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