20-353S:\Legal\Our Documents\Ordinances\20\Borurie Brae Widening Phase 6 Project.docx
ORDINANCE NO. 20-353
AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING THE CITY MANAGER, OR
HIS DESIGNEE, TO EXECUTE AND DELIVER AN ADVANCE FUNDING AGREEMENT
FOR CONGESTION MITIGATION AND AIR QUALITY (CMAQ) IMPROVEMENT
PROGRAM PROJECT AND A SURF ACE TRANSPORTATION BLOCK GRANT (STBG)
PROGRAM PROJECT, BETWEEN THE CITY OF DENTON AND THE TEXAS
DEPARTMENT OF TRANSPORTATION, FOR THE BONNIE BRAE WIDENING AND
IMPROVEMENTS PHASE 6 PROJECT AS SPECIFIED IN THE AGREEMENT;
AUTHORIZING THE EXPENDITURE OF FUNDS THEREOF; AND PROVIDING AN
EFFECTIVE DATE.
WHEREAS, the City of Denton ("City") and the Texas Department of Transportation
("TxDOT") are ready to commence with the "Bonnie Brae Widening and Improvements Phase 6
Project" and begin design and construction there o f, improving a 2/4-lane roadway to 4-lane
divided roadway with sidewalks and 1 0-foot shared-use path along Bonnie Brae Street from
Windsor Drive to US 77 in the City ofDenton; TxDOT Project CSJ: 0918-46-319 ; and
WHEREAS, federal funding will provide Eleven Million Sixty Thousand E ight Hundred
and no/100 Dollars ($11,060,800.00) of the project funding and state funding will provide Nine
Hundred Twelve Thousand Eight Hundred Fifty-Seven and no/100 Dollars ($912,857.00) of the
project funding; the federal and state funds combined to account for Eighty percent (80%) of the
total project costs; and
WHEREAS, the City will provide Twenty percent (20%) of the total project funding as
local match in the amount of Six Million Eight Hundred Twenty-Four Thousand Three Hundred
Seventeen and no/100 Dollars ($6,824,317.00), combining with the federal and state funds to cover
the total estimated amount of the Project cost in the sum of Eighteen Million Seven Hundred
Ninety-Seven Thousand Nine Hundred Seventy-Four and no/100 Dollars ($18,797,974.00); and
WHEREAS, the State has prepared the attached Advanced Funding Agreement for
Congestion Mitigation and Air Quality (CMAQ) Improvement Program Project and a Surface
Transportation Block Grant (STBG) Program Project Off-System (the "Agreement"); and
WHEREAS, the City Council, having considered the Agreement that is required by
TxDOT and the importance of the Bonnie Brae Widening and Improvement Phase 6 Project to the
citizens ofDenton and finding that it is in the public's health and safety interest, is of the opinion
that it should approve the above-referenced Agreement by and between the City and TxDOT;
NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS :
SECTION 1: The findings and recitations contained in the preamble ofthis ordinance are
incorporated herein by reference as true and fully set forth in the body of this ordinance .
S:\Legal\Our Documents\Ordinances\20\Bonnie Brae Widening Phase 6 Project.docx
SECTION 2: The City Manager, or his designee, is hereby authorized to execute on behalf
of the City the Agreement, a copy of which is attached hereto as Exhibit "A" and made a part
hereof for all purposes, or a substantially similar Agreement as may be required by TxDOT .
SECTION 3: The City Manager, or his designee, is further authorized to carry out all duties
and obligations to be performed by the City under the Agreement, including, but not limited to,
the expenditure of funds.
SECTION 4: This ordinance become effective immediately upon its passage and approval.
The motion to approve this Ordinance was made by l(eEL.f 6£!GC76 and
seconded by fJAat-tfltfl;T?t:X ; the Ordinance was passed and approved by
the following vote l.tf_ -_QJ :
Abstain Absent
Chris Watts, Mayor:
Gerard Hudspeth, District 1 :
Keely G. Briggs, District 2:
Jesse Davis, District 3:
John Ryan, District 4:
Deb Armintor, At Large Place 5:
Paul Meltzer, At Large Place 6:
CHRIS
ATTEST:
ROSARIOS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
AARON LEAL, CITY ATTORNEY
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TxDOT: Federal Highway Administration:
CSJ# 0918-46-319 CFDANo. 20.205
District# Dallas -18 CFDATitle Highway Planning and Construction
Code Chart 64 # 11400
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Project Name Bonnie Brae Street AFA Not Used For Research & Development
Limits From Windsor Drive to US 77
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STATE OF TEXAS §
COUNTY OF TRAVIS §
ADVANCE FUNDING AGREEMENT
For
Congestion Mitigation and Air Quality (CMAQ) Improvement Program Project
And A
Surface Transportation Block Grant (STBG) Program Project
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 Citv of Denton,
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. $tate 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 115550
authorizing the State to undertake and complete a highway improvement or other transportation
project generally described as construction of new roadway lanes. T he 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
Februarv 11, 2020 , which is attached to and made a part of this Agreement
as Attachment A, Resolution, Ordinance, or Commissioners Court Order (Attachment A). A
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Project Name Bonnie Brae Street AFA Not Used For Research & Development
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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.
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. Local Government Construction Respo n sib ilities Article 12
5. Local Government Right of Way and Rea l 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 preparation of preliminary
engineering (design schematic, environmental documents/public involvement),
plans, specifications and estimates (PS&S), the acquisition of right of way and
real property to include right of maps, property descriptions, right of way
documents/data, and the widening of a 2-4 lane roadway to a 4-lane divided
roadway with sidewalks and a 1 0-foot shared-use path along Bonnie Brae Street
from Windsor Drive to US 77 within the City of Denton as shown on Attachment B,
Location Map.
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
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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.
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) costs 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 Loca l 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
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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 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 Loca l 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.
0. 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
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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:
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
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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:
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 schemat ic .
D. The preparation of the NEPA documents required for the environmenta l
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 Associat ion of State Highway and Transportation Officials
(AASHTO) design standards.
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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 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
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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 Ill 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.
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
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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, 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 t he State.
15. I nsurance
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.
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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:
City of Denton
ATTN: City Manager
215 East McKinney
Denton, Texas 76201
State:
Texas Department of Transportation
ATIN: Director of Contract Services
125 E. 11th Street
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.
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.
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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 Unifo rm 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 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 (US DOT), 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.
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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 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
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'---
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 Ill of the Americans with Disabilities Act, whi ch 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 Administratio n'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 mi no r ity populations by discouraging programs,
policies, and activities with disproportionately high and adverse human health or
environmental effects on minority and low-income populations.
K. Executive Order 13166, Improving Access to Services for Persons with Limited
English Proficiency, and resulting agency guidance, national origin discrimination
includes discrimination because of limited English proficiency (LEP). To ensure
compliance with Title VI, t he 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.
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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 Gove rn ment 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.
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
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Project Name Bonnie Brae Street AFA Not Used For Research & Development
Limits From Windsor Drive to US 77
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 fu rn ish 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:
A. An y recipient of funds under this Agreement agrees to comply with the Federal
Funding Accountability and Transparency Act (FFATA) and implementing
regulations at 2 CFR Part 170, including Appendix A. This Agreement is subject
to the following award terms: http://www.gpo.gov/fdsys/pkg/FR-201 0-09-
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Project Name Bonnie Brae Street AFA Not Used For Research & Development
Limits From Windsor Drive to US 77
14/pdf/201 0-22705.pdf and http ://www.gpo.gov/fdsys/pkg/FR-201 0-09-
14/pdf/2010-22706.pdf.
B. The Local Government agrees that it shall :
1. Obtain and provide to the State a System for Award Management (SAM)
number (Federal Acquisition Regulation, Part 4, Sub-part 4.11) if this award
provides more than $25,000 in federal funding. The SAM number may be
obtained by visiting the SAM website whose add re ss 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 $750,000 or more are met during the fiscal year, the
Local Government must submit a Single Audit Report and Management Letter (if
applicable) to TxDOT's Compliance Division, 125 East 11th Street, Austin, TX
78701 or contact TxDOT's Compliance Division by email at
singleaudits@txdot.gov.
C. If expenditures are less than the threshold during the Local Government's fiscal
year, the Local Government must submit a statement to TxDOT's Compliance
Division as follows: "We did not meet the$ expend iture 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.
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Code Chart 64 # 11400
Project Name Bonnie Brae Street AFA Not Used For Research & Development
Limits From Windsor Drive to US 77
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.
THE STATE OF TEXAS
B:
Kenneth Stewart
Director of Contract Services
Texas Department of Transportation
Date:
By:
THE LOCAL GOVERNMENT
dJL/IL-'¥O&f Hilem a n
City Manager
City of Denton
Date: {)j< /1 / /c£ (),;1.0
I I
Approved as to Form:
City Attorney
Aaron Leal
This Agreement has been both reviewed and
approved as to financial and operational
::lig:s ~
VTodd SteS
City Engineer -Director of Capital Projects
ATTEST:
City Secretary
By~~~
Rosa Rios
City Secretary
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CSJ#
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Code Chart 64 #
Project Name
Limits
AFA LongGen
Federal Highway Administration:
0918-46-319 CFDA No. 20.205
Dallas -18 CFDA Title Highway Planning and Construction
11400
Bonnie Brae Street AFA Not Used For Research & Development
From Windsor Drive to US 77
ATTACHMENT A
ORDINANCE
Page 1 of 1
Attachment A
S:\Legal\Our Documents\Ordinances\20\Bonnie Brae Widening Phase 6 Project.docx
ORDINANCE NO. 20-353
AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING THE CITY MANAGER, OR
IDS DESIGNEE, TO EXECUTE AND DELIVER AN ADVANCE FUNDING AGREEMENT
FOR CONGESTION MITIGATION AND AIR QUALITY (CMAQ) IMPROVEMENT
PROGRAM PROJECT AND A SURFACE TRANSPORTATION BLOCK GRANT (STBG)
PROGRAM PROJECT, BETWEEN THE CITY OF DENTON AND THE TEXAS
DEPARTivtENT OF TRANSPORTATION, FOR THE BONNIE BRAE WIDENING AND
IMPROVEMENTS PHASE 6 PROJECT AS SPECIFIED IN THE AGREEMENT ;
AUTHORIZING THE EXPENDITURE OF FUNDS THEREOF; AND PROVIDING AN
EFFECTIVE DATE.
WHEREAS, the City of Denton ("City") and the Texas Department of Transportation
("TxDOT") are ready to commence with the "Bonnie Brae Widening and Improvements Phase 6
Project" and begin design and construction thereof, improving a 2/4-lane roadway to 4-lane
divided roadway with sidewalks and 1 0-foot shared-use path along Bonnie Brae Street from
Windsor Drive to US 77 in the City ofDenton; TxDOT Project CSJ: 0918-46-319; and
WHEREAS, federal funding will provide Eleven Million Sixty Thousand Eight Hundred
and no/100 Dollars ($11,060,800.00) of the project funding and state funding will provide Nine
Hundred Twelve Thousand Eight Hundred Fifty-Seven and no/100 Dollars ($912,857.00) of the
project funding; the federal and state funds combined to account for Eighty percent (80%) of the
total project costs; and
WHEREAS, the City will provide Twenty percent (20%) of the total project funding as
local match in the amount of Six Million Eight Hundred Twenty-Four Thousand Three Hundred
Seventeen and no/100 Dollars ($6,824,317 .00), combining with the federal and state funds to cover
the total estimated amount of the Project cost in the sum of Eighteen Million Seven Hundred
Ninety-Seven Thousand Nine Hundred Seventy-Four and no/100 Dollars ($18,797,974.00); and
WHEREAS, the State has prepared the attached Advanced Funding Agreement for
Congestion Mitigation and Air Quality (CMAQ) Improvement Program Project and a Surface
Transportation Block Grant (STBG) Program Project Off-System (the "Agreement"); and
WHEREAS, the City Council, having considered the Agreement that is required by
TxDOT and the importance of the Bonnie Brae Widening and Improvement Phase 6 Project to the
citizens ofDenton and finding that it is in the public 's health and safety interest, is of the opinion
that it should approve the above-referenced Agreement by and between the City and TxDOT;
NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1: The findings and recitations contained in the preamble of this ordinance are
incorporated herein by reference as true and fully set forth in the body of this ordinance.
S:\Legal\Our Documents\Ordinances\20\Bonnie Brae Widening Phase 6 Project.docx
SECTION 2 : The City Manager, or his designee, is hereby authorized to execute on behalf
of the City the Agreement, a copy of which is attached hereto as Exhibit "A" and made a part
hereof for all purposes, or a substantially similar Agreement as may be required by TxDOT .
SECTION 3 : The City Manager, or his designee, is further authorized to carry out all duties
and obligations to be performed by the City under the Agreement, including, but not limited to,
the expenditure of funds.
SECTION 4: This ordinance become effective immediately upon its passage and approval.
The motion to approve this Ordinance was made by !(eEL. y b£-1 G-0-6 and
seconded by /)AU{... tY/fil:r?t<?C... ; the Ordinance was passed and approved by
the following vote l£-_Qj:
Abstain Absent
Chris Watts, Mayor:
Gerard Hudspeth, District 1 :
Keely G. Briggs, District 2:
Jesse Davis, District 3:
John Ryan, District 4 :
Deb Armintor, At Large Place 5 :
Paul Meltzer, At Large Place 6: tl
PASSED AND APPROVED this the //ik, day of_.L.......lL..IO'-L...L~L......¥-' 2020.
CHRIS
ATTEST:
ROSA RIOS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
AARON LEAL, CITY ATTORNEY
TxDOT:
CSJ#
District#
Code Chart 64 #
Project Name
Limits
AFA LongGen
Federal Highway Administration:
0918-46-319 CFDANo. 20.205
Dallas-18 CFDA Title Highway Planning and Construction
11400
Bonnie Brae Street AFA Not Used For Research & Development
From Windsor Drive to US 77
ATTACHMENT B
LOCATION MAP SHOWING PROJECT
q
North Lake s Park
Windsor Drive
, RJnch
Town Ctnte•
w ' Dr
Page 1 of 1
NORTHRIDGE
MCKAMV
EVERS
Attachment B
' TxDOT: Federal Highway Administration:
CSJ# 0918-46 -319 CFDA No. 20.205
District# Dallas-18 CFDATitle Highway Planning and Construction
Code Chart 64 # 11400
Project Name Bonnie Brae Street AFA Not Used For Research & Development
Limits From Windsor Drive to US 77
ATTACHMENT C
PROJECT BUDGET
The Local Government will be responsible for 100% of environment, engineering and direct state costs.
Category 5 and Category 7 funds for right of way and construction costs will be allocated based on 80%
Federal funding and 20% Local funding until the Federal funding reaches the maximum obligated amount.
The Local Government will then be responsible for 1 00% of the costs .
The Project cost is to be a follows:
Total Federal State Local
Description Estimate Participation Participation Participation
Cost
% Cost % Cost % Cost
Environmental (by Local) $145,588 0% $0 0% $0 100% $145,588
Engineering (by Local) $1 ,310,294 0% $0 0% $0 100% $1,310,294
Right of Way (by Local)-cat. 7 -STBG $1 ,893,362 80% $1 ,514,690 0% $0 20% $378,672
Construction (by Local)-cat.7 -STBG $11 ,332,663 80% $9 ,066,130 0% $0 20% $2 ,266 ,533 ------------------------------------------------------------------------------------------------------------------------------------------------------------1---------------------------------------
Construction (by Local) -Cat.5 -CMAQ $393,163 80% $314,530 0% $0 20% $78,633 --------------------------------------------------------------------------s-2:s·aa:a·aa ·· ------------------------------------------------------~--------------1------------------------------------
Construction (by Local) -Local 0% 0 0% $0 100% $2 ,500 ,000 --------------------------------------------------------------------------------------------------------------------------------------------~-------------------------------
Total Construction $14,225,826 $9,380,660 $0 $4,845,166
Subtotal $17,575,070 $10,895,350 $0 $6,679,720
Direct State Costs -Environmental $14,559 0% $0 0% $0 100% $14,559
Direct State Costs -Engineering $14,559 0% $0 0% $0 100% $14 ,559
Direct State Costs-Right of Way $46,56 9 80% $37,255 0% $0 20% $9,314
Direct State Costs -Utilities $46,569 80% $37,255 0% $0 20% $9 ,314
Direct State Costs -Construction $113,675 80% $90,940 0% $0 20% $22 ,735
Subtota l $235,931 $165,450 $0 $70,481
Indirect State Costs (4 .52%) $794,393 0% $0 100% $794 ,393 0% $0
TOTAL $18,605,394 $11,060 ,800 $794,393 $6,750,201
Initial Payment by the Local Government to the State: $29.118
Payment by the Local Government to the State prior to construction: $41.363
Estimated total payment due by the Local Government to the State= $70.481
T his is an estimate. The final amount of the Local Government participation will be based on actual costs.
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