HomeMy WebLinkAboutResolution 95-232 08/21/1995 Rf',SOIUl1OI1 NO.sS-232 N.C.S.
of the Citv of Petaluma. California
AUTHORIZING CITY MANAGER TO EXECUTE LOCAL COOPERATION
AGREEMENT
CORPS OF ENGINEERS
1 WHEREAS, the City of Petaluma has been working with the Corps of Engineers for a considerable
2 period of time; and
3
4 WHEREAS, in order that the Corps of Engineers continue participation in the project through the
5 construction phase, a "Local Cooperation Agreement" must be executed; and
6
7 WHEREAS, the City of Petaluma wishes to contihue its cooperative effort with the Corps of
8 Engineers; and
9
]0 WHEREAS, in January, 1995, Council authorized the manager to execute a "standard" Corps Local
1] Cooperation Agreement(L.C.A.); and
12
13 WHEREAS, the Corps is proposing an alternative agreement which is superior with respect to the
l4 local sponsor;
15
16 NOW, THEREFORE, BE IT"RESOLVED that the City Manager is authorized to sign said alternate
17 Local (Project) Cooperation Agreement (P.C.A.) draft attached hereto as Exhibit "A".
Under the power and authority conferred upon this Council by the Charter of said City.
REFERENCE: I hereby certify the foregoing Resolution was introduced and adopted by the Approved as to
Council ofthe City of Petaluma at a (Regular) XAdtON1G74~klfSdA@C)3t) meeting form
on the .21st day of ...._August.-'`-~---..................._---..., 1~.5...., by the
following vote: ` -
City Attorney
AYES: Hamilton, Stompe, Maguire, Read, Vice Mayor Shea, Mayor Hilligoss
NOES: None
ABSENT: Barlas _ //tt//~~~ ~J/"/nv
ATTEST: .._~C~'•l~?~Q~..`...:.~'~'~~~1 ` (.,,~.L.._- - . ~
ity Clerk Mayor
(?owcil Fil
c.a ~o.ss kes. ~~.....~5-~~.~....... ~.~:5. fig. i o ~ a~
EI?~
DP.AFT PAarch 31, 195
PROJECT COGPERATION AGP,EEPAENT
BETWEEN
THE DEPARTMENT OF THE ARN1'Y
?.CJ b
THE CITY OF PETALUMA, CALIFORNIA
FOR CONSTP,UCTIOPJ OF THE
PETALUiv1A RIVER PROJECT
THIS AGP.EEPaEP.IT is enured into this day of , 1555, by
and bet^;zen the DEPARTMENT OF THE ARMY (hereinafter the "Govemment")•
represented by the U.5. Army Er~ginaer ter the San Francisco District (hereinafter the
"District Engineer") and the Cibj of Petaluma (hereina`erthe'TJon-Federal 5pcnsor"),
represented by the City Manager.
~`•11TNE5SETH, THAT:
~~1HEREAS, the Petaluma River Project at the City of Petaluma, Sonoma
County, California (hereinafter thz "ProjzcP') was approved for construction by
Petaluma River, Califomia, Detailed Proj°ct Report for Flood Control, dated Novambzr
199d and approved by on (hereinafter the "DPF."),
pursuant to the authority contained In Section 205 Gf the Flood Control Act o. i 948, as
amended, 3~ U.S.C. 701st
WHEREAS, Section 103(x) of the Water Resources Development Act of 1906,
Public Law 99-662, as amended, specifies the cost-sharing requirements applicahle to
the Protect;
WHEREAS, Section 205 of the Flood Control Act of 1948, as amended, and
Government regulations which implement this statute, limitthe amount the F°tieral
Government may expend on a single flood control project fo $5,000,000;
~~JHEREAS, the Non-Federal Sponsor prefers to construct a plan that is more
costly than the National Economic pevelopment Plan idzntified in the DPR (hereinafter
the''NED Plan", as defined in Article LB. of this Agreement) and is willing to pay 100
percent of the costs of that plan which exceed the costs of the NED Plan;
WHEREAS,.the Secretary of the Army is authorized to accept the funds provided
by the Non-Federal Sponsor for construction of the plan it prefers under Section 5 of
the Flcod Control Act of June 22, 1930, 33 U.S.C. X701 h;
i
~5-a3a-
a g~ a~
DRAFT P•Aarch 3i, 1995
V~/HEP,EAS, the Government and the Non-Federal Sponsor desire fo enter into a
PI'ojeci Cooperation Agreement for construction of the Project, as defined in P.riicl2 1.A.
of this Agreement;
V`JHEREAS, Section 221 of the Flood Control Act of 1970, Public Law 9 i-511, as
.amended, and Section 103 of the Water P.esources Development Act o` 18°0, Public
Law 99-662, as amend_d, provide that the Secretary of the Army shall not comi-i
Dance
COnStrUCilOn Gf any water resources project, or separable element thereof, until each
non-Federal soonscr has entered into e varitten agreement to furnish its required
coeperafion for the protect or separable element;
WHEP.EAS, the Non-Federal Sponsor does not qualihj for a reduction of the
maximum ncn-Federal cost share pursuant to the guidelines that implement Section
103(m) of the Water Resources Development Act of 1986, Public Law 99-602.. as
amended; and
V`JHERcAS, the Government and Non-Federal Sponsor have the full authorih~
and capability to perform as hereinafter Set forth and intend to cooperate in cost-sharing
and financing of the construction of the Project in accordance with the terms of t'nis
Agreement.
NOV`d, THEREFORE, the Govemment and the Non-Federal Sponsor acree as
fellows:
ARTICLE I -DEFINITIONS AND GENERAL PROVISIONS
For purposes of this Agreement:
A. The tzrm "Project" shall mean [DESCRIBE THE FEATURES OF 7NE
LPP IN DETAIL SUFFICIENT TO AVOID ANY CONFUSION OVER WHAT 15 OR IS
NOT INCLUDED AND TO ADEQUATELY DISTINGUISH IT FROM THE NED PLAN],
as generally described. in the DPR as the Locally Preferred Plan (hereina~~er the "LPP").
B. The t=rm "NED Plan" shall mean [DESCRIBE 7HE FEATURES OF THE
NED PLAN IN DETAIL SUFFICIENT TO AVOID ANY CONFUSION OVER WHAT IS
OR IS NOT INCLUDED AND TO ADEQUATELY DISTINGUISH IT FROM THE LPP],
as generally described in the DPR as the NED Plan.
C. The term "total project costs" shall mean all costs incurred by the Non-
Federai Sponsor and the Govemment in accordance with the terms of this Agreement
directly reiaizd to construction of the Project. Subject to the provisions of this
z
~ 5- 3 2 N C S
fig. 3 a~a
DRAFT tAarch 31, 159
Agreement, the term shall include, but is not necessarily Iimite~ to: engineering and
design tests during the preparation of CUntraCt plans and specifications; engineering
and design costs during construction; the costs of investigafions to identify the
existence and extent of hazardous substances in accordance with Article XV.A, of this
Agreement; costs of historic presentation activities in accordance with Article XVIII.A. of
this Agreement; actual construction costs; including the toss of alteration, Ievdcring,
raising, or replacement and attendant removal of existing railroad bridges and
•approaches thereto; supervision and administration costs; toss of paricipation in the
Project Coordination Team in accordance with Article V cf ibis AgreCltteni; ousts or
contract.dlspute settlerc~ents or awards, the value of lands, easements, riehts-of-way,
relucations, and suitable borrow and dredged or excavated material disposal areas fer
which the Government afrords credit in accordance with Article IV of this Agreement;
the value of lands, easements, rights-of-way, relocations, and suitable borrc•.y and
dredged or excavated material disposal areas that the Government determines,
pursuant to Article III of this Aereement, to be required for the Project but not for the
NED Plan; and costs of audit in accordance with Article X cf this Agreement. The ierlli
does not include any costs for operation, maintenance, repair,. replacement, er
rehabilitation; any tests due to b=tterments; or any Costs 9f dispute resolution and>r
Article VII of this. Agreement.
D. The term "total NED costs" shall mean the tests, as determined by the
Government; that the Government and the Non-Federal Sponsor would have incurred
had the t~iED plan been constructed. Such costs shall consist of all posts thF
Government and the Non-Federal Sponsor would have incurred in construction of the
NED plan features, including but not necessarily limited to: engineering and design
costs during the preparation of contract plans and specifications; engineering and
design costs during construction; the casts of investigations to identify the existence
and extent of hazardous substances in accordance with AI'~icle XV.A. of this
Agreement; costs of historic preservation activities in accordance with Article XVIILA. of
this Agreement; actual construction posts, including the costs of alteration, lowering,
raising, or replacement and attendant removal of existing railroad bridges and
approaches thereto; supervision and administration costs; costs of participation in the
Project Coordinaticn Team in accordance with Article V of this Agreement; costs of
contract dispute settlemerrts or awards; the value of lands, easements, rights-of-way,
relocations, and suitable borrow and dredged or excavated material disposal arias for
which the Government affords credit in accordance with Ar'iicle IV of this Agreement,
and costs of audit in accordance with Article X of this Agreement. The term does not
include any costs for operation, maintenance, repair, replacement, or rehabilitation; any
costs due to betterments; or any costs of dispute resolution under Article VII of this
Agreement.
~~~®.~5"~3 ~NCS
~94oFag
DRAFT PAarch ~1, 1995
E. 7i1e term "incremental casts" shall mean the difference between total
proj=ct costs and total NED costs.
F. The term "financial obligation for constructioh" shall rnean a 5nanpial
cbligation of the Govemment, other than an obligation pertaining to the provision of
lands, .easements, rights-of-way, relocations, and borrow and dredged or excavated
material disposal areas, that results or would result in a cost that is or would be
included in total proja_ct rests.
G. The term "ncn-Federal proportionate snare" shall mean the ratio of the
Nen-Federal Sponsor's total cash contribution required in accordance witil P,r;i~-,les
ILD.1., 11.0..3., and ILE2. of this Agreement to total financial obligations for constructien,
as projected by the Government.
H. The term "period of construction" Shall Mean the time from the date the
Govemment first notifies the Non-Federal Sponsor in ~rvriting, in accordance with Artie!
VLH. of this Agre=meet, of the sChetluled date for issuance of the solicitation for the first
constn:ction contract to the date that the District Engineer notifies the Non-Federal
Sponsor in writing of the Government's deterTllination that construction of the Project is
complete.
I. The term "highway" shall mean any public highway, roadway, street, or
vday, including any bridge thereof.
J. The term "relocation" shall mean providing 2 functionalby equivalent faciliC~
to the owner of an existing utiliy; cemetery, highway or otner public facility, er railroad
(excluding existing railroad bridges and approaches there±o) when such action is
authorized ill accordance with applicable legal principles of just compensation.
Providing a functionally equivalent facility may take the form of alteration, lowering,
raising, or replacement and atfendant removal of the affected facility or part thereof.
K. The term "fiscal year' shall mean one fiscal year of the Government. The
Government fiscal year begins on October 1 and ends on September 30.
L. The term "functional portion of the Project" shall mean a portion of the
Project that is suitable for tender to the Non-Federal Sponsor to operate and maintain in
advance of Col7~pletion of the entire Project. For a portion of the Project to be suitable
for tender, the District Engineer must notify the Nan-Federal Sponsor in writing cf tt12
Government's determination that the portion of the Project is complete and can function
independently and fora useful purpose, although the balance of the Project is not
complete.
n
ItESO.JS°232NCS ~1950~ a`d
pP,AF7 March 31, 1335
h,1. The term "betterment" shall mean a change in the desiyn and construction
of an element of the Project rzsulting from the application of standards that the
Government determines exceed those that the Government would otherwise apply for
accomplishing the desiyn and COnStruCtlon of that element.
AP,TICLE II -OBLIGATIONS OF THC GOVERNPr1ENT AtdD THE tJON-FEDER.;L
SPONSOR
A. The Government, subject to the availability Of fUn~s and using those funds
and funds provided b'1 the Non-Federal Spomor, shall expeditiously construct the
Project (including alteration, lovdering, raising, or replacement and attendant removal of
existing railroad bridges and approaches thereto), applying those procedures usually
applied to Federal projects, pursuant tc Federal lauds, regulations, and policies.
1. The Government shall afford the Non-Federal Sponsor the
opportunity to review and comment on the solicitations for all contracts, including
re4evant plans and specincations, prior to the Government's issuance of such
solicitations. The Government shall no[ issue the solicitation for the frst ccnstruction
contra until the Non-Federal Sponsor has confirmed in writing its vdillingness to
proceed with the Project. To the extent possible, the Government shall afford the Non-
Federal Sponsor the opportunity to review and comment on all contract modifications,
inc:udiiig change order;, prior to the issuance to the contractor of a Notice to Proceed.
In any instance where providing the Non-Federal Sponsor with notification of a contract
modification or change order is not possible prior to issuance of the Notice to Proceed,
the Government shall provide such notification in wrting at the earliest date possible.
To the extent possible, the Govemment aiso shall afford the Non-Federal Sponsor the
opportunity to revie~.v and comment on all contract rlaims prior to resolution thereof.
The Government shall consider in good faith the comments of the Non-Federal
Sponsor, but the COIYel1t5 Of solicitations, award of contracts, execution of contract
modifications; issuance of change orders, resolution of contract claims, and
perormance of all work on the Project (whether the work is perormed under contract er
by Government personnel), shall be exclusively within the control of the Government.
2. Throughout the period of construction, the District Engineer shall
furnish the Non-Federal Sponsor with a copy of the Government's Written Notice of
Acceptance of Completed Work for each contract for the Project.
B. The Non-Federal Sponsor may request the Government to accomplish
betterments. Such requests shall be in writing and shall describe tl~e bettermznts
requested to be accomplished. If the Government in its sole discretion elects to
accomplish the requested betterments or any portion thereof, it shall so notiry the Nan-
s
R~S~.95-232NCS
~g _ ~ a~
DP,AFT March 31, 19.r,~5
Federal Sponsor in a writing that sets forth any applicable terms and conditi~.;ns, vdhic!'~
must be consistent with this Agreement. In the event of conflict between such a writing
and this Agreement, this Agreement shall control. The Non'-Federal Sponsor shall be
scleiy responsible for all costs due to the requested betterments and shall pay all such
costs in accordance wish Article VI.C. of this Agreement-
. When the District Engineer determines that the entire Project is complete
or that a portion of the Project has become a functional portion of the Project, the
District Enoineer sha!I so noti~,~ the Non-Federal Sponsor in writing and furnish the ~lon-
Federal Sponsorv~ith an Operation, Maintenance, Repair, P,eplacement, anz
Rehabilitation Manua! (hereina`er the "CP~1RRuR P.4anual") and vdith copies cf all of the
Government's VVrittan Notires of Acceptance of Completed Work for all contracts for U,,e
Project or the functional portion of the Project that have not been provided previously.
Upon such notification, the Non-Federal Sponsor shall operate, maintain, repair,
replace, and rehabilitate the entire Project or the functional portion of the Protect in
accordance with Article VIII of this Agreement.
D. The Non-Federal Sponsor shall contribute a minimum of 25 percent, but
not to exceed 50 percent, of total NED costs in accordance with the provisions of this
paragraph.
1. The Non-Federal Sponsor shall provi;fe a cash contribution equ=1
to 5 percent of total NED costs in accordance with Article VLB. of this Agreement.
2. In accordance with Article III of this Agreement, the Non-Federal
Sponsor shall provide all lands, easements, rights-of-way, and suitable borrow and
dredged or excavated material disposal arias that the Government determines the
Non-Federal Sponsor must provide for the construction, operation, and maintenance of
the NED Plan, and shalt perform or ensure performance of atl relocations the; the
Government determines to be necessary for the construction, operation, and
maintenance of the NED Plan.
3. If the Government projects that the value of the Non-Federal
5ponsoi's contributions under paragraphs D.1. and D.2. of this Articlz and Articles V, X,
and XV.A. of this Agreement will be less than 25 percent of total NED costs, the Non-
Federal Sponsor shall provide an additional cash contribution, in accordance with
Article VL6. of this Agreement; in the amount necessary to make the Non-Federal
Sponsor's total contribution equal to 25 percent of total NED costs.
4, If the Government determines that the value of the Non-Federal
Sponsor's Contributions provided under paragraphs D.2. and D.3. of this Article and
6
RED®.J5-232NCS
~9.7~-a~
DRAFT March 31, 1J95
Articles V, X, and XV.P,: of this Agreement has exceeded 45 percent of total hIED costs,
the Government, subject to the availability of funds, shall reimburse the Plon-Federal
Sponscrfor any such value in excess o` 45 percent of totaIT1ED costs. P,fter such a
detarrnination, the Goverhmeni, Iri its sole discretion, may provide any remaining NED
Plan lands, easements, rights-of-way, and suitable borrow and dredged er excavated
material disposal areas and perform any remaining NED Plan relocations en behalf of
the t`don-Federal Sponsor.
E. The Non-Federal Sponsor shall contribute 100 percent of incremental
costs in accordance with the provisions of this paragraph.
'1. In accordance v?ith Article III of this Agreement, the ~lon-Federal
Sponsor shall provide all lands, easemerts, rights-of-way, and suitable borra.v and
dredged or excavated material disposal areas that the Government determines the
Non-Federal Sponsor must provide for the construction, operation, and maintenance o.
the Project that are not otherwise necessary Eor the PdED Plan, and shall per'Grrn Gr
ensure performance of all relocations that the Government determines to be necessary
for the constriction, operation, and main,enance of the Project that are not otherwise
necessary for the NED Plan.
2. I; 'the Government projects that the value of the Non-Federal
Sponsor's contriblltlUn underparagraoh E.1. of this Article vdill be less than 100 percent
of incremental costs, the Non-Federal Sponsor shall provide an additional cash
Coniriliutien, in accordance with Article VLB. of this Agreement, in the amount
necessary to make the Non-Federal Sponsor's total Contribution equal to i00 percent of
incremental costs.
F. The Non-Federal Sponscr may request the Government to prcvidz lands,
easements, rights-of-way, and suitable barrow and dredged or excavated malarial
disposal areas orperform relocations on behalf of the Non-Federal SponsoC. Such
2cuests°shall be in v?riting and shall describe the services requested to be perormzd.
If in its sole discretion the Government elects to perform the requested services or any
portion thereof, it shall so notify the Non-Federal Sponsor in a writing that sets forth any
applicable terms and conditions, which must qe consistent with lifts Agreement. In the
evznt of conflict bety?een such a writing and this Agreement, this Agreement shall
control. The Non-Federal Sponsor shall he solely responsib{e for all costs of the
requested services and shall pay all such costs in accordance with Article VI.C. of This
Agreement. Notwithstanding the provision of lands, easements, rights-of-way, and
suitable borrow and dredged or excavated material disposal areas or performance of
relocations by the Government, the Non-Federal Sponsor shall be responsible, as
between the Government and the Non-Federal Sponsor, for the costs of cleanup and
~~S®.95-232NCS
'j g. ~ o~- aid
DP,AFT P~larch 31, 199b
response in accordance with Article X~/.C. of this Agreement.
C;. The Government shall perioYlYl a final accounting in accordance with
P,rticle VI.D. of this Agreement to determine the contributions provided by the t`lon-
Federal Sponsor in accordance with paragraphs 8., D., E., and F. of this Ar~icle anrJ
Aricl=_~ V, Y, and YV.P,. of this Agreemen`. and to determine whEther the hlen.-Federal
Sponsor has met its obligations under paragraphs 6., D., E., and F. of this F.:iicle.
H. The Pdon-Federal Sponsor shall not use Federal funds to moot the tJon-
Federal 5ponsor's share of total NED costs or incremental under this Agreement unless
the Federal granting agency verifies in writing that the expenditure of such funds is
expressly authorized by statute.
I. TI-~e Non-Federal Sponsor agrees to participate in and comply with
applicable Federal floodplain management and flood insurance programs.
J. Not less than once each year the Non-Federal Sponsor shall inform
afected interests of the extent of protection afforded by the Project.
K. The Non-Federal Sponsorshall publicize flood plain information in the
area concerned aiirJ s4~~all provide this information to zoning and other regulatory
agencies for their use in preventing unwise future development in the flood claim and ire
adopting such regulations as may be necessary to prevent unwise future development
and to ensure compatibility with protection levels provided by the Project.
ARTICLE III -LANDS, RELOCATIONS, DISPOSAL AREAS, AND PUBLIC LAW
91-046 COMPLIANCE
A. The Government, after consultation with the Non-Fedsral Sponsor, shall
determine the lands, easements, and rights-of-way required for the construction,
operation, and maintenance of the Project, including those required for relocations,
borrow materials, and dredged or excavated material disposal. The Government in a
timely manner shall provide the Non-Federal Sponsor with general written descriptions,
including maps as appropriate, of the lands, easements, and rights-or-way that the
Government determines the Non-Federal Sponsor must provide, in detail sufficient to
enable file Non-Federal Sponsor to fulfill its obligations under this paragraplZ, and shall
provide the Non-Federal Sponsor with a Written notice to proceed with acquisition of
such lands, easements, .and rights-of-way. The Government, in that general written
description, shall delineate which of the required lands, easements, and richts-of-way
are required for the NED Plan and which are required far the Project but net for the
NED Plan. Prior to the end of the period of construction, the Non-Fedora! Sponsor shall
a
~a'~~a. 9 - 2 3 2 N C S q o~ a~
DRAFT f•,larch 31, 1995
acGuir as lands, easements, and rights-of-way set for'ih in such desrriptinns.
Ful ~(~~ern-~ore, prior to issuance of the solicitation for each construction contract, the
Non-Federal Sponsor shall provide the Government with authorization for entry to all
Iznds, easements, ar,d rights-of-way the Government determines the NGn-Federal
Sponsor must provide for that contract. For so long as the Project remains authorized,
the IJon-Federal Sponsor shall ensure thot lands, easements, and rights-cf-way tha± ih
Governm?nt determines to be required for the operation and maintenance of the
Project end that v?cre provided by the Non-Federal Sponsor are retained in public
ownership for uses compatible with the authori<ed purposes of the Project.
E. The Government, after consultation with the Ncn-Federal ~pcnsor, shall
determine the improvements required on lands, easements, and rights-or-~,vay to enable
the proper disposal of dredged or excavated material associated with the construction,
operation, and maintenance of the Project. Sucl1 Improvements may include, but ere
net necessarily limited to, retaining dikes, wastaweirs, bulkheads, embankments,
monitoring features, stilling basins, 2nd de-watering pumps and pipes. The
Government in a timely manner shall provide the Non-Federal Sponsor with general
written descriptions of such improvements in detail suf
icient 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 vilth construction of such improvements. The
Government, in that general written description, Shall delineate which of tt•~e required
improvements are associated with the NED Plan and tivhich are associate with the
Project but not with the NED Plan. Prior to the end of the period of construction, the
Non=Federal Sponsor shall provide all improvements set forth in such descriptions-
Furthermore, prior to issuance oT the solicitation for each Government construction
contract. the Non-Federal Sponsor shall prepare plans and specifications for all
improv2tnents the Government determines to be required for the proper disposal of
dredged or excavated material under that contract, submit such plans and
specifications to the Government for approval, and provide such improvements in
accordance with the approved plans and specifications.
C. The Government, after Consultation with the Non-Federal Sponsor, shall
determine the relocations necessary for the construction, operation, and maintenanc°_
of the Project, including those necessary to enable the removal of borrow materials and
the proper disposal of dredged or excavated material. The Government in a timely
manner shall provide the Non-Federal Sponsor with general written descriptions,
including maps as appropriate, of such relocations in detail sufflcieni to enable the talon-
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. The
Government, in that general written description, shall delineate which of the necessary
relocations are necessary for the NED Plan and which are necessary for the Project but
9
;(~lE~®. J 5- 2 3 2 N C S ~ o o~ a~
DRAFT P~larch. 31, 1p°`.
not for the fdED Plari. Prior to the end cf the period of construction, the t`Jon-Federal
Sponsor sltall pervrrn or ensure fhe performance of all relocations as setferih in such
descriptions. Furthermore, prior to issuance of the solicitation for each Government
construction contract, the PJon-Federal Sponsor shall prepare or ensure the preparation
of plans and specifications for, and perform or ensure the performance of, all
relocations the Government determines to be necessary for that contract.
D. The PJcr~-Federal Sponsor in a timely manner shall provide the
Government with such d0cun;ents as are sufncient to enable the Government to
determine the value of any contribution provided pursuant to paragraphs A., E., ar C. cf
this Ar'iicle. Upon receipt cf such documents the Government, in accordance vaith
Article IV of this Agreement and in a timely manner, shall determine the value of sucit
contribution, include such value in total project costs and total NED costs, and afford
credit, as appropriate, for such value toward the Nan-Federal Sponsor's share of tatal
NED costs.
E. The Non-Federal Sponsor shall comply with the applicable provisions of
the Unifarm Relocation Assistance and Rea! Property Acquisition Policies Act of 1970,
Public La~.v 91-640, as amended by Title IV of fhe surface 7ransporation and Uniforn-~
Relocation Assistance Act of 1937 (Public Law 100-17), and the Uniform P,eculations
contained in 49 C.F.R. Part 24, in acquiring lands, easements, and rights-of-buoy
required for the construction, operation, and maintenance of the Project, includlne fnose
necessary for relocations, borrow materials, and dredged or excavatzd material
disposal, and shall inform all affected persons of applicable benefits, policies, and
procedurs in connection with said Act.
ARTICLE IV -VALUE OF LANDS, RELOCATIONS, AND DISPOSAL AREAS
A. The Non-Federal Sponsor shall receive credit toward its share of total
NED costs for the value of the lands, easements, rights-of-way, and suitable borrow
and dredged or excavated material disposal areas that the Non-Federal Sponsar must
provide pursuant to A>iicle III of this Agreement for the NED Plan, and for ih~ value or
the relocations that the Non-Federal Sponsor must perform or for which it must ensure
performance pursuant to Article III of this Agreement for the .NED Plan. However, the
Non-Federal Sponsor shall not receive credit for the value of any I'ands, easements,
rights-of-way, relocations, or borrow and dredged or excavated material disposal areas
that have been provided previously as an item of cooperation for another Federal
project. The Non-Federal Sponsor also shall not receive credit for the valuz of lands,
easements, rights-of-way, relocations, or borrow and dredged or excavated material
disposal areas to the extent that such Items are provided using Federal funds unless
the Federal granting agency verifies in writing that such credit is expressly authorized
~o
RED®.95-232NCS ~9 tl o~ a.8
DRAFT A,larch ~1, 199
by statute.
B. For the purposes of affording credit tov?ard the Non-Federal Sponsor's
sl-iare of total NED casts, inclusion in total NED costs, and inclusion in total project
costs, the value of lands, easements, and rights-of-way, including those necessary far
relacations, burrow materials, and dredged or excavated material disposal, that the
Government determines, in accordance with Article III of this P.greement, to be required
fcr the I•JED Plan and to be provided by the Pdon-Federal Sponsor, is hereby agreed
and stipulated to be $ inclusive Uf any incidental casts of acquiring such
interests. In addition, far the sole purpose of inclusion in total project costs, the valua of
lands, easements, and rights-of-way, including those necessary for relocations, borro'.v
materials, and dredged or excavated material disposal, that the Government
determines, in accordance vdith Article III of this Agreement, tc be required for the
Project but not for the NED Plan and to be provided by the Nan-Federal Sponsor, is
hereby agreed and stipulated to be S inclusive of am/ incidental costs of
acquiring such interests.
1. NoiVVlthstanding the above stipulations of value, in the event that
this P.greement is terminated pursuant to Article XIV or Article XV of this P.greement, the
valu=_ of lands, easements, and rights-of-way, including those necessary for relocations,
borrow materials, and dredged or excavated material disposal, shall Le rile fair nlar~et
value of the real propa~y interests, plus certain incidental cwts of acquiring these
interests, as determined in accordance with the provisions of This paragraph.
a. Date of Valuation7. The fair market value of lands,
easements. or rights-of-way owned by the Non-Federal Sponsor on the effective date of
this P.greement shall be the fair market value of such real property interests as of the
date the Non-Federal Sponsor provides the Government with authorization far entry
thereto. The fair market value of lands, easements, or rights-of-way acquired by tha
Non-Federal Sponsor after the effectivz datz of this Agreement shall be. the fair market
value of such real propery interests at the time the interests are acquired.
b. General Valuation Procedure. Except as provided in
paragraph 8.1:c. of this Article, the fair market value of lands, easements, or rights-of-
way shall be determined in accordance with paragraph B.1.b.(1) of this Article, unless
thereafter a different amount is determined to represent fair market value in accordance
with paragraph 8.1.b.(2) of this Article.
(1) The Non-Federal Sponsor shall dbtain, foi each real
preperty interest, an appraisal that is prepared by a qualified appraiser who is
acceptable to the Non-Federal Sponsor and the Government. The. appraisal must be
11
~tES®.g5-232NCS
OP.AFT t:4arch .51, 1995
prepared in accordance with the applicable rules of just compensation, as specified by
the Government. The fair market value shall be the amount set forth in the PJcn-
Federal 5ponsor's appraisal, if push appraisal is approved by the Government. In ti-ie
event the Government does not approve the Non-Fetleral Sponsor's appraisal, the Non-
Federal Sponsor may obtain a second appraisal, and the fair market value shall be the
amount set forth in the tJon Federal Sponsor'ss~cond appraisal, if such appraisal is
approved by the Government. In the even; the Government does not approve thr Non-
Federal Sponsor's second appraisal, cr the 1`lon-Federal Sponsor chooses not to obtain
a second appraisal, the Government shall obtain an appraisal, and the `air mar'~:et value
shall be the amount set forth in the Government's appraisal, if such appraisal is
approved by the Nan-Federal Sponsor. In the event the PJon-Federal Sponsor does not
anorove the Governmen~ s appraisal, the Government, after Consultation vdit~
~ the Non-
Federal Sponsor, shall consider the Government's and the PJon-Federal Sponsor's
appraisals and determine an amount based thereon, Whlch shall be deemed to be the
fair market value.
(2} ti^Jhere-the amount paid or proposed to be paid by tl'ie
tJon-Federal Sponsor for the real property interest exceeds the amount determines
pursuant to paragraph B.1.b.(1) of this Ar[icle, the Government, at the req~,iest of tha
Non-Federal Sponsor, shall consider all factors relevant to determining fair market
value and, in its sole discretion, aYer consultation with the Non-Federal Sponsor, may
approve in writing an amount greater than the amount determined pursuant to
paragraph 8.1.b.(1) of this Article, but not t0 exceed the amount actually paid or
proposed to be paid. If the Government approves such an amount, the ;air market
valua shall be the lesser of the approved amount or the amount paid by the Non-
Federal Sponsor, but no less than the amount determined pursuant to paragraph
6.1.b.(1) ofthis Article.
c. Eminent Domain Valuation Procedure. For lands,
easements, or rights-of-way acquired by eminent domain proceedings instituted af`~er
the effective date ofthis Agreement, the Non-Federal Sponsor shall, prior to instituting
such proceedings, submit to the Government notification in writing of its intent to
institute such proceedings and an appraisal of the specific real properly intarzsts to be
acquired in such proceedings. Tha Government shall have 60 days after receipt of
such a notice and appraisal within which to review the appraisal, if not previously
approved by the Government in writing.
(1) If the Government previously has approved the
appraisal in writing, or if the Government provides written approval of, or takzs no
action en, 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 compensation for the
is
RES®.95-232NCS
9. l3 0~- a ~
DP.AFT P:1Grch 31, 199
purpose of instituting the eminent domain proceeding.
(2) If the Government provides written disapproval of the
appraises, including the reasons for disapprovai, vdithin such 6U-day period, the
Government and the tJcn-Federal Sponsor shall consult in good faith to promptly
resolve the issues or areas of disagreement that are identined in the Governmsnt's
wraten disapproval.. If, after such good faith consultation, the Government and fne Ncr,-
Federal Sponsor agree as to an appropriate amount, then the Non-Federl Sponsor
shall use that amo~.Int as the estimate of just compensation for the purpose of institutihc
the eminent domain proceeding. If, af~icrsuch good faith consultation, tPi~ Govcrr,ment
and the Non-Federal Sponsor cannot agree as to an appropriate amount, then the. Nan-
Federal Sponsor may use the amount set forth in its appraisal as the estimate of just
compensation for the purpose o` instituting the eminent domain proceeding.
(3) For lands, easements, or rights-of-way acquired by
eminent domain proceedings instituted in accordance with sub-paragraph E.1 .c. of this
Article, fair market value shall be either the amount of the court award for the real
property interests taken, to the extent the Government determined such interests are
required for the construction, operation, and maintenance of the Project, or the amount
o` any stipulated settlement or portion Thereof that the Government approves in writing.
d. Incidental Costs. For lands, easements, or rights-cf-~,vay
acquired by the Non-Federal Sponsor within a flue-year period preceding the effective
date of this Agreement, or at any time a°,er the effective date of this Agreem°nt, the
value of the interest shall include the documented incidental costs of acquiring the
interest, as determined by the Government, subject to an audit in accordance with
Article X.C. of this Agreement to determine reasonableness, allocability, and allo~vability
of costs. Such incidental costs shall includ=, but not necessarily be limited to, closing
and title costs, appraisal costs, survey costs, attorney's fees, plat maps, and mapping
costs, as well as the w~ual amounts expanded for payment of any Public Law g1-6""-.6
relocation assistance benefits pro~rided in accordance with Article TILE. of this
Agreement.
C. For the purposes of wording credit toward the Non-Federal Sponsor's
share of kotal NED costs, inclusion in total project costs, and inclusion in total NED
costs, the Government shall determine, after consultation with the Non-Federal
Sponsor, the value of relocations necessary for the NED Plan in accordance witn the
provisions of this paragraph. In addition, for the sole purpose of inclusion in fetal
project costs, the Government shall determine, after consultation with the Non-Federal
Sponsor, the value of relocations necessary for the Project but not for the NED Plan, in
accordance with the provisions of this paragraph.
13
9 5- 2 3 2 N C$
fig. ~ ~4 ag
DF,AF T P+1arc'n c;1, 19g5
1. For a relocation other than a highv+ay, thz value shall be only thst
porion cf relocation oasis that the Government determines is necessary to pro~iide a
functionally equivalent facility, reduced by depreciation, as applicably, and by the
salvage value of any removed items.
2. Fcr a relocation of a highway, the value shall be only that poriien cf
relocation costs that would be necessary tc accomplish the relocation in accordance
with the design standard fnat the State of C2lifornia would apply under similar
conditions or geography and traffic lead, educed by the salvage value of any removed
items.
3. Relocation costs shall include, but not necessarily be limbed to,
actual costs of per-iorning the relocation; planning, engineering and design costs;
supen~ision and adrnh~istration costs; and documented incidental costs associated with
performance of the relocation, but shall no; include any costs due to betterments, as
d=termined by the Government, nor any additional cost of using new material when
suitable used material is available. Relocation costs shall be subject to an audit in
accordance with Article X.C. of this Agreement to determine reasonableness,
allocability, and allowability of costs..
E. Fcr the purposes of a~iordir~g credit toward the tJon-Federal Sponsor's
share of total NED costs, inclusion in total project costs, and inclusion in t~pt.I NED
costs, the value of the improvements made to lands, easements, and rights-cf-way far
the proper disposal of dredged or excavated material associated with the NcD Plan,
shall be the costs cf the improvements, as determined by the Government, subject to
ah audit in accordance with Article X.C, cf this P.greement to dztermine
reasonableness, allocability, and allowability of costs. In addition, for the sole purpose
of inclusion in total project costs, the valu° of improvements made to lands, easements.
and rig'nts-of-way for the proper disposal cf dredged or excavated material associated
with the Project but not rile NED Flan,_hall be the casts of the improvements, as
dete~nined by the Government, subject to an audit in accordance with Article. X.C. of
this Agreement to determine reasonableness, allocability, and allowability of costs.
Such costs shall include, but not necessarily be limited to, actual costs of providing the
improvements; planning, engineering and design costs; supervision and administration
costs; and documehted incidental costs associated with providing the improvements,
but shall not include any costs due to betterments, as determined by the Government.
ARTICLE V -PROJECT COOP.DINATION TEAM
A. To provide for consistent and effective cornrnunication, the Non-Federal
Sponsor and the Government, not later than 30 days after the effective date of this
1a
hiES®.J5-232NCS
p~.ts ~ a~
DRAFT PAarch 31, 1995
Agr~emeht, shall appoint named sehior representatives to a Prcject Coordination
Team. Thereafter, the Project Coordination Team shall rneat regularly until the end of
the period of construction. The Government's Prcject tvtanager and a counterpart
named by the Non-Federal Sponsor shall co-chair the Project Coordination Team.
E. The Government's Project Manager and the Nan-Federal ~pansor's
counterpart shall keep the Project Coordination Team informed of the progress of
construction and of signi~icant pending issues and actions, and shall seek the views of
th= Prcject CoordiriaiiUn Team on matters that the Project Caardination Team eanerally
oversees.
C. Until the end of the period cf constructio;7, ih. Project Coordination Team
shall generally oversee the Project, including issues related to design; plans and.
specifications; scheduling; real property al'id relocation requirements; real property
acquisition; contract awards and modifications; contract costs; the vovernm=tot's cost
projections; final inspection of the entire Project or functional portions of the Project;
preparation of the proposed OMP.P.&P, Manual; anticipated requirements and needed
capabilities for perarmance of operation, maintenance, repair, replacement, and
rehabilitation of the Project; and other related matt?rs.
D. The Project Coordination Tean1 may make recommendations that it
deems wrarranted to the District Engineer on matters that the Project Coordination
Team generally oversees, including suggestions to avoid potential sources or dispute.
The Government in good faith shall consider the recommendations of the Project
Coordination Team. The Government, having the legal authority and responsibillbj for
construction of the Project, has the discretion to accept, reject, or modify the ProjECt
Caardination Team's recommendations.
E. The costs of participation in the Project Coordination Team shall be
includ=d in total project costs or total NED CGSis and cost shared in accordance with the
provisions of this Agreement.
ARTICLE VI -METHOD GF PAYMENT
A. The Government shall maintain currenYrecords of contributions provided
by the parties and current projections of total project costs, total NED costs, incremental
costs, and costs due to betterments, By [SPECIFIC DATE, BASED ON THE TIMING
OF THE NON-FEDERAL SPONSOR'S FISCAL CYCLEJ of each year and at least
quarterly thereafter, the Government shall provide the Non-Federal Sponsor with a
report setting forth all contributions provi~(ed to date and the current projections of total
project costs, of total NED costs, of incremental costs, of total costs due to betterments,
is
RES®.95-232NCS
~1g. ll~ o~ 2,8
DRAFT March 31, 1y95
of each party's share or total 1~tED costs ar~d incremental costs, of thiF NOr~-Federal
Sponsor's Total cash ccniributions required in accordance with Articles ILB., iLD., II.E.
and ILF. of this Agreement, of the non-Federal proportioriat-r share, and cf the funds
the Government projects to be required frorn the Non-Federal Sponsor for the
upcoming fiscal year. Un fha effective date Of this Agreement, total project costs are
projected io be S ,total NED costs are projected to be
$ ,and incremental costs are projected to be ~
The Non-Federal Sponsor's cash contrihution required under Article II.D. cf this
Agreernant is projected to be ~ The Non-Federal Sponsor's cash
contribution required under Article ILE. cf this Agreement is projected to be
$ [NOTE: PROJECTIONS SHOULD BE INFLATED THROUGH
THE PERIOD pF CONSTRUCTION,] Such 2mounts are estimates subject to
adjustment by the Government and are not to be construed as the total financal
responsibilities of the Government Anil the Non-Federal Sponsor.
B. The Non-Federal Sponsor shall provide the cash contribution required
under Aricles ILD:1., ILD,3, and ILE. 2. of this Agre=mint in acr_Ordailre with tt7e
provisions of this paragraph.
[ARTICLE VI.B.1. OFFERS THE NON-FEDERAL 5PONSOP, THREE MECHANISMS
FP,OM WHICH 70 CHOOSE IN DECIDING HOW TO PROVIDE ITS CASH
CONTRIEUTION 70 THE FEDERAL GOVERNMENT. THE NON-FEDERAL
SPONSOR SHOULD INDICATE ITS CHOICE DURING THE COURSE OF
NEGOTIATING THE AGREEMENT. THE PCA SHOULD REFLECT ONL~f ONE
MECHANISM.]
1. tJot less than 60 calendar days prior to the scheduled date for
issuance of the solicitation for the first construction contract, the Govemmer,i shall
notify the Non-Federal Sponsor in writing of such scheduled d2te ahd the funds the
Govemment determines to be required from the Non-Federal Sponsor to.meet the non-
Federal proportionate share of projected fnancial obligations for construction through
the frst fiscal year of construction, including the non-Federal proportionate share of
financial obligations for construction incurred prior to the comrtienCement of thz period
of construction. Not later than such scheduled date, the Nor.-Federal Sponsor shall
[1NDICATE MECHANISM: [i] provide the Government with the full amount of the
required funds by delivering a check payable to "FAO, USAED, jAPPROPRIATE
USACE DISTRICT]" to the Distract Engineer. [2] verify to the satisfaction of the
Government that the Non-Federal Sponsor has deposited the required funds in an
escrow or other account acceptable to the Government, v?ith interest accruing to the
Non-Federal Sponsor. [3] present the Government with an irrevocable letter of credit
acceptable to the Government for the required funds.]
io
RED®. 9 5- 2 3 2 N C S
DP,P,FT h1arch 31, 1995
2. For the second and subsequent fiscal years of construction, the
Government shall notify the Non-Federal Sponsor in writine, no later than 60 calendar
days prior to the beginning of that fiscal year, of the funds the Gove(rn'nent retermines
to be required from the Non-Federal Sponsor to meet the non-Federal proportionate
share of projected financial obligations for construction for that fscal year. hJo later
tPran 30 calendar days prior to the beginning of the fiscal year, the hJon-Federal
Sponsor shall make the full amount afithe required funds for that fiscal year availably to
the Government through the funding mechanism specifedJ in P,rticle VLE~.1. of this
P.greem~nt.
3. The Government shall draw from the funds provided by the Non-
Federal Sponsor such sums as the Grn~ernment deems necessary to Cover. (al the
non-Federal proportionate share of financial obiigations for construction incurred prior to
the commenCenleni of the peried of construction; and (b) the non-Federal proportionate
share of financial obligations for construction as they are incurred during the period of
construction.
4. If at any time during the period of construction tha Government
determines that additional funds will be needed from the Non-Federal Sponsor to cover
thz non-Federal proportionate sham cr projected financial obligations for construction
far the current fiscal year, the Government shall notify the Non-Federal Sponsor in
writing of the additional funds required, and the Non-Federal Sponsor, no later than E~~
calendar days from rec=ipt of such nGtlce, shall make the additional required funds
available through the payment mechanism specified in Article V1.5.1. cf this Aereernent.
C. In advance of the Goverr~ment incurring any financial obligation
associated with additional work under Article 11.B. or II.F. of this Agreement, the Non-
Federal Sponsor shall [INDICATE MECHANISM: [1] provide the Government with the
full amount of the funds required to pay for such additional-work by delivering a Check
payable to "FAO, USAED, [APPROPRIATE USACE DISTRICT]" to the District
Engineer. [2] verify to the satisfaction of the Government that the Non-Federal Sponsor
has deposited the full amount of the funds required to pay for such additional work in an
escrow or other account acceptable to the Government, with interest accruino to [Pre
Non-Federal Sponsor,] Tl~e Government shalS draw from the funds provided by the
Non-Federal Sponsor such sums as the Government deems necessary to cover the
Government's financial obligations for such additional work as they are incurred. In the
event the Government determines that the Non-Federal Sponsor must provide
additional funds to meet its cash contribution, the Government shall notify the Non-
Federal Sponsor in writing of the additional funds required. Within 30 calendar days
thereafter, the Non-Federal Sponsor shall provide the Government vdith a check for the
full amount of the additional required funds.
i~
~tEs®• 9 5- 2 3 2 N C S
'{9.1~ of a.S
DRAFTr~larch 31, 1~9;
D. Upon completion of the Project or termination of this Agreeme-,t, and
upon resolution of all relevant claims a;,d appeals, the Government shall conduct a final
acccunting and furnish the Non-Federal Sponsor with th= results of the final aCrountine.
Tt-~e anal accounting shall determine total project costs, total NED costs, incremental
costs, each party's Contribution provided toward total NED costs and incremental costs,
and each party's required share of total hJED costs and incremental costs. The fnal
accounting also shall deterrttine Costs due to betterments and the Non-Fedz:al
Sponsor's cash contribution provided pursuant to Article 11.6. of this Agreement.
1. In the event the final accounting shows thai the total rontri'ouHon
provided by the Non-Federal Sponsor is Isss than its required share of'total NED costs,
plus its required share of incremental oasis, plus costs due to any betterments provided
in accordance with Article ILB. of this Agreement, the Non-Federal Sponsor shall, no
later than 90 calendar days after receipt o'"written novice, make a cash payment tc the
Ga~dernment of whatever sum is require) tc meet the Non-Federal Sponsor's required
share of total TIED costs, plus its required share of incremental costs, plus costs duz to
any betterments provided in accordance with Article ILB. of this Agreern nt.
2. In the event the rnal accountine shows that the total contribution
prUVided by the Nan-Federal :,ponsor exceeds its required share of total NED costs,
plus its required share of incremental cosis, plus costs due to any betterments
provided in accordance with Article ll.b. cf this Agreement, the Government shall,
subject to the availability of funds, refund tl~ie excess to the Ncn-Federal sponsor ne
later than 90 calendar days after the final accounting is complete; however, the Non-
Federal Sponsor Shall not be entitled tc any refund of the 5 percent cash cor~tributien
required pursuant to Article ILD.1. of this Agreement. In the event existing funds are
not available to refund the excess to the Non-Federal Sponsor, the Govemment shall
seek such appropriations as are necessary to make the refund.
ARTICLE VII -DISPUTE RESOLUTION
As a condition precedent to a pary brinyiny any suit for breach of this
Agreement, that party must first notiry the other party in writing of the nature of the
purported breach and seek in good faith to resolve the dispute through negotiation. If
the parties cannot resolve the dispute through negotiation, they may agree to a
mutually acceptable method of non-binding alternative dispute resolution with a
qualified third party acceptable to both parties. The parties shall each pay 50 percent of
any costs for the services provided by such a third party as such costs are incurred.
The existence of a dispute shall not excuse the parties from performance pursuant to
this Agreement.
is
itES®. 9 5° 2 3 2 N C S
~9. ~q o~ a8
DN„FT Pita;ch 01, 15~~d
F.i?TICLE VIII -OPERATION, PvtA.ItJTEtJf;NCE, REPAIR, REPLfi.CEt~t_tJT,
AND P.EHABILITAT(ON (bMP.P.B.Rj
P,. Upon notincation in accordance with P,ricle ILC. of this Agreement and tur
so long as the Project remains authorized, the Non-Federal Sponsor sha!I oparate,
maintain, repair, replace, and rehabilitate the entire Project or the functional porion of
the Project, at no cost to the Government, In a manner compatible vaith the Projec~ s
authorized purposes and in accordance with applicable Federal and Stat= laws as
provided ins Article XI of this AgreemenC and specific directions prescribed by the
Go~dernment In the CJi'vtRR&R Manual and any Sul;sequent amandrnents thereto.
B. The tJon-Fedel'al Sponsor hereby gives the Government a right to enter,
at reasonable time= and in a reasonable manner, upon property that the Nuri-Federal
Sponsor owns oi' Controls for access to the. Project for the purpose of inspection and, ii
n=_c2ssary, for the purpose of completing, operating, maintaining, repairing, replacing,
Cr rehabilitating the Project. If an inspection shows that tha Non-Federal. Sponsor for
any reason is failine to perform its obligations undertllis Agrement, the Ga~ernm~nt
shall send a written notice describing. the non-performance to the Non-Federal Sponsor.
If, a°er 30 calendar days from receipt of notice, the Non-Federal Sponscr continues to
fail. to perorm, then the Government shall have the right to enter, at rFasdnaule iin-~es
and in a reasonable manner, upon propery that the Non-Federal Sponsor awns or
controls for access to the Project for the purpose of cornpleiiny, operating, maintaining,
repairing, replacing, or rehabilitating the Froject. No completion, operation,
maintenance, repair, replacement, or rehabilitation I;y the Government shall ope2te to
relieve the Non-Federal Sponsor of responsibility to meet the Non-Federal 5ponser's
obligations as set forth in this Agreement, or to preclude the Govemment from pursuing
any other remedy at law or equity to ensure faithful pertormance pursuant to f'nis
Agreement.
ARTICLE IX - IPJDEMNIFICATIOfJ
The hJon-Federal Sponsor shall hold and save the Government free from all
damages arising from the construction, oper2tion, maintenance, repair, replacement,
and rehabilitation of the Project and any Project-related 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 calendar days aRer the effective date of this Agreement,
tha Government and the Non-Federal Sponsor shall develop procedures far keeping
books, records, documents, and other evidence pertaining to costs and expenses
19
~tES®.95-232NCS
ag
DRAFT r~1arch 31, 1895
incurrd pursuant to this N.gteemznt. These procedures shall incorporate, and apply as
appraJiriate, the standards for financial management systems set forth in the Uniform
Administrative P.equirements for Grants and Cooperative A~reenlents to Stale and
Local Governments at 32 C.F.P. Section 33.20. The Govzrnment and the Non-Federal
Sponsor shall maintain such books, records, doCllmenis, and other evidence in
accordance with these procedures and for a minimum of three years after the period of
construction and resolution of all relevant claims arising therefrom. To the extant
permitted under applicable Federal laws and regulations, tf-ie Government and the Non-
Federal Sponsor shall each allow the other to inspect such boots, documents, records,
and other evidence.
B. Pursuant to 32 C.F.R. Section 33.26, the rJon-Federal Sponsor is
responsible for complying with the Single Audit Act of 1924, 31 U.S.C. Sections 750}-
7507, as implemented by Office of Management and Budget (OrA6) Circular No. A-123
and Department of Defense Directive. 7600.10. Upon request ofthe Non-Federal
Sponsor and to tl-~e 8xier~t permitted under applicable Federal laws and regulations, the
Government shall provide to the Non-Federal Sponsor and independent audibrs any
information necessary to enable an audit of the Non-Federal Sponsor's activi5zs-under
this Agreement. The costs of any non-Fed..=,ral audits performed In accordance with this
paragraph shall be allocated in accordance with the provisions of OMB Circulars A-Sr
and A-128, and such resks as are allocated to the Project shall be included in total
project costs or total NED costs and cost shared in accordance with the provisions of
this Agreement.
C. In accordance with 31 U.S.C. Section 7503, the Government may conduct
audits in addition to any audit that the Non-Federal Sponsor is required io conduct
tinder the Singlz Audit Act. Any such Government audits shall bz conducted in
accordance with Government Auditing Standards and the cost principles in Of~9B
Circular No. A-87 and other applicable cost principles and regulations. The costs of
Government audits performed in accordance with this paragraph shall be included in
total project costs or total NED costs and cost shared in accordancz with the provisions
of this Agreement.
ARTICLE XI - FEDERALAND STATE LAWS
In the exercise of their respective rights and obligations under this Aoreement,
the Non-Federal Sponsor and the Government agree to comply with all applicable
Federal and State laws and regulations, including, but not limited to, Section 601 of the
Civil Rights Act of 1°04, PubliCLaw 88-352 (~t2 U.S.C. 2000d), and Department of
Defense Directive 5c00.11 issued pursuant thereto, as well as Army Regulations GGO-7,
entitled "Nondiscrimination on the basis of Handicap in Programs and Activities
.o
~~~®•95-232NCS
al 2,`b
DRAFT f~iarch 31, 1995
Assisted or Conducted by the Department of the Army".
AP~TICLE XII - REt~.TIONSHIP OF PkRTIES
A. In the exercise of their Yespective rights and obligations under tf~is
Agreement, the Government and the Non-Federal Sponsor each act in an independent
capacity, and neither is to be considered the officer, agent. cr employee of the other.
6. In the exercise of its rights and obligations under this Agreement. neither
party shall provide, vdithouf the Consent of the other party, any contractor wish a releas^
that waives or purports to waive any riot-,ts such other part/ may have to see': relief or
redress against such contractor either pur=_uant to any cause of aCii0n that such other
party may have or for violation of any lavr.
F,RTICLE XIII -OFFICIALS NOT TO BENEFIT
No member of or delegate to the Congress, nor 2ny resident comr.~issioner, shall
be admitted to any share or part of this F.ar cement, or to any benefit that may arise
therefrom.
ARTICLE XIV - T ERMINATIGN OR SUSPENSION
A. If at any tirne the Non-Federal Sponsor fails to fulfill its obligations under
Article.ILB., II.D., ILE., ILF., VI, or XVIII,C. of this Agreement, the Assistant Secretary of
the Arn1y for Civil Works shall terminate this Agreement or suspend future pzrfcrmance
under this Agreement unless he determines that continuation of work on the Project is
in the intzrest of the United States or is necessary in order to satisfy agreements with
any other non-Federal interests in connection with the Project.
B. If the Government fails to receive annual appropriations in amounts
sufficient to meet Project expenditures for the then-current or upcoming fiscal year, th
Government shall so notify the Non-Federal Sponsor in writing, and EO calendar days
thereafter either part/ may elect vrithout pznalhy to terminate. this P,greement er to
suspend future pel~or~~iance under this F.yreement. In the event that either party elects
to suspend future perormance under this Agreement pursuant to this paragraph, such
suspension shall ramain in effect until such time as the Government receives sufficient
appropriations or until either the Government or the Non-Federal Sponsor Elects to
terminate this Agreement.
C. In the event that either party elects to terminate this Agreement pursuant
to this Article or Article XV of this Agreement, bath parties shall conclude their activities
21
I€ES®. 9 5° 2 3 2 N C S
~ ~a~a~
g~
DRAFT tt~larch ~1, 1995
relating to the Project and proceed to a final accounting in aCC9rdance vi;th Article Vi.D.
of this Aareement_
D. Any termination of this P,greement or suspension of future perrrmance
under this Agreemeht in accordance with this Article or Article XV of this Agreement
shall not relieve the parties of liability for any obligation previously inourr~d. Piny
delinquent payment shall be charged interest at a rate, to be determined by t~~~e
Secretary of the Treasury, equal to 15G per centum of the average bond ea,uvalent rata
of the 13-week Traasury bills auctioned immediately prior to fhe date on which such
payment became delinquent, or auctioned imrned'lately prier to the begGtning of each
additional ',-month period if the period of delinquency exceeds 3 months.
AP.TiCLE Y.V - HAZAP,DbUS SUBSTANCES
A. After execution of this Agreement and upon direction by the District
Engln=_er, the N~
vi-Federal Sponsor shall perform, or Cause to be performed, am/
investigations for hazardous substances that tha GovernrYient or the Non-Federal
Sponsor determines to be necessary to igentify the existence and extent of any
hazardous substances regulated under the Comprehensive Environmental P,zsponse,
Compensation, and Liability Act (hereinafter "CERCLA"), 42 U.S.C. Sections
9501-9675, that may exist in, on, or under lands, easements, and rights-o-:+ray that the
Government determines, pursuant to Article Ill of this Agreement, to be required for fha
construction; operation, and rnaint=_nance of the Project However, ;or lands that the
Government determines to be subject to the navigation servitude, only the Governrneni
shall perform such investigations unless the District Engineer provides the Non-Federal
Sponsor with prior specific writfen direction, in which case the Nan-Federal Sponsor
shall perorm such.. investigations in accordance with such writfen direction. All actual
costs ihcurred by the Non-Federal Sponsor for such investigations for hazardous
substances shall be included in total project costs or total NED costs and c~cst shared in
accordance vdith the provisions of this Agreement, subject to an audit in accordance
with Article X.C. of this Agreement to determine reasonableness, allooability, and
211owability of costs.
B. In the event it is discovered through any investigation for hazardous
substances or other means that hazardous substances regulated under CERCLA exist
in, on, or under any lands, easements, or rights-of-way that the Government
determines, pursuant to Article III of this Ayt'eement, to be required for the construction,
operation, and maintenance of the Project, the Non-Federal Sponsor and the
Govemment shall provide prompt avritfan notice to each other, and the Non-Federal
Sponsor shall not proceed with the acquisition of the real property interests until both
parties agree that the Non-Federal Sponsor should proceed.
2~
Yt~S®.95-232NCS
-~~.a3~a~
DRAFT PAarch 31, 1995
C. The Government and the Non-Federal Sponsor shall deterrcine wheth=,r
to initiate construction cf the Froject, cr, if already in construction, whether to continue
with wor'r. on the Project, suspend future performance under this Agreement, or
terminate this Agreement for the convenience of the Government, in any case where
hazardous substances regulated under CERCt.A are found to exist in, an, or under any
lands, easements, or riehts-of-way that the Government determines, pursuant to Article
III of this P.graement, to be required for tYie construction, operation, and maintenance of
the Project Should the Government and the Non-Federal sponsor determine to initiate
or continue with cor~strurtion after considering any liability That may arise under
CERCLF., the Plon-Federal Sponsor shall be responsible, as hebveen the Government
and the I~lon-Federal Sponsor, for the costs of clean-up and response, to include the
costs of any studies and investigations necessary to determine an appropriate
response to the contamination. Such costs shall net be considered a pari c total
project costs or total NEU costs. in tha event the Nan-Federal Sponsor fails to provide
any funds necessary to pay for clean up and response costs er to otherwise discharge
the Non-Federal Sponsor's responsibilities under this paragraoh upon direction by the
Government, the Gc'dernment may, in its sole discretion, either terminate this
Agreement for the convenience of the Government, suspend future perormance under
this P.greement, or continue work on the Project.
D. The Non-.Federal Sponsor and the Goverrd-nent shall consult ~.riti~ each
other in accordance with Article V of this Agreement in an efrort to ensure 'tha't
responsible parties bear any necessary clean up and response costs as defined in
CERCLA. Any decision made pursuant to paragraph C. of this A~icle shall not relieve
any third party from 2ny liability that may arise under CERCtA.
E. As be~Neen the Government and the Non-Federal Sponsor, the Non-
Federal Sponsor shall be considered the operator of the Project for purposes o`
CERCLA liability. To the maximum extent practicable, thz Nan-Federal Sponsor shall
operate, maintain, repair, replace, and rehabilitate file Proj°rt in a manner that will not
cause liability to arise under CERCLA.
ARTICLE XVI -NOTICES
A. Any notice, request, demand, or other communication required or
permitted to be given under this Agreement shall be deemed to have been duly given if
in 4vriting and either delivered personally or by telegram or mailed by first-class,
registered, or certified mail, as follows:
If to 'the Non-Federal Sponsor:
23
RES®.95-232NCS
. a~- off- aB
DRAFT March ~1, 1990
Mr. Jahn L. Scharer, City Manager
11 English Street
Petaluma, California 94952
If to the Government:
tv1r. Williaii-i G. Anacloni. CESPN-PE
USAED San Francisco
211 Main Street
San Francisco, California 94105-1905
t3. A parr may change the address to which such communications are to be
directed by giving wri«en notice to the other party in the manner provided in this Article.
C. Amy notice, request, demand, or other r_ommunication made riursuant to
this Article shall be deemed to have been received by the addressee at the earlier of
such time as it is actually received or seven calendar rJays after it is mailed.
ARTICLE XVII - CONFIDENTIALIT`(
To the extent permitted by the labvs governing each party, the parties agreeto
rnaint2in the con5dentiality Of exchanced information wh?n requested to do s~~ by the
providing party.
ARTICLE XVIII -HISTORIC PP.ESERVATIOI`I
A. The costs of identification, survey and evaluation of historic properties
shall be included in total project costs or total NED costs and cost sharad in accordar,ca
with the provisions of this Agre°ment.
B. As specified in 5action 7(a) of Public Law 93-291 (16 U:S.C. Section
469c(a)), the costs of mitigation and data recovery activities associated vdith historic
preseNation shall be borne entirely by the Government and shall not be included in
total project costs or total NED costs, up to the statutory limit of one percent of tha total
amount authorized to be appropriated for the Project.
C. The Government shall not incur costs for mitigation and data recovery that
exceed the statutory onz percent limit specified in paragraph e. of this Article unless
and until the Assistant Secretary of tha Army (Civil Works) has waived that limit in
accordance with Section 208(3) of Public Law 96-515 (16 U.S.C. Section 469c-2(3)).
Any costs of mitigation and data recovery that exceed the one percent limit shall notce
24
~}~.a5o~- ag
DP,AFT Parch 31, 199
inoludad in total prpject costs but shell br cost shared between the Non-Fe_°ral
sponsor and the Government consistent with the minimum non-Federal cost snaring
requiremehtS for tl'~e underlying flaod conirol purpose, as follovds: ~5 percent borne by
the Non-Federal Sponsor, and 75 percent borne by the Goven-~ment.
ARTICLE XIX - LIMITATIOIJ ON GOVERNMENT COSTS
The Government's financial partioipaiion in the Project is limiied to 55,000,G00
which shall include all costs incurred by the Government for planning, desi;n, and
construction gf th=_ Project ex~eni for coordination account funds expended prior to the
_ i.
first wor'r, allowance for study initiation and except for costs incurred on be, i-.,~ or tha
Non-Federal gpor,sor pursuant to Article= 11.6. or Ii.E. of this Agreement.
No~,vithstanding any other provision cf this Agreement, the Non-Federal Sponsor shell
be responsiol=_ far all costs in excess of this amount.
ItJ VJITNE~S WHEREOF, the parties hereto have executad this Agri=_ment,
vahich shall become effective upon the date it is signed by the District Engineer.
THE DEPARTMENT OF THE ARM`( THE CIT`( OF PETALU~;JP,
6Y: BY;
Michael J. Walsh John L. Scharer
Lieutenant Colonel. Corps of Engineers City Manager
District Engineer City of Petaluma
DATE: DATE:
25
RCS®. 9 5- 2 3 2 N C S
~9 al.o o F a ~
DP.P,FT P~1arch 31, 1~g5
GER.TIFICA.Tc OF AUTHQR.IT`C
I, , dG 11ei~by Certify thhi I am the principal legal officer Uf
the Cih/ of Petaluma, that the City of Petaluma is a legally constituted public body with
full authority and legal ca~iability to perorm the terms of the Agreement betvde°n the
Department of the Army and the City of Petaluma in connection with the Petaluma P.iver
Project, and to pay damages in accordance with the Terms of this Agreement, if
necess,:ry, in the e~aent of the failure to perform, as required by Section 221 cf Public
Lavr 91-511 (42 U.S.C. Section 19C2d-5b), and that the persons who have executed
this Agreement cn behalf of the City of Petaluma have-acted within their statutory
authority.
IPJ V~1ITNESS U1HEP,EOi=, I have made and executed this certification this
day of 19_.
[51GNATUREI
(TYPE? NAME]
[TITLE IN FULL]
26
RED®.g~-232NCS
. 2~1 a~ aB
GRAFT f~larch 3 i , i X95
C.RTIFICP.TION P,EGARDING LOBBYIt`1G
The undersiened ce~ifies, to the best of his Ur her k.riowledge and b@liaf thzt:
(1) No Federal appropriated funds have been paid or will be paid, by or on
behalf of the undersigned, to any person for inrluencing or attempting to infuence an
officer cr employee of dm/ agency, a Member of Congress, an oifcer or employee of
Congress, or an employee of a Member of Congress in connection with the awarding of
any Federal contract; the making of any Federal grant, the making of any Federal loan,
the entering info of any cooperative agreement, and the extension, continua ion,
rene~.val, amendment, cr modification or any Federal contract, grant, loan, cr
cooperative agreement-
(2) If any funds other than Federal appropriated funds have been paid or wilt
be paid to any person for influencing orattempting to influence an officer or employee
of any agency, a P~1emb-er of Congress, an officer or employee of Congress, or an
employee of a Member of Congress in connection with this Federal contract, r_rant,
loan, or ceoperative agreement, the undersigned shall complete and submit standard
Form-LLL, "Disclosure Forl'n to P.ePoit LCbbyisiy," in accordance with its instructions.
(3) The undersigned shall require that the language of this cerificztion be
included in the award documents for all subawards a: all tiers (including subcontracts,
subgrants, and contracts under grants, loans, and cooperative agreements) and chat all
SIIbYECipients shad esrti~ 2nd disclose accordingly.
This certification is a material representation of fact upon which reliancy was
placed when this transaction was made or entzted into. Submission of this certincation
is a prerequisite for making or entering into this transaction imposed by Section 1352,
Title 31, U.S. Code. Any person who fails to file the required certification shall be
subject to a civil penalty of not less than x10,000 and not more than $1C0,000 for each
such failure.
John L. Scharer
City Manager
City of Petaluma
DATE:
R~~®.~~-232NCS
~g_a~ ~ ag