Loading...
HomeMy WebLinkAboutReso 77-2018 (18-397)City of South San Francisco P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA City Council ' Resolution: RES 77 -2018 File Number: 18 -397 Enactment Number: RES 77 -2018 RESOLUTION APPROVING A MEMORANDUM OF AGREEMENT BETWEEN THE DEPARTMENT OF THE ARMY AND THE CITY OF SOUTH SAN FRANCISCO FOR TECHNICAL ASSISTANCE RELATED TO FLOOD RISK MANAGEMENT AT COLMA AND SAN BRUNO CREEKS, SOUTH SAN FRANCISCO, CALIFORNIA. WHEREAS, the Colma Creek watershed in the City of South San Francisco ( "City ") contains multiple critical infrastructure elements that are vulnerable to flooding impacts, and would risk disrupting the regional transportation network and wastewater treatment plant should fluvial and tidal flooding occur; WHEREAS, to address such risk; the City has elected to undertake a study of the feasibility of improving flood risk management at Colma and San Bruno Creeks, located in the City of South San Francisco, California ( "Feasibility Study "); and WHEREAS, the City of South San Francisco ( "City ") confirms that it meets the requirements of Section 221(b) of the Flood Control Act of 1970, as amended (42 U.S.C. § 1962d- 5b(b)) to be eligible to carry out a feasibility study under Section 203 of the Water Resources Development Act of 1986, as amended (33 U.S.C. § 2231); and WHEREAS, the Federal Government is authorized pursuant to 33 U.S.C. § 2231 to provide to the City technical assistance relating to any aspect of the Feasibility Study if the City contracts with the Assistant Secretary of the Army (Civil Works) (ASA(CW)) to pay all costs of providing such technical assistance; and WHEREAS, due to the difficulty in securing federal appropriations to fund new studies, the City considers it to be in its own interest to provide funds to cover all costs associated with the Government's provision of technical assistance to the City relating to the Feasibility Study; and WHEREAS, by letter dated January 8, 2018, the City requested technical assistance relating to the Feasibility Study. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of South San Francisco approves of a Memorandum of Agreement between the Department of the Army and the City of South San City of South San Francisco Page 1 File Number: 18 -397 Enactment Number. RES 77 -2018 Francisco for technical assistance related to flood risk management at Colma and San Bruno Creeks, South San Francisco, California, attached herewith as Exhibit A. BE IT FURTHER RESOLVED that the City Council authorizes the City Manager, or his designee, to execute the Memorandum of Agreement between the Department of the Army and the City of South San Francisco. BE IT FURTHER RESOLVED that the City Council authorizes the City Manager to take any other action consistent with carrying out the intent of this resolution. At a meeting of the City Council on 5/23/2018, a motion was made by Pradeep Gupta, seconded by Richard Garbarino, that this Resolution be adopted. The motion passed. Yes: 4 Mayor Pro Tem Matsumoto, Councilmember Garbarino, Councilmember Gupta, and Councilmember AddiaQo Absent: 1 Mayor Normandy Attest by Krista City of South San Francisco page 2 MEMORANDUM OF AGREEMENT BETWEEN THE DEPARTMENT OF THE ARMY AND THE CITY OF SOUTH SAN FRANCISCO FOR TECHNICAL ASSISTANCE RELATED TO FLOOD RISK MANAGEMENT AT COLMA AND SAN BRUNO CREEKS, SOUTH SAN FRANCISCO, CALIFORNIA This MEMORANDUM OF AGREEMENT (hereinafter the “MOA”) is entered into this ________ day of ________________, ________, by and between the Department of the Army (hereinafter the “Government”), represented by the U.S. Army Engineer, San Francisco District (hereinafter the “District Engineer”), and the City of South San Francisco (hereinafter the “Non- Federal Interest”), represented by its City Manager (collectively the “Parties”). WITNESSETH, THAT: WHEREAS, the Non-Federal Interest confirms that it meets the requirements of Section 221(b) of the Flood Control Act of 1970, as amended (42 U.S.C. § 1962d-5b(b)) to be eligible to carry out a feasibility study under Section 203 of the Water Resources Development Act of 1986, as amended (33 U.S.C. § 2231); WHEREAS, the Non-Federal Interest has elected to undertake a study of the feasibility of improving flood risk management at Colma and San Bruno Creeks, located in the City of South San Francisco, California (hereinafter the “Feasibility Study”); WHEREAS, the Government is authorized pursuant to 33 U.S.C. § 2231 to provide to the Non-Federal Interest technical assistance relating to any aspect of the Feasibility Study if the Non-Federal Interest contracts with the Assistant Secretary of the Army (Civil Works) (ASA(CW)) to pay all costs of providing such technical assistance; WHEREAS, the Non-Federal Interest considers it to be in its own interest to provide funds to cover all costs associated with the Government’s provision of technical assistance to the Non-Federal Interest relating to the Feasibility Study; and WHEREAS, by letter dated January 8, 2018, the Non-Federal Interest requested technical assistance relating to the Feasibility Study. NOW, THEREFORE, the Government and Non-Federal Interest agree as follows: 1. PURPOSE AND SCOPE: This MOA creates a mutual framework governing the respective responsibilities of the Parties for the Government’s provision of technical assistance for the Feasibility Study. Information generated by the Government in the provision of technical 2 assistance under this MOA that is proprietary or protected from release will be made available to the Non-Federal Interest only to the same extent as provided to the public as permitted by appropriate regulation. The determination of the scope of appropriate technical assistance is at the sole discretion of the Government. 2. Nothing in this MOA shall be construed to require the Non-Federal Interest to use the services of the Government, or to require the Government to provide any services to the Non- Federal Interest, except as may be set forth in Support Agreements (hereinafter “SA(s)”). This MOA does not obligate funds. Any obligation of funds for activities under this MOA will be accomplished by executing an SA in accordance with Paragraphs 5 and 6, and be contingent upon the Government receiving full funding in advance of any obligation. 3. SUPPORT AGREEMENTS: The Non-Federal Interest may request in writing that the Government provide technical assistance relating to the Feasibility Study. Each request shall be subject to review and written approval by the Division Commander for South Pacific Division. If the Division Commander approves the provision of technical assistance, the District, with concurrence of the Non-Federal Interest, shall submit a SA to the South Pacific Division for approval by the Division Commander. If approved, the Parties may execute the SA. Technical assistance shall be provided under this MOA only after an appropriate SA has been signed by an authorized representative of each Party. SAs will be executed on Department of Defense (hereinafter “DD”) Form 1144 or on any form acceptable to both Parties that contains the same substantive information as a DD Form 1144. 4. Upon signature by each Party’s representative, an SA entered into pursuant to this MOA shall constitute a valid contract between the Government and the Non-Federal Interest under the authority of 33 U.S.C. § 2231(e) to provide Government technical assistance relating to a feasibility study with all costs related to the provision of the technical assistance identified by the particular SA to be provided up front by the Non-Federal Interest. 5. SAs must include the following: A. A detailed scope of work statement; B. Schedule(s); C. Funding arrangements: the Non-Federal interest shall pay all costs of studies or assistance as required by this MOA and stated in particular by the SA associated with the technical assistance in advance of any obligation; D. The amount of funds required and available to accomplish the scope of work as stated in the scope of work; E. Additional instructions for payment or obligation of funds, if any; F. Identification of principal points of contact for the scope of work; G. Identification of the types of contracts to be used (if known); H. Types and frequencies of reports; I. Specific instructions regarding data, models and/or other information; J. Procedures for amending or modifying the SA; and K. Such other particulars as are necessary to describe clearly the obligations of the Parties with respect to the specific technical assistance. 3 In the event of a conflict between this MOA and an SA, this MOA shall control. 6. RESPONSIBILITIES: A. Responsibilities of the Government. 1. The Government shall provide an estimate of the costs of technical assistance in response to a written request and prior to drafting a SA. 2. The Government shall provide the Non-Federal Interest with technical assistance in accordance with this MOA and specific requirements set forth in SAs and implementing arrangements. 3. The Government shall identify authorized representatives to sign SAs. 4. The Government shall use its best efforts in providing the specific technical assistance by contract and/or in-house effort. 5. The Government shall provide detailed periodic progress, financial, and other reports to the Non-Federal interest as agreed in the SA. Financial reports shall include information on all funds received, obligated, and expended, and on forecast obligations and expenditures. 6. The Government shall inform the Non-Federal Interest of all contracts entered into under each SA. B. Responsibilities of the Non-Federal Interest. 1. The Non-Federal Interest shall pay all costs associated with the Government’s provision of technical assistance under each SA, prior to the provision of such technical assistance, and shall certify, at the time of the signature of the SA, the availability of funds necessary to accomplish the scope of work. 2. The Non-Federal Interest shall ensure that an authorized representative of the Non-Federal Interest signs each SA. 3. The Non-Federal Interest shall develop each draft SA, to include scope of work statements. 4. The Non-Federal Interest shall obtain for the Government all necessary access to sites and facilities, shall perform all coordination with state and local agencies, and obtain any necessary permits from state and local agencies as necessary during the execution of each SA. 5. The Non-Federal Interest shall identify, track, and account for all costs which it identifies as being eligible for credit pursuant to 33 U.S.C § 2231(d). 6. The Non-Federal Interest is responsible for the assembly of any draft and final reports. Also, as stated in paragraph 2.j. of Appendix B to ER 1165- 2-209, “Studies of Water Resources Development Projects by Non- Federal Interests,” the Non-Federal Interest must certify the quality and technical accuracy of the study and the construction cost estimate for the 4 project, and the study must meet the requirements for independent peer review. 7. PAYMENT OF COSTS: The Non-Federal Interest shall pay all costs associated with the Government’s provision of technical assistance under each SA prior to the Government performance of its obligations. No later than 15 calendar days from execution of a SA, the Non- Federal Interest shall provide the Government with the full amount of funds required for such technical assistance by delivering a check payable to “FAO, USACE San Francisco District, L3” to the District Engineer, or by providing an Electronic Funds Transfer of such required funds in accordance with procedures specified in the SA. 8. If the Government forecasts its actual costs under an SA to exceed the amount of funds available under that SA, it shall promptly notify the Non-Federal Interest of the amount of additional funds necessary to complete the work under that SA. The Non-Federal Interest shall either provide the additional funds to the Government within 30 calendar days of such written notice, require that the scope of work be limited to that which can be paid for by the then- available funds, or direct termination of the work under that SA. 9. Within 90 days of completing the work under an SA, the Government shall conduct an accounting to determine the actual costs of the work. Within 30 days of completion of this accounting, the Government shall return to the Non-Federal Interest any funds advanced in excess of the actual costs as then known, or the Non-Federal Interest shall provide any additional funds necessary to cover the actual costs as then known. Such an accounting shall in no way limit the Non-Federal Interest’s duty in accordance with Paragraph 7 to pay for any costs, such as contract claims or other liability, which may become known after the final accounting. 10. This MOA and all documents and actions pursuant to it shall be governed by the applicable statutes, regulations, directives, and procedures of the United States. Unless otherwise required by law, all contract work undertaken by the Government shall be governed by United States Army Corps of Engineers (USACE) policies and procedures. 11. DISPUTE RESOLUTION: Before either Party to this MOA may bring suit in any court concerning an issue relating to this MOA, such Party must first seek in good faith to resolve the issue through negotiation or other forms of nonbinding alternative dispute resolution mutually acceptable to the Parties. 12. Nothing herein shall constitute, represent, or imply any commitment to budget or appropriate funds for the Project in the future; and nothing herein shall represent, or give rise to, obligations of the United States. 13. THIRD PARTY RIGHTS, BENEFITS, OR LIABILITIES: Nothing in this MOA is intended, nor may be construed, to create any rights, confer any benefits, or relieve any liability, of any kind whatsoever in any third person not a party to this MOA. 5 14. In the exercise of their respective rights and obligations under this MOA, the Government and the Non-Federal Interest each act in an independent capacity, and neither is to be considered the officer, agent, or employee of the other. 15. PUBLIC INFORMATION: To the maximum extent possible, each Party shall give the other Party advance notice before making any public statement regarding work contemplated, undertaken, or completed pursuant to SAs under this MOA. 16. This MOA shall not affect any pre-existing or independent relationships or obligations between the Non-Federal Interest and the Government. 17. The provisions of any SA executed under this MOA, which require performance after the expiration or termination of this MOA, shall remain in force notwithstanding the expiration or termination of this MOA. 18. If any provision of this MOA is determined to be invalid or unenforceable, the remaining provisions shall remain in force and unaffected to the fullest extent permitted by law and regulation. 19. The Non-Federal Interest understands that any technical assistance received does not guarantee that the ASA (CW) will determine that the Feasibility Study generated by the Non- Federal Interest, and the process under which the study was developed, will comply with Federal laws and regulations applicable to feasibility studies of water resources development projects. 20. COMMUNICATIONS: Any notice, request, demand, or other communication required or permitted to be given under this MOA shall be deemed to have been duly given if in writing and either delivered personally or mailed by registered or certified mail, with return receipt, as follows: If to the Non-Federal Interest: City Manager City of South San Francisco 400 Grand Ave. South San Francisco, CA 94083 If to the Government: District Engineer San Francisco District U.S. Army Corps of Engineers 1455 Market Street San Francisco, CA 94103-1398 A party may change the recipient or address to which such communications are to be directed by giving written notice to the other party in the manner provided in this paragraph. 6 21. AMENDMENT, MODIFICATION AND TERMINATION: This MOA may be modified or amended only by written, mutual agreement of the Parties. Either Party may terminate this MOA by providing at least fifteen (15) calendar days written notice to the other Party. In the event of termination, the Non-Federal Interest remains responsible for any and all costs incurred by the Government under this MOA and for any and all costs of closing out, terminating, or transferring any ongoing contracts. 22. EFFECTIVE DATE: This MOA takes effect immediately upon the signature of both Parties. This MOA expires five years from the effective date, unless terminated earlier as provided herein. THE DEPARTMENT OF THE ARMY CITY OF SOUTH SAN FRANCISCO BY: ______________________________ BY: _______________________________ Travis J. Rayfield Mike Futrell Lieutenant Colonel, US Army City Manager District Engineer DATE: ___________________________ DATE: _____________________________ 1 CERTIFICATE OF AUTHORITY I, Jason Rosenberg, do hereby certify that I am the principal legal officer of the City of South San Francisco, that the City of South San Francisco 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 and the City of South San Francisco in connection with the Technical Assistance Related to Flood Risk Management at Colma and San Bruno Creeks, South San Francisco, California, and to pay damages, if necessary, in the event of the failure to perform in accordance with the terms of the Agreement, as required by Section 221 of the Flood Control Act of 1970, as amended (42 U.S.C. 1962d-5b), and that the person who executed the Agreement on behalf of the City of South San Francisco acted within his statutory authority. IN WITNESS WHEREOF, I have made and executed this certification this ___________ day of _____________ 20____. ____________________________ Jason Rosenberg City Attorney 2 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 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 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. ____________________________________ Mike Futrell City Manager DATE: ______________________________ 3