HomeMy WebLinkAboutITEM VIII-B-1AUBURN
WASHINGTON
AGENDA BILL APPROVAL FORM
Agenda Subject: Date:
Mill Creek Design Stud Aril 25, 2008
Department: Attachments : Budget Impact: $110,110.00
Planning, Building and Resolution No. 4315, Design
Community Agreement
Administrative Recommendation:
City Council adopt Resolution No. 4315.
Background Summary:
The City of Auburn is proposing to enter into a design agreement with the Army Corps of Engineers to
begin preliminary design and permitting work on three projects along the Mill Creek. These projects
include the wetland 5K, Merlino and Schuler Brot hers Reaches within the City of Auburn.
L0505-1
03.4.1.17
Reviewed by Council & Committees: Reviewed by Departments & Divisions:
? Arts Commission COUNCIL COMMITTEES: ? Building ? M&O
? Airport ? Finance ? Cemetery ? Mayor
? Hearing Examiner ? Municipal Serv. ? Finance ? Parks
? Human Services ? Planning & CD ? Fire ? Planning
? Park Board ?Public Works ? Legal ? Police
? Planning Comm. ? Other ? Public Works ? Human Resources
? Information Services
Action:
ommittee Approval: Yes No
Council Approval: HYesHNo Call for Public Hearing
Referred to Until
Tabled Unto T 7-
Councilmember: Backus Staff: Baker
Meeting Date: May 5, 2008 Item Number: VIII.B.1
AUBURN *MORE THAN YOU IMAGINED
RESOLUTION NO. 4 3 1 5
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 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.
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
Resolution No. 4315
April 23, 2008
Page 1 of 24
and the Department of the Army for design of the Mill Creek Restoration Project
which agreement shall be in substantial conformity with the Agreement a copy
of which is attached hereto, marked as Exhibit "A" and incorporated herein by
this reference.
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 12008.
CITY OF AUBURN
PETER B. LEWIS
MAYOR
ATTEST:
Danielle E. Daskam, City Clerk
APPROVED AS TO FORM:
Daniel B. Heid, City Attorney
Resolution No. 4315
April 23, 2008
Page 2 of 24
Appendix A
Resolution No. 4315
April 23, 2008
Page 3 of 24
DESIGN AGREEMENT
BETWEEN
THE DEPARTMENT OF THE ARMY
AND
CITY OF AUBURN
FOR
DESIGN
FOR THE
MILL CREEK RESTORATION PROJECT
THIS AGREEMENT is entered into this day of ,
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 of the City of Auburn.
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 Project (an element of the Parent Project and
hereinafter 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;
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
Resolution No. 4315
April 23, 2008
Page 4 of 24
percent of total design costs and that, if a Project Cooperation 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 non-Federal share of the costs of design in accordance with the
provisions of such Project Cooperation 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 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 design
and implementation of the Project.
NOW, THEREFORE, the Government and the Non-Federal Sponsor agree
as follows:
ARTICLE I - DEFINITIONS
A. The term "Project"shall mean restoration of the following reaches of Mill
Creek: Geodeke, Merlino, Wetland 5K, and Schuler Brothers, as generally
described in the final report of the Chief of Engineers dated December 29, 2000,
and "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 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 term 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
Resolution No. 4315
April 23, 2008
Page 5 of 24
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 Government'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 cooperation 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 Cooperation Agreement for
construction of the Project, or a separable element thereof, is executed
between the Government and a non-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 obligations for design" shall mean the 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 "non-Federal proportionate share" shall mean the ratio of the
Non-Federal Sponsor's total contribution of funds required by Article II.B.1. of this
Agreement to financial obligations for design, as projected by the Government.
F. The term "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 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.
Resolution No. 4315
April 23, 2008
Page 6 of 24
H. The term "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 shall 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 Government 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 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 or commencement of design using the
Government's own forces, execution of contract modifications, resolution of
Resolution No. 4315
April 23, 2008
Page 7 of 24
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 design costs
exceeding $440,440, 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, $3,352,000 of
Federal funds for design and construction have been provided by Congress for
the Parent Project, of which $327,330 is currently projected to be available for
the Project. The Government makes no commitment to request Congress to
Resolution No. 4315
April 23, 2008
Page 8 of 24
provide additional Federal funds for the Parent 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 25 percent of total design
costs in accordance with the provisions of this paragraph.
1. The Non-Federal Sponsor shall provide funds in accordance with
Article IV.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 Government, 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 of design, the Government shall conduct
an accounting, in accordance with Article IV.C. of this Agreement, and furnish the
results to the Non-Federal Sponsor.
D. 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.
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 a writing and this Agreement, this Agreement shall
control. The Government shall allocate the costs of the Project features that
Resolution No. 4315
April 23, 2008
Page 9 of 24
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
Cooperation 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 Government and a non-Federal interest enter into a
Project Cooperation 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 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.
2. If the Government and a non-Federal interest enter into a
Project Cooperation Agreement for construction 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 Cooperation Agreement for construction of the Project or a separable
element thereof, the Government shall not be obligated to refund or reimburse
the Non-Federal Sponsor, in whole or in part, for the Non-Federal Sponsor's 25
Resolution No. 4315
April 23, 2008
Page 10 of 24
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.
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 Cooperation Agreement.
ARTICLE III - DESIGN COORDINATION TEAM
A. To provide for consistent and effective communication, the Non-Federal
Sponsor and the Government, 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 period 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.
Resolution No. 4315
April 23, 2008
Page 11 of 24
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 Government 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 design
costs and shared in accordance with the provisions of this Agreement.
ARTICLE IV - 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, and the contributions provided by the
parties.
1. As of the effective date of this Agreement, total design costs
are projected to be $440,440; the Non-Federal Sponsor's contribution of funds
required by Article II.6.1. of this Agreement is projected to be $109,110; the
non-Federal proportionate share is projected to be 25 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 funds
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 date of signature of agreement 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
Resolution No. 4315
April 23, 2008
Page 12 of 24
current projections of the following: total design costs; the Non-Federal
Sponsor's total contribution of funds required by Article 11.6.1. 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 H.E. of this Agreement.
B. The Non-Federal Sponsor shall provide the contribution of funds
required by Article 11.6.1. 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 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 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 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
Resolution No. 4315
April 23, 2008
Page 13 of 24
issuance of the solicitation for each remaining contract for design of the Project,
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 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 fiscal 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 anytime 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 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 such additional required funds through any of the payment
mechanisms specified in paragraph B.1. of this Article.
C. Upon conclusion of the period of 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
Resolution No. 4315
April 23, 2008
Page 14 of 24
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-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 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 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 design
costs exceed the Non-Federal Sponsor's total required share 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. 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 Cooperation Agreement or agreements for the
Project or separable element thereof in accordance with Article II.F. of this
Agreement.
Resolution No. 4315
April 23, 2008
Page 15 of 24
D. The Non-Federal Sponsor shall provide the contribution of funds
required by Article II.E. of this Agreement to include betterments in the design
of the Project 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 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 betterments 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 design of such betterments as they
are incurred. If at any time the Government determines that the Non-Federal
Sponsor must provide additional funds 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 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 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 from 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,
Resolution No. 4315
April 23, 2008
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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 funds 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 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 Cooperation 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
Resolution No. 4315
April 23, 2008
Page 17 of 24
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 XIV of this Agreement, the Non-Federal
Sponsor shall hold and save the Government free from all damages arising from
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. The costs of any non-
Federal audits performed in accordance with this paragraph shall be allocated in
Resolution No. 4315
April 23, 2008
Page 18 of 24
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 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 shall 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 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 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.
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April 23, 2008
Page 19 of 24
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.
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 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 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
Project 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. In 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
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April 23, 2008
Page 20 of 24
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 beginning 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:
If to the Non-Federal Sponsor:
Planning Department
City of Auburn
25 W. 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
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April 23, 2008
Page 21 of 24
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.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement, which shall become effective upon the date it is signed by the District
Commander.
DEPARTMENT OF THE ARMY
BY:
COL MICHAEL MCCORMICK
DISTRICT COMMANDER
CITY OF AUBURN
BY:
DATE:
PETER B. LEWIS
MAYOR, CITY OF AUBURN
DATE:
Resolution No. 4315
April 23, 2008
Page 22 of 24
CERTIFICATE OF AUTHORITY
I, , do hereby certify that I 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 perform the terms
of the Agreement between the Department of the Army and the CITY OF
AUBURN in connection with design of the MILL CREEK 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
day of 20
Daniel B. Heid
City Attorney, City of Auburn
Resolution No. 4315
April 23, 2008
Page 23 of 24
CERTIFICATION REGARDING LOBBYING
The undersigned certifies, to the best of his or her knowledge and belief
that:
(1) No Federal appropriated funds have been paid or will be paid, by or
on behalf of the undersigned, to any person for influencing or attempting to
influence an officer or employee of any agency, a Member of Congress, an
officer or employee of Congress, or an employee of a Member of Congress in
connection with the awarding of any Federal contract, the making of any
Federal grant, the making of any Federal loan, the entering into of any
cooperative agreement, and the extension, continuation, renewal, amendment,
or modification of any Federal contract, grant, loan, or cooperative agreement.
(2) If any funds other than Federal appropriated funds have been paid or
will be paid to any person for influencing or attempting to influence an officer or
employee of any agency, a Member of Congress, an officer or employee of
Congress, or an employee of a Member of Congress in connection with this
Federal contract, grant, loan, or cooperative agreement, the undersigned shall
complete and submit Standard Form-LLL, "Disclosure Form to Report
Lobbying," in accordance with its instructions.
(3) The undersigned shall require that the language of this certification be included in the award documents
for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative
agreements) and that all subrecipients shall certify and disclose accordingly.
This certification is a material representation of fact upon which reliance
was placed when this transaction was made or entered into. Submission of this
certification is a prerequisite for making or entering into this transaction imposed
by 31 U.S.C. 1352. Any person who fails to file the required certification shall
be subject to a civil penalty of not less than $10,000 and not more than
$100,000 for each such failure.
Peter B. Lewis
Mayor, City of Auburn
DATE:
Resolution No. 4315
April 23, 2008
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