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PROJECT PARTNERSHIP AGREEMENT
BETWEEN
THE DEPARTMENT OF THE ARMY
AND
CITY OF AUBURN
FOR
CONSTRUCTION
OF THE
DUWAMISH /MILL CREEK WETLAND 5K REACH
ECOSYSTEM RESTORATION PROJECT
THIS AGREEMENT is entered into this 2-0/f_ day of -51.t ( , Myby
and between the Department of the Army (hereinafter the "Government "), represented by
the U.S. Army Engineer, Seattle District, and City of Auburn (hereinafter the "Non -
Federal Sponsor "), represented by the Mayor
WffNESSETH.THAT
WHEREAS, construction of the Duwamish/Green River Basin Project for
ecosystem restoration (hereinafter the `Authorized Project') at King County, Washington
was authorized by Section 101(b)(26) of the Water Resources Development Act of 2000,
Public Law 106 -51 in accordance with the plans, and subject to the conditions,
recommended in a final report of the Chief of Engineers if a favorable report to the Chief is
completed not later than December 31, 2000;
WHEREAS, a favorable final report of the Chief of Engineers was completed on
December 29, 2000;
WHEREAS, the Government was authorized to perform monitoring and adaptive
management (as defined in Article I.M. and Article LN of this Agreement, respectively)
as part of the Authorized Project,
WHEREAS, the Government and the Non - Federal Sponsor desire to enter into a
Project Partnership Agreement (hereinafter the "Agreement") for construction of the
Duwamish/ Mill Creek Wetland 5K Reach Ecosystem Restoration Project ( a separable
element of the Authorized Project and hereinafter the "Pr(yect " as defined in Article LA of
this Agreement);
WHEREAS, Section 10' ) of the Water Resources Development Act of 1986, Public
Law 99 -662, as amended, (33 U.S.0 2213) specifies the cost - sharing requirements
applicable to the Pr( ject;
WHEREAS, Section 902 of the Water Resources Development Act of 1986,
Public Law 99 -662, as amended (33 U.S.0 2280), establishes the maximum amount of
costs for the Awhori_ed Projecl and sets forth procedures for adjusting such maximum
amount;
WHEREAS, the Government and a non - Federal interest entered into an
agreement, dated February 1, 2010 for engineering and design of the Project (hereinafter
the 'Design Agreement "), under the terms of which the non - Federal interest contributed a
portion of the costs for engineering and design;
WHEREAS, Section 221 of the Flood Control Act of 1970, Public Law 91-611. as
amended (42 U.S.C. 1962d -5b). and Section 1030) of the Water Resources Development
Act of 1986, Public Law 99 -662, as amended (33 U.S.C. 2213CI)), provide, inter ether. that
the Secretary of the Arm), shall not commence construction of any water resources project,
or separable clement thereof until each non - Federal interest has entered into a written
agreement to furnish its required cooperation for the project or separable element,
WHEREAS, the Government and Non - Federal 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- Fcderal Sponsor through a mutually developed formal
strategy of commitment and communication embodied herein. which creates an
environment where trust and teamwork prevent disputes, foster a cooperative bond
between the Government and the Non - Federal Sponsor, and facilitate the successful
implementation of the Project
NOW, THEREFORE, the Government and the Non - Federal Sponsor agree as
fol lows.
ARTICLE 1 - DEFINITIONS
A. The term "Project' shall mean construction of a meandering stream channel,
dendrites, culvert replacement, and large woody debris placement at the Auburn
Environmental Park (Mill Creek Welland 5K) site, as generally described in the final report
of the Chief of Engineers. dated December 29, 2000, and in the "Green /Duwamish River
Basin Ecosystem Restoration Study, Final Feasibilitv Report," dated October 2000.
B. The term "totallnoject costs" shall mean the sum of all costs incurred by the
Non - Federal Sponsor and the Government in accordance with the terms of this Agreement
directly related to construction of the Project Subject to the provisions of this Agreement,
the term shall include, but is not necessarily limited to: the Government's share of
Preconstruction Engineering and Design costs pursuant to the terms of the Design
Agreement, the value of the contributions provided by a non- Federal interest pursuant to
the terms of the Design Agreement, the Government's engineering and design costs during
construction; the Non - Federal Sponsor's and the Government's costs of investigations to
identify the existence and extent of hazardous substances in accordance with Article \IV.A.
of this Agreement; the Government's costs of historic preservation activities in accordance
with Article XVII.A. and Article XVII.B.1 of this Agreement. the Government's costs of
monitoring in accordance with Article 11.1-1. and Article 11.1. of this Agreement; the
Government's costs of whiptive nuuutgement in accordance with Article II.J and Article
II.K. of this Agreement; the Government's actual construction costs, the Government's
supervision and administration costs; the Non - Federal Sponsor's and the Government's
costs of participation in the Project Coordination Team in accordance with Article V of this
Agreement: the Government's costs of contract dispute settlements or awards; the value of
lands, easements, rights -of -way, relocations, and improvements required on lands,
easements, and rights -of-way to enable the disposal of dredged or excavated material for
which the Government affords credit in accordance with Article IV of this Agreement or for
which reimbursement by the Government is required pursuant to Article II.B.3 of this
Agreement; and the Non - Federal Sponsors and the Government's costs of audit in
accordance with Article X.B. and Article X.C. of this Agreement. The term does not
include any costs for operation, maintenance, repair, rehabilitation, or replacement of the
Project; any costs of benernenis under Article 11 G.2. of this Agreement; any costs of
dispute resolution under Article VII of this Agreement; the Government's costs for data
recovery activities associated with historic preservation in accordance with Article
XVB.B.2. and Article XVII.B.3 ofthis Agreement; or the Non - Federal Sponsor's costs
of negotiating this Agreement.
C The term 'period of consb-actiori' shall mean the time from the date the
Government issues the solicitation for the first construction contract for the Project or
commences construction of the Project using the Government's own forces, whichever is
earlier, to the date that construction, monitoring, and, if necessary, adaptive management
of the Project are complete. as determined by the Government, or the date that this
Agreement is terminated in accordance with Article XI11 or Article XIV C of this
Agreement, whichever is earlier
D The term "financial obligations for coitstt•nctioii' shall mean the financial
obligations of the Government that result or would result in costs that are or would be
included in total project costs except for obligations pertaining to the provision of lands,
easements, and rights -of -way the performance of reloc actions, and the construction of
improvements required on lands, easements. and rights -of -way to enable the disposal of
dredged or excavated material.
G. The term "tron- Federal propoi lionctic share" shall mean the ratio of the Non -
Federal Sponsor's total contribution of funds required by Article I I.B.2. of this Agreement
to financial ohligadions for construction, as projected by the Government.
F The term "highway' shall mean any highwa}, roadway, street, or way, including
any bridge thereof, that is owned by a public entity
G. The term "relocation' shall mean providing a functionally equivalent facility
to the owner of utility, cemetery highwav,, railroad, or public facility when such action is
authorized in accordance with applicable legal principles of just compensation, or providing
a functionally equivalent facility when such action is specifically provided for, and is
identified as a relocation, in the authorizing legislation for the Project or any report
referenced therein. Providing a functionally equivalent facility may take the form of
alteration. lowering. raising, or replacement and attendant demolition of the affected facility
or part thereof.
H. The term "Jincliomal portion qJ the Prgjea" shall mean a portion of the Prgjecl
for which construction has been completed and that can function independently. as
determined by the U.S. Army Engineer, Seattle District (hereinafter the "District
Engineer') in writing, although the remainder of the Project is not complete.
I. The term "hetlernent'shall mean a difference in the construction of an element
of the Prr ject that results from the application of standards that the Government determines
exceed those that the Government would otherwise apply to the construction of that
element. The term does not include any construction for features not included in the
Project as defined in paragraph A. of this Article.
J The term "Federal progrmn finals" shall mean funds provided by a Federal
agency other than the Department of the Army. plus any non- Federal contribution
required as a matching share therefor
K. The term "fiscal near" shall mean one year beginning on October I and ending
on September 30
L. The term "monitoring" shall mean activities, including the collection and
analysis of data, that are necessar) to determine if predicted outputs of the Project are
being achieved and to determine ifw1aptive management is necessary
M. The term "aciaplive nrnagrtment" shall mean measures taken to adjust the
Project in response to the rmoniloring results so that the predicted outputs of the Projecl are
achieved following its construction. The term includes, but is not necessarily limited to.
modifications of structures, or adjustments to operation or management, of the Protect.
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 construct the Prnjeel, applying those procedures
usually applied to Federal projects, in accordance with Federal laws. regulations, and
policies.
fhe Government shall not issue the solicitation for the first contract for
construction of the Project or commence construction of the Project using the
Governments own forces until the Non - Federal Sponsor has confirmed in writing its
willingness to proceed with the Projecl
2. The Government shall afford the Non - Fcderal Sponsor the opportunity to
review and comment on the solicitations for all contracts, including relevant plans and
specifications, prior to the Govemmcnt"s issuance of such solicitations. To the extent
possible, the Government shall aflord the Non - Fcderal 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 construction using the Government's own forces,
execution of contract modifications, resolution of contract claims, and performance of all
work on the Pmicct shall be exclusively within the control of the Government.
3 At the time the District Engineer furnishes the contractor with the
Government's Written Notice of Acceptance of Completed Work for each contract awarded
by the Government for the Project the District Engineer shall furnish a copy thereof to the
Non - Federal Sponsor
4 As of the effective date of this Agreement, $18.115,600 of Federal
funds have been provided by Congress for the Authorized Project of which $5,000,000 is
currently projected to be available for the Project The Government makes no
commitment to request Congress to provide additional Federal funds for the Authorized
Project or the Project Further, the Government s financial participation in the Prgject is
limited to the Federal funds that the Government makes available to the Project
B The Nun - Federal Sponsor shall contribute 35 percent of total project costs in
accordance with the provisions of this paragraph.
1 In accordance with Article 111 of this Agreement. the Non - Federal
Sponsor shall provide all lands, easements, and rights -of -way, including those required for
relocations, the borrowing of material, and the disposal of dredged or excavated material;
shall perform or ensure performance of all relocations, and shall construct improvements
required on lands, easements, and rights -of -way to enable the disposal of dredged or
excavated material that the Government determines to be required or to be necessary for
construction, operation, and maintenance of the Project
2. The Non - Federal Sponsor shall provide funds in accordance with Article
VI.B. of this Agreement in the amount necessary to meet the Non - Federal Sponsor's
required share of 35 percent of total project costs if the Government projects at any time that
the collective value of the following contributions will be less than such required share: (a)
the value ofthe contributions provided by a non - Federal interest pursuant to the terms of
the Design Agreement; (b) the value of the Non - Federal Sponsor's contributions under
paragraph B.1 of this Article, as determined in accordance with Article IV of this
Agreement; and (c) the value of the Non - Fedcral Sponsor's contributions under Article V,
Article X. and Article XIV.A. of this Agreement.
3 The Government, Subject to the availability of funds, shall refund or
reimburse to the Non - Federal Sponsor any contributions in excess of 35 percent of mled
project costs if the Government determines at any time that the collective value of the
following contributions has exceeded 35 percent of laud project costs. (a) the value of the
Non - Federal Sponsor's contributions under paragraph B.2. of this Article; (b) the value of
the contributions provided by a non - Federal interest pursuant to the terms ofthe Design
Agreement; (c) the value of the Non - Federal Sponsor's contributions under paragraph B.I
of this Article, as determined in accordance with Article IV of this Agreement, and (d) the
value of the Non - Federal Sponsor's contributions under Article V. Article X, and Article
XIV.A. ofthis Agreement. After such a determination, the Government, in its sole
discretion, may acquire any remaining lands, easements, and rights -of -way required for the
Project. perform any remaining relocations necessary for the Projecl, or construct any
remaining improvements required on lands, casements, and rights -of -way to enable the
disposal of dredged or excavated material required for the Projecl on behalf of the Non -
Federal Sponsor Notwithstanding the acquisition of lands, easements, and rights -of -way,
performance of relocations, or construction of improvements required on lands,
easements. and rights -of -way to enable the disposal of dredged or excavated material by the
Government under this paragraph, the Non - Federal Sponsor shall be responsible, as
between the Government and the Non - Fedcral Sponsor, for any costs of cleanup and
response in accordance with Article XIV.0 of this Agreement.
C When the District Engineer determines that, except for monitoring and
adaptive n7anngement, the entire Project, or a f me lional portion orlhe Project, is
complete, the District Engineer shall so notify the Non - Federal Sponsor in writing and
furnish the Non - Fedcral Sponsor with a final Operation. Maintenance, Repair,
Rehabilitation, and Replacement Manual (hereinafter the "OMRR &R Manual ") or, if the
final OMRR &R Manual is not available, an interim OMRR &R Manual for the entire
Project or such completed portion. Upon such notification, the Government also shall
furnish to the Non - Federal Sponsor a copy of all final as -built drawings for the entire
Prcjeci or such completed portion if such drawings are available. Not later than 6
months after such notification by the Government that the entire Projecl is complete, the
Government shall furnish the Non- Fcdcral Sponsor with the final OMRR &R Manual and
all final as -built drawings for the entire Projecl. In the event the final OMRR &R Manual
or all final as -built drawings for the entire Project cannot be completed within the 6
month period, the Government shall provide written notice to the Non - Federal Sponsor,
and the Government and the Non - Fedcral Sponsor shall negotiate an acceptable
completion date for furnishing such documents. Further after completion of all contracts
for the Projecl, copies of all of the Government s Written Notices of Acceptance of
Completed Work for all contracts for the Projecl that have not been provided previously
shall be provided to the Non - Federal Sponsor
D Upon notification from the District Engineer in accordance with paragraph C
of this Article, the Non - Federal Sponsor shall operate, maintain, repair rehabilitate, and
replace the entire Prgjecl, or the jundional portion of the Project as the case may be, in
accordance with Article VIII of this Agreement. Concurrent with the Non - Federal
Sponsor's performance of operation, maintenance, repair, rehabilitation, and replacement
for the completed Project or such completed portion, the Government shall perform
monitoring and, if necessary aclapthve management in accordance with the provisions of
this Agreement.
E. Upon the District Engineer's determination that, except for monitoring and
adaptive management, the entire Project is complete, the Government shall conduct an
interim accounting, in accordance with Article VI.C. of this Agreement, and furnish the
results to the Non - Federal Sponsor Further, upon conclusion of the period e?fconsnvction
the Government shall amend the interim accounting to complete the final accounting, in
accordance with Article VI.C. of this Agreement, and Hanish the results to the Non - Federal
Sponsor
F The Non - Federal Sponsor shall not use Federal program_fiauls to meet any of its
obligations for the Project under this Agreement unless the Federal agency providing the
funds verifies in writing that such finds are authorized to be used to carry out the Project
G. The Non - Federal Sponsor may request the Government to perform or provide,
on behalf of the Non - Federal Sponsor, one or more of the services (hereinafter the
"additional work ") described in this paragraph. Such requests shall be in writing and
shall describe the additional work requested to be performed or provided. If in its sole
discretion the Government elects to perform or provide the requested additional work or
any portion thereof, it shall so notify the Non - Federal Sponsor in a writing that sets forth
any applicable terms and conditions, which must be consistent with this Agreement. In
the event of conflict between such a writing and this Agreement. this Agreement shall
control. The Non - Federal Sponsor shall be solely responsible for all costs of the
additional work performed or provided by the Government under this paragraph and shall
pay all such costs in accordance with Article VI.D of this Agreement.
I Acquisition of lands, easements, and rights -of -way; performance of
relocations, or construction of improvements required on lands, easements, and rights -of-
way to enable the disposal ofdredged or excavated material for the Project
Notwithstanding acquisition of lands, casements, and rights -of -way performance of
relocations, or construction of improvements by the Government. the Non - Federal
Sponsor shall be responsible, as between the Government and the Non - Federal Sponsor,
for any costs of cleanup and response in accordance with Article NIV C of this
Agreement.
2. Inclusion of bencrincias in the construction of the Project In the event
the Government elects to include an} such heltermcnis, the Government shall allocate the
costs of the Project features that include betterments between total project costs and the
costs of the betterments.
7
H. Prior to completion of construction of the Project the Government, in
consultation with the Non - Federal Sponsor and, as appropriate, other concerned agencies,
shall finalize the plan for monitoring of the Prayed The monitoring plan shall describe
the specific parameters to be monitored; how these parameters relate to achieving the
desired outcomes and to ascertaining whether adaptive managenrew measures for the
Project will be necessary: methods for measuring those parameters; frequency and
duration of nroadoring of the Project; criteria for measuring the success of the Project;
preparation and distribution of nn niloring reports and other coordination requirements:
and estimated monitoring costs.
1. Upon providing notification to the Non - Federal Sponsor that the Project is
complete in accordance with paragraph C. of this Article, the Government shall perform
monitoring of the Projcci in accordance with the monitoring plan for a period of 5
consecutive years from the date of such notification. However, the moniloring of the
Project by the Government shall end prior to the expiration of such period upon the
occurrence of either of the following events: (I ) the award of the next contract for
monitoring of the Protect, or continuation of moniloring of the Project using the
Government's own forces, would result in the costs incurred for nmnilorhW and adaptive
management of all the features for ecosystem restoration in the Authorized Project
exceeding 7 percent of the amount equal to total project costs of the Project plus the
costs for all other ecosystem restoration separable elements of the Authorized Project
minus the costs for monitoring and adaptive management of all the features for ecosystem
restoration in the Authorized Project; or (2) the District Engineer determines that
continued monitoring of the Project is not necessary
J Applying the criteria specified in the monitoring plan, the Government shall
determine whether adaptive nanugennent of the Prefect is necessary The Government
may make such a determination at any time during the monitoring period described in
paragraph I. of this Article. Within 120 calendar days after the expiration or termination
of such monitoring period, the Government shall make a final determination of whether
adaptive managemenl of the Project is necessary In making such determinations, the
Government shall consult with the Non - Federal Sponsor and, as appropriate, with other
concerned agencies. Upon any determination by the Government that adaptive
management of the Projecl is necessary, the Government shall notify the Non - Federal
Sponsor in writing of its determination and expeditiously shall perform such adoptive
management in accordance with paragraph K. of this Article. If. after the expiration or
termination of such monitoring period, the Government determines that uduptim
management of the Project is not necessary. the Government shall notity the Non - Federal
Sponsor in writing of its determination and shall conduct a final accounting in accordance
with paragraph E. of this Article.
K. If the Government determines, pursuant to paragraph J of this Article, that
adoptive management of the Project is necessary; the Government, in consultation with
the Non - Federal Sponsor and, as appropriate, other concerned agencies, shall perform
adaptive managemenl ofthe Project in accordance with the provisions of this paragraph
and paragraph A. of this Article.
ly
I In no event shall the award of any contract for adcgnive mmnagement of
the Project, or continuation of adaptive management of the Project using the
Government's own forces, result in the costs incurred for monitoring and aclafrtile
management of all the features for ecosystem restoration in the Authorized Project
exceeding 7 percent of the amount equal to total project costs of the Project plus the
costs for all other ecosystem restoration separable elements of the Authorized Project
minus the costs for munaoring and mkgrlive mamagement of all the features for ecosystem
restoration in the Authorized Project. As of the effective date of this Agreement, the costs
of monitoring and adaptive management of the entire Authorized Project are estimated to
be $8,240,000 As of the effective date of the Agreement, the costs of monuoring and
adaptive management of this Pn ject are estimated to be $60.000
2. When the District Engineer determines that adaptive nuumgemenl of
the Project is complete. or that the costs for nunriroring and adaptive management have
or will exceed the 7 percent amount determined in accordance with sub - paragraph I of
this paragraph. the District Engineer shall. a) notify the Non - Fcdcral Sponsor in writing
Of such completion; b) furnish the Non - Federal Sponsor with an amended OMRR &R
Manual that reflects any modifications to structures or adjustments to operation or
management methods; c) furnish the Non - Federal Sponsor with a copy of any new or
revised as -built drawings for the Project; and d) within 30 calendar days after such notice.
conduct a final accounting in accordance with paragraph E. of this Article.
3 Upon notification from the District Engineer in accordance with sub-
paragraph 2. of this paragraph, the Non - Federal Sponsor shall operate, maintain. repair,
rehabilitate, and replace the entire Project in accordance with Article VIII of this
Agreement.
L. The Non - Federal Sponsor shall prevent obstructions or encroachments on the
Project (including prescribing and enforcing regulations to prevent such obstructions or
encroachments) such as any new developments on Project lands, easements, and rights -of-
way or the addition of facilities which might reduce the outputs produced by the Project,
hinder operation and maintenance of the Project. or interfere with the Project's proper
function.
M. The Non - Federal Sponsor shall not use the Project, or the lands, easements,
and rights -of -way required pursuant to Article 111 of this Agreement. as a wetlands bank
or mitigation credit for any other project.
ARTICLE III - LANDS, EASEMENTS, RIGHTS -OF -WAY,
RELOCATIONS, DISPOSAL AREA IMPROVEMENT'S, AND
COMPLIANCE WITH PUBLIC LAW 91 -646, AS AMENDED
A. The Government, after consultation with the Nun - Fcdcral Sponsor, shall
determine the lands, easements, and rights -of -way required for construction, operation, and
maintenance oflhe Project, including those required for relocations, the borrowing of
material, and the disposal of dredged or excavated material. The Government in a timely
manner shall provide the Non - Federal Sponsor with general written descriptions, including
maps as appropriate, of the lands, casements. and rights -of -way that the Government
determines the Non - Federal Sponsor must provide, in detail sufficient to enable the Non -
Federal Sponsor to fulfill its obligations under this paragraph, and shall provide the Non -
Federal Sponsor with a written notice to proceed with acquisition of such lands, easements.
and rights -of -way Prior to the issuance of the solicitation for each Government contract
for construction of the Project, or prior to the Government incurring any financial
obligations fir r con.stuction of a portion of the Projecl using the Government's own
forces, the Non - Federal Sponsor shall acquire all lands, easements, and rights -of -way the
Government determines the Non - Federal Sponsor must provide for that work and shall
provide the Government with authorization for entry thereto_ Furthermore, prior to the
end of the period ofconsnruction, the Non - Federal Sponsor shall acquire all lands,
casements, and rights- of-way required for construction. operation, and maintenance of the
Prgjecl, as set forth in such descriptions, and shall provide the Government with
authorization for entry thereto The Non - Federal Sponsor shall ensure that lands,
easements, and rights -of -way that the Government determines to be required for the Projecl
and that were provided by the Non- Fcdcral Sponsor are retained in public ownership for
uses compatible with the authorized purposes of the Projecl
B. The Government, after consultation with the Non - Federal Sponsor, shall
determine the relocations necessary for construction, operation, and maintenance of the
Project, including those necessary to enable the borrowing of material or the disposal of
dredged or excavated material. The Government in a timely manner shall provide the Non -
Federal Sponsor with general written descriptions, including maps as appropriate, of such
relocations in detail sufficient to enable the Non - Federal Sponsor to fttlfill its obligations
under this paragraph, and shall provide the Non - Federal Sponsor with a written notice to
proceed with such relocations. Prior to the issuance ofthe solicitation for each Government
contract for construction of the Projecl, or prior to the Government incurring any .financial
obligations for• construction of a portion of the Projecl using the Government's own
forces, the Non - Federal Sponsor shall prepare or ensure the preparation of plans and
specifications for, and perform or ensure the performance of, all relocations the Government
determines to be necessary for that work. Furthermore, prior to the end of the period of
con.str uctioo. the Non - Federal Sponsor shall perform or ensure performance of all
relocations as set forth in such descriptions.
C. The Government, after consultation with the Non - Federal Sponsor, shall
determine the improvements required on lands. easements, and rights -of -way to enable the
disposal of dredged or excavated material associated with construction, operation, and
maintenance of the Project Such improvements may include, but are not necessarily
limited to, retaining dikes, svasteweirs, bulkheads, embankments. monitoring features,
stilling basins, and de- watering pumps and pipes. The Government in a timely manner shall
provide the Non - Federal Sponsor with general written descriptions. including maps as
appropriate, of such improvements in detail sufficient to enable the Non - Federal Sponsor to
fulfill its obligations under this paragraph, and shall provide the Non - Federal Sponsor with a
10
written notice to proceed wwith construction of such improvements. Prior to the issuance of
the solicitation for each Government contract for construction of the Prqjecl, or prior to the
Government incurring any financial ohligmions for construction of a portion of the
Project using the Government's own forces, the Non - Federal Sponsor shall prepare plans
and specifications for all improvements the Government determines to be required for the
disposal of dredged or excavated material under that contract, submit such plans and
specifications to the Government for approval, and provide such improvements in
accordance with the approved plans and specifications. Furthermore, prior to the end of the
Period ofconsiruclion, the Non - Federal Sponsor shall provide all improvements set forth in
such descriptions.
D The Non - Federal Sponsor shall comply with the applicable provisions of the
Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, Public
Law 91 -646. as amended (42 U S.C. 4601- 4655). and the Uniform Regulations contained in
49 C.F.R. Part 24, in acquiring lands, easements, and rights -of -sway required for
construction, operation, and maintenance of the Project, including those required for
relocations. the borrowing of material, or the disposal of dredged or excavated material, and
shall inform all affected persons of applicable benefits, policies, and procedures in
connection with said Act.
ARTICLE IV - CREDIT FOR VALUE OF LANDS, EASEMENTS, RIGHTS -OF -WAY,
RELOCATIONS, AND DISPOSAL AREA IMPROVEMENTS
A. The Government shall include in total prajecl costs and afford credit toward the
Non - Federal Sponsor's share of total project costs for the value of the lands, easements, and
rights -of -way that the Non - Fedcral Sponsor Hoist provide pursuant to Article I ILA. of this
Agreement; for the value of the relocations that the Non - Fedcral Sponsor must perform or
for which it must ensure performance pursuant to Article II I.B. of this Agreement; and for
the value ofthe improvements required on lands, easements, and rights -of -sway to enable the
disposal of dredged or excavated material that the Non - Federal Sponsor must provide
pursuant to Article IILC. of this Agreement. However, no amount shall be included in total
1wolecl costs. no credit shall be afforded, and no reimbursement shall be provided for the
value of any lands, easements, rights -of -way, relocations, or improvements required on
lands, easements, and rights -of -way to enable the disposal of dredged or excavated material
that have been provided previously as an item of cooperation for another Federal project. In
addition. no amount shall be included in lolal project costs, no credit shall be afforded, and
no reimbursement shall be provided lbr the value of lands, easements, rights -of -way,
relocations, or improvements required on lands. easements, and rights- of-way to enable the
disposal of dredged or excavated material that were acquired or performed using Fedcral
Program f:ouds unless the Federal agency providing the funds verities in writing that such
funds are authorised to be used to carry out the Proicel
B. The Non - Federal Sponsor in a timely manner shall provide the Government with
such documents as are sufficient to enable the Government to determine the value of any
contribution provided pursuant to Article III.A.. Article III.B., or Article Iff.C. ofthis
Agreement. Upon receipt of such documents, the Government in a timely manner shall
determine the value of such contributions for the purpose of including such value in total
hrgjeci cosic and for determining the amount of credit to be afforded or reimbursement to
be provided in accordance with the provisions of this Agreement.
C. For the purposes of determining the value to be included in iota/project costs
and the amount ofcredit to be afforded or reimbursement to be provided in accordance with
this Agreement and except as otherwise provided in paragraph G. of this Article, the value
of lands. easements, and rights -of -way, including those required for relocalions, the
borrowing of material, and the disposal of dredged or excavated material, shall be the fair
market value of the real property interests, plus certain incidental costs of acquiring those
interests, as determined in accordance with the provisions ofthis paragraph.
I Date of Valuation. The fair market value of lands, easements, or rights -
of -way owned by the Non - Federal Sponsor on the effective date of this Agreement shall be
the fair market value of such real property interests as of the date the Non - Federal Sponsor
provides the Government with authorization for entry thereto. The fair market value of
lands, easements, or rights -of -way acquired by the Non - Federal Sponsor after the effective
date of this Agreement shall be the fair market value of such real property interests at the
time the interests are acquired.
2. General Valuation Procedure. Except as provided in paragraph C.3 or
paragraph C.5 of this Article, the fair market value of lands, easements, or rights -of -way
shall be determined in accordance with the provisions ofthis paragraph.
a. The Non - Federal Sponsor shall obtain, for each real property
interest, an appraisal that is prepared by a qualified appraiser who is acceptable to the Non -
Federal Sponsor and the Government. The Non - Federal Sponsor shall provide the
Government with the appraisal no later than 6 months after the Non- Fcderal Sponsor
provides the Government with an authorization for entry for such real property interest.
The appraisal must be prepared in accordance with the applicable rules of just
compensation, as specified by the Government. The fair market value shall be the amount
set forth in the Non - Federal Sponsor's appraisal, if such appraisal is approved by the
Government. In the event the Government does not approve the Non - Federal Sponsor's
appraisal. the Nun - Federal Sponsor may obtain a second appraisal, and the fair market value
shall be the amount set forth in the Non - Federal Sponsor's second appraisal, il'such
appraisal is approved by the Government. In the event the Government does not approve
the Non - Federal Sponsor s second appraisal, the Non - Federal Sponsor chooses not to obtain
a second appraisal, or the Non - Federal Sponsor does not provide the first appraisal as
required in this paragraph, the Government shall obtain an appraisal, and the fair market
value shall be the amount set forth in the Government's appraisal, if such appraisal is
approved by the Nun - Federal Sponsor In the event the Non - Federal Sponsor does not
approve the Governments appraisal, the Government, after consultation with the Non -
Federal Sponsor, shall consider the Government's and the Non - Federal Sponsor's appraisals
and determine an amount based thereon, which shall be deemed to be the fair market value.
12
b. Where the amount paid or proposed to be paid by the Non- Federal
Sponsor for the real property interest exceeds the amount determined pursuant to paragraph
C.2.a. of this Article, the Government, at the request of the Non - Federal Sponsor, shall
consider all factors relevant to determining fair market value and, in its sole discretion, after
consultation with the Non - Federal Sponsor, may approve in writing an amount greater than
the amount determined pursuant to paragraph C.2.a. of this Article, but not to exceed the
amount actually paid or proposed to be paid. If the Government approves such an amount.
the fair market value shall be the lesser of the approved amount or the amount paid by the
Non - Federal Sponsor but no less than the amount determined pursuant to paragraph C.2.a.
of this Article.
3 Eminent Domain Valuation Procedure. For lands. easements, or rights -
of -way acquired by eminent domain proceedings instituted after the effective date of this
Agreement, the Non - Federal Sponsor, prior to instituting such proceedings. shall submit to
the Government notification in writing of its intent to institute such proceedings and an
appraisal of the specific real property interests to be acquired in such proceedings. The
Government shall have 60 calendar days after receipt of such a notice and appraisal within
which to review the appraisal, if not previously approved by the Government in writing.
a. I f the Government previously has approved the appraisal in
writing, or if the Government provides written approval of, or takes no action on, the
appraisal within such 60 day period, the Non- Fedcral Sponsor shall use the amount set forth
in such appraisal as the estimate of just compensation for the purpose of instituting the
eminent domain proceeding.
b. If the Government provides written disapproval of the appraisal,
including the reasons for disapproval, within such 60 day period, the Government and the
Non - Federal Sponsor shall consult in good faith to promptly resolve the issues or areas of
disagreement that are identified in the Government's written disapproval. If, after such
good faith consultation, the Government and the Non - Federal Sponsor agree as to an
appropriate amount, then the Non- Fcderal Sponsor shall use that amount as the estimate of
just compensation for the purpose of instituting the eminent domain proceeding. If alter
such good faith consultation, the Government and the Non - Federal Sponsor cannot agree as
to an appropriate amount, then the Non - Federal Sponsor may use the amount set forth in its
appraisal as the estimate ofjust compensation for the purpose of instituting the eminent
domain proceeding.
c. For lands, easements, or rights -of -way acquired by eminent
domain proceedings instituted in accordance with paragraph C.3 of this Article, fair market
value shall be either the amount of the court award for the real property interests taken. to
the extent the Government determined such interests are required for construction,
operation, and maintenance of the Prnjecl or the amount of any stipulated settlement or
portion thereof that the Government approves in writing.
4 Incidental Costs. For lands, casements, or rights -of -way acquired by the
Non - Federal Sponsor within a five year period preceding the effective date of this
13
Agreement. or at any time after the effective date of this Agreement. the value of the interest
shall include the documented incidental costs of acquiring the interest, as determined by the
Govemmcnt, subject to an audit in accordance with Article X.C. of this Agreement to
determine reasonableness, allocability, and allowability of such costs. In the event the
Government modifies its determination made pursuant to Article III.A, of this
Agreement, the Government shall afford credit for the documented incidental costs
associated with preparing to acquire the lands. easements, or rights -of -way identified in
the original determination. subject to an audit in accordance with Article X.0 of this
Agreement to determine reasonableness, allocability, and allowability of such costs.
Such incidental costs shall include, but not necessarily be limited to; closing and title costs.
appraisal costs, survey costs. attorney's fees, plat maps, mapping costs. actual amounts
expended for payment of any relocation assistance benefits provided in accordance with
Article IILD of this Agreement, and other payments by the Non - Federal Sponsor for
items that are generally recognized as compensable. and required to be paid, by
applicable state law due to the acquisition of a real property interest in accordance with
Article I I I of this Agreement. The value of the interests provided by the Non - Federal
Sponsor in accordance with Article 11 LA. of this Agreement shall also include the
documented costs of obtaining appraisals pursuant to paragraph C.2. of this Article. as
determined by the Government, and subject to an audit in accordance with Article X.C.
of this Agreement to determine reasonableness, allocability, and allowability of such
costs.
5 Waiver of Appraisal. Except as required by paragraph C.3 of this
Article, the Government may waive the requirement for an appraisal pursuant to this
paragraph if it determines that an appraisal is unnecessary because the valuation is
uncomplicated and that the estimated fair market value of the real property interest is
$10,000 or less based upon a review of available data. In such event. the Government
and the Non - Federal Sponsor must agree in writing to the value of such real property
interest in an amount not in excess of $10.000
D After consultation with the Non - Federal Sponsor, the Government shall
determine the value of relocations in accordance with the provisions of this paragraph.
I For a relocation other than a highircm, the value shall be only that portion
of relocation costs that the Government determines is necessary to provide a functionally
equivalent facility, reduced by depreciation, as applicable, and by the salvage value of any
removed items.
2. For a relocation of a highway, the value shall be only that portion of
relocation costs that Would be necessary to accomplish the relocation in accordance with the
design standard that the State of Washington would apply under similar conditions of
geography and traffic load, reduced by the salvage value of any removed items.
3 Relocation costs shall include, but not necessarily be limited to, actual
costs of performing the relocation; planning. engineering and design costs: supervision and
administration costs: and documented incidental costs associated with performance of the
relocation, as determined by the Government. Relocation costs shall not include any costs
14
due to bellermenls, as determined by the Government, nor any additional cost of using new
material when suitable used material is available. Relocation costs shall be subject to an
audit in accordance with Article X.0 of this Agreement to determine reasonableness.
allocability, and allowabitity of such costs.
F. The value of the improvements required on lands, easements, and rights -of-way
to enable the disposal of dredged or excavated material shall be the costs of the
improvements, as determined by the Government. subject to an audit in accordance with
Article X.C. of this Agreement to determine reasonableness, allocability, and allowability of
such costs. Such costs shall include. but not necessarily be limited to, actual costs of
providing the improvements. planning, engineering and design costs; supervision and
administration costs; and documented incidental costs associated with providing the
improvements, but shall not include any costs due to betcrmews, as determined by the
Government.
F Any credit afforded or reimbursement provided under the terms of this
Agreement for the value of relocations, or improvements required on lands, easements.
and rights -of -way to enable the disposal of dredged or excavated material, performed within
the Project boundaries is subject to satisfactory compliance with applicable Federal labor
laws covering non - Federal construction, including, but not limited to, 40 U.S C. 3141-
3148 and 40 U.S.C. 3701 -3708 (revising, codifying and enacting without substantive
change the provisions of the Davis -Bacon Act (formerly 40 U.S C. 276a el.scq ), the
Contract Work Hours and Safet} Standards Act (formerly 40 U.S.0 327 et seg) and the
Copeland Anti - Kickback Act ( formerh 40 U S.C. 276c)). Notwithstanding any other
provision of this Agreement. credit or reimbursement may be withheld, in whole or in
part, as a result of the Non - Federal Sponsor's failure to comply with its obligations under
these laws.
G. Where the Government, on behalf of the Non - Federal Sponsor pursuant to
Article II.G.I of this Agreement, acquires lands, easements, or rights -of -way, performs
relocations. or constructs improvements required on lands, easements, or rights -of -way to
enable the disposal of dredged or excavated material, the value to be included in total
project costs and the amount of credit to be afforded or the amount of reimbursement
provided in accordance with this Agreement shall be the costs of such work performed or
provided by the Government that are paid by the Non- Fcderal Sponsor in accordance
with Article VLD of this Agreement. In addition, the value to he included in total
project costs and the amount of such credit to be afforded or the amount of
reimbursement provided in accordance with this Agreement shall include the documented
costs incurred by the Non - Federal Sponsor in accordance with the terms and conditions
agreed upon in writing pursuant to Article ILG.1 ofthis Agreement subject to an audit in
accordance with Article X.0 ofthis Agreement to determine reasonableness, allocability,
and allowability of such costs.
15
ARTICLE V - PROJECT 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 Project Coordination Team.
Thereafter, the Project Coordination Team shall meet regularly until the end of the period o/
c onsn•uclion. The Government's Project Manager and a counterpart named by the Non -
Federal Sponsor shall co -chair the Project Coordination Team.
B. The Government's Project Manager and the Non - Federal Sponsor's counterpart
shall keep the Project Coordination Team informed of the progress of construction and of
significant pending issues and actions, and shall seek the views of the Project Coordination
Team on matters that the Project Coordination Team generally oversees.
C. Until the end ofiheperioelolconsOZtction, the Project Coordination Team shall
generally oversee the Prt jecl. including matters related to: plans and specifications;
scheduling; real property and relocation requirements; real property acquisition, contract
awards and modifications; contract costs; the application of and compliance with 40
U.S.C. 3141 -3148 and 40 U S.C. 3701 -3708 (revising, codifying and enacting without
substantive change the provisions of the Davis -Bacon Act (formerly 40 U.S C. 276a et
seq ), the Contract Work Hours and Safety Standards Act (formerly 40 U.S.C. 327 et
seq) and the Copeland Anti- Kickback Act (formerly 40 U S.C. 276c)) for relocations and
improvements required on lands, casements, and rights -of -way to enable the disposal of
dredged or excavated material; the investigations to identify the existence and extent of
hazardous substances in accordance with Article XIV.A. ofthis Agreement; historic
preservation activities in accordance with Article XVII of this Agreement, the
Government's cost projections; final inspection of the entire Prcjecl orftnelionalportions
ofhe Prgjecl; preparation of the proposed OMRRR R Manual, finalization of the
monitoring plan, performance of monitoring and culalvire numagemew; 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 Prgjecl shall be consistent with a project
management plan developed by the Government after consultation with the Non - Federal
Sponsor
D The Project Coordination Team may make recommendations to the District
Engineer on matters related to the Proje c 1 that the Project Coordination Team generally
oversees, including suggestions to avoid potential sources of dispute. The Government in
good faith shall consider the recommendations of the Project Coordination Team. The
Government, having the legal authority and responsibility for construction of the Project.
has the discretion to accept or reject, in whole or in part, the Project Coordination'feam s
recommendations.
E. The Nun - Federal Sponsor's costs of participation in the Project Coordination
Team shall be included in tow1 project costs and shared in accordance with the provisions
of this Agreement, subject to an audit in accordance with Article X.0 of this Agreement
16
to determine reasonableness, allocability, and allowabilily of such costs. "I he
Government's costs of participation in the Project Coordination Team shall be included
in total prgiect costs and shared in accordance with the provisions of this Agreement.
ARTICLE VI - METHOD OF PAYMENT
A. In accordance with the provisions of this paragraph, the Government shall
maintain current records and provide to the Non - Fedcral Sponsor current projections of
costs. financial obligations, contributions provided by the parties, and the value included
in total project costs for lands, easements, rights -of way, i-elocactions, and improvements
required on lands, easements, and rights -of -way to enable the disposal of dredged or
excavated material determined in accordance with Article IV of this Agreement.
I As of the effective date of this Agreement, total project costs arc
projected to be $5,738,048, the value included in total prgiect costs for lands. easements.
rights -of -way, relocations, and improvements required on lands, easements, and rights -of-
way to enable the disposal of dredged or excavated material determined in accordance with
Article IV of this Agreement is projected to be $900,000; the value of the Non - Federal
Sponsor's contributions under Article V, Article X. and Article XIV.A. of this Agreement is
projected to be $40,000; the Non - Federal Sponsor's contribution of funds required by
Article II.B 2. of this Agreement is projected to be $707,101.80; the non- heclenl
proportionate shave is projected to be 22.26 percent; the Non - Federal Sponsor's
contribution of funds required by Article XVII.B.3 of this Agreement is projected to be
$0; and the Government's total financial obligations for the additional work to be
incurred and the Non - Federal Sponsor's contribution of funds for such costs required by
Article II.G. of this Agreement are projected to be $0 These amounts and percentage are
estimates subject to adjustment by the Government, after consultation with the Non -
Federal Sponsor, and are not to be construed as the total financial responsibilities of the
Government and the Non - Federal Sponsor
2. By January 2015 and by each quarterly anniversary thereof until the
conclusion of the period of consd•acHon and resolution of all relevant claims and appeals
and eminent domain proceedings, the Government shall provide the Non - Federal Sponsor
with a report setting forth all contributions provided to date and the current projections of
the following: total project costs, the value included in total project costs for lands,
easements, rights -of -way, reloca6oae, and improvements required on lands, easements,
and rights -of -way to enable the disposal ofdredged or excavated material determined in
accordance with Article IV of this Agreement; the value ofthe Non - Federal Sponsor s
contributions under Article V. Article X. and Article XIV.A. of this Agreement: the Non -
Federal Sponsor's total contribution of funds required by Article I1.B.2. of this
Agreement; the non - Federal proportconale share; the Non - Federal Sponsor's total
contribution of funds required by Article XVII.B.3 of this Agreement, the total
contribution of funds required from the Non - Fedcral Sponsor for the upcoming fiscal
recd•, the maximum amount determined in accordance with Article XX of this
Agreement; and the Government's total financial obligations for additional work incurred
17
and the Non - Federal Sponsor's contribution of funds for such costs required b) Article
II.G. of this Agreement.
B The Non - Federal Sponsor shall provide the contributions of funds required by
Article II.B.2. and Article XVII.B.3 of this Agreement in accordance with the provisions
of this paragraph.
I Not less than 30 calendar days prior to the scheduled date for issuance
of the solicitation for the first contract for construction of the Pr-oject or commencement
of construction of the Project using the Government's cnvn forces. the Government shall
notify the Non - Fcderal Sponsor in writing of such scheduled date and the funds the
Government determines to be required from the Non - Federal Sponsor. after consideration
of any cash contribution provided by a non - Federal interest pursuant to the terms of the
Design Agreement, to meet. (a) the note - Federal proportionate share ofjinoncial
obligations lot* coras7ruction incurred prior to the commencement of the period of
con.t•rreiiow (b) the projected non - Federal pt*npot*tionate share of financial ohligations
fir consn•uction to be incurred in the first fiscal tear, or, if use of a continuing contract
has been approved pursuant to Federal laws, regulations, and policies, the projected non -
Federal proportionate shat*(, of financial obligations fin• construction through the first
fiscal vear, and (c) the Non- Fcdcral Sponsors share of the projected financial obligations
for data recovery activities associated with historic preservation pursuant to Article
XVII.B.3 ofthis Agreement to be incurred in the firstjiscal ' real-, or, if use of
continuing contract has been approved pursuant to Federal laws, regulations, and policies.
the Non - Federal Sponsor's share of the projected financial obligations for data recovery
activities associated with historic preservation pursuant to Article XVI I.B.3 of this
Agreement through the first fisca/ veto• Not later than such scheduled date, the Non -
Federal Sponsor shall provide the Government with the hill 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 construction of the PP0Jec1 is complete, the
Government shall notify the Non-Federal Sponsor in writing of the funds the Government
determines to be required from the Non - Federal Sponsor, and the Non - Federal Sponsor
shall provide such funds in accordance with the provisions of this paragraph.
a. Where the Government will use a continuing contract approved
pursuant to Federal laws. regulations, and policies to make financird obligations for
construction of the Project or financial obligations for data recovery activities associated
with historic preservation pursuant to Article XV11.B.3 of this Agreement, the
Government shall notify the Non - Federal Sponsor in writing, no later than 60 calendar
days prior to the beginning of each fiscal veto• in which the Government projects that it
18
will make such financial obligations, of the funds the Government determines to be
required from the Non - Federal Sponsor, after consideration of any cash contribution
provided by a non - Federal interest pursuant to the terms of the Design Agreement, to
meet: (a) the projected 77o7a- Federal propa7•tionate share of financial ohligalion.sfcn,
consnvction for that fiscal year for such contimiing contract and (b) the Non - Federal
Sponsor's share of the projected financial obligations for data recovery activities
associated with historic preservation pursuant to Article XVII.B.3 of this Agreement for
that fiscal rear for such continuing contract. No later than 30 calendar days prior to the
beginning of that fiscal near, the Non - Federal Sponsor shall make the full amount of such
required fiords for that fiscal Fear available to the Government through any of the
payment mechanisms specified in paragraph B 1 of this Article.
b. For each contract for the Project where the Government will
not use a continuing contract to make financial obligations fir consfractioa or financial
obligations for data recovery activities associated with historic preservation pursuant to
Article XV11.B.3 of this Agreement, the Government shall notify the Non - Federal
Sponsor in writing, no later than 60 calendar days prior to the scheduled date for issuance
of the solicitation for such contract. of the funds the Government determines to be
required from the Non - Federal Sponsor, after consideration of any cash contribution
provided by a non - Federal interest pursuant to the terms of the Design Agreement, to
meet: (a) the projected non-Federal proportionate share of financial ohligalion.c for
construction to be incurred for such contract and (b) the Non - Federal Sponsor's share of
the projected financial obligations for data recovery activities associated with historic
preservation pursuant to Article XVI1.B.3 of this Agreement to be incurred for such
contract. No later than such scheduled date, the Non - Federal Sponsor shall make the full
amount of such required fiords available to the Government through any of the payment
mechanisms specified in paragraph B.I of this Article.
c. Where the Government projects that it will make financial
obligations fair construction of the Project using the Government s own forces or
financial obligations for data recovery activities associated with historic preservation
pursuant to Article XV11.B.3 of this Agreement using the Government's own forces, the
Government shall notify the Non - Federal Sponsor in writing, no later than 60 calendar
days prior to the beginning of each fiscal rear in which the Government projects that it
will make such financial obligations, of the funds the Government determines to be
required from the Non - Federal Sponsor. after consideration of any cash contribution
provided by a non - Federal interest pursuant to the terms of the Design Agreement. to
meet: (a) the projected non- Fealeral proporlionotc share of financial phligation.r for
construction using the Government's own forces for that fiscal rem• and (b) the Non -
Federal Sponsor's share of the projected financial obligations for data recovery activities
associated with historic preservation pursuant to Article XVII.B.3 of this Agreement
using the Government s own forces for that fiscal near No later than 30 calendar days
prior to the beginning of that fiscal rear. the Non - Federal Sponsor shall make the full
amount of such required funds for that fiscal rear available to the Government through
any of the payment mechanisms specified in paragraph B.I of this Article.
19
3 The Government shall draw from the funds provided by the Non -
Federal Sponsor such stuns as the Government deems necessary, after consideration of
any contributions provided by a non - Federal interest pursuant to the terms ofthe Design
Agreement, to cover (a) the non- rederal Proportionate share of financial obligations for
consnvction incurred prior to the coin mencement ofthe period of construction; (b) the
nun- Federallnoportionnle share of;financial obligations for construction as linaOcial
obligations for constvclion are incurred; and (c) the Nun - Federal Sponsor's share of
financial obligations for data recovery activities associated with historic preservation
pursuant to Article YVII.B.3 of this Agreement as those financial obligations are
incurred. If at any time the Government determines that additional funds will be needed
from the Non- Fcdcral Sponsor to cover the Non - Federal Sponsor s share of such
financial obligations in the current fiscal veaur 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.I ofthis Article.
C. Upon the District Engineers determination that, except for monitoring and
adaptive management, the entire Project is complete and all relevant claims and appeals
and eminent domain proceedings have been resolved, the Government shall conduct an
interim accounting and furnish the results to the Non - Federal Sponsor Further, upon
conclusion of the period r fconstruction and resolution of all relevant claims and appeals
and eminent domain proceedings, the Government shall amend the interim accounting to
complete the final accounting and furnish the results to the Nun - Federal Sponsor If
outstanding relevant claims and appeals or eminent domain proceedings prevent a final
accounting from being conducted in a timely manner, the Government shall conduct an
interim accounting or amend the previous interim accounting, as applicable, and furnish
the Non - Fcderal Sponsor with written notice of the results of such interim or amended
interim accounting, as applicable. Once all outstanding relevant claims and appeals and
eminent domain proceedings are resolved, the Government shall complete the final
accounting and furnish the Non - Federal Sponsor with written notice of the results of such
final accounting. The interim or final accounting, as applicable. shall determine total
protect costs and the costs of any data recovery activities associated with historic
preservation. In addition, for each set of costs, the interim or final accounting, as
applicable, shall determine each party's required share thereof, and each party's total
contributions thereto as of the date of such accounting.
I Should the interim or final accounting, as applicable. show that the
Non - Federal Sponsor's total required shares of total projecl costs and the costs of any
data recovery activities associated with historic preservation exceed the Non - Federal
Sponsor's total contributions provided thereto, the Non - Federal Sponsor, no later than 90
calendar days after receipt of written notice from the Government, shall make a payment
to the Government in an amount equal to the difference by delivering a check payable to
"FAO, USAED, Seattle District' to the District Engineer or by providing an Electronic
Funds Transfer in accordance with procedures established by the Government.
20
2. Should the interim or Final accounting, as applicable, show that the
total contributions provided by the Non - Federal Sponsor for tolul project coats and the
costs of any data recovery activities associated with historic preservation exceed the Non -
Federal Sponsor's total required shares thereof, the Government, subject to the availability
of funds, shall refund or reimburse the excess amount to the Non - Federal Sponsor within
90 calendar days of the date of completion of such accounting. In the event the Non-
Federal Sponsor is due a refund or reimbursement and fiords are not available to refund
or reimburse the excess amount to the Non - Federal Sponsor, the Government shall seek
such appropriations as are necessary to make the refund or reimbursement.
D The Non - Fcderal Sponsor shall provide the contribution of funds required by
Article II.G. of this Agreement for additional work in accordance with the provisions of
this paragraph.
I Not less than 90 calendar days prior to the scheduled date for the first
financial obligation for additional work, the Government shall notifv the Non - Federal
Sponsor in writing of such scheduled date and of the full amount of funds the
Government determines to be required from the Non - Federal Sponsor to cover the costs
of the additional work. No later than 30 calendar days prior to the Government incurring
any financial obligation for additional work, the Non - Federal Sponsor shall provide the
Government with the full amount of the funds required to cover the costs of such
additional work through any of the payment mechanisms specified in paragraph B.I of
this Article.
2. The Government shall draw from the funds provided b3 the Non-
Federal Sponsor such sums as the Government deems necessary to cover the
Government's financial obligations for such additional work as they are incurred. If at
any time the Government determines that the Non - Federal Sponsor must provide
additional funds to pay for such additional work, the Government shall notify the Non -
Federal Sponsor in writing of the additional funds required and provide an explanation of
why additional funds are required. Within 30 calendar days from receipt of such notice,
the Non- Fedcral Sponsor shall provide the Government with the full amount of such
additional required finds through any of the payment mechanisms specified in paragraph
B.l ofthisArticle.
3 At the time the Government conducts the interim or final accounting,
as applicable, the Government shall conduct an accounting of the Government's financial
obligations for additional work incurred and furnish the Non - Fcderal Sponsor with
written notice of the results of such accounting. If outstanding relevant claims and
appeals or eminent domain proceedings prevent a final accounting of additional work
from being conducted in a timely manner, the Government shall conduct an interim
accounting of additional work and furnish the Non - Federal Sponsor with written notice of
the results of such interim accounting. Once all outstanding relevant claims and appeals
and eminent domain proceedings are resolved. the Government shall amend the interim
accounting of additional work to complete the final accounting of additional work and
21
furnish the Non - Federal Sponsor with written notice of the results of such final
accounting. Such interim or final accounting, as applicable, shall determine the
Government's total financial obligations for additional work and the Non - Federal
Sponsors contribution of funds provided thereto as of the date of such accounting.
a. Should the interim or final accounting, as applicable, show that
the total obligations for additional work exceed the total contribution of funds provided
by the Non - Federal Sponsor for such additional work, the Non- Federal Sponsor no later
than 90 calendar days after receipt of written notice from the Government, shall make a
payment to the Government in an amount equal to the difference by delivering a check
payable to "FAO, USAED Seattle District' to the District Engineer or by providing an
Electronic Funds Transfer in accordance with procedures established by the Government.
b. Should the interim or final accounting, as applicable, show that
the total contribution of funds provided by the Non - Federal Sponsor for additional work
exceeds the total obligations for such additional work, the Government. subject to the
availability of funds, shall refund the excess amount to the Non - Federal Sponsor within
90 calendar days of the date of completion of such accounting. In the event the Non -
Federal Sponsor is due a refund and funds are not available to refund the excess amount
to the Non - Federal Sponsor, the Government shall seek such appropriations as are
necessary to make the refund.
ARTICLE VII - DISPUTE RESOLUTION
As a condition precedent to a party bringing any suit for breach of this
Agreement, that party must first notify the other party in writing of the nature of the
purported breach and seek in good faith to resolve the dispute through negotiation. If the
parties cannot resolve the dispute through negotiation, they may agree to a mutually
acceptable method of non - binding alternative dispute resolution with a qualified third
party acceptable to both parties. Each party shall pay an equal share of any costs for the
services provided by such a third party as such costs are incurred. The existence of a
dispute shall not excuse the parties from performance pursuant to this Agreement.
ARTICLE VIII - OPERATION, MAINTENANCE, REPAIR, REHABILITATION.
AND REPLACEMENT (ONIRR &R)
A. Upon receipt of the notification from the District Engineer in accordance with
Article 1LC. of this Agreement and for so long as the Project remains authorized, the Non -
Federal Sponsor, pursuant to Article I LD of this Agreement, shall operate, maintain,
repair rehabilitate, and replace the entire Proicel orfi nctionol portion o0he Project, at no
cost to the Government. The Non - Federal Sponsor shall conduct its operation,
maintenance, repair, rehabilitation, and replacement responsibilities in a manner
compatible with the Project's authorized purposes and in accordance with applicable
Federal and Slate laws as provided in Article XI of this Agreement and specific directions
prescribed by the Government in the interim or final OMRR &R Manual and any
subsequent amendments thereto.
1) 1�
B The Non - Federal Sponsor hereby gives the Government a right to enter at
reasonable times and in a reasonable manner. upon property that the Non - Federal Sponsor
now or hereafter owns or controls for access to the Projecl for the purpose of inspection and,
if necessary, for the purpose of completing, operating, maintaining, repairing, rehabilitating,
or replacing the Project If an inspection shows that the Non - Federal Sponsor for any
reason is failing to perform its obligations under this Agreement. the Government shall send
a written notice describing the non - performance to the Non- Fedcral Sponsor If, after 30
calendar days from receipt of such written notice by the Government, the Non - Federal
Sponsor continues to fail to perform, then the Government shall have the right to enter at
reasonable times and in a reasonable manner, upon property that the Non - federal Sponsor
now or hereafter owns or controls for the purpose of completing, operating, maintaining.
repairing. rehabilitating, or replacing the Project No completion, operation, maintenance,
repair rehabilitation, or replacement b) the Government shall relieve the Non - Federal
Sponsor of responsibility to meet the Non - Federal Sponsor's obligations as set forth in this
Agreement, or to preclude the Government from pursuing any other remedy at lase or equity
to ensure faithful performance pursuant to this Agreement.
ARTICLE IX — HOLD AND SAVE
The Non - Federal Sponsor shall hold and save the Government free from all damages arising
from construction, monitoring, adcgnrve management, operation, maintenance, repair,
rehabilitation, and replacement of the Project and any henerments, except for damages due
to the fault or negligence of the Government or its contractors.
ARTICLE X - MAINTENANCE OF RECORDS AND AUDIT
A. Not later than 60 calendar days after the effective date of this Agreement, the
Government and the Non - Federal Sponsor shall develop procedures for keeping books,
records. documents, or other evidence pertaining to costs and expenses incurred pursuant to
this Agreement. These procedures shall incorporate, and apply as appropriate, the standards
for financial management systems set forth in the Uniform Administrative Requirements for
Grants and Cooperative Agreements to State and Local Governments at 32 C.F.R. Section
33.20. The Government and the Non - Federal Sponsor shall maintain such books, records.
documents, or other evidence in accordance with these procedures and for a minimum of
three years after completion of the accounting for which such books, records, documents, or
other evidence were required. To the extent permitted under applicable Federal laws and
regulations, the Government and the Non - Federal Sponsor shall each allow the other to
inspect such books, records, documents, or other evidence.
B In accordance with 32 C.F.R. Section 33 26, the Non - Federal Sponsor is
responsible for complying with the Single Audit Act Amendments of 1996 (31 U.S.C. 7501-
7507), as implemented by Office of Management and Budgct (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 lases and regulations, the Government
23
shall provide to the Non- Fcderal 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 perforated in accordance with this paragraph shall be
allocated in accordance with the provisions of OMB Circulars A -87 and A -133. and such
costs as are allocated to the Project shall be included in ioial project costs and shared in
accordance with the provisions of this Agreement.
C. In accordance with 31 U.S.C. 7503, the Government may conduct audits in
addition to any audit that the Non - Federal Sponsor is required to conduct under the Single
Audit Act Amendments of 1996. Any such Government audits shall be conducted in
accordance with Government Auditing Standards and the cost principles in ONIB 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 projecl costs
and shared in accordance with the provisions of this Agreement.
ARTICLE XI - FEDERAL AND STATE LAWS
In the exercise of their respective rights and obligations under this Agreement, the
Non - Federal Sponsor and the Government shall comply with all applicable Federal and
State lases and regulations. including, but not limited to: Section 601 of the Civil Rights
Act of 1964, Public Law 88 -352 (42 U.S.0 2000d) and Department of Defense Directive
5500.11 issued pursuant thereto, Arnry Regulation 600 -7, entitled "Nondiscrimination on
the Basis of Handicap in Programs and Activities Assisted or Conducted by the
Department ofthe Army ", and all applicable Federal labor standards requirements
including, but not limited to, 40 U S.0 3141 -3148 and 40 U.S.0 3701 -3708 (revising,
codifying and enacting without substantive change the provisions of the Davis -Bacon Act
(formerl), 40 U.S C 276a el seq ), the Contract Work Hours and Safety Standards Act
(former]\, 40 U S.C. 327 et seq ) and the Copeland Anti - kickback Act (formerly 40
U.S.C. 276c)).
ARTICLE XII - RELATIONSHIP OF PARTIES
A. In the exercise of their respective rights and obligations under this Agreement,
the Government and the Non - Federal Sponsor each act in an independent capacity, and
neither is to be considered the officer, agent, or employee of the 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 lase
24
ARTICLE XIII - TERMINATION OR SUSPENSION
A. If at any time the Non - Federal Sponsor fails to fulfill its obligations under this
Agreement, the Assistant Secretary of the Army (Civil R orks) shall terminate this
Agreement or suspend fixture performance under this Agreement unless the Assistant
Secretary of the Army (Civil Works) determines that continuation of work on the Project is
in the interest of the United States or is necessary in order to satisfy agreements with any
other non- Federal interests in connection with the Project
B In the event the Government projects that the amount of Federal funds the
Government will make available to the Project through the then- current fiscal ream, or the
amount of Federal funds the Government vvi11 make available for the Project through the
upcoming fiscal rear, is not sufficient to meet the Federal share of totalln•ojc el costs and
the Federal share of costs for data recovery activities associated with historic preservation
in accordance with Article XV11.B.2. and Article XVI1.B.3 of this Agreement that the
Government projects to be incurred through the then - current or upcoming fiscol rear, 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 Prgject will be exhausted. Upon the exhaustion of
Federal funds made available by the Government to the Pr(?ject future performance
under this Agreement shall be suspended. Such suspension shall remain in effect until
such time that the Government notifies the Non- Fedcral Sponsor in writing that sufficient
Federal funds are available to meet the Federal share of total prgject costs and the
Federal share of costs for data recovery activities associated with historic preservation in
accordance with Article XVII.B.2. and Article XVII.B.3 of this Agreement the
Government projects to be incurred through the then - current or upcoming fiscal ream or
the Government or the Non - Federal Sponsor elects to terminate this Agreement.
C. In the event that the Government and the Nun - Federal Sponsor determine to
suspend future performance under this Agreement in accordance with Article XIV.C. of
this Agreement, such suspension shall remain in effect until the Government and the
Non- Fcderal Sponsor agree to proceed or to terminate this Agreement. In the event that
the Government suspends future performance under this Agreement in accordance with
Article XIV C. ofthis Agreement due to failure to reach agreement with the Non - Federal
Sponsor on whether to proceed or to terminate this Agreement, or the failure of the Non -
Federal Sponsor to provide funds to pay for cleanup and response costs or to otherwise
discharge the Non - Federal Sponsor's responsibilities under Article XIV C of this
Agreement, Such suspension shall remain in effect until: 1) the Government and Non -
Federal Sponsor reach agreement on how to proceed or to terminate this Agreement; 2)
the Non - Federal Sponsor provides funds necessary to pay for cleanup and response costs
and otherwise discharges its responsibilities under Article XIV C. of this Agreement, 3)
the Government continues work on the Project or 4) the Government terminates this
Agreement in accordance with the provisions of Article XI V.0 of this Agreement.
D In the event that this Agreement is terminated pursuant to this Article or Article
XIV C. of this Agreement, both parties shall conclude their activities relating to the Project
25
and conduct an accounting in accordance with Article VI.0 of this Agreement. To provide
for this eventuality, the Govcrnment may reserve a percentage of total Federal funds
made available for the Project and an equal percentage of the total hinds contributed by
the Non - Federal Sponsor in accordance with Article II.B.2. and Article XVII.B.3 of this
Agreement as a contingency to pay costs of termination, including any costs of resolution
of contract claims and contract modifications.
E. Any termination of this Agreement or suspension of future performance under
this Agreement in accordance with this Article or Article XIV C of this Agreement shall
not relieve the parties of liability for any obligation previousl} 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 centtun of the average bond
equivalent rate of the 13 week Treasury bills auctioned immediately prior to the date on
which such payment became delinquent. or auctioned immediately prior to the beginning of
each additional 3 month period if the period of delinquency exceeds 3 months.
ARTICLE XIV - HAZARDOUS SUBSTANCES
A. After execution of this Agreement and upon direction by the District Engineer
the Non - Federal Sponsor shall perform, or ensure performance of any investigations for
hazardous substances that the Government or the Non - Federal Sponsor determines to be
necessary to identiA, the existence and extent of any hazardous substances regulated under
the Comprehensive Environmental Response, Compensation. and Liability Act (hereinafter
" CERCLA-) (42 U S.C. 9601- 9675), that may exist in, on, or under lands, easements, and
rights -of -way that the Government determines. pursuant to Article 111 of this Agreement, to
be required for construction, operation, and maintenance of the Project However, for lands,
easements, and rights -of -way that the Government determines to be subject to the navigation
servitude, only the Government shall perform such investigations unless the District
Engineer provides the Non - Federal Sponsor with prior specific written direction, in Nvhich
case the Non - Federal Sponsor shall perform such investigations in accordance with such
written direction.
1 All actual costs incurred by the Non - Federal Sponsor for such
investigations for hazardous substances shall be included in totnlln-oject costs and shared in
accordance with the provisions of this Agreement, subject to an audit in accordance with
Article X.C. of this Agreement to determine reasonableness, allocability, and allovability of
such costs.
2. All actual costs incurred by the Government for such investigations for
hazardous substances shall be included in tolallnvject rosty and shared in accordance
with the provisions of this Agreement.
B. In the event it is discovered through any investigation for hazardous substances
or other means that hazardous substances regulated under CERCLA exist in, on, or under
any lands, casements, or rights -of -way that the Government determines. pursuant to Article
Ill of this Agreement, to be required for construction, operation, and maintenance of the
26
Project, the Non - Federal Sponsor and the Government, in addition to providing any other
notice required by applicable law, shall provide prompt written notice to each other, and the
Non - Federal Sponsor shall not proceed with the acquisition of the real property interests
until the parties agree that the Non - Federal Sponsor should proceed.
C. The Government and the Non - Federal Sponsor shall determine %i hether to
initiate construction of the Prgjea, or, if already in construction, whether to continue with
construction of the Project, suspend future performance Under this Agreement, or terminate
this Agreement for the convenience of the Government, in any case where hazardous
substances regulated under CERCLA are found to exist in, on, or under any lands,
easements. or rights -of -way that the Government determines, pursuant to Article III of this
Agreement, to be required for construction, operation, and maintenance of the Pre ject
Should the Government and the Non - Federal Sponsor determine to initiate or continue with
construction ofthe Project after considering any liability that may arise under CERCLA, the
Non - Federal Sponsor shall be responsible, as between the Government and the Non - Federal
Sponsor, for the costs of cleanup and response; including the costs of any studies and
investigations necessary to determine an appropriate response to the contamination. Such
costs shall not be considered a part of toted project costs. In the event the Non - Federal
Sponsor does not reach agreement with the Government on whether to proceed or to
terminate this Agreement under this paragraph. or fails to provide any funds necessary to
pay for cleanup and response costs or to otherwise discharge the Non - Federal Sponsors
responsibilities under this paragraph upon direction by the Government, the Government, in
its sole discretion, may either terminate this Agreement for the convenience of the
Government. suspend future performance under this Agreement. or continue work on the
Ptv jecl
D The Non - Federal Sponsor and the Government shall consult with each other in
accordance with Article V of this Agreement in an effort to ensure that responsible parties
bear any necessary cleanup and response costs as defined in CERCLA. Any decision made
pursuant to paragraph C. of this Article shall not relieve any third party from any liability
that may arise under CERCLA.
E. As between the Government and the Non - Federal Sponsor, the Non - Federal
Sponsor shall be considered the operator of the Project for purposes of CERCLA liability
To the maximum extent practicable, the Non- Fcderal Sponsor shall operate, maintain,
repair, rehabilitate, and replace the Project in a manner that will not cause liability to arise
under CERCLA.
ARTICLE XV - NOTICES
A. Any notice, request, demand, or other communication required or permitted to be
given tinder 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.
27
I f to the Non - Federal Sponsor
Environmental Services Manager
City of Auburn
25 West Main Street
Auburn, WA 98001
If to the Government:
Chief, Planning Branch, PPMD
Seattle District, Corps of Engineers
P.O Box' 755
Seattle, WA 98124 -3755
B. A party may change the address to which such communications are to be
directed by giving written notice to the other party in the manner provided in this Article.
C. Any notice, request, demand, rn other communication made pursuant to this
Article shall be deemed to have been received by the addressee at the earlier of such time as
it is actually received or seven calendar days after it is mailed.
ARTICLE XVI - CONFIDENTIAL ITY
To the extent permitted by the laws governing each party, the parties agree to
maintain the confidentiality of exchanged information when requested to do so by the
providing party
ARTICLE XVII - HISTORIC PRESERVATION
A. The Government, as it determines necessary for the Prcyect, shall perform any
identification, survey. or evaluation of historic properties. Any costs incurred by the
Government for such work shall be included in total project costs and shared in
accordance with the provisions of this Agreement.
B The Government, as it determines necessary for the Project, shall perform or
ensure the performance of any mitigation activities or actions for historic properties or
that are otherwise associated with historic preservation including data recovery activities.
I Any costs incurred by the Government for such mitigation activities.
except for data recovery activities associated with historic preservation, shall be included
in total projec! costs and shared in accordance with the provisions of this Agreement.
2. As specified in Section 7(a) of Public Law 86-523, as amended by Public
Law 93 -291 (16 t I.S.C. 469c(a)), the costs of data recovery activities associated with
28
historic preservation shall be borne entirely by the Government and shall not be included in
noel project costs. up to the statutory limit of one percent of the total amount authorized to
be appropriated to the Government for the Pro,1CCI
3 The Government shall not incur costs for data recovery activities
associated with historic preservation that exceed the statutory one percent limit specified in
paragraph 13.2. of this Article unless and until the Assistant Secretary of the Army (Civil
Works) has waived that limit and the Secretary of the Interior has concurred in the waiver
in accordance with Section 208(3) of Public Law 96 -515, as amended (I6 U S.C. 469c-
2(3)). Any costs of data recovery activities associated with historic preservation that exceed
the one percent limit shall not be included in fond prnjecl costs but shall be shared between
the Non - Federal Sponsor and the Government consistent with the cost sharing requirements
for ecosystem restoration, as follows. 35 percent will be borne by the Non - Federal Sponsor
and 65 percent will be borne by the Government.
C. If, during its performance of relocations or construction of improvements
required on lands, easements, and rights -of -way to enable the disposal of dredged or
excavated material in accordance with Article III of this Agreement. the Non - Federal
Sponsor discovers historic properties or other cultural resources that have not been evaluated
by the Government pursuant to this Article, the Non - Federal Sponsor shall provide prompt
written notice to the Government of such discovery The Nun - Federal Sponsor shall not
proceed with performance of the relocation or construction of the improvement that is
related to such discovery until the Government provides written notice to the Non - Federal
Sponsor that it should proceed with such work.
ARTICLE XVIII - THIRD PARTY RIGHTS. BENEFITS. OR LIABILITIES
Nothing in this Agreement is intended. nor may be construed, to create any rights.
confer any benefits, or relieve any liability, of any kind whatsoever in any third person
not party to this Agreement.
ARTICLE XIX- NON - LIABILITY OF OFFICERS AND EMPLOYEES
No officer, agent, consultant, or employee of the Non - Federal Sponsor, nor any
officer agent, consultant, or employee of the Government, may be charged personally. or
held liable, under the terms or provisions of this Agreement because of any breach.
attempted breach. or alleged breach thereof. except as provided in Section 912(b) of the
Water Resources Development Act of 1986, Public Law 99 -662, as amended (42 U.S.0
1962d -5b note), or other applicable law
ARTICLE XX - SECTION 902 MAXIMUM COST OF PROJECT
"File Non - Federal Sponsor understands that Section 902 of the Water Resources
Development Act of 1986. Public Law 99 -662, as amended (33 U.S C 2280) establishes
the maxinuun amount oftotal costs for the Authorized Project, of which the Project is a
separable element. On the effective date of this Agreement, the maximum amount of total
29
costs for the Authorized Project, which is the sum of total project costs for the Project and
the costs for all other separable elements of the Authorized Project, is estimated to be
$215,454,000, as calculated in accordance with Engineer Regulation 1105 -2 -100, using
October 1, 2013 price levels, and including allowances for projected future inflation. The
Government shall adjust such maximum amount of total costs for the Authorized Project, in
accordance with Section 902 of the Water Resources Development Act of 1986, Public
Law 99 -662, as amended (33 U.S.0 2280), when necessary
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, which
shall become effective upon the date it is signed by the District Engineer
DEPARTMENT OF THE ARMY
J n G. Buck
Colonel, Corps of Engineers
District Engineer
DATE. Z SvL
CITY OF AUB URN
BY
NanJor s May
DATE. JUL 21 2014
30
CERTIFICATE OF AUTHORITY
1.
do hereby certify that I am the principal legal officer of
the City Auburn, that the City of Auburn is a legally constituted public body with fill
authority and legal capability to perform the terms of the Agreement between the
Department of the Ann), and the City of Auburn in connection with the Duwamish /Mill
Creek Wetland 5K Reach Ecosystem Restoration Pro.ject, and to pay damages, if
necessary, in the event of the failure to perform in accordance with the terms of this
Agreement, as required by Section 221 of the Flood Control Act of 1970, Public Law
91 -611 as amended (42 U.S.C. 1962d -5b), and that the persons who have exCCUted this
Agreement on behalf of the City of Auburn have acted within their statutory authority
IN WITNESS WHE -OF, I have made and executed this certification this
day of 20��
u/V
Daniel B Heid
Senior Counsel
31
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 ofany 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.0 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.
iancy Bac L
Mayor Cit fAuburn
DATE. JUL 21 2014
32
NON - FEDERAL SPONSOR'S
SELF - CERTIFICATION OF FINANCIAL CAPABILITI
/ FOR AGREEMENTS
C4") do herehp certify that 1 am the Chief Financial Officer of the CAI\,
of Auburn (thc , on -h eder l Sponsor'); that I am aware of the financial obligations of the Nun - Federal
Sponsor for the DuNNamish /Mill Creek Wetland 5h Reach Ecom stem Restoration Project: and that the
Non - Federal Sponsor has the financial capabilih to satisfy the Non - Federal Sponsor s obligations under the
Project Partnership Agreement Bettceen the Department of the Army and the C itv of Auburn For
Construction of the Dtnvamish /Mill Creck Wetland 5I. Reach EcosNstem Restoration PrOjCCI.
IN WITNESS WJJEREOF 1 have n adc and e \Cenied this ccrtifieation this �a°l day of
BY
'IITLE. Finance Director. City of Auburn
DAI E. _ 7 )
33