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1999-222WILDLIFE MANAGEMENT AREA, LEWISVILLE LAKE, TEXAS, AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR, AND PROVIDING AN EFFECTIVE DATE WHEREAS, SecUon 1135 of the Water Resources Development Act of 1986, Pubhe Law 99-662, as amended, sets aside funds to restore habitat damaged or lost as a result of water reservoir construction, and WHEREAS, before the ~mpoundment of Lew~swlle Lake ~n 1954, substantmlly more wetlands, bottom land hardwoods, and upland forests existed, and WHEREAS, because of the many wetlands and assocmted bottom lands that were damaged or lost, the Department of the Army, m conjunction w~th the C~ty of Denton, has sought and received congressional funding to restore a port~on of the lost habitat, and WI-IEREAS, the total project cost ~s $513,200, w~th the federal share bemg 75% of the cost, or $384,900, w~th the C~ty of Denton's share being $128,300, of whmh approximately $70,500 will be work ~n k~nd, and WHEREAS, the C~ty Council deems ~t ~n the pubhc ~nterest to approve thru Agreement, NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SI~CTION I That the C~ty Manager ~s hereby authorized to execute the ProJect Cooperation Agreement between the Department of the Army and the C~ty of Denton, Texas for Modfficat~on of the Lew~svflle Lake Wfldhfe Management Area, Lew~swlle Lake, Texas, substantmlly m the form of the attached Agreement, whmh ~s made a part of th~s ordinance for all purposes, as well as any other documents necessary to facilitate th~s Agreement ~ That the C~ty Manager ~s hereby authorized to make the expen&tures set forth m the attached Agreement and take the other actions reqmred ~n the Agreement SECTION III That th~s ordmance shall become effective ~mmedmtely upon ~ts passage and approval PASSED AND APPROVEDth~sthe(~ dayof (~-,/./2/~ ~, ,1999 JA~R, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY APPI~VED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY ! Page 2 MODEL PROJECT COOPERATION AGREEMENT FOR SECTION 1135, PROJECT MODIFICATIONS FOR THE IMPROVEMENT OF THE ENVIRONMENT PROJECT COOPERATION AGREEMENT BETWEEN THE DEPARTMENT OF THE ARMY CITY OF DENTON, TEXAS FOR MODIFICATION OF THE LEWISVILLE LAKE WILDLIFE MANAGEMENT AREA LEWISVILLE LAKE, TEXAS THIS AGREEMENT lS entered into this I~-D- day of ~;~ IV , 19~, by and between the DEPARTMENT OF THE ARMY (he~na~ter the "Government"), represented by the U S Army Engineer for the Fort Worth Dlstr~ct (hereinafter the "Dlstr~ct En~lneer") and the C~ty of Denton, Texas, (hereinafter the "Non- Federal Sponsor"), represented by the Mayor, clty of Denton, Texas WIITNESSETH, THAT W~EREAS, the Secretary of the Army completed construction of the Lew~sv~lle Lake ~n 1954, and w~ll complete construction of the Ray Roberts Lake Greenbelt Corridor Project ~n 1998, which · nclude approximately 3,046 acres of project lands at the upper end of Lew~sville Lake, Texas (herelnafter the "Ex~stln~ Project", as defined ~n Article I A of th~s A~reement), WHEREAS, modification of the Ex~st~n~ Project ~s authorized by Section 1135 of the Water Resources Development Act of 1986, Public Law 99-662, as amended, W~EREAS, the Government and the Non-Federal Sponsor desire to enter ~nto a Project Cooperation A~reement for ~mplementat~on of the Lew~ev~lle Lake Project Modification (hereinafter the "Pro]eot Modification", as deflned ~n Article I B of th~s A~reement), WHEREAS, Section 1135 of the Water Resources Development Act of 1986, Public Law 99-662, as amended, specifies the cost-shar~n~ requirements applicable to th~s Project Modification, Exhibit A W}{EREAS, the Non-Federal Sponsor desires to perform certain work (herelnafter the "work-~n-kind", as deflned ~n Article I M of thls Agreement) which is a part of the Pro~ect Mod~flcat~on, WHEREAS, the Government and Non-Federal Sponsor have the full authority and capabillty to perform as herelnafter set forth and zntend to cooperate in cost-sharing and f~nanc~ng of the ~mplementatlon of the Project Modlf~cat~on ~n accordance w~th the terms of this Agreement NOW, THEREFORE, the Government and the Non-Federal Sponsor agree as follows ARTICLE I - DEFINITIONS AND GENERAL PROVISIONS For purposes of this Agreement A The term "Ex, sting Project" shall mean Lewlsv~lle Lake, Texas, located on the Elm Fork of the Trinity Rlver between Dallas and Denton near the city of Lewlsvllle, Denton County, Texas The lake has a total storage capacity of 981,763 acre- feet including 640,986 acre-feet of conservatlon storage at elevation 522 0 feet mean sea level (msl) with a surface area of 29,592 acres, and 340,777 acre-feet of flood control storage at elevation 532 0 feet msl with a surface area of 39,168 acres Lewxsv~lle Lake has an average depth of 21 feet and 250 m~les of shoreline The exlsting project also lncludes approximately 5,500 acres of wildlife management area within four separate tracts of land. B The term "Project Modlfication" shall mean the reforestation of approximately 5?8 acres w~th~n selected openings to provide linkage among the exletlng riparian and bottomland hardwood habitat, the conetr~ctlon of two wetland cells, lncludlng the establishment of wetland vegetatlon totaling 129 acres, and the construction and placement of 102 wood duck boxes wlthln approximately 2,644 acres of Lewisville Lake project lands north of U S Highway 380, as generally described in the Ecosystem Restoration Report and Integrated Environmental Assessment for Lewisvllle Lake Wildlife Habitat Restoration, Denton County, Texas, dated March 1998, and approved by the Commander, Southwestern Divlslon, on MaY 28. 1998. The Project Modification includes the work-in-kind described in Article I M of this Agreement C. The term "total pro]ect modlficatlon costs" shall mean all costs incurred by the Non-Federal Sponsor and the Government in accordance wlth the terms of th~s Agreement dlrectly related to implementation of the Pro3ect Modification Sub3ect to the provlslons of this Agreement, the term shall ~nclude, but ls not necessarily limited to, feasibllity phase planning costs; all englneering and deslgn costs, including those ~ncurred in the 2 feas~blllty phase, the costs of lnvestagatlons to adentafy the existence and extent of hazardous substances in accordance wath Artacle XV.A of this Agreement, the costs ancurred by the Government for clean-up and response an accordance with Artacle XV C of th~s Agreement, costs of hlstorac preservation activities in accordance with Article XVIII A of this Agreement, actual amplementatlon costs, the credit amount for the work-ln- kand performed by the Non-Federal Sponsor an accordance with Artacle II D 4 of this Agreement, supervision and admlnlstrataon costs, costs of partaclpatlon an the Project Coordination Team in accordance with Article V of this Agreement, costs of contract dmspute settlements or awards, the value of lands, easements, rights-of-way, relocatmons, and suitable borrow and dredged or excavated material disposal areas for whmch the Government affords credit in accordance with Article IV of this Agreement, and costs of audit an accordance with Article X of this Agreement The term does not include any costs for operation, maintenance, repair, replacement, or rehabilitation, any costs due to betterments, or any costs of dispute resolution under Article VII of this Agreement D The term "financial obligation for implementation" shall mean a fananclal obllgatlon of the Government or a financial obligation of the Non-Federal Sponsor for work-in-kind, other than an obligation pertaanlng to the provlsmon of lands, easements, rights-of-way, relocations, and borrow and dredged or excavated material disposal areas, that results or would result in a cost that is or would be included in total project modaflcation costs E The term "amplementatlon" shall mean all actions requlred to carry out the Project Modification including all actions required for modification in operatmone of the Existing Project F The term .non-Federal proportionate share" shall mean the ratio of the Non-Federal Sponsor's total cash contribution required in accordance with Article II.D 2 of this Agreement to total flnancmal obligatmons for mmplementation as projected by the Government. G The term "period of implementation" shall mean the time from the effective date of this Agreement to the date that the District Engineer notifies the Non-Federal Sponsor ~n writing of the Government's determination that implementation of the Project Modmfication is complete H The term "highway" shall mean any public h~ghway, roadway, street, or way, including any bridge thereof I. The term "relocation" shall mean providing a functionally equivalent facility to the owner of an existing utility, cemetery, highway or other public facility, or railroad when such action is authorized in accordance with applicable legal principles of lust compensation Providing a functionally equivalent facility may take the form of alteration, lowering, raising, or replacement and attendant removal of the affected facility or part thereof J The term "fiscal year" shall mean one fiscal year of the Government The Government fiscal year begins on October 1 and ends on September 30. K. The term "functional portion of the Project Modification" shall mean a portion of the Project Modification that is suitable for tender to the Non-Federal Sponsor to operate and maintain in advance of completion of the entire Project Modification For a portion of the Project Modification to be suitable for tender, the District Engineer must notify the Non- Federal Sponsor in writing of the Government's determination that the portion of the Project Modification is complete and can function independently and for a useful purpose, although the balance of the Project Modification is not complete L The term "betterment" shall mean a change in the design and construction of an element of the Project Modification resulting from the application of standards that the Government determines exceed those that the Government would otherwise apply for accomplishing the design and construction of that element M The term "work-in-kind" shall mean the provision of materials and labor for the reforestation of 192 acres, the provision of materials and labor for the construction and placement of 102 wood duck boxes, and the provision of materials and labor for the establishment of wetland vegetation, as approved by Commander, Southwestern Division in a Memorandum dated ~y_~. The work-in-kind includes implementation of the authorized improvements as well as planning, engineering, design, supervision and administration, and other activities associated with implementation, but does not include the implementation of betterments or the provision of lands, easements, rights-of-way, relocations, or suitable borrow and dredged or excavated material disposal areas associated with the work-in-kind ARTICLE II - OBLIGATIONS OF THE GOVERNMENT AND THE NON-FEDERAL SPONSOR A The Government, subject to the availability of funds and using those funds and funds provided by the Non-Federal Sponsor, shall expeditiously implement the Project Modification, 4 applying those procedures usually applied to Federal projects, pursuant to Federal laws, regulations, and policies I The Government shall afford the Non-Federal Sponsor the opportunity to review and comment on the sol,citations for all contracts, ~nclud~ng relevant plans and specifications, prior to the Government's ~ssuance of such solicitations The Government shall not ~ssue the solicitation for the f~rst contract for ~mplementat~on until the Non-Federal Sponsor has conf~rmed in wrltlng its willingness to proceed w~th the Project Modlflcat~on To the extent possible, the Government shall afford the Non-Federal Sponsor the opportunity to review and comment on all contract mod~flcat~ons, lnclud~ng change orders, prlor to the ~ssuance to the contractor of a Notice to Proceed. In any instance where provld~ng the Non-Federal Sponsor wlth notification of a contract modlficatlon or change order ~s not possible prior to issuance of the Notice to Proceed, the Government shall provlde such not~flcatlon ~n writing at the earliest date possible To the extent possible, the Government also shall afford the Non-Federal Sponsor the opportunity to review and comment on all contract claims prior to resolution thereof The Government shall consider in good faith the comments of the Non-Federal Sponsor, but the contents of solicitations, award of contracts, execution of contract modifications, issuance of change orders, resolution of contract claims, and performance of all work on the Project Modification (whether the work ~s performed under contract or by Government personnel), shall be exclusively within the control of the Government 2. Throughout the period of ~mplementat~on, the District Engineer shall furnish the Non-Federal Sponsor wlth a copy of the Government's Written Notlce of Acceptance of Completed Work for each contract for the Project Mod~flcatlon B The Non-Federal Sponsor may request the Government to accomplish betterments. Such requests shall be ~n writing and shall describe the betterments requested to be accomplished If the Government in its sole discretion elects to accomplish the requested betterments or any portion thereof, ~t shall so notlfy the Non-Federal Sponsor in a writing that sets forth any applicable terms and conditions, which must be consistent w~th thls Agreement. In the event of conflict between such a wrltlng and this Agreement, this Agreement shall control The Non- Federal Sponsor shall be solely responsible for all costs due to the requested betterments and shall pay all such costs in accordance with Article Vi C of this Agreement C When the District Engineer determines that the entire Project Modlficatlon ls complete or that a port,on of the Project Mod~ficatxon has become a functlonal port,on of the Project Modification, the District Engineer shall so notify the Non- Federal Sponsor an writing and furnish the Non-Federal Sponsor with an Operation, Maintenance, Repair, Replacement, and Rehabilitation Manual (hereinafter the "OMRR&R Manual") and with coples of all of the Government's Written Notices of Acceptance of Completed Work for all contracts for the Project Modification or the functional port~on of the Project Modification that have not been provided previously Upon such notification, the Non- Federal Sponsor shall operate, maintain, repair, replace, and rehabilitate the entire Project Modification or the functional port~on of the Project Mod~f~catzon an accordance w~th Article VIII of th~s Agreement D. The Non-Federal Sponsor shall contribute 25 percent of total project modification costs ~n accordance w~th the provisions of th~s paragraph 1. In accordance w~th Artzcle III of th~s Agreement, the Non-Federal Sponsor shall provide all lands, easements, r~ghts-of-way, and sultable borrow and dredged or excavated mater~al dlsposal areas that the Government determines the Non- Federal Sponsor must provide for the ~mplementatlon, operation, and maintenance of the Project Modification, and shall perform or ensure performance of all relocatlons that the Government determines to be necessary for the implementation, operation, and malntenance of the Project Mod~flcatlon 2 If the Government projects that the value of the Non-Federal Sponsor's contrlbutions under paragraph D 1 of this Article and Articles V, X, and XV A of th~s Agreement w~ll be less than 25 percent of total project modlflcatlon costs, the Non-Federal Sponsor shall provide an additional cash contrlbutlon, in accordance wlth Article VI B. of this Agreement, · n the amount necessary to make the Non-Federal Sponsor's total contribution equal to 25 percent of total project modlf~cat~on costs 3. If the Government determines that the value of the Non-Federal Sponsor's contributions provided under paragraphs D 1 and D.2. of this Article and Articles V, X, and XV A of this Agreement has exceeded 25 percent of total project modLfication costs, the Government, subject to the availabillty of funds, shall reimburse the Non-Federal Sponsor for any such value in excess of 25 percent of total project modlficatlon costs. After such a determination, the Government, an its sole d~scretion, may provide any remaining Pro3ect Modlf~cation lands, easements, rights-of-way, and suitable borrow and dredged or excavated material disposal areas and perform any remaining Pro3ect Modlf~catlon relocations on behalf of the Non-Federal Sponsor Notwithstanding the provision of lands, easements, rlghts-of-way, and suitable borrow and dredged or excavated material disposal areas or performance of relocations by the Government under thls paragraph, the Non-Federal Sponsor shall be responsible, as between the Government and the Non-Federal Sponsor, for the costs of cleanup and response in accordance with Article XV C of this Agreement 4 The Government has determined that the work-in-kind is compatlble with the Project Modification and has approved a credit in the estimated amount of $70,500 for ~mplementatlon of such work by the Non-Federal Sponsor The affording of such credit shall be subject to an on-site inspection by the Government to verify that the work was accomplished ~n a satisfactory manner and is suitable for ~nclus~on ~n the Project Modification The actual amount of credit shall be subject to an audit in accordance with Article X C of th~s Agreement to determine reasonableness, allocabillty, and allowability of costs To afford such credit, the Government shall apply the credit amount toward any additional cash contribution required under paragraph D 2 of this Article The Non-Federal Sponsor shall not receive credit for any amount ~n excess of such addlt~onal cash contribution, nor shall the Non-Federal Sponsor be entitled to any reimbursement for any excess credit amount In no event shall the Non-Federal Sponsor perform work-~n-klnd that would result ~n either the credit afforded under this paragraph exceeding S0 percent of the Non-Federal Sponsor's share of total project modification costs or the credit afforded under th~s paragraph, plus the value of lands, easements, rights-of- way, relocatxons, and suitable borrow and dredged or excavated mater~al disposal areas for which the Government affords credit · n accordance with Article IV of th~s Agreement, exceeding 25 percent of total project modification costs E. The Non-Federal Sponsor may request the Government to provide lands, easements, rights-of-way, and suitable borrow and dredged or excavated material disposal areas or perform relocations on behalf of the Non-Federal Sponsor Such requests shall be ~n writing and shall describe the services requested to be performed. If in its sole discretion the Government elects to perform the requested services or any port~on thereof, ~t shall so notify the Non-Federal Sponsor ~n a writing that sets forth any applicable terms and conditions, which must be consistent with this Agreement. In the event of conflict between such a writing and this Agreement, this Agreement shall control. The Non-Federal Sponsor shall be solely responsible for all costs of the requested services and shall pay all such costs In accordance with Article VI.C. of this Agreement Notwlthstandlng the provision of lands, easements, rights-of-way, and suitable borrow and dredged or excavated material d~sposal areas or performance of relocations by the ~overnment under this paragraph, the Non- Federal Sponsor shall be responsIble, as between the Government and the Non-Federal Sponsor, for the costs of cleanup and response In accordance w~th Artlcle XV C of this Agreement 7 F The Government shall perform a final accounting 1n accordance with Article VI.D. of this Agreement to determine the contributions provlded by the Non-Federal Sponsor in accordance with paragraphs B , D., and E of th~s Article and Articles V, X, and XV A. of this Agreement and to determine whether the Non- Federal Sponsor has met lts obligations under paragraphs B , D , and E of this Article G The Non-Federal Sponsor shall not use Federal funds to meet 1ts share of total project modification costs under th~s Agreement unless the Federal granting agency verifies in writing that the expendlture of such funds is expressly authorized by statute. ARTICLE III - LANDS, RELOCATIONS, DISPOSAL AREAS, AND PUBLIC LAW 91-646 COMPLIA/gCE A The Government, after consultation with the Non-Federal Sponsor, shall determine the lands, easements, and rights-of-way required for the Implementation, operatlon, and maintenance of the Project Mod/flcation, including those required for relocatlons, borrow materials, and dredged or excavated materlal d~sposal The Government in a tlmely manner shall provide the Non-Federal Sponsor with general written descriptlons, including maps as approprlate, of the lands, easements, and rights-of-way that the Government determines the Non-Federal Sponsor must provide, in detail suff~clent to enable the Non-Federal Sponsor to fulfill its obligations under th~s paragraph, and shall provide the Non-Federal Sponsor with a written not~ce to proceed with acquisition of such lands, easements, and rights-of-way Prior to the end of the period of implementation, the Non-Federal Sponsor shall acquire all lands, easements, and r~ghts-of-way set forth In such descrlptions Furthermore, prlor to ~ssuance of the solicltation for each constructlon contract, the Non-Federal Sponsor shall provlde the Government with authorizatlon for entry to all lands, easements, and rights-of-way the Government determines the Non-Federal Sponsor must provide for that contract. The Non-Federal Sponsor shall ensure that lands, easements, and rights-of-way that the Government determines to be required for the operation and maintenance of the Project Mod~f~cation and that were provided by the Non-Federal Sponsor are retained in public ownership for uses compatible with the authorized purposes of the Project Modification B The Government, after consultation w~th the Non-Federal Sponsor, shall determine the ~mprovements required on lands, easements, and rights-of-way to enable the proper d~sposal of dredged or excavated mater~al associated with the implementation, operation, and maintenance of the Project Modiflcatzon Such ~mprovements may include, but are not necessarily limited to, reta~nzng dikes, wasteweirs, bulkheads, embankments, monitoring features, stilling basins, and de-watering pumps and pipes The 8 Government in a timely manner shall provide the Non-Federal Sponsor with general written descriptions of such improvements in detail sufficient to enable the Non-Federal Sponsor to fulfill its obligations under this paragraph, and shall provide the Non- Federal Sponsor with a written notice to proceed with construction of such ~mprovements Prior to the end of the perzod of implementation, the Non-Federal Sponsor shall provide all improvements set forth in such descr~ptlons Furthermore, prior to issuance of the solicitation for each Government construction contract, the Non-Federal Sponsor shall prepare plans and specifications for all improvements the Government determines to be required for the proper disposal of dredged or excavated material under that contract, submit such plans and specifications to the Government for approval, and provide such · mprovements ~n accordance with the approved plans and specifications C The Government, after consultation w~th the Non-Federal Sponsor, shall determine the relocations necessary for the · mplementatlon, operatxon, and maintenance of the Project Modlflcatlon, ~ncluding those necessary to enable the removal of borrow materials and the proper dlsposal of dredged or excavated material. The Government in a timely manner shall provide the Non-Federal Sponsor with general written descriptions, including maps as appropriate, of such relocations in detail sufficient to enable the Non-Federal Sponsor to fulfill its obl~gatlons under th~s paragraph, and shall provide the Non-Federal Sponsor with a written notice to proceed with such relocations Prior to the end of the period of implementation, the Non-Federal Sponsor shall perform or ensure the performance of all relocations as set forth in such descriptions. Furthermore, prior to issuance of the solicitation for each Government construction contract, the Non-Federal Sponsor shall prepare or ensure the preparation of plans ,and specifications for, and perform or ensure the performance of, all relocations the Government determines to be necessary for that contract. D. The Non-Federal Sponsor in a timely manner shall provide the Government with such documents as are sufficient to enable the Government to determine the value of any contribution provided pursuant to paragraphs A., B , or C of this Article Upon receipt of such documents the Government, in accordance w~th Article IV of this Agreement and in a timely manner, shall determine the value of such contribution, include such value in total project modification costs, and afford credit for such value toward the Non-Federal Sponsor's share of total project modification costs. E. The Non-Federal Sponsor shall comply with the applicable provisions of the Uniform Relocatlon Assistance and Real Property Acquisition Policies Act of 1970, Public Law 91-646, as amended by Title IV of the Surface Transportatlon and 9 Uniform Relocation Assistance Act of 1987 (Public Law 100-17), and the Uniform Regulations contalned in 49 C F R Part 24, in acquiring lands, easements, and rights-of-way required for the implementation, operation, and maintenance of the Project Modification, including those necessary for relocatlons, borrow materials, and dredged or excavated mater~al dIsposal, and shall · nform all affected persons of applicable benefits, policies, and procedures in connection with said Act F The Government shall make available to the Non-Federal Sponsor by lease, substantially ~n accordance w~th Exhibit A, those lands adm~nlsteredby the Government which the Government determines to be required for the ~mplementat~on, operation and malntenance of the Project Modification If there ~s an ex~stlng lease or license covering the property required for the Project Modlflcatlon, such lease will be modified to delete this area prior to the issuance of the lease or l~cense to the Non-Federal Sponsor of the Project Modlficatlon No provision of th~s Agreement shall merge into any lease executed pursuant to this paragraph ARTICLE IV - CREDIT FOR LANDS, RELOCATIONS, AND DISPOSAL AREAS A The Non-Federal Sponsor shall receive credit toward its share of total project modiflcatlon costs for the value of the lands, easements, rights-of-way, and suitable borrow and dredged or excavated material disposal areas that the Non-Federal Sponsor must provide pursuant to Article III of thls Agreement, and for the value of the relocations that the Non-Federal Sponsor must perform or for which it must ensure performance pursuant to Article III of this Agreement. However, the Non-Federal Sponsor shall not receive cred/t for the value of any lands, easements, rights-of-way, relocations, or borrow and dredged or excavated materlal disposal areas that have been provided previously as an · tem of cooperation for another Federal pro3ect, including the Existing Project. The Non-Federal Sponsor also shall not recelve credit for the value of lands, easements, rights-of-way, relocations, or borrow and dredged or excavated material disposal areas to the extent that such items are provided using Federal funds unless the Federal granting agency verifies in writing that such credit is expressly authorized by statute B For the sole purpose of affording credit ~n accordance wxth this Agreement, the value of lands, easements, and rights- of-way, including those necessary for relocations, borrow materials, and dredged or excavated material disposal, shall be the fair market value of the real property interests, plus certain incidental costs of acquiring those 1nterests, as determined ~n accordance w~th the provisions of th~s paragraph 10 I pate of Valuation The fair market value of lands, easements, or rights-of-way owned by the Non-Federal Sponsor on the effective date of this Agreement shall be the fair market value of such real property Interests as of the date the Non-Federal Sponsor provides the Government with authorization for entry thereto However, for lands, easements, or rights-of- way owned by the Non-Federal Sponsor on the effective date of this Agreement that are required for the construction of the work-in-kind, fair market value shall be the value of such real property interests as of the date the Non-Federal Sponsor awards the f~rst construction contract for the work-in-kind, or, if the Non-Federal Sponsor performs the implementation with Its own labor, the date that the Non-Federal Sponsor begins Implementation of the work-in-kind The fair market value of lands, easements, or rights-of-way acquired by the Non-Federal Sponsor after the effective date of this Agreement shall be the fair market value of such real property Interests at the time the interests are acquired 2 General Valuation Procedure Except as provided in paragraph B 3 of th~s Article, the fair market value of lands, easements, or rights-of-way shall be determined ~n accordance with paragraph B.2 a of this Article, unless thereafter a different amount is determined to represent fair market value in accordance with paragraph B 2 b of this Article a The Non-Federal Sponsor shall obtain, for each real property interest, an appraisal that ~s prepared by a qualified appraiser who is acceptable to the Non-Federal Sponsor and the Government. The appraisal must be prepared ~n accordance with the applicable z~/les of Just compensation, as specified by the Government. The fair market value shall be the amount set forth in the Non-Federal Sponsor's appraisal, if such appraisal ls approved by the Government. In the event the Government does not approve the Non-Federal Sponsor's appraisal, the Non-Federal Sponsor may obtain a second appraisal, and the fair market value shall be the amount set forth in the Non-Federal Sponsor's second appraisal, if such appraisal is approved by the Government In the event the Government does not approve the Non-Federal Sponsor's second appraisal, or the Non-Federal Sponsor chooses not to obtain a second appraisal, the Government shall obtaln an appraisal, and the fair market value shall be the amount set forth in the ~overnment's appraisal, if such appraisal is approved by the Non-Federal Sponsor In the event the Non- Federal Sponsor does not approve the Government's appraisal, the Government, after consultation with the Non-Federal Sponsor, shall consider the Government's and the Non-Federal Sponsor's appraisals and determine an amount based thereon, which shall be deemed to be the fair market value ll b Where the amount pamd or proposed to be paid by the Non-Federal Sponsor for the real property mnterest exceeds the amount determined pursuant to paragraph B 2 a of thms Artmcle, the Government, at the request of the Non-Federal Sponsor, shall consmder all factors relevant to determmnmng famr market value and, mn mrs sole discretmon, after consultatmon wmth the Non-Federal Sponsor, may approve mn wrmtmng an amount greater than the amount determmned pursuant to paragraph B 2 a of thms Artmcle, but not to exceed the amount actually paid or proposed to be paid If the Government approves such an amount, the famr market value shall be the lesser of the approved amount or the amount paid by the Non-Federal Sponsor, but no less than the amount determined pursuant to paragraph B.2 a of thms Article 3. ~inent Domamn Valuatmon Procedure For lands, easements, or rmghts-of-way acquired by emmnent domamn proceedings instmtuted after the effective date of thms Agreement, the Non-Federal Sponsor shall, prmor to instituting such proceedings, submit to the Government notmflcatlon mn wrmtmng of its mntent to mnstitute such proceedmngs and an appramsal of the specifmc real property interests to be acquired in such proceedmngs The Government shall have 60 days after recempt of such a notice and appraisal wmthmn whmch to revmew the appraisal, if not previously approved by the Government mn wrmtlng a If the Government prevmously has approved the appraisal in writing, or if the Government provmdes wrmtten approval of, or takes no action on, the appraisal within such 60- day period, the Non-Federal Sponsor shall use the amount set forth in such appraisal as the estmmate of just compensatmon for the purpose of mnstituting the eminent domain proceedmng b If the Government provides written disapproval of the appraisal, mncluding the reasons for dmsapproval, within such 60-day period, the Government and the Non-Federal Sponsor shall consult in good famth to promptly resol~ the issues or areas of disagreement that are identmfmed mn the Government's written disapproval If, after such good faith consultation, the Government and the Non-Federal Sponsor agree as to an appropriate amount, then the Non-Federal Sponsor shall use that amount as the estimate of just compensation for the purpose of instituting the eminent domamn proceeding. If, after ,such good faith consultation, the Government and the Non- Federal Sponsor cannot agree as to an appropriate amount, then the Non-Federal Sponsor may use the amount set forth in its appraisal as the estimate of ]ust compensation for the purpose of instituting the eminent domain proceeding c For lands, easements, or rights-of-way acquired by eminent domain proceedmngs mnst~tuted mn accordance with sub-paragraph B 3. of this Article, famr market value shall 12 be either the amount of the court award for the real property interests taken, to the extent the Government determined such ~nterests are required for the ~mplementat~on, operation, and maintenance of the Project Modification, or the amount of any stipulated settlement or portion thereof that the Government approves an writing 4 ~ For lands, easements, or rights-of-way acquired by the Non-Federal Sponsor w~thln a f~ve-year period preceding the effective date of this Agreement, or at any time after the effective date of this Agreement, the value of the interest shall include the documented ~ncldental costs of acquiring the interest, as determined by the Government, subject to an audit an accordance with Article X C of this Agreement to determine reasonableness, allocablllty, and allowability of costs Such incidental costs shall include, but not necessarlly be limited to, closing and title costs, appraisal costs, survey costs, attorney's fees, plat maps, and mapping costs, as well as the actual amounts expended for payment of any Public Law 91-646 relocation assistance benefits provided in accordance wlth Article III E of this Agreement C After consultation w~th the Non-Federal Sponsor, the Government shall determine the value of relocations ~n accordance with the provisions of this paragraph 1 For a relocation other than a highway, the value shall be only that portion of relocatlon costs that the Government determines Ks necessary to provide a functionally equivalent facility, reduced by depreciation, as applicable, and by the salvage value of any removed items 2 For a relocation of a highway, the value shall be only that portion of relocation costs that would be necessary to accomplish the relocation in accordance with the design standard that the State of Texas would apply under similar condltlons of geography and traffic load, reduced by the salvage value of any removed items 3 Relocation costs shall include, but not necessarily be limited to, actual costs of performing the relocation; planning, engineering and design costs, supervision and administration costs; and documented Incidental costs associated with performance of the relocation, but shall not include any costs due to betterments, as determined by the Government, nor any additional cost of using new material when suitable used material is available Relocation costs shall be subject to an audit in accordance with Article X C of this Agreement to determine reasonableness, allocablllty, and allowability of costs 13 D The value of the improvements made to lands, easements, and r~ghts-of-way for the proper disposal of dredged or excavated material shall be the costs of the improvements, as determined by the Government, subject to an audit in accordance with Article X C of this Agreement to determlne reasonableness, altocablllty, and allowabilmty of costs Such costs shall include, but not necessarmly be limited to, actual costs of provmdlng the mmprovements; planning, engmneermng and design costs, supervlsmon and admlnmstratmon costs, and documented incidental costs assoclated with provldlng the Improvements, but shall not Include any costs due to betterments, as determmned by the Government ARTICLE V - PROJECT MODIFICATION COORDINATION TEAM A To provmde for consmstent and effectxve communlcatmon, the Non-Federal Sponsor and the Government, not later than 30 days after the effectlve date of thms Agreement, shall appoint named senmor representatives to a Project Modmficatmon Coordination Team Thereafter, the Project Modiflcatmon Coordmnation Team shall meet regularly untll the end of the per~od of mmplementation. The Government's Project Manager and a counterpart named by the Non-Federal Sponsor shall co-chamr the Project Modmficatlon Coordinatmon Team B The Government's Project Manager and the Non-Federal Sponsor's counterpart shall keep the Project Modmfmcatlon Coordination Team informed of the progress of mmplementation and of smgnificant pendmng issues and actmons, and shall seek the views of the Project Modificatmon Coordlnation Team on matters that the Project Modification Coordination Team generally oversees. C Until the end of the per~od of ~mplementation, the Project Modlficatlon Coordination Team shall generally oversee the Project Modification, including 1ssues related to design, plans and speclficatlons; scheduling, real property and relocation req%lirements; real property acquisition, contract awards and modifications; contract costs, the Government's cost projections; final inspection of the entire Project Modification or functional portions of the Project Modlfication, preparation of the proposed OMRR&R Manual, anticipated requirements and needed capabilities for performance of operation, maintenance, repair, replacement, and rehabilitation of the Project Modification; and other related matters D The Pro]ect Modification Coordination Team may make recommendations that it deems warranted to the D~strlct Engineer on ma~ters that the Project Modificatlon Coordination Team generally oversees, including suggestions to avoid potential sources of dispute. The ~overnment in good faith shall consider the recommendations of the Project Modification Coordination Team The Government, having the legal authority and 14 responslblllty for implementation of the Project Modification, has the discretion to accept, reject, or modify the Project Modmfmcatlon Coordination Team's recommendations E The costs of participation in the Project Modification Coordination Team shall be lncluded ~n total project modlf~catlon costs and cost shared ~n accordance w~th the provisions of this Agreement ARTICLE VI - METHOD OF PAYMENT A The Government shall maintain current records of contributions provided by the part,es and current projections of total project modification costs and costs due to betterments At least quarterly, the Government shall provide the Non-Federal Sponsor with a report setting forth all contrlbutlons provided to date and the current pro]ections of total project modiflcatlon costs, of total costs due to betterments, of the components of total project modlflcation costs, of each party's share of total project modification costs, of the Non-Federal Sponsor's total cash contributions required in accordance with Articles II B , II D , and II E of this Agreement, and of the non-Federal proportionate share On the effective date of thls Agreement, total project modification costs are projected to be $~13.200, and the Non-Federal Sponsor's cash contribution required under Artlcle II D of this Agreement is projected to be $49.300 Such amounts are estlmates sub]ect 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 Non-Federal Sponsor shall provide the cash contr~butzon required under Article II D 2 of this Agreement an accordance wxth the following prov~slons Not less than 60 calendar days prior to the scheduled date for issuance of the solicitation for the first construction contract, the Government shall notlfy the Non-Federal Sponsor in writing of such scheduled date and the funds the Government, after consideration of any credit afforded pursuant to Article II D 4 of this Agreement, determines to be required from the Non-Federal Sponsor to meet lts projected cash contribution under Article II D 2 of this Agreement. Not later than such scheduled date, the Non-Federal Sponsor shall provide the Government with the full amount of the requlred funds by delivering a check payable to "FAO, US;tED, Fort Worth District" to the U.S. A~,.~ Corl~s of Engineers Finance Center, CEFC-AD-C EROC M2, 5720 Integrxty Drive, Mlllington, TN 38054-5005. The Government shall draw from the funds provided by the Non-Federal Sponsor such sums as the Government, after consideration of any credit afforded pursuant to Article II D 4 of this Agreement, deems necessary to cover (a) the non-Federal proportionate share of flnancial obligations for ~mplementation lncurred prlor to commencement of the period of lmplementation; and (b) the non-Federal proportlonate share of financial obllgatlons for implementation as they are incurred 15 during, the period of Implementation In the event the Government determines that the Non-Federal Sponsor must provide addlt~onal funds to meet the Non-Federal Sponsor's cash contribution, the Government shall notify the Non-Federal Sponsor in writing of the add~tlonal funds required. W~th~n 60 calendar days thereafter, the Non-Federal Sponsor shall provide the Government with a check for the full amount of the addlt~onal required funds C In advance of the Government incurring any flnanc~al obligation assoclated wlth additional work under Article II B or II E of this Agreement, the Non-Federal Sponsor shall provide the Government wlth the full amount of the funds required to pay for such additional work by dellver~ng a check payable to "FAO, USAED, Fort Worth District" to the U S Army Corps of Engineers Flnance Center, CEFC-AD-C EROC M2, 5720 Integrlty Dr~ve, Mlll/ngton, TN 38054-5005 The Government shall draw from the funds provlded by the Non-Federal Sponsor such sums as the Government deems necessary to cover the Government's f~nanc~al obllgations for such additional work as they are incurred In the event the Government determines that the Non-Federal Sponsor must provide additional funds to meet ~ts cash contrlbutlon, the Government shall notify the Non-Federal Sponsor in wrltlng of the add~tlonal funds required Within 30 calendar days thereafter, the Non-Federal Sponsor shall provide the Government with a check for the full amount of the additional required funds D. Upon completion of the Project Modification or term~natlon of this Agreement, and upon resolution of all relevant clalms and appeals, the Government shall conduct a f~nal accounting and furnish the Non-Federal Sponsor with the results of the final accounting. The final accounting shall determlne total project modificatlon costs, each party's contr~butlon provlded thereto, and each party's required share thereof. The f~nal accounting also shall determine costs due to betterments and the Non-Federal Sponsor's cash contrlbut~on provided pursuant to Article II.B. of this Agreement 1. In the event the final accounting shows that the total contribution providedby the Non-Federal Sponsor is less than its required share of total project modifxcatxon costs plus costs due to any betterments provided in accordance with Article II B of this Agreement, the Non-Federal Sponsor shall, no later than 90 calendar days after receipt of written notice, make a cash payment to the Government of whatever sum is requxred to meet the Non-Federal Sponsor's required share of total project modification costs plus costs due to any betterments provxded in accordance with ;%rtxcle II.B. of this Agreement 2 In the event the f~nal accounting shows that the total contribution provided by the Non-Federal Sponsor exceeds · ts required share of total project modiflcation costs plus costs due to any betterments provided in accordance with Article II B 16 of this Agreement, the Government shall, subject to the availability of funds, refund the excess to the Non-Federal Sponsor no later than 90 calendar days after the final accounting is complete. In the event existing funds are not available to refund the excess to the Non-Federal Sponsor, the Government shall seek such appropr~ations as are necessary to make the refund ARTICLE VII - DISPUTE RESOLUTION AS a condition precedent to a party bringing any suit for breach of this Agreement, that party must first notify the other party in wrlting of the nature of the purported breach and seek in good falth to resolve the dispute through negotiation If the partles cannot resolve the dispute through negotiation, they may agree to a mutually acceptable method of non-binding alternative dispute resolution with a quallfied third party acceptable to both parties The parties shall each pay 50 percent of any costs for the services provided by such a third party as such costs are incurred. The existence of a dispute shall not excuse the parties from performance pursuant to this Agreement ARTICLE VIII OPERATION, MAINTENANCE, REPAIR, REPLACEMENT, AND REHABILITATION (OMRR&R) A. Upon notlflcation in accordance w~th Article II C of th~s Agreement and for so long as the Project Modification remains authorized, the Non-Federal Sponsor shall operate, maintain, repair, replace, and rehabllltate the entire Project Modification or the functional portion of the Pro3ect Modification, at no cost to the Government, in a manner compatible with the Project Modification's authorized purposes and in accordance with applicable Federal and State laws as provided in Article XI of this Agreement and specific dlrectlons prescribed by the Government in the OMRR&R Manual and any subsequent amendments thereto B The Non-Federal Sponsor hereby gives the Government a right to enter, at reasonable times and ~n a reasonable manner, upon property that the Non-Federal Sponsor owns or controls for access to the Project Modification for the purpose of inspection and, if necessary, for the purpose of completing, operating, maintaining, repairing, replaclng, or rehabilitating the Project Modification. If an inspection shows that the Non-Federal Sponsor for any reason is failing to perform its obligations under this Agreement, the Government shall send a written notice describing the non-performance to the Non-Federal Sponsor If, after 30 calendar days from receipt of the notice, the Non- Federal Sponsor continues to fail to perform, then the Government shall have the right to enter, at reasonable times and in a reasonable manner, upon property the Non-Federal Sponsor owns or controls for access to the Project Modlfication for the purpose 17 of completing, operating, maintaining, repairing, replacing, or rehabilitating the Pro3ect Modification No completion, operation, maintenance, repair, replacement, or rehabll~tatlon by the Government shall operate to relieve the Non-Federal Sponsor's obllgations as set forth in this Agreement, or to preclude the Government from pursuing any other remedy at law or equity to ensure faithful performance pursuant to th~s Agreement ARTICLE IX - INDEMNIFICATION The Non-Federal Sponsor shall hold and save the Government free from all damages arlsing from the ~mplementat~on, operatlon, maintenance, repair, replacement and rehabilitation of the Pro]ect Modification, and any Project Modification-related betterments, except for damages due to the fault or negligence of the Government or 1ts contractors. ARTICLE X - MAINTENANCE OF RECORDS AND AUDIT A Not later than 60 calendar days after the effective date of this Agreement, the Government and the Non-Federal Sponsor shall develop procedures for keeplng books, records, documents, and other evidence pertaining to costs and expenses ~ncurred pursuant to thls Agreement These procedures shall incorporate, and apply as appropriate, the standards for financial management systems set forth ~n the Un~form Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments at 32 C F R. Section 33 20 The Government and the Non-Federal Sponsor shall maintain such books, records, documents, and other evidence ~n accordance wzth these procedures and for a minimum of three years after the per~od of lmplementation and resolution of all relevant claims arislng therefrom To the extent permitted under applicable Federal laws and regulations, the ~overnment and the Non-Federal Sponsor shall each allow the other to inspect such books, documents, records, and other evidence B Pursuant to 32 C.F R Section 33 26, the Non-Federal Sponsor is responsible for complying wlth the Single Audit Act of 1984, 31 U.S.C. Sections 7501-7507, as implemented by Office of Management and Budget (OMB) Circular No A-133 and Department of Defense Directive 7600.10. Upon request of the Non-Federal Sponsor and to the extent permitted under applicable Federal laws and regulations, the Government shall provide to the Non-Federal Sponsor and independent auditors any information necessary to enable an audit of the Non-Federal Sponsor's act~vltles under th~s Agreement. The costs of any non-Federal audits performed in accordance with thls paragraph shall be allocated ~n accordance with the provisions of OMB Circulars A-87 and A-133, and such costs as are allocated to the Project Modification shall be lncluded in total project modlficat~on costs and cost shared in accordance with the provisions of thls Agreement 18 C In accordance with 31 U S C Section 7503, the Government may conduct audits in addition to any audit that the Non-Federal Sponsor ~s required to conduct under the S~ngle Audit Act ~Jly such Government audits shall be conducted in accordance with Government Audltlng Standards and the cost principles ~n OMB Circular No. A-87 and other appllcable cost principles and regulations The costs of Government audits performed in accordance w~th thls paragraph shall be included ~n total project modification costs and cost shared ~n accordance w~th the provisions of this Agreement ARTICLE XI FEDEP~YL AND STATE LAWS In the exercise of their respective r~ghts and obligations under thls Agreement, the Non Federal Sponsor and the Government agree to comply with all appllcable Federal and State laws and regulatlons, includlng, but not limited to, Section 601 of the Civil Rights Act of 1964, Public Law 88-352 (42 U S C 2000d), and Department of Defense Directlve 5500 11 ~ssued pursuant thereto, as well as Army Regulations 600-7, entitled "Nondiscrlm~nation on the Basis of Handicap in Programs and Act~vitles Asslsted or Conducted by the Department of the Azmy, and Section 402 of the Water Resources Development Act of 1986, as amended (33 U S.C 701b-12), requiring non-Federal preparation and implementation of flood plain management plans ARTICLE XII - RELATIONSHIP OF PARTIES A In the exercise of their respective r~ghts and obligations under th~s Agreement the Government and the Non- Federal Sponsor each act in an independent capacity, and neither · s to be considered the officer, agent, or employee of the other B. In the exercise of lts r~ghts and obllgatlons under this Agreement, neither party shall provlde, wlthout the consent of the other party, any contractor with a release that waives or purports to waive any rights such other party may have to seek relief or redress against such contractor elther pursuant to any cause of action that such other party may have or for violation of any law. ARTICLE XIII - OFFICIAJ~S NOT TO BENEFIT No me.er of or delegate to the Congress, nor any resident commissioner, shall be admitted to any share or part of th~s Agreement, or to any benefit that may ar~se therefrom 19 ARTICLE XIV - TERMINATION OR SUSPENSION A If at any time the Non-Federal Sponsor falls to fulfill 1ts obligations under Article II.B , II D , II E , VI, or XVIII C of this Agreement, the Assistant Secretary of the Army (Civil Works) shall terminate this Agreement or suspend future performance under this Agreement unless he determines that continuation of work on the Project Modlficat~on is ~n the ~nterest of the United States or is necessary ~n order to satisfy agreements with any other non-Federal ~nterests in connection with the Project Modification B. If appropriations are not available in amounts sufficient to meet the ~overnment's share of Project Modification expenditures for the then-current or upcoming fiscal year, the Government shall so notify the Non-Federal Sponsor in writing, and 60 calendar days thereafter either party may elect without penalty to terminate this Agreement or to suspend future performance under this Agreement. In the event that either party elects to suspend future performance under this Agreement pursuant to this paragraph, such suspension shall remain ~n effect until such time as the Government receives sufficient appropriations or until either the Government or the Non-Federal Sponsor elects to terminate this Agreement C. In the event that either party elects to terminate this Agreement pursuant to this Article or Article XV of this Agreement, both parties shall conclude their activities relating to the Project Modification and proceed to a final accounting ~n accordance with Article VI.D. of this Agreement D. Any termination of this Agreement or suspension of future performance under this Agreement in accordance with this Article or Article XV of this Agreement shall not relieve the parties of any obligation previously incurred Any delinquent payment shall be charged interest at a rate, to be determined by the Secretary of the Treasury, equal to 150 per centum of the average bond equivalent rate of the 13-week Treasury 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 per~od if the period of delinquency exceeds 3 months. ARTICLE XV - HAZARDOUS SUBSTANCES A. After execution of this Agreement and upon direction by the District Engineer, the Non-Federal Sponsor shall perform, or cause to be performed, any investigations for hazardous substances that the ~overnment or the Non-Federal Sponsor determines to be necessary to identify the existence and extent of any hazardous substances regulated under the Comprehensive Environmental Response, Compensation, and L~abillty Act 20 (hereinafter "CERCLA"), 42 U S C Sections 9601-9675, that may exist in, on, or under lands, easements, and r~ghts-of-way that the Government determines, pursuant to Article III of this Agreement, to be required for the ~mplementatlon, operation, and maintenance of the Project Modification, except for any such lands, easements, or rights-of-way that are owned by the United States and adminlstered by the Government, and except for any such lands that the Government determines to be subject to the navigation servitude The Government shall perform, or cause to be performed, all Investigations on lands, easements, or rights- of-way that are owned by the United States and administered by the Government. For lands that the Government determines to be subject to the navigation servitude, only the Government shall perform such investlgations unless the District Engineer provides the Non-Federal Sponsor with prior specific written direction, in which case the Non-Federal Sponsor shall perform such investigations in accordance with such written d~rect~on All actual costs incurred by the Non-Federal Sponsor or the Government for such investigations for hazardous substances shall be zncluded in total project modification costs and cost shared ~n accordance with the provisions of th~s Agreement, subject to an audit in accordance with Article X C of this Agreement to determine reasonableness, allocablllty, and allowability of costs. B. In the event it is discovered through any ~nvestlgatlon for hazardous substances or other means that hazardous substances regulated under CERCLA exist in, on, or under any lands, easements, or rights-of-way, that the Government determines, pursuant to Article III of this Agreement, the Non-Federal Sponsor must provide for the Implementation, operation, and maintenance of the Project Modification, the Non-Federal Sponsor and the Government shall provide prompt written notice to each other, and the Non-Federal Sponsor shall not proceed w~th the acqu~sition of the real property interests until both parties agree that the Non-Federal Sponsor should proceed C. The Government and the Non-Federal Sponsor shall determine whether to initiate implementation of the Pro]ect Modification, or, if already in lmplementatlon, whether to continue with work on the Project Modification, suspend future perfor~aance under this Agreement, or termlnate this Agreement for the convenience of the Government, in any case where hazardous substances regulated under CERCLA are found to exist in, on, or under any lands, easements, or rights-of-way that the Government deter~ines, pursuant to Article III of this Agreement, to be required for the implementation, operation, and maintenance of the Project Modification. Should the Government and the Non- Federal Sponsor determine to initiate or continue with implementation after considering any liability that may arise under CERCLA, the Non-Federal Sponsor shall be responsible, as between the Government and the Non-Federal Sponsor, for the costs 21 of clean-up and response, to Include the costs of any studies and investigations necessary to determine an appropriate response to the contamination on lands, easements or rights of way that the Government determines, pursuant to Article III of this Agreement, to be required for the implementation, operation, and maintenance of the Project Modlf~catlon, except for any such lands, easements, or rights-of-way owned by the United States and administered by the Government Such costs shall not be considered a part of total project modlf~catzon costs In the event the Non-Federal Sponsor fails to provide any funds necessary to pay for clean up and response costs or to otherwise discharge the Non-Federal Sponsor's responsibilities under this paragraph upon direction by the Government, the Government may, in its sole discretion, either terminate this Agreement for the convenience of the Government, suspend future performance under this Agreement, or continue work on the Project Modification The Government shall be responsible, as between the Government and the Non-Federal Sponsor, for the costs of clean-up and response, to include the costs of any studies and investigations necessary to determine an appropriate response to the contamination on lands, easements, or rights of way owned by the United States and administered by the Government All costs Incurred by the Government shall be included in total project modification costs and cost shared in accordance with the terms of th~s Agreement D The Non-Federal Sponsor and the Government shall consult with each other in accordance with Article V of this Agreement in an effort to ensure that responsible parties bear any necessary cleanup and response costs as defined in CERCLA Any decision made pursuant to paragraph C of this Article shall not relieve any third party from any liability that may arise under CERCLA. E As between the Government and the Non-Federal Sponsor, the Non-Federal Sponsor shall be considered the operator of the Project Modification for purposes of CERCLA liability To the maximum extent practicable, the Non-Federal Sponsor shall operate, maintain, repair, replace, and rehabilitate the Project Modification in a manner that will not cause liability to arise under CERCLA. ARTICLE XVI - NOTICES A. Any notice, request, demand, or other communlcation required or permitted to be given under this Agreement shall be deemed to have been duly given if in wr~tlng and either delivered personally, or by telegram, or mailed by flrst-class, registered, or certified mail, as follows. If to the Non-Federal Sponsor Mayor Clty of Denton 215 East McKinney Street Denton, Texas 76201 If to the Government: Dlstrlct Engineer U S Army Corps of Engineers Fort Worth Distr~ct P O Box 17300 Fort Worth, Texas 76102-0300 B A party may change the address to which such communzcat~ons are to be directed by giving written not,ce to the other party ~n the manner provlded in th~s Article C Any not,ce, request, demand, or other commun~catlon made pursuant to th~s Article shall be deemed to have been received by the addressee at the earlier of such t:me as ~t as actually receaved or seven calendar days after at as ma~led ARTICLE XVII CONFIDENTIALITY To the extent permitted by the laws governing each party, the parties agree to maintain the confldentaalaty of exchanged information when requested to do so by the providing party ARTICLE XVIII - HISTORIC PRESERVATION A The costs of ~dentif~catlon, survey and evaluataon of hlstoric properties shall be zncluded in total project modafacatlon costs and cost shared in accordance with the provasions of this Agreement B. Pursuant to Section 7(a) of Public Law 93-291 (16 U S C. Section 469c(a)), the costs of mitigation and data recovery activities associated wlth historic preservation shall be borne entirely by the C~overnment and shall not be included in total project modification costs, up to the statutory limit of one percent of the total amount the Government is authorized to expend for the Project Modiflcatlon C The Government shall not ~ncur costs for m~t~gatlon and data recovery that exceed the statutory one percent llmit specified in paragraph B. of this Article unless and until the Assastant Secretary of the Army (Cavil Works) has waived that llmlt zn accordance with Section 208(3) of Public Law 96-515 (16 U S C. Section 469c-2(3)). Any costs of m~t~gatlon and data 23 recovery that exceed the one percent limit shall be included in total project modlf~catlon costs and shall be cost shared ~n accordance wlth the provisions of this Agreement ARTICLE XIX - LIMITATION ON GOVERNMENT EXPENDITURES Notwithstanding any other provlslons of this Agreement, the Government=s fmnanclal obligations are limited to $5,000,000 The Non-Federal Sponsor shall be responsible for all total pro]ect modification costs that exceed th~s amount IN WITNESS WHEREOF, the part~es hereto have executed th~s Agreement, whzch shall become effective upon the date it is smgned by the Department of the Army THE DEPARTMENT OF THE ARMY THE CITY OF DENTON, TEXAS BY ,.~{,[~2 %_.,-.~ _ BY Col~, Corps of Engineers May~ Dzstrlct Engineer Fort Worth Dlstr~ct 24 CERTIFICATE OF AUTHORITY I, ~/~F~- L- ~o~ do hereby certify that I am the principal legal officer of the City of Denton, Texas, that the City of Denton, Texas, ts a legally constituted public body with full authority and legal capability to perform the terms of the Agreement between the Department of the Army and the City of Denton, Texas, in connection with the Lewlsvllle Lake W~ldllfe Management Area Modification Pro]ect, and to pay damages in accordance with the terms of this Agreement, if necessary, ~n the event of the failure to perform, and that the persons who have executed this Agreement on behalf of the City of Denton, Texas, have acted within their statutory authority IN WITNESS WHEREOF, I hav~ made and exe~ute~thls 19// certification this ~ day of HERB PROUTY [TYPED NAME] City Attorney [TITLE IN FULL] 25 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 ~nfluence 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 wlth 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 pa~d to any person for ~nfluenc~ng or attempting to ~nfluence 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 ~n connection with th~s Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with ~ts 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 subreclp~ents shall certify and disclose accordlngly Th~s certification is a mater~al representation of fact upon which reliance was placed when thls transaction was made or entered into Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U S Code Any person who falls to f~le the required certification shall be subject to a Clvll penalty of not less than $10,000 and not more than $100,000 for each such failure JACK MILLER [TYPED NAME] Mayor [TITL~ IN FULL] 26