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HomeMy WebLinkAboutMINUTES - 06102003 - C.14 TO BOARD OF SUPERVISORS AS GOVERNING BOARD OF CONTRA COSTA COUNTY ANIS CONTRA COSTA COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT FROM: MAUR.ICE M. SHrU,CHIEF ENGINEER M DATE. JUNE 10, 2003 SUBJECT: Agreements with the City of:Pleasant Hill and U.S. Army Corps of Engineers (ACOS) for the Grayson and Murderers' Creek Project Feasibility Study. (District 11&IV) SPECIFIC REQUESTS)OR RECOMMENDATIONS)&BACKGROUND AND JUSTTICATION I. Recommended Action: APPROVE and AUTHORIZE the Chief Engineer, Flood Control and Water Conservation District, or designee, to execute a Joint Exercise of Powers Agreement (JEPA)with the City of Pleasant Hill and the ProjectManagement Plan and Cost Share Agreement with the U.S. Army Corps of Engineers for the Grayson and Murderers' Creek project. (Pleasant Hill and Walnut Creek area)(District 11&IV) II. Fiscallrnpact: There is no financial impact to the General Fund. Entering into the agreements with the ACOS will obligate Flood Control Zone 3B to$678,000. The JEPA will outline a 50150 cost share of that amount between the District and the City of Pleasant Hill. Continued on Attachment: X SIGNATURE: RECMIMENDATION Or COUNTY ADMINISTICAT RECOMMENDATION OF BOARD COMMITTEE APPROVE OTHER SIGNATURES : ACTIONOFBOARDONJIN7 17, 2M70PROVED AS RECOMMENDED x OTHER VO'T'E OF SUPERVISORS xx UNANIMOUS(ABSENT NONE AYES: NOES: ABSENT: ABSTAIN: & ICT JU R.T MCA3Er I hereby certify that this is a true and correct copy of an action G.\GrpDatalFl t stratton oant r tis 0(33 ayson cr 0-3. oc KE:AK:jd taken and entered on the minutes of the Board of Cont.ct: (KPubevin Emig(Flood Control) Supervisors on the date shown. Contact: tRtvinEmigh 313.2233) p cc: County Administrator County Counsel County Assessor County Trossarts-TaxCollectcrr ATTESTED: JUTE LO, 2003 County Auditor/Controller Public Works Deputy tyPublicxurksDi=ector JOHN SWEETEN, Clerk of the Board of Supervisors and A tit)ftivny County Administrator Real Pror"aty Friends of the Creeks By r, Deputy SUBJECT: Agreements with City ofPleasant Hill and U.S.Army Corps of Engineers(ALOE)for the Grayson and Murderers' Creek project Feasibility Study. (District 11&IV) DATE: June 10, 2003 PAGE: 2 111. Reasons for Recommendations and Backeround: The District and.City plan jointly to support the ALOE effort to perform a Feasibility Study(Study) for the Grayson and Murderers' Creeks Project(project). Flooding along both Grayson and Murderers' Creeps has historically been an issue for the citizens of Pleasant Hill and neighboring communities. The Federal Emergency Management Agency(FEMA)recently re-mapped the flood zone maps in this area and determined that a substantial number of additional properties were within the 140-yr floodplain,thus potentially requiring them to pay flood insurance. The Study will determine federal interest in participating financially in the construction of flood control improvements and has a 50150 cost share requirement between the local sponsor and the ACME to fund the study. IV. Consequences of Negative Action: If the District does not process the Agreements, the Feasibility Study will be delayed and the federal financial participation maybe lost. 2 FY �: AGREEMENT BETWEEN THE DEPARTMENT OF THE ARMY AND THE CONTRA COSTA COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT FOR THE GRAYSON AND MURDERER'S CREEKS FEASIBILITY PHASE THIS AGREEMENT is entered into this 3 Q day, of , 2403,by and between the Department of the Army(hereinafter the "Government"), represented by the District Engineer executing this Agreement, and the Contra Costa County Flood Control and Water Conservation District(hereinafter the "Sponsor"), WITNESSETH, that WHEREAS,the Congress(Senate an&or House Committees) has requested the Board of .Engineers for Rivers and Harbors to conduct a study of"...tributaries of the authorized project" pursuant to a House Resolution adapted on June 19, 1963; and WHEREAS, the U.S. Army Corps of Engineers has conducted a reconnaissance study of "...whether modification of the authorized project is advisable at this time with particular reference to control of floods on the tributaries of the authorized project"pursuant to this authority,and has determined that further study in the nature of a"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 145 of the Water Resources Development Act of 1986(Public Law 99-662, as amended)specifies the cost sharing requirements applicable to the Study; WHEREAS,the Sponsor has the authority and capability to furnish the cooperation hereinafter set forth and is willing to participate in study cost sharing and financing in accordance with the terms of this Agreement; and WHEREAS, the Sponsor and the Government understand that entering into this Agreement in no way obligates either party to implement a project and that whether the Government supports a project authorization and budgets it for implementation depends upon, among ether 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; 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 1 Agreement, from Federal appropriations or from funds made available to the Government by the Sponsor,and all negotiated costs of work performed by the Sponsor 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 termination 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 term"estimated Study Costs"shall mean the estimated cost of performing the Study as of the effective date of this Agreement, as specified in Article IIIA. of this Agreement. C. The term "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 Sponsor. 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 Sacramento District of initial Federal feasibility funds following the execution of this Agreement and ending when the Assistant Secretary of the Army(Civil Forks)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 either party and is subject to change by the Government, in consultation with the Sponsor. F. The term "negotiated costs" shall mean the costs of in-kind services to be provided by the Sponsor in accordance with the PMP. G. The term"fiscal year" shall mean one fiscal year of the Government. The Government fiscal year begins on October I and ends on September 30. ARTICLE H-OBLIGATIONS OF PARTIES A. The Government, using funds and in-kind services provided by the Sponsor 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 Article III.A., III.B. and III.C. of this Agreement, the Sponsor]shall contribute cash and in-kind services equal to fifty(50)percent of Study Casts other than excess Study Costs. The Sponsor may,consistent with applicable law and regulations, contribute up to 25 percent of Study Casts through the provision of in-kind services. The in-bind services to be provided by the Sponsor,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. 2 ^ � C. The Sponsor shall pay a fifty(50)percent share of excess Study Costs in accordance with Article III.D. of this Agreement. D. The Sponsor understands that the schedule of work may require the Sponsor to provide cash or in-kind services at a rate that may result in the Sponsor 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 IIIA. 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 Sponsor, cumulative financial obligations of the Government and the Sponsor would result in excess Study Costs, the Government and the Sponsor 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 Sponsor agree to proceed. Should the Government and the sponsor require time to arrive at a decision, the Agreement will be suspended in accordance with Article X., for a period of not to exceed six months. In the event the Government and the sponsor have not reached an agreement to proceed by the end of their 6 month period,the Agreement may be subject to termination in accordance with Article X. F. leo Federal funds may be used to meet the Sponsor's 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 r' Agreement which obligates Federal appropriations shall be exclusively within the control of the Government. The award and management of any contract by the Sponsor with a third party in furtherance of this Agreement which obligates funds of the Sponsor and does not obligate Federal appropriations shall be exclusively within the control of the Sponsor,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 Sponsor a report setting forth this information. As of the effective date of this Agreement, estimated Study Costs are $1,356,000 and the Sponsor's share of estimated Study Costs is $678,000. In order to meet the Sponsor's cash payment requirements for its share of estimated Study Costs, the Sponsor must provide a cash contribution currently estimated to be$105,000. 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 Sponsor. 4 3 B. The Sponsor shalt provide its cash contribution required under Article II.B. of this Agreement in accordance with the following provisions: 1. For purposes of budget planning, the Government shall notify the Sponsor by February 1st of each year of the estimated funds that will be required from the Sponsor to meet the Sponsor's share of Study Costs for the upcoming fiscal year. 2. No later than thirty(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 Government shall notify the Sponsor in writingof the funds the Government determines to be required from the Sponsor to meet its required share of;Study Costs for the first fiscal year of the Study. No tater than fifteen (15) calendar days thereafter,the Sponsor shall provide the Government the full amount of the required funds by delivering a check payable to "FAO,USAED, Sacramento" to the District Engineer. 3. For the second and subsequent fiscal years of the Study, the Government shall,no later than 60 calendar days prior to the beginning of the fiscal year,notify the Sponsor in writing of the funds the Government determines to be required from the Sponsor to meet its required share of Study Costs for that fiscal year, taking into account any temporary divergences identified under Article ILD of this Agreement. No later than 30 calendar days prior to the beginning of the fiscal year,the Sponsor shall make the full amount of the required funds available to the Government through the funding mechanism specified in paragraph 8.2. of this Article. 4. The Government shall draw from the funds provided by the Sponsor such sums as the Government deems necessary to cover the Sponsor's share of contractual and nn-house fiscal obligations attributable to the Study as they are incurred. 5. In the event the Government determines that the Sponsor must provide additional funds to meet its share of Study Costs, the Government shall so notify the Sponsor in writing. No later than sixty(60)calendar days after receipt of such notice, the Sponsor shall make the full amount of the additional required funds available through the funding mechanism specified in paragraph 8.2. of this Article. C. Within ninety(90)days after the conclusion of the 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 Sponsor, the amount of any excess Study Costs, and credits for the negotiated costs of the Sponsor,and shall furnish the Sponsor with the results of this accounting. 'Within thirty(30) days thereafter,the Government, subject to the availability of funds, shall reimburse the Sponsor for the excess, if any, of cash contributions and credits given over its required share of Study Costs,other than excess Study Costs, or the Sponsor shall provide the Government any cash contributions required for the Sponsor to meet its required share of Study Costs other than excess Study Costs. D. The Sponsor shall provide its cash contribution for excess Study Costs as required under Article II.C. of this Agreement by delivering a check payable to "FAO,USAED, Sacramento" to the District Engineer as follows: 4 1. 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 event the project that is the subject of this Study is not authorized for construction by a date that is no later than 5 years of 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 Sponsor shall pay its share of excess costs on that date(5 years after the date of the Chief of Engineers or 2 year after the date of the termination of the study). ARTICLE IV- STUDY MANAGEMENT AND COORDINATION A. To provide for consistent and effective communication, the Sponsor and the Government shall appoint named senior representatives to an Executive Committee. The Executive Committee will include the Sacramento District's Deputy for Project Management and Chief of the Planning Division and the Sponsor's Flood Control Division Dead and Deputy Public Works Director. 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. 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 casts of participation in the Executive Committee(including the cost to serve on the Study Management Team) shall be included in total project costs and cost shared in accordance with the provisions of this Agreement. ARTICLE V-DISPUTES As a condition precedent to a party bringing any suit for breach of this Agreement,that party must first notify the other party 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 nonbinding alternative dispute resolutionwith a qualified third party acceptable to both parties. The parties shall each pay 50 percent 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. 5 ARTICLE VI-MAINTENANCE OF RECORDS A. Within 60 days of the effective date of this Agreement, the Government and the Sponsor shall develop procedures for keeping books, records, documents, and other evidence pertaining to costs and expenses incurmd pursuant to this Agreement to the extent and in such detail as will properly reflect total Study Casts. These procedures shall incorporate, and apply as appropriate, the standards for financial management systems set forth in the Uniform Administrative Requirements for Grants and Cooperative Agreements to state and local governments at 32 C.F.R. Section 33..20. The Government and the Sponsor 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 permitted under applicable Federal laws and regulations, the Governrnent and the Sponsor 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 Sponsor is 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 total Study Costs and shared in accordance with the provisions of this Agreement. ARTICLE VII- RELATIONSHIP OF PARTIES The Government and the Sponsor act in independent capacities in the performance 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 therefrom. ARTICLE IX -FEDERAL AND STATE LAWS In the exercise of the Sponsor's rights and obligations under this Agreement, the Sponsor agrees to comply with all applicable Federal and State laws and regulations, including Section 641 of Title VI of the Civil Rights Act of 1964(Public Law 88-352)and Department of Defense Directive5500.11 issued pursuant thereto and published in 32 C.F.R. fart 195,as well as Army Regulations 600-7, entitled "Nondiscrimination on the Basis of Handicap in Programs and Activities Assisted or Conducted by the Department of the Army" i { __ 6 ARTICLE X w TERMINATION OR SUSPENSION A. This Agreement shall terminate at the conclusion of the Study Period, and neither the Government nor the Sponsor shall have any further obligations hereunder, except as provided in Article III.C.;provided,that prior to such time and upon thirty(30) days written notice, either 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 II.E. of this agreement,or upon the failure of the sponsor to fulfill its obligation under Article III. of this.Agreement. In the event that either party elects to terminate this Agreement, both parties shall conclude their activities relating to the Study and proceed to a final accounting in accordance with Article III.C. and IIID. of this Agreement. Upon termination of this Agreement, all data and information generated as part of the Study shall be made available to both parties. B. Any termination 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. IN'WITNESS WHEREOF,the parties hereto have executed this Agreement, which shall become effective upon the date it is signed by the District Engineer for the U.S. Army Corps of Engineers, Sacramento District. DEPAR'T'MENT OF THE ARMY CONTRA COSTA COUNTY BY: BY: • Maurice %Mi'5 LJ Chief tZag4wer Contra Costa County Flood Control and Water Conservation District Attachment—Project Management Plan Mark'W. Connelly J Lieutenant Colonel, Corps of Engineers Acting District Engineer acrarnto District t: 7 AGREEMENT BETWEEN THE DEPARTMENT OF THE ARMY AND THE CONTRA COSTA COUNTY FLOOD CONTROL AND WATER.CONSERVATION DISTRICT FOR.THE LOWER. W .LNUT CREED GENERAL REEVALUATION PHASE THIS AGREEMENT is entered into this 7«t day, of = 2003,by and between the Department of the Arm hereinafter the "G vernment" represented b the District Engineer p y� ), P y � executing this Agreement, and the Contra Costa County Flood Control and Water Conservation District(hereinafter the "Sponsor"), WITNESSETH,that WHEREAS, the Congress (Senate and/or House Committees)has authorized the Secretary of the Army to conduct a study of"Walnut Creek drainage area, Contra Costa, County, California„ pursuant to Public Law 81-516; and WHEREAS, the U.S. Army Corps of Engineers has conducted a reconnaissance study of "...preliminary examinations and surveys for flood control and allied purposes, including channel and major drainage improvements..."pursuant to this authority, and has determined that further study in the nature of a "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; WHEREAS, the Sponsor has the authority and capability to furnish the cooperation hereinafter set forth and is willing to participate in study cost sharing and financing in accordance with the terms of this Agreement;and WHEREAS,the Sponsor and the Government understand that entering into this Agreement in no way obligates either 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 Environmental 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 Sponsor, and all negotiated costs of work performed by the Sponsor 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 termination 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 term "estimated Sturdy Costs'shall mean the estimated cost of performing the Study as of the effective date of this Agreement,as specified in Article IIIA. of this Agreement. C. The term "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 Sponsor. 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 Sacramento District of initial Federal feasibility funds following the execution of this Agreement and ending when the Assistant Secretary of the Army(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 either party and is subject to change by the Government, in consultation with the Sponsor. f F. The term "negotiated costs" shall mean the costs of in-kind services to be provided by the Sponsor in accordance with 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. ARTICLE H-OBLIGATIONS OF PARTIES A. The Government,using funds and in-bind services provided by the Sponsor 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 Article III.A., HI.B. and M.C. of this Agreement,the Sponsor shall contribute cash and in-kind services equal to fifty(50)percent of Study Costs other than excess Study Casts. The Sponsor 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 Sponsor, the estimated negotiated costs for those services, and the estimatedschedule 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. 2 - C. The Sponsor shall pay a fifty(50)percent share of excess Study Costs in accordance with Article M.D. of this Agreement. D. The Sponsor understands that the schedule of work may require the Sponsor to provide cash or in-kind services at a rate that may result in the Sponsor 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 M.A. 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 Sponsor, cumulative financial obligations of the Government and the Sponsor would result in excess Study Costs,the Government and the Sponsor 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 Sponsor agree to proceed. Should the Government and the sponsor require time to arrive at a decision, the Agreement will be suspended in accordance With Article X., for a period of not to exceed six.months. In the event the Government and the sponsor have not reached an agreement to proceed by the end of their 6 month period, the Agreement may be subject to termination in accordance with Article X. F. No Federal funds may be used to meet the Sponsor's 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 Sponsor with a third party in furtherance of this Agreement Which obligates funds of the Sponsor and does not obligate Federal appropriations shall be exclusively within the control of the Sponsor,but shall be subject to applicable Federal laws and regulations. H. The Sponsor shall be responsible for the total cost of developing a response plan for addressing any hazardous substances regulated under the Comprehensive Environmental Response,Compensation and Liability Act of 1980, Pub. L.No. 96-510, 94 Stat. 2767, (codified at 42 U.S.C. Sections 9601-9675), as amended,existing in,on,or under any lands, easements or rights-of--way that the Government determines to be required for the construction,operation, and maintenance of the project. Such costs shall not be included in total study costs. 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 Sponsor a report setting forth this information. As of the effective date of this Agreement, estimated Study Costs are$3,630,004 and the Sponsor's { 3 share of estimated Study Gusts is $1,815,000. In order to meet the Sponsor's cash payment requirements for its share of estimated Study Casts,the Sponsor must provide a cash contribution currently estimated to be$341,000. 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 Sponsor. B. The Sponsor shall provide its cash contribution required under Article II.B.of this Agreement in accordance with the following previsions. 1. For purposes of budget planning,the Government shall notify the Sponsor by February 1 st of each year of the estimated funds that will be required from the Sponsor to meet the Sponsor's share of Study Costs for the upcoming fiscal year. . 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 inhouse expenditure for the Study,the Government shall notify the Sponsor in writing of the funds the Government determines to be required from the Sponsor to meet its required share of Study Costs for the first fiscal year of the Study. No later than 15 calendar days thereafter,the Sponsor shall provide the Government the full amount of the required funds by delivering a check payable to "FAO,USAEl7, Sacramento" to the District Engineer. 3. For the second and subsequent fiscal years of the Study,the Government shall,no later than 60 calendar days prior to the beginning of the fiscal year, notify the Sponsor in writing of the funds the Government determines to be required from the Sponsor to meet its required share of Study Costs for that fiscal year,taking into account any temporary divergences identified under Article ILD of this Agreement. No later than 30 calendar days prior to the beginning of the fiscal year,the Sponsor shall matte the full amount of the required funds available to the Government through the funding mechanism specified in paragraph B.2. of this Article. 4. The Government shall draw from the funds provided by the Sponsor such sums as the Government deems necessary to cover the Sponsor's share of contractual and in-house fiscal obligations attributable to the Study as they are incurred. 5. In the event the Government determines that the Sponsor must provide additional funds to meet its share of Study Costs, the Government shall so notify the Sponsor in writing. No later than sixty(60)calendar days after receipt of such notice, the Sponsor shall make the full amount of the additional required funds available through the funding mechanism specified in paragraph B.2. of this Article. C. Within ninety(90)days after the conclusion of the 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 Sponsor,the amount of any excess Study Costs, and credits for the negotiated costs of the Sponsor, and shall furnish the Sponsor with the results of this accounting. "Within thirty(30)days thereafter, the Government, subject to the availability of funds, shall reimburse the Sponsor for the excess, if any,of cash contributions and credits given over its required share of Study Costs,other than 4 excess Study Costs, or the Sponsor shall provide the Government any cash contributions required for the Sponsor to meet its required share of Study Costs other than excess Study Costs. D. The Sponsor shall provide its cash contribution for excess Study Costs as required under Article II.C. of this Agreement by delivering a check payable to"FAO, USAED,Sacramento" to the District Engineer as follows: 1. 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 event the project that is the subject of this Study is not authorized for construction by a date that is no later than 5 years of 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 Sponsor shall pay its share of excess costs on that date(5 years after the dateof the Chief of Engineers or 2 year after the date of the termination of the study). ARTICLE IV - STUDY MANAGEMENT AND COORDINATION A. To provide for consistent and effective communication, the Sponsor and the Government shall appoint named senior representatives to an Executive Committee. The Executive Committee will include the Sacramento District's Deputy for Project Management and.Chief of the Planning Division and the Sponsor's Flood Control Division Head and Deputy Public Works Director. '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. D. The Executive Committee shall appoint representatives to serve on a Study Management Team. The Study Management Tearn 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 casts of participation in the Executive Committee(including the cost to serve on the Study Management'Team)shall be included in total project costs and cost shared in accordance with the provisions of this Agreement. ARTICLE V -DISPUTES As a condition precedent to a party bringing any suit for breach of this Agreement, that party S, 5 must first notify the ether party in writing of the nature of the purported breach and seep 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-binning alternative dispute resolution with a qualified third party acceptable to both parties. The parties shall each pay 54 percent of any costs for the services provided by such a third party as such casts 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 VIµMAINTENANCE OF RECORDS A. Within 60 days of the effective date of this Agreement,the Government and the Sponsor shall develop procedures for beeping 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 total Study Costs. These procedures shall incorporate,and apply as appropriate, the standards for financial management systems set forth in the Uniform Administrative Requirements for Grants and Cooperative Agreements to state and local governments at 3 C.F.R. Section 33.20. The Government and the Sponsor 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 permitted under applicable Federal laws and regulations,the Government and the Sponsor shall each allow the other to inspect such books, documents,records, and other evidence. B. In accordance with 31 U.S.C. Section 7543,the Government may conduct audits in addition to any audit that the Sponsor is required to conduct under the Single Audit Act of 1984, 31 U.S.C. Sections 7501-7547. 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 total Study Costs and shared in accordance with the provisions of this Agreement. ARTICLE VIII-RELATIONSHIP OF PARTIES The Government and the Sponsor act in independent capacities in the performance 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 therefrom. ARTICLE IX-FEDERAL AND STATE LAWS In the exercise of the Sponsor's rights and obligations under this Agreement,the Sponsor agrees to comply with all applicable Federal and State laws and regulations, including Section 601 of 6 S 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 C.F.R. Part 195, as well as Army Regulations 600-7,entitled"Nondiscrimination on the Basis of Handicap in Programs and Activities Assisted or Conducted by the Department of the Army" ARTICLE X-TERI:IINATION OR SUSPENSION A. This Agreement shall terminate at the conclusion of the Study Period, and neither the Government nor the Sponsor shall have any further obligations hereunder, except as provided in Article M.C.; provided, that prior to such time and upon thirty(30) days written notice, either 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 II.E. of this agreement, or upon the failure of the sponsor to fulfill its obligation under Article III. of this Agreement. In the event that either party elects to terminate this Agreement,both parties shall conclude their activities relating to the Study and proceed to a final accounting in accordance with Article III.C. and IIID. of this Agreement. Upon termination of this Agreement, all data and information generated as part of the Study shall be made available to both parties. B. Any termination 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. IN WITLESS WHEREOF, the parties hereto have executed this Agreement, which shall become effective upon the date it is signed by the District Engineer for the U.S. Army Corps of Engineers,Sacramento District. 4 DEPARTMENT OF THE ARMY CONTRA COSTA COUNTY a Zle-;, eAl Y� 4c,��' - - --- - r. om Michael J. Conrad, Jr. Maurice Shui Colonel,Corps of Engineers Chief Engineer District Engineer Contra Costa County Flood Control and Sacramento District Water Conservation District Attachment—Project Management Plan 7