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HomeMy WebLinkAboutResolution - 5654 - Contract - TDOT - Metropolitan Transportation Planning - 10_09_1997RESOLUTION N0.-5654 Item #22 October 9, 1997 i • � BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock a Metropolitan Transportation Planning Contract and all related documents with the Texas Department of Transportation. Said contract is attached hereto, and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council this 9thday of October , 1997. WINDY SI O AYOR ATTEST: Ka i Darnell, City Secretary APPROVED AS TO CONTENT Mildred Cox, Managing Director Transportation Services APPROVED AS TO FORM 11/C,�c.._. William de Haas Assistant City Attorney RESOLUTION NO.5654 Item #22 October 9, 1997 METROPOLITAN TRANSPOR*ATION PLANNING CONTRACT THE STATE OF TEXAS " THE COUNTY OF TRAVIS THIS CONTRACT IS MADE by and between the State of Texas, acting by and through the Texas Department of Transportation, hereinafter called "the department," and the City of Lubbock, which has been designated as the Metropolitan Planning Organization (MPO) of the Lubbock urbanized area(s), hereinafter called the MPO. WITNESSETH WHEREAS, 23 USC Section 134 and 49 USC Section 5301 et seq. require that Metropolitan Planning Organizations, in cooperation with the department and transit agencies, develop transportation plans and programs for urbanized areas of the State; and WHEREAS, 23 USC Section 104 (f) authorizes Metropolitan Planning (PL) funds and 49 USC Section 5301 et seq. authorizes funds to be made available to Metropolitan Planning Organizations designated by the Governor to support the urban transportation planning process; and WHEREAS, the federal share payable for authorized activities using 49 USC Section 5303 and metropolitan planning (PL) funds is 80% of allowable costs; and WHEREAS, §§221.003 and 222.031 Texas Transportation Code authorize the department to expend federal and state funds for improvements to the State Highway System, and for improvements to roads not on the system of the state highways, as may be necessary for proper construction and prosecution of the work; and WHEREAS, §§221.003 and 201.703 Texas Transportation Code authorize the department to provide the necessary in -kind match of 20% of allowable costs for metropolitan transportation planning for the integrated network of Federal, State and local roads; and WHEREAS, metropolitan planning (PL) funds, and other federal transportation funds that may be used for planning (e.g., Surface Transportation Program, National Highway System, Congestion Mitigation and Air Quality, etc.) and 49 USC Section 5303 funds are to be used in conjunction with work conducted under the terms of this contract; and WHEREAS, the Governor of the State of Texas has designated the City of Lubbock acting through its Transportation Policy Board to be the MPO for the above -mentioned urbanized area(s); and WHEREAS, an area equal to or larger than the above -mentioned urbanized area has been delineated and approved in accordance with Federal and state guidelines where required metropolitan transportation planning activities may take place; and WHEREAS, the Texas Transportation Commission and the City of Lubbock have executed an agreement pursuant to the MPO designation NOW, THEREFORE, in consideration of the premises and mutual covenants and agreements of the parties hereto to be by them respectively kept and performed, as hereinafter set forth, the department and the MPO do agree to as follows: 1 AGREEMENT Article 1. Contract Period This agreement becomes effective on October 1, 1997, or when signed by all parties hereto, whichever is later, and shall extend for the succeeding six years (ending September 30, 2003). Nothing, however, shall obligate the department to the MPO if the Governor's designation of the MPO is withdrawn or if federal funds cease to become available within the six -year period or if the contract is terminated as hereinafter provided. At the end of six years, this agreement shall be reviewed. If all terms and conditions of this agreement remain viable and no amendment or new agreement is required, a letter from the department to the MPO shall constitute renewal of the agreement, subject to all terms and conditions herein specified. However, an amendment or a new agreement can be executed, if necessary. Article 2. Responsibilities of the Department The responsibilities of the department are as follows: 1. Make available to the MPO the appropriate federal transportation planning funds and the required non-federal, in -kind matching funds as authorized by the Texas Transportation Commission. Federal transportation planning funds will be distributed to the MPOs based on a formula mutually agreed to by the department, Federal Highway Administration (FHWA) and the Federal Transit Administration (FTA). 2. Provide, as appropriate, technical assistance and/or guidance in the collection, processing, and forecasting of socio-economic data needed for development of traffic forecasts and planning proposals within the Metropolitan Planning Area. 3. Collect, process and forecast vehicular travel volume data in cooperation with the MPO. 4. Jointly promote the intermodal development of the State's transportation system within the Metropolitan Planning Area by identifying points in the system where access, connection and coordination between the modes and inter -urban facilities would benefit the entire system. 5. Share information and information sources concerning transportation planning issues. Article 3. Responsibilities of the MPO The responsibilities of the MPO are as follows: 1. Use funds provided in accordance with Article 2, Section 1 of this contract to 2 develop and maintain a comprehensive regional transportation planning program in conformity with requirements of 23 USC Section 134(f) and 49 USC Section 5303. 2. Assemble and maintain an adequate, competent staff to perform all appropriate MPO activities required by law. A "Transportation Planning Director" shall be designated to administer the program. The Transportation Planning Director, who shall serve in a full time capacity for Transportation Management Areas, shall take planning policy direction from and be responsible to the designated MPO Transportation Policy Board. For the non -Transportation Management Areas, the Transportation Planning Director shall take planning policy direction from and be responsible to the designated MPO Transportation Policy Board. All MPO transportation planning staff shall be supervised by the Transportation Planning Director regardless of agency affiliation. The Transportation Planning Director shall also act as a liaison to the department's transportation planning program through the department's district officeu and the department's Transportation Planning and Programming Division's representative. 3. All employees of the MPO shall have such knowledge and experience as will enable them to perform the duties assigned to them. 4. Collect, maintain, forecast and report to the department on a timely basis appropriate socio-economic, roadway and travel data, in cooperation with Texas Department of Transportation. 5. Maintain required accounting records for state and federal funds consistent with current federal and state requirements. 6. Prepare all required plans, reports, programs, data and certifications in a timely manner. 7. Develop a Metropolitan Transportation Plan, a Transportation Improvement Program and a Unified Planning Work Program for the Metropolitan Planning Area that will complement the Statewide Multimodal Transportation Plan required by the state and federal law. At a minimum the MPO shall consider in their planning process the applicable factors outlined in 23 USC Section 134(f). 8. Share information and information sources concerning transportation planning issues. Article 4. Unified Planning Work Program 1. Each year the MPO shall submit to the department for approval a program of work which includes goals, objectives and/or tasks required by each of the several agencies involved in the metropolitan transportation planning 3 process. This program of work is to be called the Unified Planning Work Program (UPWP) or any name that may be specified in later federal or state regulations, and each year's approved UPWP shall be incorporated into this contract by reference. 2. The UPWP will be prepared for a period of one year only. The UPWP shall reflect only that work that can be accomplished during the fiscal year. 3. The budget and statement of work for each year of this contract will be as included in each UPWP. The department must approve the UPWP in writing before any costs may be incurred thereunder for the new fiscal year and the maximum amount payable for each year will not exceed the estimated budget included in the UPWP. 4. The effective date of each UPWP will be October 1 of each fiscal year or the date of department approval, whichever occurs later. On that date, the UPWP shall constitute a new federal project and shall supersede the previous UPWP. 5. The UPWP shall comply with all applicable federal and state requirements and will describe metropolitan transportation and transportation -related planning activities anticipated in the area during the next one-year period. 6. The UPWP shall reflect transportation planning work tasks to be funded by federal, state or local transportation, or transportation -related (e.g., air quality), planning funds. 7. The use of federal metropolitan transportation planning funds shall be limited to transportation planning work conducted inside the Metropolitan Area Boundary. Any costs incurred for work outside this area will not be eligible for reimbursement. 8. Travel outside the Metropolitan Area Boundary by MPO staff and other agencies participating in the MPO planning process shall be approved by the department if funded with federal transportation planning funds. Approval must be received prior to incurring any costs associated with the actual travel (e.g., registration fee). This provision will not apply if the travel was at the request of the department. 9. The cost of travel incurred by elected officials will not be eligible for reimbursement with federal transportation planning funds. 10. The use of federal transportation planning funds shall be limited to corridor/subarea level planning (major investment studies and environmental studies are considered corridor level planning). The use of such funds beyond the environmental document preparation or for specific project level planning and engineering (efforts directly related to a specific project instead of a corridor) is not allowed. 11. The department will develop a time line for development of the UPWP by 4 the MPO. Failure to adhere to the time line may result in a delay in the authorization to the MPO to proceed in incurring costs. 12. The department shall develop a standard UPWP format to be used by the MPO. A UPWP submitted in different format will not be approved. 13. The MPO shall not incur any costs for work outlined in the UPWP or any subsequent amendments (i.e., add new work tasks or change the scope of existing work tasks) prior to receiving approval from the department. Any costs incurred prior to receiving department approval shall not be eligible for reimbursement from federal transportation planning funds. 14. Costs incurred by the MPO shall not exceed the total budgeted amount of the UPWP without prior approval of the MPO Policy Board and the department. Costs incurred on individual work task shall not exceed that task budget by 25% without approval of the MPO Policy Board and the department. If the costs exceed 25% of the task budget, the UPWP shall be revised, approved by the MPO Policy Board and submitted to the department for approval. 15. The MPO Policy Board shall not delegate approval authority of, or subsequent revisions to, the UPWP. 16. Should any conflict be discovered between the terms of this contract and the UPWP, the terms of this contract shall prevail. Article 5. Additional Work The MPO is not authorized to request payment for any work it may perform that is not included in the current UPWP. The determination on whether the work is included in the current UPWP remains with the department. Article 6. Compensation The department's payment of any cost incurred hereunder is contingent upon the following * - I Sufficient federal funds are available to the department for making payments hereunder. 2. The incurred cost is authorized in the UPWP. The maximum amount payable under this contract shall not exceed the total budgeted amount outlined in the UPWP. 3. The cost has actually been incurred by the MPO and meets the following criteria: (a) is verifiable from MPO records; (b) is not included as match funds for any other federally- 5 assisted program; (c) is necessary and reasonable for the proper and efficient accomplishment of program objectives; (d) is the type of charge that would be allowable under OMB Circular A-87 Revised, "Cost Principles for State, Local and Indian Tribal Governments"; and (e) is not paid by the,department or federal government under another assistance program unless authorized to be used as match under the other federal or state agreement and the laws and regulations to which it is subject. 4. After October 1 of each year, the department will issue a work order establishing the effective date of work and the total funds authorized to the MPO. If the UPWP is subsequently revised necessitating a revision to the original work order, or the department deems a revision necessary, a revised work order may be issued at any time throughout the fiscal year. If the amount in the UPWP differs from the amount in the work order, the amount in the work order prevails. 5. The MPO is authorized to submit requests for payment of authorized costs incurred hereunder on a monthly basis. Each request for payment will be submitted in a manner acceptable to the department, which includes at a minimum the following information: (a) UPWP. budget category or line item; (b) description of the cost; (c) quantity; (d) price; (e) extension; and (f) total 6. The final bill from the previous fiscal year shall be submitted to the department no later than December 31. Any bills submitted after December 31 will be processed against the current year's UPWP. Total costs paid through December 31 will be used to determine whether the MPO will contribute to the General Transportation Planning Fund as outlined in the approved allocation formula. 7. Noncompliance with the terms of Article 3 may result in cancellation of work authorization and/or suspension of payments after a 30-day notification by the department to a Metropolitan Planning Organization's Policy Board. Article 7. Reporting To permit program monitoring and reporting, the MPOs shall prepare and submit an annual performance and expenditure report of progress to the department no later than December 31 of each year. A uniform format for the annual report will be established by the department, provided to and used by the MPOs. L Article S. Indemnification To the extent possible under State law, the MPO shall save harmless the department from all claims and liability due to the acts or omissions of the MPO, its agents or employees. To the extent possible under State law, the MPO also agrees to save harmless the department from any and all expenses, including attorney fees, all court costs and awards for damages, incurred by the department in litigation or otherwise resisting such claims or liabilities as a result of any activities of the MPO, its agents or employees. Further, to the extent possible under State law, the MPO agrees to protect, indemnify, and save harmless the department from and against all claims, demands and causes of action of every kind and character brought by any employee of the MPO against the department due to personal injuries and/or death to such employee resulting from any alleged negligent act, by either commission or omission on the part of the MPO or the department. Article 9. Inspection of Work and Retention of Documents The department and, when federal funds are involved, the U. S. Department of Transportation, and any authorized representative thereof, have the right at all reasonable times to inspect or otherwise evaluate the work performed or being performed hereunder and the premises in which it is being performed. If any inspection or evaluation is made on the premises of the MPO or a subcontractor, the MPO shall provide and require its subcontractor to provide all reasonable facilities and assistance for the safety and convenience of the inspectors in the performance of their duties. All inspections and evaluations shall be performed in such a manner as will not unduly delay the work. The MPO agrees to maintain all books, documents, papers, computer -generated files, accounting records and other evidence pertaining to costs incurred and work performed hereunder and shall make such materials available at its office during the time period covered and for four years from the date of final payment under the UPWP. Such materials shall be made available during the specified period for inspection by the department, the U.S. Department of Transportation and the Office of the Inspector. General of the U.S. Department of Transportation and any of their authorized representatives for the purpose of making audits, examinations, excerpts and transcriptions. Article 10. Work Performance All work performed hereunder shall be carried out in a professional and orderly manner, and the products authorized in the UPWP shall be accurate and exhibit high standards of workmanship. 7 Article 11. Disputes The MPO shall be responsible for the settlement of all contractual and administrative issues arising out of procurement entered into in support of contract work. In the event of a dispute between the department and the Metropolitan Planning Organization concerning the work performed hereunder in support of the urban transportation planning process, the Executive Director of the department shall act as referee, and his decision shall be final and binding. Article 12. Noncollusion The MPO warrants that it has not employed or retained any company or person, other than a bona fide employee working for it, to solicit or secure this contract, and that it has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon or resulting from the award or making of this contract. If the MPO breaches or violates this warranty, the department shall have the right to annul this contract without liability or, in its discretion, to deduct from the contract price or consideration, or otherwise recover the full amount of such fee, commission, brokerage fee, gift, or contingent fee. Article 13. Subcontracts Any subcontract for services rendered by individuals or organizations not a part of the MPO's organization shall not be executed without prior authorization and approval of the subcontract by the department and, when federal funds are involved, the U.S. Department of Transportation. If the work for the subcontract is authorized in the current approved Unified Planning Work Program, and if the MPO's procurement procedures for negotiated contracts have been approved by the department either directly or through self -certification by the MPO, the subcontract shall be deemed to be authorized and approved, provided that the subcontract includes all provisions required by the department and the U.S. Department of Transportation. Subcontracts in excess of $25,000 shall contain all required provisions of this contract. No subcontract will relieve the MPO of its responsibility under this contract. Article 14. Termination The department may terminate this contract at any time before the date of completion if the Governor withdraws his designation of the MPO or if it is determined that the MPO has failed to comply with the conditions of the contract. The department shall give written notice to the MPO at least thirty days prior to the effective date of termination and specify the effective date of termination. The department may terminate this contract for reasons of its own, subject to agreement by the MPO. 8 If both parties to this contract agree that the continuation of the contract would not produce beneficial results commensurate with the further expenditure of funds, the parties shall agree upon the termination conditions. Upon termination of this contract, whether for cause or at the convenience of the parties hereto, all finished or unfinished documents, data, studies, surveys, reports, maps, drawings, models, photographs, etc., prepared by the MPO shall, at the option of the department, be delivered to the department. The department shall compensate the MPO for those eligible expenses incurred during the contract period which are directly attributable to the completed portion of the work covered by this contract, provided that the work has been completed in a manner satisfactory and acceptable to the department. The MPO shall not incur new obligations for the terminated portion after the effective date of termination. Except with respect to defaults of subcontractors, the MPO shall not be in default by reason of any failure in performance of this contract in accordance with its terms (including any failure by the MPO to progress in the performance of the work) if such failure arises out of causes beyond the control and without the default or negligence of the MPO. Such causes may include but are not limited to acts of God or of the public enemy, acts of the Goverment in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather. In every case, however, the failure to perform must be beyond the control and without the fault or negligence of MPO. Article 15. Remedies Violation or breach of contract terms by the MPO shall be grounds for termination of the contract. Any increased cost arising from the termination shall be paid by the MPO. This agreement shall not be considered as specifying the exclusive remedy for any dispute, but all remedies existing at law and in equity may be availed of by either party and shall be cumulative. Article 16. Gratuities Texas Transportation Commission policy mandates that employees of the department shall not accept any benefits, gifts or favors from any person doing business with or who reasonably speaking may do business with the department under this contract. Any person doing business with or who reasonably speaking may do business with the department under this contract may not make any offer of benefits, gifts or favors to department employees, except as mentioned here above. Failure on the part of the MPO to adhere to this policy may result in termination of this contract. Article 17. Compliance with Laws The MPO shall comply with all Federal, State and local laws, statutes, ordinances, rules and 0 , regulations, and the orders and decrees of any courts or administrative bodies or tribunals in any matter affecting the performance of.this contract, including without limitation, workers' compensation laws, minimum and maximum salary and wage statutes and regulations, and licensing laws and regulations. When required, the MPO shall furnish the department with satisfactory proof of its compliance therewith. Article 18. Successors and Assigns The MPO shall not assign or transfer its interest in this agreement without written consent of the department. Article 19. Debarment/Suspension The MPO is prohibited from making any award or permitting 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 MPO shall require any party to a subcontract or purchase order awarded under this contract as specified in Title 49 of the Code of Federal Regulations, Part 29 (Debarment and Suspension) to certify its eligibility to receive federal funds and, when requested by the department, to furnish a copy of the certification. Article 20. Equal Employment Opportunity The MPO agrees to comply with Executive Order 11246 entitled "Equal Employment Opportunity" as amended by Executive Order 11375 and as supplemented in Department of Labor Regulations (41 CFR 60). Article 21. Nondiscrimination During the performance of this contract, the MPO, its assigns and successors in interest, agrees as follows: Compliance with Regulations: The MPO shall comply with the regulations relative to nondiscrimination in federally -assisted programs of the U.S. Department of Transportation, Title 49, Code of Federal Regulations, Part 21 and Title 23, Code of Federal Regulations, Part 710.405(b), as they may be amended from time to time (hereinafter referred to as the Regulations), which are herein incorporated by reference and made a part of this contract. 2. Nondiscrimination: The MPO, with regard to the work performed by it during the contract, shall not discriminate on the grounds of race, color, sex, disability, age or national origin in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The MPO shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 and Part 710.405(b) or the Regulations, including employment practices 10 when the contract covers a program set forth in Appendix B of the Regulations. 3. Solicitations for Subcontracts, Including Procurements of Materials and Equipment: In all solicitations either by competitive bidding or negotiation made by the MPO for work to be performed under a subcontract, including procurements of materials or leases of equipment, each potential subcontractor or supplier shall be notified by the MPO of the MPO's obligations under this contract and the Regulations relative to nondiscrimination on the grounds of race, color, sex, disability, age or national origin. 4. Information and Reports: The MPO shall provide all information and reports required by the Regulations, or directives issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the department or the U.S. Department of Transportation to be pertinent to ascertain compliance with such Regulations or directives. Where any information required of the MPO is in the exclusive possession of another who fails or refuses to furnish this information, the MPO shall so certify to the department or the U.S. Department of Transportation as appropriate, and shall set forth what efforts it has made to obtain the information. 5. Sanctions for Noncompliance: In the event of the MPO's noncompliance with the nondiscrimination provisions of this contract, the department shall impose such contract sanctions as it or the U.S. Department of Transportation may determine to be appropriate, including but not limited to: withholding of payments to the MPO under the contract until the MPO complies, and/or * cancellation, termination, or suspension of the contract in whole or in part 6. Incorporation of Provisions: The MPO shall include the provisions of paragraphs 1 through 6 in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Regulations or directives issued pursuant thereto. The MPO shall take such action with respect to any subcontract or procurement as the department may direct as a means of enforcing such provisions including sanctions for noncompliance; provided, however, in that event, an MPO may request the United States to enter into such litigation to protect the interests of the United States. Article 22. Nondiscrimination on the Basis of Disability The MPO agrees that no otherwise qualified disabled person shall, solely by reason of his disability, be excluded from participation in, be denied the benefits of, or otherwise be subject to discrimination under the project. The MPO shall insure that all fixed facility construction or alteration and all new equipment included in the project comply with applicable regulations regarding Nondiscrimination on the Basis of Disability in Programs and Activities Receiving or Benefiting from Federal Financial Assistance, set forth at 49 CFR Part 27, and any amendments thereto. 11. Article 23. Disadvantaged Business Enterprise Program Requirements It is the policy of the U.S. Department of Transportation that Minority Business Enterprises as defined in 49 CFR 23, Subpart A, shall have the maximum opportunity to participate in the performance of contracts financed in whole or in part with Federal funds. Consequently the Minority Business Enterprise requirements of 49 CFR 23, exclusive of Subpart D, apply to this contract as follows. The MPO agrees to insure that Minority Business Enterprises as defined in 49 CFR 23, Subpart A, have the maximum opportunity to participate in the performance of contracts and subcontracts financed in whole or in part with Federal funds. In this regard, the MPO shall take all necessary and reasonable steps in accordance with 49 CFR 23, exclusive of Subpart D, to insure that Minority Business Enterprises have the maximum opportunity to compete for and perform contracts. The MPO and any subcontractor shall not discriminate on the basis of race, color, national origin, age, disability or sex in the award and performance of contracts funded in whole or in part with federal funds. These requirements shall be physically included in any subcontract. Failure to carry out the requirements set forth above shall constitute a breach of contract and, after the notification of the department, may result in termination of the contract by the department or other such remedy as the department deems appropriate. Article 24. Procurement The MPO shall maintain written procurement procedures that meet or exceed the requirements of 49 CFR 18, "Uniform Administrative Requirements for Grants and Cooperative Agreements with State and Local Governments," as it may be revised or superseded. These procedures will be used for all acquisitions authorized in any UPWP. The MPO agrees to comply with applicable Buy America requirements set forth in Section 401 of the Surface Transportation Assistance Act of 1978 (P.L. 95-599) and the Federal Transit Administration's Buy America regulations at 49 CFR 660. The MPO agrees to comply with the cargo preference requirements set forth in 46 USC 1241 and Maritime Administration regulations set forth in 46 CFR 381. Article 25. Environmental Protection and Energy Efficiency The MPO agrees to comply with all applicable standards, orders or requirements issued under Section 306 of the Clean Air Act (42 USC 1857[h]); Section 508 of the Clean Water Act (33 USC 1368); Executive Order 11738 and Environmental Protection Agency regulations (40 CFR, Part 15). The MPO further agrees to report violations to the Department. The MPO agrees to recognize standards and policies relating to energy efficiency which are 12 contained in the State energy conservation plan issued in compliance with the Energy Policy and Conservation Act (P.L..94-163). Article 26. Property Management The MPO shall maintain written property management procedures that meet or exceed the requirements of 49 CFR 18, "Uniform Administrative Requirements for Grants and Agreements with State and Local Govemments,' as it may be revised or superseded. These procedures will be used for any property acquired in whole or in part with federal and state funds provided through this contract. Article 27. Audit The MPO shall comply with the requirements of OMB Circular A-128, "Audit Requirements for State and Local Governments," and shall promptly fumish the department a copy of each audit report. The MPO shall be responsible for any funds determined to be ineligible for federal reimbursement, and shall reimburse the department the amount of any such funds previously provided to it by the department. Article 28. Control of Drug Use The MPO agrees to comply with the terms of the Federal Transit Administration regulation, "Control of Drug Use in Mass Transportation Operations", set forth at 49 CFR Part 653. Article 29. Restrictions on Lobbying Pursuant to Section 319 of Public Law 101-121, which generally prohibits recipients of Federal funds from using those monies for lobbying purposes, the MPO shall comply with the Special Provision "New Restrictions on Lobbying." Article 30. Amendments Any changes to one or more of the terms and conditions of this agreement shall not be valid unless made in writing and agreed to by the parties hereto before the change is implemented. Article 31. Distribution of Products The MPO will provide a number of copies to be specified by the department of all information, reports, proposals, brochures, summaries, written conclusions, graphic presentations, and similar materials developed by the MPO and financed in whole or in part as provided herein. All reports published by the MPO shall contain a prominent credit reference to the department and the U.S. Department of Transportation, Federal Highway Administration and Federal Transit 13 Administration: Prepared in cooperation with the Texas Department of Transportation and the U.S. Department of Transportation, Federal Highway Administration and Federal Transit Administration. Upon termination of this contract, all documents prepared by the MPO or fumished to the MPO by the department shall be delivered to the department. All such documents, photographs, calculations, programs and other data prepared or used under this contract may be used by the department without restriction or limitation of further use. Article 32. Legal Construction In case any one or more of the provisions contained in this agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision thereof and this agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. Article 33. Prior Agreements This agreement constitutes the sole and only agreement of the parties hereto and supersedes any prior understandings or written or oral agreements between the parties respecting the within subject matter. Article 34. Copyrights The department and the U.S. Department of Transportation shall, with regard to any reports or other products produced under this contract, reserve a royalty -free, nonexclusive and irrevocable right to reproduce, publish or otherwise use, and to authorize others to use the work for government purposes. 14 Article 35. Signatory Warranty The undersigned signatory for the MPO hereby represents and warrants that he is an officer of the MPO and that he has full and complete authority to enter into this contact on behalf of the MPO. IN WITNESS WHEREOF, the department and the MPO have caused this contract to be executed, but the contract shall not be valid until signed by a duly authorized representative of each party. Title Mayor Date October 9, 1997 ATTEST By Title C y Secretary Date October 9, 1997 THE STATE OF TEXAS Certified as being executed 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 under the authority of Minute Order 100002. B , Director, Transportation Planning and Programming Division Date lDZa ItzT'Z For the purpose of this agreement, the following addresses shall be used to mail all required notices, reports, claims, and correspondence: For the MPO: P.O. Box 2000 Lubbock,Texas 79457 For the Transportation Planning and Programming Division: 118 East Riverside Drive, Austin, Texas 78704 15 For the District Office: P.O. Box 771 Lubbock, Texas 79408-0771 ",SOLUTION 5654 CITY OF LUBBOCK TRANSPORTATION PLANNING INTEROFFICE MEMORANDUM DATE: March 25, 1998 TO: Windy Sitton, Mayor FROM: Nancy K. Harvieux, Transportation Planner RE: Amendments to the Metropolitan Transportation Planning Contract XC: Randy Neugebauer, TPC Chairperson Larry Hertel, City Engineer On October 9, 1997, you signed a resolution, which was passed by the City Council, approving the Metropolitan Transportation Planning Contract on behalf of the City of Lubbock. Included in the text of this resolution, Resolution No. 5654, is the stipulation that the Mayor of Lubbock is authorized and directed to execute the Metropolitan Transportation Planning Contract and all related documents. As a result, amendments made to the contract need to be approved with your signature. Several amendments have been made to the contract. These amendments do not need to go before the City Council for approval, but do need your signature. The contract contains guidelines and rules related to the planning activities of the MPO. There is no financial impact to the MPO, nor is there a direct effect on our operations. Some of the activities outlined in the revisions are intended to be used in limited circumstances and only with State approval once they are incorporated in the activities listed in the Unified Planning Work Program (UPWP). These amendments are not intended for regional ' - - projects or solutions. The amendments include: • data gathering (land use, demographics, or traffic/travel information) of surrounding communities outside the metropolitan boundary in preparation for expansion of the boundary; • clarification of planning activities at the sub-area/corridor level to assure they do not include design activities and are planning activities only; • deadlines for -annual -reports and financialsubmissionsand expansion on required reporting procedure; and • a correction of the auditing circular reference. The Transportation Policy Committee approved these amendments at their March 25, 1998 meeting and encourage your approval of the amendments. Please sign the attached document to indicate your approvalandreturnit tome. AFTexas Department of Transportation P O BOX 149217 • AUSTIN, TEXAS 78714-9217 • (512) 486-5000 February 17, 1998 Ms. Nancy Harvieux City of Lubbock P.O. Box 2000 Lubbock, TX 79457 Dear Ms. Harvieux: FILE TPP(I) (512) 486-5030 Attached to this letter are two copies of the amended metropolitan transportation planning contract. Amendment of your existing contract is necessary since passage of the metropolitan planning rules resulted in some variations between the planning contract and the adopted rules. Here is a summary of the changes that are made to the contract that many of you executed last year (strike through indicates deleted text; underlined text has been added to the new contract): Article 4. Unified Planning Work Program 7. The use ef fedeFal metmpolitan tFaRSP0Ftati9R plaRRiRg fuqds shall be lin*e440 tFanspoFlation planniRg woFk GandwGted OF;side the Metropolitan Area Baundar-y- AA4F Wsts inGumpal Inr wark ..-I* e this aFea vvill Rot be eligible fQF reimbUFsement The - _ use of federal metropolitan transportation planning funds shall be limited to transportation planning activities affecting the transportation system within the Metropolitan Area Boundary (MAB). If an MPO determines that data collection and analysis activities relating to land use, demographics, or traffic or travel infom(aation, conducted outside the MAR affect the transportation system within the MAB, then those activities may be undertaken using federal planning funds, provided that the activities are specifically identified in an approved UPWP. Any other costs incurred for transportation planning activities outside the MAB will not be eligible for reimbursement. 10. The use of fedeFal tFanspwtatias planning funds shall be lim4ed to GeF;ider4subama level planning (majoi: investment studies an ual swdie-s al#ewed.—The use of federal transportatkm-ptannina funds shall be limdeed to �_- — Planning. The use of such funds beyond environmental document preparation or for ecifcc pE*ct level planning and engineering (efforts directly related to a specific proiect instead of a ? is not allowed. An Equal Opportunity Employer Ms. Nancy Harvieux -2- February 17. 1998 Article 7. Reporting. To permit program monitoring and reporting, the MPOs shall prepare and submit an annual performance and expenditure report of progress to the department no later than December 31 of each year. A uniform format for the annual report will be established by the department, provided to and used by the MPOs. If task expenditures overrun or under -run a task budget by 25% or more, the annual performance and expenditure report must include an explanation as to why overrun or under -run occurred. Article 27. Audit. The MPO shall comply with the requirements of OMB Circular A- ," A-133. "Audits of States. Local Governments and Non -Profit Organizations" and shall promptly furnish the department a copy of each audit report. For those of you who were waiting to execute the contract until the metropolitan rules were adopted, please be aware that federal funds will not be available to your MPO unless you have a valid contract. The new contracts must be signed by the individual who has signatory authority for your MPO and then forwarded to your local TxDOT district office. The district will forward both copies of the contracts to the Transportation Planning and Programming Division for the Director's signature. After the division director has signed both copies, we will return a completed copy to you and one to the district for their files. If you have any questions regarding the reasons for the changes in the contract or the process to execute the contract, please contact Maureen McCoy Daniel at (512) 486-5030 or at her e- mail address"mrnccoy@mailgw.state.dot.tx.us." Sincerely, a Agustin Chavez, P.E. Engineer of Intermodal Planning MMD/act Attachment Item #22 October 9, 1997 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock a Metropolitan Transportation Planning Contract and all related documents with the Texas Department of Transportation. Said contract is attached hereto, and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council this 9thday of October , 1997. Ka� Darnell, City Secretary APPROVED AS TO CONTENT C. Mildred Cox, Managing Director Transportation Services APPROVED AS TO FORM William de Haas Assistant City Attorney METROPOLITAN TRANSPORTATION PLANNING CONTRACT THE STATE OF TEXAS " THE COUNTY OF TRAVIS " THIS CONTRACT IS MADE by and between the State of Texas, acting by and through the Texas Department of Transportation, hereinafter called "the department" and the City of Lubbock, which has been designated as the Metropolitan Planning Organization (MPO) of the Lubbock urbanized area(s), hereinafter called the MPO. WITNESSETH WHEREAS, 23 USC Section 134 and 49 USC Section 5301 et seq. require that Metropolitan Planning Organizations, in cooperation with the department and transit agencies, develop transportation plans and programs for urbanized areas of the State; and WHEREAS, 23 USC Section 104 (f) authorizes Metropolitan Planning (PQ funds and 49 USC Section 5301 et seq. authorizes funds to be made available to Metropolitan Planning Organizations designated by the Governor to support the urban transportation planning process; and WHEREAS, the federal share payable for authorized activities using 49 USC Section 5303 and metropolitan planning (PL) funds is 80% of allowable costs; and WHEREAS, "221.003 and 222.031 Texas Transportation Code authorize the department to expend federal and state funds for improvements to the State Highway System, and for improvements to roads not on the system of the state highways, as may be necessary for proper construction and prosecution of the work; and WHEREAS, "221.003 and 201.703 Texas Transportation Code authorize the department to provide the necessary in -kind match of 20% of allowable costs for metropolitan transportation planning for the integrated network of Federal, State and local roads; and WHEREAS, metropolitan planning (PL) funds, and other federal transportation funds that may be used for planning (e.g., Surface Transportation Program, National Highway System, Congestion Mitigation and Air Quality, etc.) and 49 USC Section 5303 funds are to be used in conjunction with work conducted under the terms of this contract; and WHEREAS, the Governor of the State of Texas has designated the City of Lubbock acting through its Transportation Policy Board to be the MPO for the above -mentioned urbanized area(s); and WHEREAS, an area equal to or larger than the above -mentioned urbanized area has been delineated and approved in accordance with Federal and state guidelines where required metropolitan transportation planning activities may take place; and WHEREAS, the Texas Transportation Commission and the City of Lubbock have executed an agreement pursuant to the MPO designation NOW. THEREFORE, in consideration of the premises and mutual covenants and agreements of the parties hereto to be by them respectively kept and performed, as hereinafter set forth, the department and the MPO do agree to as follows: AGREEMENT Article 1. Contract Period. This agreement becomes effective on October 1, 1997, or when signed by all parties hereto, whichever is later, and shall extend for the succeeding six years (ending September 30, 2003). Nothing, however, shall obligate the department to the MPO if the Governor's designation of the MPO is withdrawn or if federal funds cease to become available within the six -year period or if the contract is terminated as hereinafter provided. At the end of six years, this agreement shall be reviewed. If all terms and conditions of this agreement remain viable and no amendment or new agreement is required, a letter from the department to the MPO shall constitute renewal of the agreement, subject to all terms and conditions herein specified. However, an amendment or a new agreement can be executed, if necessary. Article 2. Responsibilities of the Department. The responsibilities of the department are as follows: 1. Make available to the MPO the appropriate federal transportation planning funds and the required nonfederal, in -kind matching funds as authorized by the Texas Transportation Commission. Federal transportation planning funds will be distributed to the MPOs based on a formula mutually agreed to by the department, Federal Highway Administration (FHWA) and the Federal Transit Administration (FTA). 2. Provide, as appropriate, technical assistance and/or guidance in the collection, processing, and forecasting of socio-economic data needed for development of traffic forecasts and planning proposals within the Metropolitan Planning Area. 3. Collect, process and forecast vehicular travel volume data in cooperation with the MPO. 4. Jointly promote the intermodal development of the State's transportation system within the Metropolitan Planning Area by identifying points, in the system where access, connection and coordination between the modes and inter -urban facilities would benefit the entire system. 5. Share information and information sources concerning transportation planning issues. Article 3. Responsibilities of the MPO. The responsibilities of the MPO are as follows: 1. Use funds provided in accordance with Article 2, Section 1 of this contract to 2 develop and maintain a comprehensive regional transportation planning program in conformity with requirements of 23 USC Section 134(f) and 49 USC Section 5303. 2. Assemble and maintain an adequate, competent staff to perform all appropriate MPO activities required by law. ATransportation Planning Director' shall be designated to administer the program. The Transportation Planning Director, who shall serve in a full time capacity for Transportation Management Areas, shall take planning policy direction from and be responsible to the designated MPO Transportation Policy Board. For the non -Transportation Management Areas, the Transportation Planning Director shall take planning policy direction from and be responsible to the designated MPO Transportation Policy Board. All MPO transportation planning staff shall be supervised by the Transportation Planning Director regardless of agency affiliation. The Transportation Planning Director shall also act as a liaison to the department's transportation planning program through the department's district offices and the department's Transportation Planning and Programming Division's representative. 3. All employees of the MPO shall have such knowledge and experience as will enable them to perform the duties assigned to them. 4. Collect, maintain, forecast and report to the department on a timely basis appropriate socio-economic, roadway and travel data, in cooperation with Texas Department of Transportation. 5. Maintain required accounting records for state and federal funds consistent with current federal and state requirements. 6. Prepare all required plans, reports, programs, data and certifications in a timely manner. 7. Develop a Metropolitan Transportation Plan, a Transportation Improvement Program and a Unified Planning Work Program for the Metropolitan Planning Area that will complement the Statewide Multimodal Transportation Plan required by the state and federal law. At a minimum the MPO shall consider in their planning process the applicable factors outlined in 23 USC Section 134(f). 8. Share information and information sources concerning transportation planning issues. Article 4. Unified Planning Work Program Each year the MPO shall submit to the department for approval a program of work which includes goals, objectives and/or tasks required by each of the several agencies involved in the 3 metropolitan transportation planning process. This program of work is to be called the Unified Planning Work Program (UPWP) or any name that may be specified in later federal or state regulations, and each year's approved UPWP shall be incorporated into this contract by reference. 2. The UPWP will be prepared for a period of one year only. The UPWP shall reflect only that work that can be accomplished during the fiscal year. 3. The budget and statement of work for each year of this contract will be as included in each UPWP. The department must approve the UPWP in writing before any costs may be incurred thereunder for the new fiscal year and the maximum amount payable for each year will not exceed the estimated budget included in the UPWP. 4. The effective date of each UPWP will be October 1 of each fiscal year or the .date of department approval, whichever occurs later. On that date, the UPWP shall constitute a new federal project and shall supersede the previous UPWP. 5. The UPWP shall comply with all applicable federal and state requirements and will describe metropolitan transportation and transportation -related planning activities anticipated in the area during the next one-year period. 6. The UPWP shall reflect transportation planning work tasks to be funded by federal, state or local transportation, or transportation - related (e.g., air quality), planning funds. 7. The use of federal metropolitan transportation planning funds shall be limited to transportation planning activities affecting the transportation system within the Metropolitan Area Boundary (MAB). If an MPO determines that data collection and analysis activities relating to land use, demographics, or traffic or travel information, conducted outside the MAB, affect the transportation system within the MAB, then those activities may be undertaken using federal planning funds, provided that the activities are specifically identified in an approved UPWP. Any other costs incurred for transportation planning activities outside the MAB will not be eligible for reimbursement. 8. Travel outside the Metropolitan Area Boundary by MPO staff and other agencies participating in the MPO planning process shall be approved by the department if funded with federal transportation planning funds. Approval must be received prior to incurring any costs associated with the actual travel (e.g., registration fee). This provision will not apply if the travel was at the request of the department. 9. The cost of travel incurred by elected officials will not be eligible for reimbursement with federal transportation planning funds. 2 10. The use of federal transportation planning funds shall be limited to corridor/subarea level planning or multimodal or systemwide transit planning studies. Major investment studies and environmental studies are considered corridor level planning. The use of such funds beyond environmental document preparation or for specific project level planning and engineering (efforts directly related to a specific project instead of a corridor) is not allowed. 11. The department will develop a time line for development of the UPWP by the MPO. Failure to adhere to the time line may result in a delay in the authorization to the MPO to proceed in incurring costs. 12. The department shall develop a standard UPWP format to be used by the MPO. A UPWP submitted in different format will not be approved. 13. The MPO shall not incur any costs for work outlined in the UPWP or any subsequent amendments (i.e., add new work tasks or change the scope of existing work tasks) prior to receiving approval from the department Any costs incurred prior to receiving department approval shall not be eligible for reimbursement from federal transportation planning funds. 14. Costs incurred by the MPO shall not exceed the total budgeted amount of the UPWP without prior approval of the MPO Policy Board and the department. Costs incurred on individual work task shall not exceed that task budget by 25% without approval of the MPO Policy Board and the department. If the costs exceed 25% of the task budget, the UPWP shall be revised, approved by the MPO Policy Board and submitted to the department for approval. 15. The MPO Policy Board shall not delegate approval authority of, or subsequent revisions to, the UPWP. 16. Should any conflict be discovered between the terms of this contract and the UPWP, the terns of this contract shall prevail. Article 5. Additional Work The MPO is not authorized to request payment for any work it may perform that is not included in the current UPWP. The determination on whether the work is included in the current UPWP remains with the department. Article 6. Compensation. The department's payment of any cost incurred hereunder is contingent upon the following: 1. Sufficient federal funds are available to the department for making payments hereunder. 2. The incurred cost is authorized in the UPWP. The maximum 5 amount payable under this contract shall not exceed the total budgeted amount outlined in the UPWP. 3. The cost has actually been incurred by the MPO and meet, the following criteria: (a) is verifiable from MPO records; (b) is not included as match funds for any other federally - assisted program; (c) is necessary and reasonable for the proper and efficient accomplishment of program objectives; (d) is the type of charge that would be allowable under OMB Circular A-87 Revised, "Cost Principles for State, Local and Indian Tribal Governments;' and (e) is not paid by the department or federal government under another assistance program unless authorized to be used as match under the other federal or state agreement and the laws and regulations to which it is subject. 4. After October 1 of each year, the department will issue a work order establishing the effective date of work and the total funds authorized to the MPO. If the UPWP is subsequently revised necessitating a revision to the original work order, or the department deems a revision necessary, a revised work order may be issued at any time throughout the fiscal year. If the amount in the UPWP differs from the amount in the work order, the amount in the work order prevails. 5. The MPO is authorized to submit requests for payment of authorized costs incurred hereunder on a monthly basis. Each request for payment will be submitted in a manner acceptable to the department, which includes at a minimum the following information: (a) UPWP budget category or line item; (b) description of the cost; (c) quantity; (d) price; (e) extension; and (f) total 6. The final bill from the previous fiscal year shall be submitted to the department no later than December 31. Any bills submitted after December 31 will be processed against the current year's UPWP. Total costs paid through December 31 will be used to determine whether the MPO will contribute to the General Transportation Planning Fund as outlined in the approved allocation formula. 7. Noncompliance with the terms of Article 3 may result in cancellation of work authorization and/or suspension of payments after a 30-day notification by the department to a Metropolitan Planning Organization's Policy Board. 2 ,. i Article 7. Reporting. To permit program monitoring and reporting, the MPOs shall prepare and submit an annual performance and expenditure report of progress to the department no later than December 31 of each year. A uniform format for the annual report will be established by the department, provided to and used by the MPOs. If task expenditures overrun or under -run a task budget by 25% or more, the annual performance and expenditure report must include an explanation as to why overrun or under -run occurred. Article S. Indemnification. To the extent possible under State law, the MPO shall save harmless the department from all claims and liability due to the acts or omissions of the MPO, its agents or employees. To the extent possible under State law, the MPO also agrees to save harmless the department from any and all expenses, including attorney fees, all court costs and awards for damages, incurred by the department in litigation or otherwise resisting such claims or liabilities as a result of any activities of the MPO, its agents or employees. Further, to the extent possible under State law, the MPO agrees to protect, indemnify, and save harmless the department from and against all claims, demands and causes of action of every kind and character brought by any employee of the MPO against the department due to personal injuries and/or death to such employee resulting from any alleged negligent act, by either commission or omission on the part of the MPO or the department. Article 9. Inspection of Work and Retention of Documents.The department and, when federal funds are involved, the U. S. Department of Transportation, and any authorized representative thereof, have the right at all reasonable times to inspect or otherwise evaluate the work performed or being performed hereunder and the premises in which it is being performed. If any inspection or evaluation is made on the premises of the MPO or a subcontractor, the MPO shall provide and require its subcontractor to provide all reasonable facilities and assistance for the safety and convenience of the inspectors in the performance of their duties. All inspections and evaluations shall be performed in such a manner as will not unduly delay the work. The MPO agrees to maintain all books, documents, papers, computer -generated files, accounting records and other evidence pertaining to costs incurred and work performed hereunder and shall make such materials available at its office during the time period covered and for four years from the date of final payment under the UPWP. Such materials shall be made available during the specified period for inspection by the department, the U.S. Department of Transportation and the Office of the Inspector General of the U.S. Department of Transportation and any of their authorized representatives for the purpose of making audits, examinations, excerpts and transcriptions. Article 10. Work Performance. All work performed hereunder shall be carried out in a professional and orderly manner, and the products authorized in the UPWP shall be accurate and exhibit high standards of workmanship, 7 Article 11. Disputes. The MPO shall be responsible for the settlement of all contractual and administrative issues arising out of procurement entered into in support of contract work. In the event of a dispute between the department and the Metropolitan Planning Organization concerning the work performed hereunder in support of the urban transportation planning process, the Executive Director of the department shall act as referee, and his decision shall be final and binding. Article 12. Non collusion. The MPO warrants that it has not employed or retained any company or person, other than a bona fide employee working for it, to solicit or secure this contract, and that it has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon or resulting from the award or making of this contract. If the MPO breaches or violates this warranty, the department shall have the right to annul this contract without liability or, in its discretion, to deduct from the contract price or consideration, or otherwise recover the full amount of such fee, commission, brokerage fee, gift, or contingent fee. Article 13. Subcontracts. Any subcontract for services rendered by individuals or organizations not a part of the MPO's organization shall not be executed without prior authorization and approval of the subcontract by the department and, when federal funds are involved, the U.S. Department of Transportation. If the work for the subcontract is authorized in the current approved Unified Planning Work Program, and if the MPO's procurement procedures for negotiated contracts have been approved by the department either directly or through self -certification by the MPO, the subcontract shall be deemed to be authorized and approved, provided that the subcontract includes all provisions required by the department and the U.S. Department of Transportation. Subcontracts in excess of $25,000 shall contain all required provisions of this contract. No subcontract will relieve the MPO of its responsibility under this contract. Article 14. Termination. The department may terminate this contract at any time before the date of completion if the Governor withdraws his designation of the MPO or if it is determined that the MPO has failed to comply with the conditions of the contract. The department shall give written notice to the MPO at least thirty days prior to the effective date of termination and specify the effective date of termination. The department may terminate this contract for reasons of its own, subject to agreement by the MPO. If both parties to this contract agree that the continuation of the contract would not produce beneficial results commensurate with the further expenditure of funds, the parties shall agree upon the termination conditions. Upon termination of this contract, whether for cause or at the convenience of the parties hereto, all finished or unfinished documents, data, studies, surveys, reports, maps, drawings, models, photographs, etc., prepared by the MPO shaft, at the option of the A department, be delivered to the department. The department shall compensate the MPO for those eligible expenses incurred during the contract period which are directly attributable to the completed portion of the work covered by this contract, provided that the work has been completed in a manner satisfactory and acceptable to the department. The MPO shall not incur new obligations for the terminated portion after the effective date of termination. Except with respect to defaults of subcontractors, the MPO shall not be in default by reason of any failure in performance of this contract in accordance with its terms (including any failure by the MPO to progress in the perfonmance of the work) if such failure arises out of causes beyond the control and without the default or negligence of the MPO. Such causes may include but are not limited to acts of God or of the public enemy, acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather. In every case, however, the failure to perform must be beyond the control and without the fault or negligence of MPO. Article 15. Remedies. Violation or breach of contract terms by the MPO shall be grounds for termination of the contract. Any increased cost arising from the termination shall be paid by the MPO. This agreement shall not be considered as specifying the exclusive remedy for any dispute, but all remedies existing at law and in equity may be availed of by either party and shall be cumulative. Article 16. Gratuities. Texas Transportation Commission policy mandates that employees of the department shall not accept any benefits, gifts or favors from any person doing business with or who reasonably speaking may do business with the department under this contract. Any person doing business with or who reasonably speaking may do business with the department under this contract may not make any offer of benefits, gifts or favors to department employees, except as mentioned here above. Failure on the part of the MPO to adhere to this policy may result in termination of this contract. Article 17. Compliance with Laws. The MPO 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 matter affecting the performance of this contract, including without limitation, workers' compensation laws, minimum and maximum salary and wage statutes and regulations, and licensing laws and regulations. When required, the MPO shall furnish the department with satisfactory proof of its compliance therewith. Article 18. Successors and Assigns. The MPO shall not assign or transfer its interest in this agreement without written consent of the department. D] Article 19. DebarmentlSuspension. The MPO is prohibited from making any award or permitting 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 MPO shall require any party to a subcontract or purchase order awarded under this contract as specified in Title 49 of the Code of Federal Regulations, Part 29 (Debarment and Suspension) to certify its eligibility to receive federal funds and, when requested by the department, to furnish a copy of the certification. Article 20. Equal Employment Opportunity. The MPO agrees to comply with Executive Order 11246 entitled "Equal Employment Opportunity' as amended by Executive Order 11375 and as supplemented in Department of Labor Regulations (41 CFR 60). Article 21. Nondiscrimination. During the performance of this contract, the MPO, its assigns and successors in interest, agrees as follows: 1. Compliance with Regulations: The MPO shall comply with the regulations relative to nondiscrimination in federally -assisted programs of the U.S. Department of Transportation, Title 49, Code of Federal Regulations, Part 21 and Title 23, Code of Federal Regulations, Part 710.405(b), as they may be amended from time to time (hereinafter referred to as the Regulations), which are herein incorporated by reference and made a part of this contract. 2. Nondiscrimination: The MPO, with regard to the work performed by it during the contract, shall not discriminate on the grounds of race, color, sex, disability, age or national origin in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The MPO shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 and Part 710.405(b) or the Regulations, including employment practices when the contract covers a program set forth in Appendix B of the Regulations. 3. Solicitations for Subcontracts, Including Procurements of Materials and Equipment: In all solicitations either by competitive bidding or negotiation made by the MPO for work to be performed under a subcontract, including procurements of materials or leases of equipment, each potential subcontractor or supplier shall be notified by the MPO of the MPO's obligations under this contract and the Regulations relative to nondiscrimination on the grounds of race, color, sex, disability, age or national origin. 4. Information and Reports: The MPO shall provide all information and reports required by the Regulations, or directives issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the department or the U.S. Department of Transportation to be pertinent to ascertain compliance with such Regulations or directives. Where any information required of the MPO is in the exclusive possession of another who fails or refuses to furnish this information, the MPO shall so certify to the department or the U.S. Department of Transportation as appropriate, and shall set forth what efforts it has made to obtain the information. 10 5. Sanctions for Noncompliance: In the event of the MPO's noncompliance with the nondiscrimination provisions of this contract, the department shall impose such contract sanctions as it or the U.S. Department of Transportation may determine to be appropriate, including but not limited to: • withholding of payments to the MPO under the contract until the MPO complies, and/or • cancellation, termination, or suspension of the contract in whole or in part. 6. Incorporation of Provisions: The MPO shall include the provisions of paragraphs 1 through 6 in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Regulations or directives issued pursuant thereto. The MPO shall take such action with respect to any subcontract or procurement as the department may direct as a means of enforcing such provisions including sanctions for noncompliance; provided, however, in that event, an MPO may request the United States to enter into such litigation to protect the interests of the United States. Article 22. Nondiscrimination on the Basis of Disability. The MPO agrees that no otherwise qualified disabled person shall, solely by reason of his disability, be excluded from participation in, be denied the benefits of, or otherwise be subject to discrimination under the project. The MPO shall insure that all fixed facility construction or alteration and all new equipment included in the project comply with applicable regulations regarding Nondiscrimination on the Basis of Disability in Programs and Activities Receiving or Benefiting from Federal Financial Assistance, set forth at 49 CFR Part 27, and any amendments thereto. Article 23. Disadvantaged Business Enterprise Program Requirements. It is the policy of the U.S. Department of Transportation that Minority Business Enterprises as defined in 49 CFR 23, Subpart A, shall have the maximum opportunity to participate in the performance of contracts financed in whole or in part with Federal funds. Consequently the Minority Business Enterprise requirements of 49 CFR 23, exclusive of Subpart D. apply to this contract as follows. The MPO agrees to insure that Minority Business Enterprises as defined in 49 CFR 23, Subpart A, have the maximum opportunity to participate in the performance of contracts and subcontracts financed in whole or in part with Federal funds. In this regard, the MPO shall take all necessary and reasonable steps in accordance with 49 CFR 23, exclusive of Subpart D, to insure that Minority Business Enterprises have the maximum opportunity to compete for and perform contracts. The MPO and any subcontractor shall not discriminate on the basis of race, color, national origin, age, disability or sex in the'award and performance of contracts funded in whole or in part with federal funds. These requirements shall be physically included in any subcontract. Failure to carry out the requirements set forth above shall constitute a breach of contract and, after the notification of the department, may result in termination of the contract by the 11 department or other such remedy as the department deems appropriate. Article 24. Procurement. The MPO shall maintain written procurement procedures that meet or exceed the requirements of 49 CFR 18, "Uniform Administrative Requirements for Grants and Cooperative Agreements with State and Local Governments," as it may be revised or superseded. These procedures will be used for all acquisitions authorized in any UPWP. The MPO agrees to comply with applicable Buy America requirements set forth in Section 401 of the Surface Transportation Assistance Act of 1978 (P. L. 95-599) and the Federal Transit Administration's Buy America regulations at 49 CFR 660. The MPO agrees to comply with the cargo preference requirements set forth in 46 USC 1241 and Maritime Administration regulations set forth in 46 CFR 381. Article 25. Environmental Protection and Energy Efficiency. The MPO agrees to comply with all applicable standards, orders or requirements issued under Section 306 of the Clean Air Act (42 USC 1857[h]); Section 508 of the Clean Water Act (33 USC 1368); Executive Order 11738 and Environmental Protection Agency regulations (40 CFR, Part 15). The MPO further agrees to report violations to the Department. The MPO agrees to recognize standards and policies relating to energy efficiency which are contained in the State energy conservation plan issued in compliance with the Energy Policy and Conservation Act (P. L. 94-163). Article 26. Property Management. The MPO shall maintain written property management procedures that meet or exceed the requirements of 49 CFR 18, "Uniform Administrative Requirements for Grants and Agreements with State and Local Governments,' as it may be revised or superseded. These procedures will be used for any property acquired in whole or in part with federal and state funds provided through this contract. Article 27. AudtL The MPO shall comply with the requirements of OMB A-133, "Audits of States, Local Governments and Non -Profit Organizations' and shall promptly furnish the department a copy of each audit report. The MPO shall be responsible for any funds determined to be ineligible for federal reimbursement, and shall reimburse the department the amount of any such funds previously provided to it by the department. Article 28. Control of Drug Use. The MPO agrees to comply with the terms of the Federal Transit Administration regulation, "Control of Drug Use in Mass Transportation Operations,' set forth at 49 CFR Part 653. Article 29. Restrictions on Lobbying. Pursuant to Section 319 of Public Law 101-121, which generally prohibits recipients of Federal funds from using those monies for lobbying purposes, the MPO shall comply with the Special Provision "New Restrictions on Lobbying.' 12 Article 30. Amendments. Any changes to one or more of the terms and conditions of this agreement shall not be valid unless made in writing and agreed to by the parties hereto before the change is implemented. Article 31. Distribution of Products. The MPO will provide a number of copies to be specified by the department of all information, reports, proposals, brochures, summaries, written conclusions, graphic presentations, and similar materials developed by the MPO and financed in whole or in part as provided herein. All reports published by the MPO shall contain a prominent credit reference to the department and the U.S. Department of Transportation, Federal Highway Administration and Federal Transit Administration: Prepared in cooperation with the Texas Department of Transportation and the U.S. Department of Transportation, Federal Highway Administration and Federal Transit Administration. Upon termination of this contract, all documents prepared by the MPO or furnished to the MPO by the department shall be delivered to the department. All such documents, photographs, calculations, programs and other data prepared or used under this contract may be used by the department without restriction or limitation of further use. Article 32. Legal Construction. In case any one or more of the provisions contained in this agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision thereof and this agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. Article 33. Prior Agreements. This agreement constitutes the sole and only agreement of the parties hereto and supersedes any prior understandings or written or oral agreements between the parties respecting the within subject matter. Article 34. Copyrights. The department and the U.S. Department of Transportation shall, with regard to any reports or other products produced under this contract, reserve a royalty -free, nonexclusive and irrevocable right to reproduce, publish or otherwise use, and to authorize others to use the work for government purposes. 13 Article 35. Signatory Warranty The undersigned signatory for the MPO hereby represents and warrants that he is an officer of the MPO and that he has full and complete authority to enter into this contact on behalf of the MPO. IN WITNESS WHEREOF, the department and the MPO have caused this contract to be executed, but the contract shall not be valid until signed by a duly authorized representative of each party. THE STATE OF TEXAS Certified as being executed 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 under the authority of Minute ATTE Order 100002. By L4� By Title C Secretary Director, Transportation Planning Date 3/26/98 and Programming Division Date For the purpose of this agreement, the following addresses shalt be used to mail all required notices, reports, claims, and correspondence: For the MPO P.O. Box 2000 Lubboclt TX 79457 For the Transportation Planning and Programming Division P.O. Box 149217, Austin, TX 78714-9217 APPROVED AS TO CONTENT Mildred Cox, Managing Director Transportation Services APPROVED AS TO FORM William de Haas Assistant City Attorney For the District Office P.O. Box 771 Lubbock, TX 79408-0771 14 .