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HomeMy WebLinkAbout2013-02-8014ORDINANCE NO. 2013-2-8014 AN ORDINANCE OF THE CITY OF PADUCAH, KENTUCKY, APPROVING A DESIGN AGREEMENT WITH THE DEPARTMENT OF THE ARMY, REPRESENTED BY THE DISTRICT ENGINEER, U.S. ARMY ENGINEER, ,- LOUISVILLE DISTRICT AND THE CITY OF PADUCAH, KENTUCKY FOR THE OHIO RIVER SHORELINE, PADUCAH, KENTUCKY LFPP RECONSTRUCTION PROJECT, AND AUTHORIZING THE EXECUTION OF SAME WHEREAS, in accordance with the Water Resources Development Act of 2007 "WRDA" bill, the U.S. Army Corps of Engineers (USACE) and the City of Paducah entered in a Floodwall Feasibility Study and Certification of Levee System Agreement as authorized by Ordinance #2009-1-7510; and WHEREAS, the USACE completed the Feasibility Report of the Paducah Levee System in October 2010, aka "the Ohio River Shoreline, Paducah Kentucky LFPP Reconstruction Project Feasibility Report," which recommended certain rehabilitation projects to improve the reliability and restore system performance of the City's 60 -year old Floodwall; and. WHEREAS, on May 16, 2012, the USACE Chief's report recommended to the U.S. Congress the implementation of the Paducah's Reconstruction projects noted within the Feasibility Report; and WHEREAS, on July 17, 2012, the Board of Commissioners adopted Municipal Order # 1678 authorizing the Mayor to Execute a Letter of Intent to the USACE supporting the Reconstruction Feasibility Report issued, to pledge cooperation with the Reconstruction Project and to offer assistance in the initiation of the Preconstruction Engineering and Design (PED) activities associated with the Reconstruction Project; and WHEREAS, at this time, the USACE is prepared to begin the PED activities associated with the Reconstruction Project. In order to implement the PED process, the City of Paducah will need to execute a Design Agreement with the Department of the Army. This agreement obligates the City to contribute 25 percent (25%) of the total design costs associated with the Reconstruction Project, which is projected to be approximately $600,000. Therefore, the City's approximate share for the design of the Reconstruction Project is estimated to be $150,000 total. Part of this amount can be credited by in-kind services by City staff and/or City expenditures/resources required. NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF PADUCAH, KENTUCKY, AS FOLLOWS: Section 1. Recitals and Authorization. The City hereby approves the Design Agreement between the Department of the Army and the City of Paducah, Kentucky, in substantially the form attached hereto as Exhibit A and made part hereof. It is further determined that it is necessary and desirable and in the best interests of the City to enter into the Agreement for the purposes therein specified, and the execution and delivery of the Agreement is hereby authorized and approved. The Mayor of the City is hereby authorized to execute the Agreement, together with such other agreements, instruments or certifications which may be necessary to accomplish the transaction contemplated by the Agreement with such changes in the Agreement not inconsistent with this Ordinance and not substantially adverse to the City as may be approved by the official executing the same on behalf of the City. The approval of such changes by said official, and that such are not substantially adverse to the City, shall be conclusively evidenced by the execution of such Agreement by such official. Section 2. Funding. Funds shall be appropriated from project account FW0006. Section 3. Severability. If any section, paragraph or provision of this Ordinance shall be held to be invalid or unenforceable for any reason, the invalidity or unenforceability of such section, paragraph or provision shall not affect any of the remaining provisions of this Ordinance. Section 4. Compliance With Open Meetings. The City Commission hereby finds and determines that all formal actions relative to the adoption of this Ordinance were taken in an open meeting of this City Commission, and that all deliberations of this City Commission and of its committees, if any, which resulted in formal action, were in meetings open to the public, in full compliance with applicable legal requirements. Section 5. Conflicts. All ordinances, resolutions, orders or parts thereof in conflict with the provisions of this Ordinance are, to the extent of such conflict, hereby repealed and the provisions of this Ordinance shall prevail and be given effect. Section 6. Effective Date. This Ordinance shall be read on two separate days and will become effective upon summary publication pursuant to KRS Chapter 424. r MAYOR ATTEST: Tammara S. Sanderson, City Clerk Introduced by the Board of Commissioners, February 19, 2013 Adopted by the Board of Commissioners, February 26, 2013 Recorded by Tammara S. Sanderson„ City Clerk, February 26, 2013 Published by The Paducah Sun, March 5, 2013 \ord\eng\agree-ohio river shoreline design EXHIBIT A DESIGN AGREEMENT BETWEEN THE DEPARTMENT OF THE ARMY AND THE CITY OF PADUCAH) KENTUCKY FOR DESIGN FOR THE OHIO RIVER SHORELINE, PADUCAH, KENTUCKY RECONSTRUCTION PROJECT THIS AGREEMENT is entered into this day of , 2013, by and between the Department of the Army (hereinafter the "Government"), represented by the District Engineer, United States Army Engineer District, Louisville and the City of Paducah, Kentucky (hereinafter the "Non -Federal Sponsor'), represented by the Mayor of the City of Paducah, Kentucky. WITNESSETH; THAT: WHEREAS, Federal General Investigations funds for fiscal Year 2012, included funds for the Government to initiate design of the Ohio River Shoreline, Paducah, Kentucky Reconstruction Project (hereinafter the "Project" as defined in L_ Article I.A. of this Agreement) at the City of Paducah, McCracken County, Kentucky; WHEREAS, the Government and the Non -Federal Sponsor desire to enter into an agreement (hereinafter the "Agreement") for the provision of design for the Project; WHEREAS, construction or implementation of the Project is authorized by Section 5077 of the Water Resources Development Act of 2007 (Public Law 110-114, 121 Stat. 1226); WHEREAS, Section 105(c) of the Water Resources Development Act of 1986, Public Law 99.662 (33 U.S.C. 2215), provides that the costs of design of a water resources project shall be shared in the same percentage as the purposes of such project; WHEREAS, the Government and the Non -Federal Sponsor agree that, during the period of design, the Non -Federal Sponsor shall contribute 25 percent of total design costs and that, if a Project Partnership Agreement for construction of the Project is executed between the Government and a non -Federal interest, such non -Federal interest shall contribute any remaining portion of the non -Federal share of the costs of design in accordance with the provisions of such Project Partnership Agreement; WHEREAS, the Government and Non -Federal Sponsor have the full authority and capability to perform as hereinafter set forth and intend to cooperate in cost-sharing and financing of the Project in accordance with the terms of this Agreement; and WHEREAS, the Government and the Non -Federal Sponsor, in connection with this Agreement, desire to foster a partnering strategy and a working relationship between the Government and the Nan -Federal Sponsor through a mutually developed formal strategy of commitment and communication embodied herein, which creates an environment where trust and teamwork prevent disputes, foster a cooperative bond between the Government and the Non -Federal Sponsor, and facilitate the successful design and implementation of the Project. NOW, THEREFORE, the Government and the Non -Federal Sponsor agree as follows: ARTICLE I - DEFINITIONS A. The term "Project" shall mean engineering design for the rehabilitation (reconstruction) of certain items of levee infrastructure, including a new floodwater pumping plant, as generally described in the Ohio River Shoreline, Paducah, Kentucky Reconstruction Feasibility Report with Environmental Assessment and associated Engineering Appendix, dated September, 2011 (revised in November, 2011), being approved by the Chief of Engineers, United States Army Corps of Engineers, in the Chief of Engineers Report dated May 16, 2012. B. The term "total design costs" shall mean the sum of all costs incurred by the Non -Federal Sponsor and the Government in accordance with the terms of this Agreement directly related to design of the Project. Subject to the provisions of this Agreement, the term shall include, but is not necessarily limited to: the Government's costs of engineering and design, economic and environmental analyses, and evaluation performed after a feasibility report whether performed prior to or after the effective date of this Agreement that were not previously shared with a non -Federal interest pursuant to any other agreement; the Government's costs of review processes required by the Government, the Government's costs of Independent External Peer Review, if required, except for the costs of any contract for an Independent External Peer Review panel; the Government's supervision and administration costs; the Non -Federal Sponsor's and the Government's costs of participation in the Design Coordination Team in accordance with Article III of this Agreement; the Government's costs of contract dispute settlements or awards; and the Non -Federal Sponsor's and the Government's costs of audit in accordance with Article VII.B. and Article VII.C. of this Agreement. The term does not include any costs of additional work under Article II.E. of this Agreement; any costs of dispute resolution under Article V of this Agreement; any costs incurred as part of reconnaissance studies for the Project; any costs incurred as part of feasibility studies under any other agreement for the Project; the Non -Federal Sponsor's costs of negotiating this Agreement; any costs of a contract for an Independent External Peer Review panel; or any costs of negotiating a project partnership agreement for the Project or separable element thereof. C. The term's eriod of design" shall mean the time from the effective date of this Agreement to the date that a Project Partnership Agreement for construction of the Project, or a separable element thereof, is executed between the Govemment and a non -Federal interest or the date that this Agreement is terminated in accordance with Article X of this Agreement, whichever is earlier. D. The term `financial obligations far design" shall mean the financial obligations of the Government, that result or would result in costs that are or would be included in total design costs. E. The term "non Federal proportionate share" shall mean the ratio of the Non - Federal Sponsor's total contribution of funds required by Article II.B.1. of this Agreement to financial obligations for design, as projected by the Govemment. F. The term "betterment" shall mean a difference in the design of an element of the Project that results from the application of standards that the Government determines exceed those that the Government would otherwise apply to the design of that element. The term does not include any design for features not included in the Project as defined in paragraph A. of this Article. G. The term "Federal program funds" shall mean funds provided by a Federal agency, other than the Department of the Army, plus any non -Federal contribution required as a matching share therefor. H. The term' fiscal year"shall mean one year beginning on October 1 and ending on September 30. ARTICLE Il - OBLIGATIONS OF THE GOVERNMENT AND THE NON-FEDERAL SPONSOR A. The Government, subject to receiving funds appropriated by the Congress of the United States (hereinafter the "Congress') and using those funds and funds provided by the Non -Federal Sponsor, expeditiously shall design the Project, applying those procedures usually applied to Federal projects, in accordance with Federal laws, regulations, and policies. 1. To the extent possible, the Government shall design the Project in accordance with the Project Management Plan for the Project developed and updated as required by the Government after consultation with the Non -Federal Sponsor. 2. The Government shall afford the Non -Federal Sponsor the opportunity to review and comment on the solicitations for all contracts, including relevant scopes of work, prior to the Government's issuance of such solicitations. To the extent possible, THIS PAGE IS BLANK - li..___:1 - 11 -1 j - �Dl the Government shall afford the Non -Federal Sponsor the opportunity to review and comment on all proposed contract modifications, including change orders. In any instance where providing the Non -Federal Sponsor with notification of a contract modification is not possible prior to execution of the contract modification, the Government shall provide such notification in writing at the earliest date possible. To the extent possible, the Government also shall mord the Non -Federal Sponsor the opportunity to review and comment on all contract claims prior to resolution thereof. The Government shall consider in good faith the comments of the Non -Federal Sponsor, but the contents of solicitations, award of contracts or commencement of design using the Government's own forces, execution of contract modifications, resolution of contract claims, and performance of all work on the Project, shall be exclusively within the control of the Government. 3. At the time the District Engineer, United States Army Engineer District, Louisville (hgeinafter the "District Engineer") furnishes the contractor with the Government's Written Notice of Acceptance of Completed Work for each contract awarded by the Government for the Project, the District Engineer shall furnish a copy thereof to the Non -Federal Sponsor. 4. The Government shall afford the Non -Federal Sponsor the opportunity to review and comment on all design products that are developed by contract or by Government personnel during the period of design. The Government shall consider in good faith the comments of the Non -Federal Sponsor, but the final approval of all design products, shall be exclusively within the control of the Government, B. The Non -Federal Sponsor shall contribute 25 percent of total design costs in accordance with the provisions of this paragraph. 1. The Non -Federal Sponsor shall provide funds in accordance with Article W.B. of this Agreement in the amount necessary to meet the Non -Federal Sponsor's share of 25 percent of total design costs if the Government projects at any time that the collective value of the Non -Federal Sponsors' contributions under Article III and Article VII of this Agreement will be less than such share. 2. The Government, subject to the availability of funds, shall refund or reimburse to the Non -Federal Sponsor any contributions in excess of 25 percent of total design costs if the Government determines at any time that the collective value of the following contributions has exceeded 25 percent of total design costs: (a) the value of the Non -Federal Sponsor's contributions under paragraph B.1, of this Article; and (b) the value of the Non -Federal Sponsor's contributions under Article III and Article VII of this Agreement. C. Upon conclusion of the period of design, the Government shall conduct an accounting, in accordance with Article IV,C- of this Agreement, and furnish the results to the Non -Federal Sponsor. D. The Non -Federal Sponsor shall not use Federal program funds to meet any of its obligations for the Project under this Agreement unless the Federal. agency providing funds verifies in writing that such fiords are expressly authorized to be used to carry out the Project, E, The Non -Federal Sponsor may request the Government to perform or provide, on behalf of the Non -Federal Sponsor, one or more of the services (hereinafter the "additional work") described in this paragraph. Such requests shall be in writing and shall describe the additional work requested to be performed or provided, If in its sole discretion the Government elects to perfoim or provide the requested additional work or any portion thereof, it shall so notify the Non -Federal Sponsor in a writing that sets forth any applicable terms and conditions, which must be consistent with this Agreement. In the event of conflict between such a writing and this Agreement, this Agreement shall control. The Non -Federal Sponsor shall be solely responsible for all costs of the additional work performed or provided by the Government under this paragraph and shall pay all such costs in accordance with Article N.D. of this Agreement. 1. Inclusion of betterments in the design of the Project. In the event the Government elects to include any such betterments, the Government shall allocate the costs of designing the features of the Project that include betterments between total design costs and the costs of the additional work. 2. Preparation of a floodplain management plan, required by Section 402 of the Water Resources Development Act of 1986, as amended (33 U.S.C. 70lb- 12), in connection with design of the flood risk management features or hurricane and storm damage reduction features of the Project. F. If the Government and a non -Federal interest enter into a Project Partnership Agreement for construction of the Project, or a separable element thereof, the Government, in accordance with the provisions of this paragraph, shall include the amount of total design costs in total project costs for the Project, or separable element thereof. Further, the Government, in accordance with the provisions of this paragraph, shall afford credit toward the non -Federal interest's share of total project costs for the Project, or separable element thereof, for the Non -Federal Sponsor's contributions toward total design costs under this Agreement. 1. If the Government and a non -Federal interest enter into a Project Partnership Agreement for construction of the entire Project, the Government shall include the amount of total design costs in total project costs for the Project. Further, the Government shall afford credit toward the non -Federal interest's share of total project costs for the Non -Federal Sponsor's contributions toward total design costs, including any excess amount determined in accordance with Article IV.C.2. or Article N.D.3,b, of this Agreement that was not refunded or reimbursed by the Government. 2. If the Government and a non -Federal interest enter into a Project Partnership Agreement for construction of a separable element of the Project, the Government shall determine the portion of total design costs that are allocable to such separable element and include such amount in total project costs for such separable element. Further, the Government shall determine the amount of the Non -Federal Sponsor's contributions toward total design costs, including any excess amount determined in accordance with Article IV.C.2. or Article IV.D.3.b. of this Agreement that was not refunded or reimbursed by the Government, that are allocable or attributable to such separable element and shall afford credit for such amount toward the non -Federal interest's share of total project costs of such separable element. 3. If the Government and a non -Federal interest do not enter into a Project Partnership Agreement for construction of the Project or a separable element thereof, the Government shall not be obligated to refund or reimburse the Non -Federal Sponsor, in whole or in part, for any of the Non -Federal Sponsor's contribution of total design costs. Further, refund or reimbursement by the Government for any excess amount determined in accordance with Article N.C.2, or Article IV.D3.b. of this Agreement is subject to the availability of funds. 4. Notwithstanding any other provision of Article II.F, of this Agreement, any amount credited for the value of the Non -Federal Sponsor's contributions toward total design costs provided in accordance with Articles III and VII of this Agreement shall not be applied toward the 5 percent cash share required by Section 163(a)(1) (A) of the Water Resources Development Act of 1986, Public Law 99-662, as amended (33 U.S.C. 2213(a)(1XA)), G. This Agreement shall not be construed as obligating either party to seek funds for, or to participate in, construction or implementation of the Project or a separable element thereof or as relieving the Non -Federal Sponsor of any future obligation under the terms of any Project Partnership Agreement. ARTICLE III - DESIGN COORDINATION TEAM A. To provide for consistent and effective communication, the Non -Federal Sponsor and the Government, not later than 30 calendar days afterthe effective date of this Agreement, shall appoint named senior representatives to a Design Coordination Team. Thereafter, the Design Coordination Team shall meet regularly until the end of the period of design, The Government's Project Manager and a counterpart named by the Non -Federal Sponsor shall co-chair the Design Coordination Team. B. The Government's Project Manager and the Non -Federal Sponsor's counterpart shall keep the Design Coordination Team informed of the progress of design and of significant pending issues and actions, and shall seek the views of the Design Coordination Team on matters that the Design Coordination Team generally oversees. -L -L L_1 _.__ ___ -_-_L -LL -1-L :._1 A C. Until the end of the period of design, the Design Coordination Team shall generally oversee the Project, including matters related to: design; completion of all necessary environmental coordination and documentation; scheduling of reports and work products; plans and specifications; real property and relocation requirements for construction of the Project, design contract awards and modifications; design contract costs; the Government's cost projections; anticipated requirements and needed capabilities for performance of operation, maintenance, repair, rehabilitation, and replacement of the Project including issuance of permits; and other matters related to the Project. This oversight of the Project shall be consistent with a project management plan developed by the Government after consultation with the Non -Federal Sponsor, D. The Design Coordination Team may make recommendations to the District Engineer on matters related to the Project that the Design Coordination Team generally oversees, including suggestions to avoid potential sources of dispute. The Government in good faith shall consider the recommendations of the Design Coordination Team. The Government, having the legal authorityand responsibility for design of the Project, has the discretion to accept or reject, in whole or in part, the Design Coordination Team's recommendations. E. The Non -Federal Sponsor's costs of participation in the Design Coordination Team shall be included in total design costs and shared in accordance with the provisions of this Agreement, subject to an audit in accordance with Article VII.C. of this Agreement to determine reasonableness, allocability, and allowability of such costs. The Government's costs of participation in the Design Coordination Team shall be included in total design costs and shared in accordance with the provisions of this Agreement. ARTICLE IV - METHOD OF PAYMENT A. In accordance with the provisions of this paragraph, the Government shall maintain current records and provide to the Non -Federal Sponsor current projections of costs, financial obligations, and the contributions provided by the parties. 1. As of the effective date of this Agreement, total design costs are projected to be $600,000; the value of the Non -Federal Sponsor's contributions funds under Article III and Article VII of this Agreement is projected to be $25,000; the Non -Federal Sponsor's contribution of funds required by Article 1131. of this Agreement is projected to be $125,000; the non -Federal proportionate share is projected to be 21.74 percent; and the Government's total financial obligations to be incurred for additional work and the Non -Federal Sponsor's contribution of funds for such costs required by Article 11.9. of this Agreement are projected to be $ 0. These amounts and percentage are estimates subject to adjustment by the Government, after consultation with the Non -Federal Sponsor, and are not to be construed as the total financial responsibilities of the Government and the Non -Federal Sponsor. 2. By April 1, 2013 and by each quarterly anniversary thereof until the conclusion of the period of design and resolution of all relevant claims and appeals, the Government shall provide the Non -Federal Sponsor with a report setting forth all contributions provided to date and the current projections of the following: total design costs; the value of the Non -Federal Sponsor's contributions under Article III and Article VII of this Agreement; the value of the Non -Federal Sponsor's total contribution of funds required by Article II.B.1. of this Agreement; the non -Federal proportionate share; the total contribution of funds required from the Non -Federal Sponsor for the upcoming contract and upcoming fiscal year; the Government's total financial obligations to be incurred for additional work; and the Non -Federal Sponsor's contribution of funds for such costs required by Article II.E. of this Agreement. B. The Non -Federal Sponsors shall provide the contribution of funds required by Article II.B.1. of this Agreement in accordance with the provisions of this paragraph. 1. Not less than 7 calendar days after the effective date of this agreement, the Government shall notify the Non -Federal Sponsor in writing of the funds the Government determines to be required from the Non -Federal Sponsor to meet: (a) the non -Federal proportionate share of f nancial obligations for design incurred prior to the commencement of the period of design; (b) the projected non - Federal proportionate share of financial obligations for design to be incurred for such contract; and (c) the projected non -Federal proportionate share of financial obligations for design using the Government's own forces through the fust fiscal year. Within 30 calendar days of the receipt of such notice, the Non -Federal Sponsor shall provide the Government with the full amount of such required funds by delivering a check payable to "FAO, USAED, Louisville" to the District Engineer, 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 presenting the Government with an irrevocable letter of credit acceptable to the Government for such required funds, or by providing an Electronic Funds Transfer of such required funds in accordance with procedures established by the Government. 2. Thereafter, until the design of the Project is complete, the Government shall notify the Non -Federal Sponsor in writing of the funds the Government determines to be required from the Non -Federal Sponsor, and the Non -Federal Sponsor shall provide such funds in accordance with the provisions of this paragraph. a. The Government shall notify the Non -Federal Sponsor in writing, no later than 60 calendar days prior to the scheduled date for issuance of the solicitation for each remaining contract for design of the Project, of the funds the Government determines to be required from the Non -Federal Sponsor to meet the projected non -Federal proportionate share of financial obligations for design to be incurred for such contract. No later than such scheduled date, the Non -Federal Sponsor shall make the full amount of such required funds available to the Government through any of the payment mechanisms specified is paragraph B.1. of this Article. b. The Government shall notify the Non -Federal Sponsor in writing, no later than 60 calendar days prior to the beginning of each fiscal year in which the Government projects that it will make financial obligations for design of the Project using the Government's own forces, of the funds the Government determines to be required from the Non -Federal Sponsor to meet the projected non -Federal proportionate share of financial obligations for design using the Government's own forces for that fiscal year. No later than 30 calendar days prior to the beginning of that fiscal year, the Non -Federal Sponsor shall make the full amount of such required funds for that fiscal year available to the Government through any of the payment mechanisms specified in paragraph B.1. of this Article. 3. The Government shall draw from the funds provided by the Non Federal Sponsor such sums as the Government deems necessary to cover: (a) the non - Federal proportionate share of financial obligations for design incurred prior to the commencement of the period of design; and (b) the non -Federal proportionate share of financial obligations for design as financial obligations for design are incurred. If at any time the Government determines that additional funds will be needed from the Non -Federal Sponsor to cover the Non -Federal Sponsor's share of such financial obligations for the current contract or to cover the Non -Federal Sponsor's share of such financial obligations for work performed using the Government's own forces in the current. fiscal year, the Government shall notify the Non -Federal Sponsor in writing of the additional funds required and provide an explanation of why additional funds are required. Within 60 calendar days from receipt of such notice, the Non - Federal Sponsor shall provide the Governgient with the full amount of such additional required funds through any of the payment mechanisms specified in paragraph B, 1. of this Article. C. Upon conclusion of the period of design and resolution of all relevant claims and appeals, the Government shall conduct a final accounting and furnish the Non - Federal Sponsor with written notice of the results of such final accounting. If outstanding relevant claims and appeals prevent a final accounting from being conducted in a timely manner, the Government shall conduct an interim accounting and furnish the Non -Federal Sponsor with written notice of the results of such interim accounting. Once all outstanding relevant claims and appeals are resolved, the Government shall amend the interim accounting to complete the final accounting and furnish the Non -Federal Sponsor with written notice of the results of such final accounting. The interim or final accounting, as applicable, shall determine total design costs. In addition, the interim or final accounting, as applicable, shall determine each party's required share thereof, and each party's total contributions thereto as of the date of such accounting. 1. Should the interim or final accounting, as applicable, show that the Non -Federal Sponsor's total required share of total design costs exceeds the Non - Federal Sponsor's total contributions provided thereto, the Non -Federal Sponsor, no later than 90 calendar days after receipt of written notice from the Government, shall make a payment to the Government in an amount equal to the difference by delivering a check payable to "FAO, USAED, Louisville" to the District Engineer or by providing an Electronic Funds Transfer in accordance with procedures established by the Government. 2. Should the interim or final accounting, as applicable, show that the total contributions provided by the Non -Federal Sponsor for total design costs exceed the Non -Federal Sponsor's total required share thereof, the Government, subject to the availability of funds, shall refund or reimburse the excess amount to the Non -Federal Sponsor within 90 calendar days of the date of completion of such accounting. In the event the Non -Federal Sponsor is due a refund or reimbursement and funds are not available to refund or reimburse the excess amount to the Non -Federal Sponsor, the Government shall seek such appropriations as are necessary to make the refund or reimbursement. If such appropriations are not received or, if the Non -Federal Sponsor requests that the Government not refund or reimburse the excess amount to the Non - Federal Sponsor, the Government shall apply the excess amount toward the share of total project costs for the Project that is required of the non -Federal interest executing a Project Partnership Agreement or agreements for the Project or separable element thereof in accordance with Article II.F. of this Agreement. D. The Non -Federal Sponsor shall provide the contribution of funds required by Article II.E. of this Agreement for additional work in accordance with the provisions of this paragraph. 1. Not less than 60 calendar days prior to the scheduled date for the first financial obligation for additional work, the Government shall notify the Non - Federal Sponsor in writing of such scheduled date and of the full amount of funds the Government determines to be required from the Non -Federal Sponsor to cover the costs of the additional work. No later than 30 calendar days prior to the Government incurring any financial obligation for additional work, the Non -Federal Sponsor shall provide the Government with the full amount of the funds required to cover the costs of such additional work through any of the payment mechanisms specified in paragraph B.1. of this Article. 2. The Government shall draw from the funds provided by the Non - Federal Sponsor such sums as the Government deems necessary to cover the Government's financial obligations for such additional work as they are incurred. If at any time the Government determines that the Non -Federal Sponsor must provide additional funds to pay for such additional work, the Government shall notify the Non - Federal Sponsor in writing of the additional funds required and provide an explanation of why additional funds are required. Within 30 calendar days from receipt of such notice, the Non -Federal Sponsor shall provide the Government with the full amount of 10 such additional required funds through any of the payment mechanisms specified in paragraph B.1. of this Article. 3. At the time the Government conducts the interim or final accounting, as applicable, the Government shall conduct an accounting of the Government's financial obligations for additional work incurred and furnish the Non - Federal Sponsor with written notice of the results of such accounting. If outstanding relevant claims and appeals prevent a final accounting of additional work from being conducted in a timely manner, the Government shall conduct an interim accounting of additional work and furnish the Non -Federal Sponsor with written notice of the results of such interim accounting. Once all outstanding relevant claims and appeals are resolved, the Government shall amend the interim accounting of additional work to complete the final accounting of additional work and furnish the Non -Federal Sponsor with written notice of the results of such final accounting. Such interim or final accounting, as applicable, shall determine the Government's total financial obligations for additional work and the Non -Federal Sponsor's contribution of funds provided thereto as of the date of such accounting. a. Should the interim or final accounting, as applicable, show that the total obligations for additional work exceed the total contribution of funds provided by the Non -Federal Sponsor for such additional work, the Non -Federal Sponsor, no later than 90 calendar days after receipt of written notice from the Government, shall make a payment to the Government in an amount equal to the difference by delivering a check payable to "FAO, USAED, Louisville" to the District Engineer or by providing an Electronic Funds Transfer in accordance with procedures established by the Government. b. Should the interim or final accounting, as applicable, show that the total contribution of funds provided by the Non -Federal Sponsor for additional work exceeds the total obligations for such additional work, the Government, subject to the availability of funds, shall refund the excess amount to the Non -Federal Sponsor within 90 calendar days of the date of completion of such accounting. In the event the Non -Federal Sponsor is due a refund and funds are not available to refund the excess amount to the Non -Federal Sponsor, the Government shall seek such appropriations as are necessary to make the refund. If such appropriations are not received or, if the Non -Federal Sponsor requests that the Government not refund the excess amount to the Non -Federal Sponsor, the Government shall apply the excess amount toward the share of total project costs for the Project that is required of the non -Federal interest executing a Project Partnership Agreement or agreements for the Project or separable element thereof in accordance with Article II.F. of this Agreement. ARTICLE V - DISPUTE RESOLUTION As a condition precedent to a party bringing any suit for breach of this Agreement, that party must first notify the other 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 both parties. Each party shall pay an equal share of qT' 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. ARTICLE VI -- HOLD AND SAVE The Non -Federal Sponsor shall hold and save the Government free from all damages arising from design of the Project and design of any additional work pursuant to Article II.E. of this Agreement, except for damages due to the fault or negligence of the Government or its contractors. ARTICLE VII - MAINTENANCE OF RECORDS AND AUDIT A. Not later than 60 calendar days after the effective date of this Agreement, the Government and the Non Federal Sponsor shall develop procedures for keeping books, records, documents, or other evidence pertaining to costs and expenses incurred pursuant to this Agreement. 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 CYX Section 33.20. The Government and the Non -Federal Sponsor shall maintain such books, records, documents, or other evidence in accordance with these procedures and for a minimum of three years after completion of the accounting for which such books, records, documents, or other evidence were required. To the extent permitted under applicable Federal laws and regulations, the Government and the Non -Federal Sponsor shall each allow the other to inspect such books, records, documents, or other evidence. B. In accordance with 32 C.F.R. Section 33.26, the Non -Federal Sponsor is responsible for complying with the Single Audit Act Amendments of 1996 (31 U.S.C. 7501-7507), as implemented by Office of Management and Budget (OMB) Circular No. A-133 and Department of Defense Directive 7600.10. Upon request of the Non -Federal Sponsor and to the extent permitted under applicable Federal laws and regulations, the Government shall provide to the Non -Federal Sponsor and independent auditors any information necessary to enable an audit of the Non -Federal Sponsor's activities under this Agreement. The costs of any non -Federal audits performed in accordance with this paragraph shall be allocated in accordance with the provisions of OMB Circulars A-87 and A-133, and such costs as are allocated to the Project shall be included in total design costs and shared in accordance with the provisions of this Agreement. 12 C. In accordance with 31 U.S.C. 7503, the Govemment may conduct audits in addition to any audit that the Non Federal Sponsor is required to conduct under the Single Audit Act Amendments of 1996. 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 performed in accordance with this paragraph shall be included in total design costs and shared in accordance with the provisions of this Agreement. ARTICLE VIII - FEDERAL AND STATE LAWS In the exercise of their respective rights and obligations under this Agreement, the Non -Federal 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 and Army Regulation 600-7, entitled "Nondiscrimination on the Basis of Handicap in Programs and Activities Assisted or Conducted by the Department of the Army' ARTICLE IX - RELATIONSHIP OF PARTIES A. 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. B. In the exercise of its rights and obligations under this Agreement, neither party Shall provide, without the consent of the other party, any contractor with a release that waives or purports to waive any rights the other party may have to seek relief or redress against that contractor either pursuant to any cause of action that the other party may have or for violation of any law. ARTICLE X - TERMINATION OR SUSPENSION A. If at any time the Non -Federal Sponsor fairs to fulfill its obligations under this Agreement, the Assistant Secretary of the Army (Civil Works) shall terminate this Agreement or suspend future performance under this Agreement unless the Assistant Secretary of the Army (Civil Works) determines that continuation of design of the Project 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 the Project. B. In the event the Government projects that the amount of Federal funds the Government will make available to the Project through the then -current fiscal year, or the amount of Federal funds the Government will make available for the Project' through the upcoming fiscal year, is not sufficient to meet the Federal share of total 13 design costs that the Government projects to be incurred through the then -current or upcoming fiscal year, as applicable, the Government shall notify the Non -Federal Sponsor in writing of such insufficiency of funds and of the date the Government projects that the Federal funds that will have been made available to the Project will be exhausted. Upon the exhaustion of Federal funds made available by the Government to the Project, future performance under this Agreement shall be suspended. Such suspension shall remain in effect until such time that the Government notifies the Non -Federal Sponsor in writing that sufficient Federal funds are available to meet the Federal share of total design costs the Government projects to be incurred through the then -current or upcoming fiscal year, or the Government or the Non -Federal Sponsor elects to terminate this Agreement. C. In the event the Government determines that modifications to the Project are required and that additional authorization by Congress will be required before the Government may construct such modifications, the Government shall notify the Non - Federal Sponsor in writing of such determinations and shall terminate this Agreement. D. In the event that this Agreement is terminated pursuant to this Article, both parties shall conclude their activities relating to the Project and conduct an accounting in accordance with Article N.C. of this Agreement. To provide for this eventuality, the Government may reserve a percentage of total Federal funds made available for the Project and an equal percentage of the total funds contributed by the Non -Federal Sponsor in accordance with Article II.B.1. of this Agreement as a contingency to pay costs of termination, including any costs of resolution of contract claims and contract modifications. E. Any termination of this Agreement or suspension of future perfornmance under this Agreement in accordance with this Article shall not relieve the parties of liability for any obligation previously incurred. Any delinquent payment owed by the Non -Federal Sponsor 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 XI - NOTICES A. Any notice, request, demand, or other communication required or permitted to be given under this Agreement shall be deemed to have been duly given if in writing and delivered personally or sent by telegram or mailed by first-class, registered, or certified mail, as follows: 14 If to the Non -Federal Sponsor. Mayor City of Paducah, Kentucky City Hall - 300 South 5th Street P.O. Box 2267 Paducah, KY 42002-2267 AND (send to both Mayor and City Engineer) City Engineer and Public Works Director City of Paducah, Kentucky City Hall - 300 South Sth Street P.O. Box 2267 Paducah, KY 42002-2267 If to the Government: District Engineer U.S. Army Engineer District, Louisville P;O. Box 5.9 Louisville, Kentucky 40201-0059 B. A party may change the address to which such communications are to be directed by giving written notice to the other party in the manner provided in this Article. C. Any notice, request, demand, or other communication made pursuant to this Article shall be deemed to have been received by the addressee at the earlier of such time as it is actually received or seven calendar days after it is mailed. ARTICLE XII - 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. 15 ARTICLE XIII - THIRD PARTY RIGHTS, BENEFITS, OR LIABILITIES Nothing in this Agreement is intended, not may be conshued, to create any rights, confer any benefits, or relieve any liability, of any kind whatsoever in any third person not 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 Engineer. DEPARTMENT OF THE ARMY BY: Luke T. Leonard Colonel, Corps of Engineers Commander and District Engineer CITY OF PADUCAH, KENTUCKY *1e;ofPaducah DATE: DATE: ., S /3 16 CERTIFICATE OF AUTHORITY I, W. David Denton, do hereby certify that I am the principal legal officer of the City of Paducah, Kentucky, that the City of Paducah, Kentucky 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 Paducah, Kentucky in connection with design of the Ohio River Shoreline, Paducah, Kentucky (Paducah, Kentucky LFPP) Reconstruction Project, and to pay damages, if necessary, in the event of the failure to perform is accordance with the terms of this Agreement and that the person who has executed this Agreement on behalf of the City of Paducah, Kentucky has acted widen her statutory authority. WITNESS WHEREOF, I have made and executed this certification this _ 11dayof�A&Q. .2013. W. David Denton City Attorney, City of Paducah, Kentucky 17 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. G4aty L Paducah, Kentucky DATE: 31 13 18