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HomeMy WebLinkAboutWater Infrastructure Improvements with Department of ArmyTECHNICAL ASSISTANCE AGREEMENT BETWEEN THE DEPARTMENT OF THE ARMY AND CITY OF ARCADIA FOR DESIGN OF WATER INFRASTRUCTURE IMPROVEMENTS THIS AGREEMENT is entered into this Lo, -fh day of , 1998, by and between the Department of the Army (hereinafter the "Government "), represented by the District Engineer executing this Agreement, and the City of Arcadia (hereinafter the "Sponsor "). WITNESS17H, that WHEREAS, the Secretary of the Army was authorized to provide technical assistance for developing potential infrastructure projects pursuant to Section 116(d) of the Water Resources Development Act of 1990 (Public Law 101 -640) as amended by Section 410 of the Water Resources Development Act of 1996 (Public Law 104 -303); WHEREAS, Section 410 of the Water Resources Development Act of 1996 specifies the cost sharing requirements applicable to providing the technical assistance; WHEREAS, the Government and the Sponsor have'the full authority and capability to perform as hereinafter set forth and intend to cooperate in cost sharing of the technical assistance in accordance with the terms of this Agreement; WHEREAS, Government participation in providing technical assistance will be limited to the amount of funds specifically appropriated by the Congress. NOW, THEREFORE, the parties agree as follows: ARTICLE I - DEFINITIONS For the purposes of this Agreement: A. The term "technical assistance work" shall mean any work described in the Scope of Work, attached hereto, to be provided pursuant to this Agreement. B. The term "total cost of technical assistance" shall mean all disbursements by the Government pursuant to this Agreement, from Federal appropriations or from funds made available to the Government by the Sponsor. Total cost of technical assistance shall include, but not be limited to: labor charges; direct costs; overhead expenses; supervision and administration costs; the costs of contracts with third parties, including termination or suspension charges; any termination or suspension costs (ordinarily defined as those costs necessary to terminate ongoing contracts or obligations and to properly safeguard the work already accomplished) associated with this Agreement; and costs of audit in accordance with Article VII of this Agreement. The term costs does not include any costs for dispute resolution under Article VI of this Agreement. C. The term "estimated cost of technical assistance" shall mean the estimated cost of performing the technical design assistance work, as specified in Article III.A. of this Agreement D. The term "SOW" shall mean the Scope of Work describing the technical assistance work to be provided, which is attached to this Agreement and which shall not he cnmidf r binding on either and is Subject t!n cl� trzc b" the (7im rnnicnt in consultation with the Sponsor. E. The term "fiscal year" shall mean one fiscal year of the Government. The Government fiscal year begins on October 1 and ends on September 30. F. The term "rights -of- entry" shall mean permission given by individual landowners, not constituting an interest in land, to allow the Government, its employees and contractors, entry to certain tracts of land for purposes of survey, test borings and other exploratory work for a specified period of time. ARTICLE II - OBLIGATIONS OF THE GOVERNMENT AND THE SPONSOR A. The Government, subject to receiving funds appropriated by the Congress of the United States (hereinafter, the "Congress ") and using those funds and funds provided by the Sponsor, shall expeditiously accomplish the technical assistance work, applying those procedures usually applied to Federal projects, pursuant to Federal laws, regulations, and policies. B. When the District Engineer determines that the technical assistance work is complete, the District Engineer shall so notify the Sponsor in writing and furnish the Sponsor with any technical assistance work that is completed under this Agreement. C. The Sponsor shall provide a cash contribution equal to twenty five (25) percent of the total technical assistance costs in accordance with the provisions of Article III.A. of this Agreement. D. The Government shall perform a final accounting in accordance with Article III.C. of this Agreement to determine if the contributions provided by the Sponsor are in accordance with paragraphs C. of this Article and Articles III.A of this Agreement and to determine whether the Sponsor has met its obligations under paragraphs C. of this Article. E. The Sponsor shall not use Federal funds to meet the Sponsor share of the total cost of technical assistance under this Agreement unless the Federal granting agency verifies in writing that the expenditure of such funds is expressly authorized by statute. F. The award and management of any contract with a third party in furtherance of this Agreement which obligates Federal appropriations shall be exclusively within the control of the Government. ARTICLE III - METHOD OF PAYMENT A. The Government shill maint,-?in r_urrent recordq r,f r­ntributions pro - ided by the parties, current projections of estimated costs of technical assistance, and current projections of each party's share of estimated costs of technical assistance. At least quarterly, the Government shall provide the Sponsor a report setting forth this information. As of the effective date of this Agreement, the estimated cost of technical assistance is $560,000.00, and the Sponsor's share of the estimated cost of technical assistance is $140,000.00. In order to meet the Sponsor's cash payment requirements for its share of the estimated cost of technical assistance, the Sponsor must provide a cash contribution currently estimated to be $140,000.00. The dollar amounts set forth in this Article are based upon the Government's best estimates, which reflect the technical assistance described in the SOW, projected costs, price -level changes, and anticipated inflation. Such cost estimates are subject to adjustment by the Government and are not to be construed as the total financial responsibilities of the Government and the Sponsor. In no case will the financial responsibilities of the Government exceed the amount of funds specifically appropriated by Congress. B. The Sponsor shall provide its cash contribution required under Article II.C. of this Agreement in accordance with the following provisions: 1. No later than thirty (30) calendar days prior to the scheduled date for the Government's issuance of the solicitation for the first contract for the technical assistance work or for the Government's anticipated first significant in -house expenditure for the technical assistance work, the Government shall notify the Sponsor in writing of the funds the Government determines to be required from the Sponsor to meet its share of the estimated cost of technical assistance. No later than fifteen (15) calendar days thereafter, the Sponsor shall provide the Government the full amount of the required funds by delivering a check payable to "FAO, USAED, Los Angeles District" to the District Engineer. 2. The Government shall draw from the funds provided by the Sponsor such sums as the Government deems necessary to cover the Sponsor's share of contractual and �? in -house financial obligations attributable to the technical assistance work as they are incurred. 3. In the event the Government determines that the Sponsor must provide additional funds to meet its share of the total cost of technical assistance, the Government shall so notify the Sponsor in writing. No later than sixty (60) calendar days after receipt of such notice, the Sponsor shall provide the Government with a check for the full amount of the additional required funds. C. Within ninety (90) days after the conclusion of providing the technical assistance work under this Agreement or termination of this Agreement, the Government shall conduct a final accounting of total cost of technical assistance, including disbursements by the Governm^nt of Federal fiends and cash contribtutions b, the Sponsor and si a'1 furnish the Sponsor with the results of this accounting. Within thirty (30) days thereafter, the Government, subject to the availability of funds, shall reimburse the Sponsor for the excess, if any, of cash contributions given over its required share of the total cost of technical assistance, or the Sponsor shall provide the Government any cash contributions required for the Sponsor to meet its required share of the total cost of technical assistance. ARTICLE IV - RIGHTS -OF -ENTRY If needed, the Government, its employees and contractors shall determine the rights -of- entry, as defined in Article I.F, required for providing the technical assistance work. The Government and its employees shall acquire all rights -of -entry, if required, for the technical assistance work provided under this Agreement. The costs of such acquisition shall be a part of total cost of technical assistance, as defined in Article I.B. ARTICLE V - MANAGEMENT AND COORDINATION A. To provide for consistent and effective communication, the Sponsor and the Government shall appoint named senior representatives to an Executive Committee. Thereafter, the Executive Committee shall meet regularly until the end of the Study Period. B. Until all technical assistance work is completed under this Agreement, the Executive Committee shall generally oversee the technical assistance work consistently with the SOW. C. The Executive Committee may make recommendations that it deems warranted to the District Engineer on matters that it oversees, including suggestions to avoid potential sources of dispute. The Government in good faith shall consider such recommendations. The Government has the discretion to accept, reject, or modify the Executive Committee's recommendations. 4 D. The Executive Committee shall appoint a Project Manager. The Project Manager shall keep the Executive Committee informed of the progress of the work and of significant pending issues and actions, and shall prepare periodic reports on the progress of all work items identified in the SOW. ARTICLE VI - DISPUTE RESOLUTION As a condition precedent to a party bringing any suit for breach of this Agreement, that party must first notify the other party in writing of the nature of the purported breach and seek in good faith to resolve the dispute through negotiation. If the parties cannot resolve the dispute through negotiation, they may agree to a mutually acceptable method of non- binding alternative dispute resolution with a qualified third party acceptable to both p,?rtir c. The parties shall C ?Ch nay 50 pr rcCnt of -n,, COS!Q f C?r tlIC �Cr i�� i TO �'ided 1.., such a third party as such costs are incurred. Such costs shall not be included in the total cost of technical assistance. The existence of a dispute shall not excuse the parties from performance pursuant to this Agreement. ARTICLE VII - MAINTENANCE OF RECORDS A. Not later than sixty (60) calendar days after the effective date of this Agreement, the Government and the Sponsor shall develop procedures for keeping books, records, documents, and other evidence pertaining to costs and expenses incurred pursuant to this Agreement. These procedures shall incorporate, and apply as appropriate, the standards for financial management systems set forth in the Uniform Administrative Requirements for Grants and Cooperative Agreements to state and local governments at 32 CFR Section 33.20. The Government and the Sponsor shall maintain such books, records, documents, and other evidence in accordance with these procedures for a minimum of three years after completion of the technical assistance work and resolution of all relevant claims arising therefrom. To the extent permitted under applicable Federal laws and regulations, the Government and the Sponsor shall each allow the other to inspect such books, documents, records, and other evidence. B. Pursuant to 32 C.F.R. Section 33.26, the Sponsor is responsible for complying with the Single Audit Act of 1984, 31 U.S.C. Section 7501 -7507, as implemented by Office of Management and Budget (OMB) Circular No. A -133 and Department of Defense Directive 7600.10. Upon request of the non - Federal Sponsor and to the extent permitted under applicable laws and regulations, the Government shall provide to the non - Federal Sponsor and independent auditors any information necessary to enable an audit of the non - Federal Sponsor's activities under this Agreement. The costs of any non - Federal audits performed in accordance with this paragraph shall be allocated in accordance with the provisions of OMB Circulars A -87 and A -133, and such costs as are allocated to the technical assistance shall be included in the total cost of technical assistance and cost shared in accordance with the provisions of this Agreement. 5 C. In accordance with 31 USC Section 7503, the Government may conduct audits in addition to any audit that the Sponsor is required to conduct under the Single Audit Act of 1984, 31 USC Sections 7501 -7507. Any such Government audits shall be conducted in accordance with Government Auditing Standards and the cost principles in OMB Circular No. A -87 and other applicable cost principles and regulations. The costs of Government audits shall be included in total costs of technical assistance and shared in accordance with the provisions of this Agreement. ARTICLE VIII - RELATIONSHIP OF PARTIES The Government and the Sponsor act in independent capacities in the performance of their respective rights and obligations under this Agreement, and neither is to be Cons; -'c.cd th officer, age::' ^r - n:pioycc of fL, c!"12" ARTICLE IX - OFFICIALS NOT TO BENEFIT No member of or delegate to the Congress, nor any resident commissioner, shall be admitted to any share or part of this Agreement, or to any benefit that may arise therefrom. ARTICLE X - FEDERAL AND STATE LAWS In the exercise of the Sponsor's rights and obligations under this Agreement, the Sponsor agrees to comply with all applicable Federal and State laws and regulations, including Section 601 of Title VI of the Civil Rights Act of 1964 (Public Law 98 -352) and Department of Defense Directive 5500.11 issued pursuant thereto and published in 32 C.F.R -Part 195, as well as Army Regulations 600 -7, entitled "Nondiscrimination on the Basis of Handicap in Programs and Activities Assisted or Conducted by the Department of the Army ". ARTICLE XI - TERMINATION OR SUSPENSION A. This Agreement shall expire at the time the technical assistance work under this Agreement is completed, and neither the Government nor the Sponsor shall have any further obligations hereunder, except as provided in Article III.C.; provided, that prior to such time and upon thirty (30) days written notice, either party may terminate or suspend this Agreement. In addition, the Government may terminate this Agreement immediately upon failure of the sponsor to fulfill its obligation under Article III. of this Agreement. In the event that either party elects to terminate this Agreement, both parties shall conclude their activities relating to the technical assistance work and proceed to a final accounting in accordance with article III.C. of this Agreement. Upon termination of this Agreement, all data and information generated as part of this Agreement shall be made available to both parties. B. Any termination of this Agreement shall not relieve the parties of liability for any obligations previously incurred, including the costs of closing out or transferring any existing contracts. ARTICLE XII - FUTURE AGREEMENTS Nothing in this Agreement is intended to obligate either party to enter into further agreements for engineering and design, construction or implementation of the technical assistance work that is subject of this Agreement. However, subject to the availability of appropriations, and subject to written agreement of the parties, further such activities may be undertaken, in accordance with the policies of the Government in effect at that time. ^,RTICLL ;:Ill LIl,1IT ^,TIC:'; 1-IN COVEP.' "1,1-1 A CI;LIG�I I 11") The Government's financial obligation for all activities undertaken under Section 1 16(d) of Public Law 101 -640, as amended, is limited to $3,000,000, including those activities contemplated under this Agreement. Notwithstanding any provision of this Agreement or the Agreement between the Government and the City of Sierra Madre, the Sponsor shall be responsible for all costs of technical assistance for the City of Arcadia if Government funds for all Section 1 I6(d) activities are exhausted. The Government shall provide a written notice to the Sponsor if it determines that this eventually may occur. Should all Government funds appropriated pursuant to Section I I6(d) be exhausted, in lieu of completing technical assistance work at its own expense, the Sponsor may, at its option, elect to terminate the technical "assistance work in accordance with Article XI of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement, which shall become effective upon the date it is signed by the District Engineer for the U.S. Army Corps of Engineers, Los Angeles District. DEPARTMENT OF THE ARMY CITY OF ARCADIA BY BY Colonel, Corps of Engineers 66 I vacic, ayor District Engineer Los Angeles District Attachment - Scope of Work APPROVED AST RM� By „�� -�_ �/'�/ Michael H. Miller Arcadia City Attorney CERTIFICATION REGARDING LOBBYING The undersigned certifies, to the best of his or her knowledge and belief that: (1) 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 contact, 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 P,: li{ c ,,.—. c.` a::; Fcc'.cral cc..t.,.cI Brant, loam c: c �Y�.ati , c (2) 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 an 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, "Disclosure Form to Report Lobbying," in accordance with its instructions. (3) The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. -41 1,4 1 Ga6KovacfC1 Mayor City of Arcadia CERTIFICATE OF AUTHORITY I, Michael H. Miller, do hereby certify that I am the principal legal officer of the City of Arcadia, that the City of Arcadia is a legally constituted public body with full authority and legal capability to perform the terms of the Agreement between the Department of the Army and the City of Arcadia in connection with the Design of Water Infrastructure Improvement Funds, and to pay damages in accordance with the terms of this Agreement, if necessary, in the event of the failure to perform, as required by Section 221 of Public Law 91 -611 (42 USC Section 1962d -5b), and that the persons who have executed this Agreement on behalf of the City of Arcadia have acted within their statutory authority. IN «,T l T.mcr �t�r?r.n�r.nF T 1 ., dc ^ d c� -' '1 ;, -, cc,tc _tio.; C' i;_ day of y J % ` 1998. u Michael H.Miller City Attorney