Loading...
R2018-127 2018-07-23 RESOLUTION NO. R2018-127 A Resolution of the City Council of the City of Pearland, Texas, amending and terminating the Advanced Funding Agreement with the State of Texas, previously approved as Resolution No. R2012-104, and approving a new Advanced Funding Agreement with the State of Texas, for the Max Road Project(Hughes-Ranch Road to Reid Road). BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS: Section 1. That certain Amended Advanced Funding Agreement by and between the City and the State of Texas, attached hereto as Exhibit "A", is hereby amended and terminated. Section 2. That certain Advance Funding Agreement by and between the City of Pearland and the State of Texas, a copy of which is attached hereto as Exhibit"B" and made a part hereof for all purposes, is hereby authorized and approved. Section 3. That the City Manager or his designee is hereby authorized to execute and the City Secretary to attest an Advance Funding Agreement with the State of Texas, for the Max Road Project. PASSED, APPROVED and ADOPTED this the 23rd day of July, A D., 2018. TOM REID MAYOR ATTEST: 18(/'�Q�`RLgNp�. _� '.... . Y NG G, T 0C/ 31• • _ Y SEI TARY /\ APPROVED AS TO FORM: 0.1---- DARRIN M. COKER CITY ATTORNEY TxDOT: Federal Highway Administration: CSJ# 0912-31-273 CFDA No. 20.205 District# 12—HOUSTON CFDA Title Highway Planning and Construction Code Chart 64# 32150 Project Name Max Road AFA Not Used For Research & Development STATE OF TEXAS § COUNTY OF TRAVIS § ADVANCE FUNDING AGREEMENT For Surface Transportation Block Grant Program (STBG) Project Off-System THIS AGREEMENT is made by and between the State of Texas, acting by and through the Texas Department of Transportation called the "State", and the City of Pearland, acting by and through its duly authorized officials, called the "Local Government". The State and Local Government shall be collectively referred to as "the parties" hereinafter. WITNESSETH WHEREAS, federal law establishes federally funded programs for transportation improvements to implement its public purposes, and WHEREAS, the Texas Transportation Code, Section 201.103 establishes that the State shall design, construct and operate a system of highways in cooperation with local governments, and Section 222.052 authorizes the Texas Transportation Commission to accept contributions from political subdivisions for development and construction of public roads and the state highway system within the political subdivision, and WHEREAS, federal and state laws require local governments to meet certain contract standards relating to the management and administration of State and federal funds, and WHEREAS, the Texas Transportation Commission passed Minute Order Number 115005 authorizing the State to undertake and complete a highway improvement generally described as the widening from 2 to 4 lanes divided with curb and gutter (Project), and WHEREAS, the Governing Body of the Local Government has approved entering into this Agreement by resolution or ordinance dated ?/'j I' , which is attached to and made a part of this Agreement as Attachment A, Resolution or Ordinance, for the improvement covered by this Agreement. A map showing the Project location appears in Attachment B, Location Map Showing Project (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 set forth in this Agreement, it is agreed as follows: Page 1 of 15 AFA-AFA_LongGen Revised 11/20/2017 TxDOT: Federal Highway Administration: CSJ# 0912-31-273 CFDA No. 20.205 District# 12—HOUSTON CFDA Title Highway Planning and Construction Code Chart 64# 32150 Project Name Max Road AFA Not Used For Research & Development AGREEMENT 1. Responsible Parties: The parties shall be responsible for the following work as stated in the article of the Agreement referenced in the table below: 1 Local Government Utilities Article 8 2. Local Government Environmental Assessment and Mitigation Article 9 3. Local Government Architectural and Engineering Services Article 11 4. Local Government Construction Responsibilities Article 12 5. Local Government Right of Way and Real Property Article 14 2. Period of the Agreement This Agreement becomes effective when signed by the last party whose signing makes the Agreement fully executed. This Agreement shall remain in effect until the Project is completed or unless terminated as provided below. 3. Scope of Work Widen Max Road from 2 to 4 lanes divided with curb and gutter, from Hughes Ranch Road to FM 518. 4. Project Sources and Uses of Funds The total estimated cost of the Project is shown in Attachment C, Project Budget, (Attachment C) which is attached to and made a part of this Agreement. A. If the Local Government will perform any work under this Agreement for which reimbursement will be provided by or through the State, the Local Government must complete training. If federal funds are being used, the training must be completed 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 and Qualification for the Texas Department of Transportation" and retains qualification in accordance with applicable TxDOT procedures. Upon request, 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 continuously designated in writing a qualified individual to work actively on or to directly oversee the Project. B. The expected cash contributions from the federal government, the State, the Local Government, or other parties are shown in Attachment C. The State will pay for only those Project costs that have been approved by the Texas Transportation Commission. 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 Page 2 of 15 AFA-AFA_LongGen Revised 11/20/2017 TxDOT: Federal Highway Administration: CSJ# 0912-31-273 CFDA No. 20.205 District# 12—HOUSTON CFDA Title Highway Planning and Construction Code Chart 64# 32150 Project Name Max Road AFA Not Used For Research 8 Development Project by the Federal Highway Administration (FHWA). 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 100% of the cost of any work performed under its direction or control before the federal spending authority is formally obligated. C. Attachment C shows, by major cost categories, the cost estimates and the party responsible for performing the work for each category. These categories may include but are not limited to: (1) costs of real property; (2) costs of utility work; (3) costs of environmental assessment and remediation; (4) cost of preliminary engineering and design; (5) cost of construction and construction management; and (6) any other local project costs. D. The State will be responsible for securing the federal and State share of the funding required for the development and construction of the local Project. If the Local Government is due funds for expenses incurred, these funds will be reimbursed to the Local Government on a cost basis. E. The Local Government will be responsible for all non-federal or non-State participation costs associated with the Project, unless otherwise provided for in this Agreement or approved otherwise in an amendment to this Agreement. Where Special Approval has been granted by the State under 43 TAC §15.52, the Local Government shall only in that instance be responsible for overruns in excess of the amount specified in Attachment C to be paid by the Local Government. F. If the Project has been approved for a specified percentage or a periodic payment non- standard funding or payment arrangement under 43 TAC §15.52, the budget in Attachment C will clearly state the specified percentage or the periodic payment schedule. G. When Special Approval has been granted by the State so that the Local Government bears the responsibility for paying cost overruns, the Local Government shall make payment to the State within thirty (30) days from the receipt of the State's written notification of those amounts. H. 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 performed or reviewed by the State 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 cost. The State will not execute the contract for the construction of the Project until the required funding has been made available by the Local Government in accordance with this Agreement. J. 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" or may use the State's Automated Clearing House (ACH) system for electronic transfer of funds in accordance with instructions provided by TxDOT's Finance Division. The funds shall be deposited and managed by the State and may only be applied by the State to the Project. K. The State will not pay interest on any funds provided by the Local Government. Page 3 of 15 AFA-AFA_LongGen Revised 11/20/2017 TxDOT: Federal Highway Administration: CSJ # 0912-31-273 CFDA No. 20.205 District# 12—HOUSTON CFDA Title Highway Planning and Construction Code Chart 64# 32150 Project Name Max Road AFA Not Used For Research &Development L. If a waiver for the collection of indirect costs for a service project has been granted under 43 TAC §15.56, the State will not charge the Local Government for the indirect costs the State incurs on the local Project, unless this Agreement is terminated at the request of the Local Government prior to completion of the Project. M. If the Local government is an Economically Disadvantaged County (EDC) and if the State has approved adjustments to the standard financing arrangement, this Agreement reflects those adjustments. N. Where the Local Government is authorized to perform services under this Agreement and be reimbursed by the State, 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. 0. Upon completion of the Project, where Special Approval has been granted by the State under 43 TAC 15.52, the State will perform a final accounting of the Project costs. Any funds due by the Local Government, the State, or the federal government will be promptly paid by the owing party. P. The state auditor may conduct an audit or investigation of any entity receiving funds from the State directly under this Agreement or indirectly through a subcontract under this Agreement. Acceptance of funds directly under this 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. Q. Payment under this Agreement beyond the end of the current fiscal biennium is subject to availability of appropriated funds. If funds are not appropriated, this Agreement shall be terminated immediately with no liability to either party. 5. Termination of This Agreement This Agreement shall remain in effect until the Project is completed and accepted by all parties, unless: A. The Agreement is terminated in writing with the mutual consent of the parties; B. The Agreement is terminated by one party because of a breach, in which case any costs incurred because of the breach shall be paid by the breaching party; C. The Local Government elects not to provide funding after the completion of preliminary engineering, specifications, and estimates (PS&E) and the Project does not proceed because of insufficient funds, in which case the Local Government agrees to reimburse the State for its reasonable actual costs incurred during the Project; or D. The Project is inactive for thirty-six (36) consecutive months or longer and no expenditures have been charged against federal funds, in which case the State may in its discretion terminate this Agreement. Page 4 of 15 AFA-AFA_LongGen Revised 11/20/2017 TxDOT: Federal Highway Administration: CSJ # 0912-31-273 CFDA No. 20.205 District# 12—HOUSTON CFDA Title Highway Planning and Construction Code Chart 64# 32150 Project Name Max Road AFA Not Used For Research &Development 6. Amendments Amendments to this Agreement due to changes in the character of the work, terms of the Agreement, or responsibilities of the parties relating to the Project may be enacted through a mutually agreed upon, written amendment. 7. Remedies This Agreement shall not be considered as specifying the exclusive remedy for any agreement default, but all remedies existing at law and in equity may be availed of by either party to this Agreement and shall be cumulative. 8. Utilities The party named in Article 1, Responsible Parties, under AGREEMENT shall be responsible for the adjustment, removal, or relocation of utility facilities in accordance with applicable state laws, regulations, rules, policies, and procedures, including any cost to the State of a delay resulting from the Local Government's failure to ensure that utility facilities are adjusted, removed, or relocated before the scheduled beginning of construction. The Local Government will not be reimbursed with federal or State funds for the cost of required utility work. The Local Government must obtain advance approval for any variance from established procedures. Before a construction contract is let, the Local Government shall provide, at the State's request, a certification stating that the Local Government has completed the adjustment of all utilities that must be adjusted before construction is completed. 9. Environmental Assessment and Mitigation Development of a transportation project must comply with the National Environmental Policy Act and the National Historic Preservation Act of 1966, which require environmental clearance of federal-aid projects. The party named in Article 1, Responsible Parties, under AGREEMENT is responsible for the following: A. The identification and assessment of any environmental problems associated with the development of a local project governed by this Agreement. B. The cost of any environmental problem's mitigation and remediation. C. Providing any public meetings or public hearings required for the environmental assessment process. Public hearings will not be held prior to the approval of the Project schematic. D. The preparation of the NEPA documents required for the environmental clearance of this Project. If the Local Government is responsible for the environmental assessment and mitigation, 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. 10. Compliance with Accessibility Standards All parties to this Agreement shall ensure that the plans for and the construction of all projects subject to this Agreement are in compliance with standards issued or approved by the Texas Department of Licensing and Regulation (TDLR) as meeting or consistent with minimum accessibility requirements of the Americans with Disabilities Act (P.L. 101-336) (ADA). Page 5 of 15 AFA-AFA_LongGen Revised 11/20)2017 TxDOT: Federal Highway Administration: CSJ# 0912-31-273 CFDA No. 20.205 District# 12--HOUSTON CFDA Title Highway Planning and Construction Code Chart 64# 32150 Project Name Max Road AFA Not Used For Research& Development 11. Architectural and Engineering Services The party named in Article 1, Responsible Parties, under AGREEMENT has responsibility for the performance of architectural and engineering services. The engineering plans shall be developed in accordance with the applicable State's Standard Specifications for Construction and Maintenance of Highways, Streets and Bridges and the special specifications and special provisions related to it. 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 (AASHTO) design standards. In procuring professional services, the parties to this Agreement must comply with federal requirements cited in 23 CFR Part 172 if the Project is federally funded and with Texas Government Code 2254, Subchapter A, in all cases. Professional contracts for federally funded projects must conform to federal requirements, specifically including the provision for participation by Disadvantaged Business Enterprises (DBEs), ADA, and environmental matters. If the Local Government is the responsible party, the Local Government shall submit its procurement selection process for prior approval by the State. All professional services contracts must be reviewed and approved by the State prior to execution by the Local Government. 12. Construction Responsibilities The party named in Article 1, Responsible Parties, under AGREEMENT is responsible for the following: A. Advertise for construction bids, issue bid proposals, receive and tabulate the bids, and award and administer the contract for construction of the Project. Administration of the contract includes the responsibility for construction engineering and for issuance of any change orders, supplemental agreements, amendments, or additional work orders that may become necessary subsequent to the award of the construction contract. In order to ensure federal funding eligibility, projects must be authorized by the State prior to advertising for construction. B. If the State is the responsible party, the State will use its approved contract letting and award procedures to let and award the construction contract. C. If the Local Government is the responsible party, the Local Government shall submit its contract letting and award procedures to the State for review and approval prior to letting. D. If the Local Government is the responsible party, the State must concur with the low bidder selection before the Local Government can enter into a contract with the vendor. E. Upon completion of the Project, the party constructing the Project will issue and sign a "Notification of Completion" acknowledging the Project's construction completion and submit certification(s) sealed by a professional engineer(s) licensed in the State of Texas. F. For federally funded contracts, the parties to this Agreement will comply with federal construction requirements cited in 23 CFR Part 635 and with requirements cited in 23 CFR Part 633, and shall include the latest version of Form "FHWA-1273" in the Page 6 of 15 AFA-AFA_LongGen Revised 11/2012017 TxDOT: Federal Highway Administration: CSJ# 0912-31-273 CFDA No. 20.205 District# 12—HOUSTON CFDA Title Highway Planning and Construction Code Chart 64# 32150 Project Name Max Road AFA Not Used For Research 8 Development contract bidding documents. If force account work will be performed, a finding of cost effectiveness shall be made in compliance with 23 CFR 635, Subpart B. 13. Project Maintenance The Local Government shall be responsible for maintenance of locally owned roads and locally owned facilities after completion of the work. The State shall be responsible for maintenance of the State highway system after completion of the work if the work was on the State highway system, unless otherwise provided for in existing maintenance agreements with the Local Government. 14. Right of Way and Real Property The party named in Article 1, Responsible Parties, under AGREEMENT is responsible for the provision and acquisition of any needed right of way or real property. The Local Government shall be responsible for the following: A. Right of way and real property acquisition shall be the responsibility of the Local Government. Title to right of way and other related real property must be acceptable to the State before funds may be expended for the improvement of the right of way or real property. B. If the Local Government is the owner of any part of the Project site under this Agreement, the Local Government shall permit the State or its authorized representative access to occupy the site to perform all activities required to execute the work. C. All parties to this Agreement will comply with and assume the costs for compliance with all the requirements of Title II and Title Ill of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, Title 42 U.S.C.A. Section 4601 et seq., including those provisions relating to incidental expenses incurred by the property owners in conveying the real property to the Local Government and benefits applicable to the relocation of any displaced person as defined in 49 CFR Section 24.2(g). Documentation to support such compliance must be maintained and made available to the State and its representatives for review and inspection. D. The Local Government shall assume all costs and perform necessary requirements to provide any necessary evidence of title or right of use in the name of the Local Government to the real property required for development of the Project. The evidence of title or rights shall be acceptable to the State, and be free and clear of all encroachments. The Local Government shall secure and provide easements and any needed rights of entry over any other land needed to develop the Project according to the approved Project plans. The Local Government shall be responsible for securing any additional real property required for completion of the Project. E. In the event real property is donated to the Local Government after the date of the State's authorization, the Local Government will provide all documentation to the State regarding fair market value of the acquired property. The State will review the Local Government's appraisal, determine the fair market value and credit that amount towards the Local Government's financial share. If donated property is to be used as a funding match, it may not be provided by the Local Government. The State will not Page 7 of 15 AFA-AFA_LongGen Revised 11/20/2017 TxDOT: Federal Highway Administration: CSJ# 0912-31-273 CFDA No. 20.205 District# 12—HOUSTON CFDA Title Highway Planning and Construction Code Chart 64# 32150 Project Name Max Road AFA Not Used For Research 8 Development reimburse the Local Government for any real property acquired before execution of this Agreement and the obligation of federal spending authority. F. The Local Government shall prepare real property maps, property descriptions, and other data as needed to properly describe the real property and submit them to the State for approval prior to the Local Government acquiring the real property. Tracings of the maps shall be retained by the Local Government for a permanent record. G. The Local Government agrees to make a determination of property values for each real property parcel by methods acceptable to the State and to submit to the State a tabulation of the values so determined, signed by the appropriate Local Government representative. The tabulations shall list the parcel numbers, ownership, acreage and recommended compensation. Compensation shall be shown in the component parts of land acquired, itemization of improvements acquired, damages (if any) and the amounts by which the total compensation will be reduced if the owner retains improvements. This tabulation shall be accompanied by an explanation to support the determined values, together with a copy of information or reports used in calculating all determined values. Expenses incurred by the Local Government in performing this work may be eligible for reimbursement after the Local Government has received written authorization by the State to proceed with determination of real property values. The State will review the data submitted and may base its reimbursement for parcel acquisitions on these values. H. Reimbursement for real property costs will be made to the Local Government for real property purchased in an amount not to exceed eighty percent (80%) of the cost of the real property purchased in accordance with the terms and provisions of this Agreement. Reimbursement will be in an amount not to exceed eighty percent (80%) of the State's predetermined value of each parcel, or the net cost of the parcel, whichever is less. In addition, reimbursement will be made to the Local Government for necessary payments to appraisers, expenses incurred in order to assure good title, and costs associated with the relocation of displaced persons and personal property as well as incidental expenses. If the Project requires the use of real property to which the Local Government will not hold title, a separate agreement between the owners of the real property and the Local Government must be executed prior to execution of this Agreement. The separate agreement must establish that the Project will be dedicated for public use for a period of not less than 10 (ten) years after completion. The separate agreement must define the responsibilities of the parties as to the use of the real property and operation and maintenance of the Project after completion. The separate agreement must be approved by the State prior to its execution. A copy of the executed agreement shall be provided to the State. 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 Page 8 of 15 AFA-AFA_LongGen Revised 11/20/2017 TxDOT: Federal Highway Administration: CSJ# 0912-31-273 CFDA No. 20.205 District# 12—HOUSTON CFDA Title Highway Planning and Construction Code Chart 64# 32150 Project Name Max Road AFA Not Used For Research & Development right of way shall cease immediately, and the State may recover damages and all costs of completing the work. 16. 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: State: City of Pearland Texas Department of Transportation ATTN: City Manager ATTN: Director of Contract Services 3519 Liberty Drive 125 E. 11th Street Pearland, Texas 77581 Austin, TX 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. 17. Legal Construction If one or more of the provisions contained in this Agreement shall for any reason be held invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions and this Agreement shall be construed as if it did not contain the invalid, illegal, or unenforceable provision. 18. Responsibilities of the Parties The State and the Local Government 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. 19. Ownership of Documents Upon completion or termination of this Agreement, all documents prepared by the State shall remain the property of the State. All data prepared under this Agreement shall be made available to the State without restriction or limitation on their further use. All documents produced or approved or otherwise created by the Local Government shall be transmitted to the State in the form of photocopy reproduction on a monthly basis as required by the State. The originals shall remain the property of the Local Government. At the request of the State, the Local Government shall submit any information required by the State in the format directed by the State. 20. Compliance with Laws The parties to this Agreement shall comply with all federal, state, and local laws, statutes, ordinances, rules and regulations, and the orders and decrees of any courts or administrative Page 9 of 15 AFA-AFA_LongGen Revised 11/20/2017 TxDOT: Federal Highway Administration: CSJ# 0912-31-273 CFDA No. 20.205 District# 12—HOUSTON CFDA Title Highway Planning and Construction Code Chart 64# 32150 Project Name Max Road AFA Not Used For Research & Development bodies or tribunals in any manner affecting the performance of this Agreement. When required, the Local Government shall furnish the State with satisfactory proof of this compliance. 21. Sole Agreement This Agreement constitutes the sole and only agreement between the parties and supersedes any prior understandings or written or oral agreements respecting the Agreement's subject matter. 22. Cost Principles In order to be reimbursed with federal funds, the parties shall comply with the cost principles established in 2 CFR 200 that specify that all reimbursed costs are allowable, reasonable, and allocable to the Project. 23. Procurement and Property Management Standards The parties to this Agreement shall adhere to the procurement standards established in Title 49 CFR §18.36, to the property management standards established in 2 CFR 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, and to the Texas Uniform Grant Management Standards. The State must pre-approve the Local Government's procurement procedures for purchases to be eligible for state or federal funds. 24. Inspection of Books and Records The parties to this Agreement shall maintain all books, documents, papers, accounting records, and other documentation relating to costs incurred under this Agreement and shall make such materials available to the State, the Local Government, and, if federally funded, the FHWA and the U.S. Office of the Inspector General or their duly authorized representatives for review and inspection at its office during the Agreement period and for three (3) years from the date of final reimbursement by FHWA under this Agreement or until any impending litigation or claims are resolved. Additionally, the State, the Local Government, and the FHWA and their duly authorized representatives shall have access to all the governmental records that are directly applicable to this Agreement for the purpose of making audits, examinations, excerpts, and transcriptions. 25. Civil Rights Compliance The parties to this Agreement are responsible for the following: A. Compliance with Regulations: Both parties will comply with the Acts and the Regulations relative to Nondiscrimination in Federally-assisted programs of the U.S. Department of Transportation (USDOT), the Federal Highway Administration (FHWA), as they may be amended from time to time, which are herein incorporated by reference and made part of this Agreement. B. Nondiscrimination: The Local Government, with regard to the work performed by it during the Agreement, will not discriminate on the grounds of race, color, or national origin in the selection and retention of subcontractors, including procurement of materials and leases of equipment. The Local Government will not participate directly or indirectly in the discrimination prohibited by the Acts and the Regulations, including Page 10 of 15 AFA-AFA_LongGen Revised 11/2012017 TxDOT: Federal Highway Administration: CSJ# 0912-31-273 CFDA No. 20.205 District# 12—HOUSTON CFDA Title Highway Planning and Construction Code Chart 64# 32150 Project Name Max Road AFA Not Used For Research& Development employment practices when the Agreement covers any activity, project, or program set forth in Appendix B of 49 CFR Part 21. C. Solicitations for Subcontracts, Including Procurement of Materials and Equipment: In all solicitations either by competitive bidding or negotiation made by the Local Government for work to be performed under a subcontract, including procurement of materials or leases of equipment, each potential subcontractor or supplier will be notified by the Local Government of the Local Government's obligations under this Agreement and the Acts and Regulations relative to Nondiscrimination on the grounds of race, color, or national origin. D. Information and Reports: The Local Government will provide all information and reports required by the Acts, the Regulations, and directives issued pursuant thereto, and will permit access to its books, records, accounts, other sources of information, and facilities as may be determined by the State or the FHWA to be pertinent to ascertain compliance with such Acts, Regulations or directives. Where any information required of the Local Government is in the exclusive possession of another who fails or refuses to furnish this information, the Local Government will so certify to the State or the FHWA, as appropriate, and will set forth what efforts it has made to obtain the information. E. Sanctions for Noncompliance: In the event of the Local Government's noncompliance with the Nondiscrimination provisions of this Agreement, the State will impose such contract sanctions as it or the FHWA may determine to be appropriate, including, but not limited to: 1. withholding of payments to the Local Government under the Agreement until the Local Government complies and/or 2. cancelling, terminating, or suspending of the Agreement, in whole or in part. F. Incorporation of Provisions: The Local Government will include the provisions of paragraphs (A) through (F) in every subcontract, including procurement of materials and leases of equipment, unless exempt by the Acts, the Regulations and directives issued pursuant thereto. The Local Government will take such action with respect to any subcontract or procurement as the State or the FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, that if the Local Government becomes involved in, or is threatened with, litigation with a subcontractor or supplier because of such direction, the Local Government may request the State to enter into such litigation to protect the interests of the State. In addition, the Local Government may request the United States to enter into such litigation to protect the interests of the United States. 26. Pertinent Non-Discrimination Authorities During the performance of this Agreement, each party, for itself, its assignees, and successors in interest agree to comply with the following nondiscrimination statutes and authorities; including but not limited to: A. Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), (pro- hibits discrimination on the basis of race, color, national origin); and 49 CFR Part 21. B. The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of federal or federal-aid programs and projects). Page 11 of 15 AFA-AFA_LongGen Revised 11/20/2017 TxDOT: Federal Highway Administration: CSJ# 0912-31-273 CFDA No. 20.205 District# 12—HOUSTON CFDA Title Highway Planning and Construction Code Chart 64# 32150 Project Name Max Road AFA Not Used For Research &Development C. Federal-Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), as amended, (prohibits discrimination on the basis of sex). D. Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.) as amended, (prohibits discrimination on the basis of disability); and 49 CFR Part 27. E. The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), (prohibits discrimination on the basis of age). F. Airport and Airway Improvement Act of 1982, (49 U.S.C. Chapter 471, Section 47123), as amended, (prohibits discrimination based on race, creed, color, national origin, or sex). G. The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms "programs or activities" to include all of the programs or activities of the federal-aid recipients, subrecipients and contractors, whether such programs or activities are federally funded or not). H. Titles II and III of the Americans with Disabilities Act, which prohibits discrimination on the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. §§ 12131-12189) as implemented by Department of Transportation regulations at 49 C.F.R. parts 37 and 38. The Federal Aviation Administration's Nondiscrimination statute (49 U.S.C. § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex). J. Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, which ensures nondiscrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations. K. Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of limited English proficiency (LEP). To ensure compliance with Title VI, the parties must take reasonable steps to ensure that LEP persons have meaningful access to the programs (70 Fed. Reg. at 74087 to 74100). L. Title IX of the Education Amendments of 1972, as amended, which prohibits the parties from discriminating because of sex in education programs or activities (20 U.S.C. 1681 et seq.). 27. Disadvantaged Business Enterprise (DBE) Program Requirements If federal funds are used: 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. C. The Local Government shall incorporate into its contracts with subproviders 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 submit its proposed scope of services and quantity Page 12 of 15 AFA-AFA_LongGen Revised 11/20/2017 TxDOT: Federal Highway Administration: CSJ# 0912-31-273 CFDA No. 20.205 District# 12—HOUSTON CFDA Title Highway Planning and Construction Code Chart 64# 32150 Project Name Max Road AFA Not Used For Research 8 Development estimates to the State to allow the State to establish a DBE goal for each Local Government contract with a subprovider. The Local Government 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://ftp.dot.state.tx.us/pub/txdot-info/bop/dbe/mou/mou attachments.pdf. 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. 1001 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 Part 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. 28. Debarment Certifications If federal funds are used, 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 and its principals are 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, to include principals, 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 Agreement shall require any party to a subcontract or purchase order awarded under this Agreement to certify its eligibility to receive federal funds and, when requested by the State, to furnish a copy of the certification. Page 13 of 15 AFA-AFA_LongGen Revised 11/20)2017 TxDOT: Federal Highway Administration: CSJ# 0912-31-273 CFDA No. 20.205 District# 12—HOUSTON CFDA Title Highway Planning and Construction Code Chart 64# 32150 Project Name Max Road AFA Not Used For Research& Development If state funds are used, the parties are prohibited from making any award to any party that is debarred under the Texas Administrative Code, Title 34, Part 1, Chapter 20, Subchapter G, Rule §20.585 and the Texas Administrative Code, Title 43, Part 1, Chapter 9, Subchapter G. 29. Lobbying Certification If federal funds are used, in executing this Agreement, each signatory certifies to the best of that signatory's knowledge and belief, that: A. No federal appropriated funds have been paid or will be paid by or on behalf of the parties to any person for influencing or attempting to influence an officer or employee of any federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any federal contract, the making of any federal grant, the making of any federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any federal contract, grant, loan, or cooperative agreement. B. If any funds other than federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with federal contracts, grants, loans, or cooperative agreements, the signatory for the Local Government shall complete and submit the Federal Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. C. The parties shall require that the language of this certification shall be included in the award documents for all sub-awards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and all sub-recipients shall certify and disclose accordingly. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Title 31 U.S.C. §1352. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. 30. Federal Funding Accountability and Transparency Act Requirements If federal funds are used, the following requirements apply: A. Any recipient of 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://www.gpo.gov/fdsys/pkg/FR-2010-09-14/pdf/2010-22705.pdf and http://www.gpo.gov/fdsys/pkq/FR-2010-09-14/pdf/2010-22706.pdf. B. The Local Government agrees that it shall: 1. Obtain and provide to the State a System for Award Management (SAM) number (Federal Acquisition Regulation, Part 4, Sub-part 4.11) if this award provides more than $25,000 in federal funding. The SAM number may be obtained by visiting the SAM website whose address is: https://www.sam.gov/portal/public/SAM/ 2. Obtain and provide to the State a Data Universal Numbering System (DUNS) number, a unique nine-character number that allows federal government to track the distribution of federal money. The DUNS may be requested free of charge for Page 14 of 15 AFA-AFA_LongGen Revised 11/20/2017 TxDOT: Federal Highway Administration: CSJ # 0912-31-273 CFDA No. 20.205 District# 12—HOUSTON CFDA Title Highway Planning and Construction Code Chart 64# 32150 Project Name Max Road AFA Not Used For Research &Development all businesses and entities required to do so by visiting the Dun & Bradstreet (D&B) on-line registration website http://fedgov.dnb.com/webform; and 3. Report the total compensation and names of its top five 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. 31. Single Audit Report If federal funds are used: A. The parties shall comply with the single audit report requirements stipulated in 2 CFR 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards. B. If threshold expenditures of$750,000 or more are met during the fiscal year, the Local Government must submit a Single Audit Report and Management Letter (if applicable) to TxDOT's Compliance Division, 125 East 11th Street, Austin, TX 78701 or contact TxDOT's Compliance Division by email at singleaudits(7a txdot.gov. C. If expenditures are less than the threshold during the Local Government's fiscal year, the Local Government must submit a statement to TxDOT's Compliance Division as follows: "We did not meet the $_ expenditure threshold and therefore, are not required to have a single audit performed for FY D. For each year the Project remains open for federal funding expenditures, the Local Government will be responsible for filing a report or statement as described above. The required annual filing shall extend throughout the life of the Agreement, unless otherwise amended or the Project has been formally closed out and no charges have been incurred within the current fiscal year. 32. Signatory Warranty Each signatory warrants that the signatory has necessary authority to execute this Agreement on behalf of the entity represented. THIS AGREEMENT IS EXECUTED by the State and the Local Government. THE LOCAL GOVERNMENT 7A-1 STATE F TEXAS lit 4 Tom Reid, Mayor Kenneth Stewart City of Pearland Director of Contract Services Texas Department of Transportation /60-2_oM 0-7701/7? Date Date Page 15 of 15 AFA-AFA_LongGen Revised 11/20/2017 • TxDOT: Federal Highway Administration: CSJ# 0912-31-273 CFDA No. 20.205 District# 12—HOUSTON CFDA Title Highway Planning and Construction Code Chart 64# 32150 Project Name Max Road AFA Not Used For Research&Development ATTACHMENT A RESOLUTION OR ORDlNACE • Page 1 of 1 AFA-AFA_LongGen Attachment A TxDOT: Federal Highway Administration: CSJ# 0912-31-273 CFDA No. 20.205 District# 12—HOUSTON CFDA Title Highway Planning and Construction Code Chart 64# 32150 Project Name Max Road AFA Not Used For Research&Development ATTACHMENT B LOCATION MAP SHOWING PROJECT k CR MI 1...Oen Cruet 7 g i CR ICD Sh,,,,Nne F Roy RW:7 4 1 CA WI CA 540 AwhSn CA 644 I Begin Project: ) v ems' 7 1 ?two?, at Hughes Ranch Rd 1 b rs..1Pagow.. k St ugltelM RMctt P t CR tOS a V i % rwiu 10,1r 16.ml r...0 a CR G6 s t. i 1 y� CR 105 + � Q Kp Uv.Stf et1 C■ i lil rime Mem l ane N ttr,.....,.,.,.� Cn 0$ t14111.,.0,1� a s i M,.Li4,LAN, End Project 1it o.„iT1...,.... atF16151l8 f.4.1 n q - West bra rJAjr:Slre*t West Broadway Sueel ir E i S 34, CR I71 ,a.,.r,c, f>R i Miles fnea'w cri.oa i - 0 25 0 125 0 0.25 c Attachment B: N CS.). 0912-31-273 Widen Fram 2 to 4-Lanes Divided wrth V \ — r / .- �`1�' Bans Curb and Gutter `APS' I DO7 jidr BRAZORIA COUNTY $ Page 1 of 1 AFA-AFA_LongGen Attachment B TxDOT: Federal Highway Administration: CSJ# 0912-31-273 CFDA No. 20.205 District# 12—HOUSTON CFDA Title Highway Planning and Construction Code Chart 64# 32150 Project Name Max Road AFA Not Used For Research& Development ATTACHMENT C PROJECT BUDGET Costs will be allocated based on 80% Federal funding and 20% Local Government funding until the Federal funding reaches the maximum obligated amount. The Local Government will then be responsible for 100% of the costs. Description Total Estimated ' Federal Participation State Participation ( Local Participation Cost Cost Cost + Cost Right of Way (by Local Government) $ 400,000 80%1 $ 320,000 0% $ - 20% $ 80.000 ; Environmental i 5 100,000 80% $ 80,000 0% $ - 20% S 20.000 (by Local Government) Design $ 600,000 80% $ 480.000 0% S - j 20% $ 120,000 (by Local Government) Utility Adjustments $ 100,000 80% $ 80.000 0%? $ - 20% $ 20.000 (by Local Government) r Construction Cat 3 $ 621,340 80% $ - 0% $ - 100% $ 621,340 (by Local Government) Construction Cat 7 S 6.156,183 80% $ 4.924,947 0% $ - 20% $ 1,231.236 (by Local Government) Subtotal S 7.977.523 N 5 5.884.947 ' 5 - $ 2.092.576 j Environmental Direct I State Costs $ 6,000 j 80% $ 4.800 0% $ 20% $ 1.200 1 - _ Right of Way Direct S 6:000 80% S 4,800 0% $ - 20%' S 1.200 State Costs Engineering Direct State $ 42,000 80%: $ 33.600 0% $ - 20% $ 8,400 Costs Utility Direct State Costs S 6,000 80% $ 4.800 0% $ - 20% S 1.200 Construction Direct $ 70,000 80% $ 56,000 0% $ - 20% S 14,000 State Costs Indirect State Costs $ 257,000 0%° $ 100%� $ 257,000 ; 0% $ - TOTAL $ 8,364,523 ;S 5,988,947 i S 257,000 j , S 2,118,576 Initial payment by the Local Government to the State: $12,000— Paid 8/30/2012 Payment by the Local Government to the State before construction: $14,000 Estimated total payment by the Local Government to the State $26,000 This is an estimate. The final amount of Local Government participation will be based on actual costs. Page 1 of 1 AFA-AFA_LongGen Attachment C TxDOT: Federal Highway Administration: CSJ# 0912-31-273 CFDA No. 20.205 District# 12-Houston CFDA Title Highway Planning and Construction Code Chart 64# 32150 Project Name Max Road AFA Not Used For Research &Development STATE OF TEXAS COUNTY OF TRAVIS § ADVANCE FUNDING AGREEMENT AMENDMENT # 1 THIS AMENDMENT is made by and between the State of Texas, acting through the Texas Department of Transportation, called the State, and the City of Pearland, acting by and through its duly authorized officials, called the Local Government. WITNESSETH WHEREAS, the State and the Local Government executed a contract on August 6 of 2012 to effectuate their agreement to Construct 4-lane divided off system roadway from 3700 Feet South of Hughes Ranch Road to Hughes Ranch Road; and, WHEREAS, the Governing Body of the Local Government has approved termination of this agreement by resolution or ordinance dated -7112.-St re , which is attached to and made a part of this amendment. 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 In accordance with Article 4 of the original contract, the contract will terminate effective when signed by the last party whose signing makes this amendment fully executed. 2. Signatory Warranty Each signatory warrants that the signatory has necessary authority to execute this agreement on behalf of the entity represented. AFA_AFA Amann Dona 1 rf 7 Pnwienn (1'4/7'1/1F, TxDOT: Federal Highway Administration: CSJ# 0912-31-273 CFDA No. 20.205 District# 12-Houston CFDA Title Highway Planning and Construction Code Chart 64# 32150 Project Name Max Road AFA Not Used For Research & Development THIS AGREEMENT IS EXECUTED by the State and the Local Government in duplicate. THE LOCAL GOVERNMENT THE STATE OF T XAS Z-Ass-S Tom Reid, Mayor Kenn h Stewart City of Pearland Director of Contract Servi/ Texas Department of Transportation - - 2d/g p ee),,, /c't Date Date AFA—AFA Amnnrl Penn 7 of 9 Pnwicorl /11/9q/1 TxDOT: Federal Highway Administration: CSJ# 0912-31-273 CFDA No. 20.205 District# 12—HOUSTON CFDA Title Highway Planning and Construction Code Chart 64# 32150 Project Name Max Road AFA Not Used For Research & Development ATTACHMENT A RESOLUTION OR ORDINACE Page 1 of 1 AFA-AFA_LongGen Attachment A RESOLUTION NO. R2018-127 A Resolution of the City Council of the City of Pearland, Texas, amending and terminating the Advanced Funding Agreement with the State of Texas, previously approved as Resolution No. R2012-104, and approving a new Advanced Funding Agreement with the State of Texas, for the Max Road Project (Hughes-Ranch Road to Reid Road). BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS: Section 1. That certain Amended Advanced Funding Agreement by and between the City and the State of Texas, attached hereto as Exhibit "A", is hereby amended and terminated. Section 2. That certain Advance Funding Agreement by and between the City of Pearland and the State of Texas, a copy of which is attached hereto as Exhibit"B" and made a part hereof for all purposes, is hereby authorized and approved. Section 3. That the City Manager or his designee is hereby authorized to execute and the City Secretary to attest an Advance Funding Agreement with the State of Texas, for the Max Road Project. PASSED, APPROVED and ADOPTED this the 23rd day of July, A 018. TOM REID MAYOR ATTEST: Y lL• ' G, T C o. tel, SEt TARP APPROVED AS TO FORM: 6-1--- DARRIN M. COKER CITY ATTORNEY