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