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HomeMy Public PortalAboutResolution No. 379-11 06-14-2011RESOLUTION N0.379-11 A RESOLUTION OF THE CITY OF RICHLAND HILLS, TEXAS APPROVING THE TERMS AND CONDITIONS OF A MEMORANDUM OF UNDERSTANDING BETWEEN THE STATE OF TEXAS AND THE CITY OF RICHLAND HILLS FOR THE ADOPTION OF THE TEXAS DEPARTMENT OF TRANSPORTATION'S FEDERALLY-APPROVED DISADVANTAGED BUSINESS ENTERPRISE PROGRAM; AUTHORIZING ITS EXECUTION BY THE CITY MANAGER OR HIS AUTHORIZED DESIGNEE; PROVIDING FOR NOTICE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council has been presented a proposed Memorandum of Understanding (MOU) for the adoption of the Texas Department of Transportation's federally- approvedDisadvantaged Business Enterprise Program, a copy ofwhich is attached hereto as Exhibit "A" and incorporated herein by reference (hereinafter called "Agreement"); and WHEREAS, upon full review and consideration ofthe MOU, and all matters attendant and related thereto, the City Council is of the opinion that the terms and conditions thereof should be approved, and that the Mayor or his authorized designee should be authorized to execute it on behalf of the City of Richland Hills. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF RICHLAND HILLS, TEXAS, THAT: Section 1. The terms and conditions of the MOU, having been reviewed by the City Council of the City of Richland Hills and found to be acceptable and in the best interests of the City of Richland Hills and its citizens, are hereby approved. Section 2. The Mayor is hereby authorized to execute the MOU and all other documents in connection therewith on behalf ofthe City ofRichland Hills, substantially according to the terms and conditions set forth in the Agreement. Section 3. This Resolution shall become effective immediately upon its passage. Passed and approved this day of UU~ 1 P. , 2011. CITY OF RICHLAND HILLS, TEXAS Honorable Da id L. Ragan ayor ATTEST: `~ Linda Cantu, TMRC, City Secretary APPR VED FORM AND LEGAL Tim G. Sralla, City Attorney W:\Richland Hills\Resolu[ion\MOU.TxDot.DBE.wpd ~~~~~~Unuulr~~~ ~~ ~ `~~; ITY: ~ 0 rn _~ f ca= ,V ~iunnm~~ Page 2 Form 2395 (Rev. 01/11) n.r Page 1 of 6 MEMORANDUM OF UNDERSTANDING REGARDING THE ADOPTION OF THE TEXAS DEPARTMENT OF TRANSPORTATION'S FEDERALLY-APPROVED DISADVANTAGED BUSINESS ENTERPRISE PROGRAM BY THE CITY OF RICHLAND HILLS This Memorandum of Understanding (MOU) is by and between the TEXAS DEPARTMENT OF TRANSPORTATION (TxDOT), an agency of the State of Texas; and THE CITY OF RICHLAND HILLS ,apolitical subdivision of the State of Texas. Whereas, from time to time THE CITY OF RICHLAND HILLS receives federal funds from the Federal Highway Administration (FHWA) through TxDOT to assist THE CITY OF RICHLAND HILLS with the construction and design of projects partially or wholly funded through FHWA; and Whereas, THE CITY OF RICHLAND HILLS , as asub-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 THE CITY OF RICHLAND HILLS '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, THE CITY OF RICHLAND HILLS 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, THE CITY OF RICHLAND HILLS desires to implement a federally compliant DBE Program by adopting the TxDOT approved program, as recommended by FHWA; and Whereas, TxDOT and THE CITY OF RICHLAND HILLS find it appropriate to enter into this MOU to memorialize the obligations, expectations and rights each has as related to THE CITY OF RICHLAND HILLS 's adoption of the TxDOT DBE's Program to meet the federal requirements; Now, therefore, TxDOT and THE CITY OF RICHLAND HILLS , 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) THE CITY OF RICHLAND HILLS is asub-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 THE CITY OF RICHLAND HILLS receives its federal assistance through TxDOT. As asub-recipient, THE CITY OF RICHLAND HILLS 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 THE CITY OF RICHLAND HILLS ,adopt the DBE program, administered through TxDOT, and THE CITY OF RICHLAND HILLS by its prescribed protocol adopted the TxDOT DBE Program as of the date when adoption occurred. Form 2395 (Rev. 01/11) Page 2 of 6 (3) This MOU evidences FHWA's and TxDOT's consent to the adoption of the TxDOT DBE Program by THE CITY OF RICHLAND HILLS 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 THE CITY OF RICHLAND HILLS and for TxDOT. (5) THE CITY OF RICHLAND HILLS and TxDOT have agreed upon the following delegation of responsibilities and obligations in the administration of the DBE Program adopted by THE CITY OF RICHLAND HILLS (a) THE CITY OF RICHLAND HILLS will be responsible for project monitoring and data reporting to TxDOT. THE CITY OF RICHLAND HILLS 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 THE CITY OF RICHLAND HILLS (b) THE CITY OF RICHLAND HILLS 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. THE CITY OF RICHLAND HILLS '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. THE CITY OF RICHLAND HILLS 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 THE CITY OF RICHLAND HILLS in an effort to meet the timing and other requirements of THE CITY OF RICHLAND HILLS projects. (d) THE CITY OF RICHLAND HILLS 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 THE CITY OF RICHLAND HILLS 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) THE CITY OF RICHLAND HILLS 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. THE CITY OF RICHLAND HILLS 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. THE CITY OF RICHLAND HILLS 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. THE CITY OF RICHLAND HILLS will require contractors for its FHWA federally assisted projects to use the attached forms as follows: Form 2395 (Rev. 01/11) 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) THE CITY OF RICHLAND HILLS 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 THE CITY OF RICHLAND HILLS 's administration of the DBE Program through TxDOT. (h) THE CITY OF RICHLAND HILLS 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. THE CITY OF RICHLAND HILLS and TxDOT will work cooperatively to provide supportive services and outreach to DBE firms in THE CITY OF RICHLAND HILLS area. (j) THE CITY OF RICHLAND HILLS will submit DBE semi-annual progress reports to TxDOT. (k) THE CITY OF RICHLAND HILLS 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 THE CITY OF RICHLAND HILLS projects in the DBE Education and Outreach Programs. (1) The Executive Director of THE CITY OF RICHLAND HILLS 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, THE CITY OF RICHLAND HILLS 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) THE CITY OF RICHLAND HILLS will comply with 49 CFR 26.29 as stated in Attachment F. (6) In the event there is a disagreement between TxDOT and THE CITY OF RICHLAND HILLS about the implementation of the TxDOT DBE Program by THE CITY OF RICHLAND HILLS 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 THE CITY OF RICHLAND HILLS can result in restitution of federal funds to TxDOT and withholding of further federal funds upon consultation with FHWA. Form 2395 (Rev. 01/il) 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, THE CITY OF RICHLAND HILLS 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 THE CITY OF RICHLAND HILLS is a sub- recipient offederal funds through TxDOT. THE CITY OF RICHLAND HILLS 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 asub-recipient offederal funds through TxDOT and which are not subject to the TxDOT DBE Program. THE CITY OF RICHLAND HILLS 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 PROVIS[ON -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 F 1 - 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 FS - 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 F 10 -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.01/1 i) Page S of 6 registered or certified mail, postage prepaid, return receipt requested, addressed to the proper party, at the following address: THE CITY OF RICHLAND HILLS Michael H. Barnes Director of Public Works Hand Delivery: 6700 Rena Dr., Richland Hills, TX 76118 Registered or Certified Mail (Return receipt requested): 3200 Diana Dr., Richland Hills, TX 761 l8 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 THE CITY OF RICHLAND HILLS 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, THE CITY OF RICHLAND HILLS 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. 01/11) 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 THE CITY OF RICHLAND HILLS ,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 By: C ~ti. i Amadeo Saenz, Jr. P.E. ~I Executive Director Date: THE CITY OF RICHLAND HILLS e.~~ ~ 4' David Ragaq~ Mayor, City of Richlra~nd Hills Date: ~- ~ ~, ~ 0' 1 \`~~~~1liinniu~~~i O V- , ~~ ~T~ _~= a_ c~ '~~~/u~~~~~1~~~1~~~~~,