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
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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