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Number 38I . ......... --- L A RESOLUTION OF THE CITY OF COPPELL, TEXAS RESOLUTION NO, A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF COPPELL, TEXAS, APPROVING THE TERMS AND CONDITIONS OF THE ADVANCE FUNDING AGREEMENT BY AND AMONG THE STATE OF TEXAS, ACTING BY AND THROUGH THE TEXAS DEPARTMENT OF TRANSPORTATION AND THE CITY OF COPPELL, WHICH IS ATTACHED HERETO AND INCORPORATED HEREIN AS EXHIBIT A; AUTHORIZING THE MAYOR TO EXECUTE SUCH AGREEMENT SUBJECT TO THE APPROVAL OF THE CITY ATTORNEY; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the GOVERNMENT CODE and the TEXAS TRANSPORTATION CODE authorizes the State to contract with municipalities and political subdivisions; and WHEREAS, the Texas TRANSPORTATION CODE authorizes the State to layout, construct, maintain, and operate a system of streets, roads, and highways that comprise the State Highway System; and WHEREAS, through Senate Bill 796, Article 6, Section 228.0055, the State has been authorized to allocate the distribution of SH 121 tollway revenue funds and interest payment to finance local projects in the metropolitan planning region; and WHEREAS, the City of Coppell has requested that the State allow the City to utilize said funding with approved local tollway revenue funds for a project described as Freeport Parkway (Phase I) from SH 121 to Sandy Lake to construct 0 to 6 lanes and Freeport Parkway (Phase II) from Sandy Lake to Ruby Road to widen 2 to 4 lanes, hereinafter the "Project "; and WHEREAS, the State has determined that such participation is in the best interest of the citizens of the State; and WHEREAS, the City Council hereby approves the terms and conditions of the Advance Funding Agreement, which is attached hereto and incorporated herein as Exhibit A, and authorizes the Mayor to execute said Agreement subject to the final approval of the City Attorney. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF COPPELL, TEXAS, AS FOLLOWS: SECTION 1. That the terms and conditions of the Advance Funding Agreement, which is attached hereto and incorporated herein as Exhibit A, are hereby approved for the purposes of funding the Project as described herein, and, the Mayor is hereby authorized to execute said I TM 28057.2.000 Agreement for and on behalf of the City of Coppell, Texas, subject to final approval by the City Attorney. SECTION 2. That this Resolution shall take effect immediately from and after its passage as the law and charter in such cases provide. DULY PASSED by the City Council of the City of Coppell, Texas, this the day of 2008. ATTEST: i LIBBY BALL Y SECRETARY APPROVED AS TO FORM: 1 ROBERT E. HAGER, CITY A` TORNEY (REWcdb 5/22/08) 2 TM 28057.2.000 sT D THE STATE OF TEXAS § THE COUNTY OF TRAVIS § CSJ# 0918 -47 -983 (Phase 1) District # 18 Code Chart 64 #09700 Freeport Pkwy: From SH 121 To Sandy Lake CSJ: 0918 -47 -984 (Phase II) Freeport Pkwy: From Sandy Lake To Ruby Road Dallas County ADVANCE FUNDING AGREEMENT THIS AGREEMENT IS MADE BY AND BETWEEN the State of Texas, acting by and through the Texas Department of Transportation, hereinafter called the "State ", and the City of Coppell, acting by and through its duly authorized officials, hereinafter called the "Local Government." WITNESSETH WHEREAS, Transportation Code, Chapters 201, 221, 227, and 228 authorize the State to lay out, construct, maintain, and operate a system of streets, roads, and highways that comprise the State Highway System; and WHEREAS, Transportation Code, §228.012 requires the State to create a separate account in the state highway fund to hold payments received by the department under a comprehensive development agreement ( "CDA "), the surplus revenue of a toll project or system, and payments received under Transportation Code, § §228.0 111(g)(2) and (i)(2); and WHEREAS, the State is required to create subaccounts in the account for each project, system, or region, and to hold money in a subaccount in trust for the benefit of the region in which a project or system is located, and may assign the responsibility for allocating money in a subaccount to a metropolitan planning organization ( "MPO ") in which the region is located; and WHEREAS, the State has created subaccounts in the state highway fund to hold the payments received from the North Texas Tollway Authority ( "NTTA ") for the right to develop, finance, design, construct, operate, and maintain the SH 121 toll project from Business SH 121 in Denton County to US 75 in Collin County ( "SH 121 payments "); and WHEREAS, in Minute Order 110727, dated October 26, 2006, the Texas Transportation Commission ( "Commission ") approved a memorandum of understanding ( "MOU ") with the Regional Transportation Council ( "RTC'), the transportation policy council of the North Central Texas Council of Governments ( "NCTCOG "), a federally designated MPO, concerning the administration, sharing, and use of surplus toll revenue and CDA concession payments in the region served by NCTCOG, including the SH 121 payments; and WHEREAS, responsibility for allocating the SH 121 payments has already been assigned, to a degree, to the RTC under the MOU, which provides that the selection of projects to be financed using those funds shall be made by the RTC, subject to commission concurrence; and Page 1 of 7 Revised 05/02/2008 CSJ# 0918 -47 -983 (Phase 1) District # 18 Code Chart 64 #09700 Freeport Pkwy: From SH 121 To Sandy Lake CSJ: 0918 -47 -984 (Phase II) Freeport Pkwy: From Sandy Lake To Ruby Road Dallas County WHEREAS, the Local Government has requested that the State allow the Local Government to utilize funding from the SH 121 payments for projects described as Freeport Parkway (Phase 1) from SH 121 to Sandy Lake — construct new location and Freeport Parkway (Phase 2) from Sandy Lake to Ruby Road — widen 2 to 4 lanes, hereinafter called the "Project "; and WHEREAS, the RTC has selected the Project to be funded from the SH 121 payments, and the Commission, in Minute Order 111215, dated January 31, 2008, concurred in the selection and authorized the expenditure of funds for the Project from the SH 121 payments that are held in a State subaccount ( "SH 121 Subaccount"); and WHEREAS, 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 State has determined that such participation is in the best interest of the citizens of the State; NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements of the parties hereto, to be by them respectively kept and performed as hereinafter set forth, the State and the Local Government do agree as follows: AGREEMENT Article 1. Time Period Covered This agreement becomes effective when signed by the last party whose signing makes the agreement fully executed, and the State and the Local Government will consider it to be in full force and effect until the Project described herein has been completed and accepted by all parties or unless terminated, as hereinafter provided. Article 2. Project Funding and Work Responsibilities The State will authorize the payment within ninety (90) days of execution of this Agreement in one fixed lump sum of only those Project items of work which the Local Government has requested and has agreed to complete as described in Attachment A, Payment Provision and Work Responsibilities which is attached to and made a part of this contract. All overruns are the responsibility of the Local Government. Article 3. Shortfalls in Funding The Local Government shall apply all funds from the SH 121 Subaccount, released for the two construction projects mentioned in Attachment A, Payment Provisions and Work Responsibilities, and to none other. Should the released funds be insufficient to complete the work contemplated by those two projects, the Local Government may make further request to the RTC and the State for additional funds from the SH 121 Subaccount. If the SH 121 Subaccount does not contain sufficient funds to cover the balance necessary to complete the project(s), then the Local Government shall be liable itself for any shortfall. Page 2 of 7 Revised 05/02/2008 CSJ# 0918 -47 -983 (Phase 1) District # 18 Code Chart 64 #09700 Freeport Pkwy: From SH 121 To Sandy Lake CSJ: 0918 -47 -984 (Phase 11) Freeport Pkwy: From Sandy Lake To Ruby Road Dallas County Article 4. Adjustments Outside the Project Site The Local Government will provide for all necessary right -of -way needed for performance of the work on sites not owned or to be acquired by the State. Article 5. Right of Access If the Local Government is the owner of any part of the Project site, the Local Government shall permit the State or its authorized representative access to the site to perform any activities required pursuant to this agreement. Article 6. 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. Article 7. Maintenance Upon completion of the Project, the Local Government will assume responsibility for the maintenance of the completed Project unless otherwise specified in Attachment A to this agreement. Article 8. Utilities The Local Government 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. Article 9. Compliance with Texas Accessibility Standards and ADA All parties to this Agreement shall ensure that the plans for and the construction of all projects subject to this Agreement are in compliance with the Texas Accessibility Standards (TAS) issued by the Texas Department of Licensing and Regulation, under the Architectural Barriers Act, Article 9102, Texas Civil Statutes. The TAS establishes minimum accessibility requirements to be consistent with minimum accessibility requirements of the Americans with Disabilities Act (P.L. 101 -336) (ADA). Article 10. Termination This agreement may be terminated in the following manner: ♦ by mutual written agreement and consent of both parties; ♦ by either party upon the failure of the other party to fulfill the obligations set forth herein; ♦ by the State if it determines that the performance of the Project is not in the best interest of the State. Page 3 of 7 Revised 05/02/2008 CSJ# 0918 -47 -983 (Phase 1) District # 18 Code Chart 64 #09700 Freeport Pkwy: From SH 121 To Sandy Lake CSJ: 0918 -47 -984 (Phase II) Freeport Pkwy: From Sandy Lake To Ruby Road Dallas County Article 11. Notices All notices to either party by the other required under this agreement shall be delivered personally or sent by certified or U.S. mail, postage prepaid or sent by electronic mail, (electronic notice being permitted to the extent permitted by law but only after a separate written consent of the parties), addressed to such party at the following addresses: Local Government: City of Coppell Attn: City Engineer P.O. Box 9478 Coppell, Texas 75019 State: Texas Department of Transportation Attn: District Engineer 4777 E. Highway 80 Dallas, Texas 75150 All notices shall be deemed given on the date so delivered or so deposited in the mail, unless otherwise provided herein. Either party may change the above address by sending written notice of the change to the other party. Either party may request in writing that such notices shall be delivered personally or by certified U.S. mail and such request shall be honored and carried out by the other party. Article 12. Sole Agreement In the event the terms of the agreement are in conflict with the provisions of any other existing agreements between the Local Government and the State, the latest agreement shall take precedence over the other agreements in matters related to the Project. Article 13. Successors and Assigns The State and the Local Government each binds itself, its successors, executors, assigns, and administrators to the other party to this agreement and to the successors, executors, assigns, and administrators of such other party in respect to all covenants of this agreement. Article 14. Amendments By mutual written consent of the parties, this contract may be amended prior to its expiration. Article 15. State Auditor The state auditor may conduct an audit or investigation of any entity receiving funds from the state directly under the contract or indirectly through a subcontract under the contract. Acceptance of funds directly under the 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. 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. Page 4 of 7 Revised 05/02/2008 CSJ# 0918 -47 -983 (Phase 1) District # 18 Code Chart 64 #09700 Freeport Pkwy: From SH 121 To Sandy Lake CSJ: 0918 -47 -984 (Phase II) Freeport Pkwy: From Sandy Lake To Ruby Road Dallas County Article 16. Inspection of Books and Records The Local Government 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 for review and inspection during the contract period and for four (4) years from the date of completion of work defined under this agreement or until any impending litigation, or claims are resolved. Additionally, the State shall have access to all governmental records that are directly applicable to this Agreement for the purpose of making audits, examinations, excerpts, and transcriptions. Article 17. 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. Article 18. Debarment The Local Government shall not contract with any person that: is suspended, debarred, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any federal agency or that is debarred or suspended by the State. Article 19. 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. [Remainder of Page Intentionally Left Blank] Page 5 of 7 Revised 05/02/2008 T H E • C I T Y - O F AGENDA REQUEST FORM COPPELL DATE: May 27, 2008 ITEM #: 14 NECESSARY ACTION RESULTING FROM EXECUTIVE SESSION Motion to approve Resolution No. 2008 - 0527.01 approving the terms and conditions of the advance funding agreement by and among the state of Texas, acting by and through the Texas Department of Transportation and the City of Coppell, authorizing the Mayor to execute such agreement subject to the approval of the City Attorney. M - Peters S - Franklin -7-0 Libby Ball 2008.06.09 15:28:39 - 05,00, OF Agenda Request Form - Revised 09/02 Document Name: %necessaryactionexec cm052708 Page 6 of 6 14. Necessary action resulting from Executive Session. Action Councilmember Peters moved to approve Resolution No. 2008- 0527.01 approving the terms and conditions of the advance funding agreement by and among the state of Texas, acting by and through the Texas Department of Transportation and the City of Coppell, authorizing the Mayor to execute such agreement subject to the approval of the City Attorney. Mayor Pro Tern Franklin seconded the motion; the motion carried 7 -0 with Mayor Pro Tern Franklin and Councilmembers Brancheau, Peters, Hinojosa - Flores, Tunnell, Faught and Hunt voting in favor of the motion.