HomeMy WebLinkAbout028663 RES - 06/29/2010RESOLUTION
AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE A
MEMORANDUM OF UNDERSTANDING WITH THE TEXAS DEPARTMENT OF
TRANSPORTATION (TXDOT) REGARDING ADOPTION OF TXDOT'S
FEDERALLY -APPROVED DISADVANTAGED BUSINESS ENTERPRISE
PROGRAM
WHEREAS, from time to time the City receives federal funds from the Federal Highway
Administration ("FHWA") through the Texas Department of Transportation ("TxDOT") to assist
the City with the construction and design of projects partially or wholly funded through FHWA;
and
WHEREAS, the City, 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'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 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 desires to implement a federally compliant DBE Program by adopting the
TxDOT-approved program, as recommended by FHWA; and
WHEREAS, TxDOT and the City find it appropriate to enter into the attached Memorandum of
Understanding (Exhibit A) to memorialize the obligations, expectations and rights each has as
related to City's adoption of the TxDOT DBE Program to meet the federal requirements;
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS:
SECTION 1. The City Manager or his designee is authorized to execute a Memorandum of
Understanding with the Texas Department of Transportation (TxDOT) regarding the City's
adoption of TxDOT's federally -approved Disadvantaged Business Enterprise Program.
SECTION 2. The City of Corpus Christi hereby adopts TxDOT's federally -approved
Disadvantaged Business Enterprise under the terms outlined in said Memorandum of
Understanding.
028663
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ATTEST:
Armando Chapa
City Secretary
APPROVED AS TO FRRM: 17-J
By:
Veronica Ocanas
Assistant City Attorney
For City Attorney
CITY OF CORPUS CHRISTI
Joe A me
Mayor
H:1LEG-DIRlVeronica011.ENG11 AGENDA 1 T E M 5\1010629101062910 RESO TxDOT MOU for DBE.docx
f 4ay of
2010.
The above resolution was passed by the following vote:
Joe Adame
Chris N. Adler
Brent Chesney
Larry R. Elizondo, Sr.
Kevin Kieschnick
Priscilla Leal
John E. Marez
Nelda Martinez
Mark Scott
028663
Ii:1LEG-DIRlVeronica011.ENG11 AGENDA ITEM 511010629101062910 RESO TxDOT MOU for OBE.docx
np
MEMORANDUM OF UNDERSTANDING
REGARDING THE ADOPTION OF THE TEXAS DEPARTMENT OF
TRANSPORTATION'S FEDERALLY -APPROVED DISADVANTAGED BUSINESS
ENTERPRISE PROGRAM BY THE CITY OF CORPUS CHRISTI
This Memorandum of Understanding is by and between the TEXAS DEPARTMENT OF
TRANSPORTATION ("TxDOT"), an agency of the State of Texas; and the CITY OF CORPUS
CHRISTI ("CITY"), a political subdivision of the State of Texas.
Whereas, from time to time CITY receives federal funds from the Federal Highway
Administration ("FHWA") through TxDOT to assist CITY with the construction and design of projects
partially or wholly funded through FHWA;
Whereas, CITY, 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");
Whereas, TxDOT has implemented a Disadvantaged Business Enterprise Program (DBE
Program) that is approved by the FHWA pursuant to 49 CFR part 26;
Whereas, certain aspects of CITY'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;
Whereas, CITY 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;
Whereas, CITY desires to implement a federally compliant DBE Program by adopting the
TxDOT approved program, as recommended by FHWA;
Whereas, TxDOT and CITY find it appropriate to enter into this Memorandum of Understanding
to memorialize the obligations, expectations and rights each has as related to CITY'S adoption of the
TxDOT DBE Program to meet the federal requirements;
Now, therefore, TxDOT and CITY, 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 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 receives its federal assistance through TxDOT. As a sub -recipient, CITY has the option of
developing its own program or adopting and operating under TxDOTs federally approved DBE Program. The
FHWA recommends that sub -recipients, such as CITY, adopt the DBE program, administered through
TxDOT, and CITY by its prescribed protocol adopted the TxDOT DBE Program on Tuesday, June 29, 2010 at
the City Council Meeting o, f the Corpus Christi City Council.
(3) This Memorandum of Understanding evidences FHWA's and TxDOTs consent to the adoption of
the TxDOT DBE Program by CITY to achieve its DBE participation in federally -assisted Construction and
Design Projects.
DBEJMOU 5/28/10 Page 1 of6
(4) The parties will work together in good faith to assure effective and efficient implementation
of the DBE Program for CITY and for TxDOT.
(5) CITY and TxDOT have agreed upon the following delegation of responsibilities and obligations in
the administration of the DBE Program adopted by CITY:
(a) CITY will be responsible for project monitoring and data reporting to TxDOT. CITY 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.
(b) CITY will recommend contract -specific DBE goals consistent with TxDOTs DBE guidelines and
in consideration of the local market, project size, and nature of the good(s) or service(s) to be
acquired. CITY'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 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 in an effort to meet the timing and other requirements of CITY
projects.
(d) CITY 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 construction projects or design projects subject to the DBE Program. The
DBEs will be listed on TxDOTs website under the Texas Unified Certification Program (TOCP).
(f} CITY 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 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
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 will require contractors for its FHWA
federally assisted projects to use the attached forms as follows:
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 will designate a liaison officer to coordinate efforts with TxDOTs DBE Program
administrators and to respond to questions from the public and private sector regarding CITY'S
administration of the DBE Program through TxDOT.
DBE/MOU 5/22/10 Page 2 of 6
(h) CITY 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 and TxDOT
will work cooperatively to provide supportive services and outreach to DBE firms in CITY area.
(j) CITY will submit DBE semi-annual progress reports to TxDOT,
(k) CITY 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 projects in the DBE Education and
Outreach Programs.
(1) The Executive Director of CITY 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 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 OCR.
(n) CITY will comply with 49 CFR 26.29 as stated in Attachment F.
(6) In the event there is a disagreement between TxDOT and CITY about the implementation of
the TxDOT DBE Program by CITY 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 can result in restitution of federal funds to TxDOT and withholding of
further federal funds upon consultation with FHWA.
(7) This Memorandum of Understanding 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 Memorandum of Understanding is terminated for any reason, CITY 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 Memorandum of Understanding applies only to projects for which CITY is a sub -
recipient of federal funds through TxDOT. CITY may also implement a Minority and Women -Owned
Small Business Enterprise (MIWISBE) 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 may,
at its option, use some aspects of the TxDOT DBE Program and other similar programs in implementing its
DBE/MOU 5/28/10 Page 3 of 6
other policies and programs for its non -federally funded projects.
(10) The following attachments to this Memorandum of Understanding are also incorporated as
if fully set out herein for all purposes:
Attachment A - FHWA Memorandum HCR-1IHIF-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/CDA/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 F 2 — DBE Special Provisions 000-461
Attachment F 3 — TxDOT's Organizational Chart
Attachment F 4 — Measurement and Payment Special Provision 009-007
Attachment F 5 -- Texas Unified Certification Program (TUCP) DBE directory example
and website address to the directory
Attachment F 6 — DBE Goal Methodology
Attachment F 7 — DBE Bidder Certification
Attachment F 8 — DBE Joint Check Approval Form
Attachment F 9 — 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 Memorandum of Understanding
shall be in writing and may be effected by personal delivery, by hand delivery through a courier
or a delivery service, or by registered or certified mail, postage prepaid, return receipt requested,
addressed to the proper party, at the following address:
THE CITY OF CORPUS CHRISTI:
Hand Delivery:
City of Corpus Christi
Attn: Angel R. Escobar, City Manager
City Hall Bldg, 5th floor
1201 Leopard Street
Corpus Christi, TX 78401
Registered or Certified Mail (Return receipt requested):
DBEJMOU 5(28/10 Page 4 of 6
City of Corpus Christi
Attn: Angel R. Escobar, City Manager
1201 Leopard Street
Corpus Christi, TX 78401
Or
City of Corpus Christi
Attn: Angel R. Escobar, City Manager
PO Box 9277
Corpus Christi, TX 78469-9277
THE TEXAS DFPARThIFNrOF TRANSPORTATION:
TEXAS DEPARTMENT OF TRANSPORTATION
DBE Liaison
Office of Civil Rights
Address: 125 E. 1 lth 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 Memorandum of Understanding may be modified or amended only by written
instrument, signed by both CITY and the Texas Department of Transportation 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 and TxDOT may
mutually agree to terminate this Memorandum of Understanding.
(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.
(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,
DSEA10U gam Page 5 orb
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 Memorandum of Understanding 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 four originals by TxDOT and CITY, 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 DEPAR`i vIENFOF TRANSPORTATION CITY OF CORPUS CHRISTI
By: By:
Amadeo Saenz, Jr. P.E. Angel R. Escobar
Executive Director City Manager
Date: Date:
This copy of the MOU is not an executed copy and is being used here only as an attachment to the
resolution of the City of Corpus Christi. Therefore, this copy of the MOU is without signatures and
without attachments.
DBE/MOU 5128110 Page 6 of