HomeMy WebLinkAboutRES.1909.08-04-20030
BILL NO. 03-135
RESOLUTION NO. 19
A RESOLUTION AUTHORIZING THE CITY MANAGER TO
EXECUTE A LAW ENFORCEMENT PERSONNEL
REIMBURSEMENT AGREEMENT WITH THE UNITED
STATES GOVERNMENT ON BEHALF OF THE
TRANSPORTATION SECURITY ADMINISTRATION
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 execute a
Law Enforcement Personnel Reimbursement Agreement with the United
States Government on behalf of the Transportation Security
Administration. A copy of said Agreement is attached to this
Resolution and made a part hereof.
PASSED AND ADOPTED THIS �_ DAY OF C- 20
ATTEST:
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Gayle L. Conrad, City Clerk
Jay B Knudtson, Mayor
Agreement Number: DTSA20-03-P-01422
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LAW ENFORCEMENT PERSONNEL
REIMBURSEMENT AGREEMENT
BETWEEN THE
TRANSPORTATION SECURITY ADMINISTRATION AND THE
CITY OF CAPE GIRARDEAU, MISSOURI
DEPARTMENT OF HOMELAND SECURITY
TRANSPORTATION SECURITY ADMINISTRATION
REIMBURSEMENT AGREEMENT BETWEEN
THE TRANSPORTATION SECURITY ADMINISTRATION AND
CITY OF CAPE GIRARDEAU, MISSOURI
REGARDING LAW ENFORCEMENT SERVICES AT
CAPE GIRARDEAU MUNICIPAL AIRPORT (CGI)
I. PARTIES
The parties to this Reimbursement Agreement (RA) or otherwise referred to herein as
"Agreement" are the Transportation Security Administration(TSA) and the City of Cape
Girardeau, Missouri.
II. BACKGROUND
On November 19, 2001, the President and Congress enacted the Aviation and Transportation
Security Act (ATSA), P.L. 107-71, 115 Stat. 597, which established TSA as a new agency within
the Department of Transportation(DOT). ATSA recognized the importance of security for all
forms of transportation and related infrastructure facilities. Moreover, ATSA grants broad
authority to the Administrator of the Transportation Security Administration to oversee the
security of aviation and transportation systems of the United States, including the deployment of
law enforcement personnel (LEO) authorized to carry firearms at each airport security passenger-
screening location to ensure passenger safety and national security. See 49 U.S.C. §§ 44901(g)
and 44903(h).
On November 25, 2002, the President and Congress enacted the Homeland Security Act of 2002,
P.L. 107-296, 116 Stat. 2135, which creates the Department of Homeland Security(DHS).
Pursuant to Section 1502 of the Homeland Security Act the President submitted a reorganization
plan on November 25, 2002, which included transfer of TSA to the new DHS on or about March
1, 2003. Section 403 (2) of the Homeland Security Act transferred the functions of the
Transportation Security Administration, including the functions of the Under Secretary of
Transportation for Security to the Secretary of the Department of Homeland Security. On March
1, 2003, TSA transferred to DHS and the Secretary of the Department of Homeland Security
delegated to the Administrator of the Transportation Security Administration his authority under
Sections 403(2) and 423 of the Homeland Security Act. Transfer of TSA to DHS did not affect
the duties and missions of TSA addressed by this RA.
On February 20, 2003, the Consolidated Appropriations Resolution FY 2003, P.L. 108-7, (117
Stat. 11)was enacted providing for fiscal year 2003 appropriations. Section 351 of P.L. 108-7
created a new Section 44922 of Title 49 United States Code. 49 U.S.C. § 44922(f)provides
authority for the Under Secretary(now the"Administrator"of the TSA)to "allow law
enforcement personnel to be stationed other than at the airport security screening location if that
would be preferable for law enforcement purposes and if such personnel would still be able to
provide prompt responsiveness to problems occurring at the screening location."
III. AUTHORITY
Pursuant to the authority of ATSA, the Under Secretary(now Administrator) is authorized to
order the deployment of law enforcement personnel authorized to carry firearms at each airport
security passenger-screening checkpoint to ensure passenger safety and national security. See 49
U.S.C. §§ 114(f); 44901(g); 44903(h). Further, the Administrator has authority to order the
deployment of a minimum level of LEOs at each airport security passenger-screening
checkpoint. Id. For the 100 largest airports in the United States, the Administrator may order
the deployment of additional law enforcement personnel at airport security passenger-screening
checkpoint if the Administrator determines that the additional deployment is necessary to ensure
passenger safety and national security. Id. In keeping with 49 U.S.C. § 44922(f),the
Administrator may allow law enforcement personnel to be stationed at places other than the
screening checkpoints if TSA determines that the law enforcement personnel will still be able to
provide prompt responsiveness to the screening location. Working with the Airport Authority
and law enforcement authorities, the Administrator may also order the deployment of personnel
at any secure area of the airport to counter a risk to transportation security. 49 U.S.C. §
44903(h).
In addition,pursuant to 49 U.S.C. § 44903(c), each Airport Authority is required to establish an
air transportation security program that provides a law enforcement presence and capability at
the airport that is adequate to ensure the safety of passengers.
Much of the broad authority of the Administrator of the Transportation Security Administration
provided by ATSA and the United States Code has been delegated to the Assistant Administrator
for Aviations Operations and to the Federal Security Directors (FSDs). The powers that have
been delegated to the FSDs include the authority to direct the overall security of aviation, the
security of aircraft and airports and related facilities, and provide oversight for the
implementation of security measures and deployment of law enforcement personnel.
TSA enters into this RA under the authority of 49 U.S.C. §§ 106(m) and 114(m). TSA has
programmatic authority for the activities undertaken in this RA pursuant to 49 U.S.C. §§
114(g), 44901(g), 44903(e) and 44922(f).
The City of Cape Girardeau, Missouri enters into this RA under the authority of the City
Council of the City of Cape Girardeau, Missouri.
IV. SCOPE
A. Purpose
The purpose of this RA is to provide reimbursement (subject to the availability of appropriated
funds) of the salaries of the City of Cape Girardeau, Missouri at the hourly rate, mutually agreed
to by the parties in Appendix A of this RA, for providing qualified law enforcement services on-
site at Cape Girardeau Municipal Airport and to provide law enforcement response to the
security passenger-screening checkpoints in keeping with requirements provided by TSA. This
RA neither guarantees nor forbids reimbursement through other United States Government
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programs that may be available as long as the United States Government does not fund or
reimburse the City of Cape Girardeau, Missouri for the same expenses incurred by the qualified
LEO in performing such services while assigned on-site at the airport to respond to the security
passenger-screening checkpoints at Cape Girardeau Municipal Airport. The City of Cape
Girardeau, Missouri is prohibited from seeking or obtaining double recovery for LEOs services
performed at airports.
B. Contributions of the Parties
(1) Cape Girardeau Municipal Airport is responsible for providing qualified LEOs at airports in
accordance with the most recent version of Security Directive 1542-01-07 (series), or other
subsequent and superseding regulations or documents regarding law enforcement services
regardless of the status of this RA.
(2) TSA agrees to provide reimbursement pursuant to Appendix A for the cost of the qualified
LEOs for on-site response to airport security passenger-screening checkpoints supplied by the
City of Cape Girardeau, Missouri pursuant to the terms of this RA. Reimbursement is subject to
the availability of appropriated funds and compliance with the requirements of the applicable
Security Directive(s), the Airport Security Program, regulations or documents regarding law
enforcement services as noted in Sub article (1) of this Paragraph above. Such appropriated
funds shall cover such LEO services provided to the airport security passenger-screening
checkpoints from execution of this RA while this RA remains in force in accordance with Article
XVI, Effective Date and Term of Agreement, Amendments, and Modifications of this RA or
until such time as this RA is terminated in accordance with Article XVIII, Termination.
C. Resolution of Disagreements
If the City of Cape Girardeau, Missouri does not comply with all of the terms and requirements
of this RA, or if a disagreement arises on the interpretation of the provisions of this RA, or
modifications and/or revisions thereto that cannot be resolved at the operating level, the FSD will
notify the Contracting Officer that a material breach or a need for an interpretation of this RA
has occurred. The Contracting Officer will determine the materiality of the breach and/or
resolution of the interpretation of the RA and the appropriate action(s)that may be taken. The
Contracting Officer's determination and proposed action will be in writing and shall be presented
to the City of Cape Girardeau, Missouri by the Contracting Officer.
A material breach and/or resolution of the interpretation of this RA may result in action by the
Contracting Officer including but not limited to: suspension or termination of the RA;
withholding and/or termination of reimbursement to the City of Cape Girardeau, Missouri;
assessment of a civil penalty against the Airport Authority or other entity or person; and action
may be initiated to modify, suspend, or revoke approval of the Airport Security Program.
If action based on noncompliance is taken, the Contracting Officer's determination of a material
breach and associated action may be appealed to the Director, TSA Office of Acquisition.
Appeals must be submitted in writing to the Director, TSA Office of Acquisition, via the
Contracting Officer within thirty(30) days of receipt of the Contracting Officer's determination
that a material breach of this RA occurred. The appeal shall state the specific basis for
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contesting the Contracting Officer's determination. Should the City of Cape Girardeau,Missouri
have a continuing disagreement with the interpretation of the RA that interpretation may be
appealed in accordance with Article XXI of this RA.
V. FUNDING AND PAYMENT
A. Estimated Costs
The total estimated cost of this RA for fiscal year 2003 shall not exceed $39,981.84 as
reimbursement for the City of Cape Girardeau, Missouri providing the required law enforcement
services on-site at the airport for response to the security passenger-screening checkpoints in
accordance with the terms of this RA, Security Directive 1542-01-07 (series), the Airport
Security Program, or other subsequent and superseding regulations or documents regarding law
enforcement services for aviation security. The total estimated cost of this RA will be revised
annually either by modification of this RA or by purchase order. Reimbursement does not
include reimbursement of any administrative fees or profit. The total estimated cost is
considered to be a ceiling on incurred costs that the City of Cape Girardeau, Missouri may not
exceed(except at its own financial risk)without the written approval of the Contracting Officer.
B. Ceiling on Costs
The ceiling amount of this RA provided by Paragraph A of Article V. $39,981.84 may only be
increased by mutual agreement of the parties. The funds presently available for payment and
allotted to this RA are $39,981.84. It is estimated that this amount is sufficient to support
providing the required law enforcement services on-site at the airport for response to the security
passenger-screening checkpoints in accordance with the terms of this RA, Security Directive
1542-01-07 (series), the Airport Security Program, or other subsequent and superseding
regulations or documents regarding law enforcement services for aviation security and meeting
the level of effort stated in Appendix A from date of award through September 30, 2003.
C. Process for Funding
This RA may be incrementally funded during the fiscal year subject to the availability of Federal
funds. Funds presently available for payment and allotted to this RA are $39,981.84.
PR Number 03-06X280-1422
Accounting Data 05X0508200 2003 102BLEFA212B13CGI000 25305
Amount $39,981.84
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D. Billing Instructions
Invoices shall contain the information listed below. The City of Cape Girardeau,Missouri shall
submit invoices to the following with a full copy to the FSD:
For FedEx or other overnight services:
Tiffany Fabrizio
DOT-FAA/TSA-AMZ-110
FAA Mailroom—Powership
6500 S. MacArthur Blvd., #370
Oklahoma City, OK 73169
For US Mail:
Tiffany Fabrizio
DOT-FAA/TSA-AMZ-110
PO Box 20582
Oklahoma City, OK 73125
Payment for work performed under this RA will be made as soon as possible after receipt of
invoices, subject to review and approval by the Contracting Officer and other TSA designated
representatives. Should any costs reflected on submitted invoices be questioned, the Contracting
Officer may withhold all amounts in question until such time as the costs are determined to be
allowable, allocable, and reasonable.
Invoices shall be submitted no more frequently than monthly and shall only reflect unreimbursed
incurred actual costs accumulated through the City of Cape Girardeau,Missouri normal month-
end accounting cutoff date. City of Cape Girardeau, Missouri invoice formats are acceptable.
However, all invoices shall, as a minimum include the following:
1. Reimbursable Agreement Number—this number appears at the top of the cover
sheet for this RA. The complete number must be provided and will appear in the
following alpha(A)-numeric (N) sequence: DTSA20-03-P-NNNNN
2. Invoice Date
3. Invoice Number
4. Name and Address of Party Requesting Reimbursement
5. Point of Contact, with Address, Telephone, Fax and Email Contact Information
6. Tax Identification Number
7. Period of Service for which Reimbursement is Requested(from and to dates)
8. Description of Services Performed
9. Total Number of Days Billed for Time Period
10. Rate per Hour
11. Supporting Documentation to include Time Sheets, Payroll Reports or Other
Documentation that Substantiates the Amount of Reimbursement Requested
12. Miscellaneous Authorized Reimbursable Expenses
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13. Total Amount of Reimbursement Requested
14. Electronic Funds Transfer(EFT)Banking Information
15. Remittance Address
16. Certification of Requester, including the following language:
This is to certify that the services set forth herein were performed during the
period stated and that incurred costs billed were actually expended.
17. Signature of Requester's Authorized Representative with Date
The Department of Transportation will make payment using the Automatic Clearing House
(ACH)Network, unless the City of Cape Girardeau, Missouri requests a waiver. After award,
but before submitting the first invoice, the City of Cape Girardeau, Missouri shall designate a
financial institution for receipt of electronic funds transfer payments.
Said submission shall be done on a Standard Form 3881 which can be found at
www.gsa.gov/forms. Submit this form to the TSA Finance Office indicated for the receipt of
invoices.
E. Prompt Payment
Notwithstanding any other payment clause in this RA, the Government will make invoice
payments under the terms and conditions specified in this clause. Payment shall be considered as
being made on the day a check is dated or an electronic funds transfer is made. All days referred
to in this clause are calendar days,unless otherwise specified.
(a) Invoice Payments.
(1)For purposes of this clause, invoice payment means a Government
disbursement of monies to the City of Cape Girardeau, Missouri under a contract
or other authorization for supplies or services accepted by the Government. This
includes payments for partial deliveries that have been accepted by the
Government, final payments under T&M and labor-hour contracts, and final cost
or fee payments where amounts owed have been settled between the Government
and the City of Cape Girardeau, Missouri.
(2) Except as indicated in Sub article (a)(3) and Article(c) of this clause, the due
date for making invoice payments by the designated payment office shall be the
later of the following two events:
(i) The 30th day after the designated billing office has received a
proper invoice from the City of Cape Girardeau, Missouri.
(ii) The 30th day after Government acceptance of supplies
delivered or services performed by the City of Cape Girardeau,
Missouri. On a final invoice where the payment amount is subject
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to contract settlement actions, acceptance shall be deemed to have
occurred on the effective date of the contract settlement. However,
if the designated billing office fails to annotate the invoice with the
actual date of receipt, the invoice payment due date shall be
deemed to be the 30th day after the date the City of Cape
Girardeau, Missouri's invoice is dated,provided a proper invoice
is received and there is no disagreement over quantity, quality, or
City of Cape Girardeau, Missouri compliance with contract
requirements.
(3)An invoice is the City of Cape Girardeau, Missouri's bill or written request for
payment under the contract for supplies delivered or services performed. An
invoice shall be prepared and submitted to the designated billing officer specified
in the contract. A proper invoice must include the items listed in Article V,
Paragraph D above. If the invoice does not comply with these requirements, then
the City of Cape Girardeau, Missouri will be notified of the defect within seven
(7) days after receipt of the invoice at the designated billing office. Untimely
notification will be taken into account in the computation of any interest penalty
owed the City of Cape Girardeau, Missouri in the manner described in Sub article
(a)(6) of this clause.
(4)An interest penalty shall be paid automatically by the Government,
without request from the City of Cape Girardeau, Missouri, if payment is
not made by the due date and the conditions listed in subdivisions (a)(4)(i)
through(a)(4)(iii) of this clause are met, if applicable.
(i) A proper invoice was received by the designated billing office.
(ii) A receiving report or other Government documentation
authorizing payment was processed and there was no disagreement
over quantity, quality, or the City of Cape Girardeau, Missouri's
compliance with any contract term or condition.
(iii) In the case of a final invoice for any balance of funds due the
City of Cape Girardeau, Missouri for supplies delivered or services
performed, the amount was not subject to further contract
settlement actions between the Government and the City of Cape
Girardeau, Missouri.
(5) The interest penalty amount, interest rate and the period for which the interest
penalty was computed, will be separately stated by the designated payment office
on the check, in accompanying remittance advice, or, in the case of wire transfers,
by an appropriate electronic data message accompanying the wire transfer. If the
designated billing office failed to notify the City of Cape Girardeau,Missouri of a
defective invoice within the periods prescribed in Sub article(a)(3) of this clause,
then the due date on the corrected invoice will be adjusted by subtracting the
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number of days taken beyond the prescribed notification of defects period. Any
interest penalty owed the City of Cape Girardeau, Missouri will be based on this
adjusted due date. Adjustments will be made by the designated payment office
for errors in calculating interest penalties, if requested by the City of Cape
Girardeau, Missouri.
(i) For the sole purpose of computing an interest penalty that might
be due the City of Cape Girardeau, Missouri, Government
acceptance shall be deemed to have occurred constructively on the
7th day(unless otherwise specified in this contract) after the City
of Cape Girardeau, Missouri delivered the supplies or performed
the services in accordance with the terms and conditions of the
contract, unless there is a disagreement over quantity, quality, or
the City of Cape Girardeau, Missouri's compliance with a contract
provision. In the event that actual acceptance occurs within the
constructive acceptance period, the determination of an interest
penalty shall be based on the actual date of acceptance. The
constructive acceptance requirement does not, however, compel
Government officials to accept supplies or services, perform
contract administration functions, or make payment prior to
fulfilling their responsibilities.
(ii) The following periods of time will not be included in the
determination of an interest penalty:
(A) The period taken to notify the City of Cape
Girardeau, Missouri of defects in invoices
submitted to the Government,but this may not
exceed seven (7) days.
(B) The period between the defects notice and
resubmission of the corrected invoice by the City of
Cape Girardeau, Missouri.
(C)Any period of delay caused by incorrect
electronic funds transfer(EFT) information, in
accordance with the EFT clause of this contract.
(iii) Interest penalties will not continue to accrue after the filing of
a claim for such penalties under Federal Aviation Administration
(TSA) contract disputes resolution procedures. Interest penalties
of less than$1.00 need not be paid.
(iv) Interest penalties are not required on payment delays due to
disagreement between the Government and the City of Cape
Girardeau, Missouri over the payment amount or other issues
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involving contract compliance or on amounts temporarily withheld
or retained in accordance with the terms of the RA. Contract
disputes, and any interest that may be payable, will be resolved in
accordance with TSA contract disputes resolution procedures.
(6) An interest penalty shall also be paid automatically by the designated payment
office, without request from the City of Cape Girardeau, Missouri, if a discount
for prompt payment is taken improperly. The interest penalty will be calculated
as described in Sub article (a)(5) of this clause on the amount of discount taken
for the period beginning with the first day after the end of the discount period
through the date when the City of Cape Girardeau, Missouri is paid.
VI. AUDITS
TSA shall have the right to examine or audit relevant financial records for a period of three (3)
years after expiration of the terms of this RA. City of Cape Girardeau, Missouri must maintain
an established accounting system that complies with generally accepted accounting principles.
A. Audit and Records
As used in this clause,records includes books, documents, accounting procedures and practices,
and other data, regardless of type and regardless of whether such items are in written form, in the
form of computer data, or in any other form.
B. Examination of Costs
This is a labor-hour RA, under which the City of Cape Girardeau, Missouri shall maintain and
the Contracting Officer, Contracting Officer's Representative, or an authorized representative of
the Contracting Officer shall have the right to examine and audit all records and other evidence
sufficient to reflect properly all costs claimed to have been incurred or anticipated to be incurred
directly or indirectly in performance of this RA. This right of examination shall include
inspection at all reasonable times of the City of Cape Girardeau, Missouri offices, or parts of
them, engaged in performing the RA.
C. Cost or Pricing Data
If the City of Cape Girardeau, Missouri is required to submit cost or pricing data in connection
with any invoice or pricing action relating to this RA, the Contracting Officer or an authorized
representative of the Contracting Officer, in order to evaluate the accuracy, and completeness, of
the current cost or pricing data supporting the invoice or pricing action, shall have the right to
examine and audit all of the City of Cape Girardeau, Missouri's records, including computations
and projections, related to:
(1) The proposal for the RA, and or subcontract, modification(s)thereto;
(2) The communications conducted on the proposal(s), including information and data
leading up to and concluding with Appendix A to the RA;
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(3) Pricing of the RA subcontract, or modification; or
(4) Performance of the RA, subcontract or modification.
D. Comptroller General
The Comptroller General of the United States, or an authorized representative, shall have access
to and the right to examine any of the City of Cape Girardeau, Missouri's directly pertinent
records involving transactions related to this RA or a subcontract hereunder.
This Article may not be construed to require the City of Cape Girardeau, Missouri or
subcontractor to create or maintain any record that the City of Cape Girardeau, Missouri or
subcontractor does not maintain in the ordinary course of business or pursuant to a provision of
law.
E. Reports
If the City of Cape Girardeau, Missouri is required to furnish cost, funding, or performance
reports, the Contracting Officer or an authorized representative of the Contracting Officer, shall
have the right to examine and audit the supporting records, invoices, and materials, for the
purpose of evaluating:
(1) The effectiveness of the City of Cape Girardeau,Missouri's policies and procedures
to produce data and invoices compatible with the objectives of these reports;
(2) The actual costs incurred and salaries paid by the City of Cape Girardeau, Missouri of
services performed; and
(3) The accuracy and completeness of the data reported and invoices submitted.
F. Availability
The City of Cape Girardeau, Missouri shall make available at its office at all reasonable times
the records, materials and other evidence described in Articles (A), (B), (C), (D), and(E) of this
clause, for examination, audit, or reproduction, until three (3) years after final payment under this
RA, or for any longer period required by statute or by other clauses of this RA. In addition:
(1) If this RA is completely or partially terminated, the records relating to the work
terminated shall be made available for three (3) years after any resulting final termination
settlement; and
(2) Records relating to appeals under the"Resolution of Disagreements" clause or to
litigation or the settlement of contract disputes arising under or relating to this RA shall
be made available until such appeals, litigation, or contract disputes are finally resolved.
G. Flow Down Clause
The City of Cape Girardeau, Missouri shall insert a clause containing all the terms of Article VI.
of this RA, including this Paragraph(G), in all subcontracts under this RA:
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(1) That are labor-hours;
(2)For which cost or pricing data are required; or
(3) That require the subcontractor to furnish reports as discussed in Article VI. Paragraph(E)
of this RA.
This clause may be altered only as necessary to identify properly the contracting parties and the
Contracting Officer under this RA.
H. Refund of Payments
The Contracting Officer has the right to demand the return of payments made to the City of Cape
Girardeau, Missouri should the Contracting Officer determine that the labor rates used to
calculate invoiced requests for payment exceeds the actual costs incurred and expensed by the
City of Cape Girardeau, Missouri.
VII. CONTRACTING OFFICER'S REPRESENTATIVE
The Contracting Officer will designate a Contracting Officer's Representative(COR) to act as
his or her authorized representative for contract administration functions which do not involve
changes to the scope,performance,price, schedule, or terms and conditions of the RA. The
designation will be in writing, signed by the Contracting Officer, and will set forth the authorities
and limitations of the representative(s)under the RA. Such designation will not contain
authority to sign contractual documents, order contract changes, modify contract terms, or create
any commitment or liability on the part of the Government different from that set forth in the
RA.
The City of Cape Girardeau, Missouri shall immediately contact the Contracting Officer if there
is any question regarding the authority of an individual to act as a representative of the
Contracting Officer under this RA.
The COR for this RA is:
Holley Miller
Transportation Security Administration
TSA Headquarters,East Tower
Floor#10, TSA-7
601 South 12`h Street
Arlington, Virginia 22202
(571) 227-2463
VIII. RECORDS AND RELEASE OF INFORMATION
In the course of service under this RA, LEOs will create records, such as investigative
reports, on behalf of TSA and City of Cape Girardeau, Missouri. These records may
contain Sensitive Security Information. All Sensitive Security Information(SSI), as defined
in 49 CFR Part 1520, shall be handled in accordance with TSA policies and regulations.
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LEOs assigned to work under this RA are subject to the provisions of 49 CFR Part 1520,
Protection of Sensitive Security Information,because they act for, or carry out duties for, or
on behalf of the Airport Authority. SSI may not be disclosed except in accordance with the
provisions of that rule or where TSA otherwise approves.
No LEO may provide testimony or produce records in legal proceedings that contain information
acquired or developed as part of the performance of their duties under this RA, unless TSA has
authorized the disclosure of that information. LEOs will be considered"employees" of TSA for
purposes of the Department of Homeland Security regulations governing the disclosure of
agency information in legal proceedings at 6 CFR Part 5, Subpart C, to the facts relevant to the
legal proceeding,but will not be permitted to disclose sensitive security information, including
non-public information about passenger and baggage screening procedures, or other non-public
aviation security procedures and policies.
IX. LEGAL DOCUMENTS
Any summons, complaint, subpoena, or other legal document served upon a State or local LEO
that is related to a legal proceeding that is in any way connected to, or arose from,his or her
duties under this RA shall be promptly forwarded to the FSD or the FSD's designee for
forwarding to TSA's Field Counsel.
X. PROTECTION OF INFORMATION
The parties agree that they shall take appropriate measures to protect proprietary,privileged, or
otherwise confidential information that may come into their possession as a result of this RA,
including SSI as explained in Article VIII above.
XI. MEDIA
All media releases and other contact with or by media related to this RA and in accordance with
the terms of this RA, Security Directive 1542-01-07 (series), the Airport Security Program, or
other subsequent and superseding regulations or documents regarding law enforcement services
for aviation security shall be referred to the Contracting Officer.
XII. LIABILITY
A. General Allocation of Liability
Unless specifically addressed by the terms of this RA, the parties agree to be responsible for the
negligent or wrongful acts or omissions of their respective employees.
Congress has provided that the exclusive remedy for the negligent or wrongful act or omission of
an employee of the United States government, acting within the scope of his or her employment,
shall be an action against the United States under the Federal Tort Claims Act (FTCA), 28
U.S.C. §§ 1346(b), 2401(b), 2671-2680.
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If state or local LEOs performing duties under this RA are federally deputized or acting under
the direct, day-to-day detailed supervision and control of a federal official, they may be treated
as employees of the Government for FTCA purposes. The United States Department of Justice
(DOJ)determines who is eligible for legal representation by the United States on a case-by-case
basis. TSA, therefore, cannot guarantee that the United States will provide legal representation
to any Federal, state, or local LEO or employee. The weight of authority, however, supports
representation and liability coverage for federally deputized or supervised state or local LEOs
acting within the scope of their federal duties.
Liability for any negligent or willful acts of a deputized state or local LEO, undertaken outside
the terms of Federal employment or deputation, will be the sole responsibility of the respective
employee and agency involved. Liability for violations of Federal constitutional law rests with
the individual pursuant to 42 U.S.C. § 1983 for state officers. However, both state and Federal
officers enjoy qualified immunity from suit for constitutional torts, "insofar as their conduct does
not violate clearly established statutory or constitutional rights of which a reasonable person
would have known." Harlow v. Fitzgerald, 457 U.S. 800 (1982).
B. Federal Supervision and Control of State or Local LEOs
State and local LEOs who have not been federally deputized may be considered employees of
the Federal government for FTCA purposes if they are acting under the direct, day-to-day,
detailed supervision and control of a Federal official pursuant to a written agreement. Federal
supervision over the detailed physical performance of the work is necessary to support FTCA
coverage of state or local LEOs.
C. Request for Representation and Substitution
Under the Federal Employees Liability Reform and Tort Compensation Act of 1998, 28 U.S.C. §
2679(b)(1), the Attorney General or his or her designee may certify that an individual defendant
acted within the scope of his employment at the time of the incident giving rise to the suit. See
28 U.S.C. § 2679(d)(2). The United States can then be substituted for the employee as the sole
defendant; the individual employee is thereby protected from suits in his or her individual
capacity.
If the Attorney General declines to certify that an employee was acting within the scope of
employment, "the employee may at any time before trial petition the court to find and certify that
the employee was acting within the scope of his office or employment." 28 U.S.C. § 2679(d)(3).
State or local LEOs may request representation by the DOJ for civil suits against them in their
individual capacities for actions taken within the scope of federally deputized or supervised
employment. 28 C.F.R. §§ 50.15, 50.16.
An employee may be provided representation"when the actions for which representation is
requested reasonably appear to have been performed within the scope of the employee's
employment and the Attorney General, or his or her designee, determines that providing
representation would otherwise be in the interest of the United States." 28 C.F.R. § 50.15(a).
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Pursuant to 28 C.F.R. § 50.15(a), state or local LEOs should have their supervisor submit a
written request for representation together with all process and pleadings to the appropriate
Federal Security Director,who will promptly provide the originals to the Chief Counsel, TSA
with such information as may be required to clarify the question whether the state or local LEOs
were acting within the course and scope of employment. TSA will then forward the request to
the Civil Division of DOJ together with an agency recommendation concerning scope of
employment and DOJ representation. 28 C.F.R. § 50.15 (a)(3).
XIII. WORKERS' COMPENSATION
City of Cape Girardeau, Missouri personnel injured while acting in the scope of their
employment and performing duties for the Government under this RA are eligible for Federal
workers' compensation if the Secretary of Labor determines that they were engaged in one or
more of the activities described in 5 U.S.C. § 8191. In such circumstances, City of Cape
Girardeau, Missouri personnel are barred from filing tort claims and State workers'
compensation claims against the City of Cape Girardeau, Missouri and against the law
enforcement agency that otherwise employs them on a regular basis.
XIV. OTHER PROVISIONS
Nothing in this RA or any appendix thereto is intended to conflict with current law or regulation
or the directives of DHS, TSA, or any other Executive Department. If a term of this RA or any
appendix thereto is inconsistent with such authority, then that term shall be invalid to the extent
of such inconsistency, but the remainder of that term and all other terms and conditions of this
RA and any appendix thereto shall remain in full force and effect.
XV. RIGHTS AND BENEFITS
Nothing in this RA is intended to diminish or otherwise affect the authority of any agency to
carry out its statutory, regulatory, or other official functions, nor is it intended to create any right
or benefit, substantive or procedural, enforceable at law by any party against the United States,
its agencies or officers, state agencies or officers carrying out programs authorized under Federal
law, or any other person.
XVI. EFFECTIVE DATE AND TERM OF AGREEMENT,AMENDMENTS,AND
MODIFICATIONS
This RA will become enforceable when signed by all parties. The effective date and term of this
RA is June 1, 2003 and shall continue in effect until September 30, 2003, unless terminated
earlier by the parties as provided herein. The termination of this RA by either party does not, in
itself,relieve Cape Girardeau Municipal Airport from compliance with any Federal law, rule,
regulation, or directive in effect.
Changes and/or modifications to this RA shall be in writing and signed by a TSA Contracting
Officer and the City Manager of the City of Cape Girardeau. The modification shall cite the
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subject RA, and shall state the exact nature of the modification. No oral statement by any person
shall be interpreted as modifying or otherwise affecting the terms of this RA.
XVII. OPTION TO EXTEND AGREEMENT
The TSA may elect to continue performance under this RA with the limits and at the rates
specified in Appendix Al through A4 as applicable to this RA. This option provision may be
exercised more than once, but the total extension of performance hereunder shall not exceed five
(5) years. The Contracting Officer may exercise the option by written notice to the City of Cape
Girardeau, Missouri within thirty(30) days of the end of the term of the RA.
XVIII. TERMINATION
In addition to any other termination rights provided by this RA, either party may terminate this
RA at any time prior to its expiration date, with or without cause, and without incurring any
liability or obligation to the terminated party(other than payment of amounts due and owing and
performance of obligations accrued, in each case on or prior to the termination date)by giving
the other party at least thirty(30) days prior written notice of termination. Termination by any
party does not, in itself, relieve Cape Girardeau Municipal Airport from compliance with any
Federal law, rule,regulation, or directive in effect.
In the event of termination or expiration of this RA, any funds that have not been spent or
obligated for allowable expenses prior to the date of termination, and are not reasonably
necessary to cover termination expenses shall be unilaterally de-obligated via a modification to
the purchase order that is issued as a result of this RA.
XIX. ORDER OF PRECEDENCE
In the event of any inconsistency between the terms of the RA or any law, regulation, or Security
Directive, the inconsistency shall be resolved by giving preference in the following order:
(1) Laws, Regulations, Security Directives
(2) This RA, then
(3) The Appendices to this RA
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XX. POINTS OF CONTACT
The contacts of each party to this RA are:
Holley Miller
Contracting Officer's Representative
Transportation Security Administration
TSA Headquarters,East Tower, Floor#10, TSA-7
601 South 12th Street
Arlington, Virginia 22202
Telephone: 571-227-2463
Email: holley.miller@dhs.gov
Holly Hamilton Bolger
Contracting Officer
Transportation Security Administration
TSA Headquarters, West Tower, Floor#4, TSA-17
601 South 12`h Street
Arlington, Virginia 22202
Telephone: (571) 227-3036
Email: holly.bolger@dhs.gov
Stephen C. Strong
Police Chief
City of Cape Girardeau
40 South Sprigg Street
P. O. Box 617
Cape Girardeau, MO 63702-0617
Telephone: (573) 335-1635
Email: sstrong@cityofcapegirardeau.org
The parties agree that if there is a change regarding the information in this Article,the party
making the change will notify the other parties in writing of such change.
XXI. RESOLUTION OF DISAGREEMENTS
Should disagreement arise on the interpretation of the provisions of this RA, or amendments
and/or revisions thereto, that cannot be resolved at the operating level, the area(s) of
disagreement shall be stated in writing by each party and presented to the other party for
consideration. If agreement on interpretation is not reached within thirty(30) days, the parties
shall forward the written presentation of the disagreement to the TSA Assistant Administrator for
Aviation Operations,who shall render a decision regarding the disagreement with the
concurrence of the Director, TSA Office of Acquisition and the TSA Deputy Chief Counsel for
Procurement. This decision shall be final and not subject to further review.
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XXII. APPROVED BY
The Interim City Manager and the TSA represent and warrant that they have full authority to
sign the instant document and bind the parties in question.
Dougl K. Leslie Date
Interim City Manager
City of Cape Girardeau, Missouri
4/(/ 7
Holly H ` ilton Bolger Date
Contra `ing Officer
Transportation Security Administration
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APPENDIX A
BASE YEAR-- FY 2003
(June 1,2003—September 30, 2003)
Total Average On- Reimbursable
Airport Code Site Hours Per Hourly Rate Daily Cost FY 2003 Costs
Day
CGI 12 $27.31 $327.72 $39,981.84
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APPENDIX A-1
OPTION YEAR 1 -- FY 2004
(October 1,2003 —September 30, 2004)
Total Average On- Reimbursable
Airport Code Site Hours Per Hourly Rate Daily Cost FY 2004 Costs
Day
CGI 12 $28.13 $337.56 $123,503.04
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APPENDIX A-2
OPTION YEAR 2 -- FY 2005
(October 1, 2004—September 30,2005)
Total Average On- Reimbursable
Airport Code Site Hours Per Hourly Rate Daily Cost FY 2005 Costs
Day
CGI 12 $28.97 $347.64 $126,888.60
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APPENDIX A-3
OPTION YEAR 3 -- FY 2006
(October 1,2005—September 30, 2006)
Total Average On- Reimbursable
Airport Code Site Hours Per Hourly Rate Daily Cost FY 2006 Costs
Day
CGI 12 $29.84 $358.08 $130,699.20
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APPENDIX A-4
OPTION YEAR 4 -- FY 2007
(October 1,2006—September 30, 2007)
Total Average On- Reimbursable
Airport Code Site Hours Per Hourly Rate Daily Cost FY 2007 Costs
Day
CGI 12 $30.74 $368.88 $134,597.40
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