23-988ORDINANCENO. 23-988
AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING THE CITY MANAGER TOEXECUTE AN ADVANCED FUNDING AGREEMENT (AFA) AND LANDSCAPE
MANTENANCE AGREEMENT (LMA) WITH THE TEXAS DEPARTMENT OFTRANSPORTATION FOR THE PURPOSE OF PROVIDING LANDSCAPE, SCENICENHANCEMENT AND IRRIGATION ON US HIGHWAY 377 FROM ROSELAWN DRIVE
TO COUNTRY CLUB ROAD (THE “AGREEMENT”); AUTHORIZING THE CITYMANAGER TO PERFORM ALL OBLIGATIONS OF THE CITY UNDER THE
AGREEMENTS INCLUDING THE EXPENDITURE OF FUNDS; AND PROVIDING ANEFFECTIVE DATE.
WHEREAS, the Green Ribbon is a program established by the Texas State Legislature
in 1999 to allocate funding for landscaping and other enhancement activities in Texas
Department of Transportation (“TXDOT”) districts that have air quality non-attainment and near
non-attainment counties, of which Denton County is one, with the program goal to establish trees
and plants in state highway rights-of-way to help mitigate the effects of air pollution; and
WHEREAS, the City provided concept designs to TXDOT to upgrade the landscaping
and scenic enhancement including tree, shrubs, groundcovers, and irrigation on US Hwy 377
from Roselawn Drive to Country Club Road; and
WHEREAS, the City of Denton has been awarded funds for this project pursuant to the
Green Ribbon Program; and
WHEREAS, the funding for this project will be paid by the City using general funds
with reimbursement from TXDOT each month during the project. The City is not required to
fund costs during the construction phase. The design of the project was paid by the City; and
WHEREAS, once approved by TXDOT, the City of Denton will bid and manage the
contracted installation of all improvements. Upon completion of landscape improvements, theCity of Denton Parks and Recreation Department (PARD) will be responsible for regular
maintenance of the improvements; and
WHEREAS, the proposed Advanced Funding Agreement (AFA) and Landscape
Maintenance Agreement (“LMA”) affirms TXDOT will provide funding for the construction
and installation for all landscape materials including trees, plants, irrigation, and concrete mow
strips, and after installation, the City will assume all maintenance responsibilities and the
financial obligation attendant to the maintenance; and
WHEREAS, City staff reviewed the AFA and LMA required by TXDOT and is of the
opinion they should be approved; and
WHEREAS, the City Council finds it is in the public interest to approve the AFA andLMA; 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 as if fully set forth in the body of this ordinance.
SECTION 2. The City Manager, or designee, is hereby authorized to execute on behalf
of the City the AFA and LMA with TXDOT, drafts of which are attached hereto as Exhibit “A“
and made a part hereof for all purposes, and a substantially similar agreements as may berequired by TXDOT will be signed by the City Manager or designee.
SECTION 3. The City Manager, or designee, is further authorized to carry out all
duties and obligations to be performed by the City under the Agreements, including, but
not limited to, the expenditure of funds.
SECTION 4. This ordinance shall become effective immediately upon its passage and
approval.
The motion to approve this ordinance was made by (’'L r is Uc US and seconded
by 67r&vi - Yl',J5fz+ L ; thi r oved by the
following vote [ L - a:
Aye
,/
,/
/-L
./
L/y
Nay Abstain Absent
Mayor Gerard Hudspeth:
Vicki Byrd, District 1 :
Brian Beck. District 2:
Paul Meltzer. District 3 :
Joe Holland. District 4:
Brandon Chase McGee, At Large Place 5 :
Chris Watts, At Large Place 6:
PASSED ANDAPPROVEDthisthe j6th dayof Hay . 2023
GERARD UUDSPETH. MAYOR
Page 2 of 3
ATTEST:
JESUS SALAZAR, INTERM CITY SECRETARY
APPROVED AS TO LEGAL FORM:
\\\\)III,IP III
BY
MACK REINWAND, CITY ATTORNEY
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STATE OF TEXAS S
SCOUNTY OF TRAVIS
ADVANCE FUNDING AGREEMENTFor
Green Ribbon ProgramOn-System
THIS AGREEMENT (Agreement) is made by and between the State of Texas, acting by andthrough the Texas Department of Transportation called the “State”, and the City of Denton,acting by and through its duly authorized officials, called the “Local Governmenf’. 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, andSection 222.052 authorizes the Texas Transportation Commission to accept contributions frompolitical 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 improvementand other transportation projects, and
WHEREAS, the Texas Transportation Commission passed Minute Order Numbers 1 16292 and
116073 authorizing the State to undertake and complete a highway improvement or other
transportation project generally described as landscape and scenic enhancements. 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 thisAgreement by resolution, ordinance, or commissioners court order dated May 16, 2023, whichis attached to and made a part of this Agreement as Attachment C, Resolution, Ordinance, or
Commissioners Court Order (Attachment C). A map showing the Project location appears inAttachment A, Location Map Showing Project (Attachment A), which is attached to and made apart of this Agreement.
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NOW, THEREFORE, in consideration of the premises and of the mutual covenants andagreements 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:
Utilities
Environmental Assessment and Mitigation
Architectural and Engineering Services
Construction Responsibilities
Right of Way and Real Property
Article 8
Article 9
Article 1 1
Article 12
Article 14
2.Period of the AgreementThis Agreement becomes effective when signed by the last party whose signing makesthe 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 landscaping and scenic enhancement thatinclude trees, shrubs, groundcovers, and irrigation on US Hwy 377 from Roselawn Driveto Country Club Road .
4.Project Sources and Uses of FundsThe total estimated cost of the Project is shown in Attachment B, Project Budget
(Attachment B) which is attached to and made a part of this Agreement.A. If the Local Government will perform any work under this Agreement for whichreimbursement will be provided by or through the State, the Local Governmentmust complete training. If federal funds are being used, the training must becompleted before federal spending authority is obligated. Training is completewhen at least one individual who is working actively and directly on the Project
successfully completes and receives a certificate for the course entitled “LocalGovernment Project Procedures and Qualification for the Texas Department ofTransportation” and retains qualification in accordance with applicable TxDOTprocedures. Upon request, the Local Government shall provide the certificate of
qualification to the State. The individual who receives the training certificate maybe an employee of the Local Government or an employee of a firm that has beencontracted by the Local Government to perform oversight of the Project. TheState in its discretion may deny reimbursement if the Local Government has not
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continuously designated in writing a qualified individual to work actively on or todirectly oversee the Project.The expected cash contributions from the federal government, the State, theLocal Government, or other parties are shown in Attachment B. The State willpay for only those Project costs that have been approved by the Texas
Transportation Commission. For projects with federal funds, the State and thefederal government will not reimburse the Local Government for any workperformed before the federal spending authority is formally obligated to theProject by the Federal Highway Administration (FHWA). After federal funds havebeen obligated, the State will send to the Local Government a copy of the formal
documentation showing the obligation of funds including federal awardinformation. The Local Government is responsible for 1 00% of the cost of anywork performed under its direction or control before the federal spendingauthority is formally obligated.
Attachment B shows, by major cost categories, the cost estimates and the partyresponsible for performing the work for each category. These categories mayinclude 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 preliminaryengineering and design; (5) cost of construction and construction management;and (6) any other local project costs.The State will be responsible for securing the federal and State share of thefunding required for the development and construction of the local Project. If the
Local Government is due funds for expenses incurred, these funds will bereimbursed to the Local Government on a cost basis
The Local Government will be responsible for all non-federal or non-State
participation costs associated with the Project, unless otherwise provided for inthis Agreement or approved otherwise in an amendment to this Agreement. Foritems of work subject to specified percentage funding, the Local Governmentshall only in those instances be responsible for all Project costs that are greaterthan the maximum State and federal participation specified in Attachment B and
for overruns in excess of the amount specified in Attachment B to be paid by theLocal Government.
The budget in Attachment B will clearly state all items subject to fixed pricefunding, specified percentage funding, and the periodic payment schedule, whenperiodic payments have been approved by the State.
When the Local Government bears the responsibility for paying cost overruns,the Local Government shall make payment to the State within thirty (30) daysfrom the receipt of the State’s written notification of additional funds being due.When fixed price funding is used, the Local Government is responsible for the
fixed price amount specified in Attachment B. Fixed prices are not subject toadjustment unless (1) differing site conditions are encountered; (2) furtherdefinition of the Local Government’s requested scope of work identifies greatlydiffering costs from those estimated; (3) work requested by the Local
Government is determined to be ineligible for federal participation; or (4) theadjustment is mutually agreed to by the State and the Local Government.
B.
C.
D.
E.
F.
G.
H.
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1.Prior to the performance of any engineering review work by the State, the LocalGovernment will pay to the State the amount specified in Attachment B. At aminimum, this amount shall equal the Local Government’s funding share for the
estimated cost of preliminary engineering performed or reviewed by the State forthe Project. At least sixty (60) days prior to the date set for receipt of theconstruction bids, the Local Government shall remit its remaining financial sharefor the State’s estimated construction oversight and construction cost.
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 inaccordance with this Agreement.
Whenever funds are paid by the Local Government to the State under thisAgreement, the Local Government shall remit a check or warrant made payable
to the “Texas Department of Transportation” or may use the State’s AutomatedClearing House (ACH) system for electronic transfer of funds in accordance withinstructions provided by TxDOT's Finance Division. The funds shall be depositedand managed by the State and may only be applied by the State to the Project.
The State will not pay interest on any funds provided by the Local Government.If a waiver for the collection of indirect costs for a service project has been
granted under 43 TAC 515.56, the State will not charge the Local Governmentfor 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 theProject
If the Local Government is an Economically Disadvantaged County (EDC) and ifthe State has approved adjustments to the standard financing arrangement, this
Agreement reflects those adjustments.Where the Local Government is authorized to perform services under this
Agreement and be reimbursed by the State, the Local Government is authorizedto submit requests for reimbursement by submitting the original of an itemizedinvoice, in a form and containing all items required by the State, no morefrequently than monthly and no later than ninety (90) days after costs areincurred. 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 Stateshall have no responsibility to reimburse the Local Government for those costs.Upon completion of the Project, the State will perform a final accounting of theProject costs for all items of work with specified percentage funding. Any fundsdue by the Local Government, the State, or the federal government for thesework items will be promptly paid by the owing party.The state auditor may conduct an audit or investigation of any entity receivingfunds from the State directly under this Agreement or indirectly through a
subcontract under this Agreement. Acceptance of funds directly under thisAgreement or indirectly through a subcontract under this Agreement acts as
acceptance of the authority of the state auditor, under the direction of thelegislative audit committee, to conduct an audit or investigation in connection withthose funds. An entity that is the subject of an audit or investigation must providethe state auditor with access to any information the state auditor considers
relevant to the investigation or audit.
J.
K.
L
M.
N.
0.
P.
Q.
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R.Payment under this Agreement beyond the end of the current fiscal biennium issubject to availability of appropriated funds. If funds are not appropriated, thisAgreement 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 allparties, 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;The Local Government elects not to provide funding after the completion ofpreliminary engineering, specifications, and estimates (PS&E) and the Projectdoes not proceed because of insufficient funds, in which case the Local
Government agrees to reimburse the State for its reasonable actual costsincurred during the Project; orThe Agreement is terminated by the State because the parties are not able toexecute 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 orstate cost participation, or a more thorough definition of the Local Government’s
proposed work scope identifies greatly differing costs from those estimated. TheState will reimburse Local Government remaining funds to the Local Governmentwithin ninety (90) days of termination; orThe Project is inactive for thirty-six (36) consecutive months or longer and noexpenditures have been charged against federal funds, in which case the Statemay in its discretion terminate this Agreement.
C.
D.
E.
6.Amendments
Amendments to this Agreernent due to changes in the character of the work, terms of
the Agreement, or responsibilities of the parties relating to the Project may be enactedthrough 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 byeither party to this Agreement and shall be cumulative.
8.Utilities
The party named in Article 1, Responsible Parties, under AGREEMENT shall beresponsible for the adjustment, removal, or relocation of utility facilities in accordancewith 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 thatutility facilities are adjusted, removed, or relocated before the scheduled beginning ofconstruction. 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
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let, the Local Government shall provide, at the State’s request, a certification stating thatthe Local Government has completed the adjustment of all utilities that must be adjustedbefore construction is commenced.
9.Environmental Assessment and Mitigation
Development of a transportation project must comply with the National EnvironmentalPolicy Act and the National Historic Preservation Act of 1966, which requireenvironmental 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 associatedwith the development of a local project governed by this Agreement.The cost of any environmental problem’s mitigation and remediation.Providing any public meetings or public hearings required for the environmentalassessment process. Public hearings will not be held prior to the approval of the
Project schematicThe preparation of the NEPA documents required for the environmentalclearance of this Project.
BC.
D.
If the Local Government is responsible for the environmental assessment and mitigation,before the advertisement for bids, the Local Government shall provide to the Statewritten documentation from the appropriate regulatory agency or agencies that allenvironmental clearances have been obtained.
10.Compliance with Accessibility StandardsAll parties to this Agreement shall ensure that the plans for and the construction of allprojects subject to this Agreement are in compliance with standards issued or approvedby 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 ServicesThe party named in Article 1, Responsible Parties, under AGREEMENT hasresponsibility for the performance of architectural and engineering services. The
engineering plans shall be developed in accordance with the applicable State’s StandardSpecifications for Construction and Maintenance of Highways, Streets and Bridges andthe special specifications and special provisions related to it. For projects on the Statehighway 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 withTexas Government Code 2254, Subchapter A, in all cases. Professional contracts for
federally funded projects must conform to federal requirements, specifically including theprovision for participation by Disadvantaged Business Enterprises (DBEs), ADA, and
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environmental matters. If the Local Government is the responsible party, the LocalGovernment shall submit its procurement selection process for prior approval by the
State. All professional services contracts must be reviewed and approved by the Stateprior to execution by the Local Government.
12.Construction Responsibilities
The party named in Article 1, Responsible Parties, under AGREEMENT is responsiblefor the following :A. Advertise for construction bids, issue bid proposals, receive and tabulate thebids, and award and administer the contract for construction of the Project.
Administration of the contract includes the responsibility for constructionengineering 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 fundingeligibility, projects must be authorized by the State prior to advertising forconstruction .
If the State is the responsible party, the State will use its approved contractletting and award procedures to let and award the construction contract.
If the Local Government is the responsible party, the Local Government shall
submit its contract letting and award procedures to the State for review andapproval prior to letting.If the Local Government is the responsible party, the State must concur with thelow bidder selection before the Local Government can enter into a contract withthe vendor
If the Local Government is the responsible party, the State must review and
B.
C.
D,
E.
F.approve change orders.
Upon completion of the Project, the party responsible for constructing the Projectwill issue and sign a “Notification of Completion” acknowledging the Project’sconstruction completion and submit certification(s) sealed by a professionalengineer(s) licensed in the State of Texas
For federally funded contracts, the parties to this Agreement will comply withfederal construction requirements cited in 23 CFR Part 635 and withrequirements cited in 23 CFR Part 633, and shall include the latest version ofForm “FHWA-1273” in the contract bidding documents. If force account work willbe performed, a finding of cost effectiveness shall be made in compliance with 23CFR 635, Subpart B.
G.
13.Project Maintenance
The Local Government shall be responsible for maintenance of locally owned roads andlocally 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 wason the State highway system, unless otherwise provided for in existing maintenanceagreements with the Local Government.
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14.Right of Way and Real PropertyThe 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.
15.Insurance
If this Agreement authorizes the Local Government or its contractor to perform any workon 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 Insuranceverifying the existence of coverage in the amounts and types specified on the Certificateof Insurance for all persons and entities working on State right of way. This coverageshall be maintained until all work on the State right of way is complete. If coverage is notmaintained, all work on State right of way shall cease immediately, and the State mayrecover 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 DentonATTN: City Manager215 E. McKinney St,
Denton, TX 76201
Texas Department of TransportationATTN: Director of Contract Services125 E. 11 th Street
Austin, TX 78701
All notices shall be deemed given on the date delivered in person or deposited in themail, unless otherwise provided by this Agreement. Either party may change the aboveaddress by sending written notice of the change to the other party. Either party mayrequest in writing that notices shall be delivered personally or by certified U.S. mail, andthat 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 heldinvalid, illegal, or unenforceable in any respect, such invalidity, illegality, orunenforceability 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, oremployee of the other party, and each party agrees it is responsible for its individual acts
and deeds as well as the acts and deeds of its contractors, employees, representatives,and agents.
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19.Ownership of Documents
Upon completion or termination of this Agreement, all documents prepared by the Stateshall remain the property of the State. All data and information prepared under thisAgreement shall be made available to the State without restriction or limitation on theirfurther 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 amonthly basis or as required by the State. The originals shall remain the property of theLocal 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 oradministrative bodies or tribunals in any manner affecting the performance of this
Agreement. When required, the Local Government shall furnish the State withsatisfactory proof of this compliance.
21 .Sole AgreementThis 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 costprinciples 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 propertymanagement standards established in 2 CFR 200, Uniform AdministrativeRequirements, Cost Principles, and Audit Requirements for Federal Awards, and to the
Texas Uniform Grant Management Standards. The State must pre-approve the LocalGovernment’s procurement procedures for purchases to be eligible for state or federalfunds
24.Inspection of Books and Records
The parties to this Agreement shall maintain all books, documents, papers, accountingrecords, and other documentation relating to costs incurred under this Agreement andshall 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 authorizedrepresentatives 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 Agreementor 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 thepurpose of making audits, examinations, excerpts, and transcriptions.
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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 theRegulations relative to Nondiscrimination in Federally-assisted programs of the
U.S. Department of Transportation (USDOT), the Federal HighwayAdministration (FHWA), as they may be amended from time to time, which areherein incorporated by reference and made part of this Agreement.Nondiscrimination: The Local Government, with regard to the work performed byit during the Agreement, will not discriminate on the grounds of race, color, or
national origin in the selection and retention of subcontractors, includingprocurement of materials and leases of equipment. The Local Government will
not participate directly or indirectly in the discrimination prohibited by the Actsand the Regulations, including employment practices when the Agreementcovers any activity, project, or program set forth in Appendix B of 49 CFR Part
Solicitations for Subcontracts, Includinq 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, includingprocurement of materials or leases of equipment, each potential subcontractor or
supplier will be notified by the Local Government of the Local Government’sobligations under this Agreement and the Acts and Regulations relative to
Nondiscrimination on the grounds of race, color, or national origin.Information and Reports: The Local Government will provide all information andreports required by the Acts, the Regulations, and directives issued pursuantthereto, and will permit access to its books, records, accounts, other sources ofinformation, 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 exclusivepossession 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 setforth what efforts it has made to obtain the information
Sanctions for Noncompliance: in the event of the Local Government's
noncompliance with the Nondiscrimination provisions of this Agreement, theState will impose such contract sanctions as it or the FHWA may determine to beappropriate, including, but not limited to:1. withholding of payments to the Local Government under the Agreement untilthe Local Government complies and/or
2. cancelling, terminating, or suspending of the Agreement, in whole or in part.Incorporation of Provisions: The Local Government will include the provisions ofparagraphs (A) through (F) in every subcontract, including procurement ofmaterials and leases of equipment, unless exempt by the Acts, the Regulationsand directives issued pursuant thereto. The Local Government will take such
action with respect to any subcontract or procurement as the State or the FHWAmay direct as a means of enforcing such provisions including sanctions fornoncompliance. Provided, that if the Local Government becomes involved in, or
is threatened with, litigation with a subcontractor or supplier because of such
21
B
C.
D.
E.
F.
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District #AFA ID ZOOO04149
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direction, the Local Government may request the State to enter into suchlitigation 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 interestsof 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 andauthorities; including but not limited to:
A. Title VI of the Civil Rights Act of 1964 (42 U.S.C. S 2000d et seq ., 78 stat. 252),(pro-hibits discrimination on the basis of race, color, national origin); and 49 CFR
The Uniform Relocation Assistance and Real Property Acquisition Policies Act of1970, (42 U.S.C. S 4601 ), (prohibits unfair treatment of persons displaced orwhose property has been acquired because of federal or federal-aid programsand projects).
Federal-Aid Highway Act of 1973, (23 U.S.C. S 324 et seq .), as amended,(prohibits discrimination on the basis of sex).Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. S 794 et seq.) asamended, (prohibits discrimination on the basis of disability); and 49 CFR Part
The Age Discrimination Act of 1 975, as amended, (42 U.S.C. S 6101 et seq.),
(prohibits discrimination on the basis of age).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).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 1 964, The AgeDiscrimination 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 theprograms or activities of the federal-aid recipients, subrecipients and contractors,
whether such programs or activities are federally funded or not).
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. SS 12131-12189) as implemented by Department ofTransportation regulations at 49 C.F.R. parts 37 and 38.The Federal Aviation Administration’s Nondiscrimination statute (49 U.S.C. S
47123) (prohibits discrimination on the basis of race, color, national origin, and
Executive Order 12898, Federal Actions to Address Environmental Justice in
Minority Populations and Low-Income Populations, which ensuresnondiscrimination 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.
Part 21
27
I
sex)J
B.
C.
D.
E.
F.
G.
H.
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AFA ID18/DAL ZOOO04149District #
11400Code Chart 64 #
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K.Executive Order 13166, Improving Access to Services for Persons with Limited
English Proficiency, and resulting agency guidance, national origin discriminationincludes discrimination because of limited English proficiency (LEP). To ensurecompliance with Title VI, the parties must take reasonable steps to ensure thatLEP persons have meaningful access to the programs (70 Fed . Reg. at 74087 to
Title IX of the Education Amendments of 1972, as amended, which prohibits the
parties from discriminating because of sex in education programs or activities (20U.S.C. 1681 et seq.).
741 00)L.
27.Disadvantaged Business Enterprise (DBE) Program RequirementsIf federal funds are used:
A. The parties shall comply with the Disadvantaged Business Enterprise Programrequirements established in 49 CFR Part 26.
The Local Government shall adopt, in its totality, the State’s federally approvedDBE program.The Local Government shall incorporate into its contracts with subproviders an
appropriate DBE goal consistent with the State’s DBE guidelines and inconsideration of the local market, project size, and nature of the goods orservices 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 aDBE goal for each Local Government contract with a subprovider. The LocalGovernment shall be responsible for documenting its actions.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-ApprovedDisadvantaged 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.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 ofTransportation (DOT)-assisted contract or in the administration of its DBEprogram or the requirements of 49 CFR Part 26. The Local Government shalltake 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 programis 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 itsfailure 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 thematter for enforcement under 18 U.S.C. 1001 and the Program Fraud CivilRemedies Act of 1986 (31 U.S.C. 3801 et seq.).Each contract the Local Government signs with a contractor (and each
subcontract the prime contractor signs with a sub<ontractor) must include thefollowing assurance'. The contractor, sub-recipient, or sub-contractor shall not
B.
C.
D.
E.
F.
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discriminate on the basis of race, color, national origin, or sex in the performanceof this contract. The contractor shall carry out applicable requirements of 49CFR 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 otherremedy as the recipient deems appropriate,
28.Debarment Certifications
If federal funds are used, the parties are prohibited from making any award at any tier toany party that is debarred or suspended or otherwise excluded from or ineligible for
participation in Federal Assistance Programs under Executive Order 12549, “Debarmentand Suspension.” By executing this Agreement, the Local Government certifies that itand its principals are not currently debarred, suspended, or otherwise excluded from orineligible for participation in Federal Assistance Programs under Executive Order 12549and 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 participationin Federal Assistance Programs under Executive Order 12549. The parties to thisAgreement 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 bythe 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 920.585 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 thebest 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 oremployee of any federal agency, a Member of Congress, an officer or employeeof Congress, or an employee of a Member of Congress in connection with theawarding of any federal contract, the making of any federal grant, the making of
any federal loan, the entering into of any cooperative agreement, and theextension, continuation, renewal, amendment, or modification of any federalcontract, grant, loan, or cooperative agreement.
If any funds other than federal appropriated funds have been paid or will be paidto 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 anemployee of a Member of Congress in connection with federal contracts, grants,loans, or cooperative agreements, the signatory for the Local Government shallcomplete and submit the Federal Standard Form-LLL, “Disclosure Form to
Report Lobbying,” in accordance with its instructions.The parties shall require that the language of this certification shall be included inthe award documents for all sub-awards at all tiers (including subcontracts,
B.
C.
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AFA ID ZOOO0414918/DALDistrict #
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subgrants, and contracts under grants, loans, and cooperative agreements) andall sub-recipients shall certify and disclose accordingly. Submission of thiscertification is a prerequisite for making or entering into this transaction imposed
by Title 31 U.S.C. 91352. Any person who fails to file the required certificationshall 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 RequirementsIf federal funds are used, the following requirements apply:
A. Any recipient of funds under this Agreement agrees to comply with the Federal
Funding Accountability and Transparency Act (FFATA) and implementingregulations at 2 CFR Part 170, including Appendix A. This Agreement is subject
to the following award terms: http://www.gpo.gov/fdsys/pkg/FFR-2010-09-
14/pdf/2010-22705. pdf and http://www.gpo.gov/fdsvs/pkq/FR-2010-09-
14/pdf/2010-22706. pdf.The Local Government agrees that it shall:
Obtain and provide to the State a System for Award Management (SAM)number (Federal Acquisition Regulation, Part 4, Sub-part 4.11) if this awardprovides more than $25,000 in federal funding. The SAM number may be
obtained by visiting the SAM website whose address is:
https://www.sam.qov/portal/public/SAM/Obtain and provide to the State a Data Universal Numbering System (DUNS)number, a unique nine-character number that allows federal government totrack 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://fedqov.dnb.com/webform;
Report the total compensation and names of its top five executives to the
More than 80% of annual gross revenues are from the federalgovernment, and those revenues are greater than $25,000,000; andii. The compensation information is not already available through reportingto the U.S. Securities and Exchange Commission.
1
2
and
3 State if
B.
31 .Single Audit ReportIf federal funds are used:
A. The parties shall comply with the single audit report requirements stipulated in 2CFR 200, Uniform Administrative Requirements, Cost Principles, and Audit
Requirements for Federal Awards.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 (ifapplicable) to TxDOT's Compliance Division, 125 East 1 lth Street, Austin, TX78701 or contact TxDOT’s Compliance Division by email at
sinqleaudits@txdot.gov.
If expenditures are less than the threshold during the Local Government's fiscalyear, the Local Government must submit a statement to TxDOT's Compliance
B.
C,
AFA LongGen Page 14 of 15 Rev. 12/10/2021
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AFA ID1 8/DAL ZOOO04149District #
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Division as follows: "We did not meet the $ expenditure threshold andtherefore, are not required to have a single audit performed for FY ."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 theAgreement, unless otherwise amended or the Project has been formally closedout and no charges have been incurred within the current fiscal year.
D.
32.Signatory Warranty
Each signatory warrants that the signatory has necessary authority to execute thisAgreement on behalf of the entity represented.
Each party is signing this Agreement on the date stated under that party’s signature.
IETEXAS
S+LWAH
THE L.QCAHWERNMENT
SNH Huqlq
Kenneth Stewart
Typed or Printed Name Sara HensleyTyped or Printed Name
Director of Contract Services
Typed or Printed Title City Manager
Typed or Printed Title
5/30/2023
Date 5/26/2023Date
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TxDOTFR 008144-045
DAIDistricM18/DAL
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ATTACHMENT ALOCATION MAP SHOWING PROJECT
crrY OF DENTON, TEXASFUNDING SOURCE: GREEN RIBBON FUNDING AWARD FY2023
PROJECT LIMITS
ON US HWY 377
LIMITS FROM: ROSELAWN DRIVE
LIMITS TO: COUNTRY CLUB ROAD
AFA LongGen
Page 1 of 1 Attachment A
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CSJ #O081 44445
18/DAL ZOOO041 49AFA IDDistrict #
11400Code Chart 64 #
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ATTACHMENT BPROJECT BUDGET
Costs will be allocated based on 80% Federal funding and 20% State funding until the federalfunding reaches the maximum obligated amount. The Local Government will then beresponsible for 100% of the costs.
)WIlIIe @m Imo;ost II I lllParticipationmeBTn @t TIE/ mmmoM/ moDFMTmrm-Wi–ITConstruction (by Local
Government)
Subtolb5@ ;420,000.00 ;336,000.00 ;84,000.00 ;0
Environmental DirectState Costs
Right of Way DirectState Costs
Engineering DirectState Costs
Utility Direct StateCosts
Construction Direct
State Costs
r
4.77%mT
;5,250.00 atn/
IRoTo
/1%
1%
)%
;0
;0
;0
;0
;0
;0
;0
;5,250.00 RT/
;5,250.00 El@Tm
;5,250.00 1%
1%
1%
;0
;0
;0
@ Tom/
;21 ,000.00 Fm:WHo
;20,034.00
;482,034.00
mm/ mIn/
;336,000.00 >146,034.01
Initial payment by the Local Government to the State: $0.00Payment by the Local Government to the State before construction: $0.00Estimated total payment by the Local Government to the State $0.00
This is an estimate. The final amount of Local Government participation will be based on actualcosts
Page 1 of 1AFA LongGen Attachment B
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1 8/DAL AFA ID ZOOO041 49District #
Code Chart 64 #11400
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ATTACHMENT C
RESOLUTION, ORDINANCE, OR COMMISSIONERS COURT ORDER
ORDrNANCENO. 23.988
AN ORDINANCE OF THE CITY OF DENTON AUTIIORJZING TIIE CITY MANAGER TOEXECUTE AN ADVANCED FUNDING AGREEMENT (APA) AND LANDSC'APEMANTENANCE AGREEMENT (LMA) \WITH THE TEXAS DEPARTMENT OFTRANSPOR'l'A’I’ION FOR 'I IIL PURPOSE OF PROVIDING LANDSCAPE+ SCENICFN}IANCEMENT AND IRRIGATION ON US HIGHWAY 377 FROM ROSELAWN DRIVE-ro colnqlltY CLUB ROAD (1-HE ••AGREEb4EXT’); AUTHORIZING THE CITYW\NA(jER 1 O PERFORM Al,I, OBI ,IGAI'iONS OF TIIE CITY UNI)LR THEAGREEMENTS INCLUDING TIIE EXPENDITURE OF FUNDS; AND PROVIDING ANEFFECTIVE DAIE.
\V}{EREAS. the Green Riblx>n is a prI>8nm established by lhc Texas State Lzgistalunin 1999 to allocate funding for larElsuping and other enhancement activities in Tcxas
Department of Transportation {-TXD(n’) districts that have airqbulity non-nnainment and rwarnon-attainment counties. of which Denron County is one, with the program goal to establish trees
and plants in state highway rights.of-\\ny to hclp miligatc thc cITccts of air pollution; and
WIIEREAS, tIe City provided concept designs to I'XWI' to upgrade the landscapingand sccnic enhancement including tree, shrubs, groundcovns, and irrigation on US Hwy 377from Roscla\\b Drive to Country Club Road; and
\\’HEREAS. the City of Denton has been awarded funds for this project pursuant to the
Orun Ribtx)n Program; and
WIll iRI iAS, the funding for this pmjut will be paid by the City using general fundswith reimbursement from T’XI)OT each month during the project. TIle City is not nquircd to
fund costs during the construction phase. The design of the project was paid by the City; and
\VI{EREAS. once approved by TXDQT, the City of Denton will bid and mwuge the
contracted installation of an improvements. Upon completion of landscape improvements, theCity of Denton Parks and Recreation Department (PAR£)) will be responsible for regularmaintcnancc of the improvements and
WIIEREAS. the proposed Advanced Funding Agrwment (AFA) and LandscapeMaintenance Agrccmcnt (•'l,\IA") 8fTirms TXDOT will provide funding for the construction
and installation for all landscape materials including trees. plants, irrigation. and concrete mowstripsi, and after installation. the City will assume all maintcn&ncc responsibilities and the
financial obligation attendant to the maintcn aIIce; and
WIIEREAS, City staff reviewed the AFA and 1.MA required by I'XDOT and is of lhc
opinion they should be approved; and
\\'}IEREAS, the City Council finds it is in thc public interest to approve the AFA and1,MA; NOW. THEREFORE.
AFA LongGen Page 1 of 1 Attachment C
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C SJ# 008104445
ZOOO041 49AFA ID18/DALDistrict #
11 400Code Chart 64 #
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THE eouNC IL OF PIE CITY OF DENTON ll£kEBY ORDAINS:
SEeTloN I. The findings md ncitations contained in the preamble of this ordinance
are incorporated herein by reference u Inn and as if fully set forth in the My of this ordinanw,
SE€'TIQN 2. nIe City Manager, or dcsignec, is hcnby authorized to execute on behalf
of On City the AFA and LMA with TXFX)T, drafts of which are aU8chtd hereto as Exhibit ''AHarxl made a jull hereof for at1 pwpows, and a sutwtantla]ly similar agreements as may berequired by TXIX>T will tn signed by th eity Manager or design%.
SEC'flON }. The City Manager, or ck:signcc, is further atatndzed to carry out allduties and obligations to tx pafwmed by the City under th: Agncmcnts, ineluding, but
not limited to, the expenditure of funds.
SECI'IQF+ 4, Tbis ordinance shall tx:came ctTcctivc immediately upon its passage and
approval.
;;'mT::3HTi31H\In”“"'”ma=:,£:,;j;w£’i:,Emd qp==d,i'Ll:IT:
folk)u{ng vote [_L - DJ:
Aye Nay Abit8in Alina t
Ma)or Gerard llul$Kth:
WitH B)nl District 1 :
J
./
/-L./
L/I==n•#=WWqnnPl••BFO
Brian Beck, District 2:
Paul Melaer. District 3:
Joe llollan& i)istrict 4:
Bntxlon Chau McGee, At Large Place 5:
Chris Watt\ At large Place 6:
PASSED AND APPXOVEn this the IC+" d,yor nay//A . 2023
GERARD llUDSPI ill I, MAYOR
PaBe Z of 3
AFA LongGen Attachment C
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ArrEST:
JESUS SAI .A7AR, WIERM CITY SECRETARY sir III II JIF DE
APPIIOVED AS ID LEGAI ? FOlkVI:MACK kEINWAND, cri-Y A’l"l-ORNEY : frI:1: b] : :
BY:
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