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HomeMy WebLinkAboutPW11-353 - Original - Construction of the Duwamish/Green River Park Ecosystem Restoration Project PROJECT PARTNERSHIP AGREEMENT BETWEEN THE DEPARTMENT OF THE ARMY AND THE CITY OF KENT, WASHINGTON AND STATE OF WASHINGTON DEPARTMENT OF NATURAL RESOURCES FOR CONSTRUCTION OF THE DUWAMISHIGREEN RIVER PARK(RIVERVIEW PARK)ECOSYSTEM RESTORATION PROJECT THIS AGREEMENT is entered into this 20 day of She Ire , 20 , by and between the Department of the Army (hereinafter the "Government"), represented by the U.S. Army Engineer, Seattle District, and City of Kent, Washington (hereinafter the "City"), represented by the Mayor, and the State of Washington. Department of Natural Resources (hereinafter "DNR"), represented by the Commissioner of Public Lands (the City and DNR when referred to collectively are referred to as the "Non-Federal Sponsors"). WITNESSETH, THAT: WHEREAS, construction of the Duwamish/Green River Basin Project for ecosystem restoration(hereinafter the "Authorized Project") at King County, Washington was authorized by Section 101(b)(26) of the Water Resources Development Act of 2000, Public Law 106-541 in accordance with the plans, and subject to the conditions, recommended in a final report of the Chief of Engineers if a favorable report of the Chief is completed not later than December 31,2000; WHEREAS, a favorable final report of the Chief of Engineers was completed on December 29, 2000; WHEREAS, the Government was authorized to perform monitoring and adaptive management(as defined in Article I.L. and Article I.M. of this Agreement, respectively) as part of the Authorized Project; WHEREAS, the Government and the Non-Federal Sponsors desire to enter into a Project Partnership Agreement (hereinafter the "Agreement") for construction of the Duwamish/Green River Park Restoration Project (a separable element of the Authorized Project and hereinafter the"Project", as defined in Article LA of this Agreement) wherein the responsibility of the DNR would be limited to providing certain lands, easements, and rights-of-way that are owned by the State of Washington and administered by DNR and the City would perform all other non-Federal responsibilities for the Project; J . WHEREAS, Section 103 of the Water Resources Development Act of 1986,Public Law 99-662,as amended(33 U.S.C. 2213),specifies the cost-sharing requirements applicable to the Project; WHEREAS, Section 902 of the Water Resources Development Act of 1986, Public Law 99-662, as amended (33 U.S.C. 2280), establishes the maximum amount of costs for the Authorized Project and sets forth procedures for adjusting such maximum amount, WHEREAS, Section 3163 of the Water Resources Development Act of 2007 modifies the Duwamish/Green River Basin Project authorized by Section 101(b)(26) of the Water Resources Development Act of 2000 to provide authority for affording credit toward the non-Federal share of the cost of the project for the cost of in-kind services and materials provided by the non-Federal interest for the project; WHEREAS, the City desires to receive credit toward its required contribution of funds for the Project in accordance with the provisions of this Agreement for work (hereinafter the"in kind contributions" as defined in Article I.N. of this Agreement)that on September 22. 2011 was determined to be integral to the Project; WHEREAS, the Government and a non-Federal interest entered into an agreement, dated May 17, 2007, for engineering and design of the Project(hereinafter the "Design Agreement"), under the terms of which the non-Federal interest contributed a portion of the costs for engineering and design; WHEREAS, Section 221 of the Flood Control Act of 1970,Public Law 91-611, as amended(42 U.S.C. 1962d-5b), and Section 1030)of the Water Resources Development Act of 1986,Public Law 99-662, as amended(33 U.S.C. 22130)),provide, inter alga,that the Secretary of the Army shall not commence construction of any water resources project, or separable element thereof,until each non-Federal interest has entered into a written agreement to furnish its required cooperation for the project or separable element; WHEREAS,the Government and Non-Federal Sponsors have the full authority and capability to perform as hereinafter set forth and intend to cooperate in cost-sharing and financing of the Project in accordance with the terms of this Agreement; and WHEREAS, the Government and the Non-Federal Sponsors, in connection with this Agreement, desire to foster a partnering strategy and a working relationship between the Government and the Non-Federal Sponsors through a mutually developed formal strategy of commitment and communication embodied herein, which creates an environment where trust and teamwork prevent disputes, foster a cooperative bond between the Government and the Non-Federal Sponsors, and facilitate the successful implementation of the Project. 2 NOW,THEREFORE,the Government and the Non-Federal Sponsors agree as follows: ARTICLE I- DEFINITIONS A. The term"Project" shall mean construction of an 800' side channel providing salmonid refuge habitat in high-flow and low-flow conditions at the Green River Park (Riverview Park) site, all as generally described in the final report of the Chief of Engineers, dated December 29,2000, and in the "Grecn/Duwamish River Basin Ecosystem Restoration Study, Final Feasibility Report,"dated October 2000 as modified by the Limited Reevaluation Report for Riverview Park, Kent, Washington and approved by the Director of Programs, Northwestern Division on April 7, 2011. The term includes the in- kind contributions described in paragraph N. of this Article. B. The term"total project costs" shall mean the sum of all costs incurred by the City and the Government in accordance with the terms of this Agreement directly related to construction of the Project. Subject to the provisions of this Agreement,the term shall include, but is not necessarily limited to. the Government's share of Preconstruction Engineering and Design costs pursuant to the terms of the Design Agreement; the value of the contributions provided by a non-Federal interest pursuant to the terms of the Design Agreement; the Government's engineering and design costs during construction;the City's and the Government's costs of investigations to identify the existence and extent of hazardous substances in accordance with Article XIV.A. of this Agreement;the Government's costs of historic preservation activities in accordance with Article XVII.A. and Article XVII.C.1. of this Agreement: the Government's costs of monitoring in accordance with Article ILH. and Article II.I. of this Agreement; the Government's costs of adaptive management in accordance with Article II.J. and Article ILK. of this Agreement: the Government's actual construction costs;the amount of credit the Government affords for in-kind contributions in accordance with Article II.B.S. of this Agreement; the Government's supervision and administration costs;the City's and the Government's costs of participation in the Project Coordination Team in accordance with Article V of this Agreement;the Government's costs of contract dispute settlements or awards, the value of lands, easements,rights-of-way,relocations, and improvements required on lands, easements, and rights-of-way to enable the disposal of dredged or excavated material for which the Government affords credit in accordance with Article IV of this Agreement or for which reimbursement by the Government is required pursuant to Article II.B.3. of this Agreement; and the City's and the Government's costs of audit in accordance with Article X B and Article X.C. of this Agreement The term does not include any costs for operation, maintenance, repair,rehabilitation, or replacement of the Project; any costs of betterments under Article II.G.2. of this Agreement, any costs of dispute resolution under Article VII of this Agreement, the Government's costs for data recovery activities associated with historic preservation in accordance with Article XVII C.3. and Article XVILCA. of this Agreement; the City's costs of negotiating this Agreement; or any costs incurred by DNR. C. The term"period of construction"shall mean the time from the date the Government issues the solicitation for the first construction contract for the Project or 3 Y i commences construction of the Project using the Government's own forces, whichever is earlier, to the date that construction, monitoring, and, if necessary, adaptive management of the Project are complete, as determined by the Government, or the date that this Agreement is terminated in accordance with Article XIII or Article XIV.C. of this Agreement, whichever is earlier. D. The term "financial obligations for construction"shall mean the financial obligations of the Government and the costs for the in-kind contributions, as determined by the Government, that result or would result in costs that are or would be included in total project costs except for obligations pertaining to the provision of lands, easements, rights- of-way,the performance of relocations,and the construction of improvements required on lands, easements, and rights-of-way to enable the disposal of dredged or excavated material. E. The term"non-Federal proportionate share"shall mean the ratio of the sum of the costs included in total project costs for the in-kind contributions, as determined by the Government, and the City's total contribution of funds required by Article II.B.2.b. of this Agreement to financial obligations for construction,as projected by the Government. F. The term"highway"shall mean any highway,roadway, street, or way, including any bridge thereof,that is owned by a public entity G. The term "relocation" shall mean providing a functionally equivalent facility to the owner of a utility, cemetery, highway, railroad, or public facility when such action is authorized in accordance with applicable legal principles of just compensation; or providing a functionally equivalent facility when such action is specifically provided for, and is identified as a relocation, in the authorizing legislation for the Project or any report referenced therein. Providing a functionally equivalent facility may take the form of alteration, lowering, raising, or replacement and attendant demolition of the affected facility or part thereof. H. The term`functional portion of the Project" shall mean a portion of the Project for which construction has been completed and that can function independently, as determined by the U.S. Army Engineer, Seattle District (hereinafter the "District Engineer") in writing, although the remainder of the Project is not complete. I. The term"betterment"shall mean a difference in the construction of an element of the Project that results from the application of standards that the Government determines exceed those that the Government would otherwise apply to the construction of that element. The term does not include any construction for features not included in the Project as defined in paragraph A. of this Article. J. The term"Federal program funds" shall mean funds provided by a Federal agency, other than the Department of the Army,plus any non-Federal contribution required as a matching share therefor. 4 r r K. The term" tscal year" shall mean one year beginning on October 1 and ending on September 30. L. The term"monitoring" shall mean activities, including the collection and analysis of data, that are necessary to determine if predicted outputs of the Project are being achieved and to determine if adaptive management is necessary. M. The term"adaptive management"shall mean measures taken to adjust the Project in response to the monitoring results so that the predicted outputs of the Project are achieved following its construction. The term includes,but is not necessarily limited to, modifications of structures, or adjustments to operation or management, of the Project. N. The tern "in-kind contributions" shall mean supply and installation of native plant materials and project management of in-kind services that will be performed or provided after the effective date of this Agreement and that were determined to be integral to the Project on September 22, 2011. O. The term"sufficient invoice" shall mean documentation provided by the City containing the following: (1) a written certification by the City to the Government that it has made specified payments to contractors, suppliers, or employees for performance of work on the Project or a functional portion of the Project in accordance with this Agreement; (2) copies of all relevant invoices and evidence of such payments; (3) written identification of such costs that have been paid with Federal program funds; and (4) a written request for credit in an amount not in excess of such specified payment. P. The term "DNR Parcel" means approximately 0.82 acres of aquatic lands owned by the State of Washington and administered by the DNR that is located on or adjacent to Government Lot 2 in Section 24, and Government Lot 3 in Section 25, all within Township 22 North, Range 4 East, W.M. in City of Kent, King County, Washington, along the right bank of the Green River. ARTICLE lI - OBLIGATIONS OF THE GOVERNMENT AND THE NON-FEDERAL SPONSORS A. The Government, subject to receiving funds appropriated by the Congress of the United States (hereinafter the'`Congress") and using those funds and funds provided by the City, expeditiously shall construct the Project except for the in-kind contributions, applying those procedures usually applied to Federal projects, in accordance with Federal laws, regulations, and policies. The City expeditiously shall perform the in-kind contributions to be performed after the effective date of this Agreement in accordance with applicable Federal laws, regulations, and policies. 1. The Government shall not issue the solicitation for the first contract for construction of the Project or commence construction of the Project using the Government's own forces until the City has confirmed in writing its willingness to proceed with the Project. 5 T { 2. The Government shall afford the City the opportunity to review and comment on the solicitations for all contracts, including relevant plans and specifications, prior to the Government's issuance of such solicitations. To the extent possible,the Government shall afford the City the opportunity to review and comment on all contract modifications, including change orders, prior to the issuance to the contractor of a Notice to Proceed. In any instance where providing the City with notification of a contract modification or change order is not possible prior to issuance of the Notice to Proceed,the Government shall provide such notification in writing at the earliest date possible. To the extent possible,the Government also shall afford the City the opportunity to review and comment on all contract claims prior to resolution thereof The Government shall consider in good faith the comments of the City,but the contents of solicitations,award of contracts, execution of contract modifications, resolution of contract claims, and performance of all work on the Project,except for the in-kind contributions, shall be exclusively within the control of the Government. 3. At the time the District Engineer furnishes the contractor with the Government's Written Notice of Acceptance of Completed Work for each contract awarded by the Government for the Project,the District Engineer shall furnish a copy thereof to the City. 4 The City shall not commence provision of in-kind contributions to be performed after the effective date of this Agreement until the designs, detailed plans and specifications, and arrangements for the prosecution of such in-kind contributions have been approved by the Government. Changes proposed by the City to approved designs and plans and specifications also must be approved by the Government in advance of the related construction. The City shall afford the Government the opportunity to review and comment on the solicitations for all contracts for the in-kind contributions to be performed after the effective date of this Agreement, including relevant plans and specifications, prior to the City's issuance of such solicitations. To the extent possible, the City shall afford the Government the opportunity to review and comment on all proposed contract modifications, including change orders, prior to the issuance to the contractor of a Notice to Proceed. In any instance where providing the Government with notification of a contract modification or change order is not possible prior to issuance of the Notice to Proceed, the City shall provide such notification in writing at the earliest date possible. To the extent possible, the City also shall afford the Government the opportunity to review and comment on all contract claims prior to resolution thereof The City shall consider in good faith the comments of the Government, the contents of solicitations, award of contracts or commencement of design or construction using the City's own forces, execution of contract modifications, resolution of contract claims, and performance of all work on the in-kind contributions shall be exclusively within the control of the City, except as otherwise required by the provisions of this Agreement, including compliance with applicable Federal, State, or local laws or regulations. The City shall include appropriate provisions in its contracts for the design and construction of the in-kind contributions, as necessary, to ensure compliance with such laws,regulations, ordinances, and policies. 6 5. At the time the City furnishes a contractor with a notice of acceptance of completed work for each contract awarded by the City for the in-kind contributions to be performed after the effective date of this Agreement, the City shall furnish a copy thereof to the Government. Upon completion of the in-kind contributions, the City shall furnish to the Government a copy of all final as-built drawings for the construction portion of such work. 6. Notwithstanding paragraph A.2. and paragraph A.4. of this Article, if the award of any contract for construction, monitoring, or adaptive management of the Project, or continuation of construction, monitoring, or adaptive management of the Project using the Government's or the City's own forces, would result in total project costs exceeding $8,500,000, the Government and the City agree to defer award of that contract, award of all remaining contracts for construction, monitoring, or adaptive management of the Project, and continuation of construction, monitoring, or adaptive management of the Project using the Government's or the City's own forces until such time as the Government and the City agree in writing to proceed with further contract awards for the Project or the continuation of construction, monitoring, or adaptive management of the Project using the Government's or the City's own forces, but in no event shall the award of contracts or the continuation of construction, monitoring, or adaptive management of the Project using the Government's or the City's own forces be deferred for more than three years. Notwithstanding this general provision for deferral, in the event the Assistant Secretary of the Army (Civil Works)makes a written determination that the award of such contract or contracts or continuation of construction, monitoring, or adaptive management of the Project using the Government's own forces F must proceed in order to comply with law or to protect human life or property from imminent and substantial harm, the Government, after consultation with the City, may award a contract or contracts, or continue with construction, monitoring, or adaptive management of the Project using the Government's own forces. 7. As of the effective date of this Agreement, $13,261,782 of Federal funds have been provided by Congress for the Authorized Project of which $4.690,585.25 is currently projected to be available for the Project. The Government makes no commitment to request Congress to provide additional Federal funds for the Authorized Project or the Project. Further, the Government's financial participation in the Project is limited to the Federal funds that the Government makes available to the Project. B. The City shall contribute 35 percent of total project costs in accordance with the provisions of this paragraph. 1. In accordance with Article III of this Agreement,the Non-Federal Sponsors shall provide all lands, easements, and rights-of-way, including those required for relocations, the borrowing of material, and the disposal of dredged or excavated material, shall perform or ensure performance of all relocations, and shall construct improvements required on lands, easements, and rights-of-way to enable the disposal of dredged or 7 excavated material that the Government determines to be required or to be necessary for construction, operation, and maintenance of the Project 2. The City shall provide a contribution of funds as determined below: a. If the Government projects at any time that the collective value of the Non-Federal Sponsors' contributions listed in the next sentence will be less than the City's required share of 35 percent of total project costs, the Government shall determine the amount of funds that would be necessary to meet the City's required share prior to the Government affording credit for the in-kind contributions pursuant to paragraph B.5. of this Article. To determine such amount, the Government shall subtract from the City's required share of 35 percent of total project costs the collective value of the following: (a) the value of the contributions provided by a non-Federal Sponsor pursuant to terms of the Design Agreement; (b)the value of the Non-Federal Sponsors' contributions under paragraph B.1. of this Article as determined in accordance with Article IV of this Agreement, and (c)the value of the City's contributions under Article V, Article X, and Article XIV.A. of this Agreement. b. The City shall provide a contribution of funds in the amount determined by this paragraph in accordance with Article VI.B. of this Agreement. To determine such required contribution of funds, the Government shall reduce the amount determined in accordance with paragraph B.2.a. of this Article by the amount of credit the Government projects will be afforded for the in-kind contributions pursuant to paragraph B.5 of this Article. 3. The Government, subject to the availability of funds and as limited by paragraph B.6. of this Article, shall refund or reimburse to the City any contributions in excess of 35 percent of total project costs if the Government determines at any time that the collective value of the following contributions has exceeded 35 percent of total project costs: (a)the value of the City*s contributions under paragraph B.2 b. of this Article; (b)the value of the contributions provided by a non-Federal interest pursuant to the terms of the Design Agreement; (c)the value of the Non-Federal Sponsors' contributions under paragraph B.1. of this Article as determined in accordance with Article IV of this Agreement; (d)the value of the City's contributions under Article V, Article X, and Article XIV.A of this Agreement: and (e)the amount of credit afforded for the in-kind contributions pursuant to paragraph B.5. of this Article. After such a determination,the Government, in its sole discretion, may acquire any remaining lands, easements, and rights- of-way required for the Project,perform any remaining relocations necessary for the Project, or construct any remaining improvements required on lands, easements, and rights- of-way to enable the disposal of dredged or excavated material required for the Project on behalf of the City. Notwithstanding the acquisition of lands, easements, and rights-of- way, performance of relocations, or construction of improvements required on lands, easements, and rights-of-way to enable the disposal of dredged or excavated material by the Government under this paragraph,the City shall be responsible. as between the Government and the City, for any costs of cleanup and response in accordance with Article XIV.C. of this Agreement. 8 4. The Government, in accordance with the conditions and limitations of this paragraph, shall determine the amount of the costs for in-kind contributions that may be eligible for credit. a. The City in a timely manner shall provide the Government with sufficient invoices and any other documents required by the Government to enable the Government to determine the costs of in-kind contributions that may be eligible for credit. b. Costs for in-kind contributions are not eligible for credit pursuant to this Agreement unless the Government determines through a review or on- site inspection, as applicable, performed by the Government that the work was accomplished in a satisfactory manner and in accordance with the applicable permits and the plans and specifications approved by the Government and the provisions of this Agreement. c. No costs for in-kind contributions performed after the effective date of this Agreement are eligible for credit pursuant to this Agreement unless the Government has approved the detailed plans, including the plans and specifications and arrangements for the accomplishment of such work,prior to initiation of such work d. Costs for betterments,the provision of lands, easements, rights- of-way, relocations, or the construction of improvements required on lands, easements, and rights-of-way to enable the disposal of dredged or excavated material are not eligible for credit as in-kind contributions. e. No costs for in-kind contributions performed prior to compliance with all applicable environmental laws and regulations covering such work, including, but not limited to NEPA and Section 401 of the Federal Water Pollution Control Act(33 U S.C. 1341) are eligible for credit pursuant to this Agreement. f. The City's costs for in-kind contributions that may be eligible for credit pursuant to this Agreement shall be subject to an audit in accordance with Article X C. of this Agreement to determine the reasonableness, allocability, and allowability of such costs. g. The City's costs for in-kind contributions that may be eligible for credit pursuant to this Agreement are not subject to interest charges, nor are they subject to adjustment to reflect changes in price levels between the time the in-kind contributions were or are completed and the time the credit is afforded. h. None of the costs for in-kind contributions paid by the City using Federal program funds are eligible for credit pursuant to this Agreement unless the Federal agency providing the Federal portion of such funds verifies in writing that expenditure of such funds for such purpose is expressly authorized by Federal law. 9 i. Costs for in-kind contributions that are in excess of the Government's estimate of the costs for the Government to have performed or provided such work or materials are not eligible for credit pursuant to this Agreement. j. In the performance of the construction portion of the in-kind contributions, the City must comply with applicable Federal labor laws covering non- Federal construction, including, but not limited to, 40 U S C. 3141-3148 and 40 U.S.C. 3701-3708 (revising, codifying and enacting without substantive change the provisions of the Davis-Bacon Act (formerly 40 U S C. 276a et seq.), the Contract Work Hours and Safety Standards Act(formerly 40 U.S.0 327 et seq ), and the Copeland Anti-Kickback Act(formerly 40 U.S.C. 276c)). The Government may determine that costs for the construction portion of in-kind contributions, in whole or in part, are not be eligible for credit pursuant to this Agreement, as a result of the City's failure to comply with its obligations under these laws. 5. The Government, in accordance with this paragraph, shall afford credit toward the amount of funds determined in accordance with paragraph B.2.a. of this Article for the costs of the in-kind contributions determined in accordance with paragraph B 4. of this Article. However, the maximum amount of credit afforded shall not exceed the lesser of the following amounts as determined by the Government: the amount of funds determined in accordance with paragraph B.2.a. of this Article or the costs of the in-kind contributions determined in accordance with paragraph B 4. of this Article. 6. Notwithstanding any other provision of this Agreement, the City shall not be entitled to reimbursement of any costs for in-kind contributions determined in accordance with paragraph B.4. of this Article that exceed the amount of credit afforded pursuant to paragraph B.S. of this Article. C. When the District Engineer determines that except for monitoring and adaptive management, the entire Project. or a functional portion of the Project, is complete, the District Engineer shall so notify the City in writing and furnish the City with a final Operation, Maintenance, Repair, Rehabilitation, and Replacement Manual (hereinafter the"OMRR&R Manual") or, if the final OMRR&R Manual is not available, an interim OMRR&R Manual for the entire Project or such completed portion Upon such notification, the Government also shall furnish to the City a copy of all final as-built drawings for the portion of the Project for which the Government awarded a construction contract, or the Government constructed using its own forces, if such drawings are available. Not later than 6 months after such notification by the Government that the entire Project is complete, the Government shall furnish the City with all final as-built drawings for the portion of the Project for which the Government awarded a construction contract, or the Government constructed using its own forces, and also shall furnish the Non-Federal Sponsor with the final OMRR&R Manual for the entire Project. In the event all final as-built drawings for the portion of the Project for which the Government awarded a construction contract, or the Government constructed using its own forces, or the final OMRR&R Manual for the entire Project cannot be completed within the 6 10 month period, the Government shall provide written notice to the City, and the Government and the City shall negotiate an acceptable completion date for furnishing such documents. Further, after completion of all contracts for the Project, copies of all of the Government's and the City's Written Notices of Acceptance of Completed Work for all contracts for the Project that have not been provided to the other party previously shall be provided to the City of the Government. as applicable. D. Upon notification from the District Engineer in accordance with paragraph C. of this Article, the City shall operate, maintain, repair, rehabilitate, and replace the entire Project, or the functional portion of the Project as the case may be, in accordance with Article VIII of this Agreement Concurrent with the City's performance of operation, maintenance, repair, rehabilitation, and replacement for the completed Project or such completed portion, the Government shall perform monitoring and, if necessary, adaptive management in accordance with the provisions of this Agreement. E. Upon the District Engineer's determination that, except for monitoring and adaptive management, the entire Project is complete,the Government shall conduct an interim accounting, in accordance with Article VLC. of this Agreement, and furnish the results to the City Further, upon conclusion of the period of construction the Government shall amend the interim accounting to complete the final accounting, in accordance with Article VLC. of this Agreement, and furnish the results to the City. F. The City shall not use Federal program funds to meet any of its obligations for the Project under this Agreement unless the Federal agency providing the Federal portion of such funds verifies in writing that expenditure of such funds for such purpose is expressly authorized by Federal law. G. The City may request the Government to perform or provide, on behalf of the City, one or more of the services (hereinafter the "additional work") described in this paragraph. Such requests shall be in writing and shall describe the additional work requested to be performed or provided. If in its sole discretion the Government elects to perform or provide the requested additional work or any portion thereof, it shall so notify the City in a writing that sets forth any applicable terms and conditions, which must be consistent with this Agreement In the event of conflict between such a writing and this Agreement, this Agreement shall control. The City shall be solely responsible for all costs of the additional work performed or provided by the Government under this paragraph and shall pay all such costs in accordance with Article VI.D. of this Agreement. 1. Acquisition of lands, easements, and rights-of-way: performance of relocations; or construction of improvements required on lands, easements, and rights-of- way to enable the disposal of dredged or excavated material for the Project. Notwithstanding acquisition of lands, easements, and rights-of-way, performance of relocations, or construction of improvements by the Government, the City shall be responsible, as between the Government and the City, for any costs of cleanup and response in accordance with Article XIV.C. of this Agreement. 11 2. Inclusion of betterments in the construction of the Project. In the event the Government elects to include any such betterments,the Government shall allocate the costs of the Project features that include betterments between total project costs and the costs of the betterments. H. Prior to completion of construction of the Project, the Government, in consultation with the City and, as appropriate, other concerned agencies, shall finalize the plan for monitoring of the Project. The monitoring plan shall describe the specific parameters to be monitored; how these parameters relate to achieving the desired outcomes and to ascertaining whether adaptive management measures for the Project will be necessary; methods for measuring those parameters, frequency and duration of monitoring of the Project, criteria for measuring the success of the Project;preparation and distribution of monitoring reports and other coordination requirements; and estimated 1 monitoring costs. 1. Upon providing notification to the City that the Project is complete in accordance with paragraph C. of this Article, the Government shall perform monitoring of the Project every other year in accordance with the monitoring plan for a period of 8 years from the date of such notification. However, the monitoring of the Project by the Government shall end prior to the expiration of such period upon the occurrence of either of the following events: (1)the award of the next contract for monitoring of the Project, or continuation of monitoring of the Project using the Government's own forces, would result in the costs incurred for monitoring and adaptive management of all the features for ecosystem restoration in the Authorized Project exceeding 7 percent of the amount equal to total project costs of the Project plus the costs for all other ecosystem restoration separable elements of the Authorized Project minus the costs for monitoring and adaptive management of all the features for ecosystem restoration in the Authorized Project; or(2) the District Engineer determines that continued monitoring of the Project is not necessary. J. Applying the criteria specified in the monitoring plan, the Government shall determine whether adaptive management of the Project is necessary. The Government may make such a determination at any time during the monitoring period described in paragraph I. of this Article. Within 120 calendar days after the expiration or termination of such monitoring period,the Government shall make a final determination of whether adaptive management of the Project is necessary. In making such determinations, the Government shall consult with the City and, as appropriate, with other concerned agencies. Upon any determination by the Government that adaptive management of the Project is necessary, the Government shall notify the City in writing of its determination and expeditiously shall perform such adaptive management in accordance with paragraph K. of this Article. If, after the expiration or termination of such monitoring period, the Government determines that adaptive management of the Project is not necessary, the Government shall notify the City in writing of its determination and shall conduct a final accounting in accordance with paragraph E. of this Article. 12 K. If the Government determines, pursuant to paragraph J. of this Article,that adaptive management of the Project is necessary,the Government, in consultation with the City and, as appropriate, other concerned agencies, shall perform adaptive management of the Project in accordance with the provisions of this paragraph and paragraph A. of this Article. 1. In no event shall the award of any contract for adaptive management of the Project, or continuation of adaptive management of the Project using the Government's own forces, result in the costs incurred for monitoring and adaptive management of all the features for ecosystem restoration in the Authorized Project exceeding 7 percent of the amount equal to total project costs of the Project plus the costs for all other ecosystem restoration separable elements of the Authorized Project minus the costs for monitoring and adaptive management of all the features for ecosystem 1 restoration in the Authorized Project. As of the effective date of this Agreement, the costs of monitoring and adaptive management of the entire Authorized Project are estimated to be $8,240,000 As of the effective date of this Agreement,the costs of monitoring and adaptive management of this Project are estimated to be $210,000. x 2. When the District Engineer determines that adaptive management of the Project is complete, or that the costs for monitoring and adaptive management have or will exceed the 7 percent amount determined in accordance with sub-paragraph 1. of this paragraph, the District Engineer shall- a) notify the City in writing of such completion;b)furnish the City with an amended OMRR&R Manual that reflects any modifications to structures or adjustments to operation or management methods; c) furnish the City with a copy of any new or revised as-built drawings for the Project; and d) within 30 calendar days after such notice, conduct a final accounting in accordance with paragraph E. of this Article. 3. Upon notification from the District Engineer in accordance with sub- paragraph 2. of this paragraph, the City shall operate, maintain, repair, rehabilitate, and replace the entire Project in accordance with Article VIII of this Agreement. L. The Non-Federal Sponsors shall prevent obstructions or encroachments on the Project(including prescribing and enforcing regulations to prevent such obstructions or encroachments) such as any new developments on Project lands, easements, and rights-of- way or the addition of facilities which nnght reduce the outputs produced by the Project, hinder operation and maintenance of the Project, or interfere with the Project's proper function M. The Non-Federal Sponsors shall not use the Project,or the lands, easements, and rights-of-way required pursuant to Article III of this Agreement, as a wetlands bank or mitigation credit for any other project. N. The parties to this Agreement acknowledge and agree that the obligations and responsibilities of DNR under the provisions of this Agreement are limited to providing the DNR Parcel for the construction, operation, maintenance, repair, rehabilitation, and 13 replacement of the Project in accordance with the provisions of this Agreement, with City performing or providing all other non-Federal responsibilities for the Project ARTICLE III - LANDS, EASEMENTS, RIGHTS-OF-WAY, RELOCATIONS, DISPOSAL AREA IMPROVEMENTS, AND COMPLIANCE WITH PUBLIC LAW 91-646, AS AMENDED A. The Government, after consultation with the Non-Federal Sponsors, shall determine the lands, easements, and rights-of-way required for construction,operation,and maintenance of the Project, including those required for relocations,the borrowing of material, and the disposal of dredged or excavated material. The Government in a timely manner shall provide the Non-Federal Sponsors with general written descriptions, including maps as appropriate, of the lands, easements, and rights-of-way that the Government determines the Non-Federal Sponsors must provide, in detail sufficient to enable the Non- Federal Sponsors to fulfill their obligations under this paragraph. The Government also shall provide the City with a written notice to proceed with acquisition of such lands, easements, and rights-of-way that the City must provide Prior to the issuance of the solicitation for each Government contract for construction of the Project, or prior to the Government incurring any financial obligations for construction of a portion of the Project using the Government's own forces,the City shall acquire all lands,easements, and rights-of-way the Government determines the City must provide for that work and shall provide the Government with authorization for entry thereto. Furthermore,prior to the end of the period of construction,the City shall acquire all lands,easements, and rights- of-way required to be provided by the City for construction, operation, and maintenance of the Project, as set forth in such descriptions, and shall provide the Government with authorization for entry thereto. Prior to the issuance of the solicitation for a Government contract for construction of the Project, or prior to the Government incurring any financial obligations for construction of a portion of the Project using the Government's own forces, for which the Government determines that the DNR Parcel is required, the DNR shall provide the Government with an authorization for entry to the DNR Parcel. The City shall ensure that lands, easements, and rights-of-way that the Government determines to be required for the Project and that were provided by the City are retained in public ownership for uses compatible with the authorized purposes of the Project. The DNR shall ensure that the DNR Parcel that the Government determines to be required for the Project and that was provided by the DNR is retained in public ownership for uses compatible with the authorized purposes of the Project. B. The Government, after consultation with the City, shall determine the relocations necessary for construction, operation,and maintenance of the Project, including those necessary to enable the borrowing of material or the disposal of dredged or excavated material. The Government in a timely manner shall provide the City with general written descriptions, including maps as appropriate, of such relocations in detail sufficient to enable the City to fulfill its obligations under this paragraph, and shall provide the City with a written notice to proceed with such relocations Prior to the issuance of the solicitation for each Government contract for construction of the Project, or prior to the Government incurring any financial obligations for construction of a portion of the Project using the 14 Government's own forces, the City shall prepare or ensure the preparation of plans and specifications for, and perform or ensure the performance of, all relocations the Government determines to be necessary for that work. Furthermore,prior to the end of the period of construction,the City shall perform or ensure performance of all relocations as set forth in such descriptions. C. The Government, after consultation with the City, shall determine the improvements required on lands, easements, and rights-of-way to enable the disposal of dredged or excavated material associated with construction, operation, and maintenance of the Project. Such improvements may include,but are not necessarily limited to,retaining dikes,wasteweirs,bulkheads, embankments,monitoring features, stilling basins, and de- watering pumps and pipes. The Government in a timely manner shall provide the City with general written descriptions, including maps as appropriate, of such improvements that are required,in detail sufficient to enable the City to fulfill its obligations under this paragraph, and shall provide the City with a written notice to proceed with construction of such improvements. Prior to the issuance of the solicitation for each Government contract for construction of the Project, or prior to the Government incurring any financial obligations for construction of a portion of the Project using the Government's own forces,the City shall prepare plans and specifications for all improvements the Government determines to be required for the disposal of dredged or excavated material under that contract, submit such plans and specifications to the Government for approval, and provide such improvements in accordance with the approved plans and specifications Furthermore,prior to the end of the period of construction,the City shall provide all improvements set forth in such descriptions. D. The City shall comply with the applicable provisions of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970,Public Law 91-646, as amended (42 U.S.C. 4601-4655), and the Uniform Regulations contained in 49 C F.R Part 24, in acquiring lands, easements, and rights-of-way required for construction, operation, and maintenance of the Project,including those required for relocations,the borrowing of material, or the disposal of dredged or excavated material, and shall inform all affected persons of applicable benefits,policies, and procedures in connection with said Act. ARTICLE IV - CREDIT FOR VALUE OF LANDS, EASEMENTS, RIGHTS-OF-WAY, RELOCATIONS, AND DISPOSAL AREA IMPROVEMENTS A. The Government shall include in total project costs and afford credit toward the City's share of total project costs for the value of the lands, easements, and rights-of-way that the Non-Federal Sponsors must provide pursuant to Article III.A. of this Agreement; for the value of the relocations that the City must perform or for which it must ensure performance pursuant to Article IILB. of this Agreement; and for the value of the improvements required on lands, easements, and rights-of-way to enable the disposal of dredged or excavated material that the City must provide pursuant to Article IILC. of this Agreement. However,no amount shall be included in total project costs, no credit shall be afforded, and no reimbursement shall be provided for the value of any lands, easements, rights-of-way, relocations, or improvements required on lands, easements, and rights-of- 15 way to enable the disposal of dredged or excavated material that have been provided previously as an item of cooperation for another Federal project. In addition,no amount shall be included in total project costs, no credit shall be afforded, and no reimbursement shall be provided for the value of lands, easements,rights-of-way, relocations, or improvements required on lands,easements, and nghts-of-way to enable the disposal of dredged or excavated material that were acquired or performed using Federal program funds unless the Federal agency providing the Federal portion of such funds verifies in writing that affording credit for the value of such items is expressly authorized by Federal law B. The City in a timely manner shall provide the Government with such documents as are sufficient to enable the Government to determine the value of any contribution provided pursuant to Article III.A.,Article MR. or Article III.C.of this Agreement. Upon receipt of such documents, the Government in a timely manner shall determine the value of such contributions for the purpose of including such value in total project costs and for determining the amount of credit to be afforded or reimbursement to be provided in accordance with the provisions of this Agreement a C. For the purposes of determining the value to be included in total project costs and the amount of credit to be afforded or reimbursement to be provided in accordance with this Agreement and except as otherwise provided in paragraph G. of this Article,the value of lands, easements, and rights-of-way, including those required for relocations, the borrowing of material, and the disposal of dredged or excavated material, shall be the fair market value of the real property interests,plus certain incidental costs of acquiring those interests, as determined in accordance with the provisions of this paragraph. 1. Date of Valuation. The fair market value of lands,easements, or rights- of-way owned by the City on the effective date of this Agreement shall be the fair market value of such real property interests as of the date the City provides the Government with authorization for entry thereto. The fair market value of lands, easements, or rights-of-way acquired by the City after the effective date of this Agreement shall be the fair market value of such real property interests at the time the interests are acquired The fair market value of the DNR Parcel provided by DNR shall be the fair market value of such parcel as of the date that DNR provides the Government with authorization for entry thereto. 2. General Valuation Procedure. Except as provided in paragraph C.3. or paragraph C.5. of this Article, the fair market value of lands, easements, or rights-of-way shall be determined in accordance with the provisions of this paragraph a. The City shall obtain,for each real property interest, an appraisal that is prepared by a qualified appraiser who is acceptable to the City and the Government. The City shall provide the Government with the appraisal no later than 6 months after the City provides the Government with an authorization for entry for such real property interest. The appraisal must be prepared in accordance with the applicable rules of just compensation, as specified by the Government The fair market value shall be the amount set forth in the City's appraisal,if such appraisal is approved by the Government In the 16 event the Government does not approve the City's appraisal.the City may obtain a second appraisal, and the fair market value shall be the amount set forth in the City's second appraisal, if such appraisal is approved by the Government. In the event the Government does not approve the City's second appraisal, the City chooses not to obtain a second appraisal, or the City does not provide the first appraisal as required in this paragraph, the Government shall obtain an appraisal, and the fair market value shall be the amount set forth in the Government's appraisal, if such appraisal is approved by the City. In the event the City does not approve the Government's appraisal,the Government,after consultation with the City, shall consider the Government's and the City's appraisals and determine an amount based thereon,which shall be deemed to be the fair market value. b. Where the amount paid or proposed to be paid by the City for the real property interest exceeds the amount determined pursuant to paragraph C.2.a. of this Article,the Government,at the request of the City, shall consider all factors relevant to determining fair market value and, in its sole discretion, after consultation with the City, may approve in writing an amount greater than the amount determined pursuant to paragraph C 2.a. of this Article, but not to exceed the amount actually paid or proposed to be paid. If the Government approves such an amount, the fair market value shall be the lesser of the approved amount or the amount paid by the City,but no less than the amount determined pursuant to paragraph C 2.a. of this Article. 3. Eminent Domain Valuation Procedure. For lands, easements, or rights- of-way acquired by eminent domain proceedings instituted after the effective date of this Agreement,the City,prior to instituting such proceedings, shall submit to the Government notification in writing of its intent to institute such proceedings and an appraisal of the specific real property interests to be acquired in such proceedings. The Government shall have 60 calendar days after receipt of such a notice and appraisal within which to review the appraisal, if not previously approved by the Government in writing. a. If the Government previously has approved the appraisal in writing, or if the Government provides written approval of, or takes no action on,the appraisal within such 60 day period,the City shall use the amount set forth in such appraisal as the estimate of just compensation for the purpose of instituting the emment domain proceeding. b. If the Government provides written disapproval of the appraisal, including the reasons for disapproval, within such 60 day period,the Government and the City shall consult in good faith to promptly resolve the issues or areas of disagreement that are identified in the Government's written disapproval. If, after such good faith consultation,the Government and the City agree as to an appropriate amount,then the City shall use that amount as the estimate of just compensation for the purpose of instituting the eminent domain proceeding. If, after such good faith consultation,the Government and the City cannot agree as to an appropriate amount,then the City may use the amount set forth in its appraisal as the estimate of just compensation for the purpose of instituting the enunent domain proceeding. 17 c. For lands, easements, or rights-of-way acquired by eminent domain proceedings instituted in accordance with paragraph C 3. of this Article, fair market value shall be either the amount of the court award for the real property interests taken, to the extent the Government determined such interests are required for construction, operation, and maintenance of the Project, or the amount of any stipulated settlement or portion thereof that the Government approves in writing. 4. Incidental Costs. For lands,easements, or rights-of-way acquired by the City within a five year period preceding the effective date of this Agreement,or at any time after the effective date of this Agreement,the value of the interest shall include the documented incidental costs of acquiring the interest, as determined by the Government, subject to an audit in accordance with Article X C. of this Agreement to determine reasonableness, allocability, and allowability of such costs In the event the Government modifies its determination made pursuant to Article IILA. of this Agreement, the Government shall afford credit for the documented incidental costs associated with preparing to acquire the lands, easements, or rights-of-way identified in the original determination, subject to an audit in accordance with Article X.C. of this Agreement to determine reasonableness, allocability, and allowability of such costs Such incidental costs shall include,but not necessarily be limited to,closing and title costs, appraisal costs, survey costs, attorney's fees,plat maps, mapping costs,actual amounts expended for payment of any relocation assistance benefits provided in accordance with Article III.D. of this Agreement, and other payments by the City for items that are generally recognized as compensable, and required to be paid, by applicable state law due to the acquisition of a real property interest in accordance with Article III of this Agreement. The value of the interests provided by the City in accordance with Article III A. of this Agreement shall also include the documented costs of obtaining appraisals pursuant to paragraph C 2. of this Article, as determined by the Government, and subject to an audit in accordance with Article X.C. of this Agreement to determine reasonableness, allocability, and allowability of such costs. 5. Waiver of Appraisal. Except as required by paragraph C.3. of this Article, the Government may waive the requirement for an appraisal pursuant to this paragraph if it determines that an appraisal is unnecessary because the valuation is uncomplicated and that the estimated fair market value of the real property interest is $10,000 or less based upon a review of available data. In such event, the Government and the City must agree in writing to the value of such real property interest in an amount not in excess of$10,000 D. After consultation with the City,the Government shall determine the value of relocations in accordance with the provisions of this paragraph. 1. For a relocation other than a highway,the value shall be only that portion of relocation costs that the Government determines is necessary to provide a functionally equivalent facility,reduced by depreciation, as applicable, and by the salvage value of any removed items. 18 2. For a relocation of a highway,the value shall be only that portion of relocation costs that would be necessary to accomplish the relocation in accordance with the design standard that the State of Washington would apply under similar conditions of geography and traffic load, reduced by the salvage value of any removed items. 3. Relocation costs shall include,but not necessarily be limited to, actual costs of performing the relocation;planning, engineering and design costs; supervision and admmmstration costs. and documented incidental costs associated with performance of the relocation, as determined by the Government Relocation costs shall not include any costs due to betterments, as determined by the Government, nor any additional cost of using new material when suitable used material is available. Relocation costs shall be subject to an audit in accordance with Article X.0 of this Agreement to determine reasonableness, a allocability, and allowability of such costs. E. The value of the improvements required on lands, easements, and rights-of-way to enable the disposal of dredged or excavated material shall be the costs of the improvements, as determined by the Government, subject to an audit in accordance with Article X.C. of this Agreement to determine reasonableness, allocability, and allowability of such costs. Such costs shall include,but not necessarily be limited to, actual costs of providing the improvements,planning, engineering and design costs; supervision and administration costs; and documented incidental costs associated with providing the improvements, but shall not include any costs due to betterments, as determined by the Government. F. Any credit afforded or reimbursement provided under the terms of this ? Agreement for the value of relocations, or improvements required on lands,easements, and rights-of-way to enable the disposal of dredged or excavated material,performed within the Project boundaries is subject to satisfactory compliance with applicable Federal labor laws covering non-Federal construction, including, but not limited to, 40 U.S.C. 3141- 3148 and 40 U.S.C. 3701-3708 (revising, codifying and enacting without substantive change the provisions of the Davis-Bacon Act(formerly 40 U.S.C. 276a et seq.), the Contract Work Hours and Safety Standards Act (formerly 40 U.S.C. 327 et seq.) and the Copeland Anti-Kickback Act (formerly 40 U.S C. 276c)). Notwithstanding any other provision of this Agreement, credit or reimbursement may be withheld, in whole or in part, as a result of the City's failure to comply with its obligations under these laws. G. Where the Government, on behalf of the City pursuant to Article II.G.1. of this Agreement, acquires lands, easements, or rights-of-way,performs relocations, or constructs improvements required on lands, easements, or rights-of-way to enable the disposal of dredged or excavated material,the value to be included in total project costs and the amount of credit to be afforded or the amount of reimbursement provided in accordance with this Agreement shall be the costs of such work performed or provided by the Government that are paid by the City in accordance with Article VI.D. of this Agreement. In addition, the value to be included in total project costs and the amount of such credit to be afforded or the amount of reimbursement provided in accordance with this Agreement shall include the documented costs incurred by the City in accordance with the terms and 19 conditions agreed upon in writing pursuant to Article II.G.1. of this Agreement subject to an audit in accordance with Article X C of this Agreement to determine reasonableness, allocability, and allowability of such costs. ARTICLE V - PROJECT COORDINATION TEAM A. To provide for consistent and effective communication,the City and the Government,not later than 30 calendar days after the effective date of this Agreement, shall appoint named senior representatives to a Project Coordination Team. Thereafter,the Project Coordination Team shall meet regularly until the end of the period of construction. The Government's Project Manager and a counterpart named by the City shall co-chair the Project Coordination Team. B. The Government's Project Manager and the City's counterpart shall keep the Project Coordination Team informed of the progress of construction and of significant pending issues and actions,and shall seek the views of the Project Coordination Team on matters that the Project Coordination Team generally oversees. C. Until the end of the period of construction,the Project Coordination Team shall generally oversee the Project, including matters related to: plans and specifications; scheduling;real property and relocation requirements,real property acquisition; contract awards and modifications; contract costs, the application of and compliance with 40 U.S.C. 3141-3148 and 40 U.S.C. 3701-3708 (revising, codifying and enacting without substantive change the provisions of the Davis-Bacon Act (formerly 40 U.S.C. 276a et seq.), the Contract Work Hours and Safety Standards Act (formerly 40 U S.C. 327 et seq.) and the Copeland Anti-Kickback Act (formerly 40 U.S.C. 276c)) for relocations, improvements required on lands, easements, and rights-of-way to enable the disposal of dredged or excavated material,and the construction portion of the to-kind contributions; the investigations to identify the existence and extent of hazardous substances in accordance with Article XIV.A. of this Agreement; historic preservation activities in accordance with Article XVII of this Agreement; the performance of, scheduling for, and determining eligibility of costs of in-kind contributions to be performed after the effective date of this Agreement; the Government's cost projections; final inspection of the entire Project or functional portions of the Project, preparation of the proposed OMRR&R Manual; finalization of the monitoring plan; performance of monitoring and adaptive management; anticipated requirements and needed capabilities for performance of operation, maintenance, repair,rehabilitation,and replacement of the Project including issuance of permits; and other matters related to the Project. This oversight of the Project shall be consistent with a project management plan developed by the Government after consultation with the City. D. The Project Coordination Team may make recommendations to the District Engineer on matters related to the Project that the Protect Coordination Team generally oversees, including suggestions to avoid potential sources of dispute. The Government in good faith shall consider the recommendations of the Project Coordination Team. The 20 I Government,having the legal authority and responsibility for construction of the Project except for the in-kind contributions,has the discretion to accept or reject, in whole or in part,the Project Coordination Team's recommendations. On matters related to the in-kind contributions to be performed after the effective date of this Agreement that the Project Coordination Team generally oversees, the Project Coordination Team may make recommendations to the City including suggestions to avoid potential sources of dispute. The City in good faith shall consider the recommendations of the Project Coordination Team. The City, having the legal authority and responsibility for construction of the n- kind contributions, has the discretion to accept or reject, in whole or in part, the Project Coordination Team's recommendations except as otherwise required by the provisions of this Agreement, including compliance with applicable Federal, State, or local laws or regulations E. The City's costs of participation in the Project Coordination Team shall be included in total project costs and shared in accordance with the provisions of this Agreement, subject to an audit in accordance with Article X.C. of this Agreement to determine reasonableness, allocability, and allowabihty of such costs. The Government's costs of participation in the Project Coordination Team shall be included in total project costs and shared in accordance with the provisions of this Agreement. F. At the election of DNR, representatives of the DNR may participate in the activities of the Project Coordination Team, but are not be required to do so. If DNR representatives participate in the activities of the Project Coordination Team, DNR's costs of participation shall not be included in total project costs and shall be borne solely by DNR. ARTICLE VI -METHOD OF PAYMENT A. In accordance with the provisions of this paragraph,the Government shall maintain current records and provide to the City current projections of costs, financial obligations, contributions provided by the parties, the value included in total project costs for lands, easements, rights-of-way,relocations, and improvements required on lands, easements, and rights-of-way to enable the disposal of dredged or excavated material determined in accordance with Article IV of this Agreement, and the amount of credit to be afforded for the in-kind contributions pursuant to Article II.B 5. of this Agreement. 1. As of the effective date of this Agreement, total project costs are projected to be $7,216,285; the value included in total project costs for contributions provided by a non-Federal Sponsor pursuant to terms of the Design Agreement is projected to be $313,862; the value included in total project costs for lands, easements, rights-of-way, relocations, and improvements required on lands, easements, and rights-of- way to enable the disposal of dredged or excavated material determined in accordance with Article IV of this Agreement is projected to be $53,200; the value of the City's contributions under Article V, Article X, and Article XIV.A. of this Agreement is projected to be$40,000;the amount of funds determined in accordance with Article ILB.2 a. of this Agreement is projected to be $2,118,637.75; the amount of credit to be afforded for in- 21 kind contributions pursuant to Article ILB.5. of this Agreement is projected to be $434,632. the City's contribution of funds required by Article ILB.2.b. of this Agreement is projected to be $1,684,005.75, the non-Federal proportionate share is projected to be 30.0 percent;the City's contribution of funds required by Article XVII.C.4 of this Agreement is projected to be W. and the Government's total financial obligations for the additional work to be incurred and the City's contribution of funds for such costs required by Article II.G. of this Agreement are projected to be $0. These amounts and percentage are estimates subject to adjustment by the Government, after consultation with the City, and are not to be construed as the total financial responsibilities of the Government and the City. 2. By January 2, 2012 and by each quarterly anniversary thereof until the conclusion of the period of construction and resolution of all relevant claims and appeals and eminent domain proceedings, the Government shall provide the City with a report r, setting forth all contributions provided to date and the current projections of the following: total project costs; the value included in total project costs for contributions provided by a non-Federal Sponsor pursuant to terms of the Design Agreement; the value y included in total project costs for lands, easements, rights-of-way, relocations, and improvements required on lands, easements, and rights-of-way to enable the disposal of dredged or excavated material determined in accordance with Article IV of this Agreement, the value of the City's contributions under Article V, Article X, and Article XIV.A. of this Agreement, the amount of funds determined in accordance with Article ILB 2.a of this Agreement; the amount of credit to be afforded for in-kind contributions pursuant to Article II B 5 of this Agreement; the City's contribution of funds required by Article II B 2.b. of this Agreement; the non-Federal proportionate share, the City's total contribution of funds required by Article XVILC.4 of this Agreement, the maximum amount determined in accordance with Article XIX of this Agreement;the total contribution of funds requires from the City for the upcoming fiscal year; and the Government's total financial obligations for additional work incurred and the City's contribution of funds for such costs required by Article II.G. of this Agreement. B. The City shall provide the contributions of funds required by Article ILB.2.b. and Article XVII.C.4. of this Agreement in accordance with the provisions of this paragraph 1. Not less than 30 calendar days prior to the scheduled date for issuance of the solicitation for the first contract for construction of the Project or commencement of construction of the Project using the Government's own forces, the Government shall notify the City in writing of such scheduled date and the funds the Government determines to be required from the City to meet: (a)the non-Federal proportionate share of financial obligations for construction incurred prior to the commencement of the period of construction: (b) the projected non-Federal proportionate share of financial obligations for construction to be incurred in the first fiscal year; or, if use of a continuing contract has been approved pursuant to Federal laws, regulations, and policies, the projected non-Federal proportionate share offinancial obligations for construction through the first fiscal year; and (c) the City's share of the projected financial obligations 22 for data recovery-activities associated with historic preservation pursuant to Article XVII.C.4. of this Agreement to be incurred in the first fiscal year, or, if use of a continuing contract has been approved pursuant to Federal laws, regulations, and policies, the City's share of the projected financial obligations for data recovery activities associated with historic preservation pursuant to Article XVILCA of this Agreement through the first fiscal year Not later than such scheduled date, the City shall provide the Government with the full amount of such required funds by delivering a check payable to "FAO, USAED, Seattle District"to the District Engineer, or verifying to the satisfaction of the Government that the City has deposited such required funds in an escrow or other account acceptable to the Government, with interest accruing to the City, or by presenting the Government with an irrevocable letter of credit acceptable to the Government for such required funds, or by providing an Electronic Funds Transfer of such required funds in accordance-Mth procedures established by the Government. 2. Thereafter, until the construction of the Project is complete, the Government shall notify the City in writing of the funds the Government determines to be required from the City, and the City shall provide such funds in accordance with the provisions of this paragraph. a. Where the Government will use a continuing contract approved r pursuant to Federal laws, regulations, and policies to make financial obligations for construction of the Project or financial obligations for data recovery activities associated with historic preservation pursuant to Article XVILCA. of this Agreement,the Government shall notify the City in writing, no later than 60 calendar days prior to the beginning of each fiscal year in which the Government projects that it will make such financial obligations, of the funds the Government determines to be required from the City to meet: (a) the projected non-Federal proportionate share offinancial obligations for construction for that fiscal year for such continuing contract and (b) the City's share of the projected financial obligations for data recovery activities associated with historic preservation pursuant to Article XVILCA. of this Agreement for that fiscal year for such continuing contract. No later than 30 calendar days prior to the beginning of that fiscal year, the City shall make the full amount of such required funds for that fiscal year available to the Government through any of the payment mechanisms specified in paragraph B.1. of this Article. b. For each contract for the Project where the Government will not use a continuing contract to make financial obligations for construction or financial obligations for data recovery activities associated with historic preservation pursuant to Article XVILCA. of this Agreement, the Government shall notify the City in writing, no later than 60 calendar days prior to the scheduled date for issuance of the solicitation for such contract, of the funds the Government determines to be required from the City to meet (a) the projected non-Federal proportionate share of financial obligations for construction to be incurred for such contract and (b) the City's share of the projected financial obligations for data recovery activities associated with historic preservation pursuant to Article XVILC 4 of this Agreement to be incurred for such contract. No later than such scheduled date, the City shall make the full amount of such required funds 23 available to the Government through any of the payment mechanisms specified in paragraph B.1. of this Article. c. Where the Government projects that it will make financial obligations for construction of the Project using the Government's own forces or financial obligations for data recovery activities associated with historic preservation pursuant to Article XVII.C.4. of this Agreement using the Government's own forces,the Government shall notify the City in writing, no later than 60 calendar days prior to the beginning of each fiscal year in which the Government projects that it will make such j financial obligations, of the funds the Government determines to be required from the City to meet: (a)the projected non-Federal proportionate share of financial obligations a for construction using the Government's own forces for that fiscal year and (b) the City's 1 share of the projected financial obligations for data recovery activities associated with historic preservation pursuant to Article XVILC.4. of this Agreement using the Government's own forces for that fiscal year No later than 30 calendar days prior to the beginning of that fiscal year, the City shall make the full amount of such required funds for that fiscal year available to the Government through any of the payment mechanisms specified in paragraph B.1. of this Article. 3. The Government shall draw from the funds provided by the City such sums as the Government deems necessary, after consideration of any contributions provided by a non-Federal interest pursuant to the terms of the Design Agreement and the credit the Government projects will be afforded for the in-kind contributions pursuant to Article II B.5. of this Agreement, to cover: (a)the non-Federal proportionate share of financial obligations for construction incurred prior to the commencement of the period of construction, (b) the non-Federal proportionate share of financial obligations for construction as financial obligations for construction are incurred; and (c) the City's share of financial obligations for data recovery activities associated with historic preservation pursuant to Article XVII.C.4. of this Agreement as those financial obligations are incurred. If at any time the Government determines that additional funds will be needed from the City to cover the City's share of such financial obligations in the current fiscal year, the Government shall notify the City in writing of the additional funds required and provide an explanation of why additional funds are required. Within 60 calendar days from receipt of such notice,the City shall provide the Government with the full amount of such additional required funds through any of the payment mechanisms specified in paragraph B.1. of this Article. C. Upon the District Engineer's determination that, except for monitoring and adaptive management, the entire Project is complete and all relevant claims and appeals and eminent domain proceedings have been resolved,the Government shall conduct an interim accounting and fumish the results to the City Further, upon conclusion of the period of construction and resolution of all relevant claims and appeals and eminent domain proceedings, the Government shall amend the interim accounting to complete the final accounting and furnish the results to the City. If outstanding relevant claims and appeals or eminent domain proceedings prevent a final accounting from being conducted in a timely manner, the Government shall conduct an interim accounting or amend the 24 . r 7 i previous interim accounting, as applicable, and famish the City with written notice of the results of such interim or amended interim accounting, as applicable. Once all outstanding relevant claims and appeals and eminent domain proceedings are resolved, the Government shall complete the final accounting and furnish the City with written notice of the results of such final accounting. The interim or final accounting, as applicable, shall determine total project costs and the costs of any data recovery activities associated with historic preservation. In addition, for each set of costs, the interim or final accounting, as applicable, shall determine each party's required share thereof, and each party's total contributions thereto as of the date of such accounting. 1. Should the interim or final accounting, as applicable, show that the City's total required shares of total project costs and the costs of any data recovery activities associated with historic preservation exceed the City's total contributions provided thereto, the City, no later than 90 calendar days after receipt of written notice from the Government, shall make a payment to the Government in an amount equal to the difference by delivering a check payable to '*FAO, USAED, Seattle District" to the District Engineer or by providing an Electronic Funds Transfer in accordance with procedures established by the Government. 2. Should the interim or final accounting, as applicable, show that the total contributions provided by the City for total project costs and the costs of any data recovery activities associated with historic preservation exceed the City's total required shares thereof, the Government, subject to the availability of funds and as limited by Article II B 6. of this Agreement, shall refund or reimburse the excess amount to the City within 90 calendar days of the date of completion of such accounting. In the event the City is due a refund or reimbursement and funds are not available to refund or reimburse the excess amount to the City, the Government shall seek such appropriations as are necessary to make the refund or reimbursement D. The City shall provide the contribution of funds required by Article II.G. of this Agreement for additional work in accordance with the provisions of this paragraph. 1. Not less than 60 calendar days prior to the scheduled date for the first financial obligation for additional work, the Government shall notify the City in writing of such scheduled date and of the full amount of funds the Government determines to be required from the City to cover the costs of the additional work. No later than 30 calendar days prior to the Government incurring any financial obligation for additional work, the City shall provide the Government with the full amount of the funds required to cover the costs of such additional work through any of the payment mechanisms specified in paragraph B.1. of this Article. 2. The Government shall draw from the funds provided by the City such sums as the Government deems necessary to cover the Government's financial obligations for such additional work as they are incurred If at any time the Government determines that the City must provide additional funds to pay for such additional work, the Government shall notify the City in writing of the additional funds required and 25 provide an explanation of why additional funds are required. Within 30 calendar days from receipt of such notice. the City shall provide the Government with the full amount of such additional required funds through any of the payment mechanisms specified in paragraph B.1. of this Article. 3. At the time the Government conducts the interim or final accounting, as applicable, the Government shall conduct an accounting of the Government's financial obligations for additional work incurred and furnish the City with written notice of the results of such accounting. If outstanding relevant claims and appeals or eminent domain proceedings prevent a final accounting of additional work from being conducted in a timely manner, the Government shall conduct an interim accounting of additional work and furnish the City with written notice of the results of such interim accounting. Once all outstanding relevant claims and appeals and eminent domain proceedings are resolved, the Government shall amend the interim accounting of additional work to complete the final accounting of additional work and furnish the City with written notice of the results of such final accounting. Such interim or final accounting, as applicable, shall determine the Government's total financial obligations for additional work and the City's contribution of funds provided thereto as of the date of such accounting. a. Should the interim or final accounting, as applicable, show that the total obligations for additional work exceed the total contribution of funds provided by the City for such additional work, the City, no later than 90 calendar days after receipt of written notice from the Government, shall make a payment to the Government in an amount equal to the difference by delivering a check payable to '*FAO, USAED, Seattle District'' to the District Engineer or by providing an Electronic Funds Transfer in accordance with procedures established by the Government. b. Should the interim or final accounting, as applicable, show that the total contribution of funds provided by the City for additional work exceeds the total obligations for such additional work. the Government, subject to the availability of funds, shall refund the excess amount to the City within 90 calendar days of the date of completion of such accounting. In the event the City is due a refund and funds are not available to refund the excess amount to the City, the Government shall seek such appropriations as are necessary to make the refund. ARTICLE VII - DISPUTE RESOLUTION As a condition precedent to a party bringing any suit for breach of this Agreement, that party must first notify the other parties in writing of the nature of the purported breach and seek in good faith to resolve the dispute through negotiation. If the parties cannot resolve the dispute through negotiation, they may agree to a mutually acceptable method of non-binding alternative dispute resolution with a qualified third party acceptable to both parties. Each party shall pay an equal share of any costs for the services provided by such a third party as such costs are incurred The existence of a dispute shall not excuse the parties from performance pursuant to this Agreement. 26 ARTICLE VIII - OPERATION, MAINTENANCE, REPAIR, REHABILITATION, AND REPLACEMENT (OMRR&R) A. Upon receipt of the notification from the District Engineer in accordance with Article ILC. of this Agreement and for so long as the Project remains authorized,the City, pursuant to Article II.D. of this Agreement, shall operate, maintain,repair,rehabilitate. and replace the entire Project or functional portion of the Project. at no cost to the Government. The City shall conduct its operation, maintenance, repair, rehabilitation, and replacement responsibilities in a manner compatible with the Project's authorized purposes and in accordance with applicable Federal and State laws as provided in Article XI of this Agreement and specific directions prescribed by the Government in the interim or final OMRR&R Manual and any subsequent amendments thereto. B. The DNR hereby gives the City a right to enter, at reasonable times and in a reasonable manner, upon the DNR Parcel for the purposes of inspection, operation, maintenance, repair, rehabilitation, and replacement of the Project. C. The City hereby gives the Government a right to enter, at reasonable times and in a reasonable manner,upon property that the City now or hereafter owns or controls for access to the Project for the purpose of inspection and, if necessary, for the purpose of completing, operating,maintaining,repairing, rehabilitating, or replacing the Project. The DNR hereby gives the Government a right to enter, at reasonable times and in a reasonable manner,upon the DNR Parcel for the purpose of inspection and, if necessary, for the purpose of completing, operating, maintaining, repairing, rehabilitating, or replacing the Project. If an inspection shows that the City for any reason is failing to perform its obligations under this Agreement,the Government shall send a written notice describing the non-performance to the City and to the DNR If, after 30 calendar days from receipt of such written notice by the Government,the City continues to fail to perform,then the Government shall have the right to enter,at reasonable times and in a reasonable manner, upon property that the City now or hereafter owns or controls, and upon the DNR Parcel, for the purpose of completing, operating, maintaining,repairing,rehabilitating, or replacing the Project. No completion,operation,maintenance, repair,rehabilitation, or replacement by the Government shall relieve the City of responsibility to meet the City's obligations as set forth in this Agreement, or to preclude the Government from pursuing any other remedy at law or equity to ensure faithful performance pursuant to this Agreement. ARTICLE IX—HOLD AND SAVE A. The City shall hold and save the Government free from all damages arising from construction, monitoring, adaptive management, operation,maintenance, repair, rehabilitation, and replacement of the Project and any betterments, except for damages due to the fault or negligence of the Government or its contractors. B. The City shall hold and save DNR free from all damages arising from the construction, monitoring, adaptive management, operation, maintenance, repair, 27 rehabilitation, and replacement of the Project and any betterments, except for damages due to the fault or negligence of DNR. ARTICLE X - MAINTENANCE OF RECORDS AND AUDIT A. Not later than 60 calendar days after the effective date of this Agreement, the Government and the City shall develop procedures for keeping books,records, documents, or other evidence pertaining to costs and expenses incurred pursuant to this Agreement. These procedures shall incorporate, and apply as appropriate,the standards for financial management systems set forth in the Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments at 32 C.F.R. Section 33.20. The Government and the City shall maintain such books,records, documents, or other evidence in accordance with these procedures and for a minimum of three years after completion of the accounting for which such books,records, documents, or other evidence were required. To the extent permitted under applicable Federal laws and regulations,the Government and the City shall each allow the other to inspect such books,records,documents, or other evidence. B. In accordance with 32 C.F.R. Section 33 26,the City is responsible for complying with the Single Audit Act Amendments of 1996 (31 U.S.C. 7501-7507), as implemented by Office of Management and Budget(OMB) Circular No. A-133 and Department of Defense Directive 7600 10 Upon request of the City and to the extent permitted under applicable Federal laws and regulations.the Government shall provide to the City and independent auditors any information necessary to enable an audit of the City's activities under this Agreement. The costs of any non-Federal audits performed in accordance with this paragraph shall be allocated in accordance with the provisions of OMB Circulars A-87 and A-133, and such costs as are allocated to the Project shall be included in total project costs and shared in accordance with the provisions of this Agreement. C. In accordance with 31 U.S.C. 7503,the Government may conduct audits in addition to any audit that the City is required to conduct under the Single Audit Act Amendments of 1996. Any such Government audits shall be conducted in accordance with Government Auditing Standards and the cost principles in OMB Circular No. A-87 and other applicable cost principles and regulations. The costs of Government audits performed in accordance with this paragraph shall be included in total project costs and shared in accordance with the provisions of this Agreement. ARTICLE XI - FEDERAL AND STATE LAWS In the exercise of their respective rights and obligations under this Agreement, the City and the Government shall comply with all applicable Federal and State laws and regulations, including, but not limited to: Section 601 of the Civil Rights Act of 1964, Public Law 88-352 (42 U.S.C. 2000d) and Department of Defense Directive 5500.11 issued pursuant thereto; Army Regulation 600-7, entitled"Nondiscrimination on the Basis of Handicap in Programs and Activities Assisted or Conducted by the Department of the Army"; and all applicable Federal labor standards requirements including, but not 28 s limited to, 40 U.S.C. 3141-3148 and 40 U.S.C. 3701-3708 (revising, codifying and enacting without substantive change the provisions of the Davis-Bacon Act (formerly 40 U.S.C. 276a et seq.), the Contract Work Hours and Safety Standards Act (formerly 40 U.S.C. 327 et seq.) and the Copeland Anti-Kickback Act(formerly 40 U.S.C. 276c)). ARTICLE XII - RELATIONSHIP OF PARTIES A. In the exercise of their respective rights and obligations under this Agreement, the Government and the Non-Federal Sponsors each act in an independent capacity, and none is to be considered the officer, agent,or employee of the others. B. In the exercise of its rights and obligations under this Agreement,no party shall provide,without the consent of the other parties, any contractor with a release that waives or purports to waive any rights the other parties may have to seek relief or redress against that contractor either pursuant to any cause of action that the other parties may have or for 3 violation of any law. ARTICLE XIII - TERMINATION OR SUSPENSION A. If at any time the Non-Federal Sponsors fail to fulfill their obligations under this Agreement,the Assistant Secretary of the Army(Civil Works) shall terminate this Agreement or suspend future performance under this Agreement unless he determines that continuation of work on the Project is in the interest of the United States or is necessary in order to satisfy agreements with any other non-Federal interests in connection with the Project. B. In the event the Government projects that the amount of Federal funds the Government will make available to the Project through the then-current fiscal year, or the amount of Federal funds the Government will make available for the Project through the upcoming fiscal year, is not sufficient to meet the Federal share of total project costs and the Federal share of costs for data recovery activities associated with historic preservation in accordance with Article XVII.C.3 and Article XVILC.4. of this Agreement that the Government projects to be incurred through the then-current or upcoming fiscal year, as applicable, the Government shall notify the City in writing of such insufficiency of funds and of the date the Government projects that the Federal funds that will have been made available to the Project will be exhausted. Upon the exhaustion of Federal funds made available by the Government to the Project, future performance under this Agreement shall be suspended Such suspension shall remain in effect until such time that the Government notifies the City in writing that sufficient Federal funds are available to meet the Federal share of total project costs and the Federal share of costs for data recovery activities associated with historic preservation in accordance with Article XVII.C.3. and Article XVILC 4. of this Agreement the Government projects to be incurred through the then-current or upcoming fiscal year, or the Government or the City elects to terminate this Agreement. 29 C. In the event that the Government and the City determine to suspend future performance under this Agreement in accordance with Article XIV.C. of this Agreement, such suspension shall remain in effect until the Government and the City agree to proceed or to terminate this Agreement. In the event that the Government suspends future performance under this Agreement in accordance with Article XIV.C. of this Agreement due to failure to reach agreement with the City on whether to proceed or to terminate this Agreement, or the failure of the City to provide funds to pay for cleanup and response costs or to otherwise discharge the City's responsibilities under Article XIV.C. of this Agreement, such suspension shall remain in effect until: 1)the Government and City reach agreement on how to proceed or to terminate this Agreement; 2)the City provides funds necessary to pay for cleanup and response costs and otherwise discharges its responsibilities under Article XIV.0 of this Agreement; 3)the Government continues work on the Project; or 4) the Government terminates this Agreement in accordance with the provisions of Article XIV.C. of this Agreement. D. In the event that this Agreement is terminated pursuant to this Article or Article XIV.C. of this Agreement,both parties shall conclude their activities relating to the Project and conduct an accounting in accordance with Article VI.C. of this Agreement To provide for this eventuality, the Government may reserve a percentage of total Federal funds made available for the Project and an equal percentage of the total funds contributed by the City in accordance with Article II.B.2.b and Article XVII CA. of this Agreement as a contingency to pay costs of termination, including any costs of resolution of contract claims and contract modifications. E. Any termination of this Agreement or suspension of future performance under this Agreement in accordance with this Article or Article XIV.C. of this Agreement shall not relieve the parties of liability for any obligation previously incurred. Any delinquent payment owed by the City shall be charged interest at a rate,to be determined by the Secretary of the Treasury, equal to 150 per centum of the average bond equivalent rate of the 13 week Treasury bills auctioned immediately prior to the date on which such payment became delinquent, or auctioned immediately prior to the beginning of each additional 3 month period if the period of delinquency exceeds 3 months. F. Upon termination in accordance with this Article or Article XIV.C. of this Agreement. DNR shall be released of any further obligations under this Agreement. ARTICLE XIV - HAZARDOUS SUBSTANCES A. After execution of this Agreement and upon direction by the District Engineer, the City shall perform, or ensure performance of, any investigations for hazardous substances that the Government or the City determines to be necessary to identify the existence and extent of any hazardous substances regulated under the Comprehensive Environmental Response, Compensation,and Liability Act(hereinafter"CERCLA") (42 U.S.C. 9601-9675),that may exist in,on,or under lands,easements, and rights-of-way that the Government determines,pursuant to Article III of this Agreement,to be required for construction, operation, and maintenance of the Project. However, for lands,easements, 30 and rights-of-way that the Government determines to be subject to the navigation servitude, only the Government shall perform such investigations unless the District Engineer provides the City with prior specific written direction, in which case the City shall perform such investigations in accordance with such written direction. 1. All actual costs incurred by the City for such investigations for hazardous substances shall be included in total project costs and shared in accordance with the provisions of this Agreement, subject to an audit in accordance with Article X.C. of this Agreement to determine reasonableness, allocability,and allowability of such costs. 2. All actual costs incurred by the Government for such investigations for hazardous substances shall be included in total project costs and shared in accordance with the provisions of this Agreement. B. In the event it is discovered through any investigation for hazardous substances or other means that hazardous substances regulated under CERCLA exist in, on, or under any lands, easements, or rights-of-way that the Government determines,pursuant to Article III of this Agreement,to be required for construction,operation,and maintenance of the Project,the City and the Government, in addition to providing any other notice required by applicable law, shall provide prompt written notice to each other, and the City shall not proceed with the acquisition of the real property interests until the parties agree that the City should proceed. C. The Government and the City shall determine whether to initiate construction of the Project, or,if already in construction,whether to continue with construction of the Project, suspend future performance under this Agreement, or terminate this Agreement for the convenience of the Government, in any case where hazardous substances regulated under CERCLA are found to exist in, on, or under any lands, easements, or rights-of-way that the Government determines,pursuant to Article III of this Agreement, to be required for construction, operation, and maintenance of the Project. Should the Government and the Citv determine to initiate or continue wrath construction of the Project after considering any liability that may arise under CERCLA,the City shall be responsible,as between the Government and the City, for the costs of cleanup and response, including the costs of any studies and investigations necessary to determine an appropriate response to the contamination. Such costs shall not be considered a part of total project costs. In the event the City does not reach agreement with the Government on whether to proceed or to terminate this Agreement under this paragraph, or fails to provide any funds necessary to pay for cleanup and response costs or to otherwise discharge the City's responsibilities under this paragraph upon direction by the Government, the Government,in its sole discretion,may either terminate this Agreement for the convenience of the Government, suspend future performance under this Agreement,or continue work on the Project. D. The City and the Government shall consult with each other in accordance with Article V of this Agreement in an effort to ensure that responsible parties bear any necessary cleanup and response costs as defined in CERCLA. Any decision made pursuant to 31 paragraph C. of this Article shall not relieve any third party from any liability that may arise under CERCLA. E. As among the Government,DNR,and the City,the City shall be considered the operator of the Project for purposes of CERCLA liability. To the maximum extent practicable,the City shall operate,maintain,repair, rehabilitate,and replace the Project in a manner that will not cause liability to arise under CERCLA. ARTICLE XV -NOTICES A. Any notice,request, demand, or other communication required or permitted to be given under this Agreement shall be deemed to have been duly given if in writing and delivered personally or sent by telegram or mailed by first-class,registered, or certified mail, as follows: If to the City: Superintendent,Parks Public Works Department City of Kent 220 Fourth Ave. S. Kent, WA 98032-5895 If to the State of Washington DNR: Aquatic Land Manager, Washington State Department of Natural Resources South Puget Sound Region 950 Farman Ave N. Enumclaw, WA 99022-9282 If to the Government: Chief, Planning Branch,PPMD Seattle District, Corps of Engineers P.O. Box 3755 Seattle, WA 98124-3755 B. A party may change the address to which such communications are to be directed by giving written notice to the other parties in the manner provided in this Article. C. Any notice,request, demand, or other communication made pursuant to this Article shall be deemed to have been received by the addressee at the earlier of such time as it is actually received or seven calendar days after it is mailed ; 32 ARTICLE XVI - CONFIDENTIALITY To the extent permitted by the laws governing each party,the parties agree to maintain the confidentiality of exchanged information when requested to do so by the providing party. ARTICLE XVII - HISTORIC PRESERVATION A. Except as provided in paragraph B. below, the Government shall perform any identification, survey, or evaluation of historic properties that it determines is necessary for the Project. Any costs incurred by the Government for such work shall be included in total project costs and shared in accordance with the provisions of this Agreement. B. In the event that the Government determines that any identification, survey, or evaluation of historic properties is required for construction of the in-kind contributions to be performed after the effective date of this Agreement, and if the Government and the City agree in writing that the City should perform such identification, survey, or evaluation of historic properties, the City shall perform such identification, survey, or t evaluation in accordance with this paragraph and other written directions of the Government 1. The City shall ensure that its studies are conducted by qualified archaeologists, historians, architectural historians, and historic architects, as appropriate, who meet, at a minimum, the Secretary of the Interior's Professional Qualifications Standards. The City shall submit study plans and reports to the Government for review and approval and the City shall be responsible for resolving any deficiencies identified by the Government. 2. Any costs of identification, survey,or evaluation of historic properties incurred by the City pursuant to this paragraph shall be included in the costs for in-kind contributions subject to an audit in accordance with Article X.C. of this Agreement to determine reasonableness, allocability, and allowability of such costs. C. Except as provided in paragraph C.2. below,the Government, as it determines necessary for the Project, shall perform or ensure the performance of any mitigation activities or actions for historic properties or that are otherwise associated with historic preservation including data recovery activities. 1. Any costs incurred by the Government for such mitigation activities, except for data recovery activities associated with historic preservation, shall be included in total project costs and shared in accordance with the provisions of this Agreement. 2. In the event that the Government determines that mitigation activities or actions other than data recovery activities associated with historic preservation are required for construction of the in-kind contribution to be performed after the effective date of this Agreement, and if the Government and the City agree in writing that the City should , 33 perform such activities or actions,the City shall perform such activities or action in accordance with the written directions of the Government. The City shall perform the agreed upon activities or actions prior to construction of such in-land contributions Any costs incurred by the City in accordance with the provisions of this paragraph shall be included in the costs for in-kind contributions subject to an audit in accordance with Article X.0 of this Agreement to determine reasonableness, allocability, and allowability of such costs. 3. As specified in Section 7(a)of Public Law 86-523, as amended by Public Law 93-291 (16 U.S.C. 469c(a)),the costs of data recovery activities associated with historic preservation shall be borne entirely by the Government and shall not be included in total project costs, up to the statutory limit of one percent of the total amount authorized to be appropriated to the Government for the Project 4. The Government shall not incur costs for data recovery activities associated with historic preservation that exceed the statutory one percent limit specified in paragraph C.3. of this Article unless and until the Assistant Secretary of the Army(Civil Works)has waived that limit and the Secretary of the Interior has concurred in the waiver in accordance with Section 208(3) of Public Law 96-515, as amended(16 U.S.0 469c-2(3)). Any costs of data recovery activities associated with historic preservation that exceed the one percent limit shall not be included in total project costs but shall be shared between the City and the Government consistent with the cost sharing requirements for ecosystem restoration,as follows: 35 percent will be bome by the City and 65 percent will be borne by the Government. D. If, during its performance of relocations,construction of improvements required on lands, easements, and rights-of-way to enable the disposal of dredged or excavated material in accordance with Article III of this Agreement, or performance of the in-kind contributions to be performed after the effective date of this Agreement, the City discovers historic properties or other cultural resources that have not been evaluated in accordance with this Article, the City shall provide prompt written notice to the Government of such discovery. The City shall not proceed with performance of the relocation, construction of the improvement, or performance of such in-kind contributions related to such discovery until the Government provides written notice to the City that it should proceed with such work. ARTICLE XVIII-NON-LIABILITY OF OFFICERS AND EMPLOYEES No officer, agent, consultant, or employee of the Non-Federal Sponsors, nor any officer, agent, consultant, or employee of the Government, may be charged personally, or held liable, under the terms or provisions of this Agreement because of any breach, attempted breach, or alleged breach thereof, except as provided in Section 912(b) of the Water Resources Development Act of 1986, Public Law 99-662, as amended (42 U.S.C. 1962d-5b note), or other applicable law. s 34 ARTICLE XIX- SECTION 902 MAXIMUM COST OF PROJECT A. The City understands that Section 902 of the Water Resources Development Act of 1986, Public Law 99-662,as amended(33 U.S.C. 2280) establishes the maximum amount of total costs for the Authorized Project, of which the Project is a separable element. On the effective date of this Agreement,the maximum amount of total costs for the Authorized Project, which is the sum of total project costs for the Project and the costs for all other separable elements of the Authorized Project, is estimated to be $180,153,000, as calculated in accordance with Engineer Regulation 1105-2-100, using October 1, 2010 price levels, and including allowances for projected future inflation. The Government shall adjust such maximum amount of total costs for the Authorized Project, in accordance with Section 902 of the Water Resources Development Act of 1986, Public Law 99-662, as amended(33 U.S.C. 2280), when necessary B. Notwithstanding any other provision of this Agreement,the Government shall not incur a new financial obligation or expenditure for the Project, or include in total project costs for the Project any additional contribution provided by the City, if such obligation, expenditure or additional contribution would cause the sum of cumulative project costs for the Project and the cumulative costs for all other separable elements of the Authorized Project to exceed such maximum total costs for the Authorized Project, unless otherwise authorized by law. 35 IN WITNESS WHEREOF,the parties hereto have executed this Agreement,which shall become effective upon the date it is signed by the District Engineer. DEPARTMENT OF THE ARMY CITY OF KENT BY. BY: 4 6ce A. ok Suzette Co&e r n PI f Colonel, Corps of Engineers Mayor District Engineer (} DATE: z-0 DATE: WASHINGTON STATE DEPARTMENT OF NATURAL RESOURCES BY: Pe Goldmark Commissioner of Pa* ands DATE: 9 $ 1 36 Department of Natural Resources Date: 09/23/2011 DELEGATION ORDER During my absence from September 26,2011 to October 3,2011,I hereby delegate to LENNY YOUNG, Department Supervisor,authority to perform the duties I have reserved to be performed exclusively by myself in the current Department of Natural Resources Delegation Order and Appendix to Delegation Order,Delegation of Authority Table,dated March 15, 2011 except as follows; I do not delegate my reserved authority related to Exempt employees specified on Page 3 of the Appendix to Delegation Order, Delegation of Authority Table. I further authorize LENNY YOUNG to execute any agreements or other documents that would require my signature in carrying out the reserved authorities temporarily delegated pursuant to this delegation. cc: Executive Management Team Division and Region Managers Patricia O'Brien, Senior counsel, Attorney General's Office Peggy Murphy, Public Disclosure &Records Larry Raedel, Chief, Law Enforcement Dated this 23`d day of September, 2011 PETER POIC.DMAP COMM OF PUBLIC LANDS CERTIFICATE OF AUTHORITY I, �C3ffkj M tt, do hereby certify that I am the principal legal officer of the City of Kent,that the City of Kent is a legally constituted public body with full authority and legal capability to perform the terms of the Agreement between the Department of the Army,the City of Kent, and the State of Washington Department of Natural Resources in connection with the Duwamish/Green River Park(Riverview Park) Ecosystem Restoration Project, and to pay damages, if necessary, in the event of the failure to perform in accordance with the terms of this Agreement, as required by Section 221 of the Flood Control Act of 1970,Public Law 91-611, as amended (42 U.S.C. 1962d-5b), and that the persons who have executed this Agreement on behalf of the City of Kent have acted within their statutory authority. IN WITNESS WHEREOF,I have made and executed this certification this A day of S� 2011 . Art itzpatrick Deputy City Attorney I 37 i CERTIFICATE OF AUTHORITY i I, Christa L. Thompson, do hereby certify that I am Senior Counsel appointed by the Washington State Attorney General to represent the State of Washington Department of Natural Resources; that the State of Washington Department of Natural Resources is a legally constituted public body with full authority and legal capability to perform the terms of the Agreement between the Department of the Army.the City of Kent, and the State of Washington Department of Natural Resources in connection with the Duwamish/Green River Park (Riverview Park) Ecosystem Restoration Project, and to pay damages, if necessary, in the event of the failure to perform in accordance with the terms of this Agreement, as required by Section 221 of the Flood Control Act of 1970, Public Law 91-611, as amended (42 U.S.C. 1962d-5b), and that the persons who have executed this Agreement on behalf of the State of Washington Department of Natural Resources have acted within their statutory authority. IN WITNESS WHEREOF, I have made and executed this certification this a day of CfAk 20/( . ista L. T ompson Senior Counsel 38 CERTIFICATION REGARDING LOBBYING The undersigned certifies, to the best of his or her knowledge and belief that: (1)No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant. loan, or cooperative agreement. (2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. (3) The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31 U S.C. 1352 Any person who fails to file the required certification shalt be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. CITY 0F4 NT Suzette Cooke, Mayor DATE: 39 l CERTIFICATION REGARDING LOBBYING The undersigned certifies, to the best of his or her knowledge and belief that: (1)No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. (2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement,the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. (3) The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31 U.S.C. 1352. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. STATE OF WASHIN ON,DEPARTMENT OF NATURAL RESOURCES Peter G ark Commissioner of Public s DATE: 9 1 B 1 I 40 W