HomeMy WebLinkAboutAgenda Bill 05/21/2001 (13) h
7 Y MAY 212001
CITY OF PETALUMA;CALIFORNIA
CITY COUNCIL •
AGENDA BILL
• ,Agenda 'Title: Amendment No 1 to the Project Cooperation. Meeting Date:
Agreement (PCA) Between the Department of the Army and the May 21, 2001
City of Petaluma for Construction of the-Petaluma River Project.
Department:. Director: •- Contact Persons Phone"Number:
•
Water Resources and Thomas S. Hargis Thomas S. Hargis 778-4309
Conservation •
Cost-of;Proposal: '$0 Account Number:
N/A •
Amount•Budgeted: $0 Name of Fund:,
N/A
Attachinents.to Agenda Packet Item:;
•
1. Amendment No. I to the Project>Cooperation Agreement
2. Highlighted Copy of Existing-PCA showing proposed changes.
Summa'r_vStatement:
By signing Amendment No 1 to•the'Project:Cooperation Agreement as authorized by the Water
Resources Redevelopment Act of 2000'(WRDA:2000), all future costs:for completion of the Payran
Reach Project are the responsibility of the U.S. Army Corps of Engineers. The City is entitled to
reimbursement for prior,money spentto continue construction of'the project to date (subject to
congressional appropriations);and audited proj'ectcosts beyond 35%of the total eligible costs: Prior to
WRDA 2000, the City was responsible for all costs beyond $5,000,000. Under the Agreement, as a
result of the authorization: the City is eligible,for up to $8,600;000 of reimbursement,.and the additional
projects costs of`at!least $6 200,000.are the responsibility of the U.S. Army-Corps of Engineers.
Council Priority: THIS AGENDA.ITEM"Is CONSIDERED To-BE PART OF, OR NECESSARY TO, ONE OR
MORE OF THE.1999•-2000_PRIORITIES ESTABLISHED BY THE"CITY COUNCIL ON JANUARY 30, 1999
AND MARCH 18, 2000.
Priority(s): Surface Water Management,(drainage).
Recommended Citv'Council Action/Siaested Motion:
Pass Resolution authorizing the City Manager to sign Amendment No 1 to the Project Cooperation
Agreement Between:Me Department of the Army and the City of Petaluma for Construction of the
Petaluma River Project
Reviewed by Finance-Director: ' Reviewed by Citv.Attornev: Approved by City Manager:
Date: • Date: Date:
Today's Date: Revision #'and Date Revise• : File Code:
• May 9. 2001 ,# s\state folders\wr&c se\agenda items\amend 1
agenda bill.doc
I I
CITY OF PETALUMA, CALIFORNIA •
M tv11,;200I •
•
AGENDA REPORT
• FOR
RESOLUTION!AUTHORIZING THE CITY MANAGER TO SIGN AMENDMENTNo. 1 TO THE _
PROJECT COOPERATION AGREEMENT BETWEENTHE:DEPARTMENT OF THE'.ARMY.AND THE
CITY OF'PETALUMA FOR CONSTRUCTION OF THE PETALUMA RIVER PROJECT
EXECUTIVE SUMMARY: -
By signing Amendment No 1 to the Project,Cooperation Agreement,as authorized:by»the.
Water`;Resources Redevelopment Act of 2000((.WRD'A.2000),:all future costs;for
completioncof the Payran Reach Project are;theresponsibilityof the.U.S.-Army Corps.of
Engineers. The City is entitled to°reimbursement for prior moneyspenfto continue •
construction of the project to date;(subjectto.congressional appropriations), and audited
project:costs beyond 35% of the total eligible�costs. Prior to WRDA 2000, the City was.
responsible;for all costs beyond $5,000.000. Under the Agreement, as:airesult of the
authorization,the City is eligtbleifor up to,$8;600,000 of reimbursement,and the
• additional projects:costs of at least $6.200,000 are the responsibility of the.U.S: Army
CorpsofEngineers. -
2. , .:BACKGROUND:- • • •
•
• The City of Petaluma successfully secured;from the U.S. Congress new;legislation which
shifted the major portion of the financial responsibility for construction kof the Payran
Reach Project, to the Federal Government. When the City initially was involved with
discussions with.the Corps of Engineers, the project was estimated to be $8,000;000 with
the Federal Government paying $5,000,000 of that amount. When the Project
Cooperation Agreement (PCA) was originally signed on July 5, 1996, the Federal
Government was to pay $5.000,000 towards the project and the City was to pay the.
additional;cost of what was--then estimated to beSa $17,000,000 project. Thek•authorized
projectacosts have since risen,to $32 227,000 with•the City continuing to be responsible
for any costs above $5,000,000: This total figure does not include land acquisition,
easements, and right-of-way, all costs borne by the City.
As a result of the'Congressional'action.;the'project.is authorized as a $32,227,000 project
with theCity<paying 35%•of the cost. .
By signing the Amendment No 1 to the Project Cooperation Agreement, the City,'is •
eligible for reimbursement of,the costs beyond 35% of total project>costs, whereby.'we
have subsidized the Federal Government's construction of this project. Under the
authorization of WRDA 2000, and with this agreement, the City is eligible to receive up
to $8,600,000(and perhaps more in reimbursement).
•
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- 3. ALTERNATIVES: _
• L), Not sign the PCA, whiett effectively stops all construction on the Payran project as
well as the legal mechanisms for obtaining reimbursement for past;expenditures-
2) Modify the amendment as drafted'to reflect Counc it input'and pursue Federal
• -approval of any modifications—
4. FINANCIAL IMPACTS:
Removes City's obligation to continue paying for construction costs which could be -
another$7,000,000:andtcreates legal mechanism for the City to seek Federal
{ appropriations for reiinbursement,of up to $8,600,000.
5. CONCLUSION; - '
Amendment 1 to the Project Cooperation Agreement culminates the first.phase of the
City's pursuit to achieve federal financing for continuation`and f completion,of the Payran
Reach Project and create:the opportunity for reimbursement of past expenditures by the
City exceeding 35% ofthe eligible project'costs.
6. OUTCOMES OR.PERFORMANCE.MEASUREMENTS THAT WIhL-IDENTIFY SUCCESS OR
COMPLETION: Y . . _
- 1) Reprogramming of funds by the Corps of Engineers in May, or June,2001 in order to
advertise:for constriction of the.Transition Channel
2) Federal Appropriations for completion of the;construction of the Mainline Railroad
Bridge replacement and demolition of the existing bridge and design, demolition and
replacement' of the drill line bridge completing,;the hydraulics. and,providing the
community with a Federal Standard 100 year level of'protection as opposed to the
existing,30`to 35 year:level bf protect that currently exists
3) Reimbursement of$8,600,000 to the, City for funds expended for construction in
excess of our fair share of,theproject costs. • -
7. RECOMMENDATION:
Pass resolution authorizing City Manager to sign Amendment 1 to Project Cooperation
Agreement with the Army Corp of Engineers for the Payran Reach Project.
•
Resolution No: N.C.S: •
•
• of the CityofPetaluma, California
•
RESOLUTION;OF THE COUNCIL OE TILE CITY OF PETALUMA
AUTHORIZING.THE CITY MANAGER TO SIGN AiMENDMENTNO, 1 TO THE •
PROJECT-COOPERATION AGREEMENT BETWEEN THE DEPARTMENT OF THE
ARMY AIND.THE CITY OF PETALUMA FOR.CONSTRUCTIO N OF THE
PETALUMA RIVER PROJECT.
• WHEREAS, the City of Petaluma was successful in:getting the Congress of the-United
States to include Section 112,(a) in the Water Resources Development ACt of 2000 Public Law
106-541 which authorized our project as a specifically authorized project m;accordance.with a
Sectip J . ep g p . ,_ y •
on 205.of the F o d Contract A t of 1948,as:ame ded and by hanging the non-fede al b
cost share under Section 103;(a)rof the Water Resources Development Act'of 1986,Public Law
99-662'asiamended.from the:,minimum of 25 percent to a IIlinimum of 35 percent; and
WHEREAS, Section 1.12:0) of the Water Resource Development Act of 2000,Public
Law 106-541 specifically authonzed reimbursement of Non-Federal•Sponsor costs incurred in
excess of the:Non-Federal share of project•costs regardless of the date:on which the costs •
- • incurr • ;'and - - -
WHEREAS, Section,902:of the WaterResource s:DevelopmenVactof 1'•986, Public Law-
99=662.establishes the maximum of cost for the`Petaluma River Project and aets;fdrth procedures
fo'r,adjusting Stich m m
aximu ,amount; . • - - r
NOW; THEREFORE, BE'IT RESOLVED;the;City'Council authorizesgthe City
Manager to sign Amendment No 1 to:the Project Cooperation Agreement Between the
Department of the Army and the City of;Petaluma+for Construction of the Petaluma River
Project.
sdstaf folder\yr&c se\igedi it<un42soiuoo,ie mne&reent i doc'SE -
tinderdhe.power'andauthority conferred'upon<this.Council by theCharter of said City. •
REFERENCE:. I hereby'certify the foregoing,`Resolutien was'.mtroduced'and adopted by.the Approvedas to
Council of the City of Petaluma;at a Regulai meeting'on,April 16,2001, form:
by the following•vote:
City Attorney
AYES:
NOES: - .
.ABSENT:
•
ATTEST:
City Clerk • Mayor
Resolution;No: NCS
•
•
Attachment 1
Amendment No. 1
to Project Cooperation Agreement
between the Department of the Army
and the City of Petaluma
for Construction of the Petaluma River Project
•
•
•
•
S
DRAFT,-5/8/01
'� AMENDMENT NO. 1
TO
PROJECT COOPERATION AGREEMENT
BETWEEN
•
THE DEPARTMENT OF THE;ARMY
AND
THE CITY OF PETALUMA
FOR CONSTRUCTION OF THE
PETALUMA RIVER PROJECT
THIS AMENDMENT NO. I is entered into this day of
2001, byand between the Department:of the Army (hereinafter the "Government"),
represented by the U.S Army Engineer for the San Francisco District' (hereinafter the
"Government") and the City of Petaluma:(hereinafter the "Non-Federal Sponsor"),
represented by the City Manager.
WITNESSETH, THAT:
•
WHEREAS,the Government and the Non-Federal Sponsor entered into a Project
Cooperation Agreement'on;5 July 1996(hereinafter the.,-Agreement")for construction of
the Petaluma River Project(hereinafter the "Project");
WHEREAS, Section,112(a) of the Water Resources Development Act of 2000,
Public Law 106-541, authoi zedthe Projectas a specifically authorized project in
accordance with a Detailed Project Report dated March 1995, removing the Federal
expenditure limits established by.Section'205:of the.Flood Control Act of 1948, as
amended, andchanging,the"non-Federal cost sharing under Section 103(a) of the Water
Resources.Development Act of 1986,.Public Law 99-662, as amended, from a minimum
of 25 percent to aminimum of 35 percent;
WHEREAS,_Section,d 12(b1of the Water Resources Development.Act.of 2000,
Public Law 106-541, specifically authorized reimbursement of'Non-Federal Sponsor
costs incurred in excess of'the non'-Federal share of Project costs, regardless of the date
on which the costs were incurred; and
WHEREAS, Section 902,9f the Water Resources Development Act of 1986,
Public Law 99-662; establishes the maximum amount of costs for the Project and sets
forth procedures for adjustingsuch maximum amount.
NOW, THEREFORE., the Government and the Non-Federal:Sponsor agree to
amend.the,Agfeenient asrfollows
1. The third WHEREAS clause, reciting the Section 205 Federal expenditure limit, is
deleted.
•
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DRAFT-5/8/01
2. The fourth'WHEREAS.clause, referencing the Non-Federal Sponsor's willingness to
construct a projectmore costly than the National Economic Developinent Plan
(hereinafter"NED Plan"), is deleted:
3. The.fifth WHEREAS clause, referencing Government acceptance of funding:from the
Non=Federal Sponsor for constructionof the Locally Preferred Plan, is,deleted..
4. Article I.A. of the Agreement is arrlended'to read as;follows:
"A. The term "Project': shall mean that plan denominated as the Non
FederaLSponsor's Locally PreferredPlan,.as generally described,in the Petaluma
River, California, DetailedProject9 Report for Flood Control', dated November
1994:and;approved on October 26, 1995 (hereinafter called the"DPR") The
Project provides,a EEMA 100-yearflevel.of protection under existing conditions
and a.40=year level of protection for future conditions with'full.development. In
general,the-Project consists;of 530 feet of U-shaped channel, 95 feetwide,;with
;concrete-lined sheetpile walls:'and.natural bottom; 3,150 feet of trapezoidal.
channel,up to'70°feet wide with riprap protection in some sections;;and 4,600 feet
of reinforced concrete floodwalls (3 to 7 feet_in height): For mitigation purposes,
a ten-foot wide bench,2,030 feet in length,,anda five-foot wide lower bench,.960
feetin,length, will be constriicted along the west channel slope,and.pla ifed with
small-growth willows and,errrergent vegetation, respectively; a total of 5.6r'actes
will be provided for the mitigation'of environmental impacts. Drainage behind
the;floodwall will be conveyed to the River through outlet'pipes with.flapgates
and-a small pumping facility:"
5. Paragraph LB: of the defining the "NED Plan," isdeleted',in'its+entirety:
6. Paragraph I.C. ofthe Agreement is renumbered 1.B., and is ameridedto read,as
follows:
"`B. The term "total project costs" shall mean all costs:incurred.by the
Non-Federal Sponsor and the Government',in accordance the terrnsTof this
Agreement'directly related to construction:of the Project. Subject to;the
provisions of this Agreement, the term;shall include, butis not necessarily limited
to:. engineering;and:design:costs during the preparation of contract plans and
specifications;engineering and,designtcosts during construction, the costs of
investigations to:identify'theexistence and extentof hazardoussubstances'hi
accordance with,Article XV:A. of this Agreerrrent, costs-of historic.preservation
activitiesiinaccordance with Article°XVIILA. of this Agreement,actual
construction costs, including the costs of alteration, lowering; raising;,or
replacement and,attendant removal of existing railroad bridges.and approaches
thereto, and including credited project costs as defined`in paragraph N. of this
Article, for which the Governinent.affords credit in accordance with Article
• II.D.3. of this Agreement.to`the extent they do not duplicate costs otherwise
included in this paragraph; supervision and administration costs;costs of ,,
2.
DRAFT-5/8/01
• participation in the:Project Coordination Team in accordance with Article V of
this Agreement; costs of contract dispute settlementsor awards; the value of
lands,:easements, rights-of-way,relocations,+and:suitable borrow and dredged or •
excavated;material disposal areas for which the:Government affords creditin
accordance with Article IV of this Agreement; and costs of audit in accordance
with:Article X of this:Agreeinent. The term does not include any costs for
operation, maintenance; repait replacement, or rehabilitation; any costs due to
betterments; or any costs ofdispute resolution under Article VII of this
Agreement.
7. Paragraph I.D. of the Agreement, defining the term "total NED costs," is deleted in its
entirety.
8. Paragraph I.E. of the Agreement, defining the term "incremental costs," is deleted in
its entirety. -
i
9. Paragraph I.F. of the Agreement is renumbered as paragraph LC:, and is amended to
read as follows:
"C. The term "financial obligation for construction" shall mean a
financial obligation of the Government• r a financial:obligation of the Non-
Federal Sponsor for credited project costs, 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 project costs:
10. Paragraph I.G. of the Agreement is renumbered:as:paragraph I.D., and is amended to
read as follows:
"D. The term "non-Federal,proportionate share"shall mean the ratio of
the Non-Federal Sponsor's total cash contribution required in accordance with
Articles II.D.1. and II.D.4. of this Agreement to:total financial obligations for
construction, as projected"bythe Government."
11. Paragraph'I.H. of the,Agreement is renumbered as paragraph I.E.
12. Paragraph I.I of the Agreement is renumbered as paragraph I.F.
13. Paragraph I.J_of-the Agreement is renumbered as paragraph I.G.
14. Paragraph.I.K. of the Agreement is renumbered as paragraph I.H.
15. Paragraph I:L. of the Agreement is renumbered as paragraph 1.1.
16. ParagraphI,M. ofthe'Agreement is renumbered as paragraph I.J.
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DRAFT-5/8/01
17. A new Paragraph'I.K. is added to read as follows:
•
"K. The term"credited-project costs"shall mean credit for project costs •
incurred by the Non-Federal',Sponsor in accordance with Section 112(b)of Public
Law 106=541 and for which the Government affords.credit in accordance with
Article II:D3. of this.Agreement which_costs shall include,but are not limited.to,
construction costs of the mainline railroad bridge as generally described in the
Detailed Project Report."
18. Paragraph II.A. of the Agreernent;is amended to read as follows:
"A. The Government, subject to receiving funds appropriated by the
Congress ofthe:United States (hereinafter;,the "Congress") and'using,those funds
and funds provided by the Non-FederaRSponsor, shall expeditiouslyconstruct'the
Project'(including alteration, lowering,raising,or replacement and attendant
removalof.existing railroad bridges andapproaches thereto), applying those
procedures usually applied to Federal projects, pursuant to Federal laws, regulations,
and policies:"
19. Paragraph IID. of the Agreement is,amended to read as follows:
"D. The Non-Federal Sponsor shall contribute a minimum of 35'percent,.but
not to:exceed.50 percent, of total project costs in accordance with the provisions of
this paragraph." •
20. Paragraph-II.D.1. of the Agreement is amended to read as follows:
"1. The Non-Federal Sponsor"shall provide a cash contribution equal td.5
percent_of total project costs in accordance with Article VI:13. &this Agreement:"
21. Paragraph II.D.2. of the Agreement is-amended.fo,read as follows:
"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 areas that the,Government determines.the
Non-Federal Sponsor must provide for the,construction,,operation,:and maintenance
of the Project, and shall perform or ensure performance of all relocations'that the,
Government determines to be necessary for the construction, operation, and
• maintenance of the Project:
22. Paragraph II;D.3. of the Agreement is amended to read as follows:
"3. As provided by Section 112(b) of Public Law 106-541, the
Government shall afford' 'edit tfor the credited project:-costs. Theaffording of
such credit shall be subject.to:review,and verification by the Government thatthe
work is subject to credit pursuant to Section 112(b)-of Public Law 106-541, and •
4
•
DRAFT=,5/8/01
, V
• subjectito a;techmcal review,by the Government to verify that the credited`work
was accomplished a satisfactory manner,'and.,in accordance with the limitations
contained in this Agreement., To afford anysuch credit .the,Government,;as
further specified in Article VI.B. of this Agreement, shall apply credit for credited
project costs•toward the cash contribution_required;by paragraph-D:4. of this.
Article. The;actual amount of credit shall not exceed the Non-Federal Sponsor's
actual attributable to the credited.work orthe cost•had the Government
performed'the credited=work, whichever is the lesser. The actual amount.of credit
shall.be;subject to,an,auditin accordance with Article"X.C: of this Agreement'to
determine reasonableness, allocability, and allowabilityof costs. If the actual
amount of credit exceeds the cash contribution required by paragraph D:4, of this
Article, the Government shall refund any excess,in accordance with the provisions
of Article VI.D.2. of,this4greement."
23. Paragraph::II.D.4. of.the•Agreement is amended to ready follows.
"4. If the Government projects that the value'of theNon-Federal,Sponsor;,s
contributions under' ara a hs'D.1::and D.2. of this.Article and Articles V,X, and
p gr.P
XV.A. of thisAgreement will:be less than 35.percent of total project costs,• he:Non-
FederalSponsor shall provide an,additional cash•contiibution,:in accordance with
Article VI.B: of this;Agreement,•in the amount necessary.to:make theNon•Federal
Sponsor's total contribiaion•equal to 35 pereentoftotal'project ebsts."
• 24. A,newParagraph II D`S. is added,to:"read as follows:
•
"5. 'If the Government determines that the Value of the Non-Federal
Sponsor's contnbutronsprovided underparagraphsrD:2 and D.4. of this Article and
ArticlesV,X,,and XV.A. of this Agreement has exceeded 45 percent;of total,project
costs,,the Government,•subject to the availability of funds; shall reimburse theNon-
Federal`Sponsor for:'any such'.value in excess of 45'percent:of total project costs.
Alter'such`a determination, the Government, in its sole discretion,may provide,any
remaining Project lands, easements,rights-of-way,and suitable borrow and dredged
or excavated material,disposalrareas and perform any'remaining Project relocations
on behalf of the Non-Federal Sponsor.
•
25. ParagraphscII E;; II E 1.,',and II E:2'of the:Agreement, defining the Non-Federal
Sponsor's responsibility for incremental costs over the costs of the:NED Plan, are deleted
in their entirety.
26. Paragraph II:I of the Agreement,is°renumbered_as paragraph;II:E.•
•
27. Paragraph Mb, of the,,Agreement is renumbered.as..paragraph II.F:, and is amended
to read as follows:
• Article VI:ofthis Government eme t told"eteermine the contributions Sp•ovidrdabye the Non-
.
provided by the Non-
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DRAFT-5/8/01
•
Federal Sponsor inaccordance with paragraphs B:, D., and of this Article and •
Articles V,,X, and XV.A. of t is•Agreement and'to determine whether the Non-
Federal Sponsor has met itsobligations under paragraphs B'., D.,.and,R of this
Article."
• 28. Paragraph ILH_.of tthe Agreement is renumbered as paragraph JI.G., and is amended
to read asfollows:
"G: TheNon-Federal Sponsor"shall not Federal funds to meettheNon-
Federal Sponsor's share of tota project costs undeth
l ;r-
is•AgreementLuriless.the
Federal granting agency verifies in writing'that the expenditure of such,funds is
expressly authorized by statute:"
29. Paragraph-III.-of the Agreement>isrenumbered,asparagraph II.H.
• 30. ParagraphtlI:J. of the:Agreement is renurberedas paragraph II:I:
31. Paragraph II K. of the Agreement renumbered asparagraph
32. A new paragraph.ILK. is added to,readas follows:
•
'K. The Non-Federal Sponsor-shall comply'with Section 402 theiWater'
• Resources Development Act of 1986„as amended(33 USG§ 701b-12),which
'requires a non-Federal interest to have prepared within one year,after the date of •
signing this Agreement, a-,floodplain management plan. The plamshall be designed
to reduce the impacts of future flood events in•the project area,including but not-.
limited to, addressing those measures:to 1*undertaken by non-Federal`interests to
preserve the;level,of flood protectionrprovided'bythisProject. As'required'by
Section 402, as amended, the Non-Federal Sponsor shall implement;such plan'not
dater than one year after completion of construction of the Project. The.Non-Federal
Sponsorshall provide air information copy of the plan to the Goverrirrient,upon its
preparation:"'
33: A new,Paragraph II L„ with.sub'-Paragraphs ILL 1. through,ILL.5„.is added°to read
as follows: .
"L. In:addition to any'other limitations'contained in,this Agreement;the
affording;andthe amount�of credit for credited,project costsiis subject to the
following•additional limitations.
I: Any reimbursement of credited project costs shallbe:dependent
upon•the appropriation of f iridsrapplieabla therete or funds available therefore
2. No credit:shall be given or reimbursement made unless-and;until
theDistrict Engineer has certified thatthe'rwork submitted for crediting as)credited
project,costs has been'performe&in accordance with this Agreement,.
•
• 6
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.sJ , , 1 N , ' ,wJ ar,r1; :2''T.'''. 11:ns ??';'., r'r `nova I F• �, �-- rt�.f 5..t.4,``' ,,,a lr - , J I`"` '` �
« 't :� :0,--i----DRAFT 5By01 ', n 64 ^' )• - - , at; .� "c'� k r.v - m 1 $: k 1 I r f Yg u' c . ti I 1 e, r ,t ,,1 c . n,
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.:i:'''•: e ':1 s u a ,, -.f,•1 - ,+ 3 "The'amount of credit or,reimbursement for'which'the Non-....••Federal Sponsor maybe eligible pursuant o,.thts Agreement is not'subject to •
. I " tntefest,char es, nor isit sub ect to ad ustment to,reflect changes`in rice levels t.
between the ti ne,the;work'approved for crediting.as credited project.costs•is . ;,,
completed andrthe time that the'credtt or:ieimbursementis afforded.
, �4' The:Non"Federal Sponsor shallaobtam,all applicable yederah,.
State -:and`localperrnits regiiired'for the p"erformance of the work submittedrfor ✓. -
•- • ' `crediting as credttedi-p-O ect costs,''and for;operation, maintenance;repair, ' ;.`
rehabilitation and'replacemene,of such work `:
4 ;1 5 My contract awarded by the Non Federal?Sponsor tons-UM-lc,-
submitted for creditmg as•credited project costs under this Agreement shall` ,
.include:p rev' isrons eo`nsistentywith all applicable Federal laws and regulations"'
14.. Paragraph IIl A;.of the Agreement is amended to readas f• ollows: j.
1: t h y rts ..� .i:.
II% 1 ` ' " "A The,Govemment,,affer consultation wi h-;the Non=Federal Sponsor, ° . •"
•* shall determine the landsasements, and rights of way required forthe •
construction,ioperaation;;and mazrin ance;of4theProject, includingthose required'f r t .
relocations,borrow;matenals, and dredgedor excavated materialdrspos'a1 The 1 •',e
` GOVemmentin a timely manner,ahall provide the Non Federal^Sponsor with general
W.• w'ft en`descriptions including maps'as appcopnate-of the lands, easem ents,pand , '
vnghts of way;that the'Govemment determines the Non Federal`Sponsor must
•
4?
'`provide, m:detail sufficient iotenable the Non-Federal Sponsor•to fulfill its
,obligations under,tluspar ggraph;;and shall.provide flie Non Federal Sponsor with'_a, -
written notice;to proceed with acquisrtion,of such{lands• easements, and rights-of • - • .4 .way Prior`to'the end of the;period'of constructron,-the Non Federal'Sponsoc shall
acquire all"'lands; easements,:and•tights of-wayset•forth• m°such.descriptions. . .
•
Furthermore,pnonto`issuance'of the,solicitation-3for-,each construction'contract,',the;
Non FederaltSponsor shall provide`the Government-witrh autfiorization"for. entry;to;
Sf e all lands,:easements, and tights of-way the`:Govemment+determnes the Non-Federal • . '
;Sponsor•must provrde,for that contract For so long}as the Project remains '
authonzed the Non Federal'Sponsor shall-ensu're ttiat lands, easements,rand•ii_ghts- - ° '
-'' " ' 'of--way thatttlie Goverment deterrnmes to°be requi ed`for-the o.peration.and-` '
maintenance of the Project and thatwere provided by;the Non'Federal Sponsor are, .,
retained in public,ownership fo`r,u es compatible=with the aiitfionzed puiposes'of the
.
Project _ . .
•
„ ..a
35 Paragraph III'B:�of the Agreement;ts'amendedCtoread as f• illow . ' :` . ••. 13211:1'e Government, afterconsultation with'the;Non-Federal'Sponsor;shall'
determine,the required•on'lands, easements, and tights-of--way to ,
' enable the proper disposal of dredged or excavated•matenal associated•with the
. ' construction ;operation;,andmaintenance of the^Project Sucli i mprovements may. '
x d' I -
n '- at•
DRAFT-518/91: .
include,°but are not necessanly limtted'to;retaining dikes, wasteweirs,bulkheads, - ,
•
embankments,monitoring features, stilling basins, and de watering purrips and -- .`
pipes., The Government in a timely manner Shall'provide the Non-Federal Sponsor
with?general wntten;descnptions,of such improvements in detail;suff`cient to,enable
the Non-Federal.Sponsor to:-fulfilPits,obligations under this paragraph, and shall. •
provide the Non-Federal.Sponsor with a written notice to'proceed with°construction
of suchimprovements. Priortethe end',of the period of construction,the Non •
Federal Sponsor'shall.provide'all improvements set;forth in such descriptions: ,
Furthermore ,prior to issuance.of the•solicitation:for each Government construction , ,
contract, the Non-Federal Sponsor shall prepare plans and specifications;for all .
• improvements the,Government determines>to be required for:the pioperdrsposal of" ' -
= dredgd or excavated matenal under that contract,,submit such plans;and
rspecfications'totheiGovenmenf
for'approval, arid'provide such improvements:in -
accordance awiththe'approved;plans and?specifications.
36. Paragraph III`C. of the Agreement;lisamended to;read as follows: • •
. "C. The;Government,"after consultation�wid the Non-Federal Sponsor,;shall •
determinethe relocations necessary for,•the construction,,operation, and ce '
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,FederalSponor with general written,
descriptions,iincludingmaps as appropnate,of such relocations rn detail,sufficient'.to
enable the Non Federal Sponsorto fulfill its obligations under=thr's paragraph, and •,
shall provide:the Non-Federal,`Sponsor with atwritten notice to`proceed`widi:such. '
relocations. Priorto the end of the period of construction, the Sponsor
. shall perform or ensure the performance_of all relocations as•set,fortliiimsuch •
descriptions: Furthermore;prior to issuance of thesolicitation for each:Government
construction?contract; the Sponsor:shall:prepare::or ensurer the
preparation of plans;and,specificatioi sfor, and•perform or ensure the;performance
of, all'relocations the Government determines to.be necessary for that contract"
. 37 Paragraph III . cif-the Agreeenvis amended to read"a follows?D
' "D. •The Non Feder al;Sponsorin!a hmelymannershall provide the
•Government with
suchddcuments as are sufficientto enable:the Governnient to. •
determine the valuerofan contribution, r
y p ovrded,pursuant to:paragraph§.A.,B„„or
C.:of this Article 'Upon receipt of such documents°the'Government, in accordance
. with Artiele,IVOf this.Agreement and ma'timely manner, shall determine the,value
of such contribution, include such value total projectcosts„and afford credit for ” ,
such value toward the Non-Eederal;Sponsor's share of total-project costs."' 1/4., - '
38. The title of Article,IV is;amended to read: "ARTICLE?IV—CREDIT FOR VALUE OF
LANDS, RE LOCATIONS,.AND DISPOSAL,AREAS'i”
39. 'Paragraph W A: of the Agreement:is amended to read as,followS:
•
8
•
DRAFT-5/8/01
• "A. The Non-Federal:Sponsor shall receive credit toward its share of total
project costs for the value of the'larids, easements; rights-of-way, and,suitable
borrow and.dredged,or,excavatedmaterial disposal areas that the Non-Federal
Sponsor must provide pursuant to Article•III of this Agreement, and for the value of
• the relocations that the Sponsor must perform or for which it must
ensure.performance pursuant•to-Article III of this Agreement. However,the Non-
Federal:Sponsor shalLnot receive credit for the value of anylands, easements, rights-
of-way, relocations, or borrow:and dredged or excavated material disposal areas that
have been provided previously as.an.iteni of cooperation for another Federal project.
The Non-Federal,Sponsor also shall not receivecredit for the value 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 by statute."
40. Paragraph IV.B. of the Agreement is amended to read,as follows:
"B. For the sole purpose of affording credit in accordance with this
Agreement, the value of lands, easements, and rights-of-way, including those
necessary for relocations, borrow materials, and dredged or excavated material
disposal, that the Government determines, in accordance with Article III of this
• Agreement, to be required for the Project andto be provided by the Non-Federal
Sponsor, is hereby agreed and.stipulated•to be$3,802,100 inclusive of any
incidental costs of acquiring such interests."
41. Paragraph IV.B.1.:of the-Agreement is.aniended to read as.follows:
"1. Notwithstanding the sabove stipulation of v value, in the event that this
Agreement is terminated pursuant to Article XIV or Article XV of this
Agreement,the value Wands, easements, and.rights-of-way, including those
necessary for relocations, borrow materials, and dredged or excavated material
disposal, shall be the fair market value of the real property interests,plus certain
incidental•costs of acquiringthose interests, as determined in accordance with the
provisions of this paragraph."
42. Paragraph wy.C. of the Agreement is amended to read as follows:.
•
"C. After consultation•with the Non-Federal Sponsor, the Government shall
determine the value of relocations in accordance with theprovisions of this
paragraph."
43. Paragraph.IV:D. of the Agreement is amended to read as follows:.
"D':. The value of the improvements made to lands, easements, and rights-of-
way for the proper disposal of dredged or excavated material shall be the costs of the
9
■
DRAFT-5/8/01
improvements, as determined by the Govemment, 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 documented incidental costs associated
with providing the improvements,but shall not include any costs due to betterments,
as determinedbythe Government."
44. Paragraph V.C'..of the Agreementis amended to read as follows:
"C. Until the end of the period of construction, the Project Coordination
Team,shall;generally oversee the Project, including issues related to.design;_plans
and specifications; scheduling; real property and relocation requirements;real
property acquisition; contract awardsand modifications; contract costs 'tfie
Government's cost projections; credited project costs; final inspection of the
entire Project or functional portionsof the Project, preparation of the proposed
OMRR&R Manual; anticipated requirements and needed capabilities for
performance of operation,maintenance; repair, replacement, and rehabilitation of
the Project; and other related matters:"
45. Paragraph V,E. of the Agreement is amended to read as follows: •
included'de Agreement?'
project costs and •s the Project accordance with Team shall be
E. The-costs of participation
and costshared'in accordance with the provisions of
•
r
46. Paragraph VI.A. of the Agreement is amended to'read-as follows:
"A. The Government shall maintain current records of contributions;
provided by the parties and current projections of total project costs,of credited.
project costs determined in accordance with Article II.D.3.:of-this Agreement, and
• costs due,to<betterments. By,July 1'`(based on the Non-Federal Sponso(s fiscal
year of July 1 through,June 30)^:of each°year and at least:quarterlythereafter, the
Government shall provide the Non=Federal Sponsor with a.report setting forth all
contributions provided to date and the;current-projections-of total projectcosts, of
credited project;costs-.determined.in;accordance-with Article II.D.3. of this
Agreement, of total costs due to betterments, of the maximum amount of total
project,costs`determined in accordance with ArticleXXIX of this Agreement, of the,
components of total project costs, of each,party's share of total;project,costs, of the
Non-Federal Sponsor's total_cashcontributions required in accordance with Articles.
II:D,,;and,II:E. of this Agreement,;of the non-Federal proportionate share,and
of the funds the Government projects°tobe required from'the Non-Federal Sponsor'
for the,upcoming fiscal year On the effective date•of this:.Amendment„total project
costs.are projected to be $32,227,000;and,the Non-Federal,Sponsor's cash
contribution required.under Article IID. of this-Agreement`is projected.to be
$4,668,000. The amount of creditfor=credited'projectcosts determinedin
10
•
DRAFT-5/8/01
• accordance with Article II.D.3. is projected.to be'$1,198,000: Such amounts,are
•
estimates subject to adjustment by"the Government'and are not'to be"construed as the
total financial responsibilities of the Government and the Non-Federal Sponsor."
47. Paragraph VI.B. of the Agreement is amended to read as follows:
•
"B. The Non-Federal:Sponsor shall provide the cash-contribution required
under Articles II.D.1.:and-II:DA. of this Agreement in accordance with the
provisions of this;paragraph."
48. Paragraph V I.B.1. of the,Agreement,is amended to read as follows:
"1. Not less than,60 calendar days prior to,the:,scheduled date for issuance
of the solicitation for the first construction contract, the Government shall notify
the Non-Federal Sponsor in writing•of such scheduled date and the funds the
Government, after consideration of any credit afforded pursuant to Article II.D.3
of this Agreement,:determines•.to be required from the Non-Federal Sponsor to
meet the non-FederaPproportionate share of projected financial-obligations for
construction through:the first-fiscal year of construction, including the non-
Federal proportionate-share Of financial obligations forconstruction incurred prior
to the comineiicenient..of theperiod'of construction: Not later'than such
scheduled date, the Non-Federal Sponsor shall provide`the Government with the
• full amount of the,required funds by delivering a;check payable to "FAO,.
USAED, San Francisco District"to the District Engineer; or verifying to the
satisfaction of the Government that the Non-Federal Sponsor has deposited the
required funds in an escrow or other accounts acceptable to the Government, with
interest accruing to the'Non-Federal Sponsor; or presenting the Qovernment with
• an irrevocable letter of credit acceptable to the Government for the required
funds; or providing an Electronic Funds Transfer in accordance with procedures
established by the Government."
49. Paragraph VI.B.2. of the Agreement is amended to read as-follows:
"2. For the secondand,subsequent fiscal years of construction;the
Government shall notify the Non-Federal Sponsor in writing, ho later than 60
calendar days prior to the beginning of that fiscal year, of the funds the
Government, after consideration of any credit afforded pursuant to Article IID.3
of this Agreement,:detcu,tinesto be required from the:Non-Federal Sponsor to
meet the non-Federal proportionate share of projected financial obligations for
construction for that fiscal year. No later than 30`calendar'days prior-to the
beginning of the fiscal year, the Non-Federal Sponsor shall make the full amount
of the required funds'for that fiscal year available to the Government through any
of the funding mechanisms"specified in Article VI.B.I."of.this.Agreement."
• 50. Paragraph VI.B.4. of the Agreement is amended to read as follows:
11
DRAFT-5/8/01
"4. If at any time during the period of construction the Government, after •
consideration of any credited project costs determined in:accordance with Article
ILD.3. of this Agreement, determines that additional.funds will,be'needed from
the Non-Federal Sponsor to cover the non-Federal proportionate:Share of
projected,financial obligations.for construction for the current fiscal year, the
Government,shall,notify the Non-Federal Sponsor in writing of the.additional
funds requir'ed,•and provide an;explanation ofwhy,additional funds are required,
and the Non-Federal Sponsor,.no,later than•60'calendar days from receipt>of such
notice, shall make the additional required funds;available through-any of the
payment mechanisms specified in Article VI:B'.1.•of this Agreement.
52. Paragraph VI:C..of the Agreement:is amended to read as follows:
"C. In advance of the Govemment'incurringany financial obligation
associated with,additional work:under.Article II.B: or II.E. of this:Agreement, the
Non-Federal Sponsor shall,provide the Government with the-full amount of the
funds required'to pay_for such additional work•through any of the,payriient
mechanismsispecified in Article VI.B:l.of this Amendment. The Government
shall draw from the fundsprovided by the Non-Federal Sponsor such sums„as the
Government deems necessary to cover the Government's financiat obligations for
such additional work as they-are=incurred. In the eventthe Government
•, determines that the Non-Federal.Sponsor must provide additional.fimds-to,meet
its cash;contribution,,the Governmenrshall notify the Non-Federal Sponsor in �
writing of the,additional funds,required, and provide an explanation of'why •
additional,funds are required Within 30'calendar,days thereafter, the Non-Federal
Sponsor shall,provide the Government with the full amount of the additional
required'funds through any of the payment mechanisms specified in Article
VI.B.1. of this Amendment”
52. Paragraph VI.D, of the Agreement.'is amended to read as follows:
"D, Upon completion of the Project or termination,of this Agreement„and
upon resolution of all relevant claimsand;appeals,the Government shall conduct
a final accounting;and.furnish the Non=Federal Sponsor with.the results+of the
final accounting. The final accounting,shall•determine total project costs, credited.
project;costs determined.in accordance;with Article ILD.3 of this,Agreement,
each parry's contribution provided toward:total project costs, and each party's
requiredshare oftotal;project costs. The•final accounting also shall determine
costs due.to-betterments and the Non=Federal Sponsor's cash contribution
provided pursuant to Article II'B. of this Agreement:”
53. 'Paragraph VI:D.1. of the Agreement is amended to read as follows:
``l. In,the event the finalaccounting shows thatthe:total contribution
provided by the Non-Federal Sponsor.is less than its required share of total• •
project costs plus costs due4oany•betterments providedin accordance with
12
•
•
DRAFT-5/8/01
• Article II.B..of this Agreement,,after consideratiow of any:credited;project costs
determined in accordance with,Article II.D.3 of this Agreement; the Non-Federal
Sponsor shall', no later'than`90:calendar days:after receipt;of written°notice, make
a cash payment to the of whatever sum is-required to meet the Non-
Federal Sponsor's required share of total project costs plus costs due to any
betterments`providedin accordance with Article!.II.B. of this Agreement, by
delivering a check payable to-"FAO, USAED, San Francisco.District"'to the District
Engineer or providing an Electronic Funds Transfer in accordance with procedures
established by the Government."
54. Paragraph VI.D.2. of the Agreementis amended to read as follows:
."2. hi the event the final accounting.shows that:the:total contribution
. provided by the Non-Federal,Sponsor exceeds its required share of total,project
costs plus costs due to any betterments provided,inraccordance with Article II.B.
of this Agreement, after consideration of any credited project costs,determined in
accordance with Article II:D.3 of this Agreement, the Government shall refund
the excess to th&Noii-EederabSponsor as funds become available, and in any
event no later than 90`calendar-days after the final accounting is complete;
however,the Non-Federal Sponsor shall not be entitled to any refund of the 5
percent cash contribution required pursuant to,Article II.D.1: of this Agreement.
•Funding of Project costs shalltake precedence over refund of any expenditures in
excess of the Non-Federal Sponsor's cost-share at all preceding.the final
accounting. In theevenrexisting;funds are not available to;;refund.the;excess to
the Non-Federal Sponsor, either prior to or following the:final;accounting,;the
Government shall use its best-efforts to seek such,appropriations as are necessary
to make the refund."'
55. The text of Article IX of the Agreement is amended:to.read;as follows:
"The Non-Federal Sponsor shall hold and save the Government free from
all damages arising from the construction, operation, maintenance, repair,
replacement, and rehabilitation of,the Project, including any work%submitted for
crediting as.creditedproject,costs, and any Project-related betterments, except for
damages due to the fault or negligence of the Governnient or its contractors."
56. Paragraph X.B. of the Agreement is,amended to,read as follows:
`B. Pursuant to 32 C.E.R. Section 33:26, the Non-Federal,Sponsor is
responsible for complying with the Single Audit Act of,1984, 31 U.S.C. Sections
7501-7507,as implemented by Office of Management and Budget(OMB) Circular
No:A-133 and Department of Defense Directive7600.10. Upon request of the Non-
Federal Sponsor and to the-extent,permitted under applicable;Federal;laws and
regulations, the Government shall provide to the Non-Federal Sponsor and
• independent auditors any information necessary to enable an audit of the Non-
Federal Sponsor's activities under this Agreement. The costs of any non-Federal
13
■
DRAFT-5/8/01
audits performed in accordance with this paragraph shall be allocated in'iaccordance •
with the provisions of.OMB,Circulars A-87 and A-133, and such costs as are
allocated to the Project shall be included in total.project costs and cost,shared in
accordance with the provisions of this Agreement."
57. Paragraph XXC. of the Agreement is amended to read as follows:
"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 to
conduct.under.the Single,Audit Act. Any such Governmenfaudits,shall be'
conducted in accordance with Government Auditing Standards and•the cost
principles in'OMB Circular No A-87'and,dther applicable cost principles and
regulations;The costs of Government audits performed in accordance with this
paragraph;shall bekincluded in totaYproject costs and cost shared in accordance
with the"provisions of this.Agreenient.
58. Paragraph X_IV.A. of the Agreement is amended to read as'follows:
"`A. If at any time the Non-Federal Sponsor fails to fulfill its obligations
under Article II.B.,.II D:, II.E., VI,or XVIIUC. of this Agreement,the Assistant
Secretary"Tof the.Army(Civil Works).shall terminate this AgreementOfsuspend.
future-performance under this'Agreement unless he determines that continuation of
work on the.Project is in the interest of the,United States or is necessary<in order to
satisfy agreements with any other non-Federal interests in connection with the •,
Project:"
59. Paragraph.XV.A. of the:Agreement is'amended to read as follows:
"A. After execution of this Agreement,and upon direction by the District
Engineer,the Non=Federal Sponsor shall perform, or cause to be.performed,.any
investigations.for hazardous substances'that the:Governinent or the Non-Federal
Sponsordeterniines to be necessary.toadentify the existence and extent of any
hazardous,substances regulated under the Comprehensive'Environmental Response,
Compensation,and Liability Act (hereinafter"'CERCLA"), 42 U.S.C. Sections
9601-9675;•thatmay exist in;.on or under lands;.easements, andrights-of--way.that
the Government determines,pursuant to Article III of this Agreement,to be required.
for the constructions operation, and,maintenance of the Project. However, for lands
that the Govemmentdetermines to be subject to the navigation servitude; only the
Government,shall perform such•investigationsunless the District Engineer provides
the Non-Federal•Sponsor with prior specific written direction,in which case-the
Non-Federal Sponsor shall perform such investigations in.accordance with such
writtendirection. All actual dOstsinctinedby the`Non-Federal Sponsor,for such
investigations for hazardoussubstances shall be included in total projectcostsiand
cost shared in accordancewith:the provisions ofthis-Agreement,.subject to an audit
in,accordance with Article X.C. of this Agreement,to'determine reasonableness,
allocability, and allowability of costs."
•
•
14:
•
•
DRAFT-5/8/01
• 60. Paragraph XV.C. of the-Agreement is amended to readas,follows::
•
"C. The Govemnient'and the Non-Federal Sponsor shall determine whether
to initiate construction of the Project, or,.if already in construction,whetherto. •
continue--with work 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 CERCLA are found to exist
in, on, or under any lands,,easements, or rights-of-way thatthe Government
determines,pursuant to Article III of this-Agreement,to be required for the -
construction, operation, and maintenance of the Project. Should the Government
and the Non-Federal.Sponsordetermine to imtiateobcontinue with construction
after considering anyliabilitythat may arise under CERCLA, the Non-Federal
Sponsor shall be responsible,;as between the Government and•the Non-Federal
Sponsor, for the costs;;of Clean-up,and response,,toiinclude the costs of any studies
and investigations•necessar to.determine an appropriate response to the
contamination. Such.costs shall not be considered a part of total project costs. In the
event the Non-Federal;Si*niSbE fails to provide any funds necessary to pay for clean
up and response costs;or to otherwise discharge the Non-Federal Sponsor's
responsibilities under this paragraph upon direction by the Government, the
Government may,in its sole discretion, either terminate this Agreement for the
convenience of the Government, suspend future performance under this Agreement,
• or continue work on the Project"
61. Paragraph XVIII.A. of the Agreement is amended to read,as follows:
"A. The costs.of identification, survey and evaluation of historic properties
shall be included in total project costs and cost shake&in aceordance with the
provisions of this Agreement."
62. Paragraph XVIII.B. of the Agreement is amended to read as follows:
"B. As specified in;Section 7(a)of Public Law,93-291 (16 U.S.C. Section
469c(a)), the costs,ofritigation.and data recovery activities associated with,historic
preservation shall be home entirely by the Government and shall not be included in
total'project costs,up:to the statutory limit of one percent of the.total'amount
authorized to be appropriated for the•Project"
63. Paragraph XVIII.C. of the Agreement is amended to read as follows:
"C: The Government shall not incur costs for mitigation and data recovery
that exceed the statutory one percent limit specified in paragraph B. of this Article
unless anduntil'the Assistant Secretary of the 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))., My costs of mitigation and data recovery that exceed the one percent
limit shall not be included in total project costs but shall be cast shared between the
15
DRAFT-5/8/01
Non-Federal Sponsor and the Government,consistent with the tninimum.non-Federal
cost sharing requirements for the underlying flood control purpose, as.follows: 35
percent borne by the Non-Federal,Sponsor.and 65 percent borne by the
Government."
64. Article XIX, discussing limitation on Government costs, is deleted in its entirety.
65: A new Article.XIX is made a part-of the Agreement as follows:
"ARTICLE XIX - SECTION 902 PROJECT COST LIMITS
The Non-Federal:Sponsor has-reviewedthe provisions set forth in Section
902.of Public Law 99-662, as,amended, and understands that Section902-establishes
the maximum amount of total project.costs.forthe Petaluma River Project.
Notwithstandingany other provision of this Agreement, the Government shall not
make'a new Project financial obligation,make a Project expenditure, or afford
toward total project costs for the value of any contribution provided by the Non-
Federal Sponsor,if such obligation, expenditure, or credit would resultsin total
project costs exceeding this maximum amount,unless otherwise authorized by law.
On the effective date of this Amendment, this maximum amount i'siestimated to'be
$39,700,000, as calculated in accordance with ER 1105-2-100 using October 1,.
2000 price levels and allowances for projected:future inflations The Government
shall adjust this maximum amount in accordance with Section 902.."
•
66. All other ternls.andconditions of the Agreement remain unchanged.
IN WITNESS WHEREOF, thepartiesthereto have executed this Amendment No.
1 which shall,become effective upon the date it signed by the District Engineer.
THE DEPARTMENT OF THE ARMY THE CITY OF PETALUMA
BY: BY:
Timothy S. O'Rourke Frederick C. Stouder
Lieutenant Colonel, Corps of City Manager
Engineers City of Petaluma, California
District-Engineer
DATE: DATE:
.16
•
• DRAFT-5/8/01
• CERTIFICATE OF AUTHORITY .
I,
•
, do hereby certify that I an the principal legal officer of the City
of.Petaluma, that the City of Petaluma is a legally constituted public body with full
authority and:legal,capability to perform the terms of Amendment No 1 between the
Department of the Army and the City:of Petaluma in connection with the Petaluma.River
Project; and to pay damages in,accordance with the terms of Amendment No 1, if
necessary,,.+in the event of the failure to perform, as required by Section:221 of Public
Law 91-611 (42 U.S.C. Section 1962d-5b), and that the person who has executed
Amendment No. 1 on behalf of:the"City of Petaluma has acted within his statutory
authority.
IN WITNESS WHEREOF; I haye,made and executed this certification this
day of ,2001.
Richard,W. Rudnansky
City Attorney
City of Petaluma, California
•
•
•
17
DRAFT-5/8/01
CERTIFICATION.REGARDING LOBBYING.
The.undersigned certifies, to the best of his or her knowledge and belief that:
(1) No Federal,appropriated=funds have been paid or will be paid, by or on
behalf of the undersigned, to any person_forinfluencing or attempting to influence
an officer or employee of any agency, a,Member of Congress, an officer or
employee of Congress, or an employee of a.Member of Congress in connection
withlthe awarding of any Federal contract, the making of any Federal grant, the
making;of any Federal loan, the entering into:of any cooperative,agreement, and
the extension, continuation, renewal, amendment, or modification of any Federal
contract, grant,loan, or cooperative agreement.
(2) If any funds other than Federal appropriated funds fiavebeen,paid.or will
be paid to any person for influencing or attempting to influence an officer or
employee of any agency, a Member of Congress, an officer or employee of
Congress,:or an employee of a&Member of Congress in connection with this'
Federal.contract, grant, loan,,or cooperative agreement, the undersigned shall
complete acid submit Standard'Form-LLL,,"Disclosure Form to Report
Lobbying;'in,accordance with its instructions.
(3) The undersigned shall-require that the language of this certification;be
included in the award documents for all subawards at all tiers (including •
subcontracts, subgrants, and contracts under grants, loans, and'cooperative
agreements) and`thatall subrecipients shall 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 this
certification 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 S10,000 and not
more than S I00000;.for each such failure.
Frederick C. Stouder
City Manager
City of Petaluma, California
DATE:
18
•
•
•
Attachment 2
Highlighte&Copy of Existing PCA
Showing Proposed Changes
•
r
Attachment to Enclosure(3)
1996 PCA editedfor demonstrative purposes only
PROJECT COOPERATION AGREEMENT
BETWEEN •
THE DEPARTMENT OF THE ARMY
AND
THE CITY OF PETALUMA,CALIFORNIA •
FOR CONSTRUCTION OF THE •
PETALUMA RIVER PROJECT
THIS.AGREEMENT is entered into this 5th day of July, 1996, by and between
the DEPARTMENT'OF THE ARMY (hereinafter the "Government"), represented by the
U.S. Army Engineer for the San Francisco District(hereinafter the "District Engineer")
and the City of Petaluma (hereinafter the "Non-Federal Sponsor"), represented by the
City Manager.
•
WITNESSETH, THAT:
WHEREAS,;the:Petaluma River Project at.the„City.of Petaluma, Sonoma County,
California(hereinafter the "Project”) was approved•for construction by the U.S. Army
Engineer forthe,South:Pacific Division:on 1 July 1996,:pursuant to-theauthority
contained in.:Section'205 of the Flood Control Act of 1948, as amended, 33 U.S.C.
701 s;
WHEREAS; Section•103(a) of the WaterResources-Development Aet of 1986,
Public,Law 99-662, as amended, specifies'the cost-sharing requirements,applicable:to
•
the Project;
t.
percent of the cectsof that plan which exceed the costs of the.NED Plan;
WHEREAS, the Secretary of`the Army is authorized',to accept the funds provided
the Rood Control Act of June 22, 1936, 33 U.S.C. §701 h;
•
WHEREAS, the Govemment.and the Non-Federal Sponsor desire to;enterinto a
Project,Cooperation Agreement:for construction of the:Project, as defined in Article I.A.
of this Agreement;
WHEREAS, Section 221, of the,Flood Control Act of 1970, Public Law 91=.611, as
amended, and Section 103 of the Water Resources Development Act of`1986, Public
Law 99-662, as amended, provide that the Secretary of the Army shall not commence •
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• construction'of any water resources project, or separable;element thereof, until each
non-Federal sponsorihas entered into a written agreement to furnish its required•
cooperationforthe•project or separable element;
WHEREAS, the Non-Federal:Sponsor does not qualify for a.reduction of the
maximum•non-Federal cost share pursuant to the guidelines that implement Section
103(m) of the Water Resources Development Act 1986, Public Law 99-662, as
amended; and
•
WHEREAS, the Government and Non-Federal Sponsor have the full authority
and capability to perform as hereinafter set forth and intend'to cooperate in
cost-sharing and financing of the construction of the Project in accordance with the
terms of this Agreement.
•
WHEREAS; the Government and the Non-FederatSponsor entered into a
•
Prolect'Cooperation Agreement on 5 July 1996 (hereinafter the "Agreement") for
construction of the Petaluma River Project(hereinafterthe "Project");
WHEREAS, Section 112(a) of the Water Resources Development Act of 2000,
Public Law 106-541,, authorized the Protect as a specifically authorized Protect in
accordance with;a Detailed!ProjectReport dated Marchs1995, removing the Federal
expenditure limits established bv,Section;205••of the Flood Control Act of 1948, as
• amended, and by,changing thenon-Federal cost sharing under Section 103(a) of the
Water'Resources Development'Act'of 1986, Public Law 99-662, as amended, from a
minimum of 25 percent to a minimum of'35 percent;
WHEREAS, Section 112(b) of the Water Resources Development Act of 2000,
Public Law•106-541 specifically authorized' reimbursernentoPNon-Federal Sponsor,
costs incurred in excess ofthenon-Federal share of Project costs, regardless of the
date on which the costs'were incurred; and
WHEREAS, Section 902 of the Water Resources Development Act of 1986,
Public Law-99-662, establishes the maximum amount ofcosts for the:Proiectand sets
forth procedures for adlustihcsuthEmaximum amount.
NOW, THEREFORE, the Government and the Non-Federal Sponsor agree as
follows:
ARTICLE I- DEFINITIONS AND GENERAL PROVISIONS
For purposes of this Agreement:
A. The term `Project" shall mean that plan denominated As the Non-Federal
Sponsor's Locally Preferred'Plan (hereinafter the 'APP"} as,generally described in the
Petaluma River, California, Detailed Project Report for Flood Control, dated November
1994 and approved on October 26, 1995 (hereinafter called the "DPR"). The L-I:112
2
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1996 PCA edited for demonstrative purposes only
Project provides.a FEMA 100-year level of.protection under existing conditions and a
40-year level of protection for future conditions with full development. In general, the
LPPProiect consists ofs 530 feet of U-shaped'.channel, 95 feet wide, with concrete-lined
sheetpile walls and natural bottom; 3,150•feettof trapezoidal channel, up to 70 feet wide
•
with riprap°protection in some sections; and..4,600 feet of reinforced concrete"floodwalls
(3 to 7 feet in height). For mitigation:purposes,."a ten-foot wide bench, 2,030 feet:in
length, and'a five-foot wide lower bench, 960''feet in!length, will be constructed.along,
the west channel slope and planted with>small-growth willows and emergent Vegetation,
respectively; aitotal of`5:6 acres::will be provided for the mitigation of environmental
impacts. Drainage;behind the floodwall will be conveyed to the River through,outlet
pipes with flapgates anda small pumping facility.
B. The tent) "NED Plan" shall m an a plan as generally described in the
- - ' - • ■
10 feet wide by 1 1.00'feet long, and the others feet by 400 feet. Similar to the LPP,
BS. The term "total project costs shall mean all costs incurred by the Non=
Federal Sponsor and the Government in accordance^with the terms of this Agreement •
directly?related to construction of the Project. Subject to-the provisions of this.•
Agreement,the term shall'include, but is not necessarily limited to engineering;:and
design,costs:during the preparation ofeontractplans and;specifications; engineering
and design;costs•during construction; the costs of investigations to identify the
existence and extent hazardous substances in accordance with Article'XVA. of this
Agreement, costs'of'histonc preservation activities in accordance}with Article XVIII.A: of
this Agreement; actual,construction costs, including'the,costs of alteration, lowering,,
raising,or,replacement and attendant removal of existing railroad:bridges and.
approaches thereto, and including credited project costs as defined in paragraph N. of
this.Article,for which the Government affords credit in accordance with Article.II'D.3. of
this Agreement to'the:extent they do notduplicate costs otherwise included in this
paragraph; supervision and administration,costs; costs of participation in the Project
Coordination Team in accordance-with Article_V of this Agreement;costs of contract
disputeisettlements or awards; the value of lands, easements, rights-of-way,
relocations,;and suitable borrow and dredged or excavated material disposal'areas'for
which the Government affords credit in accordance`with Article IV Of Agreement,
dredged'or'excavated material disposal areas that the Government determines,.
NED Plan; and costs:ofaudit in accordance.with Article X of this•Agreement. The term
does;notindlude;any costs for operation, maintenance; repair,:replacement, or
•
3
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• rehabilitation; any costs:due;to betterments; or any costs:ofdispute resolution under
Article;Vlt,of°this Agreement.
a.
- - - - - - - - - -
and extent of hazardous substances`in accordance.with Article XV.A. of this
• AT
E. The term "incremental costs" shall mean the difference between total
CF.. The term "financial obligation for construction.',shaltmean a financial
obligation of the Govemment.or aiinancial;oblio tiononhe Non-Federal Sponsor for
credited project costs, other than an obligation pertaining to;the;:provision of lands,
easements, rights-of-way, relocations, and borrow anddredged or excavated material
disposal areas, that results or would result in a cost that is or would be included in total
project costs.
D6. The term "non-Federal proportionate share"'shall mean the ratio of,the
Non-FederalSponsor's total contribution required in accordance with Articles
II.D.1; and II.D.4'. II.D.3:, and II.E.2. of=this Agreement to total financial obligations for
construction, as projected by the Government.
EH. The term "period of construction" shall mean the:time from the date the
Government first:notifies:the Non-Federal Sponsor in writing, in accordance with Article
VI.B. of this Agreement, of the scheduled date for issuance of thesolicitation for the first
construction contractto the date that the District Engineertnotifies the Non-Federal
Sponsor in writing of'the Government's determination that construction of the Project is
• complete.
4
•
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FL The term "highway" shall mean:any public.highway,, roadway, street, or
way, including any bridge thereof. •
GJ: The term "relocation"shall mean providing a functionally,equiyalentfacility
to the ownerof an existing utility, cemetery, highway or other public facility, or railroad
(excluding existing railroad bridges•and approaches'thereto) when such action is
authorized in.accordance with applicable,legal principles of just compensation.
Providing a'functionally equivalent facility may take the form'of alteration, lowering,
raising, or replacement and attendant removal of the affected•faciiiity.orpart thereof
H14, The term `fiscal year"shall mean;one'fiscal year of'the Governments The
Goverrimentfiscal year begins on October 1 and ends On Septembef30.
Ih.. The term "functional portion;,of the Project"shall meania portion of the
Project that is suitable;fortenderto the Non-Federal Sponsor to operate and,maintain
in advance of completion of the entire Project':Fora portion of the Project;to be
suitable fortender, the District Engineer must notify the Non-Federal Sponsor in writing
of the:Government's:determination thatthe portion of the Project is complete and can
function independentlyand'for a useful purpose, although the:balance of°the P'rojecf is
not complete.
•
JM. The term,"betterrnent" shall mean a change.in the design and
construction of an element of the Project'resulting"from the application'of standards.thatt •
the Government determines,exceed those that the Government would 'otherwise apply
for accomplishing the design:and construction of that element.
The term "credited`proiect costs'shall mean bredit'for prolectcosts incurred. •
by the Non-FederatSponsor,in accordance with Section 112(b) of Public Law,106=541 and
for which the•Governmentaffords:credit in,accordance With Article,II.D:3. of this
Agreement, which-costs shall include, but are.not'.limited to constrUction',costs ofithe
mainline railroad bridge as•generally described in the Detailed Project Report.
ARTICLE II— OBLIGATIONS.OF'THE GOVERNMENT AND THE NON-FEDERAL
SPONSOR
A. • The Government, subject to the$iailobility Of funds receiving funds
appropriated by the Congress of the United'States (hereinafter, the "Congress")land
using those funds and funds provided bythe.Non-Federal.Sponsor Shall expeditiously
construct the Project (including alteration, lowering,;raising, or replacement and'
attendant;removal of existing railroad bridges and approaches thereto), applying=those
procedures usually applied to Federal projects, pursuant to Federal laws, regulations,
and policies.
• 1.. The Govemment=shall,afford the Non-Federal Sponsor the
opportunity to review-and comment on,theiolicitations for all contracts, including •
5
Attachment to^Enclosure'(3)
1996'TCA edited for demonstrative purposes only
relevantplans and specifications, prior to the Governments issuance.of such
solicitations. The Government shall not issue the solicitatiomfor the first-construction
contract until:the Non-Federal'Sponsor has confirmed in writing its willingness to
proceed with t eProject; To.dhe,extent possible, the Government shall afford the Non-
Federal Sponsor the opportunity to,review and comment on all contract modifications, •
including change orders, 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 changeorder is riot possible prior to issuance of the Notice to Proceed,
the Government ishall provide such notification in writing at the earliest-date'possible.
To the extent possible, the Governmenfalso shall affordthe'Non-Federal,Sponsor the
opportunity to review and comment on all contract claiins prior to resolution thereof.
The Government shall consider in good faith the comments,of the Non-Federal
Sponsor, but the contents of,solicitations, award of contracts, execution of contract
modifications, issuance;of change orders, resolution of contract claims, and
performance of all work on the-Project-:(whether the work_is performed under contract or
by Government personnel), shall be iexclusivelywithin the control of the Government.
2. Throughout the period of construction, the•DistrictEngineer 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,theGovernment'to accomplish
betterments. Such requests shall be in writing and shall describe the betterments
requested"to.be accomplished. If the Governmentin its solediscretion elects to
accomplish the requested betterments or;any portion;thereof,:it shall so notify the Non-
Federal':Sponsor in;a writing that sets forth any applicable terms,and conditions, which
must be consistent with this Agreement: In the event of conflictbetween such a writing
and this,Agreement, this Agreement shall control. The Non-Federal Sponsor shall be
solely responsible for all costa'due°to the requested betterments and shall pay all such
costs in accordance with Article Vl.C. of this Agreement.
C. When the District Engineer determines,that theentire Project is complete
or that a portion of the Project has become a functional portion of the Project, the
District Engineer shall so notify the Non-Federal Sponsor in writing and furnish the
Non-Federal Sponsor with an Operation, Maintenance, Repair,.,Replacement, and
Rehabilitation Manual (hereinafter the'"OMRR&R Manual") and with copies of all of the
Government's Written.Notices.of Acceptance of Completed Work for all contracts for
the Project or the functional portion of the Project that have not provided
' previously. Upon such notification, the Non-Federal Sponsor shall operate, maintain,
repair, replace„and rehabilitate,the entire Project'orthe functional portion of the Project
in accordance with Article VIll of this Agreement.
D. The Non-FederaiSponsor shall contribute;a minimum of 3525; percent, but
not to exceed '50 percent, of total NED•project costs in accordance with the provisions of
this paragraph.
6
Attachment to Enclosure(3)
1996 PCA edited for demonstrative purposes only
t The Non-Federal Sponsor shall provide a cash contribution equal
to 5 percentof total NED project costs'in accordance.with Article Vl.B. of,this
Agreement.
2. Inaccordance with Article Ill of this Agreement, the Non-Federal •
Sponsor shall provide,;all lands, easements, rights-of-way, and suitable borrow and
dredged or excavated material disposal areas'that the Government'determines the
Non-Federal Sponsor must provide for,the construction,. and,maintenance of
• the NED PlanProiect, and shall perform or ensure performance of all relocations that the
Government determines to be necessary'for the:construction, operation, and
maintenanceofthe NED PlanProiect.
3. As provided bvcSection..192(b):of PublicLaW 106-541., the
Government shall afford credit'.for the credited prolectcosts. The affording of such
credit shall be subiectto review and'verification by the Government that the work•'is
subject to:credit pursuant to Section 112(b)of Public.Law 106-5411, and subiectto a
technical review'bv:the_Governmentto.verifV'tliatthe.:credited work wassacconiplished
in a satisfactory'manner and in accordance with the limitations contained in this
Agreement: TO,afford any such credit;";the Government, as further specif ed in Article
.VI.B. of this.Agfeement, shell apply credit for credited.project costs toward.:thetcash
contribution required.by"paragraph D:4. of this'Article. The actual amount of credit shall
not exceed the Non-Federal Sponsor's:actual costssttributable'to the credited'work:or
the cost had'the&Government performed.the credited work, whichever is the lesser The
actual amount of credit shall be subiect to an audit in accordance with Article X.C. of
•
this Agreementto:determine reasonableriess,,allocabilitV, and allowabilitV of costs If
the actual amount of credit•exceeds;the•cash contribution required by`paragraph.D,4. Of
this Article, the Government shall refund anv'excessin accordance'with the provisions
of AYticle•VI.D':2. of this Agreement.
34. If the Govemment projects that the value Of the Non-Federal
Sponsor's,contributions under paragraphs'D.1..and D.2, of this Article and Articles V, X,
and XV.A. of-this Agreement will be less than,2635 percent of total NED,proiect.costs,
the Non-Federal Sponsor shall provide an additional cash contribution„in accordance
with Article VI;B. of this:Agreement, 'in the amount necessary to make
Sponsor's total contribution equalto 25-35 percent of total NED proiect costs'.
45. If the Government determines,,that,the value•of the Non-Federal
Sponsor's contributions provided under paragraphs D.2. and D-3D4. of this Article and
Articles V, X, and XV.A:-of this Agreement exceeded 45 percent,of total NED
project costs, the.Government, subject to the;availability of funds, shalrreimburse the
Non-Federal Sponsor for any such value in excess of 45-percent;.of total NED project'
costs. After• a.determination, the Government, in its sole discretion, may provide
any remaining NED Plat-Project lands, easements,rights-of-way; and:suitable borrow
and dredged,or excavated.matenal,disposal areas and perform any remaining NED'
P1+nProjettrelocations on'behalf of the Non-Federal Sponsor:
•
Attachment to::Enclosure(3)
1996 PCA edited for demonstrative purposes only
costs in accordance: • : _ - - • -
with the provisions'of this paragraph,
1. In accordance with Article III.of:this Agreement,,the Non Federal
the Project;that are not otherwise:necessary for NED Plan, and shall perform or
necessary for the NED Plan.
2. If the Government projects that the value'of=the Non Federal
EF. The Non-Federal Sponsor may request the Government to provide lands,
easements, rights-of-way, and suitable,.borrow,and dredged or'excayated material
disposal areas'or perform.relocations on,behalf of the Non-Federal Sponsor. Such
requests shall be in writing shall describe the services.requested to be performed.
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 be'consistentwith this Agreement: In
the event of conflict between such a,writing and this Agreement, this Agreement shall
control. The,Non-Federal Sponsor shall be solely,responsible for all costs of the
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 beresponsible, as
between the Governmentand°the Non-Federal;Sponsor, for the costs of cleanup and
response in accordance with Article XV:C. ofthis Agreement.
FG. The:Government:shall perform a final accounting in accordance with
Article VI.D. of this,Agreement to determine the;contributions provided by the Non-
Federal-Sponsor in,accordance with paragraphs B., Q, and' E.-, and F. of this Article
and Articles V, X, and XV.A. of this Agreement and to determine whether the Non-
Federal Sponsor has met•itsobligations under paragraphs.B., D., and E._, and F. of this
Article.
G#. TheNon-Federal Sponsor shall not use Federal fundsto meet Non-
,
Federal'•;Sponsor's share of total NED proiect costs under this
• Agreement unless the Federal granting agency verifies in writing that the expenditure of
such funds is expressly authorized by statute.
8
•Attacfiinent;tq£nclosuie(3)
1996 PCA edited foi,dernonstrative purposes only
H+. The Non-Federal Sponsor agrees'to participate in and comply with •,
applicable Federal floodplain managementiand flood insurance;prograrns.
Id: Not less than once each=year the Non-Federal Sponsor shall inform
affected interests'of the extent of protection afforded by the:Project:
JIA: The Non-Federal;Sponsor shall'publicize flood plain information.in the
area concerned and shall provide this information to zoning and other-regulatory
agencies for their use in preventing unwise future development in the,flood plainand'in
adopting such regulations as may be necessary;to prevent unwise future development
and to ensure compatibility with protectiontevels provided by the Project.
•
K. The Non-FederalSponsor•shall.complv'with Section 402 of theWater
Resources Development Act of 1986;as•amended (33 0SC § 701b-12)',•which requires a
non-Federal interesttolhave prepared°within one year after the date•of-•signing this `
Agreement, a floodplain managementplan: The plan shall be designedto feducethe_
impacts offuture floodr.eVents in the'proiect area including but not limited to addressinq•
those measures tolbe undertakenby non-Federalinterests to preserve the level of flood
protection provided`bv this.Proiect. As required'by Section 402,•as.amended, the Non-
Federal Sponsorshallimplementsuch plammot later than one year after:completionof
construction of the Pidiect: The Non-FederalSpon `orshall provide°an information copVof
the planlo the Govemfnent upon its preparation: •
L. in addition to any other limitations corifained in this Agreement,•the..affordinq
and_the amount of-credit for credited proiect costs is:subiect to the following additional,
limitations.
1. Anv reimbursement ofcredited project costs shall be dependenfupon
the appropriation.of f indsapplicable thereto Or funds available therefor:
2. No creditshall be given or reimbursement made unless and until the
District Engiheerhasecertified that the work submitted for crediting as credited°proiect
costs has been performed in accordance with?this Agreement.
3.. The amount of credit or reimbursemenfforwhich the Non=federal
Sponsor may be•elidiblepursuaht to,.this Agreementt;is4.notsubiedt to'inte?st,charges,.
nor is it subiect to,adiustment to reflect changes in price:levels between the time'the:
work approved for creditina as credited 'prole-et-costs iszcompleted•and'the time'that`the
credit or reimbursement is afforded.
4. The:Non-Federal"Sponsor shall.obtain all applicable Federal, State and
local permits required for the-performance of the work-submitted for crediting as
credited protect costs, andfor operation, maintenance; repair; rehabilitation and
replacement..of such work.
•
S
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Attachment tto,Enclosure;(3)
1996•PCA'edited for demonstrative purposes only
• 5. Any contract awarded by the Non iFederal&Sponsor:for work submitted
for creditindas credited project costs'under this Agreementshall include provisions
consistent with alFapplicable,'Federallaws and requlations.
ARTICLE III - LANDS:RELOCATIONS; DISPOSAL AREAS, AND PUBLIC LAW
91 -646 COMPLIANCE
A. The Government, after consultation with theNon-Federal 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-of=way;that the
Government determines.the.;Non Federal Sponsor smustprovide,`in detail sufficient to
enable the Non-FederaltSponsorto fulfill its obligations under this paragraph, and shall
provide the Non-Federal Sponsor with a.written notice to proceed with acquisition of
such lands, easements, and rights-of-way. -- -
NED Plan. Prior to the end o(he,period of construction, the Non-Federal.Sponsor
shall acquire all:lands, easements, and rights-of-way set forth.:in such descriptions.
• Furthermore, prior to issuance of the solicitation,for each construction contract,the
Non-Federal Sponsor shall provide, the Government with;authonzation for entry to all
lands, easements, and rights-of way.the Government determines the Non-Federal
Sponsor must provide for thatcontract: For so long as the Project remains authorized,
the.Non-Federal Sponsor shall ensure that lands, easements, and rights-of-way that
the Government determines to be required for the operatiomand;imaintenance of the
Project andthat were provided by.the!;Non-Federal Sponsor are retained in public
ownership for uses compatible With Me authorized purposes of the Project..
B. The Government, afterconsultation with the Non-FederahSponsor, shall
determine the improvements:required.on,:lands, easements, and rights-of-way to enable
the proper disposal of dredged or excavated material associated with-the construction,
operation, and maintenance of the Project. Such improvements may include, but are
not necessarily limitedto, retaining dikes, wasteweirs, bulkheads, embankments,
monitoring features, stilling basins, and de-watering'pumps and pipes. The
Government in a timely manner,shall provide the Non-Federal Sponsor with general`
written descriptions offsuch,;improvements in detail.sufficient to enable the.Non-Federal
Sponsor to fulfill its obligations under this paragraph, and shall provide the Non-
Federal.Sponsor with,a written notice to proceed with construction of such
improvements. -: - - - , - •• -
aecociate with the,Projcct`burriotwith 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 of the solicitation for each Government
10
Attachment to Enclosure(3)
1996 PCA edited for demonstrative purposes only
construction contract, the Non-FederalSporisor shall:prepare plans and specifications •
for all improvements the Government determinesto be required,for'the•proper disposal
•
of dredged or excavated material under'that:contract, submit such plans and
specifications to'the'Governmentforapproval, and provide such improvements in
accordance:with the approved plans and specifications.
•
C.. Government, after consultation'with the Non-FederalrSponsor, shall
determinethe relocations'necessary for the:construction, operation,,:and maintenance
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 providethe.Non-Federat Sponsor with,general written descriptions,
including:maps,as appropriate, of such relocations in•detail sufficient to enable the
Non-Federal Sponsor its obligations under this paragraph andshell provide
the Non-Federal Sponsor with a`written notice to proceed with:such„relocations'.The
-- -
' . Prior'to the end of the•period of construction the Non-Federal
"Sponsor shall perform or ensure the;performance of all relocations asset forth.in such
descriptions. Furthermore; prior to issuance of the solicitation for each Government
construction!.contract,the Non-Federal,Sponsor-shall prepare or ensure the preparation
of plans and specifications for, and perform or ensure the performance of; all
relocations,the Government determines to be necessary for that contract.
D. The Non-Federal Sponsor in a timely manner shall provide•the •.
Government,with=such•documents asiare sufficient to enable the Government to
determine the value'tiffany contribution provided pursuant to paragraphs A., B'., ort. of
this Article: Upon receipt of such documents the Government, in:accordance with
. Article IV of this Agreement and in atimelymanner, shall determine the value otsuch
contribution, include such value in total project costs and total NED costs; and afford
credit, asappropnate, for;such value toward the Non;-Federal Sponsors share of total
NED proiect:Costs.
E. ' The Non-Federal"Sponsor shalicomply with the applicable,prowsions of
they Uniform Relocation Assistance and Real Property'Acquisition.Policies Act 1970,
Public Law!91-646, as"amended by Title IV ofthe•Surface Transportation and Uniform
Relocation Assistance'Act;of`'1987'(Public,,Law 100-17) and the Uniform Regulations
contained in 49:C.F:RL Part in acquiring lands,easements, and rights-of-way
required for the,construction;operation, and maintenance.of.thelProject ,:including
those necessary for relocations, borrow materials, and dredged or excavated material
disposal, and shall inform all affected;'persons Of applicable benefits,'policies, and
'procedures ih connection with said Act.
ARTICLE.IV CREDIT FOR VALUE OF LANDS,,RELOCATIONS,AND DISPOSAL
AREAS
A. The Non-Federal Sponsor shall receiv •credit toward:its share of total
•
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1996--.PCA.edited for demonstrativepurposes only
• NED-1)rolett ,costs for the value,of the lands, easements;Tights-of-way,:and suitable
borrow and dredged or excavated material disposal areas that the Non-Federal Sponsor
must provide pursuant to Article III of this Agreement fol- the N€D Plan, and for the
value of 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 lands,
easements, rights-of-way,.relocations, or borrow and dredged or excavated material
disposal areas that have been,provided previously as,anitem of cooperation for another
Federal project. The Non-Federal Sponsor also shall not;receive credit for the value 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 by statute.
B. For the sole.purposes,of affording credit._ ,. .i
project costs in accordance with this.Agreement, the value of lands, easements, and
rights-of-way, including those necessary for relocations, borrow,materials, and dredged
or excavated material disposal, that the Government determines, in accordance'with
Article Ill of this Agreement, to be required for the NED PlanProiect-and to be provided
by the Non-Federal Sponsor, is hereby agreed and stipulated to be
$3491,100$3;802,100 inclusive of any incidental costs.of acquiring such interests-In
• - . of lands
acquiring such interests.
1. Notwithstanding the above stipulations-of value, in the event that
this Agreement is terminated pursuant to Article XIV or Article XV of this Agreement,
the value of lands, easements, and rights-of-way, including those necessary for
relocations, borrow materials, and dredged or excavated material disposal,,shall be the
fair market value of the real property interests, plus certain.incidental costs of acquiring
those interests, as determined in;accordance with'the provisions of this paragraph.
a. Date of Valuation. The fair market:value of lands, .
easements, or rights-of-way owned by the Non-Federal Sponsor on the effective date
of this Agreement shall',be:the,fairmarket value of such real property interests as of the
date the Non-Federal Sponsorprovides the Government with authorization for entry
thereto.The fair market lands, easements, or rights-of-way acquired by the
Non-Federal Sponsor after the effective date of this Agreement shall be the.fair market
value of such real property interests at the time the interests are.acquired.
• b. General Valuation Procedure. Except as provided in
12
Attachment to Enclosure(3) •
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paragraph B.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 B.1,:b.(2) of this Article.
(1) The Non-Federal Sponsor shall;obtain, for each real
property interest, an appraisal that is prepared°by a.qualified appraiser;who is
acceptable to the?Non-Federal Sponsor and the Government. The appraisal must be
prepared in accordance•with the applicable rules of just compensation, as specified by
the Government. The fair market-value shall be•the amount Set forth in the Non-
Federal Sponsor's,appraisal, if such appraisal is..approved by the Government. In the
event the Government does not approve the Non-Federal Sponsor's,appraisal, the
Non-Federal Sponsor may obtain asecond appraisal, and the fair market value shall be
the amount set forth in the Non-Federal Sponsor's second appraisal,•if such appraisal
is approved'by the Government. In the event the Government does nOt approve the
Non-Federal Sponsor'ssecond appraisal,or the Non-Federal Sponsor chooses not to
obtain,a second appraisal, the•Government shall obtain an appraisal, and!thefair
market value shall.be•the amount set forth in•the•Government's appraisal,:if such
appraisal is approvediby the Non-Federal Sponsor. In the event the,Non'Federal
Sponsor does not'approve the Government's appraisal, the Government;•after
consultation with the Non-Federal Sponsor,shall consider the Government's and the
Non-Federal Sponsor's appraisals:and determine an amount based thereon, which
shall be deemed to be the fair market value.
(2) Wherethe;amount paid or proposed to be paid by •
Non-Federal Sponsor for the real property interest exceeds theamount'determined
pursuant to paragraph B.1 b.(1) of this Article, the Government, at the request of the
Non-Federal:Sponsor; shall consider all factors relevant to determining'fair market
value and,:in its sole discretion, after•consultation.with the Non-Federal Sponsor, may
approve;in writing an amount greater than the amount determined pursuant to
paragraph.B.1.b.(1)'of this Article, but not to exceed the amount actually paid or
proposed to be paid. If the;Government:approves,such!an amount the•fair market
value,shall be the lesser of the approved amount or the amount paid by the Non-
Federal•Sponsor,but no less thantheramount'determined pursuantto?paragraph '
yofthis Article.
c. • Erninent'Doniain Valuation Procedure. Forlands,
easements, or rights-of-way acquired`by eminent domain proceedings instituted,after
the,effective date of this Agreement,'the Non-Federal Sponsor.,shall, prior to:instituting
such proceedings, submit the Government notification in writing of its`intent to
institute such proceedings and'an appraisal ofthe•specific real property interests to;be
acquired in such proceedings. The 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 Govemmentin writing.
•
(1) If the Government previously has approved the
13
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-
1996-PCA edited for demonstrative purposes only
• appraisal in'wntin , or if the Government provides written approval of, or takes no
actionon„the appraisal,within such 60-day period, the Non-Federal Sponsor shall use
the amount set forth yin such appraisal as the estimate o f just compensation for the
purpose'.of instituting the eminent domain proceeding.
(2) If the Government provides-written disapproval of the
appraisal, including the reasons for disapproval, within such 60-day period, the
Government and the Non-Federal Sponsor shall consult in good faith to promptly
resolve:the issues or areas of disagreement that are identified in the Government's
written disapproval. If, after such good faith consultation, the Government and the
Non-Federal Sponsor agree-as.tb an appropriate amount, then.the Non-Federal
Sponsor shall use thatamount as the estimate.of just compensation for the purpose of
instituting the eminent domain proceeding. If,.after such,good.faith-consultation, the
Govemment and the Non-Federal Sponsor cannot,agree-asto an appropriate amount,
then the Non-Federal Sponsor may use the amount set forth in its appraisal as the
estimate of just compensation for the purpose of instituting the eminent domain
proceeding.
(3) For lands, easements,or rights-of-way acquired by
eminent domain proceedings instituted in accordance with sub-paragraph B.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,Govemment determined such interests are
,• required for the construction,,operation, and maintenance of the Project, or the amount
of any stipulated settlement orportion thereof that the Govemmentapproves in writing.
d. .Incidental:Costs. For lands, easements, or rights-of-way
acquired by the Non-Federal'Sponsor.within a;five-year period preceding the effective
date of this 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 Government, subject to'an audit in accordance with
Article X.C. of this Agreement to determine reasonableness, allocability, and
allowability of costs:.Such incidental costs shall include, but not limited
to, dosing and title costs; appraisal costs, survey costs, attorney's fees, plat maps, and
mapping costs, as.well;as the actual amounts expended:for payment of any Public Law
91-646 relocation assistance.benefits,provided.in accordance with Article III.E. of this
Agreement.
C.
• - — After consultation with the:Non-Federal
Sponsor; the Government shall determine the valueoof:relocations:nesessa;or the
NED Plan in accordance with;the'provisions ant-paragraph. In addition, for the solo
,
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1996 PCA edited for demonstrative purposes only
1. For a relocation other than a highway, the value shall be only that
portion of relocation costs that the Government determines is necessary to provide a
functionally equivalent facility, reduced by'depreciation, as applicable, and bythe •
salvagevalue of`any removed items.
2. For a:relocation of at highway., the value shall beady that portion of
relocation costs thatfwould be necessary toyaccomplish the relocation.in accordance
with'thedesign standard that the State of California would apply under similar
conditions of geography and traffic load, reduced by the salvage value of any removed
items.
3'.. Relocation costs shall include, but not necessarily b6 limited'to,
actual casts of performing the relocation; planning, engineering and design costs;
supervision=andradministration costs;°and.documented'incidental costs associated with
performance of the:relocation„but shall not include any costs due to betterment-Si as
determined'by the Government, nor any additional cost of using new material'when
suitable used material is available. Relocation;costs shall be subject to artauditin
accordance with Article X.C. of this Agreement to determine reasonableness,
allocability, and aliowability of costs.
D•
costs, t The valueof the improvements madeto lands, easements, and rights-of-way
for the proper disposal of dredged or excavated material associated with the NED Plan, •
shall be the costs ofthe improvements, as determined by the Government,;subject to
an'audit in accordance with Article'X:C. of this Agreement to determine
reasonableness, allocability, and allowability of costs.. - - :
with the Project but not the NEE/Plan, shall be the costs of the improvements, as
Such costs<sf all include, ,but not necessarily be limited to, actual costs of`providing.the
improvements; planning, engineering'and design costs; supervision andsadministration
costs,and documented incidental.costs associated With providing the improvements,
but shalt not include;any`costs dueto betterments, as determined'by the Government:
ARTICLE V - PROJECT COORDINATION TEAM
A. To provide for con sistentand.effective communication, the,Non-Federal
Sponsor and the Government,;not later than 30 days;after the effectivedate of this
Agreement;.shall appoint named seniorirepresentatives"to a Project Coordination
Team. Thereafter, the Project'Coordinatiion Team shalf;meet regularly until therend of
the period:of construction. The Government's Project Manager and a counterpart
named by the.•No n-Federal.Sponsor shall co-chair the Project Coordination Team.
•
15
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1996 RCA edited for demonstrativ&purposes only
+• B. The'Government's∎ProjectManagerand the Nob-Federal Sponsor's
counterpart shall keep the Project Coordination Team informed of the-progress of
construction and of significant pending issues and actions,'and shall seek;the views of •
the Project Coordination Team on matters that the:Project Coordination Team generally
oversees.
C. Until the end.ofthe period of construction, the Project Coordination Team
shall generally oversee the Project, including issuesirelated to design;.plans and
specifications; scheduling; real property and relocation requirements; real property
acquisition; contract awardsandmodifications; contract costs; the Government's cost
projections; credited project costs; final inspection of the entire Project or functional
portions of the Project; preparation of the proposed OMRR&R Manual; anticipated
requirements and needed,capabilities for performance of operation,maintenance,
repair, replacement, and rehabilitation oftheProject; and other related matters.
D. The.Project Coordination Team may make recommendations that it
deems warranted'to the District Engineer on matters that:the Project,Coordination
Team generally.oversees,_including suggestions to.avoid,potential;sources of dispute.
The Government in.good faith shall consider the recommendations of the Project
Coordination Team. The Government, having the legal authority:and responsibility for
construction.of the Project, has the discretion to accept, reject,,or modify the Project
Coordination Team's recommendations.
• E. The costs of participation in the'Project rCoordination Team shall be
included in total project costs or total NED costs and cost shared in accordance with
the provisions of this Agreement:.
ARTICLE VI - METHOD OF PAYMENT
A. The Government shall maintain current records'of contributions provided
by the parties and current projections of total project:costs, total,NED costs,
incremental costs, of credited project costs:determined in accordance with Article II.D.3.
of this Agreement, and costs due to;betterments. By July 1st (based on the,non-
Federal sponsors fiscal year of July 1 through June 30) S.each,year and at least
quarterly thereafter, the.Government,shall provide the Non-Federal Sponsor with a
report setting forth all contributions provided to date and:the current projections of total
project costs; of total NED costs, of incremental costs: of creditedi'proiect costs
determined/in accordance^with Article II.D3. of this Agreement, of total costs due to
betterments, of the maximum amount of total proiect costs determined'in accordance
with Article XIX of this'Agreement;of the components oftotal project costs,,of each
party's share of total NED proiect costs and incremental costs, of the Non-Federal
Sponsor's total cash contributions required in accordance with,Articles II B , II.D., and
II.E . a .-of this Agreement, of the non-Federal proportionate.share, and of the
funds the Government projects to be required from the Non-Federal Sponsor for the
• upcoming fiscal year On the effective date of this.AgreementAmendment, total project
costs are projected tobe420,2837000 $32,227,000, total NED costs arc projected to be
16
Attachment to Enclosure(3)
1996 PCA edited for demonstrative purposes only
$11 ,521,000, and incremental costs are projected to be $8,762;000 T and the Non-
Federal Sponsor's::cash contribution required under Article II.D. of this,Agreement is
projected to be-$3,37-1,000 1:668,000. - -required under Article 11'.E. of this Agreement is projected to be $8051,000.The amount
of credit for credited protect costs:determined.in accordance with II.D.3.3. is
projected to be $1,198,000. Such amounts are 'estimates subject,to adjustment by the
Govermhentand.are not to be construed as the total financial responsibilities of the
Government and the Non-Federal Sponsor
B. The Non-Federal Sponsor shall provide the cash contribution required
under Articles II.D.1.; and!II:D.4. II-_B.'.c II 2 of this Agreement in accordance with'
the provisions Of is paragraph.
1. Not less than.60 calendardays prior to the scheduled date for
issuancef;of the solicitation for the first construction contract, the Government shall
notify the Non-Federal Sponsorin writing of such scheduled data and the funds the.
Government after consideration of any credit afforded pursuant;to Article II.D.3!of'this
Agreement, determines toibe requiredrfrom the Non-Federal Sponsor to.meet the non-
Federal proportionate share of projected financial obligations for construction through
the first fiscal years of construction, including the non-Federal proportionate share of •
financial obligations for construction incurred prior to the commencement;of the period
of construction. Not later than such scheduled date, the Non-Federal Sponsor shall
provide the:'Government with the full amountot the required funds by delivering a check
payable AO "FAO, USAED; San Francisco.District" to the District Engineer; or verifyi g to
the satisfaction of theGovernmentthatThe Non-Federal Sponsor has •
deposited the required funds in an escrow°or other account acceptable;to the
Government, with"interestaccruing to-the Non-Federal Sponsor, or presenting the
Government`with an irrevocable letter of credit acceptable to the'Governmentforthe
required fundsi<orprovidinq an Electronib Fund§Transfer in accordance'with
procedures established bv'the Government.
2.. For the,second and subsequent fiscal years'of;construction, the
Government shall notify the.Non-Federal Sponsor in writing, no later than 60 calendar
days prior to the beginning of that fiscal year, of the funds the Government:after
consideration:of any creditafforded pursuant to:Article:II.D.3 of this.Agreement,
determines to be required from the Non-Federal Sponsor to meet the non-Federal
proportionate share of projected financial obligations:for construction for that fiscal year.;
No later than 30 calendar days prior to the beginning of=the fiscal year, the Non-Federal
Sponsor,shall make the full amount of-the required funds for that fiscal year availableFtto
the Government through any of the'funding:mechanisms specified ini Article VI.B.1. of
this Agreement! -
3. The Governmentshall;drawfrom the fundsprovided;by the Non-
Federal;Sponsor such sums asthe Government deems necessary to cover (a),the
non-Federal proportionate share of financial obligations for construction„incurred prior to
the commencement of the-period of construction; and`(b) the non-Federal •,
17
•
Attachment to Enclosure!(3)
1996 PCA edited for demonstrative purposes only
• proportionateshare of financial obligations for construction,asthey are incurred during
the;period:of"construction;=
4. If at any time during the period of construction the Government,
after consideration of any`credited project costs determined in accordance with Article
II.D.3. of this Agreement„determinesthat:additional`funds will be needed from the Non-
Federal Sponsor to cover the'non-Federal proportionate'share of projected financial
obligations for construction for the current fiscal year, the Government shall notify the
Non-Federal Sponsor in writing of the additional funds required, and provide an
explanation of why additional funds;are required, and the Non-Federal Sponsor, no later
than 60 calendar days'from receipt of such notice, shall make.the additional required
funds available throughany of'the payment mechanisms•specified in Article VI.B.1. of
this Agreement.
C. In advance of;therGovernment incurring any financialobligation
associated with additional work under Article II:B or II.E€: of this Agreement, the Non-
Federal:Sponsor shall verify to the.satisfaction.of provide the Government that the Non
- : - - S - - wth'thefull amount of:th efunds required to pay for such
additional work through any'ofthe'payment mechanismsspecified in Article V I.B.1. of
this Amendment- - - - - - - - - - - - -- -
- - - _ : The Government shall draw from the
funds provided by the Non-Federal1;Sponsorsuch 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, and
• provide an explanation of,whv additional funds:are_required. Within 30 calendar days
thereafter, the Non-Federal;Sponsor shall provideLthe Government with a check for the
full amount of the additional required'funds through any of the payment mechanisms
specified in Article VI.B.1. of thiS.Amendment.
D. Upon completionof the Project or, termination of this Agreement, and
upon resolution of all relevantclaims'and,appeals, the Government shall conduct a
final accounting and furnish the Non-Federal Sponsor with the results;of the final
accounting. The final accounting shall determine project costs, total NED costs,
incremental costs, credited project costs determined inaccordance with.Article II.D.3 of
this Agreement, each party's contribution provided toward total NED -and
^ro.eetalproiect costs; and each:party's required share•of"total`N and
iaerementarproiect costs. The final`accounting;also shall determine costs due to
betterments and the=Non-Federal,Sponsors cash contribution provided pursuant to
Article II:B: of this;Agteement.
1. In the event;theffinal accounting shows that the total,contribution
provided by the Non-Federal Sponsor is less than its required share of total NED project
• costs, plus its required share of incremental costs, plus costs due to any betterments
provided in accordance with Article II.B. of this Agreement,after consideration of any
18
Attachment to Enclosure (3)
1996 PCA edited for demonstrative purposes only
credited tsxdetermined.in accordance:with Article,II.0:3 of this Agreement, •
the Non-Federal Sponser'shall, no later than 90 calendar days afterreceipt of written
notice, make a cash payment to the Government of•whatever.sum;is required to meet
the Non-Federal,Sponsor's requiredshare Of total project cost plus ' re- ire i
share ofincremental costs, plus costs due to any betterments provided in accordance
with Article II.B. of this Agreement by`deliverinq!a chetk'payable to "FAO, USAED; San
Francisco District to the District Engineer orprovidinq=an Electronic Funds Transfer'in.
accerdancewith procedures established by theGovemment.
2. In'theievent the final accounting;shows thatthe,total contribution
provided by the Non-Federal:Sponsor exceeds:its, required share;oftotal NED costs,
plus.its required share of incrementalproject costs'-plus costs due to any'betterments
provided in accordance`with Article II.B. of this Agreement„after consideration of any
credited project costs determined in accordance'with Article II:D3 of this Agreement,
the Government shale -: _ _ , refund:the excess to the Non-
Federal Sponsor'as funds become available;_and'in any event.:no later`'than 90 calendar
days after the final accounting is complete; however; the Non-Federal Sponsor shall not
be entitled to any•refund of the 5percent cash contribution required pursuantto Article
II D.1. of this.Agreement. Funding offProjectcosts;shall take precedence over refund of
any,expenditures in'excess.of the•Non-Federal Sponsor's cost-shareat all times.
preceding the final:,accountinq. In°the event existing funds are not:available to,refund
the excess to the:Non-Federal,Sponsor, either prior td or final accounting,
the
to Gov the Trent s all'use its best efforts to_seek such°appropriations a&are necessary •
ARTICLE VII - DISPUTE RESOLUTION
As°a condition'precedent to'a party bringingiany'suit for breach of this
Agreement,;that•,party must first notify the other party. in writing of the nature of the
purported breach,and seek in good faith to resolve ther,dispute through negotiation. If
the parties cannot resolve the.dispute through negotiation, they may•agree;to a;
mutually acceptable method Of nonbinding alternative dispute resolution with,a
qualified'third party acceptable to both parties. The parties shalteach 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.ezcuse the parties from performance pursuant to
this.Agreement.
ARTICLE VIII - OPERATION, MAINTENANCE; REPAIR, REPLACEMENT,
AND REHABILITATION (OMRR&R)
A. • Upon notification in,accordance With.Article II:C. bfthis Agreementandifor
so;long as the Project remains authorized, the Non-Federal Sponsor shall operate,
maintain, repair, replace, and rehabilitate the entire Project or the functional portion.of
the Project, at ndcost.to the Government, in a manner compatible.with the Project's
authorized purposes and in accordance with'.applicable Federal-and'-State;laws as
19
Attachment.to Enclosure(3)
1996 PCA edited.for demoi stratice purposes only
provided`in'ArticleAl of this:Agreement and specific directions prescribed`,by the
Government in:,the.OMRR&R.Manual and any subsequent"amendments:thereto.
B. The Non-Federal;Sponsor hereby gives the Government a right to enter,
at reasonable times and in a;reasonable manner, upon property that the,Nbn-Federal
Sponsor owns or controls for access to the Project for the purpose of inspection and, if
necessary, for`the purpose of completing, operating, maintaining,repairing, replacing,
or rehabilitating'the Project. If an inspection shows that the Non-Federal Sponsor for
any reason is failing to,perform its obligations under this Agreement, the Government
shall send a writtemnotice describing the non-performance to the'Non-Federal
Sponsor.If; after 30 calendar days from receipbof notice, the Non-Federal Sponsor
continues to fail to perform, then the Government:shall have the right to enter, at
reasonable times and in a reasonable manner, upon property that the Non-Federal
Sponsor owns or controls for access to the:Project for the purpose of completing,
operating, maintaining, repairing, replacing,,or rehabilitating the Project. No
completion, operation, maintenance, repair, replacement, or rehabilitation by the
Government shall operate to'relieve'the Non-Federal Sponsor of responsibility to meet
the Non-Federal Sponsor's.obligations as set forth in this;Agreement, or to preclude the
Government from pursuing any'other remedy at law or equity to ensure faithful
performance pursuant to this Agreements
• ARTICLEIX—INDEMNIFICATION
The Non-,Federal Sponsor shall hold and save the Govemment free•from all
damages arising from the construction, operation, maintenance, repair, replacement,
and rehabilitation of the Project, including anv work'submitted for crediting as credited
project costs, 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 after the effective date of this Agreement,
the Government andthe Non=Federal Sponsor shall develop procedures for keeping
books, records, documents, and other evidence pertaining to costs and expenses
incurred pursuant to this Agreement These procedures-shall incorporate, and apply as
appropriate, the standards for financial management systems set forth in the Uniform
Administrative Requirements for Grants:'and.Cooperative Agreements`to State and
Local Governments at C.F.R.Section 33.20. The Governmentand.the.Non-Federal
Sponsor shall maintain.such;:books, records, documents, and other evidence in
accordance with•these procedures and fora minimum of three,years after the period of
construction and resolution of all relevant claims arising=therefrom;-To the extent
permitted under applicable;Federal laws and regulations, the Government and the Non-
Federal Sponsor shall each allow the other to inspect such books, documents, records,
• and otherevidence.
20
Attachment to Enclosure(3)
1996 PCA edited for demonstrative purposes only
B. Pursuant to 32 C.F.R. Section'33126, the Non-Federal Sponsor is •
responsible for complying with the Single Audit Act of 1984, 31 U':S:C. Sections 7501-
7507, as implemented,by Office of Management and Budget (OMB) Circular• A428
133 and Department of'Defense Directive 760010. Upon request`of the Non-Federal
Sponsor and to the extent permitted under ap_plicable'Federal laws and regulations, the
Government shall'provide to the Non-Federal4Sponsor and independentauditors any
information'!necessary'to enable an'auditofthe Non-Federal Sponsor's,activities under
this Agreement. The costs of any;non-Federal audits performed in accordance with this
paragraph shall be allocated in,accordance with the provisions of OMB:CircularsA-87
and A428133, and costs as.are allocated to the Project shall be'included in;total
• project costs or total NED costs and c ost 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 to conduct
under the Single Audit Act. Any such Government audits shall be conducted in
accordance;with Government Auditing Standards and the cost principles OMB
Circular No, A-87 an0 other applicable cost:principles and regulations. The:costsrof
Government audits performed in accordance with this paragraph shall be included°in
total projectcosts or total NED costs and cost shared accordance with the provisions
of this Agreement.
ARTICLE XI _ FEDERAL AND:STATE LAWS
In the exercise of their respective rights•and obligations under this Agreement,. •
the Non-Federal Sponsor andIthe Government agree`to comply with all applicable •
Federaland,State laws and regulations, including„but not limited to,•Section•601 of th e
Civil Rights Act of 1964, Public Law;'88-352,(42 U:S;C: 2000d), and Department,of•
Defense Directive 5500.11 issued pursuant thereto„as well as Army Regulations
600-7, entitled Nondiscrimination on the Basis of Handicap in Programs and Activities
Assisted or Conducted by the Department of the Army.
ARTICLE XII - RELATIONSHIP OF"PARTIES
A.. In•the;exercise of their-respective rights and obligationslunder this
Agreement, the Government and the Non-Federal Sponsor each actin an independent •
capacity; and neither is to be considered'theoffcer, agent, or employee Of the other.
B. In the exerciseof its rights and:obligations;underthis Agreement,;neither
party shall provide, without the consent of the other party, any contractor with a release
that waives;or purports'to waive anyrights such other party may have to seek relief°or
redresstagainst such contractor either pursuant to.any'cause of action`that such,other •
party may have or for violation of any'law.
•
ARTICLE.XIII- OFFICIALS NOT'TOBENEFIT
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Attachment to Enclosure,(3)
1996 PCAiedited for,demonstrative.purposes only
• No member of or delegate to,tbe Congress nor,any resident commissioner, shall
be admitted to any-share'or'part ofthis Agreement, or to any beriefitthatmay arise
therefrom.
ARTICLE XIV-TERMINATION OR SUSPENSION
A. If at any time the Non-Federal Sponsor fails to fulfill its obligations under
Article II.B., IID.,.II E., II€ VI, or XVI II;C. of this.Agreement, the Assistant Secretary of
the Army fec-jCivil Works) shall terminate this Agreement or suspend future
performance under this Agreement unless he determines.that continuation of work on
the Project is in the interest ofthe.United:States'orisnecessary 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,the
Government shall so notify the Non-Federal Sponsor in writing, and 60 calendar days
thereafter either party may'elect:Without penalty to terminate this Agreement or to
suspend future performance.under this Agreement. In the event.that:either, party elects
to suspend future performance under this Agreement pursuant to this paragraph, such
suspension shall remain in effect until'such.time;as the Government receives sufficient
appropriations or until either the Government or the No_ n-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, both parties shall conclude their activities
relating to the Project and proceed to a final accounting in accordance with Article VI.D.
of this Agreement.
D. Any terrnhIatioh of this Agreement or suspension of future performance
under this Agreement in accordance with this Article or Article• of this.Agreement
shall not relieve the parties of liability for any obligation previously incurred. Any
delinquent payment shall'be charged interest at a rate, to be determined by the
Secretary of the Treasury, equal to'150 per centum,of`the average bond equivalent rate
of the 13-week Treasury billssauctioned immediately prior to the date,on which such
payment became delinquent;;.or auctioned immediately prior to the beginning of each
additional 3-month;period if the period of delinquency exceeds 3.months.
ARTICLE XV - HAZARDOUS SUBSTANCES
•
A. After execution of this Agreement and upon direction bythe'District
Engineer, the Non-Federal.Sponsor shall perform, orcause=to be performed, any
investigations;for'hazardous substances that the Government,or the Non-Federal
Sponsor determines,to be necessary to identify the existence and extent of any
hazardous substances regulated Lunder the Comprehensive Environmental Response,
• Compensation, and'Liability'Act (hereinafter "CERCLA"), 42 U.S.C. Sections
22
Attachment to Enclosure(3)
1996 PCA edited for demonstrative purposes only
9601-9675, that may exist;in, on, or under lands, easements, and rights-of-way that the
Government°determines, ipursuantlo Article Ill'of this Agreement; to be required for the •
construction, operation, and maintenance of the Project. However, for lands thatthe
Government determines to be subject to the°navigation servitude,ionlythe Government
shall perform such investigations unless the District Engineer provides"the.Non-Federal
Sponsor with prior specific written direction, in which case the-Non-Federal Sponsor
shall perform such investigations in'accordance with:.such written direction..Alt`actual
costs incurred by the Non-Federal,Sponsorfar such investigations for hazardous.
substances shall be:included in total project costs;or total NED costs and cost shared in
accordance with the provisioned'this Agreement, subject-ta an audit in accordance
with Article X.C. of this Agreement to determine reasonableness; allocability, and
allowabilityat costs.
B. In the eventit is discovered through any investigation for hazardous
substances or other means that hazardoussubstances regulated under CERCLA exist
in, on, orunder any lands, easements;:orrigl ts=of-waythat the Government
determines, pursuant to;Article.Ill of this Agreement, to be required for the construction,
operation land maintenance of the Project, the.Non-Federal Sponsor and the
Government shall provide promptwritten 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:Sponsorshould`proceed.
C. The Government and the Non-Federal Sponsor shalt determine whether •
to initiate construction of the Project, or, if already in construction, whether to continue.
with work<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 CERCLA.are found to exist in, on,orunder any
lands, easements, or rights-of-waythatthe Government determines, pursuant to'Article
III of this Agreement,,:to be required for the construction, operation, ancr maintenance of
the Project. Should the Government and the Non-Federal Sponsor determine to initiate
or continue With construction after considering any liability that may arise under
CERCLA, the Non-Federat Sponsor shall be:responsible, aebetween the Government,.
and the Non-Federal,Sponsor,for the costs of°clean=up and response, to°includethe
costs of any studies and investigations necessary tadetermine an appropriate
response to the contamination. Such costs`shall not be considered a part of total
project costs ortotal NED costs. In the event the Non-Federal;Sponsor fails'to provide.
any`funds,necessary to pay for clean up and'response costsorto otherwise discharge
the Non-Federal Sponsor's responsibilitiesunder this paragraph upon direction by the
Government; the:Government may, in its sole,discretion,"either;terminate this
Agreement forthe convenience of the Govemment,•suspend future,performance,under
this Agreement, or continue:work oh the Project.
D. The,Non-Federal Sponsor and the Government:shall consult with each
other'in'accordance with:Article V. of thisAgreement in an effort to ensure that
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• responsible parties'tiear any.necessary clean up and-response costs as defined in
CERCLA..Any decision made'pursuant to paragraph C. of this Article shall not relieve
any third party, fromtany 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'Projectfor purposes.of
CERCLA,liability. To the maximum extent practicable, the Non-Federal Sponsor shall
operate, maintain, repair,.,replace, and'rehabilitate the Project in a manner that will not
causediability to arise under CERCLA.
ARTICLE XVI - NOTICES
A. An notice, request, demand, or
Any q other communication required or
permitted to be given under this Agreement shall be.deemed:td have been duly given if
in writing and either delivered personally or by telegram or mailed by first-class,
registered, or certified mail, as follows:
If to the Non-Federal Sponsor: If to the Government:
City Manager District Engineer
City of Petaluma USAED,-San Francisco
11 English Street 333 Market Street, 7th Floor
• Petaluma, California 94952 San Francisco, CA 94105-2197
B. Aparty may change the address to which such communications are to
be directed by jiving written notice to the other`party in`the manner provided in this Article.
C. Any notice,,request, demand, or other,communication made pursuant to
this Article shall be deemed to have been received by,the addressee at the earlier of
such time as it is actually received or seven calendar days after it is mailed.
ARTICLE,XVII — CONFIDENTIALITY
To.the.'extent permitted by the laws governing.each party, the parties agree to
maintain the confidentiality of exchanged information when requested to do so by the
providing party.
ARTICLE XVIII - HISTORIC PRESERVATION
A. The costs of identification, survey and evaluation of historic properties
shall be,included in total project.costs or total NED•costs and cost shared in
accordance with the provisions of-this Agreement.
B. As specified jh Section 7(a) of Public Law 93-291 (16 U.S.C. Section
• 469c(a)), the costs of mitigation and data recovery activities associated with historic
preservation shall be borne entirely by the Government.and shall not be included in
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total project costs or totaLNED costs;,up to the'statutory limit of one percent of the total
amount authorized to be appropriated for the Project. •
C. The Government shallnotincurcostsfor mitigation and data recovery
that exceed the statutory one percent lirimit specified in paragraph B. of this Article.
unless and until'the Assistant Secretary of the,Arrny (Civil Works) has Waived that
in accordance with Section 208(3) of Public Law 96:515 (16 U,'S.C.:Section1469c-2(3)).
Any costs of mitigation and data;recovery that exceed the one percent limit'•shall'notbe
included in'totaliproject'costs but shall'be'cost shared between the Non:Federal
Sponsor and the,Government`consistent with:the:'minimum;non-Federal cost sharing
requirements for the underlying flood control purpose, as follows:-25-35 percent borne
by the Non-Federal•Sponsor, and 7-5:65 percentborrie by the Government:
ARTICLE XIX -. A e• e • - e • ki • - e - - SECTION 902 PROJECT
COST LIMITS
Non Federal Sponsor pursuant/to Articles II.B. or II:E. of this Agreement:
be,;responsible for;all costs in excess of this amount. •
The Non-FederaiSponsor has reviewed the provisions set forth in Sections902 of
Public Law 99'-662 as ainerided, and understands that Section.902 establishes the
maximum amount of total proiect costs far-the Petaluma River Proiect. Notwithstanding
any other provision of this Agreement;aheGovernmenr.shall not make a new'Proiect
financial obligation, make a.Project expenditure, or:afford'credit toward total project
costs for the value of any contribution provided by the Non=Federal Sponsor, if such
obligation; expenditure, or credit would result in total proiect costs exceeding-this
maximum amount, unless otherwise authorized by law. On the effective-date of:this
Amendment, this maximum amount is estimated to be $39;700,000, as calculated'in
accordance with'ER,1105-2-100 using October 1, 2000 price levels:and'allowances for
proiected°future•inflatioii: The Governrnenbshall.adjustthis maximurn amount'in
accordance With°Section'6902.
IN WITNESS]WHEREOF, the parties hereto have executed this Agreement,
which shall,.become effective upon the date'itis signed by the District;Engineer:
THE DEPARTMENT OF THE ARMY THE CITY OF PETALUMA
BY: BY
Michael J. WalehTimothy. S. O'Rourke John L. ScharerFrederick C. Stouder
Lieutenarit Colonel, Corps of Engineers. City Manager •
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District:Engineer City'ofPetaluma
DATE DATE
•
•
26
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CERTIFICATE OF AUTHORITY
I, Richard R. Rudnansky, do hereby certify`that I am the principal legal officer of
the City of Petaluma, thatithe City of`Petaluma is a legally constituted public body with
full authority and legal capability to perform:theaerms of the Agreement between the
Department of the Army and°the City of Petaluma in connection with the Petaluma River
Project, and to pay:damages in accordance with the terms of this Agreement, if
necessary, in the event of the failure to perform,as required by Section 221 of Public
Law'91-611 (42 U.S.C. Section 1962d-5b), and that the persons who have executed
this Agreement on behalf of the City of Petaluma have acted within their statutory
authority. .
IN WITNESSWHEREOF, I have made and executed this certification this
day of 20_
•
Richard R. Rudnansky
City•Attorney
City of Petaluma
•
•
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1996 PCA edited for demonstrative purposes only
CERTIFICATION REGARDING LOBBYING
The undersigned certifies,'to the best of'his.or her knowledge and belief that:
(1) No Federal appropriated funds have been paid or will be paid, by or on
behalf of the undersigned, to any person for influencing or attempting to influence an
officer or employee of any agency;a Member of Congress, an officer or employee of
Congress, or an employee of+a Member of Congress in connection with the awarding of
any Federal contract, the making of any Federal grant, the making of any Federal loan,
the entering into of any cooperative agreement, and the extension, continuation,
renewal, amendment, or modification of any Federal contract, grant, loan, or
cooperative agreement.
(2) If any funds'other`than:,Federal;appropriated funds have been paid or will
be paid to any person for influencing or attempting to influence an officer or employee
of any agency, a Member of Congress, an officer or employee of Congress, or an
employee of a Member of Congress in connection'with this Federal contract, grant,
loan, or cooperative agreement, the undersigned shall complete and submit Standard
Form-L'LL, "Disclosure Form to Report Lobbying," in accordance with its instructions.
(3) The undersigned:shall require that the language of this certification be
included in the award documents for all subawards°at all tiers (including subcontracts,
subgrants, and contracts under grants, loans, and cooperative agreements) and that all
subrecipients shall certify and disclose accordingly:
This certification is a-material representation of fact upon which reliance was
placed when this transaction was made or entered into.:Submission of this certification
is a prerequisite for making or entering into this transaction imposed by 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 $10,000 and not more than $100,000 for each
such failure.
John L. ScharerFrederick'C. Stouder
City Manager
City of Petaluma
DATE:
•
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