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HomeMy WebLinkAboutResolution 03-46 09/22/2003 . . . RESOLUTION --..!!.L - ~ AUTHORIZING AND APPROVING AN AGREEMENT BETWEEN THE DEPARTMENT OF THE ARMY AND IDENTIFIED LOCAL GOVERNMENTS FOR THE EUGENE-SPRINGFIELD, OREGON METROPOLITAN WATERWAYS GENERAL INVESTIGATION, FEASIBILITY STUDY WHEREAS, the United States Department of the Army ("Department") has proposed to enter into an Agreement Between The Department Of The Army And Identified Local Governments For The Eugene-Springfield, Oregon Metropolitan Waterways General Investigation, Feasibility Study (the "federal cost-sharing agreement" or"FCSA") with the Local Governments to perform a study (the "Study") of the feasibility of potential enhancement and restoration projects for waterways within the metropolitan areas of Eugene and Springfield, including areas within and outside of the urban growth boundaries of the cities; and WHEREAS, Local Government staff and staff of the Department have met and conferred and reached agreement on a proposed form of an FCSA, a copy whereof, in the form of a draft dated August 6, 2003, and marked Exhibit 1, (the "Draft Agreement") is attached hereto and by this reference incorporated herein; and WHEREAS, although the FCSA contemplates a study the total cost of which will not exceed $8 million, under the terms and provisions of the FCSA, the Local Governments are financially obligated only to the extent that they have agreed upon a budget for a given fiscal year; and WHEREAS, despite the fact that the FCSA requires the Local Governments to be jointly and severally liable for their collective financial and other obligations as Sponsors, the Local Governments intend that, as between and among themselves, the various costs and obligations ofthe Sponsors shall be allocated among them by negotiation and mutual agreement, and Lane County shall be held harmless by Eugene and Springfield from and against any obligation of a Sponsor for which the county has not expressly agreed to be bound; and WHEREAS, representatives of the Local Governments have reached agreement on the terms of an intergovernmental agreement to allocate and apportion, as between and among themselves, the various costs and obligations arising under the FCSA, which agreement is intended to be submitted and reviewed contemporaneously with the FCSA, and to be a condition of approval of the FCSA; and Attachment C, Page 1 of 2 ,-- ..,- e- WHEREAS, the City Manager has submitted a report reviewing the terms of the Draft Agreement and recommending that the Draft Agreement be approved; and WHEREAS, the Council has reviewed the terms ofthe Draft Agreement and is fully informed as to the contents thereof, and has determined that it is in the public interest to enter into the Draft Agreement; NOW THEREFORE, BE IT RESOLVED, that the common Council of the City of Springfield finds and determines that it is in the public interest to enter into the Agreement Between The Department Of The Army And Identified Local Governments For The Eugene-Springfield, Oregon Metropolitan Waterways General Investigation, Feasibility Study; and BE IT FURTHER RESOLVED, that the City Manager is hereby authorized and directed to execute the Intergovernmental Agreement Among Local Sponsors of Federal Cost Sharing Agreement Eugene-Springfield Metropolitan Waterways Feasibility Study substantially in the form of the Draft Agreement, with such changes or amendments thereto as he shall determine to be necessary to effectuate the direction of the Council and give effect to the terms of the Agreement, such determination to be evidenced by his execution ofthe Agreement Between The Department Of The Army And Identified Local Governments For The Eugene-Springfield, Oregon Metropolitan Waterways General Investigation, Feasibility Study. . Adopted by the Common Council of the City of Springfield, Oregon, this 22nd September , 2003. day of Adopted by a vote of ~ for and ~ against. \: ATTEST: WrtQ ~W~ City Record. . REVIEWED &. APPROVED ~~Vi ~ ~\.~ f}.'- -:T::: __ ~-r 2- "2-. \'2c::D'S. c:: ;':IGE OF CITY ATTORNEY Attachment C, Page 2 of 2 Ii;. >~. l . . . - ).y City of Eugene Contract No. 2004-00218 INTERGOVERNMENTAL AGREEMENT AMONG LOCAL SPONSORS OF FEDERAL COST SHARING AGREEMENT EUGENE-SPRINGFIELD METROPOLITAN WATERWAYS FEASIBILITY STUDY AMONG: The City of Eugene, and Oregon municipal corporation (Eugene) AND: The City of Springfield, an Oregon municipal corporation (Springfield) AND: Lane County a political subdivision of the State of Oregon (Lane County) EFFECTIVE DATE: September 30, 2003 RECITALS A. ORS 190.010 provides that units oflocal government, such as Eugene, Springfield and Lane County (the "Local Governments" and parties to this agreement), may enter into agreements for the performance of any and all functions and activities that any party to the agreement, its officers or agents have the authority to perform. B. The United States Department of the Army ("Department") and the Local Governments wish to enter into a federal cost-sharing agreement ("FCSA") to perform a study (the "Study") of the feasibility of potential enhancement and restoration projects for waterways within the metropolitan areas of Eugene and Springfield, including areas within and outside of the urban growth boundaries of the cities. C. The FCSA contemplates that the Study will be accomplished over an unspecified number of years and that the Department and the Local Governments, as the non-federal sponsors ("Sponsors") of the Study shall collaborate to establish the schedules, budgets and responsibilities of each party for the implementation ofthe Study. D. Despite the fact that the FCSA requires the Local Governments to be jointly and severally liable for their collective financial and other obligations as Sponsors, the Local Governments intend that, as between and among themselves, the various costs and obligations of the Sponsors shall be allocated among them by negotiation and mutual agreement, and Lane County shall be held harmless by Eugene and Springfield from and against any obligation of a Sponsor for which the county has not expressly agreed to be bound. E. The objective ofthis agreement (this "Agreement") is to establish the protocol by which the parties shall collaborate to control the timing and implementation ofthe Study and assign and assume separate responsibilities for their obligations as Sponsors under the FCSA. Intergovernmental Agreement - Eugene-Springfield Metropolitan Waterways Study Page 1 .Ii J'1' . AGREEMENT SECTION 1. Incorporation of FCSA; Definitions. (a) Incorporation of FCSA. This Agreement incorporates, forreference only, that Agreement Between the Department ofthe Army and The City of Eugene and The City of Springfield and Lane County for the Eugene-Springfield Metropolitan Waterways General Investigation, Feasibility Study ("FCSA"), a copy of which is appended hereto as Exhibit "A." (b) Definitions. All terms used in this Agreement and not otherwise specifically defined shall have the meanings assigned thereto in the FCSA. SECTION 2. Agreement to Participate in Study. The parties agree to collaborate as Sponsors in the FCSA, subject to the following conditions: (a) Executive Committee and Study Management Team. Each of Springfield and Eugene shall have the right and obligation to appoint an equal number of representatives to the Executive Committee and at least one representative to the Study Management Team. The number of representatives that each city shall appoint to the Study Management Team may vary, from time to . time, but shall be agreed to between Eugene and Springfield. Lane County's right and obligation to appoint a representative to either ofthe Executive Committee or the Study Management Team shall require the joint agreement of all three parties and shall be limited to the time period and purposes agreed to by all three parties. Any representative appointed to the Executive Committee or the Study Management Team shall be the sole employee and agent ofthe appointing Local Government and shall not have the authority to act for, or on behalf of any other Local Government. Each Local Government shall be solely responsible for all costs and expenses ofthe representatives appointed by that Local Government and shall hold the other parties harmless from and against any and all liabilities, costs, expenses and claims arising under or with respect to the representative's appointments and acts. (b) Lane County Review. Notwithstanding the fact that Lane County will not be required to appoint a representative to the Executive Committee or the Study Management Team, Lane County will be entitled to review all records and reports generated under the FCSA and may be asked to respond to any request by Eugene or Springfield for comment on any matter being considered by the Executive Committee. (c) Annual Budget; Change Orders. For the local government budget period that runs from July 1, 2003 to June 30, 2004, the parties shall reach a agreement concerning their respective financial and performance obligations during the federal fiscal period that begins on October 1, 2003 . by November 1,2003. In addition, by November 1,2003 and by November 1 of each ensuing year, the parties shall reach an agreement with the Department concerning the scope of work to be Intergovernmental Agreement - Eugene-Springfield Metropolitan Waterways Study Page 2 -ft' . accomplished under the Study for the ensuing federal fiscal year, the manner in which the work will be accomplished, the budget for the work, the respective responsibilities ofthe Department and each Local Government for providing work-in-kind or cash for the payment of the work, the manner in which Excess Study Costs will be identified and avoided and such other matters as the parties deem necessary to establish their respective responsibilities under the FCSA for the impending federal fiscal year. The budget for the work and the respective obligations of the parties for payment or performance of the work shall be set forth in writing and signed by the representative of each Local Government charged with responsibility for payment or performance and shall become a binding part of this Agreement. Thereafter, the budget for the Study shall not be amended except by a written change order that assigns the respective responsibilities of each party for the change in work or payment therefore and signed by the representative of each party that will be responsible for such payment or performance. (d) Right of Control. Each party covenants and agrees that: (i) As between them, the Local Government that is primarily responsible for the Sponsors' share of a study expense or for the performance of the work shall have the right of final approval of any Sponsors' recommendation concerning that work; . (ii) Each party will oppose any proposal for work to be performed by another party unless that party agrees to perform the work; and (iii) Each party will oppose any proposal that will result in the incurrence of an expenditure unless the parties can agree as to which party will pay for the expenditure. SECTION 3. Term of Agreement. (a) Term of Agreement. The term ofthis Agreement shall commence on the date signed by any two of the parties and shall expire when the FCSA Study is completed, or, if earlier on the date on which only one of the parties to this Agreement is a Sponsor under the FCSA. (b) Withdrawal. A party may terminate its participation in this Agreement with the consent of the other parties, or by withdrawing from participation in the FCSA and in no other way. (c) Survival. A party's liability for obligations incurred under this Agreement shall survive the termination of this Agreement or the party's withdrawal from this Agreement until satisfied or extinguished by payment, performance or the lapse of time. SECTION 4. Status of Personnel and Subcontractors. . (a) Independent Contractors. Each of the parties shall be deemed to be an independent contractor with respect to any Study work-in-kind for which that party assumes responsibility and shall be solely responsible for the engagement, employment, supervision, safety and performance of its employees and subcontractors. Intergovernmental Agreement - Eugene-Springfield Metropolitan Waterways Study Page 3 '1 (b) Employees and Volunteers. Each party shall maintain workers compensation coverage, . including coverage for employers liability for all employees and volunteers assigned to perform work in the Study and shall be solely responsible for the handling and payment of all claims by its employees and volunteers for injury, loss and damages arising out of the Study. The fact that one party may have the right to supervise or direct the activities ofthe employees or volunteers of another party shall not make the supervising party the employer of such employees and volunteers. SECTION 5. Financial Obligations. (a) Separate Liability. Each party agrees to be separately and solely liable for all payment and work-in-kindobligations agreed to by that party during the annual budget planning or upon approval of any change order, and to hold the others harmless from and against any liability for the payment or performance obligations assumed by the party by written agreement during the parties annual budget planning. (b) Appropriations. Each party agrees to continually seek sufficient budget appropriations to satisfy its agreed obligations hereunder. In addition, Springfield and Eugene shall each seek and retain such reserves against unanticipated Study costs as each party deems prudent. (c) Unanticipated Study Costs, If, at any time, the aJ?ount of any payment required to be made by the Sponsors under the FCSA exceeds. the aggregate amount agreed to and approved by the parties, the parties shall first attempt to effect a change order that will eliminate the anticipated . payment. If a change order cannot be accomplished in a sufficient time to avoid a default under the FCSA, Springfield and Eugene shall, to the extent such funds are legally available, each contribute- 50% ofthe unanticipated amount and the parties shall thereafter continue to work to either reduce the overall costs ofthe Study and/or to determine the manner in which the amount ofthe unanticipated payment, and any related interest earnings, should be re-allocated among the parties. (d) Commingling of Funds. The parties may agree to commingle funds in an escrow or other interest earning account pending expenditure for Study costs under any arrangement that the parties deem reasonable for the allocation of expenditures and earnings. SECTION 7. Indemnification. Subject to applicable limitations under the Oregon Constitution and statutes, including but not limited to the Oregon Tort Claims Act, each party hereto agrees to hold harmless, defend and indemnify the other parties to this agreement, and their elected officials, officers and employees from and against any and all claims, actions, liabilities, costs, including attorney fees and other costs of defense arising from or as a result of the wrongful acts of its own officials, officers and employees hereunder. In addition to the foregoing, each party shall hold each other party harmless from and against all claims, actions, liabilities, costs, including attorney fees and other costs of defense arising out of or resulting from injury to or claims by such party's employees and volunteer, including claims alleging wrongful supervision by another party, subject to applicable legal limitations. . Intergovernmental Agreement - Eugene-Springfield Metropolitan Waterways Study Page 4 ~, , " -, . SECTION 8. Special Disclaimer of Lane County. . . Notwithstanding any other provision of this Agreement, Lane County's participation as a Sponsor shall be limited. Lane County, at its sole discretion, may provide staff participation to attend meetings, and review documents. Lane County will not otherwise be obligated to participate, absent a written modification of this agreement. The City of Eugene and the City of Springfield each recognize that the FCSA imposes obligations upon the Sponsors. In consideration of Lane County becoming a Sponsor of the study, Eugene and Springfield do jointly and severally agree to save, defend, and hold Lane County harmless from any obligation, claim, or suit, under or resulting from that agreement, whether monetary or non-monetary, and whether claimed, charged, or alleged to be payable to the Government, another sponsor, or a third party. This defense, indemnification and hold harmless agreement shall be limited only to the extent required by the Oregon Constitution and the Oregon Tort Claims Act. Before Lane County may participate in the Study or as a Sponsor in any way that would require payment or performance by Lane County or its agents, Eugene and Springfield may require Lane County to amend this Section 8 to provide for Lane County's liability for responsibility for its voluntary undertaking. SECTION 9. Compliance with Laws Each of the parties intends and agrees that it will conduct all activities related to the Study in full compliance with all state, federal and local laws, including all applicable provisions ofORS 279.312, 279.314,279.316,279.320, and 279.350. SECTION 10. Counterparts This agreement may be executed in one or more counterparts each of which, when accompanied by the executed counterparts of the parties, shall constitute a fully executed original ofthis agreement. City of Springfield City of Eugene By: (i~~ ~B: ~~ k' t - p';;;; I9';"e: C ~I-I'-" ~ ~ ~ Dennis M. Taylor ~ Print Title: F\C\' ~ C R"-( M A~~'-En. City Manager Date: <'I \ '2 b 1'2 =" c;'V!cWFD ~ AP~~~VED If 'l-folO ) Lane County /":\.'-0 FOF;M _ __~~ ,-',- ~ llU"'> l'T-\ . r I J 9)(irE:-- ... \ "2 b \ l..:l~ W~q U~-O-FlC-ITY~\T!{ORNEY Print Name: Print Title: APPROVED AS Tn FORM IntergOVffi1.al~~l}~Jff;;&~.,f~~~~~~~Pringfield Metropolitan Waterways Study _1&~_~ ',)F~iCt OF LEG,l;,l COUNSEL By: Date: 0; - d &'-03 Page 5 " j/ 1:',.., . AGREEMENT BETWEEN THE DEPARTMENT OF THE ARMY AND THE CITY OF EUGENE AND THE CITY OF SPRINGFIELD AND LANE COUNTY FOR THE EUGENE-SPRINGFIELD, OREGON METROPOLITAN WATERWAYS GENERAL INVESTIGATION, FEASIBILITY STUDY THIS AGREEMENT is entered into this 30th day, of September, 2003, by and between the Department of the Army (hereinafter the "Government"), represented by the U.S. Army Engineer, Portland District (hereinafter the District Engineer ), and the City of Eugene, Oregon, represented by Dennis Taylor, and the City of Springfield, Oregon, represented by Michael A. Kelly, and Lane County, represented by Bill Van Vactor (hereinafter the "Sponsors"). - . WITNESSETH, that WHEREAS, the Congress has authorized or requested a study of Amazon Creek, to include a comprehensive watershed review of the Willamette River Basin with particular emphasis on the watersheds in and around the Eugene-Springfield Metropolitan Area, pursuant to the Senate resolution for the Willamette River Basin Comprehensive Study, November 15, 1961, and House resolution for the Willamette Basin Review Study, September 8, 1988; and WHEREAS, the Government has conducted a reconnaissance study of Amazon Creek and a comprehensive review of the Willamette River Basin with particular emphasis on the watersheds in and around the Eugene-Springfield Metropolitan Area, and has detern1ined that further study in the nature ofa"Feasibility Phase Study" (hereinafter the "Study") is required to fulfill the intent of the study authority and to assess the extent of the Federal interest in participating in a solution to the identified problem; and WHEREAS, Section 105 of the Water Resources Development Act of 1986, Public Law 99-662, as amended, specifies the cost sharing requirements applicable to the Study; and WHEREAS, the Sponsors have the authority and capability to furnish the cooperation hereinafter set forth and are willing to participate in study cost sharing and financing in accordance with the tenns of this Agreement; and . WHEREAS, the Sponsors and the Government understand that entering into this Agreement in no way obligates any party to implement a project and that whether the Government supports a project authorization and budgets it for implementation depends upon, among other things, the outcome of the Study and whether the proposed solution is consistent with the Economic and Environrnental Principles and Guidelines for Water and Related Land Resources .Implementation Studies and with the budget priorities of the Administration. . NOW THEREFORE, the parties agree as follows: ARTICLE I - DEFINITIONS For the purposes of this Agreement: A. The term "Study Costs" shall mean all disbursements by the Government pursuant to this Agreement, from Federal appropriations or from funds made available to the Government by the Sponsors, and all negotiated costs of work performed by the Sponsors pursuant to this Agreement. Study Costs shall include, but not be limited to: labor charges; direct costs; overhead expenses; supervision and administration costs; the costs of participation in Study Management and Coordination in accordance with Article IV of this Agreement; the costs of contracts with third parties, including termination or suspension charges; and any tennination or suspension costs (ordinarily defined as those costs necessary to terminate ongoing contracts or obligations and to properly safeguard the work already accomplished) associated with this Agreement. B. The tenn estimated Study Costs shall mean the estimated cost of perf orn1ing the Study as of the effective date of this Agreement, as specified in Article Ill.A. of this Agreement. C. The tern1 excess Study Costs shall mean Study Costs that exceed the estimated Study Costs and that do not result from mutual agreement of the parties, a change in Federal law that increases the cost of the Study, or a change in the scope of the Study requested by the Sponsors. . D. The term "Study Period" shall mean the time period for conducting the Study, commencing with the release to the U.S. Army Corps of Engineers, Portland District of initial Federal feasibility funds following the ex..ecution of this Agreement and ending when the Assistant Secretary of the Arn1Y (Civil Works) submits the feasibility report to the Office of Management and Budget (OMB) for review for consistency with the policies and programs of the President. E. The term "PMP" shall mean the Project Management Plan, which is attached to this Agreement and which shall not be considered binding on any party and is subject to change by the Government, in consultation with the Sponsors. F. The tenn "negotiated costs" shall mean the costs of in-kind services to be provided by the Sponsors in accordance v/ith the PMP. G. The term "fiscal year" shall mean one fiscal year of the Government. The Government fiscal year begins on October 1 and ends on September 30. . 2 . . . ARTICLE II - OBLIGATIONS OF PARTIES A. The Government, using funds and in-kind services provided by the Sponsors and funds appropriated by the Congress of the United States, shall expeditiously prosecute and complete the Study, in accordance with the provisions of this Agreement and Federal laws, regulations, and policies. B. In accordance with this Article and Articles ULA., IlI.B. and lILe. of this Agreement, the Sponsors shall contribute cash and in-kind services equal to fifty (50) percent of Study Costs other than excess Study Costs. The Sponsors may, consistent with applicable law and regulations, contribute up to 50 percent of Study Costs through the provision of in-kind services. The in-kind services to be provided by the Sponsors, the estimated negotiated costs for those services, and the estimated schedule under which those services are to be provided are specified in the PMP. Negotiated costs shall be subject to an audit by the Government to determine reasonableness, allocability, and allowability. e. The Sponsors shall pay a fifty (50) percent share of excess Study Costs in accordance with Article III.D. of this Agreement. D. The Sponsors understand that the schedule of work may require the Sponsors to provide cash or in-kind services at a rate that may result in the Sponsors temporarily diverging from the obligations concerning cash and in-kind services specified in paragraph B. of this Article. Such temporary divergences shall be identified in the quarterly reports provided for in Article IILA. of this Agreement and shall not alter the obligations concerning costs and services specified in paragraph B. of this Article or the obligations concerning payment specified in Article III of this Agreement. E. If, upon the award of any contract or the performance of any in-house work for the Study by the Government or the Sponsors, cumulative financial obligations of the Government and the Sponsors would result in excess Study Costs, the Government and the Sponsors agree to defer award of that and all subsequent contracts, and performance of that and all subsequent in-house work, for the Study until the Government and the Sponsors agree to proceed. Should the Government and the Sponsors require time to arrive at a decision, this Agreement shall be suspended in accordance with Article X of this Agreement, for a period of not to exceed six months. In the event the Government and the Sponsors have not reached an agreement to proceed by the end of their 6-month period, this Agreement may be subject to termination in accordance with Article X of this Agreement. F. No Federal funds may be used to meet the Sponsors share of Study Costs unless the Federal granting agency verifies in writing that the expenditure of such funds is expressly authorized by statute. . G. The award and management of any contract with a third party in furtherance of this Agreement, which obligates Federal appropriations, shall be exclusively within the control of the Government. The award and management of any contract by the Sponsors with a third party in furtherance of this Agreement which obligates funds of the Sponsors and does not obligate Federal appropriations shall be exclusively within the control of the Sponsors, but shall be subject to applicable Federal laws and regulations. ] . ARTICLE III - METHOD OF PAYMENT A. The Government shall maintain current records of contributions provided by the parties, current projections of Study Costs, current projections of each party's share of Study Costs, and current projections of the amount of Study Costs that will result in excess Study Costs. At least quarterly, the Government shall provide the Sponsors a report setting forth this information. As of the effective date of this Agreement, estimated Study Costs are $3,500,000 and the Sponsors share of estimated Study Costs is $1,750,000. The dollar amounts set forth in this Article are based upon the Government's best estimates, which reflect the scope of the study described in the PMP, projected costs, price-level changes, and anticipated inflation. Such cost estimates are subject to adjustment by the Government and are not to be construed as the total financial responsibilities of the Government and the Sponsors. B. The Sponsors shall provide their cash contribution required under Article ILB. of this Agreement in accordance with the following provisions: 1. For purposes of budget planning, with the exception of the fiscal year commencing on October l, 2003, the Government shall notify the Sponsors by November 1 of each year of the estimated funds that will be required from the Sponsors to meet the Sponsors' share of Study Costs for the upcoming fiscal year. 2. No later than 30 calendar days prior to the scheduled date for the Government's issuance of the solicitation for the first contract for the Study or for the Government's anticipated first significant in-house expenditure for the Study, the Govenm1ent shall notify the Sponsors in writing of the funds the Government determines to be required from the Sponsors to meet their required share of Study Costs for the first fiscal year of the Study. No later than 15 calendar days thereafter, the Sponsors shall provide the Government the full amount of the required funds by delivering a check payable to "F AO, USAED, Portland" to the District Engineer, or verifying to the satisfaction of the Government that the Sponsors have deposited the required funds in an escrow or other account acceptable to the Government, with interest accruing to the Sponsors, or presenting the Government with an irrevocable letter of credit acceptable to the Government for the required funds, or providing an Electronic Funds Transfer in accordance with procedures established by the Government. . 3. For the second and subsequent fiscal years ofthe Study, the Government shall, no later than 60 calendar days prior to the beginning of the fiscal year, notify the Sponsors in writing of the funds the Government determines to be required from the Sponsors to meet their required share of Study Costs for that fiscal year, taking into account any temporary divergences identified under Article 11.0. of this Agreement. No later than 30 calendar days prior to the beginning of the fiscal year, the Sponsors shall make the full amount of the required funds available to the Government through any of the payment mechanisms specified in paragraph B.2. of this Article. 4. The Government shall draw from the funds provided by the Sponsors such sums as the Government deems necessary to cover the Sponsors' share of contractual and in-house financial obligations attributable to the Study as they are incurred. . 4 . 5. In the event the Government detennines that the Sponsors must provide additional funds to meet their share of Study Costs, the Government shall so notify the Sponsors in writing. No later than 60 calendar days after receipt of such notice, the Sponsors shall make the full amount of the additional required funds available through any of the payment mechanisms specified in paragraph B.2. of this Article. C. Within ninety (90) days after the conclusion ofthe Study Period or termination of this Agreement, the Government shall conduct a final accounting of Study Costs, including disbursements by the Government of Federal funds, cash contributions by the Sponsors, the amount of any excess Study Costs, and credits for the negotiated costs of the Sponsors, and shall furnish the Sponsors with the results of this accounting. Within thirty (30) days thereafter, the Government, subject to the availability of funds, shall reimburse the Sponsors for the excess, if any, of cash contributions and credits given over their required share of Study Costs, other than excess Study Costs, or the Sponsors shall provide the Government any cash contributions required for the Sponsors to meet their required share of Study Costs other than excess Study Costs by delivering a check payable to "F AO, USAED, Portland" to the District Engineer or providing an Electronic Funds Transfer in accordance with the procedures established by the Government. . D. The Sponsors shall provide their cash contribution for excess Study Costs as required under Article Il.C. of this Agreement by either: delivering a check payable to "F AO, USAED, Portland" to the District Engineer; or providing an Electronic Funds Transfer in accordance with procedures established by the Government; as follows: L After the project that is the subject of this Study has been authorized for construction, no later than the date on which a Project Cooperation Agreement is entered into for the project; or 2. In the eventthe project that is the subject of this Study is not authorized for construction by a date that is no later than 5 years after the date of the final report of the Chief of Engineers concerning the project, or by a date that is no later than 2 years after the date of the termination of the Study, the Sponsors shall pay their share of excess Study Costs on that date (5 years after the date of the final report of the Chief of Engineers or 2 years after the date of the termination of the Study). ARTICLE IV - STUDY MANAGEMENT AND COORDINATION A. To provide for consistent and effective conm1Unication, the Sponsors and the Government shall appoint named senior representatives to an Executive Committee. Thereafter, the Executive Committee shall meet regularly until the end of the Study Period. B. Until the end of the Study Period, the Executive Committee shall generally oversee the Study consistently with the PMP. . C. The Executive Committee may make recommendations that it deems warranted to the District Engineer on matters that it oversees, including suggestions to avoid potential sources of dispute. The Government in good faith shall consider such recommendations. The Government has the discretion to accept, reject, or modify the Executive Committee's recommendations. 5 . D. The Executive Committee shall appoint representatives to serve on a Study Management Team. The Study'Management Team shall keep the Executive Committee informed of the progress of the Study and of significant pending issues and actions, and shall prepare periodic reports on the progress of all work items identified in the PMP. E. The costs of participation in the Executive Committee (including the cost to serve on the Study Management Team) shall be included in Study Costs and shared in accordance with the provisions of this Agreement. ARTICLE V - DISPUTE RESOLUTION As a condition precedent to a party bringing any suit for breach of this Agreement, that party must first notify the other parties in writing of the nature of the purported breach and seek in good faith to resolve the dispute through negotiation. If the parties cannot resolve the dispute through negotiation, they may agree to a mutually acceptable method of non-binding alternative dispute resolution with a qualified third party acceptable to all parties. The parties shall each pay an equal share of any costs for the services provided by such a third party as such costs are incurred. Such costs shall not be included in Study Costs. The existence of a dispute shall not excuse the parties from performance pursuant to this Agreement. ARTICLE VI - MAINTENANCE OF RECORDS . A. Within 60 days of the effective date of this Agreement, the Government and the Sponsors shall develop procedures for keeping books, records, documents, and other evidence pertaining to costs and expenses incurred pursuant to this Agreement to the extent and in such detail as will properly reflect Study Costs. These procedures shall incorporate, and apply as appropriate, the standards for financial management systems set forth in the Unifoffi1 Administrative Requirements for Grants and Cooperative Agreements to state and local governments at 32 CF.R. Section 33.20. The Government and the Sponsors shall maintain such books, records, documents, and other evidence in accordance with these procedures for a minimum of three years after completion of the Study and resolution of all relevant claims arising therefrom. To the extent peffi1itted under applicable Federal laws and regulations, the Government and the Sponsors shall each allow the other to inspect such books, documents, records, and other evidence. B. In accordance with 31 U.S.C Section 7503, the Government may conduct audits in addition to any audit that the Sponsors are required to conduct under the Single Audit Act of 1984, 31 U.S.C Sections 7501-7507. Any such Government audits shall be conducted in accordance with Government Auditing Standards and the cost principles in OMB Circular No. A-87 and other applicable cost principles and regulations. The costs of Government audits shall be included in Study Costs and shared in accordance with the provisions of this Agreement. ARTICLE VI! - RELA TlONSHIP OF PARTIES . 6 . The Government and the Sponsors act in independent capacities in the perfom1ance of their respective rights and obligations under this Agreement, and neither is to be considered the officer, agent, or employee of the other. ARTICLE VIII - OFFICIALS NOT TO BENEFIT No member of or delegate to the Congress, nor any resident commissioner, shall be admitted to any share or part of this Agreement, or to any benefit that may arise there from. ARTICLE IX - FEDERAL AND STATE LAWS In the exercise of the Sponsors rights and obligations under this Agreement, the Sponsors agree to comply with all applicable Federal and State laws and regulations, including Section 601 of Title VI of the Civil Rights Act of 1964 (Public Law 88-352) and Department of Defense Directive 5500.11 issued pursuant thereto and published in 32 e.F.R. Part 195, as well as Army Regulation 600-7, entitled "Nondiscrimination on the Basis of Handicap in Programs and Activities Assisted or Conducted by the Department of the Army. ARTrCLE X - TERMINATION OR SUSPENSrON . A. This Agreement shall tenninate at the conclusion of the Study Period, and neither the Government nor the Sponsors shall have any further obligations hereunder, except as provided in Article HLe. of this Agreement; provided, that prior to such time and upon thirty (30) days written notice, any party may terminate or suspend this Agreement. In addition, the Government shall terminate this Agreement immediately upon any failure of the parties to agree to extend the study under Article ILE. of this Agreement, or upon the failure of the Sponsors to fulfill their obligation under Article III of this Agreement. In the event that any party elects to terminate this Agreement, the parties shall conclude their activities relating to the Study and proceed to a final accounting in accordance with Article IILe. and III.D. of this Agreement. Upon tern1ination of this Agreement, all data and information generated as part of the Study shall be made available to all parties. B. Any tern1ination of this Agreement shall not relieve the parties of liability for any obligations previously incurred, including the costs of closing out or transferring any existing contracts. . e. In the event that either of the Sponsors elect to terminate its own responsibilities under this Agreement, and the remaining Sponsor elects to continue to participate in the Study, the Government shall negotiate in good faith with the remaining Sponsor to effect a timely and productive conclusion to that portion of the Study pertaining to the remaining Sponsor s area of statutory authority. The Government shall prepare a revised PMP and revised estimated Study Costs, including the remaining Sponsor s share, to complete that portion of the Study of interest to the remaining Sponsor. lfthe remaining Sponsor elects to complete the Study, this Agreement shall be amended to reflect the negotiated revisions to the PMP and Study Costs. Cost amendments to this Agreement made pursuant to this paragraph shall reflect credits for 7 the previous cash and in-kind contributions of all Study Sponsors and shall reflect task reductions made as a result of withdrawal of any Study Sponsor. . ARTICLE XI - 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 either delivered personally or by telegram or mailed by first-class, registered, or certified . mail, as follows: If to the City of Eugene, Oregon: City of Eugene, City Engineer (currently Mark Schoening) 858 Pearl Street Eugene, OR 97401 If to the City of Springfield, Oregon: City of Springfield Public Works Director 225 Fifth Street Springfield, OR 97477 . If to Lane County: Ollie Snowden Lane County, Public Works Director 3040 North Delta Highway Eugene, Oregon 97408 If to the Government: District Engineer USA ED, Portland P.O. Box 2946 Portland, Oregon 97208-2946 (cc: Eric Bluhm, Project Manager, CENWP-PM-FP) 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. . 8 '. . . . IN WITNESS WHEREOF, the parties hereto have executed this Agreement, which shall become effective upon the date it is signed by the District Engineer. DEPARTMENT OF THE ARMY CITY OF EUGENE, OREGON BY: Richard W. Hobernicht Colonel, Corps of Engineers District Engineer Portland District ;;-BY: I ~ \ - fr,' de ~ennis Taylor t- City Manager DATE: DATE: ClTY OF SPRINGFIELD, OREGON LANE COUNTY, OREGON BY: - ~p. 'Y ~.. . C'l~ P\"\~"i\') City Manager .. c '-~ wJJ~q.U~~ BY: Ac\\f'"<':" Bill Van Vactor County Administrator DATE: S E: {\~ <'-" \!.t({ C,_ :l L, - 0 '7 2. b -:l. (::)() -:s \ DATE: APPROVED AS TO FORM Date f- .2 b - 03 lane county. ...._.__~~_ h/ '-~:"Irr. t......:.: . -.:'- "~~-;--El '--'\' .....l. ...... L./. "':'!"'\L '-'-.......,.....::, L.. 9 CERTIFICATE OF AUTHORITY I,Gle...1/V\. K\e.....~ , do hereby certify that I am the principal legal officer of the City of Eugene, Oregon, that the City of Eugene is a legally constituted public body with full authority and legal capability to perform the terms of the Agreement between the Department of the Army, the City of Eugene, the City of Springfield, and Lane County in connection with the Eugene-Springfield, Oregon Metropolitan Waterways General Investigation, Feasibility Study, and that the persons who have executed this Agreement on behalf of the City of Eugene have acted within their statutory authority. IN WITNESS WHEREOF, I have made and executed this certification this )-u~ dayof ~- , ~} 10 . . . . CERTIFICATE OF AUTHORITY ~ 00~O\- I, t) )u..,. ~ l crp,\-'rl, do hereby certi fy that I am-'the principal legal offic<;Sof the City of Springfield, Oregon, that the City of Springfield is a legally constituted public body with full authority and legal capability to perform the terms of the Agreement between the Department of the Am1Y, the city of Eugene, the City of Springfield, and Lane County in connection with the Eugene-Springfield, Oregon Metropolitan Watef\vays General Investigation, Feasibility Study, and that the persons who have executed this Agreement on behalf of the City of Springfield have acted within their statutory authority. IN WITNESS WHEREOF, I have made and executed this certification this 2. G 1'4- day of sc:...{>"t1:.......a~{( , '2 Dc.3 . . . Signature: ~O>'U''->.-~ LQ.P.\~ Pril~l~d name:~ c>.. ~ <,,-",, ..~ Lc::..A~' Full Title: C I"""\' ( \-,,-'0: D-.."\ ~~~ \ 11 CERTIFICATE OF AUTHORITY A1K ivJI. .t'~ /Cj-r:lN</ .4--rr/~/... ( F.(~./1; . /1ft-' /.!rTv4!/1c-7 I, A1,4/2c ~4./cL-L , do hereby certify that I ami-the principal legal officer of Lane County, Oregon, that Lane County is a legally constituted public body with full authority and legal capability to perfoffi1 the terms of the Agreement between the Department of the Army, the city of Eugene, the City of Springfield, and Lane County in connection with the Eugene-Springfield, Oregon Metropolitan Waterways General Investigation, Feasibility Study, and that the persons who have executed this Agreement on behalf of th.:: C:t) &f Springfield have acted within their statutory authority. Lvi:J.z.. ~i.'<-(.I1-d IN WITNESS WHEREOF, I have made and executed this certification this 2 {, day of ~/r , Jot73 . r Signature: ";;;~ ' 0't:~ ~~~ .,/ " _ t' Printed name: /f1:.fJ2 ( 1<-'<t'/.h./c~L-L Full Title: LkV~/ ~.I5 ~~~J . . 12 . 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 ofa 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 Fom1 to Report Lobbying," in accordance with its instructions. . (3) The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. ~. ~ h L-1- ~ City of Eugene, Oregon -- DATE~ v" 1'93 ( . 13 . 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 ofa 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 cOlmection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard FOffi1-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. (3) The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. . This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. ~~ P~10L'r City of Springfield, Oregon DATE: 0, - Z~ - D > . 14 . . . 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 Federalloan~ 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 subawards at all tiers (including subcontracts, sub grants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. ~ CJJfl~q'c)4~ Lane County, Oregon DA TE: ~'~ ~ fa -O'? APPROVED AS TO FORM Date r.- 2 t' - <.;-J lane county .~ h~. --~.:::.~ ~-Y-::7 . CJi';I"'C ,,,",C I E'-t.' CO" 'I~E' .......... ....... - -..J.-"L U '!oJ L. 15