HomeMy WebLinkAboutExhibitPROJECT PARTNERSHIP AGREEMENT
BETWEEN
THE DEPARTMENT OF THE ARMY
AND
CITY OF MIAMI, FLORIDA
FOR
DESIGN AND CONSTRUCTION
OF THE
VIRGINIA KEY SECTION 1135 ECOSYSTEM RESTORATION PROJECT
THIS AGREEMENT is entered into this day of , by
and between the Department of the Army (hereinafter the "Government"), represented by
the U.S. Army Engineer, Jacksonville, and City of Miami, Florida (hereinafter the "Non -
Federal Sponsor"), represented by its City Manager.
Nk'ITNESSETH, THAT:
WHEREAS, construction of the Miami Harbor Federal Navigation Project at
Miami -Dade County, Florida was completed by the Secretary of the Army in 2005;
WHEREAS, the construction or operation of the Existing Project has contributed
to the degradation of the quality of the environment;
WHEREAS, design and construction of the Virginia Key Section A 35
Ecosystem Restoration Project (hereinafter the "Project", as defined in Article I.B. of this
Agreement) at Virginia Key, Miami -Dane County, Florida was approved by Commander,
South Atlantic Division on July 13, 2006 pursuant to the authority contained in Section
1135(c) of the Water Resources Development Act of 1986, Public Law 99-662, as
amended (33 U.S.C. 2309x; hereinafter "Section 1135");
WHEREAS, Section 4 of the Flood Control Act of 1944, Public Law 78-534, as
amended (16 U.S.C. 460d) and the Federal Water Project Recreation Act of 1965, Public
Law 89-72, as amended (16 U.S.C. 4601-12 et seg.) provide authority to include
recreation as a Project purpose;
WHEREAS, performance of monitoring (as defined in Article I.V. of this
Agreement) was approved as part of the Project;
WHEREAS, Section 1135 provides that not to exceed $40,000,000 in Federal
funds are authorized to be appropriated annually to carry out projects for the purpose of.
(1) making such modifications in the structures and operations of water resources projects
constructed by the Secretary of the Army which the Secretary determines will improve
the quality of the environment; or (2) undertaking measures for restoration of
environmental quality when the Secretary determines that construction or operation of a
water resources project has contributed to the degradation of the quality of the
environment; and not more than $5,000,000 in Federal funds may be expended on any
single modification or measure carried out or undertaken pursuant to Section 1135;
V.1HEREAS, the Government and the Non -Federal Sponsor desire to enter into a
Project Partnership Agreement (hereinafter the "Agreement") for design and construction
of the Project,
WHEREAS, Section 1135 of the Water Resources Development Act of 1986, Public
Law 99-662, as amended (33 U.S.C. 2309a) and Section 103 of the Water Resources
Development Act of 1986, Public Law 99-662, as amended (33 U.S.C. 2213) specify the
cost-sharing requirements applicable to the Project;
WHEREAS, the Non -Federal Sponsor desires to perform certain work
(hereinafter the "non -Federal work' as defined in Article I.S. of this Agreement) which is
a part of the Project and receive credit toward the amount of its required contributions for
the Project for the costs of such work;
WHEREAS, the Government and Non -Federal Sponsor have the full authority and
capability to perform as hereinafter set forth and intend to cooperate in cost-sharing and
financing of the Project in accordance with the terms of this Agreement; and
WHEREAS, the Government and the Non -Federal Sponsor, in connection with
this Agreement, desire to foster a partnering strategy and a working relationship between
the Government and the Non -Federal Sponsor through a mutually developed formal
strategy of commitment and communication embodied herein, which creates an
environment where trust and teamwork prevent disputes, foster a cooperative bond
between the Government and the Non -Federal Sponsor, and facilitate the successful
implementation of the Project.
NOW, THEREFORE, the Government and the Non -Federal Sponsor agree as
follows:
ARTICLE I - DEFINITIONS
A. The term "Existing Project" shall mean the Miami Harbor Federal Navigation
Project at Miami -Dade County, Florida.
B. The term "Project' shall mean the ecosystem restoration features and the
recreation features as generally described in the Virginia Key Section 1135 Ecosystem
Restoration Project, Miami -Dade County, Florida, Ecosystem Restoration Report with Final
Environmental Assessment„ dated May, 2006 and approved by Commander, South Atlantic
Pa
Division on July 13; 2006. The term includes the non -Federal work described in
paragraph S. of this Article.
C. The term "ecosystem restoration features" shall mean the clearing of exotic
species and planting of native species in 13.7 acres of dune/coastal strand, 34.9 acres of
tropical hardwood hammock, 7.3 acres of wetlands and 3.2 acres of freshwater
pond/wetlands and the creation of 2.1 acres of freshwater pond/wetlands as generally
described in the Virginia Key Section 1135 Ecosystem Restoration Report, Miami -Dade
County, Florida. Ecosystem Restoration Report with Final Environmental Assessment,
dated May, 2006 and approved by Commander, South Atlantic Division on July 13, 2006.
D. The term "recreation features" shall mean construction of an educational and
recreational walking trail -Mth interpretive signs as generally described in the Virginia Key
Section 1135 Ecosystem Restoration Report, Miami -Dade County, Florida, Ecosystem
Restoration Report with Final Environmental Assessment, dated May, 2006 and approved
by Commander, South Atlantic Division on July 13, 2006.
E. The term "total project costs" shall mean the sum of all costs incurred by the
Non -Federal Sponsor and the Government in accordance with the terms of this Agreement
directly related to design and construction of the Project and the pre -Agreement planning
and design costs incurred by the Government. Subject to the provisions of this
Agreement, the term shall include, but is not necessarily limited to: the Government's pre -
Agreement planning and design costs and the Government's design costs incurred after the
effective date of this Agreement; the costs of the Non -Federal Sponsor's Design
Coordination Team Activities-, the Government's costs of preparation of environmental
compliance documentation in accordance with Article ll.A.2. of this Agreement; the
Government's engineering and design costs during construction; the Non -Federal
Sponsor's and the Government's costs of investigations to identify the existence and extent
of hazardous substances in accordance with Article XIV.A. of this Agreement; the
Government's costs of historic preservation activities in accordance with Article XVII.A.
and Article XVII.B.1. of this Agreement; the Government's actual construction costs; the
costs of the non -Federal work determined in accordance with Article H.P. of this
Agreement; the Government's costs of monitoring in accordance with Article II.K. and
Article II.L. of this Agreement; the Government's supervision and administration costs; the
Non -Federal Sponsor's and the Government's costs of participation in the Project
Coordination Team in accordance with Article V of this Agreement; the Government's costs
of contract dispute settlements or awards; the value of lands, easements, rights-of-way,
relocations, and improvements required on lands, easements, and rights-of-way to enable
the disposal of dredged or excavated material for which the Government affords credit in
accordance with Article IV of this Agreement or for which reimbursement by the
Government is required pursuant to Article II.C.3. or Article II.D.3. of this Agreement; and
the Non -Federal Sponsor's and the Government's costs of audit in accordance with Article
X.B. and Article X.C. of this Agreement The term does not include any costs for
operation, maintenance, repair, rehabilitation, or replacement of the Project, any costs of
betterments under Article II.J.2. of this Agreement; any costs of dispute resolution under
Article VII of this Agreement; the Government's costs for data recovery activities
associated with historic preservation in accordance with Article XVII.B.2. and Article
XVII.B.3. of this Agreement; or the Non -Federal Sponsor's costs of negotiating this
Agreement.
F. The term "total ecosystem restoration costs" shall man that portion of total
project costs allocated to the ecosystem restoration features.
G. The term "total recreation costs'' shall mean that portion of total project costs
allocated to the recreation features.
H. The term "period ofdesign and construction" shall mean the time from the
effective date of this Agreement to the date that construction and monitoring of the
Project are complete, as determined by the Government, or the date that this Agreement
is terminated in accordance with Article XIII or Article XIV.C. of this Agreement,
whichever is earlier.
i. The term "financial obligations for design and construction" shall mean the
financial obligations of the Government and the costs for the non -Federal work, as
determined by the Government, that result or would result in costs that are or would be
included in total project costs except for obligations pertaining to the provision of lands,
easements, and rights-of-way, the performance of relocations, and the construction of
improvements required on lands, easements, and rights-of-way to enable the disposal of
dredged or excavated material.
J. The term "non -Federal proportionate share" shall mean the ratio of the sum of
the costs included in total project costs for the non -Federal work, as determined by the
Government, and the Non -Federal Sponsor's total contribution of funds required by Article
II.C.2., Article MD.2., Article II.DA, and Article ILE.2. of this Agreement tofinancial
obligations for design and construction, as projected by the Government.
K The term "highway" shall mean any highway, roadway, street, or way, including
any bridge thereof, that is owned by a public entity.
L. The term "relocation" shall mean providing a functionally equivalent facility
to the owner of a utility, cemetery, highway, railroad, or public facility when such action is
authorized in accordance with applicable legal principles of just compensation. Providing a
functionally equivalent facility may take the form of alteration, lowering, raising, or
replacement and attendant demolition of the affected facility or part thereof.
M. The tern `functional portion of the Project" shall mean a portion of the Project
for which construction has been completed and that can function independently, as
determined by the U.S. Arany Engineer, Jacksonville District (hereinafter the "District
Engineer") in writing, although the remainder of the Project is not complete.
N. The term "betterment" shall mean a difference in the design or construction of
an element of the Project that results from the application of standards that the Government
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determines exceed those that the Government would otherwise apply to the design or
construction of that element The term does not include any design or construction for
features not included in the Project as defined in paragraph B. of this Article.
O. The term "Federal program funds" shall mean funds provided by a Federal
agency, other than the Department of the Army, plus any non -Federal contribution
required as a matching share therefor.
P. The term "Section 1135 Project Limit' shall mean the $5,000,000 statutory
limitation on the Government's financial participation in the planning, design, and
construction of the Project as specified in Section 1135 of the Water Resources
Development Act of 1986, Public Law 99-662, as amended (33 U.S.C. 2309a).
Q. The term "Section 1135 Annual Program Limit" shall mean the statutory
limitation on the Government's annual appropriations for planning, design, and
construction of all projects implemented pursuant to Section 1135 of the Water Resources
Development Act of 1986, Public Law 99-662, as amended (33 U.S.C. 2309a). As of the
effective date of this Agreement, such limitation is 540,000,000.
R The term "fiscal year" shall mean one year beginning on October 1 and ending
on September 30.
S. The term "non -Federal world' shall mean clearing of exotic vegetation and
planting of native material and monitoring for the ecosystem restoration portion of the
project and the placement of crushed shell on the interpretive trails and educational
signage for the recreational portion of the project including the design, construction,
supervision and administration, and other activities associated with design and
construction of such work performed by the Non -Federal Sponsor after the effective date
of this Agreement. The term also includes monitoring performed by the Non -Federal
Sponsor. The term does not include the design or construction of betterments or the
provision of hands, easements, rights-of-way, relocations, or the construction of
improvements required on lands, easements, and rights-of-way to enable the disposal of
dredged or excavated material that are associated with the non -Federal work.
T. The term 'fiscal year of the Non -Federal Sponsor" shall mean one year
beginning on and ending on
U. The term "pre Agreement planning and design costs" shall mean all costs that
were incurred by the Government prior to the effective date of this Agreement for planning
and design of the Project.
V. The term "monitoring" shall mean activities, including the collection and
analysis of data, that are necessary to determine if predicted outputs of the ecosystem
restoration features are being achieved.
W. The term "Design Coordination Team Activities" shall mean the oversight of
matters related to design of the Project including: engineering and design; includil-ig
scheduling of reports and work products; development of plans and specifications; real
property and relocation requirements of the Project; contract awards and modifications;
contract costs; the Government's cost projections; anticipated requirements and needed
capabilities for performance of operation and maintenance of the Project; and other
matters related to design of the Project.
X. The term "costs of the Non -Federal Sponsor's Design Coordination Team
Activities" shall mean the costs that are incurred by the Non -Federal Sponsor for Design
Coordination Team Activities on or after October 1, 1996 and before the effective date of
this Agreement, as determined by the Government and subject to an audit for
reasonableness, allocability, and allowability in accordance with Article X.C. of this
Agreement
ARTICLE 11 - OBLIGATIONS OF THE GOVERNMENT AND
THE NON-FEDERAL SPONSOR
A. The Government, subjectto receiving funds appropriated by the Congress of the
United States (hereinafter the "Congress") and using those funds and funds provided by the
Non -Federal Sponsor, expeditiously shall design and construct the Project, except for the
non -Federal work, applying those procedures usually applied to Federal projects, in
accordance with Federal laws, regulations, and policies. The Non -Federal Sponsor
expeditiously shall perform the non -Federal work in accordance with applicable Federal
laws, regulations, and policies.
1. The Government shall not issue the solicitation for the first contract for
design of the Project or commence design of the Project using the Government's own
forces until the Non -Federal Sponsor has confirmed in writing its willingness to proceed
with the Project.
2. The Government shall develop and coordinate as required, an
Environmental Assessment and Finding of No Significant Impact or an Environmental
Impact Statement and Record of Decision, as necessary, to inform the public regarding
the environmental impacts of the Project in accordance with the National Environmental
Policy Act of 1969 (42 U.S.C. 4321-4347; hereinafter "NEPA"). However, neither the
Government nor the Non -Federal Sponsor shall issue the solicitation for the first
construction contract for the Project or commence construction of the Project using its
own forces until all applicable environmental laws and regulations have been complied
with, including, but not limited to NEPA and Section 401 of the Federal Water Pollution
Control Act (33 U.S.C. 1341).
3. The Government shall afford the Non -Federal Sponsor the opportunity
to review and continent on the solicitations for all Government contracts, including
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relevant plans and specifications, prior to the Government's issuance of such
solicitations. To the extent possible, the Government shall afford the Non -Federal
Sponsor the opportunity to review and comment on all proposed contract modifications,
including change orders. In any instance where providing the Non -Federal Sponsor NNrith
notification of a contract modification is not possible prior to execution of the contract
modification, the Government shall provide such notification in writing at the earliest
date possible. To the extent possible, the Government also shall afford the Non -Federal
Sponsor the opportunity to review and comment on all contract claims prior to resolution
thereof. The Government shall consider in good faith the comments of the Non -Federal
Sponsor, but the contents of solicitations, award of contracts or commencement of design
or construction using the Government's own forces, execution of contract modifications,
resolution of contract claims, and performance of all work on the Project, except for the
non -Federal work, shall be exclusively within the control of the Government
4. At the time the District Engineer furnishes the contractor with the
Government's Written Notice of Acceptance of Completed Work for each contract
awarded by the Government for the Project, the District Engineer shall furnish a copy
thereof to the Non -Federal Sponsor.
5_ The Non -Federal Sponsor shall afford the Government the opportunity
to review and comment on the solicitations for all contracts for the non -Federal work,
including relevant plans and specifications, prior to the Non -Federal Sponsor's issuance
of such solicitations. To the extent possible, the Non -Federal Sponsor shall afford the
Government the opportunity to review and comment on all proposed contract
modifications, including change orders. In any instance where providing the Government
with notification of a contract modification is not possible prior to execution of the
contract modification, the Non -Federal Sponsor shall provide such notification in writing
at the earliest date possible. To the extent possible, the Non -Federal Sponsor also shall
afford the Government the opportunity to review and comment on all contract claims
prior to resolution thereof. The Non -Federal Sponsor shall consider in good faith the
comments of the Government but, except as otherwise required in paragraph B.4. of this
Article, the contents of solicitations, award of contracts or commencement of design or
construction using the Nan -Federal Sponsor's own forces, execution of contract
modifications, resolution of contract claims, and performance of all work on the non -
Federal work shall be exclusively within the control of the Non -Federal Sponsor.
b. At the time the Non -Federal Sponsor furnishes a contractor with a
notice of acceptance of completed work for each contract awarded by the Non -Federal
Sponsor for the non -Federal work, the Non -Federal Sponsor shall furnish a copy thereof
to the Government.
7. Notwithstanding paragraph A.3. and paragraph A.5. of this Article, if
the award of any contract for design, construction, or monitoring of the Project, or
continuation d design, construction, or monitoring of the Project using the
Government's or the Non -Federal Sponsor's own forces, would result in total project
costs exceeding $3,120,000, the Government and the Non -Federal Sponsor agree to defer
award of that contract, award of all remaining contracts for design, construction, or
monitoring of the Project; and continuation of design, construction, or monitoring of the
Project using the Government's or the Non -Federal Sponsor's own forces until such time
as the Government and the Non -Federal Sponsor agree in writing to proceed with further
contract awards for the Project or the continuation of design, construction, or monitoring
of the Project using the Government's or the Non -Federal Sponsor's own forces, but in
no event shall the award of contracts or the continuation of design, construction, or
monitoring of the Project using the Government's or the Non -Federal Sponsor's own
forces be deferred for more than three years. Notwithstanding this general provision for
deferral, in the event the Assistant Secretary of the Army (Civil Works) makes a written
determination that the award of such contract or contracts or continuation of design,
construction, or monitoring of the Project using the Government's own forces must
proceed in order to comply with Law or to protect human life or property from imminent
and substantial harm, the Government, after consultation with the Non -Federal Sponsor,
may award a contract or contracts, or continue with design, construction, or monitoring
of the Project using the Government's own forces.
B. The Government shall allocate total project costs between total ecosystem
restoration costs and total recreation costs.
C. The Non -Federal Sponsor shall contribute 25 percent of total ecosystem
restoration costs in accordance with the provisions of this paragraph.
1. In accordance with Article III of this Agreement, the Non -Federal
Sponsor shall provide all lands, easements, and rights-of-way, including those required for
relocations, the borrowing of material, and the disposal of dredged or excavated material,
shall perform or ensure performance of all relocations, and shall construct improvements
required on lands, easements, and rights-of-way to enable the disposal of dredged or
excavated material that the Government determines to be required or to be necessary for
construction, operation, and maintenance of the ecosystem restoration features.
2. The Non -Federal Sponsor shall provide funds in accordance with Article
VI.B. of this Agreement in the amount necessary to meet the Non -Federal Sponsor's
required share of 25 percent of total ecosystem restoration costs if the Government projects
at any time that the collective value of the following contributions that are determined by the
Government to be attributable to the ecosystem restoration features will be less than such
required share: (a) the costs of the Non -Federal. Sponsor's Design Coordination Team
Activities; the value of the Non -Federal Sponsor's contributions under paragraph C. I. of
this Article as determined in accordance with Article IV of this Agreement; and (c) the
value of the Non -Federal Sponsor's contributions under Article V, Article X, and Article
MV.A. of this Agreement.
3. The Government, subject to the availability of funds and as limited by the
Section 1135 Project limit and the Section 1135 Annual Program Limit, shall refund or
reimburse to the Non -Federal Sponsor any contributions in excess of 25 percent of total
ecosystem restoration costs if the Government determines at any time that the collective
value of the following contributions that are determined by the Government to be
attributable to the ecosystem restoration features has exceeded 25 percent of total
ecosystem restoration costs: (a) the value of the Non -Federal Sponsor's contributions under
paragraph C.1. of this Article as determined in accordance with Article IV of this
Agreement; (b) the costs of the Non -Federal Sponsor's Design Coordination Team
Activities; (c) the value of the Non -Federal Sponsor's contributions under paragraph C.2. of
this Article; and (d) the value of the Non -Federal Sponsor's contributions under Article V,
Article X. and Article XIV.A. of this Agreement. After such a determination, the
Government; in its sole discretion, may acquire any remaining lands, easements, and rights-
of-way required for the ecosystem restoration features, perform any remaining relocations
necessary for the ecosystem restoration features, or construct any remaining improvements
required on lands, easements, and rights-of-way to enable the disposal of dredged or
excavated material required for the ecosystem restoration features on behalf of the Non -
Federal Sponsor. Notwithstanding the acquisition of lands, easements, and rights-of-way,
performance of relocations, or construction of improvements required on lands,
easements, and rights-of-way to enable the disposal of dredged or excavated material by the
Government under this paragraph, the Non -Federal Sponsor shall be responsible, as
between the Government and the Non -Federal Sponsor, for any costs of cleanup and
response in accordance with Article XIV.C. of this Agreement.
D. The Non -Federal Sponsor shall contribute 50 percent of total recreation costs in
accordance with the provisions of this paragraph.
1. In accordance with Article III of this Agreement, the Non -Federal
Sponsor shall provide all lands, easements, and rights-of-way, including biose required for
relocations, the borrowing of material, and the disposal of dredged or excavated material,
shall perform or ensure performance of all relocations, and shall construct improvements
required on lands, easements, and rights-of-way to enable the disposal of dredged or
excavated material that the Government determines to be required or to be necessary for
construction, operation, and maintenance of the recreation features.
2. The Non -Federal Sponsor shall provide funds in accordance with Article
VI.B. of this Agreement in the amount necessary to meet the Non -Federal Sponsor's
required share of 50 percent of total recreation costs if the Government projects at any time
that the collective value of the following contributions that are determined by the
Government to be attributable to the recreation features will be less than such required
share: (a) the costs of the Non -Federal Sponsor's Design Coordination Team Activities;
(b) the value of the Non -Federal Sponsor's contributions under paragraph D.1. of this
Article as determined in accordance with Article IV of this Agreement; and (c) the value of
the Non -Federal Sponsor's contributions under Article V, Article X, and Article XIV.A. of
this Agreement
3. The Government, subject to the availability of funds and as limited by
paragraph DA and paragraph R. of this Article, the Section 1135 Project Limit, and the
Section 1135 Annual Program Limit, shall refund or reimburse to the Non -Federal Sponsor
any contributions in excess of 50 percent of total recreation costs if the Government
determines at any time that the collective value of the following contributions that are
determined by the Government to be attributable to the recreation features has exceeded 50
percent of total recreation costs: (a) the value of the Non -Federal Sponsor's contributions
under paragraph D.1. of this Article as determined in accordance with Article IV of this
Agreement; (b) (c) the value of the Non -Federal Sponsor's contributions under paragraph
D.2. of this Article; and (d) the value of the Non -Federal Sponsor's contributions under
Article V, Article X. and Article XIV_A. of this Agreement. After such a determination, the
Government, in its sole discretion, may acquire any remaining lands, easements, and rights-
of-way required for the recreation features, perform any remaining relocations necessary
for the recreation features, or construct any remaining improvements required on lands,
easements, and rights-of-way to enable the disposal of dredged or excavated material
required for the recreation features on behalf of the Non -Federal Sponsor. Notwithstanding
the acquisition of lands, easements, and rights-of-way, performance of relocations, or
construction of improvements required on lands, easements, and rights-of-way to enable
the disposal of dredged or excavated material by the Government under this paragraph, the
Non -Federal Sponsor shall be responsible, as between the Government and the Non -
Federal Sponsor, for any costs of cleanup and response in accordance with Article
XIV.C. of this Agreement.
4. Notwithstanding any other provision of this paragraph, the Government's
share of total recreation costs shall not exceed an amount equal to 10 percent of the
Government's share of total ecosystem restoration costs. The Non -Federal Sponsor shall
be responsible for all total recreation costs in excess of this amount and shall pay any such
costs in accordance with Article VI.B. of this Agreement.
E. Notwithstanding any other provision of this Agreement, Federal financial
participation in the Project is limited by the following provisions of this paragraph.
1. In the event the Government projects that the amount of Federal funds
the Government will make available to the Project through the then -current fiscal year, or
the amount of Federal funds the Government will make available for the Project through
the upcoming fiscal year, is not sufficient to meet the Federal share of total project costs
and the Federal share of costs for data recovery activities associated with historic
preservation in accordance with Article XVII.B.2. and Article XVII.B.3. of this
Agreement that the Government projects to be incurred through the then -current or
upcoming fiscal year, as applicable, the Government shall notify the Non -Federal
Sponsor in writing of such insufficiency of funds and of the date the Government projects
that the Federal funds that will have been made available to the Project will be exhausted.
Upon the exhaustion of Federal funds made available by the Government to the Project,
future performance under this Agreement shall be suspended and the parties shall proceed
in accordance with Article X11I.B. of this Agreement.
2. In accordance with Section 1135 of the Water Resources Development
Act of 1986, Public Law 99-662, as amended (33 U.S.C. 2309a), the Government's total
financial obligations for planning, design, and construction of the Project (except for
costs incurred on behalf of the Non -Federal Sponsor in accordance with paragraph J, of
10
this Article) shall not exceed the Section 1135 Project Limit. Notvsithstanding any other
provision of this Agreement, the Non -Federal Sponsor shall be responsible for all costs in
excess of this limit and shall pay any such costs in accordance with Article VI.B. of this
Agreement.
3. If the Government determines that the total amount of Federal funds
provided by Congress for all projects implemented pursuant to Section 1135 has reached
the Section 1135 Annual Program Limit, and the Government projects that the Federal
funds the Government will make available to the Project within the Section 1135 Annual
Program Limit will not be sufficient to meet the Federal share of total project costs and
the Federal share of costs for data recovery activities associated with historic preservation
in accordance with Article XVII.B.2. and Article XVII.B.3. of this Agreement, the
Government shall notify the Non -Federal Sponsor in writing of such insufficiency of
funds and of the date the Government projects that the Federal funds that will have been
made available to the Project will be exhausted. Upon the exhaustion of Federal funds
made available by the Government to the Project within the Section 1135 Annual
Program Limit, future performance under this Agreement shall be suspended and the
parties shall proceed in accordance with Article XIII.B. of this Agreement.
F. When the District Engineer determines that , except for monitoring, the entire
Project, or a functional portion of the Project, is complete, the District Engineer shall so
notify the Non -Federal Sponsor in writing and furnisb the Non -Federal Sponsor with a
final Operation, Maintenance, Repair, Rehabilitation, and Replacement Manual
(hereinafter the "OMRR&R Manual") or, if the final OMRR&R Manual is not available,
an interim OMRR&R Manual for the entire Project or such completed portion. Upon
such notification, the Government also shall furnish to the Non -Federal Sponsor a copy
of all final as -built drawings for the portion of the Project for which the Government
awarded a construction contract, or the Government constructed using its own forces, if
such drawings are available. Not later than 6 months after such notification by the
Government that the entire Project is complete, the Government shall furnish the Non -
Federal Sponsor with all final as -built drawings for the portion of the Project for which
the Government awarded a construction contract, or the Govemment constructed using its
own forces, and also shall furnish the Non -Federal Sponsor with the final OMRR&R
Manual for the entire Project. In the event all final as -built drawings for the portion of
the Project for which the Government awarded a construction contract, or the
Government constructed using its own forces, or the final OMRR&R Manual for the
entire Project cannot be completed within the 6 month period, the Government shall
provide written notice to the Non -Federal Sponsor, and the Government and the Non -
Federal Sponsor shall negotiate an acceptable completion date for furnishing such
documents. Further, after completion of all contracts for the Project, copies of all of the
Government's and Non -Federal Sponsor's Written Notices of Acceptance of Completed
Work for all contracts for the Project that have not been provided to the other party
previously shall be provided to the Non -Federal Sponsor and/or the Government, as
appropriate.
G. Upon notification from the District Engineer in accordance with paragraph F.
of this Article, the Non -Federal Sponsor shall operate, maintain, repair, rehabilitate, and
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replace the entire Project, or the functional portion of the Project as the case may be, in
accordance with Article VIII of this Agreement.
H. Upon the District Engineer's determination that, except for monitoring, the
entire Project is complete, the Government shall conduct an interim accounting, in
accordance with Article VI.C. of this Agreement, and furnish the results to the Non -Federal
Sponsor. Further, upon conclusion of the period of design and construction the
Government shall amend the interim accounting to complete the final accounting, in
accordance vN ith Article VI.C. of this Agreement. and furnish the results to the Non -Federal
Sponsor.
1. The Non -Federal Sponsor shall not use Federal program funds to meet any of its
obligations for the Project under this Agreement unless the Federal agency providing the
Federal portion of such funds verifies in writing that expenditure of such funds for such
purpose is expressly authorized by Federal law.
1. The Non -Federal Sponsor may request the Government to perform or provide,
on behalf of the Non -Federal Sponsor, one or more of the services (hereinafter the
"additional work) described in this paragraph. Such requests shall be in writing and
shall describe the additional work requested to be performed or provided. if in its sole
discretion the Government elects to perform or provide the requested additional work or
any portion thereof, it shall so notify the Non -Federal Sponsor in a writing that sets forth
any applicable terms and conditions, which must be consistent with this Agreement. In
the event of conflict between such a writing and this Agreement, this Agreement shall
control. The Non -Federal Sponsor shall be solely responsible for all costs of the
additional work performed or provided by the Government under this paragraph and shall
pay all such costs in accordance with Article V1.D. of this Agreement.
1. Acquisition of lands, easements, and rights-of-way; performance of
relocations; or construction of improvements required on lands, easements, and rights-of-
way to enable the disposal of dredged or excavated material for the Project.
Notwithstanding acquisition of lands, easements, and rights-of-way, performance of
relocations, or construction of improvements by the Government, the Non -Federal
Sponsor shall be responsible, as between the Government and the Non -Federal Sponsor,
for any costs of cleanup and response in accordance with Article XIV.C. of this
Agreement.
2. Inclusion of betterments in the design or construction of the Project.
In the event the Government elects to include any such betterments, the Government shall
allocate the costs of the Project features that include betterments between total project
costs and the costs of the betterments.
K. Prior to completion of construction of the ecosystem restoration features, the
Government, in consultation with the Non -Federal Sponsor and, as appropriate, other
concerned agencies, shall finalize the plan for monitoring of the ecosystem restoration
features. The monitoring plan shall describe the specific parameters to be monitored;
12
how these parameters relate to achieving the desired outcomes; methods for measuring
those parameters; frequency and duration of monitoring of the ecosystem restoration
features; criteria for measuring the success of the ecosystem restoration features;
preparation and distribution of monitoring reports and other coordination requirements;
and estimated monitoring costs. As of the effective date of this Agreement, the costs of
monitoring for the ecosystem restoration features are estimated to be $30,000.
L. Upon notification from the District Engineer in accordance with paragraph F.
of this Article that the ecosystem restoration features are complete, the Non -Federal
Sponsor shall perform monitoring of the ecosystem restoration features in accordance
with the monitoring plan for a period of 3 consecutive years from the date of such
notification. The Non -Federal Sponsor's performance of monitoring shall be concurrent
with the Non -Federal Sponsor's performance of operation, maintenance, repair,
rehabilitation, and replacement for the completed ecosystem restoration features. The
monitoring of the ecosystem restoration features by the Non -Federal Sponsor shall end
prior to the expiration of such 5 year period upon the occurrence of either of the
following events: (1) the award of the next contract for monitoring of the ecosystem
restoration features, or continuation of monitoring of the ecosystem restoration features
using the Non -Federal Sponsor's own forces, would result in the costs incurred for
monitoring of the ecosystem restoration features exceeding 1 percent of the amount equal
to total ecosystem restoration costs minus the costs for monitoring of the ecosystem
restoration features; or (2) the District Engineer determines that continued monitoring of
the ecosystem restoration features is not necessary. Any costs of monitoring incurred by
the Non -Federal Sponsor pursuant to this paragraph shall be included in the costs for non -
Federal work subject to an audit in accordance with Article X.C. of this Agreement to .
determine reasonableness, allocability, and allowability of such costs.
M. The Non -Federal Sponsor shall prevent obstructions or encroachments on the
Project (including prescribing and enforcing regulations to prevent such obstructions or
encroachments) such as any new developments on Project lands, easements, and rights-of-
way or the addition of facilities which might reduce the outputs produced by the ecosystem
restoration features, hinder operation and maintenance of the Project, or interfere with the
Project's proper function.
N. The Non -Federal Sponsor shall not use the ecosystem restoration features, or
the lands, easements, and rights-of-way required pursuant to Article HI of this Agreement
for such features, as a wetlands bank or mitigation credit for any other project.
O. The Non -Federal Sponsor shall keep the recreation features, and access roads,
parking areas, and other associated public use facilities, open and available to all on equal
terms.
P. The Government shall determine and include in total project costs any costs
incurred by the Non -Federal Sponsor for non -Federal work, subject to the conditions and
limitations of this paragraph. The Non -Federal Sponsor in a timely manner shall provide
13
the Government with such documents as are sufficient to enable the Government to
determine the amount of costs to be included in total project costs for nor,-Federal work.
1. The Non -Federal Sponsor shall not commence construction of the non-
FederaI work until the designs, detailed plans and specifications, and arrangements for
the prosecution of such work have been approved by the Government. Changesproposed
by the Non -Federal Sponsor to approved designs and plans and specifications also must
be approved by the Government in advance of the related construction. Upon completion
of the non -Federal work, the Non -Federal Sponsor shall furnish to the Govemment a
copy of all final as-built drawings for the construction portion of such work.
2. Non -Federal work shall be subject to an on-site inspection and
certification by the Government that the work was accomplished in a satisfactory manner
and in accordance with the provisions of this Agreement and is suitable for inclusion in
the Project.
3. The Non -Federal Sponsor's costs for non -Federal work that may be
eligible for inclusion in total project costs pursuant to this Agreement shall be subject to
an audit in accordance with Article X.C. of this Agreement to determine the
reasonableness, allocability, and allowability of such costs.
4. The Non -Federal Sponsor's costs for non -Federal work that may be
eligible for inclusion in total project costs pursuant to this Agreement are not subject to
interest charges, nor are they subject to adjustment to reflect changes in price levels
between the time the non -Federal work is completed and the time the costs are included
in total project costs.
5. The Government shall not include in total project costs any costs for
non -Federal work paid by the Non -Federal Sponsor using Federal program funds unless
the Federal agency providing the Federal portion of such funds verifies in writing that
expenditure of such funds for such purpose is expressly authorized by Federal law.
6. The Government shall not include in total project costs any costs for
non -Federal work in excess of the Government's estimate of the costs of the non -Federal
work if the work had been accomplished by the Government.
7. In the performance of the construction portion of the non -Federal
work, the Non -Federal Sponsor must comply with applicable Federal labor laws covering
non -Federal construction, including, but not limited to; 40 U.S.C. 3141-3148 and 40
U.S.C. 3701-3708 (revising, codifying and enacting without substantive change the
provisions of the Davis-Bacon Act (formerly 40 U.S.C. 276a et seq.), the Contract Work
Hours and Safety Standards Act (formerly 40 U.S.C. 327 et seq.), and the Copeland Anti-
Kickback Act (formerly 40 U.S.C. 276c)). Costs for the construction portion of non -
Federal work may be excluded from total project costs by the Government, in whole or
in part, as a result of the Non -Federal Sponsor's failure to comply with its obligations
under these laws.
14
Q. The Government shall afrord credit for the costs of the non -Federal work
toward the Non -Federal Sponsor's contribution of funds required under paragraph C.2.
and paragraph D?. of this Article in accordance with this paragraph.
I . The Government, in accordance with this paragraph, shall afford credit
toward the Non -Federal Sponsor's contribution of funds required under paragraph C.2. of
this Article for the costs of the non -Federal work determined in accordance with
paragraph P. of this Article that are determined by the Government to be attributable to the
ecosystem restoration features. However, the maximum amount of credit that can be
afforded for the non -Federal work that is determined by the Government to be attributable
to the ecosystem restoration features shall not exceed the least of the following amounts
as determined by the Government: the Non -Federal Sponsor's contribution of funds
required under paragraph C.2. of this Article; the costs of the non -Federal work
determined in accordance with paragraph P. of this Article that are determined by the
Government to be attributable to the ecosystem restoration features; or 80 percent of the
Non -Federal Sponsor's share of total ecosystem restoration costs.
2. The Government, in accordance with this paragraph, shall afford credit
toward the Non -Federal Sponsor's contribution of funds required under paragraph D.2. of
this Article for the costs of the non -Federal work determined in accordance with
paragraph P. of this Article that are determined by the Govemment to be attributable to the
recreation features. However, the maximum amount of credit that can be afforded for the
non -Federal work that is determined by the Government to be attributable to the recreation
features shall not exceed the lesser of the following amounts as determined by the
Government: the Non -Federal Sponsor's contribution of funds required under paragraph
D.2. of this Article or the costs of the non -Federal work determined in accordance with
paragraph P. of this Article that are determined by the Government to be attributable to the
recreation features.
R_ Notwithstanding any other provision of this Agreement, the Non -Federal
Sponsor shall not be entitled to reimbursement of any costs of non Federal work
determined in accordance with paragraph P. of this Article and included in total project
costs that exceed the amount of credit afforded for the non -Federal work determined in
accordance with paragraph Q. of this Article and the Non -Federal Sponsor shall be
responsible for 100 percent of all costs of non -Federal work included in total project
costs that exceed the amount of credit afforded.
ARTICLE III - LANDS, EASEMENTS, RIGHTS-OF-WAY,
RELOCATIONS, DISPOSAL AREA IMPROVEMENTS, AND
COMPLIANCE WITH PUBLIC LAW 91-646, AS AMENDED
A. The Goverment, after consultation with the Non -Federal Sponsor, shall
determine the lands, easements, and rights-of-way required for construction, operation, and
maintenance of the Project, including those required for relocations, the borrowing of
material, and the disposal of dredged or excavated material. The Government in a timely
15
manner shall provide the Non -Federal Sponsor w2th general written descriptions, including
maps as appropriate, of the lands, easements, and rights-of-way that the Government
determines the Non -Federal Sponsor must provide, respectively, for the ecosystem
restoration features and for the recreation features, in detail sufficient to enable the Non -
Federal Sponsor to fulfill its obligations under this paragraph, and shall provide the Non -
Federal Sponsor with a written notice to proceed with acquisition of such lands, easements,
and rights-of-way. Prior to the issuance of the solicitation for each Government contract
for construction of the Project, or prior to the Government initiating construction of a
portion of the Project using the Government's own forces, the Non -Federal Sponsor shall
acquire all lands, easements, and rights-of-way the Government determines the Non -
Federal Sponsor must provide for that work and shall provide the Government with
authorization for entry thereto. Furthermore, prior to the end of theperiod of design and
construction, the Non -Federal Sponsor shall acquire all lands, easements, and rights-of-way
required for construction, operation, and maintenance of the Project, as set forth in such
descriptions, and shall provide the Government with authorization for entry thereto. The
Non -Federal Sponsor shall ensure that lands, easements, and rights-of-way that the
Government determines to be required for the Project and that were provided by the Non -
Federal Sponsor are retained in public ownership for uses compatible with the authorized
purposes of the Project.
B. The Government, after consultation with the Non -Federal Sponsor, shall
determine the relocations necessary for construction, operation, and maintenance of the
Project, including those necessary to enable the borrowing of material or the disposal of
dredged or excavated material. The Government in a timely manner shall provide the Non -
Federal Sponsor with general written descriptions, including maps as appropriate, of such
relocations that are necessary, respectively, for the ecosystem restoration features and for
the recreation features in detail sufficient to enable the Non -Federal Sponsor to fulfill its
obligations under this paragraph, and shall provide the Non -Federal Sponsor with a written
notice to proceed with such relocations. Prior to the issuance of the solicitation for each
Government contract for construction of the Project, or prior to the Government initiating
construction of a portion of the Project using the Government's own forces, the Non -
Federal Sponsor shall prepare or ensure the preparation of plans and specifications for, and
perform or ensure the performance of, all relocations the Government determines to be
necessary for that work. Furthermore, prior to the end of the period of design and
construction, the Non -Federal Sponsor shall perform or ensure performance of all
relocations as set forth in such descriptions.
C. The Government, after consultation with the Non -Federal Sponsor, shall
determine the improvements required on lands, easements, and rights-of-way to enable the
disposal of dredged or excavated material associated with construction, operation, and
maintenance of the Project. Such improvements may include, but are not necessarily
limited to, retaining dikes, 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, including maps as
appropriate, of such improvements that are required, respectively, for the ecosystem
restoration features and for the recreation features in detail sufficient to enable the Non -
16
Federal Sponsor to fulfill its obligations under this paragraph, and shall provide the Non -
Federal Sponsor lAith a written notice to proceed with construction of such improvements.
Prior to the issuance of the solicitation for each Government contract for construction of the
Project, or prior to the Government initiating construction of a portion of the Project
using the Government's own forces, the Non -Federal Sponsor shall prepare plans and
specifications for all improvements the Government determines to be required for the
disposal of dredged or excavated material under that contract submit such plans and
specifications to the Government for approval, and provide such improvements in
accordance with the approved plans and specifications, Furthermore, prior to the end of the
period ofdesign and construction, the Non -Federal Sponsor shall provide all improvements
set forth in such descriptions.
D. The Non -Federal Sponsor shall comply with the applicable provisions of the
Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, Public
Law 91-646, as amended (42 U_S.C. 4601-4655), and the Uniform Regulations contained in
49 C.F.R_ Part 24, in acquiring lands, easements, and rights-of-way required for
construction, operation, and maintenance of the Project, including those required for
relocations, the borrowing of material, or the disposal of dredged or excavated material, and
shall inform all affected persons of applicable benefits, policies, and procedures in
connection with said Act.
ARTICLE IV - CREDIT FOR VALUE OF LANDS, EASEMENTS, RIGHTS-OF-WAY,
RELOCATIONS, AND DISPOSAL AREA IMPROVEMENTS
A- The Government shall include in total project costs and afford credit toward the
Non -Federal Sponsor's share of total ecosystem restoration costs for the value of the lands,
easements, and rights-of-way that the Non -Federal Sponsor must provide pursuant to Article
IIIA. of this Agreement for the ecosystem restoration features; for the value of the
relocations that the Non -Federal Sponsor must perform or for which it must ensure
performance pursuant to Article W.B. of this Agreement for the ecosystem restoration
features; and for the value of the improvements required on lands, easements, and rights-of-
way to enable the disposal of dredged or excavated material that the Non -Federal Sponsor
must provide pursuant to Article III.C. of this Agreement for the ecosystem restoration
features. The Government also shall include in total project costs and afford credit toward
the Non -Federal Sponsor's share of total recreation costs for the value of the lands,
easements, and rights-of-way that the Non -Federal Sponsor must provide pursuant to Article
IIIA, of this Agreement for the recreation features; for the value of the relocations that the
Non -Federal Sponsor must perform or for which it must ensure performance pursuant to
Article III.B. of this Agreement for the recreation features; and for the value of the
improvements required on lands, easements, and rights-of-way to enable the disposal of
dredged or excavated material that the Non -Federal Sponsor must provide pursuant to
Article III.C. of this Agreement for the recreation features. However, no amount shall be
included in total project costs, no credit shall be afforded, and no reimbursement shall be
provided for the value of any lands, easements, rights-of-way, relocations, or improvements
required on lands, easements, and rights-of-way to enable the disposal of dredged or
excavated material that have been provided previously as an item of cooperation for another
17
Federal project, including the Existing Project. In addition, no amount shall be included in
total project costs, no credit shall be afforded, and no reimbursement shall be provided for
the value of lards, easements, rights-of-way, relocations, or improvements required on
lands, easements, and rights-of-way to enable the disposal of dredged or excavated material
that tivere acquired or performed using Federal program funds unless the Federal agency
providing the Federal portion of such funds verifies in writing that affording credit for the
value of such items is expressly authorized by Federal law.
B. The Non -Federal Sponsor in a timely manner shall provide the Government with
such documents as are sufficient to enable the Government to determine the value of any
contribution provided pursuant to Article III.A., Article III B., or Article III.C. of this
Agreement. Upon receipt of such documents, the Government in a timely manner shall
determine the value of such contributions for the purpose of including such value in total
project costs and for determining the amount of credit to be afforded or reimbursement to
be provided in accordance with the provisions of this Agreement.
C. For the purposes of determining the value to be included in total project costs
and the amount of credit to be afforded or reimbursement to be provided in accordance
with this Agreement and except as otherwise provided in paragraph G. of this Article, the
value of lands, easements, and rights-of-way, including those required for relocations, the
borrowing of material, and the disposal of dredged or excavated material, shall be the fair
market value of the real property interests, plus certain incidental costs of acquiring those
interests, as determined in accordance with the provisions of this paragraph.
1. Date of Valuation. The fair market value of lands, easements, or rights-
of-way owned by the Non -Federal Sponsor on the effective date of this Agreement shall be
the fair market value of such real property interests as of the date the Non -Federal Sponsor
provides the Government with authorization for entry thereto. However, for lands,
easements, or rights-of-way owned by the Non -Federal Sponsor on the effective date of this
Agreement that are required for the non -Federal work, fair market value shall be the value
of such real property interests as of the date the Non -Federal Sponsor awarded the first
construction contract for the non -Federal work, or, if the Non -Federal Sponsor performed
the construction with its own forces, the date that the Non -Federal Sponsor began
construction of the non -Federal work. The fair market value of lands, easements, or rights-
of-way acquired by the Non -Federal Sponsor after the effective date of this Agreement shall
be the fair market value of such real property interests at the time the interests are acquired.
2. General Valuation Procedure. Except as provided in paragraph C.3. or
paragraph C.5. of this Article, the fair market value of lands, easements, or rights-of-way
shall be determined in accordance with the provisions of this paragraph.
a. The Non -Federal Sponsor shall obtain, for each real property
interest, an appraisal that is prepared by a qualified appraiser who is acceptable to the Non -
Federal Sponsor and the Government. The Non -Federal Sponsor shall provide the
Government with the appraisal no later than 6 months after the Non -Federal Sponsor
provides the Government with an authorization for entry for such real property interest.
18
The appraisal must be prepared in accordance A ith the applicable rules of j ust
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 a second 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's second appraisal, the Non -Federal Sponsor chooses not to obtain
a second appraisal, or the Non -Federal Sponsor does not provide the first appraisal as
required in this paragraph, the Government shall obtain an appraisal, and the fair market
value shall be the amount set forth in the Government's appraisal, if such appraisal is
approved by the 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.
b. Where the amount paid or proposed to be paid by the Non Federal
Sponsor for the real property interest exceeds the amount determined pursuant to paragraph
C.2.a. of this Article, the Government, at the request of the Non -Federal Sponsor, shall
consider all factors relevant to determining fair market value and, in its sole discretion, after
consultation with the Non -Federal Sponsor, may approve in writing an amount greater than
the amount determined pursuant to paragraph C.2.a. of this Article, but not to exceed the
amount actually paid or proposed to be paid. If the Government approves such an amount,
the fair market value shall be the lesser of the approved amount or the amount paid by the
Non -Federal Sponsor, but no less than the amount determined pursuant to paragraph C.2.a.
of this Article.
3. Eminent Domain Valuation Procedure. For lands, easements, or rights-
of-way acquired by eminent domain proceedings instituted after the effective date of this
Agreement, the Non -Federal Sponsor, prior to instituting such proceedings, shall submit to
the Government notification in writing of its intent to institute such proceedings and an
appraisal of the specific real property interests to be acquired in such proceedings. The
Government shall have 60 calendar days after receipt of such a notice and appraisal within
which to review the appraisal, if not previously approved by the Government in writing.
a. If the Government previously has approved the appraisal in
writing, or if the Government provides written approval of, or takes no action on, the
appraisal within such 60 day period, the Non -Federal Sponsor shall use the amount set forth
in such appraisal as the estimate of just compensation for the purpose of instituting the
eminent domain proceeding.
b. If the Government provides written disapproval of the appraisal,
including the reasons for disapproval, within such 60 day period, the Government and the
Non -Federal Sponsor shaA consult in good faith to promptly resolve the issues or areas of
disagreement that are identified in the Government's written disapproval. If, after such
good faith consultation, the Government and the Non -Federal Sponsor agree as to an
19
appropriate amount, then the Non -Federal Sponsor shall use that amount as the estimate of
just compensation for the purpose of instituting the eminent domain proceeding. If after
such good faith consultation, the Goverment and the Non -Federal Sponsor cannot agree as
to an appropriate atnount, 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.
c. For lands, easements, or rights-of-way acquired by eminent
domain proceedings instituted in accordance with paragraph C.3. of this Article; fair market
value shall be either the amount of the court award for the real property interests taken, to
the extent the Government determined such interests are required for construction,
operation, and maintenance of the Project, or the amount of any stipulated settlement or
portion thereof that the Government approves in writing.
4. Incidental Costs. For lands, easements, or rights-of-way acquired by the
Non -Federal 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 such costs. In the event the
Government modifies its determination made pursuant to Article IlI.A, of this
Agreement, the Government shall afford credit for the documented incidental costs
associated with preparing to acquire the lands, easements, or rights-of-way identified in
the original determination, subject to an audit in accordance with Article X.C. of this
Agreement to determine reasonableness, allocability, and allowability of such costs.
Such incidental costs shall include, but not necessarily be limited to, closing and title costs,
appraisal costs, survey costs, attorney's fees, plat maps, mapping costs, actual amounts
expended for payment of any relocation assistance benefits provided in accordance with
Article IIID. of this Agreement, and other payments by the Non -Federal Sponsor for
items that are generally recognized as compensable, and required to be paid, by.
applicable state law due to the acquisition of a real property interest in accordance with
Article III of this Agreement. The value of the interests provided by the Non -Federal
Sponsor in accordance with Article III.A. of this Agreement also shall include the
documented costs of obtaining appraisals pursuant to paragraph C.2. of this Article, as
determined by the Government, and subject to an audit in accordance with Article X.C.
of this Agreement to determine reasonableness, allocability, and allowability of such
costs.
3. Waiver of Appraisal. F,,xcept as required by paragraph C.3. of this
Article, the Government may waive the requirement for an appraisal pursuant to this
paragraph if it determines that an appraisal is unnecessary because the valuation is
uncomplicated and that the estimated fair market value of the real property interest is
$10,000 or less based upon a review of available data. In such event, the Government
and the Non -Federal Sponsor must agree in writing to the value of such real property
interest in an amount not in excess of $10,000.
D. After consultation with the Non -Federal Sponsor, the Government shall
determine the value of relocations in accordance with the provisions of this paragraph.
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 by the salvage value of any
removed items.
2. For a relocarion of a highway, the value shall be only that portion of
relocation costs that would be necessary to accomplish the relocation in accordance with the
design standard that the State of Florida would apply under similar conditions of geography
and traffic load, reduced by the salvage value of any removed items.
3. Relocation costs shall include, but not necessarily be limited to, actual
costs of performing the relocation; planning; engineering and design costs; supervision and
administration costs; and documented incidental costs associated with performance of the
relocation, as determined by the Government Relocation costs shall not include any costs
due to betterments, as determined by the Government, nor any additional cost of using new
material when suitable used material is available. Relocation costs shall be subject to an
audit in accordance with Article X.C. of this Agreement to determine reasonableness,
allocability, and allowability of such costs.
E. The value of the improvements required on lands, easements, and rights-of-way
to enable the disposal of dredged or excavated material shall be the costs of the
improvements, as determined by the Government, subject to an audit in accordance with
Article K.C. of this Agreement to determine reasonableness, allocability, and allowability of
such costs. Such costs shall include, but not necessarily be limited to, actual costs of
providing the improvements; planning, engineering and design costs; supervision and
administration costs; and documented incidental costs associated with providing the
improvements, but shall not include any costs due to betterments, as determined by the
Government
F. Any credit afforded or reimbursement provided under the terms of this
Agreement for the value of relocations, or improvements required on lands, easements,
and rights-of-way to enable the disposal of dredged or excavated material, performed within
the Project boundaries is subject to satisfactory compliance with applicable Federal labor
laws covering non -Federal construction, including, but not limited to, 40 U.S-C. 3141-
3148 and 40 U.S.C. 3701-3708 (revising, codifying and enacting without substantive
change the provisions of the Davis -Bacon Act (formerly 40 U.S.C. 276a et seq.), the
Contract Work Hours and Safety Standards Act (formerly 40 U.S.C. 327 et seq.), and the
Copeland Anti -Kickback Act (formerly 40 U.S.C. 276c)). Notwithstanding any other
provision of this Agreement, credit or reimbursement may be withheld, in whole or in
part, as a result of the Non -Federal Sponsor's failure to comply with its obligations under
these laws.
21
G. Where the Government, on behalf of the Non -Federal Sponsor pursuant to
Article II.J.1. of this Agreement, acquires lands, easements, or rights-of-way, performs
relocations, or constructs improvements required on lands, easements, or rights-of-way to
enable the disposal of dredged or excavated material, the value to be included in total
project costs and the amount of credit to be afforded or the amount of reimbursement
provided in accordance with this Agreement shall be the costs of such work performed or
provided by the Government that are paid by the Non -Federal Sponsor in accordance
with Article VI.D. of this Agreement. In addition, the value to be included in total
project costs and the amount of such credit to be afforded or the amount of
reimbursement provided in accordance with this Agreement shall include the documented
costs incurred by the Non -Federal Sponsor in accordance with the terms and conditions
agreed upon in writing pursuant to Article II.J.1. of this Agreement subject to an audit in
accordance with Article X.C. of this Agreement to determine reasonableness, allocability,
and allowability of such costs.
ARTICLE V - PROJECT COORDINATION TEAM
A. To provide for consistent and effective communication, the Non -Federal Sponsor
and the Government, not later than 30 calendar days after the effective date of this
Agreement, shall appoint named senior representatives to a Project Coordination Team.
Thereafter, the Project Coordination Team shall meet regularly until the end of the period of
design and construction. The Government's Project Manager and a counterpart named by
the Non -Federal Sponsor shall co-chair the Project Coordination Team.
B. The Government's Project Manager and the Non -Federal Sponsor's counterpart
shall keep the Project Coordination Team informed of the progress of design and
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 of the period ofdesign and construction, the Project Coordination
Team shall generally oversee the Project, including matters related to. design; completion
of all necessary environmental coordination and documentation; plans and specifications;
scheduling; real property and relocation requirements; real property acquisition; contract
awards and modifications; contract costs; the application of and compliance with 40
U.S.C. 3141-3148 and 40 U.S.C. 3701-3708 (revising, codifying and enacting without
substantive change the provisions of the Davis -Bacon Act (formerly 40 U.S.C. 276a et
seq.), the Contract Work Hours and Safety Standards Act (formerly 40 U.S.C. 327 et
seq.), and the Copeland Anti -Kickback Act (formerly 40 U.S.C. 276c)) for relocations,
improvements required on lands, easements, and rights-of-way to enable the disposal of
dredged or excavated material, and the construction portion of the non -Federal work, the
investigations to identify the existence and extent of hazardous substances in accordance
with Article XIV.A. of this Agreement; historic preservation activities in accordance with
Article XVU of this Agreement; the Government's cost projections; the performance of
and scheduling for the non -Federal work, final inspection of the entire Project or
22
functional portions of the Project; preparation of the proposed O-MRR&R Manual;
finalization of the monitoring plan; performance of monitoring; anticipated requirements
and needed capabilities for performance of operation, maintenance, repair, rehabilitation,
and replacement of the Project including issuance of permits; and other matters related to
the Project. This oversight of the Project shall be consistent with a project management
plan developed by the Government after consultation ,Nith the Non -Federal Sponsor.
D. The Project Coordination Team may make recommendations to the District
Engineer on matters related to the Project 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
except for the non -Federal work, has the discretion to accept or reject, in whole or in
part, the Project Coordination Teams recommendations. On matters related to the non -
Federal work, that the Project Coordination Team generally oversees, the Project
Coordination Team may make recommendations to the Non -Federal Sponsor including
suggestions to avoid potential sources of dispute. The Non -Federal Sponsor in good faith
shall consider the recommendations of the Project Coordination Team. The Non -Federal
Sponsor, having the legal authority and responsibility for design and construction of the
non -Federal work, has the discretion to accept or reject, in whole or in part, the Project
Coordination Team's recommendations except as otherwise required by the provisions of
this Agreement, including compliance with applicable Federal, State, or local laws or
regulations.
E. The Non -Federal Sponsor's costs of participation in the Project Coordination
Team shall be included in total project costs and shared in accordance with the provisions
of this Agreement, subject to an audit in accordance with Article X.C. of this Agreement
to determine reasonableness, allocability, and allowability of such costs. The
Government's costs of participation in the Project Coordination Team shall be included
in total project costs and shared in accordance with the provisions of this Agreement
ARTICLE VI - METHOD OF PAYMENT
A. In accordance with the provisions of this paragraph, the Government shall
maintain current records and provide to the Non -Federal Sponsor current projections of
costs, financial obligations, contributions provided by the parties, the value included in
total project costs for lands, easements, rights-of-way, relocations, and improvements
required on lands, easements, and rights-of-way to enable the disposal of dredged or
excavated material determined in accordance with Article IV of this Agreement , the
costs included in total project costs for the non -Federal work determined in accordance
with Article H.P. of this Agreement, and the credit to be afforded for the non -Federal
work pursuant to Article II.Q. of this Agreement.
23
I. As of the effective date of this Agreement, total project costs are
projected to be $2,710,000; total ecosystem restoration costs are projected to be
$2.583,500; the Non -Federal Sponsor's contribution of funds required by Article II.C.2.
of this Agreement is projected to be $130,000; total recreation costs are projected to be
$126,500; the Non -Federal Sponsor's contribution of funds required by Article II.D.2.
and Article II.D.4. of this Agreement is projected to be $12,650; the costs included in
total project costs for the non -Federal work determined in accordance with Article U.P.
of this Agreement are projected to be $567,300; the credit to be afforded for the non -
Federal work pursuant to Article II.Q. of this Agreement is projected to be 5516,700 for
the ecosystem restoration features and $50,600 for the recreation features; the Non -
Federal Sponsor's contribution of funds required by Article II.E 2. of this Agreement is
projected to be $ 0 ; the non -Federal proportionate share is projected to be 5.25
percent; the Non -Federal Sponsor's contribution of funds required by Article XVII.B.3.
of this Agreement is projected to be $ 0 ; the value included in total project costs
for lands, easements, rights-of-way, relocations, and improvements required on lands,
easements, and rights-of-way to enable the disposal of dredged or excavated material
determined in accordance with Article IV of this Agreement is projected to be $12,500
for the ecosystem restoration features and $ 0 for the recreation features; and
the Government's total financial obligations for the additional work to be incurred and
the Non -Federal Sponsor's contribution of funds for such costs required by Article II.J. of
this Agreement are projected to be $ 0 . These amounts and percentage are
estimates subject to adjustment by the Govemment, after consultation with the Non -
Federal Sponsor, and are not to be construed as the total financial responsibilities of the
Government and the Non -Federal Sponsor.
2. By July I and by each quarterly anniversary thereof until the
conclusion of the period of design and construction and resolution of all relevant claims
and appeals and eminent domain proceedings, the Government shall provide the Non -
Federal Sponsor with a report setting forth all contributions provided to date and the
current projections of the following: total project costs; total ecosystem restoration costs;
the Non -Federal Sponsor's'total contribution of funds required by Article ll.C.2. of this
Agreement; total recreation costs; the Non -Federal Sponsor's total contribution of fiords
required by Article II.13.2. and Article II.D.4. of this Agreement; the costs included in.
total project costs for the non -Federal work determined in accordance with Article II.P.
of this Agreement; the credit to be afforded for the non -Federal work pursuant to Article
II.Q. of this Agreement; the Non -Federal Sponsor's contribution of funds required by
Article II.E.2. of this Agreement; the non -Federal proportionate share; the Non -Federal
Sponsor's total contribution of funds required by Article XVII.B.3, of this Agreement;
the total contribution of funds required from the Non -Federal Sponsor for the upcoming
contract and upcoming fiscal year; the value included in total project costs for lands,
easements, rights-of-way, relocations, and improvements required on lands, easements,
and rights-of-way to enable the disposal of dredged or excavated material determined in
accordance with Article IV of this Agreement; and the Government's total financial
obligations for additional work incurred and the Non -Federal Sponsor's contribution of
funds for such costs required by Article N.J. of this Agreement.
24
B. The Non -Federal Sponsor shall provide the contributions of funds required by
Article II.C.2., Article II.D.2., Article II.D.4., Article II.E.2., and Article XVII.13.3. of
this Agreement in accordance with the provisions of this paragraph.
1. Not less than 120 calendar days prior to the scheduled date for
issuance of the solicitation for the first contract for design of the Project or
commencement of design of the Project using the Government's own forces, the
Government shall notify the Non -Federal Sponsor in writing of such scheduled date and
the funds the Government determines to be required from the Non -Federal Sponsor, after
consideration of any credit the Goverment projects will be afforded for the non -Federal
work pursuant to Article II.Q. of this Agreement, to meet its projected share under Article
II.C.2., Article II.D.2., Article I13.4., Article II.E.2., and Article XVII.B3. of this
Agreement. Not later than such scheduled date, the Non -Federal Sponsor shall provide
the Government with the full amount of such required funds by delivering a check
payable to "FAO, USAED, JACKSONVILLE" to the District Engineer, or verifying to
the satisfaction of the Government that the Non -Federal Sponsor has deposited such
required funds in an escrow or other account acceptable to the Government, with interest
accruing to the Non -Federal Sponsor, or by presenting the Government with an
irrevocable letter of credit acceptable to the Government for such required funds, or by
providing an Electronic Funds Transfer of such required funds in accordance with
procedures established by the Government
2. The Government shall draw from the funds provided by the Non -
Federal Sponsor such sums as the Government deems necessary, after consideration of
any credit the Government projects will be afforded for the non -Federal work pursuant to
Article II.Q. of this Agreement, to cover: (a) the non -Federal proportionate share of
financial obligations for design and construction incurred prior to the commencement of
the period ofdesign and construction; (b) the non -Federal proportionate share of
financial obligations for design and construction as financial obligations for design and
construction are incurred; and (c) the Non -Federal Sponsor's share of financial
obligations for data recovery activities associated with historic preservation pursuant to
Article XVII.B.3. of this Agreement as those financial obligations are incurred. If at any
time the Government determines that additional funds will be needed from the Non -
Federal Sponsor to cover the Non -Federal Sponsor's share of such financial obligations,
the Government shall notify the Non -Federal Sponsor in writing of the additional funds
required and provide an explanation of why additional funds are required. Within 60
calendar days from receipt of such notice, the Non -Federal Sponsor shall provide the
Government`with the full amount of such additional required funds through any of the
payment mechanisms specified in paragraph B.1. of this Article.
C. Upon the District Engineer's determination that, except for monitoring, the
entire Project is complete and all relevant claims and appeals and eminent domain
proceedings have been resolved, the Government shall conduct an interim accounting and
furnish the results to the Non -Federal Sponsor. Further, upon conclusion of the period of
design and construction and resolution of all relevant claims and appeals, the Government
25
shall amend the interim accounting to complete the final accounting and furnish the results
to the Non -Federal Sponsor. If outstanding relevant claims and appeals prevent a final
accounting from being conducted in a timely manner, the Government shall conduct an
interim accounting or amend the previous interim accounting; as applicable, and furnish
tile Non -Federal Sponsor with written notice of the results of such interim or amended
interim accounting, as applicable. Once all outstanding relevant claims and appeals are
resolved, the Government shall complete the final accounting and furnish the Non -
Federal Sponsor with written notice of the results of such final accounting. The interim
or final accounting, as applicable, shall determine total project costs, total ecosystem
restoration costs, total recreation costs, and the costs of any data recovery activities
associated with historic preservation. In addition, for each set of costs, the interim or final
accounting, as applicable, shall determine each party's required share thereof, and each
party's total contributions thereto as of the date of such accounting.
1. Should the interim or final accounting, as applicable, show that the
Non -Federal Sponsor's total required shares of total ecosystem restoration costs, total
recreation costs, and the costs of any data recovery activities associated with historic
preservation exceed the Non -Federal Sponsor's total contributions provided thereto, the
Non -Federal Sponsor, no later than 90 calendar days after receipt of written notice from
the Government, shall make a payment to the Government in an amount equal to the
difference by delivering a check payable to "FAO, USAED, JACKSONVILLE" to the
District Engineer or by providing an Electronic Funds Transfer in accordance with
procedures established by the Government.
2. Should the interim or final accounting, as applicable, show that the
total contributions provided by the Non -Federal Sponsor for total ecosystem restoration
costs, total recreation costs, and the costs of any data recovery activities associated with
historic preservation exceed the Non -Federal Sponsor's total required shares thereof, the
Government, subject to the availability of funds and as limited by Article II.D.4. and
Article II.R. of this Agreement, the Section 1135 Project Limit, and the Section 1135
Annual Program Limit, shall refund or reimburse the excess amount to the Non -Federal
Sponsor within 90 calendar days of the date of completion of such accounting. In the
event the Non -Federal Sponsor is due a refund or reimbursement and funds are not
available to refund or reimburse the excess amount to the Non -Federal Sponsor, the
Government shall seek such appropriations as are necessary to make the refund or
reimbursement
D. The Non -Federal Sponsor shall provide the contribution of funds required by
Article II.J. of this Agreement for additional work in accordance with the provisions of
this paragraph.
1. Not less than 120 calendar days prior to the scheduled date for the first
financial obligation for additional work, the Government shall notify the Non -Federal
Sponsor in writing of such scheduled date and of the full amount of funds the
Government determines to be required from the Non -Federal Sponsor to cover the costs
of the additional work. No later than 30 calendar days prior to the Government incurring
26
any financial obligation for additional work, the Non -Federal Sponsor shall provide the
Government with the full amount of the funds required to cover the costs of such
additional work through any of the payment mechanisms specified in paragraph B.1. of
this Article.
2. The Government shall draw from the funds provided by the Non -
Federal Sponsor such sums as the Government deems necessary to cover the
Government's financial obligations for such additional work as they are incurred. If at
any time the Government determines that the Non -Federal Sponsor must provide
additional funds to pay for such additional work, the Government shall notify the Non -
Federal Sponsor in writing of the additional funds required and provide an explanation of
why additional funds are required. Within 30 calendar days from receipt of such notice,
the Non -Federal Sponsor shall provide the Government with the full amount of such
additional required funds through any of the payment mechanisms specified in paragraph
B.1. of this Article.
3. At the time the Government conducts the interim or final accounting,
as applicable, the Government shall conduct an accounting of the Government's financial
obligations incurred for additional work and furnish the Non -Federal Sponsor with
written notice of the results of such accounting. If outstanding relevant claims and
appeals or eminent domain proceedings prevent a final accounting of such financial
obligations for additional work from being conducted in a timely manner, the
Government shall conduct an interim accounting of such financial obligations for
additional work and furnish the Non -Federal Sponsor with written notice of the results of
such interim accounting. Once all outstanding relevant claims and appeals and eminent
domain proceedings are resolved, the Government shall amend the interim accounting of
such financial obligations for additional work to complete the final accounting of such
financial obligations for additional work and furnish the Non -Federal Sponsor with
written notice of the results of such final accounting. Such interim or final accounting, as
applicable, shall determine the Government's total financial obligations for additional
work and the Non -Federal Sponsor's contribution of funds provided thereto as of the date
of such accounting.
ARTICLE VII - DISPUTE RESOLUTION
As a condition precedent to a party bringing any suit for breach of this
Agreement, that party must first notify the other party in writing of the nature of the
purported breach and seek in good faith to resolve the dispute through negotiation. If the
parties cannot resolve the dispute through negotiation, they may agree to a mutually
acceptable method of non-binding alternative dispute resolution with a qualified third
party acceptable to both parties. Each party shall pay an equal share of any costs for the
services provided by such a third party as such costs are incurred The existence of a
dispute shalt not excuse the parties from performance pursuant to this Agreement.
27
ARTICLE VIII - OPERATION, MAINTENANCE, REPAIR, REHABILITATION,
AND REPLACEMENT (OMRR&R)
A. Upon receipt of the notification from the District Engineer in accordance with
Article II.F. of this Agreement and for so long as the Project remains authorized, the Non -
Federal Sponsor, pursuant to Article II.G. of this Agreement, shall operate, maintain,
repair, rehabilitate, and replace the entire Project or functional portion of the Project, at no
cost to the Government. The Non -Federal Sponsor shall conduct its operation,
maintenance, repair, rehabilitation, and replacement responsibilities in a manner
compatible with the Project's authorized purposes and in accordance with applicable
Federal and State laws as provided in Article XI of this Agreement and specific directions
prescribed by the Government in the interim or final OMRR&R Manual and any
subsequent amendments thereto.
B. The Non -Federal Sponsor hereby gives the Government a right to enter, at
reasonable times and in a reasonable manner, upon property that the Non -Federal Sponsor
now or hereafter owns or controls for access to the Project for the purpose of inspection and,
if necessary, for the purpose of completing, operating, maintaining, repairing, rehabilitating,
or replacing the Project. If an inspection shows that the Non -Federal Sponsor for any
reason is failing to perform its obligations under this Agreement, the Government shall send
a written notice describing the non-performance to the Non -Federal Sponsor. If, after 30
calendar days from receipt of such written. notice by the Government, the Non -Federal
Sponsor continues to fail to perform, then the Government shall have the right to enter, at
reasonable times and in a reasonable manner, upon property that the Non -Federal Sponsor
now or hereafter owns or controls for the purpose of completing, operating, maintaining,
repairing, rehabilitating, or replacing the Project. No completion, operation, maintenance,
repair, rehabilitation, or replacement by the Government shall relieve the Non -Federal
Sponsor of responsibility to meet the Non -Federal Sponsor's obligations as set forth in this
Agreement, or to preclude the Government from pursuing any other remedy at law or equity
to ensure faithful performance pursuant to this Agreement.
ARTICLE IX — HOLD AND SAVE
Subject to the provisions of Article XIX of this Agreement, the Non -Federal
Sponsor shall hold and save the Government free from all damages arising from design,
construction, monitoring, operation, maintenance, repair, rehabilitation; and replacement of
the Project and any betterments, except for damages due to the fault or negligence of the
Government or its contractors.
ARTICLE X - MAINTENANCE OF RECORDS AND AUDIT
A. Not later than 60 calendar days after the effective date of this Agreement, the
Government and the Non -Federal Sponsor shall develop procedures for keeping books,
records, documents, or other evidence pertaining to costs and expenses incurred pursuant to
28
this Agreement These procedures shall incorporate, and apply as appropriate, the standards
for financial management systems set forth in the Uniform Administrative Requirements for
Grants and Cooperative Agreements to State and Local Governments at 32 C.F.R. Section
33.20. The Government and the Non -Federal Sponsor shall maintain such books, records,
documents, or other evidence in accordance with these procedures and for a minimum of
three years after completion of the accounting for which such books, records, documents, or
other evidence were required. To the extent permitted under applicable Federal laws and
regulations, the Government and the Non -Federal Sponsor shall each allow the other to
inspect such books, records, documents, or other evidence.
B. In accordance with 32 C.F.R. Section 3326, the Non -Federal Sponsor is
responsible for complying with the Single Audit Act Amendments of 1996 (31 U.S.C. 7501-
7507), as implemented by Office of Management and Budget (OMB) Circular No. A-133
and Department of Defense Directive 7600.10. Upon request of the Non -Federal Sponsor
and to the extent permitted under applicable Federal 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
greementThe costs of any non -Federal audits performed in accordance with this paragraph shall be
allocated in accordance with the provisions of OMB Circulars A-87 and A-133, and such
costs as are allocated to the Project shall be included in total project costs and shared in
accordance with the provisions of this Agreement.
C. In accordance with 31 U.S.C. 7503, the Government may conduct audits in
addition to any audit that the Non -Federal Sponsor is required to conduct under the Single
Audit Act Amendments of 1996. Any such Government audits shall be conducted in
accordance with Government Auditing Standards and the cost principles in OMB Circular
No. A-87 and other applicable cost principles and regulations. The costs of Government
audits performed in accordance with this paragraph shall be included in total project costs
and shared in accordance with the provisions of this Agreement.
ARTICLE 3G - FEDERAL AND STATE LAWS
In the exercise of their respective rights and obligations under this Agreement, the
Non -Federal Sponsor and the Government shall comply with all applicable Federal and
State laws and regulations, including, but not limited to: Section 601 of the Civil Rights
Act of 1964, Public Law 88-352 (42 U.S.C. 2000d) and Department of Defense Directive
5500.11 issued pursuant thereto; Army Regulation 600-7, entitled "Nondiscrimination on
the Basis of Handicap in Programs and Activities Assisted or Conducted by the
Department of the Army"; and all applicable Federal labor standards requirements
including, but not limited to, 40 U.S.C. 3141-3148 and 40 U.S.C. 3701-3708 (revising,
codifying and enacting without substantive change the provisions of the Davis -Bacon Act
(formerly 40 U.S.C. 276a et seq.), the Contract Work Hours and Safety Standards Act
(formerly 40 U.S.C. 327 et seq.), and the Copeland Anti -Kickback Act (formerly 40
U.S.C. 276c)).
29
ARTICLE XII - RELATIONSHIP OF PARTIES
A. In the exercise of their respective rights and obligations under this Agreement,
the Government and the Non -Federal Sponsor each act in an independent capacity, and
neither is to be considered the officer, agent, or employee of the other.
B. In the exercise of its rights and obligations under this Agreement, neither party
shall provide, without the consent of the other party, any contractor with a release that
waives or purports to waive any rights the other party may have to seek relief or redress
against that contractor either pursuant to any cause of action that the other party may have or
for violation of any law.
ARTICLE XIII - TERMINATION OR SUSPENSION
A_ If at any time the Non -Federal Sponsor fails to fulfill its obligations under this
Agreement, the Assistant Secretary of the Army (Civil 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 of the United States or is necessary in
order to satisfy agreements with any other non -Federal interests in connection with the
Project.
B. In the event future performance under this Agreement is suspended pursuant
to Article II.E. of this Agreement, such suspension shall remain in effect until such time
that the Government notifies the Non -Federal Sponsor in writing that sufficient Federal
funds are available to meet the Federal share of total project costs and the Federal share
of costs for data recovery activities associated with historic preservation in accordance
with Article XVILB.2. and Article XVII.B.3. of this Agreement the Government projects
to be incurred through the then -current or upcoming fiscal year, or the Government or the
Non -Federal Sponsor elects to terminate this Agreement.
C. In the event that the Government and the Non -Federal Sponsor determine to
suspend future performance under this Agreement in accordance with Article XIV.C_ of
this Agreement, such suspension shall remain in effect until the Government and the
Non -Federal Sponsor agree to proceed or to terminate this Agreement. In the event that
the Government suspends future performance under this Agreement in accordance with
Article XIV.C. of this Agreement due to failure to reach agreement with the Non -Federal
Sponsor on whether to proceed or to terminate this Agreement, or the failure of the Non -
Federal Sponsor to provide funds to pay for cleanup and response costs or to otherwise
discharge the Non -Federal Sponsor's responsibilities under Article ?GV.C. of this
Agreement, such suspension shall remain in effect until: 1) the Government and Non -
Federal Sponsor reach agreement on how to proceed or to terminate this Agreement; 2)
the Non -Federal Sponsor provides funds necessary to pay for cleanup and response costs
and otherwise discharges its responsibilities under Article XIV.C. of this Agreement; 3)
the Government continues work on the Project, or 4) the Government terminates this
Agreement in accordance with the provisions of Article XIV.C. of this Agreement.
30
D. If after completion of the design portion of the Project the parties mutually
agree in writing not to proceed with construction of the Project, the parties shall conclude
their activities relating to the Project and conduct an accounting in accordance with
Article VI.C. of this Agreement.
E. In the event that this Agreement is terminated pursuant to this Article or Article
XIV.C. of this Agreement both parties shall conclude their activities relating to the Project
and conduct an accounting in accordance with Article VI.C. of this Agreement. To provide
for this eventuality, the Government may reserve a percentage of total Federal funds
made available for the Project and an equal percentage of the total funds contributed by
the Non -Federal Sponsor in accordance with Article II.C.2., Article II.D.2., Article
ILDA., Article II.E.2., and Article XVII.B.3. of this Agreement as a contingency to pay
costs of termination, including any costs of resolution of contract claims and contract
modifications.
F. Any termination of this Agreement or suspension of future performance under
this Agreement in accordance with this Article or Article II.E. or Article XIV.C. of this
Agreement shall not relieve the parties of liability for any obligation previously incurred.
Any delinquent payment owed by the Non -Federal Sponsor shall be charged interest at a
rate, to be determined by the Secretary of the Treasury, equal to 150 per centum of the
average bond equivalent rate of the 13 week Treasury bills auctioned immediately prior to
the date on which such payment became delinquent, or auctioned immediately prior to the
beginning of each additional 3 month period if the period of delinquency exceeds 3 months.
ARTICLE XIV - HAZARDOUS SUBSTANCES
A. After execution of this Agreement and upon direction by the District Engineer,
the Non -Federal Sponsor shall perform, or ensure performance of, any investigations for
hazardous substances that the Government or the Non -Federal Sponsor determines to be
necessary to identify the existence and extent of any hazardous substances regulated under
the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C.
9601-9675; hereinafter "CERCLA"), that may exist in, on, or under lands, easements, and
rights-of-way that the Government determines, pursuant to Article III of this Agreement, to
be required for construction, operation, and maintenance of the Project. However, for lands,
easements, and rights-of-way that the Government determines to be subject to the navigation
servitude, only the Government shall perform such investigations unless the District
Engineer provides the Non -Federal Sponsor with prior specific written direction, in which
case the Non -Federal Sponsor shall perform such investigations in accordance with such
written direction.
1. All actual costs incurred by the Non -Federal Sponsor for such
investigations for hazardous substances shall be included in total project costs and shared in
accordance with the provisions of this Agreement, subject to an audit in accordance with
31
Article X.C. of this Agreement to determine reasonableness, allocability, and allowability of
such costs.
2. All actual costs incurred by the Government for such investigations for
hazardous substances shall be included in total project casts and shared in accordance
with the provisions of this Agreement.
B. In the event it is discovered through any investigation, for hazardous substances
or other means that hazardous substances regulated under CERCLA exist in, on, or under
any lands, easements, or rights-of-way that the Government determines; pursuant to Article
III of this Agreement, to be required for construction, operation, and maintenance of the
Project, the Non -Federal Sponsor and the Government, in addition to providing any other
notice required by applicable law, shall provide prompt written notice to each other, and the
Non -Federal Sponsor shall not proceed with the acquisition of the real property interests
until the parties agree that the Non -Federal Sponsor should proceed.
C. The Government and the Non -Federal Sponsor shall determine whether to
initiate construction of the Project, or, if already in constriction, whether to continue with
construction of the Project, suspend future performance under this Agreement, or terminate
this Agreement for the convenience of the Government, in any case where hazardous
substances regulated under CERCLA are found to exist in, on, or under any lands,
easements, or rights -of --way that the Government determines, pursuant to Article Ill of this
Agreement, to be required for construction, operation, and maintenance of the Project.
Should the Government and the Non -Federal Sponsor determine to initiate or continue with
construction of the Project after considering any liability that may arise under CERCLA, the
Non -Federal Sponsor shall be responsible, as between the Government and the Non -Federal
Sponsor, for the costs of cleanup and response, including the costs of any studies and
investigations necessary to determine an appropriate response to the contamination. Such
costs shall not be considered apart of total project costs. In the event the Non -Federal
Sponsor does not reach agreement with the Government on whether to proceed or to
terminate this Agreement under this paragraph, or fails to provide any funds necessary to
pay for cleanup and response costs or to otherwise discharge the Non -Federal Sponsor's
responsibilities under this paragraph upon direction by the Government, the Government, in
its sole discretion, may either terminate this Agreement for the convenience of the
Government, suspend fiiture performance under this Agreement, or continue work on the
Project.
D. The Non -Federal Sponsor and the Government shall consult Uith each other in
accordance with Article V of this Agreement in an effort to ensure that responsible parties
bear any necessary cleanup and response costs as defined in CERCLA. Any decision made
pursuant to paragraph C. of this Article shall not relieve any third party from any liability
that may arise under CERCLA.
E. As between the Government and the Non -Federal Sponsor, the Non -Federal
Sponsor shall be considered the operator of the Project for purposes of CERCLA liability.
To the maximum extent practicable, the Non -Federal Sponsor shall operate, maintain,
32
repair, rehabilitate, and replace the Project in a manner that will not cause liability to arise
under CERCLA.
ARTICLE XV - NOTICES
A. Any notice, request, demand, or other communication required or permitted to be
given under this Agreement shall be deemed to have been duly given if in writing and-
delivered
nddelivered personally or sent by telegram or mailed by first-class, registered, or certified mail,
as follows:
If to the Non -Federal Sponsor:
City Manager
City of Miami
P.O. Box 330708
Miami, Florida 33233-0708
If to the Government:
District Engineer
Jacksonville District
U.S. Army Corps of Engineers
P. 0. Box 4470
Jacksonville. Florida 32232-0014
B. A party may change the address to which such communications are to be
directed by giving written notice to the other party in the manner provided in this Article.
C. Any notice, request, demand, 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 XVI - 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.
33
ARTICLE XVII - HISTORIC PRESERVATION
A. Except as provided in paragraph B. below, the Government shall perform any
identification, survey, or evaluation of historic properties that it determines is necessary
for the Project. Any costs incurred by the Govemment for such work shall be included in
total project costs and shared in accordance with the provisions of this Agreement.
B. In the event that the Government determines that any identification, survey, or
evaluation of historic properties is required for construction of the non -Federal work, and
if the Government and the Non -Federal Sponsor agree in writing that the Non -Federal
Sponsor should perform such identification, survey, or evaluation of historic properties,
the Non -Federal Sponsor shall perform such identification, survey, or evaluation in
accordance with this paragraph and other written directions of the Government.
1. The Non -Federal Sponsor shall ensure that its studies are conducted by
qualified archaeologists, historians, architectural historians and historic architects, as
appropriate, who meet, at a minimum, the Secretary of the Interior's Professional
Qualifications Standards. The Non -Federal Sponsor shall submit study plans and reports
to the Government for review and approval and the Non -Federal Sponsor shall be
responsible for resolving any deficiencies identified by the Government.
2. Any costs of identification, survey, or evaluation of historic properties
incurred by the Non -Federal Sponsor pursuant to this paragraph shall be included in the
costs for non -Federal work subject to an audit in accordance with Article X.C. of this
Agreement to determine reasonableness, allocability, and allowability of such costs.
C. Except as provided in paragraph C.2. below, the Government, as it determines
necessary for the Project, shall perform or ensure the performance of any mitigation
activities or actions for historic properties or that are otherwise associated with historic
preservation including data recovery activities.
1. Any costs incurred by the Government for such mitigation activities,
except for data recovery activities associated with historic preservation, shall be included
in total project costs and shared in accordance with the provisions of this Agreement.
2. In the event that the Government determines that mitigation activities
or actions other than data recovery activities associated with historic preservation are
required for construction of the non -Federal work, and if the Government and the Non -
Federal Sponsor agree in writing that the Non -Federal Sponsor should perform such
activities or actions, the Non -Federal Sponsor shall perform such activities or actions in
accordance with the written directions of the Government. The Non -Federal Sponsor
shall perform the agreed upon activities or actions prior to construction of the non -
Federal work. Any costs incurred by the Non -Federal Sponsor in accordance with the
provisions of this paragraph shall be included in the costs for non -Federal work subject to
34
an audit in accordance with Article X.C. of this Agreement to determine reasonableness,
allocability, and allowability of such costs.
3. As specified in Section 7(a) of Public Law 86-523, as amended by
Public Law 93-291 (16 U.S.C. 469c(a)), the costs of data recovery activities associated
with historic preservation shall be borne entirely by the Government and shall not be
included in total project costs, up to the statutory limit of one percent of the Section 1135
Project Limit.
4. The Government shall not incur costs for data recovery activities
associated with historic preservation that exceed the statutory one percent limit specified
in paragraph C.3. of this Article unless and until the Assistant Secretary of the Army
(Civil Works) has waived that limit and the Secretary of the Interior has concurred in the
waiver in accordance with Section 208(3) of Public Law 96-515, as amended (16 U.S.C.
469c-2(3)).
a. Any costs of data recovery activities associated with historic
preservation that exceed the one percent limit and are determined by the Government to be
attributable to the ecosystem restoration features shall not be included in total project costs
but shall be shared between the Non -Federal Sponsor and the Government consistent with
the cost sharing requirements for Section 1135, as follows: 25 percent will be borne by the
Non -Federal Sponsor and 75 percent will be borne by the Government.
b. Any costs of data recovery activities associated with historic
preservation that exceed the one percent limit and are determined by the Government to be
attributable to the recreation features shall not be included in total project costs but shall be
shared between the Non -Federal Sponsor and the Government consistent with the cost
sharing requirements for recreation, as follows: 50 percent will be home by the Non -Federal
Sponsor and 50 percent will be borne by the Government.
D. If, during its performance of relocations, construction of improvements
required on lands, easements, and rights-of-way to enable the disposal of dredged or
excavated material in accordance with Article III of this Agreement, or performance of the
non -Federal work, the Non -Federal Sponsor discovers historic properties or other cultural
resources that have not been evaluated in accordance with this Article, the Non -Federal
Sponsor shall provide prompt written notice to the Government of such discovery. The
Non -Federal Sponsor shall not proceed with performance of the relocation, construction of
the improvement, or performance of the non -Federal work that is related to such discovery
until the Government provides written notice to the Non -Federal Sponsor that it should
proceed with such work.
ARTICLE XVIII - THIRD PARTY RIGHTS, BENEFITS, OR LIABILITIES
Nothing in this Agreement is intended, nor may be construed, to create any rights,
confer any benefits, or relieve any liability, of any kind whatsoever in any third person
not party to this Agreement.
35
ARTICLE XIX - OBLIGATIONS OF FUTURE APPROPRIATIONS
A. Nothing herein shall constitute, nor be deemed to constitute, an obligation of
future appropriations by the City of Miami of the State of Florida, where creating such
an obligation would be inconsistent with Article IX, Sections 18-500 — 18-542 of the
Miami City Code.
B. The Non -Federal Sponsor intends to fulfill its obligations under this
Agreement. The Non -Federal Sponsor shall include in its budget request or otherwise
propose appropriations of funds in amounts sufficient to fulfill these obligations for that
year, and shall use all reasonable and lawful means to secure those appropriations. The
Non -Federal Sponsor reasonably believes that funds in amounts sufficient to fulfill these
obligations lawfully can and will be appropriated and made available for this purpose. In
the event funds are not appropriated in amounts sufficient to fulfill these obligations, the
Non -Federal Sponsor shall use its best efforts to satisfy any requirements for payments or
contributions of funds under this Agreement from any other source of funds legally
available for this purpose. Further, if the Non -Federal Sponsor is unable to fulfill these
obligations, the Government may exercise any legal rights it has to protect the
Government's interests related to this Agreement
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, which
shall become effective upon the date it is signed by the District Engineer.
DEPARTMENT OF THE ARMY
LIM
Paul L. Grosskruger
Colonel, U.S. Army
District Engineer
CITY OF MIAMI, a municipal
Corporation of the State of Florida
Pedro G. Hernandez
City Manager
DATE: DATE:
36
CERTIFICATE OF AUTHORITY
I, Julie Bru, do hereby certify that I am the principal legal officer of the City of
Miami, Florida, that the City of Miami, Florida is a legally constituted public body with full
authority and legal capability to perform the terms of the Agreement between the
Department of the Army and the City of Miami, Florida in connection with the Virginia Key
Section 1135 Ecosystem Restoration Project, and to pay damages, if necessary, in the event
of the failure to perform in accordance with the terms of this Agreement and that the persons
who have executed this Agreement on behalf of the City of Miami, Florida have acted
v6diin their statutory authority.
IN WITNESS WHEREOF, I have made and executed this certification this
day of 20__
Julie Bru
City Attorney
City of Miami, Florida
37
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 fiords other than Federal appropriated funds have been paid or will be
paid to any person for influencing or attempting to influence an officer or employee of
any agency, a Member of Congress, an officer or employee of Congress, or an employee
of a Member of Congress in connection with this Federal contract, grant, loan; or
cooperative agreement, the undersigned shall complete and submit Standard Form -LLL,
"Disclosure Form to Report Lobbying," in accordance with its instructions.
(3) The undersigned shall require that the language of this certification be
included in -the award documents for all subawards at all tiers (including subcontracts;
subgrants, and contracts under grants, loans, and cooperative agreements) and that all
subrecipients shall certify and disclose accordingly.
This certification is a material representation of fact upon which reliance was
placed when this transaction was made or entered into. Submission of this certification is
a prerequisite for malting or entering into this transaction imposed by 31 U.S.C. 1352.
Any person who fails to file the required certification shall be subject to a civil penalty of
not less than $10,000 and not more than $100,000 for each such failure.
Date:
38
Pedro G. Hernandez
City Manager
City of Miami, Florida
CERTIFICATE OF LEGAL REVIEW
The draft Project Partnership Agreement for the Virginia Key Section 113
Ecosystem Restoration Project has been fully reviewed by Office of Counsel, USAED,
Jacksonville, and is legally sufficient.
District Counsel
K3�
City of Miami, a municipal
Corporation of the State of Florida
ATTEST:
PRISCILLA THOMPSON
CITY CLERK
PEDRO G. HERNANDEZ
CITY MANAGER
APPROVED AS TO INSURANCE REQUIREMENTS:
LEEANN BREHM
RISK MANAGEMENT
APPROVED AS TO FORM AND CORRECTNESS:
JULIE 0. BRU
CITY ATTORNEY
Item: