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HomeMy WebLinkAboutCOM 0489.000 2000-2002 J~yv.®s N9h~ Harry Kim 9% William Takaba ~~,6i,•, Mayor ~ Director ' 1 Nancy E. Crawford +f A:- ,r. M*~p``• _ Deputy Director o~ ~P i1 19 OZ ~li~: ~..1~1 P~! ~ County of ~-Iaw~ii ; , Finance I)epartnaent t;{~L: ~ it tw, ~ ~ ° ' 25 Aupuni Street, Room 118 • Hilo, Hawaii 96720 (808)961-8234 Fax (808)961-8248 January 11, 2002 Honorable James Arakaki, Chairperson and Members of the County Council Hawaii County Council 25 Aupuni Street Hilo, Hawaii 96720 Re: Resolution for amulti-year agreement Enclosed is a resolution authorizing the Mayor to enter into amulti-year cost sharing agreement with the Department of Army for a feasibility study for the Keopu-Hienatoli Streams Flood Control project. The U.S. Army Corps of Engineers has conducted a reconnaissance study of the flooding problems for the areas within the Keopu and Hienaloli watersheds in the North Kona District and has determined that further study in the nature of a feasibility study is required to assess the extent of the Federal interest in participating in a solution to the identified problem. In order to expedite this matter, the Department of Public Works would like to request a waiver from the Finance committee and have this resolution heard at the Council meeting scheduled for January 24, 2002. If there are any questions, please do not hesitate to call the Department of Public Works. illiam Takaba Director of Finance AP ROVED: Harry Kim Mayor Enc. Nye cc: Public Works .1. Form B-52 7/18/91 DEPARTMENT OF FINANCE REOUEST FOR COUNCIL ACTION DEPARTMENT: PUBLIC WORKS, ENGINEERING DIVISION CATS: 1/10/0_- STAFF CONTACT: BEN ISHII PHONE: x832% A. REQUEST: Resolution to allow department to enter into a multi-year agreement with the Department of Army for a feasibility study for the Keopu-Hienalol~ Streams Flood Control project. The County is responsible for fifty percent of the study costs. B. BACKGROUND AND JUSTIFICATION (USE ADDITIONAL SHEETS AS NEEDED): The U.S. Army Corps of Engineers has conducted a reconnaissance study of the flooding problems for the areas within the Keopu and Hier.aloli watersheds in the North Kona District and has determined than i~_rr-,< study in the nature of a Feasibility Study is required to assess *_r;e; extent of the Federal interest in participating in a solution to one identified problem. ~~~d1LS SIGNED: DATE: (j Department Head t: Keopu Hienaloli Streaerss Flood Control Proiect Proiect Management Plan -continued 14.0 SCHEDULE OF FISCAL YEAR FUNDING The feasibiliey study is scheduled to start in the second quarter of the Federal government's FY02 and is anticipated to be completed by the end of the second quarter of FY05. The Federal government's fiscal year begins 1 October. The cost share breakdown of study funds by Federal fiscal year is shown below in 'Table 3. TABLE 3. COST SHARE BREAI~D®WN BY FEDERAL FISCAL YEAR FY02 FY03 FY04 FY05 TOTAL Federal Goverianaent $184,000 $230,000 $ 80,500 $17,250 $ 511,750 Coa~aty of I-Iavvai`i, DPI $184,000 $230,000 $ 80,500 $17,250 $ 511,750 (Pe°o'ect S onsor) Cash Contribution $167,900 $209,300 $ 71,300 $17,250 $ 465,750 In-Kind Services $ 16,100 $ 20,700 $ 9,200 $ 0 $ 46,000 T(~T'AL ESTIMATED STUDY COST $368,000 $460,000 $161,000 $34,500 $1,023,00 The net Project Sponsor share for FY02, FY03, FY04 and FY05 reflects a credit for in-kind services performed by the project sponsor during the feasibility study. The total credited amount resulting from in-kind services was estimated at $46,000. After deducting the credit from in- kind services, the total non-federal cash contribution to be provided by the project sponsor will be $465,750. 15.0 RESOURCE CONTROL The PM will manage, analyze and control all project and study costs and budgets in accordance with the approved PMP. However, management of funds to provide the required technical products within the authorized budget of the PMP remains the responsibility of the various functional chiefs. The PM's control and management of the overall project and study funds does not relieve the respective chiefs from this responsibility. 16.0 LOCAL COOPERATION PLAN The responsibilities of the project sponsor throughout this feasibility study are clearly defined in the FCSA. Additionally, individual line items in the form of in-kind services for which the sponsor is responsible are identified in the network analysis and work breakdown schedule. 6 1$~~ ljS t4rtny (:®rps ®f E~~ineers Honolulu Qistrict Island of ~Iawai `i, ~Iawai `i Continuing ~utho~itics Pro,~rarri, Section 205 ~caSlblllt~ COSt S11a~°ln~ ~~~~~111cnt January 2002 Agreement between the DEPARTMENT OF THE ARMY and the COUNTY OF HAWAII for the KEbPLJ-HIENALOLI STREAMS, HAWAII FEASIBILITY STUDY THIS AGREEMENT is entered into this day, of January, 2002, by and between the Department of the Army (hereinafter the "Government"), represented by the District Engineer executing this Agreement, and the County of Hawaii (hereinafter the "Sponsor"), WITNESSETH, that WHEREAS, the Congress has authorized the U.S. Army Corps of Engineers to conduct studies of flood control pursuant to the authority provided by Section 205 of the Flood Control Act of 1948 (Public Law 80-858), as amended; and WHEREAS, the U.S. Army Corps of Engineers has conducted a reconnaissance study of flooding problems for the areas within the Keopu and Hienaloli watersheds in the North Kona District on the west slopes of the Hualalai and Mauna Loa Mountains on the Island of Hawaii pursuant to-this authority, and has determined that further study in the nature of a "Feasibility Phase Study" (hereinafter ¢:he "Study") is required to fulfill the intent of the study authority and to assess the extent of the Federal interest in participating in a solution to the identified problem; and WHEREAS, Section 105 of the Water Resources Development Act of 1986 (Public Law 99-662, as amended) specifies the cost sharing requirements applicable to the Study; WHEREAS, the Sponsor has the authority and capability to furnish the cooperation hereinafter set forth and is willing to participate in study cost sharing and financing in accordance with the terms of this Agreement; and WHEREAS, the Sponsor and the Government understand that entering into this Agreement in no way obligates either party to implement a project and that whether the Government supports a project authorization and budgets it for implementation depends upon, among other things, the outcome of the Study and whether the proposed solution is consistent with the Economic and Environmental Principles and Guidelines for Water and Related Land Resources Im~slementation Studies and. with the budget priorities of the Administration; NOW THEREFORE, the parties agree as follows: ARTICLE I -DEFINITIONS For the purposes of this Agreement: A. The term "Study Costs" shall mean all disbursements by the Government pursuant to this Agreement, from Federal appropriations or from funds made available to the Government by the Sponsor, and all negotiated costs of work performed by the Sponsor pursuant to this Agreement. Study Costs shall include, but not be limited to: labor charges; direct costs; overhead expenses; FCSA 1 . supervision and administration costs; the costs of participation in Study Management and Coordination in accordance with Article IV of this Agreement; the costs of contracts darith third parties, including termination or suspension charges; and any termination or suspension costs (ordinarily defined as those costs necessary to terminate ongoing contracts or obligations and to properly safeguard the work already accomplished) associated with this Agreement. B. The term "estimated Study Costs" shall mean the estimated cost of performing the Study as of the effective date of this Agreement, as specified in Article III.A. of this Agreement. C. The term "excess Study Costs" shall mean Study Costs that exceed the estimated Study Costs and that do not result from mutual agreement of the parties, a change in Federal law that increases the cost of the Study, or a change in the scope of the Study requested by the Sponsor. D. The term "study period" shall mean the time period for conducting the Study, commencing with the release to the U.S. Army Corps of Engineers, Honolulu District of initial Federal feasibility funds following the execution of this Agreement and ending with the Chief of Engineers' acceptance of the study. E. The term "PMP'° shall mean the Project Management Plan, which is attached to this .Agreement and which shall not be considered binding on either party and is subject to change by the Government, in consultation with the Sponsor. F. The term "negotiated costs" shall mean the costs of in-kind services to be provided by the Sponsor in accordance with the PMP. G. The term "fiscal year" shall mean one fiscal year of the Government. The Government fiscal year begins on October 1 and ends on September 30. ARTICLE II -OBLIGATIONS OF PARTIES A. The Government, using funds and in-kind services provided by the Sponsor and funds appropriated by the Congress of the United States, shall expeditiously prosecute and complete the Study, in accordance with the provisions of this Agreement and Federal laws, regulations, and policies. B. In accordance with this Article and Article IILA., IILB. and IILC. of this Agreement, the Sponsor-shall contribute cash and in-kind services equal to fifty (50) percent of Study Costs other than excess- Study Costs. The Sponsor may, consistent with applicable law and regulations, contribute up to 25 percent of Study Costs through the provision of in-kind services. The in-kind services to be provided by the Sponsor, the estimated negotiated costs for those services, and the estimated schedule under which those services are to be provided are specified in the PMP. Negotiated costs shall be subject to an audit by the Government to determine reasonableness, allocability, and allowability. C. The Sponsor shall pay a fifty (50) percent share of excess Study Costs in accordance with Article III.D. of this Agreement. D. The Sponsor understands that the schedule of work may require the Sponsor to provide cash or in-kind services at a rate that may result in the Sponsor temporarily diverging from the FCSA 2 obligations concerning cash and in-kind services specified in paragraph B. of this Article. Such temporary divergences shall be identified in the quarterly reports provided for in Article IILA. of this Agreement and shall not alter the obligations concerning costs and services specif ed in paragraph B. of this Article or the obligations concerning payment specified in Article III of this Agreement. E. If, upon the award of any contract or the performance of any in-house work for the Study by the Government or the Sponsor, cumulative financial obligations of the Government and the Sponsor would result in excess Study Costs, the Government and the Sponsor agree to defer award of that and all subsequent contracts, and performance of that and all subsequent in-house work, for the Study until the Government and the Sponsor agree to proceed. Should the Government and the Sponsor require time to arrive at a decision, the Agreement will be suspended in accordance with Article X., for a period of not to exceed six months. In the event the Government and the Sponsor have not reached an agreement to proceed by the end of their 6 month period, the Agreement may be subject to termination in accordance with Article X. F. No Federal funds may be used to meet the Sponsor's share of Study Costs unless the Federal granting agency verifies in writing that the expenditure of such funds is expressly authorized by statute. G. The award and management of any contract with a third party in furtherance of this Agreement which obligates Federal appropriations shall be exclusively within the control of the Government. The award and management of any contract by the Sponsor with a third party in furtherance of this Agreement which obligates funds of the Sponsor and does not obligate Federal appropriations shall be exclusively within tlae control of the Sponsor, but shall be subject to applicable Federal laws and regulations. H. The Sponsor shall be responsible for the total cost of developing a response plan for addressing any hazardous substances regulated under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, Pub. L. No. 96-510, 94 Stat. 2767, (codified at 42 U.S.C. Sections 9601-9675), as amended, existing in, on, or under any lands, easements or rights-of--way that the Government determines to be required for the construction, operation, and maintenance of the project. Such costs shall not be included in total study costs. ARTICLE III -METHOD OF PAYMENT A. The Government shall maintain current records of contributions provided by the parties, current projections of Study Costs, current projections of each party's share of Study Costs, and current projections of the amount of Study Costs that will result in excess Study Costs. At bast quarterly, the Government shall provide the Sponsor a report setting forth this information. As of the effective date of this Agreement, estimated Study Costs are $1,023,500 and the Sponsor's share of estimated Study Costs is $511,750. In order to meet the Sponsor's cash payment requirements for its share of estimated Study Costs, the Sponsor must provide a cash contribution currently estimated to be $465,750. The dollar amounts set forth in this Article are based upon the Government's best estimates, which reflect the scope of the study described in the PMP, projected costs, price-level changes, and anticipated inflation. Such cost estimates are subject to adjustment by the Government and are not to be construed as the total financial responsibilities of the Government and the Sponsor. FCSA 3 B. The Sponsor shall provide its cash contribution required under Article II.B. of this Agreement in accordance with the following provisions: 1. For purposes of budget planning, the Government shall notify the Sponsor by July 1 of each year of the estimated funds that will be required from the Sponsor to meet the Sponsor's share of Study Costs for the upcoming fiscal year. 2. No later than 60 calendar days prior to the scheduled date for the Government's issuance of the solicitation for the first contract for the Study or for the Government's anticipated first significant in-house expenditure for the Study, the Government shall notify the Sponsor in writing of the funds the Government determines to be required from the Sponsor to meet its required share of Study Costs for the first (scat year of the Study. No later than 30 calendar days thereafter, the Sponsor shall verify to the satisfaction of the Government that the Sponsor has deposited the required funds in an escrow or other account acceptable to the Government, with interest accruing to the Sponsor. 3. For the second and subsequent fiscal years of the Study, the Government shall, no later than 60 calendar days prior to the beginning of the fiscal year, notify the Sponsor in writing of the funds the Government determines to be required from the Sponsor to meet its required share of Study Gosts for that fiscal year, taking into account any temporary divergences identified under Article II.D of this Agreement. No later than 30 calendar days prior to the beginning of the f seal year, the Sponsor shall make the full amount of the required funds available to the Government through the funding mechanism specified in paragraph 8.2. of this Article. 4. The Government shall draw from the escrow or other account provided by the Sponsor such sums as the Government deems necessary to cover the Sponsor's share of contractual and in-house fiscal obligations attributable to the Study as they are incurred. 5. In the event the Government determines that the Sponsor must provide additional funds to meet its share of Study Costs, the Government shall so notify the Sponsor in writing. No later than 60 calendar days after receipt of such notice, the Sponsor shall make the full amount of the additional required funds available through the funding mechanism specified in paragraph 13.2. of this Article. C. Within ninety (90) days after the conclusion of the Study Period or termination of this Agreement, the Government shall conduct a final accounting of Study Costs, including disbursements by the Government of Federal funds, cash contributions by the Sponsor, the amount of any excess Study Costs, and credits for the negotiated costs of the Sponsor, and shall furnish the Sponsor with the results of this accounting. Within thirty (30) days thereafter, the Government, subject to the availability of funds, shall reimburse the Sponsor for the excess, if any, of cash contributions and credits given over its required share of Study Costs, other than excess Study Costs, or the Sponsor shall provide the Government any cash contributions required for the Sponsor to meet its required share of Study Costs other than excess Study Costs. D. The Sponsor shall provide its cash contribution for excess Study Costs as required under Article ILC. of this Agreement by delivering a check payable to "FAO, USAED, I-IONOLULU DISTRICT" to the District Engineer as follows: FCSA 4 1. After the project that is the subject of this Study has been authorized for construction, no later than the date on which a Project Cooperation Agreement is entered into for the project; or 2. In the event the project that is the subject of this Study is not authorized for construction by a date that is no later than 5 years of the date of the final report of the Chief of Engineers concerning the project, or by a date that is no later than 2 years after the date of the termination of the study, the Sponsor shall pay its share of excess costs on that date (5 years after the date of the Chief of Engineers or 2 year after the date of the termination of the study). ARTICLE IV -STUDY MANAGEMENT AND COORDINATION A. To provide for consistent and effective communication, the Sponsor and the Government shall appoint named senior representatives to an Executive Committee. Thereafter, the Executive Committee -shall meet regularly until the end of the Study Period. E. Until the end of the Study Period, the Executive Committee shall generally oversee the Study consistently with the PMP. C. The Executive Committee may make recommendations that it deems warranted to the District Engineer on matters that it oversees, including suggestions to avoid potential sources of disp~ate. The Government in good faith shall consider such recommendations. The Government has the discretion to accept, reject, or modify the Executive- Committee's recommendations. D. The Executive Committee shall appoint representatives to serve on a Study Management Team. The. Study Management Team shall keep the Executive Committee informed ~f the progress of the Study and of significant pending issues and actions, and shall prepare periodic reports on the progress of all work items identified in the PMP. E. The costs of participation in the Executive Committee (including the cost to serve on the Study Management Team) shall be included in total project costs and cost shared in accordance with the provisions of this Agreement. ARTICLE V -DISPUTES As a condition precedent to a party bringing any suit for breach of this Agreement, that party must first notify the other party in writing of the nature of the purported breach and seek in good faith to resolve the dispute through negotiation. If the parties cannot resolve the dispute through negotiation, they may agree to a mutually acceptable method ofnon-binding alternative dispute resolution with a qualified third party acceptable to both parties. The parties shall each pay SO percent of any costs for the services provided by such a third party as such costs are incurred. Such costs shall not be included in Study Costs. The existence of a dispute shall not excuse the parties from performance pursuant to this Agreement. ARTICLE VI -MAINTENANCE OF RECORDS A. Within 60 days of the effective date of this Agreement, the Government and the Sponsor FCSA 5 shall develop procedures for keeping books, records, documents, and other evidence pertaining to costs and expenses incurred pursuant to this Agreement to the extent and in such detail as will properly reftect total Study Costs. These procedures shall incorporate, and apply as appropriate, the standards for financial management systems set forth in the Uniform Administrative Requirements for Grants and Cooperative Agreements to state and local governments at 32 C.F.R. Section 33.20. The Government and the Sponsor shall maintain such books, records, documents, and other evidence in accordance with these procedures for a minimum of three years after completion of the Study and resolution of all relevant claims arising therefrom. To the extent permitted under applicable Federal laws and regulations, the Government and the Sponsor shall each allow the other to inspect such books, documents, records, and other evidence. B. In accordance with 31 U.S.C. Section 7503, the Government may conduct audits in addition to any audit that the Sponsor is required to conduct under the Single Audit Act of 1984, 31 U.S.C. Sections 7501-7507. Any such Government audits shall be conducted in accordance ~~vith Government Auditing Standards and the cost principles in OMB Circular No. A-87 and other applicable cost principles and regulations. The costs of Government audits shall be included in total Study Costs and shared in accordance with the provisions of this Agreement. ARTICLE VII -RELATIONSHIP OF PARTIES The Government and the Sponsor act in independent capacities in the performance of their respective rights and obligations under this Agreement, and neither is to be considered the officer, agent, or employee of the other. ARTICLE VIII -OFFICIALS NOT TO BENEFIT No member of or delegate to the Congress, nor any resident commissioner, shall be admitted to any share or part of this Agreement, or to any benefit that may arise therefrom. ARTICLE IX -FEDERAL AND STATE LAWS In the exercise of the Sponsor's rights and obligations under this Agreement, the Sponsor agrees to comply with all applicable Federal and State laws and regulations, including Section 601 of Title VI of the Civil Rights Act of 1964 (Public Law 88-352) and Department of Defense Directive 5500.11 issued pursuant thereto and published in 32 C.F.R. Part 195, as well as Army Regulations 600-7, entitled "Nondiscrimination on the Basis of Handicap in Programs and Activities Assisted or Conducted by the Department of the Army". ARTICLE X -TERMINATION OR SUSPENSION A. This Agreement shall terminate at the conclusion of the Study Period, and neither the Governmert nor the Sponsor shall have any further obligations hereunder, except as provided in Article IILC.; provided, that prior to such time and upon thirty (30) days written notice, either party may terminate or suspend this Agreement. In addition, the Government shall te~-minatc this Agreement immediately upor. any failure of the parties to agree to extend the study under Article II.E. of this agreement, or upon the failure of the Sponsor to fulfill its obligation under Article FCSA 6 III. of this Agreement. In the event that either party elects to terminate this Agreement, both parties shall conclude their activities relating to the Study and proceed to a final accounting in accordance with Article IILC. and IILD. of this Agreement. Upon termination of this Agreembent, all data and information generated as part of the Study shall be made available to both parties. B. Any termination of this Agreement shall not relieve the parties of liability for any obligations previously incurred, including the costs of closing out or transferring any existing contracts. IN WITNESS WHEREOF, the parties hereto have executed this Agreement, which shall become effective upon the date it is signed by the District Engineer for the U.S. Army Corps of Engineers, Honolulu District. DEPARTMENT OF THE ARMY COUNTY OF HAWAII BY BY RONALD N. LIGHT HARRY KIM Lieutenant Colonel, U.S. Army Mayor District Engineer County of Hawaii Honolulu District RECOMMEND APPROVAL: APPROVED AS TO FORM ~ ~ ~ A . AND LEGALITY By ~J ~ ' ~ ' DENNIS K. W. LEE, P.E. BY Director, Dept. of Public Works County of Hawaii ~ls Deputy Corporation Counsel County of Hawaii Attachment 1 -Project Management Plan (PMP) Attachment 2 -Continuing Authorities Fact Sheet FCSA 7 ~QY Qi JA .VIES Y. ARAKAKI AARON S.Y. C'HUNG Clrnirmarn & Presiding O~jirer 1 .BOBBY .TEAN I~ET`fHEAD-`TODD ';"s L.F.:NTNGRAD F.:L.AKIONOFF ~ JUL,IF.: ,TACOBSON .I. CUR'I'IS 1'Y LF.R, Ill ~A4>• NANC;Y NdSICC:I-IIO Q a~ t~lce Chaairrreun GARY SAFARIK DOMTNTC YAGONG COUNTY COUNCIL Cntsnh~ ofHaia~ai'i Huw~ui'i C orrnll• Bnildin~ 2.~ .4upuni Street IfiJa, Nawai'i 96;20 January 15, 2002 James Y. Arakaki, Chair Hawaii County Council 25 Aupuni Street Hilo, Hawaii 96720 RE: Resolution No. ~ 7 ~ _ p 2 Authorizing the Mayor to enter into amulti-year cost sharing agreement with the Department of Army for a feasibility study for the Keopu-Hienaloli Streams Flood Control Project. Pursuant to Section 1(g) of Rule of the Rules of Procedure of the Council of the County of Hawaii, this written request is submitted with my approval that the above-referenced matter be waived from the Committee on Finance to the full Council for immediate action. In reviewing this matter, timely approval is crucial. It is therefore advantageous that approval is granted and the matter placed onto the next Council agenda for review. However, in the event this request is denied, for whatever reason, I understand the matter shall be referred to the Committee on Finance for placement on its future agenda. Sine e Y4~ v Aaron S.Y. Chung, Chair Committee on Finance Appr ed/Date/Naive to Council: Disapproved/Date/Refer to FC: ~fi\ y. ' Ja Y. Arakaki, Chair James Y. Arakaki, Chair Ha ai'i County Council Hawaii County Council i