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2009-30COUNCIL MEMBER ABBOTT INTRODUCED THE FOLLOWING RESOLUTION: WHEREAS, the City of Blair, Nebraska wishes to enter into a Supplemental Agreement Number 5 with the State of Nebraska Department of Roads for the Dana Bike Trail, Project No. STPB- 89(24), WHEREAS, the project amendment changes the funding of the project from Federal Transportation Enhancement 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 FANOELE MOVED THAT THE RESOLUTION BE ADOPTED AS READ, WHICH SAID MOTION WAS SECONDED BY COUNCIL MEMBER KEPHART. UPON ROLL CALL, COUNCIL MEMBERS SHEPARD, STEWART, KEPHART, FANOELE, CHRISTIANSEN, WOLFF, ABBOTT AND JENSEN VOTING "AYE ", AND COUNCIL MEMBERS NONE VOTING "NAY ", THE MAYOR DECLARED THE FOREGOING RESOLUTION PASSED AND ADOPTED THIS 13TH DAY OF OCTOBER, 2009. ATTEST: BRENDA WHEELER, CITY CLERK (SEAL) RESOLUTION NO. 2009 - 30 CITY OF BLAIR, NEBRASKA BY JAik E E. REALPH, MAYOR 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 13th day of October, 2009. 4 ),,,,L, BRENDA R. WHEELER, CITY CLERK SUPPLEMENTAL AGREEMENT NUMBER 5 PROJECT NO. STPB- 89(24) STATE CONTROL NO. 22220 CITY OF BLAIR STATE OF NEBRASKA, DEPARTMENT OF ROADS BLAIR DANA TRAIL THIS SUPPLEMENTAL AGREEMENT, made and entered into by and between the City of Blair 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 March 28, 2006, and by the State April 6, 2006, Supplemental Agreement No. 1 executed by the City January 31, 2007 and by the State February 6, 2007, Supplemental Agreement No. 2 executed by the City August 20, 2007 and by the State August 22, 2007, and Supplemental Agreement No. 3 executed by the City February 26, 2008 and by the State March 25, 2008, and Supplemental No. 4 executed by the City October 22, 2008 and by the State November 4, 2008, providing for the construction of Project No. STPB- 89(24), 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, 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 requirement of ARRA, and WHEREAS, ARRA funds cannot be used for preliminary engineering or Right of Way phases, Federal Enhancement Program funds as awarded will be used to pay if these phases are participating; if not participating, the CITY funds will be used to pay 100 percent, and WHEREAS, any eligible utility work authorized prior to construction with other (non - ARRA) Federal funds or done under a separate contract will not be eligible for ARRA funds, and may be paid from Federal Enhancement Program funds as awarded. If eligible utility work is authorized with the construction, and authorization occurred after February 17, 2009, then it is eligible for ARRA funds, and Y L06 16 Project No. STPB- 89(24) 1 Supp. Agmt 5 City of Blair 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 WHEREAS, the State and City agree that the State will advertise and conduct a letting for the project and will pay all eligible project costs directly to 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 a 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 34 C.F.R. § 635.105 in 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 files 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 Transportation Enhancement funds as awarded, and WHEREAS, ARRA funds used for construction engineering and ARRA audits with no matching funds required, and WHEREAS, the City understands that this agreement and the receipt of ARRA funds are expressly conditioned on (1) the City 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 Project No. STPB- 89(24) 2 Supp. Agmt 5 City of Blair WHEREAS, it is the desire of the City that the project be constructed under the designation of Project No. STPB- 89(24), as evidenced by the Resolution of the City Council dated the /3 day of 0 c le ) j a r , 2009. Attached and identified as EXHIBIT "A" and made a part of this agreement, and WHEREAS, the City is responsible for any costs not paid by Federal funds, and NOW THEREFORE, in consideration of these facts, the Parties hereto agree as follows: For the 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 RCs. 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 public 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 an 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 function. Responsible charge means the public employee who is fully empowered by the City and has actual day -to -day working and responsibility for all decisions related to all aspects of the federal -aid project from planning through construction project activities, including all environmental commitment i . RC is the day -to -day project manager, and the City's point -of- contact for this project. Responsible charge does not mean merely delegating the various tasks; it means active day -to -day involvement in identifying issues, investigating 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 1. This project has been designated as a full Federal oversight project and the State shall present this project to the FHWA for its approval. Project No. STPB - 89(24) City of Blair 3 Supp. Agmt 5 SECTION 2. ARRA funds cannot be used for preliminary engineering or Right of Way phases. Federal Enhancement Program funds will be used to pay as awarded if these phases are participating; if non - participating; City funds will be used to pay 100 percent. SECTION 3. 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 project is not authorized by FHWA for any reason, including the perceived priority of this project compared to other potential ARRA projects. SECTION 4. Responsible Charge (RC) A. DUTIES AND ASSURANCES OF THE City 1. It 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 the various tasks, it means active day -to -day involvement in the project including identifying issues, investigating options, working directly with stakeholders, and decision making. 2. The RC is a full -time public employee. 3. The RC is fully qualified and has successfully completed required training to serve as an RC. 4. It will 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. It will not assign other duties to the RC that would affect his or her ability to properly carry out the duties set out in this agreement. 6. It will provide necessary office space, materials and administrative support for the RC. 7. It will fully cooperate with, support and not unreasonably interfere with the day -to -day control of the RC concerning the acts necessary for making the project eligible for federal funding. Project No. STPB- 89(24) 4 City of Blair Supp. Agmt 5 f. Competently manage and coordinate the project day -to -day operations, including all project - related decisions, on behalf of the City, which includes City's governing body, staff and any extended staff dedicated to the project such as consulting engineers. g. Ensure that project documents are thoroughly checked, reviewed and have had quality control measures applied, prior to submitting to the State and /or FHWA. h. 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. Properly serve as the owner's representative, and to visit the project site during construction on a frequency commensurate with the magnitude and complexity of the project. j. Ensure that proper construction management processes have been developed and implemented for the project. k. Serve as a steward of the public funds, i.e. ensure that the public gets what it is paying for. I. Attend all required training including the annual workshop. m. Fulfill continuing education requirements as specified in the State's Manual for Federal -aid Projects. LPA Guidelines SECTION 5. 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 STPB-89(24) that Transportation Plan, and has an overall ( � t is included in the which $465,067 is estimated to be ARRA funds, cost estimate of $465,067 of nds, 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 wit the capped amount of ARRA funds will be executed between the h 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 p Project No. STPB - 89(24) City of Blair 6 Supp. Agmt 5 engineering. The allowable construction engineering cost will be 13 percent of the capped construction award amount, plus a flat fee of $2,500 for ARRA audits. 6. Any charges beyond the capped ARRA amount will be funded using 80 percent Transportation. Enhancement Program Funds and 20 percent City funds, except for the construction engineering charges in excess of the capped amount will be 100 percent City funds. 7. The City shall follow ARRA reporting requirements and agrees that the State will not approve 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 6. Any eligible utility work authorized prior to construction, authorized with other (non -ARRA) Federal funds or done under a separate contract will not be eligible for ARRA funds, and may be paid with Federal Enhancement Program Funds as awarded, or 100 percent City funds. If eligible utility work is authorized with the construction, and the authorization occurred after February 17, 2009, then it is eligible for ARRA funds. SECTION 7. The final settlement between the State and the City will be made after the State accepts the project and the final costs have been determined by the State. The amount of the final settlement between the State and the City will 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, and 2. The City share of the project costs. 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. Final payment consisting of the retention withheld minus the State incurred expenses will not be reimbursed to, the City until the City's RC has filed a complete State DR. Form 299. Project No. STPB- 89(24) 7 Supp. Agmt 5 City of Blair "Notification of Project Completion and Materials Certification" with the State, and both the City and the State have signed it. Once the DR Form 299 is signed by the City, no reimbursement requests will be accepted by the State and the FHWA. SECTION 8. 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 Engineer for review. The State and City agree the State will advertise and 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 9. The Parties agree that all costs of this project shall be the sole responsibility of the City if the proposed project improvements are not approved for construction prior to March 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 10. Except as specifically amended by this Supplemental Agreement, all terms and conditions of the agreement executed by the City March 28, 2006, and by the State April 6, 2006, Supplemental Agreement No. 1 executed by the City January 31, 2007 and by the State February 6, 2007, Supplemental Agreement No. 2 executed by the City August 20, 2007 and by the State August 22, 2007, and Supplemental Agreement No. 3 executed by the City February 26, 2008 and by the State March 25, 2008, and Supplemental No. 4 executed by the City October 22, 2008 and by the State November 4, 2008, shall remain in full force and effect. Project No. STPB- 89(24) 8 Supp. Agmt 5 City of Blair 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 ./"t (j m (ye. this J,5 day of 0 CJ €r ATTEST: City of Blair Witness EXECUTED by the State this day of , 20 0 7. Project No. STPB- 89(24) City of Blair STATE OF NEBRASKA DEPARTMENT OF ROADS Jim Wilkinson, P.E. // Lo al Projects Division Engineer , 20 69 . YL 16 9 Supp. Agmt 5