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HomeMy WebLinkAboutResolution No. 2011-67the of KENAI, ALASKA Suggested by: Administration CITY OF KENAI RESOLUTION NO. 2011 -67 A RESOLUTION OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, AUTHORIZING THE CITY MANAGER TO ENTER INTO AN AGREEMENT WITH THE DEPARTMENT OF THE ARMY IN THE AMOUNT OF $253,844.50 TO COMPLETE A FEASIBILITY STUDY FOR THE KENAI RIVER BLUFF EROSION PROJECT. WHEREAS, the Secretary of the Army is authorized by Section 116 of the Energy and Water Development and Related Agencies Appropriations Act, 2010, Public Law 111- 85 to carry out structural and non - structural projects for storm damage prevention and reduction, coastal erosion, and ice and glacial damage in Alaska, including relocation of affected communities and construction of replacement facilities; and, WHEREAS, the Lower Kenai River has eroded the Kenai River Bluff through the original town site of Kenai at an estimated rate of three feet per year, causing the loss of public and private infrastructure, buildings, and lands; and, WHEREAS, the Department of the Army, Corps of Engineers, has received multiple Congressional appropriations to undertake planning and studies to determine the feasibility of the construction of an erosion control structure to halt the erosion of the Kenai River Bluff in the area of the original town site of Kenai; and, WHEREAS, Section 105(a) of the Water Resources Development Act of 1986, Public Law 99 -662, as amended (33 U.S.0 2215(a)), specifies the cost sharing requirements applicable to this study, which requires a fifty percent (50 %) local share for costs which exceed $100,000.00; and, WHEREAS, the total estimated cost of the study is $640,989.00, and the estimated non - Federal Sponsor's contribution is $270,494.50, less an in -kind contribution of $16,500.00; and, WHEREAS, the State of Alaska has provided appropriations in the total amount of $4,000,000.00 to the City of Kenai for this project which may be used for the non - Federal Sponsor's contribution; and, WHEREAS, for the project to move forward it is necessary to prepare the final Feasibility Study which will include the following tasks: 1. Project Management 2. Project Formulation 3. Economic Analyses 4. Environmental Coordination and Completion of National Env Policy Act (NEPA) Documentation onmental Resolution No. 2011 -67 Page 2 of 2 5. A Biological Assessment of Beluga Whales in the Kenai River below the Warren Ames Bridge, submitted to the National Marine Fisheries Service (NMFS) 6. A Biological Assessment of Steller Sea Lions at the mouth of the Kenai River, submitted to the NMFS 7. Real Estate Documentation 8. Engineering 9. Cost Estimating NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, that the City Manager is authorized to enter into an agreement with the Department of the Army in the amount of $253,844.50 to complete a Feasibility Study for the Kenai River Bluff Erosion Project. PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this 21st day of September, 2011. ATTEST: Corene Hall, Acting City Clerk Approved by Finance: %✓e'° = _ New Text Underlined' [DELETED TEXT BRACKETEDJ KENAI`ALASKA "Village with a Past, Gi with a Future" 210 Fidalgo Avenue, Kenai, Alaska 99611 -7794 Telephone: 907 - 283 -7535 / FAX: 907 - 283 -3014 III I I' 1992 MEMO: TO: City Council FROM: Rick Koch DATE: September 14, 2011 SUBJECT: Resolution 2011 -67 The purpose of this correspondence is to recommend Council approval of the above - referenced resolution. The effect of this resolution is to authorize the City Manager to enter into an agreement with the US Army, Corps of Engineers (COE), for the creation of a "Final Feasibility Study" to be accomplished by the COE. The City would be responsible to provide funding in the estimated amount of $253,994.50, and for in -kind contributions of $16,500.00. The source of the City's matching share is from State of Alaska capital appropriations totaling $4,000,000.00 of which $2,250,000.00 has already been appropriated to this project by the City. This Study, including the National Environmental Policy Act (NEPA) documentation, and Environmental Impact Statement (EIS), is generally the final planning document prior to final design and construction. It is Administration's view that this is very positive step for this important project. The attached draft of the agreement contains the City's written comments which are being incorporated into the document by the COE. Thank you for your attention in this matter. AGREEMENT BETWEEN HE DEPARTMENT OF THE ARMY AND CITY OF KENAI FOR THE KENAI RIVER BLUFF EROSION THIS AGREEMENT is entered into this day of , by and between the Department of the Army (hereinafter the "Government"), represented by the U.S. Army Engineer, Alaska District and City of Kenai (hereinafter the "Non- Federal Sponsor "), represented by TITLE OF THE SPONSOR'S REPRESENTATIVE SIGNING TIIF AGREEMENT, k- c 1 1 sky • WITNESSETH, THAT: WHEREAS, the Secretary of the Army is authorized by Section 116 of the Energy and Water Development and Related Agencies Appropriations Act, 2010, Public Law 111 -85 (hereinafter "Section 116") to catty out structural and non - structural projects for storm damage prevention and reduction, coastal erosion, and ice and glacial damage in Alaska, including relocation of affected communities and construction of replacement facilities; WHEREAS, the Government received a letter, dated, (date format month day, year) , from the City of Kenai in which it stated its desire to participate in a feasibi study under Section 116 at Kenai , Alaska, and in which it acknowledged the non - Federal financial responsibilities for the study and a project, if one is recommended; y WHEREAS, the Government and the Non - Federal Sponsor desire to enter into an agreement (hereinafter the "Agreement ") to complete the feasibility study (hereinafter the "Study" as defined in Article LA. of this Agreement) and to share equally the costs of the Study that exceed 5100,000; WHEREAS, Section 105(a) of the Water Resources Development Act of 1986, Public Law 99 -662, as amended (33 U.S.C. 2215(a)), specifies the cost- sharing requirements applicable to the Study; WHEREAS, the Non - Federal Sponsor desires to receive credit toward its required . contribution of funds for the Study in accordance with the provisions of this Agreement for certain work (hereinafter the "in -kind contributions" as defined m Article I.I. of this Agreement) that are necessary to prepare the feasibility report; WHEREAS, th.e Non- Federal Sponsor may offer, in writing, for the Government to accelerate use of all or a portion of its required contribution of funds for the Study; WHEREAS, the Govemreni and the Non-Federal Sponsor have the full authority and capability to perform as hereinafter set forth and intend to cooperate in cost- sharing and financing of the Study in accordance with the terms of this Agreement; and WHEREAS, in carrying out this Agreement, consistent' with Section 2003(0 of the Water Resources Development Act of 2007, Public Law 110 -i 14, the Goveraunentand the Non- Federal Sponsor are committed to the goal of furthering partnership and cooperation, including maintaining a relationship in which communication, teamwork, and trust help to prevent disputes and further the successful completion of the Study. NOW, THEREFORE, the Government and. the Non - Federal Sponsor agree as follows: ARTICLE 1— DEFINITIONS A. The tern " Study" shall mean the activities and tasks required to identify and evaluate alternatives and the preparation of a decision document that, when appropriate, recommends a coordinated and implementable solution for ongoing erosion on the north bank of the Kenai River at Kenai, Alaska. The term includes the in -kind contributions described in paragraph I. of this Article. B. The term "total study costs" shall mean the sum of all costs incurred by the Non-Federal Sponsor and the Government in accordance with the terms of this Agreement directly related to performance of the Study plus the costs of the Study incurred by the Government prior to the effective date of this Agreement. Subject to the provisions of this Agreement, the term shall include, but is not necessarily limited to: the Government's costs of plan formulation and evaluation, including applicable economic, engineering;; real estate, and enviromnental analyses; the Government's costs of preparation of the decision document for the Study; the amount of credit the Government affords for in -kind contributions in accordance with ArticlelLB.4. of this Agreement; the Government's costs of independent technical review and other review processes required by the Government; the Government's supervision and administration costs; the Non - Federal Sponsor's and the Government's costs of participation in the Study Coordination Team in accordance with Article III of this Agreement; the Government's costs of contract dispute settlements or awards; and the Non- Federal Sponsor's and the Government's costs of audit in accordance with Article VI.13. and Article V1C. of this Agreement. The tern does not include the $100,000 incurred by the Government for the Study; any costs of dispute resolution under Article V of this Agreement; any costs incurred as part of reconnaissance studies or feasibility studies under any other agreement or program; the Non - Federal Sponsor's costs of this Agreement; or any costs of negotiating a project cooperation agreement for design and construction of a project or separable element thereof. C. The tern `period of study" shall mean the time from the effective date of this Agreement to the date that the decision document for the study is duly approved by the Government or the date that this Agreement is terminated in accordance with Article IX of this 2 Agreement. D. The term "financial obligations for the study" shall mean the financial obligations of the Government and the costs for the in -kind contributions, as determined by the Government, that result or would result in costs that are or would be included in total study costs. E. The term "non Federal proportionate share" shall mean the ratio of the sum of the costs included in total study costs for the in -kind contributions, as determined by the Govenunent, and the Non - Federal Sponsor's contribution of funds required by Article II.B.I.b. of this Agreement to financial obligations for the study, as projected by the Government. F. The term "Federal program funds" shall mean funds provided by a Federal agency, other than the Department of the Army, plus any non - Federal contribution required as a matching share therefor. G. The term "fiscal year" shall mean one year beginning on October 1 and ending on September 30. H. The term "PMP " shall mean the project management plan, and any modifications thereto, developed by the Government, and agreed to by the Non- Federal Sponsor, that specifies the scope, cost, and schedule for Study activities and guides the performance of the Study through the period of study. 1. The term "in -kind contributions" shall mean planning, supervision and administration, services, materials, supplies, and other in -kind services that are performed or provided by the Non- Federal Sponsor after the effective date of this Agreement in accordance with the PMP and that are necessary for performance of the Study. J. The term "sufficient invoice" shall mean documentation provided by the Non- Federal Sponsor containing the following: (1) a written certification by the Non- Federal Sponsor to the Government that it has made specified payments to contractors, suppliers, or employees for in- kind contributions and contributions under Article III and Article VI of this Agreement in accordance with the provisions of this Agreement; (2) copies of all relevant invoices and evidence of such payments; (3) written identification of costs that have been paid with Federal program funds; and (4) a written request for credit of a sum certain amount not in excess of such specified payments. ARTICLE II - OBLIGATIONS OF THE GOVERNMENT AND THE NON - FEDERAL SPONSOR A. The Government, subject to receiving funds appropriated by the Congress of the United States (hereinafter the "Congress ") and using those funds and funds provided by the Non- Federal Sponsor, expeditiously shall conduct the Study, except for the in -kind contributions, applying those 3 procedures usually applied to Federal projects, in accordance with Federal laws, regulations, and policies. The Non- Federal Sponsor expeditiously shall perform or provide the in -kind contributions in accordance with applicable Federal, State, and local laws, regulations, and policies. 1.. The Government shall not issue the solicitation for the first contract for the Study or continence the Study using the Government's own forces until the Non-Federal Sponsor has confirmed in writing its willingness to proceed with the Study. 2. To the extent possible, the Government and the Non - .Federal Sponsor shall conduct the Study in accordance with the PMP. 3. The Government shall afford the Non - Federal Sponsor the opportunity to review and comment on all products that are developed by contractor by Government personnel during the period of study. The Government shall consider in, good faith the comments of the Non - Federal. Sponsor, but the final approval of all Study products shall be exclusively within the control of the Government. 4. The Government shall afford the Non - Federal Sponsor the opportunity to review and comment on the solicitations for all Government contracts and the relevant scopes of work prior to the Government's issuance of such solicitations. To the extent possible, the Government shall afford the Non-Federal Sponsor the opportunity to review and comment on all proposed contract modifications, including change orders, prior to the issuance to the contractor of a Notice to Proceed. In any instance where providing the Non- Federal Sponsor with notification of a contract modification or change order is not possible prior to issuance of the Notice to Proceed, the Government shall provide such notification in writing at the earliest date possible. To the extent possible, the Goverrunent also shall afford the Non - Federal Sponsor the opportunity to review and comment on all contract claims prior to resolution thereof. In the event the Government performs all or some of the work on the Study using its own forces, the Government shall afford the Non - Federal Sponsor the opportunity to review and comment on the relevant scopes of work prior to commencement of such work using the Government's own forces. The Government shall consider in good faith the comments of the Non - Federal Sponsor, but the contents of solicitations, scopes of work, award of contracts or work on the Study using the Government's own forces, execution of contract modifications, resolution of contract claims, and performance of all work on the Study, except for the in -kind contributions, shall be exclusively within the control of the Government. 5. At the time the U.S. Army Engineer, Alaska District (hereinafter the "District Engineer ") furnishes the contractor with the Government's Written Notice of Acceptance of Completed Work for each contract awarded by the (iovernment tor the Study, the District Engineer shall furnish a copy thereof to the Non - Federal Sponsor. 6. The Non - Federal Sponsor shall afford the Government the opportunity to review and comment on the solicitations for all contracts and relevant scope of work for the in- kind contributions prior to the Non - Federal Sponsor's issuance of such solicitations. To the 4 extent possible, the Non - Federal Sponsor shall afford the Government the opportunity to review and comment on all proposed contract modifications, including change orders, prior to the issuance to the contractor of a Notice to Proceed. In any instance where providing the Government with notification of a contract modification or change order is not possible prior to issuance of the Notice to Proceed, the Non - Federal Sponsor shall provide such notification in writing at the earliest date possible. To the extent possible, the Non- Federal Sponsor also shall afford the Government the opportunity to review and comment on all contract claims prior to resolution thereof. In the event the Non- Federal Sponsor performs all or some of the in -kind contributions using its own forces, the Non- Federal Sponsor shall afford the Government the opportunity to review and comrnent on the relevant scopes of work prior to commencement of such work using the Non - Federal Sponsor's own forces. The Non - Federal Sponsor shall consider in good faith the comments of the Government, but the contents of solicitations, scopes of work, award of contracts, execution of contract modifications, resolution of contract claims, and performance of all work on the in -kind contributions shall be exclusively within the control of the Non - Federal Sponsor, except as otherwise required by the provisions of this Agreement, including compliance with applicable Federal, State, and local laws, regulations, and policies. The Non - Federal Sponsor shall include appropriate provisions in its contracts for the in -kind contributions, as necessary, to ensure compliance with such laws, regulations, and policies. 7. At the time the Non - Federal Sponsor furnishes a contractor with a notice of acceptance of completed work for each contract awarded by the Non- Federal Sponsor for the in- kind contributions, the Non- Federal Sponsor shall furnish a copy thereof to the Government. 8. Notwithstanding paragraph A.4. and paragraph A.6., if the award of any contract for work on the Study, or continuation of work on the Study using the Government's the Non- Federal Sponsor's own forces, would result in total study costs exceeding !4 t Government and the Non - Federal Sponsor agree to defer award of that contract, award of all remaining contracts for work on the Study, and continuation of work on the Study using the Government's or the Non-Federal Sponsor's own forces until such time as the Government and the Non - Federal Sponsor agree in writing to proceed with further contract awards for the Study or the continuation of work on the Study using the Government's or the Non - Federal Sponsor's own forces, but in no event shall the award of contracts or the continuation of work on the Study using the Government's or the Non - Federal Sponsor's own forces be deferred for more than three years. If the Government and the Non - Federal Sponsor agree to not proceed or fail to reach agreement on proceeding with further contract awards for the Study, or the continuation of work on the Study using the Government's or the Non - Federal Sponsor's own forces, the parties shall terminate this Agreement and proceed in accordance with Article IX.D. of this Agreement. �iriaLt B. The Non - Federal Sponsor shall contribute 50 percent of total study costs'in accordance with the provisions of this paragraph. below: 1. TheNon- Federal Sponsor shall provide a contribution of funds as determined 5 a. If the Govennent projects at any time that the collective value of the Non- Federal Sponsor's contributions listed in the next sentence will be less than the Non - Federal Sponsor's required share of 50 percent of total study costs, /the Government shall determine the amount of funds that would be necessary to meet the Non-Federal Sponsor's required share prior to the Government affording credit for the in -kind contributions pursuant to paragraph B.4. of this Article. To determine such amount, the Government shall subtract from the Non- Federal Sponsor's required share of 50 percent of total study cost the collective value of the Non - Federal Sponsor's contributions under Article 111 and Article VI�fthis Agrcencnt. wi.-x1 a'PCCti01 . 410), °A) b. The Non- Federal Sponsor shall provide a contribution of funds in the amount determined by this paragraph in accordance with Article IV.B. of this Agreement. To determine such required contribution of funds, the Govermnent shall reduce the amount determined in accordance with paragraph B.1.a, of this Article by the amount of credit the Govermnent projects will be afforded for the in-kind contributions pursuant to paragraph B,4. of this Article. a ,, d,, * Wd•� 2. The Government, subjept to the availability of funds and as limited by paragraph 13.5, of this Article, shall refund or reimburse to the Non-Federal Sponsor any contributions in L excess of 50 percent of total study costs if the Government determines at any time that the v collective value of the following has exceeded 50 percent of total study costs: a) theNon- Federal Sponsor's contribution of funds required by paragraph B.1.b. ofthis Article; (b) the amount of credit to be afforded, for the in -kind contributions pursuant to paragraph B.4. of this Article; and (c) the value of the Non-Federal Sponsor's contributions under Article IiI and Article VI of this Agreement. C. Notwithstanding any other provision of this Agreement, Federal financial participation in the Study is limited as described in this paragraph: In the event the Government projects that the amount of Federal funds the Government will make available to the Study through the then - current fisca/ year, or the amount of Federal funds the Government will make available for the Study through the upcoming fiscal year, is not sufficient to meet the Federal share of total study costs that the Government projects to be incurred through the then - current or upcoming fiscal year, as applicable, the Govermnent shall notify the Non - Federal Sponsor in writing of such insufficiency of funds and of the date the Government projects that the Federal funds that will have been made available to the Study will be exhausted. Upon the exhaustion of Federal funds made available by the Govermnent to the Study, future performance under this Agreement shall be suspended and the parties shall proceed in accordance with Article IX.C. of this Agreement. D. Upon conclusion of the period of study, the Government shall conduct an accounting, in accordance with Article IV.C, ofthis Agreement, and furnish the results to the Non - Federal Sponsor. E. The Non - Federal Sponsor shall not use Federal program funds to meet any of its obligations for the Study under this Agreement unless the Federal agency providing the Federal portion of such funds verifies in writing that expenditure of such funds for such purpose is expressly authorized by Federal law. 6 F. This Agreement shall not be construed as obligating either party to implement project. Whether the Government proceeds with implementation of the project depends upon, among other things, the outcome of the Study and whether the proposed solution is consistent with the Economic and Environmental Principles and Guidelines for Water and Related Land Resources. Implementation Studies and with the budget priorities of the Administration. G. The Non- Federal Sponsor may offer in writing to accelerate provision to the Goverment of all or a portion of its contribution of funds required by paragraph B.1.b. of this Article for immediate use by the Government for work on the Study. Upon receipt of any such offer from the Non-Federal Sponsor, the Goverment shall seek the approval and acknowledgement required to accept and use the accelerated funds. Upon receipt of such approval and acknowledgement, the Government shall notify the Non - Federal Sponsor in writing of receipt of such approval and acknowledgement. Upon receipt of such accelerated funds from the Non- Federal Sponsor, the Goverment shall use such funds for work on the Study. However, in no event shall the amount of funds accepted and used by the Government pursuant to this paragraph exceed the estimate of the Non - Federal Sponsor's contribution of funds required by paragraph B.1,b. of this Article minus any funds previously obligated by the Government for work on the. Study as of the date the Goverument accepts the, offered funds. H. As Federal appropriations are made available to pay the Federal share of the Study, the Government shall afford credit for the funds provided in accordance with paragraph G. of this Article toward the Non - Federal Sponsor's contribution of funds required by paragraph Bib. of this Article. ARTICLE III - STUDY COORDINATION TEAM A. To provide for consistent and effective communication, the Non-Federal Sponsor and. the Government, not later than 30 calendar days after the effective date of this, Agreement, shall appoint named senior representatives to a Study Coordination Team. Thereafter, the Study Coordination Team shall meet regularly until the end of the period gfstudy. The Government's Project Manager and a counterpart named by the Non - Federal Sponsor shall co -chair the Study Coordination Team. B. The Government's Project Manager and the Non - Federal Sponsor's counterpart shall keep the Study Coordination Team informed of the progress of the Study and of significant pending issues and actions, and shall seek the views of the Study Coordination Team on matters that the Study Coordination Team generally oversees. C. Until the end of the period of study, the Study Coordination Team shall generally oversee the Study, including matters related to: plan formulation and evaluation, including applicable economic, engineering, real estate, and environmental analyses; scheduling of reports and work products; independent technical review and other review processes required by the 7 Government; completion of all necessary environmental coordination and documentation; contract awards and modifications; contract costs; the Government's cost projections; the performance of and scheduling for the in -kind contributions; determination of anticipated future requirements for real property and relocation requirements and performance of operation, maintenance, repair, rehabilitation, and replacement of the proposed project including anticipated requirements for permits; and other matters related to the Study. This oversight of the Study shall be consistent with the PMP. D. The Study Coordination Team may make recommendations to the District Engineer on matters related to the Study that the Study Coordination Team generally oversees, including suggestions to avoid potential sources of dispute: The Government in good faith shall consider the recommendations of the Study Coordination Team. The Government, having the, legal authority and responsibility for performance of the Study except for the in -kind contributions, has the discretion to acceptor reject, in whole or in part, the Study Coordination Team's recommendations. On matters related to the in -kind contributions, that the Study Coordination Team generally oversees, the Study Coordination. Team may make recommendations to the Non - Federal Sponsor including suggestions to avoid potential sources of dispute. The Non - Federal Sponsor in good faith shall consider the recommendations of the Study Coordination Team. The Non- Federal Sponsor, having the legal authority and responsibility for the in -kind contributions, has the discretion to accept or reject, in whole or in part, the Study Coordination Team's recommendations except as otherwise required by the provisions of this Agreement, including compliance with applicable Federal, State, or local laws or regulations. E. The Non- Federal Sponsor's costs of participation in the Study Coordination. Team' shall be included in total study costs and shared in accordance with the provisions of this Agreement, subject to an audit in accordance with Article IV.C. of this Agreement to detennme reasonableness, allocability, and allowability of such costs. The Government's costs of participation in the Study Coordination Team shall be included in total study costs and shared in accordance with the provisions of this Agreement. ARTICLE IV - METHOD OF PAYMENT A, In accordance with the provisions of this paragraph, the Govertvnent shall maintain current records and provide to the Non- Federal Sponsor current projections of costs, financial obligations, the contributions provided by the parties, the costs included in total study costs for the in -kind contributions detr.uuined in accordance with Article ILB.3. of this Agreement, and the credit to be afforded for the in kind contributions pursuant to Article II.B.4. of this Agreement. I. As of the effective date of this Agreement, total study costs are projected to be $OJtalkl ; the value of the Non - Federal Sponsor's contributions under Article III and Article VI of this Agreement is projecte n.}ua ; the amount of finds detennined in accordance with Article ILB. l.a. of thi Agreement is projected to bei123o,t itt92: the costs f 8 u3 sraft 4boat o included in total study costs for the in -kind contributions determined in accordance with Article 11.B.3. of this Agreement are projected to be $ fbt G-0 ; the credit to be afforded for the in -kind contributions pursuant to Article IL BA, of this Agreement is projected to be si(,tL5-o ; the Non - Federal Sponsor's contribution of funds required by Article [1 B.1.h. of this Agreement is projected to be $2S?,54gD; and the non - Federal proportionate share is projected to be 3 Q 60 percent, These amounts and percentage are estimates subject to adjustment by the Govemment, after consultation with the Non - Federal Sponsor, and are not to be construed as the total financial responsibilities of the Government and the Non- Federal Sponsor. 2. By and by each quarterly anniversary thereof until the conclusion of the period of study and resolution of all relevant claims and appeals, the Government shall provide the Non - Federal Sponsor with a report setting forth all contributions provided to date and the current projections of the following: total study costs; the value of the Non - Federal Sponsor's contributions under Article III and Article VI of this Agreement; the amount of funds detennined in accordance with Article 11.8.1.a. of this Agreement; the costs included in total study costs for the in kind contributions determined in accordance with Article I1.B.3. of this Agreement; the credit to be afforded for the in -kind contributions pursuant to Article 11 B.4. of this Agreement; the Non- Federal Sponsor's contribution of funds required by Article I1.B.1.b. of this Agreement; and the non- Federal proportionate share. B. The Non - Federal Sponsor shall provide the contribution of funds required by Article [l B 1 b of this Agreement in accordance with the provisions of this paragraph. (,O 1. Not less than 1= Fill °inrdaysiM -ithmuarr-of30j calendar days prior to the scheduled date for issuance of the solicitation for the first contract for work on the Study or commencement of work on the Study using the Government's own forces, the Government shall notify the Non- Federal Sponsor in writing of such scheduled date and the funds the Govermnent determines to be required from the Non - Federal Sponsor to meet: (a) the non- Federal proportionate share of financial obligations for the study incurred prior to the commencement of the period of study; (b) the projected non-Federal share of financial `obligations for the study to be incurred for such contract; and (c) thc projected non- Federal proportionate share offinancial obligations for the study using the Government's own forces through the first fiscal year. Not later than such scheduled date, the Non - Federal Sponsor shall provide the Government with the full amount of such required funds by delivering a check payable to "FAO, USAED, Alaska District, J4" to the District Engineer, or verifying to tl c satisfaction of the Government that the Non - Federal Sponsor has deposited such required funds in an escrow or other account acceptable to the Government, with interest accruing to the Non - Federal Sponsor, or by presenting the Government with an irrevocable letter of acceptable to the Government for such required funds, or by providing an Electronic Funds Transfer of such required funds in accordance with procedures established by the Government. 2. Thereafter, until the work on the Study is complete, the Government. shall 9 notify the Non- Federal Sponsor in writing of the funds the Government determines to be required from the Non - Federal Sponsor, and the Non-Federal Sponsor shall provide such funds in accordance with the provisions of this paragraph. a. The Government shall notify the Non- Federal Sponsor in writing, no later than 60 calendar days prior to the scheduled date for issuance of the solicitation for each remaining contract for work on the Study, of the funds the Government determines to be required from the Non- Federal Sponsor to meet the projected non - Federal proportionate share of financial obligations for the study to be incurred for such contract, No later than such scheduled date, the Non-Federal Sponsor shall make the full amount of such required funds available to the Government through any of the payment mechanisms specified in paragraph B.1. oft is Article. b. The Government shall notify the Non-Federal Sponsor in writing, no later than 60 calendar days prior to the beginning of each fiscal year in which the Government projects that it will make financial obligations for the study using the Government's own forces, of the funds the Government determines to be required from the Non - Federal Sponsor to meet the projected non- Federal proportionate share of financial obligations the study using the Government's own forces for that fiscal year. No later than 30 calendar days prior to the beginning of that fiscal year, the Non - Federal Sponsor shall make the full amount of such required funds for that fiscal year available to the Government through any of the payment mechanisms specified in paragraph &.1. of this Article. 3. The Government shall draw from the funds provided by the Non - Federal Sponsor such sums as the Government deems necessary, when considered with any credit the Government projects will be afforded for the in -kind contributions pursuant to Article II.B.4 of this Agreement, to cover: (a) the non- Federal proportionate share of financial obligations for the study incurred prior to the commencement of the period of study; and (b) the non - Federal proportionate share of financial obligations for the study as financial obligations for the study are incurred. If at any time the Government determines that additional funds will be needed from the Non- Federal Sponsor to cover the Non- Federal Sponsor's share of such financial obligations for the current contract or to cover the Non - Federal Sponsor's share of such financial obligations for work performed using the Government's own forces in the current fiscal year, the Government shall notify the Non- Federal Sponsor in writing of the additional funds required and provide an explanation of why additional funds are required. Within Y tt i a .� rlaysjrot Itartiati 60 calendar days from receipt of such notice, the Non - Federal Sponsor shall provide the Government with the full amount of such additional required funds through any of the payment mechanisms specified in paragraph B.1. of this Article. C. Upon conclusion of the period of study and resolution of all relevant claims and appeals, the Government shall conduct a final accounting and furnish the Non-Federal Sponsor with written notice of the results of such final accounting. If outstanding relevant claims and appeals prevent a final accounting from being conducted in a timely manner, the Government shall conduct an interim accounting and furnish the Non - Federal Sponsor with written notice of 1.0 the results of such interim accounting. Once all outstanding relevant claims and appeals are resolved, the Government shall amend the interim accounting to complete the final accounting and furnish the Non - Federal Sponsor with written notice of the results of such final accounting. The interim or final accounting, as applicable, shall determine total study costs, each party's required share thereof, and each party's total contributions thereto as of the date of such accounting. 1. Should the interim or final accounting, as applicable, show that the Non- Federal Sponsor's total required share of total study costs exceeds the Non- Federal Sponsor's total contributions provided thereto, the Non - Federal Sponsor, no later than 90 calendar days after receipt of written notice from the Government, shall make a payment to the Government in an amount equal to the difference by delivering a check payable to "FAO, USAED, Alaska District, J4" to the District Engineer or by providing an Electronic Funds Transfer in accordance with procedures established by the Government. 2. Should the interim or final accounting, as applicable, show that the total contributions provided by the Non- Federal Sponsor for total study costs exceed the Non- Federal Sponsor's total required share thereof, the Govenunent, subject to the availability of funds and as limited by Article II.B.S of this Agreement, shall refund or reimhursethe excess amount to the Non- Federal Sponsor within. 90 calendar days of the date of completion of such accounting. In the event the Non- Federal Sponsor is due a refund or reimbursement and funds are not available to refund or reimburse the excess amount to the Non- Federal Sponsor, the Government shall seek such appropriations as are necessary to make the refund or reimbursement. D. Any delinquent payment owed by the Non - Federal Sponsor shall be charged interest at a rate, to be determined by the Secretary of the Treasury, equal to 150 per centum of the average bond equivalent rate of the 13 week Treasury hills auctioned immediately prior to the date on which such payment became delinquent, or auctioned immediately prior to the beginning of each additional 3 month period if the period of delinquency exceeds 3 months. ARTICLE V DISPUTE RESOLUTION As a condition precedent to a party bringing any suit for breach of this Agreement, that party must first notify the other party in writing of the nature of the purported breach and seek in good faith to resolve the dispute through negotiation. If the parties cannot resolve the dispute through negotiation, they may agree to a mutually acceptable method of non- binding alternative dispute resolution with a qualified third party acceptable to both parties. Each party shall pay an equal share of any costs for the services provided by such a third party as such costs are incurred. The existence of a dispute shall not excuse the parties from performance pursuant to this Agreement. ARTICLE VI - IviAINTENANCE OF RECORDS AND. AUDIT 11 A. Not later than 60 calendar days after the effective date of this Agreement, the Government and the Non- Federal Sponsor shall develop procedures for keeping books, records, documents, or other evidence pertaining to costs and expenses incurred pursuant to this Ageement. These procedures shall incorporate, and apply as appropriate, the standards for financial management systems set forth in the Uniform Administrative Requirements for Giants and Cooperative Agreements to State and Local Governments at 32 C.F.R. Section 33.20. The Government and the Non- Federal Sponsor shall maintain such books, records, documents, or other evidence in accordance with these procedures and for a minimum of three years after completion of the accounting for which such books, records, documents, or other evidence were required. To the extent permitted under applicable Federal laws and regulations, the Government and the Non - Federal Sponsor shall each allow the other to inspect such books, records, documents, or other evidence. B. In accordance with 32 C.F.R. Section 33.26, the Non - Federal Sponsor is responsible for complying with the Single Audit Act Amendments of 1996 (31 U.S.C. 7501- 7507), as implemented by 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 necessai-y to enable an audit of the Non- Federal Sponsor's activities under this Ageement. The costs of any non-Federal audits performed in accordance with this paragraph shall be allocated in accordance with the provisions of OMB Circulars A -87 and A -133, and such costs as are allocated to the Study shall be included in total study costs and shared in accordance with the provisions of this Ageement. C. In accordance with 31 U.S.C. 7503, the Goveniment may conduct audits in add any audit that the Non- Federal Sponsor is required to conduct under the Single Audit Act Amendments of 1996. Any such Government audits shall be conducted in accordance with Government Auditing Standards and the cost principles in OMB Circular No. A -87 and other applicable cost principles and regulations. The costs of Government audits performed in accordance with this paragraph shall be included in total study costs and shared in accordance with the provisions of this Agreement. m to ARTICLE VII - FEDERAL AND STATE LAWS In the exercise of their respective rights and obligations under this Agreement, the Non - Federal Sponsor and the Government shall comply with all applicable Federal and State laws and regulations, including, but not limited to: Section 601 of the Civil Rights Act of 1964, Public Law 88-352 (42 U.S.C. 2000d) and Department of Defense Directive 5500.11 issued pursuant thereto and Army Regulation 600 -7, entitled "Nondiscrimination on the Basis of Handicap in Programs and Activities Assisted or Conducted by the Department of the Army ". 12 ARTICLE VIII - RELATIONSHIP OF PARTIES A. In the exercise of their respective rights and obligations under this Agreement, the Government and the Non - Federal Sponsor each shall act in an independent capacity, and shall not be considered the officer, agent, or employee of each other. B. In the exercise of its rights and obligations under this Agreement, no party shall provide, without the consent of other parties to this Agreement, any contractor with a release that waives or purports to waive any rights that any other party may have to seek relief or redress against that contractor either pursuant to any cause of action that the other party may have or for violation of any law. ARTICLE IX - TERMINATION OR SUSPENSION A. Prior to conclusion of the period of study, upon 30 calendar days written notice to the other party, 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'paragiaph, such suspension shall remain in effect until either the Government or the Non - Federal Sponsor elects to terminate this Agreement: B. If at any time the Non - Federal Sponsor fails to fulfill its obligations under this Agreement, the Assistant Secretary of the Army (Civil Works) shall terminate this Agreement or suspend future performance under this Agreement unless he determines that continuation of performance of the Study is in the interest of the United States or is necessary in order to satisfy agreements with any other non - Federal interests in connection with the Study. C. In the event future performance under this Agreernent is suspended pursuant to Article ILC. of this Agreement, such suspension shall remain in effect until such time that the Government notifies the Non - Federal Sponsor in writing that sufficient Federal funds are available to meet the Federal share of total study costs the Government projects to be incurred through the then-current or upcoming fiscal year, or the Government or the Non - Federal Sponsor elects to terminate this Agreement. D. In the event that this Agreement is terminated pursuant to this Article, the parties shall conclude their activities relating to the Study and conduct an accounting in accordance with Article IV.C. of this Agreement. To provide for this eventuality, the Goverrunent may reserve a percentage of total Federal funds made available for the Study and an equal percentage of the total funds contributed by the Non - Federal Sponsor in accordance with Article ILB.1.b. of this Agreement as a contingency to pay costs of termination, including any costs of resolution of contract claims and contract modifications. Upon termination of this Agreement, all data and information generated as part of the Study shall be made available to the parties to the Agreement. E. Any termination of this Agreement or suspension of future performance under this Agreement in accordance with this Article shall not relieve the part ies of liability for any obligation previously incurred. ARTICLE X - NOTICES A. Any notice, request, demand, or other communication required or permitted to be given under this Agreement shall be deemed to have been duly given if in writing and delivered personally or sent by telegram or mailed by first - class, registered, or certified mail, as follows: If to the Non - Federal Sponsor: Title & Address of ersor If to the Government: CEPOA -PM -C US Anny Corps of Engineer, Alaska Dist P.O. Box 6898 JBER, AK 99506-0898 B. A party may change the address to which such communications are to be directed by giving written notice to the other party in the manner provided in this Article. C. Any notice, request, demand, or other communication made pursuant to this Article shall be deemed to have been received by the addressee at the earlier of such time as it is actually received or seven calendar days after it is mailed. ARTICLE XI - CONFIDENTIALITY To the extent permitted by the laws governing each party, the patties agree: to maintain the confidentiality of exchanged information when requested to do so by the providing party. ARTICLE XII - THIRD PARTY RIGHTS, BENEFITS, OR LIABILITIES Nothing in this Agreement is intended, nor may be construed, to create any rights, confer any benefits, or relieve any liability, of any kind whatsoever in any third person not party to this Agreement. ARTICLE XIII - OBLIGATIONS OF FUTURE APPROPRIATIONS 14 A. Nothing herein shall constitute, nor be deemed to constitute, an obligation, of future appropriations by the of the of , where creating such an obligation would be inconsistent with of the of The first 3 blanks identify the legislative: body that makes the appropriations :end the next 3 blanks provide the specific citation to the constitutional or statutory limitation on committing future appropriations B. The Non - Federal Sponsor intends to fulfill its obligations under this Agreement. The Non- Federal Sponsor shall include in its budget request or otherwise propose appropriations of funds in amounts sufficient to fiilfill these obligations for that year, and shall use all reasonable and lawful means to secure those appropriations. The Non - Federal Sponsor reasonably believes that funds in amounts sufficient to fulfill these obligations lawfully can and will be appropriated and made available for this purpose. In the event funds are not appropriated in amounts sufficient to fulfill these obligations, the Non-Federal Sponsor shall use its best efforts to satisfy any requirements for payments or contributions of funds under this Agreement from any other source of funds legally available for this purpose. Further, if the Non- Federal Sponsor is unable to fulfill these obligations, the Govcrmnent may exercise any legal rights it has to protect the Government's interests related to this Agreement. ESS WHEREOF, become effective upon the date it is DEPARTMENT OF THE ARMY BY: Reinhard W. Koenig Colonel, Corps of Engineers District Engineer e parties hereto have executed this Agreement, which shall gned by the, CITY OF KENAI BY: [TYPED NAME] [TITLE' IN FULL] DATE: DATE: 15 CERTIFICATE OF AUTHORITY I, , do hereby certify that I am the principal legal officer of the City of Kenai, that the City of Kenai is a legally constituted public body with full authority and legal capability to perform the terms of the Agreement between the Department of the Army and the City of Kenai in connection with the feasibility study for the Kenai River Bluff Erosion, and to pay damages, if necessary, in the event of the failure to perform in accordance with the terms of this Agreement and that the persons who have executed this Agreement on behalf of the City of Kenai have acted within their statutoiy authority. IN WITNESS WHEREOF, I have made and executed this ceritfication this day of 20 . [SIGNATURE] [TYPED NAME] [TITLE IN FULL] 16 CERTIFICATION REGARDING LOBBYING The undersigned certifies, to the best of his or her knowledge and belief that: (1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. (2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form -LLL, "Disclosure Fonn to Report Lobbying," in accordance with its instructions. (3) The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31 U.S.C. 1352. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. [SIGNATURE OF FCSA SIGNATORY' [TYPED NAME] [TITLE IN FULL] DATE: 17 Kenai River uff Erosion Project Decision Document Phase Schedule, Scope, and Budget 1. This schedule scope and bud been prepared inn ort of the PMP for the decision document phase of the Kenai River Bluff Erosion project. 2. Project Location: Kenai, Alaska 3. Project Des tion: There is ongoiongoing erosion of a one-mi!e portion ot steep bluff along the north bank of the Kenai River in the Ci of Kenai, Alaska This erosion impacts property at the top of the bluff and results in rel \iO f building U|iU , and other infrastructure The decision document will present (hep|anningprncensand recommend a long-term solution to halt the erosion of the bluff and stabilize the slope: AdditionaUy the decision document vvi||eVa|uoteondd8oV(nent\hennn-federa| sponsor's ability to payinancn/danuew/ithJSU.S.C2213(rn), 4. Authority: This deci&on document is prepared under \h authority Section 11Sof the Eriergy and Water Development and Related Agencies Appropnations Act, 2010, Public Law 111-85, which contained the foliowing Ianguage. The Secretary of the Army is authorized to carry out structural and non-structural projects for storm dama prevention and reduction, coastal erosion, d ice and glacial damage in Alaska, ,nc/uding relocation Vf affected communities and construction of replacernent facilities: Provided, That the non-Federal share of any p ject carried out pursuant to this section shall be no more than 35 percent of the total cost of the project andsha//be subject to the ability of the non-Federal interest to pay, as determined iri accordance with 33 U.S.C. 2213(m). 5. Project Delivery Team Name Role/Responsibility Organization Dave Martinson Project Manager PM-C City Manage Crty of Kenai Lorraine Cordova Economist EN- EC Mtke Salyer h»|rnnrOenia| EN-O\8-ER Dee Ginter Hydraulics and Hydrology EN-CVV^HH Clarke Hemphill Plan Fo Formulator EN-CW-PF A|/\rrUda Cost Engineering EN-[|E Pat Riley Real Estate RE-RS QUnTvbu o Value Engineer EN (38ofenbnic8| Construction Contracting 5. Study Tasks The following are generalized descriptions of tasks to be accomplished for the completion of the decision document phase of the project. Technical reports have been prepared for the Kenai River Bluff Erosion project. The decision document will use as much existing information as possible from the existing reports. See the attached budget for actual tasks and cost by discipline for the following activities. a. Project Management - This effort will include Project Management, Study Management, and CW branch support by the Chief and administrative staff. This item is considered an ongoing task and therefore is not included in the schedule, Study management will include scheduling of meetings, modifying scope, and other miscellaneous management activities necessary to complete this scope of work. Project management activities include management of financial management software, budgetary reporting, and normal coordination with the local sponsor. The local sponsor will also perform similar activities related to the project for managing local sponsor funding, coordination, and review. PM will also be responsible for drafting, negotiating, and approval the agreement for any follow -on phase. In addition; activities under this item include CW Branch management and support of study activities such as coordination meetings, processing funding requests, travel orders etc. b. Project Formulation — This activity is the effort needed to prepare the decision document, finalize the report approval, respond to comments generated by HOUSACE, ASA(CW), and OMB, publishing final report, revising the review plan as necessary, and assisting with the execution of the VE and ATR activities for the project. PF will also assist in the coordination, development and negotiation of any follow -on agreement; and manage the day -to -day activities of the study team including coordination of study products for inclusion in the decision document as necessary. c. Economics — This activity is the effort needed to develop the economic analyses needed for the decision document including the ability to pay analysis, and respond to comments generated by HQUSACE, ASA(CW), and OMB: Without- project; with - project, and damage analysis be prepared using previous methodologies and existing data as much as possible. d. Environmental — This activity will include action necessary to complete the Federal portion of environmental coordination during the study including coordinating the completion of NEPA and other associated activities. Coordination act reports will be addressed as needed. Cultural resources will be coordinated with the State Historic Preservation Office (SHPO) and a Memorandum of Agreement will be prepared if needed. The Kenai River Bluff Erosion project is located within the range of several species listed under the Endangered Species Act, as identified by the National Marine Fisheries Service (NMFS), Cook Inlet beluga whale (endangered): The Cook Inlet population of beluga whales was listed as endangered in 2008, and the critical habitat designated in 2009 explicitly includes "waters of the Kenai River below the Warren Ames Bridge at Kenai, Alaska ". A Biological Assessment will be prepared and submitted to the NMFS. • Steller sea lions (endangered -- Western Distinct Population): NMFS also identified Steller sea lions as occurring at the mouth of the Kenai River in a letter dated 14 Feb 2011, although they are rarely found in upper Cook Inlet. e. Real Estate — This activity will include preparation of typical real estate plan documentation done by the Corps for a decision document. Land requirements will be developed for the recommended plan and an assessment of the non- federal sponsor's RE acquisition capability will be prepared for the real estate plan. f. Engineering — These activities include the extraction of engineering, geotechnical, survey, design, and cost estimates information from the existing technical reports as necessary for inclusion in the decision document. Cost Estimating — The cost estimates prepared in the g. In -kind Services — These activities are performed by the non- federal sponsor for credit which is counted as part of the non - federal sponsor share of the total study costs. In -kind services include non-federal sponsor study management, attendance at study meetings, and other tasks and products accomplished for the study. In -kind services must be scoped, costed, and documented and approved as sufficient for study purposes with respect to quality and acceptability prior to credit allowance. 6. Schedule (Assumes Optimal Funding) Task Completion Date Feasibility Report Approval PED Agreement Executed 7. Budget - See Attached Spreadsheet 8, Assumptions: • No additional work needed on the Geotec documents for inclusion as the geotec appendix for the decision document, • No additional survey work needed for the decision document. • The required NEPA documentation and process will be for an EA. No EIS will be required. • There will be no Safety Assurance Review required. • VE will be accomplished during PED phase and will not be needed in the decision document phase. • Final report submittal will be 1 year and final approval of report will be 18 months after the FCSA is executed.