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HomeMy WebLinkAboutResolution No. 2020-50JC Sponsored by: Admin is tration Kt;NAI CITY OF KENAI RESOLUTION NO. 2020-50 A RESOLUTION OF THE CITY OF KENAI, ALASKA, AUTHORIZING THE CITY MANAGER TO EXECUTE AN IN-KIND MEMORANDUM OF UNDERSTANDING WITH THE DEPARTMENT OF THE ARMY FOR DESIGN WORK PRIOR TO EXECUTION OF A DESIGN AGREEMENT FOR THE KENAI BLUFF STABILIZATION PROJECT. WHEREAS, the Kenai Bluff Stabilization Project has been a top priority of the City of Kenai for at least the last 40 years; and, WHEREAS, on September 21, 2011 the Kenai City Council passed Resolution 2011-67 authorizing the City Manager to enter into an agreement with the United States Army Corps of Engineers to complete a feasibility study of the project; and, WHEREAS, on April 10, 2019, the Director's Report, approving the feasibility study and allowing the project to move into the Pre-construction Engineering and Design (PED) phase of the project was provided by the United State Army Corps of Engineers; and, WHEREAS, while the City continues to pursue a PED agreement to allow design of the project to commence with full participation from the United States Army Corps of Engineers the City also pursued an agreement with the United States Army Corps of Engineers for design work prior to execution of the PED agreement, an agreement that is authorized under Section 221{a)(4) of the Flood Control Act of 19 70 , as amended (221 MOU); and, WHEREAS, the 221 MOU allows the City to conduct in-kind work that is integral to the project, such as engineering and design, real estate , economic and environmental analyses, and evaluation costs; supervision and administration costs ; and documented incidental costs associated with providing the work; and, WHEREAS , conduct ing this work under the 221 MOU allows work to begin on t he project during this construction season , in anticipation of finalizing the PED Agreement towards the end of 2020. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF KENAI , ALASKA: Secti on 1. That the City Manager is authorized to execute an in-kind memorandum of understanding with the United States Army Corps of Engineers for design work prior to execution of a design agreement for the Kenai Bluff Stabilization Project. Section 2. That this resolution takes effect immediately upon passage. PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this 17th day of June , 2020. Resolution No. 2020-50 Page 2 of 2 BRIAN GABRJELSR::MAYQR TIM NAVARRE , COUNCIL MEMBER City of Kenai I 210 l=ida lgo Ave , Kenai, AK 99611 -7 7941907.283.7535 I www.kenai .cily MEMORANDUM TO: FROM: DATE: SUBJECT: Mayor Gabriel and Council Members Paul Ostrander, City Manager June 11, 2020 Resolution 2020-50 -In-kind MOU with the Army Corps of Engineers in support of the Kenai Bluff Stabilization Project The City of Kenai has been pursuing the Kenai Bluff Stabilization Project for at least 40 years . It is a critical first step in the revitalization of Old Town Kenai , an area of cultural and historical significance to Alaska. Preservation and development efforts have been restrained in this area due to the consistent erosion of the nearby bluff. Stabilization of this bluff will eliminate uncertainty and allow for investment in businesses, residences, and public parks and recreation areas. Beyond Old Town, this project makes the statement that the City of Kenai is a worthy investment. With Federal , State, and Local monies being utilized to construct this project, all levels of government are investing towards a vibrant and stable Kenai that can preserve its cultural identity as well as fulfill its potential as a hub of tourism, fishing, and business development. The benefits of this project are significant, including stabilization of 31 bluff parcels and saving 27 structures including the senior center and senior housing complex. Roads and other valuable infrastructure will be saved . It will protect against cultural vulnerability such as the loss of historical and archaeological sites, and it will provide residents of Old Town Kenai and visitors who frequent the bluffs greater safety. While the City continues to pursue a PED agreement to allow design of the project to commence with full participation from the United States Army Corps of Engineers the City also pursued an agreement with the United States Army Corps of Engineers for design work prior to execution of the PED agreement, an agreement that is authorized under Section 221(a)(4) of the Flood Control Act of 1970, as amended (221 MOU). This resolution authorizes the City Manager to execute an in-kind memorandum of understanding with the United States Army Corps of Engineers for design work prior to execution of a design agreement for the Kenai Bluff Stabilization Project. Your consideration is appreciated. IN-KIND MEMORANDUM OF UNDERSTANDING BETWEEN THE DEPARTMENT OF THE ARMY ANDTHE CITY OF KENAI, ALASKA FOR DESIGN WORK PRIOR TO EXECUTION OF A DESIGN AGREEMENT FOR THE KENAI BLUFFS BANK STABILIZATION PROJECT THIS IN-KIND MEMORANDUM OF UNDERSTANDING (hereinafter the "In-Kind MOU") is entered into this day of , __ ,by and between the Department of the Army (hereinafter the "Government"), represented by the District Commander for Alaska District (hereinafter the "District Commander") and the City of Kenai, Alaska (hereinafter the "Non-Federal Interest"), represented by the City Manager. WITNESSETH, THAT: WHEREAS, Section 221(a)(4) of the Flood Control Act of 1970, as amended (42 U.S.C. 1962d-5b(a)(4)), provides that a cost sharing agreement may provide credit for the value of materials or services provided before the execution of such cost sharing agreement if the Secretary and the non-Federal interest enter into an In-Kind MOU under which the non-Federal interest shall carry out such work and only work carried out following the execution of such In- Kind MOU shall be eligible for credit; WHEREAS, the Non-Federal Interest understands and acknowledges that any credit for eligible in-kind contributions will be afforded only toward the required non-Federal contribution of funds (i.e. cash contribution) under the Design Agreement for the project or separable element thereof; and WHEREAS, by letter dated May 19, 2020, the Non-Federal Interest stated its intent to provide certain design work (hereinafter the "Design Work", as defined in Paragraph 1 of this In- Kind MOU) prior to the execution of the Design Agreement for the Kenai Bluffs Bank Stabilization Project at Kenai , Alaska. NOW, THEREFORE, the parties agree as follows: 1. The Non-Federal Interest shall provide the Design Work in accordance with the terms and conditions of this In-Kind MOU and requirements of applicable Federal laws and implementing regulations. The Design Work shall consist of, performance of design of all of the Federal project, including data collection related to design work as generally described in the letter from the Non-Federal Interest. 2 . The Non-Federal Interes t shall keep books, records, documents, and other documentation of costs and expenses incurred for the Design Work in accordance with this In-Kind MOU. The value of the Design Work shall be equivalent to the costs, documented to the satisfaction of the Government, that the Non-Federal Interest incurred to provide the Design Work. Such costs may include, but are not necessarily be limited to: engineering and design, real estate, economic and environmental analyses, and evaluation costs; supervision and administration costs; and documented incidental costs associated with providing the Design Work, but shall not include any costs associated with betterments, as determined by the Government. Appropriate documentation includes invoices and certification of specific payments to contractors, suppliers, and the Non-Federal Interest's employees. 3 . The Non-Federal Interest understands that eligibility for credit for the Design Work is subject to: a. A determination by the Division Commander for Pacific Ocean Division that the Design Work is integral to the project; b . R eview and verification by the Government that the Design Work was accomplished in a satisfactory manner and in accordance with applicable Federal laws , regulations, and policies; and c. An audit by the Government to determine the reasonableness, allocability, and allowability of such costs. 4. The Non-Federal Interest understands further that: a. No interest charges or adjustment will be applied to the costs incurred for the Design Work to reflect changes in price levels ; b. Federal program funds may not be used to meet any of its obligations under this In- Kind MOU unless the Federal agency providing the funds verifies in writing that the funds are authorized to be used for the project. Federal program funds are those funds provided by a Federal agency, plus any non-Federal contribution required as a matching share therefor; c. Only the costs of the Design Work that do not exceed the Government's estimate of the cost of such work if the work had been accompl ished by the Government are eligible for credit; d. No credit will be provided for the value of Design Work obtained at no cost to the Non-Federal Interest or performed prior to the effective date of this In-Kind MOU; e. Crediting for the costs of the Design Work may be withheld, in whole or in part, as a result of the Non-Federal Interest's failure to comply with the terms of this In-Kind MOU; and f . Credit may be afforded only if a Design Agreement is executed subsequently by the Government and the Non-Federal Interest. 2 5. In the exercise of their respective rights and obligations under this In-Kind MOU, the Government and the Non-Federal Interest each act in an independent capacity, and neither is to be considered the officer, agent, or employee of the other. 6. Execution of this In-Kind MOU does not constitute, represent, or imply any Federal assurance or commitment regarding approval of the project or execution of any future agreement that may include provisions for affording credit for Design Work undertaken under this In-Kind MOU. In addition, execution ofthis In-Kind MOU in no way prevents the Government from modifying the project even if it results in the Design Work provided by the Non-Federal Interest no longer being an integral part of the project. 7. Nothing herein shall constitute, represent, or imply any commitment to budget or appropriate funds for the project in the future ; and nothing herein shall represent, or give rise to, any duty, obligation, or responsibility for the United States. Any activity undertaken by the Non-Federal Interest for the Design Work is solely at the Non-Federal Interest's own risk and responsibility. 8. Notices. a. Any notice, request, demand, or other communication required or permitted to be given under this In-Kind MOU shall be deemed to have been duly given if in writing and delivered personally or mailed by registered or certified mail, with return receipt, as follows: If to the Non-Federal Interest: City of Kenai, Alaska Attn: City Manager 210 Fidalgo A venue Kenai, Alaska 99611 -7796 If to the Government: U.S. Army Corps of Engineers, Alaska District Attn: District Engineer PO Box 6898 JBER, Alaska 99506-0898 b. A party may change the recipient or address to which such communications are to be directed by giving written notice to the other party in the manner provided in this paragraph. 9. This In-Kind MOU may be modified or amended only by written, mutual agreement of the parties. 3 IN WITNESS WHEREOF, the pruties hereto have executed this In-Kind MOU, which shall become effective upon the date it is signed by the District Commander. DEPARTMENT OF THE ARMY DAVID R. HIBNER Colonel, U.S. Army District Commander THE CITY OF KENAI ALASKA 4 PAUL OSTRANDER City Manager CERTIFICATE OF AUTHORITY I, Scott Bloom, do hereby certify that I am the principal legal officer for the CITY OF KENAI, ALASKA, that the CITY OF KENAI, ALASKA is a legally constituted public body with full authority and legal capability to perform the terms of the In-Kind Memorandwn of Understanding for Design Work Prior to Execution of a Design Agreement between the Department of the Army and the CITY OF KENAI, ALASKA in connection with the KENAI BLUFFS BANK STABILIZATION PROJECT, and to pay damages, if necessary, in the event of the failure to perform in accordance with the terms of this Memorandum of Understanding , as required by Section 221 of Public Law 91-611, as amended (42 U.S.C. I 962d-5b), and that the person who executed this Memorandwn of Understanding on behalf of the CITY OF KENAI, ALASKA acted within his statutory authority. IN WITNESS WHEREOF, I have made and executed this certification this ______ day of 20 SCOTT BLOOM City Attorney CERTIFICATION REGARDING LOBBYING The undersigned ce11ifies , to the best of his or her knowledge and belief that: (1) No Federal appropriated funds hav e been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal , amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. (2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. (3) The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31 U.S .C. 1352. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. PAUL OSTRANDER CITY MANAGER