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Ordinance No. 5,737910110 -4 ORDINANCE NO. 5737 AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE • AGREEMENTS WITH THE STATE DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION FOR THE TRAFFIC MANAGEMENT PROGRAM GRANT; AUTHORIZING THE EXPENDITURE OF TWENTY THOUSAND FIVE HUNDRED TEN AND N01100 ($20,510.00) DOLLARS AS THE CITY OF BAYTOWN'S MATCHING SHARE; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. WHEREAS, the City of Baytown recognizes that it is in the interest of the national economy to promote the conservation of energy resources and to reduce our nation's dependence on costly foreign oil; and WHEREAS, the traffic management project proposed by the City of Baytown will provide benefits to the local community in the form of improved traffic flow, reduced fuel consumption, reduced vehicle operating costs, reduced air pollutant emissions, and improved safety due to smoother traffic flow; and, WHEREAS, funds have been established and made available through the State Department of Highways and Public Transportation for grants to local governments for traffic management projects; NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section l: That the City Manager is hereby authorized and empowered to execute in the name of the City of Baytown the agreements necessary to implement and carry out the purposes specified in this ordinance, copies of which are attached hereto as Exhibit "A." Section 2: That the City Council hereby authorizes payment to the State Department of Highways and Public Transportation of the sum of TWENTY THOUSAND FIVE HUNDRED TEN AND N01100 ($20,510.00) DOLLARS as the City's matching share of the above - described grant. Section 3: This ordinance shall take effect immediately from and after its passage by the City Council of the City of Baytown. INTRODUCED, READ, and PASSED by the affirmative vote of the City Council of the City of Baytown, this the 10th day of January, 1991. O. HUTTO, Mayor ATTEST: EILFEN P. HAM, City Clerk DALL B. S ONG, it Attorney C: 1: 5:16 A - 2 - 910110 -4a AGREEMENT Article 1. Contract Period This contract becomes effective on the date on which the final signature is added, the final signature being that of the party whose signing makes the contract fully exe- cuted by all parties hereto. The contract shall terminate on July 31, 1992, unless terminated or modified as hereinafter provided. Article 2. Contract Amount The maximum amount payable to the Local Government under this contract shall not exceed $ . This amount constitutes not more than 75% of the total project cost of $ The amount may be increased only if the State approves a request for additional funding submitted by the Local Government, if additional funds are available. Any such increase must be authorized in a written amendment to this contract. Article 3. Project Description The Local Government shall commence and complete a project providing for improved traffic management within its jurisdiction generally located in/on The project is fully described in the grant application, attached hereto and labeled Exhibit 1. The Local Government shall not perform any activity under this contract except as described in said Exhibit 1. Additional activity under this contract must be authorized in a written amendment signed by the parties hereto in which the modi- fications or additions to the project are fully described. The Local Government agrees to deliver the following products to the State in accord- ance with the application: • A `Before" field evaluation report • Quarterly progress reports • Documentation of theImplementation of traffic management improvements • An "After" field evaluation report. Failure to deliver the products as specified in the application may result in termination' of this agreement as provided hereinafter. Article 4. Compensation All payments made hereunder will be made in accordance with the Approved Project Budget included in Exhibit 1. To be eligible for reimbursement under this contract, a cost must be incurred within the contract period specified in Article 1 above and be authorized in the Approved Project Budget included in Exhibit 1. Payment of costs incurred under this contract is further governed by the cost principles outlined in 48 CFR 1 -31, (Federal Acquisition Regulations). The Local Govern-ment agrees to submit monthly requests for reimbursement, using • billing statements acceptable to the State. The original billing statement and one copy is to be submitted to the State's District Office, at the address specified on the signature page of this agreement. Page 2 of 8 Article 4. Compensation (coat.) • The State will exercise due diligence to make payments within thirty days of receipt of properly prepared and documented requests for reimbursement. All payments, however, are contingent upon the availability of appropriated funds. Payments will be made in accordance with the approved project budget included in Attachment D of the application. Each budget line item expenditure will be monitored, and no overrun will be paid unless all of the following occur: • the overrun does not exceed ten percent of the total budget • the overrun has been approved by the Department in advance • there is a corresponding decrease in another line item. Any proposed change in a budget line item that will cause an overrun of more than ten percent of the budget total must be authorized by written amendment to the contract before the change is made. Article b. Contract Amendments The Local Government may request additional funds for additional tasks to be performed under this contract, and if the request is justified by the Local Government and the State determines that the request is beneficial to the State and the Local Government and to the purpose of the grant, a written amendment is to be executed to authorize additional tasks and additional funds, if additional funds are available. The amendment shall be agreed upon by the State and Local Government. Any such amendment shall be made before the termination of the contract as specified in Article 1. The Local Government can undertake at its own expense any activities associated with the approved project, but those additional activities will not be eligible for reimbursement by the State. Article 6. Inspection of Work The State shall have the right at all reasonable times to inspector otherwise evaluate the work performed or being performed hereunder and the premises in which it is being performed. If any inspection or evaluation is made on the premises of the Local Government or subcontractor, the Local Government shall provide and require his subcontractor to provide all reasonable facilities and assistance for the safety and convenience of the inspectors in the performance of their duties. All inspections and evaluations shall be performed in such a manner as will not unduly delay the work. Article 7. Disputes and Remedies The Local Government shall be responsible for the settlement of all contractual and administrative issues arising out of procurements entered in support of contract work. Disputes concerning performance or payment shall be submitted to the State for settlement with the Engineer- Director of the State Department of Highways and Public Transportation acting as referee. This agreement shall not be considered as specifying the exclusive remedy for any dispute or violation or breach of contract terms, but all remedies existing at law and in equity may be availed of by either party and shall be cumulative. Page 3 of 8 Article 8. Records • The Local Government agrees to maintain all books, documents, papers, accounting records, and other evidence pertaining to costs incurred and work performed hereunder and shall make such materials available at its office during the contract period and for three years from the date of the final performance report under the contract. Such materials shall be made available during the specified period for inspection by the State for the purpose of making audits, examinations, excerpts, and transcriptions. Article 9. Reporting The Local Government shall promptly advise the State in writing of events which have a significant impact upon the contract, including: • Problems, delays, or adverse conditions which will materially affect the ability to attain program objectives, prevent the meeting of time schedules or objectives, or pre- clude the attainment of project work units by established time periods. This disclosure shall be accompanied by a statement of the action taken, or contemplated, and any State assistance needed to resolve the situation. • Favorable developments or events that enable meeting time schedules and objec- tives sooner than anticipated or producing more work units than originally projected. Article 10. Audit This contract shall be subject to audit for a three -year period from the date of the final financial report. Article 11. Subcontracts Any subcontract for professional services rendered by individuals or organizations not a part of the Local Government's organization shall not be executed without prior authorization by the State. Subcontracts shall contain all required provisions of this contract. No subcontract will relieve the Local Government of its responsibility under this contract. Any subcontract for construction will be awarded to the lowest and best bidder on the proposed project. Article 12. Termination • For Cause: Insufficient Funding The State may terminate this contract at any time before the date of completion when- ever it is determined that sufficient funds are not available to reimburse its share of the cost of the project. The State shall give written notice to the Local Government at least seven days prior to the effective date of termination, specifying the date of termination. The State shall compensate the Local Government for those eligible costs incurred during the contract period up through the time of termination. The Local Government shall not incur new obligations for the terminated portion after the effective date of • termination. Page 4 of 8 Article 12. Termination (coat.) • For Cause. Nonperformance The State may terminate this contract at any time before the date of completion if it determines that the Local Government has failed to comply with the conditions of the contract. The State shall give written notice to the Local Government at least seven days prior to the effective date of termination and specify the effective date of termi- nation and the reason for termination. The State shall compensate the Local Government for those eligible costs incurred during the contract period which are directly attributable to the completed portion of the project covered by this contract, provided that the work has been completed in a manner satisfactory to the State. The Local Government shall not incur new obliga- tions for the terminated portion after the effective date of termination. • For Convenience If both parties to this contract agree that the continuation of the contract in whole or in part would not produce beneficial results commensurate with the further expenditure of funds, the parties shall agree upon the termination conditions, including the effective date and the portion to be terminated. • Ownership of Documents Upon termination of this contract, whether for cause or for convenience, all finished or unfinished documents, data, studies, surveys, reports, maps, drawing, models, photo- graphs, etc. prepared by the Local Government shall at the option of the State become the property of the State. • Excepted Conditions Except with respect to defaults of subcontractors, the Local Government shall not be in default by reason of any failure in performance of this contract in accordance with its terms (including any failure by the Local Government to progress in the performance of the work) if such failure arises out of causes beyond the control and without the default or negligence of the Local Government. Such causes may include but are not limited to acts of nature or of the public enemy, acts of the government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather. In every case, however, the failure to perform must be beyond the control and without the fault or negligence of the Local Government. Article 13. Compliance with Laws The Local Government shall comply with all federal, state, and local laws, statutes, ordinances, rules and regulations, and the orders and decrees of any courts or admin- istrative bodies or tribunals in any matter affecting the performance of this contract, including, without limitation, workers' compensation laws, minimum and maximum salary and wage statutes and regulations and licensing laws and regulations. When required, the Local Government shall furnish the State with satisfactory proof of its compliance therewith. Page 5of8 Article 14. Successors and Assigns The State and the Local Government each binds itself, its successors, executors, assigns and administrators to the other party to this agreement and to the successors, executors, assigns and administrators of such other party in respect to all covenants of this contract. Neither the State nor the Local Government shall assign, sublet, or transfer its interest in this agreement without the written consent of the other. Article 15. Property Management The Local Government shat l use its own property management system to control, protect, preserve, use, maintain, and dispose of any property furnished to it by the State or purchased pursuant to this agreement, provided that the procedures are not in conflict with the State's property management procedures or property manage- ment standards outlined in 49 CFR 18 (Section 18.32), "Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments." Article 16. Procurement Standards The Local Government shall maintain and follow procurement standards which meet or exceed the requirements of 49 CFR 18, "Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments." Article 17. Debarment/Suspension The Local Government is prohibited from making any award or permitting any award at any tier to any party which is debarred or suspended or otherwise excluded from or ineligible for participation in federal assistance programs under Executive Order 12549, Debarment and Suspension. The Local Government shall require any party to a subcontract or purchase order awarded under this contract to certify its eligibility to receive federal grant funds, and, when requested by the State, to furnish a copy of the certification. Article 18. Insurance When directed by the State, the Local Government shall require its subcontractors to secure insurance in the maximum statutory limits for tort liability, naming the State as an additional insured under its terms. When so directed, the Local Government shall require its subcontractor to furnish proof of insurance on forms satisfactory to the State, and shall maintain the insurance during the contract period specified in Article 1. Article 19. Gratuities State Highway and Public Transportation Commission policy mandates that employees of the Department shall not accept any benefits, gifts or favors from any person doing business with or who reasonably speaking may do business with the State under this contract. The only exceptions allowed are ordinary business lunches and items that have received the advanced written approval of the State's Engineer - Director. Any person doing business with or who reasonably speaking may do business with the 10 State under this contract may not make any offer of benefits, gifts or favors to Depart, ment employees, except as mentioned hereabove. Failure on the part of the Local Government to adhere to this policy may result in termination of this contract. Page 6 of 8 Article 20. Indemnification • To the extent permitted by law, the Local Government shall save harmless the State from all claims and liability due to the acts or omissions of the Local Government, its agents or employees. The Local Government also agrees to save harmless the State from any and all expenses, including attorney fees, all court costs and awards for dam- ages, incurred by the State in litigation or otherwise resisting such claims or liabilities as a result of any activities of the Local Government, its agents or employees. 17J Further, the Local Government agrees to protect, indemnify, and save harmless the State from and against all claims, demands and causes of action of every kind and character brought by any employee of the Local Government against the State due to personal injuries and/or death to such employee resulting from any alleged negligent act, by either commission or omission on the part of the Local Government or the State. Article 21. Signatory Warranty The undersigned signatory for the Local Government hereby represents and warrants that he is an official of the organization for which he has executed this contract and that he has full and complete authority to enter into the contract on behalf of the Local Government. This space left blank Page 7 of 8 IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED DUPLICATE COUNTERPARTS TO EFFECTUATE THIS AGREEMENT. LOCAL GOVERNMENT: The City of Under authority of resolution or ordi- nance number By Title Date ATTEST: Date STATE OF TEXAS Certified as being executed for the purpose and effect of activating and/or carrying out the orders, established policies or work programs heretofore approved and authorized by the State Highway and Public Transportation Commission under authority of Minute Order 82513. By Traffic Operations Engineer Date For the purpose of this agreement, the following addresses shall be used to mail all required notices, reports, claims, and correspondence: For the Local Government: For the State (District Office): Page 8 of 8