HomeMy WebLinkAboutResolution - 2009-R0538 - Agreement - Northwest Passage Joint Venture - Slide Road Construction - 12_02_2009Resolution No. 2009-RO538
December 2, 2009
Item No. 5.10
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock BE and is hereby authorized and
directed to execute for and on behalf of the City of Lubbock an Agreement between the
City of Lubbock and Northwest Passage Joint Venture regarding the design and
construction of a portion of Slide Road. Said Agreement is attached hereto and
incorporated in this Resolution as if fully set forth herein and shall be included in the
minutes of the Council.
Passed by the City Council this 2nd day of December , 2009.
���
TOM MARTIN, MAYOR
ATTEST:
Garza, City Secretary
APPROVED AS TO CONTENT:
a�L�6L � 0 Q J,
Marsha Reed, P.E.,
Chief Operating Officer
APPROVED AS TO FORM:
Linda L. Chamales,
Economic Development Attorney
City Att / Linda: Res- Dev.Agret- Northwest Passage Joint Venture
November 12, 2009
Contract: 9331
Resolution No. 2009-RO538
STATE OF TEXAS §
COUNTY OF LUBBOCK §
DEVELOPMENT AGREEMENT
for
DESIGN and CONSTRUCTION
of
A PORTION OF SLIDE ROAD
This Development Agreement ("Agreement") is entered into this 2nd day of
December, 2009 by and between the City of Lubbock, Texas, a Texas home rule municipal
corporation (the "City"), and Northwest Passage Joint Venture (the "Developer")
WITNESSETH:
WHEREAS, Developer owns real property adjacent to the proposed future location of
Slide Road between Marshall Street and U.S. 84, within the corporate limits of the City; and
WHEREAS, Developer has agreed to participate in the paving of Slide Road, and to bear
the cost of such participation; and
WHEREAS, the City, as a public purpose and to realize cost savings due to economies of
scale, desires to design and construct that portion of Slide Road between Marshall Street and
U.S. 84, (the "Slide Road Project"); and
WHEREAS, the Texas Transportation Commission passed Minute Order 111734,
authorizing the State to undertake and complete a highway improvement generally described as
the construction of Slide Road from Marshall Street to U. S. 84; and
WHEREAS, the City, by Resolution 2009-RO539 has entered into an Advance
Funding Agreement with the State of Texas, acting by and through the Texas Department of
Transportation (the "State") for the design and construction by the State of Slide Road from
Marshall Street to U. S. 84, at the location shown on the Map in Attachment "B" of the Advance
Funding Agreement, a copy of which is attached hereto as Exhibit "1" to this Agreement; and
WHEREAS, the Developer, due to the economic benefit it will enjoy from the
construction of such improvements in the manner desired by the City and the access gained to
Developer's property, joins the City in such desire; and
WHEREAS, the City and Developer now desire to enter into this Agreement wherein
Developer unconditionally agrees to pay to City $60,000 for the design and engineering of the
Project, and agrees to pay an additional $1,440,000, (the City participation requirement under the
Advance Funding Agreement) if the federal share of construction funding is secured.
NOW, THEREFORE, in consideration of the mutual covenants and obligations herein,
the City and Developer agree as follows:
ARTICLE 1. Developer Participation
1.01 Developer agrees to pay to City the sum of Sixty Thousand and no One
Hundredths Dollars ($60,000.00) when signed by the last party whose signing
makes this Agreement fully executed, said funds to be used for the preliminary
design and engineering of Slide Road between Marshall Street and U. S. 84, (the
"Slide Road Project"). The location of the project, as set forth herein, is depicted
on Attachment "B" of Exhibit "1", attached hereto and fully incorporated herein
by reference as if fully restated.
Slide Road Paving Project Agreement Page 2 of 9
1.02 Developer will dedicate, at no cost to the City, all lands and real property interests
necessary, as determined by City, for the paving and drainage, and street lighting
construction of the Slide Road Project. City will provide to Developer a
description of such lands and real property interests necessary for the Slide Road
Project, as depicted on Exhibit "1", attached hereto, on or about
December 2 , 2009. The dedication hereof is subject to all valid and
subsisting instruments now filed of record in the Real Property Records of
Lubbock County, Texas, encumbering the lands to be dedicated to the City.
1.03 The State of Texas, by and through the Texas Department of Transportation, has
agreed with the City to construct the Slide Road Project in accordance with the
terms of the Advanced Funding Agreement attached as Exhibit "1" and all
applicable laws.
1.04 Developer agrees to pay to the City the Fixed Local Contribution for
Construction, as defined in the Advanced Funding Agreement, in the amount of
$1,440,000.00, two months prior to the date set for the receipt of the construction
bids for the Slide Road Project, if and only if, the federal and/or state share of
construction fimding is secured.
ARTICLE 2. Term
2.01 The term of this Agreement shall begin on the date of execution of this
Agreement by City, and shall terminate upon the complete performance of all
obligations by each party to this Agreement.
Slide Road Paving Project Agreement Page 3 of 9
ARTICLE 3. Indemnity
3.01 Developer agrees to defend, indemnify, and hold City, its officers, agents,
employees, and elected officials, harmless from and against any and all claims,
lawsuits, liabilities, judgments, costs and expenses for any harm for which
recovery of damages is sought that may arise out of, be occasioned by or related
to Developer's breach of any of the terms or provisions of this Agreemcnt.
3.02 The construction of the Slide Road Project is anticipated to be completed within
twenty-four (24) months after the date bids are received for the project and the
Citv will utilize reasonable efforts to assure that the State completes the Slide
Road Project within such schedule. Notwithstanding the commitment by the City
to use reasonable efforts to assure that the State completes the Slide Road Project
within such schedule, Developer expressly acknowledges that delays in
construction, such as those caused by or related to weather conditions and other
force majeure events, may occur causing a delay in the completion of the
construction of the Slide Road Project.
ARTICLE 4. Authority to Bind
4.01 The City represents and warrants to Developer that the City has full constitutional
and lawful right, power, and authority, under currently applicable law to execute
and deliver and perform the terms and obligations of this Agreement, and all
necessary City proceedings, findings and actions. Accordingly, this Agreement
constitutes the legal valid and binding obligation of the City, is enforceable in
Slide Road Paving Project Agreement Page 4 of 9
accordance with its terms and provisions and does not require the consent of any
other governmental authority.
4.02 Developer hereby represents and warrants to the City that Developer has full
lawful right, power and authority to execute and deliver and perform the terms
and obligations of this Agreement and all of the foregoing have been or will be
duly and validly authorized and approved by all necessary actions of Developer.
Concurrently with Developer's execution of this Agreement, Developer has
delivered to the city copies of the resolutions or other corporate actions
authorizing the execution of this Agreement and evidencing the authority of the
persons signing this Agreement on behalf of Developer to do so. Accordingly,
this Agreement constitutes the legal, valid and binding obligation of Developer,
and is enforceable in accordance with its terms and provisions.
ARTICLE 5. Events of Default / remedies
5.01. A default shall exist if any party fails to perform or observe any material covenant
contained in this Agreement, or if the representation provided for in Article 5 is
not true or correct. A party shall immediately notify the defaulting party in
writing upon becoming aware of any change in the existence of any condition or
event that would constitute a default by the defaulting party, or with the giving of
notice or passage of time, or both would constitute a default by defaulting party
under this Agreement. Such notice shall specify the nature and the period of
existence thereof and what action if any, the notifying party requires with respect
to curing the default.
Slide Road Paving Project Agreement Page 5 of")
5.02. If an Event of Default shall occur and be continuing, after ten (10) days written
notice to cure such default, City may, at its option terminate this Agreement or
pursue any and all remedies it may be entitled to in accordance with Texas law,
without the necessity of further notice to or demand upon Developer.
ARTICLE 6. Miscellaneous
6.01 This Agreement is performable in Lubbock County, Texas, and venue for any
action arising out of this Agreement shall be exclusively in Lubbock County,
Texas. This Agreement shall be governed by and construed in accordance with
the laws of the State of Texas.
6.02 Any notice required by this Agreement shall be deemed to be properly served, if
(i) provided in person or by telephonic facsimile; or (ii) deposited in the United
States mail by certified letter, return receipt requested, addressed to the recipient
at recipient's address shown below, subject to the right of either party to
designate a different address by notice given in the manner just described. Notice
shall be deemed to be received when delivered if provided in person or by
telephonic facsimile or, if deposited in the United States mail, as set forth above,
(4) days after depositing such notice in the United States mail, as set forth above.
For City:
Lee Ann Dumbauld, City Manager
City of Lubbock
P.O. Box 2000
Lubbock, Texas 79457
Facsimile No. 806-775-2051
Slide Road Paving Project Agreement Page 6 of 9
Marsha Reed, COO
City of Lubbock
P.O. Box 2000
Lubbock, Texas 79457
Facsimile: 806-775-3074
with copy to:
Linda Chamales, Economic Development Attorney
City of Lubbock
P.O. Box 2000
Lubbock, Texas 79457
Facsimile No. 806-775-3307
For Developer:
Delbert McDougal, Agent
Northwest Passage Joint Venture
7008 Salem Avenue
Lubbock, Texas 79424
Facsimile No. 806-797-5731
6.03 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 in any way affect any other
provision hereof and this Agreement shall be considered as if such invalid, illegal
or unenforceable provision had never been contained in this Agreement.
6.04 City and Developer each bind themselves and their successors and permitted
assigns to the other party of this Agreement. Developer may not assign its
obligations under this Agreement without the advance written consent of the
City. City may provide or withhold its consent at its sole discretion. City may
Slide Road Paving Project Agreement Page 7 of 9
condition its consent on any terms it believes are necessary or advisable,
including without limitation, the express written stipulation that Developer shall
not be released from liability for performance of any obligation to City contained
in this Agreement.
6.05 This Agreement embodies the complete agreement of the parties hereto as it
relates to the Slide Road Project, superseding all oral or written previous and
contemporary agreements between the parties and relating to matters in this
Agreement, and except as otherwise provided herein cannot be modified without
written agreement of the parties to be attached to and made a part of this
Agreement.
The parties enter into this Agreement on the 2nd day of December , 2009.
CITY OF LUBBOCK
TOM MARTIN, MAYOR
ATTEST:
'4r-
R&bc"8ca Garza, City Secretary
APPROVED AS TO CONTENT
M24A �' i� al
Marsha Reed, P.E,, Chief Operating Officer
Slide Road Paving Project Agreement Page 8 of 9
APPROVED AS TO FORM:
sew
Linda L. Chamales,
Economic Development Attorney
DEVELOPER:
NORTHWEST PASSAGE JOINT VENTURE
By: L&il
Delbert McDougal, Agent'
Lc: Cityatt/Linda/ Developers Agreement Slide Road Paving Project.
November 12, 2009
Slide Road Paving Project Agreement Page 9 of 9
EXBIBIT "1"
Resolution No. 2009-RO539
STATE OF TEXAS §
COUNTY OF TRAVIS §
CSJ #_0905-06-901
District # Lubbock (05)
Code Chart 64 # 25650
Project: N. Slide Road
CFDA # 20.205
LOCAL TRANSPORTATION PROJECT
ADVANCE FUNDING AGREEMENT
For A
NEW LOCATION MAJOR ARTERIAL STREET
THIS 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 Lubbock, acting by and through its duly authorized officials, hereinafter called the
"Local Government."
WiTNESSETH
WHEREAS, federal law establishes federally funded programs for transportation
improvements to implement its public purposes; and
WHEREAS, the Texas Transportation Code, Sections 201.103 and 222.052 establish that
the State shall design, construct and operate a system of highways in cooperation with local
governments; and
WHEREAS, federal and state laws require local governments to meet certain contract
standards relating to the management and administration of State and federal funds; and
WHEREAS, the Texas Transportation Commission passed Minute Order 111734, authorizing
the State to undertake and complete a highway improvement generally described as the
construction of Slide Road from Marshall Street to U.S. 84, a new location arterial street;
and,
WHEREAS, the Governing Body of the Local Government has approved entering into this
Agreement by resolution or ordinance dated December 2, 2009 which is attached
hereto and made a part hereof as Attachment "A" for construction of Slide Road from
Marshall Street to U.S. 84, a new location arterial street, at the location shown on the Map in
Attachment "B" hereinafter referred to as the Project.
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:
AFA-AFA_t.ongGen Page 1 of 10 Revised 07/10/2009
CSJ # 0905-06-901
District # Lubbock (05)
Code Chart 64 # 25650
Project: N. Slide Road
CFDA # 20.205
AGREEMENT
1. Period of the Agreement
This Agreement becomes effective when signed by the last party whose signing makes
the Agreement fully executed. This Agreement shall remain in effect until the Project is
completed or unless terminated as provided below.
2. Scope of Work
The construction of Slide Road from Marshall Street to U.S. 84, a new location arterial
street, as shown on Attachment "B".
3. Local Project Sources and Uses of Funds
a. The total estimated cost of the Project is shown in the Project Budget - Attachment "C"
which is attached hereto and made a part hereof. The expected cash contributions
from the federal or State government, the Local Governments, or other parties is
shown in Attachment "C". The State will pay for only those project costs that have
been approved by the Texas Transportation Commission. The State and the Federal
Government will not reimburse the Local Government for any work performed before
the issuance of a formal Letter of Authority by the Federal Highway Administration.
The Local Government is responsible for 100% of the cost of any work performed
under its direction or control before the federal Letter of Authority is formally issued.
b. This project cost estimate shows how necessary resources for completing the project
will be provided by major cost categories. These categories may include but are not
limited to: (1) costs of real property; (2) costs of utility work; (3) costs of environmental
assessment and remediation; (4) cost of preliminary engineering and design; (5) cost
of construction and construction management; and (6) any other local project costs.
c. The State will be responsible for securing the Federal and State share of the funding
required for the development and construction of the local project. If the Local
Government is due funds for expenses incurred, these funds will be reimbursed to the
Local Government on a cost basis.
d. Prior to the performance of any engineering review work by the State, the Local
Government will pay to the State the amount specified in Attachment C. At a
minimum, this amount shall equal the Local Government's funding share for the
estimated cost of preliminary engineering for the project. At least sixty (60) days prior
to the date set for receipt of the construction bids, the Local Government shall remit its
remaining financial share for the State's estimated construction oversight and
construction cost.
e. Whenever funds are paid by the Local Government to the State under this Agreement,
the Local Government shall remit a check or warrant made payable to the "Texas
Department of Transportation Trust Fund." The check or warrant shall be deposited
by the State in an escrow account to be managed by the State. Funds in the escrow
account may only be applied to the State Project.
f. Upon completion of the Project, the State will perform an audit of the Project costs.
Any funds due by the Local Government, the State, or the Federal government will be
promptly paid by the owing party. If, after final Project accounting, excess funds
remain in the escrow account, those funds may be applied by the State to the Local
AFA-AFA LongGen Page 2 of 10 Revised 07/10/2009
CSJ # 0905-06-901
District # Lubbock (05)
Code Chart 64 # 25650
Project: N. Slide Road
CFDA # 20.205
Government's contractual obligations to the State under another advance funding
agreement.
g. The State will not pay interest on any funds provided by the Local Government.
h. If a waiver has been granted, the State will not charge the Local Government for the
indirect costs the State incurs on the local project, unless this Agreement is terminated
at the request of the Local Government prior to completion of the project.
i. 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, the budget in
Attachment "C" will clearly state the amount of the fixed price or the incremental
payment schedule.
j. If the Local government is an Economically Disadvantaged County and if the State
has approved adjustments to the standard financing arrangement, this Agreement
reflects those adjustments.
k. The state auditor may conduct an audit or investigation of any entity receiving funds
from the state directly under the contract or indirectly through a subcontract under the
contract. Acceptance of funds directly under the contract or indirectly through a
subcontract under this contract acts as acceptance of the authority of the state
auditor, under the direction of the legislative audit committee, to conduct an audit or
investigation in connection with those funds. An entity that is the subject of an audit or
investigation must provide the state auditor with access to any information the state
auditor considers relevant to the investigation or audit.
I. Payment under this contract beyond the end of the current fiscal biennium is subject
to availability of appropriated funds. If funds are not appropriated, this contract shall
be terminated immediately with no liability to either party.
The State will not execute the contract for the construction of the project until the required
funding has been made available by the Local Government in accordance with this
Agreement.
4. Termination of this Agreement
This Agreement shall remain in effect until the project is completed and accepted by all
parties, unless:
a. the Agreement is terminated in writing with the mutual consent of the parties;
b. the Agreement is terminated by one party because of a breach, in which case any cost
incurred because of the breach shall be paid by the breaching party; or
c. the Local Government elects not to provide funding after the completion of preliminary
engineering, specifications and estimates (PS&E) and the Project does not proceed
because of insufficient funds, in which case the Local Government agrees to
reimburse the State for its reasonable actual costs incurred during the Project.
5. Amendments
Amendments to this Agreement due to changes in the character of the work or terms of
the Agreement, or responsibilities of the parties relating to the Project may be enacted
through a mutually agreed upon, written amendment.
6. Remedies
AFA-AFA_LongGen Page 3 of 10 Revised 07/10/2009
CSJ # 0905-06-901
District # Lubbock (05)
Code Chart 64 # 25650
Project: N. Slide Road
CFDA # 20.205
This Agreement shall not be considered as specifying the exclusive remedy for any
agreement default, but all remedies existing at law and in equity may be availed of by
either party to this Agreement and shall be cumulative.
7. Utilities
The Local Government shall be responsible for the adjustment, removal, or relocation of
utility facilities in accordance with applicable State laws, regulations, rules, policies, and
procedures, including any cost to the State of a delay resulting from the Local
Government's failure to ensure that utility facilities are adjusted, removed, or relocated
before the scheduled beginning of construction. The Local Government will not be
reimbursed with federal or state funds for the cost of required utility work. The Local
Government must obtain advance approval for any variance from established procedures.
Before a construction contract is let, the Local Government shall provide, at the State's
request, a certification stating that the Local Government has completed the adjustment
of all utilities that must be adjusted before construction is completed.
8. Environmental Assessment and Mitigation - The following paragraph is not
applicable to this Advanced Funding Agreement
Development of a transportation project must comply with the National Environmental
Policy Act and the National Historic Preservation Act of 1966, which require
environmental clearance of federal -aid projects.
a. The Local Government is responsible for the identification and assessment of any
environmental problems associated with the development of a local project governed
by this Agreement.
b. The Local Government is responsible for the cost of any environmental problem's
mitigation and remediation.
c. The Local Government is responsible for providing any public meetings or public
hearings required for development of the environmental assessment. Public hearings
will not be held prior to the approval of project schematic.
d. The Local Government is responsible for the preparation of the NEPA documents
required for the environmental clearance of this project.
e. The Local Government shall provide the State with written certification from
appropriate regulatory agency(ies) that identified environmental problems have been
remediated.
9. Compliance with Texas Accessibility Standards and ADA
All parties to this Agreement shall ensure that the plans for and the construction of all
projects subject to this Agreement are in compliance with the Texas Accessibility
Standards (TAS) issued by the Texas Department of Licensing and Regulation, under the
Architectural Barriers Act, Article 9102, Texas Civil Statutes. The TAS establishes
minimum accessibility requirements to be consistent with minimum accessibility
requirements of the Americans with Disabilities Act (P.L. 101-336) (ADA).
10. Architectural and Engineering Services
The State has responsibility for the performance of architectural and engineering
services.
AFA-AFA LongGen Page 4 of 10 Revised 07/10/2009
CSJ # 0905-06-901
District # Lubbock (05)
Code Chart 64 # 25650
Project: N. Slide Road
CFDA # 20.205
The engineering plans shall be developed in accordance with the applicable State's
Standard Specifications for Construction and Maintenance of Highways, Streets and
Bridges, and the special specifications and special provisions related thereto.
In procuring professional services, the parties to this Agreement must comply with federal
requirements cited in 23 CFR Part 172 if the project is federally funded and with Texas
Government Code 2254, Subchapter A, in all cases.
Professional services contracts for federally funded projects must conform to federal
requirements, specifically including the provision for participation by Disadvantaged
Business Enterprises (DBEs), ADA, and environmental matters.
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. The State will use its approved contract letting and award procedures to let and award
the construction contract.
c. Prior to their execution, the Local Government will be given the opportunity to review
contract change orders that will result in an increase in cost to the Local Government.
d. Upon completion of the Project, the party constructing the project will issue and sign a
"Notification of Completion" acknowledging the Project's construction completion.
e. For federally funded contracts, the parties to this Agreement will comply with federal
construction requirements cited in 23 CFR Part 635 and with requirements cited in 23
CFR Part 633, and shall include the latest version of Form "FHWA-1273" in the
contract bidding documents. if force account work will be performed, a finding of cost
effectiveness shall be made in compliance with 23 CFR 635, Subpart B.
12. Project Maintenance
The Local Government shall be responsible for maintenance of locally owned roads after
completion of the work and the State shall be responsible for maintenance of state
highway system after completion of the work if the work was on the state highway system,
unless otherwise provided for in existing maintenance agreements with the Local
Government.
13. Right of Way and Real Property
The Local Government is responsible for the provision and acquisition of any needed right
of way or real property.
14. 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:
AFA-AFA_LongGen Page 5 of 10 Revised 07/10/2009
Local Government:
The City of Lubbock
P.O. Box 2000
Lubbock, TX 79457
Attn: Lee Ann Dumbauld
City Manager
CS1 # 0905-06-901
District # Lubbock (05)
Code Chart 64 # 25650
Project: N. Slide Road
CFDA # 20.205
State:
Texas Department of Transportation
135 Slaton Road
Lubbock, TX 79404-5201
Attn: Douglas W. Eichorst II, P.E.
Lubbock District Engineer
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.
15. Legal Construction
If one or more of the provisions contained in this Agreement shall for any reason be held
invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions and this Agreement shall be construed as if it did not
contain the invalid, illegal or unenforceable provision.
16. Responsibilities of the Parties
The State and the Local Government agree that neither party is an agent, servant, or
employee of the other party and each party agrees it is responsible for its individual acts
and deeds as well as the acts and deeds of its contractors, employees, representatives,
and agents.
17. Ownership of Documents
Upon completion or termination of this Agreement, all documents prepared by the State
shall remain the property of the State. All data prepared under this Agreement shall be
made available to the State without restriction or limitation on their further use. All
documents produced or approved or otherwise created by the Local Government shall be
transmitted to the State in the form of photocopy reproduction on a monthly basis as
required by the State. The originals shall remain the property of the Local Government.
At the request of the State, the Local Government shall submit any information required
by the State in the format directed by the State.
18. 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.
19. Sole Agreement
AFA-AFA_LongGen Page 6 of 10 Revised 07/10/2009
CSJ # 0905-06-901
District # Lubbock (05)
Code Chart 64 # 25650
Project: N. Slide Road
CFDA # 20.205
This Agreement constitutes the sole and only agreement between the parties and
supersedes any prior understandings or written or oral agreements respecting the
Agreement's subject matter.
20. 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.
21. Procurement and Property Management Standards
The parties shall adhere to the procurement standards established in Title 49 CFR §18.36
and with the property management standard established in Title 49 CFR §18.32.
22. Inspection of Books and Records
The parties to this Agreement shall maintain all books, documents, papers, accounting
records and other documentation relating to costs incurred under this Agreement and
shall make such materials available to the State, the Local Government, and, if federally
funded, the 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.
Whenever American Recovery and Reinvestment Act of 2009 (ARRA) funds are used
and the Local Government is performing any work, either directly or through a contractor,
it must comply with the following provisions. If a Local Government is receiving ARRA
funds, but is not performing any work, the following provisions apply, if appropriate, and to
the extent necessary to comply with ARRA regulations.
In accordance with Section 902 ARRA, should this agreement involve the expenditure of
ARRA funds, then the U.S. Comptroller General and its representatives shall have the
authority to:
a. examine any records of the contractor or any of its subcontractors, or any State or
local agency administering such contract, that directly pertain to, and involve
transactions relating to the contract or subcontract; and
b. interview any officer or employee of the contractor or any of its subcontractors, or
any State or local agency administering the contract regarding such contracts.
Nothing in the section previously mentioned shall be interpreted to limit or restrict in any
way the existing authority of the Comptroller General.
In accordance with Section 1515(a) of the ARRA, with respect to each contract or grant
awarded using covered funds, any representative of an appropriate inspector general
appointed under Section 3 or 8G of the Inspector General Act of 1978 (5 U.S.C. App.), is
authorized:
AFA-AFA_LongGen Page 7 of 10 Revised 07/10/2009
CSJ #_0905-06-901
District # Lubbock (05)
Code Chart 64 # 25650
Project: N. Slide Road
CFDA # 20.205
a. to examine any records of the contractor or grantee, any of its subcontractors
or subgrantees, or any State or local agency administering such contract that
pertain to and involve transactions relating to the contract, subcontract, grant,
or subgrant; and
b. to interview any officer or employee of the contractor, grantee or subgrantee, or
agency regarding such transactions.
Section 1515(b) further provides that nothing in the section previously mentioned shall be
interpreted to limit or restrict in any way the existing authority of an inspector general.
The ARRA requires that the Contractor report monthly employment information for its firm
as well as that of all of its subcontractors. The Contractor, similarly, shall include this
reporting requirement in all of its subcontracts. Failing to include the requirement in
agreements with subcontractors can serve as grounds for contract termination.
Form FHWA-1589, Monthly Employment Report, promulgated by the Federal Highway
Administration (FHWA), captures the necessary monthly employment information and
shall be submitted by the Contractor on a regular basis to the LG (Local Government). It
is the responsibility of the LG to obtain this form from the prime Contractor and any
subcontractors and, the LG shall verify the accuracy, completeness, and reasonableness
of the data contained in the form, The LG shall ensure that this form is submitted by the
LG to the State according to the policies and at the direction of the State.
In order to meet any other FHWA and ARRA reporting requirements, the LG shall provide
to the State all information requested by the State, including data or information in
possession of contractors and subcontractors for completing other necessary reporting
forms, and the information shall be submitted in the manner required and according to all
due dates as set by the State.
Furthermore, the ARRA mandates that the U.S. Comptroller General's Office shall have
authority to examine the records of the contractor, subcontractor, or local agency relating
to the project at any time.
23. 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 A-133.
Whenever funds from the American ARRA are distributed to a Local Government, the
Local Government must complete its Schedule of Expenditures of Federal Awards
(SEFA) and the Data Collection Form (SF -SAC), as required by OMB Circular A-133, and
separately identify any ARRA expenditures for Federal Awards.
24. Civil Rights Compliance
The Local Government shall comply with the regulations of the 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
AFA-AFA_LongGen Page 8 of 10 Revised 07/10/2009
CSJ # 0905-06-901
District # Lubbock (05)
Code Chart 64 # 25650
Project: N. Slide Road
CFDA # 20.205
amended by Executive Order 11375 and supplemented in the Department of Labor
Regulations (41 CFR Part 60).
25. Disadvantaged Business Enterprise Program Requirements
The parties shall comply with the Disadvantaged/Minority Business Enterprise Program
requirements established in 49 CFR Part 26,
26. 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." By
executing this agreement, the [Contractor, Local Government, Engineer, or whatever]
certifies that it is not currently debarred, suspended, or otherwise excluded from or
ineligible for participation in Federal Assistance Programs under Executive Order 12549.
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.
27. 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 individual projects 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.
AFA-AFA_LongGen Page 9 of 10 Revised 07/10/2009
CSJ # 0905-06-901
District # Lubbock (05)
Code Chart 64 # 25650
Project: N. Slide Road
CFDA # 20.205
28. Insurance
If this agreement authorizes the Local Government or its contractor to perform any work
on State right of way, before beginning work the entity performing the work shall provide
the State with a fully executed copy of the State's Form 1560 Certificate of Insurance
verifying the existence of coverage in the amounts and types specified on the Certificate
of Insurance for all persons and entities working on State right of way. This coverage
shall be maintained until all work on the State right of way is complete. If coverage is not
maintained, all work on State right of way shall cease immediately, and the State may
recover damages and all costs of completing the work.
29. 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
CITY OF LUBBOCK
Tom Martin, MAYOR
ATTEST:
Re6ecca Garza, City SecretaRy
APPROVED AS TO CONTENT:
i
Marsha Ree , P.E., Director7of Public Works
APPROVED AS TO FORM:
Chad Weaver, Assistant City Attorney
December 2, 2009
Date
AFA-AFA_LongGen Page 10 of 10 Revised 07/10/2009
CSJ # 0905-06-901
District # Lubbock (05)
Code Chart 64 # 25650
Project; N. Slide Road
CFDA # 20.205
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.
Janice Mullenix
Director of Contract Services
Texas Department of Transportation
Date
AFA-AFA LongGen Page 11 of 10 Revised 07/10/2009
CSJ # 0905-06-901
District # Lubbock (05)
Code Chart 64 # 25650
Project: N. Slide Road
CFDA # 20.205
ATTACHMENT A
Resolution or Ordinance
Page 1 of 1 Attachment A
CSJ # 0905-06-901
District # Lubbock (05)
Code Chart 64 # 25650
Project: N. Slide Road
CFDA # 20.205
ATTACHMENT B
Location Map Showing Project
LUBBOCK COUNTv TEXAS 152
Page 1 of 1 Attachment B
CSJ # 0905-06-901
District # Lubbock (05)
Code Chart 64 # 25650
Project: N. Slide Road
CFDA # 20.205
ATTACHMENT C
Project Budget
The Local Government will participate in the cost of the construction of Slide Road from Marshall
Street to U.S. 84, a new location arterial street. The Local Government's fixed participation of this
work is $1,500,000.00. The State has estimated the project to be as follows:
Description
Total
Federal
State
Local
Estimate Cost
Participation
Partici ation
Participation
% Cost
% Cost
%
Cost
.•. �• -.: 7. tia', �.^.,. e.•�'1,p4 kW t .s iy'ii'!1�3e •.�s .rr:r.r -, ti, .- _ •.w .. x_ .
.c".•')' , : 7�1. � `� k 't*T `1 i ^ > f:=C' _A _•?..• .:$j`,,, � 'r �Qi ./ t1 iC: i h.'_,.� _ .. - .�_ J �. ,
Construction of New
$5,250,000
100%
$5,250,000
0%
$Q
0%
$0
Location Arterial
Street
Fixed Local
$ 1,440,000
0%
$0
0%
$0
100%
$1,440,000
Contribution for
Construction
Subtotal
$6,690,000
$5,250,000
$0
$1,440,000
Direct State Costs @
$300,000
80%
$240,000
0%
$0
20%
$60,000
4.5%(including plan
review, inspection
and oversight)
Indirect State Costs
$355,050
80%
$284,040
20%
$71,010
0%
$0
a@ 5.26% (no local
participation required
except for service
projects)
TOTAL
$7,346,050
$5,774,040
$71,010
$1,500,000
Direct State Cost will be based on actual charges.
Local Government's Participation (Fixed) = $1.500s000.0Q
It is further understood that the State will include only those items for the improvements as requested
and required by the Local Government. This is an estimate only, final participation amounts will be
based on actual charges to the project. Notwithstanding the estimate of costs and participation
amounts set forth above, the Local Government shall not be responsible for payment to the State in
excess of $1,500,000.00. Of this amount, $60,000.00 will be due upon execution of this agreement.
The remaining amount ($1,440,000.00) will be due only in the event that the federal share of
construction funding is secured.
Page 1 of 1 Attachment C