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HomeMy WebLinkAboutC2006-483 - 10/31/2006 - Approved INTERLOCAL COOPERA liON AGREEMENT BETWEEN TEXAS A & M UNIVERSITY -- KINGSVILLE AND THE CITY OF CORPUS CHRISTI INTERLOCAL COOPERATION AGREEMENT between TEXAS A & M UNIVERSITY _ KINGSVILLE ("TAMUK'l and THE CITY OF CORPUS CHRISTI ("City"), WHEREAS, TAMUK and the City are authorized by Chapter 791 of the Texas Government Code to enter into an interlocal cooperation contract; WHEREAS, T AMUK has been a partner in the City's air quality planning activities for the Coastal Bend Region through the City's Regional Air Quality Committee's Air Quality Assessment and Planning Program: WHEREAS, the City desires to continue its partnership with T AMUK in this effort; WHEREAS, the Assessment and Planning Program includes identifying sources of emissions, the development of pollution prevention strategies for reducing emissions, and other action plans for improving the Corpus Christi area air quality and maintain compliance with federal ozone standards; WHEREAS, the 79th Texas Legislature at Article VI.8 of the General Appropriation Act ("Rider 8") made funds available to the Texas Commission on Environmental Quality ("TCEQ") to conduct air quality planning activities in areas considered to be near non- attainment: WHEREAS, the CITY entered into a State Funded Grant Agreement ("Grant"), Contract No. 582-6-70888 (Resolution No. 026555, December 13,2005) with the Texas CommiSSion on Environmental Quality ("TCEQ") to fund air quality planning activities in areas considered to be near non-attainment for the ozone standard under the Federal Clean Air Act Amendments of 1990, which activities may include without limitation identifying, inventorying, and monitoring of current pollution levels; modeling future pollution levels and the identification and quantification of potential pollution reduction through voluntary control. and which activities will be consistent with TCEQ monitoring, inventory and modeling approaches and infrastructure. The City conducts air quality assessment and planning activities in the Coastal Bend Region; WHEREAS, an element of the City's proposal for the Grant was T AMUK's proposed "Corpus Christi Ozone Near Non-Attainment Area Assessment and Planning Study", which study will be prepared by TAMUK, as a continuation of the City's Regional Air Quality Committee's Air Quality Assessment and Planning Program; WHEREAS, the Grant provides funding for the Air Quality Assessment and Planning Programs and other types of air quality planning activities and projects that the City, in cooDeration with its oartners, will complete by August 31, 2007 (and possibly later if the 2006-483 on authority received from the Texas Legislature to carry 10/31/06 Page 1 of 11 Res02703U "I -\ \) U " forward near non-attainment contract related monies from the 2006-2007 biennium into the 2008-2009 biennium) detailed In a Work Plan approved by the TCEQ (Attachment 8) WHEREAS, the technical support contemplated by this agreement is of mutual interest and benefit to T AMUK and the City; it will further the instructional and research objectives of T AMUK, in a manner consistent with its status as an agency of the State of Texas. and it will help the City accomplish objectives of its "03 Flex Intergovernmental Agreement" with the United States Environmental Protection Agency C'EPA") and TCEO. NOW, THEREFORE, the parties hereto agree as follows: 1, GRANT SUBCONTRACT. 80th the City and T AMUK acknowledge that this agreement is a subcontract to the City's Grant from TCEQ (TCEO Contract Number 582-6-70888), and that the terms and conditions of the Grant control the administration and execution of this contract. a The Grant is Incorporated into this agreement and is enclosed as Attachment A b. In the event any provision of this agreement conflicts with the terms of the Grant, the terms of the Grant control the administration and execution of this agreement c. T AMUK agrees to comply to all requirements imposed by TCEQ that are applicable to subcontractors. d T AMUK agrees to conduct all of its activities in compliance with the terms of the Grant. and not to take any action that would cause or contribute to the City to defaulting upon the terms of the Grant e. TAMUK shall be responsible for the professional quality, technical accuracy, timely completion and the coordination of all services and other work furnished by T AMUK under this agreement. T AMUK must perform the work in conformity with the standards and guidance documents provided by the TCEQ. The City and TCEO may withhold reimbursement for costs of non-conforming work. 2. STATEMENT OF WORK. TAMUK agrees to use its best efforts to execute Section II of the Work Plan document that describes down to the task level the projects in support of the State Implementation Plan (SIP) development process and other types of air quality planning activities and projects that the City, in cooperation with its partners, will complete by August 31, 2007 as described in the Rider 8 Funding Request for a Corpus Christi Ozone Near Non-Attainment Area Research Study, which is attached to this agreement as Attachment 8 TAMUf' 06-C7ontract doc Page 2 of 11 3, PRINCIPAL INVESTIGATOR. The program will be supervised by Dr. Kuruvilla John, Department of Environmental Engineering, TAMUK. If, for any reason, he is unable to continue to serve as Principal Investigator, and a successor acceptable to both T AMUK and the City is not available, this agreement shall be terminated as provided In Paragraph '7 4, PERIOD OF PERFORMANCE. The program shall be conducted from September 1, 2006 as delineated in the Notice to Proceed executed by TCEQ through August 31, 2007. 5. PRICE AND PAYMENT. As compensation for the performance of the agreement, the City agrees to reimburse T AMUK up to Four Hundred Twenty-five Thousand Dollars ($425,000) for expenses authorized under the Grant. a. This agreement is funded exclusively from funds made available to the City by the Grant. The City's obligation is limited by the provisions of the Grant. The City is not liable to make payment to T AMUK, if funding is not available from TCEQ through the Grant b All contractual expenditures reimbursed with funds provided under this agreement shall meet all procurement laws and regulations applicable to TAMUK and the UGMA and the UGMS. Note that competitive bidding will generally be required for contracts with entities other than local governments and state and federal agencies. Note also that the Common Rule of OMS Circular A-1 02, as adopted in the UGMS, precludes the use of the cost plus a percentage of cost method of contracting. c TAMUK shall forward any proposed subagreement providing for the performance of services under this agreement to the City prior to execution of the subagreement. Neither the City's or TCEQ's failure to question a subagreement nor its subsequent withdrawal of any questions raised regarding a subagreement shall in any way imply the City or TCEQ's approval of the subagreement's purpose or method of procurement of the subagreement. Further, the terms of this proVision do not in any way restrict the City's and TCEQ's rights under this agreement or the Grant to subsequently refuse reimbursement for expenses incurred pursuant to the subagreement. TAMUK may require a bid bond to protect the local and state interests by assuring that a bidder will, upon acceptance, execute all required contractual documents within the time period specified. d Invoices for compensation shall be submitted to the fol/owing address: City of Corpus Chnsti Attn: Kevin Stowers PO. Box 9277 Corpus Christi. TK 78469-9277 TA,MUr 06.( lontract doc Page 3 of 11 6, OELlVERABLES. The deliverables required under this agreement are specified in the Work Plan, Attachment B 7. TERMINATION. Performance under this agreement may be terminated by the City upon sixty days written notice. Performance may be terminated by T AMUK, if cIrcumstances beyond ItS control preclude continuation of the program. Upon termination, T AMUK will be reimbursed as specified in Paragraph 5 of all costs and non-cancellable commitments incurred in the performance of the program, that are reimbursable under the Grant. However, reimbursement may not to exceed the total estimated cost specified in Paragraph 5. 8. INTELLECTUAL PROPERTY. a. Royalties and Patent Fees. T AMUK shall pay all license fees and royalties and assume all costs incident to the use or possession in the performance of the Work or the incorporation in the Work of any Intellectual Property. b. Disclosure of Intellectual Property Produced during the Work. TAMUK shall promptly notify the City and TCEQ of all intellectual property that T AMUK or T AMUK's employees, subcontractors, or subcontractor's employees may produce, either solely or Jointly with others, during the course of the Work. In addition, TAMUK shall promptly notify the City and TCEQ of all intellectual property to which T AMUK may acquire rights in connection with the performance of the work Any notification under this paragraph shall contain sufficient technical detail to convey a clear understanding of the intellectual property, and shall identify any publication, sale, public use, or impending publication. Promptly upon request, T AMUK shall supply such additional information as the City and TCEQ may request C. Failure to Protect Intellectual Property. If TAMUK fails to protect any Intellectual property rights in the intellectual property produced in the course of performing the work, the City and TCEQ shall have full authority to protect, assume and retain all intellectual property rights in any and all such intellectual property. d. Non-interference with Intellectual Property Rights of City and TCEQ. TAMUK agrees that T AMUK, its agents, and its employees shall not in any manner use, sell, distribute, disclose or otherwise communicate any portion of intellectual property owned by or licensed to the City or TCEQ, except in the course of performing the work, unless T AMUK has independent intellectual property rights to the intellectual property e Grant of License. With respect to any intellectual property as is (i) incorporated in the work (other than intellectual property for which the City and TCEQ already possesses equal or greater intellectual property rights by virtue of this agreement or otherwise) or (ii) produced by TAMUK or TAMUK's employees, subcontractors, or subcontractor's employees during the course of performing the work T AM UK hereby grants to the City and TCEQ (i) a nonexclusive, Page 4 of 11 f.A.Mt.w 06.C7:ontract.do( perpetual, Irrevocable, enterprise-wide license to reproduce, publish, or otherwise use the intellectual property and associated use documentation, and (ii) a nonexclusive, perpetual. Irrevocable, enterprise-wide license to authorize others to reproduce, publish. or otherwise use such Intellectual Property for the (::;ity's and TCEO s purposes f Modification; Derivative Works. The City and TCEQ shall have the right, at their own discretion, to independently modify any intellectual property to which license is granted for the City's and TCEQ's own purposes and use, through the services of its own employees or independent contractors. The City and TCEQ shall own all intellectual property rights to such modifications. T AMUK shall not Incorporate any such modifications into its intellectual property for distribution to third parties unless it first obtains a license from the City and TCEQ. 9 Compliance With Applicable Laws and Regulations. T AMUK shall comply with all laws and regulations relating to intellectual property. h. Warranties Relating to Intellectual Property Rights. TAMUK represents and warrants to the City and TCEO that T AMUK will not infringe any intellectual property right of any third party. TAMUK further represents and warrants to the City and TCEQ that in the course of performing the work it will not use or possess any intellectual property owned by a third party without paying any required royalty or patent fees. T AMUK warrants that it has full title in and ownership of the Intellectual property and any enhancements, updates or other modifications, or that it has full power and authority to grant all licenses granted herein, and that such license use by the City and TCEQ will in no way constitute an infringement or other violation of any intellectual property right of any third party. The T AMUK warrants that it shall have, throughout any applicable license term hereunder, free and clear title to, or the right to possess, use sell, transfer, assign, license, or sublicense products that are licensed or provided to the City and TCEQ by T AMUK. Except as permitted in this agreement and the Grant, T AMUK shall not create or permit the creation of any lien, encumbrance, or security interest in the work or any part thereof, or any product licensed or provided to the City and TCEQ for which title has not yet passed to the City and TCEQ, without the prior written consent of the City and TCEQ. TAMUK represents and warrants to the City and TCEQ that neither it nor any other company or individual performing the work is under any obligation to assign or give to any third party any intellectual property rights granted or assigned to the City and TCEO. or reserved by the City and TCEQ, under this agreement and the Grant 9. RELEASE OF INFORMATION. T AMUK shall acknowledge the City and TCEQ, the T AMUK investigator, the nature of the program, and the dollar value of the agreement in T AMUK records and reports. Any reports and other documents completed as part of this agreement, other than documents prepared exclusively for internal organizational use by T AMUK. shall carry the following notations on the front cover or title page: rAM' w 06J.7 'ontract doc Page 5 of 11 'PREPARED IN COOPERATION WITH THE TEXAS COMMISSION ON ENVIRONMENT AL QUALITY AND THE CITY OF CORPUS CHRISTI" 10. TITLE TO EQUIPMENT. Subject to the obligations and conditions set forth in this agreement and the Grant, title to all equipment acquired under this agreement shall vest, upon acquisition or construction, in TAMUK a. TAMUK agrees to conduct physical property inventories, to maintain property records and necessary control procedures, and to provide adequate maintenance with respect to all equipment acquired under this agreement. b. T AM UK may develop and use its own property management system which must conform with all applicable State and local laws, rules, and regulations. If an adequate system for accounting for personal property owned by T AMUK or its subcontractor is not in place or currently in use, T AMUK shall contact the State of Texas Comptroller of Public Accounts and request the State Property Accounting User's Guide (#96-418) and the State Property Class Code List. T AMUK agrees to use these as guides for establishing a property Management system Property records must be maintained that include a description of the property, a serial number or other identification number, the source of property, who holds title, the acquisition date, and the cost of the property, percentage of federal participation in the cost of the property, the location, use and condition of the property, and any ultimate disposition data including the date of disposal and sale price of the property d. A physical Inventory of all equipment acquired or replaced with funds provided under this agreement having an initial purchase price of One Thousand Dollars ($1,000) or more. shall be conducted no less frequently than once every two years and the results of such inventories reconciled with the appropriate property records. Property control procedures utilized by T AMUK shall include adequate safeguards to prevent loss, damage, or theft of the acquired property. Any loss, damage or theft shall be investigated. T AMUK agrees to develop and carry out a program of property maintenance as necessary to keep both originally acquired and any replaced property in good condition, and to utilize proper sales procedures to ensure the highest possible return, in the event such equipment is sold e Use of Equipment Acquired with Funds Provided Under this Agreement. (1) Equipment shall be used by T AMUK or subgrantee in the program or project for which it was acquired as long as needed, whether or not the project or program continues to be supported by state funds. When no longer needed for the original program or project, the equipment may be used In other activities currently or previously supported by a federal or state agency. TAM(Jr: 06-(17. :ontractc1o( Page 6 of 11 (2) T AMUK or subgrantee shall also make equipment available for use on other projects or programs currently or previously supported by the federal or state government, providing such use will not interfere with the Work on the projects or program for which it was originally acquired. First preference for other use shall be given to other programs or projects supported by the awarding agency (3) When acquiring replacement equipment, TAMUK or subgrantee may use the equipment to be replaced as a trade-in or sell the property and use the proceeds to offset the cost of the replacement property, subject to the approval of the awarding agency. f Disposition of Equipment Acquired with Funds Provided Under this Agreement When original or replacement equipment is no longer needed for the original project or program or for other activities currently or previously supported by a federal or state agency, disposition of the equipment may be made as follows (1) Equipment with a current per-unit fair market value of less than $1,000 may be retained, sold or otherwise disposed of with no further obligation to the TCEQ. Methods used to determine per unit fair market value must be documented, kept on file and made available to the TCEQ upon request (2) EqUipment with a current per-unit fair market value of $1,000 or more must be disposed of as follows: (A) Prior to the termination date of this Agreement, TAMUK and subgrantees must notify the TCEQ. TCEQ may require TAMUK or subgrantee to transfer title and possession to such equipment to the TCEQ or a third party named by the TCEQ or may alternatively authorize disposition by sale, transfer or in another manner. (8) If, within six years of the initiation date of the Agreement, equipment is sold or transferred. TAMUK must remit to TCEQ a share of the proceeds from such sale, provided the fair market, per- unit value of the property at the time of the sale is in excess of one thousand dollars ($1,000). The TCEQ's share of the sale proceeds shall be the same percentage as was the funding provided under this A.greement that enabled the original purchase in question. T AMJi-' 06-;7 :ontract.cJoc Page 7 of 11 11. NOTICES. All notices to parties under this Agreement shall be in writing and sent to the names and address stated below. Either party to the Agreement may change such name and address by notice to the other in accordance herewith, and any such change shall take effect immediately upon receipt of such notice. TAMUK Texas A & M University - Kingsville Attn Ms. Sandra L. Rexroat Campus Box 201 Kingsville TX 78363 Telephone: (361) 593-3344 Fax: (361) 593-3409 CITY City of Corpus Chnstl Attn. Kevin Stowers PO. Box 9277 Corpus Christi, TX 78469 Telephone (361) 880-3519 Fax (361) 880-3501 12. EXPORT ADMINISTRATION. a. It is understood that T AMUK is subject to United States laws and regulations controlling the export of technical data, computer software, laboratory prototypes and other commodities, and that its obligations hereunder are contingent upon compliance with applicable United States export laws and regulations. Furthermore, it is understood that the transfer of certain technical data and commodities may require a license from one or more agencies of the United States Government. b. Both T AMUK and City hereby agree and warrant that the program and development contemplated hereunder, and any exchange of technical data, computer software or other commodities resulting therefrom, shall be conducted in full compliance with the export control laws of the United States. T AMIJI< 06-C7.ontract doc Page 8 of 11 13. LIABILITY. IT IS UNDERSTOOD THAT CITY SHALL NOT BE LIABLE FOR ANY CLAIMS AGAINST T AMUK, ITS EMPLOYEES, OR THIRD PERSONS, OTHER THAN CITY'S EMPLOYEES, FOR DAMAGE RESULTING FROM OR ARISING OUT OF THE ACTIVITIES OF TAMUK PERSONNEL UNDER THIS AGREEMENT, AND TAMUK AGREES, TO THE EXTENT PERMITTED BY SECTION 49, ARTICLE ILL OF THE CONSTITUTION OF THE STATE OF TEXAS, TO HOLD CITY HARMLESS FROM ANY AND ALL SUCH CLAIMS. IT IS ALSO UNDERSTOOD THAT TAMUK SHALL NOT BE HELD LIABLE FOR ANY CLAIMS AGAINST CITY'S EMPLOYEES, OF DAMAGE RESULTING FROM OR ARISING OUT OF ACTIVITIES OF THE CITY, ITS EMPLOYEES, OR THIRD PERSONS, OTHER THAN T AMUK EMPLOYEES, AND CITY AGREES, TO THE EXTENT PERMITTED BY SECTION 49, ARTICLE ILL OF THE CONSTITUTION OF THE STATE OF TEXAS, TO HOLD TAMUK HARMLESS FROM ANY AND ALL SUCH CLAIMS. 14. INDEPENDENT CONTRACTOR. For the purposes of the agreement and all services to be provided hereunder. the parties shall be, and shall be deemed to be, independent contractors and not agents or employees of the other party. Neither party shall have authority to make any statements, representations, or commitments of any kind, or to take any action which shall be binding on the other party, except as may be explicitly provided for herein or authorized in writing. 15. AMENDMENTS AUTHORIZED a. The representatives who were authorized to sign this agreement are authorized to execute minor amendments to this agreement, such as changes in deadlines and minor changes in the scope of work. b. Any amendments to this agreement resulting from amendments to the Grant that increase the scope of work under this agreement due to TCEQ's award of additional funding to the City as a result of the work plan prepared by T AMUK under this agreement must be authorized by the City Council and the funds appropriated before an amendment to this agreement is executed. c Any amendments to this agreement increasing or decreasing the amount the City is obligated to pay T AMUK by $25,000 or more must be authorized by the City Council before an amendment to this agreement is executed. 16. SEVERABILITY. If any of the provisions of the agreement in the application thereof to any person or circumstance, is rendered or declared illegal for any reason, or shall be invalid or unenforceable, the remainder of the agreement and the application of such provision to other persons or circumstances shall not be affected thereby, but shall be enforced to the greatest extent by applicable law. The City and T AMUK agree that this agreement shall be reformed to replace such stricken provision or part thereof with a valid and enforceable proVision that comes as close as possible to expressing the Intention of the stricken provision TAM jV 06-(. 7 ~ontractl1or Page 9 of 11 17, DISPUTE RESOLUTION PROCESS. a To the extent applicable. the dispute resolution procedures provided in Chapter 2260 of the Texas Government Code will be used to resolve contract claims under this contract. b If the Chapter 2260 procedures are utilized both parties agree that the TCEQ may intervene in the proceedings as an interested party. c, The Director of Purchasing, TAMUK, is designated as the officer designated under Sec 2260,052, Texas Government Code, to examine claims and counterclaIms, negotiate. and resolve any claims on behalf of T AMUK. 18. VENUE. T AMUK acknowledges and agrees that because this agreement has been executed, and will be administered in Nueces County, Texas, the agreement is to be performed in Nueces County, T AMUK acknowledges and agrees that any permissible cause of action involving this agreement will arise solely in Nueces County. If a legal action related to this claim is permissible and there are two (2) or more counties of proper venue under the rules of mandatory, general, or permissive venue, and one such county is Nueces County, T AMUK agrees to venue in Nueces County. ThIs provision does not waive the City's sovereign immunity 19. MISCELLANEOUS. This agreement constitutes the entire agreement between the parties relative to the subject matter, and may only be modified or amended by a written agreement signed by both parties, It shall be construed in accordance with the laws of the State of Texas 20. AUTHORIZATION OF GOVERNING BODIES. The individuals executing this agreement certify that this interlocal agreement has been authorized by the Governing Body for their, as required by Section 791, Texas Government Code. IN WITNESS WHEREOF, the parties have caused this agreement to be executed by their authorized representative, T AMl ) K 06-07 Contract doc Page 10 of 11 TEXAS A & M UNIVERSITY. KINGSVILLE By'. ~. /, ~~~ L'./~)< Sandra L Rexroat.) Director, Sponsored Research Date: _(~/~,/tJP CITY OF CORPUS CHRISTI ATTEST f'~. \. \ i._ I ArmandoChapa' ~...._- City Secretary APPROVED AS TO FORM: This ~ !~day of.CCc4-~ .2006 ~bO~iA, Ga W.USmith Assistant City Attorney For City Attorney r AMi!f< 06-07ontractdoc Page 11 of 11 Oft<''11f't!~ t" George K. Noe City Manager Date: I r /... '0' By: ...~2--1 D3 D AUTHOIIZbi ~ ~Il I n/3/ JDb f I -- ~~~r:r~