HomeMy WebLinkAbout06-23-2014 Items Presented at the Meeting ALI�BURN DRAFT
Updated June 23, 2014
��,����•�;���� PROJECT CP0746
MILL CREEK WETLAND 5K ECOSYSTEM RESTORATION
MILESTONE TIMELINE
June July Aug Sept
Schedule Driven By Need to Enfer into Construction Contract by September 30(End ot Federal Flscal Year)to Obtaln Federal Punds
� City Council City Council Decisions
July 21 � • Authorize Execution of Project Parinership
- - Agreemeni
I PCDC PWC PCDC � PWC • Auihorize Purchase of Real Estate Interests
��� June 23 J�ly 7 July 14 July 21 Necessary to Implemeni Project
. I
Corps of Engineer5 � I CorpS of Engineers
•.� Certify Property � Close Bid Period
Avg 7 Sepf 10
Defines roles and responsibililies I I
�
Corps of Engineers � Corps oF Engineers
� ; � �� •� • • Advertise for Bids Execute Confroct
; . - . . . Aug 1 I By Sepf 30
� Coips of Engineers Prepa�e Finol Design Plans, �
�' Specifications&Cost Esfimafe
i n e ti cn=a
` � —c�
Qmo
Negotio}ions with 3 Property Owners for fee Simple 3-�m
Acquisition or Perpetual Easemen}s n n r3
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. MILL CREEK WETLAND 5K ECOSYSTEM RESTORATION PROJECT
FROJECT PARTNERSHIP AGREEMENT
ANNOTATED OUTLINE 8� SUMMARY
The Mill Creek Wetland SK Ecosystem Restordtion Project is a paztneiship between che City of
Aubum and the iJ5 Amry Coips of Engineecs (USAC�). The roles and responsbilities of the two
pames am defined in a Pmject Pazme�ship Agreement(PPA).An annotated outline of tlie PPA u
provided below.Key elements of the PPA include:
e LTSAC� is the lead agency for design and imple�ntation of the project. iJSACE will be the
confcacting agency for construction and will provide constYuccion management
• Ciry is responsble for acquuu�g necessary pmperEy intecesu to conduct the prbject and plays
a keyrole in review of design documents and comractor submittals.The Cirywill also
siipplement the USACE consYniction manageinent effon
• Tocal project cosu are shared: 65% federal/ 35% non-federal
Annotated Outline
Article I—Definitions.
Article II—Obligations of the Government and tlie Non-Fedetal Spqnsor
e Federal role—includes conuacting,construction management,monitoring for period of 5
yeus, and responsibility to pay 65% of total projea cosu
� City role—including review and comment on contract:solicitations,plans and specifications,
providirig necessary real estate access, long-term maintenance,and responsibiliry to pay 35%
of wtal project cosu
• Explicitly states that if pmject exceeds total project cost ceiling,Czty and federal govemment
can defer awarding consuuction contract
e Final accounting and reconciliation of total project cosu lead by federal govemment
Article III—Lands Easements, Rights of Way, Relocations, Disposal Area Improvements
(LERRD) and Compliance with Public Law 91-646
• Federal govemment identifies which propexties are needed and provides the Cirywith
notice to proceed in acquiring access. Access must be granted prior to federal
goVeminent soliciting constttiction coritracts.
o City is responsible for obtainina sufficient vested interest in pmperties to complete the
project
Article IV—Credit for LERRD
• Land values based on appraisal conducted by a firin contracted by the Ciry.Appraisal
must meet federal guidelines and be appmved by IISACE
Preparetl by Maul Foster BAlongi,Inc. Page 1 Updated June 23,2014
e.
MILL CREEK WETLAND 5K ECOSYSTEM RESTORATION PROJECT . �
PROJECT PARTNERSHIP AGREEMENT
ANNOTATED OUTLINE & SUMMARY
e Value of lands is crediced against the Cit}�s 35% cost share,incluiiing lands alxeady
owned by the City
o Incidental costs,including cost of appraisal,closing cosu,and coordination are eligble
to be considered part of total project costs arid apply to City cost shace
Article V—Project Coordination Team
• Establishes Project Coordination Team co-chaireii by representative of the federal
govemment and the C"atyto provide oveisight and ensure clear communicatiomand
accountability between the paztneis
• Costs of pazticipating in Pmjea Coordination Team are considered part of total project
cosu and the Cit}�s cost share
Article VI—Method of Payment
e Outlines federdl goveminent responsbilities for accounting and states estimate for total
project cosu and Ciry(estimated at time of agreement)
o Ciry cost share calculated as 35% of total project cosu. Ciry cash match is calctilated as
o (Total Project Cosu �'35%) - LERRD Value - Cit�s Pmjected Cosu for Project
Management- Cit�s Contribution to Design Agreement.
. Payment by Caty is required in lump sucn prior to solicitation of liids for construction
Article VII—Dispute Resolution
e Establishes procedure for notification of breach of agreement and resolution throagh
negotiation or akemative dispute resolution
Article VIII—Operation, Maintenance, Repait, Rehabilitation, and Replacement
• Upon completion of the project, City takes on cjperation and maintenance responsibilities
• USACE will prepam the Operation and Ivlaintenance plan for the project,with review and
input from the Caty
Article IX—Hold And Save
• Ciry shall hold and saye the federal govemmem free from all damages arising from
construction, monitoring,adaptive management,operation, maintenance, repair,
rehabilitauon,and replacement of the pmject,except for damages due to the fauk or
negligence of the federal govemment or iu contractors.
Article X—Maintenance of Recorils and Audit
• Ciryand federal govemment shall develop procedures and maintain books, recoxds,
documenu,or other evidence in accordance with these procediires To the e�ctent permitted
Prepared by Maul Foster&Alongi,Inc. Page 2 Updated June 23,2014
. MILL CREEK WETLAND SK ECOSYSTEM RESTORATION PROJECT
PROJECT PARTNERSHIP AGREEMENT
ANNOTATED OUTLINE & SUMMARY
iinderapplicable federal laws and regulations,the federal goveinmerit and the City sHall each
allow the other to inspect such books,records,documenu, or other evidence
Article XI—Federal and State Laws
e In the exercise of their respective righu and obligations under the PPA,the Ciry and the
federal gove"mment shall comply with all applicable Fedeial and State laws and regulations,
including Davis-Bacon Act
Article XIII—Termination or Suspension
e If at any time the City fails to fulfill iu obligations under this Agreement,the USAC� shall
tem�inate this Agreement or suspend future performance under this Agreement unless
USAC� detemunes the continuation of the work is deterniines 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 interesu in connection with the Project
e In the event the federal govemment pmjects that the amount of federal funds available to
the Project through the then-current or upcoming fiscal year is notsufficient w meet the
federal share of total project cosu the fedeial govemment shall notifythe Cityin writing of
such insufficiency of funds. Upon the eailiaastion of federal furids,future performance under
tivs Agreement shall be suspended. Such suspension shall remain in effect until such time
that the Govemment notifies the Caty in writing that sufficient Fedeial funds are available to
meet the Federal share of total project cosu.
• In the event that the federal govemment and the Ciry determine to suspend future
performance under this Agreement, such suspension shall remain in effect until the federal
goveininerit and the City agree to proceed or to teirriii�ate this Agreement
Article XIV—Hazardous Substances
• Non-federal sponsor required to conduct preliminasy environmental investigauon on the
properties. Cosu for the investigation are considered part of total project cosu and part of
localshare.
• If hazardous substances are found,federal goveinment and non-federal sponsor discas"s
whether or not to proceed.Non-federal sponsor bea�s all cosu of site investigation and
cleanup,which is not considered part of total project cosu.
Article XV—Notices
• Identifies primary point of contact for Ciry and USAC�
Article XVI—Confidentiality
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MILL CREEK WEfLAND SK ECOSYSTEM RESTORATION PROJECT • ,
PROJECT PARTNERSHIf' AGREEMENT
ANNOTATED OUTLINE & SUMMARY
• To the exterit pemiitted by the laws goveming each party,the parties agree to maintain the
confidentialityof exchanged infom�ation when requested to do so bythe pmviding party.
Article XVII—Historic Pmservation
• The federal govemment will conduct cultuial and historic resource survey and bear all the
cosu up to 1°/a of the total project cost.Anycosu incurred above that ariiount will be shaied
with the non-federal sponsor at 65/35 rate.
Article XVII—Thud Parry Righu, Benefits, or Liabilities
o Nothing in this Agreemern is intended,nor may be construed,to create any xighu,confer
any benefits,or relieve any liability, of aiiy lflnd whauoever in any third peison not pa.ny to
this Agreement.
Article XIX—Non-Liability of Officets and Employees
a No officer,agent,consultant,or employee of the City,nor any officer, agerit,consultant,ar
employee of the fedexal govemmept, may be chaiged pe�sonally;or held liable,under the
terms or provisions of this Agreement because of any lireach,attemgted 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.$.G 1962d-5b note),orother applicable
law.
Article XX—Section 902 Maximum Cost of Project
o Section 902 of the Water Resoiuces Development Act of 1986,Public Law 99 662, as
amended(33 U.S.G 2280) establishes the n�a�cimum amount of total cosu for the entire
Green-Duwamish Ecosystem Restoration Project,of which the Mill Creek VUetland 5K
Project is a separable element. On the effective date of this Agreement,the ma�cunum
amount:of total cosu for the Authorized Proje.ct,which is the sum of total project cosu for
the Pmject and the cosu for all other separable elemenu of the Authorized Project,is
estimated to be $215,454,000,as calculaced in accordance with Engineer Regulation 1105-2-
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PROJECT PARTNERSHIP AGREEMENT
BETWEEN
THE DEPARTMENT OF THE ARMY
AND
CITY OF AUBURN
FOR
CONSTRUCTION
OF THE
DUWAMISH/MILL CREEK WETLANDSK REACH
ECOSYSTEM RESTORATION PROJECT
THIS AGREEMENT is entered into this day of ,_,by
and between the Department of the Army(hereinafter the"GovernmenY'), represented by
the U.S. Army Engineer, Seattle District, and City of Aubuin (hereinafter the"Non-
Federal Sponsor"), represented by the Maybr.
WITNESSETH,THAT:
WHEREAS, construction of the Duwamish/Green River Basin Project for
ecosystem restoration(hereinafter the"Authorized ProjecY') at King County, WasHington
was anthorized by Section 101(b)(26)of the Water Resources Development Act of 2000,
Public Law 106-51 in accordance with 4he plans, and subject to the conditions,
recbmmended in a final report of the Chief of Engineers if a favorable report to the Chief is
completed not later than December 31,2000;
WHEREAS, a favorable final report of the Chief of Engineers was completed on
December 29,2000;
WHEREAS, the Govemment was authorized to perForm monitoring and adaptive
management(as defined in Article I.M. and Article I.N. of this Agreement, respectively)
as part of the Authorized Project;
WHEREAS, the Govemm.ent and the Non-Federal Sponsor desire to enter into a
Pmject Partnership Agreement(hereina$er the "AgreemenP') for construction ofthe
Duwamish/Mill Creek Wetland 5K Reach Ecosystem Restoration Project(a sepaazable
elexnent of the Authorized Project and hereinafter tbe"Project", as defined in Article 1.A of
this Agreement);
WHEREAS, Section 103 of the Water Resources Development Act of 1986,Public
Law 99-662, as amended, (33 U.S.C. 2213)specifies the cost-sHaring requirements
applicable to the Project;
WHEREAS, Section 902 of the Water Resources Development Act of 1986,
Public Law 99-662, as amended(33 U.S,C. 2280), establishes the maximum amount of
costs for the Authorized Project and sets forth procedures for adjusting such maacimum
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
ttie"Design AgreemenY'), under the terms ofwhich the non-Federal interest wntributed a
portion of the costs foi engineering and design;
WHEREAS, Section 221 of the Flood Control Act of 1970,Public Law 91-611, as
amended(42 U.S.C. 1962d-Sb);and 3ection 103(j)of the Water Resources Development
Act of 1986,Public Law 99-662, as amended(33 U.S.C. 2213(j)),provide; inter alia,that
th0 Secretary of the Ariny shall not coinmence construction of ariy water resources project,
cjr separable element thereof, until each non-Federal intecest has entereii into a written
agreement to fiunish its required cooperarion for the project or separable element;
WHEREAS,the Govenmient 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 Pr6jec!in accorclance with the terms of this Agreeinent; 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 Governinent and the Non-Federal 8ponsor through a mutually developed formal
strategy of commitment and comuiunication einbodied herein, which creates an
environment where trust apd teamwork prevent disputes, foster a cooperative bond
between the Govemment and the Non-Federal Sponsor, and facilitate the successful
implementation of the Project:
NOW,THEREFORE,the Government and the Non-Federal Sponsor agree as
follows:
ARTICLE I - DEFINITIONS
A. The taan"Project"shall mean construction of a meandering stream channel,
dendrites; culvert replacement,and]arge woody debris placement at the Aubum
Envimnmental Pazk(Mill Creek Wetland SK) site, as generdlly ciescribed in the final report
of the Chiefof Engineers, dated December 29,2000, and in the"Green/Duwamish River
Basin Ecbsystem Restorarion Study, Final Feasibility Report,"dated October 2000.
B. The term"total project costs" shal] mean the sum of all costs incurred by the
Non-Federal Sponsor and the Govemment in accordance with the terms of this Agreement
directly related to wnstrucrion of the Project. Subject to the provisions of this Agreement,
the term shall include,but is not necessarily limited to: the GovemmenYs shaze of
Praooristrucdon Engineering and Design costs piirsuant to the teims of the Design
Agreement; the value of the contributions proyided by a non-Federal interest pursuant to
the terms of the Design Agreement; the GovernmenYs engineering and design wsts during
construction;the Non-Federal Sponsor's and the GovernmenYs costs of investigations to
iden6fy the existence and extent of hazardous substances in accordance with Article XN.A.
of this Agreement; the Government's costs of historic preservation activiries in acwrdance
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with Article XVII.A. and Article XVII.B.1. of this Agreement;the Government's costs of
monitoring in accordance with Article II.H. and Article II.I. of this Ageement; the
GovernmenYs costs of adaptive management in accordance with Article II.J. and Article
II:K. of this Agreement;the GovecnmenYs actual construction costs;the GovemmenYs
supervision and administration costs;the Non-Federal Sponsor's and the GovernmenYs
costs of participation in the Project Coordination Team in accordance with Article V of this
Agreement; the Goveaunent's costs of contract dispnte settleinents or awazds; 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 Govemment affords credit in accordance with Article N of this Agreement or for
which reimbursement by the Government is required pursuant to Article II.B.3. of Uus
Agreement; and the Non-Fe3eral Sponsor's and ttie GovemmenYs costs of audit in
accordance with Article X.B. and Article X.C. of this Agreement. The teim does not
include any costs for operation,maintenance,repair rehabilitation,or replacement of the
Project;any costs of betterments under Article II.G.2. of this Agreement; any costs of
dispute resolution under Article VII of this Agreement;the GovernmenYs costs for data
recovery activities associated with historic preservation in accordance with Article
XVII.B.2. and Article XVII.B.3. of this Ageement; or the Non-Federal Sporisor's costs
of negotiating this Agreement.
C. The term"period of construction"shall mean the time from the date the
Government issues the solicitation for the first construcrion contract for the Project or
commences construction of the Project using the GoveruineriYs own forces, whichever is
earlier, to the date that cons.truction, m.onitoring, and, if necessary, adaptive management
of the Project aze complete, as determined by the Govemment, or the date that this
Agreement is terminated in accordance with Article XIII or Article XIV.C. of this
Agreement, whichever is eazlier.
D. The term"financial obligations for consmiction"shal] mean the financial
obligations of the Govemment that result or would result in costs that aze 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 relocations, and the construction of
iiripiovements required on lands, easements, and riglits-of-way to enable the disposal of
dredged or excavated material.
E. The term"non-Federal proportionate share"shall mean the ratio of the Non-
Federal Sponsor's total contriburion of funds required liy Article II.B.2. of this Agreement
to financzal obligations for construc(ion, as projected by the Goverrunent.
F. The term "highway"shall mean any highway, 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 a utility, cemetery, highway, railroad,or public facility when such action is
authorized in accordance with applicable legal principles of just compensation; or providing
a functionally equivalent facility when such acrion is:specifically provided for, and is
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identified as a relocation,in the authorizing legislation for the Project or any repor[
referenced therein. Pmviding a functionally eguivalent facility may take the form of
alteration, lowering,raising;or replacement and attendant demolition of the affected facility
or part thereof.
H, The term`functional portion of the ProjecC'shall mean a portion of the Project
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 teim"bettermenP'shall mean a difference in the construction of an element
__ _.
of the Project that results from the application of standards that the Govemment 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 fliis Article.
J. The term"Federal progrgm funds" shall mean funds provided by a Federal
agency, other than the Department of the Army, plus any non-Federal contribution
required as a matching shaze therefor.
IC. The term"f:scal year"shall mean one yeaz b:eginning on October 1 and ending
on September 30.
L. The term"monTtoring"sha11 mean activities, including the collecrion and
analysis of data, that are necessary to.detennine if predicted outputs of the Projectaze
being achieved and to determine if adaptiye mdnagement is necessary.
M. The term"adaptive managemenP'shall mean measures taken to adjust the
Project in response to the monitoring results so that the predicted ontputs of the Project are
achieved following its consfniction. The teim includes,but is not necessarily limited to,
modifications of strqctures, oradjustments to operation or management,of 4he Project.
ARTICLE II - OBLIGATIONS OF THE GOVERNMENT AND
THE NON-FEDERAL SPONSOR
A. The Government, subject to receiving funds appropriated by the Congess of the
United States(hereinzfter the"Congress") and using those fundsand finids provided by the
Non-Federal8ponsor, expeditiously shall construct the Project, applying thoseprocedures
usually applied to Federal projects;in accordance with Federal laws,regulations, and
policies.
1. The Govemment shall not issue the solicitation for the first contract for
construction of the Project or commence construction of the Project using the
Govemment's own forces unti]the Non-Federal Sponsor has confirtned in writing its
willingness to proceed with the Project.
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2. The Government shall afford the Non-Federal Sponsor the opportunity to
review and comment on the solicitations for all contracts,inclnding relevant plans and
spe.cifications,prior to the GovemmenYs issuance of such solicitations. To the extent
possible,the Govemment shall afford the Non-Federal Sponsor the opportunity to review
and comment on all pmposed contract modifications, including change orders. In any
instance where providing the Non-Federal Sponsor with notification of a contract
modification is not p.ossible prior to execution of the contract modification,the Govecnment
shall provide such norification in wri6ng at the earliest date possible. To the extent possible,
the Government also sha11 afford the Non-Federal Sponsor the opportunity to review and
comment on all contract claims prior to resolution thereof. The Govenunent shall consider
in good faith the commeiits of the Non-Federal Sponsor,but the contents of solicitations,
award of contracts or coinmenceinent of construction using the GovernmenYs own foices,
execution of contract modifications,resolution of contract claims, and p:erformance of all
work on the Project shall be exclusively within the control of the Govemment.
3. At the time the District Engineer fiunishes the conhactor with the
GovemmenYs Written Notice of Acceptance of Completed Work for each coniract awazded
by the Govenitnent for the Pro�ect,the District Engineer shall fiicnish 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 AuthorizedProject of which $5,000,000 is
curtently projected to be ayailable 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 GovernmenYs financial participation in the Project is
limited to the Federal funds that the Govemment makes available to the Project.
B. The Non-Federal Sponsor shall contribute 35 percent of total project costs in
accordance with the provisions of this paragraph.
1. In accordance with Article III of this Agreement,the Non-Federal
Sponsor shall provide all lands,easements, and rights-of-way, including those required for
relocations,the borrowing of material, and the disposal of dredged or excavated material,
shall perform or ensure performance of al] relocations, and shall wnsiruct unpmvements
required on lands, easements, and rights-of-way to enable the disposal of dredged or
eiccavated material that the Government determines to lie required or to be necessary for
oonstruction, 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 shaze of 35 percent of total project costs if the Governxnent projects at any time that
the cbllecrive value of the folloiying contributions will be less than snch requireii shaze:(a)
the value of the contributions provided by a rion-Federal interest pursuant to the terms of
the Design Agreement; (b) the value of the Non-Federal Sp.onsoYs contributions under
pazagraph B.1. of tlus Article, as determined in accordance with Article IV of this
5
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Agreemexif; and(c)the value of the Non-Federal Sponsor's cbnh-iburions ucider Article V,
Article X, and Article XIV.A.of this Agreement.
3. The Govemment,subject to the availability of funds,shall refund or
reimburse to the Non-Federal Sponsor any contributions in ezcess of 35 percent bf total
project costs if the Govemment deterinines at any time that the collective yaliie of the
following conhibutions has exceeded 35 percent of total project costs: (a)the value of the
IVon-Federal Sponsor's contributions under paragaph B:2. of this Article; (b)the value of
the contributions provided by a non-Federal interest pursuant to the terms of the Design
Agreement;(c)the value of the Non-Federal Sponsor's contriliurions uudei�pazagraph B.1.
of this Artiole, as detecmined in accordarice with Article IV of tliis Agreement; and(d)tHe
value of the Non-Fecleral Sponsor's contribntions under Article V,Article X,and Article
XN.A. of this Agreement, A$er such a determinadon,the Govemment, in its sole
discretion;may acquire any remaining lands;easements, and rights-of-way required for the
Project,perform any remaining relocations necessary for the Project, or construct any
remaining improvements required on lands, easeinents, and rights-df-way to enable the
disposal of dredged or excayated material required for the Proje.ct on liehalf 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 pazagraph, the Non-Federal Sponsoi shall be responsible, as
between the Governinent and the Non-Federal Sponsoi, for any costs of cleanup and
response in accordance with Article XN,.C..of this Agreement.
C. When the District Engineer determines that, except for monitoring and
adaptive management, the entire Rroject, or a functional portion of the Rrojec2, is
complete, the Disfrict Engineer shall so notify the Non-Federal Sp:onsor in writing and
furnish the Non-Federal $ponsor with a final Operation, Maintenance, Repair;
Rehabilitation, and Replacement Manual (hereinafter the"OIvIRR.&R Manual") or, if the
final OIvfRR&R Manual is not available, an interim OMRR&R Manual for the enrire
Project or such completed poition. Upon snch notification,the Government also shall
fumish to the Non-Federal Sponsor a copy of all final as-built drawings forthe enrite
Project or such completed portion if such drawings aze available. Not later than 6
months after such notification by the Govemment that the entire Project is complete, the
Government shall fumish the Non-Federal Sponsor with the final OIVIRR&R Manual and
all final as-built drawings for the entire Project. In the event the final OMRR&R 1Vlanual
or all final as-built drawings far the entire Project cannot be completed within the 6
month period, the Govemment shal] provide written notice to the Non=Federal Sponsor,
and the Government and the Non-Federal Sponsor shall negotiate an acceptable
completion date for furnishing such documents. Furthec, after completion of all cbntracts
for the Project, copies of all of the GovernmenYs Written Notices of Acceptance of
Completed Woik for all contracts for the Pro�ecl 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
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replace the entire Project, or the functional portion of the Project as the case maybe, in
accordance with Article VIII of this Agreement. Concurrent with the Non-Federal
Sponsor's performance of operation,maintenance,repair, rehabilifafion, and replacement
for the completed Project or such completed portion, the Government shall perform
monitoring and, if necessary, adaptive management in accordance with the provisions of
this Agreement.
E. Upon the District Engineer's deterfnination tHat, except for monitoring and
adaptiye manggement, the entire Project is complete,the Govenunent shall conduct an
interim accounting, in accordance with Article VI.C. of this Agreement, and furnish the
results to the Non-Federal Sponsor. Further,upon conclusion of the period of construction
the Goverriment shall amend the interim accounting to complete the final accounting,in
accoidance with Article VI.C. of this Agreeinerit, and fuinish the results to the Non-Federal
Sponsor.
F. The Non-Federal Sponsor sha11 not use Federal program funds to meet any of its
obligarions for the Project under this Agreement unless the Federal agency providing the
fuiids verifies in writing that such funils are authorized to be used to carry out the Project:
G. The Non-Federal Sponsor may request the Government to p.erform or piovide,
on behalf of the Non-Federal Sponsor, one or mo;e of the services (hereina$er the
"additional work") described in this pazagraph. Such requests shall be in writing and
shall.describe the additional work requested to be.performed or provided. If in its sole
discretion the Goverrixnent elects to perforcn or provide tfie requested additional work or
any po;tion thereof, it shall so notify the IVon-Federal Sporisor 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, thisAgreement shall.
coiitrol. The Non-Fetleral Sponsor shall be solely responsible for all costs of the
additional work perforined or prodided by the Goveiririterit tiinder this paragraph and shall
pay all such costs in accordance with Article VI.D. of this Agreement.
1. Acquisition of lands, easements, and rights-of-way;performance of
relocations; or constnxction of unprovements required on lands, easements, and rights-of-
way to enable the disposal of dredged or excavaYed material for the Project.
Notwithstanding acquisition of lands, easements, and rights-of-way,perForniarice of
relocations, or construcrion of improvements by the Govermnent, the Non-Federal
Sponsor shall be responsible, as between the Government and the Non-Federai Sponsar;
for any costs of cleanup and response in accordance with Article XIV.C. of tHis
Agreement.
2. Inclusion of betterments in the,conshuction of the Project. In the event
the Government elects to include anysuch bettermenfs; the Govenunent shall allocate the
costs of the Project features that inclnde betterments between total project costs and the
costs of the bette"rments.
7
H: Prior to completion ofconstruc6on of the Projecy the GoVemment, in
consultation with the Non-Federal Sponsor and, as appropriate,other concerned.agencies,
sha11 finalize ifie plan for monitonng of the Projec[. The rnonitoringplan shall describe
the specific paratrieters.to be monitored; how these pazameters relate to achieving the
desired outcomgs and to ascertaining whether adaptive management measures for the
Project will be necessary; methods for measuring those parameters; freguency and
duration of monitoring of the Project; criteria for measuring the success of the:Project,
prepazatiori and distribution of mon:toring reports and other coordination requirements;
and estimated monftoring costs.
I: Upon providing notification to the Non-Federal Sponsoi that the Project 3s
complete in accordance with pazagraph C. of this Aiticle,the Governinent shall perForm
monitoring of tha Project in accordance with the monitoring plan for a period of 5
conseoutive years from the date of such notification. However;the monitoring of the
Project bythe Government shall end prior to the expiration of such period upon the
occurrence of either of the following events: (1)the award of the next writract for
monitoring of the Project, or continuation of monitoririg of the Project using the
GoveriimenYs o"wn foroes, would iesult in the costs incprred for .mo.nitoring and adgptive
mariageme"n1 of all the:features for e.wsystem restorarion in the Authorized Project
exceeding 7 percent of the amount egual to total project costs of the Project plus the
costs for all other ecosystem restaration sepazable elements of the Anthorized Projeot
minus the costs for monitoring and adaptive managernent of all the features for ecosystem
restoration in the Auttiorized Piojecf; or(Z) the Distriqt Engineer determines that
continued monitoring of the Project is not necessa;y.
7. Applying the criteria specified in the monitoring plan, the Goveriunedt shall
determine whether adaptive management of the Project is necessary. The Govemment
may inake such a defermination at any time during the mon�toeing period described in
paragraph I. of this Article. Within 120 cale,ndar days after the expirarion or teimination
of such monitoring period�the Government shall make a final determination of whether
adaptive management of the Project is necessary. In making snch deteriniriations, the
Govemmentshall coiisult with the Noii-Federal Sponsot and, as appropriate; with other
concerned agencies. Upon any detemiination by the Government that adaptive
rreanagement of the Project is necessary;the Govermnent shall notify Yhe Non-Federal
Sponsor in writing of its determination and expeditioiisly shall perforin siicli adap"tive
management in accordance with p"aragraph K. of this Arkicle. If, after the expiration or
terriiiriation of suoh monftoring period, the Government determines thaf adaptive
manageme.nt of the Project is not necessazy;the Gouernment sha11 notify the Non-Federal
Sponsor in writing of its determination and shall conduct a final accoutiting in accordance
with paragraph E. of this Article:
K. If the Government determines,pixrsuant to paragraph J. of this Article,that
adaptive management of the Project is necessary, the Goyernment, im consultation with
tHe Non-Fedaral Sporisor and, as appropriate, other concerned agencies, shallperform
adkptive manageinent of the Project in accordance with the provisions of this paragraph
and paragraph A. of tiiis Article.
8
1. In no event shall the awazd of any contract for adaptive management of
tlie Project, or contirivarion of adaptive management of the Project using the
GovernmenYs own forces, result in the costs incurred for monitoring and adaptive
management of all the features for ecosystem restorarion 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
minns the costs for monitoring and adaptive management of all the features foc ecosystem
restorarion in the.4uthorized 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 monitoring and
adaptive management of this Project aze estimated to be$60,000.
2. When the District Erigineer deterinines ttiat adaptive management of
the Project is co.mplete, or that the costs for monitoring and adaptiye management have
or will exceed the 7 percent amount determined in accordance with sub-paragraph 1. of
this pazagraph, the District Engineer shall: a)notify the Non-Federal Sponsor in writing
ofsuch completion; b) furnish the Non-Federal Sponsor with an amended OMRR&R
Manua1 that reflects any modifications to structures or adjustments to operation ar
management methods; c) fiiniish the Non-Federal Sponsoi with a copy of ariy new or
revised:as-built drawings for the Projecr, and d) within 30 calendar days after such notice,
conduct a final accounfing 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 Sponsoi shall operafe,maintain,repair,
rehabilitate, and replace fhe entire Project in accordance with Article VIII of this
Agreement.
L. The Non-Federal Sponsor shall prevent obstruc6ons or encroachxnents on the
Project(including prescribing and enfbrcing regdlaticfns to prevent such obstractions or
encroachments)such as any new deyelopments on Project lands, easements, and rights-of-
way or the addition of facilities which might reduce the outputs produced by the Project,
hinder opera6on 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-ofway required pursuant to Article III of this Agreement; as a wetlands bank
or mitigation credit for any other project.
ARTICLE III - LANDS; EASEMENTS, RIGHTS-OF-WAY,
RELOCATIONS, DISPOSAL AREA IMPROVEMENTS, AND
COMPLIANCE WITH PUBLIG LAW 91-646, AS AMENDED
A. THe Government,after consultation with the Non-Federal Sponsor,.sha11
detemiine tHe lands, easements, and rights-of-way required for constraction,operation, and
9
maintenance of the Project,including those reguired for relocations;the borrowing of
material,and the disposal of:dredged or excavated material. The Government ina timely
manner shall provide the Non-Federal Sponsor with general written desciiptioris,including
maps as appropriate,of tfie lands, easements,and righYs-of-way that the Goyanunent
detennnies the Non-Federal Sponsor must provide,in detail sufficient to enable the Non-
Federal Sponsot to fplfill.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 solicifation for each Goveinment confract
for construction of the,Project, or prior to the Goveinment incurring any financial
obligations for construction ofa poition of the Project dsing the GovernmenYs own
forces,the Non-Federal Sponsor shall acgpire all lands, easements;and rights-of-way the
Government determines the Non-Federal Sponsor must provide for that work and shall
provide the Govercunent with authorization for entry thereto. Furthermore,prior to the
end of the period of construction,the Non-Federal Sponsor shall acquiiue all lands,
easeinents, and righfs-of=way raqnired for constnxction, oparation,arid maintenance of tlie.
Proje.ct, as set forth in suoh clescriptions, and shall provide the Government with
authorization for entry thereto., The Non-Federal Sponsor shall ensure that lands;
easemgnts, and rights-of:way that the Government deterniines to be required forthe Project
and that were provided by the Non-Federal Sponsor aze retained in public ownership for
uses compatible with the authorized piirposes of the Project.
B. The Govemment, after consultation with the Non-Federal Sponsor;shall
detennine the relocations necessary for construction, operarion,and maintenance of the
Project;including those necessary to enable the borrowing of material or the disposal of
dredged or excavated material. The Goveriunent in a riinely manner Shali provide;tlie No"n-
Federal Sponsor with general written descriptions,including maps as appropriate, of such
relocations in detail sufficient to enable the Non-Federal Sponsor to fulfill its obligations
under this paragraph, and shall provide the Non-Federal Sponsor with a written notice to
proceed with such relocations. Prior to the issuance of the solicitation for each Goveriinierit
contract for construction of the Project, or prior to the Goveinment incurring any financial
obligations for construction of a p.ortion of the Project using the Government's own
forces,the Non-Federal Sponsor shall prepare or ensure the preparation of plans and
specificarions for, and perform or ensure the performance of; all relocations the Go6enunent
determiues to be necessary for that work. Furtherinore,prior to the end of the period of
construction,the N6n-Federal Sponsor shall perform or ensure performance of all
relocatio,ns as set forth in such descriptions.
C. The Governinent,after consulta6on with the Non-Federal Sporisor; shall
deternune the improveinenfs required on lands,easeinents, and rights-of way to enable the
disposal of dredged or excavated material associated with cons.trucrion, opera.tion, and
maintenance of the Project. Such improvements may include,but.are not necessarily
limited to,retaining dikes,wasteweirs,bulkheads; embanlunents,monitoring features;
stilling basins,and de-watering pumps and pipes. The Government in a timely manner sha11
provide the Non-Federal Sponsor with general written descriptions,including maps as
appropriate, of such improvements in detail sufficient to enable tHe Nori-Fedecal Sponsor to
fulfill its obligations under trris paragraph, and sHa11 provide the Non-Federal Sponsor with a
10
written notice to proceed with constnicrion of such improvements. Prior to the issuance of
the solicitation for each G.overmnent conh�act for construction of the Project, or prior to tkie
Govemment incurring any financial obligations for construction of a portion of tlie
Project using the GovernmenYs own forces,the Non-Federal Sponsorshall prepare plans
and specifications for all unproveinents the Crovemment determines to be required for the
disposal of dredged or excavated material under that coniract,submit such plans and
specifications to the Govemment for approval, and provide such improvements in
accordance uyith the approved plans and speciScarions. Furthermore,prior to the end of the
penod of construction,the Non-Federal Sponsor sHall provide all improvementsset forth in
such descriptions.
D. The Non-Federal Sponsor shall wmply with the applicable provisions of the
Uniform Relocarion Assistance andReal Property Acquisirion Policies Act of 1970,Public
Law 91-646, as aznended(42 U.S.C.4601-4655), and the Uniform Regulations contained in
49 C.F.R. Part 24,in acquiring lands, easeinents,and rights-of-way required for
construction,operation, and mairitenance of the Pro�ect,including those required for
relocations,the borcdwing of material,or the disposal of dredged or excavated material, and
shall inform all affected persons of applicable benefits,policies, and procedures in
c6nnection with said Act.
ARTICLE N- CREDIT FOR VALUE OF LANDS, EASEMENTS, RIGHTS-OF-WAY,
RELOCATIONS, AND DISPOSAL AREA IMPROVEMENTS
A. The Govemment shall include in total project costs and afford credit toward the
Non-Federal Sponsor's share of total project costs for the value of the lands;easements, and
rights-of=way that the Non-Federal Sponsor must provide piusuant to Article III:A. of this
Agreement; for the 4alue of the relocqtions that the Non-Federal Sponsor must perforin or
foi which it must ensure perfo;mance pursuant to Articie III.B.of this Ageeinent; and foc
the value of the improvements required on lands, easeinents, and rights-of-way to enable the
disposal of dredged or excavated material that the Non-Federal Sponsor must provide
pursuant to Article III.C. of this Ageement. However, no aznount shall be included in totat
project costs,no credit shall b"e afforded,and no reimbursement shall be provided for the
value of any lands, easements;rights-of-way; relocations,or nnptovements 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
addiflon, no amount shall be included in total project costs, no aedit shall be afforded, and
no reimbursement shall be pmvided for the value of lands, easements,rights-of-way,
relocations, or improvements required on lands,easements, and rights-of-way to enable the
disposal of dredged or excavated material that wete aoquired or performed using Federal
program funds unless the Fedeial agency providing the funds verifies in writing that such
funds ar8 authorized to be used to carry out the Project♦
B. The Non-Federal Sponsor in a timely manner shall provide the Govemment with
such documents as are sufficient to enable the Government to deteimine the value of any
contribution provided pursuant to Artide IILA.,Atticle III.B.,or Article IILC. of this
11
Agreement. Upon receipt of such documents,the Goveaunent in a rimely manner shall
determine the value of such contributions for the puipose of including such value in total
project costs and for determining the amount of credit to be afforded or reimbursement to
be provided in accordance with the provisions of this Agreement.
C. For the purposes of detem�ining the value to be included in total project costs
andthe amount of credit to be afforded or reimbursement to be provided in accordapce with
this Agreement and e�ccept as otherwise provided in paragraph G.,of this Article,the value
of lands,easements;and rights-of-way,including those required for relocations,the
borrowing of material, and the disposal of dredged or e�ccauated material, shall be the fair
market value of the real property interests,plus certain incidental costs of acguiring those
interests, as deteimined in acoordance with the provisions of this pazagraph.
I. Date of Valuarion. The fair mazket value of lands, easements, or rights-
of-way owned by the Non-Federal Sponsor on the effective date.of this Agreemant sfiall lie
the fair mazket value of such real property interests as of the date the Non-Federal Spons6r
provides the Government with authorization for entry thereto. The fair mazket value of
lands, easemen;s,or rights-of-way acqui=ed liy the Non-Federal Sponsor after the effecfive
date of this Agreement shall be the fair market value of snch real property interests at the
time the interests aze acquired.
2. General Valuation Procedwe. Except as provided in paragraph C.3. or 'i
paragraph C.S. of this Ar[icle,tHe fair market valne of lands, easem8nts,or rights-of-way
shellbe detemuned in accordance with the provisions oftHis paragraph.
a. TheNon-Federal Sponsorshall obtain, for each real property
interest, an appraisal tHat is prepazed by a qualified appraiser who is acceptable to the Non-
Federal Sponsor and the Goyemment. The Non-Federal Sponsor shall provide the
Government with the appraisal no later than 6 m6nths aRer the Non-Federal Sponsor
provides the:Government with an authorization for entry for such real propeity�nterest.
The appraisal mustbe prepazed in accordance with the applicable rules of just
compensation, as specified by the Government. Tlie fair market value shal]be the amount
set forth in the Non-Fgderal Sponsor's appraisal, if such appiaisal is approved by the
Govenvnent. In the event the Government does not approve the IVon-Federal Sponsoz's
appraisal, the Non-Federal Sponsor may obtain a second appraisal, and the fair market value
shall be the amoupt set forth in the Non-Federal Sponsor's second appraisal,if such
appraisal is appmved by the Govemment. In the event the Govenunent 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 GovernmenYs appraisal�if such appraisal is
approved by the Non-Fedeial Sponsor. In the event the Non-Federal Sponsor does not
approve the G.overnmenYs appiaisal,the Govemment, after consultation with the Non-
Federal Sponsor, shall consider the GgvemmenYs and the Non-Federal Sponsor's appraisals
and detennine 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 amourit determined pursuant to paragrapli
C.2,a. of this Article,the Government, at the request of the Non-Federal Sponsor, sliall
consider all factors relevant to detemuning fair marketvalue and,in its sole discretion, after
consultation with the Non-Federal8ponsor,may approve in writing an amount greater than
the amonnt deterciuned pursuant to paragraph C.2.a. of this Article,but not to exceed the
amount actaally paid or proposed to b:e p"aid. If the Governinent approves such an amount,
the fair mazket 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 pazagraph C.2:.a.
of this Article.
3. Emineiit Doinaiii Valdation Prooedure. For lands, easements,or rights-
of-way acqnired 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 wriring of its intent to insritute such proceedings and an
appraisal of the specific real property interests to be acquired in such proceedings. The
Government sha11 have 60 calendar days after receipt of such a notice and appraisal within
which to review the appraisaJ,if not previously approved bythe Govemmant in writing.
a. If the Govem}nent previously has approved the appraisal in
writing; or if the Govenmient provides wri4ten approval of;or takes no action on,the
appraisal within such 60 day period, the Non-Federal Sponsor shall use the amount set forth
in such appraisal as the estimate of just compensa6on for the pnrpose of instituting the
emipent domain proceeding.
b. If the Govenunent provides written disapproval of the appraisal, I
including the reasons for disapproval,within such 60 day period,the Croveiiunent and the
Non-Federal Sponsor shall consult in good faith to prompdy resolve the issues or areas of
disagreement that aze identified in the GovernmenYs written disapproval. If, after such
good faith consultation,the Government and the Non-Federal Sponsor agree as to an
appropriate amount,then the Non-Federal Sponsor shall use that amount as the estimate of
just compensation for the purpose of instituting the eminent domain proceeding. If, after
such good faith consultation,the Govenunent and the Non-Federal Sponsor camiot agee as
to an appropriate amount,then the Non-Federal Sponsor may use the amount set forth in its
appraisal as the estimate of just compensafion for the purpose of instituting the eminent
domain proceeding.
c. For lands, easements, or rights-of-way acquired by eminent
domain.proceedings instituted in aceordance with paragraph C.3. of this Article, fair mazket
value shall be either the amount of the court awazd for the real property interests taken,to
the extent the Government detemuned such interests aze required for construction,
operation, and manitenance of the Project, or the ainount of any stipulated settlement or
portion thereof that the Government approves in writing.
4. Incidental Costs. For lands, easements, or rights=of-way acquired by the
Non-Federal Sponsorwithin a five yeaz period preceding the effecrive 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
Govermnent, subject to an audit in accordance with Article X.C. of tliis Agreement to
deterinine reasonablenes"s, allocability, and allowability of such costs. In the event the
G.ovemment modifies its determination made pursuant to Article III.A:of this
Agreement, the Governm_ent shall afford credit for the documented incidental costs
associated with preparing to acquire the lands, easements, or rights-of=wayideritified in
the original determination, subject to an audit in accordance with Article X.C. of this
Agreement to determine reasonableness, allocability, and allowability of such costs.
Such incidental costs shall include,but not necessarily belunited:to, closing and.tifle costs,
appraisal costs;survey wsts,attorney's fees;plat maps;mapping costs,actual amounts
expended for payment of any reloca6on assistance benefits provided in accordance with
Aitiele III.D. of this Agreement, and other payments by the Non-Federal Sponsor for
itemsthat aze generally recognized as compensable, andrequired to be paid,by
applicable state law dne to the acquisition of a r8a1 property interest in accordance with
ArCicle III of fhis Agreement. The value of the interests provided by the Non-Federal
5ponsorin accordance with Article III:A. of this Agreement shall also include the
documented costs of obtaining appraisals pursuant to pazagraph C.2. of this Article, as
determined by the Government, and subject to an audit in accordanoe with ArticleX:C.
of this AgrBement to deterriune reasonableness, allocability, and allowability of suoh
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
uncomplicafed and tHat the estimated faii market value of the real pzoperty 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 wriring to the value of sueh real property
interest in an amount not in excess of$10,000.
D. After corisultation with the Non-Federal Sponsor, the Goyernment sha11
determine the value of relocations in accordance with the provisions of trus paragraph:
1. For a relocation other than a highway,the value shall be only that portion
of relocafion costs that the Govenuiient determines is necessary to provide a funcrionally
equivalent facility,reduced by depreciation;as applicable;and by the salvage value of any
removed items:
2. For arelocation of a highway,the value shall be oply that portion of
relocation costs that would be necessary to accomplish the relocation in accordance with the
design sfandard that the State of Washington would apply under similar conditions of
geography and traffic load,reducedby the salvage value of any removed items.
3: Relocation costs shall include,but not necessarily be limited to, actual
costs of perfornvng the relocation; plauning, engineering and design costs; supervision and
administration costs;and:documented incidental wsts associated with perforinance of tHe
relocation, as deteiinined by ttie Governuient. Relocation costs sha11 not include any costs
14
due to betterments, as determined by the Govemment;nor any additional wst of using new
material when suitable used material is available. Relocation costs shall be subject to an
autlit in accordance with Aiticle X.C.of this Ageement to determine reasonableness,
allocability, and allowability of such costs.
E. The value of the improvements required on lands, easements,and rights-of-way
to enable the disposal of dredged oi eiccauated material shall be the costs of the
improvements, as determnied by the Goveriiment,subject to an audit in accordance with
Article X.C. of this Agreement to determine re.asonableness, allocability, and allowability of
such costs: Such costs shall include,but not negessarily be limited to;actual costs of
providing the unprovements;planning, engineering and design costs; supervision and
administration costs; and documented incidental costs associated with providing the
uiiprovements,but shall not include any costs due to lietterments, as deternuneil by the
Goveminent.
F. Any credit afforded or reimbursement provided under the terms of this
Agreement for the value of relocations, or unprovements raquired on lands,easements,
and rights-of-way to enable the disposal of dredged or exca4ated material,perfomied withiii
the Project boundazies is snbject fo satisfactory compliance with applicable Federallabor
laws covering non-Federal construction, including, bnt 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 (formerlg 40 U.S.C. 276a et seq:), the
Contract Work Hours and Safety Standazds Act(formerly 40 U.S.C. 327 et seq.) and the
Copeland Anti-KickbackAct(formerly 40 U.S.C. 276c)). Notwithstanding any other
provision of this Agreement, credit or reimbursement may be withlield, ip 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 Govecntnent, on behalf of the Non-Federal Sponsor pursuant to
Article II.G.1. of this Agreement, acquires lands, easeinents, or rights-of-way,perfornis
reloca(ions,or constructs improvements required on lands,easements, or rights-of-wayto
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 Ageement shalTbe the costs of such work performed or
provided by the Government that are paid by the Non-Federal Sponsor in accoidance
with Article VI:D:of this Agreement: In addition, the value to be included in total
project costs and the amount of such credit to be afforded or the amount of
reimbursement provided in accordance with this Agreement shall include the docuxnented
costs incurred by the Non-Federal Sponsor in accocdance with the terms and conditions
agteed upon in wriring pursuant to Article II.G.1. of this Agreement subject to an audit in
accordance with Article X.C. of this Agreement to deternune 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 Govemment,not later than 30 calendar days after the effective date of Uus
Agreement, shall appoint namedsenior representatives to a Project Coordination Teain.
Thereafter,the Project Coordination Teain shall meet regulazly unril flie end of the period of
constructiore. The GovernmenYs Project Manager and a counterpart namedby the Non-
Federal Sp.o.nsor shall co-chair the Pmject Coordination Team.
B. The GovernmenYs Project Manager and the Non-Federal Sponsor's counterpart
shall keep the Proje6t Coordination Teazn inforriiecl of theprogress of conshuction and of
signi5cant pending issues and actioris, and sliall seek the views of the Project CoordinaUon
Team on matters that tlie Project Coordination Team generally overs�.
C. Until the end of the period of construction,the Project Coordination Team shall
generally oversee the Project,including matters related to: plans and specifications;
soheduling;real property and relocation requiremehts;real pr6perty acyuisition; contract
awards an3 modifioations; 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 (forrnerly 40 U.S.C. 276a et
seq.), the Contract Work Hours and Safety Standazds Act(forriierly 40 U.S.C..327 et
seq.) and the Copeland Anti-Kickback Act (formerly 40 U.S.C. 276c)) for relocations arid
iinp"rovements reqnired on lands, easements, 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. of this Agreement;historic
preservation activities in accordance with Article XVII of this Agreemenf; the
GovermnenYs cost projections; final inspection of the entire Project or functional portiorrs
of the Project,preparation of the proposed OMRR&R Manual; finalization of the
monitoring plan; performance of monitoring and adaptive management; an6cipated
requirements.and nceded capabilities for perfoanance of operation;maintenance;repair,
rehabilitarion, and replacement of the Project inclading issaance of peanits; and other
matters related to the Project. This oversight of the Proje.ct shall be consistent with a project
management plan developed by the Govemment after consultarion with the Non-Federal
Sponsor.
D. The Project Coordination Team may make recommendations to the District
Engineer on matters related to the Project that the Pmject Coordina6on Team generally
oyersees, including suggestions to avoid potential sources of dispute. The Government in
good faith shall consider the recommendations of the Project Coordination Team. The
Govemment,having the legal authority and responsibility for conshuction of the Project,
has the discretion to accept or reject,in whole or in part,the Project Coordination Teairi's
recommendations.
E. The Nop-Federal Sponsor's costs of participation in the Project Coordination
Team shall be included in total project cosrs and shared in accordance with the provisions
of this Agreement, sub�ect to an audit in accordance with Article X.C. of this Agreement
16
�
to determine reasonableness, allocability, and allowability of such costs. The
Government's costs of participation in the Project Coordination Team shall be included
in total project costs and 3hared in accordance with the provisions of this Agreeinent.
ARTICLE VI - METHOD OF PAYMENT
A. In accordance with the provisions of this paragraph, the Govemment shall
maintain current records and provid.e to the Non-Federal Sponsor current projections of
costs;financial obligations,contributions provided bythe parties, and the value included
in total project 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.
1. As of the effecrive date of this Agreement, total project costs are
projected to be $5,738,048; the value included in total project 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$561,751; the value ofthe Non-Federal
Sponsor's contributions under Article U,Article X, and Article XIV.A. of this Agreemerit is
projected to be$40,000; the Non-Federal Sponsor's contribution of funds required by
Article II.B:2. ofthis Agreement isprojected to be$1,045,351; the non-Federal
proportionate share is projected to be 2738 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 GovernmenYs tofal 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 percgntage are
estimates subject to adjustment by the Govemment;after consultation with the Non-.
Federal Sponsor, and aze not to be construed as the total financial responsibilities of the
Goveriunent and the Non-Federal Sponsor.
2. By January 2015 and by each quarterly anniversary thereof until the
conclusion of the period of construction and resolution of all relevant claims and appeals
and eminent domain proceedings,the Govemment.shall provide the Non-Federal Sponsor
with a report setring forth all coptributioris 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, relocations;and improvements required on lands, easements,
and rights-of-way to enable the disposal of dredged or excavated material determined in
accoidarice with Article IV of this Agreement; the value of the Non-Federal Sponsor's
contriburions upder Article V,Article X, and Article XIV.A. of this Agreement; the Non-
Federal Sponsor's total contribution of funds requiied by Article II.B.2. of this
Agreement; the non-Federal proportionate share; the Non-Federal Sponsor's total
contribution of funds required by Article XVII:B.3:of this Agreement; the total
contribution of funds required from the Non-Federal Sponsor for the upcoming fiscal
year;the maacimum amount deterinined in accordance with Article XX of this
Agreeinent; and the GovernmenYs total financial obligations for additional work incarred
17
and the Non-Fedeial Sponsor's contribution of funds for siich costs required by Article
II.G. of this Agre"ement.
B: The Non-Federal Sponsor shall provide the contributions of funds reqiiired 6y
Article II.B.2. and Article XVII.B3. of ttiis Agreement in acoordance with tlieproyisions
of tliis paragraph.
1. Not less than 30 calendar days prior to the scheduled date for issuance
of the solicitation for the first contract for construction oftheProject orcommencement
of construction of the Project using the GovemmenYs owri forces, the Goverriiiient sHall
notify the Non-Federal Sponsor in writing of such scheduled date and the funds the
Goveriiii�ent deteiinines to be required from tlie Non-Federal Sponsor, after consideration
of any cash contriburion provided by a non-Fede;al interest pursuant to the terms of the
Design Agreement;to meet: (a) the non-Federal proportionate share of financial
obligations for construction incurred prior to the commencement af the period of
construction; (b) the projected non=Federal proportionate share offnancial obligatioris
for construction to be incdrred in the fiist fiscal year; or, if use of a continuing contract
has been appioVed pursuant to Federal laws, regulations,and policies, the projected non-
Federkl proportionate share of financial obligations for construction through tfie first
fiscal year; and (c)the Non-Federal Sponsor's share of the projected financial obligations
for data recovery activities associated with historic preservation pursuanl to Article
XVII.B.3.of tliis AgrBement to be inciirred in the firSt fiscal year; or,if nse of a
coritiriuing contract has been approved pursuant to Eederal laws, regulations, and policies,
the Non-Federal $ponsor's shaze of the projected financial obligations for data recovery
actiyities associated with historic preservation pursuant to Article XVII.B.3. of this
Agreement through the first fiscal year. Not later than such.scheduled date, the Non-
Federal Sponsor shall provide the Government witH the fiill ainount of snch ieqn'ired
funds liy delivering a check payable to "FAO, USAED, Seattle District"to the District
Erigineer, or verifying to the satisfaction of the Govemment 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 Sporisor, or by presentirig the
Goverriment witli ari 3rrevocable 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 Govenunent.
2. Thereafter,uritil the construction of the Project is oomplete; the
Goverriment shall notify the Non-Federal Sponsor in writing of the funds the Government
deterniines to bereguired from the Non-Federal Sponsor, and the Non-Federal Sponsar
shall provide such funds in accordance with the provisions of this pazagraph.
a. Where the Government will use a coritiriuing contract approved
pursuant to,Federal laws; regulations, and policies to make firikncial oblig'ations for
construction of the Project or financial obligations for data recovery activities associated
with Historic preservation purSuant to Article XVII.B.3. of this Agreement, thg
Goverriment shall notify the Non-Federal Sponsor in writing,no later than 60 calendar
days prior to the begnning of each fiscal year in which the Government projecfs that it
18
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will make such financial obligations, of the fixnds the Goveaunent determines to be
required from the Non-Federal Sponsor, aftei considerarion of any cash contribntion
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 obligations for
construction for that fiscal year for such conrinuing contract and (b)the Non-Federal
Sponsor's shaie of the projected financial obligations for data recovery activi6es
associated with historic pTeservation pursuanYto Article XVII.B.3. of this Agreeinent for
that.fscal year for such continuing contract. No later than 30 calendar days prior to the
beginning of that fascal year, the Non-Federal Sponsor sha11 make the full amount of such
required funds for that fiscal year available to the Government through any of the
payment mechanisms specified in paragraph B.1. of this Article..
b. For each contract for the Project where the Government will
not use a continuing contract to make fingncial obligations for construction or financial
obligations for data recovery activities associated with historic preservation pursuant to
Artiole XVII.B3. of this Agreement, the Government shall norify 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 considerarion of any cash contriburion
provided by a non-Federal interest pursuant to the temis of the Design Agreement, to
meef: (a)the projected non-Federal proportionate.share of financial obligations for
construction to be incurred fot such contract and (b) the Non-Federal Sponsor's share of
the projec.ted financial obligations for data recovery actiyities associated with historic
preservation pursuant to Article XVII.B:3. of this Agreement to be inciured for such
contract. No later than such scheduled date, the Non-Federal Sponsor shall make the full
amount of such required funds available to the Govemment through any of the payment
mechanisms specified in pazagraph B.1. of this Article.
c. Where the Government pro�ects that it will make financial
obligations for construction of the Project using the GovernmenYs own forces or
financia] obligations for data recovery activities associated with historic preservation
pursnant to Article XVII.B3. of trus Ageement usirig the GovernrtienYs own forceS, the
Government shall noti_fy the Non-Fe,dei�al Sponsor in writing, no later than 60 calendai
days prior to the beginning of each fiscal year in which the Government projects that it
will make such financial obligarions, of the funds the Govenunent 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
meetc(a) the projected non-Federal proportionate share of f nancial obligations for
construction using the GovemmenYs own forces for that fiscal year and(b) the Non-
Federal Sponsor's share of theprojected financial obligations for data recovery activities
associated with historic preservation pursuant to Article XVII.B.3. of tliis Ageeinent
using the GovernmenYs own forces for that fiscal year. No later than 30 calendaz days
prior to the beginning of that fiscal year, the Non-Federal Sponsor shall make the full
amount of such required funds for that fiscal year available to the Govemment through
any of the payment mechanisms specified in pazagraph B.1. of this Article.
19
3. The Govemment shall draw from the funds providgd by the Non-
Federal Sponsor such sums as the Government deems necessary, after considerarion of
any contriburions provided by a non-Federal interest pursuant to the terms of the Design
Agreement,to covert (a)the non=Federal proportionate share of financial obligations for
construction incurred prior to the cbmmencement of the period of construction;(b)the
non-Federal proportionate share offinancial obligations for construction as financial
obligations for construction are incurred; and (c)the Non-Federal Sponsor's shaze of
financial obligations for data recovery acrivities associated with historic preservation
pursuant to Article XVII.B3. of this Agreement as those financial obligations are
incurred. If at any time the Goveinriient deterinines that additional fiinds will be needed
from the Non-Federal Sponsor to cover the Non-Federal Sponsor's share of such
financial obligations in the current fiscal year, the Government shall notify the Non;
Federal Sponsorin writing of the additional funds required and providean explanation of
whyadditional fixnds are,required. Within 60 calendaz days,from receipt ofsuch notioe,
the Non-Federal.Sponsor shall provide the Govemment with the full amount of such
additional requiced funds tluough any of the payment mechanisms specified in paragraph
B.1. of this Article.
C. Upon the District Engineer's determination that, except for monitoring and
adaptive management, the entiie Project is coinplefe and all relevant clann§and app:eals
and eminent domain proceedings have been resolved,the Govemment sha11 conduct an
interim accounting and fiaipsh the;esults to the Non-Federal Sponsor. Further,upon
conclusion of the periocl of construction and resolution of all relevant claims and appeals
and eminent domain proceedings,the Government shall amend the interim accounting to
complete the final acconnting and finnish the results to the Ndn-Fede�al Spons6r. 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 theprevious interim accounting, as applicable, and fumish
the Non-Federal Sponsor with wriften notice of the results of such interirii or ainerided
interim accounting, as applicable. Orice all outstanding Yelevant claims arid appeals and
eminent domain pioceedings;are resolved, the Government shall complete the final
accounting and fumish the Non-Federal Sponsor with written notice of the results of such
final accounting. The interim or final accounting, as applicaBle, sHa11 detei-nune total
project costs and the costs of any data recovery activities asso.ciated 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.
L Should the interim or final accounting, as applicable, show that the
Ndn-Federal Sponsor's total require.d shares of total projecr costs and the cos.ts of any
data recovery activities associated with historic preservarion exceed the Non-Federal
Sponsor's total cont;ibutions p;ovided 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 Govemment in an amount equal to the difference by delivering a check payable to
"FAO, USAED, Seattle DistricY'to the District Engineer or byproviding an Electronic
Funds TrBnsfer 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-Fe,cieral Sponsor for total project costs and the
costs of any dafa recovery activiries associated with historic preservation exceed the Non-
Federal Sponsor's total required shares thereof,the Govemment, subject to trie availability
of funds, shall refund or reimbwse the excess amount to the Non-Federal Sponsor within
90 calendar days of the date of complerion of such accounting. In the event the Non-
Federal Sponsor is due a refund or reimbursement and funds aze not available to refund
or reimburse the eiccess amount to the Non-Federal Sponsor, the Govemment sliall seek
snch appropriations as aze necessary to make the refund or reimbursement.
D. T'he Non-Federal Sponsor shall provide the contribution of funds required by
Article II.G. of this Agreement for additional work in accordance with the provisions of
this pazagraph.
1. Not less than 90 calendaz days priorto the scheduled date for the first
financial obligation for additional work;the Govgrnment shall notify the Non-Federal
Sponsor in writing of such scheduled date and of the full amount of funds the
Government determines to be required from the Non-Federal Sponsor to cover the costs
of the addirional work. No latei tfian 30 calendar days prior to the Government incurring
any financial obligation for additional work, the Non-Federal Sponsor shall proyide the
Government with the fizll amount of the funds required to cover the costs of such
additional work through any of the payment mechanisms specified in paragraph B:1. of
this Article.
2. The Government shall draw from the funds provided by the Non-
Federal Sponsor such sums as the Government deems necessary to cover the
GovercunenYs financial obligations for such additional work as they aze incurred. If at
any time the Govemment determines that the Non-Federal Sponsor must provide
additi6nal funds to pay for snch 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 aze required. Within 30 calendar days from receipt of such notice;
the Non-Federal Sponsor shall provide the Government with the full amount of such
additional iequired funds tfirough any of the payment mechanisms specified in paragraph
B.1. of this Article.
3. At thetime the Government conducts the interim or final accounting,
as applicalile, ttie Godeiiiment shall conduct an accouuting of the GovernmenYs financial
obligations for additional work inourred apd furnish the Non-Fedetal Sponsor with
written notice of the results of such accounting. If outstanding relevant claims and
appeals or eminent domain proceedings prevent a final accounring of addirional work
from being conducted in a timely manner, the Government shall conduct an interim
accounting of additional work and fumish 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 resol4ed, the Godemment sHa11 amend the interim
accounting of additional wotk to complete the final accounting of additional work and
21
fiunish the Non-Federal Sponsor with written notice of the results of such final
accouiiting. Such interiin oi final accounting, as applicable, shall detennine the
GovemmenYs total financial obligarions for additional work and the Non-Federal
Sponsor's conhibution of funds provided thereto as of the date of such accounting.
a. Should the interim or final accounting, as applicable, show that
the total obligatioris fdr 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 calendaz days a8er receipt of written notice from the Govemment, shall make:a
payment to the Govenmient in an amount equal to the difference by delivering a check
payable to "FAO, USAED, Seattle DistricY'to the District Engneer or tiy proyiding an
Electronic Funds Transfer in accordance with procedures established by the G.overninent.
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 GoVerriment,.suBject to tYie
availaliility of funds, shall iefuud the eiccess amount to the Non-F'ederal Sporisor witYun
90 calendaz days of the date of comple.tion of such accounting. In the event the Non-
Federal Sponso;is due a refund and funds are not available to refund the excessamount
to the Non-Federal3ponsor,the Govec7unent 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 tfie nature of the
puiporte8 Breach and seek in go.od faith to resolve the dispute through negoriation, If the
parties cannot resolve the disppte through negotiation, they may agree to a mptually
acceptable method of non-binding alternative dispute resolution with a qualified third
party acceptable to both parties. Each party shall pay an equal shaze of any costs for the
services proVided by such a tiiird party as such oosts 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 (OIvIRR&R)
A. Upon receipt of the notification from the District Engineer in accordance with
Article II.C. of this Agreeinent and for so long as the Project remains authorized,the Non-
Federal Sponsor, pursuant to Article II.D. of this Agreement, shall operate,maintain,
repair,rehabilitate, and replace the eririre Project or functional portion of the Project,at no
wst to ttie Govemment. The N6n-Federal Sponsor shall conduct its operation,
maintenance, repair, reHabilitation, and replacement responsibilities in a manner
compatible with the Projec.t's authorized purposes and in accordance with appiicable
Federa] and Statg laws as provided in Article XI of this Agreementand specificdirections
prescribed by the Govemment in the interim or final OMRR&R Manual and any
subsequent amendments thereto.
22
B. The Non-Federal Sponsor hereby gives the Govemment a right to enter,at
reasonable times and in a reasonable manner,upon property that the Non-Federal Sponsor
now or hereafter owns or controls for access to the Project for the purpose of inspection and,
if necessary, for the purpose of completing operating,manitaining,repairing,rehabilitating,
or replacing the Project. If an inspection shows that the Non-Federal Sponsor for any
reason is failing to perform its obligatiops under this Agreement,the Govemment shall send
a written nodce d.escribing the non-performance to the Non-Federal Sponsor. If,after 30
calendar days from receipt of such written notice by the Govemment,the Non-Federal
Sponsor continues to fail to perfonn,then the Goveinment shall have the right to enter, at
reasonable times and in a reasonable mariner,upon property that the Non-Federal Sponsor
now or hereafter owns oi controls for the purpose of completing,operating,maintaining,
repairing,rehabilitating, oi replacing the Project. No completion,operation,maintenance,
repair,rehabilitarion, or replacement by the Government shall relieve the Non-Federal
Sponsor of responsibiliry to meet the Non-Federal Sponsor's obligations as set forth in tHis
Agreement, or to preclude the Govemment from pursning any other remedy at law or eqwty
to ensure faithful performance piirsuant to this Ageement.
ARTICLE IX—HOLD AND SAVE
Subject to the provisions of Article XXI of this Agreement the Non-Federal Spbpsor shall
hold and save the Government free from all dainages arising from construction, monitoring,
adaptive management, operation,maintenance,repair,rehabilitation,and replacement of
the Projecl and any betterments, 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 calendaz days after the effective date of this Agreement,the
Govemtnent and the Non-Federal Sponsor shall develop procedures for keeping books,
records,documents,or other evidence pertaining to costs and expenses incurrad pursuaiit to
this Agreement. These procedures sha11 incorporate,and apply as appropriate,the standards
for financial manageinent systems set forth in the Uniform Administrarive Requirements for
Grants and Cooperative Agreements to State and Local Govemments at 32 C.F:R. Section
33.20. The Govemment and the Non-Federal Sponsor shall maintain such books,records,
documents, or other evidence in accordance with these procednres and for a minimum of
three years after completion of theaccountnig for which su.ch books,records, documents, or
othei evidence were reqnired. To the extent permitted under applicable Federal laws and
regulations, the Government and the Non-Federal Sponsor shall each a11ow 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 Amendinents of 1996 (31 U,S.C. 7501-
7507), as implemented by Office of Management and Budget(OMB)Circular No. A-133
and Departmerit of Defense Directive 7600.10. Upon request of the Non-Federal Sponsor
23
and to the eztent periiutted under applicable Federal laws and regulations,the Govemment
sha11 provide to the Non-Federal Spbnsor and indeperident auditors any information
necessary to enable an audit of the Non-Federal Sponsor's activities uudei this Agreemeut.
The costs of any non-Federal suditsperformed in accordance with this paragraph shall be
allocated in accordance with the provisions of OMB Circulars A-87 and A-133, and such
cbsts as aze allocated to the Project sha11 be included in total project carts and shared in
accordance with the prodisions of tliis Agreement.
C. In accordance with 31 U.S.C. 7503,the Government may conduct andits in
addition to any audit that the Non-Federal Sponsor is required to conduct under the$ingle
Audit tict Amendments of 1996. Any such Government audits shall be conducted in
accordance with Goveinment Auditing Standards and the cost principles in OMB Circulaz
No. A-87 and other applicable cbst principles and regnlations. The costs of Government
audits performed in accordance with this pazagraph shall be included in total project costs
and shared in accordance with the provisions of this Ageement.
ARTICLE XI - FEDERAL AND STATE LAWS
In the exercise of their respective rights and obligations under this Ageemerit, the
Non-Federal Sponsor and the Government shall comply with all applic.able Federal and
State laws and regulations, including,but not limited to:Section 601 of the Civil Rights
Act of 1964, Public Law 88-352 (42 U.S.C. 2000d) and Department of Defense Directive
5500.11 issued puisuant theieto; Aimy Regulation 600-7, entitled"Nondiscrimination on
the Basis of Handicap in Progracris and Activities Assisted orConducted by the
Departrnent of the Army"; and all applicable Federal labor standazds requirements
including,but not limited to, 40 U:S.C. 3141-3148 and 40 U.S.C. 3701-3708 (revising,
codifying and enacting without substantive change the provisions of the Davis-Bacon Act
(formerly 40 U.S.C. 276a et seq.), the Contract Work Hours and Safety Standazds Act
(formerly 40 U.S..C. 327 et s.eq.) 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 Govenunent and the Non-Federal Sponsor each aet in an independent capacity, and
neither is to be considered the officer, agerit,or employee of theother:
B. In the e�cercise 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 aetion that the other party may have or
for violation of any law.
24
ARTICLE XIII - TERMINATION OR SUSPENSION
A. If at any time the Non-Federal Sponsor failsto fulfill its obligations nnder trus
Agreement, the Assistant Secretary of the Army(Civil Works) shall tetminate this
Agreement or suspend future performance under this Ageement unless the Assistant
Secretary of the Arxny(Civil Works) deterinines that continuation of work on the Project is
in the interest of the United States or is necessary in order to satisfy ageements with any
other non-Federal interests in connection with the Project.
B. In the event the Govemment projects that the amount of Federal funds the
GoVerciment will make available fo the Project ttirough the then-current fiscal year, or the
amount of Federal funds the Government will make available for the Proje.ct through the
upcoming fzscal year, is not sufficient to meet.the Federal share of total project costs and
the Federal share of costs for data recovery activiries associated with historic preservation
in accordance with Article XVII:B.2. and Article XVII.B:3. of this Agreement that the
Gove=cunent projects to be inciirred through the ttien-current or upcoming fiscal year, as
applicable, the Govemment sha11 notify the Non-Federal Sponsor in writing of such
insufficiency of funds and of the date the Governinent projects that the Federa] funds that
will have beenmade available to the Project will be eachausted: Upon the exhausrion of
Federal funds made available by the Government to the Project, future performance
under this Agreement shall be.suspended. Such suspension shall remain in effect until
snch time that the Governinant notifies the Non-Federal Sponsor in writing that sufficient
Federal funds are available_to meet the Federal share of total project costs and the
Federal shaze of costs for data recovery activities associated with historiapreservation in
accordance with Article XVII.B.2. and Article XVII.B:3. of this Ageement the
Goveinment projects to be incnrred throngh the then-current or upcoming fiscal year, or
the Goyernment or the Non-Federal Sponsor electsto terminate this Agreement.
C. In the event that the Government and the Non-Federal Sponsor determine to
suspend fixture performance under this Agreement in accordance with Article XIV.C. of
this Agreement, such suspension shall reinain in effect until the Goveriiment and the
Non-Federal Sponso.r agree to procee.d or to terminate-tliis Agreement. In the eyent that
the Government suspends future performance under this Agreement in accordance with
Article XN.C. of this Agreement due to failure to reach agreement with the Non-Federal
Sponsor on whether to proceed or to terininate this Agreement, or the failure of the Non-
Federal Sponsor to provide fupds to pay fo.r cleantiip and re.sponse costs or to otherwis.e
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 agreemerit on how to proceed or to terminate this Agreemenf; 2)
the Non-Fedaral Sponsor provicles 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 Govemment terminates this
Agreement in accordance with the provisions of Article XIV.C. of this Agreement.
D. In the event that this Agreement is terminated pursuant to this Article or Article
XIV.C. of this Agreement,both parties shall conclude their activities relating to the Project
25
and conduct an accounting in accordance with Article VI.C. of this Agreemgnt. To provide
for this eventuality, the Government may reserve a percentage of tofal Federal fixnds
made available for the Project and an equal percentage of the.total funds wnfributed by
the Non=Federal Sponsor in accordance with Article II.B.2. and Aiticle XVILB3. of this
Agreement as a contingeiicy to pay costs of termination, including any costs of;esolution
of c6ntraat claims and contract modificarions.
_ __ _ __ . _ _. . ...
E. Any ternunarion of this Agreement or suspension of fiatiire perforiiiaiice uuder
tlus Agreement in accordance with tliis Article or Article XIV.C. of ttris Agreement Sha11
riot relieye the parties of liability for any obligation previously incurred. Anydelinquent
payment owed by the Non-Federal Sponsor shall be chazged interest at a rate,to be
determined by tlie Secretary of the Treasury, equal to 150 per centum of the auerage bond
equivalent rate of the 13 week Treasury bills aucrioned immediately prior to the date on
which such payment becaine delinquent,or auc6oned 'unfnediately prioi to theb:eginning of I
each additional 3 inonth period if the period of delinquency exceeds 3 months, '
ARTICLE XIV - HAZARDOUS SUBSTANCES
A. After execution of this Agreeiriarit and apoii direction by the District Engine0r,
the Noti-Federal Sponsor sliall perform, or ensure perFormance of, any ipyestigations for
hazazdous substaqces that the Govemment or the Non-Federal Sponsor detennines to be
necessary to identify the eustence and extent of any hazazdous substances regulated under
the Comprehensive Environmental Response, Compensarion, and Liability Act(hereiriafter
"CERCLA")(42 U.S.C. 9601-9675),that may existin, on, or under lapds, easements, and
rights-of-way triat ttie Govenpitent de.teinunes,pursuant to Article III of fliis Agreement;to
be required for conshuction;operation, and maintenance of the Project. However; for lands,
easements, and rights-of-.way that the Goverxunent detexmines to be subject to the navigation
servitude, only the Govenunent shall perforrii such investigarioiis unlessthe District
Engineei provide's tli8 Non-Fedei�al Sponsor with prior specific written direction,in which
case the Non-Federal Sponsor shall perform such investigafions in accordance with such
wriften direc4ion.
1. All acfual costs iricurred by the Non-Federal Sponsor for such
invgstigations for hazardous substances shall be included in totgl project costs and shared in
accordance with the provisions of this Agreement, subj ect to an audit in accordance with
Artiele X.C. of this Agreement to detennine reasonableness, allocability,:arid allowability of
such costs.
2. All actual costs incurred by the Government far such investigafions for
hazardous substances shall bg included in total project costs and shared in accordance
with the prouisions of this Agreement.
B: In the event it is discovered through any investigation forhazardous siilistances
or other means that hazazdous snbstances regalated nnder CERCLA exist in,on,or under
any lands,easeciients,or rights-of-way that the Government determines,pursuant to Articlg,
III of tliis Agreement,to be required for construction, operation, and maintenance of t$e
26
J
Project,the Non-Federal Sponsor and the Government,in addition to providing any other
notice reqnired by applicable law, shall provide prompt written no6ce to each other, and the
Non-Federal Sponsor shall not proceed with the:acquisition of the real proper[y interests
until the parties agree that the Non-Federal Sponsor should proceed.
C. The Govennnent and the Non-Federal Sponsor shall determine whether to
initiate consh�uotion of the Project,or,if already in construction,whether to contiriue with
construction of the Project, suspend fuhue performance under this Agreement, or temiinate
this Agreement for the convenience of the Government,�n any case where hazardous
substances regulated under CERCLA are:found to exist in, on,or under any lands,
easeinents, or rigtits-of-way that the Govenunent detern�ines,pursuant to Article III of this
Agreement,to be required for construcfion, opera6on, azid mainteriance of the Project.
Should the Government and tlie Non-Federal Spoqsor deterniirie to initiate or continue with
conshuction of the Project after considering any liability that may arise under CERCLA,the
Non-Federal Sponsor sha11 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
irivestigations necessary to deteimine an apprbpriate response to the contamination. Such
costs shall not be considered a part of total project costs. In the event the Non-Federal
Sponsor does not reach agreement with the Government on whether to proceed or to
terminate this Ageement under this paragraph, or fails to provide any funds necessary to
pay for cleanup and response costs or to otherwise discharge theNon-Federal Sponsor's
responsibilities under this pazagraph upon direcfion by the GovBrnment,the Govenunent,in
its sole discretion,may either tenninate this Agreement for the convenience of the
Government, suspend fuhue performance under this Agreement, or conrinne work on the
Project.
D. The Non-Federal Sponsor and the Govemment shall consult with each other in
accordance with Article V of this Agreement in an effoit to ensiire that r8sponsible pazties
bear any necessary cleanup and response costs as defined in CERCLA. Any decision made
pursuant to paragraph C. of trris Article sha11 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 maacimum extent practicable,the Non-Federal Sponsor shall operate,maintain,
repair,rehabilitate,and replace the Project in a manner that will not cause liability to arise
nndei CERCLA.
ARTICLE XV-NOTICES
A. Any notice,request,deiiiand, or other cominunication required or pernutted to be
given under this Agreement shall be de"emed to haue 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
If to the Non-Federal Sponsor:
Environmerital Services Manager
City of Auburti
25 WestMain Street
___ . . ...
Aubum,WA 98001
If to the Government:
Chief,Platuiing Branch, PPMD
Seattle District;Corps of Engineers
P.O. Box 3755
Seattle,WA 98124-3755
B. A party tnay change the address to which such communications areto be
directed by giving written notice to the other party in the manner provided in trus Article.
C. Any notice;request, demand, or other comniunicaHon made pursuant to this
Articleshall be deemed to havebeen reoeived by the addressee at the earlier of such time as
it is actually received or seven oalendar days after it is mailed.
ARTICLE XVI - CONFIDENTIALITY
To the extent pernntted by the laws governiiig each patty, the parties agree to
iriaintain the confidentiality of exchanged informa6on when requested tordo so by the
providing party.
ARTICLE XVII - HISTORIC PRESERVATION
_ __
A: The Government; as it determines necessary for tHe Project, shall perform any
identificarion, survey, or evaluation of historic properties. Any costs incurred by the
GoOernmant for such work shall be included in total project costs and shazed in
accordance with the p;ovisions of this Agreement.
B. The Government, as it determines necessary for the Pr"oje"e;, shall perfo;m or
ensure the perforinance of any mitigation activities or actions for historic properties or
that aze otherwise associated with historic preservation including data recovery activities.
1. Any costs incurred by the Government for such mitigation activities,
exc.ept for data recovery activities associated with historic preservation, shall be iricluded
in total project costs and shared in accordance with the provisions of this Agreeinent.
2. As specified in Section 7(a)of Public Law 86-523, as amended by Public
Law 93 291 (16 U.S.C. 469c(a)); tHe costs of data recoyery activities associated with
28
,
historicpreservarion sha11 be bome entirely liy the Goverrinient and shall not be mcluded 'm
total project costs,up to the statutory limit of one percent of the total amount authorized to
be appropriated to the Govermnent for the Project.
3. The Government sHall not incur costs for data recovery activities
associated with historic preservarion that�ceed the:statutory one percentlimit specified in
paragraph B.2. of this Article unless and until the Assistant Secretary of the Army(Civil
Worksj has waived that limit and the Secretary of the Interior has concurred in the waiver
in accordance with Section 208(3)of Public Law 96-515, as amended(16 U.S.C.469c-
2(3)). Any costs of data recovery activities associated with historic preservatioq that exceed
the one percent limit shall not be included in total project costs buY shall be shared between
the Non-Federal Sponsor and the Goverrunent consistent with the cost sharing requirements
for ecosystem restoration,as follows: 35 percent will be borne by the Non-Federal Sponsor
and 65 percerit will be boine by the Government.
C. If, during its performance of relocg(ions or construction of improvements
required on lands, easements, and rights-of-way to enable the disposal of dredged or
excauated material in accordance with Article III of this Agreement,the Non-Federal
Sponsor discovers historic properties or other cultaral resoiarces that Have not been evaluated
by the Govennnent puisuant to this Article,the Non-Fedecal Sponsor shall provide prompt
written notice to the Govemment of such discovery. The Non-Federal Spoiisor shall not
proceed with performance of the relocation or construction of the improvement that is
related to such discovery until the Govenunent provides written notice to theNon-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 ariy third person
not party to this Ageement.
ARTICLE XIX-NON-LIABILITY OF OFFICERS AND EMPLOYEES
No officer, agent, consultant, or eiriployee of the N.on-Federal Sponsor,nor any
officer, agent, consultant, or employee of the Governmgnt, may be charged personally, oi
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
Watar Resources Development Act of 1986, Public Law 99-662, as ainended(42 U.S.C.
1962d-Sb note), or other applicable law.
ARTICLE XX - SECTION 902 MAXIMUM COST OF PROJECT
The Non-Federal Sponsor understands that Section 902 of the Water Resources
Development Act of 1986, Public I,aw 99-662, as amended(33 U.S.C. 2280) establishes
the maxnnum amount of total costs for the Authorized Project, of which the Project is a
separable element. On the effecrive date of tlus Agreement,the maximum amount of total
29
costs for the Authorized Project, wtiich is the suin of total project costs for the Project and
the costs for all other s"eparable: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 Auttiorized Project,in
accordance with 5ectiori 902 of the Water Resodrees Development Act of 1986, Publiq
Law 99-662, as amended(33 U.S.C. 2280),when necessary,
IN WITNESS WHBREOF,the parties hei�eto haue execute8 this Agreement,whioh
shall become'effective npon the date it is signed by the Distnct.Engineer.
DEPARTMENT OF THE ARMY CITY OF AUBURN
BI': BY:
_ - - - . _
Brucg.A. Estok Nancy Backus
Golonel, Corps of Engineers Mayor
District Engineer
DATE: DATE:
30
�
CERTIFICATE OF AUTHORITY
I, ,do hereby certify that I am the principal legal officer of
the City of Auburn,that the City of Auburri is alegally cons6tuted public body with full
auttiority and legal capability to perfoan the teims of the Agreement between the
Depaztment of the Army and the City of Auburn in conneotion with the Duwamish/Mill
Creek Wetland SK Reach Ecosystem Restorarion Project, and to pay damages,if
necessary, in the event of the failure to perfdrm in accordance with the terms of this
Agreement, as required by Section 221 of the Flood Conirol Act of 1970,Public Law
91-611,as amended(42 U.S.C. 1962d-56), and that the persons who have executed this
Ageement on behalf of the City of Aubum have acted within their statnto"ry authority.
IN WITNESS WHEREOF, I have made and executed this certification this
day of 20_
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 Fedeial appropriated funds have been paid or will be paid,byor on behalf
of the undersigped, to any gerson for influencing or attempting to influence an officer or
employee of any agency, a Member of Congress, an officei or employee of Congress, or
an employee of a Member of Congress in connection with the awariling ofariy Federal
contract,the making of any Federal grant, the making of any Fedeial loan, tHe entering
into of ariy cooperative agreement, and the extension, conrinuation,renewal, amendment,
ormodification of any Fedeial 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 Congess, an of�icer or employee of Congress, or an employee
of a Member of Congress in connection with this Federal contract, grant, loan, or
cooperative ageement,the undersigned shall complete and submit Standard Form-LLL;
"Disclosure Form to Report Lobbying,"in accordance with itainstructions.
(3)The undersigned shall require that the language of this cettification be
inclnded in theawazd documents for all subawazds at all tiers (including subcoptracts,
subgrants, and contracts under g"ants,loans, and cooperative agreements) and that all
subrecipientsshall certifyand 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 ttris certificarion is
a prerequisite foi making or enteiing into this transaction imposed by 31 U.S.G. 1352:
Any person who fails to file the re:quired certification shall be sub�act to a civil penalty of
not less than $10,000 and not more than$100,000 for each such fa'ilure.
Nancy Backus
Mayor, City of Auburn
DATE:
32
.
NON-FEDERAL SPONSOR'S
SELF-CERTIFICATION OF FINANCIAL CAPABILITY
FOR AGBEEMEIVTS
I, . ;do hereby certify that I am the Chief Financial Officer
of the City of Auburn (the"Non-Federal Sponsor"); that I am aware of the financial obligations
of tlie Nop-Federal Sponsor for the Duwamish/Mill Creek Wetland SK Reach Ecosystem
Restoration Project; and that the Non-Federal Sponsorhas the financial capability to sarisfy the
Non-Federal Sponsor's obligarions under the Project Partnership Agreement Between the
Department of the Army and the City of Auburn For Construction of the Duwamish/Mill Creek
Wetland SK Reach Ecosystem Restoration Project.
IN WTTNESS WHEREOF, I have made and executed this certification this day of
>
BY:
TITLE: Finance Director, City of Auburn
DATE:
MILL CREEK WETLAND 5 K
TOTAL PROJECT COSTS WORKSHEET �!�D�iEG oi%3/z014
Cosf Elemenfs Estimated ;Notes
__________""""""""___________________________________________________+________"""'__+________________'__""'__"""""_—__'
Consiruction � $ 3,611,000 � Based on USACE estimate from Moy 22,2014
""""""'_"_'__'_____________'__"_""'__""""""""""""'____+____________________+______""""""""""""""'_"_' '_""
Plonning& Design � $ 1,393,000 � Based on USACC estimate from May 22,2014
� _________ ' + _""""""_'.�' ' ______""""""""""""""""""""_'_'
Properly � $ 990,240 � Based on Approved Appraisals
""""""""""""""""""_'______________"""""""""""""+"""""""'____+______""""""""""""""""""""_""_'_"________
Monitoring and Maintenance � $ 66,000 � Based on USACE estimate from May 22,2014
_"""""""""""""""_"""_______________"_""_""""""""}""""""""'_'�.'_____'__'___""""""""""""""""_"""'_______'_"
Total Projecf Cosfs j $ 6,060,240 j
_______""_""""""""""""""'_'________"__-_______'_""""r"""""""""";."" """"""'—"""""""__'
City Costs Adjusfed for Credlfs ; j
-----'--'--------------------------------------------'— r---------------�--------------------'-"----------------------------------
CityCostShare �35%� j $ 2,121,084 ;
-------------------------'--------'--'----'------'---'--'-'---------"-----T---------'----�-'-"---"'------------------------------------'-------'---'--'
Credits
"""' "___________"""_"""""""""""""""""' r_________________'_+""""""""""""'-"'____________________'_"'___""_"
-LERRD �Properfy� i $ (99Q240�j Based on Appraisals
_____________________________________________'__'_'_"""""""""""___r_______________,___r_""_""___ """
-City Shore of Design , $ (36LJ 5�j Prior Cify Coniribution
"""""""""_______-_.___'__________"""""""""""""""""".._ _""""""""""""""""""""""'
-Real Estate Incidentals and Technical Review j $ �50.489�j Based on Consuliani f-ees
"""""""""'___. "__'_""""""""""""""_"""""'_'______�___""__"""""""""""""""""""""_"_'_______'
Subtotal j $ �I,40I,944�;
'_"""""""'_"""""""'_""""""________________'_"""""'�"""""""""",«"'_________________'_"""""""""""""""""_"_"__
CiN Cash Paymenf to USACE for Construcfion ! $ 719,140 i
____'_""""""_"""""""""""""'__-'________________'___""""'..""""""""""..'_'__-______""""""""""""""""""""___"'____
_______________________""""_""""""____'_________________________1_""_""""""'1__________________________________________'_'__"""'_'_'
Additional City Expenses
__._____'____'_"""""""""""""""""'_____________________________1_________'_"'_"":.""""""___________________________""_""""""""""'
Property Acquisition I $ bl 1,000 i Cify Esiimote
________________________________________________________________________________�________________—�______________. .________
Site Preparation/Invasives Confrol i $ 50,000 i City Estimafe
-------'-"------ _'__--------------'--"-----'--'-------�-----------------�"--'-----'------'---'-"--'---'-'--�_------------------------
Puture Conifer Planting _ i $ 100,000 i City Esiimate
' ' _ '_ """"""""""_ "" ' ___ ________
Su�toiali $ 761,000 i
_____________________'_'__'___'__________________________________________�_________________�________________________________'_'_""""_____'_________
Total City Cost"""""""'_"_'__________________________________"'_'�5""1,480_140 !
__________'__""" ' ' ' '.f_'_'___________________'_________'_"""""""""""_""
_""'_"__"_'�'_"'_""""""�""'_"""—""_"_"..r_"_'_'_.._' ' '
i4va11able Fund{nQ 1 1"�-"-"-'---_"'-----'-------"_""__"_
------------------------------------------------------------- ---------------'--+..-..-----:-----------------------------------------------
Department of Ecology_Granl ! $ 532000 s Floodplain by Design Grani _
__'_. � ' ___""""""*""_'____
Ciry f-unds�Stormwaten c�couni� � 2 L250,000 �
__'_' } '__'_____ _�___'"___"_ ' _
'_____________________________________""""""""""_'_"_"'Sublofall $ 1782000 1
+_____________"""'.H""""""'_""__'_
�
,
_________________"'__""""""'"""'""""'""'"""'""'_"'_ T'______'___"""__"{�'""'""""'""'"""'""'"""""""""__'__"___
8olance/Contingency � $ 301,860 �
"'___________________________'______"""""""""""""""""""""_T___________"'_"".F""""""""""""""'__' "_
LeverGged with USACE Share �65/35� j $ 560,597 � Based on 65/35 Cost Share
' ' ' T _'__"""""'+"""""""""""""""""""""' """'_" ________
Tofal Contingency � $ 862.456 !
___'_'_ _""""""""""'_'__________r r_________"__""""""""""""""'__"_____________'_'
14%j Percentaqe of Total Project Cosf
Prepared by Maul Fos�ar Alonc�i.Inc.
GWsers\msiringer\Documents\CityotAubvm\04520a_MFA_IOOieCostEsfimate 701406130452.04_MFA_100%Cos�Estima�e_20140613
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