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MOU Big Goose and Sheridan Water Treatment Plant Upgrades 031912�o Sheridan Area Water Supply 1 Joint Powers Board onrc�o j March 15, 2012 Debra H. Dickson Grants & Loans Manager Office of State Lands & Investments 122 West 25th Street Herschler Building, 3W Cheyenne, WY 82002 Dear Debra: .J 9 Regarding Memorandum of Understanding between the City of Sheridan and the Sheridan Area Water Supply Joint Powers Board for the Conventional Upgrades at the Sheridan and Big Goose Water Treatment Plants. In response to your e -mail of March 8, 2012, please see the enclosed fully executed copy of the Memorandum of Understanding. Also, it is SAWSJPB's understanding and desire that the full amount of all reimbursement requests received by OSLI (SAWSJPB and City of Sheridan shares) be deposited directly to the City of Sheridan. The City of Sheridan will re- allocate funding as required by the existing agreements between the City of Sheridan and SAWSJPB. Both the City of Sheridan and SAWSJPB signatures will be required on any pay request forms submitted to the OSLI. Each request will show the proportionate share of each reimbursement between City of Sheridan and SAWSJPB. Sincerely, "Dan o h in Sheridan Area Water Supply Project Manager 224 S. MAIN STREET, SUITE 428, SHERIDAN, WY 82801 307 - 674 -2920 ext 2930 dcouahlinPsheridancountv.com MEMORANDUM OF UNDERSTANDING FOR BIG GOOSE and SHERIDAN WATER TREATMENT PLANT UPGRADES ( Cryptosporidium) PROJECT MANAGEMENT The City of Sheridan, Wyoming ( "City") and the Sheridan Area Water Supply Joint Powers Board ( "JPB ") hereby enter into the following agreement and memorandum of understanding. RECITALS WHEREAS, the City and the JPB desire to participate in the development and construction of certain upgrades to the Big Goose and Sheridan Water Treatment Plants to meet the EPA requirements for removal of Cryptosporidium cysts for the joint water supply system said upgrades to be known and referred to herein as "the Project "; and WHEREAS, the Project is an important component of the overall City and JPB interconnected water system; and WHEREAS, by virtue of an existing May 15, 1990 Operating Agreement, as amended, between the City and JPB, the City operates and maintains the JPB system for the JPB with the City's ongoing operation and maintenance of the City's system, which is interconnected to and with the JPB system; and WHEREAS, the Project will be financed, in part, through funding available from the State of Wyoming, Office of State Lands and Investments ( "OSLI ") using funds provided from the Drinking Water State Revolving Fund. THEREFORE, THE CITY AND THE JPB AGREE AS FOLLOWS: 1. While managing the Project for the parties, the City shall act as Project Manager to implement the Project pursuant to this Agreement. Specific provisions relating to the City's authority, role and obligations as Project Manager include the following: A. The City shall have complete authority to act as agent for the JBP with third - parties regarding the Project, expressly subject to and pursuant to the terms of this Agreement. B. The City shall endeavor to protect the interests of the JPB as it will its own at all times. C. All Project communications between the Project Manager and the JPB with the OSLI shall be made in a timely manner pursuant to this Agreement. D. The JPB shall designate a qualified Project representative capable of and authorized to make timely day -to -day decisions concerning the planning, design and work on the Project on behalf of the JPB. The City shall communicate with the JPB's administrative staff and the JPB Board concerning the Project through this designated JPB representative. E. A reasonable time prior to approving final design, bid letting or authorizing any construction on the Project, the City shall submit a complete set of designs or plans to the JBP's administrative staff for review, comment and approval by the JPB Project representative. The City shall not finally approve any design or bid Page 1 of 4 letting on behalf of the JPB without first obtaining fully informed JPB administrative staff approval. F. A reasonable time prior to approving any reimbursement from or for the JPB for any JPB portion of the Project, the City shall submit a request for reimbursement for each relevant JPB portion of the Project to the JBP's administrative staff for review, comment and approval by the JPB administrative staff and for formal approval by the JPB Board at a regularly scheduled public meeting. The City shall not finally approve or authorize any reimbursement from or for the JPB for any JPB portion(s) of the Project without first obtaining fully informed JPB staff and formal Board approval. G. The Sheridan City Council and the JPB must both authorize the award of this project to the lowest qualified bidder. H. The City shall promptly and accurately copy the JPB administrative staff with all written correspondence and any email communications between the City and the OSLI concerning the Project. I. The City shall provide the JPB administrative staff with reasonable advance notice (whenever possible) of all Project meetings with Project engineers, bid lettings, meetings with contractors and subcontractors and meetings with the �OSLI. 2. This Agreement is exclusive of and does not expressly or impliedly amend any of the terms of the Ownership Agreement of May 15, 1990, as amended, and the Operating Agreement of May 15, 1990, as amended. 3. Upon completion of the Project, the Project shall be operated, managed and maintained for the benefit of both JPB and City in accordance with the May 15, 1990 Operating Agreement, as amended, between the City and JPB. 4. Audit/Access to Records. Both the JPB and the City shall, upon reasonable request, provide each other free access to any pertinent books, documents, and papers concerning the Project and shall also provide such access to the State/Federal Grantor Agency, the Wyoming Department of Audit, the Wyoming Attorney General's Office, the Wyoming Department of Labor, the Comptroller General of the United States, the United States Department of Labor, or any of their duly authorized representatives for the purposes of inspection, audit and copying. The City and the JPB shall provide proper facilities for such access and inspection of Project records or documents. The City and the JPB shall keep copies of these records for at least three (3) years after final payment and settlement on the Project. 5. Assignment/Agreement Not Used as Collateral. Neither party shall assign nor otherwise transfer or encumber or cloud title to any of the rights or delegate any of the duties set forth in this Agreement without the prior express written consent of the other party. 6. Indemnification. The JPB shall fully indemnify, defend and hold harmless the City, and their officers, agents, employees, successors and assignees from any and all claims, lawsuits, losses and liability arising out of the JPB's failure to perform any of the JPB's duties and obligations hereunder or in connection with the negligent performance of the JPB's duties or obligations. The City shall fully indemnify, defend and hold harmless the JPB, and their officers, agents, employees, successors and assignees from any and all claims, lawsuits, losses Page 2 of 4 and liability arising out of the City's failure to perform any of the City's duties and obligations hereunder or in connection with the negligent performance of the City's duties or obligations. Both parties fully reserve and do not waive their sovereign immunity under Wyoming law and any and all rights and defenses otherwise available to them under the Wyoming Governmental Claims Act. 7. No Kickbacks. By executing this Agreement, both parties hereby certify and warrant that no gratuities, kickbacks or contingency fees were paid in connection with this Agreement, nor were any fees, commissions, gifts, or other considerations made contingent upon the award of this Agreement. If either party breaches or violates this warranty, the City may, at its discretion, terminate this Agreement without liability to the non - breaching party, or deduct from the Agreement price or consideration, or otherwise recover, the full amount of any such commission, percentage, brokerage, or contingency fee. 8. Nondiscrimination. Both parties shall fully comply at all times with the Civil Rights Act of 1964, the Wyoming Fair Employment Practices Act (Wyo. Stat. § 27 -9 -105 et seq.), the Americans with Disabilities Act (ADA), 42 U.S.C. 12101, et seq. and the Age Discrimination Act of 1975. Neither party shall discriminate against any individual on the grounds of age, sex, color, race, religion, national origin or disability in connection with the performance of this Agreement. 9. Notices. All notices arising out of, or from, the provisions of this Agreement shall be in writing and given to the relevant party (ies) at the address provided under this Agreement by certified mail, return receipt requested. Notice shall not be effective unless given in this manner. 10. Severability. Should any portion of this Agreement be finally judicially determined to be illegal or unenforceable, the remainder of this Agreement shall continue in full force and effect, and either party may renegotiate the terms affected by the severance 11. Applicable Law and Venue. The construction, interpretation and enforcement of this Agreement shall be governed by the laws of the State of Wyoming. The Courts of the State of Wyoming shall have jurisdiction over this Agreement and the parties, and the venue shall be in the Fourth Judicial District, Sheridan County, Wyoming. 12. Third Party Beneficiary Rights. The parties do not intend to create in any other individual or entity the status of third party beneficiary, and this Agreement shall not be construed so as to create or to imply such status. The rights, duties and obligations contained in this Agreement shall operate only between the parties to this Agreement and shall inure solely to the benefit of the parties to this Agreement. 13. Ambiguities. The parties agree that any ambiguity in this Agreement shall not be strictly construed, either against or for either party, except that any ambiguity as to sovereign immunity shall be construed in favor of sovereign immunity. 14. Amendments. Any changes, modifications, revisions or amendments to this Agreement which are mutually agreed upon by and between the parties to this Agreement shall be effective and binding only when set forth in a written instrument that is executed and signed by all parties to this Agreement. 15. Binding. The terms of this Agreement, and any proper and valid amendments thereto, shall be binding upon and inure to the parties hereto, their administrators and successors as allowed by applicable law. Page 3 of 4 16. Entire Integrated Agreement. This Agreement represents the entire and integrated written Agreement between the parties and supersedes all prior negotiations, representations and agreements, whether written or oral. In witness whereof, the parties to this Agreement, either personally or through their duly authorized representatives, have executed this Agreement on the days and dates set out below and certify that they have read, understood, and agreed to the terms and conditions of this Agreement. The effective date of this Agreement is the day and date last signed and executed by the duly authorized representatives of the parties to this Agreement below. ATTEST: r E.. Al o y� ..S6cre rse-1 c,; cry N t C I p� y Cos SEAS.: ATTEST. is City Clerk Page 4 of 4 SHERIDAN AREA WATER SUPPLY JOINT POWERS BOARD Chairman Date: /S 42D 12- CITY OF SHERIDAN, WYOMING c�--L Mayor Date: