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HomeMy WebLinkAboutRES.1492.08-16-1999BILL NO. 99-190 RESOLUTION NO. A RESOLUTION AUTHORIZING THE CITY MANAGER TO ENTER INTO MEMORANDUM OF AGREEMENT NO. 6 WITH THE U. S. DEPARTMENT OF THE ARMY FOR CONSTRUCTION OF THE DETENTION EXTENSION TRUNK SEWER FOR THE DETENTION RESERVOIR PHASE OF THE CAPE LA CROIX CREEK/WALKER BRANCH FLOOD CONTROL PROJECT. BE IT RESOLVED BY THE COUNCIL OF THE CITY OF CAPE GIRARDEAU, MISSOURI, AS FOLLOWS: ARTICLE 1. The City Manager, for and on behalf of the City of Cape Girardeau, Missouri, is hereby authorized to enter into Memorandum of Agreement No. 6 with the U.S. Department of the Army for construction of Detention Extension Trunk Sewer for the Detention Reservoir phase of the Cape La Croix Creek/Walker Branch Flood Control Project. A copy of said Memorandum of Agreement No. 6 is attached hereto and made a part hereof. PASSED AND APPROVED THIS _ DAY OF - u!4 , 1999. 13 ATTEST: i' 61-4 Gayle Conrad City Clerk MEMORANDUM OF AGREEMENT NO. 6 BETWEEN THE CITY OF CAPE GIRARDEAU, MISSOURI AND THE U.S. ARMY ENGINEER DISTRICT, ST. LOUIS THIS MEMORANDUM OF AGREEMENT entered into this th day of 1999 between the DEPARTMENT OF THE ARMY (hereinafter referred to as "the Government") acting by and through the Assistant Secretary of the Army (Civil Works), and the City of Cape Girardeau, Missouri (hereinafter referred to as "the Local Sponsor") acting by and through the City Manager executing this agreement. WITNESSETH THAT: WHEREAS, on the 25th day of May 1990, a Local Cooperation Agreement (hereinafter referred to as "the LCA") was executed between the Department of the Army, represented by Mr. Robert W. Page, Assistant Secretary of the Army (Civil Works), and the City of Cape Girardeau, Missouri, represented by Mr. J. Ronald Fischer, City Manager; and, WHEREAS, construction of the Cape Girardeau -Jackson Metropolitan Area, Missouri flood control project at Cape Girardeau, Missouri, as defined in Article I.a. of the LCA, was authorized by Section 401.(a) of the Water Resources Development Act of 1986, Public Law 99-662; and, WHEREAS, the LCA covers construction responsibilities and specifies the cost-sharing requirements of the structural flood control and associated recreation features of the authorized project for the Cape Girardeau - Jackson Metropolitan Area, Mo. Project (hereinafter referred to as "the Project"); and, WHEREAS, Article II.d. of the LCA stipulates that the Local Sponsor shall provide all lands, easements, rights-of-way, and excavated material disposal areas and perform all relocations determined by the Government to be necessary for construction of the Project; and, WHEREAS, the Local Sponsor has certified that it cannot effectively perform the Sewer Line construction associated with the Detention Reservoir portion of the project. This Sewer Line construction will be located within project rights-of-way provided by the Local Sponsor for construction of the Detention Reservoir. This item shall hereinafter be referred to as "the Sewer Line construction." The local sponsor has further requested that the Government provide construction services for the Sewer Line construction; and, WHEREAS, the Local Sponsor has prepared design drawings and specifications for the Sewer Line construction. These documents have been incorporated into Plans and Specifications for the Detention Reservoir construction, Government Solicitation No. DACW43-99-B-OOXX, (hereinafter referred to as "Plans and Specifications"); and, WHEREAS, the Government warrants that it has a well qualified, equipped and experienced organization, which is in a position to furnish the services as hereinafter described; and, NOW, THEREFORE, in consideration of the conditions and mutual covenants herein contained, the Local Sponsor and the Government herein agree as follows: 1.0 SERVICES 1.1 The Government shall contract for the Sewer Line construction from Station No. 0+00 to Station No. 99+52.9 as shown in the Plans and Specifications. 2.0 COMPLIANCE WITH LAW 2.1 This Memorandum of Agreement shall be governed by the laws of the United States of America unless otherwise expressed herein. 3.0 SCHEDULE OF PERFORMANCE 3.1 The schedule for completion of this work shall be as set forth in the Plans and Specifications. Delays or suspensions of services performed for the Local Sponsor shall be the sole responsibility of the Government and shall be managed in accordance with the Plans and Specifications. 3.2 Upon completion of tasks and duties to be performed pursuant hereto, the Government shall notify the Local Sponsor in writing of the date of such completion, and request confirmation by the Local Sponsor. Upon receipt of such notice, the Local Sponsor shall, within fifteen (15) calendar days, confirm to the Government in writing that such tasks were satisfactorily completed on the date indicated in said notice OR provide the Government with a written statement listing any portions of tasks not satisfactorily completed. Any task included in the Government's written statement to the Local Sponsor and not listed by the Local Sponsor as unsatisfactorily completed in the listing delivered to the Government within fifteen (15) calendar days of receipt of such notice, shall be deemed satisfactory, completed and accepted by the Local Sponsor. Upon the Local Sponsor's acceptance of the task as completed, the Government's responsibility therefore, shall terminate. 4.0 COMPENSATION 4.1 The Local Sponsor shall, in accordance with Federal regulations, furnish advance payment to an escrow account for the anticipated costs incurred by the Government. This advance payment to perform the Sewer Line construction shall include the following: (a) the total cost for construction of the Sewer Line construction, which includes an estimate of Mobilization and Demobilization cost associated with this work, presently estimated to be $711,000, (b) an additional contingency amount equal to 100 (0.10) of the estimated construction cost in item (a) above ($71,000), (c) an estimated amount for Supervision and Inspection (Construction Management) equal to 8% (0.08) of the estimated construction cost in (a) above ($57,000), and (d) an additional contingency amount equal to 10% (0.10) of the total costs for Construction Management in item (c) above ($6,000). The above contingency amounts, which are to provide funds for unexpected contract modifications and/or claims which arise during construction, will be maintained in the escrow account until needed. 4.2 The Government will notify the Local Sponsor in writing of the amount of advance payment in accordance with the above requirements. Within thirty (30) calendar days after receipt of this notification, the Local Sponsor shall provide said advance payment to an appropriate escrow account established for this purpose. 4.3 After the proposal has been received for the prospective construction contract for the Detention Reservoir, the Local Sponsor shall be contacted to evaluate the total of the proposed cost of the Sewer Line construction, equivalent to the amount prepaid under paragraph 4.1- item (a) above. If it is determined that this total is more than 10% over the amount prepaid under paragraph 4.1 - item (a) above, the local sponsor shall have the prerogative to request that the Government, in accordance with Federal Acquisition Regulations, Cancel the invitation. In the event of a protest, the Government will defend the protest in accordance with its normal procedures and retain all rights to settle or otherwise dispose of the protest. If award of this contract is made, the advance payments described above shall be adjusted using actual proposal amounts. If said adjustment indicates that the Local Sponsor has overpaid the anticipated cost of construction, including a prorata amount of mobilization and demobilization, or construction management, the amount of such overpayment shall be immediately reimbursed to the Local Sponsor. If said adjustment indicates that the Local Sponsor has underpaid the anticipated cost of construction, including a prorata amount of mobilization and demobilization, or construction management, the underpayment amount shall be provided to the Government within thirty (30) days of notice of the amount of underpayment. 4.4 If at any time during the period of construction, the Government determines that additional funds will be needed from the local sponsor to cover the projected cost of the Sewer Line construction or 8% for construction management, the Government shall notify the local sponsor in writing of the additional funds required, and the local sponsor, no later than 30 days from the receipt of such notice, shall make the additional required funds available through the payment mechanism specified in Paragraph 4.1 of this Memorandum of Agreement. At no time shall the Government proceed with construction in such a manner that would cause federal funds to be expended for the items which are the financial responsibility of the local sponsor. 4.5 After completion of the construction contract for the Detention Reservoir, the adjusted payments above shall be finalized with actual construction costs. The actual construction cost shall include a prorata amount of total Mobilization and Demobilization cost as represented by the percentage that the construction cost for the Sewer Line construction, item 4.1(a) above, is of the total cost of all construction work to be performed on the Detention Reservoir, excluding total Mobilization and Demobilization costs. If said finalized cost indicates that the Local Sponsor has overpaid the actual cost of construction and construction management, the amount of such overpayment shall be immediately reimbursed to the Local Sponsor. 4.6 Upon completion of the contract in which the services covered under this Memorandum of Agreement were provided, the Government shall provide the Local Sponsor with a final accounting of actual costs. 4.7 The Local Sponsor shall have the right to conduct an audit, when appropriate, of the Government's records for the Project to ascertain the allowability, reasonableness and allocation of the Government's costs under this Memorandum of Agreement. 5.0 CHANGES 5.1 This Memorandum of Agreement may be modified at any time by written agreement between the parties. 5.2 Any change in the scope of Government services or alternatives or modifications of a task to be performed by the Government and the adjustment of the cost of said service shall be expressly authorized and approved by the Local Sponsor in writing prior to start of the work. 6.0 OFFICIALS NOT TO BENEFIT 6.1 No member of or delegate to Congress, or resident commissioner, shall be admitted to any share or part of this Memorandum of Agreement, or to any benefit that may arise therefrom, but this provision shall not be construed to extend to this contract if made with a corporation for its general benefit. 7.0 COVENANT AGAINST CONTINGENT FEES 7.1 The Local Sponsor warrants that no person or selling agency has been employed or retained to solicit or secure these services upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Local Sponsor for the purpose of securing business. For breach or violation of this warranty, the Government shall have the right to annul this Memorandum of Agreement without liability and recover the full amount of such commission, percentage, brokerage or contingent fee. 8.0 DISPUTES 8.1 Any dispute which arises between the construction contractor and the Government concerning services described herein, shall be managed by the Government using the standard procedures followed for settlement of disputes on construction contracts. The Local Sponsor's views and recommendations shall be considered to the greatest extent possible in the settlement of a dispute, however the final authority for settlement of a dispute shall be vested with the Government. After settlement of such a dispute, the decision shall be reduced to writing and a copy mailed or otherwise furnished to the Local Sponsor. If, within 30 days from the date of receipt of such copy, the Local Sponsor mails or otherwise furnishes to the Government a written appeal addressed to the Government, the decision of the Government shall be reviewed with consideration given to arguments and information provided by the Local Sponsor. At such time a final decision will be rendered. Before any party to this agreement may bring suit in any court concerning an issue relating to this Agreement, such party must seek in good faith to resolve the issue through negotation or other forms of non-binding alternative dispute resolution mutually acceptable to the parties. 9.0 ACCOUNTING SYSTEMS 9.1 The Government shall maintain an accounting system which accounts for costs in accordance with generally accepted accounting principles. The Government must account for costs in a manner consistent with normal accounting procedures. 10.0 AUTHORIZED REPRESENTATIVE AND NOTICES 10.1 All notices or payments required to be provided to either party herein shall be directed U.S. Mail, postage prepaid to. Local Sponsor: City Manager City of Cape Girardeau 401 Independence Street P.O. Box 617 Cape Girardeau, Missouri 63702-0617 Government: Chief, Real Estate Division U.S. Army Engineer District, St. Louis 1222 Spruce Street St. Louis, Missouri 63101-2833 10.2 A party may change the address to which such communications are to be directed by giving written notice to the other party in the manner provided below. 10.3 Any notice, request, demand or other communication made pursuant to this Memorandum of Agreement shall be deemed to have been received by the addressee at such time as it is personally delivered or seven (7) calendar days after it is mailed, as the case may be. IN WITNESS WHEREOF, the parties hereto have executed this Memorandum of Agreement as of the day and year first above written. THE UNITED STATES OF AMERICA BY: Thomas R. Hewlett Chief, Real Estate Division BY: ATTEST: (Seal) CITY OF CAPE GIRARDEAU MICHAEL G. MILLER City Manager