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PUBLIC WORKS DEPARTMENT
Larry R. Blanchard, Public Works Director
Phone: 253-856-5500
Fax: 253-856-6500
Address: 220 Fourth Avenue S.
Kent, WA 98032-5895
Date: July 17, 2006
To: Chair Debbie Raplee and Public Works Committee Members
PW Committee Meeting Date: July 17, 2006
From: Mike Mactutis, Environmental Engineering Supervisor
Through: Larry Blanchard, Public Works Director
Subject: Lake Meridian Outlet Project Cooperation Agreement
Motion: Required Not Required For Information Only
Recommend authorization for the Mayor to sign the Project Cooperation Agreement
between the City of Kent and the US Army Corps of Engineers for the Lake Meridian
Outlet Project upon concurrence of the language therein by the City Attorney and the
Public Works Director.
Will document be required?
Ordinance Resolution Agreement Contract
Policy SOP’s Other
Governing Policies Procedures Rules & Regulations:
Background/History: The Project Cooperation Agreement is a joint construction partnership
between US Army Corps of Engineers and the City of Kent. The Lake Meridian Outlet project
was first identified as a needed improvement after annexation of the area in 1997 and added to
the Meridian Annexation Capital Improvement Plan in 1999. In October 2000, the U. S. Army
Corps of Engineers (USACE), in partnership with 17 local jurisdictions, non-profit organizations
and the Muckleshoot Indian Tribe, completed the Feasibility Report for the Duwamish / Green
Ecosystem Restoration Project (ERP). The focus of the ERP is the design and construction of 45
habitat restoration projects throughout the Green/Duwamish watershed. The Lake Meridian
Outlet project is one of the first projects proposed for construction with ERP funding. The Lake
Meridian Outlet will improve flow control at the outlet of the lake, restore a portion of the
current channel alignment, enhance wetland habitat and create 2,500 feet of new stream channel
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to Big Soos Creek. The total project cost estimate is $5,742,000. The City’s portion is estimated
at $2,010,000.
Summary: The Project Cooperation Agreement is a joint construction partnership between the
US Army Corps of Engineers and the City of Kent. The agreement includes the extent of
partnership, fiscal obligations, monitoring and adaptive management, and credit value for land,
easements, right-of-ways, relocations, and disposal areas. The agreement commits the City to
pay 35% of the project total cost.
Recommendation: Recommend authorization for the Mayor to sign the Project Cooperation
Agreement between the City of Kent and the US Army Corps of Engineers for the Lake
Meridian Outlet Project upon concurrence of the language therein by the City Attorney and the
Public Works Director
PROJECT COOPERATION AGREEMENT
BETWEEN
THE DEPARTMENT OF THE ARMY
AND
THE CITY OF KENT, WASHINGTON
FOR
CONSTRUCTION
OF THE
LAKE MERIDIAN OUTLET ECOYSYSTEM RESTORATION PROJECT
THIS AGREEMENT is entered into this ___ day of _______________, 20___,
by and between the Department of the Army (hereinafter the "Government"), represented
by the Assistant Secretary of the Army (Civil Works), and the City of Kent, Washington
(hereinafter the "Non-Federal Sponsor"), represented by the Mayor of the City of Kent.
WITNESSETH, THAT:
WHEREAS, construction of the Duwamish/Green River Ecosystem Restoration
Project (hereinafter the “Authorized Project”) at Lake Meridian Outlet, Kent, Washington
for ecosystem restoration was authorized by Section 101(b) (26) of the Water Resources
Development Act of 2000, Public Law 106-541;
WHEREAS, the Government was authorized to perform monitoring and adaptive
management (as defined in Article I.M. and Article I.N. of this Agreement, respectively)
as part of the Authorized Project;
WHEREAS, the Government and the Non-Federal Sponsor desire to enter into a
Project Cooperation Agreement (hereinafter the “Agreement”) for construction of the
Lake Meridian Outlet Ecosystem Restoration Project (a separable element of the
Authorized Project and hereinafter the "Project" as defined in Article I.A. of this
Agreement);
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. Section 2280), establishes the maximum amount of
costs for the Authorized Project and sets forth procedures for adjusting such maximum
amount;
WHEREAS, Section 221 of the Flood Control Act of 1970, Public Law 91-611,
as amended (42 U.S.C. 1962d-5b), and Section 103(j) of the Water Resources
Development Act of 1986, Public Law 99-662, as amended (33 U.S.C. 2213(j)), provide,
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inter alia, that the Secretary of the Army shall not commence construction of any water
resources project, or separable element thereof, until each non-Federal sponsor has
entered into a written agreement to furnish its required cooperation for the project or
separable element;
WHEREAS, the Government and the Non-Federal Sponsor have the full authority
and capability to perform as hereinafter set forth and intend to cooperate in cost-sharing
and financing of the construction of the Project in accordance with the terms of this
Agreement; and
WHEREAS, the Government and the Non-Federal Sponsor, in connection with
this Agreement, desire to foster a partnering strategy and a working relationship between
the Government and the Non-Federal Sponsor 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 Sponsor, and facilitate the successful
implementation of the Project;
NOW, THEREFORE, the Government and the Non-Federal Sponsor agree as
follows:
ARTICLE I -DEFINITIONS AND GENERAL PROVISIONS
A. The term "Project" shall mean ecosystem restoration at Lake Meridian Outlet,
Kent, Washington (a separable element of the Authorized Project) as generally described
in the final report of the Chief of Engineers dated December 29, 2000, and the
“Green/Duwamish River Basin Ecosystem Restoration Study, Final Feasibility Report,”
dated October 2000 and approved by the District Engineer, U.S. Army Corps of
Engineers, Seattle District, on October 30, 2000.
B. The term "total project costs" shall mean the sum of all costs incurred by the
Non-Federal Sponsor 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: preconstruction engineering and
design costs; the Government’s engineering and design costs during construction; the Non-
Federal Sponsor’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.B.1. of this Agreement; the Government’s costs of monitoring in
accordance with Article II.H. and Article II.I. of this Agreement; the Government’s costs of
adaptive management in accordance with Article II.J. and Article II.K. of this Agreement;
the Government’s actual construction costs; the Government’s supervision and
administration costs; the Non-Federal Sponsor’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,
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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 Non-
Federal Sponsor’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, replacement, or rehabilitation 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.B.2. and Article XVII.B.3. of this Agreement;
or the Non-Federal Sponsor’s costs of negotiating this Agreement.
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
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 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 Non-
Federal Sponsor's total cash contribution required in accordance with Article II.B.2. of this
Agreement to total financial obligations for construction, as projected by the Government.
F. The term "highway" shall mean any public highway, roadway, street, or way,
including any bridge thereof.
G. The term "relocation" shall mean providing a functionally equivalent facility to
the owner of an existing 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 removal 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
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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.
K. The term "fiscal year" shall mean one year beginning on October 1 and ending
on September 30.
L. The term “fiscal year of the Non-Federal Sponsor” shall mean one year
beginning on January 1 and ending on December 31.
M. 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.
N. 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 their construction. The term includes, but is not necessarily
limited to, modifications of structures, or adjustments to operation or management, of the
Project.
ARTICLE II - OBLIGATIONS OF THE GOVERNMENT AND THE NON-FEDERAL
SPONSOR
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 Non-Federal Sponsor, shall expeditiously construct the Project, applying those
procedures usually applied to Federal projects, pursuant to 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 Non-Federal Sponsor has confirmed in writing its
willingness to proceed with the Project.
2. The Government shall afford the Non-Federal Sponsor the opportunity
to review and comment on the solicitations for all contracts, including relevant plans and
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specifications, prior to the Government's issuance of such solicitations. To the extent
possible, the Government shall afford the Non-Federal Sponsor 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 Non-
Federal Sponsor 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 Non-Federal Sponsor 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 Non-Federal Sponsor, but the contents of
solicitations, award of contracts, execution of contract modifications, resolution of
contract claims, and performance of all work on the Project 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
Non-Federal Sponsor.
4. Notwithstanding paragraph A.2. 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 own forces, would result in total project costs exceeding $6,500,000,
the Government and the Non-Federal Sponsor 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 own forces until such time as the Government and the
Non-Federal Sponsor 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 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 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 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 Non-Federal Sponsor, may award a contract or contracts, or
continue with construction, monitoring, or adaptive management of the Project using the
Government’s own forces.
5. As of the effective date of this Agreement, $3,352,000 of Federal funds
have been provided by Congress for the Authorized Project of which $500,000 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
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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 Non-Federal Sponsor 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
Sponsor 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
excavated material that the Government determines to be required or to be necessary for
construction, operation, and maintenance of the Project.
2. The Non-Federal Sponsor shall provide additional funds in accordance
with Article VI.B. of this Agreement in the amount necessary to meet the Non-Federal
Sponsor’s required share of 35 percent of total project costs if the Government projects at
any time that the collective value of the following contributions will be less than such
required share: (a) the value of the Non-Federal Sponsor’s contributions under paragraph
B.1. of this Article, as determined in accordance with Article IV of this Agreement; and
(b) the value of the Non-Federal Sponsor’s contributions under Article V, Article X, and
Article XIV.A. of this Agreement.
3. The Government, subject to the availability of funds, shall refund or
reimburse to the Non-Federal Sponsor 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
Non-Federal Sponsor’s contributions under paragraph B.2. of this Article; (b) the value of
the Non-Federal Sponsor’s contributions under paragraph B.1. of this Article, as determined
in accordance with Article IV of this Agreement; and (c) the value of the Non-Federal
Sponsor’s contributions under Article V, Article X, and Article XIV.A. of this Agreement.
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 Non-Federal Sponsor.
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 Non-Federal Sponsor shall be responsible, as between the Government
and the Non-Federal Sponsor, for any costs of cleanup and response in accordance with
Article XIV.C. of this Agreement.
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 Non-Federal Sponsor in writing and
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furnish the Non-Federal Sponsor 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 Non-Federal Sponsor a copy of all final as-built drawings for the entire
Project or such completed portion 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 Non-Federal Sponsor with the final OMRR&R Manual and
all final as-built drawings for the entire Project. In the event the final OMRR&R Manual
or all final as-built drawings for the entire Project cannot be completed within the 6
month period, the Government shall provide written notice to the Non-Federal Sponsor,
and the Government and the Non-Federal Sponsor 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 Written Notices of Acceptance of
Completed Work for all contracts for the Project that have not been provided previously
shall be provided to the Non-Federal Sponsor.
D. Upon notification from the District Engineer in accordance with paragraph C.
of this Article, the Non-Federal Sponsor 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 Non-Federal
Sponsor’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 VI.C. of this Agreement, and furnish the
results to the Non-Federal Sponsor. Further, upon conclusion of the period of construction
the Government shall amend the interim accounting to complete the final accounting, in
accordance with Article VI.C. of this Agreement, and furnish the results to the Non-Federal
Sponsor.
F. The Non-Federal Sponsor 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 Non-Federal Sponsor may request the Government to perform or provide,
on behalf of the Non-Federal Sponsor, 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 Non-Federal Sponsor in a writing that sets forth
any applicable terms and conditions, which must be consistent with this Agreement. In
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the event of conflict between such a writing and this Agreement, this Agreement shall
control. The Non-Federal Sponsor 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 Non-Federal
Sponsor shall be responsible, as between the Government and the Non-Federal Sponsor,
for any costs of cleanup and response in accordance with Article XIV.C. of this
Agreement.
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 a functional portion of the Project, the
Government, in consultation with the Non-Federal Sponsor and, as appropriate, other
concerned agencies, shall finalize the plan for monitoring such functional portion of the
Project. The monitoring plan for each functional portion of the Project shall describe the
specific parameters to be monitored; how these parameters relate to achieving the desired
outcomes and to ascertaining whether adaptive management measures will be necessary;
methods for measuring those parameters; frequency and duration of monitoring for such
functional portion of the Project; criteria for measuring the success of such functional
portion of the Project; preparation and distribution of monitoring reports and other
coordination requirements; and estimated monitoring costs. As of the effective date of
this Agreement, the costs of monitoring of the entire Authorized Project are estimated to
be $20,000.
I. Upon providing notification to the Non-Federal Sponsor that a functional
portion of the Project is complete in accordance with paragraph C. of this Article, the
Government shall perform monitoring such functional portion of the Project in accordance
with the monitoring plan for a period of 5 consecutive years from the date of such
notification. However, the monitoring of such functional portion 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 for any
functional portion of the Project, or continuation of monitoring of the functional portion of
the Project using the Government’s own forces, would result in the costs incurred for
monitoring of the entire Authorized Project exceeding 1 percent of the amount equal to
total project costs of the Project plus the costs for all other separable elements of the
Authorized Project minus the costs for monitoring and adaptive management of the entire
Authorized Project; or (2) the District Engineer determines that continued monitoring of
such functional portion of the Project is not necessary.
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J. Applying the criteria specified in the monitoring plan, the Government shall
determine, for each functional portion of the Project, whether adaptive management of
such functional portion of the Project. The Government may make such a determination
for a functional portion of the Project at any time during the monitoring period described
in paragraph I. of this Article for such functional portion of the Project. Within 120
calendar days after the expiration or termination of such monitoring period for each
functional portion of the Project, the Government shall make a final determination of
whether adaptive management of such functional portion of the Project is necessary. In
making such determinations, the Government shall consult with the Non-Federal Sponsor
and, as appropriate, with other concerned agencies. Upon any determination by the
Government that adaptive management of a functional portion of the Project is
necessary, the Government shall notify the Non-Federal Sponsor 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 the monitoring
period for a functional portion of the Project, the Government determines that adaptive
management for such functional portion of the Project is not necessary, the Government
shall notify the Non-Federal Sponsor in writing of its determination and shall conduct a
final accounting in accordance with paragraph E. of this Article.
K. If the Government determines, pursuant to paragraph J. of this Article, that
adaptive management of a functional portion of the Project is necessary, the
Government, in consultation with the Non-Federal Sponsor and, as appropriate, other
concerned agencies, shall perform adaptive management of such functional portion 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
and functional portion of the Project, or continuation of adaptive management of any
functional portion of the Project using the Government’s own forces, result in the costs
incurred for adaptive management of all the features of the Authorized Project exceeding
3 percent of the amount equal to total ecosystem restoration 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 entire Authorized Project. As of the effective date of this Agreement,
the costs of adaptive management of the entire Authorized Project are estimated to be $0.
2. When the District Engineer determines that adaptive management of a
functional portion of the Project is complete, or that the costs therefor have or will
exceed the 3 percent amount determined in accordance with sub-paragraph 1. of this
paragraph, the District Engineer shall: a) notify the Non-Federal Sponsor in writing of
such completion; b) furnish the Non-Federal Sponsor with an amended OMRR&R
Manual that reflects any modifications to structures or adjustments to operation or
management methods; c) furnish the Non-Federal Sponsor with a copy of any new or
revised as-built drawings for such functional portion of the Project; and d) within 30
calendar days after such notice and in consultation with the Non-Federal Sponsor,
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determine whether to continue monitoring of such functional portion of the Project,
subject to the limits in paragraph I. of this Article, or to 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 Non-Federal Sponsor shall operate, maintain, repair,
rehabilitate, and replace such functional portion of the Project in accordance with Article
VIII of this Agreement.
L. The Non-Federal Sponsor 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 might 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 Sponsor 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.
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 Sponsor, shall
determine the lands, easements, and rights-of-way required for the 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 Sponsor with general
written descriptions, including maps as appropriate, of the lands, easements, and rights-
of-way that the Government determines the Non-Federal Sponsor must provide, in detail
sufficient to enable the Non-Federal Sponsor to fulfill its obligations under this
paragraph, and shall provide the Non-Federal Sponsor with a written notice to proceed
with acquisition of such lands, easements, and rights-of-way. 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 Non-Federal Sponsor shall acquire all
lands, easements, and rights-of-way the Government determines the Non-Federal
Sponsor 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 Non-
Federal Sponsor shall acquire all lands, easements, and rights-of-way required for
construction, operation, and maintenance of the Project, as set forth in such descriptions,
and shall provide the Government with authorization for entry thereto. The Non-Federal
Sponsor 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 Non-Federal
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Sponsor are retained in public ownership for uses compatible with the authorized
purposes of the Project.
B. The Government, after consultation with the Non-Federal Sponsor, 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
Non-Federal Sponsor with general written descriptions, including maps as appropriate, of
such relocations in detail sufficient to enable the Non-Federal Sponsor to fulfill its
obligations under this paragraph, and shall provide the Non-Federal Sponsor 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
Government’s own forces, the Non-Federal Sponsor 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 Non-Federal Sponsor shall perform or ensure
performance of all relocations as set forth in such descriptions.
C. The Government, after consultation with the Non-Federal Sponsor, 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 Non-Federal Sponsor with general written descriptions, including maps as
appropriate, of such improvements in detail sufficient to enable the Non-Federal Sponsor to
fulfill its obligations under this paragraph, and shall provide the Non-Federal Sponsor 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 Non-Federal Sponsor 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 Non-Federal Sponsor shall provide all improvements set forth in
such descriptions.
D. The Non-Federal Sponsor 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 the construction, operation, and maintenance of the Project, including those necessary
for relocations, the borrowing of material, or the disposal of dredged or excavated
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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
Non-Federal Sponsor’s share of total project costs for the value of the lands, easements, and
rights-of-way that the Non-Federal Sponsor must provide pursuant to Article III.A. of this
Agreement; for the value of the relocations that the Non-Federal Sponsor must perform or
for which it must ensure performance pursuant to Article III.B. 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 Non-Federal Sponsor must provide
pursuant to Article III.C. 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-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 rights-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 Non-Federal Sponsor 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 III.B., 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.
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 Non-Federal Sponsor on the effective date of this Agreement shall be
the fair market value of such real property interests as of the date the Non-Federal Sponsor
provides the Government with authorization for entry thereto. The fair market value of
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lands, easements, or rights-of-way acquired by the Non-Federal Sponsor 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.
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 Non-Federal Sponsor shall obtain, for each real property
interest, an appraisal that is prepared by a qualified appraiser who is acceptable to the Non-
Federal Sponsor and the Government. The Non-Federal Sponsor shall provide the
Government with the appraisal no later than 6 months after the Non-Federal Sponsor
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 Non-Federal Sponsor’s appraisal, if such appraisal is approved by the
Government. In the event the Government does not approve the Non-Federal Sponsor’s
appraisal, the Non-Federal Sponsor may obtain a second appraisal, and the fair market value
shall be the amount set forth in the Non-Federal Sponsor’s second appraisal, if such
appraisal is approved by the Government. In the event the Government does not approve
the Non-Federal Sponsor’s second appraisal, the Non-Federal Sponsor chooses not to obtain
a second appraisal, or the Non-Federal Sponsor 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 Non-Federal Sponsor. In the event the Non-Federal Sponsor does not
approve the Government’s appraisal, the Government, after consultation with the Non-
Federal Sponsor, shall consider the Government’s and the Non-Federal Sponsor’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 Non-Federal
Sponsor 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 Non-Federal Sponsor, shall
consider all factors relevant to determining fair market value and, in its sole discretion, after
consultation with the Non-Federal Sponsor, 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
Non-Federal Sponsor, 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 Non-Federal Sponsor, 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
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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 Non-Federal Sponsor shall use the amount set forth
in such appraisal as the estimate of just compensation for the purpose of instituting the
eminent 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
Non-Federal Sponsor 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 Non-Federal Sponsor agree as to an
appropriate amount, then the Non-Federal Sponsor 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 Non-Federal Sponsor cannot agree as
to an appropriate amount, then the Non-Federal Sponsor may use the amount set forth in its
appraisal as the estimate of just compensation for the purpose of instituting the eminent
domain proceeding.
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
Non-Federal Sponsor 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 costs. In the event the
Government modifies its determination made pursuant to Article III.A. 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 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 Non-Federal Sponsor 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 Non-Federal
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Sponsor 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 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 Non-Federal Sponsor 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 Non-Federal Sponsor, 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.
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
administration 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.C. of this Agreement to determine reasonableness,
allocability, and allowability of 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
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,
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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 Non-Federal Sponsor’s failure to comply with its obligations under
these laws.
G. Where the Government, on behalf of the Non-Federal Sponsor 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 Non-Federal Sponsor 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 Non-Federal Sponsor in accordance with the terms and 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 costs.
ARTICLE V - PROJECT COORDINATION TEAM
A. To provide for consistent and effective communication, the Non-Federal
Sponsor and the Government, not later than 30 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
Non-Federal Sponsor shall co-chair the Project Coordination Team.
B. The Government's Project Manager and the Non-Federal Sponsor'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 issues 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
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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
and improvements required on lands, easements, and rights-of-way to enable the disposal
of dredged or excavated material; the investigations to identify the existences 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
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,
replacement, and rehabilitation of the Project including the 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 Non-
Federal Sponsor.
D. The Project Coordination Team may make recommendations to the District
Engineer on matters related to the Project that the Project 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
Government, having the legal authority and responsibility for construction of the Project,
has the discretion to accept or reject, in whole or in part, the Project Coordination Team's
recommendations.
E. The Non-Federal Sponsor’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 allowability of 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.
ARTICLE VI - METHOD OF PAYMENT
A. In accordance with the provisions of this paragraph, the Government shall
maintain current records, and provide to the Non-Federal Sponsor current projections of,
costs, financial obligations, contributions provided by the parties, and the value included
in total project costs for 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 determined in accordance with Article IV of this
Agreement.
1. As of the effective date of this Agreement, total project costs are
projected to be $5,742,000; the Non-Federal Sponsor’s contribution of funds required by
Article II.B.2. of this Agreement is projected to be $2,010,000; the non-Federal
proportionate share is projected to be 35 percent; the Non-Federal Sponsor’s
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contribution of funds required by Article XVII.B.3. of this Agreement is projected to be
$_0_; the value included in total project costs for 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 determined in accordance with
Article IV of this Agreement is projected to be $847,000; and the Government’s total
financial obligations for the additional work to be incurred and the Non-Federal
Sponsor’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 Non-Federal Sponsor, and are not to be
construed as the total financial responsibilities of the Government and the Non-Federal
Sponsor.
2. By January 1 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 Non-Federal Sponsor
with a report setting forth all contributions provided to date and the current projections of
the following: total project costs; the Non-Federal Sponsor’s total contribution of funds
required by Article II.B.2. of this Agreement; the non-Federal proportionate share; the
Non-Federal Sponsor’s total contribution of funds required by Article XVII.B.3. of this
Agreement; the total contribution of funds required from the Non-Federal Sponsor for the
forthcoming fiscal year; the maximum amount determined in accordance with Article
XIX of this Agreement; the value included in total project costs for 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 determined in
accordance with Article IV of this Agreement; and the Government’s total financial
obligations for additional work incurred and the Non-Federal Sponsor’s contribution of
funds for such costs required by Article II.G. of this Agreement.
B. The Non-Federal Sponsor shall provide the contributions of funds required by
Article II.B.2. and Article XVII.B.3. 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 Non-Federal Sponsor in writing of such scheduled date and the funds the
Government determines to be required from the Non-Federal Sponsor 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 through the first quarter;
and (c) the Non-Federal Sponsor’s share of the projected financial obligations for data
recovery activities associated with historic preservation pursuant to Article XVII.B.3. of
this Agreement to be incurred in the first quarter; or, if use of a continuing contract has
been approved pursuant to Federal laws, regulations and policies, the Non-Federal
Sponsor’s share of the projected financial obligations for data recovery activities
associated with historic preservation pursuant to Article XVII.B.3. of this Agreement
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through the first quarter. Not later than such scheduled date, the Non-Federal Sponsor
shall provide the Government with the full amount of the 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 Non-Federal Sponsor has deposited the
required funds in an escrow or other account acceptable to the Government, with interest
accruing to the Non-Federal Sponsor, or by presenting the Government with an
irrevocable letter of credit acceptable to the Government for the required funds, or by
providing an Electronic Funds Transfer of the required funds in accordance with
procedures established by the Government.
2. Thereafter, until the construction of the Project is complete, the
Government shall notify the Non-Federal Sponsor in writing of the funds the Government
determines to be required from the Non-Federal Sponsor, and the Non-Federal Sponsor
shall provide such funds in accordance with the provisions of this paragraph.
a. Where the Government will use a continuing contract approved
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 XVII.B.3. of this Agreement, the
Government shall notify the Non-Federal Sponsor in writing, no later than 60 calendar
days prior to the beginning of each quarter in which the Government projects that it will
make such financial obligations, of the funds the Government determines to be required
from the Non-Federal Sponsor to meet: (a) the projected non-Federal proportionate
share of financial obligations for construction to be incurred in that quarter for such
continuing contract and (b) the Non-Federal Sponsor’s share of the projected financial
obligations for data recovery activities associated with historic preservation pursuant to
Article XVII.B.3. of this Agreement for that quarter for such continuing contract. No
later than 30 calendar days prior to the beginning of that quarter, the Non-Federal
Sponsor shall make the full amount of the required funds for that quarter 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 XVII.B.3. of this Agreement, the Government shall notify the Non-Federal
Sponsor 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 Non-Federal Sponsor to meet: (a) the projected non-Federal
proportionate share of financial obligations for construction to be incurred for such
contract and (b) the Non-Federal Sponsor’s share of the projected financial obligations
for data recovery activities associated with historic preservation pursuant to Article
XVII.B.3. of this Agreement to be incurred for such contract. No later than such
scheduled date, the Non-Federal Sponsor shall make the full amount of such required
funds available to the Government through any of the payment mechanisms specified in
paragraph B.1. of this Article.
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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.B.3. of this Agreement using the Government’s own forces, the
Government shall notify the Non-Federal Sponsor in writing, no later than 60 calendar
days prior to the beginning of each quarter in which the Government projects that it will
make such financial obligations, of the funds the Government determines to be required
from the Non-Federal Sponsor to meet: (a) the projected non-Federal proportionate
share of financial obligations for construction using the Government’s own forces for
that quarter and (b) the Non-Federal Sponsor’s share of the projected financial
obligations for data recovery activities associated with historic preservation pursuant to
Article XVII.B.3. of this Agreement using the Government’s own forces for that quarter.
No later than 30 calendar days prior to the beginning of that quarter, the Non-Federal
Sponsor shall make the full amount of such required funds for that quarter 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 Non-
Federal Sponsor such sums as the Government deems necessary 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 Non-Federal Sponsor’s share of financial obligations for data
recovery activities associated with historic preservation pursuant to Article XVII.B.3. of
this Agreement as those financial obligations are incurred. If at any time the Government
determines that additional funds will be needed from the Non-Federal Sponsor to cover
the Non-Federal Sponsor’s share of such financial obligations in the current quarter, the
Government shall notify the Non-Federal Sponsor 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 Non-Federal Sponsor shall provide the
Government with the full amount of the 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 resolution of all relevant claims
and appeals and eminent domain proceedings, the Government shall conduct an interim
accounting and furnish the results to the Non-Federal Sponsor. 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 Non-Federal Sponsor. If outstanding relevant
claims and appeals or eminent domain proceedings prevent a final accounting from being
conducted in a timely manner, the Government shall amend the previous interim
accounting and furnish the Non-Federal Sponsor with written notice of the results of such
amended interim accounting. Once all outstanding relevant claims and appeals and
eminent domain proceedings are resolved, the Government shall amend the interim
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accounting to complete the final accounting and furnish the Non-Federal Sponsor 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
Non-Federal Sponsor’s total required share of total Project costs and the costs of any data
recovery activities associated with historic preservation exceed the Non-Federal
Sponsor’s total contributions provided thereto, the Non-Federal Sponsor, 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 Non-Federal Sponsor for total Project costs and the
costs of any data recovery activities associated with historic preservation exceed the Non-
Federal Sponsor’s total required shares thereof, the Government, subject to the availability
of funds shall refund or reimburse the excess amount to the Non-Federal Sponsor within
90 calendar days of the date of completion of such accounting. In the event the Non-
Federal Sponsor is due a refund or reimbursement and funds are not available to refund
or reimburse the excess amount to the Non-Federal Sponsor, the Government shall seek
such appropriations as are necessary to make the refund or reimbursement.
D. The Non-Federal Sponsor 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 30 calendar days prior to the scheduled date for the first
financial obligation for additional work, the Government shall notify the Non-Federal
Sponsor in writing of such scheduled date and of the full amount of funds the
Government determines to be required from the Non-Federal Sponsor 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 Non-Federal Sponsor 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 Non-
Federal Sponsor 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 Non-Federal Sponsor must provide
additional funds to pay for such additional work, the Government shall notify the Non-
Federal Sponsor in writing of the additional funds required and provide an explanation of
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why additional funds are required. Within 30 calendar days from receipt of such notice,
the Non-Federal Sponsor shall provide the Government with the full amount of the
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 Non-Federal Sponsor 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 Non-Federal Sponsor 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 Non-Federal Sponsor 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 Non-Federal
Sponsor’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 Non-Federal Sponsor for such additional work, the Non-Federal Sponsor, 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 Non-Federal Sponsor 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 Non-Federal Sponsor within
90 calendar days of the date of completion of such accounting. In the event the Non-
Federal Sponsor is due a refund and funds are not available to refund the excess amount
to the Non-Federal Sponsor, 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 party 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
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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.
ARTICLE VIII - OPERATION, MAINTENANCE, REPAIR, REHABILITATION,
AND REPLACEMENT (OMRR&R)
A. Upon receipt of the notification from the District Engineer in accordance with
Article II.C. of this Agreement and for so long as the Project remains authorized, the Non-
Federal Sponsor, 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 Non-Federal Sponsor 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 Non-Federal Sponsor hereby gives the Government a right to enter, at
reasonable times and in a reasonable manner, upon property that the Non-Federal Sponsor
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. If an inspection shows that the Non-Federal Sponsor 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 Non-Federal Sponsor. If, after 30
calendar days from receipt of such written notice by the Government, the Non-Federal
Sponsor 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 Non-Federal Sponsor
now or hereafter owns or controls 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 Non-Federal
Sponsor of responsibility to meet the Non-Federal Sponsor’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
Subject to the provisions of Article XX of this Agreement, the Non-Federal
Sponsor shall hold and save the Government free from all damages arising from the
construction, monitoring, adaptive management, operation, maintenance, repair,
replacement, and rehabilitation of the Project and any betterments, except for damages
due to the fault or negligence of the Government or their contractors.
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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 Non-Federal Sponsor 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 Non-Federal Sponsor 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 Non-Federal Sponsor 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 Non-Federal Sponsor 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 Non-Federal Sponsor
and to the extent permitted under applicable Federal laws and regulations, the Government
shall provide to the Non-Federal Sponsor and independent auditors any information
necessary to enable an audit of the Non-Federal Sponsor’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 Non-Federal Sponsor 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
Non-Federal Sponsor 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
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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)).
ARTICLE XII - RELATIONSHIP OF PARTIES
A. In the exercise of their respective rights and obligations under this Agreement,
the Government and the Non-Federal Sponsor each act in an independent capacity, and
neither is to be considered the officer, agent, or employee of the others.
B. In the exercise of its rights and obligations under this Agreement, neither party
shall provide, without the consent of the other party, any contractor with a release that
waives or purports to waive any rights the other party may have to seek relief or redress
against that contractor either pursuant to any cause of action that the other party may have or
for violation of any law.
ARTICLE XIII - TERMINATION OR SUSPENSION
A. If at any time the Non-Federal Sponsor fails to fulfill its 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.B.2. and Article XVII.B.3. 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 Non-Federal Sponsor 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 Non-Federal Sponsor 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.B.2. and Article XVII.B.3. of this Agreement the
Government projects to be incurred through the then-current or upcoming fiscal year, or
the Government or the Non-Federal Sponsor elects to terminate this Agreement.
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C. In the event that the Government and the Non-Federal Sponsor 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
Non-Federal Sponsor 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 Non-Federal
Sponsor on whether to proceed or to terminate this Agreement, or the failure of the Non-
Federal Sponsor to provide funds to pay for cleanup and response costs or to otherwise
discharge the Non-Federal Sponsor’s responsibilities under Article XIV.C. of this
Agreement, such suspension shall remain in effect until: 1) the Government and Non-
Federal Sponsor reach agreement on how to proceed or to terminate this Agreement; 2)
the Non-Federal Sponsor provides funds necessary to pay for cleanup and response costs
and otherwise discharges its responsibilities under Article XIV.C. 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 Non-Federal Sponsor in accordance with Article II.B.2 and Article XVII.B.3. 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 Non-Federal Sponsor 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.
ARTICLE XIV - HAZARDOUS SUBSTANCES
A. After execution of this Agreement and upon direction by the District Engineer,
the Non-Federal Sponsor shall perform, or ensure performance of, any investigations for
hazardous substances that the Government or the Non-Federal Sponsor 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,
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easements, 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 Non-Federal Sponsor with prior specific written direction, in which
case the Non-Federal Sponsor shall perform such investigations in accordance with such
written direction.
1. All actual costs incurred by the Non-Federal Sponsor 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
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 Non-Federal Sponsor and the Government, in addition to providing any other
notice required by applicable law, shall provide prompt written notice to each other, and the
Non-Federal Sponsor shall not proceed with the acquisition of the real property interests
until the parties agree that the Non-Federal Sponsor should proceed.
C. The Government and the Non-Federal Sponsor 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 Non-Federal Sponsor determine to initiate or continue with
construction of the Project after considering any liability that may arise under CERCLA, the
Non-Federal Sponsor shall be responsible, as between the Government and the Non-Federal
Sponsor, 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 Non-Federal
Sponsor 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 Non-Federal Sponsor’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.
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D. The Non-Federal Sponsor 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 paragraph C. of this Article shall not relieve any third party from any liability
that may arise under CERCLA.
E. As between the Government and the Non-Federal Sponsor, the Non-Federal
Sponsor shall be considered the operator of the Project for purposes of CERCLA liability.
To the maximum extent practicable, the Non-Federal Sponsor 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 Non-Federal Sponsor:
Public Works Department
City of Kent
220 Fourth Avenue S.
Kent, WA 98032-5895
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 party 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.
ARTICLE XVI - CONFIDENTIALITY
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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. The Government, as it determines necessary for the Project, shall perform any
identification, survey, or evaluation of historic properties. 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. 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. 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.
3. The Government shall not incur costs for data recovery activities
associated with historic preservation that exceed the statutory one percent limit specified in
paragraph B.2. 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.C.
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 Non-Federal Sponsor and the Government consistent with the cost sharing
requirements for ecosystem restoration, as follows: 35 percent will be borne by the Non-
Federal Sponsor and 65 percent will be borne by the Government.
C. If, during its performance of relocations or 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, the Non-Federal
Sponsor discovers historic properties or other cultural resources that have not been evaluated
by the Government pursuant to this Article, the Non-Federal Sponsor shall not proceed with
performance of the relocation or construction of the improvement that is related to such
discovery until the Government provides written notice to the non-Federal Sponsor that it
should proceed with such work.
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ARTICLE XVIII - THIRD PARTY RIGHTS, BENEFITS, OR LIABILITIES
Nothing in this Agreement is intended, nor may be construed, to create any rights,
confer any benefits, or relieve any liability, of any kind whatsoever in any third person
not party to this Agreement.
ARTICLE XIX - SECTION 902 MAXIMUM COST OF PROJECT
A. The Non-Federal Sponsor 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
$196,763,000, as calculated in accordance with Engineer Regulation 1105-2-100, using
October 1, 2006 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 Non-Federal Sponsor, 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.
ARTICLE XX - OBLIGATIONS OF FUTURE APPROPRIATIONS
A. Nothing herein shall constitute, nor be deemed to constitute, an obligation of
future appropriations by the City of Kent of the State of Washington, where creating such
an obligation would be inconsistent with R.C.W. 35A.33.120, the Constitution of the
State of Washington, or the Kent City Code.
B. The Non-Federal Sponsor intends to satisfy its obligations under this
Agreement. The Non-Federal Sponsor shall include in its budget request or otherwise
propose appropriations of funds in amounts sufficient to fulfill these obligations for that
fiscal biennium, and shall use all reasonable and lawful means to secure those
appropriations. The Non-Federal Sponsor reasonably believes that funds in amounts
sufficient to fulfill these obligations lawfully can and will be appropriated and made
available for this purpose. In the event funds are not appropriated in amounts sufficient
to fulfill these obligations, the Non-Federal Sponsor shall use its best efforts to satisfy
any requirements for payments or contributions of funds under this Agreement from any
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other source of funds legally available for this purpose. Further, if the Non-Federal
Sponsor is unable to fulfill these obligations, the Government may exercise any legal
rights it has to protect the Government’s interests related to this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
which shall become effective upon the date it is signed by the Assistant Secretary of the
Army (Civil Works).
DEPARTMENT OF THE ARMY KENT, WASHINGTON:
BY: ___________________________ BY: __________________________
Suzette Cooke
Commander Mayor
Seattle District City of Kent
DATE: _________________________ DATE: ________________________
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CERTIFICATE OF AUTHORITY
I, Arthur Fitzpatrick, Deputy City Attorney, do hereby certify that I am the principal
legal officer of the City of Kent, Washington, that the City of Kent, Washington 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 and the City of Kent in connection with
the Meridian Valley Creek Ecosystem Restoration Project, and to pay damages in
accordance with the terms of this Agreement, if necessary, in the event of the failure to
perform, as required by Section 221 of Public Law 91-611 (42 U.S.C. Section 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
______________ day of _____________ 20___.
Arthur Fitzpatrick
Deputy City Attorney
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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 Section 1352, Title
31, U. S. Code. 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.
KENT, WASHINGTON
Suzette Cooke, Mayor
DATE: ______________________________
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CERTIFICATE OF LEGAL REVIEW
The Project Cooperation Agreement for Construction of the Lake Meridian Outlet
Ecosystem Restoration Project at the City of Kent, Washington, part of the
Duwamish/Green River Basin Ecosystem Restoration Project, was fully reviewed by the
Office of Counsel, USAED, Seattle District, Seattle, Washington. This PCA uses version
10C of the draft ecosystem restoration and recreation model PCA, with references to
recreation eliminated consistent with version 3C of the draft ecosystem restoration model
without recreation. Version 10C was used because it has the most current language,
particularly relating to Article XVII. The draft models were used on the advice of Kim
Smith, CECW-PC. There are no deviations in this PCA from the draft models.
Date: ________________ ___________________________________
Assistant District Counsel
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