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Res 12-21 Authorizing Agreement with TxDOT for FM 1938 Green Ribbon EnhancementsTOWN OF WESTLAKE RESOLUTION NO. 12-21 A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF WESTLAKE, TEXAS, AUTHORIZING THE TOWN MANAGER TO EXECUTE AN ADVANCED FUNDING AGREEMENT WITH THE TEXAS DEPARTMENT OF TRANSPORTATION FOR FM 1938 GREEN RIBBON LANDSCAPE ENHANCEMENTS. WHEREAS, the City Council finds that wayfmding and landscape enhancements benefits commuters and citizens and is in the best interest of residential and corporate citizens; and WHEREAS, Westlake desires to provide residents and commuters safe and aesthetically pleasing streets to travel; and WHEREAS, Westlake desires to provide an attractive road enhancement project; and WHEREAS, the Town Council finds that the Advanced Funding Agreement for the $186,000 difference of the project bid amount ($856,000) and the TxDOT funding amount ($670,000) is necessary for the construction of the landscape enhancements consistent with the FM 1938 Streetscape Master Plan; and WHEREAS, the Town Council finds that the passage of this Resolution is in the best interest of the public. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF WESTLAKE, TEXAS: SECTION 1: All matters stated in the Recitals above are found to he true and correct and are incorporated herein by reference as if copied in their entirety. SECTION 2: The Town Council of the Town of Westlake hereby approves the agreements with the Texas Department of Transportation, for the construction of landscape enhancements related to FM 1938, attached as Exhibit "A", and further authorizes the Town Manager to execute the agreement on behalf of the Town of Westlake, Texas. SECTION 3: If any portion of this Resolution shall, for any reason, be declared invalid by any court of competent jurisdiction, such invalidity shall not affect the remaining provisions hereof and the Council hereby determines that it would have adopted this Resolution without the invalid provision. Resolution 12-21 Pagel of 2 SECTION 4: That this resolution shall become effective from and after its date of passage. PASSED AND APPROVED ON THIS 18TH DAY OF JUNE, 2012. Laura Wheat, Mayor ATTEST: Kelly Edwar Town Secretary Tom Bryme0rown Manager APPROVED AS TO FORM: yc OF .wFS .41 L",t7ktomcy Resolution 12-21 Page 2 of 2 STATE OF TEXAS § COUNTY OF TRAVIS § CSJ # 1978-01-055 District # 02 - FTW Code Chart 64 # 45150 Project: FM 1938 Federal Highway Administration CFDA # 20.205 Not Research and Development LOCAL TRANSPORTATION PROJECT ADVANCE FUNDING AGREEMENT For A Green Ribbon Landscape Improvement Program Project (On -System) THIS Local Project Advance 'Funding Agreement (LPAFA) is made by and between the State of Texas, acting by and through the Texas Department of Transportation, called the "State", and the Town of Westlake, acting by and through its duly authorized officials, called the "Local Government." WITNESSETH WHEREAS, a Master Agreement between the Local Government and the State has been adopted and states the general terms and conditions for transportation projects developed through this LPAFA; and, WHEREAS, the Texas Transportation Commission passed Minute Order Number 113073 that provides for the development of, and funding for, the Project described herein; and, WHEREAS, the State will allow the Local Government to participate in the Green Ribbon (GR) Landscaping Planting Program by having the Local Government maintain, with State approval and at no cost to the State, the landscaping improvements along FM 1938 from SH 114 to Randol Mill Road, as described in Attachment D, Green Ribbon Landscaping Planting Project Responsibilities, which is attached and made a part of this Agreement. WHEREAS, the Governing Body of the Local Government has approved entering into this LPAFA by resolution or ordinance dated JU . ne. 18 , 20r which is attached to and made a part of this agreement as Attachment A for the development of the Project. A map showing the Project location appears in Attachment B, which is attached to and made a part of this agreement. NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements of the parties, to be by them respectively kept and performed as hereinafter set forth, it is agreed as follows: AGREEMENT 1. Period of the Agreement The period of this LPAFA is as stated in the Master Agreement, without exception. 2. Termination of this LPAFA Termination of this LPAFA shall be under the conditions as stated in the Master Agreement. This LPAFA may be terminated by the State if the Project is inactive for thirty-six (36) months or longer and no expenditures have been charged against federal funds. AFA-LPAFA_ShortGen.doc Page 1 of 8 Revised 05/04/2012 CSJ # 1978-01-055 District # 02 - FTw Code Chart 64 # 45150 Project: FM 1938 Federal Highway Administration CFDA # 20.205 Not Research and Development 3. Amendments Amendments to this LPAFA shall be made as described in the Master Agreement, without exception. 4. Scope of Work The scope of work for this LPAFA is described as landscape enhancement along corridor of FM 1938 from SH 114 to Randol Mill Road. 3. Right of Way and Real Property Right of way and real property shall be the responsibility of the Local Government as stated in the Master Agreement, without exception. 6. Utilities Adjustment of utilities will be provided by the Local Government as required and as stated in the Master Agreement, without exception. 7. Environmental Assessment and Mitigation Environmental assessment and mitigation will be carried out as stated in the Master Agreement. Additionally, before the advertisement for bids, the Local Government shall provide to the State written documentation from the appropriate regulatory agency or agencies that all environmental clearances have been obtained. 8. Compliance with.Texas Accessibility Standards and ADA Compliance with Texas Accessibility Standards and the Americans with .Disabilities Act (ADA) will be as stated in the Master Agreement, without exception. 9. Architectural and Engineering Services Architectural and engineering services will be provided by the Local Government as stated in the Master Agreement. The Local Government is responsible for performance of any required architectural or preliminary engineering work. For projects on the state highway system, the design shall, at a minimum conform to applicable State manuals. For projects not on the state highway system, the design shall, at a minimum, conform to applicable American Association of State Highway and Transportation Officials design standards. The State may review and comment on the work as required to accomplish the public purposes of the State. The Local Government will cooperate fully with the State in accomplishing these local public purposes to the degree permitted by State and Federal law. 14. Construction Responsibilities Construction responsibilities will be carried out by the State as stated in the Master Agreement. 11. Project Maintenance Project maintenance will be undertaken by the Local Government as shown in Attachment D. 12. Local Project Sources and Uses of Funds A. A Project Budget Estimate is provided in Attachment C. The State and the Federal Government will not reimburse the Local Government for any work performed before the federal spending authority is formally obligated to the Project by the Federal Highway AFA-LPAFA_ShortGen.doc Page 2 of 8 Revised 05/04/2012 CSJ # 1978-01-055 District # 02 - FTW Code Chart 64 # 45150 Project; FM 1938 Federal Highway Administration CFDA # 20.205 Not Research and Development Administration. After federal funds have been obligated, the State will send to the Local Government a copy of the formal documentation showing the obligation of funds including federal award information. The Local Government is responsible for one hundred percent (100%) of the cost of any work performed under its direction or control before the Federal spending authority is formally obligated. B. If the Local Government will perform any work under this contract for which reimbursement will be provided by or through the State, the Local Government must complete training before federal spending authority is obligated. Training is complete when at least one individual who is working actively and directly on the Project successfully completes and receives a certificate for the course entitled Local Government Project Procedures Qualification for the Texas Department of Transportation. The Local Government shall provide the certificate of qualification to the State. The individual who receives the training certificate may be an employee of the Local Government or an employee of a firm that has been contracted by the Local Government to perform oversight of the Project. The State in its discretion may deny reimbursement if the Local Government has not designated a qualified individual to oversee the Project. C. A Source of Funds estimate based on the Transportation Improvement Program (TIP) is also provided in Attachment C. Attachment C shows the percentage and estimated dollar amount to be contributed to the project by federal, state, and local sources. The parties agree that the LPAFA may be amended from time to time as required to meet the funding commitments based on revisions to the TIP, Federal Project Authorization and Agreement (FPAA); or other federal document. D. The Local Government is responsible for all non-federal and non -state funding, including any project cost overruns, unless otherwise provided for in this agreement or through amendment of this agreement. E. Prior to the performance of any engineering review work by the State, the Local Government will pay to the State the amount specified in Attachment C. At a minimum, this amount shall equal the Local Government's funding share for the estimated cost of preliminary engineering for the project. At least sixty (60) days prior to the date set for receipt of the construction bids, the Local Government shall remit its remaining financial share for the State's estimated construction oversight and construction costs. F. In the event that the State determines that additional funding by the Local Government is required at any time during the Project, the State will notify the Local Government in writing. The Local Government shall make payment to the State within thirty (30) days from receipt of the State's written notification. G. Whenever funds are paid by the Local Government to the State under this Agreement, the Local Government shall remit a check or warrant made payable to the "Texas Department of Transportation Trust Fund." The check or warrant shall be deposited by the State in an escrow account to be managed by the State. Funds in the escrow account may only be applied by the State to the Project. If, after final Project accounting, excess funds remain in the escrow account, those funds may be applied by the State to the Local Government's contractual obligations to the State under another advance funding agreement with approval by appropriate personnel of the Local Government. H. If any existing or future local ordinances, commissioners court orders, rules, policies, or other directives, including but not limited to outdoor advertising billboards and storm water drainage facility requirements, are more restrictive than State or Federal Regulations, or if any other AFA-LPAFA_ShortGen.doc Page 3 of 8 Revised 05/0412012 CSJ # 1978-01-055 District # 02 - FTW Code Chart 64 # 45150 Project; FM 1938 Federal Highway Administration CFDA # 20.205 Not Research and Development locally proposed changes, including but not limited to plats or replats, result in increased costs, then any increased costs associated with the ordinances or changes will be paid by the Local Government. The cost of providing right of way acquired by the State shall mean the total expenses in acquiring the property interests either through negotiations or eminent domain proceedings, including but not limited to expenses related to relocation, removal, and adjustment of eligible utilities. I. The state auditor may conduct an audit or investigation of any entity receiving funds from the State directly under this contract or indirectly through a subcontract under this contract. Acceptance of funds directly under this contract or indirectly through a subcontract under this contract 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. Any 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. J. Payment under this contract beyond the end of the current fiscal biennium is subject to availability of appropriated funds. If funds are not appropriated, this contract shall be terminated immediately with no liability to either party. K. The Local Government is authorized to submit requests for reimbursement by submitting the original of an itemized invoice in a form and containing all items required by the State no more frequently than monthly and no later than ninety (90) days after costs are incurred. If the Local Government submits invoices more than ninety (90) days after the costs are incurred, and if federal funding is reduced as a result, the State shall have no responsibility to reimburse the Local Government for those costs. 13. Document and Information Exchange The Local Government agrees to electronically deliver to the State all general notes, specifications, contract provision requirements, and related documentation in a MicrosoftQ Word or similar document. If requested by the State, the Local Government will use the State's document template. The Local Government shall also provide a detailed construction time estimate including types of activities and month in the format required by the State. This requirement applies whether the Local Government creates the documents with its own forces or by hiring a consultant or professional provider. At the request of the State, the Local Government shall submit any information required by the State in the format directed by the State. 14. Incorporation of Master Agreement Provisions This LPAFA incorporates all of the governing provisions of the Master Agreement in effect on the date of final execution of this LPAFA, unless an exception has been made in this agreement. 15. Insurance If this Agreement authorizes the Local Government or its contractor to perform any work on State right of way, before beginning work the entity performing the work shall provide the State with a fully executed copy of the State's Form 1560 Certificate of Insurance verifying the existence of coverage in the amounts and types specified on the Certificate of Insurance for all persons and entities working on State right 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. AFA-LPAFA_ShortGen.doc Page 4 of 8 Revised 05/04/2012 CSJ # 1978-01-055 District # 02 - FTW Code Chart 64 # 45150 Project: FM 1938 Federal Highway Administration CFDA # 20.205 Not Research and Development 16. Debarment Certification The parties are prohibited from making any award at any tier to any party that is debarred or suspended or otherwise excluded from or ineligible for participation in Federal Assistance Programs under Executive Order 12549, "Debarment and Suspension." By executing this Agreement, the Local Government certifies that it is not currently debarred, suspended, or otherwise excluded from or ineligible for participation in Federal Assistance Programs under Executive Order 12549 and further certifies that it will not do business with any party that is currently debarred, suspended, or otherwise excluded from or ineligible for participation in Federal Assistance Programs under Executive Order 12549. The parties to this contract shall require any party to a subcontract or purchase order awarded under this contract to certify its eligibility to receive federal funds and, when requested by the State, to furnish a copy of the certification. 17. Cost Principles and Office of Management and Budget (OMB) Audit Requirements In order to be reimbursed with federal funds, the parties shall comply with the Cost Principles established in OMB Circular A-87 that specify that all reimbursed costs are allowable, reasonable, and allocable to the Project. 18. Notices All notices to either party shall be delivered personally or sent by certified or U.S. mail, postage prepaid, addressed to that party at the following address: Local Government: Mayor Town of Westlake 3 Village Circle, Suite 202 Westlake, Texas 76262 State: Director of Contract Services Texas Department of Transportation 125 E. 11 h Street Austin, Texas 78701 All notices shall be deemed given on the date delivered in person or deposited in the mail, unless otherwise provided by this agreement. Either party may change the above address by sending written notice of the change to the other party, Either party may request in writing that notices shall be delivered personally or by certified U.S. mail, and that request shall be carried out by the other party. 19. Civil Rights Compliance The Local Government shall comply with the regulations of the U.S. Department of Transportation as they relate to non-discrimination (49 CFR Part 21 and 23 CFR Part 200), and Executive Order 11246 titled "Equal Employment Opportunity," as amended by Executive Order 11375 and supplemented in the Department of Labor Regulations (41 CFR Part 60). 20. Disadvantaged Business Enterprise (DBE) Program Requirements A. The parties shall comply with the Disadvantaged Business Enterprise Program requirements established in 49 CFR Part 26. B. The Local Government shall adopt, in its totality, the State's federally approved DBE program. AFA-LPAFA_ShortGen.doc Page 5 of 8 Revised 05/0412012 CSJ # 1978-01-055 District # 02 - FTW Code Chart 64 # 45150 Project: FM 1938 Federal Highway Administration CFDA # 20.205 Not Research and Development C. The Local Government shall set an appropriate DBE goal consistent with the State's DBE guidelines and in consideration of the local market, project size, and nature of the goods or services to be acquired. The Local Government shall have final decision-making authority regarding the DBE goal and shall be responsible for documenting its actions. D. The Local Government shall follow all other parts of the State's DBE program referenced in TxDOT Form 2395, Memorandum of Understanding Regarding the Adoption of the Texas Department of Transportation's Federally -Approved Disadvantaged Business Enterprise by Entity, and attachments found at web address http://txdot.gov/business/business_ outreach/mou.htm. E. The Local Government shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of any U.S. Department of Transportation (DOT) -assisted contract or in the administration of its DBE program or the requirements of 49 CFR Part 26. The Local Government shall take all necessary and reasonable steps under 49 CFR Part 26 to ensure non-discrimination in award and administration of DOT -assisted contracts. The State's DBE program, as required by 49 CFR Part 26 and as approved by DOT, is incorporated by reference in this agreement. Implementation of this program is a legal obligation and failure to carry out its terms shall be treated as a violation of this agreement. Upon notification to the Local Government of its failure to carry out its approved program, the State may impose sanctions as provided for under 49 CFR Part 26 and may, in appropriate cases, refer the matter for enforcement under 18 U.S.C. 1401 and the Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801 et seq.). F. Each contract the Local Government signs with a contractor (and each subcontract the prime contractor signs with a sub -contractor) must include the following assurance: The contractor, sub -recipient, or sub -contractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR Fart 26 in the award and administration of DOT -assisted contracts. Failure by the contractor to carry out these requirements is a material breach of this agreement, which may result in the termination of this agreement or such other remedy as the recipient deems appropriate. 21. Federal Funding Accountability and Transparency Act Requirements A. Any recipient funds under this Agreement agrees to comply with the Federal Funding Accountability and Transparency Act (FFATA) and implementing regulations at 2 CFR Part 170, including Appendix A. This Agreement is subject to the following award terms: http:/ledocket. access. gPo. goy/2010/pdf/2010-22705.pdf and http://edocket.access.gpo.gov/2010/pdf/2010-22706. pdf. B. The Local Government agrees that it shall: 1. Obtain and provide to the State and the Federal government, a Central Contracting Registry (CCR) number (Federal Acquisition Regulation, Part 4, Sub -part 4.1100) if this award provides for more than $25,000 in Federal Funding. The CCR number may be obtained by visiting the CCR website whose address is: https://www.bpn.gov/ccr/default.aspx; 2. Obtain and provide to the State a Data Universal Numbering System (DUNS) number, a unique nine -character number that allows the Federal government to track the distribution of federal money. The DUNS number may be requested free of charge for all businesses AFA-LPAFA_ShortGen.doc Page 6 of 8 Revised 05/04/2012 CSJ # 1978-01-055 District # 02 - FTW Code Chart 64 # 45150 Project: FM 1938 Federal Highway Administration CFDA # 20.205 Not Research and Development and entities required to do so by visiting the Dun & Bradstreet (D&B) on-line registration website http://fedqov.dnb.com/webform; and 3. Report the total compensation and names of its top five (5) executives to the State if: i. More than 80% of annual gross revenues are from the Federal government, and those revenues are greater than $25,000,000; and ii. The compensation information is not already available through reporting to the U.S. Securities and Exchange Commission. 22, Single Audit Report A. The parties shall comply with the requirements of the Single Audit Act of 1984, P.L. 98-502, ensuring that the single audit report includes the coverage stipulated in OMB Circular A-133. B. If threshold expenditures of $500,000 or more are met during the Local Government's fiscal year, the Local Government must submit a Single Audit Report and Management Letter (if applicable) to TxDOT's Audit Office, 125 E. 11 th Street, Austin, TX 78701 or contact TxDOT's Audit Office at http://www.txdotgov/contact us/audit.htm. C. If expenditures are less than $500,000 during the Local Government's fiscal year, the Local Government must submit a statement to TxDOT's Audit Office as follows: "We did not meet the $500,000 expenditure threshold and therefore, are not required to have a single audit performed for FY " d. For each year the project remains open for federal funding expenditures, the Local Government will be responsible for filing a report or statement as described above. The required annual filing shall extend throughout the life of the agreement, unless otherwise amended or the project has been formally closed out and no charges have been incurred within the current fiscal year. 23. Signatory Warranty Each signatory warrants that the signatory has necessary authority to execute this agreement on behalf of the entity represented. AFA-I_PAFA—ShortGen.doc Page 7 of 8 Revised 05/0412012 CSJ # 1978-01-055 District # 02 - FTW Code Chart 64 # 45150 Project: FM 1938 Federal Highway Administration CFDA # 20.205 Not Research and Development THIS AGREEMENT IS EXECUTED by the ,State and the Local Government in duplicate. THE LOCAL GOVERNMENT Signature — Typed or Printed Name ufn tKkjfv Title Date THE STATE OF TEXAS Kenneth Stewart Deputy Director of Contract Services Texas Department of Transportation Date AFA-LPAFA_ShortGen.doc Page 8 of 8 Revised 05/04/2012 STATE OF TEXAS § COUNTY OF TRAVIS § Res 12-21 CSJ # 1978-01-055 District # 02 - FTW Code Chart 64 # 45150 Project: FM 1938 Federal Highway Administration CFDA # 20.205 Not Research and Development ADVANCE FUNDING AGREEMENT AMENDMENT #1 (On -System) THIS AMENDMENT is made by and between the State of Texas, acting through the Texas Department of Transportation, called the State, and the Town of Westlake, acting by and through its duly authorized officials, called the Local Government. WITNESSETH WHEREAS, the State and the Local Government executed a contract on July 251`' of 2012 to effectuate their agreement to maintain and participate in the funding of the landscaping improvements along FM 1938 from SH 114 to Randal Mill Road; and, WHEREAS, it is necessary to add the Irrigation System Operation and Maintenance to the Green Ribbon Landscaping Planting Project Responsibilities; and, WHEREAS, it has become necessary to amend that contract; NOW THEREFORE, in consideration of the premises and of the mutual covenants and agreements of the parties, the State and the Local Government do agree as follows: AGREEMENT 1. Description of Amended Items Attachment D, Green Ribbon Landscaping Planting Project Responsibilities, of the original contract is deleted in its entirety, and replaced with Attachment D-1, Green Ribbon Landscaping Planting Project Responsibilities, attached to this amendment. All other provisions of the original contract are unchanged and remain in full force and effect. AFATAFA_Amend Page 1 of 2 Revised 04/08111 Res 12-21 CSJ # 1978-01-055 District # 02 - FTW Code Chart 64 # 45150 Project: FM 1938 Federal Highway Administration CFDA # 20.205 Not Research and Development Irrigation System Operation and Maintenance Permanent irrigation system operation and maintenance shall include, but not be limited to, watering, monitoring, adjustment, repairing, and proper operation of the existing irrigation system as required, to ensure adequate moisture to the plant material existing on the site. It shall also include adjusting the system to keep water off hardscapes. All replacement parts shall be of the same type and manufacturer as originally installed. Substitute parts may be allowed with the approval of the State prior to replacement. AFA AFA Amend Page 2 of 2 Revised 04/08/11 Res 12-21 CSJ # 1978-01-055 District # 02 - FTW Code Chart 64 # 45150 Project: FM 1938 Federal Highway Administration CFDA # 20.205 Not Research and Development ATTACHMENT D - 1 GREEN RIBBON LANDSCPAING PLANTING PROJECT RESPONSIBILTIES Contract Period The Green Ribbon Landscaping Planting Project between the State and the Local Government becomes effective upon the date of final execution of this Agreement by the State, and the maintenance responsibilities by the Local Government shall extend from the completion of the landscape installation by the State's contractor, and remain in effect for a five year period. The agreement shall then renew automatically on an annual basis until it is mutually determined by the Local Government and the State the plant materials are sufficiently established to survive without additional care, or until this Agreement is terminated or modified as stated in the Master Agreement. State's Responsibilities The State will install landscaping and irrigation in accordance to the plans and specifications set forth in the Project. The Local Government, having had the opportunity to review the plans, may provide input to the Engineer regarding the installation of the plant material and irrigation system under the contract. Local Government's Responsibilities Following the completed installation of the landscape items as shown in the plans, the Local Government will assume maintenance of the Project in accordance with State standards. The Local Government will: For the work of plant maintenance, provide all reasonable means to preserve the plants existing within the project limits in a healthy and vigorous growing condition. This maintenance activity shall include but not be limited to the following: (1) Watering plants and vegetation (2) Plant bed and basin maintenance including shaping, weed control, and mulching/mulch layering (3) Plant replacement after the original plant maintenance period (4) Insect, Disease, and Animal Control (5) Fertilizing (6) Mowing and Trimming (7) Re -staking, re -guying, re -bracing and, when applicable, removal of staking, guying and bracing (8) Pruning (9) Litter pickup AFA—AFA Amend Page 1 of 2 Revised 04/08111 Res 12-21 CSJ # 1978-01-055 District # 02 - FTW Code Chart 64 # 45150 Project: FM 1938 Federal Highway Administration CFDA # 20.205 Not Research and Development 2. Signatory Warranty Each signatory warrants that the signatory has necessary authority to execute this agreement on behalf of the entity represented. THIS AGREEMENT IS EXECUTED by the State and the Local Government in duplicate. THE LOCAL GOVERNMENT A 6��Z 7 Signature Typed or Printed Nam f Title f /Q%Z /! Date THE STATE OF TEXAS nice Mullenix irector of Contract Services Texas Department of Transportation f(104,., -gew 9 .Z.0 1.'7, Date AFA—AFA Amend Page 2 of 2 Revised 04/08/11