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Fishing Pier Heron Pond 28E AgrMEMORANDUM February 9, 2004 TO: FROM: SUBJECT: The Honorable Mayor and City Council Members Michael C. Van Milligen, City Manager 28E Agreement with IDNR to Provide Funds for Construction of Fishing Pier at Heron Pond Leisure Services Manager Gil Spence recommends City County Approval of a 28E Intergovernmental Contract Agreement between the Iowa Department of Natural Resources and the City of Dubuque to fund construction of an accessible fishing pier at Heron Pond in Miller-Riverview Park. This is a partnership between the Dubuque Walleye Club, the Iowa Department of Natural Resources, Watchable Wildlife, the U.S. Fish and Wildlife Service and the University of Wisconsin-Platteville Engineering Department. No City funding will be required. I concur with the recommendation and respectfully request Mayor and City Council approval. Micl~ael C. Van Milligen MCVM/jh Attachment cc: Barry Lindahl, Corporation Counsel Cindy Steinhauser, Assistant City Manager Gil D. Spence, Leisure Services Manager CITY OF DUBUQUE, IOWA MEMORANDUM February 9, 2004 TO: Michael C. Van Milligen, City Manager FROM: Gil D. Spence, Leisure Services Manager~ SUBJECT: 28E Agreement with IDNR to Provide Funds for Construction of Fishing Pier at Heron Pond INTRODUCTION The purpose of this memorandum is to request City Council approval of a 28E Intergovernmental Contract Agreement between the Iowa Department of Natural Resources and the City of Dubuque to fund construction of an accessible fishing pier at Heron Pond in Miller-Riverview Park. DISCUSSION As you know, I have been working with the Dubuque Walleye Club to locate and construct accessible fishing piers along the Mississippi River. Heron Pond and Miller- Riverview Park became the priority locations for the piers and design became the next issue. The Club secured the services of the University of Wisconsin-Platteville Engineering Department to do design work as a class project. Their work was excellent and we have designs for a pier at Heron Pond and another along the shoreline of Miller-Riverview Park. Funding became the next issue and Tom Boland of IDNR was able to secure a Sport Fish Restoration grant, through IDNR, from the U.S. Fish and Wildlife Service. This grant covers seventy-five percent of the $52,000 cost and Watchable Wildlife will fund the remaining twenty-five percent. This project is an excellent example of building partnerships to accomplish a goal. Every time we thought we were at an impasse, someone stepped forward and got the project moving again. This project was part of the Park Division ClP but has been eliminated now that other funding was obtained. continued IDNR 28E Agreement, page two IDNR would like the 28E Agreement approved to obtain the grant funds. ACTION STEP The action requested is that the City Council approve the 28E Intergovernmental Contract Agreement with the Iowa Department of Natural Resources and authorize the Mayor to sign it. Corporation Counsel Barry Lindahl and Frank O'Connor have both reviewed and approved the agreement. GDS:et attachment 28E INTERGOVERNMENTAL CONTRACT AGREEMENT between the Iowa Department of Natural Resources and City of Dubuque, Iowa Contract No.: HP-2004 Amount: $39,000 Contractor: City of Dubuque Contractor Officer: Michael Van Milligen Contractor Title: City Manager DNR Project Officer: Martin Konrad DistributiOn: Copy 1: DNR Copy 2: Contractor Time of Performance: From March 11, 2004 to December 31, 2004 Submit Claim Vouchers to: Mike Heldenbrand Iowa Department of Natural Resources Budgets and Grants Bureau Wallace State Office Building Des Moines, Iowa 50319-0034 515/281-5631 Issue Payment to: City of Dubuque Attention: Gil Spence, Leisure Services Manager 2200 Bunker Hill Road Dubuque, IA 52001 The Contractor agrees to perform all services set forth in the attached Special Conditions, for the consideration stated herein. The rights and obligation of the parties to this Contract shall be subject to and governed by the Attachments~ the Special Conditions, and the General Conditions. To the extent of any inconsistency between the attachments, Special and General Conditions, and any specifications or other conditions, which are, made a part of this Contract by reference or otherwise, the Special and the General Conditions shall control. To the extent of any inconsistency between the Special and the General Conditions, the Special Conditions shall control. This agreement contract is made pursuant to authority of the Iowa Code, Section 28E.12 IN WITNESS WHEREOF, the parties hereto have executed this Contract. IOWA DEPARTMENT OF NATURAL RESOURCES By: By: Name: Liz Chdstiansen Title:Deputy Director Date: Ci~ofDubuque Name: Terrance M. Duggan Title: Mayor Date: SPECIAL CONDITIONS ARTICLE I. IDENTIFICATION OF PARTIES AND PROJECT 1.1 This Contract is entered into by and between City of Dubuque (hereinafter referred to as the Contractor) and the Iowa Department of Natural Resources (hereinafter referred to as the Department) to complete the Sport Fish Restoration Project - Fishing Pier, (hereinafter referred to as the Project and hereby made part of this Contract). ARTICLE I1. DESIGNATION OF OFFICIALS 2.1 Department. The Director of the Department is the official authorized to execute any changes in the terms or conditions specified in this Contract. Martin Konrad; Executive Officer of the Conservation and Recreation Division is designated to negotiate on behalf of the Department, subject to the approval of the Director, any changes to the Contract. 2.2 Contractor. The Contractor Officer authorized to execute any changes in the terms, conditions, or amounts specified in this Contract is as indicated on the title page of this Contract. 2.3 Key Personnel for the Contractor. Gil Spence, City of Dubuque ARTICLE II1. TIME OF PERFORMANCE 3.1 Time of Performance. The Contractor shall commence work on the Contract on the beginning date and complete Contract tasks by the ending date, as set forth on the title page of this Contract under "Time of Performance," unless changed by mutual written agreement. ARTICLE IV. STATEMENT OF PURPOSE 4.1 This Contract is entered into foe the Department to transfer federal funds to the Contractor for the construction of one (1) fishing pier with a pathway (sidewalk) from a parking area to the pier. ARTICLE V. SCOPE OF WORK 5.1 The Project shall consist of the construction of one fishing pier with a pathway (sidewalk) extending from a parking area to the pier. 5.2 The Project shall meet Americans with Disabilities Act accessibility guidelines for. buildings and facilities. 5.3 The Contractor to receive Federal funds ($39,000) from the Department must agree to and certify compliance with all applicable Federal laws, regulations, and policies. 5.4 5.5 5.6 5.7 The Contractor shall provide additional documentation to comply with environmental and other laws, as defined in Fish and Wildlife Service Manual 523 FW I (available on the intemet at http://www.fws..qov/directives/523fwl .html). The Contractor shall submit a final report at the completion of the project. The Contractor shall operate and maintain the fishing pier and pathway (sidewalk) for the purpose of shoreline fishing. Throughout the useful life of the pier, the Contractor shall give public credit to the Federal Aid in Sport Fish Restoration (SFR) program by displaying the SFR logo on site and at all times. ARTICLE VI. REPORTS 6.1 The Contractor shall submit three (3) copies of a final report describing all activities performed and the results obtained with supporting data. This report shall include information as described in Article V, Scope of Work, and meet all Department requirements. The final report shall be submitted no later than sixty (60) days following the expiration of this Contract. 6.2 The Contractor shall furnish to the Department a detailed and documented description of all costs and expenses for the project within sixty (60) days following the expiration of this Contract. ARTICLE VII. REVIEW OF WORK 7.1 The Department or its advisors shall have the right to review and observe at any time, completed work or work in progress on the Project. ARTICLE VIII. FUNDING 8.1 The Department shall pay the Contractor actual project costs in an amount not to exceed the Contract amount as set forth on the title page of this Contract for the completion of the Project. 8.2 The Department shall pay the Contractor 75% of the actual project costs or $39,000 whichever is smaller for activities shown in the Budget Summary (Appendix A). Documentation of the matching funds is required before the Department will make reimbursement payments. 8.3 Funding for this Contract is subject to the U.S. Fish & Wildlife Service financial support. If the U.S. Fish & Wildlife Service discontinues funding, this Contract may be terminated or amended by the Department. Should the Fish & Wildlife Service disallow a budget item or portion thereof, the Contractor will be required to pay the costs of the contested item(s). 8.4 The Contractor shall tract the actual Project costs· Cost cannot be prorated to the Project based upon an estimated percentage of the project to the total work being competed· ARTICLE IX. PAYMENT. 9.1 The Contractor shall submit one (1) signed odginal and three (3) pressure sensitive copies of the state of Iowa Claim Voucher to the Department for completed portions of the Project· A final invoice, as well as a final report, as specified in Article 6.1, is due within sixty (60) days following the expiration of this Contract. 9.2 The Department shall make payments to the Contractor within forty-five (45) days of receipt of a completed state claim voucher. 9.3 No costs can be incurred, except for preliminary costs, before the beginning date or after the ending date as set forth in the Time of Performance on the Title page. 9.4 The Department shall retain five pement (5%) of the amount requested in each claim. The Contractor may request payment on the reimbursable items up to ninety five percent (95%) of the total contract amount pdor to completion of the project. Payment of the final five percent (5%) shall be made upon completion and approval of the final report and all work required in Article V, Scope of Work and submittal of a completed claim voucher with accompanying invoice and contract expense sheet for the final five percent (5%) of the contract total. 9·5 The Department shall allow up to a five percent (5%) deviation in any budget line item without prior wdtten approval provided that the total budget is not exceeded and the Department is notified. Any other budget changes require the prior written approval of the Department. 9.6 The Department shall issue payments to the Contractor based on the percentage of work completed or for specific work items finished. The Contractor shall submit an invoice to the Department requesting payment based on the percentage of the work completed or for specific work items finished. The invoice shall include a percentage of work completed figure or list the specific work items finished· The invoice shall be accompanied with support documentation sufficient to support the percentage of work completed or the specific work items finished. Should a reasonable doubt arise as to the integrity of the percent of work completed or to the specific work items claimed on an invoice, the Department shall not issue payment for such an invoice until the integrity of the invoice has been reestablished. The Department shall issue payments up to an amount equal to ninety five percent (95%) of the contract total. The final five percent (5%) payment shall be conducted as outlined in paragraph 9·4· General Conditions "General Conditions shall all be subject to Iowa Code Chapter 28E." Section 1.0 Contract Negotiation The Contractor hereby agrees, upon commencement of Contract negotiations, or after signature of the Contract Document by both the Contractor and the Department, to attend a Contract Consultation meeting at the Department's office, if so requested by the Department. If the Contractor fails to attend the Contract Consultation meeting the Department shall be free to terminate the Contract negotiations or the signed Contract Document, whichever applies, by the described method in section 12.1 of this document. Section 2.0 Entire Agreement This Contract with all attachments and references constitutes the entire Agreement between the Department and the Contractor with respect to the subject matter hereof, and the Contractor acknowledges that it is entedng into the Contract solely on the basis of the terms and conditions herein contained and not in reliance upon any representative statement, inducement or promise, whether oral or written, not contained herein. Section 3.0 Amendment The Department or the Contractor may initiate an amendment to this Contract. Any amendment is effective only if in writing and agreed to by the Department and the Contractor. The amendment shall be effective as of the date it is agreed upon, unless otherwise specified in the amendment. Section 4.0 Availability of Data All information and data obtained by the Contractor in connection with the Contract shall be made available to the Department. Such information and data shall become the property of the Department except that which is necessary for the patent or copyright purposes of the Contractor. Section 5.0 Assumption of Risk and Liabilities The Contractor and all subcontractors employed by the Contractor shall each effect and maintain insurance to protect the Contractor from claims under worker's compensation acts; claims for damages because of bodily injury including personal injury, sickness or disease, or death of any of their employees or any person other than their employees; from claims for damages because of injury to or destruction of tangible property including loss of use resulting therefrom; and from claims arising out of the performance of professional services caused by any errors, omissions, or negligent acts for which the Contractor is legally liable. The Contractor agrees to defend, hold harmless and indemnify the Department and State of Iowa against any liability adsing out of the negligent acts, errors or omissions on the Contractor, his or her employees or agents. Section 6.0 Transfer of Work 6.1 The Contractor shall not transfer or assign any part or portion of the work on the Contract without the prior written consent of the Department. 6.2 The Contractor shall not make any award or permit any award (subgrant, contract, or subcontract) at any tier to any party which is debarred or suspended or is otherwise excluded from or ineligible for participation in Federal assistance programs under Executive Order 12549, "Debarment and Suspension" as specified in Department of Interior Rule 43, Code of Federal Regulations Part 12. Section 7.0 Review of Work The Department shall have the right to review and observe, at any time, completed work or work in progress on the Contract. Section 8.0 Publications 8.1 All of the Contractor's reports and publications pertaining to work performed under this Contract shall contain the following statements on the credit sheet: "This contract was prepared with the support of the U.S. Department of Intedor Fish & Wildlife Service for the Sport Fish Restoration Grant Program. However, any opinions, findings, conclusions or recommendations expressed herein are those of the author(s) and do not necessarily reflect the views of DOl." 8.2 The Department reserves the right to publish the report once completed by the Contractor and delivered to the Department. Written and oral releases are considered to be within the context of publication rights so reserved by the Department. The Contractor shall not publish interim reports without prior wdtten consent of the Department. 8.3 Nothing in this section shall be construed to limit the dghts of the Contractor to publish the data or information in scholarly or professional journals as long as any copyright to be obtained is not prejudiced thereby. There shall be no pre-release of data or findings connected with this Contract in scholarly or professional journals or through public presentations or news media until the contract is completed, unless prior written approval for such release has been given by the Department. Contract completion is defined herein as termination of this Contract. 8.4 All reports, interim and final, published by either the Contractor or the Department, will give credit to the other party's participation in the Contract. 8.5 Neither the Department nor the Contractor shall use the name of the other for advertising, promotional, or publicity purposes without the prior written consent of the other. Section 9,0 Accounts and Records 9.1 The Contractor agrees to maintain books, documents, and other records pertaining to all costs and expenses incurred and revenues acquired during this Contract to the extent and in such detail as will properly reflect all costs, direct and indirect, of labor, materials, equipment, supplies and services, and other costs and expenses of whatever nature for which reimbursement is claimed. The Contractor shall be prepared to support charges for salaries and wages by time, attendance and payroll records. 9.2 The Iowa Department of Natural Resoumes, State Auditor, U.S. Department of Interior, and Comptroller General of the United States, or any of their duly appointed representatives, shall have access for the purpose of audit and examination to any books, documents, papers and records of the Contractor which are pertinent at all reasonable times during the period of retention provided for in paragraphs 9.3, 9.4, and 9.5 below and shall have the right to make copies of excepts or make other transcriptions thereof, subject to the provisions of 561 Iowa Administrative Code Section 2.3 and iowa Code Chapter 22. 9.3 The Contractor shall retain all records in the possession pertaining to this Contract for a pedod of three (3) years beginning with the date upon which the final payment under this Contract is issued. Records for non-expendable property acquired under this Contract shall be retained for a three (3) year period after the final disposition of the property. 9.4 Records relating to any litigation or claim adsing out of the performance of this Contract, or costs or expenses of this Contract to which exception has been taken as a result of inspection or audit, shall be retained by the Contractor until such litigation, claim, or exception has been finally settled or until, the three (3) year period has expired, whichever occurs later. 9.5 The contractor, in maintaining Contract expenditure accounts and records and reports, shall make any necessary adjustments to reflect refunds, credits, underpayments or overpayments, as well as any adjustments resulting from any administrative reviews and audits by the United States or by the State of Iowa or by the Contractor. Such adjustments shall be set forth in the financial reports filed with the Department. Section 10.0 Allowable Costs 10.1 Allowable costs are specified under the Approved Budget of this Contract. Allowable costs are subject to audit under the principles defined in Office of Management and Budget (OMB) Circulars A-87, A-110, A-122 and Department of Interior Financial Assistance Rule 43, Code of Federal Regulations (CFR) Part 12. 10.2 Indirect costs shall be allowable at a predetermined rate specified in the Approved Budget of this Contract. Indirect costs rates, if applicable, shall be determined according to the principles defined in Office of Management and Budget (OMB) Circulars A-87, A-110, A-122 and Department of Interior (DOI) Financial Assistance Rule 43 Code of Federal Regulations (CFR) Part 12. Section 11.0 Unallowable Costs The following costs are unallowable under this Contract: a. Legal expenses for the prosecution of claims against the Department, the State of Iowa, the Federal Government, or any subdivision thereof; b. The difference in costs between first class air accommodations and less than first class air accommodations, unless less than first class air accommodations are not available; c. Costs incurred prior to the effective date of the Contract; d. Costs of preparing proposals for potential contracts; e. Bad debts (any losses arising from accounts not collected and other claims and related costs); f. Contingencies (contributions to a contingency reserve or any similar provision for unforeseen events); g. Contributions of donations; h. Entertainment (costs of amusements, social activities, and incidental costs relating thereto, such as meals, beverages, lodgings, rentals, transportation, and'gratuities); i. Fines and penalties (costs relating from violations of, or failure to comply with federal, state and local laws and regulations); j. Other financial costs (interest on borrowings -- however represented, bond discounts, costs of financing and refinancing operations, and legal and professional fees paid in connection therewith). Section 12.0 Termination of Contract 12.1 Termination for cause - The Department may terminate this Contract in whole or in part, at any time before the expiration date, whenever the Department has determined that the Contractor has materially failed to comply with the conditions of the Contract. The Department shall promptly notify the Contractor in writing of the determination and reasons for the termination, together with the effective date. Payments made to the Contractor or recoveries by the Department under Contracts terminated for cause shall be in accord with the legal rights and liabilities of the parties. 12.2 Termination for convenience - The Department or Contractor may terminate the Contract in whole or in part when both parties agree that the continuation of the Contract would not produce beneficial results commensurate with the future expenditure of funds. The two parties shall agree upon the termination conditions, including the effective date and, in the case of partial termination, the portion to be terminated. The Contractor shall not incur new obligations for the terminated portion after the effective date and shall cancel as many outstanding obligations as possible. The Contractor shall prepare and deliver to the Department copies of a final report summarizing the work performed and the results obtained to date, together with such information and items which, if the Contract had been completed, would have been required to be furnished to the Department. Section 13.0 Patents Title to any and all patentable discoveries and patents therefrom originating as a result of any sponsored set forth in this Agreement shall be vested in the Contractor. The Contractor shall evaluate each such discovery, and if in its judgment the attendant circumstances warrant filing a patent application, it shall do so at its own expense. In cases where the Contractor decides against filing a patent application, the Department shall be notified promptly of the decision together with an offer to pass title to the invention to the State of Iowa. The State of Iowa and any department or divisions thereof, and all political subdivisions within the state shall be entitled to an irrevocable, non-exclusive, royalty-fee license for governmental purposes under any patent held by the Contractor which originates under this Agreement. Section 14.0 Copyrights and Use of Data 14.1 The term "subject data" as used herein includes research data and reports, writings, sound recordings, pictorial reproductions, drawings or other graphical representations, and works of any similar nature which are specified to be delivered under this Contract. The term does not include financial reports, cost analyses, and similar information incidental to Contract administration. 14.2 The Contractor shall be considered the author of all original subject data. 14.3 Subject to the provisions of Section 14.4 below, the state may duplicate, use and disclose in any manner for any authorized state activity, and may allow others to do so, all subject matter deliverable under this Contract. 14.4 In the event the Contractor secures a copyright, the Contractor agrees to and does hereby grant to the state, its officers, agents and employees acting within the scope of their official duties, a royalty-fee, non-exclusive, and irrevocable license to publish, translate, reproduce, deliver, perform, dispose of, and to authorize others to do so for use by the state, its division, instrumentality's and local subdivisions, all subject data now or hereafter covered by copyright. If such subject data is not originated in the performance of this Contract, such license shall be only to the extent that the Contractor, its employees or any individual or concern employed or assigned by the Contractor to originate and prepare such data under this Contract, now has, or prior to completion of final settlement of this Contract may acquire, the right to grant such license without becoming liable to pay compensation to others solely because of such grant. 14.5 The Contractor shall exert all reasonable efforts to advise the Department at the time of delivery of the subject data furnished under this Contract of all invasions of the right of privacy contained therein and of all portions of such data copies from work not composed or produced in the performance of this Contract and not licensed under this Section. 14.6 The Contractor shall report to the Department promptly and in reasonable written detail, each notice or claim of copyright infringement received by the Contractor with respect to all subject data delivered under this Contract. On receipt of this information, the parties hereto agree to confer to determine future uses to be made of the subject data. 14.7 The Contractor or any or all of its employees or agents may duplicate, use and disclose ail subject data delivered under this Contract, provided that the Contractor or such employees or agents acknowledge the contribution of the Department and the Contract number of this Contract and any copyright secured for such subject data. There shall be no pre-release or publication of data or findings connected with this Contract in scholarly or professional journals or through public presentation or news release or otherwise until the performance of this Contract is completed unless prior written authorization has been obtained from the Department. Section 15.0 Notice and Assistance Regarding Patent and Copyright Infringement 15.1 The Contractor agrees to report to the Department promptly and in reasonable written detail, each notice or claim of patent or copyright infringement based on the performance of this Contract of which the Contractor has knowledge. 15.2 In the event of any claim or suit against the Department, the State of Iowa, their employees, agents, or representatives, or the United States, on account of an alleged patent or copyright infringement arising out of the work or services performed hereunder, the Contractor agrees to furnish the Department, upon request, all evidence and information in the possession of the Contractor pertaining to such suit or claim. Such evidence and information shall be furnished at the expense of the Department except where the Contractor has agreed to indemnify the Department. Section 16.0 Equipment 16.1 A Definition - For grants and cooperative agreements to state and local governments, the term "equipment" means non-expendable tangible personal property to be used in the performance of the Contract, having an acquisition cost of five- thousand ($5000) dollars or more, and a useful life expectancy of greater than one (1) year. A grantee may use its own definition of equipment provided that such definition would at least include all articles of equipment as defined in this paragraph, 16.2 All property procurements with a unit value of five-hundred ($500) dollars or more must be approved in advance by the Department. All property procurement by the Contractor shall be according to standards stated in Department of Interior (DOI) Financial Assistance Rule 43, Code of Federal Regulations (CFR) Part 12. The title of all property purchased with a unit value of five-hundred ($500) dollars or more remains vested with the Department. 16.3 Upon request, the Contractor shall provide the Department with invoice(s) of property purchased. Such purchased property must correspond with approved Contract items. 16.4 The Contractor will keep an inventory of the property in their jurisdiction. Inventories must include the following property characteristics: a) the serial number if applicable; b) the Contract Number (if acquisition occurred as part of the Contract); c) its description; d) the date of acquisition; e) invoice number, if purchased; f) the original purchase price; and g)the physical location of the property. 16.5 The Contractor shall maintain a control system to insure adequate safeguards to prevent loss, damage or theft to the property. Any loss, damage, or theft of property shall be investigated, fully documented and reported to the department within sixty (60) calendar days of the occurrence. 16.6 The Contractor shall implement maintenance procedures to keep all property in good condition. Maintenance costs in excess of one-half (1/2) the estimated current fair market value of property shall require prior Department approval. 16.7 Upon termination of this Contract or upon Department need of the property, all property shall be released to the Department. Appropriate disposition instruction will be issued to the Contractor after the Department's review. 16.8 Demonstration projects that include construction shall comply with the following federal requirements: Executive Order 11246 of September 24, 1965 entitled "Equal Employment Opportunity," as amended by Executive Order 11375 of October 13, 1967 and as supplemented in Department of Labor regulations (41 CFR Subpart 60). (All construction contracts awarded in excess of $10,000 by grantees and their contractors or subgrantees). Copeland "Anti Kickback" Act (18 USC 874)as supplemented in Department of Labor regulations (29 CFR Subpart 3). (All contracts and subgrants for construction or repair.) Sections 103 and 107 of the Contract Work Hours and Safety Standards Act (40 USC 327~330) as supplemented by the Department of Labor Regulations (29 CFR Subpart 5). (Construction contracts awarded by grantees and subgrantees in excess of $2,000, and in excess of $2,500 for other contracts which involve the employment of mechanics or labors.) Section 17.0 Assignment of Interest Neither the Contractor nor any interest therein nor claim thereunder shall be assigned or transferred by the Contractor to any other party or parties. Attempted assignment may be considered, at the option of the Department, to be a substantial breach and cause for termination within the meanings of Section 12.1 of the General Conditions. Section 18.0 Personnel 18.1 Selection - The Contractor represents that it has, or will secure, all personnel required in performing the work and services under this Contract. Such personnel shall not be employees of or have any contractual relationship with the Department. 18.2 Qualification - All of the work and services required hereunder will be performed by the Contractor or under its supervision and all personnel engaged in the work shall be fully qualified and shall be authorized under state and local law to perform such services. 18.3 Change of Key Personnel - Any individual specified by name under the article Key Personnel within the Special Conditions herein is considered essential to the work and services to be performed. If for any reason substitution for a specified individual becomes necessary, the Contractor shall provide immediate wdtten notification of such to the Department. The Contractor shall provide the name and resume of qualifications for the replacement individual. Any replacement shall be subject to the approval of the Department. Section 19,0 Effect of Invalidity If any of the provisions herein shall be in conflict with the laws of the State of Iowa, or shall be declared to be invalid by any court or record in this state, such invalidity shall be construed to affect only such portions as are declared invalid or in conflict with the law and such remaining portions of the Contract shall remain in effect and shall be construed as if such invalid or conflicting portions were not contained herein. Section 20. 0 Litigation 20.1 The Contractor agrees to pay the cost of any litigation arising from failure of the Contractor to comply with the conditions or terms of this Contract or resulting from the negligence or incompetence of the Contractor. In carrying out the provisions of the Contract or in exercising any power or authority otherwise, it is understood that in such matters the Department acts for the State. 20.2 The venue for any cause of action based upon this Contract be either party to this Contract, shall be in Polk County, Iowa, and the law of the State of Iowa shall apply. Section 21.0 Assurance 21.1 The Contractor hereby assures and certifies to comply with the regulations, policies, guidelines, and requirements of office for Management and Budget (OMB) Circulars No. A-87, and A-110, 47 CFR, No. 129, and Department of Interior Regulations (Rule 50 Administrative Requirements, Code of Federal Regulations Part 80) as they relate to the use of federal funds for this project. 21.2 The Contractor shall not discriminate against any employee or applicant for employment because of race, creed, color, religion, national odgin, sex, age, political belief, or disability, in its employment practices. Such employment practices may include, but are not limited to, recruitment, recruitment advertising, hiring, layoff or termination, promotion, demotion, transfer, rates of pay, training and participation in upward mobility programs, or other forms of compensation and use of facilities. 21.3 The Contractor and any subcontractors shall maintain no information about any individual in a manner which would violate the provisions of the Pdvacy Act of 1974, P.L. 93-579, as amended. Advance notice shall be given to the Department of Natural Resources and the Department of Interior in the event it is anticipated that information will be retained in a system of records as defined by the Privacy Act, 5USC552a (a) (5). Notice must be sufficient to enable the publication of a system description in the Federal Register in accordance with 5USC522a (e) (11) and the submission of a Report on New Systems in accordance with 5USC522 (o). 21.4 The Contractor will send to each labor union or representative or workers with which it has a collective bargaining agreement or other contract or understanding a notice advising the labor union or representative of the Contractor's commitments under this nondiscrimination clause and shall post copies of the notice in conspicuous places available to employees and applicants for employment. 21.5 The Contractor will comply with all relevant provisions of the Iowa Civil Rights Act and Iowa Code 19B.7, Iowa Executive Order #15 of 1973, Title VI of the Civil Rights Act of 1964 (P.L. 88-352), Title IX of the Educational Amendments of 1972, as amended (P.L. 92-318, P.L. 93-568, and P.L. 94-482), Section 504 of the Rehabilitation Act of 1973 (P.L. 93-112), the Age Discrimination Act of 1975 (P.L. 94-135), Title VIII of the Civil Rights Act of 1968 (P.L. 90-284), the Federal Aid in Sport Fish Restoration Act of 1950 (Boating Infrastructure Grant Program), the National Environmental Policy Act of 1969, Endangered Species Act of 1973, the National Historic Preservation Act of 1966 and the Americans with Disabilities Act of 1990 (P.L. 101-336). The Contractor shall fumish all information and reports requested by the department and will permit access to its payroll and employment records by the Department or the Department's grantor agency for purposes of investigation to ascertain compliance with this nondiscrimination clause. The contractor may be required to make available upon request its Affirmative Action Program containing goals and time deadline. Any breach of the above provisions shall be regarded as a matedal breach of Contract and justification for termination for cause. 21.6 In the event of the Contractor's noncompliance with the nondiscrimination clauses of this Contract, this Contract may be canceled, terminated or suspended in whole or in part and the Contractor may be declared ineligible for further action, and such sanctions may be imposed and remedies invoked, as provided by the Iowa Civil Rights Act, Chapter 216, Code of Iowa 1993, as heretofore and hereinafter amended, or as otherwise provided by law. 21.7 The Contractor will include the provisions of subsections 21.1 through 21.6 hereof, in every subcontract unless specifically exempted by approval of the Department, so that such provisions will be binding on each subcontractor and vendor. The Contractor will take such action with request to any subcontractor as the state may direct as a means of enforcing such provisions including sanction for non-compliance; provided, however, that in the event the Contractor becomes involved in, or is threatened with, litigation with the subcontractor or vendor as a result of such direction by the state, the Contractor may request the State of Iowa to enter into such litigation to protect the interest of the State of Iowa. Section 22.0 Contingent Fees The Contractor warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for the Contractor, to solicit or secure this Contract, and that it has not paid or agreed to pay any company or person, other than a bona fide employee working solely for the Contractor, and fee, gift, or any other consideration, contingent upon or resulting from the award or making of this Contract. For breach or violation of this warranty, the Department shall have the dght to annul this Contract without liability or, in its discretion, to deduct from the Contract price or consideration, or otherwise recover, the full amount of such fee, commission, pementage, brokerage fee, gift, or contingent fee. Section 23.0 Officers Not to Benefit No officer or employee of the state shall participate in any decision relating to this Contract which affects his or her personal interest or the interest of any corporation, partnership, or association in which he or she is directly or indirectly interested; or have any interest, direct or indirect, in this Contract or the proceeds thereof. Section 24.0 Audit Requirements The Contractor shall submit a copy of its regularly conducted annual audit(s), pursuant to OMB Cimular A-128 or OMB A-110 (whichever is applicable to the Contractor), to the Department for the time period(s) encompassed by this Contract. If this audit is not performed or available, subsequent arrangements are to be made with the Department. Section 25.0 Program Income The Contractor will treat any income derived as the result of the grant as Program Income. All program income received by the Contractor shall be treat according to standards stated in Department of Interior Financial Assistance Rule 43, Code of Federal Regulations Part 12. APPENDIX A Budget Summary Contract Recipient Total Project Budget Category Amount Match Costs Construct one pier with pathway $39,000 $13,000 $52,000 Percent of Total 75% 25% 100% Retained Amount*** $1,950 $0.00 $1,950 *** See Article IX "Payment" Paragraph 4.