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HomeMy WebLinkAboutC2010-498 - 12/14/2010 - ApprovedINTERLOCAL COOPERATION AGREEMENT BETWEEN TEXAS A & M UNIVERSITY -- CORPUS CHRISTI AND THE CITY OF CORPUS CHRISTI TAMU-CC WHEREAS, Texas A & M University -- Corpus Christi {"TAMU-CC") and the City of Corpus Christi ("City") are authorized by Chapter 791 of the Texas Government Code to enter into an interiocal cooperation contract; WHEREAS, TAMU-CC has been a partner in the City's air quality planning activities for the Coastal Bend Region through the TAMU-CC's Pollution Prevention Partnership Program; WHEREAS, the City desires to continue its partnership with TAMU-CC in this effort; WHEREAS, the Pollution Prevention Partnership Program includes identifying business and activities for program delivery based on emission inventory information, the development of pollution prevention strategies for reducing emissions, educational outreach and other action plans for improving the Corpus Christi area air quality and maintain compliance with federal ozone standards; WHEREAS, the 81st Texas Legislature in Rider 8 to the Texas Commission on Environmental Quality's air quality planning appropriations in Article VI. of the General Appropriation Act ("Rider $") made funds available to the Texas Commission on Environmental Quality ("TCEQ") for air quality planning activities to reduce ozone in areas approved by the TCEQ, including Corpus Christi; WHEREAS, the City entered into a Grant Agreement For Air Quality Planning ("Grant") with the Texas Commission on Environmental Quality ("TCEQ"}, Contract No. 582-11- 11223, for air quality planning activities in areas considered to be near non-attainment for the ozone standard under the- Federal Clean Air Act Amendmen#s of 199D, 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, and conduct air quality planning activities in the Coastal Bend Region; WHEREAS, an element of the City's proposal for the Grant was TAMU-CC's proposed "Pollution Prevention Partnership and Educational Outreach Programs" as a continuation of the City's Regional Air Quality Committee's Pollution Prevention Partnership Program; WHEREAS, the Grant provides funding for the Pollution Prevention Partnership Program and Educational Outreach Programs and other types of air quality planning activities and projects that the City, in cooperation with its partners, will complete by Page 1 of 11 2010-498 Res. 028$91.local -- 12a1zo1o 1214/10 ~~~~~~~ August 31, 2011(and possibly later if the Grant is extended based on authority received from the Texas Legislature to carry forward near non-attainment contract related monies from the 2010-201'1 biennium into the 2012-2013 biennium) detailed in the "city of Corpus Christi Fiscal Year 2011 Rider 8 Phase li Work Plan Effective Date Through August 31, 2011" {"Work Plan"), approved by the TCEQ, and attached to and incorporated into TCEQ Contract No. 582-11-11223 as Attachment B (copy available upon request}; and WHEREAS, the technical support contemplated by this agreement is of mutual interest and benefit to TAMU-CC and City; it will further the instructional and research objectives of TAMU-CC, 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 ("EPA") and TCEQ; NOW, THEREFORE, the parties hereto agree as follows: 1. GRANT SUBCONTRACT. Both the City and TAMU-CC acknowledge that this agreement is a subcontract to the City's Grant from TCEQ {TCEQ Contract Number 582-11-11223), and that the terms and conditions of the Grant control the administration and execution of this contract. a. The TCEQ Grant Contract No. 582-11-11223 is incorporated into this agreement by reference and is available upon request, 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. TAMU-CC agrees to comply to all requirements imposed by TCEQ that are applicable to subcontractors. d. TAMU-CC 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. TAMU-CC shall be responsible for the professional quality, technical accuracy, timely completion and the coordination of al! services and other work furnished by TAMU-CC under this agreement. TAMU-CC must perform the work in conformity with the standards and guidance documents provided by the TCEQ. The City and TCEQ may withhold reimbursement for costs ofnon-conforming work. 2, STATEMENT OF WORK. TAMU-CC agrees to use its best efforts to complete all elements identified under Task 5 -Planning and Outreach of the Work Plan, which describes the specific elements of the projects and deliverables in support of the State Implementation Plan (SIP) development process and other types of air quality planning Page 2 of 11 TAMU--CC Air Quality Planninglnterlocal -- 1201201Q activi#ies and projects that the TAMU-CC, as the City's subcontractor, will complete by August 31, 2011. 3. PRINCIPAL INVESTIGATORS. The program will be supervised by Ms. Gretchen Arnold and Dr. Jim Needham, of the Department of University Outreach. If, for any reason, either is unable to continue to serve as Principal Investigator, and a successor acceptable to both TAMU-CC 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 the execution date of the contract through August 31, 2011. 5. PRICE AND PAYMENT. As compensation for the performance of the agreement, the City agrees to reimburse TAMU-CC up to Two Hundred Thousand Dollars ($200,000) 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 TAMU-CC, if funding is not available from TCEQ through the Grant. Payments may not exceed Two Hundred Thousand Dollars {$200,000) from the execution of this Agreement to August 31, 2011. b. All contractual expenditures reimbursed with funds provided under this agreement shall meet all procurement laws and regulations applicable to TAMU- CC 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 OMB Circular A-102, as adopted in the UGMS, precludes the use of the cost plus a percentage of cost method of contracting. c. TAMU-CC 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 wi#hdrawal 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. TAMU-CC may require a bid band to protect the local and state interests by assuring that a bidder will, upon acceptance, execute ail required contractual documents within the time period specified. Page 3 of 11 TAMU-CC Air Quality Rlanninglnterlocal -- 12012010 d. Invoices for compensation shall be submitted to the following address: City of Corpus Christi Attn: Peggy Sumner P.O. Box 9277 Corpus Christi, TX., 78469-9277 6. DELIVERABLES. The deliverables required under this agreement are specified in the Work Plan. 7. TERMINATION. Performance under #his agreement may be terminated by the City upon sixty days written notice. Performance may be terminated by TAMU-CC, if circumstances beyond its control preclude continuation of the program. Upon termination, TAMU-CC will be reimbursed as specified in Paragraph 5 of all costs and non-cancelable commitments incurred in the performance of the program, that are reimbursable under the Grant. However, reimbursement.may not exceed the total estimated cost specified in Paragraph 5. 8. INTELLECTUAL PROPERTY. a. Royalties and Patent Fees. TAMU-CC 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. TAMU-CC shall promptly notify the City and TCEQ of all intellectual property that TAMU-CC or TAMU-CC's employees, subcontractors, or subcontractor's employees may produce, either solely or jointly with others, during the course of the Work. In addition, TAMU-CC shall promptly notify the City and TCEQ of all intellectual property #o which TAMU-CG 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, TAMU-CG shall supply additional information as the City and TCEQ may request. c. Failure to Protect Intellectual Property. If TAMU-CC fails to protec# any intellectual property rights in the 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 intellectual property. d. Non-interference with Intellectual Property Rights of City and TCEQ. TAMU- CC agrees that TAMU-CC, 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 Page 4 of 11 TAMU--CC Air Quality Planninglnterlocal --1241201 Q performing the work, unless TAMU-CC has independent intellectual property rights #o the intellectual property. e. Grant of License. With respect to any intellectual property as is {i) incorpora#ed 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 (ir) produced by TAMU-CC or TAMU-CC's employees, subcontractors, or subcontractor's employees during the course of performing the work TAMU-CC hereby grants to the City and TCEQ {~) a nonexclusive, 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 Intellectual Property for the City's and TCEQ'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 the modi#ications. TAMU-CC steal! not incorporate any modifications into its intellectual property for distribution #o third parties unless it first obtains a license from the City and TCEQ. g. Compliance with Applicable Laws and Regulations. TAMU-CC shall comply with all laws and regulations relating to intellectual property. h. Warranties Relating to Intellectual Property Rights. TAMU-CC represents and warrants to the City and TCEQ that TAMU-CC will not infringe any intellectual property right of any third party. TAMU-CC 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 pa#ent fees. TAMU-CC 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 al! licenses granted in this agreement, and that the license use by the City and TCEQ will in noway constitute an infringement or other violation of any intellec#ual property right of any third party. The TAMU-CC warrants that it shall have, throughou# any applicable license term under this agreement, 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 TAMU-CC. Except as permitted in this agreement and the Gran#, TAMU-CC 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. TAMU-CC represents and warrants to the City and TCEQ that neither it nor any other company or individual performing the work is under any obliga#ion Page 5 of 11 TAMU-CC Air Quality Pianninglnteriocal -- 12012010 to assign or give to any third party any intellectual property rights granted or assigned to the City and TCEQ, or reserved by the City and TCEQ, under this agreement and the Grant. 9. RELEASE OF INFORMATION. TAMU-CC shall acknowledge the City and TCEQ, the TAMU-CC investigator, the nature of the program, and the dollar value of the agreement in TAMU-CC records and reports. Any reports and other documents completed as part of this agreement, other than documents prepared exclusively for internal organizational use by TAMU-CC, shall carry the following notations on the front cover or title page: "PREPARED IN COOPERATION WITH THE TEXAS COMMISSION ON ENVIRONMENTAL QUALITY AND THE CITY OF CORPUS CHRISTI" 1Q. 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 TAMU-CC. a. TAMU-CC agrees to conduct physical property inventories, to maintain property records and necessary control procedures, and #o provide adequate maintenance with respect to all equipment acquired under this agreement. b. TAMU-CC 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 TAMU-CC or its subcontractor is not in place or currently in use, TAMU-CC 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. TAMU-CC agrees to use these as guides for establishing a property management system. c. 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 mare, shat[ be conducted no less frequently than once every two years and the results of the inventories reconciled with the appropriate property records. Property control procedures utilized by TAMU-CC shall include adequate safeguards to prevent loss, damage, or theft of the acquired property. Any loss, damage or theft shall be investigated. TAMU-CC 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 Page 6 of 11 TAMU--CC Air Quality Planninglnterlocal -- 12012010 proper sales procedures to ensure the highest possible return, in the event the equipment is sold. e. Use of Equipment Acquired with Funds Provided Under this Agreement. (1) Equipment sha}I be used by TAMU-CC or subgrantee in the program or project for which it was acquired as long as needed, whether or no# 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. (2) TAMU-CC 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 the use will not interfere with the Work on the projects or program for which it was originally acquired. First preference far other use shall be given to other programs or projects supported by the awarding agency. (3) When acquiring replacement equipment, TAMU-CC 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 federa} 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,OQQ 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 fi}e and made available to the TCEQ upon request. (2) Equipment with a current per-unit fair market value of $1,OQD or more must be disposed of as follows: {A) Prior to the termination date of this Agreement, TAMU-CC and subgrantees must notify the TCEQ. TCEQ may require TAMU-CC or subgrantee to transfer title and possession to the equipment to the TCEQ or a third party named by the TCEQ or may alternatively authorize disposition by safe, transferor in another manner. {B) If, within six years of the initiation date of the Agreement, equipment is sold or transferred, TAMU-CC must remit to TCEQ a share of the proceeds from the sale, provided the fair market, per- Page 7 of 11 TAMU--CC Air Quality Planningtnierlocal - 12012010 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 Agreement that enabled the original purchase in question. 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 the name and address by notice to the other in accordance herewith, and any change shall take effect immediately upon receipt of the notice. TAMU-CC Texas A & M University -Corpus Christi 6300 Ocean Drive, NRC #2200 Corpus Christi, TX., 78412 Attn: Gretchen Arnold Telephone: (361) 825-3070 Fax: (361) 825-2384 CITY City of Corpus Christi Attn: Peggy Sumner P.O. Box 9277 Corpus Christi, TX., 78469 Telephone: (361) 826-1868 Fax: (361) 826-4681 12. EXPORT ADMINISTRATION. a. It is understood that TAMU-CC 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 under this agreement 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 TAMU-CC and City hereby agree and warrant that the program and development contemplated under this agreement, and any exchange of technical data, computer software or other commodities resulting from this agreement, shelf be conducted in full compliance with the export control laws of the United States, Page 8 of 11 TAMU--CC Air Quality Pfanninglnterlocal-- 12012070 13. LIABILITY. IT IS UNDERSTOOD THAT CITY SHALL NOT BE LIABLE FOR ANY CLAIMS AGAINST TAMU-CC, ITS EMPLOYEES, OR THIRD PERSONS, OTHER THAN CITY'S EMPLOYEES, FOR DAMAGE RESULTING FROM OR ARISING OUT OF THE ACTIVITIES OF TAMU- CC PERSONNEL UNDER THIS AGREEMENT, AND TAMU-CC AGREES, TO THE EXTENT PERMITTED BYSECTIDN 49, ARTICLE Ill OF THE CONSTITUTION DF THE STATE OF TEXAS, TD HOLD CITY HARMLESS FROM ANYAND ALL CLAIMS. IT IS ALSO UNDERSTOOD THAT TAMU-CC 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 TAMU-CC EMPLOYEES, AND CITY AGREES, TO THE EXTENT PERMITTED BYSECTIDN 49, ARTICLE 111 DF THE CONSTITUTION OF THE STATE OF TEXAS, TO HOLD TAMU- CC HARMLESS FROM ANY AND ALL CLAIMS. 14. INDEPENDENT CONTRACTOR. For the purposes of the agreement and all services to be provided under this agreement, 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 in this agreement 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 TAMU-CC 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 TAMU-CC by more than $25,000 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 the 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 TAMU-CC agree Page 9 of 1 '! TAMU--CC Air Quality Planninglnterlocal -- 12012D10 that this agreement shall be reformed to replace the 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. 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, TAMU-CC, is designated as the officer designated under §2260.052, Texas Government Code, to examine claims and counterclaims, negotiate, and resolve any claims on behalf of TAMU-CC. 18. VENUE. TAMU-CC 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. TAMU-CC 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 of the counties is Nueces County, TAMU-GC agrees to venue in Nueces County. This provision does not waive the City's sovereign immunity. 19. MISCELLANEOUS. This agreemen# 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. Page 10 of 11 TAMU--CC Air Quality Pianninglnterlocal -- 12012010 TEXAS A & M UNIVERSITY -- CORPUS CHRISTI ~y: Dr. L s Cifuent s De ,Graduate Education A ociate Vice President, Research & Scholarly Activities Date: Ja CITY OF CORPUS CHRISTI ATTEST Armando Chapa Gity Secretary ,~`S ~o~ $ b Ilt)rTHORII~D ICY CF1t3RGIL ...,.~,~.~.~.`~~ ~• SECiRE7A~ r g R, Escobar City Manager Date: I2//6 APPROV~ AS TO FORM: This ~ ay of December, 2010 .)ay eini Fi st Assistant City Attorney For City Attorney Page 11 of 11 tamucccont