HomeMy WebLinkAboutReso 139-2020 (20-807)City of South San Francisco P.O. Box 711 (City Hall,
400 Grand Avenue)
South San Francisco, CA
City Council
Resolution: RES 139-2020
File Number: 20-807 Enactment Number: RES 139-2020
A RESOLUTION APPROVING AND AUTHORIZING
THE CITY MANAGER TO EXECUTE A FEDERAL
COST SHARING AGREEMENT WITH THE
DEPARTMENT OF THE ARMY FOR THE
PRELIMINARY DESIGN OF THE WATER QUALITY
CONTROL PLANT SEA LEVEL RISE PROJECT
(SS1802) IN THE AMOUNT PROJECTED TO BE
$510,000.
WHEREAS, the South San Francisco San Bruno Water Quality Control Plant ("WQCP") is a
critical infrastructure asset that treats wastewater for residents and businesses in South San Francisco
("City"), San Bruno, Colma, and Daly City and serves as a shared final effluent pump station for
Millbrae, Burlingame, and San Francisco International Airport; and
WHEREAS, the WQCP is vulnerable to flooding as identified in the 2018 San Mateo County Sea
Level Rise Vulnerability Assessment; and
WHEREAS, the City's Capital Improvement Program ("CIP") Project SS1802 is intended to
address sea -level rise and flooding issues at the WQCP; and
WHEREAS, in September 26, 2018, the City requested assistance from the United States Army
Corps of Engineers ("Army Corps"), part of the United States Department of the Army; and
WHEREAS, in August 27, 2019, the Army Corps completed its Federal Interest Determination
Report and recommended that the Army Corps proceed with the feasibility study under the Continuing
Authorities Program (CAP) Section 103; and
WHEREAS, the Feasibility Study and the rest of the CAP Section 103 project will be managed by
the Army Corps with the City as the non -Federal sponsor; and
WHEREAS, the costs for the Feasibility Study Phase will be shared 50150 between the City and
the Army Corps for any costs over $100,000; and
WHEREAS, the first step of the feasibility phase is to execute the Federal Cost Sharing Agreement
("FCSA") attached in Exhibit A; and
WHEREAS, in preparation of the FCSA, the Army Corps estimated that the feasibility study's cost
share for the City would be approximately $510,000; and
City of South San Francisco Page 1
File Number: 20-807
Enactment Number: RES 139-2020
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of South San Francisco:
1. Approves the Federal Cost Sharing Agreement between the City and the Army Corps to support
CIP Project SSI 802, attached hereto and incorporated herein as Exhibit A; and
2. Authorizes the City Manager to execute the Federal Cost Sharing Agreement in Exhibit A on
behalf of the City or to take any other action consistent with the intent of this Resolution, subject
to approval as to form by the City Attorney.
At a meeting of the Special City Council on 10/28/2020, a motion was made by Councilmember
Nicolas, seconded by Councilmember Nagales, that this Resolution be approved. The motion passed.
Yes: 5 Mayor Garbarino, Vice Mayor Addiego, Councilmember Nagales, Councilmember
Nicolas, and Councilmember Matsumoto
Attest by "A AA -4A ��AJJ_
Aosaovea Acosta, City Clerk
City of South San Francisco Page 2
AGREEMENT
BETWEEN
THE DEPARTMENT OF THE ARMY
AND
CITY OF SOUTH SAN FRANCISCO
FOR THE
LOWER COLMA CREEK CONTINUING AUTHORITIES PROGRAM, SECTION
103 STUDY
THIS AGREEMENT is entered into this ________ day of ________, ____, by and
between the Department of the Army (hereinafter the “Government”), represented by the District
Commander for San Francisco District (hereinafter the “District Commander”) and the City of
South San Francisco (hereinafter the “Non-Federal Sponsor”), represented by the Director of
Public Works or their designee.
WITNESSETH, THAT:
WHEREAS, Section 103 of the Rivers and Harbors Act of 1962, Public Law 87-874,
authorizes the study addressing coastal flood risk to the South San Francisco Water Quality
Control Plant (WQCP), located on the south side of Lower Colma Creek, just upstream from
where the creek enters San Francisco Bay.
WHEREAS, Section 105(a) of the Water Resources Development Act of 1986, Public
Law 99-662, as amended (33 U.S.C. 2215(a)), specifies the cost-sharing requirements; and
WHEREAS, the Government and the Non-Federal Sponsor have the full authority and
capability to perform in accordance with the terms of this Agreement.
NOW, THEREFORE, the parties agree as follows:
ARTICLE I - DEFINITIONS
A. The term “Study” means the activities and tasks required to identify and evaluate
alternatives and the preparation of a decision document that, as appropriate, recommends a
coordinated and implementable solution for storm risk management and associated flooding at
the Water Quality Control Plant located in the City of South San Francisco.
B. The term “shared study costs” means all costs incurred by the Government and Non-
Federal Sponsor after the effective date of this Agreement that are directly related to performance of
the Study and cost shared in accordance with the terms of this Agreement. The term includes, but is
not necessarily limited to: the Government’s costs for preparing the PMP; for plan formulation
and evaluation, including costs for economic, engineering, real estate, and environmental
analyses; for preparation of a floodplain management plan if undertaken as part of the Study; for
preparing and processing the decision document; for supervision and administration; for Agency
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Technical Review and other review processes required by the Government; and for response to any
required Independent External Peer Review; and the Non-Federal Sponsor’s creditable costs for
in-kind contributions, if any. The term does not include any costs for dispute resolution;
participation by the Government and Non-Federal Sponsor in the Study Coordination Team to
discuss significant issues and actions; audits; an Independent External Peer Review panel, if
required; or negotiating this Agreement. The term also does not include the first $100,000 of costs
for the Study incurred by the Government, whether before or after execution of this Agreement.
C. The term “PMP” means the project management plan, and any modifications thereto,
developed in consultation with the Non-Federal Sponsor, that specifies the scope, cost, and schedule
for Study activities and tasks, including the Non-Federal Sponsor’s in-kind contributions, and that
guides the performance of the Study.
D. The term “in-kind contributions” means those planning activities (including data
collection and other services) that are integral to the Study and would otherwise have been
undertaken by the Government for the Study and that are identified in the PMP and performed or
provided by the Non-Federal Sponsor after the effective date of this Agreement and in
accordance with the PMP.
E. The term “maximum Federal study cost” means the $1,500,000 Federal cost limit for
the Study, unless the Government has approved a higher amount, and includes the first $100,000
of costs for the Study incurred by the Government.
F. The term “fiscal year” means one year beginning on October 1st and ending on
September 30th of the following year.
ARTICLE II - OBLIGATIONS OF THE PARTIES
A. In accordance with Federal laws, regulations, and policies, the Government shall
conduct the Study using funds appropriated by the Congress and funds provided by the Non-
Federal Sponsor. In carrying out its obligations under this Agreement, the Non-Federal Sponsor
shall comply with all the requirements of applicable Federal laws and implementing regulations.
B. The Non-Federal Sponsor shall contribute 50 percent of shared study costs in
accordance with the provisions of this paragraph and provide required funds in accordance with
Article III.
1. After considering the estimated amount of credit for in-kind contributions, if
any, that will be afforded in accordance with paragraph C. of this Article and the first $100,000
of the costs incurred by the Government that are excluded from shared costs, the Government
shall provide the Non-Federal Sponsor with a written estimate of the amount of funds required
from the Non-Federal Sponsor to meet its share of shared study costs for the remainder of the
initial fiscal year of the Study. No later than 15 calendar days after such notification, the Non-
Federal Sponsor shall provide the full amount of such funds to the Government.
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2. No later than August 1st prior to each subsequent fiscal year of the Study, the
Government shall provide the Non-Federal Sponsor with a written estimate of the amount of
funds required from the Non-Federal Sponsor during that fiscal year to meet its cost share. No
later than September 1st prior to that fiscal year, the Non-Federal Sponsor shall provide the full
amount of such required funds to the Government.
C. The Government shall include in shared study costs and credit towards the Non-
Federal Sponsor’s share of such costs, the costs, documented to the satisfaction of the
Government, that the Non-Federal Sponsor incurs in providing or performing in-kind
contributions, including associated supervision and administration, after the effective date of this
Agreement. Such costs shall be subject to audit in accordance with Article VI to determine
reasonableness, allocability, and allowability, and crediting shall be in accordance with the
following procedures, requirements, and limitations:
1. As in-kind contributions are completed and no later than 60 calendar day after
such completion, the Non-Federal Sponsor shall provide the Government appropriate
documentation, including invoices and certification of specific payments to contractors,
suppliers, and the Non-Federal Sponsor’s employees. Failure to provide such documentation in
a timely manner may result in denial of credit. The amount of credit afforded for in-kind
contributions shall not exceed the Non-Federal Sponsor’s share of shared study costs.
2. No credit shall be afforded for interest charges, or any adjustment to reflect
changes in price levels between the time the in-kind contributions are completed and credit is
afforded; for the value of in-kind contributions obtained at no cost to the Non-Federal Sponsor;
for any items provided or performed prior to completion of the PMP; or for costs that exceed the
Government’s estimate of the cost for such item if it had been performed by the Government.
D. To the extent practicable and in accordance with Federal laws, regulations, and
policies, the Government shall afford the Non-Federal Sponsor the opportunity to review and
comment on solicitations for contracts prior to the Government’s issuance of such solicitations;
proposed contract modifications, including change orders; and contract claims prior to resolution
thereof. Ultimately, the contents of solicitations, award of contracts, execution of contract
modifications, and resolution of contract claims shall be exclusively within the control of the
Government.
E. The Non-Federal Sponsor shall not use Federal program funds to meet any of its
obligations under this Agreement unless the Federal agency providing the funds verifies in
writing that the funds are authorized to be used for the Study. Federal program funds are those
funds provided by a Federal agency, plus any non-Federal contribution required as a matching
share therefor.
F. Except as provided in paragraph C. of this Article, the Non-Federal Sponsor shall not
be entitled to any credit or reimbursement for costs it incurs in performing its responsibilities
under this Agreement.
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G. If Independent External Peer Review (IEPR) is required for the Study, the Government
shall conduct such review in accordance with Federal laws, regulations, and policies. The
Government’s costs for an IEPR panel shall not be included in shared study costs or the maximum
Federal study cost.
H. In addition to the ongoing, regular discussions of the parties in the delivery of the
Study, the Government and the Non-Federal Sponsor may establish a Study Coordination Team
to discuss significant issues or actions. The Government’s costs for participation on the Study
Coordination Team shall not be included in the shared study costs, but shall be included in
calculating the maximum Federal study cost. The Non-Federal Sponsor’s costs for participation
on the Study Coordination Team shall not be included in shared study costs and shall be paid
solely by the Non-Federal Sponsor without reimbursement or credit by the Government.
ARTICLE III - PAYMENT OF FUNDS
A. A. As of the effective date of this Agreement, shared study costs are projected to be
$1,020,000, with the Government’s share of such costs projected to be $510,000 and the Non-
Federal Sponsor’s share of such costs projected to be $510,000. These amounts are estimates
only that are subject to adjustment by the Government and are not to be construed as the total
financial responsibilities of the Government and the Non-Federal Sponsor.
B. The Government shall provide the Non-Federal Sponsor with monthly reports setting
forth the estimated shared study costs and the Government’s and Non-Federal Sponsor’s
estimated shares of such costs; costs incurred by the Government, using both Federal and Non-
Federal Sponsor funds, to date; the amount of funds provided by the Non-Federal Sponsor to
date; the estimated amount of any creditable in-kind contributions; and the estimated remaining
cost of the Study.
C. The Non-Federal Sponsor shall provide to the Government required funds by
delivering a check payable to “FAO, USAED, San Francisco District (L3)” to the District
Commander, or verifying to the satisfaction of the Government that the Non-Federal Sponsor has
deposited such required funds in an escrow or other account acceptable to the Government, with
interest accruing to the Non-Federal Sponsor, or by providing an Electronic Funds Transfer of
such required funds in accordance with procedures established by the Government.
D. The Government shall draw from the funds provided by the Non-Federal Sponsor to
cover the non-Federal share of shared study costs as those costs are incurred. If the Government
determines at any time that additional funds are needed from the Non-Federal Sponsor to cover
the Non-Federal Sponsor’s required share of shared study costs, the Government shall provide
the Non-Federal Sponsor with written notice of the amount of additional funds required. Within
60 calendar days of such notice, the Non-Federal Sponsor shall provide the Government with the
full amount of such additional funds.
E. Upon completion of the Study and resolution of all relevant claims and appeals, the
Government shall conduct a final accounting and furnish the Non-Federal Sponsor with the
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written results of such final accounting. Should the final accounting determine that additional
funds are required from the Non-Federal Sponsor, the Non-Federal Sponsor, within 60 calendar
days of written notice from the Government, shall provide the Government with the full amount
of such additional funds. Should the final accounting determine that the Non-Federal Sponsor
has provided funds in excess of its required amount, the Government shall refund the excess
amount, subject to the availability of funds. Such final accounting does not limit the Non-
Federal Sponsor's responsibility to pay its share of shared study costs, including contract claims
or any other liability that may become known after the final accounting.
ARTICLE IV - TERMINATION OR SUSPENSION
A. Upon 30 calendar days written notice to the other party, either party may elect at any
time, without penalty, to suspend or terminate future performance of the Study. Furthermore,
unless an extension is approved by the Assistant Secretary of the Army (Civil Works), the Study
may be terminated if a Report of the Chief of Engineers, or, if applicable, a Report of the
Director of Civil Works, is not signed for the Study within 3 years after the effective date of this
Agreement.
B. In the event of termination, the parties shall conclude their activities relating to the
Study. To provide for this eventuality, the Government may reserve a percentage of available
funds as a contingency to pay the costs of termination, including any costs of resolution of
contract claims, and resolution of contract modifications.
C. Any suspension or termination shall not relieve the parties of liability for any
obligation incurred. Any delinquent payment owed by the Non-Federal Sponsor pursuant to this
Agreement shall be charged interest at a rate, to be determined by the Secretary of the Treasury,
equal to 150 per centum of the average bond equivalent rate of the 13 week Treasury bills
auctioned immediately prior to the date on which such payment became delinquent, or auctioned
immediately prior to the beginning of each additional 3 month period if the period of
delinquency exceeds 3 months.
ARTICLE 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 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 non-binding alternative
dispute resolution with a qualified third party acceptable to the parties. Each party shall pay an
equal share of any costs for the services provided by such a third party as such costs are incurred.
The existence of a dispute shall not excuse the parties from performance pursuant to this
Agreement.
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ARTICLE VI - MAINTENANCE OF RECORDS AND AUDIT
A. The parties shall develop procedures for the maintenance by the Non-Federal Sponsor
of books, records, documents, or other evidence pertaining to costs and expenses for a minimum
of three years after the final accounting. The Non-Federal Sponsor shall assure that such
materials are reasonably available for examination, audit, or reproduction by the Government.
B. The Government may conduct, or arrange for the conduct of, audits of the Study.
Government audits shall be conducted in accordance with applicable Government cost principles
and regulations. The Government’s costs of audits for the Study shall not be included in shared
study costs, but shall be included in calculating the maximum Federal study cost.
C. To the extent permitted under applicable Federal laws and regulations, the
Government shall allow the Non-Federal Sponsor to inspect books, records, documents, or other
evidence pertaining to costs and expenses maintained by the Government, or at the request of the
Non-Federal Sponsor, provide to the Non-Federal Sponsor or independent auditors any such
information necessary to enable an audit of the Non-Federal Sponsor’s activities under this
Agreement. The costs of non-Federal audits shall be paid solely by the Non-Federal Sponsor
without reimbursement or credit by the Government.
ARTICLE VII - RELATIONSHIP OF PARTIES
In the exercise of their respective rights and obligations under this Agreement, the
Government and the Non-Federal Sponsor each act in an independent capacity, and neither is to
be considered the officer, agent, or employee of the other. Neither party shall provide, without
the consent of the other party, any contractor with a release that waives or purports to waive any
rights a party may have to seek relief or redress against that contractor.
ARTICLE VIII - NOTICES
A. Any notice, request, demand, or other communication required or permitted to be
given under this Agreement shall be deemed to have been duly given if in writing and delivered
personally or mailed by certified mail, with return receipt, as follows:
If to the Non-Federal Sponsor:
City of South San Francisco Engineering Division
315 Maple Avenue
South San Francisco, CA 94080
If to the Government:
U.S. Army Corps of Engineers
San Francisco District
Deputy for Program Management
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B. A party may change the recipient or address for such communications by giving
written notice to the other party in the manner provided in this Article.
ARTICLE IX - CONFIDENTIALITY
To the extent permitted by the laws governing each party, the parties agree to maintain
the confidentiality of exchanged information when requested to do so by the providing party.
ARTICLE X - THIRD PARTY RIGHTS, BENEFITS, OR LIABILITIES
Nothing in this Agreement is intended, nor may be construed, to create any rights, confer
any benefits, or relieve any liability, of any kind whatsoever in any third person not a party to
this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, which shall
become effective upon the date it is signed by the District Commander.
DEPARTMENT OF THE ARMY CITY OF SOUTH SAN FRANCISCO
BY: BY:
John D. Cunningham Mike Futrell
Lieutenant Colonel, U.S. Army City Manager
District Commander
DATE: _________________________ DATE: _______________________