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
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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
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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.
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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
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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
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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
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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-
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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,
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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
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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.
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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
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