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HomeMy WebLinkAboutPR 18415: (MOU) WITH (TXDOT) (DBE) PROGRAM IN ORDER TO MEET 49 CFR 26 FEDERAL REQUIREMENTS • CITY OF Port Arthur TRANSIT DEPARTMENT Memorandum TO: John Comeaux, P.E. Interim City Manager FROM: Colleen Russell, Director of Transit SUBJECT: P.R.18415 - To enter into a Memorandum of Understanding with TXDOT(Texas Department of Transportation) DATE: July 30, 2014 RECOMMENDATION: The Transit Department recommends that the City Council authorize the City Manager to enter into an agreement with TXDOT regarding a Memorandum of Understanding as to Disadvantage Business Enterprise (DBE) goals. BACKGROUND: The regulations 49CFR 26 requires a DBE policy and that goals and a MOU be recorded with TXDOT every three years. This includes the policy itself with organizational charts and Federal Highway form 1273 as to accessibility, DBE goals and non discriminatory promises when doing contractual agreements. BUDGET/FISCAL EFFECT: Funds allowed from the Federal Transit Administration(FTA) as to planning, operation and capital expenses can be held if this is not complete. SUMMARY: Transit has an updated DBE policy and will adhere to the regulations of 49 CFR 26 and 23 regarding DBE rules of engaging in contractual practices and reporting of activities (such as discrimination, bribery, fraud and kickbacks) that deviates from said rules. In addition PAT promises to report.a d work with TXDOT to disbar and dispute businesses that are found in violation of those r- ulations. ggrAh . :J CI lees 'ussel, Transit D ctor P.R. No. 18415 07/30/14 ht/cwr RESOLUTION NO. A RESOLUTION AUTHORIZING THE CITY MANGER TO EXECUTE A MEMORANDUM OF UNDERSTANDING (MOU) BETWEEN THE CITY OF PORT ARTHUR AND TEXAS DEPARTMENT OF TRANSPORTATION (TXDOT) FOR THE ADOPTION OF TXDOT'S DISADVANTAGE BUSINESS ENTERPRISES (DBE) PROGRAM IN ORDER TO MEET 49 CFR 26 FEDERAL REQUIREMENTS WHEREAS, the City of Port Arthur Transit is eligible to receive federal funds from the Federal Highway Administration (FHWA)through TxDOT, and, WHEREAS, as a sub-recipient of federal funds, the City of Port Arthur is required by 49 CFR 26, to implement a program for disadvantage business enterprises (DBEs), as defined by 49 CFR 26 (DBE Program); and, WHEREAS, City of Port Arthur desires to implement a federally compliant DBE Program by adopting TxDot approved program, as recommended by FHWA; and WHEREAS, City of Port Arthur Transit and TxDot find it appropriate to enter into this MOU to memorialize the obligations (as delineated in Exhibit"A"), expectations and rights each has as related to City of Port Arthur's adoptions of the TxDot DBE's Program to meet the federal requirement. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PORT ARTHUR: THAT,the facts and opinions submitted in preamble are true and correct. THAT,the City Manager is authorized and directed to execute a Memorandum of Understanding between the City of Port Arthur and TxDot, in order to be in compliance with 49 CFR 26 and other applicable laws and regulation. THAT, a copy of the caption of this Resolution be spread upon the Minutes of the City Council. READ,ADOPTED AND APPROVED this day of August 2014, A.D. at a Regular Meeting of the City Council of the City of Port Arthur, Texas, by the following vote: AYES: Mayor Councilmembers: NOES: Deloris Prince, Mayor ATTEST: Sherri Bellard, City Secretary APPROVED AS TO FORM: 71/gJ Val Tizeno, Ci ttorney APPROVED FOR ADMINISTRATION: John A. Comeaux, P.E., Interim City Manager ,04 Co I ussell, 1 irector o ransit EXHIBIT "A" (TXDOT Memorandum of Understanding) Texas Department of Transportation (TxDOT) Memorandum of Understanding (MOU) Instructions & Requirements All Local Government Entities must download both the MOU Form 2395 and MOU Attachments file containing MOU attachments 1-4 and A-F. • The enforcement date of the MOU will be the actual date and time that it has been fully executed by the TxDOT Executive Director. The agenda and minutes or resolution approving the adoption of the DBE Program MUST accompany the signed duplicate counterpart originals of the MOU when presented to TxDOT Executive Director for signature. The originals must be signed by someone who has contract signature authority and can legally bind the Local Government Entity. • If there is no such statute, ordinance, or delegation of authority, the Local Government Entity will need to convene a special meeting and pass such a resolution or ordinance and send those documents to TxDOT. The MOU cannot be fully executed prior to the authorization and confirmation of those documents. • If this is a city, we'll need to receive a copy of the ordinance, city charter or other legal authority that gives the City Manager the authority to bind the City to the terms and conditions of the MOU; or • That the mayor has the authority to delegate signature authority, and we'll need a letter from the Mayor acknowledging that authority. If the Mayor has delegated signature authority, the execution date on the MOU cannot be prior to the date on the Mayor's signature authority letter. A legal citing of the state law or statute granting this authority will also be required and need to be sent to TxDOT. After successfully downloading and reviewing all of the above documents, complete and sign two (2) originals of the MOU by someone in an official capacity with the authority to bind the entity to the MOU agreement and then return to the address below: t - - 64,4 r Texas Dept. of Transportation Office of Civil Rights Attn. - Local Government MOUs 125 E 11th Street Austin, TX 78701 For more information contact TxDOT's Office of Civil Rights at 512-486-5500 or email gloria.brown(c�txdot.gov Form 2395 (Rev.05/14) r ma Page 1 of 6 MEMORANDUM OF UNDERSTANDING REGARDING THE ADOPTION OF THE TEXAS DEPARTMENT OF TRANSPORTATION'S FEDERALLY-APPROVED DISADVANTAGED BUSINESS ENTERPRISE PROGRAM BY City of Port Arthur Transit,Port Arthur This Memorandum of Understanding(MOU)is by and between the TEXAS DEPARTMENT OF TRANSPORTATION(TxDOT),an agency of the State of Texas;and City of Port Arthur Transit,Port Arthur ,a political subdivision of the State of Texas. Whereas,from time to time City of Port Arthur Transit,Port Arthur receives federal funds from the Federal Highway Administration(FHWA)through TxDOT to assist City of Port Arthur Transit,Port Arthur with the construction and design of projects partially or wholly funded through FHWA;and Whereas, City of Port Arthur Transit,Port Arthur ,as a sub-recipient of federal funds, is required by 49 CFR 26, to implement a program for disadvantaged business enterprises (DBEs), as defined by 49 CFR 26(DBE Program);and Whereas, TxDOT has implemented a Disadvantaged Business Enterprise Program (DBE Program)that is approved by the FHWA pursuant to 49 CFR part 26;and Whereas,certain aspects of City of Port Arthur Transit,Port Arthur 's procurement of construction and design services are subject to review and/or concurrence by TxDOT as a condition of receiving federal funds from FHWA through TxDOT;and Whereas, City of Port Arthur Transit,Port Arthur and TxDOT undertake substantially similar roadway construction projects and design projects and construct and design their respective projects using substantially the same pool of contractors;and Whereas, City of Port Arthur Transit,Port Arthur desires to implement a federally compliant DBE Program by adopting the TxDOT approved program,as recommended by FHWA;and Whereas,TxDOT and City of Port Arthur Transit,Port Arthur find it appropriate to enter into this MOU to memorialize the obligations,expectations and rights each has as related to City of Port Arthur Transit,Port Arthur 's adoption of the TxDOT DBE's Program to meet the federal requirements; Now,therefore,TxDOT and City of Port Arthur Transit,Port Arthur , in consideration of the mutual promises,covenants and conditions made herein,agree to and acknowledge the following: (1) TxDOT has developed a DBE Program and annually establishes a DBE goal for Texas that is federally approved and compliant with 49 CFR 26 and other applicable laws and regulations. (2) City of Port Arthur Transit,Port Arthur is a sub-recipient of federal assistance for construction projects and design projects and, in accordance with 49 CFR §26.21,must comply with a federally approved DBE Program. The City of Port Arthur Transit,Port Arthur receives its federal assistance through TxDOT. As a sub-recipient, City of Port Arthur Transit,Port Arthur has the option of developing its own program or adopting and operating under TxDOT's federally approved DBE Program. The FHWA recommends that sub-recipients, such as City of Port Arthur Transit,Port Arthur ,adopt the DBE program,administered through TxDOT, and City of Port Arthur Transit,Port Arthur by its prescribed protocol adopted the TxDOT DBE Program as of the date when adoption occurred. Form 2395 (Rev.05/14) Page 2 of 6 (3)This MOU evidences FHWA's and TxDOT's consent to the adoption of the TxDOT DBE Program by City of Port Arthur Transit,Port Arthur to achieve its DBE participation in federally assisted Construction and Design Projects. (4)The parties will work together in good faith to assure effective and efficient implementation of the DBE Program for City of Port Arthur Transit,Port Arthur and for TxDOT. (5) City of Port Arthur Transit,Port Arthur and TxDOT have agreed upon the following delegation of responsibilities and obligations in the administration of the DBE Program adopted by City of Port Arthur Transit,Port Arthur . (a) City of Port Arthur Transit,Port Arthur will be responsible for project monitoring and data reporting to TxDOT. City of Port Arthur Transit,Port Arthur will furnish to TxDOT any required DBE contractor compliance reports,documents or other information as may be required from time to time to comply with federal regulations.TxDOT will provide the necessary and appropriate reporting forms,to City of Port Arthur Transit,Port Arthur . (b) City of Port Arthur Transit,Port Arthur will recommend contract-specific DBE goals consistent with TxDOT's DBE guidelines and in consideration of the local market,project size,and nature of the good(s)or service(s)to be acquired. City of Port Arthur Transit,Port Arthur 's recommendation may be that no DBE goals are set on any particular project or portion of a project or that proposed DBE goals be modified. City of Port Arthur Transit,Port Arthur and TxDOT will work together to achieve a mutually acceptable goal,however,TxDOT will retain final decision- making authority regarding DBE goals. (c)TxDOT will cooperate with City of Port Arthur Transit,Port Arthur in an effort to meet the timing and other requirements of City of Port Arthur Transit,Port Arthur projects. (d) City of Port Arthur Transit,Port Arthur will be solely responsible for the solicitation and structuring of bids and bid documents to procure goods and services for its projects that use federal funds and will be responsible for all costs and expenses incurred in its procurements. (e)The DBEs eligible to participate on TxDOT construction projects or design projects also will be eligible to participate on City of Port Arthur Transit,Port Arthur construction projects or design projects subject to the DBE Program.The DBEs will be listed on TxDOT's website under the Texas Unified Certification Program(TUCP). (f) City of Port Arthur Transit,Port Arthur will conduct reviews and provide reports with recommendations to TxDOT concerning any DBE Program compliance issues that may arise due to project specific requirements such as Good Faith Effort(GFE),Commercially Useful Function (CUF),etc. City of Port Arthur Transit,Port Arthur and TxDOT will work together to achieve a mutually acceptable goal,however,TxDOT will retain final decision-making authority on those issues and reserves the right to perform compliance reviews. City of Port Arthur Transit,Port Arthur shall provide TxDOT with a listing of sanctions that will be assessed against contractors for violation of federal DBE regulations and its procedures for investigation of violations and assessment of sanctions for documented violations. City of Port Arthur Transit,Port Arthur will require contractors for its FHWA federally assisted projects to use the attached forms as follows: Form 2395 (Rev.05/14) Page 3 of 6 Attachment 1 —Disadvantaged Business Enterprise(DBE)Program Commitment Agreement Form SMS 4901 Attachment 2—DBE Monthly Progress Report Form SMS 4903 Attachment 3—DBE Final Report Form SMS 4904 Attachment 4—Prompt Payment Certification Form(Federal-air Projects)2177 (g) City of Port Arthur Transit,Port Arthur will designate a liaison officer to coordinate efforts with TxDOT's DBE Program administrators and to respond to questions from the public and private sector regarding City of Port Arthur Transit,Port Arthur 's administration of the DBE Program through TxDOT. (h) City of Port Arthur Transit,Port Arthur will be responsible for providing TxDOT with DBE project awards and DBE Commitments, monthly DBE reports, DBE Final Reports, DBE shortfall reports,and annual and updated goal analysis and reports. (i)TxDOT will be responsible for maintaining a directory of firms eligible to participate in the DBE Program, and providing business development and outreach programs. City of Port Arthur Transit,Port Arthur and TxDOT will work cooperatively to provide supportive services and outreach to DBE firms in City of Port Arthur Transit,Port Arthur area. (j) City of Port Arthur Transit,Port Arthur will submit DBE semi-annual progress reports to TxDOT. (k) City of Port Arthur Transit,Port Arthur will participate in TxDOT sponsored training classes to include topics on Title VI of the Civil Rights Act of 1964, DBE Annual Goals, DBE Goal Setting for Construction Projects and Design Projects, DBE Contract Provisions, and DBE Contract Compliance, which may include issues such as DBE Commitments, DBE Substitution, and Final DBE Clearance. TxDOT will include DBE contractors performing work on City of Port Arthur Transit,Port Arthur projects in the DBE Education and Outreach Programs. (1)The Executive Director of City of Port Arthur Transit,Port Arthur will implement all federal requirements,including those stated in Attachments A through F,which are incorporated as though fully set out herein for all purposes. (m)In accordance with 23 CFR 200.1, City of Port Arthur Transit,Port Arthur shall develop procedures for the collection of statistical data(race,color,religion, sex,and national origin)of participants in,and beneficiaries of Sate highway programs, i.e.,relocatees, impacted citizens and affected communities;develop a program to conduct Title VI review of program areas;and conduct annual reviews of special emphasis program areas to determine the effectiveness of program area activities at all levels. TxDOT, in accordance with federal law,may conduct compliance reviews by TxDOT's Office of Civil Rights(OCR). (n) City of Port Arthur Transit,Port Arthur will comply with 49 CFR 26.29 as stated in Attachment F. (6)In the event there is a disagreement between TxDOT and City of Port Arthur Transit,Port Arthur about the implementation of the TxDOT DBE Program by City of Port Arthur Transit,Port Arthur the parties agree to meet within ten (10) days of receiving a written request from the other party of a desire to meet to resolve any disagreement. The parties will make good faith efforts to resolve any disagreement as efficiently as is reasonably possible in consultation with FHWA. Non-compliance by City of Port Arthur Transit,Port Arthur can result in restitution of federal funds to TxDOT and withholding of further federal funds upon consultation with FHWA. Form 2395 (Rev.05/14) Page 4 of 6 (7) This MOU becomes effective upon execution by all parties and automatically renews each year unless a party notifies the other parties of its intent to terminate the agreement. (8)If this MOU is terminated for any reason, City of Port Arthur Transit,Port Arthur will be allowed reasonable time in which to seek approval from FHWA for an alternative DBE Program, without being deemed non-compliant with 49 CFR Part 26. (9)This MOU applies only to projects for which City of Port Arthur Transit,Port Arthur is a sub- recipient of federal funds through TxDOT. City of Port Arthur Transit,Port Arthur may also implement a Minority and Women-Owned Small Business Enterprise(M/W/SBE)policy and program that applies to projects for which it is not a sub-recipient of federal funds through TxDOT and which are not subject to the TxDOT DBE Program. City of Port Arthur Transit,Port Arthur may, at its option,use some aspects of the TxDOT DBE Program and other similar programs in implementing its other policies and programs for its non-federally funded projects. (10)The following attachments to this MOU are also incorporated as if fully set out herein for all purposes: Attachment A—FHWA Memorandum HCR-1/HIF-1 (relating to access required by the Americans with Disabilities Act of 1990 and Section 504 of the Rehabilitation Act of 1973); Attachment B—SPECIAL PROVISION—LOCAL GOVERNMENT/RMA/NON-STANDARD CONTRACTS Attachment C—49 CFR§26.13 (contractual assurances) Attachment D—DBE Program Compliance Guidance for Local Government Agencies Attachment E—FHWA Form 1273 Attachment F—Texas Department of Transportation(TxDOT)Disadvantaged Business Enterprise (DBE)Program with attachments as follows: Attachment Fl —DBE Regulations:49 CFR Part 26 Attachment F2—DBE Special Provisions 000-1966 Attachment F3—TxDOT's Organizational Chart Attachment F4—Measurement and Payment Special Provision 009-007 Attachment F5—Texas Unified Certification Program(TUCP)DBE directory example and website address to the directory Attachment F6—DBE Goal Methodology Attachment F7—DBE Bidder Certification Attachment F8—DBE Joint Check Approval Form Attachment F9—TUCP Standard Operating Procedures(SOP) Attachment F10—TUCP Memorandum of Agreement(MOA) Attachment F 11 —Forms list (11)The following procedure shall be observed by the parties in regard to any notifications: (a) Any notice required or permitted to be given under this MOU shall be in writing and may be effected by personal delivery,by hand delivery through a courier or a delivery service,or by Form 2395 (Rev.05/14) Page 5 of 6 registered or certified mail, postage prepaid, return receipt requested, addressed to the proper party,at the following address: City of Port Arthur Transit,Port Arthur NAME Colleen W.Russell TITLE Director of Transit,City Manager designee Hand Delivery: 444 4th Street, Annex 2nd Floor-201,Port Arthur,TX 77640 Registered or Certified Mail (Return receipt requested): PA Transit-Port Aurthur,P.O.Box 1089,Port Arthur,Tx 77641-1089 TEXAS DEPARTMENT OF TRANSPORTATION DBE Liaison Office of Civil Rights Address: 125 E. 11th Street Austin,Texas 78701 (b)Notice by personal delivery or hand delivery shall be deemed effective immediately upon delivery,provided notice is given as required by Paragraph(a)hereof. Notice by registered or certified mail shall be deemed effective three(3)days after deposit in a U.S.mailbox or U.S. Post Office,provided notice is given as required by Paragraph(a)hereof. (c)Either party hereto may change its address by giving notice as provided herein. (12)This MOU may be modified or amended only by written instrument,signed by both City of Port Arthur Transit,Port Arthur and the TxDOT and dated subsequent to the effective date(s)of this MOU. Except as authorized by the respective parties,no official,employee,agent,or representative of the parties has any authority,either express or implied,to modify or amend this MOU. (13)The provisions of this MOU are severable. If any clause, sentence,provision,paragraph, or article of this MOU, or the application of this MOU to any person or circumstance is held by any court of competent jurisdiction to be invalid, illegal,or unenforceable for any reason,such invalidity,illegality, or unenforceability shall not impair, invalidate,nullify,or otherwise affect the remainder of this MOU, but the effect thereof shall be limited to the clause,sentence,provision,paragraph,or article so held to be invalid, illegal,or unenforceable,and the application of such clause,sentence,provision,paragraph, or article to other persons or circumstances shall not be affected;provided,however, City of Port Arthur Transit,Port Arthur and TxDOT may mutually agree to terminate this MOU. (14)The following provisions apply in regard to construction of this MOU: (a)Words of any gender in this MOU shall be construed to include the other,and words in either number shall be construed to include the other,unless the context in this MOU clearly requires otherwise. Form 2395 (Rev.05/14) Page 6 of 6 (b)When any period of time is stated in this MOU,the time shall be computed to exclude the first day and include the last day of the period. If the last day of any period falls on a Saturday, Sunday, or national holiday, or state or county holiday,these days shall be omitted from the computation. All hours stated in this MOU are stated in Central Standard Time or in Central Daylight Savings Time,as applicable. (15)This MOU shall not be construed in any way as a waiver by the parties of any immunity from suit or liability that parties may have by operation of law,and the parties hereby retain all of their respective affirmative defenses. EXECUTED in duplicate originals by TxDOT and City of Port Arthur Transit,Port Arthur ,acting through each duly authorized official and effective on the latest date signed. The signatories below confirm that they have the authority to execute this MOU and bind their principles. TEXAS DEPARTMENT OF TRANSPORTATION City of Port Arthur Transit,Port Arthur By: By: LtGen J.F. Weber,USMC(Ret) NAME Executive Director TITLE Date: Date: