R2005-0062 03-28-05 RESOLUTION NO. R2005-62
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND,
TEXAS, AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO
ENTER INTO AN ADVANCED FUNDING AGREEMENT WITH THE STATE
OF TEXAS FOR IMPROVEMENTS TO THE SH 288 FRONTAGE ROADS.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That certain Advance Funding Agreement by and between the City of
Pearland and the State of Texas, a copy of which is attached hereto as Exhibit "A" and
made a part hereof for all purposes, is hereby authorized and approved.
Section 2. That the City Manager or his designee is hereby authorized to execute
and the City Secretary to attest an Advance Funding Agreement with the State of Texas,
for improvements to the SH 288 frontage roads.
PASSED,APPROVED and ADOPTED this the 28th day of March
A.D., 2005.
cr4.0 P4j.
TOM REID
MAYOR
ATTEST:
-
UNG I GM'
TY S ETARY
APPROVED AS TO FORM:
024,:— /6 64--
DARRIN M. COKER
CITY ATTORNEY
EXHIBIT
0A e
County: Harris County
CSJ:. 0598-02-038
SH 288: Harris County Line to
FM 2234 (McHard
Road)
County: Harris County
CSJ: 0598-01-074
SH 288: BW 8 to Brazoria
County Line
STATE OF TEXAS §
COUNTY OF TRAVIS §
LOCAL TRANSPORTATION PROJECT
ADVANCE FUNDING AGREEMENT
THIS.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 Pearland, Texas, acting by and through its duly authorized officials, hereinafter
called the "Local Government."
WITNESSETH
WHEREAS, the Intermodal Surface Transportation and Efficiency Act of 1991 (ISTEA)
and the Transportation Equity Act for the 21st Century (TEA-21) codified under Title 23
U.S.C. Section 101 et seq., authorize transportation programs to meet the challenges of
protecting and enhancing communities and the natural environment and advancing the
nation's economic growth and competitiveness; and
WHEREAS, ISTEA and TEA-21 establish 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, Commission Minute Order Number 107561 authorizes the State to
undertake and complete a highway improvement through the expenditure of
discretionary funds; and
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WHEREAS, the State desires improvements to SH 288 generally described as the
construction of SH 288 southbound frontage road between BW 8 and FM 2234, at the.
location shown on the Map in Attachment B hereinafter referred to as the Project; and
WHEREAS, the Local Government desires to expedite the improvements currently
planned by the State, to the SH 288 southbound frontage roads between BW 8 and FM
2234 and desires to include an additional southbound exit ramp to the plans; and,
WHEREAS, the Local Government has agreed that the development of the Project
includes, but is not limited to, the preparation of the design plans, specifications, and
estimates (PS&E) for the southbound frontage road. The PS&E prepared by the Local
Government will include the Clear Creek bridge, completing the gaps between the
existing roads and the new bridge, modifications at tie in points to the existing frontage
roads, the exit ramp, improving the existing frontage road pavement as necessary and
signal modifications at FM 2234; and
WHEREAS, the Governing Body of the Local Government has approved entering into
this Agreement by resolution or ordinance dated
which is attached hereto and made a part hereof as Attachment C; and
WHEREAS, the State will secure its funding share, perform the environmental
assessment, provide necessary environmental documentation and permits, provide any
required public meetings, provide any necessary environmental mitigation, arrange for
the adjustment of utilities, review the PS&E, let the construction contract, provide the
construction inspection and provide other items as required; and,
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:
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 State and the Local Government agree that the scope of the Project shall be
limited to the scope authorized by the Texas Transportation Commission. The
scope of the Project is to prepare the environmental assessment, right of way maps,
property descriptions, and schematic layout; perform field surveys; conduct public
meetings/hearings; prepare plans, specifications and estimates (PS&E); complete
acquisition of right of way; construct the Project (including grading, paving,
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structures, etc. as applicable); and any other work necessary to complete the
Project.
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. Any work done prior to federal authorization will not be eligible for
reimbursement. It is the Local Government's responsibility to verify with .the
State that the Federal Letter of Authority has been issued for the work covered
by this Agreement.
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. The Local Government will be responsible for all non-federal or non-State
participation costs associated with the Project, including any overruns in excess
of the approved local project budget unless otherwise provided for in this
Agreement or approved otherwise in an amendment to this.Agreement.
e. For the purposes of this project the Local Government will be considered an
extension of State staff and no review costs will be charged to the Local
Government.
f. The State will be responsible for all construction and construction management
costs for this project per Attachment "C."
g. The State is not liable to reimburse the Local Government for any costs that the
Local Government incurs in developing the PS&E for this project.
h. 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.
i. If the Local government is an Economically Disadvantaged County and if the
Texas Transportation Commission has approved adjustments to the standard
financing arrangement, this Agreement reflects those adjustments.
j. 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
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• .
•
authority of the state auditor, under the direction of the legislative audit
committee, to conduct an audit or investigation in connection with those funds.
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, or;
b. because of a breach of this Agreement. Any cost incurred due to a breach of
contract shall be paid by the breaching party.
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
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
If the required right of way encroaches upon existing utilities and the proposed
project requires their adjustment, removal or relocation, the State will. be
responsible for determining the scope of utility work and for notifying the
appropriate utility company to schedule adjustments.
The State shall be responsible for the adjustment, removal or relocation of utility
facilities in accordance with applicable State laws, regulations, rules, policies and
procedures. This includes, but is not limited to: 43 TAC §15.55 relating to
Construction Cost Participation; 43 TAC §21.21 relating to State Participation in
Relocation, Adjustment, and/or Removal of Utilities; and, 43 TAC§ 21.31 et seq.
relating to Utility Accommodation. The State will be responsible for all costs
associated with additional adjustment, removal, or relocation during the
construction of the project, unless this work is provided by the owners of the
utility facilities:
a. per agreement;
b. per applicable statutes or rules, or;
c. as specified otherwise in this Agreement.
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Prior to letting a construction contract for the Project, a utility certification must be
made available to the State upon request stating that all utilities needing to be
adjusted for completion of the construction activity have been adjusted.
8. Environmental Assessment and Mitigation
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 State 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 State is responsible for the cost of any environmental problem's
mitigation and remediation.
c. The State 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 State is responsible for the preparation of the NEPA documents required
for the environmental clearance of this project.
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 Local Government will fund and develop the design plans, specifications and
estimates for the.Project. The engineering and design plans shall be developed in
accordance with 2004 Standard Specifications for Construction of Highways, Streets
and,Bridges, the latest edition and revisions of the State's Roadway Design Manual
or the American Association of State Highway and Transportation Officials A Policy
on Geometric Design of Highways and Streets, Federal regulations for conformity
with the Clean Air Act air quality requirements, the EPA-National Pollutant Discharge
Elimination System requirements, and the Texas Manual on Uniform Traffic Control
Devices. In addition, all engineering work shall be prepared using the English
system_ of measurements. Documents prepared for the purpose of public
involvement shall be in the English unit system.
The State will perform a 60 percent, 95 percent and final review of the engineering
plans, specifications and estimate work being developed by the Local Government's
consultant. The State will also review all schematic, bridge layout, design, hydraulic
reports and data submitted by the Local Government. The State will review and
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approve the scope of work for the consultant preparing the engineering for the Local
Government. The State will provide all available surveying, geotechnical and
hydraulics information to the Local Government. Should required information not be
available to the State, the Local Government will provide this data.
If the Local Government has submitted work in accordance with the terms of this
contract but the State requests changes to the completed work or parts thereof
which involve changes to the original scope of services or character of work under
the contract, the Local Government shall make such revisions as requested and as
directed by the State.
The Local Government shall be responsible for the accuracy of work and shall
promptly make necessary revisions or corrections resulting from its errors,
omissions, or negligent acts.
The Local Government's responsibility for all questions arising from design errors °
and/or omissions will be determined by the State. The Local Government will not be
relieved of the responsibility for subsequent correction of any such errors or
omissions.
The responsible Engineer shall sign, seal and date all appropriate engineering
submissions to the State in accordance with the Texas Engineering Practice Act and
the rules of the Texas Board of Professional Engineers.
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, receives 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. For federally funded contracts, the parties to this Agreement will comply with
federal construction requirements cited in 23 CFR Part 635 and with
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•
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, Part 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 State 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:
The Local Government State:
City of Pearland, Texas Texas Department of Transportation
3519 Liberty Drive P. O. Box 1386
Pearland, Texas 77581 Houston, Texas 77251-1386
Attention: City Manager Attention: 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
In case one or more of the provisions contained in this Agreement, shall for any
reason be held invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions and this Agreement
shall be construed as if it did not contain the invalid, illegal or unenforceable
provision.
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
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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.
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
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
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access to all the governmental records that are directly applicable to this Agreement
for the purpose of making audits, examinations, excerpts, and transcriptions.
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.
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
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." The parties to this contract shall require any party to a subcontract or
purchase order awarded under this contract to certify its eligibility to receive Federal
funds and, when requested by the State, to furnish a copy of the certification in
accordance with Title 49 CFR Part 29 (Debarment and Suspension).
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
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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.
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
Name
Printed Name and Title
Date
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THE STATE OF TEXAS
Executed for the Executive Director and approved for the Texas Transportation
Commission for the purpose and effect of activating and/or carrying out the orders,
established policies or work programs heretofore approved and authorized by the
Texas Transportation Commission.
Janice Mullenix
Director of Contract Services Section
Office of General Counsel •
Texas Department of Transportation
Date
•
AFALongGen Page 11 of 11 3/21/2005
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Attachment A
Resolution or Ordinance
Page 1 of 1 Attachment A
•
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Attachment "B"
-- CSJ: 0598-01-074 CSJ: 0598-02-038
County: Harris County: Brazoria
Hwy: SH 288 Hwy: SH 288
'rivalled
Limits: BW 8 to Brazoria CL Limits: Harris CL to FM 2234 (McHard Rd)
Musporfarlon
County: Harris County
CSJ: 0598-02-038
SH 288: Harris County Line to
FM 2234 (McHard
Road)
County: Harris County
CSJ: 0598-01-074
SH 288: BW 8 to Brazoria
County Line
ATTACHMENT C
Project Budget And Description
The Local Government will participate in the cost of the SH 288 frontage road
improvements between BW 8 and FM 2234 as indicated below. The State has
estimated the project costs to be as follows:
Total
Estimate
Description Cost State Participation Local Participation
Cost % Cost
4
°a�.7 ors`.
!AV CONSTUCTION4COS7'3No 471
Construction
0598-01-074:
SH 288: BW 8 to Brazoria
County Line $1,730,805.13 100.00% $1,730,805.13 0.00% $0.00
Construction
0598-02-038
SH 288: Harris County Line
to FM 2234 (McHard Road) $511,347.34 100.00% $511,347.34 0.00% $0.00
TxDOT Review* $0.00 0.00% $0.00 0.00% $0.00
Engineering & Contingencies
(E&C)** (Estimated @ 11.5%
of construction) $257,847.53 100.00% $257,847.53 0.00% $0.00
Design *** $250,000.00 0.00% $0.00 100% $250,000.00
TOTAL $2,750,000.00 . $2,500,000 00 $250,000.00
* No Charge for Review
** Engineering and contingencies charges will be based on actual charges.
*** Estimated Cost
Local Government's Participation = $250,000.00
Page 1 of 2 Attachment C
The State will consider the Local Government and their engineering consultant to be an
extension of State staff for the purposes of this Project and the State will not charge the
Local Government any review costs for the Project. The Local Government will pay all
costs associated with the development of the plans, specification and estimates for the
SH 288 southbound frontage road improvements. 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 a preliminary estimate only, final participation amounts will
be based on actual charges to the project.
•
•
Page 2 of 2 Attachment C