2009-34 DuplicateCOUNCIL MEMBER ABBOTT INTRODUCED THE FOLLOWING RESOLUTION:
WHEREAS, the City of Blair, Nebraska wishes to enter into a Supplemental Agreement
Number 1 with the State of Nebraska Department of Roads for the US -75, Deerfield -North
25 Project No. URB -75- 3(115).
WHEREAS, the project amendment changes the funding of the project from Federal
STP funding to ARRA (Stimulus) funding,
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF
THE CITY OF BLAIR, NEBRASKA, that the Agreement between the City of Blair, Nebraska
and the State of Nebraska Department of Roads which has been presented to the City Council, is
hereby accepted and adopted by the City of Blair, Nebraska. Said Agreement is attached hereto
as Exhibit A and is fully incorporated herein by reference
BE IT FURTHER RESOLVED THE MAYOR AND THE CITY CLERK of Blair,
Nebraska are hereby authorized and directed to execute said Agreement on behalf of the
municipality.
COUNCIL MEMBER WOLFF MOVED THAT THE RESOLUTION BE ADOPTED AS
READ, WHICH SAID MOTION WAS SECONDED BY COUNCIL MEMBER KEPHART.
UPON ROLL CALL, COUNCIL MEMBERS STEWART, SHEPARD, KEPHART, FANOELE,
WOLFF, ABBOTT AND JENSEN VOTING "AYE ", AND COUNCIL MEMBERS NONE
VOTING "NAY ", THE MAYOR DECLARED THE FOREGOING RESOLUTION PASSED
AND ADOPTED THIS 27TH DAY OF OCTOBER, 2009.
ATTEST:
{
‘34„
B'I NDA WHEELER, CITY CLERK
(SEAL)
RESOLUTION NO. 2009 - 34
CITY OF BLAIR, NEBRASKA
B
QA ES E. REALPH, MAYO
STATE OF NEBRASKA )
) :ss:
WASHINGTON COUNTY )
BRENDA R. WHEELER hereby certifies that she is the duly appointed, qualified and acting
City Clerk of the City of Blair, Nebraska, and that the above and foregoing Resolution was
passed and adopted at a regular meeting of the Mayor and City Council of said city held on the
27th day of October, 2009.
dt
BRENDA R. WHEELER, CITY CLERK
and
SUPPLEMENTAL AGREEMENT NO. 1
STATE OF NEBRASKA DEPARTMENT OF ROADS
CITY OF BLAIR
PROJECT NO. URB -75- 3(115)
CONTROL NO. 22358
US -75, DEERFIELD — NORTH 25
THIS SUPPLEMENTAL AGREEMENT, made and entered into by and between the City
of Blair, Nebraska hereinafter referred to as the "City ", and the State of Nebraska, Department
of Roads, hereinafter referred to as the "State ", and hereinafter referred to collectively as the
"Parties ".
WITNESSETH:
WHEREAS, the Parties hereto entered into an agreement executed by the City
September 10, 2008 and by the State September 28, 2008 providing for the construction of
Project No. URB -75- 3(115), and
WHEREAS, it now becomes necessary that the original agreement be supplemented to
allow Federal Stimulus Funds to be used toward the construction phase of the project, modify
the estimated project cost and update the bid letting responsibilities, and
WHEREAS, this project has been designated as being eligible for American Recovery
and Reinvestment Act (ARRA) Funds by the Department of Transportation, Federal Highway
Administration, in compliance with Federal Laws pertaining thereto, and
WHEREAS, the City certifies that it has been designated for ARRA funds and will use
the funds provided by ARRA to create jobs, promote economic growth and certifies that this
project meets the requirements of ARRA, and
WHEREAS, ARRA funds cannot be used for preliminary engineering or Right -of -Way.
Federal Surface Transportation Program funds will be used for eligible preliminary engineering
and Right -of -Way, and
WHEREAS, any eligible utility work authorized prior to construction will not be eligible for
ARRA funds and will be 100 percent City funds. If eligible utility work is authorized with the
construction, and authorized occurred after February 1, 2009, then it is eligible for ARRA funds,
WHEREAS, Federal regulations provide that the State shall have the responsibility for all
Federal -Aid projects, and will be responsible for insuring that such projects receive the same
degree of supervision and inspection as projects constructed under a contract let and directly
supervised by the State and that the project is completed in conformity with approved plans and
specifications, and
XL085 s
WHEREAS, the State and the City agree that the State will advertise, conduct a letting
and receive bids for the project and will pay all eligible project costs directly to the consultants
and contractors, and
WHEREAS, the City has designated an available fully - qualified public employee to act
as "Responsible Charge" (RC) for the subject Federal -aid Transportation project, and •
WHEREAS, the RC has successfully completed training required by the State to serve
as an RC for the Federal -aid Transportation project, and
WHEREAS, the RC will be in day -to -day responsible charge of all aspects of the project,
from planning through post- construction activities and maintain the project's eligibility for
Federal -aid Transportation project funding, and
WHEREAS, the City understands that it must comply with all terms of 23 C.F.R. 635.105
order for this Federal -aid transportation project to be eligible for Federal funding, and
WHEREAS, the City will support the RC and is ultimately responsible to ensure that, at a
minimum, (1) the project receives independent and careful development, supervision and
inspection, (2) the project is constructed in compliance with the plans and specifications, (3) all
aspects of the project from planning through construction activities, including all environmental
commitments remain eligible for Federal funding, and (4) decisions made and actions taken for
the project have adequate supporting documentation filed in an organized fashion, and
WHEREAS, this project has been designated as a full Federal oversight project, and
WHEREAS, ARRA funds used for construction will be capped at the award amount with
no matching funds required. Any charges for construction beyond the capped ARRA amount
can be funded using Federal Surface Transportation Program Funds as awarded, and
WHEREAS, ARRA funds will be used for construction engineering and ARRA audits with
no matching funds required, and
WHEREAS, City understands that this agreement and the receipt of ARRA funds are
expressly conditioned on (1) City's fulfilling all federal and state requirements for the project to
be eligible for ARRA funding, (2) there being sufficient remaining ARRA funds available for this
project, when eligibility is established, and (3) FHWA authorization of ARRA funding for this
project, and
WHEREAS, it is the desire of the City that the project be constructed under the
designation of Project No. URB -75- 3(115), as evidenced by the Resolution of the City Council
dated the i� 7 day of (�t .20.0? attached and identified as EXHIBIT "A' and
made a part of this agreement, and
WHEREAS, the City is responsible for any costs not paid for by Federal funds.
Project No. URB -75- 3(115) - 2 - Agreement No. XL0851
Control No. 22358 Supplement No. 1
US -75, Deerfield — North 25th
NOW THEREFORE, in consideration of these facts, the Parties hereto agree as follows:
SECTION 1. Definitions. For purposes of this agreement, the following definitions will apply:
Fully Qualified means a person who has satisfactorily completed all applicable State
training courses and who has met the other requirements necessary to be included on the State
list of qualified Local Public Agency "Responsible Charge" (RC's).
Full -Time Public Employee means a public employee who meets all the requirements
and is afforded all the benefits of full -time employees as that phrase is applied to other
employees of the employing entity. A person is not a full -time employee if that person provides
outside private consulting services, or is employed by any private entity, unless that person can
prove to the State in advance, that employee's non - public employment is in a field unrelated to
any aspect of the project for which Federal -aid is sought.
Public Employee means a person who is employed solely by a county, a municipality, a
political subdivision, a Native American tribe, a school district, another entity that is either
designated by statute as public or quasi - public, or entity included on a list of entities determined
by the State and approved by the Federal Highway Administration (FHWA), as fulfilling public or
quasi - public functions.
Responsible Charge means the public employee who is fully empowered by the City
and has actual day -to -day working knowledge and responsibility for all decisions related to all
aspects of the Federal -aid project from planning through construction project activities, including
all environmental commitments. The RC is the day -to -day project manager, and the City's
point -of- contact for the project. Responsible charge does not mean merely delegating the
various tasks; it means active day -to -day involvement in identifying options, working directly with
stakeholders, making decisions, and actively monitoring project construction. It is understood
that RC may delegate or contract certain technical tasks associated with the project so long as
RC actively manages and represents the owner's interests in the delegated technical tasks.
SECTION 2. This project has been designated as a full Federal oversight project and the State
will present this project to the FHWA for its approval.
SECTION 3. Responsible Charge (RC)
A. The City hereby designates Alien Schoemaker as the City's RC for this project.
B. Duties and Assurances of the City for this project.
1. The City has authorized and fully empowered the RC to be in day -to -day responsible
charge of the subject Federal -aid project; this does not mean merely supervising,
overseeing or delegating various tasks, it means active day -to -day involvement in the
Project No. URB- 75- 3(115) - 3 - Agreement No. XL0851
Control No. 22358 Supplement No. 1
US -75, Deerfield — North 25th
project including identifying issues, investigating options, working directly with stakeholders,
and decision making.
2. The RC is a full -time employee of the City.
3. The RC is fully qualified and has successfully completed required training to serve as an
RC.
4. The City shall allow the RC to spend all time reasonably necessary to properly discharge all
duties associated with the project, including ensuring that all aspects of the project, from
planning through post- construction activities, remain eligible for Federal -aid highway project
funding.
5. The City shall not assign other duties to the RC that would affect their ability to properly
carry out the duties set out in this agreement.
6. The City shall provide necessary office space, materials and administrative support for the
RC.
7. The City shall fully cooperate with, support and not unreasonably interfere with day -to -day
control of the RC concerning the acts necessary for making the project eligible for Federal
funding.
8. The City shall take all necessary actions and make its best good faith efforts to comply and
assist the RC in complying with all Federal and State requirements and policies applicable
to Federal -aid transportation projects, including, but not limited to, all applicable
requirements of 23 CFR 635.105.
9. The City agrees to take all necessary actions and make its best good faith efforts to ensure
that the RC's work on the project would be deemed to meet the same standards that the
State must meet under 23 CFR 635.105.
10. The City shall comply with the conflict -of- interest requirements of 23 CFR 1.33.
11. The City shall notify the State immediately in the event the designated RC(s) will no longer
be assigned to the project. A supplemental agreement designating a replacement RC will
be required by the State.
12. The City agrees that it is ultimately responsible for complying with all Federal and State
requirements and policies applicable to Federal -aid highway projects. This includes
meeting all post- construction environmental commitments. The City understands that
failure to meet any eligibility requirements for Federal funding may result in the loss of all
Federal funding for the project. In the event that the acts or omissions of RC, the City or its
agents or representatives result in a finding that a project is ineligible for Federal funding,
the City will be required to repay the State some or all previously paid Federal funds and
Project No. URB -75- 3(115) - 4 - Agreement No. XL0851
Control No. 22358 Supplement No. 1
US -75, Deerfield — North 25th
any costs or expenses the State has incurred for the project, including but not limited to,
those costs for the RC.
C. The City understands that the following are the duties of the RC:
1. Serve as the City's contact for issues or inquiries for Federal -aid projects assigned by the
City
2. Ensure that all applicable Federal, State and local laws, regulations, policies and guidelines
are followed during the development and construction of the project.
3. Know and follow the State's LPA Guidelines Manual for Federal -Aid Projects.
4. Have active day -to -day involvement in identifying issues, investigating options, working
directly with stakeholders, and decision making.
5. Ensure that the project plans and specifications are sealed, signed and dated by a
professional licensed engineer in the State of Nebraska, and that estimates have been
prepared and the construction has been observed by a professional engineer licensed in
the State of Nebraska or a person under direct supervision of a professional engineer
licensed in the State of Nebraska (reference Neb.Rev.Stat. §81- 3445).
6. Competently manage and coordinate the project day -to -day operations, including all project
related decisions, on behalf of the City, which includes the City's governing body, staff and
any extended staff dedicated to the project such as consulting engineers.
7. Ensure that project documents are thoroughly checked, reviewed and have had quality
control measures applied, prior to submitting to the State and/or FHWA.
8. Monitor the progress and schedule of the project and be responsible for ensuring that the
project is completed on time in accordance with established milestone dates.
9. Notify and invite the State to all coordination meetings, environmental scoping meetings,
Plan -In -Hand review, public meetings /hearings.
10. Keep the State informed of all project issues.
11. Arrange preconstruction conference.
12. Keep the State's District Construction Representative informed of project start, and ending
dates and other scheduled construction milestones.
13. Prepare contractor change orders and supplemental agreements.
14. Properly serve as the City's representative, and to visit the project site during construction
frequency commensurate with the magnitude and complexity of the project.
15. Ensure that proper construction management processes have been developed and
implemented for the project.
16. Serve as a steward of the public funds, i.e. ensure that the public gets what it is paying for.
Project No. URB -75- 3(115) - 5 -
Control No. 22358 Agreement No. XL0851
Supplement No. 1
US -75, Deerfield — North 25tH
17. Attend all required training including the annual workshop.
18. Fulfill continuing education requirements as specified in the State's LPA Guidelines Manual
for Federal -aid projects.
SECTION 4. ARRA funds cannot be used for preliminary engineering or Right -of -Way phases.
Federal Surface Transportation Program funds will be used to pay preliminary engineering and
Right -of -Way.
SECTION 5. Acknowledging the necessity for prioritizing of funding, and the unknown
availability of remaining unobligated ARRA funds at the time of eligibility is determined, the City
agrees to develop this project in an effort to meet all federal and state eligibility requirements so
the project may be determined eligible for ARRA funding. The City understands this
supplemental agreement is null and void in the event that (1) the project is determined for any
reason to be ineligible for ARRA funding, (2) after eligibility is determined, ARRA funds are not
available for this project, or (3) despite the existence of unobligated ARRA funds, the 1 ro'ect is
p
not authorized by FHWA for any reason, including the perceived priority of this project
compared to other potential ARRA projects.
SECTION 6. The City further certifies that this project meets the requirements of ARRA as
follows:
1. The City is to provide a qualified, full time public employee to be the RC of the project at all
times.
2. The investment has received the full review and vetting as required by law.
3. The City accepts the responsibility that this infrastructure investment is an appropriate use
of taxpayer dollars.
4. This investment will be used for Project No. URB -75- 3(115) that is included in the
Statewide Transportation Plan, and has an overall cost estimate of $714,521 of which
$673,821 is estimated to be ARRA funds, however; this is a preliminary estimate and the
final award may be higher or lower than this estimate. When the actual construction
contract award amount is known, a supplemental agreement with the capped amount of
ARRA funds will be executed between the City and the State.
5. The Federal ARRA share of the project is to be 100 percent of the capped ARRA amount,
which includes the awarded construction amount and the construction engineering. The
allowable construction engineering cost will be 13 percent of the capped construction
award amount, plus a flat fee of $2500 for ARRA audits.
6. The City's share of the project is 100 percent of all costs over the capped construction
and
construction engineering amounts.
'roject No. URB -75- 3(115) _
ontrol No. 22358 - 6 Agreement No. XL0851
IS -75, Deerfield — North 25th Supplement No. 1
7. The City shall follow ARRA reporting requirements and agrees that the State will not
provide Federal Stimulus or State funds unless all ARRA reporting requirements are met
and any funds already paid out by the City will not be reimbursed.
SECTION 7. The State will pay the contractor and consultant directly as follows.
A. All project contractor construction costs will be paid directly to the contractor
by the State.
Progress invoices and final invoices shall be prepared by the City using SiteManager
software and must be approved by the City's Responsible Charge before payment to the
Contractor can be made by the State.
B. The City's Responsible Charge shall submit the City's approved preliminary engineering and progress report to the State's Local Projects Division Project Coordinator. g
The Local Projects Division Project Coordinator will forward the approved preliminary invoice and the progress report to the State's Planning an d Project
ry
Development Division for payment processing. The State will make payment directly to
the consultant for the preliminary engineering. y
C. The City's Responsible Charge shall submit the City's approved construction engineering
invoice and progress report to the State Representative fora approval of ng
Pp payment, with a
copy to the State's Local Projects Division Project Coordinator. The State Representative
will forward the approved invoice and progress report to the State's Planning and ec Pro'
Development Division for payment processing with a copy to the State's Local Projects
Division Project Coordinator. The State will make payment directly to the consultant for construction engineering, or
SECTION 8,. Any eligible utility work authorized prior to construction will not be eligible
ARRA funds and will be paid with 100 percent City funds. If eligible Bible for
with the construction, and the authorization occurred after February 17, 2009, then it is eligible
for ARRA funds.
SECTION 9. The final settlement between the State and the City will be made
accepts the project and the final costs have been determined by the the State
Ina! settlement between the State and the City will y e State. The amount of the
y be the difference between:
1. (a) the net expenditure by the City for actual items
(b) plus the value of work performed by the City based upon agreed prices
(c) less previous payments by the State to the City
2 The City share of the project costs.
oject No. URB- 75- 3(115)
mtrol No. 22358
> -75, Deerfield — North 25
-7-
Agreement No. XL0851
Supplement No. 1
If (1) is greater than (2), the State will pay to the City the difference within thirty days
after that determination has been made. If (2) is greater than (1), the State will bill the City for
the difference. The City agrees to pay the amount of such bill within thirty days of receipt.
Costs incurred by the State with respect to the entire project must be considered as a
part of the cost of the project to be paid out of the City and Federal funds. The State may at its
discretion, initiate progress invoices for costs incurred by the State during the progression of the
project and the City agrees to pay such invoices with thirty days of their receipt. The City share
of the total project cost will be all costs not paid for by Federal funds.
The criteria contained in Part 31 of the Federal Acquisition Regulation System (48 CFR 31) will
be applied to determine the allowable costs incurred by the City under this agreement.
The City shall complete a State DR Form 299, "Notification of Project Completion and
Materials Certification" with the State, and both the City and the State must sign it. Once the
DR Form 299 is signed by the City, and the State, the project will be considered to be complete
and no other costs or expenditures will be considered.
SECTION 10. Prior to advertising for bids, the City shall submit a Right -of -Way Certificate and
final plans package (100 percent full size plans, specifications, summary of quantity sheets,
status of utilities, environmental permits, and other PS &E required documents) to the State's
Local Project Division Urban Engineer for review. The State and City agree the State will
advertise, conduct a letting and receive bids for the City on the contemplated improvement. The
selection of the lowest responsible bidder and the awarding of a contract or contracts must be
concurred in by the City prior to State award. The City shall sign the contract or contracts.
SECTION 11. The Parties agree that all costs of this project shall be the sole responsibility of
the City if the proposed project improvements are not authorized for construction prior to May 1,
2010. This includes repayment to the State of Federal Funds reimbursed for preliminary
engineering costs and payment of all other expenses incurred as specified in of the original
program agreement.
SECTION 12. This agreement contains the entire agreement of the City and State. No
representations were made or relied upon by the City and State other than those expressly set
forth herein. No agent, employee or other representative of the City and State is empowered to
alter any of the terms in this agreement unless done in writing and signed by an authorized
officer of the City and State.
SECTION 13. Except as specifically amended by this supplemental agreement, all terms and
conditions of the agreement executed by the City September 10, 2008 and by the State
September 28, 2008, shall remain in full force and effect.
Project No. URB -75- 3(115) - 8 -
Control No. 22358 Agreement No. XL0851
US -75, Deerfield — North 25th Supplement No. 1
IN WITNESS WHEREOF, the Parties hereto have caused these presents to be
executed by their proper officials thereunto duly authorized as of the dates below indicated.
EXECUTED by the City this day of ()r✓7et Ed . 2009.
WITNESS:
Brenda Wheeler James Realph
City Clerk
RECOMMENDED:
Timot . W. Weander, P.E.
Di trict 2 E
LLD11 -NM
neer
CITY OF BLAIR
EXECUTED by the State this ' day of _&./Ady, 2009.
STATE OF NEBRASKA
DEPARTMENT OF ROADS
Jim Wilkinson, P.E.
4. /.7, 1 4
t
Loc., Projects ngineer
Project No. URB -75- 3(115) _ g _
Control No. 22358 Agreement No. XL0851
US -75, Deerfield — North 25`n Supplement No. 1