SW0501-CN051001COUNTY OF DALLAS
STATE OF TEXAS
COMMUNITY DEVELOPMENT BLOCK GRANT ("CDBG')
PROJECT IMPLEMENTATION AGREEMENT
SAMUEL BOULEVARD ADA RAMPS
("Agreement")
BETWEEN COUNTY OF DALLAS, TEXAS
("County")
AND CITY OF COPPELL, TEXAS
("City")
Whereas, the CDBG funds are created under the Department of Homing and Urban Development
("HUD"); and
Whereas, County has qualified for CDBG entitlement status; and
whereas, the services under this Agreement will help protect the public health, safety, and welfare
of low to moderate income people, the disabled, and the elderly by the reconstruction of 26
accessibility ramps that will meet the requirements of the American with Disabilities Act (ADA)
along the west side of Samuel Boulevard from Parkway Boulevard to MacArthur Boulevard, in
Coppell, Texas; and
Whereas, City was allocated CDBG funds in the amount of Three Thousand Four Hundred Forty-
Seven and 68/100 Dollars ($3,447.68) in FY 2004; and Sixty Eight Thousand Nine Hundred Thirty-
Two and 00/100 Dollars ($68,932.00) in FY 2005; totaling Seventy Two Thousand Three Hundred
Seventy-Nine and 68/100 Dollars ($72,379.68) which shall represent the total alloeatiun from all
CDBG sources and shall hereinafter be referred to as the 'flqot to Exceed Amount" for the CDBG
funded portion of this Project (more specifically described below).
Now therefore, this Agreement is entered into by and between County and City pursuant to the
explicit and implicit authorities created under Title I ofthe Housing and Commtmity Development
Act of 1974, 42 U.S.C.A. § 5301, Texas Local Government Code, Chapters 373, 374 and 381, Texas
Government Code, Chapter 791, and other relevant laws, for the Samuel Boulevard ADA Ramps
in Coppell, Texas, per bid specifications.
1. TERM
Unless otherwise stated in this Agreement, this Agreement shall be in effect from October 1, 2005
until the Project (more particularly described in Section 2 below) is completed.
2. PROJECT DESCRIPTION
This Project includes the survey/design services and the reconstruction of 26 accessibility rumps that
will be compliant with the American with Disabilities Act (ADA) along the west side of Samuel
Boulevard from Parkway Boulevard to MacArthur Boulevard.
3. PROJECT RESPONSIBILITIES
The responsibilities for this Project shall be shared between Dallas County CDBG Administration
("CDBG Admin") and the City as follows:
A. CDBG Admln's Responsibilities:
1)
Imulementation Aexeement Mananement: CDBG Admin, on behalf of the County, will
manage all aspects of this Agreement. CDBG gdmin shall be responsible for
reimbursement to the City on all invoices paid by the City (to the City's Consultant and
to the City' s Construction Contractor) provided that these umounts do not exceed the Not
To Exceed umount stated in this Agreement rega~ling this project;
2) Monitoring: CDBG Admin will monitor this Project for Davis-Bacon compliance and
compliance with all other applicable regulations;
3) Desi P vets' : CDBG Admin will review and concur on the approval of the
preliminary and final design plans, documents and reports fi'om the City's Consultant;
4)
Co t tion Phase Oversi~_ht: CDBG Admin will review all monthly contract estimates
in bid tabulated form prior to payment by the City to the City' s Construction Contractor;
The County's representative(s) will periodically review on-going constraction, as needed.
Any Change Orders to this Project must be approved in writing concurrently by both the
City and the County; and
5)
Notice to Proceed: A Notice to Proceed for Conslmction ("NTP") authorizing
consm~ction to commence shall be issued by the County to the City once the County
receives a letter from the City verifying that all utilities that may impact this Project have
been contact~l and relocated, as necessary. No construction work will be authorized or
paid for from CDBG funds for work done prior to the date of the NTP.
n. CiW's Responsibilities:
1)
Sut~n-vision of Engineer: The City will assign and supervise an engineer who will be
responsible for the general administration of the Project. The City's engineer will be
responsible for reviewing, tracking, and approving all submittals, request for
clarifications on construction specifications, and any Change Orders applicable to this
Project;
2) C0st.5: The City will be responsible for all costs in excess of the Not to Exceed Amount.
If such funding is not available fxom the City, this Project shall be rescinded, suspended
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or terminated, or the scope of the Project will be reduced, all at the sole discretion of the
County;
3) Contract M eent: The City will be responsible for managing the contract(s) with
both their design Consultant and their Construction Contractor. The City will provide
all required information, review the work of their Consultant and their Construction
Contractor, ensure that the Project schedule is met, provide submittals for the County to
review and concur on the approval, and submit reimbursement requests to the County;
4) De. sion Phase Mananement: The City will develop a Request For Qualifications (RFQ)
for the surveying and engineering design, solicit Statement Of Qualifications (SOQ) from
interested Consultants, evaluate the statements and determine the best qualified engin~e, r,
negotiate a fair and reasonable cost, enter into an agreed-upon professional sermces
contract, and pay and monitor the Consultant(s);
5) Easement: The City will provide documentation to CDBG Admin of any existing
easements that may impact this Project in a timely manner;
6) Construction Phase Mananement: The City Project Manager will submit signed monthly
contract estimates in bid tabulated form by the Thirtieth 00') day of each month as a
requirement for receiving payment for work performed. The City' s representative, s) will
supervise on-going construction on a,tzily basis. Any Change Orders to this Project must
be approved in writing concurrently by both the City and the County; and
7) Comnliance with TxDOT: If aplicable, City shall adhere to all requirements by the
Texas Deptuhuent of Tram~rtation (TxDOT). City agrees to use its own directly
employed labor and supervisory personnel, machinery, equipment and vehicles necessary
for the construction of each City force account element of construction. City agrees to
abide by Title 49 CFR Part 18.36 in renting or leasing machinery, equipment and/or
vehicles, other than its own, which are necessary for the consmmtion.
8) ~: City agrees, without additional costs to County, to furnish all fights-of-
way required for the Project in accordance with State and/or Federal standards and to
ensure through the building permitting process that setback requirements are imposed to
limit encroachment upon the required fights-of-my. City shall certify to County that all
fights of ways, utility relocations, and other items have been fully accomplished prior to
the commencement of any construction services. City agrees to provide County with
historical records and reports associated with the acquisition and dedication of rights-of-
way required for the Project prior to work perform under this Agreement.
9) Maintenance of Ri~.hts-of-Wav: City agrees to provide for continuing surveillance and
control of rights-of-way to prevent the construction, placement, storage or encroachment
of any signs, personal property or other appurtenances in the rights-of-way and, when
requested by County or TxDOT, to take such action as appropriate to cause any and all
encroachments on the rights-of-way to be removed prior to starting construction of any
projects under this Agreement. City shall provide for the continuing maintenance ofall
fights-of-way, such as traffic control, pavement maintenance, mowing, drainage, trash
removal, etc..., during the period between right-of-way acquisition and construction of
Project.
10) M.aintetmnce oflmvrovements: City agrees to resume responsibility for the maintenance
of the improvements associated with this CDBG Project upon final inspection and
acceptance of the construction by County and City.
11 ) Utilities: City shall certify that it has located all utilities, including manholes and water
valves, and that all utilities, which conflict with the proposed work, have been adjusted
and/or relocated prior to the commencement of construction. All costs for adjustment
and/or relocation of utilities shall be the responsibility of the utility owner or City. In the
event that the utilities are not adjusted and/or relocated within a reasonable amount of
time, City shall initiate and assume all costs for legal actions to compel the adjnstment
or relocation of the utilities by the utility owner or if necessary, to prevent delays in
commencement or prosecution of construction of the Project, shall itself adjust and
relocate the utility. All activities mentioned in this section shall be completed and a letter
forwarded to County by City verifying this fact.
12) Timeliness: City agrees to make detailed reviews of and return comments on all
requested information by County in a timely manner, not to exceed two (2) weeks from
date of request by County, unless otherwise agreed by County.
13) Federal Guidelines: In addition, City must ensure that any applicable federal guidelines
are met, including any of those set forth in Exhibit B that is attached hereto and
incorporated herein for all purposes.
4. PROJECT SCI:IEDULE
The estimated schedule for implementing this Project is set forth below. This schedule may be
revised without formal amendment of this Agreement; however, any changes to this schedule must
have the written consent of Dallas County CDBG Admin for the revision to be valid. It is further
agreed that the NTP on the construction contract shall not commence until this Agreement has been
fully executed by City and County.
EVENT DATE
Complete Design
Utility Conflicts Complete
NTP of the Construction Contract
Construction Completion
January 2006
March 2006
May 2006
October 2006
5. PROJECT BUDGET
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The County will not authorize any CDBG expenditures in excess of the Not to Exceed
Amount. In addition, the City will be responsible for any costs that are incurred by the City
and disallowed by the County and/or HUD;
In the evem that the cost of this Project, as currently envisioned, exceeds the Not to Exceed
amount budgeted, the scope of this Project may be revised/reduced with the mutual written
consent of the City and the County;
In the event that the Project's budgeted amounts are exceeded, or that changes which the City
desires are not allowed by CDBG Program guidelines, the City hereby agrees to provide
additional funding;
During execution of the Project, if the need arises which necessitates design changes, or any
other revisions that require additional work, City hereby agrees to be responsible for
preparation of the change notice and process such for approval by CDBG Admin;
County shall Incur the cost of authorized change orders when the total Project costs,
including proposed change orders, are below the Not to Exceed Amount. City shall incur the
cost of authorized change orders when the total Project costs, including proposed change
orders, are in excess of the Not to Exceed Amount;
City shall escrow with County additional funds to cover all costs in excess of the Not to
Exceed Amount prior to the authorization of such contract amendments or related costs.
6. PAYMENT PROCEDURES
A. CDBG Admin shall authorize in writing any costs/expenses of Project;
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City shall send to County for review all invoices for costs occurred fxom the Fifteenth of the
previous month to the Fffieenth of the current month by the last day of the current month;
CDBG Admin shall immediately prepare and submit to the County Auditor a monthly
estimate for work performed based on these invoices. County Auditor shall make best effort
to reimburse City by the Thirtieth (30th) day of the month following the month that the
invoices are due. City agrees that a temporary delay in making payments due to the County's
accounting and disbursement procedures shall not place the County in default of this
Agreement and shall not render the County liable for interest or penalties.
7. PROGRAM INCOME
In the event that any program income is generated from this Project, this income shall be returned
to or retained by the County to be administered in accordance with 24 CFR 570.504. Program
income shall be returned to County in the form of a cheek made payable to the Dallas County CDBG
Program, Attn: CDBG Administrator. Any program income generated by this Project may be
reallocated to City for other CDBG eligible activities.
8. REPORTING
All significant changes in the Project will be made in writing between the County and City. All
relevant field observations made by City or County personnel will also be promptly reported to both
entities.
9. GENERAL ADMINISTRATIVE REQUIREMENTS
City and County shall comply with the uniform administrative requirements, as described in 24 CFR
570.502, as these requirements apply to each entity's Project implementation responsibilities.
10. GENERAL ACCESSIBILITY AND RETENTION
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City shall maintain and retain ail CDBG application pmposais, financiai and programmatic
records, supporting documents, and statisticai ~ports assaci~ted with this Project for a period
of Five (5) years. However, if any litigation, claim, negotiation, audit or other action
involving Project records has been started before the expiration of this Five (5) year period,
then the records must be retained for the later of an additional Five (5) year from the date that
the action, or until the completion of the action and the resolution of all possible appeals or
issues which arise from it.
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HUD and County, or any of their respective authorized representatives, shall have the right
to access any pertinent documents, papers, reports, bOoks or other records which pertain to
this Project for the purpose of conducting audits and/or making excerpts, examinations, and
transcripts.
11. OTHER PROGRAM REQUIREMENTS
City and County shall comply with ail program or Project requirements, including those under
Subpart K, 24 CFR 570, as they apply to each entity's Project implementation responsibilities.
12. TERMINATION AND/OR SUSPENSION
If City materiaily fails to comply with any term of the CDBG Project, this Agreement or any
related requirements/laws, County may, pursuant to 24 CFR 85.43, take one or more of the
following actions, as appropriate under the cirenm.,~ances:
1) Temporarily withhold payments pending correction of the deficiency by City or more
severe enforcement action by County in its sole discretion;
2) Disallow ail or part of the cost of the activity or action that is not in compliance;
3) Wholly or partially suspend or terminate the current award to City for Project;
4) Withhold future awards for other similar projects; and/or
5) Take other legai and equitable actions available to remedy the situation.
Either party at its sole discretion, with or without cause, may terminate this Agreement
before its scheduled expiration date by notifying the other party in writing at least thirty (30)
calendar days in advance, pursuant to 24 CFR 85.44. Any omstanding obligations present
at the time of the termination shall be paid from the remaining funds associated with this
Agreement.
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13. HEARINGS AND APPEALS
In taking any of the enforcement actions cited above in Section 12 "Termination and/or Suspension,"
County shall provide City with an opportunity to appeal any termination/suspension decision and
to present any relevant information if City, within ten (10) calendar days of receiving County's
termination/suspension notice, requests such an appeals hearing.
14. REVERSION OF ASSETS
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Upon the expiration or termination of this Agreement, for whatever reason, City shall
transfer any CDBG outstanding fimds that it may have on hand to County, as well as any
account receivable attributable to this Agreement and Project. ha adattion, any real properVj
that was acquired or improved, in whole or in part with CDBG funds in excess of Twenty-
Five Thousand and 00/100 Dollars ($25,000.00) shall be disposed or utilized, at County's
discretion, in accordance with either 24 CFR 503(8)0) or 24 CFR 570.503(8)00.
Upon the expiration or termination of this Agreement and after the County Auditor's Office
has conducted a final cost accounting, County shall transfer to City any escrow funds which
were provided by City as well as any accounts receivable to these escrow funds with respect
to this Agreement and Project.
15. CHANGES OR AMENDMENTS TO AGREEMENTS
The terms of this Agreement may be changed or amended for the Term of this Agreement if said
changes and amendments are made in writing, executed by County and City and attached hereto.
16. LIABILITY
City and County agree and acknowledge that each entity, including its respective agents,
employees and representatives, is not an agent of the other entity and that each entity is
responsible for its own acts, forbearance, negligence and deeds, and for those of its agents,
representatives or employees in conjunction with perfomance of work covered under this
Agreement.
County agrees to be responsible for any liability or damages County may suffer as a result of
claims, demands, costs or judgment~ including all reasonable attorneys' fees, against County,
including workers' compensation claims, arising out of the perfomance of the construction
and services under this Agreement, or arising from any aeeident, injury or damage,
whatsoever, to any perso, or persoos? or to the property of any person(s) or corporation(s)
oeeurring during the performance of this Agreement and caused by the sole negiigence of
County, its agents, officers and/or employees.
City agrees to be responsible for any liability or damages City may suffer as a result of claims,
demands, cests or judgments, including aH reasonable attorneys' fees, against City, including
workers' compensation claims, arising out of the performance of the construction and services
under this Agreement, or arising from any accident, injury or damage, whatsoever, to any
person or persons, or to the property of any person(s) or corporation(s) oeeurring during the
performance of this Agreement and caused by the sole negligence of City, its agents, officers
and/or employees.
City and County Agree that any liability or damages as stated above occurring during the
performance of this Agreement caused by the joint or comparative negligence of their
employees, agents and officers shall be determined in accordance with comparative
responsibility laws of the State of Texas.
17. INSURANCE
City and County agree that they will, at all times during the term of this Agreement, maintain in full
force and effect insurance or self-insurance, to the extent permitted by applicable law under a plan
of self-insurance, that is also maintained in accordance with sound accounting practices. City and
County will be responsible for their respective costs of such insurance, any and all deductible
amounts in any policy and any denials of coverage made by their respective insurers.
18. EXCESSIVE FORCE CERTIFICATION
A. City certifies that it has adopted and is enforcing:
1) A policy prohibiting the use of excessive force by law enfomement agencies within its
jurisdiction again~ any individuals engaging in nonviolent civil rights demonstrations;
and
2) A policy of enforcing applicable state and local laws againat physically barring entxance
to or exit from a facility or location which is the subject of such nonviolent civil rights
demonstrations within its jurisdiction.
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City agrees to provide county with a copy of such policy, in the form of a local administrative
act, such as a written statement of policy by the local chief executive, an executive order, or
a regulation within the police department.
19. CERTIFICATION REGARDING LOBBYING
In accordance with Section 319 of Public Law 101-102, the 1991 Depa~haent of Interior
Appropriations Act, City certifies, to the best of its knowledge and belief that:
No federal appropriated funds have been paid or will be paid, by or on behalf of the
undersigned, to any person for influencing or attempting to influence an officer or employee
of any agency, a member of Congress, an officer or employee of Congress, or an employee
of a member of Congress in connection with the awarding of any Federal contract, the
making of any Federal grant, the making of any Federal loan, the entering into of any
cooperative Agreement, and the extension, continuation, renewal, amendment, or
modification of any Federal contract, grant, loan or cooperative Agreement.
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If any funds other than Federal appropriated funds have been paid or will be paid to any
person for influencing or attempting to influence an officer or employee of any agency, a
member of Congress, an officer or employee of Congress, or any employee of a member of
Congress in connection with this Federal contract, grant loan or cooperative Agreement, the
undersigned shall complete and submit Standard Form-LLL, A Disclosure Form to Report
Lobbying, in accordance with its instructions.
The undersigned shall require that the langv~ge of this certification be included in the award
documents for all sub-awards at all tires (including subcontracts, sub-grants, and contracts
under grants, loans and cooperative Agreements) and that all sub-recipients shall certify and
disclose accordingly.
20. NOTICE
Notice shall be considered delivered and effective on the earlier of actual receipt or when (a)
personally delivered; Co) the day following transmission if sent by telex, telegram or facsimile when
followed by written confirmation by registered overnight carder or cerdfied United States mall; or
(c) one ( 1 ) day after posting when sent by registered private overnight carrier; or (d) five (5) calendar
days after posting when sent by certified United States mail. Notice shall be sent to the parties at the
addresses set forth below or at such other address as shall be specified by either party to the other
in writing.
COUNTY
Rick Loessberg, Director
Dallas County Dept. Planning & Development
Administration Building
411 Elm St., 3rd Floor
Dallas, Texas 75202-3374
CITY
Douglas Stover, Mayor
City of Coppell
P. O. Box 9478
Coppell, Texas 75019
21. SOVEREIGN IMMUNITY
This Agreement is expressly made subject to County's and City's Sovereign Immunity, Title
5 of the Texas Civil Practices and Remedies Code, and aH applicable federal and state law.
The parties expressly agree that no provision of this Agreement is in any way intended to
conslitute a waiver of any immunities from suit or from liability that City or County has by
operation of law. Nothing in this Agreement is intended to benefit any third party beneficiary.
22. COMPLIANCE WITH LAWS AND VENUE
In providing mr~dees required by this Agreement, City and County must observe and comply with
all licenses, legal certifications, or inspections required for the services, facilities, equipment, or
materials, and all applicable federal, State, and local statutes, ordinances, rules, and regulations.
Texas law shall govern this Agreement and exclusive venue shall lie in Dallas County, Texas.
23. AMENDMENTS AND CHANGES IN THE LAW
No modification, amendment, novation, renewal or other alteration of this Agreement shall be
effective unless mutually agreed upon in writing and executed by the parties hereto. Any alteration,
addition or deletion to the terms of this Agreement which are required by changes in federal or State
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law are automatically incorporated herein without written amendment to this Agreement and shall
be effective on the date designated by said law.
24. ENTIRE AGREEMENT
This Agreement, including all Exhibits and attachments, consututes the emtre agreement betwee
the parties hereto and supersedes any other agreement concerning the subject matter of this
transaction, whether oral or written.
25. BINDING EFFECT
This Agreement and the respective rights and obligations of the parties hereto shall inure to the
benefit and be binding upon the successors and assigns of the parties hereto, as well as the parties
themselves.
26. GOVERNMENT FUNDED PROJECT
If Agreement is funded in part by either the State of Texas or the federal government, City agrees
to timely comply without additional cost or expense to County, unless otherwise specified herein,
to any statute, rule, regulation, grant, contract provision or other State or federal law, role, regulation,
or other similar restriction that imposes additional or greater requirements thma stated herein and that
is directly applicable to thc services rendered under the terms of this Agreement.
27. DEFAULT/CUMULATIVE RIGHTS/MITIGATION
In the event of a default by either party, it is not a waiver of default if the non-defaulting party fails
to immediately declare a default or delays in taking any action. The rights and remedies provided
by this Agreement are cumulative, and either party's use of any right or remedy will not preclude or
waive its fight to use any other remedy. These rights and remedies are in addition to any other rights
the parties may have by law, statute, ordinance or otherwise. County and City, each, have a duty to
mitigate damages.
2~ FISCAL FUNDING CLAUSE
Notwithstanding any provisions contained herein, the obligations of the County under this
Agreement are expressly contingent upon the availability of funding for each item and obligation
contained herein for the Term of the Agreement and any extensions thereto. City shall have no right
of action again.qt County in the event County is unable to fulfill its obligations under this Agreement
as a result of lack of sufficient funding for any item or obligation from any source utilized to fund
this Agreement or failure to budget or authorize funding for this Agreement during the current or
future fiscal years. In the event that County or City is unable to fulfill its obligations under this
Agreement as a result of lack of sufficient funding, or if funds become unavailable, each party, at
its sole discretion, may provide funds fxom a separate source or may terminate this Agreement by
written notice to City at the earliest possible time prior to the end of its fiscal year.
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29. COU~TERPARTS, NUMBER/GENDER AND HEADINGS
This Agreement may be executed in multiple counterparts, each of which shall be deemed an
ori~nal; but all of which shall constitute one and the same instrument. Words of any gender used
in this Agreement shall be held and construed to include any other gender and any words in the
singular shall include the plural and vice versa, unless the context clearly requires otherwise.
Headings herein are for the convenience of reference only and shall not be considered in any
interpretation of this Agreement.
30. PREVENTION OF FRAUD AND ABUSE
City and County shall establish, maintain and utilize internal management procedm'es ~ufficient to
provide for the proper, effective management of all activities funded under this Agreement. Any
known or suspected incident of fraud or program abuse involving County or City's employees or
agents shall be reported immediately for appropriate action. Moreover, City and County warrant to
be not listed on a local, county, State or federal consolidated list of debarred, suspended and
ineligible contractors and grantees. City and County agree that every person who, as part of their
employment, receives, disburses, bandies or has access to funds collected pursuant to this Agreement
does not participate in accounting or operating functions that would permit them to conceal
accounting records and the misuse of said funds. Each party shall, upon notice by the other party,
refund expenditures to the other pan*y that are contrary to this Agreement and deemed inappropriate
by any court of competent jurisdiction.
31. AGENCY / INDEPENDENT CONTRACTOR
County and City agree that the terms and conditions of this Agreement do not constitute the creation
of a separate legal entity or the creation of legal responsibilities of either party other than under the
t~m~s of this Agreement. County and City are and shall be acting as independent conlxactors under
this Agreement; accordingly, nothing contained in this Aq0~ment shall be construed as establishing
a master/servant, employer/employee, partnership, joint venture, or joint enterprise relationship
between County and City. City and County are responsible for their own acts, forbearance,
negligence and deeds, and for those of their respective agents or employees in conjunction with the
performance of work covered under this Agreement.
32. SEVERABILITY
If any provision of this Agreement is construed to be illegal or invalid, this will not affect the legality
or validity of any of the other provisions in this Agreement. The illegal or invalid provision will be
deemed strickea aad deleted, but all ~',h~ provi.~ions shall continue and be given effect as if the
illegal or invalid provisions had never been incorporated.
33. SIGNATORY WARRANTY
The person or persons signing and executing this Agreement on behalf of County and City, or
representing themselves as signing and executing this Agreement on behalf of County and City, do
hereby warrant and represent that such person or persons have been duly authorized by County or
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City, respectively, as the case may be, to execute this Agreement on behalf of County or City and
to validly and legally bind each, respectively, to all terms, performances and provisions herein set
forth.
EXECUTED this II ~ day of (~/~/
2005.
COUNTY:
By: M~rgaret Keliher
County Judge
Mayor
Recommended:
Director, Planning and Development
Approved as to Form*:
Chief, Civil Division
*By law, the Dislrict Attorney's Office may only advise or approve contracts or legal documents on behalf
of its clients. It may not advise or approve a contract or legal document on behalf of other parties. Our
review of this document was conducted solely from the legal perspective of our client. Our approval of this
document was offered solely for the benefit of our client. Otber perties should not rely on this approval, and
should seek review and approval by their own respective attorney(s).
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