HomeMy WebLinkAboutContract 44422CSJ: 0902-48-832
Project Name: Polvtechnic/TWU Streetscape Sustainable
Development Infrastructure Proiect
District # 02-Fort Worth
Code Chart 64# 15000 and 61920
Funding Category: RTR (SH121 Subaccount)
STATE OF TEXAS
COUNTY OF TRAVIS
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FUNDING AGREEMENT
FOR PROJECTS USING FUNDS HELD IN THE
STATE HIGHWAY 121 SUBACCOUNT-
SUSTAINABLE DEVELOPMENTINFRASTRUCTURE
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; 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 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 Regional Transportation Council (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,
R E C E I V E D MAY � g 2� i� Page 1 of 18
CSJ: 0902-48-832
Project Name: Polvtechnic/TWU Streetscape Sustainable
Development Infrastructure Proiect
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, the North Central Texas Council of Governments (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.
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.
Page 2 of 18
CSJ: 0902-48-832
Project Name: Polytechnic/TWU Streetscape Sustainable
Development Infrastructure Proiect
District # 02-Fort Worth
Code Chart 64# 15000 and 61920
Funding Category: RTR (SH121 Subaccount)
PROJECT: 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.
PROJECT 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 $1,875,000. 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
375 000. 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:
STATE:
Texas Department of Transportation
Attention: Director of Contract Services
General Services Division
125 East 11 th Street
Austin, Texas 78701
T: (214) 320-6100
F: (214) 320-4488
Page 3 of 18
CSJ: 0902-48-832
Project Name: Polvtechnic/TWU Streetscape Sustainable
Development Infrastructure Proiect
District # 02-Fort Worth
Code Chart 64# 15000 and 61920
Funding Category: RTR (SH121 Subaccount)
LOCAL GOVERNMENT:
City of Fort Worth
Attention: Comprehensive Planning Manager
Eric Fladager, AICP
Planning and Development Department
City of Fort Worth
1000 Throckmorton
Fort Worth, TX 76102
T:(817) 392-8011
City of Fort Worth
Attention: Transportation Manager
David B. Jodray
Transportation and Public Works Department
City of Fort Worth
1000 Throckmorton
Fort Worth, TX 76102
T:(817) 392-8702
NCTCOG:
North 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.
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 �OCAL GOVERNMENT has received written
authorization from NCTCOG, in the form of a pre-award authorization or a notice to
proceed.
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CSJ: 0902-48-832
Project Name: Polytechnic/TWU Streetscape Sustainable
Development Infrastructure Proiect
District # 02-Fort Worth
Code Chart 64# 15000 and 61920
Funding Category: RTR (SH121 Subaccount�
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 LOCA� GOVERNMENT has failed to begin the PROJECT by March
2013 or has not made significant progress towards the OVERA�L PROJECT within the
timeline identified in the Article 11.1 supporting documentation or by December 31,
2015, 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.
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
-..- .
CSJ: 0902-48-832
Project Name: Polvtechnic/TWU Streetscape Sustainable
Development Infrastructure Proiect
District # 02-Fort Worth
Code Chart 64# 15000 and 61920
Funding Category: RTR (SH121 Subaccount)
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 6.9.
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 unenforceability 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
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
under current or future law, regulation, or rule, such invalidity shall not impair the
operation 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.
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CSJ: 0902-48-832
Project Name: Polytechnic/TWU Streetscape Sustainable
Development Infrastructure Proiect
District # 02-Fort Worth
Code Chart 64# 15000 and 61920
Funding Category: RTR (SH121 Subaccount)
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.
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.
Page 7 of 18
CSJ: 0902-48-832
Project Name: Polytechnic/TWU Streetscape Sustainable
Development Infrastructure Proiect
District # 02-Fort Worth
Code Chart 64# 15000 and 61920
Funding Category: RTR (SH121 Subaccount�
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 $1,500,000 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.
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
'.�- • :
CSJ: 0902-48-832
Project Name: Polvtechnic/TWU Streetscape Sustainable
Development Infrastructure Proiect
District # 02-Fort Worth
Code Chart 64# 15000 and 61920
Funding Category: RTR (SH121 Subaccount)
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 less ten (10) percent retainage up to 187 500.
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
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
Page 9 of 18
CSJ: 0902-48-832
Project Name: Polvtechnic/TWU Streetscape Sustainable
Development Infrastructure Proiect
District # 02-Fort Worth
Code Chart 64# 15000 and 61920
Funding Category: RTR (SH121 Subaccount)
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
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 building 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
'•.�- 1 • :
CSJ: 0902-48-832
Project Name: Polytechnic/TWU Streetscape Sustainable
Development Infrastructure Proiect
District # 02-Fort Worth
Code Chart 64# 15000 and 61920
Funding Category: RTR (SH121 Subaccount)
PROJECT
report.
Payment of the retainage is contingent upon completion of the closeout
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.
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
Page 11 of 18
CSJ: 0902-48-832
Project Name: Polytechnic/TWU Streetscape Sustainable
Development lnfrastructure Proiect
District # 02-Fort Worth
Code Chart 64# 15000 and 61920
Funding Category: RTR (SH121 Subaccount)
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
injuries 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
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.
Page 12 of 18
CSJ: 0902-48-832
Project Name: Polvtechnic/TWU Streetscape Sustainable
Development Infrastructure Project
District # 02-Fort Worth
Code Chart 64# 15000 and 61920
Funding Category: RTR (SH121 Subaccount)
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.
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.
Page 13 of 18
CSJ: 0902-48-832
Project Name: Polvtechnic/TWU Streetscape Sustainable
Development Infrastructure Proiect
District # 02-Fort Worth
Code Chart 64# 15000 and 61920
Funding Category: RTR (SH121 Subaccount)
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.
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.
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,
Page 14 of 18
CSJ: 0902-48-832
Project Name: Polvtechnic/TWU Streetscape Sustainabie
Development Infrastructure Proiect
District # 02-Fort Worth
Code Chart 64# 15000 and 61920
Funding Category: RTR (SH121 Subaccount)
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.
Attachments
The following appendices are attached and made part of this Agreement.
A. Project Location Map
B. Scope of Work and Payment Provisions
Page 15 of 18
CSJ: 0902-48-832
Project Name: Polytechnic/TWU Streetscape Sustainable
Development Infrastructure Proiect
District # 02-Fort Worth
Code Chart 64# 15000 and 61920
Funding Category: RTR (SH121 Subaccount)
IN WITNESS HEREOF, the parties have executed this Agreement in triplicate originals.
The LOCAL GOVERNMENT
City of Fort Worth
�
Fernando Costa
Assistant City Manager
/�PPRQ1lFD .A� i . F9RM AND I�EGA�I`�Y�
I, _ -
,�
�� �_ —
�::li'Y ��
��
Date L/I�/ /3
The NORTH CENTRAL TEXAS COUNCIL OF GOVERNMENTS
k� „si���':'f � ✓
,. � :�� ' ;.
Byr% ;:Ev,� .�__;, �,.�:�``�'�;:--�'�.--- Date .� /�'�i�..-
Mik Eastland ` /
Executive Director
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.
� - 'a!� / r
�irector of Contract Services
exas Department of Transportation
�
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�� �� � i ���4 . "..3! i :!ti ; .�.F��
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Page 16 of 18
B�AC.IC.�
�
CSJ: 0902-48-832
Project Name: Polytechnic/TWU Streetscape Sustainable
Development Infrastructure Project
District # 02-Fort Worth
Code Chart 64# 15000 and 61920
Funding Category: RTR (SH121 Subaccount)
Attachment A
Project Map
Polytechnic/TWU Streetscape Enhancements
•L,^
`5, .
_.
, _ .� � , - . -. . ,:
-.. � . ; . , ;- , , � �.�. . ,
'i'.'., vLCa< '
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Legend h
QPolytschniclfWU Streetscapa Enhancemants Boundary W�{
oo.�z��
=': Pedestrian Amenities
. �;; � . r+.awc.n�.wr.,«
� Traffic Si nalization Map Ptoduced on: c>�uorat.�«a.
9 371412012 � __- i'.,v"�`� �a:i�v`.'��`�r
Page 17 of 18
CSJ: 0902-48-832
Project Name: Polvtechnic/TWU Streetscape Sustainable
Development Infrastructure Proiect
District # 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 $1,500,000 from the SH 121 Subaccount for City of Fort Worth
Polytechnic/TWU Streetscape Enhancements Sustainable Development Infrastructure Project
to construct pedestrian amenities and traffic signalization to support the Fort Worth Mixed Use
Development. The project is located on East Rosedale Street, from Nashville Street to Collard
Street; on Wesleyan Street, from Avenue G to Avenue E; on Vaughn Boulevard, from Avenue G
to East Rosedale Street on the North; on Collard Street, from Avenue G to East Rosedale. The
project deliverables include the construction of pedestrian amenities 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
within 30 days after recommendation from NCTCOG, but not prior to the Fiscal Years shown:"
RIGHT OF WAY AND CONSTRUCTION COSTS
Fiscal Total Local
Estimate Regional Toll Revenue Government
Description Year Cost (RTR) SH 121 Participation
SubaccountFunds
Participation
Right of Way 2013 $0.00 0% $0.00 0% $0.00
Engineering (Design 2013 $0.00 0% $0.00 0% $0.00
ca ed at 10%
Construction 2013 $1,875,000 80% $1,500,000 20% $375,000
TOTAL $1,875,000 80% $1,500,000 20% $375,000
The LOCAL GOVERNMENT shall be responsible for a required local match of 375 000.
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