HomeMy WebLinkAboutITEM VIII-B-1~
ACl -rYOF AGENDA BILL APPROVAL FORM
V,~
WASHINGTON
Agenda Subject: Resolution No. 4558
Date: January 26, 2010
Department: Planning and
Attachments: Attachment 1: Location
Budget Impact: None -
Development
Map for Mill Creek Restoration,
grant funded
Wetland 5K Reach
Attachment 2: Resolution No. 4558
with Exhibit A- Design Agreement for
Mill Creek Restoration, Wetland 5K
Reach
Administrative Recommendation:
City Council adopt Resolution No. 4558
Background Summary:
On May 5, 2008, the Auburn City Councii adopted Resolution No. 4315 approving the execution of a
design agreement with U.S. Army Corps of Engineers to prepare a preliminary design for the
restoration of four reaches of Mill Creek in Auburn: 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. The projected design costs of the project were $440,440 of which the City's
non-federal sponsor match requirement of twenty-five (25) percent less coordination and audit costs
(approximately $109,110). At that time, the City of Auburn had allocated $20,000 from the King
Conservation District to be used as part of the City's non-federal Sponsor match requirement for
design and construction of the Mill Creek restoration.
Before the Agreement with the Army Corps of Engineers could be executed, reductions in federal
funding for FY 2009 resulted in the project no longer being fully funded and the project was
temporarily put on hold pending the availability of funding. In mid 2009, the City received notice that
FY 2010 funding was expected to be approved for the project from both agency appropriations and
additional federai economic stimulus funds. The City has worked with the Army Corps of Engineers to
revise the project so that final design for individual stream reaches could be completed earlier than
previously pianned to allow for earlier construction readiness to be able to take advantage of the
anticipated availability of additional federal stimulus funds.
L0201-3
04.11
Reviewed by Council & Committees:
Reviewed by Departments & Divisions:
❑ Arts Commission COUNCIL COMMITTEES:
❑ Building ❑ M&O
❑ Airport ❑ Finance
❑ Cemetery ❑ Mayor
❑ Hearing Examiner ❑ Municipal Serv.
❑ Finance ❑ Parks
❑ Human Services Z Planning & CD
❑ Fire ~ Planning
❑ Park Board OPublic Works
[D Legal ❑ Police
❑ Planning Comm. ❑ Other
❑ Public Works ❑ Human Resources
❑ Information Services
Action:
Committee Approval: ❑Yes ❑No
Council Approval: ❑Yes ❑No Call for Public Hearing
Referred to Until
Tabled Until
Councilmember: Norman
Staff: Sn der
Meeting Date: February 1, 2010
Item Number: VI11.6.1
~U$URN* MOKE THAN YOU IMAGINED
Agenda Subject: Resolution No. 4558
Date: January 26, 2010
In August, 2008, the King Conservation District (KCD) allocated an additional $180,000 to the City of
Auburn for use as the City's non-federal sponsor match funds. Of the $200,000 total KCD funds,
$180,000 has been received by the City and the remaining $20,000 is scheduled to be received upon
completion of the project.
A revised design agreement has been developed for the final (100%) design and permitting of the
restoration of the Wetland 5K Reach of Mill Creek. The project design would include design for
stream channel restoration, removal of non-native invasive vegetation, and planting of appropriate
riparian vegetation species to provide quality habitat for fish and wildlife as generally described in the
Project Information Paper and Project Management Plan for Wetland 5K Reach Mill Creek
Restoration, Green Duwamish Ecosystem Restoration Project dated November 18, 2009. The total
design project costs for the Wetland 5K Reach have been estimated at $518,023, of which the City's
non-federal sponsor match requirement is finrenty-five (25) percent, less coordination and audit costs
(approximately $115,280). The KCD funds ailocated to the City are sufficient to cover the City's non-
federal sponsor match requirements, with remaining funding to go toward construction of the
restoration or design of additional Mill Creek reaches. Construction of the restoration or design of
additional stream reaches would be separate projects and are not part of the Design Agreement. The
Wetland 5K design project is scheduled to start in early 2010 and be completed in 2011. Construction
of the project is anticipated to begin in late 2011.
In mid 2009, the Army Corps of Engineers notified the City that FY 2010 appropriations and
approximately $9M in federal stimulus funds has been approved for Green Duwamish Ecosystem
Restoration Plan (ERP) projects in 2010. On November 12, 2009, the ERP Executive Committee
approved $250,000 for the FY 2010 portion of the Mill Creek Wetland 5K design project.
The Planning and Community Development Committee reviewed and discussed the revised draft
agreement on January 11, 2010. Key issues raised by the PCD Committee at that time included: 1)
the need to maintain the linkage between the habitat restoration objectives of the project and the
City's on-going water stormwater and water quality initiatives as they relate to the project's habitat
enhancement objectives; and 2) the need to identify the long term maintenance requirements and
associated costs for the Mill Creek project.
The Public Works Committee (PWC) reviewed and discussed the revised draft agreement on January
19, 2010. A correction to Army Corps of Engineers personnel assigned to the project in the Project
Management Plan was noted.
The Planning and Community Development Committee at its regularly scheduled meeting on January
25, 2010, on a unanimous positive motion recommended approval of Resolution No. 4558 to the
Auburn City Council.
Page 2 of 2
Mill Creek Restoration Design Reaches
RESOLUTION 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; and
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 befinreen 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
CITY OF AUBURN
.2010.
PETER B. LEWIS
MAYOR
ATTEST:
Danielle E. Daskam, City Clerk
O FO
7ZT
l B. Heid, Ci Attor
nie
Resolution No. 4558
January 12, 2010
Page 3 of 3
DESIGN AGREEMENT
BETWEEN
THE DEPARTMENT OF THE ARMY
AND
CITY 4F AUBURN
FOR
DESIGN
FOR THE
DUWAMISH/MILL CREEK WETLAND SK ECOSYSTEM RESTORATION
PftOJECT
THIS AGREEMENT is entered into this day of by
and between the Depaiiment of the Artuy (hereinafter the "Government"), repi•esented by
the District Engineer oFthe U.S. Army Corps of Eugineers, Seattle District an<I City of
AuUurn (Iier•einafter the "Non-Federal Sponsor"), represented by the Mayor.
WITNESSETH, THAT:
WHEREAS, Federal Constiuction, General fiuids for Fiscal Year 2003, included
fiinds far the Governinent ta initiate design of the Green Duwainish Ecosystem
Restoration Project (hereinaftei• the "Parent Project") at King Courtty, Washington;
WHEREAS, the Government and the Non-Federal Sponsor desire to enter iuto an
agreement (hereinafler the "Agreement") for the pravision of design for the Mill Creek
Wetland SK Restoration Project (an element of the Parent Project and hereinafter the
"ProjecP", as defined in Article I.A. of tliis Aga•eement);
WHEREAS, coiistruction or implementation of tiie Project is authorized by
Section 101 (b) (26) of tlle Water Resources Developnient Act of 2000, Public Law 106-
541 in accordance witlx the plans, and subject to the conditions, recommended in a final
report of the Chief of Engineers if a favorable repoi•t of the Chief is completed not iater
than December 31, 2000; aud a favorable final report of the Chief was completed on
Deceniber 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 awater
resources project shall be shared in the saine percentage as the purposes of such praject;
WHEREAS, the Government and the Non-Fedei•al Sponsar agree that, during ttle
per•iod oFdesign, the Noii-Federal Sponsor shall contriUute 25 percent of totul desigu
co.rts and that, if a Project Partilership Agreement for construction of the Project is
executed between the Goverrnnent and a non-Federal interest, sucli non-Federal interest
shall conti•ibute ajiy remaiuing portion of the non-Federal sliare of the costs of desigti in
accor•darice with the provisioiis of such Project Partuership Agreement;
WHEREAS, the Govenmnent and Non-Federal Sponsor havc thc firll authority and
capaUility to perfonn as hereinafter set forch and intend to cooperate in cost-sharing and
financing of the Project in accordance witli the terms of this Agreenient; and
WHEREAS, the Govermnent and tlte Non-Federal Sponsor, in connection with
this Agreement, desire to faster a partnering strategy and aworkiiig relationship beriveen
the Government and the Non-Fede;•al Sponsor through a nautually developed forinal
sti•ategy of conunitment and communication embodied herein, wIlich ci•eates an
environntent where ti-ust and teamwork prevent disputes, foster a cooperative bond
between the Govei•nment and tlse Non-Federat Sponsor, and facilitate the successful
ciesign and impleinentation of the Project.
NOW, THEREFORE, the Governinejit and the Non-Federal Sponsor agree as
follows:
ARTICLE I - DEFTNITIONS
A. The term "Project" shalI mean tiabitat restoration of the Wetland SK reach of
Mill Creek as generally described in the final repoct of the Chief of Engineers dated
December 29, 2000, and in tlie "Greeii/Duwamish Rivec Basin Ecosystern Restoration
Study, Final FeasiUility Report," dated Octobez• 2000 and approved by the District
Eiigineer, U,S. Army Corps of Engineers, Seattle District, on October 30, 2000.
B. The term "totul desigrr costs" shall mean the sum of all costs incuired by the
Non-Federal Sponsor aiid tlie Goverrunent in accordance with the terms af tliis Agreement
directly related to design of the Project. Subject to the provisions of this Agreement, the
teiin shall include, hut is not necessarily timited to: the Goveenment's costs of engineering
and design, economic and environt;iental analyses, and evaluation perfonned aftec• a
feasibility report whethec performed prior to or after the effective dlte of this Agreeinent
that were not previously shared witla a non-Federal interest pursuant to any otlier
agreement; the Goverizment's supeiwision and adminish•ation costs; tlie Non-Federal
Sponsor's and the Govec•nment's costs of participation iu the Desigi2 Coordination Team in
accordaiice with Article III of dhis Agreement; the Government's costs of conh•act dispute
settleinents or awards; and the Non-Federal Sponsor's aiid the Government's costs of auciit
in accordance lvith Atlicle VII.B. and Article VII.C. of this Agreement. The terni does not
inctude any costs af betterrnerrts under Ailicle II.E. of this Agreement; any costs af dispute
resolution under Artiele V of this Agreeil3eitt; any costs incurred as part of reconnaissaiiee
studies for the Project; any costs incutTed as part of feasibitity studies ulider any othei•
agreeme►it for the Pi•oject; the Non-Fecieral Sponsoi's costs of negotiating this
Agreement; or any costs of negotiati»g a Project Partnei•sliip Agreement for the Project
or separable element thereof.
C. Tlie tetni "l)eriad nf design" sliall mean tlie titne from the effective date of this
Agceemeut to the date that a Projeci Partnership Agreeyuent for cunstruction uf the
Project, or a separable element thereof, is executed between the Government and a non-
2
FederaI intecest or the date that this Agreement is terminated in accordance «ritli Ar•ticle
X of this Agreement, whichever is earlier.
D. The term "fifunrci(il obligatio,rs for desrgrt" shall niean the financial obligatioris
of the Governnient that result or Nvouid result in costs that are or would Ue included in tota!
desigit cost.s.
E. Tlie term "troir-Fecleralp,•opnrtiosrate sliai-e" sliall niean the ratio of the Non-
FedeE•al Sponsor's total cotitributio►i of fiuids required by Article 1I.B.1. of this Agreemeiit to
fi71f111CIC1I OhI1gY11101IS fOJ- (lesigir, as projectecl by tlie Goveriiment.
F. T1ie term "heftei-meirP" sliall mean a difference in the design of ali element of the
Project that results froni fhe application of standacds that the Govec•iunent determittes
exceed those that the Government Nvould otherwise apply ta the design of Nlat elemetit. Tlle
term does uot include any design for features not included in the Pl•oject as defined in
paragraph A. of this Article.
G. The teriit "Te(lej-al progrcrnr,firirds" sliall mean funds provided by a Federal
agency, othei• than the Department of the Army, plus any non-Federal contribution
required as a matching shai•e therefore.
H. The term "rscal yeur" sliall mean ane 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 sliall design fiie Pmject, applying those procedures
usually applied to Federal projects, in accardance witli Federal laws, regulatioiis, atid
policies,
l. The Goverrunent sliall not issue the solicitation for the first contract for
desigii of the Project or comiueiice design of the Pr•oject using tkle Government's own
forces until the Non-Federal Spotisor has confirmed in writing its willingness to proceed
widi ciesign of the Yroject.
2. To the extent possible, the Goveriiment sliall desigti the Project in
accordatice with the Project Managemertt Plan for the Project developed and updated as
requir•ed by the Governmerit after consultation with tlie Non-Federal Spottsor.
3. The Governirient sliall affard the Non-Federal Spocisor the opportunity to
i•eview and commeut on the solieitations fox• all contraets, including relevant scopes of work,
prior to the Government's issuance of such solicitations. To the extent possible, the
Government shall afford the Non-Federai Sponsor the oppoilunity to revietiv and cammeiit
ori all proposed contract iiiodifications, including change orders. In any instance tivliere
providing the Non-Federal Sponsor with notification of a contract tnodification is not
possible prior to execution of the contract niodification, the Govermuent shall provide such
notification in writing at the earliest date possible. To the e;ctent possibie, the Government
also shall afford the Non-Federal Spoiisor the opportuiiity to review and commeiit on aIl
contract claims prior to resolution thereof. The Govermnent shall considei• in good faith the
cominents of the Non-Feder11 Sponsor, but the contents of solicitations, award of coiitracts
oi' C011]IIlEI1C01I1811t Of CIC5Lg11 t1S1I]g the GOVeIillIlCllf's own forces, eXeClltlOll Of COlltl•act
modifications, resolution of contract claims, and perforinance of all work on the Project
shall be excfttsively within the conh•ol of the Goveriiment.
4. At the time the U.S. Ariny Engineer, Seattle District (hereiiiafter the
"District Engiueer") fiu•nishes the contractor with the Govert3ment's Written Notice of
Acceptance of Completed Work for each contract awa►•ded by the Governmeiit foi• the
Project, the District Engineer shall furnish a copy thereof to the Non-Federal Sponsor.
5. The Government shall afford the Noti-Federal Sponsor the opportunity
to review anci eomment ou ali design products that are developed by contract or by
Government persocuiel during the pei"lOCI O,f CIG'SIg11. The Governzaient sliall consider in
good faith the coiuments of the Non-Federal Sponsor, but the final approval of all design
praducts shall be exr,lusively witliin the control of the Goveriiment,
6. Notwitlistanding paragraph A.4. of tlus Article, if the award of any
contcact for design of the Pi-oject, or continuatian of design of the Projeet using the
Governiuent's owu forces, would result in totul desigrr costs exceeding $621,627; the
Government and the Nan-Federal Sponsor agree to defer award of that contract, award of
all remaiTfing contracts for design af the Project, and continuation of design of the
Project using the Govermiient's own forces wltil such time as the Government and the
Noii-Federal Sponsor agree iti writing to proceed witti furtlzer contract awards for the
Project or the continuation of design of the Pi-oject using the Governmen#'s owti forces,
but in no event shail the award of eontracts or the continuation of design of tlle Pl•oject
using the Goverimient's owu forces be deferred for anore than three years.
Notwitlistanditig tliis general provision fot• deferral, in the event the Assistant Secretary
of the Army (Civil Woi•ks) makes a wcitten determination that the award of sucli contract
or contracts or continuation of design of the Project using the Government's own forces
must proceed in order to comply with law oi• ta protect lluman life or property froiit
imminent and substantial hann, the Government, after consultation tivith the Non-Federal
Spoiisor, may awaa•d a coiltract or contracts, or continue with design of the Pj•oject using
the Government's own forces.
7. As of the effective date of lhis Agreemeiit, $7,755,000 of Federal fiinds
for design aild constriiction have been provided by Coiigress for the Autliorized Project
of wliich $250,000 is cut7•eiitly projected ta be available for the Project. The Governnlent
makes no commitment to request Congress to provide additional Federal funds for the
Parent Project or the Project. F-urthei•, the Gavernment's financial participation in the
4
Project is liitiiteci ta the Federal fEinds that the Goverfmieiit makes availabie to the
Project.
B. The Non-Federal Sponsor sliall conti•ibute 25 peF•cent of toial desigrr costs in
accordance witli the pi•ovisions of this paragraph,
l. Tlte Non-Federal Spoiisoi• shall pi•ovicle fuzids in accordalice witii Article
IV.B. of this Agreement iii the aiiiount iiecessary to ltieet the Non-Federal Sponsor's share
of 25 percent of total desigit costs if the Govermnent projects at aiiy timc that Nle colIective
value of the Non-Fecteral Sponsor's conh•ibutions under Article II1 and Article VII of this
Agceement will be less than such shlre.
2. The Goverimient, subject ta the availability of funds, stiall refund or
reiiliburse to the Non-Federal Sponsor any cantributions in excess of 25 percent of tota!
desigrt costs if the Government detertiiines at any time that the collective vaiue of the
following conti•ibutions has exceeded 25 percent of total clesigir costs: (a) the value of the
Non-Federal Sponsor's cantributions under paragraph B. l. of this Articie; and (b) the value
of the Non-Federal Spotisor's contributions utider Article III and Article VII of this
Agreement.
C. Upon conclusion of the periorl of (lesign, the Government sliall conduct an
accoUnting, in accordance with Article IV.C. of this Agreement, and fiirnish the results to
the Non-Federal Sponsor,
D. The Non-Federal Sponsor shatl not use Fe(leral pr•ogr•ant_ftatcl.s to meet any of its
obligations for the Project under this Agreement unless tlie Federal ageiicy providing the
Federal portion of such funds verifies in writing that expejiditure of such furids for such
puipose is expressly authorized by Federal'Iaw.
E. The Non-Federal Sponsor may request the Govei•nment to include bettermer:ts
ixa the design of the Project. Sucli requests shall be in writing alid shall describe the
bedterruent.s t•equested to bc included in the design of the Project. If in its sole ciiscretion
the Government eIects to include such bettei•ruejrts or any portion thereaf in the design of
the P)•oject, it shall so notify the Non-Federal Sponsor in a writing that sets forth any
applicable terms and canditions, which must be consistent with this Agi•eement. In tlie
event of conflict between such writing and this Agreement, this Agreement sliall control.
The Governinent sllall allocate tlie costs of tlie Project features that include betterments
between total desigfi cost.r and the costs of the better•nrearts. The Noii-FederaI Spo»sor
shall be solely responsible for ail costs of design of the betternterits by the Government
uiider this paragraph and shall pay all sucli costs in aceordanee with Artiele IV.D. of this
Agreelnent.
F. If the Governmeiit and a non-Federal iiiterest enter into a Project Partnership
Agreement for construction of the Project, ur a separable electicnt thereof, tliz
Government, in accordance with the provisions of this paragrapli, shall include the
amount of total desigii costs in total project costs for the Project, ar separaUle element
thereof. Further, tlfe Government, in accorda«ce witli the provisions of this pacagraph,
shall afford credit toward the noji-Federal interest's share of total project costs for tlle
Pi•oject, or sepaz•able elemeizt thereof, for the Non-Federal Sponsor's contribittions
towai•d Jotul design costs under tliis Agreerlient.
1. If the Govez•niuent aiid a non-Federal interest enter into a Projcct
Partncrship Agreement for constructiott of thc entire Pi•oject, tlle Gavecmnent shalI
include tlie amouiit of totrrl desig►i costs iii total project costs for tlle Project. Furtlier, the
Governmeiit shal( afford credit taward the non-Federal interest's share oftotal project
costs fot• the Noii-Fedecal Sponsor's contributioiis toward total clesign costs, including
any excess amount determineci in accordance witli Article IV.C.2. or Article IV.D.3.b. of
this Agreement that was not refucided or reimbursed by the Gavernment.
2. If the Government and a iion-Federal interest enter into a Project
Partnership Agreement for construction of a separable eleilient of the Project, the
Government shall determine the portion of total desigrr casts that arc aliacable to such
separable element aiid include such amount in total project costs for such separable
element. Furrlier, the Government sliall deter«iine the amount of the Non-Federal
Sponsor's contributions toward tatal design costs, including any excess lmount
determined in accordance with Article IV.C.2, or ArticIe IV.D.3.b. of this Agreement that
was not refunded or reimbursed by the Government, that 1re allocable or attt•ibutable to
such seplrab{e eleinent and shall afford credit for such arnount toward the non-Federal
interest's sliare of total pt•oject costs of such separable element.
3. If tlle 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
Govermnent sliall not be obligated to refund or reimburse the Non-Federal Sponsor, iii
whole or iu part, for the Non-Federal Sponsoi's 25 percent contribution of total design
costs. Further, refund or reimbursement by t12e Goveriiiiient for any excess amount
determined in accordance with Ai•ticle IV.C.2. or Ailicle IV.D.3.U. of this Agreement is
subject ta the availability of fiznds.
4. Notwithstanding any other provision of Atlicle II.F. of this Agreement,
any amount credited for the value of the Non-Federal Sponsor's contributions toward
total design cost.s provided in accordance with Artic}es III and VII of this Agreement
shall not be applied toward the S percent cash share required by Section I03(a)(1)(A) of
the Watei• Resout•ces Development Act of 1986, Public Law 99-662, as ainended {33
U.S.C, 2213(a)(1)(A}}.
G. This Agreement shall not be construect as obligating either party to seek funds
for, or to participate in, construction or implementation of the Projeet or a sepai•able
element thereof or as relieving the Non-Fecieral Sponsor of any future obligation under
the ter7ns of any Project Partnership Agreement.
6
ARTICLE III - DESIGN COORDINATION TEAM
A. To pi•ovidc foi• consistent and effective comniunication, the Non-Federal Sponsor
aiid the Goverrfinent, not later than 30 calendar days after the effective date of this
Agreeinent, siiail appoint named senior represeritatives to a Design Coordination Team.
Tliereafter, the Design Coordination Team shali ineet regullrly tuitil the end ofthe periocl nf
(lesigit. The Govei•niiient's Project Maiiager and a counterpart nacned by the Noti-Federai
Sponsor shall co-chair the Design Coordination Teani.
B. The Govecnment's Project Manager and the Non-Federal Spoiisor's countecpart
sliall keep the Desibn Coordination Team informed of the progress of desigil and of
siguificant pending issues anct actions, and shall seek the views of the Design Coordination
Team on mltters that the Design Coordination Team generally oversees.
C. Until the end of the periodof design, the Design Coorditiation Team shall
genecally oversee the Pi-oject, including matters related to: design; completioii of aIl
necessary environmental cooc•dinatioii and docutnentation; scheduling of reports and «+ork
products; plans atid specifications; real property and relocation reguireinents for
consti-uction of the Project; ciesign contract awards and modifications; design contract costs;
the Governnient's cost projectioiis; anticipated requirements and needed capabilities for
performance of operation, maintenance, repair, rehabilitation, aud replacetnent of the
Projeet including issuance of per7nits; and other matters related to the Pi-oject. Tlsis
oversight of the Pr•oject shall be consistant with a project mai;agement plan developed by
the Goveriunent after consultation with the Non-Federal Sponsor.
D. The Design Coordination Teatti may inake recommendatians to the District
Eiigiiieer on iiiatters related to the Pr•oject that the Design Coordination Team generally
oversees, including suggestions to avoid potential sources of dispiite. The Govemment in
good faith shall consider the recommendations af the Design Coordination Team. The
Govercunent, having the legal authority and responsibility for design of the Praject, lzas the
discretion to accept or reject, in wliole or iu part, the Design Coordiiiation Teani's
recornmendations.
E. The Non-Fecleral Sponsor's costs of partieipation in the Design Coordinatioii
Team shall be included in total design costs aiid shared in accordance with the provisioiis
of this Agreement, suUject to an auciit in accordanee with Ailicle VII.C. of this
Agreement to determine reasonableness, allocability, and aIlowability of such costs. The
Government's costs of participation in the Design Coorciination Teain shall be included
in total clesigir costs and shared in accordance with the provisians of this Agreement.
ARTICLE IV - METHOD OF PAYMENT
A. In accol•dance with the provisions of this paragraph, the Government shall
maintairi current records and provide to the Non-FederaI Sponsor curi•e►it projections of
costs, financial obligations, and the contcibutions provided by the parties.
1. As of the effective date of this Agi-eement, total elesign costs are
projected to be $518,023; the Non-Federal Sponsor's contribution of fuucis reyuired by
Article I1.B.1. of this Agreement is projected to be $115,280 the non-Pecleral
pi'oPnrtrojrate slim•e is projccted to be 22.1 percent; and the Govetnment's total financial
obligations to be incurred to include betterrireirts 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 consuitation witii the Non-Federal Sponsor, and are
not to be construeci as the tofal financial responsibiiities of the Govermnent and the Non-
Federal Sponsor.
2. By April 1, 2010 and by eacli quarterly anniversary thereof until the
conclusion of the per•iod of design and resolution of all relevant claims and appeals, the
Government sliall provide the Non-Federal Sponsoi• with a report setting forth all
GQI1tC1bUtlOriS pi•ovided to date and the cuz•rent pi•ojections of the following: total (lesigrt
cosfr; the Non-Federal Sponsor's total contribution of funds required by Article II,B.1. of
tliis Agreement; the non-Feder•ul p)'QpOl'IlO1JClIG' SltCll•e; a1lCI t11C GOVeli]IlleIlt's total
financial obligations to be incurred to include betterrneirt.s in the design of the Project and
the NQIl-FCCIeT'aI SpO11SOt''S CQTItI'IbU11011 Of fL1naS fOP sucli costs required by Article II.E.
of this Agreement.
B. The Non-Federal Sponsor shall provide the contributian of funds requi7•ed by
Article II,B.1, of tliis Agreement in accordarice witli the provisions of this paragraph.
1. Not less thaii 30 calendar days prior to the sclieduied dafe for issuance
of the solicitation for the first coiitract for design af the Pj•oject or commeiiceilient af
design of the Project using the Government's own forces, the Government shali notify
the Non-Federal Sponsor in writing of such scheduled date and the funds the Governinent
determines to Ue required fi•am the Nan-Federal Sponsor to meet: (a) the rron-Fc,~rleral
prwpnrtioriale shaj'L' Of f 11C111Cltll ObIIgClIt012s for desigtt incurred prior to the
coiiimencement of the period of design; (b) the projected noit-Fetleral pr•oportionate
shan•e ofrriancial oblrgations,for desrgn to be incun'ed for such contract; and (c) the
projected i:ort-Federal pi•oportionate sJtat•e of fnarrcral obligatiorrs fos• desigrr using the
Government's own forces tlirougli the first fi.scal year. Not later tl3an such scheduled
date, the Noti-Federal Sponsot• shall provide the Government with the full aiiiount of sucll
required funds by detiveriug a check payable to "FAO, USAED, Seattle USACE District"
to the District Engineer, or verifying to the satisfaction of the Govei•nment tliat the Non-
Federal Sponsor has deposited such required funds iu an escrow or other account
acceptable to the Govei•nmecit, with interest accruing to the Non-Federal Sponsor, or by
pi•csenting the Government with au irrevocable letter of eredit acceptahle to the
Government for such required fiinds, or by providing an Electronic Fuiids Transfer of
such required funds in accardance with procedures established by the Governinent.
8
2. Thereafter, until the design of the Projecl is complete, the Government
shall notify the Non-Federal Sponsor in writing of the funcis the Government dctermisies
to be rcquired fi•onz the Non-Federal Sponsor, anci the Non-Federal Sponsor shall provide
sucli fu►tds in accordance witli the provisions of this paragraplt.
a. The Government shall notify the Noii-Fedei'ill SpO1150I 131
writing, no later than 60 calen<lar days prior to the scheduled date for issuance of the
solicitation for eaeh remainiiig eontraet for design of the Pi•aject, of the fiands the
Government determines to be required from the Non-Federal Spotisor to meet the
projected raon-I'eder•rrl propo►•tiorratc~ sJtrrl•e of f nanciul obligrrtiars_for• design ta be
iiicurrecl foi• such contract. No later than such sche<luled date, the Non-Federal Sponsor
stiall make the full amouiit of sucli required funds available to the Government tEirough
any of the payment mechanisms specified in paragraph B.1. of this Article.
b. The Government siiall notify the Non-Federal Spoiisor in
writing, no latec tlian 60 calendar days pc-ior to the Ueginning of eacli,fiscal.yea►• in whic}i
the Governmeilt projects that it will make.ffianciul obligntiais fo1• clesigrt of the Pf•oject
using the Government's own forces, of tlie funds the Government determines to be
required froni the Non-Federal Sponsar to meet the projected itosi-Feder(r( pj•opot•tiolrate
sha'C Of fitIClItCIClI ObIIgClIl03lS f0!' CI2S1g1J U5ll1g the GOVeTI1111eE1f's own forces for that
fiscal year. No later than 30 calefidar days priar to the beginning of that,frscal year•, the
Non-Federal Sponsor shall make the full amount of such reyui;•ed funds for thatfiscal
year available to the Goveniment through any of the payment niechanisms specified in
paragraph B.1. of tl2is Article.
3. The Governinent sliall draw fi•om the fiinds provided by the Noti-
Federal Sponsor such sums as the Government deems necessary to cover: (a) the lrotr-
Feder•crl proportionate shar'C Of filill11C1ClI DIJlIgClClOils,fa- desigj: incurced prior to the
commencement of the period of (lesigit; and (b) the non-Ferleralps•oportloitate shure of
ji'lJCl11CJ!!I OI7IZgClt1011S.f0i- (lesiglr as,Tnurncial obligazion.s for desigri are incurred. If at any
time the Goveinment determines that additional fiinds witl be needed fi•am the Non-
Federal Sponsor to cover the Nan-Federat Sponsor's share of such financial obligatiotis
for the current coutract or to cover the Non-Federal Sgonsor's sliare of suclt financial
obligations foa• work performed using the Government's own foi•ces iii the curc•entfirscal
Yeat•, the Governmetit shall iiotify the Non-Federal Sponsor in writing of the additional
funds required and provide an explanation of why additionll funds are reRuired. Withiji
60 calendar days from receipt of such notice, tlle Non-Federal Sponsor shall provide the
Government with the full amount af such additional ►•equireci funds through any of the
payment mechanisms specified iii paragrapli B.l . of this Article.
C. Upon conclusion of thepef•iorl of desigir and resolution of all relevant claitlis
and appeals, the Government shall conduct a final accounting a►ld furnish the Non-
Federal Sponsor vvith «n-itten izotice of the results of such finai accounting. If outstanding
relevaiit ciaims aiid appeals prevent a final accountiug fi•oni being conducted in a timely
manner, the Governinent sliall conduct an interitn accounting and fuinish the Nou-
9
Federal Sponsor with writteci notice of the i•esults of such iiiteriui accouiiting. OI1CE all
outstanding reIevant claims and appeals are resolved, the Government shall amend the
inteeim accounting to complete the final accounting and furnisli the Non-Federal Sponsor
witlt wrltteti notice of the results of such fiual accounting. Tlte i«teri2ii or final
accountiTig, as applicable, Shc11I dCtCI'Illllle r()IClI (tL'Slg/1 COS1S. IIl adCjlt1Q12, the i►iterim or
final accounting, as applicabte, shall determine each party's cequired share thereof, and
each paily's total contributions thereto as of the date of such accounting.
l. Shoulci the interim or tinal accounting, as applicable, sIiow that the
Non-Federal Sponsoi's total required share of total design costs exceeds the Non-Federal
Sponsor's total contributions provided theieto, the Non-Federal Sponsor, no later than 90
calcndar. days after receipt of written notice fi•om the Governitient, sltall ►iiake a paytnent
to the Govermnent in an amoutit equal to the difference by cielivering a ciieck payabie to
"FAO, USAED, Selttle USACE District" to the District Engineer or by providing an
Electronic Funds Transfex• in accordance with proccdures establislied by the Government.
2. Should the interim or final accounting, as applicaUle, show that the
total contributions provideci by the Noii-Federal Sponsor for tatul desigir cost.s exceed the
Non-Federal Sponsor's total required share thereof, the Government, subject to the
availability of funds, shall refund or reimburse tlie excess amount to the Non-Federal
Sponsor within 90 calendar days of the date of completion of suc}i 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 Spoiisor, the
Govecnment shall seek such appropriations as are necessary to inake the refund or
reimbursement. If such appropriations are not received ot•, if the Non-Federal Sponsor
requests that the Government not refund or reimburse the excess amount to the Non-
Pederal 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 Partneiship Agreement or agreements for the Project or separable element thereof
in accordance witli Article TI.F. of this Agreement.
D. The Non-Fedecal Sponsor shall provide the contribution of funds required by
Article II.E. of this Agreement to iuclnde betterirreiits in the design of the Pi•oject in
accordance with the provisions of this paragrapli.
1. Not less than 60 calendar days priok• to the scheduled date for the first
financial obiigation to inclucie bettef•rr2ents in the design of the Project, the Government
shall notify the Non-Federal Sponsor in «riting of such scheduled date and of the full
atilaunt af funds the Governcnent determines ta Ue required fi•om the Nan-Federal
Sponsor ta cover the costs of design of such betterurents. No later than 30 calendar days
prior to the Government incuning any financial obligation for design of such bettermerrts,
the Non-Federai Sponsor shall provide the Government witli the full anlount of the funds
required to cover the costs of design of such bettcrmertts through aiiy of the paytne►it
mechanisms specified in paragraph B.1. of this Article.
10
2. T}ie Govei•cimetit shall draw fi•oiti the funds provided Uy the Non-
Federal Sponsor such sunis as the Govet•nment deems necessary to cover the
Govei•nment's f naiicial obligations for design of sucll bettern:ents as tliey are incurrcd.
If at any time the Government determines that the Non-Federal Sponsor rnust provide
additional funds to pay far design of such betterrlteitts, the Gavernment shall notify the
Non-Federal Sponsor in writiilg of the additional funds requireci and provide an
explanation of why additional funds are requireci. Within 30 ealenciar days from reeeipt
of sitch notice, tlie Non-Fec€eral Sponsor sllail provide the Gover►iuietit with the full
amount of such additional required funds through any of the payment meclianisms
specified in parag;•aph B.1. of this Ailiele.
3. At the tinie the GovecllillCllt COI1Cil1Ct5 the llltel'Illl Ol' 1111I 1CCOliilt(11g,
as applieable, the Governmelit shall conduct an accounting of the Government's financial
obligations to include betternteftts iti the design of the Project and fiirnish the Non-
Federal Sponsor with written notice of the results of suc}i accounting. If outstandiug
relevant claims and appeals prevent a final accounting of design of such betternrerrts from
being conducted in a tiniely manner, the Govez•nment sha}l conduct an intecim accounting
of design of such Gette~ments and ftirnish the Non-Federal Sponsor with written notice of
the res«lts of sucli intei•im accouiiting. Oncc all outstanding relevacit elaims and appeals
are resolved, the Government shall ainenci the interim accounting of design of such
hetferrnent.s to cotnplete the final accounting of design of such betterrrierrts and furnisli
the Non-Federal Sponsox• vvith written notice of the results of sucli final accounting. Such
ititecim or final accounting, as applicable, shall determine the Government's total
fiiiancial abligations for design of such betternnerrt.s and the Non-Federal Sponsor's
contribution of funds provided thereto as af the date of such accounting.
a. Sliould the interiin or final accounting, as applicable, sliow tllat
the total obligations for including bettef•»rents in the design of the Pi•oject exceed the total
contribution of fiinds 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 Governnie►it, shall niake a payinent to the Government in an
amount equal to the difference by delivering a cIieck payable to "FAO, USAED, Seattle
USACE District" to the District Engineer oj• Uy pi•oviding ata Electronic Funds Transfer in
accordaafce with proeedui•es established by the Government.
b. Should the ijiterim or final accounting, as applicable, show that
the total cont►•ibution of fiinds provided by the Non-Federal Sponsor for including
betteivnents in the design of the Pi•oject exceeds the total obligations for design of such
better»reirts, the Goveriiment, subject to the availability of fiznds, sliall refund the excess
amouzit to the Non-Federal Sponsor within 90 calendar days of the date of completioli of
such accouiititig. In the evexit the Non-Federal Sponsor is due a refund and funds are not
available to refund the excess amount to the Non-Federal Sponsor, the Govemment shall
seek such appropriations as are necessary to make the refund. If such lppropriations are
not i•eceived or, if the Non-Fedei•al Sponsoz• reyuests that the Government not refunci the
excess amount to the Non-Federal Sponsor, the Government sliall 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 Fat-tnership Agreement or agreements for the Pj•oject
or separable element thereof in accordaalce with Article II.F. of this Agreeuient.
ARTICLE V - DISPUTE RESOLUTION
As a condition precedent to a party Uringing any suit for breach of this
Agceenient, that paxiy inust first notify the other party in writing of tlie nature of the
purporteci brelch and seek in good faith to resolve the dispute tln•ough negotiation. If the
parties cannot resolve the dispute tlirougli negotiation, they may agree to amufualiy
acceptable method of noii-binding alternative dispute resoltttian with a qualified thtrd
party acceptable to both parties. E1ch party shall pay an equal sharc 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 fi•oin perfortnauce pursuant ta this Agreement.
ARTICLE VI - HOLD AND SAVE
Subject to the provisions of Ailicle XIII af this Agreement, the Non-Federal Sponsor
shall hold and save the Govemiiient fi•ee from aIl damages arising fiom design of the
Prvject anci any betterniext.s, except for damages due to the fault or negligence of the
Gavernment or its contractors,
ARTICLE VII - MAINTENANCE OF RECORDS AND AUDIT
A, Not later than 60 calendar days after the effective date of this Agreeinent, the
Governnient and tlie Noii-Federal Sponsor shall develop proceduc•es for keeping books,
reeords, doeuments, or other evidence peitaining to costs and expenses incucred pursuant to
this Agi•eement. These procedures shaIl incorporate, and appIy as appropriate, tlie standards
for financial management systems set forth in the Uniforin Administrative Requirements for
Grants and Cooperative Agreements to State and Iacal Governments at 32 C,F.R. Section
33,20. Tlie Governinent and the Non-Fe<ieral Sponsoi• shall maintain sucli books, records,
documents, or otlier evidence in accordance with these procedures and for a minimwn of
tllree years after completion af the accounting for which such books, records, documenfs, or
other evidence were required. To the eYtent permitted under applicable Federal Iaws and
regulations, the Governnient and the Non-Federal Sponsor slia(l each allow the othei• to
inspect such books, records, documents, ox• other evidence.
B. hi accordance with 32 C.F.R. Section 33.26, the Non-Federal Sponsor is
responsible foi• coniplying witli the Single Audit Act Amendments of 1996 (31 U.S.C. 7501-
7507), as implemeiiteci by Office of Mauagement aiid Budget (OMB) Circular No. A-133
and Department of Defense Directive 7600.10. Upon request of the Non-Fedecal Sponsor
and to the extent permitted under applicable Federal laws and regulations, the Goverimlent
shall provide to t}ie Non-Federal Sponsor and independent auditors any information
necessary to enable an audit of the Non-Federal Sponsor's activities under tliis Agreement.
12
The costs of a►iy non-Federal audits performeci in accordance witli this paragi-aph shall Ue
allocated in accordance with the provisions of OMB Circulars A-87 and A-133, and such
costs as are allocated to the Pi•oject shall be ineiuded in toral clesigir costs aud shared in
accordance with the pcovisions of this Agreement.
G In accordance with 31 U.S.C. 7503, tile Goverivnent inay conduct audits in
addition to aiiy audit that the Non-Fecieral Sponsor is required to conduct undez• the Single
Audit Act Ainendments of 1996. Any sueh Govermilent audits sliall be conducted in
accordance witli Gover►iment Auditing Standards and the cost principles in 4MB Circular
No. A-87 and other applicahle cost principles atld regulations. The costs of Govemment
aUd1tS j]el'f0I'I11Cd ]Il aCC01'(}dI1C0 witll tI11S pilTagla])l1 Sllall be ITIClUdeCI lfl tOrC1I CjC'SIgiT COSt.r
and shared in accordance with the provisions of this Agreement.
ARTICI,E VIII - FEDERAL AND STATE LAWS
In the exercise of their i•espective rights and obligations tinder tllis Agreement, the
Non-Federal Sponsor and the Government shn1l coniply witll all applicable Federal and
State laws aiid 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 Depaiiment of Defense Directive
5500.11 issued pursuant thereta and Army Regulation 600-7, entitled "Nondiscrimination
an the Basis af Handicap in Programs and Activities Assisted or Conducted by the
Depatlment of the Army".
ARTICLE IX - RELATIONSHIP OF PARTIES
A. In the exercise of their respective rights and obligations under tliis Agreement,
the Govei•nment and the Non-Federal Sponsor each aet in an independent capacity, and
neitlier is to be considered tl3e officer, agent, or employee of the other.
B. Iu the exercise of its rights and obligations under this Agreenient, neither party
shail provide, without tlie consent of the other pai-ty, any contraetor with a release that
waives or purparts to waive any riglits the other pacty may have to seek reiief or redress
against that contractor either pucsuant to any cause of action that the other party tnay have or
for violation of any law.
ARTICLE X- TERMINATI4N OR SUSPENSION
A. If at any time the Non-Federal Sponsor fails to fulfill its obligations utider this
Agf•eeiiient, the Assistant Secretary of the Army {Civil Works} shall terminate this
Agreernent or suspend future perfoa•mance unciec this Agreement uniess he determiiies that
contitluation of desigu of the Project is in the interest of the United States or is necessary in
order to satisfy agreemeiits with any other non-Federai interests in connection with the
Project.
13
B. In tlie event the Govermneiit projects that the amouiit of Federal funds the
Goverliment will make available to the Pr•ojecl tln•ouglT the tlteu-carrent,frscal yeaJ•, or tlfe
amount of Federal funds the Goveriiment will make available for the Prqject through the
UpC0I11111gf scal yeur, is not sufficient to meet the Federal share of tatul desigrt cost.s• that
the Govea•nment projects to be incut•red through the then-current or upcoming, fiscal yeus•,
1s applicable, tlic Government shali notify the Noii-Federal Sponsor in writiiig of sucli
iiisufficieney of fiuids and of the date the Government projects that the Federal fuuds that
will liave been made available to the Project will be exhausted. Upon the exliaustion of
E'ederal funds made availaUlc Uy the Govcrnment to the Praject, future perforinance
under this Agreement shall be suspended. Such suspension shaIl t•emaiii in effect until
such time that the Government iiotifies the Non-Federal Sponsor in wciting that sufficient
Federal funds are available to meet the Federal share of total design costs the
Government projects to be incurred through the thei}-current or upcoming.fiscal yeur, or
the Governmcnt or the Non-Fcdera] Sponsor elects to tertninate this Agreement.
C. In the event tlie Govei7lmen# cietermines that modifications to the Pi•aject are
required aild that additianal authorization by Congress will be required befoi•e the
Government may constriict such modifications, the Governtaient shall ►totify the Non-
Federal Sponsoi• in writing of such determinations and shall tercninate this Agreement.
D. In the event that this Agreexnent is tei•minated pursuant to tliis Article, both
parties shall conctude tlieir activities relating to the Pr•oject and conduct ati accounting in
accordance with Atficle IV.C. of this Ageement. To provide for this eventuality, the
Government may reserve apercentage of total Federal funds made available for the
Pr•oject and aii equal percentage of the total funds contributed by the Non-Federal
Sponsor in accordance with Article II,B.1. of this Agreement as a contingejicy to pay
costs of tennination, including any costs of resolution af contract claims and contcact
modificatious,
E. Any terminatian of this Agreement or suspension of future perfonnance under
this Agreement in accordance with tliis Article shall not retieve the parties of liability for
any obligation previously incurred. Any delinqttent payment owed by the Non-Fedei•al
Sponsor sliatl be cliarged interest at a rate, to be deteriiiined by the Secretaiy of the
Tceasuiy, equal to 150 pei• centum of the average bond equivalent rate of the 13 week
Ti•easury bills auctioriecl immediately prior to the date on w}iich sucli pa}nnent became
delinquetit, or auctioned imtiiediately prior to the beginning of eacji additional 3 month
period if the period of delinquency e:cceeds 3 nionths.
ARTICLE XI - NOTICES
A. Any notice, request, demand, or other comniunication required or pei-initted to be
given under this Agreement ghall be deemed to have been duly given if in writing and
delivered personalIy or sent by telegram or rnailed by first-class, registered, or certified niail,
1s follows:
14
If to the Non-Federal Sponsor:
Director, Planning, Building & Com2yiunity Depailment
City of Aubnrn
25 West Main Street
Auhuril, WA 98001
If to the Government:
Chief, Planning Branch, PPMD
Seattle District, Coi•ps of Engineers
P.O. Box 3755
Scattle, WA 98124-3755
B. A pai•ty iiiay change the addcess to wiiich such corumunications arc to be
directed by giviiig written notice to the other paily in tlie manner provided iii this Article.
C. Alry iiotice, request, demand, or other cominunication niade pursuant to this
Article shall bc deemed to have been received by the addressee at the earlier of such time as
it is actually received or seven calendar days aftex• it is mailed.
ARTICLE XII - CONFIDENTIALITY
To the extent perntitted by the laws governing each party, the patlies agree to
maiiitaiii the confideTitiality of exclianged 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 af the City of Auburii, where creating sucii ali
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 shalI include iu its buciget request or otherwise
propose appropriations of funds in amounts sufficient to fiilfill these obligations for tliat
year, and sha11 use aIl reasonable and lawful means to secure those appropi•iations. The
Non-Federal Sponsoa• reasonably believes that funds in amounts sufficient to fulfill these
obligations latvfully can and will be appropriated and made available for this purpose. In
tiie event funcls are not appropriated in amo«nts sufficient to fulfill tliese obligations, the
Non-Federal Spausor shall use its best efforts to satisfy auy requirements for payments or
contributions of funds under tliis Agreement from any other source of funds legally
available foa• this purpose. Further, if the Non-Fecieral Sponsor is unable to fulfill these
15
obligations, the Governinent may exercise any legal riglits it has ta protect the
Government's interests related ta this Agcee►nent,
IN WITNESS WHERE4F, the parties hereto have e,ceeuted this Agceement, whieh
shall become efTective upon tt;e date it is signed Uy the District Engineer.
DEPARTMENT OF THE ARMY
BY:
DATE:
Anthony O. Wriglit
Colonel, Coi•ps of Engineers
District Engineer
CITY OF AUBURN
BY:
Peter B. Lewis
Mayoc
DATE:
16
CERTIFICATE OF AUTHORITY
I, , do hereby ce;•tify that I am the principal IegaI officer of
the City of Auburn, tllat the City of Auburn is a legally constihited public body wit}i futl
autliority and legal capability to perform the terms of the Agreemejit between the
Depaiiment of the Army and the City of Aubuin in connection with design of tlte
Duwamisli/Mill Creek Wetlaucl SK Ecosystem Restoration Project, and ta pay damages, if
necessary, in the eve»t of the faihire to perform in accordance with the terms of this
Agreeinent and that the persons who have executed this Agreement oil 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_
Dan Heid
City Attoiney, City of Auburn
17
CERTIFICATION REGARDING LOBBYING
The undcrsigue<i certifies, to the best of liis or lier knowledge and belief that:
(1) No Pederal appropriated funds have been paid or will bc paid, by or on behalf
of tlte undersigned, to any person for influencing or atteit71>tittg to influence an afficcr or
emptoyee of any agency, a Member of Congress, an off cer or employee of Coiigress, oi•
an employee of a Member of Congress in coiuiection with the awarciing of any Federal
contract, tlfc niaking of any Fecleral grant, the making of any Federal loan, the entering
itlto of any coopecative agreement, and the extension, continuation, rene«al, amenclment,
or modification of any Federal contract, grant, loan, or cooperative agreement.
(2) If aiiy fimds other tiian Federal appropriated fu«ds liave beeii paid or witl be
paid to any person for inflltencing or atteuipting to influeiice an officer or employee of
any lgency, a Member of Congress, an officer or employee of Congress, or an employee
of a Member of Congress in connection with t13is Federal cantract, grant, Ioan, or
cooperative agreement, the uudersigned shalI complete and submit Standard Form-LLL,
"Diselosure Form to Report Lobbyiiig," iii accordance with its instructions.
{3} The undersigned shall require that the language of this certificatioil Ue
ineluded in the award documejits for alI subawards at all tiers (including subcontracts,
subgrants, and contracts under grants, loaus, and cooperative agreements) and that all
subrecipients shali certify and disciose accordingly.
This certification is a material representation of fact upon which reliauce was
placed when this transaction was tnade or entered inta. Subinission of this certification is
a prerequisite for making or entering into this transactian imposed by 31 U.S.C. 1352.
Any person who fails to file tlie required ceilification shatl be subject to a civil penalty of
not less than $10,000 and not nioce than $ 100,000 for each such failuc•e.
Peter B. Lewis
Mayor, City of Auburii
DATE:
18