Transcript Slide 1
Cooperative Endeavor and Intergovernmental Agreements David Peterson – La. AG’s Office – Asst. Attorney General - AG Designee to CPRA restoring and protecting Louisiana’s coast Cooperative Agreements La. Constitution Article VII, Section 14(C): For a public purpose, the state and its political subdivisions or political corporations may engage in cooperative endeavors with each other, with the United States or its agencies, or with any public or private association, corporation, or individual. La. R.S. 38:325: Levee districts shall engage in any activities related directly to . . . Cooperative activities with other public bodies for public purposes. La R.S. 38:330: Any two or more contiguous levee districts may make agreements and/or cooperative endeavors between or among themselves to engage jointly in the construction, acquisition, or improvement of any public flood control or drainage project or improvement, the promotion and maintenance of any undertaking related to flood control or drainage projects, or the exercise of any power related to such projects. Such arrangements may provide for the joint use of funds, facilities, personnel, or property or any combination thereof necessary to accomplish the purposes of the agreement. Generally, agreements for integrated coastal protection, including levee, drainage, and hurricane protection, will be with CPRA with OCPR as the monitoring and implementation agency at the state level. Evolution of CPRA and OCPR Agreements Prior to 2008: Variety of Agreements based on DNR and DOTD Agreements 2008 – 2009: CPRA and OCPR needed variety of agreements to implement post-Katrina and Rita federal, state, and local projects and provide funding to local entities, including levee districts 2009 – 2011: Efforts by AG’s Office Land Section staff assigned to CPRA and OCPR to consolidate various agreements into a model “intergovernmental agreement” (“IGA”) “Model Agreement” Developed primarily through agreements with South Lafourche Levee District and Terrebonne Levee District Intent to include standard language common to cooperative agreements and which are required by Louisiana Office of Contractual Review (OCR) Agreements titles “Intergovernmental Agreements” to satisfy certain OCR review requirements Other language standardized to provide CPRA/OCPR oversight of projects which involve State funds and which are or may be approved for federal participation and authorization Standard General Provisions Whereas Clauses: Non-binding language to set forth intent of IGA Set forth authority for cooperative endeavors between State and levee district(s) under law Set forth the funding and appropriation sources for funding General description and purpose of Project WHEREAS, the Terrebonne Levee and Conservation District is a body politic and corporate within the district boundaries as set forth in La. R.S. 38:291(U) created for the purpose of engaging in activities related to flood protection, construction and maintenance of levees, and cooperative activities with other public bodies for public purposes, all under the provisions of Chapter 4 of Title 38 of the Louisiana Revised Statutes, La. R.S. 38:281 et seq.; and WHEREAS, on November 17, 2001, the Terrebonne Levee and Conservation District, in conjunction with the Terrebonne Parish Consolidated Government and upon an election of the citizens of Terrebonne Parish, committed sales tax revenue to the Morganza to the Gulf Hurricane Protection Project; and WHEREAS, the construction or modification of 72 miles of levees and related structures including gates and water control structures and locks for hurricane protection, designed to protect the areas of Terrebonne and Lafourche Parishes from a pre-Katrina 100 year flooding event, and identified as the “Morganza, Louisiana to the Gulf of Mexico Project”, hereinafter called the “original Morganza to the Gulf Hurricane Protection Project”, was recommended to Congress in the Chief of Engineers’ report dated 23 August 2002, and modified by letter dated 22 July 2003; and WHEREAS, Act 203 of the 2007 Regular Legislative Session appropriated $147,200,000 to the Department of Natural Resources, Office of Coastal Restoration and Management for Coastal Restoration and Management Projects in accordance with the Coastal Protection Plan and payable out of the State General Fund by Statutory Dedications out of the Coastal Protection and Restoration Fund, of which $40,000,000.00 will be used as part of the State's contribution to assist the Terrebonne Levee and Conservation District with the improvement of the original Morganza to the Gulf Hurricane Protection Project; and Standard General Provisions Purpose Sets forth Public Purpose of Project Project Description Usually sets out elements of project Used to specify which elements of project on which state funds may be used Contains clauses indicating state funds may only be used for elements of project listed and that any funds used for other purposes may not be reimbursed by state Standard General Provisions Scope and Responsibilities Sets forth general obligations of state and levee district regarding project, including funding and cost-share Requires that public bid law be followed Requires that all funds be used consistent with applicable laws, rules, regulations, etc., including any requirements for crediting that might be allowable from federal partners, including Corps. Sound engineering practices: “All plans and specifications shall be prepared consistent with sound engineering practices and compatible with the current design criteria of the U. S. Army Corps of Engineers to the maximum extent practicable. They shall be prepared by or under the supervision of a professional engineer licensed in the discipline of civil engineering and registered in the State of Louisiana, who shall sign, date, and seal the final plans and specifications.” The CPRA’s designated contribution shall not exceed the amount of funds, currently or in the future, appropriated by the Legislature, or otherwise provided through the State, for purposes of the Project or this Agreement. The funds provided by the State through CPRA/OCPR to the Sponsor shall be used for the purpose stated and in accordance with constitutional and statutory restrictions on the use of State funds for public purposes, consistent with sound engineering practices and compatible with the current design criteria of the U. S. Army Corps of Engineers to the maximum extent practicable. The funds shall also be expended in a manner that, to the maximum extent practicable, will qualify for reimbursement/credit under Section 2003 of the Water Resources Development Act of 2007. Additionally, the Sponsor agrees to employ appropriate mitigation measures as determined and/or required by any state or federal agency as part of the approved project. The Sponsor acknowledges that any funds not used in accord with the terms of this Agreement and State law will be reimbursed to CPRA/OCPR. The Sponsor further acknowledges that any eligible project cost in excess of CPRA’s designated contribution and any costs or expenses not considered to be eligible project costs shall be the sole responsibility of the Sponsor. Standard General Provisions Payment Provisions: Sets forth amount of funds to be provided Sets forth invoicing procedure and review by OCPR Provides list of “eligible expenses” which are usually project and/or funding limitation specific Record keeping, reporting, and auditing clause: Provides manner for record keeping, usually five years from project completion Provides records must be made available to state upon request Provides all records subject to audit, specifically including by legislative auditor Local entity must provide annual audit Standard General Provisions Retainage clause Allows retainage of percentage of funds, usually 10% to assure completion of project Termination for Cause and Termination for Convenience Provisions Particularly include termination for failure to abide by agreement terms with notice to correct Allows convenience termination by CPRA Standard General Provisions Operation and Maintenance Clause Standard Text: The Sponsor shall develop an Operation and Maintenance Manual and shall provide two (2) copies of the Manual to the OCPR within 90 days of completing the project or a substantial part thereof. The Sponsor shall maintain the project, as completed, at its expense and in accordance with the Sponsor's maintenance policies and the Operation and Maintenance Manual. At its sole discretion and at reasonable times and in a reasonable manner, CPRA/OCPR may conduct inspections of the Project to assure that the Project is being operated and maintained in accord with the purposes of the Project and this Agreement. The Sponsor agrees to assume all maintenance and operation costs for the Project and all future alterations as may be required without cost to the State. The Title to the project rights-of-way shall be vested in the Sponsor but shall be subject to federal, state, and CPRA requirements and laws, statutes, rules, and regulations concerning abandonment, disposal, encroachments and/or uses for non-flood control purposes. The Sponsor shall allow CPRA/OCPR access at any time for operation and maintenance inspections described above and for performance of required operation and maintenance activities where the Levee District has failed or refused to perform. Standard General Provisions Federal and State Law Applicability Clauses Language may vary if federal participation expected as Corps agreements usually impose certain requirements on State for crediting on cost-share projects Standard Clause with federal law applicability: o The Sponsor agrees to abide by the requirements of all applicable federal and state laws and regulations, which include, but not exclusively, the following: Title VI and VII of the Civil Rights Act of 1964, as amended by the Equal Opportunity Act of 1972, Public Law 88 352 (42 U.S.C. 2000d) and Department of Defense Directive 5500.11 issued pursuant thereto, Army Regulation 600-7, entitled “Nondiscrimination on the Basis of Handicap in Programs and Activities Assisted or Conducted by the Department of the Army”, all applicable federal labor standards requirements, including, but not limited to, 40 U.S.C. 3141-3148 and 40 U.S.C. 3701-3708 (revising, codifying, and enacting without substantive change the provisions of the Davis-Bacon Act (formerly 40 U.S.C. 276a, et seq.), the Contract Work Hours and Safety Standards Act (40 U.S.C. 327, et seq.), and the Copeland Anti-Kickback Act (formerly 40 U.S.C. 276c)), Federal Executive Order 11246, the Federal Rehabilitation Act of 1973, as amended, the Vietnam Era Veteran's Readjustment Assistance Act of 1974, Title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, the Fair Housing Act of 1968 as amended, and the Sponsor agrees to abide by the requirements of the Americans with Disabilities Act of 1990. The Sponsor agrees not to discriminate in its employment practices, and will render services under this contract without regard to race, color, religion, sex, sexual orientation, national origin, veteran status, political affiliation, or disabilities. Any act of discrimination committed by the Sponsor, or failure to comply with these statutory obligations when applicable shall be grounds for termination of this Agreement. Standard General Provisions Hold Harmless Clause Standard Language: The Sponsor agrees and obligates itself, its successors and assigns, to defend, indemnify, save, protect and hold forever harmless and provide a defense for the State of Louisiana, CPRA and OCPR, their officials, officers and employees against any and all claims that may be asserted by any persons or parties resulting from violation by the Sponsor, its employees, agents and/or representatives of the requirements of any federal or state laws, rules or regulations applicable to the project. Further, the Sponsor agrees that it shall indemnify and save harmless and provide a defense for the State of Louisiana, CPRA and OCPR, their officials, officers and employees, against any and all claims, demands, suits, actions (ex contractu, et delictu, quasi-contractual, statutory or otherwise), judgments of sums of money, attorney's fees and court costs, to any party of third person including, but not limited to, amounts for loss of life or injury or damage to persons, property or damages to contractors, subcontractors, suppliers, laborers or other agents or contractors of the Sponsor or any of the above, growing out of, resulting from, or by reason of, any negligent act or omission, operation or work of the Sponsor, its employees, servants, contractors, or any person engaged upon or in connection with the engineering services, construction and construction engineering required or performed by the Sponsor hereunder including, but not limited to, any omissions, defects or deficiencies in the plans, specifications or estimates or by virtue of any extra work, delays, disruptions, inefficiencies or nonpayment of any engineering, construction, or construction engineering cost incurred or any other claim of whatever kind or nature arising from, out of, or in anyway connected with the project, to the extent permitted by law. Standard General Provisions Taxes Amendments and Future Agreements All amendments to be in writing May provide for handling of any future legislative appropriations for project May provide that levee district is to cooperate in negotiating and signing of any future agreements with other entities, including federal government and Corps Document Ownership Owned by local entity but subject to copies provided to CPRA or OCPR Assignment Clause: only in writing with CPRA permission Financial Disclosure and Auditor Clauses: Funds subject to audit under R.S. 24:513 Project subject to audit by CPRA, Dept. of Administration, and Inspector General Standard General Provisions Fiscal Funding Clause Statement that all funding subject to legislative appropriation and possible adjustment in accord with law, i.e. funding not guaranteed if legislature changes it Third Party Beneficiary Clause Relationship of Parties No agency between cooperating entities One party can not waive rights of other Parties not obligated for contracts of other Disputes Clause Arbitration required and venue in 19th JDC Contacts Provisions Effective Date and Modifications Modifications must be in writing and agreed by both parties Other Potential Provisions Agreements on Corp Projects Provisions for assuming any obligations CPRA/OCPR may have undertaken by separate agreement with Corps for local project o “Single State Entity” Cost-Sharing Operation and Maintenance Funding Source Requirment Provisions: CIAP, CWPPRA, etc. QUESTIONS ???? copies of existing agreements will be provided on request David Peterson Phone: 225-326-6000 Email: [email protected]