Res 007-2011 1/18/2011 RESOLUTION NO. 07-2011
Resolution Authorizing The City Manager To Execute A
Memorandum Of Understanding Regarding The Adoption Of The
Texas Department Of Transportation's Federally—Approved
Disadvantaged Business Enterprise Program
WHEREAS, the City of Wichita Falls has accepted a grant through the Texas
Department of Transportation for the Seymour Highway/Barnett Road Hike and Bike
Trail Project also known as Sections 3, 4, 5, and 8 of the City's Circle Trail System; and
WHEREAS, the City Council finds that the City must enter into a Memorandum
of Understanding to adopt the Texas Department of Transportation's Federally-
Approved Disadvantaged Business Enterprise Program in order to utilize the grant
funds.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF WICHITA FALLS, TEXAS, THAT:
The attached Memorandum of Understanding regarding the Adoption of the
Texas Department of Transportation's Federally-Approved Disadvantaged
Business Enterprise Program is approved, and the City Manager is hereby authorized
to execute said document, with modifications to form and the addition of attachments in
a form to be approved by the City Attorney.
PASSED AND APPROVED this the 18 day of January, 2011.
w __r.--
ity Manager
ATTEST:
�
ity Clerk
Form 2395
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�� MEMORANDUM OF UNDERSI'ANDING
REGARDING THE ADOPTION OF THE TEXAS DEPAItTMENT OF
'i'RANSPORTATION'S FEDERALLY-APPROVED DISADVANTAGED BUSINFSS
ENTERPRISE PROGRAM BY City of Wichits Fa11s
This Memorandum of Understanding (MOU) is by and between 1he TEXAS DEPARTMENT OF
TRANSPORTATiON (TaD01�, an agency of the State of Texas; and
Ci of Wichita Falls , a poli6cal subdivision of the State of Texas.
Whereas, from time to time City of Wichita Falls reccives federal
fimds from the Federal Highway Adminis�tian (FHWA) through TxDOT to assist
Ci of Wichirta Falls with the con.�ruction and design ofprojects
partially or wholiy fimded through FHWA; and
�e�, Ci of Wichita Falls , as a sub-recipient of federal funds,
is required by 49 CFR 26, to implement a progTatn for disadvantaged business enterpnses (DBFs), as
defined by 49 CFR 26 (DBE Program); ar►d
Whereas, TxDOT has implemented a Disadvatrtaged Business Enterprise Program (DBE
program) that is approved by the FHWA pursuant to 49 CFR part 26; and
Whereas, vertain asPecu of City of Wichita Fa!!s 's
procuremet►t of construction and design services are subject to review and/or concurrence by TxDOT as
a condition of receiving federal funds fi� FHWA through TxDOT; and
� C' of Wichita Falls and TkDOT undertake substanrially
similar roadway construction projects and design projects and construct and design their respective
projects using substar�tially the same pool of comractrn's; az►d
y���, City of Wichita Falls desires to implement a federally
compliant DBE Program by adopting the 'I�tDOT a}�proved program, as recommended by FHWA; and
Whereas, TxDOT and City of Wichita Falls find it appropriate to
enter into this MOU to memorial�ze the obligations, expectat�ons and nghts each has as related to
City of Wichita Falls `s adoption of the TxDOT DBE's Program to meet
the fedcral requirements;
Now, therefore, TxDOT and Ci of Wichita Falls , in consideration of
the mutual promises, covenants and conditions made herein, agree to and aclrnowledge the following:
(1) TxDOT hes developed a DBE Program and annually establishes a DBE goal for Te�cas that is
federaily approved and compliant with 49 CFR 26 and other applicable laws and regulations.
(2) City of Wichita Falls is a su�recjpiern of federal assistance for
construction projects and design proJects anci, in accordance with 49 CFR § 26.21, must compiy with a
federally approved DBE Program. 'Il�e _ City of Wichita Falls receives its
federal assistance through TxDOT. As a sub-recipient, _ City of Wichita Falls
has the option of developing its own pro�aCn or adopting and operating under'I�rDOTs fede�ally
approveci DBE Program. T1te FHWA recommends that sub-recipients, such as
City of Wichita Falls , adopt the DBE program, administered ttuough TxDOT,
and City of Wichita Fal1s by its prescribed protocol adopted U�e TxDOT DBE
Program as of the date rvhen adopaion occumed-
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(3) This MOU evidences r H WA's and TxDOTs conseat to the adoption of ffie TxDOT DBE Program by
City of Wichita Fails to achieve its DBE participation in federally assisted
Construction and Design Projects.
(4) The parties will work together in good faith to assure effective and efficient implementation of the.
DBE Program for City of Wichita Falls _ and for TxDOT.
(5) City of Wichita Falls and 7'xDOT have agreed upon the following delegation
of responsibilities and obligations in the administtation of the DBE Program adopted by
City of Wichita Falls
(a) City of Wichita Falls will be responsible for project monitoring and data
reporting to TxDOT. City of Wichita Falls will fiunish to T�cDOT any
required llB� conttactor compliance reports, documents or other information as may be required
from time to time to comply with federa! regulations. T�cDOT will provide the necessary and
appropriate reporting forms, to City of Wichiffi Falls
(b) City of Wichita Falfs will recommend contract-specific DBE goals
consistent with 'I�cDOT's DBE guidelines and in consideration of �e local market, project size, and
nature of the good(s) or servi�e(s) to be acquired. City of Wichita Falls __ ___'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 of Wichita Falls and TxDOT will
work together to achieve a mutually acceptable goal, however, TxDOT will retain final decision-
making suthority regarding DBE goals.
(c) TxDOT will cooperate with City of Wichita Falls in an effort to meet the
timing and other requirements of City of Wichita Falls projects.
(d) Ci of Wichita Falls will be solely responsible for the solicitation and
structuring of bids and bid documents to procure goods and services for its projects that use federat
funds and will be responsible for all costs and expenses incurred in its procurements.
(e) T'he DBEs eligible to participate on TxDOT construction projects or design projects also will be
eligible to participate on City of Wichita Falls construction pmjecLs or design
projects subject to the DBE Progra�m. The DBEs will be listed on TxDOTs wehsite under the Te7cas
Unified Certification Progacn (TUCP).
( fl City of Wichita Falls will conduct reviews and provide reports with
recommendations to TxDOT concerning any DBE Program complianoe issues that may arise due to
proje.ct specific requirements such as Good Faith Effort (GFE), Comme�ially Useful Function
(CUF), etc. City of Wichita Falis and TxDOT will work together to achieve a
mutualiy acceptable goel, however, TxDOT will retain final decision-making authority on those issues
and reserves the right to perform compliance reviews. City of Wichita Falls
shall pmvide 'I�CDOT with a listing of sanctians that will be assessed.against oontractors for violation
of federal DBE regulations and its procedures for investigation of violations and assessment of
sanctions for documented vioiations. City of Wichita Falls will requir�
contractors for its FHWA federally assisted projects to use the attached forms as follows:
. r-an.z99s c,atol
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Attachment 1— Disadvantaged Business Enterprise (DBE} Program Commitment Agreement
For�n 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-sir Projects} 2177
(g) Citv of Wichita Falls will designate a liaison office�' to coordinate efforts
with TxDOT's DBE Program adminisirators snd to respond to questions frosn the public and private
sector regarding _ City of Wichita Falls 's admirristro#ion of the DBE Program
through TxDOT.
(h) City of Wichita Falls wili be responsible for providing Tx]�UT with
DBE project awards and DBE Commitments, monthly DBE reports, DBE Final Reports, DBE
shortfall rcports, amd 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 deveiopment and outreach programs.
Ci of Wichita Falls and TacDOT will work cooperatively to provide
supportive services and outneach to DBE firms in City of Wichita Falls area.
(j) City of Wichita Falls wili submit DBE semi pmgess reports tn TxDOT.
{k) Citv of Wichita Falls will Qarticipate in TxDOT sponsored training
classes to include topics on Title VI of the Civil Rights Act of 1964, DBE Annual Goais, DBE Goal
Setting for Construction Pcojects and Design Projects, DBE Contract Provisions, and DBE Contract
Compliance, which may include issues such as DBE Commitmerrts, DBE Suisstitution, and Final
DBE Ckarance. "I�cDOT will include DBE oontractors performing work on
City of Wichita Falls projects in the DBE Education and Outreach Programs.
{l) The Ex�utive Director of City of Wichita Falls wilE implement all federal
requirements, including those stated in Attachments A thcough F, which are incorporated as though
fu11y set out herein. for all purposes.
(m) In accordance with 23 CFR 2U0.1, City of Wichita Falls shall develop
procedures for the collection of statisticai 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 prograzn to conduct Tit1e VI review of program areas; and conduct
annual reviews of special emphasis program areas to determine the effectiveness of program area
activities at a111evels. TxDOT, in accordance with federal law, may conduct compliance reviews by
TxDOT's Office of Civil Rights (OCR).
(n) Ciiv of Wichita Falls will compiy with 49 CFR 26.29 as stated in
.Attaclvnent F.
(6) In the event the� is a disagreement belween T�cDOT and City of Wichita Falls __ _
about the implementation of the TxDOT DBE Program by City of WicEuta Falls
the parties agree to meet within ten (10} days of receiving a written request from the other party of a
desire to meet to �solve any disagreement. The parties will make good faith efforts to r�solve any
disagreexaaent as efficiently as is reasonably possible in consultation with FHWA. Non-compiiance by
Ci of Wichita Falls can resutt in restitution of fedeisl funds to TxDOT and
wi�'►olding of furthes federal funds upon consultation with FHWA.
Form2395 (1W10y
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(7) This MOU becomes effective upor► execirtion by all parties and automatically renews each year
unless a party not�fies the other partles of its intent to terminaxe the ag*eemen�
(8) If this MOU is terminated for any m,ason, City of Wichita Falls �� �
allowed reasonable tiaie in which to seek approval from FHWA for an alternative DBE Progr'am,
without being deemecl non- compliant with 49 CFR Part 26.
(9) This MOU applies only to projects for which City of Wichita Falls is s sub-
TxDOT. City of Wichita Falls may also
recipient of federal funds ttu'ough hc and program
implement a Minority and Women-Owned Smali Business Enterprise (M/W/SBE) po ' y
that applies to projects for which it is not a sub-recipient of federal funds through Tx�T �d which
a,re not subject to the TxDOT DBE Program• _
City of Wichita Fa11s _ may, � i�
option, use some as�ects of the TxDOT DBE Prograin and other similar prograzns in implementing its
other policies and programs for its non-faderally funded projects-
(10) The following attaclunents ta this MOU are also incorporated as if fully set out herein for all
Purposes:
pttac}unent A— FHWA Memorandum HCR-1/�IIF-1 (relating to access required by the Americans with
Disabilities Act of 1990 and Secrion SU4 of the Rehabilitation Act of 1973);
pttachment B— SPECIAL PROVISION — 000-1966
pttachment C— 49 CFR §26.13 (contiractuaf assurances)
qttachment D— DBE Program Compliance Guidance for Local Government Agencies
pttachment E— FHWA Form 12'73
pttachment F— Texas DeQartmeat of Transportation (TxDOT� Disadvantaged Business Enterprise
(DBE) Progtam with attaclunents as foiiows:
Attachment Pl — DBE Regulations: 49 CFR Part 26
. Attachnnent F2 — DBE Special Provisions 000-1966
Attachment F3 — TxDOT's Organizational Chart
pttachment F4 — Measarement and Payment Special Provision 009-007
Attachmeet FS — Texas Unified Certification Program (TUCp) DBE directory
exampie and website address to the directory
Attachment F6 — DBE Goal Methodology
Attachment F7 — DBE Bidder Ceriification
pttacfunent F$ — DBE Joint Check Approval Form
Attachment F9 — TUCP Standard Operating Procedures (SOP)
Attachmem F 10 — TUCP Memorandum of Agreemetrt (MOA)
pttachment F 11 — Fozms list
(11) The fo1lowing proc.edw�e Shall be observed by the �es in regard to any nodfications:
(a) Any notice required ur Pei'�rutted to be given under this MOU shai] be in vrriting and may be
effected by personal delivery, by hand delivery through a courier or a delivery sen+ice, or by
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registered or certified mail, Postage PrePaid, return receipt requested, addressed to the prvper
party, at the following address:
City of Wicluta Falls
Russell Scbrei'ber
Director of Pablic Warks
Hand Delivery:
1300 7th Street, Room 400, Wichita Fa11s, TX 76307
Registered or Certified Mail (Return receipt requested):
PO Box 1431, Wichirta Falls, TX 76307
TEXAS DEPARTMENT OF TRANSPORTATION
DBE Liaison
Office of Civil Rights
Address: 125 E. l lth Street
Austin, Texas 78701
(b) Notice by personal delivery or hand delivery shall be deemed ef�ective immediately upon
delivery, provided notice is given as required by Paragraph (a) hereof. Notice by registered or
c�ertified 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 MOU may be modified or amended oniy by writter► instcument, signed by both
City of Wichita Falls and the TxDOT and dated subseyuent to the effective
c{a#e(s) of tlus MOU. Exctpt as authorized by the respective parties, no official, employee, agent, or
representative ofthe parties has any aathoritY, either express or implied, to modify or amend this MOU.
(13) The provisions of this MOU are severabfe. If any ciause, sentence, provision, paragraph, or article
of this MOU, or the application of this MOU to any person or circumstanoe is held by any court of
competent jurisdiction to be invalid, illegal or unenforceable for any reason, such invalidity, illegaiity,
or unenfom,eability shall not impair, invalidate, nullify, or otherwise affect the remai�nder 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 circamstances shall not be affected; provided, however,
City of Wichita Falls and TxDOT may muriially agzee to terminate this MOU.
(14) The following provisions apply in reBard 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 ffie other, unless the coetext in ifiis MOU clearly requires
otherwise.
F��sss naim
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(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, 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 Standazd Time or in Central Daylight Savings
Time, as applicable.
(15) This MOU shafi not be construed in any way as a waiver by the parties of any immunity from suit or
liability that parties may have by operarion of Iaw, and the pazties hereby retain all uf their respeotive
affirmative defenses.
EXECUTED in dunlicate originals by TxD4T and City of Wichita Falls , acting
through each duly authorized official and effactive on the latest date signed.
7'he signatories below confirm that they have t�e authority to execute this MOU and bind their principles.
TEXAS DEPARTMENT OF TRANSPORTATION City+ of Wichita Falls
By: BY
Amadea Saenz, Jr. P_E. Darron Leiker
Executive Director City Manager
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