IDNR Funding Contract_E.B. Lyons Center Expansion ProjectMasterpiece on the Mississippi
Dubuque
hall
All-America City
2007
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Amend IDNR /City Funding Contract for E.B. Lyons Expansion Project
DATE: June 15, 2010
Planning Services Manager Laura Carstens is recommending City Council approval of
Amendment #1 to the funding contract with the Iowa Department of Natural Resources
(IDNR) regarding the E.B. Lyons Interpretive Center Expansion Project.
Amendment #1 is written to clarify the distribution of funds and to delineate the
contribution of both parties for related projects. Section 7.3 has been modified to
indicate that the IDNR will pay the City $100,000 in General Project costs and the City
will pay the IDNR $15,000 for a contribution towards the sewer main work. Section 7.4
has an added clause stating that the IDNR shall submit an invoice for the sewer work
reimbursement. No other changes have been made in this document and the net total
amount of funds to be transferred by the IDNR to the City remains the same.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
MCVM:jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
Laura Carstens, Planning Services Manager
Michael C. Van Milligen
Masterpiece on the Mississippi
Dubuque
bletti
All- Amedcag4►
1
2007
TO: Michael Van Milligen, City Manager
FROM: Laura Carstens, Planning Services Manager``/
SUBJECT: Amend IDNR /City Funding Contract for E.B. Lyons Expansion Project
DATE: June 15, 2010
Introduction
This memo transmits Amendment #1 to the funding contract with the Iowa Department
of Natural Resources (IDNR) regarding the E.B. Lyons Interpretive Center Expansion
Project, for City Council approval.
Background
The City has paid construction expenses on behalf of the Friends of the Mines of Spain
(FOMOS), and has requested IDNR reimbursement from a number of grants and other
funding sources raised by the Friends group for this $1.5 million project. The City is
cash - flowing the expansion project at the request of the IDNR.
The City requested the IDNR reimburse a portion of the construction expenses from a
$100,000 State allocation to the IDNR for the project.
The IDNR anticipated a $15,000 cost -share from the City of Dubuque for extension of
City sanitary sewer to the Interpretive Center, a City -owned facility leased to the IDNR.
Therefore, the IDNR created a funding contract in the amount of $85,000 as the balance
of the two project components: building expansion and sewer extension. This funding
contract was approved in April 2010 by the City Council.
The original funding contract also provided for IDNR reimbursement to the City of an
$183,200 federal Scenic Byways grant and $20,048.75 for flooring for the Center.
Discussion
Dr. Douglas Olk, FOMOS President, reviewed the funding contract and felt it should be
for the full $100,000 State Legislative allocation for several reasons.
One, this $100,000 is part of the local match for the $440,000 CAT grant the FOMOS
was awarded for the project. Any shortfall in this amount will have to be made up by the
FOMOS, a non - profit organization.
Amend IDNR /City Funding Contract for E.B. Lyons Expansion Project
Page 2
Secondly, in the separate 28E Agreement between the IDNR and the FOMOS, the
expansion project is dealt with separately from the well, parking lot, septic /sewer, and
asbestos. Dr. Olk clarified that the $100,000 State legislative allocation is clearly
intended for the actual building expansion, not these additional items.
Also, the arrangement between the City and the IDNR with respect to the sewer main
should be separate because this work is funded from an enterprise fund. It should not
be co- mingled with the $100,000 from the State legislature or the CAT grant match. The
IDNR agreed to this, and has prepared an amended funding contract for the project.
Amendment #1 is written to clarify the distribution of funds and to delineate the
contribution of both parties for related projects. Section 7.3 has been modified to indicate
that the IDNR will pay the City $100,000 in General Project costs and the City will pay the
IDNR $15,000 for a contribution towards the sewer main work. Section 7.4 has an added
clause stating that the IDNR shall submit and invoice for the sewer work reimbursement.
No other changes have been made in this document and the net total amount of funds to
be transferred from the IDNR to the City remains the same.
Recommendation
The recommendation is for the City Council to approve the enclosed Amendment #1 to
the IDNR /City funding contract for the E.B. Lyons Interpretive Center Project, and to
authorize the Mayor to sign Amendment #1 on behalf of the City of Dubuque.
Enclosure
cc: Ken Tekippe, Finance Director
Gus Psihoyos, City Engineer
F: \USERS \LCARSTEN \WPWlines of Spain \IDNR City funding contract \IDNR City funding contract Amend #1 EB Lyons Project
Memo to MVM.doc
This Contract was approved by the Natural Resource Commission on July 9, 2009 and March 11, 2010.
IN WITNESS THEREOF, the parties hereto have executed this Contract Amendment on the day
and year last specified below.
DEPARTMENT OF NATURAL RESOURCES
B Date:
Patricia L. Boddy, Deputy Director
CITY OF DUBUQUE
B Date:
Roy D. Buol, Mayor
Fed Tax I.D. Number: 42- 6004596
Amendment #1
IOWA DEPARTMENT OF NATURAL RESOURCES
CONTRACT NUMBER MSDR110LLDLa100268
Between
IOWA DEPARTMENT OF NATURAL RESOURCES
And
CITY OF DUBUQUE
This amendment is written to clarify the distribution of funds and to delineate the contribution of both
parties for related projects. Section 7.3 has been modified to indicate that the DNR will pay the City
$100,000 in General Project costs and the City will pay the DNR $15,000 for a contribution towards the
Sewer Main work. Section 7.4 has an added clause stating that the DNR shall submit and invoice for the
sewer work reimbursement. No other changes have been made in this document and the total amount of
funds to be transferred from the DNR to the City remains the same.
MSDR110LLDLa 100268; 1
SPECIAL CONDITIONS
This Contract is entered into between the Iowa Department of Natural Resources (DNR) and the City of
Dubuque (City). The parties agree as follows:
Section 1 IDENTITY OF THE PARTIES
1.1 Parties. DNR is authorized to enter into this Contract. DNR's address is: Wallace State Office
Building, 502 East 9 Street, Des Moines, Iowa 50319. The City of Dubuque, a Municipal organization, is
organized under the laws of the State of Iowa and is authorized to do business in the state of Iowa. The
City's address is: 50 West 13 Street, Dubuque, Iowa 52001.
1.2 Project Managers. Each party has designated a Project Manager, who shall be responsible for
oversight and negotiation of any contract modifications, as follows:
DNR Project Manager: Don Labate
502 East 9th Street
Des Moines, IA 50319
Phone: 515 - 250 -3714
Fax: 515- 281 -8685
Email: don.labate @dnr.iowa.gov
City Project Manager:
Section 2 STATEMENT OF PURPOSE
Section 3 DURATION OF CONTRACT
Laura Carstens, Planning Services Manager
City of Dubuque
50 W. 13 Street
Dubuque, IA 52001 -4864
Phone: 563 - 589 -4210
Fax: 5636- 589 -4221
Email: Iarstens @cityofdubuque.org
2.1 Statutory Authority. DNR enters into this Cooperative Agreement based on statutory authority
provided in Iowa Code section 456A.24(3), to "purchase, erect, and maintain buildings necessary to the
work of the [DNR]."
2.2 Background. The City currently owns the EB Lyons Interpretive Center (Project Building), which,
through agreement with the DNR, is used by the DNR as office space and a place to host interpretive
programs and other programs to enhance the adjacent Mines of Spain State Park. The City intends to
expand and remodel the Project Building (Project). The expansion and remodeling will include: updating
auditorium /muliti -use space, exhibit areas, and office space on the upper level; providing restrooms on the
upper level; renovating the existing entrance and atrium to include an ADA compliant ramp and entrance;
remodeling restrooms on the lower level that will be ADA compliant; providing a children's area, animal
exhibits, a library, a biology laboratory and mechanical services on the lower level; installing a new stair well
and elevator; installing a new bird observation area; improving the courtyard. The Friends of the Mines of
Spain (Friends) have hired an architectural firm to prepare plans and specifications for the Project, as
described in the Friends' contract, AIA Document B141 —1997 Part 2, as modified.
2.3 Purpose. The purpose in entering into this Cooperative Agreement is to provide funds to the City
for expansion and remodel of the Project Building so that users of the Project Building, including internal
staff and the general public, will have a better, more useful and more accessible facility to explore the
area's natural resources. The City shall continue to allow DNR to use the Project Building through a
separate agreement.
3.1 Term of Contract. The term of this Contract shall be September 1, 2009 through September 1,
2010, unless terminated earlier in accordance with the Termination section of this Contract. However, this
Contract shall not begin until it has been signed both all parties.
MSDR110LLDLa100268; 2
3.2 Approval of Contract. If the amount of compensation to be paid by DNR according to the terms of
this Contract is equal to or greater than $25,000.00, then performance shall not commence unless this
Contract has been approved by the Natural Resource Commission.
3.3 Renewal. The parties shall have the option to renew and extend this Contract for subsequent
periods, adding up to no more than 6 years total, by executing a signed contract prior to the expiration of
this Contract.
Section 4 RESERVED
Section 5 STATEMENT Of WORK — RESPONSIBILITIES OF THE PARTIES
The City shall construct, or caused to be constructed, and complete, or cause to be completed, the
Project consistent with the plans and specifications prepared by the Friends' consultants and as approved
by the DNR; provided, however, that such plans and specifications meet all applicable building and fire
codes and are ADA compliant. To the extent that they would not be, the City shall modify, or cause to be
modified, the plans and specifications for the Project in consultation with the Friends' consultant and the
DNR prior to construction or remodeling activities.
Section 6 MONITORING AND REVIEW
6.1 Task Milestone Dates. The parties agree to complete their respective obligations under this
Contract by the date set out in Section 5.
Failure by either party to complete the above - designated portions of its obligations shall constitute
material breach of this Contract and shall be grounds for the other party to immediately terminate this
Contract for cause.
6.2 Review Meetings. Commencing with beginning performance of this Contract, the Project
Managers shall meet monthly to discuss progress made during the performance of this Contract. The
meetings shall occur, either in person or by telephone conference call, at times to be determined by the
parties. Meetings may be postponed only on a case -by -case basis by mutual written agreement of the
parties.
6.3 Status Reports. Prior to each review meeting, each Project Manager shall provide a status
report listing:
o Accomplishments during the previous period,
o Activities planned for the upcoming period,
o Tasks completed during the previous period,
o. An updated schedule of upcoming construction activities,
o Any problems or concerns encountered since the last meeting.
At the next scheduled meeting after which any party has identified in writing a problem, the party
responsible for resolving the problem shall provide a report setting forth activities undertaken, or to be
undertaken, to resolve the problem, together with the anticipated completion dates of such activities. Any
party may recommend alternative courses of action or changes that shall facilitate problem resolution.
6.4 DNR right to review and observe. Each party shall have the right to review and observe, at any
time, completed work or work in progress. Each party agrees to provide access, upon request, to inspect
its facilities and books and records relating to invoicing and time records for the purpose of monitoring
and evaluating performance of this Contract.
6.5 DNR Construction Inspection and Review. The DNR shall conduct periodic inpsection and
observation of the construction of the Project for the limited purposes of verifying general conformance of
the Project to the construction documents and verifying that payment under those construction
documents would be appropriate. To that end, the DNR shall review payment requests from the City's
MSDR11OLLDLa100268; 3
Description
Amount — Not to Exceed
General Project Costs
$100,000.00
Flooring in DNR offices and interpretive areas
of the Project Building
$20,048.75
National Scenic Byways Grant eligible
improvements
$183,200 (or 80% of the Total Project Costs,
whichever is less)
Description
Amount
Sewer Main work
($15,000.00)
Net amount of DNR contribution
Not to Exceed: $288,248.75
contractor and shall coordinate inspections with the Friend's consultants, as needed. The DNR shall not
test materials used in or for the Project. Nothing in this section shall be interpreted to be or create a
guaranty of the Project by the DNR, nor to be or create a guaranty by the DNR against defects or
deficiencies in the design, planning or construction of the Project.
Section 7 COMPENSATION
7.1 Source of Funding. DNR's source of funding for this Contract is an appropriation made by the
2007 Iowa General Assembly and Federal Aid Reimbursement made available to the DNR by the Iowa
Department of Transportation through the federal National Scenic Byways program. The City is utilizing
several other sources of funds to complete the Project, including local donations, donations made by the
Friends of the Mines of Spain, Vision Iowa CAT grant funds, the DNR's Solid Waste Alternative Program
funds, and a LAWCON grant made available through the DNR.
7.2 Not -to- exceed total amount of Contract. Payment by DNR for work performed according to the
terms of this Contract shall not exceed $288,248.75 or actual expenses incurred by the City for costs
relating to this Contract and as described in the Budget in Section 7.3 below. Payment shall be for
satisfactory completion of the Statement of Work outlined in this Contract, provided that the parties have
complied with the terms of this Contract. The DNR will pay the City using the National Scenic Byways
Grant only after other funds have been expended.
7.3 Budget. The budget for this Contract shall be as follows:
DNR Contribution
City Contribution
7.4 Submission of Invoices
The City shall submit an invoice to the DNR, for work performed by the City and its agents and
contractors, pursuant to this Contract upon Project completion. The DNR shall submit an invoice to the
City for reimbursement of the sewer main contribution.
The invoices shall itemize the work performed pursuant to the Contract. The invoice shall comply with all
applicable rules concerning payment of such claims and shall contain appropriate documentation
necessary to support the fees or charges included in the invoice. The DNR shall have the right to dispute
any invoice item submitted for payment and to withhold payment of any disputed amount if the DNR
reasonably believes the invoice is inaccurate or incorrect in any way. Original invoices to DNR shall be
submitted to the DNR's Project Manager described in Section 1 of these special Conditions.
7.5 Payment of Invoices. The parties shall pay approved invoices in arrears and in conformance
with Iowa Code section 8A.514. Unless otherwise agreed to in writing by the parties, neither party shall
be entitled to receive any other payment or compensation for any services provided under this Contract.
MSDR110LLDLa100268; 4
7.6 No advance payment. No advance payments shall be made for any Deliverables provided by
City pursuant to this Contract.
7.7 Delay of Payment Due to City's Failure. If either party determines that the other party has
failed to perform or deliver any Deliverable required by this Contract, then compensation may be withheld
until such Deliverable is performed or delivered according to the terms of this Contract.
7.8 Set-off Against Sums Owed by City. In the event that City owes DNR or the State any sum (including
any State taxes in arrears) under the terms of this Contract, any other contract, pursuant to a judgment, or
pursuant to any law, DNR may set off such sum against any sum invoiced to DNR by City. This may be
done in DNR's sole discretion unless otherwise required by law.
MSDR110LLDLa100268; 5
GENERAL CONDITIONS
Section 1 COMPLIANCE WITH THE LAW
The parties shall comply with all applicable federal, state, and local laws, rules, ordinances, regulations
and orders when performing the services under this Contract, including without limitation, all laws
applicable to the prevention of discrimination in employment and the use of targeted small businesses as
suppliers. The parties, and their employees and agents shall also comply with all federal, state and local
laws regarding business permits and licenses that may be required to carry out the work performed under
this Contract. The parties represents that they will comply with all federal, state, foreign and local laws
applicable to their performance under this Contract.
Section 2 TERMINATION
2.1 Termination Due to Lack of Funds or Change in Law. DNR shall have the right to terminate
this Contract without penalty by giving sixty (60) days' written notice to the City as a result of any of the
following:
2.1.1 The legislature or governor fail in the sole opinion of DNR to appropriate funds sufficient
to allow DNR to either meet its obligations under this Contract or to operate as required and to
fulfill its obligations under this Contract; or if funds anticipated for the continued fulfillment of the
Contract are, at any time, not forthcoming or are insufficient, either through the failure of DNR to
appropriate funds or funding from a federal source is reduced or discontinued for any reason, or
through discontinuance or material alteration of the program for which funds were provided; or
2.1.2 If funds are de- appropriated, reduced, not allocated, or receipt of funds is delayed, or if
any funds or revenues needed by DNR to make any payment hereunder are insufficient or
unavailable for any other reason as determined by DNR in its sole discretion; or
2.1.3 If DNR's authorization to conduct its business or engage in activities or operations related
to the subject matter of this Contract is withdrawn or materially altered or modified; or
2.1.4 If DNR's duties, programs or responsibilities are modified or materially altered; or
2.1.5 If there is a decision of any court, administrative law judge or an arbitration panel or any
law, rule, regulation or order is enacted, promulgated or issued that materially or adversely affects
DNR's ability to fulfill any of its obligations under this Contract.
2.2 Immediate Termination by DNR. DNR may terminate this Contract for any of the following
reasons effective immediately without advance notice and without penalty:
2.2.1 In the event the City is required to be certified or licensed as a condition precedent to
providing services, the revocation or Toss of such license or certification will result in immediate
termination of the Contract effective as of the date on which the license or certification is no
longer in effect;
2.2.2 DNR determines that the actions, or failure to act, of the City, and its agents and
employees have caused, or reasonably could cause, any person's life, health or safety to be
jeopardized;
2.2.3 The City fails to comply with confidentiality laws or provisions;
2.2.4 The City furnished any statement, representation or certification in connection with this
Contract or the RFP which is materially false, deceptive, incorrect or incomplete.
2.3 Termination for Cause. The occurrence of any one or more of the following events shall
constitute cause for DNR to declare the City in default of its obligations under this Contract.
2.3.1 The City fails to perform, to DNR's satisfaction, any material requirement of this Contract
or is in violation of a material provision of this Contract, including, but without limitation, the
express warranties made by the City;
2.3.2 DNR determines that satisfactory performance of this Contract is substantially
endangered or that a default is likely to occur;
2.3.3 The City fails to make substantial and timely progress toward performance of the
Contract;
2.3.4 The City becomes subject to any bankruptcy or insolvency proceeding under federal or
state law to the extent allowed by applicable federal or state law including bankruptcy laws; the
MSDR110LLDLa100268; 6
City terminates or suspends its business; or DNR reasonably believes that the City has become
insolvent or unable to pay its obligations as they accrue consistent with applicable federal or state
law;
2.3.5 The City has failed to comply with applicable federal, state and local laws, rules,
ordinances, regulations and orders when performing within the scope of this Contract;
2.3.6 The City has engaged in conduct that has or may expose the State or DNR to liability, as
determined in DNR's sole discretion;
2.3.7 The City has infringed any patent, trademark, copyright, trade dress or any other
intellectual property right or proprietary right, or the City has misappropriated a trade secret, or
2.3.8 City fails to comply with any of the Task Milestone dates contained in this Contract.
2.4 Notice of Default. If there is a default event caused by the City, DNR shall provide written notice
to the City requesting that the breach or noncompliance be remedied within the period of time specified in
DNR's written notice to the City. If the breach or noncompliance is not remedied by the date of the written
notice, DNR may either:
2.4.1 Immediately terminate the Contract without additional written notice; or,
2.4.2 Enforce the terms and conditions of the Contract and seek any legal or equitable
remedies.
2.5 Termination upon Notice. Following 30 days' written notice, DNR may terminate this Contract
in whole or in part without the payment of any penalty or incurring any further obligation to the City.
Following termination upon notice, the City shall be entitled to compensation, upon submission of invoices
and proper proof of claim, for services provided under this Contract to DNR up to and including the date
of termination.
2.6 Remedies of the City in Event of Termination by DNR. In the event of termination of this
Contract for any reason by DNR, DNR shall pay only those amounts, if any, due and owing to the City for
services actually rendered up to and including the date of termination of the Contract and for which DNR
is obligated to pay pursuant to this Contract. Payment will be made only upon submission of invoices and
proper proof of the City's claim. This provision in no way limits the remedies available to DNR under this
Contract in the event of termination. However, DNR shall not be liable for any of the following costs:
2.6.1 The payment of unemployment compensation to the City's employees;
2.6.2 The payment of workers' compensation claims, which occur during the Contract or
extend beyond the date on which the Contract terminates;
2.6.3 Any costs incurred by the City, including, but not limited to, startup costs, overhead or
other costs not directly associated with the performance of the Contract;
2.6.4 Any taxes that may be owed by the City not directly in connection with the performance of
this Contract, including, but not limited to, sales taxes, excise taxes, use taxes, income taxes or
property taxes.
2.7 The City's Termination Duties. The City upon receipt of notice of termination or upon request
of DNR, shall:
2.7.1 Cease work under this Contract and take all necessary or appropriate steps to limit
disbursements and minimize costs, and furnish a report within thirty (30) days of the date of
notice of termination, describing the status of all work under the Contract, including, without
limitation, results accomplished, and conclusions resulting there from, any other matters DNR
may require.
2.7.2 Immediately cease using and return to DNR any personal property or materials, whether
tangible or intangible, provided by DNR to the City.
2.7.3 Comply with DNR's instructions for the timely transfer of any active files and work product
produced by the City under this Contract.
2.7.4 Cooperate in good faith with DNR, its employees, agents and contractors during the
transition period between the notification of termination and the substitution of any replacement
contractor.
2.7.5 Immediately return to DNR any payments made by DNR for services that were not
rendered by the City.
MSDR110LLDLa100268; 7
2.8 Rights in incomplete products. In the event the Contract is terminated, all finished or
unfinished documents, data, reports, or other materials prepared by the City under this Contract shall, at
the option of DNR,' become DNR's property and the City shall be entitled to receive just and equitable
compensation for any satisfactory work completed on such documents and other material.
Section 3 INDEPENDENT CONTRACTOR
The status of the City shall be that of an independent contractor. The City, and its employees and agents
performing under this Contract are not employees or agents of the DNR. Neither the City nor its
employees shall be considered employees of DNR for federal or state tax purposes. DNR will not
withhold taxes on behalf of the City. City shall be responsible for payment of all taxes in connection with
any income earned from performing this Contract.
Section 4 CONFLICT OF INTEREST
4.1 The City covenants that the City presently has no interest and shall not acquire any interest,
direct and indirect, which would conflict in any manner or degree with the performance of services
required under this Contract. The City further covenants that in the performance of this Contract no
person having any such interest shall be employed.
4.2 During the term of this Contract, City shall not provide services that would create a conflict of
interest with the City's duties set out in this Contract. In determining whether a particular activity creates
an unacceptable conflict of interest, situations in which an unacceptable conflict shall be deemed to exist
shall include, but not to be limited to, any of the following:
4.2.1 The activity involves the use of the State's or DNR's time, facilities, equipment, and
supplies or other evidences of employment for purposes other than the performance of City's
obligations under this Contract.
4.2.2 The activity involves the receipt of, promise of, or acceptance of money or other
consideration by City from anyone other than the State or DNR for the performance of any acts
that City is required or expected to perform as a part of City's performance under this Contract.
4.2.3 The outside employment or activity is subject to the official control, inspection, review,
audit, or enforcement authority of DNR.
4.3 If the activity creating a conflict of interest is in progress when the term of this Contract begins or
is described in paragraph 4.2.1 or 4.2.2 above, then City shall immediately cease the activity. During the
term of this Contract, City shall not enter into any activity described in paragraph 4.2.3 or which
constitutes any other unacceptable conflict of interest. City shall immediately disclose to DNR the
existence of any conflict of interest, including conflicts of interest which are described in paragraph 4.2.3
and are in progress when the term of this Contract begins.
Section 5 AMENDMENTS
This Contract may be amended only by written mutual consent of the parties.
Section 6 CHOICE OF LAW AND FORUM
The laws of the State of Iowa shall govern and determine all matters arising out of or in connection with
this Contract without regard to the choice of law provisions of Iowa law. If applicable, the parties shall
comply with the provisions of Iowa Code section 679A.19 regarding disputes between government
agencies of the State of Iowa. In the event any proceeding of a quasi-judicial or judicial nature is
commenced in connection with this Contract, the exclusive jurisdiction for the proceeding shall be brought
in Polk County District Court for the State of Iowa, Des Moines, Iowa or in the United States District Court
for the Southern District of Iowa, Central Divison, Des Moines, Iowa, wherever jurisdiction is appropriate.
No provision of this Contract shall be construed as waiving any immunity to suit or liability including
without limitation sovereign immunity in State or Federal court, which may be available to DNR, City, or
the State of Iowa
MSDR110LLDLa100268,; 8
Section 7 SEVERABILITY
If any provision of this Contract is determined by a court of competent jurisdiction to be invalid or
unenforceable, such determination shall not affect the validity or enforceability of any other part or
provision of this Contract.
Section 8 ENTIRE AGREEMENT
This Contract constitutes the entire agreement between the parties with respect to the subject matter
hereof, and the parties acknowledge that they are entering into the Contract solely on the basis of the
terms and conditions herein contained and not in reliance upon any representation, statement,
inducement or promise, whether oral or written, not contained herein. This Contract supersedes all prior
contracts and agreements between the parties for the services provided in connection with this Contract.
Section 9 ASSIGNMENT AND DELEGATION
This Contract may not be assigned, transferred or conveyed, in whole or in part, without the prior written
consent of the other party.
Section 10 NOTICE
16.1 Any and all notices, designations, consents, offers, acceptances or any other communication
provided for herein shall be given in writing by registered or certified mail, return receipt requested, by
receipted hand delivery, by Federal Express, courier or other similar and reliable carrier which shall be
addressed to each party as set forth as follows in Section 1, Special Conditions, of this Contract.
10.2 Each such notice shall be deemed to have been provided:
10.2.1 At the time it is actually received;
10.2.2 Within one day in the case of overnight hand delivery, courier or services such as Federal
Express with guaranteed next day delivery; or,
10.2.3 Within five days after it is deposited in the U.S. Mail in the case of registered U.S. Mail.
10.3 From time to time, the parties may change the name and address of a party designated to receive
notice. Such change of the designated person shall be in writing to the other party and as provided
herein.
Section 11 CONFIDENTIALITY
The parties agree to comply with applicable Iowa law regarding confidentiality.
Section 12 PROPERTY
The DNR does not intend to provide the City with the use of any DNR -owned property during the course
of this Contract. In the event the City seeks to use DNR -owned property in association with this Contract,
the City shall be required to seek an agreement, as evidenced in writing and signed by the appropriate
officials, with DNR regarding the use of that property.
Section 13 (RESERVED)
Section 14 WAIVER
Except as specifically provided for in a waiver signed by duly authorized representatives of the parties,
failure by either party at any time to require performance by the other party or to claim a breach of any
provision of the Contract shall not be construed as affecting any subsequent right to require performance
or to claim a breach.
Section 15 (RESERVED)
Section 16 CUMULATIVE RIGHTS
The various rights, powers, options, elections and remedies of any party provided in this Contract, shall
be construed as cumulative and not one of them is exclusive of the others or exclusive of any rights,
remedies or priorities allowed either party by law, and shall in no way affect or impair the right of any party
MSDR110LLDLa100268 9
to pursue any other equitable or legal remedy to which any party may be entitled as long as any default
remains in any way unremedied, unsatisfied or undischarged.
Section 17 TIME IS OF THE ESSENCE
Time is of the essence with respect to the performance of the terms of this Contract.
Section 18 RECORD RETENTION AND ACCESS
The parties shall maintain books, records and documents for a period of at least three years and
according to their respective law with regard to records retention. All parties shall permit the Auditor of
the State of Iowa or any authorized representative of the State and where federal funds are involved, the
Comptroller General of the United States or any other authorized representative of the United States
government, to access and examine, audit, excerpt and transcribe any directly pertinent books,
documents, papers, electronic or optically stored and created records or other records of the City relating
to orders, invoices or payments or any other documentation or materials pertaining to this Contract,
wherever such records may be located. The City shall not impose a charge for audit or examination of the
City's books and records.
Section 19 (RESERVED)
Section 20 OBLIGATIONS BEYOND CONTRACT TERM
This Contract shall remain in full force and effect to the end of the specified term or until terminated or
canceled pursuant to this Contract. All obligations of DNR and the City incurred or existing under this
Contract as of the date of expiration, termination or cancellation will survive the termination, expiration or
conclusion of this Contract.
Section 21 (RESERVED)
Section 22 SUPERCEDES FORMER CONTRACTS OR AGREEMENTS
Unless this Contract is an amendment to a Contract entered into between the parties and is designated
as such, then this Contract supersedes all prior contracts or agreements between the parties for the
services provided in connection with this Contract.
Section 23 USE OF THIRD PARTIES AND SUBCONTRACTORS
City may not contract with third parties for the performance of any of City's obligations under this
Contract, unless and then only to the extent that the Special Conditions of this Contract specify otherwise.
If the Special Conditions provide for a subcontractor or subcontractors, then the following conditions shall
apply:
23.1 All subcontracts shall be subject to approval by the DNR. The DNR's consent shall not be
deemed in any way to provide for the incurrence of any obligation of DNR in addition to the remuneration
agreed upon in this Contract. Any subcontract to which DNR has consented shall be in writing and shall
in no way alter the terms and conditions of this Contract.
23.2 The City may enter into subcontracts to complete the work required by this Contract provided that
the City remains responsible for all services performed under this Contract. No subcontract or delegation
of work shall relieve or discharge the City from any obligation, provision, or liability under this Contract.
The City shall remain responsible for such performance and shall be fully responsible and liable for all
acts or omissions of any subcontractor.
23.3 All restrictions, obligations and responsibilities of the City under this Contract also shall apply to
the subcontractors.
23.4 DNR shall have the right to request the removal of a subcontractor from the Contract for good
cause. The City shall indemnify, defend and hold harmless DNR and the State from and against any and
all claims, demands, liabilities, suits, actions, damages, losses, costs and expenses of every kind and
MSDR110LLDLa100268; 10
nature whatsoever arising as a result of City's breach of any subcontract in which it enters, including
City's failure to pay any and all amounts due by City to any subcontractor.
23.5 Each subcontract shall contain provisions for DNR access to the subcontractor's books,
documents, and records and for inspections of work, as required of City herein.
23.6 Any action of a subcontractor, which, if done by City, would constitute a breach of this Contract,
shall be deemed a breach by City and have the same legal effect.
23.7 If delay results from a subcontractor's conduct, from the City's negligence or fault, or from
circumstances which by the exercise of reasonable diligence the City should have been able to anticipate
or prevent, then the City shall be in default..
23.8 If the Contract is subject to the provisions of Iowa Code chapter 8F, then the City shall comply
with Iowa Code chapter 8F with respect to any subcontract City enters into pursuant to this Contract. Any
compliance documentation, including but not limited to certification, received from any subcontractor shall
be forwarded to DNR immediately.
Section 24 SELF - INSURANCE BY THE STATE OF IOWA
Pursuant to Iowa Code chapter 669, DNR and the State of Iowa are self- insured against all risks and
hazards related to this Contract. No separate fund has been established to provide self- insurance, and
the State of Iowa is not obligated to establish any such fund during the term of this Contract.
Section 26 INDEMNIFICATION
The City, as authorized by law, agrees to indemnify and hold harmless the State and DNR, its officers,
employees and agents appointed and elected and volunteers from any and all costs, expenses, losses,
claims, damages, liabilities, settlements and judgments, related to or arising from: any breach of this
Contract; any negligent, intentional or wrongful act or omission of the City or any agent or subcontractor
utilized or employed by the City; the City's performance or attempted performance of this Contract,
including any agent or subcontractor utilized or employed by the City; any failure by the City to comply
with the Compliance with the Law provision of this Contract; any failure by the City to make all reports,
payments and withholdings required by federal and State law with respect to social security, employee
income and other taxes, fees or costs required by the City to conduct business in the State; any
infringement of any copyright, trademark, patent, trade dress, or other intellectual property right; or any
failure by the City to adhere to the confidentiality provisions of this Contract.
Section 26 IMMUNITY FROM LIABILITY
Every person who is a party to the Contract is hereby notified and agrees that the State, DNR, and all of
their employees, agents, successors, and assigns are immune from liability and suit for City's and
subcontractors' activities involving third parties arising from the Contract.
Section 27 NON - SUPPLANTING REQUIREMENT
To the extent required by federal or state law, federal and state funds made available under this Contract
shall be used to supplement and increase the level of state, local, and other non - federal funds that would
in the absence of such federal and state funds be made available for the programs and activities for
which funds are provided and will in no event take the place of state, local, and other non - federal funds.
Section 28 CERTIFICATION REGARDING SALES AND USE TAX
By executing this Contract, the City certifies that it is either (a) registered with the Iowa Department of
Revenue, collects and remits sales and use taxes as required by Iowa Code chapter 432; or (b) not a
"retailer" or a "retailer maintaining a place of business in this state" as those terms are defined in Iowa
Code sections 423.1(42) and (43). The City also acknowledges that the DNR may declare the Contract
void if the above certification is false. The City also understands that fraudulent certification may result in
the Agency or its representatives filing action for damages for breach of contract.
MSDR110LLDLa100268; 11
Section 29 TAXES
The State of Iowa is exempt from federal excise tax, and no payment will be made for any taxes levied on
City's employees' wages. The State of Iowa is exempt from state and local sales and use taxes on the
Deliverables.
Section 30 EQUAL EMPLOYMENT PROVISIONS
The City has read and understands the provisions in Attachment A, Equal Employment Opportunity,
attached hereto and made part of this Contract by this reference, and the City agrees to conform to the
requirements contained therein.
Section 31 FEDERALLY - FUNDED AGREEMENTS
The City has read and agrees to comply the provisions of Attachment B, Additional Requirements for
Federally- Funded Agreements, attached hereto and made part of this Contract by this reference.
Section 32 (RESERVED)
Section 33 INFORMATION TECHNOLOGY SECURITY
The City and all City personnel shall comply with Iowa information technology security statutes, rules and
policies. By signing this contract, the City acknowledges that the City has read and understands the
provisions of the information technology security policies adopted by the Iowa Department of
Administrative Services (DAS) and DNR in effect on the date of signing. These policies are located on the
respective agency websites at www.iowadnr.gov and http: / /das.iowa.gov /index.html. The City further
agrees to read and abide by any revised DAS and DNR policies, posted on the respective agency
websites that come into effect during the term of this Contract.
MSDR110LLDLa100268; 12
Attachment A
Equal Employment Opportunity.
The City agrees to the following:
A.1 The City shall not discriminate against any employee or applicant for employment because of
race, creed, color, religion, sex, national origin, age, gender identity, gender orientation, pregnancy, family
status, marital status or mental or physical disability. The City shall take affirmative action to ensure that
applicants are employed and that employees are treated, during employment, without regard to their race,
creed, color, religion, sex, national origin, age, gender identity, gender orientation, pregnancy, family
status, marital status or mental or physical disability except where mental or physical disability relates to a
bona fide occupational qualification reasonably necessary to the normal operation of the City's business.
Such action shall include but not be limited to, the following: employment, upgrading, demotion or
transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of
compensation and selection for training, including apprenticeship. The City agrees to post notices,
setting forth provisions of this nondiscrimination clause, in conspicuous places available to employees
and applicants for employment.
A.2 The City shall in all solicitations or advertisements for employees, placed by or on behalf of the
City, state that all qualified applicants shall receive consideration for employment without regard to race,
creed, color, religion, sex, national origin, age, gender identity, gender orientation, pregnancy, family
status, marital status or mental or physical disability except where mental or physical disability is a bona
fide occupation qualification reasonably necessary to the normal operation of the City's business.
A.3 The City shall comply with all relevant provisions of the Iowa Civil Rights Act of 1965, as
amended, Iowa Executive Order 15 or 1973, Chapter 19B, Code of Iowa, Federal Executive Order 11246
of 1965, as amended by Federal Executive Order 11376 of 1967, and Title VI of the Civil Rights Act of
1964, as amended. The City shall furnish all information and reports requested by the state of Iowa or
required by, or pursuant to, the rules and regulations thereof and shall permit access to payroll and
employment records by the state of Iowa for purposes of investigation to ascertain compliance with such
rules, regulations or requests, or with this nondiscrimination clause.
A.4 In the event of the City's noncompliance with the nondiscrimination clauses of this contract or with
any of the aforesaid rules, regulations or requests, this contract may be canceled, terminated or
suspended in whole or in part. In addition, the state of Iowa may take such further action, and such other
sanctions may be imposed and remedies invoked, as provided by the Iowa Civil Rights Act of 1965, as
amended, Chapter 216, Code of Iowa, or as otherwise provided by law.
A.5 The City shall include the provisions of paragraphs 8.1 through 8.4 hereof in every subcontract,
unless specifically exempted by approval of the state of Iowa, so that such provisions shall be binding on
each subcontract. The City shall take such action with respect to any subcontract as the state of Iowa
may direct as a means of enforcing such provisions, including sanctions for noncompliance; provided,
however, that in the event the City becomes involved in, or is threatened with, litigation with a
subcontractor or vendor as a result of such direction by the state of Iowa, the City may request the state
of Iowa to enter into such litigation to protect the interests of the state of Iowa.
MSDR110LLDLa100268; 13
A.6 In accordance with the provisions of 541 Iowa Administrative Code chapter 4:
o The City or subcontractor is prohibited from engaging in discriminatory employment practices
forbidden by federal and state law, executive orders and rules of the department of management,
which pertain to equal employment opportunity and affirmative action.
o The City or subcontractor may be required to have on file a copy of the affirmative action
program, containing goals and time specifications. These contractual provisions shall be fully
enforced. Any breach of them shall be regarded as a material breach of the Contract.
o Compliance with the provisions of Iowa Code section 19B.7 and all applicable rules of the
department of management prior to the execution of the Contract shall be a condition of the
Contract binding upon the City or service provider, its successors, and assignees.
o Failure to fulfill the nondiscrimination requirements of this Contract or any of the rules and orders
may cause the Contract to be canceled, terminated, or suspended in whole or in part, and the
City or service provider may be declared ineligible for future state contracts in accordance with
authorized procedure or the City may be subject to other sanctions as provided by law or rule.
o The City may be required to submit to the department of management or the DNR a copy of its
affirmative action plan containing goals and time specifications.
o The City shall be able to demonstrate to the satisfaction of the department of management or the
DNR that its affirmative action program is productive.
o The City may be required to submit reports as requested by the department of management. The
department of management may request other relevant information from a contractor at any time.
o The department of management may undertake a compliance review of the City, and the
department of management may take action, as appropriate, to seek to terminate contracts or
funding found to be in violation of the rules.
MSDR110LLDLa100268; 14
Attachment B
Additional Requirements for Federally- funded Agreements
B.1 Suspension and Debarment. The City certifies pursuant to 31 CFR Part 19 that neither it nor its
principles are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily
excluded from participation in this Contract by any federal department or agency.
B.2 Lobbying Restrictions. The City shall comply with all certification and disclosure requirements
prescribed by 31 U.S.C. Section 1352 and any implementing regulations and shall be responsible for
ensuring that any subcontractor fully complies with all certification and disclosure requirements.
B.3 Pro - Children Act of 1994. Public Law 103 -227, also known as the Pro - Children Act of 1994
(Act), requires that smoking not be permitted in any portion of any indoor facility owned or leased or
contracted for by an entity and used routinely or regularly for the provision of health, day care, early
childhood development services, education or library services to children under the age of 18, if the
services are funded by federal programs either directly or through state or local governments, by federal
grant, contract, loan or loan guarantee. Federal programs include grants, cooperative agreements, loans
or loan guarantees and contracts. The law also applies to children's services that are provided in indoor
facilities that are constructed, operated or maintained with such federal funds. The law does not apply to
children's services provided in private residences; portions of facilities used for inpatient drug or alcohol
treatment; service providers whose sole source of applicable federal funds is Medicare or Medicaid; or
facilities (other than clinics) where WIC coupons are redeemed. Failure to comply with the provisions of
the law may result in the imposition of a civil monetary penalty of up to $1,000 for each violation and /or
the imposition of an administrative compliance order on the responsible party. The City certifies that it will
comply with the requirements of the Pro - Children Act of 1994 and will not allow smoking within any
portion of any indoor facility used for the provision of services for children as defined by the Act.
B.4 Certified Audits. Local governments and non - profit subrecipient entities that expend $500,000
or more in a year in federal awards (from all sources) shall have a single audit conducted for that year in
accordance with the provisions of OMB Circular A -133 "Audit of States, Local Governments, and Non -
Profit Organizations." A copy of the final audit report shall be submitted to DNR if either the schedule of
findings and questioned costs or the summary schedule of prior audit findings includes any audit findings
related to federal awards provided by DNR. If an audit report is not required to be submitted per the
criteria above, the subrecipient must provide written notification to DNR that the audit was conducted in
accordance with Government Auditing Standards and that neither the schedule of findings and
questioned costs nor the summary schedule of prior audit findings includes any audit findings related to
federal awards provided by the DNR. See A -133 Section 21 for a discussion of subrecipient versus
vendor relationships.
B.5 Drug Free Work Place. The City shall provide a drug free workplace in accordance with the
Drug Free Workplace Act of 1988 and all applicable regulations.
B.6 Reporting. The City agrees to the reporting requirements described in the Special Conditions of
this Contract.
B.7 Record Retention. In addition to the record retention requirements described in Section 18 of
the General Conditions of this Contract, the City shall allow the Iowa Department of Transportation, the
Federal Highway Administration, the Comptroller General of the United States, or any of their duly
authorized representatives to access any records of the City for the purpose of making audit,
examination, excerpts, and transcriptions which are directly pertinent to this Contract. The City shall keep
all such records for a period of at least three years after DNR makes the final payment and this Contract
is closed.
MSDR,110LLDLa100268; 15
B.8 The City shall comply with mandatory standards and policies related to energy efficiency which are
contained in the state energy conservation plan issued in compliance with the Energy Policy and
Conservation Act (Pub. L. 94 -163, 89 Stat.871).
B.9 The City shall comply with the Copeland "Anti-Kickback" Act (18 U.S.C. 874), as supplemented by
the Department of Labor regulations as 29 CFR part 3, and shall ensure all their contractors comply with
this requirement.
B.10. The City shall comply with the Davis -Bacon Act (40 U.S.C. 276a to 276A -7), as supplemented by
Department of Labor regulations as 29 CFR part 5.
B.11 The City shall comply with Sections 103 and 107 of the Contract Work Hours and Safety Standards
Act (40 U.S.C. 327 -330), as supplemented by Department of Labor regulations as 29 CFR part 5.
B.12 Notwithstanding anything provided for in Exhibit A of this Contract, the City shall comply with
Executive Order 11246 of September 24, 1965, entitled "Equal Employment Opportunity" as amended by
Executive Order 11375of October 13, 1967, and as supplemented in Department of Labor regulations as
41 CFR chapter 60.
B.13 The City shall comply with all applicable standards, order, ore requirements issued under section
306 of the Clean Air Act (42 U.S.C. 1857(h)), section 508 of the Clean Water Act (33 U.S.C. 1368),
Executive Order 11738, and Environmental Protection Agency regulations (40 CFR part 15).
MSDR110LLDLa100268; 16