HomeMy WebLinkAboutPROJECT PARTNERSHIP AGREEMENT BETWEEN THE DEPARTMENT OF THE ARMY AND AUGUSTA, GEORGIA FOR AUGUSTA ROCKY CREEK, GEORGIA FLOOD RISK MANAGEMENT SECTION 205 PROJECT PROJECT PARTNERSHIP AGREEMENT
BETWEEN
THE DEPARTMENT OF THE ARMY
AND
AUGUSTA, GEORGIA
FOR
AUGUSTA ROCKY CREEK, GEORGIA FLOOD RISK MANAGEMENT
SECTION 205 PROJECT
THIS AGREEMENT is entered into this '716 day of Sep , ACU lX
by and between the Department of the Army (hereinafter the "Government"),
represented by the U.S. Army Commander, Savannah District (hereinafter the
"District Commander") and Augusta, Georgia (previously "Augusta-Richmond
County" and hereinafter the "Non-Federal Sponsor"), represented by its Mayor.
WITNESSETH, THAT:
WHEREAS, Section 205 of the Flood Control Act of 1948, as amended
(33 U.S.C. 701s) (hereinafter "Section 205" authorizes the
), Secretary to
undertake construction of small structural and nonstructural flood risk
management projects not specifically authorized by Congress;
WHEREAS, pursuant to the authority provided in Section 205, design and
construction of the Augusta Rocky Creek, Georgia Flood Risk Management
Project (hereinafter the "Project", as defined in Article I.A. of this Agreement) was
approved by the Division Commander for South Atlantic Division on August 8,
2017;
WHEREAS, Section 103 of the Water Resources Development Act of 1986,
Public Law 99-662, as amended (33 U.S.C. 2213), specifies the cost-sharing
requirements applicable to the Project;
WHEREAS, total Federal costs associated with planning, design, and
construction of a project pursuant to Section 205 may not exceed $10,000,000;
and
WHEREAS, the Government and the Non-Federal Sponsor have the full
authority and capability to perform in accordance with the terms of this
Agreement and acknowledge that Section 221 of the Flood Control Act of 1970,
as amended (42 U.S.C. 1962d-5b), provides that this Agreement shall be
enforceable in the appropriate district court of the United States.
NOW, THEREFORE, the parties agree as follows:
ARTICLE I - DEFINITIONS
A. The term "Project" means flood risk management features consisting of
structural features consisting of conversion of the existing breached Rosedale
dam to a stormwater detention structure, a low-level 5 feet wide x 6 feet high
culvert outlet set to 1 foot below the controlling invert elevation of 216.7 feet
NAVD 88, a spillway crest set (notch) at elevation 232 feet NAVD 88, a detention
structure set at elevation 240 feet NAVD 88, and installation of riprap inlet and
outfall protection; non-structural features consisting of the acquisition of 5 parcels
located north of Gordon Highway on Kissingbower Road and Haynie Street,
across from the Regency Mall; and recreation features consisting of a
recreational park that is approximately 1.32 acres and located on the acquired 5
parcels, as generally described in the Augusta Rocky Creek, Georgia Flood Risk
Management Section 205 Feasibility Study, dated June 2017 and approved by
the Division Commander for South Atlantic Division on August 8, 2017
(hereinafter the "Decision Document").
B. The term "construction costs" means all costs incurred by the Government
and Non-Federal Sponsor in accordance with the terms of this Agreement that
are directly related to design and construction of the Project and cost shared.
The term includes, but is not necessarily limited to: the Government's costs of
engineering, design, and construction; the Government's supervision and
administration costs; the Non-Federal Sponsor's creditable costs for providing
real property interests, placement area improvements, and relocations and for
providing in-kind contributions, if any; and the costs of historic preservation
activities except for data recovery for historic properties. The term does not
include any costs for operation, maintenance, repair, rehabilitation, or
replacement; dispute resolution; participation in the Project Coordination Team;
audits; or betterments; or the Non-Federal Sponsor's cost of negotiating this
Agreement.
C. The term "real property interests" means lands, easements, and rights-of-
way, including those required for relocations and borrow and dredged material
placement areas. Acquisition of real property interests may require the
performance of relocations.
D. The term "relocation" means the provision of a functionally equivalent
facility to the owner of a utility, cemetery, highway, railroad (excluding existing
railroad bridges and approaches thereto), or public facility when such action is
required in accordance with applicable legal principles of just compensation.
Providing a functionally equivalent facility may include the alteration, lowering,
raising, or replacement and attendant demolition of the affected facility or part
thereof.
E. The term "placement area improvements" means the improvements
required on real property interests to enable the ancillary placement of material
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that has been dredged or excavated during construction, operation, and
maintenance of the Project, including, but not limited to, retaining dikes, waste
weirs, bulkheads, embankments, monitoring features, stilling basins, and de-
watering pumps and pipes.
F. The term "functional portion thereof" means a portion of the Project that
has been completed and that can function independently, as determined in
writing by the District Commander, although the remainder of the Project is not
yet complete.
G. The term "in-kind contributions" means those materials or services
provided by the Non-Federal Sponsor that are identified as being integral to the
Project by the Division Commander for South Atlantic Division. To be integral to
the Project, the material or service must be part of the work that the Government
would otherwise have undertaken for design and construction of the Project. The
in-kind contributions also include any investigations performed by the Non-
Federal Sponsor to identify the existence and extent of any hazardous
substances that may exist in, on, or under real property interests required for the
Project.
H. The term "betterment" means a difference in design or construction of an
element of the Project that results from the application of standards that the
Government determines exceed those that the Government would otherwise
apply to design or construction of that element.
I. The term "fiscal year" means one year beginning on October 1st and
ending on September 30th of the following year.
J. The term "Federal Participation Limit" means the $10,000,000 statutory
limitation on the Government's financial participation in the planning, design, and
construction of the Project.
ARTICLE II - OBLIGATIONS OF THE PARTIES
A. In accordance with Federal laws, regulations, and policies, the
Government shall undertake design and construction of the Project using funds
appropriated by the Congress and funds provided by the Non-Federal Sponsor.
B. The Non-Federal Sponsor shall contribute a minimum of 35 percent of
construction costs, up to a maximum of 50 percent of construction costs
allocated by the Government to structural flood risk management; 35 percent of
construction costs allocated by the Government to nonstructural flood risk
management; and 50 percent of construction costs allocated by the Government
to recreation, as follows:
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1. The Non-Federal Sponsor shall pay 5 percent of construction costs
allocated to structural flood risk management.
2. In accordance with Article III, the Non-Federal Sponsor shall provide
the real property interests, placement area improvements, and relocations
required for construction, operation, and maintenance of the Project. If the
Government determines that the Non-Federal Sponsor's estimated credits for
real property interests, placement area improvements, and relocations will
exceed 45 percent of construction costs allocated to structural flood risk
management or 35 percent of construction costs allocated to nonstructural flood
risk management, the Government, in its sole discretion, may acquire any of the
remaining real property interests, construct any of the remaining placement area
improvements, or perform any of the remaining relocations for such flood risk
management features with the cost of such work included as part of the
Government's cost of construction. Nothing in this provision affects the Non-
Federal Sponsor's responsibility under Article IV for the costs of any cleanup and
response related thereto.
3. In providing in-kind contributions, if any, the Non-Federal Sponsor shall
obtain all applicable licenses and permits necessary for such work. As functional
portions of the work are completed, the Non-Federal Sponsor shall begin
operation and maintenance of such work. Upon completion of the work, the Non-
Federal Sponsor shall so notify the Government and provide the Government
with a copy of as-built drawings for the work.
4. After determining the amount to meet the 5 percent required by
paragraph B.1., above, for the current fiscal year and after considering the
estimated amount of credit that will be afforded to the Non-Federal Sponsor
pursuant to paragraphs B.2. and B.3., above, the Government shall determine
the estimated additional amount of funds required from the Non-Federal Sponsor
to meet its minimum 35 percent cost share for structural flood risk management
for the current fiscal year, its 35 percent cost share for nonstructural flood risk
management for the current fiscal year, and its 50 percent cost share for
recreation for the current fiscal year. No later than 30 calendar days after receipt
of notification from the Government, the Non-Federal Sponsor shall provide the
full amount of such required funds to the Government in accordance with Article
VI.
5. No later than August 1st prior to each subsequent fiscal year, the
Government shall provide the Non-Federal Sponsor with a written estimate of the
full amount of funds required from the Non-Federal Sponsor during that fiscal
year to meet its cost share based on costs allocated by structural and
nonstructural features and project purpose. Not later than September 1St prior to
that fiscal year, the Non-Federal Sponsor shall provide the full amount of such
required funds to the Government.
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C. To the extent practicable and in accordance with Federal law, regulations,
and policies, the Government shall afford the Non-Federal Sponsor the
opportunity to review and comment on solicitations for contracts, including
relevant plans and specifications, prior to the Government's issuance of such
solicitations; proposed contract modifications, including change orders; and
contract claims prior to resolution thereof. Ultimately, the contents of
solicitations, award of contracts, execution of contract modifications, and
resolution of contract claims shall be exclusively within the control of the
Government.
D. The Government, as it determines necessary, shall undertake actions
associated with historic preservation, including, but not limited to, the
identification and treatment of historic properties as those properties are defined
in the National Historic Preservation Act (NHPA) of 1966, as amended. All costs
incurred by the Government for such work (including the mitigation of adverse
effects other than data recovery) shall be included in construction costs and
shared in accordance with the provisions of this Agreement. If historic properties
are discovered during construction and the effect(s) of construction are
determined to be adverse, strategies shall be developed to avoid, minimize or
mitigate these adverse effects. In accordance with 54 U.S.C. 312507, up to 1
percent of the total amount authorized to be appropriated for the Project may be
applied toward data recovery of historic properties and such costs shall be borne
entirely by the Government. In the event that costs associated with data
recovery of historic properties exceed 1 percent of the total amount authorized to
be appropriated for the Project, the Government and Non-Federal Sponsor shall
consult with each other and reach an agreement on how to fund such data
recovery costs. Upon agreement in accordance with 54 U.S.C. 312508, the
Government may seek a waiver from the 1 percent limitation under 54 U.S.C.
312507.
E. When the District Commander determines that construction of the Project,
or a functional portion thereof, is complete, the District Commander shall so
notify the Non-Federal Sponsor in writing and the Non-Federal Sponsor, at no
cost to the Government, shall operate, maintain, repair, rehabilitate, and replace
the Project, or such functional portion thereof. The Government shall furnish the
Non-Federal Sponsor with an Operation, Maintenance, Repair, Rehabilitation,
and Replacement Manual (hereinafter the "OMRR&R Manual") and copies of all
as-built drawings for the completed work.
1. The Non-Federal Sponsor shall conduct its operation, maintenance,
repair, rehabilitation, and replacement responsibilities in a manner compatible
with the authorized purpose of the Project and in accordance with applicable
Federal laws and specific directions prescribed by the Government in the
OMRR&R Manual and any subsequent updates or amendments thereto.
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2. The Government may enter, at reasonable times and in a reasonable
manner, upon real property interests that the Non-Federal Sponsor now or
hereafter owns or controls to inspect the Project, and, if necessary, to undertake
any work necessary to the functioning of the Project for its authorized purpose. If
the Government determines that the Non-Federal Sponsor is failing to perform its
obligations under this Agreement and the Non-Federal Sponsor does not correct
such failures within a reasonable time after notification by the Government, the
Government, at its sole discretion, may undertake any operation, maintenance,
repair, rehabilitation, or replacement of the Project. No operation, maintenance,
repair, rehabilitation, or replacement by the Government shall relieve the Non-
Federal Sponsor of its obligations under this Agreement or preclude the
Government from pursuing any other remedy at law or equity to ensure faithful
performance of this Agreement.
F. Not less than once each year, the Non-Federal Sponsor shall inform
affected interests of the extent of risk reduction afforded by the Project.
G. The Non-Federal Sponsor shall participate in and comply with applicable
Federal floodplain management and flood insurance programs.
H. In accordance with Section 402 of the Water Resources Development Act
of 1986, as amended (33 U.S.C. 701b-12), the Non-Federal Sponsor shall
prepare a floodplain management plan for the Project within one year after the
effective date of this Agreement and shall implement such plan not later than one
year after completion of construction of the Project. The plan shall be designed
to reduce the impacts of future flood events in the project area, including but not
limited to, addressing those measures to be undertaken by non-Federal interests
to preserve the level of flood risk reduction provided by such work. The Non-
Federal Sponsor shall provide an information copy of the plan to the
Government.
I. The Non-Federal Sponsor shall publicize floodplain information in the area
concerned and shall provide this information to zoning and other regulatory
agencies for their use in adopting regulations, or taking other actions, to prevent
unwise future development and to ensure compatibility with the Project.
J. The Non-Federal Sponsor shall prevent obstructions or encroachments on
the Project (including prescribing and enforcing regulations to prevent such
obstructions or encroachments) that might reduce the level of flood risk reduction
the Project affords, hinder operation and maintenance of the Project, or interfere
with the Project's proper function.
K. The Non-Federal Sponsor shall not use Federal Program funds to meet
any of its obligations under this Agreement unless the Federal agency providing
the funds verifies in writing that the funds are authorized to be used for the
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Project. Federal program funds are those funds provided by a Federal agency,
plus any non-Federal contribution required as a matching share therefor.
L. In carrying out its obligations under this Agreement, the Non-Federal
Sponsor shall comply with all the requirements of applicable Federal laws and
implementing regulations, including, but not limited to: Section 601 of the Civil
Rights Act of 1964 (P.L. 88-352), as amended (42 U.S.C. 2000d), and
Department of Defense Directive 5500.11 issued pursuant thereto; the Age
Discrimination Act of 1975 (42 U.S.C. 6102); and the Rehabilitation Act of 1973,
as amended (29 U.S.C. 794), and Army Regulation 600-7 issued pursuant
thereto.
M. In addition to the ongoing, regular discussions of the parties in the delivery
of the Project, the Government and the Non-Federal Sponsor may establish a
Project Coordination Team to discuss significant issues or actions. The
Government's costs for participation on the Project Coordination Team shall not
be included in construction costs that are cost shared but shall be included in
calculating the Federal Participation Limit. The Non-Federal Sponsor's costs for
participation on the Project Coordination Team shall not be included in
construction costs that are cost shared and shall be paid solely by the Non-
Federal Sponsor without reimbursement or credit by the Government.
N. Notwithstanding any other provision of this Agreement, the Non-Federal
Sponsor shall be responsible for all costs in excess of the Federal Participation
Limit.
O. The Non-Federal Sponsor may request in writing that the Government
perform betterments on behalf of the Non-Federal Sponsor. Each request shall
be subject to review and written approval by the Division Commander for the
South Atlantic Division. If the Government agrees to such request, the Non-
Federal Sponsor, in accordance with Article VI.F., must provide funds sufficient
to cover the costs of such work in advance of the Government performing the
work.
ARTICLE III - REAL PROPERTY INTERESTS, PLACEMENT AREA
IMPROVEMENTS, RELOCATIONS, AND COMPLIANCE WITH
PUBLIC LAW 91-646, AS AMENDED
A. The Government, after consultation with the Non-Federal Sponsor, shall
determine the real property interests needed for construction, operation, and
maintenance of the Project. The Government shall provide the Non-Federal
Sponsor with general written descriptions, including maps as appropriate, of the
real property interests that the Government determines the Non-Federal Sponsor
must provide for construction, operation, and maintenance of the Project, and
shall provide the Non-Federal Sponsor with a written notice to proceed with
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acquisition. The Non-Federal Sponsor shall acquire the real property interests
and shall provide the Government with authorization for entry thereto in
accordance with the Government's schedule for construction of the Project. The
Non-Federal Sponsor shall ensure that real property interests provided for the
Project 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 placement area improvements necessary for construction,
operation, and maintenance of the Project, and shall provide the Non-Federal
Sponsor with general written descriptions, including maps as appropriate, of such
improvements and shall provide the Non-Federal Sponsor with a written notice to
proceed with such improvements. The Non-Federal Sponsor shall construct the
improvements in accordance with the Government's construction schedule for
the Project.
C. The Government, after consultation with the Non-Federal Sponsor, shall
determine the relocations necessary for construction, operation, and
maintenance of the Project, and shall provide the Non-Federal Sponsor with
general written descriptions, including maps as appropriate, of such relocations
and shall provide the Non-Federal Sponsor with a written notice to proceed with
such relocations. The Non-Federal Sponsor shall perform or ensure the
performance of these relocations in accordance with the Government's
construction schedule for the Project.
D. To the maximum extent practicable, not later than 30 calendar days after
the Government provides to the Non-Federal Sponsor written descriptions and
maps of the real property interests, placement area improvements, and
relocations required for construction, operation, and maintenance of the Project,
the Non-Federal Sponsor may request in writing that the Government acquire all
or specified portions of such real property interests, construct placement area
improvements, or perform the necessary relocations. If the Government agrees
to such a request, the Non-Federal Sponsor, in accordance with Article VI.F.,
must provide funds sufficient to cover the costs of the acquisitions, placement
area improvements, or relocations in advance of the Government performing the
work. The Government shall acquire the real property interests, construct the
placement area improvements, and perform the relocations, applying Federal
laws, policies, and procedures. The Government shall acquire real property
interests in the name of the Non-Federal Sponsor except, if acquired by eminent
domain, the Government shall convey all of its right, title and interest to the Non-
Federal Sponsor by quitclaim deed or deeds. The Non-Federal Sponsor shall
accept delivery of such deed or deeds. The Government's providing real
property interests, placement area improvements, or performing relocations on
behalf of the Non-Federal Sponsor does not alter the Non-Federal Sponsor's
responsibility under Article IV for the costs of any
cleanup and response related thereto.
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E. As required by Sections 210 and 305 of the Uniform Relocation Assistance
and Real Property Acquisition Policies Act of 1970, Public Law 91-646, as
amended (42 U.S.C. 4630 and 4655), and Section 24.4 of the Uniform
Regulations contained in 49 C.F.R. Part 24, the Non-Federal Sponsor assures
that (1) fair and reasonable relocation payments and assistance shall be
provided to or for displaced persons, as are required to be provided by a Federal
agency under Sections 4622, 4623 and 4624 of Title 42 of the U.S. Code; (2)
relocation assistance programs offering the services described in Section 4625 of
Title 42 of the U.S. Code shall be provided to such displaced persons; (3) within
a reasonable period of time prior to displacement, comparable replacement
dwellings will be available to displaced persons in accordance with Section
4625(c)(3) of Title 42 of the U.S. Code; (4) in acquiring real property, the Non-
Federal Sponsor will be guided, to the greatest extent practicable under State
law, by the land acquisition policies in Section 4651 and the provision of Section
4652 of Title 42 of the U.S. Code; and (5) property owners will be paid or
reimbursed for necessary expenses as specified in Sections 4653 and 4654 of
Title 42 of the U.S. Code.
ARTICLE IV- HAZARDOUS SUBSTANCES
A. The Non-Federal Sponsor shall be responsible for undertaking any
investigations to identify the existence and extent of any hazardous substances
regulated under the Comprehensive Environmental Response, Compensation,
and Liability Act (hereinafter"CERCLA") (42 U.S.C. 9601-9675), that may exist
in, on, or under real property interests required for construction, operation, and
maintenance of the Project. However, for real property interests that the
Government determines to be subject to the navigation servitude, only the
Government shall perform such investigations unless the District Commander
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.
B. In the event it is discovered that hazardous substances regulated under
CERCLA exist in, on, or under any of the required real property interests, 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
such real property interests until the parties agree that the Non-Federal Sponsor
should proceed.
C. If hazardous substances regulated under CERCLA are found to exist in,
on, or under any required real property interests, the parties shall consider any
liability that might arise under CERCLA and determine whether to initiate
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construction, or if already initiated, whether to continue construction, suspend
construction, or terminate construction.
1. Should the parties initiate or continue construction, 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 be paid solely by the Non-Federal Sponsor
without reimbursement or credit by the Government.
2. In the event the parties cannot reach agreement on how to proceed or
the Non-Federal Sponsor 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 Article upon direction by the Government, the
Government may suspend or terminate construction, but may undertake any
actions it determines necessary to avoid a release of such hazardous
substances.
D. The Non-Federal Sponsor and the Government shall consult with each
other in an effort to ensure that responsible parties bear any necessary cleanup
and response costs as defined in CERCLA. Any decision made pursuant to 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, repair, rehabilitate, and replace the Project in a manner
that will not cause liability to arise under CERCLA.
ARTICLE V - CREDIT FOR REAL PROPERTY INTERESTS, PLACEMENT
AREA IMPROVEMENTS, RELOCATIONS, AND IN-KIND CONTRIBUTIONS
A. The Government shall include in construction costs, and credit towards the
Non-Federal Sponsor's share of such costs, the value of Non-Federal Sponsor
provided real property interests, placement area improvements, and relocations,
and the costs of in-kind contributions determined by the Government to be
required for construction, operation, and maintenance of the Project.
B. To the maximum extent practicable, no later than 6 months after it
provides the Government with authorization for entry onto a real property interest
or pays compensation to the owner, whichever occurs later, the Non-Federal
Sponsor shall provide the Government with documents sufficient to determine
the amount of credit to be provided for the real property interest in accordance
with paragraphs C.1. of this Article. To the maximum extent practicable, no less
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frequently than on a biannual basis, the Non-Federal Sponsor shall provide the
Government with documentation sufficient for the Government to determine the
amount of credit to be provided for other creditable items in accordance with
paragraph C. of this Article.
C. The Government and the Non-Federal Sponsor agree that the amount of
costs eligible for credit that are allocated by the Government to construction
costs shall be determined and credited in accordance with the following
procedures, requirements, and conditions. Such costs shall be subject to audit in
accordance with Article X.B. to determine reasonableness, allocability, and
allowability of costs.
1. Real Property Interests.
a. General Procedure. The Non-Federal Sponsor shall obtain, for each
real property interest, an appraisal of the fair market value of such interest that is
prepared by a qualified appraiser who is acceptable to the parties. Subject to
valid jurisdictional exceptions, the appraisal shall conform to the Uniform
Standards of Professional Appraisal Practice. The appraisal must be prepared in
accordance with the applicable rules of just compensation, as specified by the
Government.
(1) Date of Valuation. For real property interests owned by the
Non-Federal Sponsor on the effective date of this Agreement, the date the Non-
Federal Sponsor provides the Government with authorization for entry thereto
shall be used to determine the fair market value, except for such real property
interests for in-kind contributions covered by an In-Kind Memorandum of
Understanding, the date of initiation of construction shall be used to determine
the fair market value. The fair market value of real property interests 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) Except for real property interests acquired through eminent
domain proceedings instituted after the effective date of this Agreement, the Non-
Federal Sponsor shall submit an appraisal for each real property interest to the
Government for review and approval no later than, to the maximum extent
practicable, 60 calendar days after the Non-Federal Sponsor provides the
Government with an authorization for entry for such interest or concludes the
acquisition of the interest through negotiation or eminent domain proceedings,
whichever occurs later. If after coordination and consultation with the
Government, the Non-Federal Sponsor is unable to provide an appraisal that is
acceptable to the Government, the Government shall obtain an appraisal to
determine the fair market value of the real property interest for crediting
purposes.
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•
(3) The Government shall credit the Non-Federal Sponsor the
appraised amount approved by the Government. Where the amount paid or
proposed to be paid by the Non-Federal Sponsor exceeds the approved
appraised amount, 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 appraised amount for crediting purposes.
b. Eminent Domain Procedure. For real property interests acquired by
eminent domain proceedings instituted after the effective date of this Agreement,
the Non-Federal Sponsor shall notify the Government in writing of its intent to
institute such proceedings and submit the appraisals of the specific real property
interests to be acquired for review and approval by the Government. If the
Government provides written approval of the appraisals, the Non-Federal
Sponsor shall use the amount set forth in such appraisals as the estimate of just
compensation for the purpose of instituting the eminent domain proceeding. If
the Government provides written disapproval of the appraisals, the Government
and the Non-Federal Sponsor shall consult to promptly resolve the issues that
are identified in the Government's written disapproval. In the event the issues
cannot be resolved, the Non-Federal Sponsor may use the amount set forth in its
appraisal as the estimate of just compensation for purpose of instituting the
eminent domain proceeding. The fair market value for crediting purposes shall
be either the amount of the court award for the real property interests taken or
the amount of any stipulated settlement or portion thereof that the Government
approves in writing.
c. Waiver of Appraisal. Except as required by paragraph C.1.b. of this
Article, the Government may waive the requirement for an appraisal pursuant to
this paragraph if, in accordance with 49 C.F.R. Section 24.102(c)(2):
(1) the owner is donating the property to the Non-Federal Sponsor
and releases the Non-Federal Sponsor in writing from its obligation to appraise
the property, and the Non-Federal Sponsor submits to the Government a copy of
the owner's written release; or
(2) the Non-Federal Sponsor determines that an appraisal is
unnecessary because the valuation problem is uncomplicated and the
anticipated value of the property proposed for acquisition is estimated at $10,000
or less, based on a review of available data. When the Non-Federal Sponsor
determines that an appraisal is unnecessary, the Non-Federal Sponsor shall
prepare the written waiver valuation required by 49 C.F.R. Section 24.102(c)(2)
and submit a copy thereof to the Government for approval.
d. Incidental Costs. The Government shall include in construction
costs and credit towards the Non-Federal Sponsor's share of such costs, the
incidental costs the Non-Federal Sponsor incurred in acquiring any real property
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interests required pursuant to Article III for construction, operation, and
maintenance of the Project within a five year period preceding the effective date
of this Agreement, or at any time after the effective date of this Agreement, that
are documented to the satisfaction of the Government. Such incidental costs
shall include 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 III.E., 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 pursuant to Article III.
2. Placement Area Improvements. The Government shall include in
construction costs and credit towards the Non-Federal Sponsor's share of such
costs, the value of placement area improvements required for construction,
operation, and maintenance of the Project. The value shall be equivalent to the
costs, documented to the satisfaction of the Government, that the Non-Federal
Sponsor incurred to provide any placement area improvements required for
construction, operation, and maintenance of the Project. Such costs shall
include, but not necessarily be limited to, actual costs of constructing 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 associated with betterments,
as determined by the Government.
3. Relocations. The Government shall include in construction costs and
credit towards the Non-Federal Sponsor's share of such costs, the value of any
relocations performed by the Non-Federal Sponsor that are directly related to
construction, operation, and maintenance of the Project.
a. 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.
b. For a relocation of a highway, which is any highway, roadway, or
street, including any bridge thereof, that is owned by a public entity, 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 Georgia would apply under similar conditions of geography and traffic load,
reduced by the salvage value of any removed items.
c. Relocation costs include 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 do not include any costs
13
associated with betterments, as determined by the Government, nor any
additional cost of using new material when suitable used material is available.
4. In-Kind Contributions. The Government shall include in construction
costs and credit towards the Non-Federal Sponsor's share of such costs, the
value of in-kind contributions that are integral to design, construction, operation,
and maintenance of the Project.
a. The value shall be equivalent to the costs, documented to the
satisfaction of the Government, that the Non-Federal Sponsor incurred to provide
the in-kind contributions. Such costs shall include, but not necessarily be limited
to, actual costs of constructing the in-kind contributions; engineering and design
costs; supervision and administration costs; and documented incidental costs
associated with providing the in-kind contributions, but shall not include any costs
associated with betterments, as determined by the Government. Appropriate
documentation includes invoices and certification of specific payments to
contractors, suppliers, and the Non-Federal Sponsor's employees.
b. No credit shall be afforded for interest charges, or any adjustment to
reflect changes in price levels between the time the in-kind contributions are
completed and credit is afforded; for the value of in-kind contributions obtained at
no cost to the Non-Federal Sponsor; for any in-kind contributions performed prior
to the effective date of this Agreement unless covered by an In-Kind
Memorandum of Understanding between the Government and Non-Federal
Sponsor; or for costs that exceed the Government's estimate of the cost for such
in-kind contributions if they had been provided by the Government.
5. Compliance with Federal Labor Laws. Any credit afforded under the
terms of this Agreement 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 (labor standards originally
enacted as the Davis-Bacon Act, the Contract Work Hours and Safety Standards
Act, and the Copeland
Anti-Kickback Act), and credit 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.
D. Notwithstanding any other provision of this Agreement, the Non-Federal
Sponsor shall not be entitled to credit for real property interests that were
previously provided as an item of local cooperation for another Federal project or
for costs associated with betterments.
14
ARTICLE VI — PAYMENT OF FUNDS
A. As of the effective date of this Agreement, construction costs allocated to
structural flood risk management are projected to be $3,787,000, with the
Government's share of such costs projected to be $2,461,550 and the Non-
Federal Sponsor's share of such costs projected to be $1,325,450, which
includes the 5 percent contribution of funds projected to be $189,350, costs for
creditable real property interests, relocations, and placement area improvements
projected to be $196,000, costs for creditable in-kind contributions projected to
be $0, and the additional amount of funds required to meet the minimum 35
percent cost share projected to be $940,100. Construction costs allocated to
nonstructural flood risk management are projected to be $584,000, with the
Government's share of such costs projected to be $379,600 and the Non-Federal
Sponsor's share of such costs projected to be $204,400, which includes costs for
creditable real property interests, relocations, and placement area improvements
projected to be $533,950, costs for creditable in-kind contributions projected to
be $0, and the funds required to meet the minimum 35 percent cost share
projected to be $204,400. Construction costs allocated to recreation are
projected to be $591,000, with the Government's share of such costs projected to
be $295,500 and the Non-Federal Sponsor's share of such costs projected to be
$295,500. Costs for betterments are projected to be $0. These amounts are
estimates only that are subject to adjustment by the Government and are not to
be construed as the total financial responsibilities of the Government and the
Non-Federal Sponsor.
B. The Government shall provide the Non-Federal Sponsor with quarterly
reports setting forth the estimated construction costs and the Government's and
Non-Federal Sponsor's estimated shares of such costs; costs incurred by the
Government, using both Federal and Non-Federal Sponsor funds, to date; the
amount of funds provided by the Non-Federal Sponsor to date; the estimated
amount of any creditable real property interests, placement area improvements,
and relocations; the estimated amount of any creditable in-kind contributions; and
the estimated amount of funds required from the Non-Federal Sponsor during the
upcoming fiscal year.
C. The Non-Federal Sponsor shall provide the funds required to meet its
share of construction costs by delivering a check payable to "FAO, USAED,
Savannah (K6)" to the District Commander, 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 providing an Electronic Funds Transfer of
such required funds in accordance with procedures established by the
Government.
D. The Government shall draw from the funds provided by the Non-Federal
Sponsor to cover the non-Federal share of construction costs as those costs are
15
incurred. If the Government determines at any time that additional funds are
needed from the Non-Federal Sponsor to cover the Non-Federal Sponsor's
required share of such construction costs, the Government shall provide the Non-
Federal Sponsor with written notice of the amount of additional funds 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.
E. Upon conclusion of construction and resolution of all relevant claims and
appeals and eminent domain proceedings, the Government shall conduct a final
accounting and furnish the Non-Federal Sponsor with the written results of such
final accounting. Should the final accounting determine that additional funds are
required from the Non-Federal Sponsor, the Non-Federal Sponsor, within 60
calendar days of receipt of written notice from the Government, shall provide the
Government with the full amount of such additional required funds. Such final
accounting does not limit the Non-Federal Sponsor's responsibility to pay its
share of construction costs, including contract claims or any other liability that
may become known after the final accounting. If the final accounting determines
that funds provided by the Non-Federal Sponsor exceed the amount of funds
required to meet its share of construction costs, the Government shall refund
such excess amount, subject to the availability of funds for the refund. In
addition, if the final accounting determines that the Non-Federal Sponsor's credit
for real property interests, placement area improvements, and relocations
combined with credit for in-kind contributions exceed its share of construction
costs for the Project, the Government, subject to the availability of funds, shall
enter into a separate agreement to reimburse the difference to the Non-Federal
Sponsor.
F. If there are real property interests, placement area improvements,
relocations, or betterments provided on behalf of the Non-Federal Sponsor, the
Government shall provide written notice to the Non-Federal Sponsor of the
amount of funds required to cover such costs. No later than 30 calendar days of
receipt of such written notice, the Non-Federal Sponsor shall make the full
amount of such required funds available to the Government by delivering a check
payable to "FAO, USAED, Savannah (K6)" to the District Commander, or by
providing an Electronic Funds Transfer of such funds in accordance with
procedures established by the Government. If at any time the Government
determines that additional funds are required to cover such costs, the Non-
Federal Sponsor shall provide those funds within 30 calendar days from receipt
of written notice from the Government.
16
ARTICLE VII - TERMINATION OR SUSPENSION
A. If at any time the Non-Federal Sponsor fails to fulfill its obligations under
this Agreement, the Government may suspend or terminate construction of the
Project unless the Assistant Secretary of the Army (Civil Works) determines that
continuation of such work is in the interest of the United States or is necessary in
order to satisfy agreements with other non-Federal interests.
B. If the Government determines at any time that the Federal funds made
available for construction of the Project are not sufficient to complete such work,
the Government shall so notify the Non-Federal Sponsor in writing, and upon
exhaustion of such funds, the Government shall suspend construction until there
are sufficient funds appropriated by the Congress and funds provided by the
Non-Federal Sponsor to allow construction to resume.
C. If hazardous substances regulated under CERCLA are found to exist in,
on, or under any required real property interests, the parties shall follow the
procedures set forth in Article IV.
D. In the event of termination, the parties shall conclude their activities.
relating to design and construction of the Project. To provide for this eventuality,
the Government may reserve a percentage of available funds as a contingency
to pay the costs of termination, including any costs of resolution of real property
acquisition, resolution of contract claims, and resolution of contract modifications.
E. Any suspension or termination shall not relieve the parties of liability for
any obligation previously incurred. Any delinquent payment owed by the Non-
Federal Sponsor pursuant to this Agreement 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 VIII - HOLD AND SAVE
The Non-Federal Sponsor shall hold and save the Government free from all
damages arising from design, construction, operation, maintenance, repair,
rehabilitation, and replacement of the Project, except for damages due to the
fault or negligence of the Government or its contractors.
17
ARTICLE IX - 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 the parties. Each party shall
pay an equal share of any costs for the services provided by such a third party as
such costs are incurred. The existence of a dispute shall not excuse the parties
from performance pursuant to this Agreement.
ARTICLE X - MAINTENANCE OF RECORDS AND AUDITS
A. The parties shall develop procedures for the maintenance by the Non-
Federal Sponsor of books, records, documents, or other evidence pertaining to
costs and expenses for a minimum of three years after the final accounting. The
Non-Federal Sponsor shall assure that such materials are reasonably available
for examination, audit, or reproduction by the Government.
B. The Government may conduct, or arrange for the conduct of, audits of the
Project. Government audits shall be conducted in accordance with applicable
Government cost principles and regulations. The Government's costs of audits
shall not be included in construction costs, but shall be included in calculating the
Federal Participation Limit.
C. To the extent permitted under applicable Federal laws and regulations, the
Government shall allow the Non-Federal Sponsor to inspect books, records,
documents, or other evidence pertaining to costs and expenses maintained by
the Government, or at the request of the Non-Federal Sponsor, provide to the
Non-Federal Sponsor or independent auditors any such information necessary to
enable an audit of the
Non-Federal Sponsor's activities under this Agreement. The costs of non-
Federal audits shall be paid solely by the Non-Federal Sponsor without
reimbursement or credit by the Government.
ARTICLE XI - RELATIONSHIP OF PARTIES
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. Neither party shall provide, without the consent of the other party, any
18
contractor with a release that waives or purports to waive any rights a party may
have to seek relief or redress against that contractor.
ARTICLE XII — 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 personally or mailed by registered or certified
mail, with return receipt, as follows:
If to the Non-Federal Sponsor:
Mayor of Augusta
535 Telfair St. Suite 200
Augusta, GA 30901
Copy to: Director of Augusta Engineering Dept.
452 Walker Street Suite 110
Augusta, GA 30901
If to the Government:
District Commander
Savannah District
100 W. Oglethorpe Ave.
Savannah, GA 31401
B. A party may change the recipient or address to which such
communications are to be directed by giving written notice to the other party in
the manner provided in this Article.
ARTICLE XIII — CONFIDENTIALITY
To the extent permitted by the laws governing each party, the parties agree to
maintain the confidentiality of exchanged information when requested to do so by
the providing party.
ARTICLE XIV - 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 a party to this Agreement.
19
IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
which shall become effective upon the date it is signed by the District
Commander.
DEPARTMENT OF THE ARMY AUGUSTA, GEORGIA
BY: BY: Al.
Daniel H. Hib er, IGFp Honora.�`"rdie Davis, Jr.
Colonel, U.S. Army M�. .�.....d G... .{.;
Commanding 94i o u,. :�.ti. A
D
DATE: 56f DATE: �//� / ii �4 . -4'
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20
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CERTIFICATION REGARDING LOBBYING
The undersigned certifies, to the best of his or her knowledge and belief that:
(1)No Federal appropriated funds have been paid or will be paid, by or on behalf of the
undersigned, to any person for influencing or attempting to influence an officer or employee of
any agency, a Member of Congress, an officer or employee of Congress, or an employee of a
Member of Congress in connection with the awarding of any Federal contract, the making of any
Federal grant,the making of any Federal loan,the entering into of any cooperative agreement,
and the extension, continuation,renewal, amendment, or modification of any Federal contract,
grant, loan, or cooperative agreement.
(2) If any funds other than Federal appropriated funds have been paid or will be paid to
any person for influencing or attempting to influence an officer or employee of any agency, a
Member of Congress, an officer or employee of Congress, or an employee of a Member of
Congress in connection with this Federal contract, grant, loan, or cooperative agreement,the
undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report
Lobbying," in accordance with its instructions.
(3) The undersigned shall require that the language of this certification be included in the
award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts
under grants, loans, and cooperative agreements) and that all subrecipients shall certify and
disclose accordingly.
This certification is a material representation of fact upon which reliance was placed
when this transaction was made or entered into. Submission of this certification is a prerequisite
for making or entering into this transaction imposed by 31 U.S.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.
tAeC(A.c.e-"'
Honorable Hardie Davis, Jr.
0, Mayor of Augusta, Georgia
#/i
DATE: •/���.L' /w C�
• 4 f
AA CERTIFICATE� OF AUTHORITY
I, ,4toli-el ' G. ince kto,i4 i' , do hereby certify that I am the principal
legal officer of Augusta, Georgia, that Augusta, Georgia 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 Augusta Georgia, in
connection with the Augusta Rocky Creek Georgia, Flood Risk Management
Section 205 construction Project, and to pay damages., if necessary, in the event of
the failure to perform in accordance with the terms of the Agreement, as required
by Section 221 of the Flood Control Act of 1970, as amended (42 U.S.C. 1962d-
5b), and that the person who executed the Agreement on behalf of Augusta
Georgia, acted within his statutory authority.
IN WITNESS WHEREOF, I have made and executed this certification this
day of 9ithia 20 le .
41(614/ Ade
Andrew G. MacKenzie kiy,"
General Counsel