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HomeMy WebLinkAboutRES 98-172 RESOLUTION NO. /J BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Manager be and he is hereby authorized to enter into an agreement with the Texas Department of Transportation (TxDOT) for Congestion Mitigation and Air Quality (CMAQ) improvements. The agreement is substantially in the form as attached hereto as Exhibit "A." PASSED BY THE CITY COUNCIL of the City of Beaumont this the /7"t`day of 1998. - Mayor - DRAFT Jefferson, Orange and Hardin Counties CSJ: 0920-00-044 Intersection Improvements STATE OF TEXAS COUNTY OF TRAVIS A G R E E M E N T (CONGESTION MITIGATION AND AIR QUALITY IMPROVEMENT PROGRAM) 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 Beaumont, Texas, acting by and through its duly authorized officials, hereinafter called the "City". W I T N E S S E T H WHEREAS, the Intermodal Surface Transportation Efficiency Act of 1991, ("ISTEA") codified under Title 23 U.S.C. Section 101 et seq. , establishes the National Intermodal Transportation System that is economically efficient and environmentally sound, provides the foundation for the nation to compete in the global economy, and will move people and goods in an energy efficient manner; and WHEREAS, Title 23 U.S.C. Section 149 establishes a Congestion Mitigation and Air Quality Improvement Program ("CMAQ") to contribute to the attainment of a national ambient air quality standard to be implemented by the States ' Transportation Agencies; and WHEREAS, Title 23 U.S.0 Section 134 establishes that Metropolitan Planning Organizations ("MPO's") and the States ' Transportation Agencies develop Sheet 1 of 12 EXHIBIT "A" DRAFT transportation plans and programs for urbanized areas of the State; and WHEREAS, the City is a member of the South East Texas Regional Planning Commission, an MPO, chartered under the laws of the State of Texas; and WHEREAS, the State and the City desire the improvement of the intersections of Phelan Boulevard at Dowlen Road, Eleventh Street at IH 10, Delaware Street at Eastex Freeway, Delaware Street at 11th Street, College Street at 11th Street and Calder Avenue at 11th Street, to be hereinafter identified as the "Project"; and WHEREAS, Title 23 U.S.C. Section 120 establishes that the Federal share of funding for CMAQ may be one hundred percent (100%) of the construction cost of the Project for certain safety projects and not more than eighty percent (80%) of the right-of-way cost of the Project; and WHEREAS, the City has offered to participate in the development and construction of the Project by acquiring the necessary right-of-way, accomplishing utility adjustments and other necessary items required by the State; and WHEREAS, on the day of 19_ the Beaumont City Council passed a Resolution attached hereto and identified as "Exhibit A", authorizing the City's participation in the development of the Project; and WHEREAS, the State will secure the federal cost share, prepare, or cause to be prepared, the design documentation, let the construction contract, provide the construction inspection, provide other items as required; and Sheet 2 of 12 DRAFT WHEREAS, on the 31st day of July, 1997, the Texas Transportation Commission passed Minute Order 107218, authorizing the Project through the Statewide Transportation Improvement Program (STIP) ; A G R E E M E N T 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, it is agreed as follows: 1. CONTRACT PERIOD This agreement becomes effective upon final execution by the State and shall terminate upon completion and the State's acceptance of the Project or unless terminated or modified as hereinafter provided. 2. SCOPE OF PROJECT A. The State and the City agree that the scope of the Project shall be limited to the scope authorized by the Texas Transportation Commission. B. The roads in the Project will be designated a part of the State Highway System as a Metropolitan Highway for the limited purpose of constructing the roadways; however any existing city roads within the limits of the Project will not be designated or incorporated therein prior to the State's award of the construction contract. C. The City will continue to provide maintenance for all city roads at each intersection until work begins at the intersection. 3. ACQUISITION OF RIGHT-OF-WAY The City shall incur all costs and perform all necessary requirements to provide title in name of City to the desired right-of-way required for the construction of the Project, which title shall be acceptable to the State. The Sheet 3 of 12 DRAFT City shall provide all right-of-way free and clear of all improvements and/or encroachments. The City will comply with and assume the costs for compliance with all the requirements of Title II and Title III 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 right-of- way to the City, and benefits applicable to the relocation of any displaced person as defined in 49 CFR, 24.2 (g) . Documentation. to support such compliance must be maintained and must be made available to the State and its representatives for review and inspection. The City shall secure and provide easements over any other land in addition to normal right-of-way as may be indicated on the approved right-of-way map. The City will be responsible for any additional right-of-way required for the completion of the Project. 4. RIGHT-OF-WAY DESCRIPTION The City shall prepare or cause to be prepared right-of-way maps, property descriptions and other data as needed to properly describe the right-of-way which the City is to acquire and provide for the Project. The right-of-way maps and property descriptions shall be submitted to the State for approval prior to the City acquiring the necessary right-of-way. Tracings of the maps shall be retained by the City for its permanent records. 5. UTILITY ADJUSTMENTS/RELOCATIONS If the required right-of-way encroaches upon existing utilities and the proposed road construction requires the adjustment, removal or relocation of such utility facilities, the City will establish the necessary utility work and notify the appropriate utility company to schedule their adjustments. The City shall be responsible for all costs associated with the adjustment, removal or relocation of such utility facilities, and such adjustment, removal or relocation shall be in accordance with applicable State law, regulations, Sheet 4 of 12 DRAFT policies and procedures. In the event additional utilities are required to be adjusted, removed or relocated during the construction of the Project, the City will be responsible for all costs associated with the additional utility work. 6. CONDEMNATION Condemnation proceedings will be initiated at a time selected by the City and will be the City's responsibility at its own expense as hereinafter indicated. The City will concurrently file condemnation proceedings and a notice of lis pendens for each case in the name of the City, and in each case so filed the judgment of the court will decree title to the property condemned to the City. 7. COURT COSTS, COSTS OF SPECIAL COMMISSIONERS' HEARINGS Court costs of Special Commissioners' hearings assessed against the City in condemnation proceedings and fees incident thereto will be paid by the City. B. ENVIRONMENTAL MITIGATION A. The City will be responsible for the mitigation and remediation of any environmental problems associated with the development and construction of the Project. If environmental problems are discovered, the City shall provide to the State written certification from the appropriate regulatory agency(s) that the environmental problems have been remedied. The State will not let the construction contract until all known environmental problems have been remediated by the City. B. All costs associated with the remediation of the environmental problems shall be the responsibility of the City and/or the property owners. These costs will not be reimbursed. Sheet 5 of 12 DRAFT 9. CERTIFICATION The City shall provide to the State forty-five (45) days prior to the construction contract let date, a certification that all right-of-way has been acquired, all environmental problems have been remediated, and all conflicting utilities have been adjusted to clear the proposed construction. 10. ENGINEERING SERVICES The MPO, in agreement with the State, will prepare or cause to be prepared the preliminary engineering necessary for the development of the plans, specifications and estimates (P.S.& E. ) . Development of the preliminary engineering shall include environmental assessment and holding of necessary public meetings and public hearings. 11. PROJECT FUNDING A. The estimated construction cost for the Project is $564,477.50. B. The State will be responsible to secure the federal share of the funding required for the development and construction of the Project, an amount equal to one hundred percent (100 ) of the design and construction cost to complete the Project and an amount not to exceed eighty percent (8H) of the cost for right-of-way and utility adjustments on the Project. The City will be responsible for any non-federal participation construction costs associated with the Project. The City will also be responsible for an amount not less than twenty percent (20g) of the total cost for right-of-way and utility adjustments. C. If, after the execution of this agreement, the City removes one of the intersections from the Project or terminates the agreement, the City will be responsible to reimburse the State any costs incurred by the State for the development of each intersection removed. Sheet 6 of 12 DRAFT 12. CONSTRUCTION RESPONSIBILITIES A. The State shall advertise for construction bids, issue bid proposals, receive and tabulate the bids and award a contract for construction of the Project in accordance with existing procedures and applicable laws. Any field changes, supplemental agreements of additional work orders which may become necessary subsequent to the award of the construction contract shall be the responsibility of the State. B. The State will supervise and inspect all work performed by the construction contractor and will provide such engineering, inspection and testing services as may be required to ensure that the construction of the Project is accomplished in accordance with the approved P.S.& E. C. Upon completion of each intersection, the State will issue to the City a "Notification of Completion", acknowledging that the intersection has been completed. Upon the City's receipt of the "Notification of Completion", the roadway will be removed from the State Highway System and will revert under the jurisdiction of the City. 13. MAINTENANCE RESPONSIBILITIES Upon completion of each intersection, the City will assume responsibility for maintenance of the completed facility. 14. OWNERSHIP OF DOCUMENTS Upon completion or termination of this agreement, all documents prepared by the City shall remain the property of the City. 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. Sheet 7 of 12 DRAFT 15. TERMINATION A. This agreement may be terminated by any of the following conditions: (1) By mutual written agreement and consent of both parties. (2) By either party, upon the failure of the other party to fulfill the obligation as set forth herein. B. The termination of this agreement shall extinguish all rights, duties, obligations and liabilities of the State and the City under this agreement. If the potential termination of this agreement is due to the failure of the City to fulfill its contractual obligations as set forth herein, the State will notify the City that possible breach of contract has occurred. The City should make every effort to remedy the breach as outlined by the State within a period mutually agreed upon by both parties. C. Violation or breach of contract terms shall be grounds for termination of the agreement, and any increased costs arising from the defaulting party, breach of contract or violation of agreement terms shall be paid by the defaulting party. 16. 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. 17 ACKNOWLEDGMENT OF RESPONSIBILITIES The City acknowledges that it is not an agent, servant, or employee of the State and thus, is responsible for its own acts and deeds and for those of its agents, contractors or employees during the performance of the work authorized in this agreement. Sheet 8 of 12 DRAFT 18. AMENDMENTS Any changes in the character, agreement provisions or obligations of the parties hereto shall be enacted by written amendment executed by both the City and the State. 19. LEGAL CONSTRUCTION In case 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 hereof and this agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. 20. COMPLIANCE WITH LAWS The City shall comply with all federal, state and local laws, statutes, ordinances, rules and regulations, and the orders and decrees of any courts or administrative bodies or tribunals in any manner affecting the performance of the agreement. When required, the City shall furnish the State with satisfactory proof of the compliance therewith. 21. 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, addressed to such party at the following addresses: State: Mr. Duane Browning, P.E. , Area Engineer Texas Department of Transportation 8350 Eastex Freeway Beaumont, Texas 77708 Sheet 9 of 12 DRAFT City: Mr. Ray Riley, City Manager City of Beaumont P.O. Box 3827 Beaumont, Texas 77704 All notices shall be deemed given on the date so delivered or so deposited in the mail, unless otherwise provided herein. Either party hereto may change the above address by sending written notice of such change to the other in the manner provided herein. 22. SOLE AGREEMENT This agreement constitutes the sole and only agreement between the parties hereto and supersedes any prior understandings or written or oral agreements respecting the within subject matter. 23. INSPECTION OF BOOKS AND RECORDS The State will, for purpose of termination of the agreement prior to completion, examine the books and records of the City for the purpose of checking the amount of the work performed by the City at the time of contract termination. The City 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, Federal Highway Administration (FHWA) or their duly authorized representatives for review and inspection at its office during the contract period and for four (4) years from the date of final acceptance of the work defined under this contract or until impending litigation or audits are completely resolved. Additionally, the State, FHWA and their duly authorized representatives shall have access to all records of the City which are directly applicable to this agreement for the purpose of making audits, examinations, excerpts and transcriptions. Sheet 10 of 12 DRAFT 24. PROCUREMENT AND PROPERTY MANAGEMENT STANDARDS The City shall adhere to the procurement standards established in Title 49 CFR Part 18.36 and the property management standards established in Title 49 CFR Part 18.32. 25. CIVIL RIGHTS COMPLIANCE The City shall comply with the regulations of the Department of Transportation as they relate to nondiscrimination (49 CFR 21 and 23 CFR 710.405 (B) ) ; also Executive Order 11246 titled "Equal Employment Opportunity", as amended by Executive Order 11375 and as supplemented in the Department of Labor regulations (41 CFR 60) . 26. DISADVANTAGED BUSINESS ENTERPRISE PROGRAM REQUIREMENTS The City shall comply with the "Disadvantaged Business Enterprise Program Requirements" established in 49 CFR Part 23, Subpart D. 27. DEBARMENT CERTIFICATIONS The City is prohibited from making any award at any tier to any party which is debarred or suspended or otherwise excluded from or ineligible for participation in federal assistance programs under Executive Order 12549, Debarment and Suspension. The City shall require any party to a subcontract or purchase order awarded under this contract as specified in Title 49 of the Code of Federal Regulation, Part 29 (Debarment and Suspension) to certify its eligibility to receive federal funds and, when requested by the State, to furnish a copy of the certification. Sheet 11 of 12 DRAFT IN TESTIMONY HEREOF, the parties have caused these presents to be executed in duplicate counterparts. THE CITY OF BEAUMONT, TEXAS By: Typed Name Title Date ATTEST: City Secretary THE STATE OF TEXAS Executed for the Executive Director and approved by the Texas Transportation Commission under the authority of Minute Order No. 100002 and Stand Alone Manual Notice 98-3, for the purpose and effect of activating and carrying out the orders, established policies or work programs heretofore approved by the Texas Transportation Commission. By: Lawrence J. Zatopek Director, General Services Division Date Sheet 12 of 12