Appendix_3;_DRAFT_Letter_Agreement.pdf

Appendix 3

LETTER AGREEMENT

BETWEEN

THE UNITED STATES ARMY

AND

ENTITY

This Letter Agreement (LA) is made as of the _____ day of __________, 20___, by and between the United States of America, acting by and through the Department of the Army, U.S.

Army Engineer District (USAED), Sacramento District (USACE), and ENTITY, Address, (hereinafter referred to as the “Exchange Partner”).

WHEREAS, Title 10, United States Code, Section 18240, allows the Secretary of Defense to authorize the Secretary of the Army to acquire a facility, or an addition to an existing facility, needed to satisfy military requirements by exchange of an existing facility;

WHEREAS, The Defense Authorization Act of 1998, Section 2813(a), codified at 10 United States Code 2695, authorizes acceptance of funds to cover administrative expenses related to certain real property transactions with a non-federal person or entity such that “…the Secretary of a military department may accept amounts provided by the person or entity to cover administrative expenses incurred by the Secretary in entering into the transaction.” Covered transactions are further described as follows:

1. The exchange of real property.

2. The grant of an easement over, in, or upon real property of the United States.

3. The lease or license of real property of the United States;

WHEREAS, the Exchange Partner’s proposal was selected in response to the solicitation dated_____________, 20___, agreeing to the terms and conditions set forth in the solicitation package; and

WHEREAS, Certain activities (see Attachment A) relative to the Government property known as the San Pablo US Army Reserve Center (USARC) are necessary to further facilitate the contemplated exchange per the above referenced solicitation.

Now Therefore:

1. PURPOSE AND INTENT

a. The Parties acknowledge that this Letter Agreement (LA) is in furtherance of good faith negotiations in contemplation of the conveyance of the Government property known as the San Pablo USARC, in exchange for a Replacement Facility as set forth in the solicitation.

b. This LA is specifically and solely intended to support all activities, to include those activities listed in Attachment A, necessary to complete the contemplated Exchange Agreement so that the exchange will be accomplished at minimal cost to the U.S. Government. This LA imposes no obligation on either Party beyond the terms and conditions of this LA, and either Party, at its sole discretion, may elect not to proceed with the contemplated exchange with no obligation or liability beyond the terms and conditions of this LA.

c. The Parties intend that this LA constitute a legally binding contract, notwithstanding the Parties have not yet entered into the Exchange Agreement. The Parties acknowledge that neither Party has made a decision concerning the contemplated exchange and that the Parties shall be obligated to proceed with the exchange only in the event the Parties execute a formal Exchange Agreement.

2. OBLIGATIONS OF THE PARTIES

a. In consideration of the services conducted or actions taken by the USAED, listed on Attachment A, as soon as practicable, but not later than 30 days following execution of this LA by all parties, the Exchange Partner will pay $178,552.00 to the USAED, Sacramento District, as the estimated cost of the services being provided therein. If the USAED’s costs under this LA are later forecasted to exceed the amount of funds available under this LA, it shall promptly notify the Exchange Partner of the amount of additional funds required to accomplish the items listed in Attachment A. While Attachment A is an attempt to identify the activities necessary to accomplish the contemplated Exchange Agreement, additional activities may subsequently be identified by the Government. If the required additional funds are not provided within 30 days of said notice the Government will direct termination of the work under this LA. The Exchange Partner further understands that failure to provide the additional funds necessary to complete the actions for the contemplated exchange will preclude the formal execution of the exchange agreement as contemplated by the parties. On a monthly basis, if requested, the USAED, Sacramento District shall provide to the Exchange Partner an accounting of the actual costs of work. Within thirty (30) days of completing the work under this LA, the USAED, Sacramento District shall conduct an accounting to determine the actual costs of the work. Within thirty (30) days of completion of this accounting, the USAED, Sacramento District, shall return to the Exchange Partner any funds advanced in excess of the actual costs as then known. Established Federal Government accounting procedures shall be used. Except as provided herein the amount of funds advanced by the Exchange Partner, under this LA, shall be nonrefundable.

b. Upon receipt of the funds referred to in Paragraph 2 a above, the USAED, Sacramento District shall commence and complete the services with due diligence, pursuant to the schedule in Attachment A.

c. Funds shall be forwarded to USAED, Sacramento, Attn: CESPS-RE, 1325 J Street, Sacramento, California 95814, with a copy of this LA attached.

3. MODIFICATION OR TERMINATION OF AGREEMENT

a. The Exchange Partner or the USAED, Sacramento District shall have the option to terminate this agreement by giving written notice to the other party, specifying the effective date of the termination of work, at least ten (10) days before such effective date. Within thirty (30) days following the effective date of the termination of work USAED, Sacramento District shall provide to the Exchange Partner a final accounting of the actual costs of the work by USACE and return to the Exchange Partner any funds advanced in excess of the actual costs as provided in Article 2.

b. This LA contains the entire agreement between the parties regarding funding preliminary activities listed in Attachment A for the exchange of certain United States owned land at the San Pablo USARC, California, for Exchange Partner's real property in the form of a 14,000 SF Pre-Engineered Metal Training Building comprised of an office, unit equipment storage/staging, and restrooms to be constructed on existing government owned property at Mare Island USARC, City of Vallejo, California. Any revision of this LA shall be in writing and signed by the parties hereto. This Agreement shall not merge into any subsequent agreement between the Parties, including the Exchange Agreement and documents related thereto.

c. This LA shall be in effect as of the date executed by both parties and shall remain in effect until the said Replacement Facility is completed and accepted by the Government or by written notice by a party to the other and after final accounting of funds under Article 2.a.

4. LIMITATION OF LIABILITY

The Government’s obligation to pay any money under this LA is subject to the availability of appropriated funds to the Department of Army, and nothing in this LA shall be interpreted to require obligations or payments by the United States in violation of the Anti- Deficiency Act, 31 U.S.C. 3142, as amended, provided that the Government shall otherwise comply with all applicable statutory requirements and its obligations under the terms of this LA.

5. DISPUTES

a. This contract is subject to the Contract Disputes Act of 1978, 41 U.S.C. 701-7109 et seq., as amended. Except as provided in the Act, all disputes arising under or relating to this contract shall be resolved under this clause.

b. "Claim", as used in this clause, means a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to this contract.

c. A claim arising under a contract, unlike a claim relating to that contract, is a claim that can be resolved under a contract clause that provides for the relief sought by the claimant. However, a written demand or written assertion by the Contractor seeking the payment of money exceeding $100,000 is not a claim under the Act until certified as required by the following paragraph. A voucher, invoice or other routine request for payment that is not in dispute when submitted is not a claim under the Act. The submission may be converted to a claim under the Act by complying with the submission and certification requirements of this clause, if it is disputed either as to a liability or amount or is not acted upon in a reasonable time.

d. A claim by the Contractor shall be made in writing and submitted to the Contracting Officer for a written decision. A claim by the Government against the Contractor shall be subject to a written decision by the Contracting Officer. For Contractor claims exceeding $100,000, the Contractor shall submit with the claim a certification that the claim is made in good faith, supporting data are accurate and complete to the best of the Contractor's knowledge and belief and the amount requested accurately reflects the contract adjustment for which the Contractor believes the Government is liable.

e. If the Contractor is an individual, the individual shall execute the certification. If the Contractor is not an individual, the certification shall be executed by a senior company official in charge at the Contractor's plant or location involved or an officer or general partner of the Contractor having overall responsibility for the conduct of the Contractor's affairs.

f. For Contractor claims of $100,000 or less, the Contracting Officer must, if requested in writing by the Contractor, render a decision within 60 days of the request. For Contractor certified claims over $100,000, the Contracting Officer must, within 60 days, decide the claim or notify the Contractor of the date of which the decisions will be made.

g. The Contracting Officer's decision shall be final unless the Contractor appeals or files a suit as provided in the Act.

h. The Government shall pay interest on the amount found due and unpaid from (1) the date the Contracting Office receives the claim (properly certified if required) or (2) the date payment otherwise would be due, if that date is later, until the date of payment. Simple interest on claims shall be paid at the rate, fixed by the Secretary of the Treasury as provided in the Act, which is applicable to the period during which the Contracting Officer receives the claim and then at the rate applicable for each 6 month period as fixed by the Treasury Secretary during the pendency of the claim.

i. The contractor shall proceed diligently with performance of this contract, pending final resolution of any request for relief, claim, appeal or action arising under the contract and comply with any decision of the Contracting Officer who shall be the Chief of Real Estate, Sacramento District, U. S. Army Corps of Engineers.

6. NOTICES

Notices pursuant to this LA will be sent by the parties to each other by U.S. Mail or by rapid courier (such as Federal Express) addressed to the following addresses, or such other addresses as the parties may from time to time designate to each other in writing.

To: USACE

U.S. Army Corps of Engineers, Sacramento District

Attn: CESPK-RE (Conrad) 1325 J St.

Sacramento CA 95814

To: EXCHANGE PARTNER

Name Address

City, State ZIP

BASED ON THE FOREGOING, the Parties hereto, acting by and through their duly authorized representatives, have executed this Letter Agreement as of the day and year first above written.

THE UNITED STATES OF AMERICA EXCHANGE PARTNER

BY: ________________________________ BY: _______________________________

NAME: _____________________________ NAME: ____________________________

TITLE: _____________________________ TITLE: _____________________________

ATTACHMENT “A”

SERVICES

SAN PABLO US ARMY RESERVE CENTER (USARC)

REAL PROPERTY EXCHANGE

TASK LIST

Exchange Agreement Administration (over 2yrs) $ 89,552.00

Title 10 $ 1,000.00 Closing Costs $ 5,000.00 Quit Claim Deed $ 3,000.00 Bill of Sale $ 3,000.00

Attorney Review $ 5,000.00 Audit $ 5,000.00 Engineer Review Plans & Specs $ 35,000.00 Construction (QAQC) $ 30,000.00

Total Estimated Costs: $178,552.00

Prepared in accordance with Department of Defense Financial Management Regulation, Chapter 1, Volume 11A.

Note: This is just an estimate. Please remember costs are subject to actual cost. Estimate includes all known tasks necessary to perform complete exchange process. While this is an attempt to identify the activities necessary to accomplish the contemplated Exchange Agreement, additional activities may subsequently be identified by the Government.