HomeMy WebLinkAboutPR 21586: TEXAS MOBILITY FUND GRANT City of
ort rthuur
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INTEROFFICE MEMORANDUM
Date: September 16,2020
To: The Honorable Mayor and City Council
Through: Ron Burton, City Manager
From: Alberto Elefano, P.E., Public Works Director
RE: P.R. 21586: Authorization for the City Manager to enter into an Advance Funding
Agreement for a Texas Mobility Fund Grant to the City of Port Arthur for a Public
Transportation Project Off-System (S. Pt Street in Sabine Pass from Broadway to the Port
Entrance)
Introduction:
The intent of this Agenda Item is to authorize the City Manager to enter into an Advance Funding Agreement
for a Texas Mobility Fund Grant to the City of Port Arthur for a Public Transportation Project Off-System
(South 1St Street of Sabine Pass from Broadway to the Port Entrance).
Background:
The City of Port Arthur pursued an infrastructure grant from the Texas Department of Transportation Rider
38 Grant Program from its Maritime Division to improve access and drainage to the Port of Sabine Pass.
The City has been notified that S. 1St Street has been selected as a Rider 38 Project.
The Texas Department of Transportation will pay money in an amount not to exceed $874,177 on a
reimbursement basis. This fund is only to be used for construction.
Budget Impact:
Funds are available in Capital Projects Account no. 307-1601-591.86-00
Recommendation:
It is recommended that the City of Port Arthur City Council approve PR 21586 to authorize the City Manager
to enter into an Advance Funding Agreement for a Texas Mobility Grant to the City of Port Arthur for a
Public Transportation Project Off-System.
"Remember, we are here to serve the Citizens of Port Arthur"
444 4th Street X Port Arthur,Texas 77641-1089 X 409.983.8182 X FAX 409.983.8294
PR No.21586
9/21/20 ace
Page 1 of 4
RESOLUTION NO.
A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE
THE ADVANCE FUNDING AGREEMENT REQUIRED FOR THE TEXAS
MOBILITY FUND GRANT AWARDED TO THE CITY OF PORT ARTHUR
FOR A PUBLIC TRANSPORTATION PROJECT OFF-SYSTEM FOR THE
REIMBURSEMENT OF CONSTRUCTION COST OF THE RIDER 38
PROJECT BEING SOUTH 1ST STREET IN SABINE PASS FROM
BROADWAY TO THE PORT ENTRANCE, IN AN AMOUNT NOT TO
EXCEED $874,177.00 FROM THE TEXAS MOBILITY FUND (TMF).
CONSTRUCTION COST THAT EXCEEDS THE GRANT AWARD, IF
APPLICABLE, WILL BE FUNDED IN ACCOUNT NUMBER 307-1601-
591.86-00.
WHEREAS, the City of Port Arthur is constantly seeking funding opportunities for
infrastructure repair and revitalization; and,
WHEREAS, pursuant to Resolution No. 19-372, City Council was notified that the
City would participate in the Rider 38 Grant from the Maritime Division of the Texas
Department of Transportation for the improvement to the street and drainage along
South 1st Street that provides access to the Port of Sabine Pass; and,
WHEREAS, the City has been notified that South 1st Street from Broadway to the
Port Entrance has been selected to be a Rider 38 Project; and,
WHEREAS, in order to receive the grant, it is necessary that the City Manager
acting as Port Arthur's duly authorized officer enter into an advance funding agreement
with the State of Texas through the Texas Department of Transportation; and
WHEREAS, the City Council finds it in the best interest of the citizens of the City
of Port Arthur to authorize the City Manager to accept the Rider 38 Grant; and,
WHEREAS, that any additional construction costs, if any will be provided by City
and that funding is available in Capital Projects Account No. 307-1601-591.86-00; and,
PR No. 214586
9/21/2020 ace
Page 2 of 4
WHEREAS, a copy of the Advance Funding Agreement is attached as Exhibit"A";
now therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PORT ARTHUR:
THAT, the facts and opinions in the preamble are true and correct; and,
THAT, the City Manager is authorized to enter into an Advanced Funding
Agreement with the State of Texas, acting by and through the Texas Department of
Transportation in an amount not to exceed $874,177.00 for South 15t Street from
Broadway to the Port Entrance, attached in substantially the same form as Exhibit "A";
and,
THAT, a copy of the caption of this Resolution be spread upon the Minutes of the
City Council.
READ, ADOPTED AND APPROVED this the day of , A.D. 2020 at
a meeting of the City of Port Arthur, Texas by the following vote:
Ayes: Mayor:
Council members:
Noes:
PR No.21586
9/21/20 ace
Page 3 of 3
Thurman "Bill" Bartle
Mayor
ATTEST:
Sherri Bellard
City Secretary
APPROVED AS TO FORM: APPROVED FOR ADMINISTRATION:
Valecia Tizeno Ron Burton
City Attorney City Manager
APPROVED AS FOR AVAILABILITY OF
FUNDS:
C*_
Kandy Daniel
Interim Director o Finance
Alberto Elefano, P.E.
Director of Public Works
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k,tiAL
Clifton illiams, CPPB
Purchasing Manager
Exhibit A
CSJ#: 0920-38-278
District#: 20
Code Chart 64#: 33350
Project Name: Sabine Pass Port Authority South
1st.Avenue Rehabilitation Project
STATE OF TEXAS §
COUNTY OF TRAVIS §
ADVANCE FUNDING AGREEMENT
For a Texas Mobility Fund Grant
To the City of Port Arthur
For A Public Transportation Project Off-System
THIS ADVANCE FUNDING AGREEMENT (Agreement) is made by and between the State of
Texas, acting by and through the Texas Department of Transportation, called the "Department,"
and the City of Port Arthur, acting by and through its duly authorized officers, called the "Local
Government," (individually the "Party" and collectively the "Parties"to this Agreement).
WITNESSETH
WHEREAS, Article III, Section 49-k of the Texas Constitution (Constitutional Provision) created
the Texas Mobility Fund (TMF) in the State Treasury and provides that the TMF shall be
administered by the Texas Transportation Commission as a revolving fund to provide a method
of financing the construction, reconstruction, acquisition, and expansion of state highways and to
provide participation by the Texas Transportation Commission in the payment of a portion of the
costs of constructing and providing publicly-owned toll roads and other public transportation
projects, in accordance with the procedures, standards and limitations established by law; and
WHEREAS, the 86th Texas Legislature required that, from any available source of revenue
and/or balances in the TMF, an amount not to exceed $20,000,000 in each fiscal year of the
2020-2021 biennium shall be allocated to provide funding for public roadway projects selected
by the Port Authority Advisory Committee and approved by the Commission to improve
connectivity to Texas ports, under the General Appropriations Act (HB 1, 86th Texas
Legislature, 2019, Rider 38, page. VII-29); and
WHEREAS, the Local Government submitted a request to the Department for state participation
in the form of a grant of funds to pay a portion of the costs of construction of a public
transportation project to rehabilitate South 1st Avenue from Broadway Avenue to the port
entrance (Project), as selected by the Port Authority Advisory Committee; and
WHEREAS, by Minute Order 115752 dated May 28, 2020, attached hereto as Attachment A;
Minute Order for TMF Funds, the Texas Transportation Commission approved state participation
in the form of a grant in an amount not to exceed $874,177 from the Texas Mobility Fund (the
"TMF funds") to pay a portion of the Project as described in this Agreement, and authorized the
Executive Director of the Department or his designee to take all actions necessary to effect the
purposes of the minute order; and
Page 1
TMF Grant AFA Rider 38 Rev. 6/10/2020
CSJ#: 0920-38-278
District#: 20
Code Chart 64#: 33350
Project Name: Sabine Pass Port Authority South
1st.Avenue Rehabilitation Project
WHEREAS, the governing body of the Local Government passed a Resolution on
, attached to and made a part of this Agreement as Attachment B,
Resolution or Ordinance, authorizing the Local Government's authorized representative to enter
into this Agreement; and
NOW, THEREFORE, in consideration of the premises and of the mutual covenants and
agreements of the Parties, to be by them respectively kept and performed as set forth in this
Agreement, 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 and all excess funds are disbursed, unless earlier terminated as provided in
this Agreement.
2. Scope of Work
A. The scope of work of the Project is as follows: Rehabilitation of 1st Avenue from
Broadway Avenue to the port entrance.
B. A map showing the Project appears in Attachment C, Location Map Showing
Project, which is attached to and made a part of this Agreement.
3. Local Government Project Sources and Uses of Funds
A. The maximum amount of the Department's participation in the Project is
$874,177 as shown in Attachment D, Project Budget (Attachment D), which is
attached to and made a part of this Agreement. The Department will pay money
in an amount not to exceed $874,177 to the Local Government from the TMF on
a reimbursement basis, to be used for construction (by the Local Government) of
the Project, called the "Eligible Project Costs". The Department will pay for only
those Eligible Project Costs that have been approved by the Texas
Transportation Commission. The Local Government shall not make or implement
any changes to the Project scope without the written approval of the Department.
The Local Government is responsible for all other Project costs, including 100%
of the cost of any work performed under its direction or control before the
Department spending authority is formally obligated.
B. If requested by the Department, the Local Government shall reimburse the
Department for any TMF funds paid under this Agreement that are used for costs
that are not Eligible Project Costs in a manner determined by the Department. If
all of the TMF funds are not used for the payment of Eligible Project Costs within
10 years of execution of this Agreement or if the Department determines that the
Local Government will not be able to use the TMF funds for the Project, the Local
Government shall perform an audit of the TMF funds that were spent on Eligible
Project Costs, subject to approval by the Department, and at the Department's
option shall use any excess TMF funds paid under this Agreement for additional
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TMF Grant AFA Rider 38 Rev. 6/10/2020
CSJ#: 0920-38-278
District#: 20
Code Chart 64#: 33350
Project Name: Sabine Pass Port Authority South
151 Avenue Rehabilitation Project
Eligible Project Costs or use them for other legally authorized purposes as
approved by the Department.
C. The Department will be responsible only for the Department's share of the
funding required for the development and construction of the Project as
specified in this Agreement, such amount being the maximum liability of
the Department under this Agreement.
D. The Local Government will be responsible for all non-federal or non-Department
participation costs associated with the Project, otherwise provided for in this
Agreement or approved otherwise in an amendment to this Agreement, including
any costs of completing the Project that exceeds the amount provided by the
Department under this Agreement.
E. Upon completion of the Project, the Local Government will perform an audit of
the TMF funds that were spent on Eligible Project Costs, subject to approval by
the Department, and may, at the Department's option, use any excess TMF
funds not paid under this Agreement for additional Eligible Project Costs or use
them for other legally authorized purposes as approved by the Department.
F. The State Auditor may conduct an audit or investigation of any entity receiving
funds from the Department directly under this contract or indirectly through a
subcontract under this contract. Acceptance of funds directly under this 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.
G. Payment under this Agreement beyond the end of the current fiscal biennium is
subject to availability of appropriated funds. If funds are not appropriated, this
Agreement may be terminated immediately by the Department with no liability to
either Party.
H. Since the Department's payment is a reimbursement to the Local Government on
a cost basis as shown in Attachment D, the Local Government is authorized to
submit requests for reimbursement in accordance with Section 4 below.
I. The Local Government shall provide the Department any information needed to
timely deliver the funds to the Local Government's depository bank, which must
be approved by the Department, in a separate account that is dedicated to the
payment of Project costs.
J. If the Local Government will perform any work under this contract for which
reimbursement will be provided by or through the Department, the Local
Government must complete training. Training is complete when at least one
individual who is working actively and directly on the Project successfully
completes and receives a certificate for the course entitled "Local Government
Project Procedures and Qualification for the Texas Department of
Transportation." The Local Government shall provide the certificate of
qualification to the Department. The individual who receives the training
certificate may be an employee of the Local Government or an employee of a
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CSJ#: 0920-38-278
District#: 20
Code Chart 64#: 33350
Project Name: Sabine Pass Port Authority South
1st•Avenue Rehabilitation Project
firm that has been contracted by the Local Government to perform oversight of
the Project. The Department in its discretion may deny reimbursement if the
Local Government has not designated a qualified individual to oversee the
Project.
4. Disbursement of TMF Funds
A. The Local Government will deliver to the Department prior to each disbursement
a certificate requesting a reimbursement in which the Local Government
accounts for all TMF funds disbursed under this Agreement and certifies that
the disbursement, when added to the amount of all prior disbursements under
this Agreement, will not exceed the total amount of funding authorized under
this Agreement. Such certificates may not be delivered more frequently than
monthly and not later than ninety(90) days after costs are incurred.
B. Funds to be made available pursuant to this Agreement shall be disbursed
promptly upon receipt and formal acceptance by the Department of a request
for reimbursement from the Local Government in a format acceptable to the
Department which complies with the requirements in this Agreement and which
shall also include the following:
(1) the amount requested;
(2) a description of the use of the funds requested; and
(3) copies of proposals, invoices, fee statements, or other
documentation showing the intended use of the funds requested.
C. The Department shall have the right to deny all or part of a request for funds
proposed to be used for purposes not authorized by this Agreement or due to a
lack of adequate documentation. In either event, the Local Government will
have the right to submit additional information to clarify the use of funds
requested or to provide any missing documentation. The Parties will use
their best efforts to resolve any disputes over the requested use of funds in a
manner which recognizes the need for the Local Government to advance the
Project and meet its obligations.
D. The Local Government shall submit to the Department for its approval an
annual budget of Project costs payable from the grant funds for the upcoming
fiscal year of the Local Government that includes monthly estimates of
expenditures, such budget and cash flows to be in a form and in sufficient
detail as may be reasonably required by the Department (the "Construction
Budget"). If the Local Government determines that it will incur costs that
were not included in the Construction Budget, the Local Government shall
provide a revised Construction Budget to the Department.
E. The Department has thirty (30) calendar days from receipt of a revised
Construction Budget to notify the Local Government in writing of the
Department's approval of the revised Construction Budget. Failure to notify the
Local Government of approval or disapproval of the Construction Budget within
thirty (30) calendar days shall be considered deemed approval of the
Construction Budget. Construction Budget approval by the Department is
conditioned on verification by the Department that the anticipated grant
disbursements can be made in the anticipated timeframe.
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TMF Grant AFA Rider 38 Rev.6/10/2020
CSJ#: 0920-38-278
District#: 20
Code Chart 64#: 33350
Project Name: Sabine Pass Port Authority South
1st Avenue Rehabilitation Project
F. If the Department disapproves the revised Construction Budget, it shall
specify, in writing (issued within the initial thirty (30) calendar day review
period), the reasons for disapproval. The Local Government may resubmit the
revised Construction Budget in a manner which addresses the issues raised by
the Department. The Department shall have ten (10) business days from receipt
of the resubmittal to review and approve, or disapprove, of the resubmittal. If the
Department disapproves the resubmittal, it shall specify, in writing (issued within
the ten (10) business day review period), the reasons for disapproval. Additional
resubmittals will be processed in the same manner.
G. To the extent funds disbursed hereunder are utilized to procure tangible work
product consistent with the authorized purposes under this Agreement, the
Department shall have the right to review such work product as a condition to
making a requested disbursement.
5. Non-Performance, Stop Work Orders, and Termination of this Agreement
This Agreement shall remain in effect until the Project is completed or all TMF funds are
used in accordance with this Agreement, unless:
A. The Agreement is terminated in writing by the Parties; or
B. The Agreement is terminated by the Department because of non-performance or
a breach by the Local Government, subject to the following provisions:
(1) NON-PERFORMANCE. The Department shall provide notice to the Local
Government of the occurrence of any circumstances deemed by the
Department to be non-performance by the Local Government under this
Agreement. Within thirty(30) days of receipt of the Department's notice,
the Local Government shall remedy the non-performance and notify the
Department of the remedy effected, or shall provide written notification to
the Department of the actions it has taken to address the non-
performance. The Parties agree that any of the following occurrences
constitutes non-performance by the Local Government under this
Agreement:
(a) the Local Government fails to complete the Project in accordance
with this Agreement, other than because of the failure of the
Department to deliver the TMF funds as provided herein, because
of force majeure, or because of any other reason allowed in this
Agreement;
(b) the Local Government expends TMF funds on anything other than
Eligible Project Costs without reimbursing the Department in
accordance with this Agreement; and
(c) the Local Government fails to use the TMF funds in accordance
with this Agreement.
(2) STOP WORK ORDERS.
(a) Stop Work Order. The Department may issue a written Stop Work
Order (SWO) to the Local Government at any time for any violation
of this Agreement, including non-performance. The SWO shall
provide the Local Government with notice of the facts underlying
the determination to issue the SWO. The SWO may require an
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TMF Grant AFA Rider 38 Rev. 6/10/2020
CSJ#: 0920-38-278
District#: 20
Code Chart 64#: 33350
Project Name: Sabine Pass Port Authority South
1St Avenue Rehabilitation Project
immediate cessation of work or the cessation of work at a definite
future date. The SWO shall provide the Local Government with a
definite limited time to cure the conditions underlying the SWO.
(b) Local Government's Response. The Local Government shall
provide a written response to the SWO and shall provide the
Department with a detailed plan to address and cure the
conditions supporting the SWO. The Local Government shall
provide the response within three (3) business days from its
receipt of the SWO.
(c) Department's Reply. The department may accept, reject or amend
the Local Government's request for opportunity to cure the
conditions supporting the SWO and shall provide notice of such
action to the Local Government within three business days of
receipt of the response. The Department may issue an amended
SWO that allows resumption of work contingent upon the Local
Government's execution of the plan to cure. The amended SWO
may modify the Local Government's plan to cure only in a manner
consistent with the terms and conditions of this Agreement.
(d) Local Government's Option. The Local Government shall notify the
Department within three (3) business days whether it accepts the
amended SWO. If the Local Government does not accept the
amended SWO, the Department may terminate this Agreement.
Upon successful completion of the plan to cure the conditions
underlying the SWO, the Local Government shall continue work to
complete all obligations under this Agreement.
(3) TERMINATION.
(a) Subject to the notice and opportunity to cure provisions herein, the
Department may terminate this Agreement at any time for non-
performance. Termination shall be effective thirty (30) days after
the Local Government's receipt of written notice of termination.
Upon receipt of such notice, the Local Government shall
immediately discontinue all work in connection with the
performance of this Agreement and shall promptly cancel all
existing orders or other financial commitments chargeable to
funding provided pursuant to this Agreement as directed by the
Department.
(b) Within thirty days of the notice of termination, the Local
Government shall submit a statement showing in detail the work
performed, any payments received by the Local Government, and
any payments made by or due from the Local Government to any
contractor pursuant to the terms of this Agreement prior to the date
of termination, all in the form of a final audit.
(c) The Local Government elects not to proceed with the Project, after
the completion of preliminary engineering, specifications, and
estimates (PS&E), because of insufficient funds, in which case the
Local Government agrees to use all unused TMF funds paid under
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TMF Grant AFA Rider 38 Rev. 6/10/2020
CSJ#: 0920-38-278
District#: 20
Code Chart 64#: 33350
Project Name: Sabine Pass Port Authority South
1st.Avenue Rehabilitation Project
this Agreement that are not expended on Eligible Project Costs for
additional Eligible Project Costs or use them for other legally
authorized purposes as approved by the Department; or— Not
Applicable
6. Amendments
Amendments to this Agreement due to changes in the character of the work, terms of the
Agreement, or responsibilities of the Parties relating to the Project may be enacted
through a mutually agreed upon, written amendment.
7. 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 and shall be cumulative.
8. Utilities
The Local Government shall be responsible for the adjustment, removal, or relocation of
utility facilities in accordance with applicable state and federal laws, regulations, rules,
policies, and procedures.
9. Environmental Assessment and Mitigation
A. The Local Government is responsible for the identification and assessment of any
environmental problems associated with the development of the Project subject
to 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 documents required
for the environmental clearance of the Project.
E. Before the advertisement for bids, the Local Government shall provide to the
Department written documentation from the appropriate regulatory agency or
agencies that all environmental clearances have been obtained.
10. Compliance with Accessibility Standards
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 standards issued or
approved by the Texas Department of Licensing and Regulation (TDLR) as meeting or
consistent with minimum accessibility requirements of the Americans with Disabilities
Act (P.L. 101-336) (ADA).
11. Architectural and Engineering Services
The Local Government has responsibility for the Project, including the performance of
architectural and engineering services. The engineering plans shall be developed in
accordance with the industry standards applicable to the Project, including the Local
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TMF Grant AFA Rider 38 Rev.6/10/2020
CSJ#: 0920-38-278
District#: 20
Code Chart 64#: 33350
Project Name: Sabine Pass Port Authority South
1ST Avenue Rehabilitation Project
Government's applicable Design Criteria, Specifications, Standard Drawing, and
Directive Drawing standards. For highway projects not on the state highway system, the
design shall, at a minimum, conform to applicable American Association of State
Highway and Transportation Officials design standards. In procuring professional
services, the Parties to this Agreement must comply with Texas Government Code 2254,
Subchapter A.
12. Construction Responsibilities
A. The Local Government is responsible for administration of any construction
contracts for the Project and shall advertise for construction bids, issue bid
proposals, receive and tabulate the bids, and award and administer the contract
for construction of the Project in compliance with applicable law. Administration
of a contract includes the responsibility for construction engineering and for
issuance of any change orders, supplemental agreements, amendments, or
additional work orders that may become necessary subsequent to the award of
the construction contract.
B. Projects must be authorized by the Department before the Local Government
awards the construction contract to the contractor.
C. The Local Government will use its approved contract letting and award
procedures to let and award the construction contract.
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 that is acceptable to the Department. The Notice of Completion shall
certify that the Project has been completed and all necessary inspections have
been conducted.
E. The Department may require reports on the progress of the Project. If requested
in writing, the Local Government shall submit to the Department, for each
succeeding thirty (30) day period (hereinafter a "month" or"reporting period")
following the execution of this Agreement and until the completion of the Project,
a report of the work performed during the preceding month, which shall contain,
at a minimum, the following:
(1) a brief description of the progress of work since the last report,
including each activity performed and the percentage of total
completion of each and every activity;
(2) a description of any problems encountered during the reporting period
that may affect the construction of the Project, or that may inhibit the
completion of, or cause a change in, any objectives or costs of the
Project;
(3) a description of actions, if any, the contractor(s) or the Local
Government intends or proposes to take to correct all problems
identified in subparagraph (2) above; and
(4) any perceived or anticipated changes in the schedule, objectives, or costs
for the Project.
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TMF Grant AFA Rider 38 Rev. 6/10/2020
CSJ#: 0920-38-278
District#: 20
Code Chart 64#: 33350
Project Name: Sabine Pass Port Authority South
1St.Avenue Rehabilitation Project
13. Project Maintenance
The Local Government shall be responsible for maintenance of locally owned facilities
and equipment after completion of the work.
14. Right of Way and Real Property
A. Right of way and real property acquisition shall be the responsibility of the Local
Government. Title to right of way and other related real property must be
acceptable to the Department before funds may be expended for the
improvement of the right of way or real property.
B. If the Local Government is the owner of any part of the Project site under this
Agreement, the Local Government shall permit the Department or its authorized
representative access to occupy the site to perform all activities required to
execute the work.
C. All Parties to this Agreement will comply with and assume the costs for
compliance will 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 real property to the
Local Government, and benefits applicable to the relocation of any displaced
person as defined in 49 CFR Section 24.2(g). Documentation to support such
compliance must be maintained and made available to the Department and its
representatives for review and inspection.
D. The Local Government shall assume all costs and perform necessary
requirements to provide any necessary evidence of title or right of use in the
name of the Local Government to the real property required for development of
the Project. The evidence of title or rights shall be acceptable to the Department,
and be free and clear of all encroachments. The Local Government shall secure
and provide easements and any needed rights of entry over any other land
needed to develop the Project according to the approved Project plans. The
Local Government shall be responsible for securing any additional real property
required for completion of the Project.
E. In the event real property is donated to the Local Government after the date of
the Department's authorization, the Local Government will provide all
documentation to the Department regarding fair market value of the acquired
property. The Department will review the Local Government's appraisal,
determine the fair market value and credit that amount towards the Local
Government's financial share. If donated property is to be used as a funding
match, it may not be provided by the Local Government. The Department will not
reimburse the Local Government for any real property acquired before execution
of this Agreement, if applicable.
F. The Local Government shall prepare real property maps, property descriptions,
and other data as needed to properly describe the real property and submit them
to the Department for approval prior to the Local Government acquiring the real
property. Tracings of the maps shall be retained by the Local Government for a
permanent record.
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CSJ#: 0920-38-278
District#: 20
Code Chart 64#: 33350
Project Name: Sabine Pass Port Authority South
15t.Avenue Rehabilitation Project
G. The Local Government agrees to make a determination of property values for
each real property parcel by methods acceptable to the Department and to
submit to the Department a tabulation of the values so determined, signed by the
appropriate Local Government representative. The tabulations shall list the
parcel numbers, ownership, acreage and recommended compensation.
Compensation shall be shown in the component parts of land acquired,
itemization of improvements acquired, 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
calculating all determined values.
H. If the Project requires the use of real property to which the Local Government will
not hold title, a separate agreement between the owners of the real property and
the Local Government must be executed prior to execution of this Agreement
The separate agreement must establish that the Project will be dedicated for
public use for a period of not less than ten (10) years after completion. The
separate agreement must define the responsibilities of the Parties to the use of
the real property and operation and maintenance of the Project after completion.
The separate agreement must be approved by the Department prior to its
execution. A copy of the executed agreement shall be provided by the
Department.
15. Notices
All notices to either Party shall be delivered personally or sent by certified or U.S. mail,
postage prepaid, addressed to that Party at the following address:
Local Government Department
City of Port Arthur Texas Department of Transportation
Attn: City Manager Director of Contract Services
P.O. Box 1089 125 E. 11th Street
Port Arthur, TX 77641 Austin, TX 78701
All notices shall be deemed given on the date delivered in person or deposited in the
mail, unless otherwise provided by this Agreement. 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 notices shall be delivered personally or by certified U.S. mail, and
that request shall be carried out by the other party.
16. 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.
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17. Responsibilities of the Parties
The Department 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.
18. Ownership of Documents
Upon completion or termination of this Agreement, all documents prepared by the Local
Government shall remain the property of the Local Government. All data prepared under
this Agreement shall be made available to the Department 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 Department in the form of photocopy
reproduction on a monthly basis as required by the Department. The originals shall
remain the property of the Local Government. At the request of the Department, the
Local Government shall submit any information required by the Department in the format
directed by the Department.
19. 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, including without
limitation workers' compensation laws, minimum and maximum salary and wage statutes
and regulations, nondiscrimination laws and regulations, licensing laws, regulations, and
the Texas Uniform Grant Management Standards. When required, the Local Government
shall furnish the Department with satisfactory proof of this compliance.
20. 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.
21. Inspection of Books and Records
A. Duty to Maintain Records. The Parties to this agreement shall maintain all books,
documents, papers, accounting records, and other documentation relating to
Project costs incurred under this Agreement in accordance with Generally
Accepted Accounting Principles. The Local Government shall also require its
contractors to maintain financial accounting records consistent with Generally
Acceptable Accounting Principles and with state laws applicable to government
accounting. All accounting and other financial documentation shall be accurate,
current, and shall reflect recordation of the transactions at or about the time the
transactions occurred.
B. Duty to Retain Records. The Local Government shall retain all financial records
and supporting documents and any other documents pertinent to the Project in
accordance with the requirements of applicable state law relating to retention and
access to records. The Department requires the Local Government to retain all
records related to this Agreement for a period of four (4) years after submission of
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the audit upon completion of the Project and any litigation or claims regarding the
Project or this Agreement are resolved.
C. Access to Records. The Local Government shall make Project materials available
to the Department for review and inspection at its office during the contract period
and for four(4) years after submission of the audit upon completion of the Project
and any litigation or claims regarding the Project or this Agreement are resolved.
Additionally, the Department and the Local Government shall have access to all
the records that are directly applicable to this Agreement for the purpose of
making audits, examinations, excerpts, and transcriptions. The Local Government
understands and agrees that all documents relating to this Agreement are subject
to the Public Information Act, Tex. Gov't Code, Chapter 552, and that such
documents may not be withheld from public disclosure, except in accordance with
law and with the rulings of the Texas Attorney General. The Local Government
shall promptly respond to a request by the Department for copies of any of the
Local Government's records related to this Agreement.
22. Insurance
If this Agreement authorizes the Local Government or its contractor to perform any work
on Department right of way, before beginning work the entity performing the work shall
provide the Department with a fully executed copy of the Department'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
Department right of way. This coverage shall be maintained until all work on the
Department right of way is complete. If coverage is not maintained, all work on
Department right of way shall cease immediately, and the Department may recover
damages and all costs of completing the work.
23. Investment and Collateralization of Funds
The Local Government shall deposit the TMF funds in a state depository bank
designated by the Texas Office of the Comptroller and approved by the Department, and
the funds shall be handled in a manner that complies with the Public Funds Investment
Act, Texas Government Code, Chapter 2256; and shall be adequately collateralized in a
manner sufficient to protect the Department's interest in the Project that complies with
the Public Funds Collateral Act, Texas Government Code, Chapter 2257.
24. Historically Underutilized Business (HUB) and Small Business Enterprise (SBE)
Requirements
For projects with state funds and no federal funds, the Local Government will be
required to follow the provisions of Texas Transportation Code §201.702 and 43 TAC
§§9.354-9.355 (HUB) and §§9.314-9.315 (SBE). The Local Government must
incorporate project goals approved by TxDOT into project documents before advertising
for receipt of bids. Contractors must select HUBs and SBEs from TxDOT-approved or
maintained sources. The Local Government will provide monthly updates of HUB/SBE
(as appropriate) participation and report final accomplishments to TxDOT for credit to
overall program goals.
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For projects with no state or federal funds that are not on the state or federal highway
systems, the Local Government should follow its own local or specific ordinances and
procedures. Local Governments are encouraged to use HUBs and SBEs from TxDOT-
approved or maintained sources. The Local Government must also report final HUB
accomplishments to TxDOT for credit to overall program goals.
25. Debarment Certifications
If state funds are used, the parties are prohibited from making any award to any party
that is debarred under the Texas Administrative Code, Title 34, Part 1, Chapter 20,
Subchapter G, Rule §20.585 and the Texas Administrative Code, Title 43, Part 1,
Chapter 9, Subchapter G.
26. Pertinent Non-Discrimination Authorities
During the performance of this contract, the Local Government, for itself, its assignees,
and successors in interest agree to comply with the following nondiscrimination statutes
and authorities; including but not limited to:
A. Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252),
(prohibits discrimination on the basis of race, color, national origin); and 49 CFR
Part 21.
B. The Uniform Relocation Assistance and Real Property Acquisition Policies Act of
1970, (42 U.S.C. § 4601), (prohibits unfair treatment of persons displaced or
whose property has been acquired because of Federal or Federal-aid programs
and projects).
C. Federal-Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), as amended,
(prohibits discrimination on the basis of sex).
D. Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.) as
amended, (prohibits discrimination on the basis of disability); and 49 CFR Part
27.
E. The Age Discrimination Act of 1975, as amended, (49 U.S.C. § 6101 et seq.),
(prohibits discrimination on the basis of age).
F. Airport and Airway Improvement Act of 1982, (49 U.S.C. Chapter 471, Section
47123), as amended, (prohibits discrimination based on race, creed, color,
national origin, or sex).
G. The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope,
coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age
Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by
expanding the definition of the terms "programs or activities" to include all of the
programs or activities of the Federal-aid recipients, subrecipients and contractors,
whether such programs or activities are Federally funded or not).
H. Titles II and III of the Americans with Disabilities Act, which prohibits
discrimination on the basis of disability in the operation of public entities, public
and private transportation systems, places of public accommodation, and certain
testing entities (42 U.S.C. §§ 12131-12189) as implemented by Department of
Transportation regulations at 49 C.F.R. parts 37 and 38.
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I. The Federal Aviation Administration's Nondiscrimination statute (49 U.S.C. §
47123) (prohibits discrimination on the basis of race, color, national origin, and
sex).
J. Executive Order 12898, Federal Actions to Address Environmental Justice in
Minority Populations and Low-Income Populations, which ensures
nondiscrimination against minority populations by discouraging programs,
policies, and activities with disproportionately high and adverse human health or
environmental effects on minority and low-income populations.
K. Executive Order 13166, Improving Access to Services for Persons with Limited
English Proficiency, and resulting agency guidance, national origin discrimination
includes discrimination because of limited English proficiency (LEP). To ensure
compliance with Title VI, the parties must take reasonable steps to ensure that
LEP persons have meaningful access to the programs (70 Fed. Reg. at 74087 to
74100).
L. Title IX of the Education Amendments of 1972, as amended, which prohibits the
parties from discriminating because of sex in education programs or activities (20
U.S.C. 1681 et seq.).
27. Force Majeure
Unless otherwise provided, neither the Local Government nor the Department nor any
agency of the State of Texas, shall be liable to the other for any delay in, or failure of
performance of a requirement contained in this Agreement caused by force majeure,
meaning a failure or delay in a Party's performance under this Agreement that is caused
by acts of God, war, strike, fires, explosions, or other causes that are beyond the
reasonable control of either Party and that by exercise of due foresight such Party could
not reasonably have been expected to avoid, and which, by the exercise of all
reasonable due diligence, such Party is unable to overcome. The existence of such
causes of delay or failure shall extend the period of performance until after the causes of
delay or failure have been removed provided the non- performing Party exercises all
reasonable due diligence to perform. Each Party must inform the other in writing with
proof of receipt within five (5) business days of the existence of such force majeure or
otherwise waive this right as a defense.
28. Survival of Terms and Conditions
A. Termination or expiration of this Agreement for any reason shall not release
either Party from any liabilities or obligations set forth in this Agreement that:
(1) the Parties have expressly agreed shall survive any such termination or
expiration, if any; or
(2) by their nature, would be intended to be applicable following any such
termination or expiration.
B. The Parties expressly agree that the following terms and conditions survive the
termination of the Agreement, regardless of the reason for the termination.
(1) Section 3.B. and 3.F., regarding the use of the TMF funds.
(2) Section 6. Remedies.
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29. Non-Assignability
The terms and conditions of the financial assistance provided by this Agreement may not
be assigned, transferred, or subcontracted in any manner without the express written
consent of the Department.
30. Entire Agreement and Amendment
This Agreement constitutes the entire agreement between the Department and the Local
Government and no prior or contemporaneous oral or written promises or
representations shall be binding on either Party. No modification of any provision of this
Agreement shall be effective except by written amendment executed by an authorized
representative of each Party.
31. Required Notice
The Local Government shall promptly notify the Department of any adverse change in
the activities, prospects, or conditions (financial or otherwise) of the Local Government
relating to the Project, or its ability to observe and perform its duties, covenants,
obligations, and agreements under this Agreement.
32. No Waiver
The failure of any Party to insist upon the strict performance of any of the terms,
provisions, or conditions of this Agreement shall not be construed as a waiver or
relinquishment for the future of the strict performance of any such term, provision, or
condition or any other term, provision, or condition.
33. No Debt Created
Each Party agrees and understands that, by this Agreement, the State of Texas, acting
through the Department, is not lending its credit or in any manner creating a debt on
behalf of the State of Texas.
34. Law
The validity, operation, and performance of this Agreement shall be governed and
controlled by the laws of the State of Texas and applicable federal regulations, and the
terms and conditions of this Agreement shall be construed and interpreted in accordance
with the laws of this state. The Parties understand and agree that this Agreement is for
the provision of financial assistance for the Project and as such all or part of the
performance of the terms and obligations of the Agreement will be performed in
Jefferson. Notwithstanding the location of the Project, the Parties understand and agree
that any proceeding brought for any breach of this Agreement involving the Department
shall be in Travis County, Texas. This section does not waive the sovereign immunity of
the State of Texas or the Department.
35. Signatory Warranty
Each signatory warrants that the signatory has necessary authority to execute this
Agreement on behalf of the entity represented.
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THIS AGREEMENT IS EXECUTED by the Department and the Local Government.
STATE OF TEXAS THE LOCAL GOVERNMENT
Texas Department of Transportation City of Port Arthur
Signature Signature
Kenneth Stewart
Typed or Printed Name Typed or Printed Name
Director of Contract Services
Typed or Printed Title Typed or Printed Title
Date Date
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ATTACHMENT A
MINUTE ORDER FOR TMF FUNDS
TEXAS IR tNSPoR ATION COMMISSION
VARIOUS Counties MINI TE ORDER Page I of I
VARIOUS Districts
In 2019,the Texas Legislature required that,from any available source of revenue and/or balances in
the Texas Mobility Fund,an amount not to exceed$20,000,000 in each fiscal year of the 2020-2021 biennium
shall be allocated to provide funding for public roadway projects selected by the Port Authority Advisory
Committee and approved by the Texas Transportation Commission(commission)to improve connectivity to
Texas ports,under the General Appropriations Act(HB I,80"Texas Legislature,2019),Rider 38.
page VII-29.
Certain local governments as set forth in Exhibit A have submitted requests to the Texas Department
of Transportation(department)for state participation in the form of a grant of funds to pay a portion of the
costs of construction of a public transportation project selected by the Port Authority Advisory Committee.
The Port Authority Advisory Committee has approved the projects listed in Exhibit A as proposed by
each of the local governments listed.Accordingly.the department recommends that the commission approve
each project listed in Exhibit A and authorize the department to participate in each project in the form of a
grant to each local government listed in Exhibit A up to the amount listed for each project from any available
source of revenue and/or money from the Texas Mobility Fund other than the proceeds of obligations issued
under the enabling act,to be used for construction of each project described in Exhibit A.
Article III,Section 49-k of the Texas constitution(constitutional provision)created the Texas
Mobility Fund(fund)in the state treasury and provides that the fund shall be administered by the commission
as a revolving fund to provide a method of financing the construction,reconstruction,acquisition,and
expansion of state highways and to provide participation by the state in the payment of a portion of the costs
of constructing and providing publicly-owned toll roads and other public transportation projects,in
accordance with the procedures,standards and limitations established by law.
The Texas Legislature implemented the authority granted by this constitutional provision in
Transportation Code,Chapter 201,Subchapter M(enabling act).Transportation Code§201.943 provides that
the commission,by order,may issue obligations, including Texas Mobility Fund General Obligation Bonds,
secured by and payable from a pledge of and lien on all or part of the money in the fund.
NOW,THEREFORE,IT IS DETERMINED AND ORDERED by the commission that each project
listed in Exhibit A meets the eligibility requirements for state participation under the constitutional provision,
and the commission approves each project and approves state participation in the form of a grant to each local
government listed in Exhibit A up to the amount listed for each project from any available source of revenue
and/or money in the fund other than the proceeds of obligations issued under the enabling act,to be used for
construction of each of the projects listed in Exhibit A,and authorizes and directs the executive director of the
department to take all actions necessary to effect the purposes of this minute order.
and d reviewed by: Recommended by:
a>« by: DocuSogyted
,.(40....
h6]llU13N/thin)
Director,Maritime Division Executitc Director
115752 May 28 2020
Minute Daae
Number Passed
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ATTACHMENT B
LOCAL GOVERNMENT ORDINANCE OR RESOLUTION
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ATTACHMENT C
LOCATION MAP SHOWING PROJECT
` N
Project �-
Location_ .,..
*fljjHI :
Jefferson
Ife*V*1
411*,
3327
V '
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ATTACHMENT D
PROJECT BUDGET
The Department will reimburse $874,177 from the Texas Mobility Fund to the Local Government,
on a cost basis, for the construction of the Project. Costs will be allocated based on State funding
and Local Government funding until the State funding reaches the maximum obligated amount.
The Local Government will then be responsible for 100% of the costs.
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