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HomeMy WebLinkAboutSkokomish Tribe MC Contract#19-089 PROJECT PARTNERSHIP AGREEMENT BETWEEN THE DEPARTMENT OF THE ARMY AND MASON COUNTY AND THE SKOKOMISH INDIAN TRIBE AND STATE OF WASHINGTON DEPARTMENT OF NATURAL RESOURCES FOR SKOKOMISH RIVER BASIN ECOSYSTEM RESTORATION PROJECT THIS AGREEMENT is entered into this / 7" day of S-z14—, 2019,by and between the Department of the Army (hereinafter the"Government"), repreiinted by the U.S. ARMY ENGINEER, SEATTLE DISTRICT (hereinafter the"District Engineer") and MASON COUNTY,THE SKOKOMISH INDIAN TRIBE (hereinafter the "Non-Federal Sponsors"), represented by its Chair, Mason County Board of Commissioners and the Chair, Skokomish Tribal Council , and the STATE OF WASHINGTON, DEPARTMENT OF NATURAL RESOURCES (hereinafter"DNR"),represented by the Commissioner of Public Lands respectively. WITNESSETH, THAT: WHEREAS, construction of the Skokomish River Basin Ecosystem Restoration Project(hereinafter the "Project",as defined in Article I.A. of this Agreement)was authorized by Congress in Section 1401 of the Water Infrastructure Improvements for the Nation Act of 2016 (Public Law 114-322, December 16,2016). 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, the Non-Federal Sponsors have waived reimbursement for the value of real property interests and relocations that exceed 35 percent of construction costs; and WHEREAS,the Government and the Non-Federal Sponsors 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; and WHEREAS, the Government and the DNR have the full authority and capability to perform in accordance with the terms of this Agreement provided the responsibility of the DNR shall-be limited to providing certain lands,easements, and rights-of-way for the Project that are owned by the State of Washington and administered by DNR. NOW, THEREFORE, the parties agree as follows: ARTICLE I -DEFINITIONS A. The term "Project"means the Skokomish Project including a levee removal,a side channel reconnection, placement of large woody debris in the upstream reaches of the river, and wetland restoration at two sites as generally described in the Skokomish River Basin Ecosystem Restoration Integrated Feasibility Report and Environmental Impact Statement dated April, 2015 and approved by the Chief of Engineers,on December 14,2015 (hereinafter the"Decision Document"). B. The term "construction costs"means all costs incurred by the Government and Non- Federal Sponsors 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 and the Non-Federal Sponsors' creditable contributions pursuant to the terms of the Design Agreement executed on August 12,2016;the costs of historic preservation activities except for data recovery for historic properties;the Government's costs of engineering, design, and construction, including cost shared monitoring and adaptive management, if any;the Government's supervision and administration costs;the Non-Federal Sponsors' creditable costs for providing real property interests and relocations and for providing in-kind contributions, if any. The term does not include any costs for operation, maintenance, repair, rehabilitation,or replacement;dispute resolution;participation by the Government and the Non-Federal Sponsors in the Project Coordination Team to discuss significant issues and actions; or audits; or the Non-Federal Sponsors' 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, 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"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 for Seattle District(hereinafter the"District Commander"), although the remainder of the Project is not yet complete. F. The term "cost shared monitoring"means those activities, including the collection and analysis of data, for a period not to exceed 10 years, that the Government identifies as necessary to determine if predicted outputs of the Project are being achieved and to determine if adaptive management is necessary, as generally described in the Decision Document. The term does not include monitoring after the Division Commander for Northwestern Division (hereinafter the 2 "Division Commander") has determined that ecological success has been achieved or monitoring beyond the 10-year period, with any such monitoring the responsibility of the Non-Federal Sponsors, at no cost to the Government. G. The term"cost shared adaptive management"means physical modifications to the Project, in response to the cost shared monitoring results to ensure the functionality and benefits of the Project are garnered,as explicitly described in the performance standards section of the adaptive management plan or other sections in the Decision Document. The term does not include operational changes,which are the responsibility of the Non-Federal Sponsors,at no cost to the Government, as part of operation and maintenance of the Project. H. The term "in-kind contributions"means those materials or services provided by the Non-Federal Sponsors that are identified as being integral to the Project by the Division Commander. 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 Sponsors to identify the existence and extent of any hazardous substances that may exist in, on, or under real property interests required for the Project. I. The term "fiscal year"means one year beginning on October 1 Sc and ending on September 30th of the following year. J. The term"Maximum Cost Limit"means the statutory limitation on the total cost of the Project, as determined by the Government in accordance with Section 902 of the Water Resources Development Act of 1986,as amended, if applicable to the Project, and Government regulations issued thereto. K. The term "DNR Parcel" means aquatic lands owned by the State of Washington and administered by DNR that are located along the Skokomish River from River Mile 6 to River Mile 11 within the project footprint, approximately on, in or adjacent to Sections 7, 8, 9, 16, 17, and 18, Township 21 North, Range 4 West, and Sections 1, 12, and 13, Township 21 North, Range 5 West, in Mason County, Washington; and this term expressly excludes any lands or aquatic lands held in trust by the United States of America on behalf of the Skokomish Indian Tribe. (This definition of DNR Parcel shall not waive any claim of ownership by the State or by the Skokomish Indian Tribe with respect to the beds and shores of the Skokomish River.) ARTICLE II - OBLIGATIONS OF THE PARTIES A. In accordance with Federal laws, regulations, and policies, the Government shall undertake construction of the Project using funds appropriated by the Congress and funds provided by the Non-Federal Sponsors. B. The Non-Federal Sponsors shall contribute 35 percent of construction costs, as follows: 3 1. In accordance with Article III, the Non-Federal Sponsors and DNR shall provide the real property interests and relocations required for construction, operation, and maintenance of the Project. 2. In providing in-kind contributions, if any,the Non-Federal Sponsors shall obtain all applicable licenses and permits necessary for such work. As functional portions of the work are completed,the Non-Federal Sponsors shall begin operation and maintenance of such work. Upon completion of the work,the Non-Federal.Sponsors shall so notify the Government within 30 calendar days and provide the Government with a copy of as-built drawings for the work. 3. After considering the estimated amount of credit that will be afforded to the Non-Federal Sponsors pursuant to paragraphs B.1. and B.2., above,the Government shall determine the estimated amount of funds required from the Non-Federal Sponsors to meet its 35 percent cost share for the then-current fiscal year. No later than 60 calendar days after receipt of notification from the Government,the Non-Federal Sponsors shall provide the full amount of such required funds to the Government in accordance with Article VI. 4. No later than August 1st prior to each subsequent fiscal year, the Government shall provide the Non-Federal Sponsors with a written estimate of the full amount of funds required from the Non-Federal Sponsors during that fiscal year to meet their cost share. Not later than September 1 St prior to that fiscal year,the Non-Federal Sponsors shall provide the full amount of such required funds to the Government in accordance with Article VI. C. To the extent practicable and in accordance with Federal law, regulations, and policies,the Government shall afford the Non-Federal Sponsors 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 perceirof the total amount authorized to be appropriated for the Project, in accordance with 54 U.S.C. 312508, the Government will seek a waiver from the 1 percent limitation under 54 U.S.C. 312507 and upon receiving the waiver, will proceed with data recovery at full federal expense. 4 Nothing in this Agreement shall limit or otherwise prevent the Non-Federal Sponsors from voluntarily contributing costs associated with data recovery that exceed 1 percent. E. When the District Commander determines that construction of the Project, excluding cost shared monitoring and adaptive management, or a functional portion thereof, is complete, within 30 calendar days of such determination, the District Commander shall so notify the Non- Federal Sponsors in writing and the Non-Federal Sponsors,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 Sponsors 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. The Government shall provide the Non- Federal Sponsors with an updated OMRR&R Manual and as-built drawings, as necessary,based on the cost shared monitoring and adaptive management. 1. The Non-Federal Sponsors shall conduct 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. The Government and the Non-Federal Sponsors shall consult on any subsequent updates or amendments to the OMRR&R Manual. 2. The Government may enter, at reasonable times and in a reasonable manner, upon real property interests that the Non-Federal Sponsors 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 Sponsors are failing to perform their obligations under this Agreement and the Non-Federal Sponsors do 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 Sponsors of their 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. The Non-Federal Sponsors shall prevent obstructions or encroachments on the Project (including prescribing and enforcing regulations to prevent such obstructions or encroachments) that might reduce the outputs produced, hinder operation and maintenance, or interfere with the proper function of the Project. G. The Non-Federal Sponsors shall not use the Project,or real property interests required for construction, operation, and maintenance of the Project, as a wetlands bank or mitigation credit for any other project. H. The Non-Federal Sponsors 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 a e-authorized to be used for the Project. Federal program funds are those funds provided by a Federal agency, plus any non-Federal contribution required as a matching share therefor. 5 I. In carrying out its obligations under this Agreement,the Non-Federal Sponsors 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. J. In addition to the ongoing,regular discussions of the parties in the delivery of the Project,the Government and the Non-Federal Sponsors 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 Maximum Cost Limit. The Non-Federal Sponsors' 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 Sponsors without reimbursement or credit by the Government. K. The parties to this Agreement acknowledge and agree that the obligations and responsibilities of DNR under the provisions of this Agreement are limited to providing the DNR Parcel for the construction, operation, maintenance, repair, rehabilitation, and replacement of the Project in accordance with the provisions of this Agreement. ARTICLE III -REAL PROPERTY INTERESTS,RELOCATIONS,AND COMPLIANCE WITH PUBLIC LAW 91-646,AS AMENDED A. The Government, after consultation with the Non-Federal Sponsors, shall determine the real property interests needed for construction, operation,and maintenance of the Project. The Government shall provide the Non-Federal Sponsors with general written descriptions, including maps as appropriate, of the real property interests that the Government determines the Non- Federal Sponsors must provide for construction, operation, and maintenance of the Project, and shall provide the Non-Federal Sponsors with a written notice to proceed with acquisition. The Non-Federal Sponsors 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 Sponsors 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. 1. Prior to the issuance of the solicitation for a Government contract for construction of the Project, or prior to the Government incurring any financial obligations for construction of a portion of the Project using the Government's own forces, for which the Government determines that the DNR Parcel is required, DNR shall provide the Government and the Non-Federal Sponsors with an authorization to enter onto the DNR Parcel for the purposes set forth in this Agreement. DNR shall ensure that the DNR Parcel that the Government determines to be required for the Project and that was provided by DNR is retained in public ownership for uses compatible with the authorized purposes of the Project. 6 B. The Government, after consultation with the Non-Federal Sponsors, shall determine the relocations necessary for construction, operation, and maintenance of the Project, and shall provide the Non-Federal Sponsors with general written descriptions, including maps as appropriate, of such relocations and shall provide the Non-Federal Sponsors with a written notice to proceed with such relocations. The Non-Federal Sponsors shall perform or ensure the performance of these relocations in accordance with the Government's construction schedule for the Project. C. To the maximum extent practicable,not later than 30 calendar days after the Government provides to the Non-Federal Sponsors written descriptions and maps of the real property interests and relocations required for construction, operation, and maintenance of the Project,the Non-Federal Sponsors may request in writing that the Government acquire all or specified portions of such real property interests, or perform the necessary relocations. If the Government agrees to such a request,the Non-Federal Sponsors, in accordance with Article VLF., must provide funds sufficient to cover the costs of the acquisitions, or relocations in advance of the Government performing the work. The Government shall acquire the real property interests, and perform the relocations, applying Federal laws,policies, and procedures. The Government shall acquire real property interests in the name of the Non-Federal Sponsors except, if acquired by eminent domain,the Government shall convey all of its right,title and interest to the Non-Federal Sponsors by quitclaim deed or deeds. The Non-Federal Sponsors shall accept delivery of such deed or deeds. The Government's providing real property interests or performing relocations on behalf of the Non-Federal Sponsors does not alter the Non-Federal Sponsors' responsibility under Article IV for the costs of any cleanup and response related thereto. D. 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 Sponsors assure 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 Sponsors 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 Sponsors shall be responsible for undertaking any investigations to identify the existence and extent of any hazardous substances regulated under the 7 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 Sponsors with prior specific written direction, in which case the Non-Federal Sponsors 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, within 15 calendar days of such discovery,the Non-Federal Sponsors and the Government, in addition to providing any other notice required by applicable law, shall provide written notice to each other, and the Non-Federal Sponsors shall not proceed with the acquisition of such real property interests until the parties agree that the Non-Federal Sponsors 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 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 Sponsors shall be responsible, as between the Government and the Non-Federal Sponsors, 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 Sponsors without reimbursement or credit by the Government. 2. In the event the parties cannot reach agreement on how to proceed or the Non- Federal Sponsors fails to provide any funds necessary to pay for cleanup and response costs or to otherwise discharge the Non-Federal Sponsors' 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. In the event of a discovery,the Non-Federal Sponsors and the Government shall initiate consultation with each other within 15 calendar days 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 Sponsors,the Non-Federal Sponsors shall be considered the operator of the Project for purposes of CERCLA liability. To the maximum extent practicable, the Non-Federal Sponsors shall operate, maintain,repair, rehabilitate, and replace the Project in a manner that will not cause liability to arise under CERCLA. 8 ARTICLE V - CREDIT FOR REAL PROPERTY INTERESTS,RELOCATIONS,AND IN- KIND CONTRIBUTIONS A. The Government shall include in construction costs, and credit towards the Non- Federal Sponsors share of such costs,the value of Non-Federal Sponsors provided real property interests and relocations, and the costs of in-kind contributions determined by the Government to be required for the Project. B. To the maximum extent practicable,no later than 3 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 Sponsors 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 frequently than on a quarterly basis, the Non-Federal Sponsors 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 Sponsors 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 Sponsors 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 any real property interests owned by the Non-Federal Sponsors on the effective date of this Agreement and required for construction performed after the effective date of this Agreement, the date the Non-Federal Sponsors provide the Government with authorization for entry thereto shall be used to determine the fair market value. For any real property interests required 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 Sponsors 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. The fair market value of the DNR Parcel provided by DNR shall be the fair market value of such parcel as of the date that DNR provides the Government with authorization for entry thereto. (2) Except for real property interests acquired through eminent domain proceedings instituted after the effective date of this Agreement,the Non-Federal 9 Sponsors 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 Sponsors provide 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 Sponsors are 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.. (3) The Government shall credit the Non-Federal Sponsors the appraised amount approved by the Government. Where the amount paid or proposed to be paid by the Non-Federal Sponsors exceed the approved appraised amount,the Government, at the request of the Non-Federal Sponsors, shall consider all factors relevant to determining fair market value and, in its sole discretion, after consultation with the Non-Federal Sponsors,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 Sponsors 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 Sponsors 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 Sponsors 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 Sponsors 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 real property interest to the Non- Federal Sponsors and release the Non-Federal Sponsors in writing from its obligation to appraise the real property interest, and the Non-Federal Sponsors submit to the Government a copy of the owner's written release; or (2) the Non-Federal Sponsors determine that an appraisal is unnecessary because the valuation problem is uncomplicated and the anticipated value of the real property interest proposed for acquisition is estimated at$25,000.or less, based on a review of available data. When the Non-Federal Sponsors determine that an appraisal is unnecessary,the Non-Federal Sponsors 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. When the anticipated 10 value of the real property interest exceeds $10,000,the Non-Federal Sponsors must offer the owner the option of having the Non-Federal Sponsors appraise the real property interest. d. Incidental Costs. The Government shall include in construction costs and credit towards the Non-Federal Sponsors' share of such costs,the incidental costs the Non- Federal Sponsors incurred in acquiring any real property interests required pursuant to Article III for 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.D., and other payments by the Non-Federal Sponsors 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. Relocations. The Government shall include in construction costs and credit towards the Non-Federal Sponsors' share of such costs, the value of any relocations performed by the Non-Federal Sponsors 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 Washington 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 associated with betterments, as determined by the Government, nor any additional cost of using new material when suitable used material is available. 3. In-Kind Contributions. The Government shall include in construction costs and credit towards the Non-Federal Sponsors' share of such costs,the value of in-kind contributions that are integral to the Project. a. The value shall be equivalent to the costs, documented to the satisfaction of the Governirierit,that the Non-Federal Sponsors 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 11 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 Sponsors' 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 Sponsors; 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 Sponsors; 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. 4. 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 Sponsors' failure to comply with its obligations under these laws. D. Notwithstanding any other provision of this Agreement,the Non-Federal Sponsors shall not be entitled to credit for real property interests and relocations that exceed 35 percent of construction costs or real property interests that were previously provided as an item of local cooperation for another Federal project. ARTICLE VI—PAYMENT OF FUNDS A. As of the effective date of this Agreement, construction costs, excluding cost shared monitoring and adaptive management,are projected to be$22,088,000, with the Government's share of such costs projected to be $14,357,200 and the Non-Federal Sponsors' share of such costs projected to be $7,730,800, which includes creditable real property interests and relocations projected to be $2,971,000, creditable in-kind contributions projected to be $362,597,and the amount of funds required to meet its 35 percent cost share projected to be $4,397,203. Construction costs for cost shared monitoring and adaptive management are projected to be $615,000, with the Government's share of such costs projected to be $399,000 and the Non- Federal Sponsors' share of such costs projected to be$216,000. 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 Sponsors. B. The Government shall provide the Non-Federal Sponsors with monthly reports setting forth the estimated construction costs and the Government's and Non-Federal Sponsors' estimated shares of such costs;costs incurred by the Government, using both Federal and Non- Federal Sponsors' funds, to date;the amount of funds provided by the Non-Federal Sponsors to date; the estimated amount of any creditable real property interests and relocations;the estimated 12 amount of any creditable in-kind contributions; and the estimated amount of funds required from the Non-Federal Sponsors during the upcoming fiscal year. C. The Non-Federal Sponsors shall provide the funds required to meet its share of construction costs by delivering a check payable to "FAO, USAED, Seattle G3"to the District Commander, or verifying to the satisfaction of the Government that the Non-Federal Sponsors have deposited such required funds in an escrow or other account acceptable to the Government, with interest accruing to the Non-Federal Sponsors, 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 Sponsors to cover the non-Federal share of construction costs as those costs are incurred. If the Government determines at any time that additional funds are needed from the Non-Federal Sponsors to cover the Non-Federal Sponsors' required share of such construction costs, the Government shall provide the Non-Federal Sponsors with written notice of the amount of additional funds required. Within 60 calendar days from receipt of such notice,the Non-Federal Sponsors shall provide the Government with the full amount of such additional required funds. E. Upon completion of construction, except for cost shared monitoring and adaptive management, and resolution of all relevant claims and appeals and eminent domain proceedings, the Government shall conduct a final accounting and furnish the Non-Federal Sponsors with the written results of such final accounting. The Government shall conduct another final accounting after completion of cost shared monitoring and adaptive management and furnish the Non- Federal Sponsors with the written results of such final accounting. Should either final accounting determine that additional funds are required from the Non-Federal Sponsors,the Non-Federal Sponsors, 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. A final accounting does not limit the Non-Federal Sponsors' 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 after cost shared monitoring and adaptive management determines that funds provided by the Non-Federal Sponsors 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 that final accounting determines that the Non-Federal Sponsors' credit for real property interests 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 for the reimbursement, shall enter into a separate agreement to reimburse the difference to the Non-Federal Sponsors. F. If there are real property interests or relocations,provided on behalf of the Non- Federal Sponsors, the Government shall provide written notice to the Non-Federal Sponsors of the amount of funds required to cover such costs. No later than 60 calendar days of receipt of such written notice, the Non-Federal Sponsors shall make the full amount of such required funds available to the Government by delivering a checkpayable to "FAO, USAED, Seattle G3"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 13 additional funds are required to cover such costs,the Non-Federal Sponsors shall provide those funds within 30 calendar days from receipt of written notice from the Government. ARTICLE VII-TERMINATION OR SUSPENSION A. If at any time the Non-Federal Sponsors fail to fulfill their 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 Sponsors in writing within 30 calendar days, 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 Sponsors to allow construction to resume. In addition,the Government may suspend construction if the Maximum Cost Limit is exceeded. 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 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 incurred. Any delinquent payment owed by the Non-Federal Sponsors 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. F. Upon termination in accordance with this Article,DNR shall be released of any further obligations under this agreement ARTICLE VIII - HOLD AND SAVE A. The Non-Federal Sponsors 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. 14 B. The Non-Federal Sponsors shall hold and save DNR 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 DNR. 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 Sponsors 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 Sponsors 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 Maximum Cost Limit. C. To the extent permitted under applicable Federal laws and regulations,the Government shall allow the Non-Federal Sponsors 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 Sponsors,provide to the Non-Federal Sponsors or independent auditors any such information necessary to enable an audit of the Non-Federal Sponsors' activities under this Agreement. The costs of non-Federal audits shall be paid solely by the Non-Federal Sponsors 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 Sponsors each-actin 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 contractor with a release that waives or purports to waive any rights a party may have to seek relief or redress against that contractor. 15 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 Sponsors: Chair, Mason County Board of Commissioners 411 N. 5th Street Shelton, WA 98584 Chair, Skokomish Tribal Council 80 North Tribal Center Road Skokomish Nation, WA 98584 If to the State of Washington DNR: Aquatic Land Manager, Washington State Department of Natural Resources South Puget Sound Region 950 Farman Ave.N. Enumclaw, WA 99022-9282 If to the Government: District Commander Seattle District, US Army Corps of Engineers PO Box 3755 Seattle, WA 98124-3755 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. 16 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. ARTICLE XV—JOINT AND SEVERAL RESPONSIBILITY OF THE NON-FEDERAL SPONSORS The obligations and responsibilities of the Non-Federal Sponsors shall be joint and several, such that each Non-Federal Sponsor shall be liable for the whole performance of the obligations and responsibilities of the Non-Federal Sponsors under the terms and provisions of this Agreement. The Government may demand the whole performance of said obligations and responsibilities from any of the entities designated herein as one of the Non-Federal Sponsors. 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 MASON COUNTY, WASHINGTON BY: , BY: ib 1 Mark A. C eraldi Mr. Kevin utty Colonel, Corps of Engineers Chair,Bo rd of County Commissioners District Engineer Mason, County, Washington DATE: 61/_ I (41 DATE: 9- 7'1 26 / SKOKOMISH INDIAN TRIBE WASHINGTON STATE DEPARTMENT OF NATURAL RESOURCES BY: 42/elez,"1� BY:�V�l� cam � ) Mr. Charles Miller Amalia Walton Chairman, Skokomish Tribal Council Deputy Supervisor for Aquatics Skokomish Indian Tribe and Geology DATE: 9— / 7 -/1 DATE: 7/it ( 7 17