HomeMy WebLinkAboutRES 06-134 RESOLUTION NO. 06-134
BE IT RESOLVED BY THE CITY COUNCIL
OF THE CITY OF BEAUMONT:
THAT the City Manager is hereby authorized to execute an Advance Funding Agreement
with the Texas Department of Transportation (TX DOT) for the Calder Avenue at
Pinchback Outfall Bridge Replacement Project. The City of Beaumont's share of the
replacement cost of$379,989.66 is$37,989.76. The agreement is substantially in the form
attached hereto as Exhibit "A" and made a part hereof for all purposes.
PASSED BY THE CITY COUNCIL of the City of Beaumont this the 9th day of May,
2006.
Mayor Guy N. Goodson -
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STATE OF TEXAS §
COUNTY OF TRAVIS §
ADVANCE FUNDING AGREEMENT
For Bridge Replacement or Rehabilitation
Off the State System
THIS Advance Funding Agreement (the 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 "Local Government."
WITNESSETH
WHEREAS, Title 23,United States Code Section 144 authorizes federal funds to assist the
States in the replacement or rehabilitation of deficient bridges located on public highways, roads
and streets, including those under the jurisdiction of local governments; and
WHEREAS, the Texas Transportation Code, Sections 201.103 and 222.052 establish that the
State shall plan and make policies for the construction of a comprehensive system of state
highways and public roads in cooperation with local governments; and
WHEREAS, the Local Government owns a bridge or bridges located on a public road or street
located at Calder Ave. and said bridge(s) is included in the currently approved off-state system
federal-aid Highway Bridge Replacement and Rehabilitation Program (HBRRP) as authorized by
Texas Transportation Commission Minute Order number 110479, dated March 30, 2006; and
WHEREAS, the Governing Body of the Local Government has approved entering into this
Agreement by resolution or ordinance which is attached hereto and made a part hereof as
Attachment A and which provides for development of the specific programmed replacement or
rehabilitation project, hereinafter called the "Project", identified in the location map shown as
Attachment B.
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:
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EXHIBIT "A"
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AGREEMENT
1. Period of this 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 terminated as
provided in Article 2.
2. Conditions for Termination of this Agreement "
a. The Agreement is terminated in writing with the mutual consent of the parties; or
b. Breach of this Agreement, in which case any cost incurred shall be paid by the
breaching party; or
c. If the Local Government elects not to develop the project and the project does not
proceed, in which case the Local Government agrees to reimburse the State for 100
percent of its reasonable actual direct and indirect costs incurred for the project.
3. Amendments
Amendments to this Agreement may be made due to changes in the character of the work,
the terms of the Agreement, or the responsibilities of the parties. Amendments shall be
enacted through a mutually agreed upon, written amendment executed by all parties to this
Agreement.
4. Remedies
This,Agreement shall not be considered as specifying the exclusive remedy for any
Agrement default,but all remedies existing at law and in equity may be availed of by
either party to this Agreement and shall be cumulative.
5. Scope of Work
The scope of work for this Agreement is the replacement or rehabilitation of the bridge(s)
identified in the recitals of this Agreement. This replacement or rehabilitation shall be
accomplished in the manner described in the plans, specifications and estimates developed
in accordance with this Agreement and which are incorporated herein by reference.
6. Right of Way and Real Property
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The Local Government is responsible for the provision and acquisition of all necessary
right of way and will not be reimbursed with federal or state funds for the required right of
way.
The Local Government authorizes the State, its consultant, contractor, or other designated
representative to enter the site(s) of said bridge(s) and adjacent right of way or relocation
right of way to perform surveys, inspections, construction and other activities necessary to
replace or rehabilitate said bridge and approaches.
7. Adjustment of 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 an variance pp y ce from established procedures.
is P
Before a construction contract
is let, the Local Government shall P rovide 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.
8. Environmental Assessment and Mitigation
Development of the 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.
a. The State is responsible for the identification and assessment of any environmental
.,m. problems associated with the development of the Project governed by this Agreement.
b. Cost participation in environmental assessment and remediation work shall be paid by
the parties in the same ratio as construction costs and will be included in the
construction costs identified in Attachment D, "Estimate of Direct Costs".
c. The State is responsible for providing any public meetings or public hearings required
for development of the environmental assessment
The State will not begin construction of the Project until identified environmental problems
have been remediated, unless provided for otherwise.
9. Compliance with Texas Accessibility Standards and ADA
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All parties to this Agreement shall ensure that the plans for and the construction of the
Project 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).
10. Architectural and Engineering Services will be Provided by the State
The State is responsible for performance of any required architectural or preliminary
engineering work. The Local Government may review and comment on the work as
required to accomplish the public purposes of the Local Government. The State will
cooperate fully with the Local Government in accomplishing these local public purposes to
the degree permitted by state and federal law. The Local Government review shall not
unduly delay the development of the Project.
11. Construction Responsibilities
a. The State shall 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, which 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. Upon completion of the Project, the State will issue a "Notification of Completion"
acknowledging the Project's construction completion.
12. Project Maintenance
After the Project has been completed, the Local Government shall accept full ownership,
and operate and maintain the facilities authorized by this Agreement for the benefit of and
at no charge of toll to the public. This covenant shall survive the completion of
construction under this Agreement.
13. Local Project Sources and Uses of Funds
a. A Project Cost Estimate is provided in Attachment D, "Estimate of Direct Costs".
b. Attachment D provides a source of funds estimate as well as the estimated direct
preliminary engineering, construction engineering, and construction costs for the
Project in total and by the Local Government.
c. The required Local Government participation is based solely upon the State's estimate
of the eligible work at the time this Agreement is executed and will not be adjusted
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during construction except as needed to include any Project cost item or portion of a
cost item ineligible for state or federal participation. In addition to its share of
estimated direct engineering and construction costs, the Local Government is
responsible for the direct cost of any project cost item or portion of a cost item that is
not eligible for federal participation under the federal BBRRP.
The Local Government is also responsible for any cost resulting from changes made at
the request of the Local Government.
d. After execution of this Agreement, but thirty (30) days prior to the performance of any
work by the State, the Local Government will remit a check or warrant made payable to
the Texas Department of Transportation" in the amountspecified
in Attachment D for
the Local Government's contribution for preliminary engineering. The Local
Government will pay at a minimum its funding share for this estimated cost of
preliminary engineering.
e. Forty-five (45) days prior to the date set for receipt of the construction bids, the Local
Government shall remit its remaining financial share for the State's estimated
construction oversight and construction costs and any other costs owing.
f. If at the completion or termination of the Project the State determines that additional
funding is required by the Local Government, the State shall notify the Local
Government in writing. The Local Government shall make payment to the State within
thirty (30) days from receipt of the State's written notification.
g. Upon completion of the Project, the State will perform an audit of the Project costs.
Any funds due to the Local Government, the State, or the Federal Government will be
promptly paid by the owing party.
h. The State will not pay interest on any funds provided by the Local Government.
i. The Local Government funding participation responsibilities include Project direct
costs only, except when the Project is terminated before completion at the request of the
Local Government as addressed in the Termination provision of this Agreement.
j. If the Project has been approved for a "fixed price" or an "incremental payment" non-
standard funding or payment arrangement under 43 TAC §15.52, this Agreement will
clearly state the amount of the fixed price or the incremental payment schedule.
k. Under the provisions of Texas Transportation Code Section 222.053 certain counties
qualify as Economically Disadvantaged Counties (EDC) in comparison to other
counties in the state as below average per capita property value, and below average per
capita income, and above average unemployment, for certain years. If applicable, in
consideration of such EDC status that may be applicable for the Project, the required
local match fund participation has been adjusted to N/A percent as authorized by Texas
Transportation Commission Minute Order Number N/A, dated N/A.
1. The State will not execute the contract for the construction of a Project until the
required funding has been made available.by the Local Government in accordance with
this Agreement.
m. 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
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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.
14. Performance by Local Government of Equivalent-Match Projects (EMPs) in Return
for Waiver of Local Match Participation Funding on Participation-Waived Projects
(PWPs)
a. Applicability. If a request for waiver has been received and approved by the State's
District Engineer, then the required ten percent matching fund participation or percent
as adjusted for EDC consideration, as shown in Attachment D, "Estimate of Direct
Costs",but excluding ineligible costs under the bridge program, is waived. This waiver
is based on the commitment of the Local Government to spend an equivalent amount of
funds for structural or safety improvement on "other"bridge structures and other
conditions as specified in 43 TAC Section 15.55(d). If a waiver has been granted, the
Project shall be defined to be a Participation-Waived Project (PWP) and the work on
the "other" bridge structures that will be improved by the Local Government shall be
defined to be the Equivalent-Match Project(s) (EMP). Attachment C to this Agreement
shows a list of EMP(s) under this Agreement.
b. Project Cost Estimate for PWP. Attachment D to this Agreement shows the estimated
direct preliminary engineering, construction engineering and construction costs for the
PWP in total and local match fund participation being waived, or partially waived.
c. Credit Against EMP Work. Any local match fund participation that has already been
paid, or which the Local Government is agreeable to paying to the State, will be
credited against EMP work to be performed by the Local Government. If applicable,
this credit(s) will be reflected in Attachment D to this Agreement.
d. Responsibilities of the Local Government on EMP(s).
(1) The Local Government shall be responsible for all engineering and construction,
and related costs thereto, and complying with all applicable state and federal
environmental regulations and permitting requirements.
(2) The structural or safety improvement work on the EMP(s) shall be performed
subsequent to the final execution of this Agreement but within three (3) calendar
years after the earliest contract award of the related PWP(s).
(3) Written documentation, suitable for audit, of the structural or safety improvement
work completed on the EMP(s) shall be kept on file by the Local Government for
four(4) years after completion of work or claims, lawsuits, or audits related
thereto, whichever is longer. A notice of completion of work on the EMP(s) shall
be delivered to the State's District Engineer no later than thirty (30) calendar days
after work is completed on the EMP(s).
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(4) Failure by the Local Government to adequately complete the ENT(s) within the
stated three-year period shall result in the Local Government being excluded from
receiving such waivers for a minimum of five (5) years.
e. Funding of Ineligible or Additional Work Not Waived. Regardless of any waiver of
eligible program costs, the Local Government shall pay the State 100 percent of the
cost of any PWP item or portion of a cost item that is not eligible for federal or state
participation, and 100 percent of the costs resulting from additional work on the PWP
performed solely at the request of the Local Government. If the ineligible or additional
work is preliminary engineering, the payment shall be made at least thirty (30) days
prior to the.beginning of preliminary engineering work on the PWP.
If the ineligible or additional work is for construction or construction engineering, the
payment shall be made at least forty-five (45) days prior to the date set for receipt of bids
J for construction of the PWP.
15. 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. John Barton, P.E., District En ineer
Texas Department of Transportation
8350 Eastex Freeway
Beaumont,Texas 77708
Local Government: Honorable Guy Goodson, Mayor
City of Beaumont, State of Texas
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 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.
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16. 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 and this Agreement shall be construed
as if it did not contain the invalid, illegal or unenforceable provision.
17. Responsibilities of the Parties
The parties to this Agreement agree that no 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.
18. 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.
19. Compliance with Laws
The parties 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 this Agreement. When required, the
Local Government shall furnish the State with satisfactory proof of this compliance.
20. Sole Agreement
This Agreement constitutes the sole and only agreement between the parties and supersedes
any prior understandings or written or oral agreements respecting this Agreement's subject
matter.
21. Office of Management and Budget (OMB) Cost Principles
In order to be reimbursed with federal funds, the parties shall comply with the Cost
Principles established in OMB Circular A-87 that specify that all reimbursed costs are
allowable,reasonable and allocable to the Project.
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22. Procurement and Property Management Standards
The parties shall adhere to the procurement standards established in Title 49 CFR §1836
and with the property management standard established in Title 49 CFR §18.32.
23. Inspection of Books and Records
The parties to the 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 Federal Highway Administration (FHWA), and the U.S. Office of the Inspector
General, 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 completion of work
defined under this contract 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.
24. Office of Management and Budget (OMB) Audit Requirements
The parties shall comply with the requirements of the Single Audit Act of 1984,
P.L. 98-502, ensuring that the single audit report includes the coverage stipulated in OMB
Circular No. A-128 through August 31, 2000 and stipulated in OMB Circular A-133 after
August 31, 2000.
25. Civil Rights Compliance
The parties to this Agreement shall comply with the regulations of the U.S. Department of
Transportation as they relate to nondiscrimination (49 CFR Chapter 21 and 23 CFR
§710.405(B)), and Executive Order 11246 titled"Equal Employment Opportunity," as
amended by Executive Order.11375 and supplemented in the Department of Labor
Regulations (41 CFR Part 60).
26. Disadvantaged Business Enterprise Program Requirements
The parties shall comply with the Disadvantaged/Minority Business Enterprise Program
requirements established in 49 CFR Part 26.
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27. Debarment Certifications
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." The
parties to this contract shall require any party to a subcontract or purchase order awarded
under this contract to certify its eligibility to receive federal funds.and, when requested by
the State, to furnish a copy of the certification in accordance with Title 49 CFR Part 29
(Debarment and Suspension).
28. Lobbying Certification
In executing this Agreement, the signatories certify to the best of his or her 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 be included in the award
documents for all subawards at all tiers (including subcontracts, subgrants, and
contracts under grants, loans, and cooperative agreements) and that all subrecipients
shall certify and disclose accordingly.
By executing this Agreement, the parties affirm this lobbying certification with respect to
the Project and affirm this certification of the material representation of facts upon which
reliance will be made. 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.
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29. 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.
30. Local Government Restrictions
In the case that the local government has an existing, future or proposed local ordinance
commissioners court order, rule olic or
other directive that is
more restrictive than the
P Y
state or federal regulations that results in an increase cost to the State for the project, the
local government is responsible for all increased costs associated with the ordinance, order,
policy, directive, or change.
31. Signatory Warranty
The signatories to this Agreement warrant that each has the authority to enter into this
Agreement on behalf of the party represented.
IN TESTIMONY HEREOF, the parties hereto have caused these presents to be executed in
duplicate counterparts.
THE LOCAL GOVERNMENT
By:
Signature
Printed Name of Signatory
Title:
Date:
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THE STATE OF TEXAS
Executed for the Executive Director and approved for the Texas Transportation Commission for
the purpose and effect of activating and/or carrying out the orders, established policies or work
programs heretofore approved and authorized by the Texas Transportation Commission.
By:
William R. Cox, PE
Director, Bridge Division
Date:
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ATTACHMENT A
RESOLUTION OR ORDINANCE OF LOCAL GOVERNMENT
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ATTACHMENT B
PROJECT LOCATION MAP
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ATTACHMENT C (See Note **)
LIST OF DISTRICT ENGINEER APPROVED
EQUIVALENT-MATCH PROJECT(S) (EMP)
Location (and structure On School Historic Description of Structural Estimated Cost
identification number, Bus Route? Bridge? or Safety Improvement
if applicable) (Yes/No) (Yes/No) Work
N/A
Total
EMP work credited to this PWP(See Note *)
Balance of EMP work available to associated PWP(s)
Associated PWP(s) Control-Section-Job(CSJ) Amount to be Credited to Associated PWP(s)
Note *: This total should typically equal the "Balance of Local Government Participation" that
is waived as shown in Attachment D.
Note**: This attachment not applicable for non-Participation-Waived Projects (PWP)
Bridge-Bridge_AFA Page 15 of 16 Bridge Division
Rev 01109/06 10-2002-L.1
CSJ#0920-38-173
District# 20 BMT
Code Chart 64#03200
Project: BR( )
NBI Structure#20-124-0-B001-70- 001
ATTACHMENT D
ESTIMATE OF DIRECT COSTS
Local Government
Estimated Cost Participation
Preliminary Engineering(PE) (1) $70,000.00
Ten (10)Percent or EDC Adjusted Percent
of PE for Local Government Participation (3) $7,000.00
Construction $ 257,390.60
Engineering and Contingency(E&C) $ 52,507.56
The Sum of Construction and E&C (2) $309,897.56
Ten (10)Percent or EDC Adjusted Percent
of the Sum of Construction and E&C for
Local Government Participation (4) $ 30,989.76
Amount of Advance Funds Paid by Local
Government * (5) $0
Amount of Advance Funds to be Paid by
Local Government * (6) $0
Balance of Local Government Participation
which is to be Waived where the
Project is a PWP (3+4-5-6) $ 37,989.76
Total Project Direct Cost (1+2) $ 379,897.56
* Credited Against Local Government Participation Amount
If this Project is to be a PWP,Amount of .
EMP Work Being Credited to this PWP as
Shown on Attachment C. N/A
Bridge-Bridge_AFA Page 16 of 16 Bridge Division
Rev 01/09/06 10-2002-L.1