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HomeMy WebLinkAboutAGREEMENT BETWEEN DEPARTMENT OF ARMY AND CITY OF AUGUSTA FOR ROCKY CREEK CAP SEC 205 FEASIBILITY STUDY AGREEMENT BETWEEN THE DEPARTMENT OF THE ARMY AND CITY OF AUGUSTA, GEORGIA FOR THE ROCKY CREEK CAP SEC. 205 FEASIBILITY STUDY THIS AGREEMENT is entered into this J ' day of /l 607 by and between the Department of the Army (hereinafter the "Government "), rep esented by the U.S. Army Engineer, Savannah District and City of Augusta, Georgia (hereinafter the "Non- Federal Sponsor "), represented by the Mayor of the City of Augusta, Georgia. WITNESSETH, THAT: WHEREAS, the Government received a letter, dated August 15, 2013, from the City of Augusta, Georgia, in which it stated its desire to participate in a feasibility study for flood risk management at City of Augusta, Georgia, and in which it acknowledged its financial responsibilities for the study and a project, if one is recommended; WHEREAS, the Secretary of the Army is authorized by Section 205 of the Flood Control Act of 1948, Public Law 80 -858, as amended (33 U.S.C. 701s; hereinafter "Section 205 ") to allot from certain appropriations an amount not to exceed $55,000,000 per fiscal year for the implementation of small structural and nonstructural projects for flood control and related purposes; provided that no more than $7,000,000 shall be allotted for a project at any single locality; WHEREAS, the Non - Federal Sponsor desires to provide in -kind contributions (hereinafter the "in -kind contributions" as defined in Article I.I. of this Agreement) that are necessary to prepare the feasibility report and to receive credit for such contributions toward the amount of its required contribution for the Study; WHEREAS, the Non - Federal Sponsor may provide up to 100 percent of its required contribution for the Study as in -kind contributions; WHEREAS, the Government and Non - Federal Sponsor have the full authority and capability to perform as hereinafter set forth and intend to cooperate in cost- sharing and financing of the Study in accordance with the terms of this Agreement; and WHEREAS, the Government and the Non - Federal Sponsor, in connection with this Agreement, desire to foster a partnering strategy and a working relationship between the Government and the Non - Federal Sponsor through a mutually developed formal strategy of commitment and communication embodied herein, which creates an environment where trust and teamwork prevent disputes, foster a cooperative bond between the Government and the Non - Federal Sponsor, and facilitate the successful Study. Non - Federal Sponsor's contribution of funds required by Article II.B.1.b. of this Agreement to financial obligations for the study, as projected by the Government. F. The term "Federal program funds" shall mean funds provided by a Federal agency, other than the Department of the Army, plus any non - Federal contribution required as a matching share therefor. G. The term "fiscal year" shall mean one year beginning on October 1 and ending on September 30. H. The term "PMP" shall mean the project management plan, and any modifications thereto, developed by the Government, and agreed to by the Non - Federal Sponsor, that specifies the scope, cost, and schedule for Study activities and guides the performance of the Study through the period of study. I. The term "in -kind contributions" shall mean planning, supervision and administration, services, materials, supplies, and other in -kind services that are performed or provided by the Non - Federal Sponsor after the effective date of this Agreement in accordance with the PMP and that are necessary for performance of the Study. J. The term "Section 205 Annual Program Limit" shall mean the statutory limitation on the Government's annual allotment for planning, design, and construction of all projects implemented pursuant to Section 205 of the Flood Control Act of 1948, Public Law 80 -858, as amended (33 U.S.C. 701s). As of the effective date of this Agreement, such limitation is $55,000,000. K. The term "fiscal year of the Non - Federal Sponsor" shall mean one year beginning on January 1 and ending on December 31. ARTICLE II - OBLIGATIONS OF THE GOVERNMENT AND THE NON - FEDERAL 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 Non - Federal Sponsor, expeditiously shall conduct the Study, applying those procedures usually applied to Federal projects, in accordance with Federal laws, regulations, and policies. The Non - Federal Sponsor expeditiously shall perform or provide the in -kind contributions in accordance with applicable Federal laws, regulations, and policies. 1. To the extent possible, the Government and the Non - Federal Sponsor shall conduct the Study in accordance with the PMP. 2. The Government shall afford the Non - Federal Sponsor the opportunity to review and comment on all products that are developed by contract or by Government personnel during the period of study. The Government shall consider in good faith the comments of the Non - Federal 3 a. If the Government projects at any time that the collective value of the Non - Federal Sponsor's contributions listed in the next sentence will be less than the Non - Federal Sponsor's required share of 50 percent of total study costs, the Government shall determine the amount of funds that would be necessary to meet the Non - Federal Sponsor's required share without considering the credit the Government projects will be afforded for in -kind contributions pursuant to paragraph B.4. of this Article. The Government shall determine the amount of funds that would be necessary by subtracting from the Non - Federal Sponsor's required share of 50 percent of total study costs the collective value of the Non - Federal Sponsor's contributions under Article III and Article VI of this Agreement. b. The Non - Federal Sponsor shall provide funds in the amount determined by this paragraph in accordance with Article N.B. of this Agreement. To determine the contribution of funds the Non - Federal Sponsor shall provide, the Government shall reduce the amount determined in accordance with paragraph B.1.a. of this Article by the amount of credit the Government projects will be afforded for in -kind contributions pursuant to paragraph B.4. of this Article. 2. The Government, subject to the availability of funds and as limited by paragraph B.5. of this Article and the Section 205 Annual Program Limit, shall refund or reimburse to the Non - Federal Sponsor any contributions in excess of 50 percent of total study costs if the Government determines at any time that the collective value of the following has exceeded 50 percent of total study costs: (a) the Non- Federal Sponsor's contribution of funds required by paragraph B.1.b. of this Article; (b) the amount of credit to be afforded for in -kind contributions pursuant to paragraph B.4. of this Article; and (c) the value of the Non - Federal Sponsor's contributions under Article III and Article VI of this Agreement. 3. The Government shall determine and include in total study costs any costs incurred by the Non - Federal Sponsor for in -kind contributions, subject to the conditions and limitations of this paragraph. The Non - Federal Sponsor in a timely manner shall provide the Government with such documents as are sufficient to enable the Government to determine the amount of costs to be included in total study costs for in -kind contributions. a. Acceptance by the Government of in -kind contributions shall be subject to a review by the Government to verify that all economic, engineering, real estate, and environmental analyses or other items performed or provided as in -kind contributions are accomplished in a satisfactory manner and in accordance with applicable Federal laws, regulations, and policies, and to verify that all analyses, services, materials, supplies, and other in -kind services provided as in -kind contributions are necessary for the Study. b. The Non - Federal Sponsor's costs for in -kind contributions that may be eligible for inclusion in total study costs pursuant to this Agreement shall be subject to an audit in accordance with Article VI.C. of this Agreement to determine the reasonableness, allocability, and allowability of such costs. 5 .......... .. ...... has reached the Section 205 Annual Program Limit, and the Government projects that the Federal funds the Government will make available to the Study within the Section 205 Annual Program Limit will not be sufficient to meet the Federal share of total study costs, the Government shall notify the Non - Federal Sponsor in writing of such insufficiency of funds and of the date the Government projects that the Federal funds that will have been made available to the Study will be exhausted. Upon the exhaustion of Federal funds made available by the Government to the Study within the Section 205 Annual Program Limit, future performance under this Agreement shall be suspended and the parties shall proceed in accordance with Article IX.C. of this Agreement. 3. As of the effective date of this Agreement, $318,950 of Federal funds is currently projected to be available for the Study. The Government makes no commitment to request Congress to provide additional Federal funds for the Study. Further, the Government's financial participation in the Study is limited to the Federal funds that the Government makes available to the Study. D. Upon conclusion of the period of study, the Government shall conduct an accounting, in accordance with Article IV.C. of this Agreement, and furnish the results to the Non - Federal Sponsor. E. The Non - Federal Sponsor shall not use Federal program funds to meet any of its obligations for the Study under this Agreement unless the Federal agency providing the funds verifies in writing that such funds are authorized to be used to carry out the Study. F. This Agreement shall not be construed as obligating either party to implement a project. Whether the Government proceeds with implementation of the project depends upon, among other things, the outcome of the Study and whether the proposed solution is consistent with the Economic and Environmental Principles and Guidelines for Water and Related Land Resources Implementation Studies and with the budget priorities of the Administration. ARTICLE III - STUDY COORDINATION TEAM A. To provide for consistent and effective communication, the Non - Federal Sponsor and the Government, not later than 30 calendar days after the effective date of this Agreement, shall appoint named senior representatives to a Study Coordination Team. Thereafter, the Study Coordination Team shall meet regularly until the end of the period of study. The Government's Project Manager and a counterpart named by the Non - Federal Sponsor shall co -chair the Study Coordination Team. B. The Government's Project Manager and the Non - Federal Sponsor's counterpart shall keep the Study Coordination Team informed of the progress of the Study and of significant pending issues and actions, and shall seek the views of the Study Coordination Team on matters that the Study Coordination Team generally oversees. 7 Non - Federal Sponsor, and are not to be construed as the total financial responsibilities of the Government and the Non - Federal Sponsor. 2. By January and by each quarterly anniversary thereof until the conclusion of the period of study and resolution of all relevant claims and appeals, the Government shall provide the Non - Federal Sponsor with a report setting forth all contributions provided to date and the current projections of the following: total study costs; the value of the Non - Federal Sponsor's contributions under Article III and Article VI of this Agreement the amount of funds determined in accordance with Article II.B.1.a. of this Agreement; the costs included in total study costs for in -kind contributions determined in accordance with Article II.B.3. of this Agreement; the credit to be afforded for in -kind contributions pursuant to Article II.13.4. of this Agreement; the Non - Federal Sponsor's contribution of funds required by Article II.B.1.b. of this Agreement; and the non- Federal proportionate share. B. The Non - Federal Sponsor shall provide the contribution of funds required by Article II.B.1.b. of this Agreement in accordance with the provisions of this paragraph. 1. Not less than 7 calendar days after the effective date of this Agreement, the Government shall notify the Non - Federal Sponsor in writing of the funds the Government determines to be required from the Non - Federal Sponsor to meet its projected share under Article II.B.1.b. of this Agreement. Within 30 calendar days of receipt of such notice, the Non - Federal Sponsor shall provide the Government with the full amount of such required funds by delivering a check payable to "FAO, USAED, Savannah" to the District Engineer, or verifying to the satisfaction of the Government that the Non - Federal Sponsor has deposited such required funds in an escrow or other account acceptable to the Government, with interest accruing to the Non - Federal Sponsor, or by presenting the Government with an irrevocable letter of credit acceptable to the Government for such required funds, or by providing an Electronic Funds Transfer of such required funds in accordance with procedures established by the Government. 2. The Government shall draw from the funds provided by the Non - Federal Sponsor such sums as the Government deems necessary when considered with any credit the Government projects will be afforded for in -kind contributions pursuant to Article II.B.4. of this Agreement, to cover: (a) the non - Federal proportionate share of financial obligations for the study incurred prior to the commencement of the period of study; and (b) the non - Federal proportionate share of financial obligations for the study as financial obligations for the study are incurred. If at any time the Government determines that additional funds will be needed from the Non - Federal Sponsor to cover the Non - Federal Sponsor's share of such financial obligations, the Government shall notify the Non - Federal Sponsor in writing of the additional funds required and provide an explanation of why additional funds are required. Within 60 calendar days from receipt of such notice, the Non - Federal Sponsor shall provide the Government with the full amount of such additional required funds through any of the payment mechanisms specified in paragraph B.1. of this Article. C. Upon conclusion of the period of study and resolution of all relevant claims and appeals, the Government shall conduct a final accounting and furnish the Non - Federal Sponsor with written notice of the results of such final accounting. If outstanding relevant claims and appeals 9 and Cooperative Agreements to State and Local Governments at 32 C.F.R. Section 33.20. The Government and the Non - Federal Sponsor shall maintain such books, records, documents, or other evidence in accordance with these procedures and for a minimum of three years after completion of the accounting for which such books, records, documents, or other evidence were required. To the extent permitted under applicable Federal laws and regulations, the Government and the Non - Federal Sponsor shall each allow the other to inspect such books, records, documents, or other evidence. B. In accordance with 32 C.F.R. Section 33.26, the Non - Federal Sponsor is responsible for complying with the Single Audit Act Amendments of 1996 (31 U.S.C. 7501- 7507), as implemented by 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 Federal 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 Study shall be included in total study costs and shared in accordance with the provisions of this Agreement. C. In accordance with 31 U.S.C. 7503, the Government may conduct audits in addition to any audit that the Non - Federal Sponsor is required to conduct under the Single Audit Act Amendments of 1996. Any such Government audits shall be conducted in accordance with Government Auditing Standards and the cost principles in OMB Circular A -87 and other applicable cost principles and regulations. The costs of Government audits performed in accordance with this paragraph shall be included in total study costs and shared in accordance with the provisions of this Agreement. ARTICLE VII - FEDERAL AND STATE LAWS In the exercise of their respective rights and obligations under this Agreement, the Non - Federal Sponsor and the Government shall comply with all applicable Federal and State laws and regulations, including, but not limited to: Section 601 of the Civil Rights Act of 1964, Public Law 88 -352 (42 U.S.C. 2000d) and Department of Defense Directive 5500.11 issued pursuant thereto and Army Regulation 600 -7, entitled Nondiscrimination on the Basis of Handicap in Programs and Activities Assisted or Conducted by the Department of the Army ". ARTICLE VIII - RELATIONSHIP OF PARTIES A. In the exercise of their respective rights and obligations under this Agreement, the Government and the Non - Federal Sponsor each act in an independent capacity, and neither is to be considered the officer, agent, or employee of the other. 11 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. ARTICLE X - NOTICES A. Any notice, request, demand, or other communication required or permitted to be given under this Agreement shall be deemed to have been duly given if in writing and delivered personally or sent by telegram or mailed by first -class, registered, or certified mail, as follows: If to the Non - Federal Sponsor: City Administrator 530 Greene Street Augusta, Georgia, 30901 If to the Government: Savannah District ATT: CESAS -PM -C 100 W. Oglethorpe Avenue Savannah, Georgia 31401 B. 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 in this Article. C. Any notice, request, demand, or other communication made pursuant to this Article shall be deemed to have been received by the addressee at the earlier of such time as it is actually received or seven calendar days after it is mailed. ARTICLE XI - CONFIDENTIALITY To the extent permitted by the laws governing each party, the parties agree to maintain the confidentiality of exchanged information when requested to do so by the providing party. ARTICLE XII - THIRD PARTY RIGHTS, BENEFITS, OR LIABILITIES Nothing in this Agreement is intended, nor may be construed, to create any rights, confer any benefits, or relieve any liability, of any kind whatsoever in any third person not party to this Agreement. 13