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1996-006-RES WHEREAS, CITY COUNCIL DID HERETOFORE ON THE 12TH DAY OF JUNE 1995 RESOLUTION NO. 96 -006 WHEREAS, the City Council of the City of Paris did heretofore, on the 12th day of June, 1995, pass Resolution No. 95-051 with Exhibit A attached thereto; and, WHEREAS, the City Council of the City of Paris did heretofore, on the 10th day of July, 1995, pass Resolution No. 95-072, which corrected paragraph l4.A. of Exhibit A to Resolution No. 95-051; and, WHEREAS, the City Council of the City of Paris did heretofore, on the 14th day of August, 1995, pass Resolution No. 95-084, which corrected Exhibit A and replaced Exhibit C to Exhibit A of Resolution 95-051; and, WHEREAS, due to the agreement between the State of Texas and the City of Paris for the City of Paris to be responsible for the construction and the inspection of the project, it is necessary that the agreement between the parties be amended to reflect the same, which amendment entitled, First Amended Statewide Transportation Enhancement Program Agreement attached hereto in the form of Exhibit A should be approved; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PARIS, that the form of the First Amended Statewide Transportation Enhancement Program Agreement between the State of Texas acting by and through the Texas Department of Transportation and the City of Paris is hereby approved, and, BE IT FURTHER RESOLVED, that the City Manager of the City of Paris, Michael E. Malone, be, and he is hereby authorized and directed to execute on behalf of the City of Paris the I<'irst Amended Statewide Transportation Enhancement Program Agreement in the form of Exhibit A attached hereto. PASSED AND ADOPTED this 8th day of January, 1996. ~~ 7--_ ATTEST: mo:-tt, ,,", Mattie Cunningham, City Clerk Eric S. Clifford, Mayor APPROVED AS ' FORM: -~ T. K. Haynes, Cit Attorney Lamar County CSJ: 0901-29-905 19th NW Runoff Mitigation STATE OF TEXAS COUNTY OF TRAVIS FIRST AMENDED A G R E E MEN T (STATEWIDE TRANSPORTATION ENHANCEMENT PROGRAM) THIS FIRST AMENDED 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 Paris, a municipal corporation located in Lamar County, Texas and existing by and under the laws of the State of Texas, hereinafter called the "City," to amend the Agreement heretofore entered into on June 12, 1995, which said Agreement was corrected on July 10, 1995, by correcting paragraph 14.A, and on August 14, 1995, said Agreement was corrected and Exhibit C was replaced. WIT N E SSE T H WHEREAS, the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA) codified under Title 23 U.S. C. Section 101 et seq., establishes the National Intermodal Transportation System that is economically efficient and environmentally sound, provides the foundation for the nation to compete in the global economy, and will move people and goods in an energy efficient manner; and WHEREAS, Title 23 U.S.C. Sections 133(d)(2) and 160(e)(2) require that ten (10) percent of certain funds apportioned to a state pursuant to Title 23 U.S.C. Section 104(b)(3) be used for transportation enhancement activities, as defined in Section 101(a) of Title 23 U.S.C.; and 1 l::.AHltULA.. WHEREAS, the Texas Transportation Commission, hereinafter called the "Commission", will use those funds in a statewide competitive program that enhances the intermodal transportation systems and facilities within the state for the enjoyment of the users of those systems; and WHEREAS, the State and the City desire to construct a sedimentation and pollution mitigation basin, as shown in the attached "Exhibit A," to be hereinafter identified as the "Project;" and WHEREAS, Title 23 U.S.C. Section 120 establishes that the Federal share of funding for STEP will not exceed eighty percent (80%) of the cost of the Project; and WHEREAS, the City has offered to participate in the development and construction of the Project by providing funding, procuring the consultant services, accomplishing utility adjustments and other necessary items required by the State; and WHEREAS, on the 8th day of August, 1994, the Paris City Council passed Resolution No. 94-101, attached hereto and identified as "Exhibit B," authorizing the city's participation in the development of the Project; and WHEREAS, the State will secure the federal cost share and other items as required; and WHEREAS, on the 30th day of November, 1994, the Commission passed Minute Order 104682, attached hereto and identified as "Exhibit C", authorizing the Project through the State Transportation Improvement Program; A G R E E MEN T NOW, THEREFORE, covenants and in consideration of the premises and of the mutual agreements of the parties hereto, to be by them 2 respectively kept and performed as hereinafter set forth, it is agreed as follows: 1. CONTRACT PERIOD This agreement becomes effective upon final execution by the State and shall terminate upon completion of the Project or unless terminated or modified as hereinafter provided. 2. SCOPE OF PROJECT The State and the City agree that the scope of the Project shall be limited to the scope authorized by the Conunission and as shown on "Exhibit A." 3. ACOUISITION OF RIGHT-OF-WAY A. The City shall assume all costs and perform all necessary requirements to provide title in name of City to the desired right-of- way required for the construction of the Project, which title shall be acceptable to the State. The City shall provide all right-of-way free and clear of all improvements and/or encroachments. The City will comply with and assume the costs for compliance with all the requirements of Title II and Title III of the Uniform Relocation Assistance and Real Property Acquisition policies Act of 1970, Title 42 U.S.C.A. Section 4601, et seq., including those provisions relating to incidental expenses incurred by the property owners in conveying the right-of-way to the City, and benefits applicable to the relocation of any displaced person as defined in 49 CFR, 24.2(g). Documentation to support such compliance must be maintained and must be made available to the State and its representatives for review and inspection. The City shall secure and provide easements over any other land in addition to 3 normal right-of-way as may be indicated on the approved right-of-way map. The City will be responsible for any additional right-of-way required for the completion of the Project. B. In the event the right-of-way is donated to the City after July 13, 1994, the City will provide all documentation to the State regarding the value of the acquired property. The State will review the City's appraisal of the donated property to determine the fair market value. The fair market value of donated right-of-way will be credited towards the City's financial share towards the cost of the project. Right-of- way shall be donated in accordance with the regulations established in 23 USC Section 323. C. The State will not reimburse the City any funds in the event the right-of-way was purchased before execution of this agreement, and the fair market value of the donated property exceeds the City's financial share towards the project. 4. RIGHT-OF-WAY DESCRIPTION The City shall prepare right-of-way maps, property descriptions and other data as needed to properly describe the right-of-way which the City is to acquire and provide for the project. The right-of-way maps and property descriptions shall be submitted to the State for approval prior to the City acquiring the necessary right-of-way. Tracings of the maps shall be retained by the City for its permanent records. 5. DETERMINATION OF RIGHT-OF-WAY VALUES The City agrees to make a determination of property values for each right-of-way parcel by methods acceptable to the State and to submit to the State's District Office a tabulation of the values so determined, 4 signed by the appropriate City representative. Such tabulations shall list the parcel numbers, ownership, acreage and recommended compensation. Compensation shall be shown in the component parts of land taken, itemization of improvements taken, damages (if any) and the amounts by which the total compensation will be reduced if the owner retains improvements. This tabulation shall be accompanied by an explanation to support the determined values, together with a copy of information or reports used in arriving at all determined values. Expenses incurred by the City in performing this work shall be eligible for reimbursement after the City has received written authorization by the State to proceed with determination of right-of-way values. The State will review the data submitted and shall base its reimbursement for parcel acquisitions on the values which are determined by this review. 6. CONDEMNATION Condemnation proceedings will be initiated at a time selected by the City and will be the City's responsibility at its own expense as hereinafter indicated. The City will concurrently file condemnation proceedings and a notice of lis pendens for each case in the na~e of the City, and in each case so filed the judgement of the court will decree title to the property condemned to the City. 7. COURT COSTS, COSTS OF SPECIAL COMMISSIONERS' HEARINGS Court costs of Special Commissioners, hearings assessed against the City in condemnation proceedings and fees incident thereto will be paid by the City. Such costs and fees incurred after written authorization by the State to proceed with condemnation will be eligible for 5 reimbursement at an amount not to exceed eighty percent (80%) of the actual cost under the established reimburse~ent procedure provided such costs and fees are eligible for payment. 8. REIMBURSEMENT Reimbursement will be made to the City for right-of-way purchased in an amount not to exceed eighty percent (80%) of the cost of the right-of- way purchased in accordance with the terms and provisions of this agreement. Reimbursement will be in the amount not to exceed eighty percent (80%) of the State's predetermined value of each parcel, or the net cost thereof, whichever is the lesser amount. In addition, reimbursement will be made to the City for necessary payments to appraisers, expenses incurred in order to assure good title to property acquired and costs associated with the relocation of displaced persons and personal property as well as incidental expenses. Reimbursement shall not exceed eighty percent (80%) of such documented costs. if condemnation is necessary and title is taken as set forth herein under the section entitled "condemnation," the participation by the State shall be based on the final judgement, conditioned upon the State having been notified in writing prior to the filing of such suit and upon prompt notice being given as to all action taken therein. 9. UTILITY ADJUSTMENTS/RELOCATIONS The City will establish the necessary utility work and notify the appropriate utility company to schedule their adjustments. The City shall be responsible for all costs associated with the adjustment, removal or relocation of such utility facilities, and such adjustment, removal or relocation shall be in accordance with applicable State law, 6 regulations, policies and procedures. In the event additional utilities are required to be adjusted, removed or relocated during the construction of the Project, the City will be responsible for all costs associated with the additional utility work. 10. CERTIFICATION The City shall provide to the State forty-five (45) days prior to the construction contract let date, a certification that all environmental problems have been remediated, and all conflicting utilities have been adjusted to clear the proposed construction. 11. ENVIRONMENTAL MITIGATION A. The City will be responsible for the mitigation and remediation of any environmental problems associated with the development and construction of the Project. The City will not let the construction contracts until all environmental mitigation issues have been addressed. The City shall provide to the State written certification from the appropriate regulatory agency(s) that all environmental problems have been remedied. B. All costs associated with the remediation of the environmental problems shall be the responsibility of the City and/or the property owners. These costs will not be reimbursed or credited towards the City's financial share of the Project. 12. ENGINEERING SERVICES A. The City will prepare or cause to be prepared the preliminary engineering necessary for the development of plans, specifications and estimates (P.S.&E.). Development of the preliminary engineering shall include environmental assessment and holding of a public meeting and/or 7 public hearing. The City must comply with applicable State and Federal rules and procedures in the selection of its consultant. The selection procedures to be utilized by the City must have prior approval by the State and comply with 23 CFR Part 172. B. The City will prepare and distribute Requests for Proposals for professional engineering services for design improvements to be constructed in the 19th Northwest Runoff Mitigation project. These services shall include the design and preparation of construction drawings, specifications and cost estimates, field surveys, an environmental assessment and holding of a public hearing. C. The City shall submit the completed plans, specifications and estimates (P.S.&E.) to the State for review and approval. Should the State determine that revisions are required to the P.S.&E., the City shall make the necessary revisions. The P.S.&E. shall be developed by the City's consultant in accordance with the State's latest Standard Specifications for Construction of Hiqhwavs, Streets and Bridqes. D. The City will submit to the State all documentation relating to actual costs incurred associated with the development of the P.S.&E. Reasonable costs incurred by the City after the City receives written authorization by the State will be eligible for reimbursement at an amount not to exceed eighty percent (80%) of the actual cost. The City shall comply with the cost principles established in OMB Circular A-87, "Cost principles for State and Local Governments." 13. FUNDING A. The total construction cost for the project, including contingencies, engineering and administrative costs, is estimated at two 8 hundred fourteen thousand dollars ($214,000.00). B. The State will be responsible to secure the federal share of the funding required for the development and construction of the Project. This federal share amount shall not exceed $171,200.00 or 80% of the total project cost, whichever amount is less. The City will be responsible for any non-federal participation costs associated with the Project. C. Upon execution of this agreement, the City will remit a check or warrant made payable to the "Texas Department of Transportation" in the amount of one thousand two hundred dollars ($1,200.00). This amount is based on twenty percent (20%) of the estimated state administrative cost. The funds will be utilized by the state for costs associated with review of the PS&E, inspection, and any other administrative functions. D. Sixty (60) days prior to the date set for receipt of the construction bids, the State will notify the City that the non-Federal funding share to be incurred by the State in performing construction related administrative tasks is required. The City shall remit a check or warrant in the amount established by the State within thirty (30) days from receipt of the State's written notification to the address provided herein. E. In the event the State determines that additional funding is required by the City at any time during the development of the Project, the State will notify the City in writing of the additional amount. The City will make payment to the State within thirty (30) days from receipt of the State's notification. Upon completion of the Project, the State will perform an audit of the costs and any funds due the City will be 9 promptly returned. 14. CONSTRUCTION RESPONSIBILITIES A. The City will be responsible for the construction of the Project. Actual construction shall be performed by contract awarded by competitive bidding. The City shall comply with the applicable regulations and requirements established in 23 CFR Part 635, Subparts A, C, and D. The City shall develop written construction contract procedures for the State's review and approval. The City shall not initiate the bidding process until approval of the procedures has been obtained from the State and a "Letter of Authority" has been issued by the Federal Highway Administration. B. In accordance with the requirements established ~n 23 CFR Part 633, Subpart A, the City shall include the latest version of Form "FHWA-1273" in the contract bidding documents. The required contract provisions contained in Form FHWA-1273 shall apply to all work performed on the contraqt by the contractor's own organization and to all work performed on the contract by piecework, station work or by subcontractor. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the requirements contained in the provisions of Form FHWA-1273. C. Any change orders, supplemental agreements, or additional work orders which may become necessary subsequent to the award of the construction contract shall be the responsibility of the City and subject to the approval of the State. The City shall provide or cause to be provided all inspection services and testing services as may be required to ensure that the construction of the Project is accomplished 10 in accordance with the approved contract documents. The State will perform periodic reviews of Project construction to ensure compliance with applicable regulations. D. If at any point in the duration of the Project, the State finds any portion of the Project unacceptable or not in compliance with the federally approved terms of the Project, the City shall delete that item and/or will not be reimbursed for any expenditures made for that item. E. Upon completion of the Project, the State will issue to the City a "Notification of Completion" acknowledging that the Project has been completed. 15. MAINTENANCE RESPONSIBILITIES Upon completion of the Project, the City will assume responsibility for maintenance of the completed improvements. 16. OWNERSHIP OF DOCUMENTS Upon completion or termination of this agreement, all documents prepared by the City shall remain the property of the City. All documents prepared by the State shall remain the property of the State. All data prepared under this agreement shall be made available to the State without restriction or limitation on its further use. 17. TERMINATION A. This agreement may be terminated by any of the following conditions: (1) By mutual written agreement and consent of both parties. (2) By either party, upon the failure of the other party to fulfill the obligation as set forth herein. B. The termination of this agreement shall extinguish all rights, 11 duties, obligations and liabilities of the State and City under this agreement. If the potential termination of this agreement is due to the failure of the City to fulfill its contractual obligations as set forth herein, the State will notify the City that possible breach of contract has occurred. The City should make every effort to remedy the breach as outlined by the State within a period mutually agreed upon by both parties. 18. INDEMNIFICATION To the extent permitted by law, the City shall indemnify and save harmless the State, its officers, employees, agents and contractors from all claims and liabilities due to the activities of the City, its officers, employees, agents and contractors performed under this agreement and which result from an error, omission or negligent acts of the City, its officers, employees, agents or contractors. Additionally, to the extent permitted by law, the City shall save harmless the State, its officers, employees, agents and contractors from any and all expenses, including attorneys' fees and court costs which may be incurred by the State in litigation or otherwise resisting said claim or liabilities which might be imposed on the State as the result of such activities by the City, its officers, employees, agents or contractors. 19. AMENDMENTS Any changes in the time frame, character, agreement provisions or obligations of the parties hereto shall be enacted by written amendment executed by both the City and the State. 20. LEGAL CONSTRUCTION In case one or more of the provisions contained in this agreement shall 12 for any reason be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions hereof and this agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. 21. NOTICES All notices to either party by the other required under this agreement shall be delivered personally or sent by certified or U.S. mail, postage prepaid, addressed to such party at the following respective addresses: State: Texas Department of Transportation 1365 N. Main Street P. O. Box 250 Paris, TX 75461 The City of Paris, Paris, Texas 135 First Street S.E. P. O. Box 9037 paris, Texas 75461 City: All notices shall be deemed given on the date so delivered or so deposited in the mail unless otherwise provided herein. Either party hereto may change the above address by sending written notice of such change to the other in the manner provided herein. 22. SOLE AGREEMENT This agreement constitutes the sole and only agreement between the parties hereto and supersedes any prior understandings or written or oral agreements respecting the within subject matter. 23. INSPECTION OF BOOKS AND RECORDS The State will, for purpose of termination of the agreement prior to completion, examine the books and records of the City for the purpose of 13 checking the amount of the work performed by the City at the time of contract termination. The City shall maintain all books, documents, papers, accounting records and other documentation relating to costs incurred under this agreement and shall make such materials available to the State, Federal Highway Administration (FHWA) or their duly authorized representatives for review and inspection at its office during the contract period and for three (3) years from the date of completion of work defined under this contract or until impending litigation is resolved. Additionally, the State, FHWA and their duly authorized representatives shall have access to all records of the City whicll are directly applicable to this agreement for the purpose of making audits, examinations, excerpts and transcriptions. 24. OMB AUDIT REQUIREMENTS The City 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 paragraphs 6, 8 and 9 of OMB Circular No. A-128. 25. PROCUREMENT AND PROPERTY MANAGEMENT STANDARDS The City shall adhere to the procurement standards established in Title 49 CFR Part 18.36 and the property management standards established in Title 49 CFR Part 18.32. 26. CIVIL RIGHTS COMPLIANCE The City shall comply with the regulations of the Department of Transportation as they relate to nondiscrimination (49 CFR 21 and 23 CFR 710.405 B)i also Executive Order 11246 titled "Equal Employment Opportunity," as amended by Executive Order 11375 and as supplemented in the Department of Labor regulations (41 CFR 60). 14 27. MINORITY BUSINESS ENTERPRISE PROGRAM REOUIREMENTS The City shall comply with the "Minority Business Enterprise Program Requirements" established in 49 CFR Part 23, Subpart D. 28. DEBARMENT CERTIFICATIONS The City is prohibited from making any award at any tier to any party which is debarred or suspended or otherwise excluded from or ineligible for participation in federal assistance programs under Executive Order 12549, Debarment and Suspension. The City shall require any party to a subcontract or purchase order awarded under this contract as specified in Title 49 of the Code of Federal Regulation, Part 29 (Debarment and Suspension) to certify its eligibility to receive federal funds and, when requested by the State, to furnish a copy of the certification. IN TESTIMONY HEREOF, the parties hereto have caused these presents to be executed in duplicate counterparts. THE CITY OF PARIS, TEXAS By: Michael E. Malone Typed Name City Manager Title January 8, 1996 Date ATTEST: City Clerk Mattie Cunningham THE STATE OF TEXAS Executed for the Executive Director and approved by the Texas Transportation Commission under the authority of minute Order No. 100002 15 and Administrative Circular 26-93, for the purpose and effect of activating and carryirg out the orders, established policies or work programs heretofore ap~roved by the Texas Transportation Commission. By: Typed Name Title Date 16