2000-226FILE REFERENCE FORM 2000-226
Additional File Exists
Additional File Contains Records Not Public, According to the Public Records Act
X Other
Date Initials
Due to age of agreement and turn over in Transportation Department,
unable to obtain copy of signature page from TxDot. 7/22/05 JW
ORDINANCE NO ADOD- ~?,94
AN ORDINANCE AUTHORIZING THE MAYOR OR CITY MANAGER TO ENTER INTO
A MASTER AGREEMENT GOVERNING LOCAL TRANSPORTATION PROJECT
ADVANCE FUNDING WITH THE STATE OF TEXAS, ACTING BY AND THROUGH THE
TEXAS DEPARTMENT OF TRANSPORTATION, AND PROVIDING AN EFFECTIVE
DATE
WHEREAS, the State of Texas acting by and through the Texas Department of
Transportation (the "State") has promulgated a Master Agreement Governing Local
Transportation Protect Advance Funding, a copy of which is attached hereto and made a part
hereof by reference as Exhibit "A" (the "Master Agreement"), and
WHEREAS, the City Council deems it in the public interest to enter into the Master
Agreement with the State, NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY ORDAINS
SECTION 1 The Mayor, or in lus absence, the Mayor Pro Tem, or the City Manager or
his designee is authorized to execute the Master Agreement on behalf of the City of Denton,
Texas, substantially in the form of the Master Agreement attached as Exhibit "A"
SECTION 2 This ordinance shall become effective immediately upon its passage and
approval
PASSED AND APPROVED tins the a°fh day of 12000
EULINE BROCK, MAYOR
ATTEST
JENNIFER WALTERS, CITY SECRETARY
BY
APP OVED AS TO LEGAL FORM
HERBERT L PROUTY, CITY ATTORNEY
BY
\\CH LGL\V0L1\SHARED\DEPT\LGL\0ur Documents\Ordmences\00\TzDot Master] Agreement doc
STATE OF TEXAS §
COUNTY OF TRAVIS §
MASTER AGREEMENT
GOVERNING
LOCAL TRANSPORTATION PROJECT
ADVANCE FUNDING AGREEMENTS
THIS MASTER AGREEMENT is made by and between the State of Texas, acting by and
through the Texas Department of Transportation, hereinafter called the "State", and the Local
Governments as identified on the signature pages and by each Attachment B (attached
resolutions), acting by and through its duly authorized officials, hereinafter called the "Local
Governments "
WITNESSETH
WHEREAS, the Intermodal Surface Transportation and Efficiency Act of 1991 (ISTEA) and the
Transportation Equity Act for the 2151 Century (TEA-21) codified under Title 23 U S C Section
101 et seq , authorize transportation programs to meet the challenges of protecting and enhancing
communities and the natural environment and advancing the nation's economic growth and
competitiveness, and
WHEREAS, ISTEA and TEA-21 establish federally funded programs for transportation
improvements to implement its public purposes, and
WHEREAS, Title 23 U S C Section 134 requires that Metropolitan Planning Organizations and
the States' Transportation Agencies to develop transportation plans and programs for urbanized
areas of the State, and
WHEREAS, the Texas Transportation Code, Sections 201 103 and 222 052 establish that the
State shall design, construct and operate a system of highways in cooperation with Local
Governments, and
WHEREAS, federal and state laws require Local Governments to meet certain contract
standards relating to the management and administration of State and federal funds, and
WHEREAS, the governing terms of this Master Agreement will provide for efficient and
effective contract administration of the types of Local Project Advance Funding Agreements
(LPAFA) listed in Attachment A, and,
WHEREAS, the Texas Government Code, Section 441 189 allows any state record to be created
or stored electronically in accordance with standards and procedures adopted as administrative
rules of the Texas State Library and Archives Commission, and
WHEREAS, the Governing Bodies of the Local Governments have approved entering into this
Master Agreement by resolution or ordinance attached hereto and made a part of this Master
Agreement as Attachment B
I
t
NOW, THEREFORE, in consideration of the premises and of the mutual covenants and
agreements of the parties hereto, to be by them respectively kept and performed as hereinafter set
forth, it is agreed as follows
AGREEMENT
1. Period of the Agreements
This Master Agreement and the Local Project Advance Funding Agreements (LPAFAs) subject
to this Master Agreement become effective when signed by the last party whose sigmng makes
the respective agreements fully executed This Master Agreement shall remain in effect until
terminated as provided in Article 2
2. Termination of this Master Agreement
This agreement may be terminated by any of the following conditions
a by mutual written consent and agreement of all parties
b by any party with 90 days written notice If this Master Agreement is terminated under this
clause, all existing, fully executed LPAFAs made under this Master Agreement shall
automatically incorporate all the provisions of this Master Agreement
c by either party, upon the failure of the other party to fulfill the obligations as set forth in this
Master Agreement
3. Termination of the Local Project Advance Funding Agreement (LPAFA)
An LPAFA 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, or,
b because of a breach of this Master Agreement or a breach of the Local Project Advance
Funding Agreement Any cost incurred due to a breach of contract shall be paid by the
breaching party
c After the PS&E the Local Governments may elect not to provide the funding and the project
does not proceed because of insufficient funds, the Local Governments agree to reimburse
the State for its reasonable actual costs incurred during the project
d conditions for termination as specified in the LPAFA are fulfilled
4 Amendments
a Amendment of this Master Agreement by Notice with Mutual Consent The State may
notify the Local Governments of changes in this Master Agreement resulting from
changes in federal or state laws or rules or regulations and these changes in the Master
Agreement shall be incorporated into this agreement unless the State is notified by the
Local Governments within 60 days From time to time, the State may issue numbered
restatements of this MAFA to wholly reflect its amendments
2
b This Master Agreement may be amended due to changes in the agreement or the
responsibilities of the parties Such amendment must be made through a mutually agreed
upon, written amendment that is executed by the parties
c The notice of amendment and the amendment to this Master Agreement may be in an
electronic form to the extent permitted by law and after a prior written consent of the
parties to this agreement is made
d Amendments to the LPAFAs due to changes in the character of the work or terms of the
agreement, or responsibilities of the parties relating to a specific project governed under
this Master Agreement may be enacted through a mutually agreed upon, written
amendment to the LPAFA
5. 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
6. Utilities
If the required right of way encroaches upon existing utilities and the proposed project requires
their adjustment, removal or relocation, the Local Governments will be responsible for
determining the scope of utility work and notify the appropriate utility company to schedule
adjustments, unless specified otherwise in a specific LPAFA under other provisions of this
MAFA
The Local Governments shall be responsible for the adjustment, removal or relocation of utility
facilities in accordance with applicable State laws, regulations, rules, policies and procedures
This includes, but is not limited to 43 TAC §15 55 relating to Construction Cost Participation,
43 TAC §2121 relating to State Participation in Relocation, Adjustment, and/or Removal of
Utilities, and, 43 TAC§ 2131 et seq relating to Utility Accommodation The Local
Governments will be responsible for all costs associated with additional adjustment, removal, or
relocation during the construction of the project, unless this work is provided by the owners of
the utility facilities
a per agreement,
b per all applicable statutes or rules, or,
c as specified otherwise in a LPAFA
Prior to letting a construction contract for a local project, a utility certification must be made
available to the State upon request stating that all utilities needing to be adjusted for completion
of the construction activity have been adjusted
7 Environmental Assessment and Mitigation
Development of a local 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
3
a The Local Governments are responsible for the identification and assessment of any
environmental problems associated with the development of a local project governed by this
agreement, unless provided for otherwise in the specific project agreement
b The Local Governments are responsible for the cost of any environmental problem's
mitigation and remediation, unless provided for otherwise in the specific project agreement
c The Local Governments are responsible for providing any public meetings or public hearings
required for development of the environmental assessment, unless provided for otherwise in
the specific project agreement
d The Local Governments shall provide the State with written certification from appropriate
regulatory agency(ies) that identified environmental problems have been remediated, unless
provided for otherwise in the specific project agreement
8. Compliance with Texas Accessibility Standards and ADA
All parties to this agreement shall ensure that the plans for and the construction of all projects
subject to this Master Agreement are in compliance with the Texas Accessibility Standards
(TAS) issued by the Texas Department of Licensing and Regulation, under the Architectural
Barriers Act, Article 9102, Texas Civil Statutes The TAS establishes minimum accessibility
requirements to be consistent with minimum accessibility requirements of the Americans with
Disabilities Act (P L 101-336) (ADA)
94 Architectural and Engineering Services
Any party to this contract may have responsibility for effecting the performance of architectural
and engineering services Or, the parties may agree to be individually responsible for portions of
this work The LPAFA shall define the party responsible for performance of this work
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 thereto, unless specifically stated otherwise
in the LPAFA and approved by the State
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 services 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
10 Construction Responsibilities
a Unless specifically provided for otherwise in the LPAFA, the State shall advertise for
construction bids, issue bid proposals, receives and tabulate the bids and award and
administer the contract for construction of the Project Adnumstration of the contract
includes the responsibility for construction engineering and for issuance of any change
4
orders, supplemental agreements, amendments, or additional work orders, which may become
necessary subsequent to the award of the construction contract In order to ensure federal
funding eligibility, projects must be authorized by the State prior to advertising for
construction
b All contract letting and award procedures must be approved by the State prior to letting and
award of the construction contract, whether the construction contract is awarded by the State
or by the Local Governments
c All contract change order review and approval procedures must be approved by the State
prior to start of construction
d Upon completion of the Project, the party constructing the project will issue and sign a
"Notification of Completion" acknowledging the Project's construction completion
e 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, Part B
11. Project Maintenance
The Local Governments shall be responsible for maintenance of locally owned roads after
completion of the work and the State shall be responsible for maintenance of state highway
system after completion of the work if the work was on the state highway system, unless
otherwise provided for in the LPAFA or other prior existing maintenance agreement with the
Local Governments
12. Local Project Sources and Uses of Funds
a The total estimated cost of the Project will be clearly stated in the local project agreement
The expected cash contributions from the federal, state, Local Governments or other parties
will be clearly stated The State will pay for only those project costs that have been approved
by the Texas Transportation Commission
b A project cost estimate showing the estimated contributions in kind or in cash for each major
area of the local project will be provided in the LPAFA This project cost estimate will show
how necessary resources for completing the project will be provided by mayor cost categories
These categories 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
c 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 Federal share of the project will be
reimbursed to the Local Governments on a cost basis
d The Local Governments will be responsible for all non-federal or non-State participation
costs associated with the Project, including any overruns in excess of the approved local
project budget, unless otherwise provided for in the LPAFA
5
e Following execution of the LPAFA, but prior to the performance of any review work by the
State, the Local Governments will remit a check or warrant made payable to the "Texas
Department of Transportation " in the amount specified in the LPAFA The Local
Governments will pay at a minimum its funding share for the estimated cost of preliminary
engineering for the project, unless otherwise provided for in the LPAFA
f Sixty (60) days prior to the date set for receipt of the construction bids, the Local
Governments shall remit its remaining financial share for the State's estimated construction
oversight and construction costs, unless otherwise provided for in the LPAFA
g In the event the State determines that additional funding is required by the Local
Governments at any time during the Project, the State will notify the Local Governments in
writing The Local Governments will make payment to the State within thirty (30) days from
receipt of the State's written notification, unless otherwise provided for in the LPAFA
h Upon completion of the Project, the State will perform an audit of the local project costs
Any funds due to the Local Governments, the State, or the Federal government will be
promptly paid by the owing party
i The State will not pay interest on any funds provided by the Local Governments
I If a waiver has been granted, the State will not charge the Local Governments for the indirect
costs the State incurs on the local project, unless this agreement is terminated at the request
of the Local Governments prior to completion of the project
k If the local project has been approved for a "fixed price" or an "incremental payment" non-
standard funding or payment arrangement under 43 TAC §15 52, the LPAFA will clearly
state the amount of the fixed price or the incremental payment schedule
1 The Texas Comptroller of Public Accounts has detemmned that certain counties qualify as
Economically Disadvantaged Counties in comparison to other counties in the state as below
average per capita property value, and below average per capita income, and above average
unemployment, for certain years The LPAFA will reflect adjustments to the standard
financing arrangement based on this designation
in The State will not execute the contract for the construction of a local project until the
required funding has been made available by the Local Governments in accordance with the
LPAFA
13 Right of Way and Real Property
The Local Governments are responsible for the provision and acquisition of any needed right of
way or real property, unless the State agrees to participate in the provision of right of way under
the procedures described herein as parts A and B of this provision
Title to right of way and other related real property must be acceptable to the State before funds
may be expended for the improvement of the right of way or real property
If the Local Governments are the owners of any part of a project site under an LPAFA, the Local
Governments shall permit the State or its authorized representative access to occupy the site to
perform all activities required to execute the work under the LPAFA
All parties to this agreement will comply with and assume the costs for compliance with all the
requirements of Title II and Title III of the Uniform Relocation Assistance and Real Property
6
Acquisition Policies Act of 1970, Title 42 US CA Section 4601 et seq , including those
provisions relating to incidental expenses incurred by the property owners in conveying the real
property to the Local Governments, 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
If the Local Governments purchase right of way for a Local Governments street, title will be
acquired in the name of the Local Governments in accordance with applicable laws unless
specifically stated otherwise in the LPAFA and approved by the State
If the State participates in the purchase of right of way for the state, it will be under the processes
established in the following paragraphs A or B, and the selected option shall be specified in the
LPAFA
A Purchase By the State for the State
The State will assume responsibility for acquisition of all necessary right of way for the highway
project The Local Governments will voluntarily contribute to the State funds equal to ten (10)
percent of the cost of the right of way for the proper development and construction of the state
highway system and shall transmit to the State a warrant or check payable to the Texas
Department of Transportation when notified by the State of the estimated cost of the right of
way If the amount is found insufficient to pay the Local Governments' obligation, then the
Local Governments, upon request of the State, will supplement this amount in such amount as
requested by the State Upon completion of the highway project and in the event the total
amount paid by the Local Governments are more than ten (10) percent of the actual cost of the
right of way, any excess amount will be returned to the Local Governments Cost of the right of
way by the State shall mean the total value of compensation paid to owners, including but not
limited to utility owners, for their property interests either through negotiations or eminent
domain proceedings
B Purchase by the Local Governments for the State
Purchase Right of way purchases shall be a joint effort of the State and the Local Governments
Acquisition of right of way shall be in accordance with the terms of this agreement and in
accordance with applicable Federal and State laws governing the acquisition policies for
acquiring real property The State agrees to reimburse the Local Governments for its share of the
cost of such right of way providing acquisition when it has been authorized to proceed by the
State
Location Surveys and Preparation of Right of Way Data The State, without cost to the Local
Governments, will do the necessary preliminary engineering and title investigation in order to
supply to the Local Governments the data and instruments necessary to obtain acceptable title to
the desired right of way
7
Determination of Right of Way Values The Local Governments agree to make a determination of
property values for each right of way parcel by methods acceptable to the Local Governments
and to submit to the State's District Office a tabulation of the values so determined, signed by the
appropriate Local Governments representative Such 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 arriving at all determned values Such
work will be performed by the Local Governments at its expense without cost participation by
the State The State will review the data submitted and may base its reimbursement on the values
which are determined by this review The State, however, reserves the right to perform at its own
expense any additional investigation deemed necessary, including supplemental appraisal work
by State employees or by employment of fee appraisers, all as may be necessary for
detemnnation of values to constitute the basis for State reimbursement If at any stage of the
project development it is determined by mutual-agreement between the State and Local
Governments that the requirement for the Local Governments to submit to the State property
value determinations for any part of the required right of way should be waived, the Local
Governments will make appropriate written notice to the State of such waiver, such notice to be
acknowledged in writing by the State In instances of such waiver, the State by its due processes
and at its own expense will make a determination of values to constitute the basis for State
reimbursement
Negotiations The State will notify the Local Governments as soon as possible as to the State's
determination of value Negotiation and settlement with the property owner will be the
responsibility of the Local Governments without participation by the State, however, the Local
Governments will notify the State immediately prior to closing the transaction so that a current
title investigation may be made to determine if there has been any change in the title The Local
Governments will deliver properly executed instruments of conveyance which together with any
curative instruments found to be necessary as a result of the State's title investigation will be
properly vest title in the State for each right of way parcel involved The costs incidental to
negotiation and the costs of recording the right of way instruments will be the responsibility of
the Local Governments The cost of title investigation will be the responsibility of the State
Condemnation Condemnation proceedings will be initiated at a time selected by the Local
Governments and will be the Local Governments' responsibility at its own expense except as
hereinafter indicated The Local Governments will obtain from the State without cost current title
information and engineering data at the time condemnation are to be indicated Except as
hereinafter set forth the Local Governments will concurrently file condemnation proceedings and
a notice of lis pendens for each case in the name of the State, and in each case so filed the
judgment of the court will decree title to the property condemned to the State The Local
Governments may, as set forth herein under "Excess Takings" and where it is determined to be
necessary, enter condemnation proceedings in its own name Property acquired in the Local
Governments' name for the State must comply with requirements set forth in the engineering data
and title investigation previously furnished to the Local Governments by the State at such time as
the Local Governments conveys said property to the State Court Costs, Costs of Special
Commissioners' Hearings and Appraisal Expense Court costs and costs of Special
8
Commissioners' hearings assessed against the State or Local Governments in condemnation
proceedings conducted on behalf of the State and fees incident thereto will be paid by the Local
Governments Such costs and fees, with the exception of recording fees, will be eligible for
ninety (90) percent State reimbursement under the established reimbursement procedure provided
such costs and fees are eligible for payment by the State under existing law Where the Local
Governments uses the State's appraisers employed on a fee basis in Special Commissioners'
hearings or subsequent appeals, the cost of the appraiser for updating the report, for preparing
new reports, preparing for court testimony and appearing in court to testify in support of the
appraisal will be paid direct by the Local Governments, but will be eligible for ninety (90)
percent State reimbursement under established procedure provided prior approval for such
appraiser has been obtained from the State The fee paid the appraiser by the Local Governments
shall be in accordance with the fee schedule set forth in the appraiser's contract for appraisal
services with the State
Excess Takings In the event the Local Governments desires to acquire land in excess of that
requested by the State for right of way purposes, the State's cost participation will be limited to
the property needed for its purposes If the Local Governments elects to acquire the entire
property, including the excess taking, by a single instrument of conveyance or in one eminent
domain proceeding, the property involved will be acquired in the name of the Local
Governments and that portion requested by the State for right of way will be separately conveyed
to,the State by the Local Governments When acquired by negotiation, the State's participation
will be based on the State's approved value of that part of the property requested for right of way
purposes, provided that such approved value does not exceed actual payment made by the Local
Governments When acquired by condemnation, the State's participation will be in the
proportionate part of the final judgment amount computed on the basis of the relationship of the
State's approved value to the State's predetermined value for the whole property
Improvements Property owners will be afforded an opportunity in the negotiations to retain any
or all of their improvements in the right of way taking In anticipation of the owner desiring to
retain improvements, the State's approved value will include the amounts by which the upper
limit of State participation will be reduced for the retention It is further agreed that the upper
limit for the State's participation in the Local Governments' cost for an improved parcel will be
reduced as shown in the State's approved value where the owner retains an improvement which is
to be moved by either the Local Governments or the owner In the event improvements, which
are, in whole or part, a part of the right of way taking are not retained by the owner, title is to be
secured in the name of the State
The State will participate in the acquisition of a structure severed by the right of way line if the
part of the house, building or similar structure which lies outside the right of way cannot be
reconstructed adequately or there is nothing but salvage left, provided that the State's value is
established on this basis and provided that title to the entire structure is taken in the name of the
State The State shall dispose of all improvements acquired The net revenue derived by the State
from the disposition of any improvements sold through the General Services Commission will be
credited to the cost of the right of way procured and shared with the Local Governments
9
Relocation of Utilities on Acquired State Right of Way If the required right of way encroaches
upon an existing utility located on its own right of way and the proposed highway construction
requires the adjustment, removal or relocation of the utility facility, the State will establish the
necessity for the utility work State participation in the cost of making the necessary change, less
any resulting increase in the value to the utility and less any salvage value obtainable, may be
obtained by either the "actual cost" or "lump sum" procedures Reimbursement under "actual
cost" will be made subsequent to the Local Governments' certification that the work has been
completed and will be made in an amount equal to ninety (90) percent of the eligible items of
cost as paid to the utility owner The "lump sum" procedure requires that the State establishes the
eligibility of the utility work and enters into a three-party agreement, with the owners of the
utility facilities and the Local Governments, which sets forth the exact lump sum amount of
reimbursement, based on a prior appraisal The utility will be reimbursed by the Local
Governments after proper certification by the utility that the work has been done, said
reimbursement to be the basis of the prior lump sum agreement The State will reimburse the
Local Governments in an amount equal to ninety (90) percent of the firm commitment as paid to
the utility owner The foregoing is subject to the provision that the individual lump sum
approved value shall not exceed $20,000, except as specifically approved by the State In those
cases where a single operation is estimated to exceed $20,000 the transaction will be brought to
the attention of the State for determination of proper handling based upon the circumstances
involved Such utility firm commitment will be an appropriate item of right of way The
adjustment, removal or relocation of any utility line on publicly owned right of way by sufferance
or permit will not be eligible for State reimbursement The term "utility" under this agreement
shall include publicly, privately and cooperatively owned utilities
Fencing Requirements The Local Governments may either pay the property owner for existing
right of way fences based on the value such fences contribute to the part taken and damages for
an unfenced condition resulting from the right of way taking, in which case the estimated value
of such right of way fences and such damages will be included in the recommended value and the
approved value, or the Local Governments may do the fencing on the property owner's remaining
property
Where the Local Governments perform right of way fencing as a part of the total right of way
consideration, neither the value of existing right of way fences nor damages for an unfenced
condition will be included in the recommended value or the approved value State participation
in the Local Governments' cost of constructing right of way fencing on the property owner's
remainder may be based on either the actual cost of the fencing or on a predetermined lump sum
amount The State will be given credit for any salvaged fencing material and will not participate
in any overhead costs of the Local Governments
If State participation is to be requested on the lump sum basis, the State and the Local
Governments will reach an agreement prior to the actual accomplishment of the work as to the
necessity, eligibility and a firm commitment as to the cost of the entire fencing work to be
performed The foregoing is subject to the provision that the lump sum approved cost shall not
exceed $20,000, except as specifically approved by the State In the event the cost of the fencing
is estimated to exceed $20,000, the transaction will be brought to the attention of the State for
determination of proper handling based upon the circumstances involved
10
Reimbursement The State will reimburse the Local Governments for right of way acquired after
the date of this agreement in amount not to exceed ninety (90) percent of the cost of the right of
way acquired in accordance with the terms and provisions of this agreement The State's
reimbursement will be in the amount of ninety (90) percent of the State's predetermined value of
each parcel, or the net cost thereof, whichever is the lesser amount
If condemnation is necessary and title is taken as set forth herein under the section entitled
"Condemnation," the participation by the State shall be based on the final judgment, conditioned
upon the State having been notified in writing prior to the filing of such suit and upon prompt
notice being given as to all action taken therein The State shall have the right to become a party
to the suit at any time for all purposes, including the right of appeal at any stage of the
proceedings All other items of cost shall be borne by the State and the Local Governments as
provided in other sections of this agreement If a lump sum fencing or utility adjustment
agreement has been executed, the State will reimburse the Local Governments in the amount of
ninety (90) percent of the predetermined lump sum cost of the right of way fencing or utility
adjustment
If the Local Governments prefer not to execute a lump sum agreement for either fencing or utility
adjustments, the State will reimburse on the actual cost of such fencing or adjustments The
Local Governments' requests for reimbursement will be supported by a breakdown of the labor,
materials and equipment used
General It is understood that the terms of this agreement shall apply to new right of way
authorized and requested by the State which is needed and not yet dedicated, in use or previously
acquired in the name of the State or Local Governments for highway, street or road purposes
This agreement shall also apply, with regard to any existing right of way, to outstanding property
interests not previously acquired and to eligible utility adjustments not previously made, as
authorized and requested by the State
It is further understood that if unusual circumstances develop in the right of way acquisition
which are not clearly covered by the terms of this agreement, such unusual circumstances or
problems will be resolved by mutual agreement between the State and the Local Governments
14 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 as noted below for the State and
as noted on the signature page for the Local Governments
State Texas Department of Transportation
Attention District Engineer
4777 E Highway 80
Mesquite, Texas 75150-6643
11
All notices shall be deemed given on the date so delivered or so deposited in the mail, unless
otherwise provided herein Either party may change the above address by sending written notice
of the change to the other party Either party may request in writing that such notices shall
delivered personally or by certified U S mail and such request shall be honored and carved out
by the other party
15 Legal Construction
In case one or more of the provisions contained in this agreement shall for any reason be held
invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall
not affect any other provisions and this agreement shall be construed as if it did not contain the
invalid, illegal or unenforceable provision
16. Responsibilities of the Parties
The State and the Local Governments 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
17 Ownership of Documents
Upon completion or termination of this agreement, all documents prepared by the State shall
remain the property of the State All data prepared under this agreement shall be made available
to the State without restriction or limitation on their further use All documents produced or
approved or otherwise created by the Local Governments shall be transmitted to the State in the
form of photocopy reproduction on a monthly basis as required by the State The originals shall
remain the property of the Local Governments
18. Compliance with Laws
The parties shall comply with all Federal, State, and Local laws, statutes, ordinances, rules and
regulations, and the orders and decrees of any courts or administrative bodies or tribunals in any
manner affecting the performance of this agreement When required, the Local Governments
shall furnish the State with satisfactory proof of this compliance
19. Sole Agreement
This agreement constitutes the sole and only agreement between the parties and supersedes any
prior understandings or written or oral agreements respecting the agreement's subject matter
20 Cost Principles
In order to be reimbursed with federal funds, the parties shall comply with the Cost Principles
established in OMB Circular A-87 that specify that all reimbursed costs are allowable, reasonable
and allocable to the Project
12
21. Procurement and Property Management Standards
The parties shall adhere to the procurement standards established in Title 49 CFR §18 36 and
with the property management standard established in Title 49 CFR §18 32
22. Inspection of Books and Records
The parties to the 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 Governments, and, if federally funded, the Federal
Highway Administration (FHWA), and the U S Office of the Inspector General, or their duly
authorized representatives for review and inspection at its office during the contract period and
for four (4) years from the date of completion of work defined under this contract or until any
impending litigation, or claims are resolved Additionally, the State, the Local Governments, 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
23. OMB Audit Requirements
The parties shall comply with the requirements of the Single Audit Act of 1984, P L 98-502,
ensuring that the single audit report includes the coverage stipulated in OMB Circular No A-128
through August 31, 2000 and stipulated in OMB Circular A-133 after August 31, 2000
24. Civil Rights Compliance
The Local Governments shall comply with the regulations of the Department of Transportation
as they relate to nondiscrimination (49 CFR Chapter 21 and 23 CFR §710 405(B)), and
Executive Order 11246 titled "Equal Employment Opportunity," as amended by Executive Order
11375 and supplemented in the Department of Labor Regulations (41 CFR Part 60)
25 Disadvantaged Business Enterprise Program Requirements
The parties shall comply with the Disadvantaged/Mmonty Business Enterprise Program
requirements established in 49 CFR Part 26
26 Debarment Certifications
The parties are prohibited from making any award at any tier to any party that is debarred or
suspended or otherwise excluded from or ineligible for participation in Federal Assistance
Programs under Executive Order 12549, "Debarment and Suspension " The parties to this
contract shall require any party to a subcontract or purchase order awarded under this contract to
certify its eligibility to receive Federal funds and, when requested by the State, to furnish a copy
of the certification in accordance with Title 49 CFR Part 29 (Debarment and Suspension)
13
27. Lobbying Certification
In executing this Master Agreement, the signatories certify to the best of his or her knowledge
and belief, that
a No federal appropriated funds have been paid or will be paid by or on behalf of the parties to
any person for influencing or attempting to influence an officer or employee of any federal
agency, a Member of Congress, an officer or employee of Congress, or an employee of a
Member of Congress in connection with the awarding of any federal contract, the making of
any federal grant, the making of any federal loan, the entering into of any cooperative
agreement, and the extension, continuation, renewal, amendment, or modification of any
federal contract, grant, loan, or cooperative agreement
b If any funds other than federal appropriated funds have been paid or will be paid to any
person for influencing or attempting to influence an officer or employee of any agency, a
Member of 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 Governments shall complete and submit the federal Standard Form-
LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions
c The parties shall require that the language of this certification be included in the award
documents for all subawards at all tiers (including subcontracts, subgrants, and contracts
under grants, loans, and cooperative agreements) and that all subrecipients shall certify and
disclose accordingly
By executing an LPAFA under this Master Agreement, the parties reaffirm this lobbying
certification with respect to the individual projects and reaffirm this certification of the material
representation of facts upon which reliance will be made 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
28 Signatory Warranty
The signatories to this agreement warrant that each has the authority to enter into this agreement
on behalf of the party represented
14
IN TESTIMONY HEREOF, the parties hereto have caused these presents to be executed in
duplicate counterparts
THE LOCAL GOVERNMENT:
By &et'k
Title
Maor
Date
D O
TEST:
.L.LaaL-
ty Cler
Assistant
NOTICE I1~RMATION:
Local Government
Attention
Address
APPROVED AS TO CONTENT:
Director of Public Works
THE STATE OF TEXAS
Executed for the Executive Director and approved for the Texas Transportation Commission for
the purpose and effect of activating and/or carrying out the orders, established policies or work
programs heretofore approved and authorized by the Texas Transportation Commission
By
Date
Jennifer D Soldano, Director
Contract Services Office
15
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STATE, OF TEXAS §
COUNTY OF TRAVIS §
CSJ XXX-XX-XXXX
Project Name
Funding Category STP-MM
LOCAL TRANSPORTATION PROJECT
ADVANCE FUNDING AGREEMENT
For an STP-Metropolitan Mobility Proiect
THIS Local Project Advance Funding Agreement (LPAFA) is made by and between the State
of Texas, acting by and through the Texas Department of Transportation, hereinafter called the
"State", and the City of Dallas, acting by and through its duly authorized officials, hereinafter
called the "Local Government "
WITNESSETH
WHEREAS, a Master Agreement between the Local Government and the State has been
adopted and states the general terms and conditions for transportation projects developed through
this LPAFA, and,
WHEREAS, the Texas Transportation Commission passed Minute Order that
provides for the development of, and funding for, the project describe herein, and,
WHEREAS, the Governing Body of the Local Government has approved entering into this
LPAFA by resolution or ordinance dated , which is attached hereto and
made a part hereof as Attachment A for development of the specific project which is identified in
the location map shown as Attachment B
NOW, THEREFORE, in consideration of the premises and of the mutual covenants and
agreements of the parties hereto, to be by them respectively kept and performed as hereinafter set
forth, it is agreed as follows
AGREEMENT
1 The period of this LPAFA is as stated in the Master Agreement, without exception
2. Termination of this LPAFA shall be under the conditions as stated in the Master
Agreement, without exception.
3 Amendments to this LPAFA shall be made as described in the Master Agreement,
without exception.
4 Scope of Work
The scope of work for this LPAFA is described as
5. Right of Way and Real Property shall be the responsibility of the Local Government, as
stated in the Master Agreement, without exception
6. Adjustment of utilities will be provided by the Local Government as required and as
stated in the Master Agreement without exception
7. Environmental Assessment and Mitigation will be carried out as stated in the Master
Agreement, without exception.
8. Compliance with Texas Accessibility Standards and ADA will be as stated in the Master
Agreement, without exception.
9. Architectural and Engineering Services will be provided by the State, as stated in the
Master Agreement, without exception. The State is responsible for performance of any
required architectural or preliminary engineering work The Local Government may review
and comment on the work as required to accomplish the public purposes of the Local
Government The State will cooperate fully with the Local Government in accomplishing
these local public purposes to the degree permitted by State and Federal law
10 Construction Responsibilities will be carried out by the State, as stated in the Master
Agreement, without exception.
11. Project Maintenance will be undertaken as provided for in the Master Agreement,
without exception.
12. Local Project Sources and Uses of Funds
a Project Cost Estimate A Project Cost Estimate is provided in Attachment C
b A Source of Funds estimate is also provided in Attachment C Attachment C shows the
percentage and absolute dollar amount to be contributed to the project by federal, state, and
local sources
c The Local Government is responsible for all non-federal and non-state funding, including all
project cost overruns, unless provided for through amendment of this agreement
d After execution of this LPAFA, but prior to the performance of any work by the State, the
Local Government will rermt a check or warrant made payable to the "Texas Department of
Transportation " in the amount specified in Attachment C as the local contribution for
Preliminary Engineerng The Local Government will pay at a mimmum its funding share for
this estimated cost of preliminary engineering as stated in the Local Project Sources and Uses
of Funds provision of the Master Agreement
e 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 costs and any others costs owing
f In the event the State determines that additional funding is required by the Local Government
at any time during the development of the Project, the State will notify the Local Government
in writing The Local Government will make payment to the State within thirty (30) days
from receipt of the State's written notification
13 Incorporation of Master Agreement Provisions
This LPAFA incorporates all of the governing provisions of the Master Advance Funding
Agreement (MAFA) in effect on the date of final execution of this LPAFA, unless such MAFA
provision is specifically excepted herein
14 Signatory Warranty
The signatories to this agreement warrant that each has the authority to enter into this agreement
on behalf of the party represented
IN TESTIMONY HEREOF, the parties hereto have caused these presents to be executed in
duplicate counterparts
THE LOCAL GOVERNMENT
By
(Signature)
Title
Date
THE STATE OF TEXAS
Executed for the Executive Director and approved for the Texas Transportation Commmssion for
the purpose and effect of activating and/or carrying out the orders, established policies or work
programs heretofore approved and authorized by the Texas Transportation Commission
By
Date
Jennifer D Soldano, Director
Contract Services Office
3
ATTACHMENT A
RESOLUTION OF LOCAL GOVERNMENT
APPROVING THIS LPAFA
ATTACHMENT B
PROJECT LOCATION MAP
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