2010-017FILE REFERENCE FORM 2010-017
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Amendment to Advance Funding Agreement -
Ordinance No. 20-617 4/21/20 JR
ORDINANCE NO.-2010-017
AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AUTHORIZING THE CITY
MANAGER TO EXECUTE AN ADVANCE FUNDING AGREEMENT FOR A PROJECT
USING FUNDS HELD IN THE STATE HIGHWAY .121 SUBACCOUNT IN THE AMOUNT
OF $56,670,566.00 BETWEEN THE CITY OF DENTON, TEXAS AND THE STATE OF
TEXAS FOR THE WIDENING AND CONSTRUCTION -OF MAYHILL ROAD FROM ITS
INTERSECTION WITH COLORADO BOULEVARD NORTH TO U.S. HIGHWAY 380
(UNIVERSITY DRIVE); AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR;
AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, the "Mayhill Road Project" designated by the State of Texas, acting by and
through the Texas Department of Transportation ("TXDOT"), from IH 35E north to U.S.
Highway 380; and the City of Denton is ready to commence design and construction on the local
highway improvement project generally described as "Mayhill Road CSJ: 0918-46-246";
provided that the City of Denton, Texas enters into an agreement with TXDOT, which agreement
provides for the receipt and use of funds held in the State Highway 121 subaccount; and
WHEREAS, the Advance Funding Agreement which is to be entered into by the City and
TXDOT respecting the improvements of Mayhill Road that will, at all times, remain in the
ownership of the City of Denton, provides that TXDOT will -provide eighty percent (80%) of the
project funding in the amount of $45,336,453.00 and the City will provide 20% of the project
funding as local match in the amount of $11,334,113.00; the total estimated amount of this
Advanced Funding Contract is in the sum of $56,670,566.00; and
WHEREAS, the said Agreement provides for the Actual Cost Agreement; the Schedule
of Payments for the City of Denton, subject to final audit; and the Work Responsibilities of the
City regarding the Mayhill Road Project; and
WHEREAS, the City Council having considered the Advanced Funding Agreement that
is required by TXDOT, and considering the importance of the Mayhill Road Project to the
citizens of Denton, Texas, is of the opinion that it should approve the above-referenced
Advanced Funding Agreement by and between the City and TXDOT; NOW THEREFORE
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The preamble to this ordinance is incorporated by reference herewith, and
is made a part of this Ordinance.
SECTION 2. The City Council authorizes, and in all things approves the execution of
the Advanced Funding Agreement- by and between the City of Denton,- Texas and TXDOT, by
George C. Campbell, City Manager; a copy of which Advanced Funding Agreement is attached
hereto as Exhibit "A" and is -incorporated by reference herein; said Agreement being in the
amount of $56,670,566.00.
1
SECTION 3. The City Manager is hereby authorized by the City Council to expend all
funds and to make such payments as are necessary under the Advanced Funding Agreement that
is attached hereto and incorporated herein by reference.
SECTION 4. This ordinance shall become effective immediately upon its passage and
approval.
_ PASSED AND APPROVED this the ~lt day of 2010.
MARK A-BURRO S, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
By:
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
By:
2
CSJ; 0918-46-246, Mayhill Road. From iH 35 East To US 380 district # 18; Code Chart 64 #11400
Funding Category: RTR ASH 121 Subaccount Funds}
STATE OF TEXAS §
COUNTY OF TRAVIS §
ADVANCE FUNDING AGREEMENT
FnRA PROJECT USING FUNDS HELD IN THE
STATE HIGHWAY SUBACCOUNT
CITY STREET DEVELOPMENT
OTf~System Project
THIS AGREEMENT the Agreement} is between the State of Texas, acting by and through the Texas Department of Transportation the State}, and City of Denton Local
Government}, collectively, the "Parties,"
WITNESSETH
WHEREAS, the State has received money from the North Texas Tollway Authority for the
right to develop, finance, design, construct, operate, and maintain the SH 121 toll project
from Business SH 121 in Denton County to US 75 in Collin County ~"SH 121 payments"};
and
WHEREAS, pursuant to Transportation Code, 228.006 the State shall authorize the use
of surplus revenue of a toll project for a transportation project, highway project, or air
quality project within the district of the Texas Department of Transportation in which any
part of the toll project is located; pursuant to Transportation Code, §2284012 the State has
created a separate subaccount in the state highway fund to hold such money
ASH 121 Subaccount}, and the State shall hold such money in trust for the benefit of the
region in which a project is located, and may assign the responsibility for allocating money
in the subaccountto a metropolitan planning organization MPG}; and
WHEREAS, in Minute order 110727, dated October 26, Zoo6, the Texas Transportation
Commission the "Commission"} approved a memorandum of understanding ~MGU} with
the Regional Transportation Council RTC}, which is the transportation policy council of
the North Central Texas Council of Governments ~NCTCGG} and a federally designated MPG, concerning in part the administration, sharing, and use of surplus toll
revenue in the
region; under the MGU the RTC shall select projects to be financed using surplus revenue
from a toll project, subject to Commission concurrence; and
WHEREAS, the Local Government has requested money from the SH 121 Subaccount
for: Mayhill Road from IH 35 East to US 380 ~0918~46~246} Project}; the RTC has
selected the Project to be funded from the SH 121 Subaccount; and the Commission
concurred in the selection and authorized the expenditure of money Minute Grder .No.
111854, dated June 25, 2099;
WHEREAS, the Local Government is a political subdivision and governmental entity by
statutory definition; and
Page 1 of 9
r CSJ~ 0916-46-246, Mayh!!! Road: From !H 35 East To US 380 a ,
District # 18; Code Chart 64 #11400
F~ndir~g Category: RTR ASH 121 Subaccount Funds
WHEREAS, Government Code, Chapter 191, and Transportation Code, §241.2D9 authorize the State to contract with municipalities and political subdivisions
to perform
governmental functions and services; and
WHEREAS, NCTCaG and the RTC should have authority to assist the Local
Government's implementation of financial reporting and environmental review related to a
transportation project funded by the State using money from the SH 121 Subaccount,
NOW, THEREFORE, the Parties agree as follows:
AGREEMENT
Article Time Period Covered
i
This Agreement becomes effective when signed by the last party whose signing makes
the agreement fully executed, and the State and the Local Government will consider it to
be in full force and effect until the Project described herein has been completed and accepted by all parties or unless terminated, as hereinafter provided.
Article Project Funding
The State will pay money to the Local Government from the SH 121 Subaccount in the
amounts specified in Attachment A, Payment Provision and Work Responsibilities. Except
as provided in the next succeeding sentence, the payments will begin no later than upon
the later of the following: i1 } fifteen days after the Legislative Budget Board and the
Governor each approve the expenditure, in accordance with Rider 25 of the Texas
Department of Transportation bill pattern in Senate Bill 1, SOt~ Legislature; and thirty
days after execution of this Agreement, If Attachment A shows that the RTC has allocated
~g } payments to the Local Government for a certain expenditure e.. construction for the
Project in a certain fiscal year, then the State will make the payment from the SH 121
Subaccount to the Local Government for such expenditure no later than 3U days after the
beginning of the designated Fiscal Year. A Fiscal Year begins on September 1 for
example, the 2499 Fiscal Year began September 1, 2908},
i
Article 3. Separate Account; interest
All funds paid to the Local Government shall be deposited into a separate account, and
interest earned on the funds shall be kept in the account. Interest earned may be used
only for the purposes specified in Attachment A, Payment Provision and Wark
Responsibilities, and only after obtaining the written approval of the RTC, The Local
Government's use of interest earned will not count towards the 2D percent local match
requirement set forth in this Agreement.
Article 4~ Shortfalls in Funding '
The Local Government shall apply all funds to the scope of work of the Project described
in Attachment A, Payment Provisions and Work Responsibilities, and to none other. All
cost overruns are the responsibility of the Local Government. However, should the funds
Page 2 of 9
'CSJ: 0918-46-~46, Mayhill Road: From IH 35 East Ta US 380
District # 18; Code Chart 64 #11400 Funding Category; RTR ASH 121 Subaccount Funds
be insufficient to complete the work contemplated by the Project, the Local Governmen#
may make further request to the RTC and the State for additional funds from the SH 121
Subaccount. Funds may be increased only through an amendment of this Agreement. [f
the SH 121 Subaccount does not contain sufficient funds to cover the balance necessary
to complete the Project, or if the RTC or the Commission decline the request far any other
reason, then the Local Government shall be responsible for any shortfall.
Article 5. Return of Project Funding
The Local Government shall reimburse the State for any funds paid under this Agreement
that are not expended in accordance with the requirements of this Agreement. Upon
completion of the Project, the Local Government will issue a signed "Notification of
Completion" document to the State acknowledging the Project's completion, if at project
end, or upon termination of this Agreement, excess SH 121 Subaccount funds exist,
including interest earned, such funds shall be returned to the State within 30 days. Except
for funds the Local Government has already expended in accordance with the Agreement,
the Local Government shall return to the State the funds paid under this Agreement
together with any interest earned on the funds if the Project is not completed within 10
years of execution of the Agreement.
Article fi, Local Match
The Local Government shall be responsible for the required 20 percent local match as
described in Attachment A, Payment Provisions and Work Responsibilities. , The costs
incurred by the Local Government prior to the execution of this Agreement will ~ count
towards the 2D percent local match requirement provided such costs are for RTC-
approved phases as shaven in Attachment A. At the end of each Fiscal Year the Local
Government's cumulative expenditures of Local match funds must be no less than 2D
percent of the cumulative SH 121 Funds received by the Local Government up to that date
under the Agreement, and must be for the uses approved for~payments of SH 121 Funds
up to that date as specified in Attachment A, Payment Provision and vlJork
Responsibilities,
Article 1. Procurement and Contracting Process
The State may review the Local Government's procurement of professional services for
engineering, surveying, and right of way acquisition, letting of constructian contracts, and
conduct of constructian management and inspection. The Local Government shall certify
compliance with applicable state law and regulations, and with Local laws, regulations,
rules, policies, and procedures, The Local Government shall maintain a copy of the
certification in the project files.
Article S. Design Standards and Construction Specifications
The Local Government shall implement the Project using the Local Government's
established desi n standards, construction s ecifications, rocurement rocesses, and g p p P
construction management and inspection procedures.
Page 3 of 9
r
CSJ: 0918-46246, Mayhill Road: From IH 35 East Ta US 380 District # 18; Code Chart 64 #11404
Funding Category; RTR ASH 121 Subaccount Funds
Article 9. Right of Way
Except for right of way owned by the State or to be acquired by the State according to the
plans of the Project as approved by the State, the Local Government shall acquire all
necessary right of way needed for the Project, Right of way acquisition is an eligible cost
for reimbursement provided such cost is an RTC-approved phase as shown in Attachment
A.
Article ~ o~ Utilities
The Local Government shall be responsible for the adjustment, removal, or relocation of
utility facilities in accordance with State laws and regulations and local laws, regulations,
rules, policies, and procedures applicable to the Local Government. The Local
Government must obtain advance approval for any variance from established procedures.
The RTC-approved costs for utilities as shown in Attachment A, if any, shall be used to
adjust, remove, or relocate utility facilities only to the extent the utility has a property right
as shown in a recorded deed or easement, ~
Article Compliance with Laws; Environmental Review and Public involvement
Each Party shall comply with all applicable federal, state, and local laws, statutes,
ordinances, rules and regulations, and the orders and decrees of any courts,
administrative bodies or tribunals affecting the performance of this Agreement as
applicable to it. Ilvhen required, the Local Government shall furnish the State with
satisfactory proof of compliance. As provided in 43 T.A.C. Section 2.1~b}~3}, the
department's environmental review requirements do not apply to the Project because the department is funding the Project solely with money held in a project subaccount
created
under Transportation Code, Section 228.012. However, the local government shall ensure
that the Project complies with all applicable environmental review and public involvement
requirements applicable to the Local Government under state and federal law in
connection with the Project. The Local Government shall obtain the opinion of legal
counsel showing the Local Government's environmental review and public involvement for
the Project complies with state law and regulations, and with local laws, regulations, rules,
policies, and procedures applicable to the Local Government. The Local Government
shall maintain a copy of the certification in the project files.
r Article 12. Com liance with Texas Accessibili Standards and ADA
p tY
The Local Government shall ensure that the plans for and the construction of the Project
is in compliance with the Texas Accessibility Standards ETAS} issued by the Texas
Department of Licensing and Regulation, under the Architectural Barriers Act, Article
9102, Texas Civil Statutes. The TAS establishes minimum accessibility requirements ~to be
consistent with minimum accessibility requirements of the Americans with Disabilities Act
~P. L.101-336}.
a
Article ~3. Work outside the Project Side
The Local Government shall provide both the necessary right of way and any other
property interests needed for the Project.
Page 4 of 9
CSJ: 098-46-246, Mayhill Road; From IH 36 East To US 380
nistrict # ~ 8; Code Chart 64 #1 ~ 400 Funding Category; RTR ASH ~ 2~ 5ubacco~nt Funds
Article ~4. Insurance
[f 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 ofway. 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.
Article 15. Audit
Within 120 days of completion of the Project, the Local Government shall perform an audit
of the costs of the Project. Any funds due to the State will be promptly paid by the Local
Government,
Article 1 Br Maintenance
The Local Government shall be responsible for maintenance of the Project.
Article Responsibilities of the Parties
a. The State and the Local Government agree that neither party is an agent, servant,
or emplo ee of the other art and each art a rees it is res onsible for its Y p Y p y g p
individual acts and deeds, as well as the acts and deeds of its contractors,
employees, representatives, and agents,
b. To the extent permitted by law, the Local Government agrees to indemnify and
save harmless the State, its agents and employees from all suits, actions or claims
and from all liability and damages resulting from any and all injuries or lama es g
sustained by any person or property in consequence of any neglect, error, or
omission in the performance of the design, construction, maintenance or operation
of the Project by the Local Government, its contractors}, subcontractors}, agents
and employees, and from any claims or amounts arising or recovered under the
"Workers' Compensation laws"; the Texas Tort Claims Act, Chapter 101, Texas
Givil Practice and Remedies Code or an other a licable laws or re } , y pp gulatlans, all
as from time to time may be amended.
c. The Parties expressly agree that the Project is not a joint venture or enterprise,
However, if a court should find that the Parties are engaged in a joint venture or enterprise, then the Local Government, to the extent provided by law, agrees to
pay
any liability adjudicated against the State for acts and deeds of the Local
Government, its employees or agents during the performance of the Project.
d. To the extent provided by law, the Local Government shall also indemnify and save
harmless the State from any and al[ expense, including, but not limited to,
attorney's fees which may be incurred by the State in litigation or otherwise
resisting said claim ar liabilities which may be imposed on the State as a result of .
such activities by the Local Government, its agents, or employees. {
Page 5 of 9
I CSJ. 098-46-246, Mayhill Road: From IH 35 East To U5 380 4
District # 18; Code Chart 64 ~ 400
Funding Category: RTR ~Si~ ~ 2~ Subaccount Funds
Article 18. Notices
All notices to either party by the other required under this Agreement shall be delivered
personally or sent by certified or U.S. mail, postage prepaid or sent by electronic mail,
electronic notice being permitted to the extent permitted by law but only after a separate
written consent of the parties}, addressed to such party at the following addresses:
Local Government. State=
City of Denton Texas Department of Transportation
Attn: City Engineer Attn: District Engineer
90~ -A Texas Street 4777 E. Highway 84
Denton, TX 7609 Dallas, Texas 75 54
All notices shall be deemed iven on the date so delivered or so a I' g d posited in the mail,
unless otherwise provided herein. Either party may change the above address by sending
written notice of the change to the other party. Either party may request in writing that such
notices shall be delivered personally or by certified U,S. mail and such request shall be
honored and carried out by the other party.
Article 19. Right of Access
If the Local Government is the owner or otherwise controls access to any part of site of the
Project, the Local Government shall permit the State or its authorized representative access to the site to perform any activities authorized in this Agreement.
Article 24. Project Documents
Upon completion or termination of this Agreement, all documents prepared by the State
shaft remain the property of the State. All data prepared under this Agreement by the
Local Government shall be made available to the State without restriction or limitation on
their further use, All documents produced or approved or otherwise created by the Local
Government shall be transmitted to the State in the form of photocopy reproduction as
required by the State. The originals shall remain the property of the Local Government. At E
the request of the State, the Local Government shall submit any information required by
the State in the format directed by the State. I l
Article Z~. Inspection of Books and Records
The Local Government shall keep a complete and accurate record to document the
performance of the work on the Project and to expedite any audit that might be conducted,
The Local Government shall maintain records sufficient to document that funds provided
under the Agreement were expended ,only for eligible costs that were incurred in
accordance with a[1 applicable state and local laws, rules, policies, and procedures, and in
accordance with~all applicable rovisions of this A reement. The Local Government shall p g
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 for review and inspection during the contract period and for four ~4} years from
Page 6 of 9
GSJ; 0918-46-246, Mayhill Road: From IH 35 East To US 380
District # 18; Gade Chart 64 #11400 Funding Category. RTR ASH 121 Subaccaunt Fur~ds~
the date of completion ofwork defined under this Agreement or until any pending litigation
or claims are resofved, whichever is later, Additionally, the State shall have access to all
governmental records that are directly applicable to this Agreement for the purpose of
making audits, examinations, excerpts, and transcriptions.
Article NCTCGG
Acceptance of funds directly under the Agreement or indirectly through a subcontract
under the Agreement acts as acceptance of the authority of NCTCGG and RTC to assist
the Lora! Government's implementation of financial reporting and environmental review
concerning the Project. The Local Government shall provide to NCTCGG on a monthly
basis a report of expenses, including the Local Government's expenditure of local match
funds. The report shall list separately the expenditures by project phase as shown in
Attachment A, including but not limited to engineering, environmental review, right of way
acquisition, and construction, The report shall also describe interest earned on money
from the SH 121 Subaccount, including the interest rate, interest earned during the month,
and cumulative interest earned. The report shall further describe the status of developing
the Project. Not less than 60 days before the environmental review document is submitted to the governing body of the Local Government for final approval, the Local Government
shaft submit the document to NCTCGG far review and comment. NCTCGG may provide
the Local Government technical assistance on the environmental review of the Project as
mutual) a reed between NCTCGG and the Local Government. Yg
Article 23. State Auditor
The state auditor may conduct an audit or investigation of any entity receiving funds from
the State directly under the Agreement or indirectly through a subcontract under the
AgreementR Acceptance of funds directly under the 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 ar audit.
E i
Article 24. Amendments
By mutual written consent of the Parties, this contract may be amended prior to its
expiration.
Article ~5. Termination
The Agreement may be terminated in the following manner: `
• by mutual written agreement and consent of both parties;
• b either art u on the failure of the other art to fulfill the obli ations set forth
Y p Y P P Y g I herein, after a 45 day period to cure after receiving written notice of non~compfiance;
• by the State if the Local Government does not let the construction contract for
the Project within one year after the State first provides 121 Funds for construction as
shown in Attachment A, Payment Provision and Ullork Responsibilities;
• by the State if the Local Government does not complete the Project within ten
Page l of 9
CSJ; 0918-46-246, Mayhill Road; Fram IH 35 East To US 380 District # 18; Code Chart 64 #11400 ,
Funding Category; RTR ASH 121 Subaccaur~t Funds
years after the effective date of the Agreement;
Article 2fi. Work by Debarred Person
The Local Government shall not contract with any person that is suspended, debarred,
proposed for debarment, declared ineligible, or voluntarily excluded from covered
transactions by any federal agency orthat is debarred or suspended by the State.
Article Z7. Sole A reement g
The A reement constitutes the sole and onl a reement between the arties and g y g p
supersedes any prior understandings or written or oral agreements respecting the Agreement's subject matter.
Article Z8. Successors and Ass! ns g
The State and the Local Government each binds itself, its successors, executors, assigns,
and administrators to the other party to this agreement and to the successors, executors,
assigns, and administrators of such other party in respect to all covenants of this
agreement. The Local Government may assign its interests under the Agreement only
with the written approval of the State.
Article Z9. Remedies
The Agreement shall not be considered as specifying an exclusive remedy for a breach of
the Agreement. All remedies existing at law or in equity are available to either Party and
are cumulative.
1 Article 30. legal Construction
If a provision of the Agreement shall be held invalid, ille al or unenforceable, such g
invalidity, illegality or unenforceabi[ity shall nat affect any other provision, and the
Agreement shall be construed as if it did not contain the invalid, illegal or unenforceable
provision. r
Article 3~. Signatory Warranty E
I E
The signatories to this agreement warrant that each has the authority to enter into this
agreement on behalf of the party they represent,
k
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Page S of 9
CSJ: ~9~~-~6•~4~, Mayhil! Road; Fram iH 35 ~as# T~ ~S 380
p'ss~riot # ~8; Co~~ chart ~4 #~~~Oa Fun~ing category: RTR ASH Subaccaunt Funds
~N V~IITNESa ~~ERE~E, TAE STATE ANA THE .CAI. ~4~E~NMENT have
executed duplicate counterparts to effectuate this Agreement.
THE STATE CAF TEXAS
Executed for the Executive Director end approved for the Teas Transportation
GommissiQn for the purpose and effect of activating andfor carrying out the orders,
established policies or ~vork programs heretofore approved and authorized by the Texas
Transportation Comrnisslan~
Date / ~ ~ ~
Janice Mul nix
Director, Contract Services Section, General Services pivis
THE ~~GA~ ~vE~NM~NT
Glt of Denton y
I
~ / E Date ~ ~
Y ~earge C. Campbell .
Glty Manager }
ATTEST;
JENNIFER ~vALTE~S, CITY SECRETARY i
S ; ' ~ ,
Y
APPROVED AS TC~ DECAL ~aRM;
ANITA BURGESS, CITY ATT~I~NEY
r I
~~I; k
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Page 9 of 9
CSJ; 0918-46-246, Mayhill Road; From IH 35 East To US 384
District # 18; Code Chart 64 #11490 Funding Category; RTR ASH 121 Subaccount Funds
ATTACHMENTA
Payment Provision and'Work Respons~b~l~t~es
For CSJ o918-40-246, the State will pay $45,33G,453~0o from the SH ~ 2~ Subaccount for
Mayhill Road from 1H 35 East to US 38o to expand a two ~2} rural road to a four X47 lane
divided urban arterial.
In accordance with the allocation of funds approved by the RTC, and concurred with by
the Texas Transportation Commission, the State will make the payments for the following
work in the following Fiscal Years:
Fiscal Expenditure.
Year
Preliminary . Right of Way Utilities Construction .
En ineerin Ac uisition
X009 $o,oo $o.oo $o.oo $o.oo
zoo o $4,303,3z7.oo $o.oo $o.oo $o.oo
~o~~ o $ .oo $9,358,808.00 $467,943,00 $o.oo
~o~ 2 $o.oo $o.oo $o,oo $31, ~ 40,315.00
2013 $o.oo $o,oo $o,oo $o,oo
The Local Government shall pay a required local match of 1,334,113.OO,
Upon completion of the Project, the Local Government will issue a signed "Notification of
Completion" document to the State, The notice shall certify that the Project f~as been
completed, all necessary inspections have been conducted, and the Project is open to
traffic.
Attachment A