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HomeMy WebLinkAboutRES.764.10-05-1992 f BILL NO. 92-227 RESOLIITION NO. l A RESOLIITION AIITHORIZING THE CITY MANAGER TO EBECIITE A MODIFICATION AGREEMENT TO THE LOCAL COOPERATION AGREEMENT WITH THE DEPARTMENT OF THE ARMY FOR CONSTRUCTION OF THE CAPE GIRARDEAII-JACRSON METROPOLITAN AREA, MISSOURI 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 execute a Modification Agreement to the Local Cooperation Agreement with the Department of the Army for construction of the Cape Girardeau- Jackson Metropolitan Area, Missouri Project. A copy of said Modification Agreement is attached to this Resolution and made a part hereof. , . � j'.. PASSED AND ADOPTED THIS � ' '` DAY OF �"'�� ���`` , 19 ,°'� �„ .�C��, '������`� �i J �]��X�£X�7��X X ATTEST: David S. Limbaugh, Mayor Pro Tem Ju 'e A. Dale, eputy City Clerk MODIFICATION AGREEMENT TO THE LOCAL COOPERATION AGREEMENT BETAEEN THE DEPARTMENT OF THE ARMY AND THE CITY OF CAPE GIRARDEAII, MISSOURI FOR CONSTRIICTION OF THE CAPE GIRARDEAII-JACRSON METROPOLITAN AREA, MISSOIIRI PROJECT THIS MODIFICATION AGREEMENT is entered into this day of , 199 , by and between the DEPARTMENT OF THE ARMY (hereinafter referred to as the "Government") , represented by the Assistant Secretary of the Army (Civil Works) , and the CITY OF CAPE GIRARDEAII, MISSOIIRI (hereinafter referred to as "the Local Sponsor") acting by and through the City Manager. AITNESSETH,` THAT: AHEREAS, by a Local Cooperation Agreement executed between the Government and the Local Sponsor on May 25, 1990 (hereafter referred to as the "Agreement") , the Government and the Local Sponsor are cooperating to implement the Cape Girardeau-Jackson Metropolitan Area, Missouri Project for flood control, as generally described in the Cape Girardeau-Jackson Metropolitan Area, Missouri General Design Memorandum dated May, 1989 as approved August 10, 1989 (hereinafter referred to as the "Project") , which was authorized by Section 401 (a) of the Water Resources Development Act of 1986, Public Law 99-662 in accordance with the Report of the Chief of Engineers dated December 8, 1984; and AHEREAS, the Local Sponsor desires to perform design and construction of certain work (hereinafter referred to as the "Substitute Work" as defined in paragraph A.4 . of this Modification Agreement) in lieu of the ring levee sub-feature of the Cape La Croix Creek Detention feature, as defined in Article I.a. l. (b) of the Agreement, that was intended to protect the existing sewage lagoon located within the impoundment area of the Cape La Croix Creek Detention feature; and WHEREAS, the Government has determined that the Substitute Work is consistent with the purposes of the Project and is a desirable solution, from the environmental and engineering standpoints, to sanitary waste disposal in the vicinity of the Cape La Croix Creek Detention feature; and WHEREAS, the Government has determined that the cost of the ring levee sub-feature of the Cape La Croix Creek Detention 1 feature, for which the Substitute Work would substitute, is $212 , 000; and AHEREAS, Section 215 of the Flood Control Act of 1968, Public Law 90-483 , as amended, provides that the Secretary of the Army may enter into an agreement to credit or reimburse the costs of certain work accomplished by States or political subdivisions thereof, which later is incorporated by the Government into an authorized project, when it is determined that such credit or reimbursement is in the public interest; and AHEREAS, the Secretary of the Army has determined that it is in the public interest to reimburse the Local Sponsor for the cost of the Substitute Work, up to a maximum reimbursable cost of $212, 000, and to include the amount of such reimbursed cost in total Project costs, as defined in Article I.b. of the Agreement, and in the total cost of the structural flood control features, as defined in Article I.b. l. of the Agreement; and AHEREAS, the Government and the Local Sponsor desire to modify the referenced Agreement to provide for accomplishment of the Substitute Work in lieu of the referenced ring levee sub- feature, to provide for reimbursement by the Government to the Local Sponsor for the cost of the Substitute Work up to a maximum reimbursable cost of $212, 000, and to include the amount of such reimbursed cost in the referenced total project costs and total cost of the structural flood control features. NOA, THEREFORE, the parties agree to modify the Agreement in the manner set forth herein, and that the Agreement will remain in effect except as modified herein: A. ARTICLE I - DEFINITIONS, is amended as follows: 1. DELETE paragraph a. as follows: "a. The term "Project" shall mean construction of the structural flood control features, associated recreation features, and separable non-Federal recreation features of the project at Cape Girardeau, Missouri as generally described in the Cape Girardeau-Jackson Metropolitan Area, Missouri, General - Design Memoranda dated May 1989 as approved August 10, 1989. " 2 . ADD a new paragraph a. as follows: "a. The term "Project" shall mean construction of the structural flood control features, associated recreation features, and separable non-Federal recreation features of the project at Cape Girardeau, Missouri as generally described in the Cape Girardeau-Jackson Metropolitan Area, Missouri, General Design Memorandum dated May 1989 as approved August 10, 1989, except that the Project shall include, in lieu of the ring levee 2 sub-feature of the Cape La Croix Creek Detention feature, the Substitute Work as generally described in the "Proposal to Construct Sewer Line Instead of Levee Around Sewage Lagoon, Cape Girardeau-Jackson Metropolitan Area, Missouri, " dated December, 1991 as approved June, 1992 . " 3 . ADD a new paragraph b. as follows: "b. The term "Substitute Work" shall mean the following: installation of a new 21 inch diameter gravity sewer line with a slope of 0. 3 percent to the vicinity of the existing sewage lagoon located within the impoundment area of the Cape La Croix Creek Detention feature; connection of the existing sewage lagoon users (a trailer park) to the new sewer line and system; and testing, cleanup, and removal of the existing sewage lagoon located within the impoundment area of the Cape La Croix Creek Detention feature, including any environmental investigations determined necessary by the Government or the Local Sponsor to identify the existence and extent of any hazardous substances regulated under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) , 42 U.S.C. 9601-9675, on lands exclusively associated with the Substitute Work, including lands that would have been protected by the ring levee sub- feature of the Cape La Croix Creek Detention feature. " 4 . CHANGE the designation of the original paragraphs b. through i. to c. through j . , respectively, to reflect the addition of the new paragraph b. discussed above. 5 . ADD at the end of the newly designated paragraph c. l. the words "The cost of the Substitute Work included in the total cost of the structural flood control features shall neither exceed $212, 000, nor include the value of lands, easements, rights-of-way, and relocations exclusively associated with the Substitute Work, including suitable borrow and excavated material disposal areas. " B. ARTICLE II - OBLIGATIONS OF THE PARTIES, is amended as follows: l. ADD after the word "policies" in the 7th line of paragraph a. the words " , except that the Substitute Work shall be accomplished by the Local Sponsor" . 2 . DELETE the word "he" at the beginning of the fourth line in paragraph b. 3 . ADD the word "the" at the beginning of the fourth line in paragraph b. before the words "Local Sponsor" . 3 4 . ADD in the third line of paragraph e. after the word "Project" the words ", as limited by Article I.c. l. of this Agreement, " . 5. ADD paragraphs n. through v. as follows: "n. The Local Sponsor shall plan, engineer, design, and construct the Substitute Work. "o. The Local Sponsor shall not advertise any contract for the Substitute Work under this Agreement until the Government has approved the designs, plans and specifications, and arrangements for prosecution of the Substitute Work. Not less than 30 calendar days before scheduled advertisement of the contract the Local Sponsor shall submit the designs, plans and specifications, and arrangements for prosecution of the Substitute Work to the Government for review and approval, and shall make any changes thereto that the Government may determine to be necessary to meet the requirements of the Project. If within 30 calendar days after such submittal the Government has not in writing provided required changes, or disapproved the said documents, or requested a time extension, then the said documents will be considered to have been approved. Proposed changes in approved designs, plans and specifications, and arrangements for prosecution of the Substitute Work must be approved by the Government in the same manner in advance of advertisement for the related construction. "p. The Local Sponsor shall not award any contract for the Substitute Work under this Agreement until the Government has reviewed the bids and the proposed provisions of the contract and has approved the contract. Not less than 30 calendar days before scheduled award of the contract the Local Sponsor shall submit the said documents to the Government for review and approval, and shall make any changes thereto that the Government may determine to be necessary to meet the requirements of the Project. If within 30 calendar days after such submittal the Government has not in writing provided the required changes, or disapproved the said documents, or requested a time extension, then the contract will be considered to have been approved. Proposed changes in the proposed provisions of any contract for the Substitute Work must be approved by the Government in the same manner in advance of award of the contract. The cost of the Substitute Work under any contract which has not been approved by the Government shall not be eligible for reimbursement by the Government. "q. The Government shall be authorized to inspect the Substitute Work at any and all times as the Contracting Officer considers necessary. "r. The Government shall perform an inspection of the Substitute Work after the Local Sponsor has notified the 4 Government in writing of the completion of the Substitute Work and has furnished to the Government post-construction as-built drawings. The Government shall approve in writing the completed Substitute Work upon a determination that: "1. The Substitute Work has been performed to the satisfaction of the Government in accordance with this Agreement and is suitable for incorporation into the Project; and "2 . The Substitute Work conforms to the description set forth in Article I.b. of this Agreement; and � "3 . Al1 lands, easements, and rights of way determined by the Government to be needed for the construction, operation, and maintenance of the Cape La Croix Creek Detention feature (including the lands, easements, and rights-of-way that would have been protected by the ring levee sub-feature of the Cape La Croix Creek Detention feature) have been made available to the Government, and the physical construction of the Cape La Croix Creek Detention feature has been initiated. "s. As further specified in Article VI of this Agreement, upon the Local Sponsor' s completion of the Substitute Work and the Government's written approval of the completed Substitute Work, as specified in paragraph r. of this Article, the Government shall, subject to the availability of funds, reimburse the Local Sponsor for the amount of the total cost of the Substitute Work included in the total cost of the structural flood control features, as defined in Article I.c. l. of this Agreement. Such amount shall not exceed $212, 000. This reimbursement in no way obligates the Government to provide additional funding for the Substitute Work or to operate, maintain, repair, replace, or rehabilitate the Substitute Work, which shall be the sole responsibility of the Local Sponsor. "t. The Local Sponsor shall bear all costs of the Substitute Work over and above the amount reimbursed by the Government under paragraph s. of this Article. "u. This Agreement shall not be construed as either committing the Government to assume any responsibility placed upon the Local Sponsor or any other non-Federal entity by the conditions of Project authorization or any other applicable statute or regulation, or as committing the Government to reimburse the Local Sponsor for any work performed by the Local Sponsor if the Project is not undertaken as planned so as to make the said work no longer an integral part of the Project. "v. The Local Sponsor shall comply with all environmental commitments applicable to the Substitute Work in accordance with the Finding of No Significant Impact executed by 5 the District Engineer for the St. Louis District on June 18, 1992 . " C. ARTICLE IZI - LANDS, FACILITIES� AND PIIBLIC LAW 91-646 RELOCATION AS3I3TANCE, is amended as follows: l. ADD the word "Government" after the word "a" in the llth line of paragraph a. 2 . DELETE the words "of the" in the last line of paragraph a. 3 . ADD the words "of that Government" after the word "advertisement" in the last line of paragraph a. D. ARTICLE ID - VALIIE OF LANDS AND FACILITIES, is amended as follows: 1. ADD at the end of paragraph a. the words "; however, the value of lands, easements, and rights-of-way exclusively associated with the Substitute Work, including suitable borrow and excavated material disposal areas and the lands, easements, and rights-of-way that would have been protected by the ring levee sub-feature of the Cape La Croix Creek detention feature, as determined by the Government, shall neither be included in, nor be credited toward the Local Sponsor' s share of, the total cost of structural flood control features" . 2 . ADD at the end of paragraph b. the words " ; however, the costs of relocations exclusively associated with the Substitute Work shall neither be included in, nor be credited toward the Local Sponsor's share of, the total cost of structural flood control features" . E. ARTICLE VI - METHOD OF PAYMENT, is amended as follows: 1. DELETE paragraph a. as follows: "a. The Local Sponsor shall provide, during the period of construction of the Project, the cash payments required under Article II of this Agreement. Total Project costs are presently estimated to be $31, 679, 000 of which $289, 000 represents the separable Non-Federal Recreation Features o� the Project which are to be constructed at 100 percent non-Federal cost. In order to meet the Local Sponsor's share, the Local Sponsor must provide a cash contribution presently estimated to be $1, 533 ,000 for the structural flood control and associated recreation features of the Project. Should the Local Sponsor request that the Government construct the separable non-Federal recreation features of the Project, an additional $289, 000 would be required from the Local Sponsor 30 calendar days prior to the award of the 6 initial construction contract for a total non-Federal cash requirement of $1, 822, 000. The dollar amounts set forth in this Article are based upon the Government' s best estimates which will reflect projection of costs, price level changes, and anticipated inflation. Such cost estimates are subject to adjustments based upon cost actually incurred and are not to be construed as the total financial responsibilities of the Government and the Local Sponsor. " 2 . ADD a new paragraph a. as follows: "a. The Local Sponsor shall provide, during the period of construction of the Project, the cash payments required under Article II of this Agreement. Total Project costs are currently estimated to be $34, 802, 000, of which $320, 000 represents the separable Non-Federal Recreation Features of the Project which are to be constructed at l00 percent non-Federal cost. In order to meet the Local Sponsor's share, the Local Sponsor must provide a cash contribution currently estimated to be $2 , 168, 000 for the structural flood control and associated recreation features of the Project. Should the Local Sponsor request that the Government construct the separable non-Federal recreation features of the Project, an additional $320, 000 would be required from the Local Sponsor 30 calendar days prior to the award of the initial Government construction contract, for a total estimated Local Sponsor cash requirement of $2, 488 , 000. The dollar amounts set forth in this Article are based upon the Government' s best estimates which will reflect projection of costs, price level changes, and anticipated inflation. Such cost estimates are subject to adjustments based upon cost actually incurred and are not to be construed as the total financial responsibilities of the Government and the Local Sponsor. " 3 . ADD a new paragraph i. as follows: "i. Not later than 30 calendar days after Government written approval of the completed Substitute Work as specified in paragraph II.r. of this Agreement, the Government shall, subject to the availability of appropriations, reimburse the Local Sponsor for the amount of the cost of the Substitute Work included in the total cost of the structural flood control features, as defined in Article I.c. l. of this Agreement. Such amount shall not exceed $212, 000. Such reimbursement is subject neither to interest charges, nor to adjustment to reflect changes in price levels between the time the Substitute Work is completed and the time that the reimbursement is afforded. " F. ARTICLE VIII - OPERATION� MAINTENANCE, REPAIR, REPLACEMENT, AND REHABILITATION, is amended to ADD at the end of paragraph a. the words "The Local Sponsor shall be solely responsible for operating, maintaining, repairing, replacing, and rehabilitating the Substitute Work, and the Government shall not be responsible 7 for any costs of operating, maintaining, repairing, replacing, or rehabilitating the Substitute Work. " G. ARTICLE IB - RELEA3E OF CLAIMS, is amended to ADD after the word "Project" the words " (including accomplishment of the Substitute Work by the Local Sponsor) " . _ H. ARTICLE % - MAINTENANCE OF RECORDS, is amended to ADD at the end of the existing paragraph the words "The Local Sponsor hereby agrees to include in any contract for the Substitute Work a provision requiring the contractor and any subcontractor to agree to the same requirements of record keeping and record access. " I. ARTICLE %II - FEDERAL AND STATE LAAS, is amended as follows: 1. ADD the letter "a. " before the existing paragraph. 2 . ADD at the end of the newly designated paragraph a. the words "Any contract awarded by the Local Sponsor for the Substitute Work under this Agreement shall include provisions consistent with all applicable Federal laws and regulations. " 3 . ADD a new paragraph b. as follows: " b. The Local Sponsor shall obtain all required State and Federal permits for accomplishing the Substitute Work, including satisfaction of the applicable requirements of the Federal Water Pollution Control Act, as amended. " J. ARTICLE %DI - TERMINATION OR SIISPENSION, is amended as follows: 1. DELETE paragraph a. as follows: "a. If at any time the Local Sponsor fails to make the payments required under this Agreement, the Secretary of the Army shall terminate or suspend work on the Project until the Local Sponsor is no longer in arrears, unless the Secretary of the Army determines that continuation of work on the Project is in the interest of the United States or is necessary in order to satisfy agreements with any other non-Federal interests in connection with the Project. Any delinquent payment shall be charged interest at a rate, to be determined by the Secretary of the Treasury, equal to 150 per centum of the average bond equivalent rate of the 13-week Treasury bills auctioned immediately prior to the date on which such payment became delinquent, or auctioned immediately prior to the beginning of each additional 3-month period if the period of delinquency exceeds 3 months. " 8 2 . ADD a new paragraph a. as follows: "a. If at any time the Local Sponsor fails to make the payments required under this Agreement, the Assistant Secretary of the Army (Civil Works) shall terminate or suspend work on the Project until the Local Sponsor is no longer in arrears, unless the Assistant Secretary of the Army (Civil Works) determines that continuation of work on the Project is in the interest of the United States or is necessary in order to satisfy agreements with any other non-Federal interests in connection with the Project. Any delinquent payment shall be charged interest at a rate, to be determined by the Secretary of the Treasury, equal to 150 per centum of the average bond equivalent rate of the 13-week Treasury bills auctioned immediately prior to the date on which such payment became delinquent, or auctioned immediately prior to the beginning of each additional 3-month period if the period of delinquency exceeds 3 months. " R. ARTICLE XI% - SECTION 902 PROJECT COST LIMITS, is amended as follows: 1. DELETE the existing paragraph as follows: "The City of Cape Girardeau has reviewed the provisions set forth in Section 902 of P.L. 99-662, as amended, and understands that Section 902 establishes a maximum construction cost for the Project. For purposes of this Agreement, the Section 902 cost limit is $37, 000, 000 as calculated on August 31, 1989 . This amount shall be adjusted to allow for appropriate increases for inflation and changes in the Project cost as provided in Section 902 . Should this cost maximum be reached, no additional funds may be expended on the Project until additional authority is obtained from Congress. " 2 . ADD a new paragraph as follows: "The City of Cape Girardeau has reviewed the provisions set forth in Section 902 of P.L. 99-662 , as amended, and understands that Section 902 establishes maximum total project costs for the authorized project for the Cape Girardeau-Jackson Metropolitan Area, Missouri. For purposes of this Agreement, the Section 902 cost limit is $38, 590, 000, as calculated on May 18, 1992 . This amount shall be adjusted to allow for appropriate increases for inflation and changes in total project costs, as provided in Section 902 . Should this cost maximum be reached, no additional funds may be expended on the authorized project until additional authority is obtained from Congress. " L. ARTICLE S% - HAZARDOIIS SIIBSTANCES, is amended to ADD at the end of paragraph a. after the words "Public Law 99-662" the words " , except that such costs for investigations on lands exclusively associated with the Substitute Work, including the lands that 9 would have been protected by the ring levee sub-feature of the Cape La Croix Creek Detention feature, shall be included in the total cost of the Substitute Work" . M. A NEW ARTICLE XXI is ADDED as follows: "ARTICLE %%I - TIME LIMIT FOR INITIATION OF SIIBSTITIITE AORR "The Local Sponsor shall award the first construction contract for the Substitute Work within one year after the date the first construction contract for the Cape La Croix Creek Detention feature of the Project is awarded. In the event the Local Sponsor does not award the first construction contract for the Substitute Work within the said one-year period, the Government shall proceed with construction of the ring levee sub- feature of the Cape La Croix Creek Detention feature in accordance with Article II.a. of this Agreement, and the obligations of the parties with respect to the Substitute Work shall cease. " IN WITNES3 AHEREOF, the parties hereto have executed this Modif ication Agreement, which shall become effective upon the date it is signed by the Assistant Secretary of the Army (Civil Works) . THE DEPARTMENT OF THE ARMY THE LOCAL SPONSOR BY: BY: NANCY P. DORN J. RONALD FISCHER Assistant Secretary City Manaqer of the Army (Civil Aorks) City of Cape Girardeau DATE: DATE: 10 CERTIFICATION OF AIITHORITY I, , do hereby certify that I am the principal legal officer of the City of Cape Girardeau, Missouri, that the City of Cape Girardeau, Missouri is a legally constituted public body with full authority and legal capability to perform the terms of the Modification Agreement to the Local Cooperation Agreement between the Department of the Army and the City of Cape Girardeau, Missouri in connection with the Project and to pay damages, if necessary, in the event of failure to perform, in accordance with Section 221 of Public Law 91-611, and that the person who has executed this Modification Agreement to the Local Cooperation Agreement on behalf of the City of Cape Girardeau, Missouri, has acted within his statutory authority. IN WITNESS WHEREOF, I have made and executed this certification, this day of , 1992 . Attorney for the City of Cape Girardeau, Missouri 11 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 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. (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 sub- awards at all tiers (including subcontracts, sub-grants, and contracts under grants, loans, and cooperative agreements) and that all sub-recipients 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. J. Ronald Fischer City Manager City of Cape Girardeau Date: 12