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HomeMy WebLinkAboutC2010-508 - 12/14/2010 - ApprovedINTERLOCAL COOPERATION AGREEMENT BETWEEN UNIVERSITY OF NORTH TEXAS AND THE CITY OF CORPUS CHRISTI INTERLOCAL COOPERATION AGREEMENT between University of North Texas ("UNT") and the City of Corpus Christi ("City"), WHEREAS, UNT and the City are authorized by Chapter 791 of the Texas Government Code to en#er into an interlocal cooperation contract; WHEREAS, UNT has been a partner in the City's air quality planning activities far 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 i#s partnership with UNT 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 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 8") 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 Amendments of 199Q, 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 Gity's proposal for the Grant was UNT's proposed "Corpus Christi Ozone Near Non-Attainment Area Assessment and Planning Study", which study will be prepared by UNT, as a continuation of the City's Regional Air Quality Committee's Air Quality Assessment and Planning Program; WHEREAS, the Grant provides funding far UNT's proposed "Corpus Christi Ozone Near Non-Attainment Area Assessment and Planning Study", in cooperation with its 2010-508 Page 1 of 11 Res. 028890 ocai -- ~zt~2a~o.aoc 12/14/10 Univ. Of North Texas ~~~~~~ partners, wilt complete by 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 2010-2011 biennium into the 2012-2013 biennium) detailed in the "City of Corpus Christi Fiscal Year 2011 Rider 8 Phase II 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 UNT and the City; it will further the instructional and research objectives of UNT, 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 "8-hour 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 UNT acknowledge that this agreement is a subcontract to the City's Grant from TCEQ (TCEQ Contract Number 5$2-11- 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. UNT agrees to comply to all requirements imposed by TCEQ that are applicable to subcontractors. d. UNT agrees to conduct all of its activities in compliance with the terms of the Grant, and not to take any action that would cause ar contribute to the City to defaulting upon the terms of the Grant. e. UNT shall be responsible for the professional quality, technical accuracy, timely completion and the coordination of all services and other work furnished by UNT under this agreement. UNT 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 of non-conforming work. 2. STATEMENT OF WORK. UNT agrees to use its best efforts to complete all elements identified under Task 1 -Update Conceptual Model through the 2010 Ozone Season, Task 2 -Ambient Monitoring Projects, Task 3 -Emissions inventory Improvement, and Task 4 -- Air Quality Modeling Planning for FY 2011 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 Page 2 of 11 UNT--CC Air Quality Planning Interlocal -- 12172~10.DpC quality planning activities and projects that the City, in cooperation with its partners, will complete by August 31, 2011, as described in the Rider $ Funding Request for a Carpus Christi Ozone Near Nan-Attainment Area Research Study; which is attached to TCEQ Contract No. 582-11-11223 as Attachment B (copy available upon request). 3. PRINCIPAL INVESTIGATOR. The program will be supervised by Dr. Kuruviila John, Department of Engineering, UNT. If, for any reason, he is unable to continue to serve as Principal Investigator, and a successor acceptable to both UNT and the City is not available, this agreement shall be terminated as provided in Paragraphs 7. 4. PERIOD OF PERFORMANCE. The program shall be conducted from the effective date of the Notice to Proceed from TCEQ through August 31, 2011, unless sooner terminated under Paragraph 7. 5. PRICE AND PAYMENT. As compensation for the performance of the agreement, the City agrees to reimburse UNT on acost-reimbursable basis in an amount up to Two Hundred Fifty-nine Thousand Dollars ($259,000) for expenses authorized under the Grant, as approved by TCEQ. UNT agrees to expend funds under the budget detailed in Exhibit 1, Cast Estimate, which is attached to and incorporated into this agreement by reference. 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 UNT, if funding is not available from TCEQ through the Grant. Payments may not exceed Two Hundred Fifty-nine Thousand Dollars ($259,000) 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 UNT 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. UNT 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. UNT 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. Page 3 of 11 UNT--CC Air Quality Planning Interlocal -- 12172010.~OC 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 e. The City agrees to reimburse UNT for the costs billed within thirty {30) days of receipt of invoice. All payment shall be sent ta: Office of Research Services University of North Texas 1155 Union Circle #305250 Denton, Texas 76203-5017 f. If TCEQ does not approve an item invoiced by UNT and does not reimburse the City for the expenditure, UNT shall reimburse the City for costs of the item that was not funded by TCEQ. fi. DELIVERABLES. The deliverables required under this agreement are specified in the Work Pfan. 7. TERMINATION. Performance under this agreement may be terminated by the City upon sixty days written notice. Performance may be terminated by UNT, if circumstances beyond its control preclude continuation of the program. Upon termination, UNT 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 exceed the total estimated cost specified in Paragraph 5. 8. INTELLECTUAL PROPERTY, a. Royalties and Patent Fees: UNT 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. UNT shall promptly notify the City and TCEQ of all intellectual property that UNT or UNT's employees, subcontractors, or subcontractor's employees may produce, either solely or jointly with others, during the course of the Work. In addition, UNT shall promptly notify the City and TCEQ of all intellectual proper#y to which UNT may acquire rights in connection with the performance of the work. Any notification under this paragraph shat[ captain 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, UNT shall supply such additional information as the City and TCEQ may request. Page 4 of 11 UNT--CC Air Qualify Planning Inferlocal -- 12172014.DOC c. Failure to Protect Intellectual Property. If UNT falls 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. UNT agrees that UNT, 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 UNT has independent intellectual property rights to the intellectual property. e. Grant of License. With respect to any intellectual property as is (r) 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 UNT or UNT's employees, subcontractors, or subcontractor's employees during the course of performing the work UNT hereby grants to the City and TCEQ (r) a nonexclusive, perpetual, irrevocable, enterprise-wide license to reproduce, publish, ar otherwise use the intellectual property and associated use documentation, and (ir) a nonexclusive, perpetual, irrevocable, enterprise-wide license to authorize others to reproduce, publish, or otherwise use such 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 Gity and TCEQ shall own all intellectual property rights to such modifications. UNT 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. g. Compliance with Applicable Laws and Regulations. UNT shall comply with all laws and regulations relating to intellectual property. h. Representations Relating to Intellectual Property Rights. UNT represents to the City and TCEQ that UNT will not infringe any intellectual property right of any third party. UNT #urther represents 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. UNT represents 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 UNT represents fihat 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 Page 5 of 11 UNT--CC Air Quality Planning Interlocal -- 12172010.DOC that are licensed or provided to the City and TCEQ by UNT. Except as permitted in this agreement and the Grant, UNT 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. UNT represents 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 TCEQ, or reserved by the City and TCEQ, under this agreement and the Grant. 9. RELEASE OF INFORMATION. UNT shall acknowledge the City and TCEQ, the UNT investigator, the nature of the program, and the dollar value of the agreement in UNT records and reports. Any reports and other documents completed as part of this agreement, other than documents prepared exclusively for internal organizational use by UNT, shall carry the following notations an the front cover or title page: "PREPARED [N COOPERATION WITH THE TEXAS COMMISSION ON ENVIRONMENTAL QUALITY AND THE CITY OF CORPUS CHRISTI" '[0. 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 UNT. a. UNT 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. UNT 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 UNT or its subcontractor is not in place or currently in use, UNT 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. UNT 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 halls 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 ($1,048) or more, shall be conducted no Tess frequently than once every two years and the results of such inventories reconciled with the appropriate Page 6 of 11 UH7--CC Air Quality Planning Interlocal -- t2172010.DOC property records. Property control procedures utilized by UNT shall include adequate safeguards to prevent loss, damage, or theft of the acquired property. Any loss, damage or theft shall be investigated. UNT 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 UNT or subgrantee in the program or project far 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. (2) UNT 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, UNT 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, UNT and subgrantees must notify the TCEQ. TCEQ may require UNT or subgrantee to transfer title and possession to such equipment to Page 7 of 11 UNT--CC Air Qualify Planning Interlocal -- 12172010.~OC the TCEQ or a third party named by the TCEQ or may alternatively authorize disposition by sale, transfer or in another manner. (B) If, within six years of the initiation date of the Agreement, equipment is sold or transferred, UNT 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 safe proceeds shall be the same percentage as was the funding provided under this Agreement that enabled the origins[ 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 by U.S. Postal Services certified mail, return receipt requested, postage prepaid or by an overnight courier service with written verification of receipt. 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. UNT University of North Texas Office of Research and Economic Development Attention: Barbara Lindley 1155 Union Circle #305250 Denton, Texas 762x3-5017 Telephone: (940} 565-3939 Fax: (940} 565-4277 G ity City of Corpus Christi Attn: Peggy Sumner P.O. Box 9277 Corpus Christi, TX 78469 Telephone: (361) $80-359 9 Fax: (361 } 880-3501 12. EXPORT ADMINISTRATION. a. It is understood that UNT 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. Page 8 of 11 UNT--CC Air Quality Planning Interlocal -- 121720t0.pOC b. Both UNT 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. 13. LIABILITY. 1T IS UNDERSTOOD THAT CITY SHALL NOT BE LIABLE FOR ANY CLAIMS AGAINST UNT, ITS EMPLOYEES, OR THIRD PERSONS, OTHER THAN CITY'S EMPLOYEES, FOR DAMAGE RESULTING FROM OR ARISING OUT OF THE ACTIVITIES OF UNT PERSONNEL UNDER THIS AGREEMENT, AND UNT AGREES, TO THE EXTENT PERMITTED BY THE LAWS OF THE STATE OF TEXAS, TO HOLD CITY HARMLESS FROM ANY AND ALL SUCH CLAIMS, IT IS ALSO UNDERSTOOD THAT UNT SHALL NOT BE HELD LIABLE FOR ANY CLAIMS AGAINST THE CITY, THE CITY'S EMPLOYEES, OR THIRD PERSONS, OTHER THAN UNT EMPLOYEES, FOR DAMAGE RESULTING FROM OR ARISING OUT OF ACTIVITIES OF THE CITY, ITS EMPLOYEES, OR THIRD PERSONS, OTHER THAN UNT EMPLOYEES, AND CITY AGREES, TO THE EXTENT PERMITTED BY THE LAWS OF THE STATE OF TEXAS, TO HOLD UNT 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 UNT 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 UNT by $25,000 or more must be authorized by the City Council before an amendment to this agreement is executed. Page9of11 U~lT--GG Air Quality Planning Interlocal -- 12172014.DOC 16. ASSIGNMENT. This Agreement may not be assigned in whole or in part without the prior written permission of the parties to this agreement. 16. SEVERABILITY. if any of the provisions of the agreement in the application thereof to any person or circumstance, is rendered ar 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 sha[I be enfiorced to the greatest extent by applicable law. The City and UNT 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. 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, UNT, 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 UNT. 1S. VENUE. UNT 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. UNT 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 mare counties of proper venue under the rules of mandatory, general, ar permissive venue, and one such county is Nueces County, venue is 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 bath 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 interlacal 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. UNIVERSITY OF NORTH TEXAS Page 10 of 11 U~tT--CC lair Quality Planning Interlocal -- 12172010.DOC rl ,~ ~ By: , .._~~~ J~0 ,~7~: Jean R. Binh .Acting Senior Assoc. VP for Finance Date: ~ ~1~-s.~G'tI CITY OF CORPUS CHRISTI ATTEST: ~~' C17tf~G!l..,,~~~~,`~~ ..».. SfC~~7'A~~' Armando Chapa City Secretary By: ,~' e R.Escobar City Manager Date: /~2d ~// ~ ~o~ / APPROVED AS TO FORM: Thls ~~ day of ~~k~• , ~@~'I'0"~ R. y R fining First A sistant Ci y Attorney Far City Attorney Page 11 0# 11 UNT--CC Air Quality Planning Interlocal -- 12172010.DOC EXHIBIT 1- COST ESTIMATE Salary Benefits Travel Subcontracts Participant Costs Indirect Costs TOTAL $66,291.70 $22,089.30 $3,626.00 $9s,ooo.oo $14,000.00 $54,993.00 $259,000.00