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HomeMy WebLinkAbout4558RESOLUTION NO. 4 5 5 8 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE AN INTERLOCAL AGREEMENT BETWEEN THE CITY OF AUBURN AND THE DEPARTMENT OF THE ARMY FOR DESIGN OF THE MILL CREEK WETLAND 5K RESTORATION PROJECT WHEREAS, U.S. Army Corps of Engineers has received federal funding to initiate design of the Green Duwamish Ecosystem Restoration Project at King County, Washington; and WHEREAS, under the Water Resources Development Act of 1986, local governments wishing to have such projects constructed within their jurisdictions must contribute a portion of the project design costs; and WHEREAS, Mill Creek lies within the Green Duwamish Project area and a portion of Mill Creek is located in the City of Auburn; and WHEREAS, the Auburn City Council finds that restoration of that portion of Mill Creek located within the City will benefit the citizens of Auburn by enhancing flood control within the City and by improving fish habitat; and WHEREAS, the Auburn City Council previously adopted Resolution No. 4315 authorizing the execution of an Agreement between the City of Auburn and the Department of the Army for design of the Mill Creek Restoration Project and that Agreement was not executed as a result of subsequent changes to the amount and availability of federal funding for the project; and WHEREAS, the project described in the Agreement has subsequently been revised from the preliminary design of restoration of four reaches of Mill --------------------------- Resolution No. 4558 January 12, 2010 Page 1 of 3 Creek as described in the Project Management Plan for Mill Creek Restoration, Green Duwamish Ecosystem Restoration Project dated August 27, 2007, to a full (100%) design for the restoration of the Wetland 5K Reach of Mill Creek as described in the Project Management Plan for Wetland 5K Reach Mill Creek Restoration, Green Duwamish Ecosystem Restoration Project dated November 18,2009 -land WHEREAS, the City of Auburn has received $180,000 from the King Conservation District to be used for the City of Auburn's non-federal sponsor match funds required by the Agreement; and WHEREAS, the City of Auburn is scheduled to receive an additional $20,000 from the King Conservation District upon completion of the project to be used for the City of Auburn's non-federal sponsor match funds required by the Agreement; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, KING COUNTY, WASHINGTON, HEREBY RESOLVES as follows: Section 1. The Mayor of the City of Auburn and the Auburn City Clerk are hereby authorized to execute an Agreement between the City of Auburn and the Department of the Army for design of the Mill Creek Wetland 5K Restoration Project, which agreement shall be in substantial conformity with the Agreement attached hereto, marked as Exhibit "A" and incorporated herein by this reference. Resolution No. 4558 January 12, 2010 Page 2 of 3 Section 2. The Mayor is hereby authorized to implement such administrative procedures as may be necessary to carry out the directives of this legislation. Section 3. This resolution shall be in full force and effect upon passage and signatures hereon. Dated and Signed this day of 12010. CITY OF PETER B. LEWIS MAYOR ATTEST: Danielle E. Daskam, City Clerk •••'• • • /0 � �= FAT, • Resolution No. 4558 January 12, 2010 Page 3 of 3 Design Agreement For Wetland 5K react, Mill Creels restoration A Separable Element of the Green Duivamish Ecosystem Restoration Project U.S. Army Corps of Engineers — Seattle District 10 December 2009 Design Agreement For Wetiand 5K Reach Mill Creek Restoration A Separable Element of the Green Duwamish Ecosystem Restoration Project U.S. Army Corps of Engineers — Seattle District Tab 1. Information Paper Tab 2. Project Management Plan Tab 3. Design Agreement Tab 4. Non -Federal Sponsor's Self -Certification of Financial Capability Tab 5. Certificate of Legal Review Information Paper U.S. Army Corps of Engineers, Seattle District DATE: 8 December 2009 PROJECT NAME: Duwamish/Mill Creek Wetland 5K Ecosystem Restoration Project PROJECT LOCATION: The majority of the project area is located within the jurisdictional boundaries of the City of Auburn, in the lower Green River Sub -Watershed of the Green/Duwamish Basin, WA. A majority of Mill Creek runs adjacent to SR 167 on the west side. The Wetland 5K reach extends fi-om Main Street on the west side of SR 167 to the crossing of Mill Creek with SR 167. PROJECT MANAGER: Kristen Kerns, 206-764-3474, kristen.kerns@usace.aliny.mil CONGRESSIONAL DISTRICT: 8 PROJECT DESCRIPTION: The project goal is to create a natural habitat for rearing and storm refuge for multiple species of fish and wildlife. The project will restore the stream to its natural channel, provide shading with new plantings, and remove non-native invasive species. In many areas of Mill Creek the stream is straight, shallow, and does not offer quality riparian vegetation and in -channel structure. Thus, these areas are not able to function effectively as a rearing habitat and storm refuge channel for Endangered Species Act listed Chinook Salmon and Bull Trout. Mill Creek historically served as vital habitat for migrating salmon and provided ideal conditions for rearing and storm refuge. Due to agricultural and industrial activity, the Mill Creek region has lost this critical habitat. The Feasibility Report for the Duwamish/Green Ecosystem Restoration Project included recommendations for restoring select separable reaches of Mill Creek: Wetland 5K, Merlino, and Schuler Brothers. Restoration actions to improve rearing habitat and storm refuge at each of these sites would include: riparian enhancements, channel relocation and reconstruction, and woody debris additions. (Merlin and Schuler Brothers reaches will be covered under separate PMPs developed at a later date, in conjunction with the execution of separate Design Agreements.) STATUS: The project is fully scoped and waiting to execute a Design Agreement in order to initiate advanced design. NON-FEDERAL SPONSOR: City of Auburn, Washington. AUTHORITY: Section 101(b)(26) of the Water Resources Development Act of 2000, Public Law 106-541 Project Management Plan For Wetland 5K Reach Mill Creek Restoration, A Separable Element of the Green Duwamish Ecosystem Restoration Project U.S. Army Corps of Engineers — Seattle District November 18, 2009 Acronyms ATR Agency Technical Review BA Biological Assessment DA Design Agreement DQC District Quality Control EA Environmental Assessment ERS Environmental Resources HTRW Hazardous, Toxic, Radioactive Waste H&H Hydrology and Hydraulics ILC Inter -local Cooperation Agreement JARPA Joint Aquatic Resource Permit Application LERRD Land, Easements, Right of Way, Rights of Disposal MCASES Micro Computer Aided Cost Estimating System NEPA National Environmental Protection Act O&M Operation and Maintenance PMP Project Management Plan PM Project Manager PPA Project Partnership Agreement PSAWR Puget Sound and Adjacent Waterways Restoration P2 Primavera Project Manager RE Real Estate SR State Route TBD To Be Determined WRDA Water Resources Development Act I. PROJECT OVERVIEW 1. Name Duwamish/Wetland 5K Reach of Mill Creek Ecosystem Restoration P2 Project Number: 142691 2. Location The majority of the project area is located within the jurisdictional boundaries of the City of Auburn, in the lower Green River Sub -Watershed of the Green%DUwamish Basin, WA. A majority of Mill Creek runs adjacent to SR 167 on the west side. The Wetland 5K reach extends from Main Street on the west side of SR 167 to the crossing of Mill Creek with SR 167. Figure 1. Confluence of Mill Creek and the Green River 3. Local Sponsor City of Auburn 4. Authority This project is a separable element of the Duwamish/Green Ecosystem Restoration Project, authorized by Section 101(b)(26) of the Water Resources Development Act of 2000, Public Law 106-541 in accordance with the plans, and subject to the conditions, recommended in a final report of the Chief of Engineers if a favorable report of the Chief is completed not later than December 31, 2000. A favorable final report of the Chief of Engineers was completed on December 29, 2000. 5. Project Overview Mill Creek historically served as vital habitat for migrating salmon and provided ideal conditions for rearing and storm refuge. Due to agricultural and industrial activity, the Mill Creek region has lost this critical habitat. The Feasibility Report for the Duwamish/Green Ecosystem Restoration Project included recommendations for restoring select separable reaches of Mill Creek: Wetland 5K, Merlino, and Schuler Brothers. Restoration actions to improve rearing habitat and storm refuge at each of these sites would include: riparian enhancements, channel relocation and reconstruction, and woody debris additions. The overall restoration would extend from just upstream of the confluence with the Green River, to just downstream of Peasley Canyon, on the west side of SR 167. The Geodeke reach, located south of Wetland 5K on Mill Creek, was previously included in the overall recommendation; however, restoration of this site was completed by the Washington State Department of Transportation without Corps involvement. Therefore, the Geodeke reach is no longer considered for project implementation. For this PMP, the scope will only focus on the Wetland 5K reach. The other two reaches will be covered under separate PMPs developed at a later date, in conjunction with the execution of separate Design Agreements. 6. Project Background The Green-Duwamish Ecosystem Restoration Project was authorized in WRDA 2000. A conceptual design and cost estimate was prepared in the feasibility phase. The Green- Duwamish Ecosystem Restoration Project gained construction New Start capability in the Water and Energy Act of 2003. I1. PROJECT SCOPE 1. Project Needs In many areas of Mill Creek the stream is straight, shallow, and does not offer quality riparian vegetation and in -channel structure. Thus, these areas are not able to function effectively as a rearing habitat and storm refuge channel for Endangered Species Act listed Chinook Salmon and Bull Trout. 2. Project Goal / Objective The goal of the project is to create a natural habitat for rearing and storm refuge for multiple species of fish and wildlife. The project will restore the stream to its natural channel, provide shading with new plantings, and remove non-native invasive species. 3. Planning Constraints and Objectives • The project must be acceptable to the Corps, the sponsor, and other project stakeholders. • The plan needs to be cost effective • Operation and maintenance costs are acceptable to the local sponsor • The project is feasible for construction (fully permitted, politically acceptable, physically possible, real estate is available) • The project is acceptable for environmental compliance 4. Project Delivery Team a) Corps responsibilities. The Corps of Engineers will provide technical expertise in the areas of engineering, planning, and environmental analysis for the purpose of furthering the project during all phases. The Corps will also provide project management and guidance, such as coordination with agencies and local groups, attendance of site visits, and legal guidance. Prior to project construction, the Corps and the City of Auburn will sign the Design Agreement and Project Partnership Agreement, which will set forth the Corps' and City of Auburn's responsibilities. 4 b) Sponsor Responsibilities. The local sponsor should, at minimum, provide a project manager and project management support, such as regular attendance at meetings with the project team, site visits, technical reviews, and guidance on local project goals. The local sponsor should inform the project team of local issues that may affect the viability of the project. The sponsor should provide all background information available including technical reports, surveys, etc. The local sponsor should also provide all necessary lands, easements, rights of way, and rights of entry for the project site. The sponsor must be willing and able to provide 25% of the total estimated design phase costs after signing a Design Agreement, and 35% of total estimated construction costs after signing the Project Partnership Agreement with the Corps. Real estate owned or easements obtained by the sponsor at a given restoration site can be credited toward the local cost match. The Corps will credit real estate and cash, in that order, so that the local sponsor can fulfill their cost share requirements. The local sponsor is responsible for 100% of the project operations, maintenance, repair, rehabilitation, and replacement. Per sections 2003 and 3163 in WRDA 2007, the sponsor is also eligible to receive in-kind crediting to supplement the cash contribution for design and construction related activity performed after the signing of the applicable cost sharing agreement, provided certain conditions are satisfied. Provisions for in- kind crediting are outlined in EC 1165-2-208, In -Kind Contribution Provisions of Section 221, 6 June 2008. If in-kind crediting is requested an integral determination letter report will be drafted and in-kind language will be incorporated into the appropriate cost share agreement. Pro'ect Develop ent Team: Name Discipline: Office S vmbol Phone Email Noel Gilbrough Program Manager NWS -PM -CP -CJ (206) 764-3652 noel. ilbrou h(iusace.arm nii1 Kristen Kerns Planner/Project Manager MWS -PM -PL -PF (206) 764-3474 Kristen.kerns ahisace.arm _[nil Chris Andersen City of Auburn — Project Manager City of Auburn (253) 876-1962 canderscn ii)auburu.iva. iov Andrea Cummins Biologist NWS -PM -PL -ERS (206) 764-3641 andrea.k.cummins -a) usace.arm .mil Program Analyst Li -Shine Line NWS -PM -CP -CM (206) 764-3786 Li-Shine.Lina usace.arm _mil Budget Analyst Pat Bauccio NWS -PM -CP -CJ (206) 764-3602 Patricia. m.bauccio usace.army.mil Lyz Ellis Cultural Resources NWS -PM -PL -ER (206) 764-3634 Elizabeth.a.ellis ahisace.armv.IniI Lee Ford Civil Engineer NWS -PM -PL -ER (206)764-3765 L,ee.ford ' usace.ann .mil Paul Hansen H draulic Engineer NWS -EC -TB -HE (206)764-3596 Paul.d.hansen &usace.arm .mil Kurt Friederich Cost Estimator NWW-EC-X (509) 527-7512 Kurt.o.friederich'abusace.army.ntil Greg Segal Geoteclmical Engineer EC -DB -CS (206)764-3712 (ire gor .i.se gal (Uusace.arm),.mil John Killeagle HTRW Specialist EC -TB -ET 206-764-6875 Jolmnie.l.killea le rat usace.arm .mil Kevin Kane Real Estate RE -RS (206) 764-6652 Kevin.l.kane tisace.arm .mil Alfred Chai Appraiser RE -AP (206)764-3560 Alfred.t.chai &_usace.arm .mii Sue Leong Office of Council OC (206 764-3731 Sue..leon T rDusace.arm .mil TBD Construction Re Oscar Eason Value Engineer PM (206)764-36840scar.eason.ir &usace.ariii.mil 5. Executive Committee and Vertical Team. Members of the Executive Committee are identified below. Meetings of the Executive Committee will be scheduled, at a minimum, on an annual basis. More frequent meetings will be scheduled, as required. Members of the Vertical Team include the Seattle District Commander, Chief of Planning, Chief of Program and Project Management, the project manager, Division Planning, and Headquarters Planning. Technical management will be included in the Vertical Team from the District, Division, and Headquarters as appropriate. The Vertical Team comprises the project Regional Integration Team, or RIT. The Sponsor is also represented at RIT meetings along with appropriate agencies and stakeholders. The Vertical Team resolves issues of Corps policy. Executive Committee Name Position TBD Sponsor Executive Colonel Anthony Wright Corps, Seattle District Commander Mona Thomason Corps, Chief, Planning Branch, Seattle Beth Coffey Corps, Chief, Program and Project Management Branch, Seattle Noel Gilbrough Corps, Project Manager, Civil Projects, Seattle Chris Andersen Sponsor Project Manager 6. Project Phases Overview There are four project phases: Initiation; Initial Design; Advanced Design & Plans & Specifications; and Construction & Post -construction Monitoring. Design of the Wetland 5k reach will go from conceptual to 65% then 95%. Bypassing or shortening intermediate levels of design is justified due to the simplicity of the project scope and construction. This will help to streamline the process and reduce cost. After the design phase is completed, the Project Partnership Agreement will be signed. Phase 1: Initiation 1. Organize team and roles 2. Select most viable reach to initiate design based on land ownership (Wetland 5K) 3. Determine project scope & budget 4. Develop Project Management Plan Phase 2: Initial Design 1. Sign Design Agreement a. Design cost shared 75% federal, 25% non-federal. Cost share due after execution & according to payment plan in agreement 2. Develop Design Study Costs 3. Develop Environmental Documents 4. Begin Real Estate Process (complete first draft real estate drawing(s) 5. Develop conceptual design with sponsor and resource agencies 6. Determine construction phasing 7. Based on design and cost estimate work with local sponsor on construction phasing 8. Conduct Value Engineering Phase 3: Advanced Design, Plans, and Specifications 1. Complete Right of way Activities 2. Complete, 65%, 95%, and final design 3. Complete Plans & Specifications 4. Prepare and Sign Project Partnership Agreement a. Construction Cost shared 65% Corps 35% City b. Outline design and construction efforts for the additional two reaches 5. Certify LEERD available 6. Start Pre -award activities Phase 4: Construction 1. 100% Cost share due, following execution of Project Partnership Agreement 2. Certification of Lands 3. NEPA Compliance (Must be completed before execution of PPA) 4. Advertisement for bid 5. Award construction contract 7. Project Phase Details 7 Details for Phase 1: Initiation In this phase, the Corps and sponsor will meet to refine the project scope of work, roles, procedures & processes, and other items as necessary to ensure both parties understand the limitations and capabilities of the Corps and the sponsor. The Corps and sponsor will develop the appropriate systems required for financial management and upward reporting. The Corps and sponsor will also obtain any approvals required by their respective chains of command to initiate a new project. The Corps and sponsor will meet in an initial plan formulation meeting to reaffirm project goals & objectives, communication plan, and all other coordination needed to begin the preliminary design process for the project. Deliverables 1. Detailed Project Goals and Objectives 2. Scopes of Work with budget information from each Corps team member and sponsor 3. Detailed project scope & budget (in P2) 4. Project Management Plan (approved by sponsor & Corps) 5. Financial System set up in CEFMS 6. Draft Design Agreement and PMP 7. Prepare Review Plan Details for Phase 2: Initial Design The first steps in this phase are to obtain Division approval of the Design Agreement package, sign a Design Agreement, and formulate the conceptual design. A value engineering analysis will be performed on the conceptual design before progressing to a more detailed design level. A design will be formulated to a level appropriate to obtain environmental permits, for this effort we will call this the 35% design level. At the 65% design level a formal review will occur to insure concurrence from the sponsor and additional resource agencies. Once concurrence is received, the Corps will progress on to the 95% design level. Also included in this phase are the completion of all environmental permits, HTRW screening, cost estimates, real estate map, and decision document. Major tasks are delineated below. Major Tasks and Issues Project Management • PMP — updates as necessary • Schedule and updates in P2 (Corps funding and scheduling system) • Coordinate detailed Cost Estimate • Sponsor Coordination/Team Coordination • Team Leader of Project Delivery Team Hazardous, Toxic, and Radioactive Waste (HTRW) • The Corps HTRW representative will review the documents and investigation completed to date to determine if further investigation is required including any environmental cleanup or remediation. If work to date does not meet the requirements of a phase I assessment, the HTRW representative will complete this. The reach will be visited to determine if any visible issues exist. HTRW report will be prepared for the entire project by reach. Environmental Resources/Environmental Compliance • Section 106 of the National Historic Preservation Act • Environmental Assessment and 404(b)(1) evaluation • Biological Assessment • JARPA (CZM, 401) • Develop Monitoring Plan for Post Project Construction • Plan for water quality monitoring during construction • Stormwater Prevention Plan Cultural Resources • Conduct a field reconnaissance of entire site to include any exploratory digging at suspected sites. • Coordinate with State Historical Preservation Office and Muckleshoot Tribe on cultural resources issues. • Prepare and Coordinate the cultural resources report. Civil Engineering • Work with Project Deliver Team and Local Sponsor on Conceptual, 65%, and 95% designs. Hydrology & Hydraulics • Survey the site to include cross sectional data to put into computer model. • Develop a Hydraulic Model for with and without project conditions. • Place electronic gages in the stream to help calibrate the model. • Provide input to the design team members. Cost Estimating • Complete 65% and 95% cost estimate • Perform Agency Technical Review (ATR) Real Estate Work with the sponsor to develop a draft real estate drawing for the real estate plan that clearly delineates the project area, acreage, property ownerships within the project footprint, and estates required to support construction, monitoring and subsequent operation and maintenance of the proposed project. A brief real estate summary paragraph for decision document that describes the lands, easements and rights of way necessary for the construction, operation, monitoring, and maintenance of the project, including total acreage broken down by estate (property interest) and duration of easements required. Work product to be prepared by Real Estate Division Cost -Share Program Manager and Realty Specialist. 0 • Attorney's opinions regarding compensable interests of the owners of utilities and facilities affected by the proposed project that may require temporary or permanent relocation, or alteration to accommodate proposed construction activities. • Complete a Non -Federal Sponsor Acquisition Capability Assessment with input from the sponsor. • The Corps will conduct informal land value analysis to confirm estimated LERRD implementation costs. Survey Survey missing cross section and topo data on existing city maps for input to design effort and H&H modeling. Contract for utility location service (coordinate closely with H&H and Design) Deliverables 1. Fully executed Design Agreement 2. Cultural Resources Assessment and Sec 106 of NHPA Compliance 3. Environmental Assessment/404/Public Notice 4. 7ARPA (CZM/401) 5. Biological Assessment 6. HAZTOX Report 7. FONSI 8. Conceptual, 65%, and 95% design drawings with ATR and back check using DRCHECKS 9. Real Estate Plan (Real Estate Drawing) Scope Changes For any changes in scope or schedule, the responsible person will notify the PM for concurrence. Because several events are sequential, the scope change may require a team meeting. All significant changes, which affect the team and schedule, will be discussed as a team to determine the best course of action. All final decisions rest with the PM. Details for Phase 3: Advanced Design, Plans & Specifications In this phase the design will be finalized, a Project Partnership Agreement executed between the sponsor and Corps, real estate certified available for construction, and pre - construction activities completed. Major Tasks and Issues Project Management • PMP --- updates as necessary • Schedule and updates in primavera project manager • Sponsor Coordination/Team Coordination & upward reporting • Prepare Draft and Final Project Partnership Agreement Environmental Resources • Prepare Water Quality Construction Monitoring Plan 10 • Construction coordination with resources agencies and tribes, if applicable Civil Engineering • Prepare final design drawings and final quantities • Prepare plans and specifications (fronts -technical) • Prepare Bid schedule for cost engineering • ATR Cost Estimating • Final MCACES Construction cost estimate for Project Partnership Agreement and Contractual Process • ATR Real Estate • Prepare final LERRD map and real estate requirements for certification of lands. • LERRD Certified available for construction • Coordinate with the sponsor on LERRD crediting appraisal scope and premise; and review LERRD costs submitted by the sponsor to determine approved LERRD credit amount. Deliverables 1. Final Design 2. Specifications (administrative & technical fronts) 3. Plans and bid schedule 4. Signed Project Partnership Agreement 5. Right of Way and LEERD Certification 6. Federal and non-federal share of project construction costs determined 7. Sponsor Financial Plan and Statement of Financial Capability 8. State Water Quality Monitoring Plan for Construction 9. Acquisition Plan for construction Details for Phase 4: Construction Phase Tasks and issues This phase includes all construction activities, and post -construction monitoring activities. Major Tasks and Issues Construction Investigation Tasks (not complete) • Water Quality Monitoring during construction • Pre -Construction Monitoring • Construction Supervision & Administration Deliverables 1. Sponsor's cost share check for the project. Cost share: 65% Federal, 35% Local 2. Bid Documents 3. Contract Award 4. Biological Monitoring Plan 11 5. Construction Monitoring Plan I11. SCHEDULE —MILESTONES Execute Design Agreement 15 Jan 2010 Develop Conceptual Design (10%) 13 April 2010 Develop 35% Design 8 July 2010 Prepare 95% Design 26 August 2010 DQC and ATR 10 September 2010 Prepare MCACES 25 October 2010 Plans and Specs Complete 1 October 2010 Prepare Environmental Assessment 28 September Prepare FONSI 22 December 2010 Execute Project Partnership Agreement 14 April 2011 IV. COST SUMMARY 12 Estimated Labor Cost Program Manager $3,000.00 Pro'ect Mana er $14,0W00 Progirm.. ni.. a 3>t.lAtir�ieJf,Y�O 'r vkr r Program Manager $50,000.00 Manager p� n*Project a$6�0,000.0/0� r� Biologist $115,000.00 Cultural Resources $50,000.00 Civil $2,750.00 Cost Estimating $9,020.00 Geotechnical $220.00 H&H $2,500.00 tis°je�ie$1 �! Civil $2,200.00 Cost Estimating $6,820.00 Geotechnical $5,390.00 H&H $2,500.00 'iqii JAM Civil $4,950.00 Cost Estimating $12,320.00 Geotechnical $1,760.00 H&H $2,500.00 �$timatOcf Labor,�t��t �u�iioia��- .�4i0,830,00 Contin enc 10% $47,930.00 $18,Q23,00 12 LFederal Share (75%) $388,517.251 (Non -Federal Share (25%) $129,505.75 V. QUALITY CONTROL This Quality Control PIan presents the process that assures quality products for the feasibility study. Corps policy is to develop, integrate and implement quality control and quality assurance as a part of the Corps' Project Management Business Process. The PDT will ensure that services and products meet the agreed upon requirements and are performed in accordance with appropriate laws, policies and technical criteria. The QC Plan defines the responsibilities and roles of each member of the PDT and the technical review teams. District Quality Control (DQC), ATR, and Independent External Peer Review (IEPR) will be performed independent of the technical production of the product to be reviewed. It will include all relevant technical disciplines, along with necessary legal sufficiency and policy compliance review. Reference: ER 5-1-11, U.S. Army Corps of Engineers Business Process; ER 1110-1-12, Engineering and Design Quality Management; ER 1110-1-8159, Design and Review Checking System, DrChecks; NWSOM 5-1-3, Quality Management Plan, Seattle District; Northwestern Division Quality Management Plan. District Quality Control. All draft products and deliverables will be reviewed by the PDT as they are developed to ensure they meet project and customer objectives, comply with regulatory and engineering guidance, and meet customer expectations of quality. Informal team reviews, consisting of presentations and discussions of interim documents, shall be documented with meeting minutes. Appropriate senior staff members from the organizations completing the tasks will also review all technical work before it is submitted forward to the ATR. Reference; ER 1105-2-410, Review of Decision Documents, 22 August 2008. Agency Technical Review. The objective of the ATR is to ensure the product is consistent with established criteria, guidance, procedures, and policy. The ATR will assess whether the analyses presented are technically correct and comply with published USACE guidance, and that the document explains the analyses and results in a reasonably clear manner for the public and decision makers. Products will be reviewed against published guidance, including Engineering Regulations, Circulars, Manuals, Engineering Technical letters and Bulletins. Corps personnel external to the Seattle District will perform this ATR. Technical disciplines to be represented on the ATR will, at a minimum, include hydraulics, environmental, cultural, and design. All decision documents require ATR. EC 1105-2- 410 appendix C, page 4 provides additional review criteria. Reference: ER 1105-2-410, Review of Decision Documents, 22 August 2008. 13 Project Manager. The Corps project manager shall be responsible for coordinating the DQC within the Seattle District. The project manager will coordinate with the Ecosystem Restoration Planning Center of Expertise for ATR. In addition to coordination efforts, the project manager shall: 1, Ensure that the schedule contains sufficient time to perform reviews of completed products. 2. Manage responses to technical review comments and resolve technical issues with the technical review team leader, consult with Northwestern Division and the Centers of Expertise as appropriate, and forward all unresolved technical review issues to the USACE managers for resolution. Resource Managers. Each Corps of Engineers Resource Manager is responsible for ensuring that all work prepared by or for his/her Section or Branch has received any necessary internal quality control checks prior to the product being furnished to the review team for review. City of Auburn shall follow the same procedure for all work performed as an in-kind service for which credit is to be granted by the Corps and will undergo ATR. Technical Review Team Leader and Technical Review Team Members The ATR team leader will be appointed by the PCX and will be from outside the Northwestern Division. The technical review team leader is responsible for coordinating all activities associated with the technical review of assigned work products. The technical review team leader will coordinate the technical review and assemble all technical review comments and other review -related documents for the use of the technical review team and PDT. Each technical review team members is responsible for performing a technical review of assigned work products and providing written comments to the technical review team leader for consolidation in a review memorandum. Technical review team members will also conduct a back check of PDT responses to technical review comments and provide results of the back check to the technical review team leader. Consultant Products. Consultants are an extension of the Corps or City of Auburn staff. Accordingly, all products prepared by consultants will have a technical review just as if they had been prepared by the PDT. VI. CHANGE MANAGEMENT The decision-making processes for the project will be highly dependent upon the various issues. For the most part, the Corps and Sponsor PMs will make decisions in coordination with their management/supervisory chains. If difficult issues come into play additional management will become involved to develop solutions for the issue. VII. VALUE ENGINEERING Value engineering is required for all Civil Works projects exceeding $1,000,000 in value. The purpose of value engineering is to improve the efficiency of the recommended plan. It is performed during the conceptual level of design because the project is over $1 14 million, and is intended to reduce construction and maintenance costs, improve engineering features, and generally provide a better Federal product. VIII. RISK MANAGEMENT 1. Cost. Cost overruns present a serious risk with high impact to the successful implementation of the project. To manage this risk, cost estimates are being prepared for the 95% design level prior to construction. A value engineers study will also be conducted on the conceptual level of design to assure the most feasible design is constructed at the lowest cost. 2. Project outputs. Achieving the desired project outputs entails risk. To minimize the risks of project failure, or achieving less then desirable outputs, the project biologist will develop a monitoring plan for post construction. Although the Corps does not anticipate making any physical changes to the project as a result of monitoring information, results will inform future projects in the area and minimize their risks of failure. Also, the project sponsor may choose to make changes in harmony with the results of monitoring. 3. Scope changes and cost. When the cost estimate is completed, the sponsor will be notified of their cost share. The sponsor will need to provide assurance of their continued capability and understanding of cost share obligations before proceeding to Plans and Specs. Even with a reasonable cost estimate, the sponsor and Corps need to be aware that cost shares may change prior to construction. 4. Political and social risks. No political or social risks have been identified at this time. The sponsor is enthusiastic about the project and strongly supports it. IX. COMMUNICATION PLAN I. Communication Challenges. Primary challenges for the PDT with regard to communication are in developing a consistent, open communication strategy that releases data generated in a scientifically proficient manner that is properly reported and reviewed prior to release. Where possible, discussions of data should refer to properly reviewed reports and not draft, unreleased or unsubstantiated data. Professional opinions should be moderated without presupposing an outcome to the project. Project decisions should be released to the public in writing, either through the release of a report or a press release on behalf of the project. The Corps project manager will act as spokesperson for the project. PDT members approached by the press should refer all questions to the project manager. 2. Goals. The goal of the Communication Plan is to inform stakeholders of public comment opportunities and study milestones, increase public awareness of agency plans, milestones, and opportunities to provide meaningful comments, answer questions from local elected officials as representatives of their community (including tribal nations), and keep the Product Development Team (PDT) composed of Corps and local sponsor staff informed. 3. Tactics and Tools Needed to Meet Goals. The tools to implement the Communication PIan include: workshops, team meetings, holding meetings with tribal 15 representatives, news releases, meetings with local media, project website, site tours, and public meetings. The sponsor will coordinate the majority of the public involvement through their excellent knowledge of local channels. The PDT will meet on a regular basis to discuss design progress and resolve product development issues. The team will meet monthly, unless they elect to discuss issues by email or teleconference. Team includes both Corps and sponsor staff. 4. Corps Team. The Corps team will meet on a monthly basis or as required to discuss design and project development issues. Each member of the project team is required to determine when they need to be involved in team discussions and to what degree. Each member is required to take responsibility in communicating to the project manager when they require additional information to complete their responsibilities. Each team member is also required to notify the project manager at least two weeks in advance if they will be unable to meet project schedule milestones. If budgets or schedules are not met the project manager may discuss the issue with the appropriate resource manager. 5. Sponsor. Communication with the project sponsor will occur on an as needed basis, but no less than once a month. Periodic meetings between the Corps and sponsor will facilitate project oversight. The Corps will notify the sponsor of any major decisions which will affect cost share or schedule. The project manager will be the main point of contact with the sponsor, and all documents or information from the sponsor will be coordinated through the project manager. 6. Agencies and Stakeholders. Communication with agencies and stakeholders will occur through the public notices as required for NEPA coordination, and other outreach channels as identified. X. PROJECT CLOSEOUT Projects are closed out when completed. All project expenditures (labor, contacts, equipment, and work in-kind) are accounted for. The amount of federal and nonfederal cash provided to the study is tabulated, along with credited work in kind (submitted to Chief, Finance and Accounting by the project manager) The close out ensures that expenditures are balanced, if nonfederal funds need to be given back to the sponsor, or if there is a need for additional nonfederal cash to balance the books. Expenditures and obligations of work are tracked through the Corps CEFMS and P2 systems. Xl. PMP APPROVAL Review of the draft PMP is conducted by the PDT and sponsor team members. The PMP will be provided to the general public, resource agencies, stakeholders, and tribal nations for comment. Significant comments will be addressed in later modifications of the PMP. The PMP will be reevaluated in response to fiscal year federal funding limits, technical or Policy issues, at the request of the Executive and Vertical team. For the Corps, approval of the PMP is by the Chief of Civil Project. For the sponsor, approval is coordinated by the sponsor Project Manager, with ultimate approval by the sponsor Commissioners. 16 DESIGN AGREEMENT BETWEEN THE DEPARTMENT OF THE ARMY AND CITY OF AUBURN FOR DESIGN FOR THE DUWAMISH/MILL CREEK WETLAND 5K ECOSYSTEM RESTORATION PROJECT THIS AGREEMENT is entered into this day of FM 12 2010 by and between the Department of the Army (hereinafter the "Government"), represented by the District Engineer of the U.S. Army Corps of Engineers, Seattle District and City of Auburn (hereinafter the "Non -Federal Sponsor"), represented by the Mayor. WITNESSETH, THAT: WHEREAS, Federal Construction, General funds for Fiscal Year 2003, included funds for the Government to initiate design of the Green Duwamish Ecosystem Restoration Project (hereinafter the "Parent Project") at King County, Washington; WHEREAS, the Government and the Non -Federal Sponsor desire to enter into an agreement (hereinafter the "Agreement") for the provision of design for the Mill Creek Wetland 5K Restoration Project (an element of the Parent Project and Iiereinafter the "Project", as defined in Article I.A. of this Agreement); WHEREAS, construction or implementation of the Project is authorized by Section 101(b) (26) of the Water Resources Development Act of 2000, Public Law 106- 541 in accordance with the plans, and subject to the conditions, recommended in a final report of the Chief of Engineers if a favorable report of the Chief is completed not later than December 31, 2000; and a favorable final report of the Chief was completed on December 29,2000; WHEREAS, Section 105(c) of the Water Resources Development Act of 1986, Public Law 99-662 (33 U.S.C. 2215), provides that the costs of design of a water resources project shall be shared in the same percentage as the purposes of such project; WHEREAS, the Government and the Non -Federal Sponsor agree that, during the period of design, the Non -Federal Sponsor shall contribute 25 percent of total design costs and that, if a Project Partnership Agreement for construction of the Project is executed between the Government and a non -Federal interest, such non -Federal interest shall contribute any remaining portion of the cion -Federal share of the costs of design in accordance with the provisions of such Project Partnership Agreement; WHEREAS, the Government and 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 Project in accordance with the terns 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 design and implementation of the Project. NOW, THEREFORE, the Government and the Non -Federal Sponsor agree as follows: ARTICLE I - DEFINITIONS A. The tern "Project" shall mean habitat restoration of the Wetland SK reach of Mill Creek as generally described in the final report of the Chief of Engineers dated December 29, 2000, and in 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 tern "total design 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 design of the Project. Subject to the provisions of this Agreement, the tern shall include, but is not necessarily limited to: the Government's costs of engineering and design, economic and environmental analyses, and evaluation performed after a feasibility report whether performed prior to or after the effective date of this Agreement that were not previously shared with a non -Federal interest pursuant to any other agreement; the Government's supervision and administration costs; the Non -Federal Sponsor's and the Goverrunent's costs of participation in the Design Coordination Team in accordance with Article III of this Agreement; the Government's costs of contract dispute settlements or awards; and the Non -Federal Sponsor's and the Government's costs of audit in accordance with Article VII.B. and Article VII.C. of this Agreement. The term does not include any costs of betterments under Article II.E. of this Agreement; any costs of dispute resolution under Article V of this Agreement; any costs incurred as part of reconnaissance studies for the Project; any costs incurred as part of feasibility studies under any other agreement for the Project; the Non -Federal Sponsor's costs of negotiating this Agreement; or any costs of negotiating a Project Partnership Agreement for the Project or separable element thereof C. The term "period of design" shall mean the time from the effective date of this Agreement to the date that a Project Partnership Agreement for construction of the Project, or a separable element thereof, is executed between the Government and a non - 2 Federal interest or the date that this Agreement is terminated in accordance with Article X of this Agreement, whichever is earlier. D. The term "financial obligationsfor design" shall meanthe financial obligations of the Government that result or would result in costs that are or would be included in total design costs. E. The term "noir-I ederal propos tiorrate shay c" shall mean the ratio of the Non- FederaI Sponsor's total contribution of fiords required by Article II.B.1. of this Agreement to f l"arrcial obligations for design, as projected by the Government. F. The terns "betterment" shall mean a difference in the design 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 design of that element. The term does not include any design for features not included in the Project as defined in paragraph A. of this Article. G. The tern "Federal pr ogranr,fcttrds" 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 therefore. H. The teen "fiscal year" shall mean one year beginning on October 1 and ending on September 30. 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, expeditiously shall design the Project, applying those procedures usually applied to Federal projects, in accordance with Federal laws, regulations, and policies. 1. The Government sl'iall not issue the solicitation for the first contract for design of the Project or commence design of the Project using the Government's own forces until the Non -Federal Sponsor has confirmed in writing its willingness to proceed with design of the Project. 2. To the extent possible, the Government shall design the Project in accordance with the Project Management Plan for the Project developed and updated as required by the Government after consultation with the Non -Federal Sponsor. 3. The Gover nient shall afford the Non -Federal Sponsor the opportunity to review and comment on the solicitations for all contracts, including relevant scopes of work, 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 proposed contract modifications, including change orders. In any instance where providing the Non -Federal Sponsor with notification of a contract modification is not possible prior to execution of the contract modification, the Government shall provide such notification in uniting 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 or commencement of design using the Governnent's own forces, 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. 4. At the time the U.S. Army Engineer, Seattle District (hereinafter 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. 5. The Government shall afford the Non -Federal Sponsor the opportunity to review and comment on all design products that are developed by contract or by Government personnel during the period of design. The Government shall consider in good faith the comments of the Non -Federal Sponsor, but the final approval of all design products shall be exclusively within the control of the Government. 6. Notwithstanding paragraph A.4. of this Article, if the award of any contract for design of the Project, or continuation of design of the Project using the Government's own forces, would result in total clesign costs exceeding $621,627; the Government and the Non -Federal Sponsor agree to defer award of that contract, award of all remaining contracts for design of the Project, and continuation of design 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 design of the Project using the Government's own forces, but in no event shall the award of contracts or the continuation of design 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 design 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 design of the Project using the Government's own forces. 7. As of the effective date of this Agreement, $7,755,000 of Federal funds for design and construction have been provided by Congress for the Authorized Project of which $250,000 is currently projected to be available for the Project. The Government makes no commitment to request Congress to provide additional Federal funds for the Parent Project or the Project. Further, the Government's financial participation in the 4 Project is limited to the Federal funds that the Government makes available to the Project. B. The Non -Federal Sponsor shall contribute 25 percent of total design costs in accordance with the provisions of this paragraph. 1. The Non -Federal Sponsor shall provide fluids in accordance with Article W.B. of this Agreement in the amount necessary to meet the Non -Federal Sponsor's share of 25 percent of total design costs if the Government projects at any time that the collective value of the Non -Federal Sponsor's contributions under Article III and Article VII of this Agreement will be less than such share. 2. The Gove«unent, subject to the availability of funds, shall refund or reimburse to the Non -Federal Sponsor any contributions in excess of 25 percent of total design costs if the Government determines at any time that the collective value of the following contributions has exceeded 25 percent of total design costs: (a) the value of the Non -Federal Sponsor's contributions under paragraph B.1. of this Article; and (b) the value of the Non -Federal Sponsor's contributions under Article III and Article ViI of this Agreement. C. Upon conclusion of the period ofdesign, the Government shall conduct an accounting, in accordance with Article N.C. of this Agreement, and furnish the results to the Non -Federal Sponsor. D. The Non -Federal Sponsor shall not use Federal program fiaids 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. E. The Non -Federal Sponsor may request the Government to include betterments in the design of the Project. Such requests shall be in writing and shall describe the betterments requested to be included in the design of the Project. If in its sole discretion the Government elects to include such betterments or any portion thereof in the design of the Project, 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 the event of conflict between such writing and this Agreement, this Agreement shall control. The Government shall allocate the costs of the Project features that include betterments between total design costs and the costs of the betterments. The Non -Federal Sponsor shall be solely responsible for all costs of design of the betterments by the Government under this paragraph and shall pay all such costs in accordance with Article IV.D. of this Agreement. F. If the Government and a non -Federal interest enter into a Project Partnership Agreement for construction of the Project, or a separable element thereof, the Government, in accordance with the provisions of this paragraph, shall include the amount of total design costs in total project costs for the Project, or separable element thereof. Further, the Government, in accordance with the provisions of this paragraph, shall afford credit toward the non -Federal interest's share of total project costs for the Project, or separable element thereof, for the Non -Federal Sponsor's contributions toward total design costs under this Agreement. 1. If the Goverment and a non -Federal interest enter into a Project Partnership Agreement for construction of the entire Project, the Government shall include the amount of total design costs in total project costs for the Project. Further, the Government shall afford credit toward the non -Federal interest's share of total project costs for the Non -Federal Sponsor's contributions toward total desigir costs, including any excess amount determined in accordance with Article IV.C.2. or Article IV.D.3.b. of this Agreement that was not refunded or reimbursed by the Government. 2. If the Government and a non -Federal interest enter into a Project Partnership Agreement for constriction of a separable element of the Project, the Government shall determine the portion of total design costs that are allocable to such separable element and include such amount in total project costs for such separable element. Further, the Government shall determine the amount of the Non -Federal Sponsor's contributions toward total design costs, including any excess amount determined in accordance with Article IV.C.2. or Article IV.D.3.b. of this Agreement that was not refunded or reimbursed by the Government, that are allocable or attributable to such separable element and shall afford credit for such amount toward the non -Federal interest's share of total project costs of such separable element. 3. If the Government and a non -Federal interest do not enter into a Project Partnership Agreement for construction of the Project or a separable element thereof, the Goverment shall not be obligated to refund or reimburse the Non -Federal Sponsor, in whole or in part, for the Non -Federal Sponsor's 25 percent contribution of total design costs. Further, refund or reimbursement by the Government for any excess amount determined in accordance with Article IV.C.2. or Article IV.D.3.b. of this Agreement is subject to the availability of funds. 4. Notwithstanding any other provision of Article II.F. of this Agreement, any amount credited for the value of the Non -Federal Sponsor's contributions toward total design costs provided in accordance with Articles III and VII of this Agreement shall not be applied toward the 5 percent cash share required by Section 103(a)(1)(A) of the Water Resources Development Act of 1986, Public Law 99-662, as amended (33 U.S.C. 2213(a)(1)(A)). G. This Agreement shall not be construed as obligating either party to seek funds for, or to participate in, construction or implementation of the Project or a separable element thereof or as relieving the Non -Federal Sponsor of any future obligation under the terms of any Project Partnership Agreement. N ARTICLE III - DESIGN COORDINATION TEAM A. To provide for consistent and effective communication, the Non -Federal Sponsor and the Goverment, not later than 30 calendar days after the effective date of this Agreement, shall appoint named senior representatives to a Design Coordination Team. Thereafter, the Design Coordination Team shall meet regularly until the end of the period of design. The Government's Project Manager and a counterpart named by the Non -Federal Sponsor shall co-chair the Design Coordination Team. B. The Government's Project Manager and the Non -Federal Sponsor's counterpart shall keep the Design Coordination Team informed of the progress of design and of significant pending issues and actions, and shall seek the views of the Design Coordination Team on matters that the Design Coordination Team generally oversees. C. Until the end of the periocl of design, the Design Coordination Team shall generally oversee the Project, including matters related to: design; completion of all necessary environmental coordination and documentation; scheduling of reports and work products; plans and specifications; real property and relocation requirements for construction of the Project; design contract awards and modifications; design contract costs; the Government's cost projections; anticipated requirements and needed capabilities for performance of operation, maintenance, repair, rehabilitation, and replacement of the Project including issuance of permits; and other matters related to the Project. This oversight of the Project shall be consistent with a project management plan developed by the Government after consultation with the Non -Federal Sponsor. D. The Design Coordination Team may make recommendations to the District Engineer on matters related to the Project that the Design Coordination Team generally oversees, including suggestions to avoid potential sources of dispute. The Goverment in good faith shall consider the recommendations of the Design Coordination Team. The Government, having the legal authority and responsibility for design of the Project, has the discretion to accept or reject, in whole or in part, the Design Coordination Team's recommendations. E. The Non -Federal Sponsor's costs of participation in the Design Coordination Team shall be included in total design costs and shared in accordance with the provisions of this Agreement, subject to an audit in accordance with Article VII.C. of this Agreement to determine reasonableness, allocability, and allowability of such costs. The Government's costs of participation in the Design Coordination Team shall be included in total clesign costs and shared in accordance with the provisions of this Agreement. ARTICLE IV - METHOD OF PAYMENT 7 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, and the contributions provided by the parties. 1. As of the effective date of this Agreement, total design costs are projected to be $518,023; the Non -Federal Sponsor's contribution of funds required by Article II.B.1. of this Agreement is projected to be $115,280 the non-Fecleral Proportionate share is projected to be 22.1 percent; and the Government's total financial obligations to be incurred to include betterments in the design of the Project and the Non - Federal Sponsor's contribution of fiends for such costs required by Article II.E. 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 April 1, 2010 and by each quarterly anniversary thereof until the conclusion of the period of design and resolution of all relevant claims and appeals, 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 design costs; the Non -Federal Sponsor's total contribution of funds required by Article II.B.1. of this Agreement; the non -Federal proportionate share; and the Government's total financial obligations to be incurred to include betterments in the design of the Project and the Non -Federal Sponsor's contribution of funds for such costs required by Article II.E. of this Agreement. B. The Non -Federal Sponsor shall provide the contribution of funds required by Article II.B.1. 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 design of the Project or commencement of design of the Project using the Government's own forces, the Government shall notify the Nara -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 design incurred prior to the commencement of the period of design; (b) the projected non -Federal proportionate share of financial obligations for design to be incurred for such contract; and (c) the projected non -Federal proportionate share of financial obligations for design using the Government's own forces through the first fiscal year. Not later than such scheduled date, the Non -Federal Sponsor shall provide the Government with the full amount of such required funds by delivering a check payable to "FAO, USAED, Seattle USACE District" to the District Engineer, or verifying to the satisfaction of the Government that the Non - Federal Sponsor has deposited such 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 such required funds, or by providing an Electronic Funds Transfer of such required funds in accordance with procedures established by the Government. 2. Thereafter, until the design 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. 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 each remaining contract for design of the Project, of the fiords the Government determines to be required fiom the Non-Fedcral Sponsor to meet the projected noir-Federal proportionate share of financial obligations fol. design 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. b. The Government shall notify the Non -Federal Sponsor in writing, no later than 60 calendar days prior to the beginning of each fiscal year in which the Government projects that it will make financial obligations for design of the Project using the Government's own forces, of the funds the Government determines to be required from the Non -Federal Sponsor to meet the projected non -Federal proportionate share of financial obligations for design using the Government's own forces for that .f seal year. No later than 30 calendar days prior to the beginning of that fiscal year, the Non -Federal Sponsor shall make the full amount of such required funds for that fiscal year available to the Government through any of the payment mechanisms specified in paragraph B.1. of this Article. 3. The Government shall draw from the funds provided by the Non - Federal Sponsor such sums as the Government deems necessary to cover: (a) the non - Federal proportionate share of financial obligations for design incurred prior to the commencement of the period of design; and (b) the non -Federal proportionate share of financial obligations for design as financial obligations for design 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 for the current contract or to cover the Non -Federal Sponsor's share of such financial obligations for work performed using the Government's own forces in the current fiscal year, the Goverment 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 such additional required funds though any of the payment mechanisms specified in paragraph B.1. of this Article. C. Upon conclusion of the period o f design and resolution of all relevant claims and appeals, the Government shall conduct a final accounting and furnish the Non - Federal Sponsor with written notice of the results of such final accounting. If outstanding relevant claims and appeals prevent a final accounting from being conducted in a timely manner, the Government shall conduct an interim accounting and furnish the Non - 9 Federal Sponsor with written notice of the results of such interim accounting. Once all outstanding relevant claims and appeals arc resolved, the Government shall amend the interim 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 design costs. In addition, 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 design costs exceeds the Non -Federal Sponsor's total contributions provided thereto, the Non -Federal Sponsor, no later than 90 calendar days after receipt of written notice fi-om 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 USACE 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 design costy exceed the Non -Federal Sponsor's total required share thereof, the Government, subject to the availability of funds, shall refimd 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. If such appropriations are not received or, if the Non -Federal Sponsor requests that the Government not refund or reimburse the excess amount to the Non - Federal Sponsor, the Government shall apply the excess amount toward the share of total project costs for the Project that is required of the non -Federal interest executing a Project Partnership Agreement or agreements for the P,-oject or separable element thereof in accordance with Article II.F. of this Agreement. D. The Non -Federal Sponsor shall provide the contribution of funds required by Article ILE. of this Agreement to include betterments in the design of the Project in accordance with the provisions of this paragraph. 1. Not less than 60 calendar days prior to the scheduled date for the first financial obligation to include betterments in the design of the Project, 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 design of such betterments. No later than 30 calendar days prior to the Government incurring any financial obligation for design of such betterments, the Non -Federal Sponsor shall provide the Government with the full amount of the funds required to cover the costs of design of such bettei-ments through any of the payment mechanisms specified in paragraph B.1. of this Article. 10 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 design of such betterments as they are incurred. If at any time the Government determines that the Non -Federal Sponsor must provide additional fiuids to pay for design of such betterments, the Government shall notify the Non -Federal Sponsor in writing of the additional funds required and provide an explanation of wliy additional fiords are required. Within 30 calendar days from receipt of such notice, the Non -Federal Sponsor shall provide the Government with the full amount of such additional required funds through any of the payment mechanisms specified in paragraph B.1. of this Article. 3. At the time the Government conducts the interim or final accounting, as applicable, the Government shall conduct an accounting of the Government's financial obligations to include betterments in the design of the Project and furnish the Non - Federal Sponsor with written notice of the results of such accounting. If outstanding relevant claims and appeals prevent a final accounting of design of such betterments fiom being conducted in a timely manner, the Government shall conduct an interim accounting of design of such betterments and furnish the Non -Federal Sponsor with written notice of the results of such interim accounting. Once all outstanding relevant claims and appeals are resolved, the Government shall amend the interim accounting of design of such betterments to complete the final accounting of design of such betterments 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 design of such betterments 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 including betterments in the design of the Project exceed the total contribution of finds provided by the Non -Federal Sponsor for design of such betterments, 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 USACE 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 including betterments in the design of the Project exceeds the total obligations for design of such betterments, 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. If such appropriations are not received or, if the Non -Federal Sponsor requests that the Government not refund the excess amount to the Non -Federal Sponsor, the Government shall apply the excess amount toward the share of total project costs for the Project that is required of the non- Federal interest executing a Project Partnership Agreement or agreements for the Project or separable element thereof in accordance with Article II.F. of this Agreement. ARTICLE V - 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 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 VI — HOLD AND SAVE Subject to the provisions of Article XIII of this Agreement, the Non -Federal Sponsor shall hold and save the Government fi-ee fi-om all damages arising fiom design of the Project and any betterments, except for damages due to the fault or negligence of the Government or its contractors. ARTICLE VII - 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. 12 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 sliall be included in total design 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 sliall be included in total design costs and shared in accordance with the provisions of this Agreement. ARTICLE VIII - 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 and Army Regulation 600-7, entitled "Nondiscrimination on the Basis of Handicap in Programs and Activities Assisted or Conducted by the Department of the Army". ARTICLE IX - RELATIONSHIP OF PARTIES A. In the exercise of their respective rights and obligations under this Agreement, the Govermnent and the Non -Federal Sponsor each act in an independent capacity, and neither is to be considered the officer, agent, or employee of the other. 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 X - 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 design of 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. 13 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 design costs 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 finds 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 design costs 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. C. In the event the Government determines that modifications to the P►•oject are required and that additional authorization by Congress will be required before the Government may construct such modifications, the Government shall notify the Non - Federal Sponsor in writing of such determinations and shall terminate this Agreement. D. hi the event that this Agreement is terminated pursuant to this Article, both parties shall conclude their activities relating to the Project and conduct an accounting in accordance with Article IV.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.1. 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 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 begimring of each additional 3 month period if the period of delinquency exceeds 3 months. ARTICLE XI - 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: 14 If to the Non -Federal Sponsor: Director, Planning, Building & Community Department City of Auburn 25 West Main Street Auburn, WA 98001 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 XII - CONFIDENTIALITY To the extent permitted by the laws governing each party, the parties agree to maintain the confidentiality of exchanged information when requested to do so by the providing party. ARTICLE XIII - OBLIGATIONS OF FUTURE APPROPRIATIONS A. Nothing herein shall constitute, nor be deemed to constitute, an obligation of future appropriations by the City Council of the City of Auburn, where creating such an obligation would be inconsistent with Title 3 of the Auburn City Code. B. The Non -Federal Sponsor intends to fulfill 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 year, 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 other source of funds legally available for this purpose. Further, if the Non -Federal Sponsor is unable to fulfill these 15 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 District Engineer. DEPARTMEN E RMY BY: nthon O. =ht olo cl Coil) of Engineers 1strict eer DATE: lz Zely CITY URN BY: Peter B. Lewis Mayor DATE: 16 FEB - 12010 CERTIFICATE OF AUTHORITY do hereby certify that 1 am the principal legal officer of the City of Auburn, that the City of Auburn is a legally constituted public body with full authority and legal capability to perforin the tenns of the Agreement between the Department of the Army and the City of Auburn in connection with design of the DuwamishdMill Creek Wetland 5K Ecosystem Restoration Project, and to pay damages, if necessary, in the event of the failure to perform in accordance with the terms of this Agreement and that the persons who have executed this Agreement on behalf of the City of Auburn have acted within their statutory authority. IN WITNESS WHEREOF, I have made and executed this certification this I day of �e��Yk< � �► 20 to . Dan Heid City Attorney, City of Auburn 17 CERTIFICATION REGARDING LOBBYING The undersigned certifies, to the best of his or her knowledge and belief that: (1) No Federal appropriated finds 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 fiends 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 all employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form -LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. (3) The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31 U.S.C. 1352. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. Peter B. Lewis Mayor, City of Auburn DATE: 18 NON-FEDERAL SPONSOR'S SELF -CERTIFICATION OF FINANCIAL CAPABILITY FOR AGREEMENTS I.__ f.i� a� , do hereby certify that I am the Finance Director of the City of Auburn (the "Non -Federal Sponsor"); that I all, aware of tlic financial obligations of the Non - Federal Sponsor for the Duwamish/Mill Creek Wetland 5K Ecosystem Restoration Project; and that the Non -Federal Sponsor has the financial capability to satisfy the Non -Federal Sponsor's obligations under the Design Agreement for the Duwamish/Mill Creek Wetland 5K Ecosystem Restoration Project. IN WITNESS WHEREOF, I have made and executed this certification this V�,l day of IM TITLE: DATE: CERTIFICATE OF LEGAL REVIEW The Design Agreement for Design of the Duwamish/Mill Creek Wetland 5K Ecosystem Restoration Project at City of Auburn, King County, Washington, a separable element of the Green/Duwamish Ecosystem Restoration Project, was fully reviewed by the Office of Counsel, U.S. Army Corps of Engineers, Seattle District. Date: 1vt S e Ying JLcg�? Assistant District Counsel