to this Agreement are responsible for the following:
A. Compliance with Regulations: Both parties 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 Agreement, 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 Agreement 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
Agreement 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
FHWA, 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 Agreement, the State will impose such
contract sanctions as it or the FHWA may determine to be appropriate, including, but
not limited to:
1. withholding of payments to the Local Government under the Agreement until the
Local Government complies and/or
2. cancelling, terminating, or suspending of the Agreement, 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
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enforcing such provisions including sanctions for noncompliance. Provided, that if the
Local Government becomes involved in, or is 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.
26. Pertinent Non-Discrimination Authorities
During the performance of this Agreement, each party, 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), (pro-
hibits 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, (42 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
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Title 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.).
27. Disadvantaged Business Enterprise (DBE) Program Requirements
If federal funds are used:
A. The parties shall comply with the Disadvantaged Business Enterprise Program
requirements established in 49 CFR Part 26.
B. The Local Government shall adopt, in its totality, the State's federally approved DBE
program.
C. The Local Government shall incorporate into its contracts with subproviders an
appropriate DBE goal consistent with the State's DBE guidelines and in consideration
of the local market, project size, and nature of the goods or services to be acquired.
The Local Government shall submit its proposed scope of services and quantity
estimates to the State to allow the State to establish a DBE goal for each Local
Government contract with a subprovider. The Local Government shall be responsible
for documenting its actions.
D. The Local Government shall follow all other parts of the State's DBE program
referenced in TxDOT Form 2395, Memorandum of Understanding Regarding the
Adoption of the Texas Department of Transportation's Federally-Approved
Disadvantaged Business Enterprise by Entity, and attachments found at web address
http://ftp.dot.state.tx.us/pub/txdot-info/bop/dbe/mou/mou attachments.pdf.
E. The Local Government shall not discriminate on the basis of race, color, national origin,
or sex in the award and performance of any U.S. Department of Transportation (DOT)-
assisted contract or in the administration of its DBE program or the requirements of 49
CFR Part 26. The Local Government shall take all necessary and reasonable steps
under 49 CFR Part 26 to ensure non-discrimination in award and administration of
DOT-assisted contracts. The State's DBE program, as required by 49 CFR Part 26
and as approved by DOT, is incorporated by reference in this Agreement.
Implementation of this program is a legal obligation and failure to carry out its terms
shall be treated as a violation of this Agreement. Upon notification to the Local
Government of its failure to carry out its approved program, the State may impose
sanctions as provided for under 49 CFR Part 26 and may, in appropriate cases, refer
the matter for enforcement under 18 U.S.C. 1001 and the Program Fraud Civil
Remedies Act of 1986 (31 U.S.C.`3801 et seq.).
F. Each contract the Local Government signs with a contractor(and each subcontract the
prime contractor signs with a sub-contractor) must include the following assurance:
The contractor, sub-recipient, or sub-contractor shall not discriminate on the basis of
race, color, national origin, or sex in the performance of this contract. The contractor
shall carry out applicable requirements of 49 CFR Part 26 in the award and
administration of DOT-assisted contracts. Failure by the contractor to carry out these
requirements is a material breach of this Agreement, which may result in the
termination of this Agreement or such other remedy as the recipient deems
appropriate.
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28. Debarment Certifications
If federal funds are used, 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 Agreement shall require any party to a subcontract
or purchase order awarded under this Agreement to certify its eligibility to receive federal
funds and, when requested by the State, to furnish a copy of the certification.
If state funds are used, the parties are prohibited from making any award to any party that is
debarred under the Texas Administrative Code, Title 34, Part 1, Chapter 20, Subchapter G,
Rule §20.585 and the Texas Administrative Code, Title 43, Part 1, Chapter 9, Subchapter G.
29. Lobbying Certification
If federal funds are used, in executing this Agreement, each signatory certifies to the best of
that signatory's 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 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 shall be included in the
award documents for all sub-awards at all tiers (including subcontracts, subgrants, and
contracts under grants, loans, and cooperative agreements) and all sub-recipients shall
certify and disclose accordingly. Submission of this certification is a prerequisite for
making or entering into this transaction imposed by Title 31 U.S.C. §1352. 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.
30. Federal Funding Accountability and Transparency Act Requirements
If federal funds are used, the following requirements apply:
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THE LOCAL VERNMENT THE STATE OF TEXAS
Daniel M. Pope, Ilayor Kenneth Stewart
Director of Contract Services
December 3, 2019 Texas Department of Transportation
Date
Date
ATTEST:
R tLee-.e,. K/--�
Rebe ca Garza, City Secr to
December 3, 2019
Date
APPROVED AS TO C NTENT:
Michael G. Keenum, P.E., City Engineer
Ir IV 61
Date
A� OVED AS TO FARM:
elli Leisure, Assistant City Attorney
Date
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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/pkq/FR-2010-09-14/pdf/2010-22705.pdf and
http://www.gpo.gov/fdsys/pkq/FR-2010-09-14/pdf/2010-22706.pd .
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 federal government to track
the distribution of federal money. The DUNS 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 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.
31. Single Audit Report
If federal funds are used:
A. The parties shall comply with the single audit report requirements stipulated in 2 CFR
200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements
for Federal Awards.
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 11 th Street, Austin, TX 78701 or contact
TxDOT's Compliance Division by email at sing leaudits(cb-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 "
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.
32. Signatory Warranty
Each signatory warrants that the signatory has necessary authority to execute this Agreement
on behalf of the entity represented.
Each party is signing this Agreement on the date stated under that party's signature.
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ATTACHMENT A
RESOLUTION, ORDINACE, OR COMMISSIONERS COURT ORDER
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Code Chart 64# 25650
Project Name Upland Avenue 66}h-82nd CST AFA Not Used For Research&Development
ATTACHMENT B
LOCATION MAP SHOWING PROJECT
UPLAND AVENUE PROJECT LOCATION
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Page 1 of 1
AFA LongGen Attachment B
TxDOT: Federal Highway Administration:
CSJ# 0905-06-095 CFDA No. 20.205
District# 05-LBB CFDA Title Highway Planning and Construction
Code Chart 64# 25650
Project Name Upland Avenue 66th-82nd CST AFA Not Used For Research&Development
ATTACHMENT C
PROJECT BUDGET
Except for Indirect State Costs, all other Costs will be allocated based on 80% Federal
funding and 20% Local Government funding until the federal funding reaches the maximum
obligated amount. The Local Government will then be responsible for 100% of the costs.
Total Estimated Federal Participation State Local Participation
Description Cost Participation
Cost % Cost % Cost
Engineering
(by Local $0.00 0.00% $0.00 0.00% $0 0.00% $0.00
Government
Construction $7,000,001 80.00% ° °
by State) $5,600,000 0.00/° $0 20.00/° $1,400,001
Subtotal $7,000,001.00 80.00% $5,600,000.00 0.00% $0 20.00% $1,400,001.00
Environment
al Direct $5,314.88 80.00% $4,251.90 0.00% $0 20.00% $1,062.98
State Costs
Right of Way
Direct State $6,248.22 80.00% $4,998.58 0.00% $0 20.00% $1,249.64
Costs
Engineering
Direct State $14,863.10 80.00% $11,890.48 0.00% $0 20.00% $2,972.62
Costs
Utility Direct
State Costs $6,248.22 80.00% $4,998.58 0.00% $0 20.00% $1,249.64
Construction
Direct State $809,300.00 80.00% $647,440.00 0.00% $0 20.00% $161,860.00
Costs
Indirect
State Costs $44,900.00 0.00% $0.00 0.00% $0 100.00% $44,900.00
Subtotal $886,874.42 80.00% $673,579.54 0.00% $0 20.00%11 $213,294.88
TOTAL $7,886,875.42 80.00% $6,273,579.541 $1,613,295.88
Initial payment by the Local Government to the State: $639,125.91
Payment by the Local Government to the State before construction: $974,169.97
Estimated total payment by the Local Government to the State: $1,613,295.88
This is an estimate. The total amount of Local Government participation will be based
on actual costs.
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AFA LongGen Attachment C