HomeMy WebLinkAboutDepartment of the Army-Cooperation Agreement-02.09.2009 <'v., ?- 9-0 /
COOPERATION AGREEMENT
BETWEEN
THE UNITED STATES OF AMERICA
and
THE CITY OF WATERLOO, IOWA
for
REHABILITATION OF A FEDERAL FLOOD CONTROL WORK
THIS AGREEMENT, entered into thisi day of re,(rfu ur , 2009, by and
between THE DEPARTMENT OF THE ARMY (hereinafter referred to as the "Government")
represented by the District Engineer, Rock Island District, U.S. Army Corps of Engineers, and
the City of Waterloo of Black Hawk County, Iowa, (hereinafter referred to as the "Public
Sponsor"), represented by Mayor Timothy J. Hurley.
WITNES SETH THAT:
WHEREAS, the Government constructed and/or modified a flood control Project (hereinafter
referred to as the Project) authorized by Flood Control Act of 1965, Public Law 89-298, 89th
Congress, 1st Session, approved 27 October 1965, and governed by the Agreement of Local
Assurance dated 22 Septemberl 969 and entitled "ASSURANCES, CEDAR RIVER AT
WATERLOO, IOWA, LOCAL FLOOD PROTECTION PROJECT" which remains in full
effect;
WHEREAS, pursuant to 33 U.S.C. 701n, the Government is authorized to assist in the repair
or restoration of flood control improvements threatened or destroyed by floods;
WHEREAS, via written correspondence, the Public Sponsor has requested that the
Government repair or restore the Project, which was damaged by recent flooding, in accordance
with 33 U.S.C. 701n and established policies of the U.S. Army Corps of Engineers, and,
WHEREAS, the Public Sponsor hereby represents that it has the authority and legal
capability to furnish the non-Federal cooperation hereinafter set forth and is willing to participate
in the rehabilitation effort of the authorized Project in accordance with the terms of this
Agreement;
NOW THEREFORE, the Government and the Public Sponsor agree as follows:
ARTICLE I -DEFINITIONS AND GENERAL PROVISIONS
For purposes of this Agreement:
A. The term "Rehabilitation Effort" shall mean repairing the project to pre-flood conditions:
repairing the railroad closure, adding riprap along a reach of levee, repairing a pump station
outfall channel, and removing accumulated silt in the fifty year bypass channel as generally
described in a report entitled, PROJECT INFORMATION REPORT, PL 84-99
REHABILITATION OF DAMAGED FLOOD CONTROL WORKS, CITY OF WATERLOO,
BLACK HAWK COUNTY, IOWA, prepared by the U.S. Army Corps of Engineers, dated
December 5, 2008 and approved by the Division Engineer on December 9, 2008.
B. The term "Rehabilitation Effort costs" shall mean all costs incurred by the Public Sponsor
and the Government, in accordance with the terms of this Agreement, directly related to
implementation of the Rehabilitation Effort. The term shall include, but is not necessarily
limited to: actual construction costs, including supervision and inspection costs; costs of contract
dispute settlements or awards; and the cost of investigations to identify the existence of
hazardous substances as identified in Article XIIA. The term shall not include any costs for
operation and maintenance; any costs to correct deferred or deficient maintenance; any costs for
betterments; any costs for Public Sponsor-preferred alternatives; or the costs of lands, easements,
rights-of-way, relocations, or suitable borrow and dredged or excavated material disposal areas
required for the Rehabilitation Effort.
C. The term "betterment" shall mean the design and construction of a feature accomplished
on behalf of, or at the request of, the Public Sponsor in accordance with standards that exceed the
standards that the Government would otherwise apply for accomplishing the Rehabilitation
Effort.
ARTICLE II - OBLIGATIONS OF THE GOVERNMENT AND PUBLIC SPONSOR
A. The Government, subject to receiving funds appropriated by the Congress of the United
States, and using those funds (and using funds provided by the Public Sponsor if applicable)
shall expeditiously implement the Rehabilitation Effort, applying those procedures usually
followed or applied in Government construction of Federal projects,pursuant to Federal laws,
regulations, and policies. The Public Sponsor shall be afforded the opportunity to review and
comment on solicitations for all contracts, including relevant plans and specifications, prior to
the issuance of such solicitations. The Contracting Officer will, in good faith, consider the
comments of the Public Sponsor, but award of contracts, modifications or change orders, and
performance of all work on the Rehabilitation Effort (whether the work is performed under
contract or by Government personnel), shall be exclusively within the control of the Contracting
Officer.
B. As further specified in Article III, the Public Sponsor shall provide all lands, easements,
and rights-of-way, including suitable borrow and dredged or excavated material disposal areas,
and perform all relocations determined by the Government to be necessary for construction,
operation, and maintenance of the Project and the Rehabilitation Effort.
C. INTENTIONALLY OMITTED
D. The Public Sponsor shall not use Federal funds to meet its share of total Rehabilitation
Effort costs under this Agreement unless the Federal granting agency verifies in writing that the
expenditure of such funds is authorized by statute.
E. The Public Sponsor shall hold and save the Government free from all damages arising
from the construction, operation, and maintenance of the Rehabilitation Effort and any
2
authorized Project-related betterments, except for damages due to the fault or negligence of the
Government or the Government's contractors.
F. The Public Sponsor agrees to continue to participate in and comply with the policies and
procedures of the U.S. Army Corps of Engineers Rehabilitation and Inspection Program, and of
Title 33, Code of Federal Regulations, Part 208.10 (33 CFR 208.10).
G. The Public Sponsor may request the Government to accomplish betterments. The Public
Sponsor shall be solely responsible for any increase in costs resulting from the betterments and
all such increased costs will be paid in advance by the Public Sponsor.
ARTICLE III - LANDS, RELOCATIONS, AND PUBLIC LAW 91-646
A. The Government shall provide the Public Sponsor with a description of the anticipated
real estate requirements and relocations for the Rehabilitation Effort. Thereafter, the Public
Sponsor shall furnish all lands, easements, and rights-of-way, including suitable borrow and
dredged or excavated material disposal areas, and perform any relocations, as may be determined
by the Government in that description, or in any subsequent description, to be necessary for the
construction, operation, and maintenance of the Rehabilitation Effort and the authorized Project.
The necessary lands, easements, and rights-of-way may be provided incrementally for each
construction contract. All lands, easements, and rights-of-way determined by the Government to
be necessary for work to be performed under a construction contract must be furnished prior to
the advertisement of that construction contract.
B. The Public Sponsor shall comply with the applicable provisions of the Uniform
Relocation Assistance and Real Property Acquisitions Policy Act of 1970, Public Law 91-646, as
amended by Title IV of the Surface Transportation and Uniform Relocation Assistance Act of
1987 (Public Law 100-17), and the Uniform Regulations contained in 49 CFR 24, in acquiring
lands, easements, and rights of way, required for construction, operation, and maintenance of the
Rehabilitation Effort, including those necessary for relocations, borrow materials, and dredged or
excavated material disposal, and shall inform all affected persons of applicable benefits, policies,
and procedures in connection with said Act.
ARTICLE IV - INTENTIONALLY OMITTED
ARTICLE V - INTENTIONALLY OMITTED
ARTICLE VI - OPERATION AND MAINTENANCE
A. After the Contracting Officer has determined that construction of the Rehabilitation
Effort is complete and provided the Public Sponsor with written notice of such determination,
the Public Sponsor shall continue to operate and maintain the completed Rehabilitation Effort as
part of the Project, at no cost to the Government, in accordance with specific directions
prescribed by the Government in Title 33, Code of Federal Regulations, Part 208.10, Engineer
Regulation 500-1-1, and any subsequent amendments thereto.
3
B. The Public Sponsor hereby gives the Government a right to enter, at reasonable times and
in a reasonable manner, upon land that the Public Sponsor owns or controls for access to the
Project for the purposes of inspection, and, if necessary, for the purpose of completing,
operating, and maintaining the Project. If an inspection shows the Public Sponsor for any reason
is failing to fulfill the Public Sponsor's obligations under this Agreement without receiving prior
written approval from the Government, the Government will send a written notice to the Public
Sponsor. If, after 30 calendar days from receipt of such notice, the Public Sponsor continues to
fail to perform, then the Government shall have the right to enter, at reasonable times and in a
reasonable manner, upon lands the Public Sponsor owns or controls for access to the authorized
Project for the purposes of completing, operating, and maintaining the Project. No action by the
Government shall operate to relieve the Public Sponsor of responsibility to meet the Public
Sponsor's obligations as set forth in this Agreement, or to preclude the Government from
pursuing any other remedy at law or in equity to assure faithful performance pursuant to this
Agreement.
ARTICLE VII - FEDERAL AND STATE LAWS
In the exercise of their respective rights and obligations under this Agreement, the Public
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; Army Regulation 600-7, entitled "Nondiscrimination on the Basis of Handicap in
Programs and Activities Assisted or Conducted by the Department of the Army"; and all
applicable Federal labor standards' requirements including, but not limited to, 40 U.S.C. 3141-
3148 and 40 U.S.C. 3701-3708 (revising, codifying and enacting without substantive change the
provisions of the Davis-Bacon Act (formerly 40 U.S.C. 276a et seq.)), the Contract Work Hours
and Safety Standards Act (formerly 40 U.S.C. 327 et seq.) and the Copeland Anti-Kickback Act
(formerly 40 U.S.C. 276c).
ARTICLE VIII - RELATIONSHIP OF PARTIES
The Government and the Public Sponsor act in an independent capacity in the performance
of their respective functions under this Agreement, and neither party will be considered the
officer, agent, nor employee of the other.
ARTICLE IX - OFFICIALS NOT TO BENEFIT
No member of or delegate to the Congress, or resident commissioner, shall be admitted to
any share or part of this Agreement, or to any benefit that may arise there from.
ARTICLE X- COVENANT AGAINST CONTINGENT FEES
The Public Sponsor warrants that no person or selling agency has been employed or retained
to solicit or secure this Agreement upon agreement or understanding for a commission,
percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established
commercial or selling agencies maintained by the Public Sponsor for the purpose of securing
4
business. For breach or violation of this warranty, the Government shall have the right to annul
this Agreement without liability, or, in the Government's discretion, to add to the Agreement or
consideration, or otherwise recover, the full amount of such commission, percentage, brokerage,
or contingent fee.
ARTICLE XI - TERMINATION OR SUSPENSION
If at any time the Public Sponsor fails to carry out its obligations under this Agreement, the
District Engineer shall terminate or suspend work on the Rehabilitation Effort, unless the District
Engineer determines that continuation of work on the Rehabilitation Effort 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 this Rehabilitation Effort. However, deferral of future performance
under this Agreement shall not affect existing obligations or relieve the parties of liability for any
obligation previously incurred. In the event that either party elects to terminate this Agreement
pursuant to this Article, both parties shall conclude their activities relating to the Rehabilitation
Effort and proceed to a final accounting in accordance with the rules and regulations established
by the Government. In the event that either party elects to defer future performance under this
Agreement pursuant to this Article, such deferral shall remain in effect until such time as either
the Government or Public Sponsor elects to proceed with further construction or terminates this
Agreement.
ARTICLE XII - HAZARDOUS SUBSTANCES
A. After execution of this Agreement and upon direction by the Contracting Officer, the
Public Sponsor shall perform, or cause to be performed, such investigations for hazardous
substances as are determined necessary by the Government or the Public 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 necessary to Rehabilitation Effort construction, operation, and maintenance. All actual
costs incurred by the Public Sponsor that are properly allowable and allocable to performance of
any such investigations for hazardous substances shall be included in Rehabilitation Effort costs
and cost shared as a construction cost.
B. In the event it is discovered through an investigation for hazardous substances or other
means that any lands, easements, rights-of-way, or disposal areas to be acquired or provided for
the Rehabilitation Effort contain any hazardous substances regulated under CERCLA, the Public
Sponsor and the Government shall provide prompt notice to each other, and the Public Sponsor
shall not proceed with the acquisition of lands, easements, rights-of-way, or disposal areas until
mutually agreed.
C. The Government and the Public Sponsor shall determine whether to initiate construction
of the Rehabilitation Effort, or, if already in construction, to continue with construction of the
Rehabilitation Effort, or to terminate construction of the Rehabilitation Effort for the
convenience of the Government in any case where hazardous substances regulated under
CERCLA are found to exist on any lands necessary for the Rehabilitation Effort and the
authorized Project. Should the Government and the Public Sponsor determine to proceed or
continue with the construction after considering any liability that may arise under CERCLA, the
5
Public Sponsor shall be responsible, as between the Government and the Public Sponsor, for any
and all necessary clean up and response costs, to include the costs of any studies and
investigations necessary to determine an appropriate response to the contamination. Such costs
shall not be considered a part of the total Rehabilitation Effort costs as defined in this
Agreement. In the event the Public Sponsor fails to provide any funds necessary to pay for clean
up and response costs or to otherwise discharge the Public Sponsor's responsibilities under this
paragraph upon direction by the Government, the Government may either terminate or suspend
work on the Rehabilitation Effort, or proceed with further work as provided in Article XI of this
Agreement.
D. The Public Sponsor and Government shall consult with each other to assure that
responsible parties bear any necessary clean up and response costs as defined in CERCLA. Any
decision made pursuant to paragraph C of this Article shall not relieve any party from any
liability that may arise under CERCLA.
E. As between the Government and the Public Sponsor, the Public Sponsor shall be
considered the operator of the Project (which the Rehabilitation Effort is repairing and restoring)
for purposes of CERCLA liability. To the maximum extent practicable, the Public Sponsor shall
operate and maintain the authorized Project in a manner that will not cause liability to arise under
CERCLA.
ARTICLE XIII - NOTICES
A. All notices, requests, demands, and other communications required or permitted to be
given under this Agreement shall be deemed to have been duly given if in writing and delivered
personally, given by prepaid telegram, or mailed by first-class (postage prepaid), registered, or
certified mail, as follows:
If to the Public Sponsor: If to the Government:
Mayor Timothy J. Hurley U.S. Army Corps of Engineers
City of Waterloo District Engineer
715 Mulberry Street Clock Tower Building
Waterloo, IA 50703 P.O. Box 2004
Rock Island, Illinois 61204-2004
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 such time as it is either personally
delivered, or, seven calendar days after it is mailed, as the case may be.
IN WITNESS HEREOF, the parties hereto have executed this Agreement by their duly
authorized representatives, which shall become effective upon the date it is signed by the District
Engineer.
6
•
THE DEPARTMENT OF THE ARMY
BY:
Robert A. Sinkler
Colonel, US Army
District Engineer
Date
THE CITY OF WATERLOO
BY:
Timo by J. Hurley
Mayor
Date // O
7
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 31 U.S.C. 1352. 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.
DATED this 9 day of Fe,Grru.ar y 2009.
Timothy J. H e ayor
8
PUBLIC LAW 84-99 PROJECT
CITY OF WATERLOO
RIGHT-OF-ENTRY TO UNITED STATES of AMERICA
The City of Waterloo of Black Hawk County, Iowa, by its duly qualified and authorized
officials whose signatures are affixed hereto, in consideration of the benefits and advantages
which will accrue to the city by reason of its participation with the United States in the levee
rehabilitation project authorized by Public Law 84-99 and in accordance with the required
considerations of local cooperation set forth in Assurances executed by the City of Waterloo, on
22 September 1969, does hereby grant to the United States, its officers, employees, agents,
successors and assigns, and the Government contractors, their officers, employees, agents,
successors, and assigns, permission to enter upon the lands, easements, rights-of-way and other
properties of said city, as shown on the attached drawings, for the purposes of constructing said
project.
IN WITNESS WHEREOF, the city has caused its name to be hereunto signed by the
Mayor of the City and attested to by the City Clerk and the corporate seal of said city to be
affixed hereto this 9 day of u4r1 , 2009.
By: Attest:
Timothy J. Hurle , yor Nancy ckert, �►
, Clerk
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PUBLIC LAW 84-99 PROJECT
CITY OF WATERLOO
ATTORNEY'S CERTIFICATE AS TO RIGHT-OF-WAY
I, Jim Walsh, certify that I am the attorney for the City of Waterloo, Iowa and that I am a
duly licensed attorney, qualified and authorized to practice law in the State of Iowa.
I further certify that I have made or caused to be made an examination of the land records
of Black Hawk County, Iowa, as well as the original instruments conveying certain interests to
the City of Waterloo, Iowa. Said real estate interests consisting of property takings required for
project purposes, easements and descriptions of areas required, are attached to and made part of
the Right-of-Entry, granted to the United States of America by the City of Waterloo, Iowa.
From the foregoing examination, I am of the opinion that the City of Waterloo, Iowa is
vested with the real estate interests in said lands necessary for the construction, operation,
maintenance, repair, replacement and rehabilitation of said project. I further certify that the City
of Waterloo, Iowa has the full power and necessary right, title and interest in and to said lands to
grant permission to the United States of America, its officers, employees, agents and assigns to
enter upon the land described above for the purposes therein stated.
Signed and dated at Waterloo, Iowa this 1 day of az 2009.
im Walsh, Attorney