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Contract 45514 (2)
RkEerPIT MIRA: CY &©° CSJ: 0902-48-883 Project Name: South Main Urban Villaae Sustainable Development Proiect District # 02-Fort Worth Code Chart 64# 15000 and 61920 Funding Category: RTR (SH 121 Subaccount) STATE OF TEXAS COUNTY OF TRAVIS FUNDING AGREEMENT FOR PROJECTS USING FUNDS HELD IN THE STATE HIGHWAY 121 SUBACCOUNT- SUSTAINADLE DEVELOPMENT INFRASTRUCTURE Off -System Projects This Funding Agreement, hereinafter referred to as the "Agreement", is made and entered into by and between the State of Texas, hereinafter referred to as the "STATE", the City of Fort Worth hereinafter referred to as the "LOCAL GOVERNMENT", and the North Central Texas Council of Governments, hereinafter referred to as "NCTCOG". The STATE, LOCAL GOVERNMENT, and NCTCOG may each be referred to as a "Party", and may be collectively referred to as "Parties' to this Agreement. 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 §228 012 the STATE has created a separate subaccount in the state highway fund to hold such money (SH 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 subaccount to a metropolitan planning organization; and, WHEREAS, in Minute Order 110727, dated October 26, 2006, the Texas Department of Transportation Commission (the "Commission") approved a memorandum of understanding (MOU) with the Regional Transportation Council (RTC) concerning in part the administration, sharing, and use of surplus toll revenue in the region; under the MOU the RTC shall select projects to be financed using surplus revenue from a toll project, subject to Commission concurrence; and, WHEREAS, on June 3, 2010 the RTC approved staff recommendations for selected projects for implementation of the Sustainable Development Program in the Dallas -Fort Worth Metropolitan Area for the implementation of transportation improvements related to sustainable development projects and local sustainable development planning programs; and, CEIVED APR Page 1 of 18 CSJ: 0902-48-883 Project Name South Main Urban Village Sustainable Development Project District # 02-Fort Worth Code Chart 64# 15000 and 61920 Funding Category: RTR (SH121 Subaccount) WHEREAS, in Minute Order 113102, dated April 26, 2012, the Commission concurred with RTC's selection of projects for the Sustainable Development Program, and, WHEREAS, on April 16, 2013, through The RTC approved modification of the South Main Urban Village project was changed from Congestion Mitigation Air Quality Program funds to Regional Toll Revenue (RTR) funds; and, WHEREAS, on April 16, 2013, the RTC approved the 2013-2016 TIP; and, WHEREAS, in Minute Order 113789, dated November 21, 2013, the Commission concurred with the RTC's approval to revise the funding for this property; and, WHEREAS, the NCTCOG has been designated as the Metropolitan Planning Organization for the Dallas -Fort Worth Metropolitan Area by the Governor of Texas in accordance with federal law and acts as RTC's fiduciary agent; and, WHEREAS, the Government Code, Chapter 791, and Transportation Code §201.209 authorize the State to contract with municipalities and political subdivisions to perform governmental functions and services; and, WHEREAS, the Local Government is a political subdivision and governmental entity by statutory definition; and, NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the parties agree as follows: Article 1.0 Purpose. The purpose of this Agreement is to set out the roles and responsibilities of the STATE, LOCAL GOVERNMENT, and NCTCOG to implement the Sustainable Development PROJECT. 1.1 The STATE agrees to provide funding for the PROJECT awarded by the RTC and concurred by the Commission; on the terms and conditions set forth herein. 1.2 The LOCAL GOVERNMENT agrees to implement the PROJECT and provide necessary local match according to the terms and conditions set forth herein. 1.3 The NCTCOG agrees to coordinate with the STATE and LOCAL GOVERNMENT on the implementation of the PROJECT, including reviewing eligible costs and recommending to the STATE payment of such costs, if consistent with the terms and conditions set forth herein. Page 2 of 18 CSJ: 0902-48-883 P roject Name. South Main Urban Villaae S ustainable Development Project District # 02-Fort Worth Code Chart 64# 15000 and 61920 Funding Category: RTR (SH121 Subaccount) Article 2.0 Definitions. For the purpose of this Agreement the following words and phrases shall be defined as follows: CALL FOR PROJECTS: shall mean the request for Sustainable Development Project applications issued by the RTC on March 23, 2009. OVERALL PROJECT: shall mean the entire project as applied for in the Call for Projects, including the funded portion of the PROJECT and any additional improvements funded by the City or a private sector through local sources. Evidence of significant progress toward completion of the OVERALL PROJECT shall be demonstrated by the LOCAL GOVERNMENT submitting a building permit for a mixed use development. P ROJECT: shall mean the project as funded under this Agreement and as further defined by the map included as Attachment A and the scope of work included as Attachment B. P ROJECT BUDGET: shall mean the budget or cost identifying all costs associated with and for the implementation of the PROJECT included in Attachment B Article 3.0 Scope. The LOCAL GOVERNMENT shall implement the PROJECT as described in Attachment B and in the Supporting Documentation as provided for in Article 11.1. Failure to complete the PROJECT may require the LOCAL GOVERNMENT to return funds received from the STATE for any expenses previously reimbursed within thirty (30) days. Any cost overruns are the responsibility of the LOCAL GOVERNMENT. Any modifications to the scope of work must be agreed to in advance and in writing by NCTCOG. Article 4.0 Project Award. The PROJECT award for this Agreement is $3.000,000. The LOCAL GOVERNMENT agrees to return funds received under this Agreement for reimbursed activities where the LOCAL GOVERNMENT has failed to comply with the requirements set forth in this Agreement, including but not limited to: failure to complete the PROJECT as identified in Attachment B, failure to show significant progress toward completion of the OVERALL PROJECT, and/or failure to comply with reporting requirements prescribed in Article 11. 4.1 Match. The LOCAL GOVERNMENT shall be responsible for a local match of $750 000. The LOCAL GOVERNMENT shall document local match contribution in its requests for reimbursement. The LOCAL GOVERNMENT's contribution must be considered eligible expenses under this Agreement in order to constitute local match. Article 5.0 Notices. All notices to each 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: Page 3of18 STATE: CSJ: 0902-48-883 P roject Name. South Main Urban Village S ustainable Development Project District # 02-Fort Worth Code Chart 64# 15000 and 61920 Funding Category: RTR (SH121 Subaccount) Texas Department of Transportation Attention: Director of Contract Services General Services Division 125 East 11th Street Austin, Texas 78701 T: (214) 320-6100 F: (214) 320-4488 LOCAL GOVERNMENT: City of Fort Worth Attention: Comprehensive Planning Manager Enc Fladager, AICP P lanning and Development Department City of Fort Worth 1000 Throckmorton Street Fort Worth, TX 76102 T:(817) 392-8011 NCTCOG: N orth Central Texas Council of Governments Attention: Director of Transportation 616 Six Flags Drive P .O. Box 5888 Arlington, Texas 76005 T: (817) 695-9240 F: (817) 640-3028 All notices shall be deemed given on the date so delivered or so deposited in the mail, unless otherwise provided herein. Each 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 6.0 Term. Page 4 of 18 CSJ: 0902-48-883 Project Name. South Main Urban Village Sustainable Development Proiect District # 02-Fort Worth Code Chart 64# 15000 and 61920 Funding Category: RTR (SH121 Subaccount) 6.1 Agreement Time. This Agreement becomes effective when signed by the last party whose signing makes the Agreement fully executed. 6.2 Time of Performance. The LOCAL GOVERNMENT shall not commence performance of any portion of the PROJECT, nor incur any costs or obligations associated with those services, until the LOCAL GOVERNMENT has received written authorization from NCTCOG, in the form of a pre -award authorization or a notice to proceed. 6.3 Pre -Award Authorization. The LOCAL GOVERNMENT may obtain a pre -award authorization for approved cost not to exceed the twenty (20) percent local match contribution for the PROJECT. The costs incurred by the LOCAL GOVERNMENT prior to the execution of this Agreement may count towards the twenty (20) percent local match contribution provided such costs are for eligible expenses. Documentation of such expenditures must be provided to NCTCOG. Costs incurred prior to execution of an Agreement are at the risk of the LOCAL GOVERNMENT and is not the responsibility of NCTCOG or the STATE to reimburse in the event an Agreement is not executed and/or the PROJECT is not completed as defined in Article 3.0. NCTCOG will provide a copy of all pre -award authorizations to the Fort Worth District Engineer. 6.4 Limited/Full Notice to Proceed. A limited or full Notice to Proceed will be issued upon completion of a design and/or project review meeting, final execution of the Agreement and necessary Article 11.1 documentation. Any activities completed prior to the receipt of a Notice to Proceed will not be eligible for reimbursement, unless specifically approved in writing by the STATE or NCTCOG. NCTCOG will provide a copy of all limited/full Notices to Proceed to the Fort Worth District Engineer. 6.5 Project Schedule. NCTCOG may in its sole discretion terminate this Agreement if it concludes that the LOCAL GOVERNMENT has failed to begin the PROJECT by August 2015 or has not made significant progress towards the OVERALL PROJECT within the timeline identified in the Article 11.1 supporting documentation or by December 31, 2017, whichever occurs sooner. All changes to the schedule must be agreed to in writing by all three parties. 6.6 Agreement Term. This Agreement shall terminate at the completion of the OVERALL PROJECT. The PROJECT shall be considered complete upon NCTCOG's receipt of a Closeout Report as identified in Article 11.3. Page 5of18 CSJ: 0902-48-883 Project Name: South Main Urban Village Sustainable Development Proiect District # 02-Fort Worth Code Chart 64# 15000 and 61920 Funding Category: RTR (SH121 Subaccount) 6.7 Continuing Obligations. Termination of this Agreement does not invalidate any continuing obligations imposed by this Agreement. 6.8 Funding Availability. Any or all of the terms of this Agreement may be suspended or terminated in the event the STATE terminates funding for any reason. 6.9 Events of Default. In the event of a default of any terms or conditions set forth in this Agreement, The LOCAL GOVERNMENT shall repay any funds received from the STATE for implementation of this PROJECT within thirty (30) days. The LOCAL GOVERNMENT will be considered to be in default including but not limited to the following reasons: any material representation or warranty provided in reports or as part of this Agreement shall prove to be false, funds identified in the PROJECT BUDGET are used for purposes other than those stated in Attachment B, the LOCAL GOVERNMENT assigns or transfers the obligations set forth in this Agreement to a third party without prior written consent of the STATE and NCTCOG; the LOCAL GOVERNMENT fails to complete the PROJECT as required in Attachment B, or the LOCAL GOVERNMENT fails to cure a defect as outlined in Article 6.10. 6.10 Termination. Each party reserves the right to terminate this Agreement in whole or in part. Notice of termination must be provided in writing, shall set forth the reasons for termination, and shall provide for a minimum of forty-five (45) days to cure the defect. Termination is effective only in the event the party fails to cure the defect within the period stated in the termination notice including any written extensions. The Parties may terminate this Agreement at any time by mutual written concurrence. Article 7.0 Amendments 7.1 Sole Agreement. The Agreement constitutes the sole and only agreement between the parties and supersedes any prior understandings or written or oral agreements respecting the Agreements' subject matter. The LOCAL GOVERNMENT shall include all appropriate provisions of this Agreement in any subcontractor or developer awards to implement the Scope of work, including but not limited to Articles 9, 10, 11, and 12. 7.2 Severability. In the event any one or more of the provisions contained in this Agreement shall be for any reason held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceabihty shall not affect any other provision(s) hereof, and this Agreement shall be revised so as to cure such invalid, illegal, or unenforceable provision(s) to carry out as near as possible the original intent of the Parties. 7.3 Changed Circumstances. If future federal, State, or local statute ordinance, regulation, rule, or action render this Agreement, in whole or in part, illegal, invalid, unenforceable, or impractical, the Parties agree to delete and/or to modify such portions of the Agreement as are necessary to render it valid, enforceable, and/or practical. Each Page 6 of 18 CSJ: 0902-48-883 P roject Name. South Main Urban Village S ustainable Development Project District # 02-Fort Worth Code Chart 64# 15000 and 61920 Funding Category: RTR (SH121 Subaccount) section, paragraph, or provision of this Agreement shall be considered severable, and if, for any reason, any section, paragraph, or provision herein is determined to be invalid u nder current or future law, regulation or rule, such invalidity shall not impair the o peration of or otherwise affect the valid portions of this Agreement. 7.4 Amendments to Agreement. Modifications to this Agreement must be agreed to in writing. Article 8.0 Rights. 8.1 Authority. The LOCAL GOVERNMENT shall have no authority to act for or on behalf of the STATE or NCTCOG No other authority, power, use, or joint enterprise is granted or implied. The LOCAL GOVERNMENT may not incur any debts, obligations, expenses, or liabilities of any kind on behalf of the STATE or NCTCOG. 8.2 Assignment. Without the prior written consent of the STATE or NCTCOG, the LOCAL GOVERNMENT may not transfer or assign any rights or duties under or any interest in this Agreement. 8.3 Access. The LOCAL GOVERNMENT shall permit the STATE and/or NCTCOG, and their designee's access to the property at reasonable times during the time of performance. NCTCOG will notify the LOCAL GOVERNMENT of a desire to access the property and arrangements will be made as needed 8.4 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 approved as shown in Attachment B. 8.5 Maintenance. The LOCAL GOVERNMENT agrees to construct, own (or secure appropriate perpetual easement to protect the project from future activities of landowners), operate (as applicable), and maintain all facilities developed or improved pursuant to this Agreement. The STATE and NCTCOG shall in no way be responsible for the maintenance of the PROJECT. Article 9.0 Audits or Evaluations. 9.1 The LOCAL GOVERNMENT shall provide to the STATE and NCTCOG for its review, a copy of any audit received as a result of LOCAL GOVERNMENT policy or audits of federal and state governments relating to the expenditure of grant funds. Such audits shall include or be accompanied by any applicable audit management letter issued and applicable responses to the auditor's findings and recommendations. All audits shall be submitted to the STATE and NCTCOG within thirty (30) days of receipt of each issued report. Page 7 of 18 CSJ: 0902-48-883 P roject Name: South Main Urban Villaae S ustainable Development Project District # 02-Fort Worth Code Chart 64# 15000 and 61920 Funding Category: RTR (SH121 Subaccount) 9.2 The STATE and NCTCOG reserves the right to conduct financial and program monitoring of all awards to the LOCAL GOVERNMENT and to perform an audit of all records, related to this Agreement including but not limited to: contractor, developer, and/or other consultant Agreements related to the PROJECT. An audit by NCTCOG may encompass an examination of all financial transactions, all accounts and reports, as well as an evaluation of compliance with the terms and conditions of this Agreement. 9 3 STATE Audit. Within one hundred and twenty (120) days of completion of the PROJECT, the LOCAL GOVERNMENT shall perform an audit on PROJECT costs. Any funds due to STATE will be promptly paid by the LOCAL GOVERNMENT. 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 Agreement. 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 or audit. Article 10.0 Payments. 10.1 Conditions of Reimbursement. At regular milestones, but not more frequently than monthly, the STATE shall reimburse the LOCAL GOVERNMENT for eligible cost related to the PROJECT up to eighty (80) percent or $3.000,000 after review and recommendation from NCTCOG. The LOCAL GOVERNMENT shall provide reimbursement request to the NCTCOG for costs and expenses incurred in connection with the PROJECT. Each reimbursement request shall include: • an invoice from the LOCAL GOVERNMENT detailing cost incurred • progress reports • copies of contractor and supplier invoices who support the PROJECT • proof of payment to contractors and suppliers who support the PROJECT • certification of activities as provided for in Article 10.2 • other documentation requested by NCTCOG NCTCOG may deem a request for reimbursement incomplete if the data and/or documentation are incomplete or improper or if the LOCAL GOVERNMENT fails to submit necessary reports or provide other information requested by NCTCOG or the STATE under the terms of this Agreement. The NCTCOG may reject request for reimbursements which fail to demonstrate that costs are eligible for reimbursement and/or which fail to conform to the requirements of this Agreement. Final reimbursement shall not be made until the LOCAL GOVERNMENT provides a Closeout report for PROJECT activities as defined in Article 11 3 of this Agreement. Page 8of18 CSJ: 0902-48-883 Project Name: South Main Urban Village Sustainable Development Project Distract* 02-Fort Worth Code Chart 64# 15000 and 61920 Funding Category: RTR (SH121 Subaccount) 10.2 Certifications. The LOCAL GOVERNMENT shall implement the PROJECT using the LOCAL GOVERNMENT s established design standards construction specifications, procurement processes and construction management and inspection procedures As part of any reimbursement request, the LOCAL GOVERNMENT shall certify to the STATE and NCTCOG the project has followed all standards and procedures previously established by the LOCAL GOVERNMENT's governing body. Upon request, the LOCAL GOVERNMENT shall make available documentation to support performance reports including but not limited to: insurance certificates, performance or payment bonds, required licenses and permits, and reports submitted by contractors and/or the Developer(s). 10.3 Retainage. The LOCAL GOVERNMENT shall receive reimbursement from the STATE in the amount of costs claimed and certified on each invoice, subject to approval of claimed costs by NCTCOG Tess ten (10) percent retainage up to $375.000 10.4 Ineligible Expenses. Funds obligated under this Agreement shall only be used for construction aspects of the PROJECT. The LOCAL GOVERNMENT will not be reimbursed for ineligible expenses which include but are not limited to: construction or rehabilitation of private buildings, artwork, fountains, installation and/or rehabilitation and/or relocation of water and sewer lines, burying and/or relocating utilities parking garages, local roads that provide no connection to the main transportation network, earthwork necessary to raise proposed buildings out of the floodplain, roadway reconstruction, and other items not directly related to mobility. Expenditures such as staffing, maintenance of improvements, design and/or construction management fees, legal fees permitting, platting, travel, vehicles, lobbying, land acquisition unassociated with transportation improvements and/or land acquisition of condemned properties, advertising, billboards, consumables, and any other non -construction activities inconsistent with the intent of the Sustainable Development program are not eligible. 10.5 Eligible Expenses. Costs must be determined to be the reasonable, necessary, actual and eligible costs of conducting an approved activity in accordance with the PROJECT to be eligible for reimbursement as provided for in the approved in the Article 11.1 Supporting Documentation. 10.6 STATE Reimbursement. Reimbursement of expenditures related to this Agreement may begin no earlier than thirty (30) days after execution of this Agreement. The STATE will reimburse the LOCAL GOVERNMENT for expenditures in RTC approved cost categories, as detailed in Attachment B, upon review and recommendation by NCTCOG to the STATE that expenditures are eligible and necessary. The STATE shall pay the LOCAL GOVERNMENT within thirty (30) days of receiving NCTCOG's payment recommendation. 10 7 Cost Overruns. The LOCAL GOVERNMENT agrees to keep project cost within the approved PROJECT BUDGET and shall not be eligible for reimbursement of any cost Page 9 of 18 CSJ: 0902-48-883 P roject Name. South Main Urban Village S ustainable Development Protect District # 02-Fort Worth Code Chart 64# 15000 and 61920 Funding Category: RTR (SH121 Subaccount) overruns. Cost overruns are the sole responsibility of the LOCAL GOVERNMENT. The STATE and/or NCTCOG are not responsible for any costs other than as outlined herein. 10.8 Cost Underruns. Cost underruns may not be used for additional Scope activities without prior written consent of NCTCOG. 10.9 Availability of Funds. This Agreement and all claims, suits, or obligations arising under or related to this Agreement are subject to and limited to the receipt and availability of funding. If funding is not available due to a default this Agreement shall terminate. Article 11.0 Reporting Requirements All reports identified in this section shall be provided to NCTCOG in a format approved by NCTCOG. 11.1 The LOCAL GOVERNMENT shall provide a list of Supporting Documentation for the PROJECT and OVERALL PROJECT at agreed upon Phases throughout the PROJECT. The Phases provided for and approved by NCTCOG in this document will determine the milestones at which the LOCAL GOVERNMENT will receive reimbursement and items eligible for reimbursement. This Supporting Documentation shall be received prior to issuance of a Pre -Award Authorization or a Notice to Proceed and at a minimum should include: • supporting schedules • project description • project budget/reimbursable items • site plans and parcel maps • appraisal data • infrastructure improvement illustrations • details of right of way to be acquired, each with parcel information, photos, and maps (if applicable) • project photos, each with directional notations • private development phasing, acreage, and units 11.2 Milestone and Invoice Reporting. The LOCAL GOVERNMENT shall provide written progress reports of its actions under this Agreement at milestones as agreed upon in the Supporting Documentation identified in Article 11.1. Each progress report shall at a minimum include: • • • • • • • any actions relative to the PROJECT during the current phase percentage of work complete activities of work complete all approved project modifications updated photos, each with directional notations identification of work delays actions taken to mitigate delays status of the schedule and budget Page 10 of 18 CSJ: 0902 48 883 Project Name: South Main Urban ViIlaae Sustainable Development Project District # 02-Fort Worth Code Chart 64# 15000 and 61920 Funding Category: RTR (SH121 Subaccount) Milestone reports shall be included with each invoice submittal and sent to NCTCOG. 11.3 Closeout Report. The LOCAL GOVERNMENT shall prepare a closeout report to document actual project costs, final program activities of the PROJECT, and documentation of significant progress towards OVERALL PROJECT completion by evidence of a budding permit or other approved document, to NCTCOG. This report shall be provided to NCTCOG no later than sixty (60) days from the completion of the PROJECT. Payment of the retainage is contingent upon completion of the closeout report 11.4 OVERALL PROJECT Closeout. The LOCAL GOVERNMENT shall prepare a status report to update activities on the OVERALL PROJECT no later than three (3) years after execution of this Agreement. 12.0 Assurances. 12.1 Interest of Public Officials. No member, officer, or employee of the public body or of a local public body during his tenure or for one (1) year thereafter shall have any interest, direct or indirect, in this Agreement or the proceeds thereof 12.2 Noncollusion. The LOCAL GOVERNMENT warrants that it has not employed or retained any company or person, other than a bona fide employee working for it, to solicit or secure this Agreement, and that it has not paid or agreed to pay any company or person, other than a bona fide employee any fee, commission, percentage, brokerage fee, gift or any other consideration contingent upon or resulting from the award or making of this Agreement. If the LOCAL GOVERNMENT breaches or violates this warranty, the STATE and/or NCTCOG shall have the right to annul this Agreement without liability or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover the full amount of such fee, commission, brokerage fee, gift, or contingent fee. 12.3 Debarment/Suspension. The LOCAL GOVERNMENT is prohibited from making any award or permitting any award at any tier to any party which is debarred or suspended or otherwise excluded from or ineligible for participation in federal assistance programs under Executive Order 12549, Debarment and Suspension. The LOCAL GOVERNMENT and its subcontractors shall include a statement of compliance with Federal and State Debarment and suspension regulations in all Third -party contracts. The LOCAL GOVERNMENT shall notify NCTCOG if the LOCAL GOVERNMENT or any of the LOCAL GOVERNMENT s contractors becomes debarred or suspended during the performance of this Agreement. Debarment or suspension of the LOCAL GOVERNMENT or any of the LOCAL GOVERNMENT's contractors may result in immediate termination of this Agreement. Page 11 of 18 CSJ: 0902-48-883 Project Name. South Main Urban Village Sustainable Development Project District # 02-Fort Worth Code Chart 64# 15000 and 61920 Funding Category: RTR (SH121 Subaccountl 12.4 Restrictions on Lobbying. The LOCAL GOVERNMENT is prohibited from using funds awarded under this Agreement for lobbying purposes The LOCAL GOVERNMENT shall include a statement of compliance with this provision in applicable procurement solicitations and Third -Party contracts. 12.5 Disadvantaged Business Enterprise. It is the policy of the STATE and NCTCOG to maximize opportunities for Disadvantaged Business Enterprises to participate in the performance of contracts financed in whole or in part with federal funds under this Agreement. The LOCAL GOVERNMENT agrees to ensure that DBE's have the maximum opportunity to participate in the performance of contracts and subcontracts financed in whole or in part with federal funds under this Agreement. Upon request the LOCAL GOVERNMENT shall report DBE participation. 12.6 Compliance with Regulations- Environmental Review and Public Involvement. Each party shall comply with all federal, state, and local laws, statues, 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. The LOCAL GOVERNMENT shall ensure that the PROJECT complies with all 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. When required, the LOCAL GOVERNMENT shall furnish the STATE and NCTCOG with satisfactory proof of compliance. Article 13.0 Miscellaneous Provisions. 13.1 Responsibilities of Parties. a. The STATE, LOCAL GOVERNMENT, and NCTCOG 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. b. To the extent permitted by law, the LOCAL GOVERNMENT agrees to indemnify and save harmless the STATE and NCTCOG, its agents and employees from all suits, actions or claims and from all liability and damages resulting from any and all injures or damages 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 contract(s), subcontract(s), agents and employees, and from any claims or amounts arising or recovered under the "Worker s Compensation laws"; the Texas tort Claims Act, Chapter 101, Texas Civil Practice and Remedies Code* or any other applicable laws or regulations, 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 Page 12 of 18 CSJ: 0902-48-883 Project Name South Main Urban Village Sustainable Development Proiect District # 02-Fort Worth Code Chart 64# 15000 and 61920 Funding Category: RTR (SH121 Subaccounti 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 and NCTCOG from any and all expenses, including, but not limited to, attorney's fees which may be incurred by the STATE in litigation or otherwise resisting said claim or liabilities which may be imposed on the STATE as a result of such activities by the LOCAL GOVERNMENT, its agents, or employees. 13.2 Force Majeure. It is expressly understood and agreed by the parties to this Agreement that, if the performance of any provision of this Agreement is delayed by force majeure, defined as reason of war, civil commotion act of God, governmental restriction, regulation or interference, fire, explosion, hurricane, flood, failure of transportation court injunction, or any circumstances which are reasonably beyond the control of the party obligated or permitted under the terms of this Agreement to do or perform the same, regardless of whether any such circumstance is similar to any of those enumerated herein, the party so obligated or permitted shall be excused from doing or performing the same during such period of delay, so that the period of time applicable to such requirement shall be extended for a period of time equal to the period of time such party was delayed. Each party must inform the other in writing within reasonable time of the existence of such force majeure. 13.3 Contractual Relationship. It is understood and agreed that the relationship described in this Agreement between the parties is contractual in nature and is not to be construed to create a partnership of joint venture or agency relationship between the parties. Nor shall any party be liable for any debts incurred by the other party in the conduct of such other party's business or functions 13.4 Insurance. If this Agreement authorizes the LOCAL GOVERNMENT or its contractors to perform any work on State right of way, before beginning work the entity performing the work shall provide the STATE with a fully executed copy of the State's Form 1560 Certificate of Insurance verifying the existence of coverage in the amounts and types specified on the Certificate of insurance for all persons and entities working on State right of way. This coverage shall be maintained until all work on the State right of way is complete. If coverage is not maintained, all work on State right of way shall cease immediately, and the State may recover damages and all costs of completing the work. 13.5 Procurement and Contracting Process. The STATE and NCTCOG may review the LOCAL GOVERNMENT's procurement of professional services for professional services for engineering, surveying, right of way acquisition, letting of construction contracts, and construction management and inspection The LOCAL GOVERNMENT shall certify compliance with state law and regulations and with local laws regulations, rules, policies, and procedures Copies of these certifications must be maintained in the PROJECT files and made available upon request. Page 13 of 18 CSJ: 0902-48-883 Project Name South Main Urban Village Sustainable Development Proiect District # 02-Fort Worth Code Chart 64# 15000 and 61920 Funding Category: RTR (SH121 Subaccount) 13.6 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 application to the LOCAL GOVERNMENT. The LOCAL GOVERNMENT must obtain advance approval for any variance from established procedures. This Agreement may not cover cost associated with utility relocation if any reimbursement is deemed eligible the utility must have a property right as shown in a recorded deed or easement. 13.7 Disputes and Remedies. The LOCAL GOVERNMENT and NCTCOG shall negotiate in good faith toward resolving any disputes that arise under this Agreement. 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. 13.8 Records and Project Documents The LOCAL GOVERNMENT shall maintain a record keeping system for all of its activities including program records and financial management records, which support and document all expenditures of funds made under this Agreement, in accordance with federal regulations, state rules, and the Funding Agreement. This section shall not be interpreted to require maintenance of multiple exact duplicate copies of any record or document. All records must be maintained for a minimum of four (4) years after PROJECT closeout. In the event that any litigation or claim is still pending before the expiration of the four- year period, these records shall be retained until resolution of the litigation or claim. This section shall not be interpreted to require maintenance of multiple exact duplicate copies of any record or document. NCTCOG, STATE and their duly authorized agents shall have reasonable access to all records that are directly applicable to this Agreement for the purpose of making audit(s) examinations. 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 by the LOCAL GOVERNMENT shall be made available to the STATE and NCTCOG 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 the request of the STATE or NCTCOG, the LOCAL GOVERNMENT shall submit any information required by the STATE or NCTCOG in the format directed by the STATE or NCTCOG. 13.9 Confidentiality. The LOCAL GOVERNMENT, NCTCOG, and the STATE shall ensure that all information, both written and verbal, deemed confidential by law that is obtained through implementation of the PROJECT will remain confidential, subject to the Texas Public Information Act. Page 14 of 18 CSJ: 0902-48-883 Project Name. South Main Urban Villaa_ e Sustainable Development Proiect District # 02-Fort Worth Code Chart 64# 15000 and 61920 Funding Category: RTR (SH121 Subaccount) 13.10 Gratuities. Any person doing business with or who, reasonably speaking, may do business with NCTCOG under this Agreement, may not make any offer of benefits, gifts or favors to employees of NCTCOG. Failure on the part of the LOCAL GOVERNMENT to adhere to this policy may result in termination of this Agreement. 13.11 Equal Employment Opportunity. The LOCAL GOVERNMENT shall not discriminate against any employee or applicant for employment because of race, religion, color, sex, or national origin. The LOCAL GOVERNMENT shall take affirmative action's to ensure that applicants are employed, and that employees are treated, during their employment, without regard to their race, religion, color sex, or national origin. Such actions shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. 13.12 Nondiscrimination on the Basis of Disability. The LOCAL GOVERNMENT agrees that no otherwise qualified disabled person shall, solely by reason of his disability, be excluded from participation in, be denied the benefits of, or otherwise be subject to discrimination under the project. The LOCAL GOVERNMENT shall insure that all fixed facility construction or alteration and all new equipment included in the project comply with applicable regulations regarding Nondiscrimination on the Basis of Disability in Programs and Activities Receiving or Benefiting from Federal Financial Assistance, set forth in 49 CFR, Part 27 and any amendments thereto. 13.13 Title VI. The LOCAL GOVERNMENT shall work cooperatively with NCTCOG to implement appropriate PROJECT activities to address environmental justice in minority and low-income populations, and to address needs from persons with limited English proficiency. 13.14 Drug Free Workplace. The LOCAL GOVERNMENT shall establish a drug -free workplace in accordance with the Drug -Free Workplace Act. 13.15 Compliance with Texas Accessibility Standards and ADA. The LOCAL GOVERNMENT shall ensure the plans for and the construction of the PROJECT is 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 Statues. 13.16 Signatory Warranty. The signatories to this Agreement warrant that each has the authority to enter into this Agreement on behalf of the party they represent. Page 15 of 18 CSJ : 0902-48-883 Project Name: South Main Urban Vfllaae Sustainable Development Proiect District # 02-Fort Worth Code Chart 64# 15000 and 61920 Funding Category: RTR (SH121 Subaccount) Attachments The following appendices are attached and made part of this Agreement. A. Project Location Map B. Scope of Work and Payment Provisions IN WITNESS HEREOF, the parties have executed this Agreement in triplicate originals. The LOCAL GOVERNMENT City of Fort Worth Bycnkin.11‘4----• Fernando Costa Assistant City Manager fMk al") AS CO FORM AND LEGALIT - ft4c c w 5 �f11%13 Date 24744 The NORTH CENTRAL TEXAS COUNCIL OF GOVERNMENTS By Executive Director Date The STATE 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 Kenneth Stewart Director of Contract Servi Attested b �. song City Scrtwty • Date .6o/a (//tY CSJ: 0902-48-883 Project Name. South Main Urban Villaae Sustainable Development Proiect Distract # 02-Fort Worth Code Chart 64# 15000 and 61920 Funding Category: RTR (SH121 Subaccountl ATTACHMENT A Project Map South Main Urban Village V4KERY D 'GGETT S 1 Legend UProject Area - - ` Landscaping end Pedestrian Amenities +� Roadway Retrofit n Traffic signalization sROAOWA" Map Produced on: 6/14/13 Page 17 of 18 ..1011101110111 N 0 0.05 0.1 0.2 ,Miles aeseale.Sit North Central Rxas Caamef of Oownrnef is Wanaportaaon Department htipU wnw.Motwg.orgibana/ 1 CSJ: 0902-48-883 Project Name South Main Urban Village Sustainable Development Proiect Distract # 02-Fort Worth Code Chart 64# 15000 and 61920 Funding Category: RTR (SH121 Subaccount) ATTACHMENT B SCOPE OF WORK AND PROJECT BUDGET The STATE will pay $3,000,000 from the SH 121 Subaccount for City of Fort Worth's South Main Urban Village Sustainable Development Infrastructure Project to construct pedestrian amenities, landscaping, retrofitting the roadway for multimodal uses, and traffic signalization to support the Fort Worth Mixed Use Development. The project is located on South Main Street bounded on Vickery Boulevard on the North and Magnolia Avenue on the South. The project deliverables include the construction of pedestrian amenities, landscaping, retrofitting the roadway for multimodal uses, and traffic signalization. ' 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 30 days after recommendation from NCTCOG but not prior to the Fiscal Years shown:" RIGHT OF WAY AND CONSTRUCTION COSTS Fiscal Total Description Year Estimate Cost Right of Way 2013 $0 Engineering (Design 2013 $0 0% $0.00 0% $0 capped at 10%) Construction 2013 $3,750,000 80% $3,000,000 20% $750,000 Regional Toll Revenue (RTR) SH 121 Subaccount Funds Participation Local Government Participation 0% $0.00 0% $0 TOTAL $3,750,000 80% $3,000,000 20% $750,000 The LOCAL GOVERNMENT shall be responsible for a required local match of $750,000. Upon completion of the PROJECT, the NCTCOG will issue a signed 'Notification of Completion" document to the STATE. The notice shall certify that the PROJECT has been completed, all necessary inspections have been conducted, and the PROJECT is open to traffic. This is an estimate only; final participation amounts will be based on actual charges to the project. Page 18 of 18 North Central Texas Council Of Governments April 8, 2014 Mr. Eric Fladager, AICP Planning and Development Department City of Fort Worth 1000 Throckmorton Street Fort Worth, TX 76102 Dear Mr. Fladager: Enclosed is the executed Funding Agreement between the Texas Department of Transportation (TXDOT), the North Central Texas Council of Governments (NCTCOG), and the City of Fort Worth for the South Main Urban Village Sustainable Development Infrastructure Project (CSJ 0902-48-883). The City of Fort Worth is not authorized to incur any charges on these projects until NCTCOG issues a Notice to Proceed. Issuance of a Notice to Proceed will be contingent upon receipt and approval of required documents outlined in Article 11.1 of the Agreement. NCTCOG looks forward to working with the City of Fort Worth on this project. If you have any project related questions, please contact Patrick Mandapaka, Senior Transportation Planner, at (817) 704-2503 or pmandapaka(a�nctcoq.orq. Sincerely, Dan Kessler Assistant Director of Transportation CW:tmb Enclosures cc: Patrick Mandapaka, NCTCOG South Main Urban Village Sustainable Development File 616 Six Flags Drive, Centerpoint Two P. O. Box 5888, Arlington, Texas 76005-5888 (817) 640-3300 FAX: 817-640-7806 0 recycled paper www.nctcog.org M&C Review I OUNCIL :' GE COUNCIL ACTION Page 1 of 3 Official site of the City of Fort Worth, Texas FORT WORTII Approved on 11/12/2013 - Ordinance Nos. 21036-11-2013 & 21037-11-2013 and Resolution No. 4263-11-2013 DATE: 11/12/2013 REFERENCE C-26562 NO.: CODE SUBJECT: C TYPE• NON - CONSENT 06SOUTH MAIN UV LOG NAME: SUSTAINABLE DEV PROJECT MOU FUNDING AGREEMENT PUBLIC HEARING: NO Authorize Execution of a Memorandum of Understanding with the North Central Texas Council of Governments, the Texas Department of Transportation, Tarrant County, and Fort Worth South, Inc., for the South Main Urban Village Sustainable Development Project, Adopt Resolution Authorizing Execution of a Funding Agreement with the North Central Texas Council of Governments and the Texas Department of Transportation for the South Main Urban Village Sustainable Development Project, Accept Sustainable Development Grant from the North Central Texas Council of Governments and the Texas Department of Transportation in the Amount of $3,000 000.00, Authorize Execution of an Interlocal Agreement with Tarrant County for and Acceptance of a $740,000 00 Contribution to the Project, Authorize Acceptance in the Amount of $2,750 000 00 from Tax Increment Financing District No. 4 and Adopt Appropriation Ordinance (COUNCIL DISTRICTS 8 and 9) RECOMMENDATION: It is recommended that the City Council: 1. Authorize execution of the attached Memorandum of Understanding with the North Central Texas Council of Governments, the Texas Department of Transportation, Tarrant County, and Fort Worth South, Inc., for the design and construction of the South Main Urban Village Sustainable Development Project to be constructed between Vickery Boulevard and Magnolia Avenue; 2. Adopt the attached Resolution authorizing the execution of a funding Agreement with the North Central Texas Council of Governments and the Texas Department of Transportation in the amount of $3,750,000 00, which includes a required local match contribution of $750,000.00 from Tax Increment Financing District No. 4 for the South Main Urban Village Sustainable Development Project; 3. Authorize acceptance of a $750,000.00 local match contribution from Tax Increment Financing District No. 4 and authorize acceptance of an additional contribution to the South Main Urban Village Sustainable Development Project from Tax Increment Financing District No. 4 in an amount up to $2,000,000.00; 4. Authorize acceptance of a reimbursement grant in the amount of $3 000 000.00 from the North Central Texas Council of Governments and the Texas Department of Transportation to the Grants Fund, contingent upon execution of the funding Agreement; 5. Authorize execution of an Interlocal Agreement with Tarrant County for a $740,000 00 contribution to the South Main Urban Village Sustainable Development Project and authorize acceptance of the $740,000.00 contribution, contingent upon execution of the Interlocal Agreement, 6. Adopt the attached appropriation ordinance increasing estimated receipts and appropriations in the Grant Capital Projects Fund in the amount of $3,750,000.00, contingent upon execution of the funding Agreement and 7. Adopt the attached appropriation ordinance increasing estimated receipts and appropriations in the Specially Funded Capital Projects Fund in the amount of $2,740,000.00, contingent upon http://apps.cfwnet.org/council_packet/mc review.asp7ID=18887&councildate=11/12/2013 4/22/2014 M&C Review Page 2 of 3 execution of the Interlocal Agreement with Tarrant County. DISCUSSION: The attached Memorandum of Understanding (MOU) with the North Central Texas Council of Governments (NCTCOG) the Texas Department of Transportation (TxDOT), Tarrant County, and Fort Worth South, Inc., summarizes the roles and financial contributions of each of the project partners in the South Main Urban Village Sustainable Development Project, which is a component of a larger South Main Street retrofit and reconstruction project that will reconstruct South Main Street and implement other improvements as described in the MOU. The project leverages funding from the Fort Worth Water Department, NCTCOG, Tarrant County, and Tax Increment Financing District No. 4 (TIF No. 4) to deliver a context sensitive street design that will facilitate redevelopment and revitalization of the South Main Urban Village. The South Main Urban Village Sustainable Development Project will construct streetscape improvements along South Main Street within the South Main Urban Village. Streetscape improvements to be constructed include wide sidewalks, street trees, pedestrian lighting, bulb -outs to protect crossing pedestrians and on -street parking, and other pedestrian facility improvements within the South Main corridor from Vickery Boulevard to Magnolia Avenue. The project was nominated for grant award (M&C G-16700) as part of the 2009/2010 NCTCOG Sustainable Development call for projects and was subsequently selected by the Regional Transportation Council to receive a grant of $3,000,000.00. The attached Resolution authorizes a funding Agreement with NCTCOG and TxDOT in the amount of $3,750,000.00 which includes $3,000 000.00 in Regional Toll Revenue grant funds and $750,000.00 in local match funds from TIF No. 4. The larger street reconstruction and retrofit project includes roadway storm drainage, streetscape, and water and sewer infrastructure improvements within the South Main Street right-of-way from Vickery Boulevard to Magnolia Avenue. The full reconstruction is made possible by combining $3,000,000.00 in NCTCOG Sustainable Development Program grant funds $2 750,000.00 in TIF No. 4 funds $1,905 000.00 in Water Department construction funds and $740,000.00 in Tarrant County funds. The Infrastructure and Transportation Committee (ITC) was briefed on the project scope, schedule and budget in February by Staff and Fort Worth South, Inc. (presentation attached). The ITC supported moving forward with this project. This project is located in COUNCIL DISTRICTS 8 and 9, Mapsco 77E and 77J. FISCAL INFORMATION/CERTIFICATION: The Financial Management Services Director certifies that upon approval of the above recommendations, execution of the Funding Agreement with NCTCOG and TxDOT, execution of the Interlocal Agreement with Tarrant County, and adoption of the appropriation ordinances, funds will be available in the current budget, as appropriated, of the Grant Capital Projects Fund and the Specially Funded Capital Projects Fund. TO Fund/Account/Centers FROM Fund/Account/Centers 4&6) GR74 451409 006302597000 3&6) GR74 488087 006302597000 3&7) C291 488087 069770211300 5&7) C291 451970 069770211300 $3.000.000.00 $750.000.00 $2.000.000.00 $7401000.00 $2.750.000.00 GS87 539120 002704097000 http://apps.cfwnet org/council_packet/mc_review.asp?ID=18887&counciidate=11/12/2013 4/22/2014 M&C Review Submitted for City Manager's Office bv: Fernando Costa (6122) Originating Deaartment Head: Randle Harwood (6101) Additional Information Contact: Eric Fladager (8011) ATTACHMENTS 06 South Main Sustainable Development Protect Resolution.doc S outh Main ITC Presentation 2-12-13.pdf S outh Main MOU.pdf S outh Main SD Protect Appropriations Ordinance GCPF(Rev10.13.31).doc S outh Main SD Project Appropriations Ordinance SFCPF (Rev10.31.13).doc Page 3 of 3 http://apps.cfwnet.org/council_packet/mc_review.asp?ID=1 8 887&councildate=1 1 /12/2013 4/22/2014