Agenda 04/27/2021 Item #11A (Coastal Storm RIsk Management Feasibility Study)04/27/2021
EXECUTIVE SUMMARY
Recommendation to accept a presentation from the U.S. Army Corps of Engineers on the status of
the County Coastal Storm Risk Management Feasibility Study; authorize the County Manager, or
his designee, to sign a non -binding letter in support of the Recommended Plan identified in the
Collier County Storm Risk Management Final Report; authorize the Director of Corporate
Financial & Management Services, or his designee, to sign a non -binding letter of Financial Self
Certification of Financial Capability for Agreements, and authorize both letters to be provided to
the Department of the Army, U.S. Army Corps of Engineers.
OBJECTIVE: To receive a presentation from the U.S. Army Corps of Engineers (USACE) on the status
of the County Coastal Storm Risk Management (CSRM) Feasibility Study and authorize required non-
binding letters of support which allows the USACOE and Collier County to continue to cooperatively
investigate long-term federal shoreline protection within Collier County, Florida.
CONSIDERATION: An April 30, 1992, resolution adopted by the Committee on Public Works and
Transportation, United States House of Representatives, in accordance with Section 110 of the River and
Harbor Act of 1962, Public Law 87-874, authorized a survey of the shores of Collier County, Florida and
adjacent shorelines, in the interest of hurricane protection, storm damage reduction, beach erosion control,
and other related purposes. The Bipartisan Budget Act of 2018 (BBA), Public Law 115-123, enacted
February 9, 2018, authorized the Federal Government to conduct the study at full Federal expense to the
extent that appropriations provided under the Investigations heading of the BBA 2018 are available and
use for such purpose.
On September 11, 2018 the Board of County Commissioners (Board) approved an Agreement between
the USACE and the County for the Collier County Coastal Storm Risk Management (CSRM) Feasibility
Study to cooperatively investigate long term federal shoreline protection within the County.
On July 31st, 2020, the USACE released to the public, the initial findings of the CSRM Feasibility Study,
and the Tentatively Selected Plan (TSP) recommended therein. Outreach presentations of the TSP were
publicly advertised and presented by USACE on August 18t' and 24t'', 2020. Question and answer
sessions followed each presentation, and formal public comments were received by USACE during a 30-
day comment period following the release of the TSP.
Refinements to the plan were made during the summer and fall of 2020 and then presented at the
December 16t'', 2020 Agency December Milestone (ADM). The plan was approved at the ADM by the
USACE North Atlantic Division Regional Programs Director.
The conceptual plan is now being finalized for submittal to the USACE Chief of Engineers, and upon
approval will be submitted to the US Congress for authorization and appropriation. Detailed design and
engineering, to prepare for any construction will only occur once the required Congressional approvals
are in place. Submittal of the non -binding letter of support and financial self -certification demonstrates
the non-federal sponsor's support for the project, which is an important consideration for the project to
receive authorization. However, signing these documents does not obligate the non-federal sponsor to
provide funding or construct any feature of the recommended project. The non-federal sponsor will not be
obligated to provide funding for the project until a Project Partnership Agreement (PPA) is executed with
Collier County following a new start approval by congress for the project. A template PPA with standard
language has been provided to the County for review. Public involvement activities will continue
throughout project development allowing stakeholders to have a voice in the process.
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04/27/2021
FISCAL IMPACT: There is no fiscal impact related to this request.
LEGAL CONSIDERATIONS: This item has been reviewed by the County Attorney, raises no legal
issues at this time, and requires majority vote for approval. -JAK
RECOMMENDATION: To accept a presentation from the U.S. Army Corps of Engineers on the status
of the County Coastal Storm Risk Management Feasibility Study; authorize the County Manager, or his
designee, to sign a non -binding letter in support of the Recommended Plan identified in the Collier County
Storm Risk Management Final Report; authorize the Director of Corporate Financial & Management
Services, or his designee, to sign a non -binding letter of Financial Self Certification of Finacial Capability
for Agreements, and authorize both letters to be provided to the Department of the Army, U.S. Army
Corps of Engineers.
Prepared by: Andrew Miller, P.E., Coastal Zone Management, Capital Project Planning, Impact Fees and
Program Management Division
ATTACHMENT(S)
1. County Finance & Management Director Support (PDF)
2. County Manager Support (PDF)
3. PPA template (PDF)
ATTACHMENT(S)
1. County Finance & Management Director Support (PDF)
2. County Manager Support (PDF)
3. PPA template (PDF)
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04/27/2021
COLLIER COUNTY
Board of County Commissioners
Item Number: 11.A
Doe ID: 15610
Item Summary: ***This item to be heard no sooner than 10:45 a.m.*** Recommendation to
accept a presentation from the U.S. Army Corps of Engineers on the status of the County Coastal Storm
Risk Management Feasibility Study; authorize the County Manager, or his designee, to sign a non-
binding letter in support of the Recommended Plan identified in the Collier County Storm Risk
Management Final Report; authorize the Director of Corporate Financial & Management Services, or his
designee, to sign a non -binding letter of Financial Self Certification of Financial Capability for
Agreements, and authorize both letters to be provided to the Department of the Army, U.S. Army Corps
of Engineers. (Amy Patterson, Capital Projects Division Director)
Meeting Date: 04/27/2021
Prepared by:
Title: — Capital Project Planning, Impact Fees, and Program Management
Name: Jessica Arencibia
04/14/2021 11:41 AM
Submitted by:
Title: Division Director - IF, CPP & PM — Capital Project Planning, Impact Fees, and Program
Management
Name: Amy Patterson
04/14/2021 11:41 AM
Approved By:
Review:
Growth Management Department Jeanne Marcella Level 1 Reviewer
Capital Project Planning, Impact Fees, and Program Management Amy Patterson
Growth Management Department Jeanne Marcella Department Head Review
Budget and Management Office Ed Finn Additional Reviewer
Office of Management and Budget Debra Windsor Level 3 OMB Gatekeeper Review
County Attorney's Office Jeffrey A. Klatzkow Level 3 County Attorney's Office Review
Office of Management and Budget Susan Usher Additional Reviewer
Budget and Management Office Ed Finn Additional Reviewer
County Manager's Office Dan Rodriguez Level 4 County Manager Review
Board of County Commissioners MaryJo Brock Meeting Pending
Completed
04/14/2021 2:15 PM
Additional Reviewer
Completed
Completed
04/14/2021 3:36 PM
Completed
04/20/2021 2:28 PM
Completed
04/14/2021 3:54 PM
Completed
04/15/2021 3:06 PM
Completed
04/20/2021 3:40 PM
Completed
04/21/2021 9:44 AM
Completed
04/21/2021 10:26 AM
04/27/2021 9:00 AM
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NON-FEDERAL SPONSOR'S
SELF -CERTIFICATION OF FINANCIAL
CAPABILITY FOR AGREEMENTS
I, , do hereby certify that I am the Collier County
Finance & Management Services Division Director of Collier County, Florida (the
"Non -Federal Sponsor"); that I am aware of the financial obligations of the Non -Federal
Sponsor for the Collier County Coastal Storm Resilience Management Feasibility Study and
that the Non -Federal Sponsor has the financial capability to satisfy the Non -Federal
Sponsor's obligations under the Collier County Coastal Storm Resilience Management
Feasibility Study.
IN WITNESS WHEREOF, I have made and executed this certification this day of
BY:
TITLE:
DATE:
Sincerely,
Collier County Finance & Management Services Division Director
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May 8, 2021
Col. Patrick Kinsman
District Commander
U.S. Army Corps of Engineers, Norfolk District
803 Front Street
Norfolk, VA 23510
Dear Colonel Kinsman
Collier County is willing and able to participate as the non-federal partner with U.S. Army Corps of
Engineers (USACE) in the construction and operations/maintenance of the Recommended Plan identified
in the Collier County Coastal Storm Risk Management (CSRM) Final Report, to reduce the risk of
damage from coastal storms to the people, property, and assets within Collier County, Florida.
Collier County is the non-federal partner on the Collier County CSRM Study authorized by Public Law
110-114, The Water Resources Development Act of 2007, Section 4033. Our staff has worked closely
with the Norfolk District on this study and it is the intent of the County to continue providing support in
the event that funds are appropriated to move the project into the Planning, Engineering, Design and
Construction phases. In this regard, it is the intent of Collier County to enter into a Project Partnership
Agreement with the Federal Government for this project at the appropriate time prior to the start of
construction.
Sincerely,
Collier County Manager
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MODEL AGREEMENT
FOR
SPECIFICALLY AUTHORIZED
COASTAL STORM RISK MANAGEMENT PROJECTS
(WITH PERIODIC NOURISHMENT)
MAY 26, 2016
(with updates as of OCTOBER 2, 2019)
APPLICABILITY AND INSTRUCTIONS:
1. The attached model agreement is for a specifically authorized coastal storm risk management project
(formerly referred to as a hurricane and storm damage reduction or shore protection project) that includes
authorized cost shared periodic nourishment.
2. The responsibility for review and approval of a CSRM PPA that does not deviate from the approved
model, or for an amendment to the May 26, 2016 model to include an approved option to the model, has
been delegated to the MSC Commander. Division Counsel concurrence that the PPA does not deviate
from the subject model, and is appropriate for use for the particular project, is required prior to approval.
In addition, the MSC Commander has been delegated authority to approve non -substantive deviations to
the model PPA. Division Counsel concurrence that a deviation is non -substantive and recommendation
that the deviation be approved is required prior to approval by the MSC Commander. An agreement with
substantive deviations, including deviations involving policy issues, unique circumstances, or
controversial matters, must be forwarded for MSC review and then transmitted to the appropriate
HQUSACE RIT, with MSC Division Commander recommendations, for review and approval by the
Director of Civil Works.
3. The following options, including language for the agreement, are addressed in the Attachment:
a. Option 1: Not An Obligation of Future Appropriations (page A-1).
b. Option 2: Multiple Sponsors (page A-2).
c. Option 3: Accelerated Funds, following Committee notification (page A-3).
d. Option 4: Contributed Funds, following Committee notification (page A-4).
e. Option 5: Additional Work (page A-5).
£ Option 6: Projects with Recreation Features (page A-6).
g. Option 7: Projects in American Samoa, Guam, the Northern Mariana Islands, the Virgin Islands, or
Puerto Rico, or involving an Indian Tribe or tribal organization (page A-9).
4. Reminder: Make all required insertions, including language associated with an option; remove this
cover page; remove the open and close brackets and any instructional text; ensure the page numbers,
spacing and page breaks throughout the agreement are appropriate; if more than one option is used,
ensure the Article and paragraph numbering and references therein are correct; and delete the Attachment.
5. The Certificate of Authority, Certification Regarding Lobbying, and the Non -Federal Sponsor's Self -
Certification of Financial Capability should be included as a part of the agreement package. These
certificates can be found on the Corps' "Project Partnership Agreements" website under the "Forms" tab.
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PROJECT PARTNERSHIP AGREEMENT
BETWEEN
THE DEPARTMENT OF THE ARMY
AND
[FULL NAME OF NON-FEDERAL SPONSOR]
FOR
[FULL NAME OF THE PROJECT]
THIS AGREEMENT is entered into this day of , by and
between the Department of the Army (hereinafter the "Government"), represented by the
[INSERT TITLE] and the [FULL NAME OF THE NON-FEDERAL SPONSOR]
(hereinafter the "Non -Federal Sponsor"), represented by its [INSERT TITLE].
WITNESSETH, THAT:
WHEREAS, initial construction and periodic nourishment of the [Insert Full Name of
the Project] (hereinafter the "Project", as defined in Article I.A. of this Agreement) was
authorized by [Insert cite];
WHEREAS, Section 103 of the Water Resources Development Act of 1986, Public Law
99-662, as amended (33 U.S.C. 2213), specifies the cost -sharing requirements applicable to the
Project; and
WHEREAS, the Government and the Non -Federal Sponsor have the full authority and
capability to perform in accordance with the terms of this Agreement and acknowledge that
Section 221 of the Flood Control Act of 1970, as amended (42 U.S.C.1962d-5b), provides that
this Agreement shall be enforceable in the appropriate district court of the United States.
NOW, THEREFORE, the parties agree as follows:
ARTICLE I - DEFINITIONS
A. The term "Project" means [DESCRIBE FEATURES], as generally described in the
[FULL TITLE OF DECISION DOCUMENT], dated and approved by the
[TITLE OF APPROVING OFFICIAL, e.g., Chief of Engineers, Division Commander for
Mississippi Valley Division, etc.] on [Month Day, Year] (hereinafter the "Decision
Document").
B. The term "periodic nourishment" means the placement of suitable beach berm
material after initial construction of the Project at appropriate intervals during the 50 year period
of Federal participation that begins on the date of initiation of construction of the Project, as
generally described in the Decision Document.
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C. The term "construction costs" means all costs incurred by the Government and Non -
Federal Sponsor in accordance with the terms of this Agreement that are directly related to
design and construction of the Project and cost shared. The term includes, but is not necessarily
limited to: the Government's costs and the Non -Federal Sponsor's creditable contributions
pursuant to the terms of the Design Agreement executed on [Month Day, Year]; the costs of
historic preservation activities except for data recovery for historic properties; the Government's
costs of engineering, design, and construction; the Government's supervision and administration
costs; the Government's costs of monitoring; the Non -Federal Sponsor's creditable costs for
providing real property interests, placement area improvements, and relocations and for
providing in -kind contributions, if any. The term does not include any costs for operation,
maintenance, repair, rehabilitation, or replacement; dispute resolution; participation by the
Government and the Non -Federal Sponsor in the Project Coordination Team to discuss
significant issues and actions; audits; or betterments; or the Non -Federal Sponsor's cost of
negotiating this Agreement.
D. The term "real property interests" means lands, easements, and rights -of -way,
including those required for relocations and borrow and dredged material placement areas.
Acquisition of real property interests may require the performance of relocations.
E. The term "relocation" means the provision of a functionally equivalent facility to the
owner of a utility, cemetery, highway, railroad, or public facility when such action is required in
accordance with applicable legal principles of just compensation. Providing a functionally
equivalent facility may include the alteration, lowering, raising, or replacement and attendant
demolition of the affected facility or part thereof.
F. The term "placement area improvements" means the improvements required on real
property interests to enable the ancillary placement of material that has been dredged or
excavated during construction, operation, and maintenance of the Project, including, but not
limited to, retaining dikes, wasteweirs, bulkheads, embankments, monitoring features, stilling
basins, and de -watering pumps and pipes.
G. The term "functional portion thereof' means a portion of the Project that has been
completed and that can function independently, as determined in writing by the District °'
Commander for [Insert Name of USACE District, e.g., New Orleans District] (hereinafter the a
"District Commander"), although the remainder of the Project is not yet complete. E
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H. The term "in -kind contributions" means those materials or services provided by the a
Non -Federal Sponsor that are identified as being integral to the Project by the Division
Commander for [Insert Name of USACE Division, e.g., Mississippi Valley Division]
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(hereinafter the "Division Commander"). To be integral to the Project, the material or service
must be part of the work that the Government would otherwise have undertaken for design and
construction of the Project. The in -kind contributions also include any investigations performed Q
by the Non -Federal Sponsor to identify the existence and extent of any hazardous substances that
may exist in, on, or under real property interests required for the Project.
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I. The term "betterment" means a difference in construction of an element of the Project
that results from the application of standards that the Government determines exceed those that
the Government would otherwise apply to construction of that element.
J. The term "fiscal year" means one year beginning on October 1st and ending on
September 30t' of the following year.
K. The term "Maximum Cost Limit" means the statutory limitation on the total cost of
the Project, as determined by the Government in accordance with Section 902 of the Water
Resources Development Act of 1986, as amended, if applicable to the Project, and Government
regulations issued thereto. Depending on the Project authorization, there may be a separate
Maximum Cost Limit for initial construction and for periodic nourishment.
ARTICLE II - OBLIGATIONS OF THE PARTIES
A. In accordance with Federal laws, regulations, and policies, the Government shall
undertake initial construction and periodic nourishment of the Project using funds appropriated
by the Congress and funds provided by the Non -Federal Sponsor. In carrying out its obligations
under this Agreement, the Non -Federal Sponsor shall comply with all requirements of applicable
Federal laws and implementing regulations.
B. The Non -Federal Sponsor shall contribute 35 percent of construction costs for initial
construction of the Project, and [Insert the Project's authorized cost share percentage for
periodic nourishment, typically 501 percent of construction costs for periodic nourishment,
allocated by the Government to coastal storm risk management; 100 percent of construction
costs allocated by the Government to beach improvements with exclusively private benefits; and
100 percent of construction costs allocated by the Government to improvements and other work
located within the Coastal Barrier Resources System that the Government has determined are
ineligible for Federal financial participation, as follows:
1. In accordance with Article III, the Non -Federal Sponsor shall provide the real
property interests, placement area improvements, and relocations required for construction,
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operation, and maintenance of the Project. If the Government determines that the Non -Federal
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Sponsor's estimated credits for real property interests, placement area improvements, and
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relocations will exceed 35 percent of construction costs for initial construction or [Insert the
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Project's authorized cost share percentage for periodic nourishment, typically 501 percent
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of construction costs for periodic nourishment allocated to coastal storm risk management, the
Government, in its sole discretion, may acquire any of the remaining real property interests,
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construct any of the remaining placement area improvements, or perform any of the remaining
relocations with the cost of such work included as a part of the Government's cost of
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construction. Nothing in this provision affects the Non -Federal Sponsor's responsibility under
Article IV for the costs of any cleanup and response related thereto.
2. In providing in -kind contributions, if any, the Non -Federal Sponsor shall
obtain all applicable licenses and permits necessary for such work. As functional portions of the
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work are completed, the Non -Federal Sponsor shall begin operation and maintenance of such
work. Upon completion of the work, the Non -Federal Sponsor shall so notify the Government
within 30 calendar days and provide the Government with a copy of as -built drawings for the
work.
3. For construction costs allocated to coastal storm risk management for initial
construction and for each cycle of periodic nourishment, after considering the estimated amount
of credit that will be afforded to the Non -Federal Sponsor pursuant to paragraphs B.1. and B.2.,
above, the Government shall determine the estimated amount of funds required from the Non -
Federal Sponsor to meet its cost share for the then -current fiscal year. No later than 60 calendar
days after receipt of notification from the Government, the Non -Federal Sponsor shall provide
the full amount of such funds to the Government in accordance with Article VI. For construction
costs allocated to beach improvements with exclusively private benefits and to improvements
and other work located within the Coastal Barrier Resources System that the Government has
determined are ineligible for Federal financial participation, the Non -Federal Sponsor, in
accordance with Article VI.F., must provide funds sufficient to cover the costs of such work in
advance of the Government performing the work.
4. No later than August 15t prior to each subsequent fiscal year during initial
construction or a cycle of periodic nourishment, the Government shall provide the Non -Federal
Sponsor with a written estimate of the amount of funds required from the Non -Federal Sponsor
during that fiscal year to meet its cost share. Not later than September lst prior to that fiscal year,
the Non -Federal Sponsor shall provide the full amount of such required funds to the Government
in accordance with Article VI.
C. To the extent practicable and in accordance with Federal law, regulations, and
policies, the Government shall afford the Non -Federal Sponsor the opportunity to review and
comment on solicitations for contracts, including relevant plans and specifications, prior to the
Government's issuance of such solicitations; proposed contract modifications, including change
orders; and contract claims prior to resolution thereof. Ultimately, the contents of solicitations,
award of contracts, execution of contract modifications, and resolution of contract claims shall
be exclusively within the control of the Government.
a)
D. The Government, as it determines necessary, shall undertake actions associated with
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historic preservation, including, but not limited to, the identification and treatment of historic
properties as those properties are defined in the National Historic Preservation Act (NHPA) of
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1966, as amended. All costs incurred by the Government for such work (including the
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mitigation of adverse effects other than data recovery) shall be included in construction costs and
shared in accordance with the provisions of this Agreement. If historic properties are discovered
during construction and the effect(s) of construction are determined to be adverse, strategies shall
be developed to avoid, minimize or mitigate these adverse effects. In accordance with 54 U.S.C.
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312507, up to I percent of the total amount authorized to be appropriated for the Project may be
applied toward data recovery of historic properties and such costs shall be borne entirely by the
Government. In the event that costs associated with data recovery of historic properties exceed 1
percent of the total amount authorized to be appropriated for the Project, in accordance with 54
U.S.C. 312508, the Government will seek a waiver from the I percent limitation under 54 U.S.C.
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312507 and upon receiving the waiver, will proceed with data recovery at full federal expense.
Nothing in this Agreement shall limit or otherwise prevent the Non -Federal Sponsor from
voluntarily contributing costs associated with data recovery that exceed 1 percent.
E. When the District Commander determines that initial construction of the Project, or a
functional portion thereof, is complete, within 30 calendar days of such determination, the
District Commander shall so notify the Non -Federal Sponsor in writing and the Non -Federal
Sponsor, at no cost to the Government, shall operate, maintain, repair, rehabilitate, and replace
the Project, or such functional portion thereof. The Government shall furnish the Non -Federal
Sponsor with an Operation, Maintenance, Repair, Rehabilitation, and Replacement Manual
(hereinafter the "OMRR&R Manual") and copies of all as -built drawings for the completed
work. The Government's undertaking of a cycle of periodic nourishment has no effect on the
Non -Federal Sponsor's continuing responsibility for operation, maintenance, repair,
rehabilitation, and replacement of the Project. If a cycle of periodic nourishment changes those
responsibilities, the Non -Federal Sponsor, at no cost to the Government, shall commence any
additional responsibilities upon notification from the Government.
The Non -Federal Sponsor shall conduct its operation, maintenance, repair,
rehabilitation, and replacement responsibilities in a manner compatible with the authorized
purpose of the Project and in accordance with applicable Federal laws and specific directions
prescribed by the Government in the OMRR&R Manual. The Government and the Non -Federal
Sponsor shall consult on and any subsequent updates or amendments to the OMRR&R Manual.
2. The Government may enter, at reasonable times and in a reasonable manner,
upon real property interests that the Non -Federal Sponsor now or hereafter owns or controls to
inspect the Project, and, if necessary, to undertake any work necessary to the functioning of the
Project for its authorized purpose. If the Government determines that the Non -Federal Sponsor
is failing to perform its obligations under this Agreement and the Non -Federal Sponsor does not
correct such failures within a reasonable time after notification by the Government, the
Government, at its sole discretion, may undertake any operation, maintenance, repair,
rehabilitation, or replacement of the Project. No operation, maintenance, repair, rehabilitation, or
replacement by the Government shall relieve the Non -Federal Sponsor of its obligations under
this Agreement or preclude the Government from pursuing any other remedy at law or equity to
ensure faithful performance of this Agreement.
F. At least annually and after storm events, the Non -Federal Sponsor, at no cost to the
Government, shall perform surveillance of the Project to determine losses of material and
provide results of such surveillance to the Government.
G. Not less than once each year, the Non -Federal Sponsor shall inform affected interests
of the extent of risk reduction afforded by the Project.
H. The Non -Federal Sponsor shall participate in and comply with applicable Federal
floodplain management and flood insurance programs.
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I. In accordance with Section 402 of the Water Resources Development Act of 1986, as
amended (33 U.S.C. 70lb-12), the Non -Federal Sponsor shall prepare a floodplain management
plan for the Project within one year after the effective date of this Agreement and shall
implement such plan not later than one year after completion of initial construction of the
Project. The plan shall be designed to reduce the impacts of future coastal events in the project
area, including but not limited to, addressing those measures to be undertaken by non -Federal
interests to preserve the level of coastal storm risk reduction provided by such work. The Non -
Federal Sponsor shall provide an information copy of the plan to the Government.
J. The Non -Federal Sponsor shall publicize floodplain information in the area concerned
and shall provide this information to zoning and other regulatory agencies for their use in
adopting regulations, or taking other actions, to prevent unwise future development and to ensure
compatibility with the Project.
K. The Non -Federal Sponsor shall prevent obstructions or encroachments on the Project
(including prescribing and enforcing regulations to prevent such obstructions or encroachments)
that might reduce the level of coastal storm risk reduction the Project affords, hinder operation
and maintenance of the Project, or interfere with the Project's proper function.
L. For shores, other than Federal shores, protected pursuant to this Agreement using
Federal funds, the Non -Federal Sponsor shall ensure the continued public use of such shores
compatible with the authorized purpose of the Project.
M. The Non -Federal Sponsor shall provide and maintain necessary access roads, parking
areas, and other associated public use facilities, open and available to all on equal terms, as
described in the Decision Document.
N. The Non -Federal Sponsor shall not use Federal program funds to meet any of its
obligations under this Agreement unless the Federal agency providing the funds verifies in
writing that the funds are authorized to be used for the Project. Federal program funds are those
funds provided by a Federal agency, plus any non -Federal contribution required as a matching
share therefor.
a)
O. In addition to the ongoing, regular discussions of the parties in the delivery of the a
Project, the Government and the Non -Federal Sponsor may establish a Project Coordination
Team to discuss significant issues or actions. The Government's costs for participation on the a
Project Coordination Team shall not be included in construction costs that are cost shared but a
shall be included in calculating the Maximum Cost Limit. The Non -Federal Sponsor's costs for
participation on the Project Coordination Team shall not be included in construction costs that
are cost shared and shall be aid solely b the Non -Federal Sponsor without reimbursement or
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credit by the Government. I°
P. The Non -Federal Sponsor may request in writing that the Government perform
betterments on behalf of the Non -Federal Sponsor. Each request shall be subject to review and
written approval by the Division Commander. If the Government agrees to such request, the
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Non -Federal Sponsor, in accordance with Article VI.F., must provide funds sufficient to cover
the costs of such work in advance of the Government performing the work.
[Insert any additional paragraphs necessary to reflect additional items of non -
Federal cooperation specifically required for the Project in the Chiefs Report or other
authorization document.]
ARTICLE III - REAL PROPERTY INTERESTS, PLACEMENT AREA IMPROVEMENTS,
RELOCATIONS, AND COMPLIANCE WITH PUBLIC LAW 91-646, AS AMENDED
A. The Government, after consultation with the Non -Federal Sponsor, shall determine
the real property interests needed for construction, operation, and maintenance of the Project.
The Government shall provide the Non -Federal Sponsor with general written descriptions,
including maps as appropriate, of the real property interests that the Government determines the
Non -Federal Sponsor must provide for construction, operation, and maintenance of the Project,
and shall provide the Non -Federal Sponsor with a written notice to proceed with acquisition.
The Non -Federal Sponsor shall acquire the real property interests and shall provide the
Government with authorization for entry thereto in accordance with the Government's schedule
for construction of the Project. The Non -Federal Sponsor shall ensure that real property interests
provided for the Project are retained in public ownership for uses compatible with the authorized
purposes of the Project.
B. The Government, after consultation with the Non -Federal Sponsor, shall determine
the placement area improvements necessary for construction, operation, and maintenance of the
Project, and shall provide the Non -Federal Sponsor with general written descriptions, including
maps as appropriate, of such improvements and shall provide the Non -Federal Sponsor with a
written notice to proceed with such improvements. The Non -Federal Sponsor shall construct the
improvements in accordance with the Government's construction schedule for the Project.
C. The Government, after consultation with the Non -Federal Sponsor, shall determine
the relocations necessary for construction, operation, and maintenance of the Project, and shall
provide the Non -Federal Sponsor with general written descriptions, including maps as
appropriate, of such relocations and shall provide the Non -Federal Sponsor with a written notice
to proceed with such relocations. The Non -Federal Sponsor shall perform or ensure the
performance of these relocations in accordance with the Government's construction schedule for
the Project.
D. To the maximum extent practicable, not later than 30 calendar days after the
Government provides to the Non -Federal Sponsor written descriptions and maps of the real
property interests, placement area improvements, and relocations required for construction,
operation, and maintenance of the Project, the Non -Federal Sponsor may request in writing that
the Government acquire all or specified portions of such real property interests, construct
placement area improvements, or perform the necessary relocations. If the Government agrees
to such a request, the Non -Federal Sponsor, in accordance with Article VI.F., must provide funds
sufficient to cover the costs of the acquisitions, placement area improvements, or relocations in
advance of the Government performing the work. The Government shall acquire the real
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property interests, construct the placement area improvements, and perform the relocations,
applying Federal laws, policies, and procedures. The Government shall acquire real property
interests in the name of the Non -Federal Sponsor except, if acquired by eminent domain, the
Government shall convey all of its right, title and interest to the Non -Federal Sponsor by
quitclaim deed or deeds. The Non -Federal Sponsor shall accept delivery of such deed or deeds.
The Government's providing real property interests, placement area improvements, or
performing relocations on behalf of the Non -Federal Sponsor does not alter the Non -Federal
Sponsor's responsibility under Article IV for the costs of any cleanup and response related
thereto.
E. As required by Sections 210 and 305 of the Uniform Relocation Assistance and Real
Property Acquisition Policies Act of 1970, Public Law 91-646, as amended (42 U.S.C. 4630 and
4655), and Section 24.4 of the Uniform Regulations contained in 49 C.F.R. Part 24, the Non -
Federal Sponsor assures that (1) fair and reasonable relocation payments and assistance shall be
provided to or for displaced persons, as are required to be provided by a Federal agency under
Sections 4622, 4623 and 4624 of Title 42 of the U.S. Code; (2) relocation assistance programs
offering the services described in Section 4625 of Title 42 of the U.S. Code shall be provided to
such displaced persons; (3) within a reasonable period of time prior to displacement, comparable
replacement dwellings will be available to displaced persons in accordance with Section
4625(c)(3) of Title 42 of the U.S. Code; (4) in acquiring real property, the Non -Federal Sponsor
will be guided, to the greatest extent practicable under State law, by the land acquisition policies
in Section 4651 and the provision of Section 4652 of Title 42 of the U.S. Code; and (5) property
owners will be paid or reimbursed for necessary expenses as specified in Sections 4653 and 4654
of Title 42 of the U.S. Code.
ARTICLE IV - HAZARDOUS SUBSTANCES
A. The Non -Federal Sponsor shall be responsible for undertaking any investigations to
v
identify the existence and extent of any hazardous substances regulated under the
o
Comprehensive Environmental Response, Compensation, and Liability Act (hereinafter
to
"CERCLA") (42 U.S.C. 9601-9675), that may exist in, on, or under real property interests
required for construction, operation, and maintenance of the Project. However, for real property;
interests that the Government determines to be subject to the navigation servitude, only the
a
Government shall perform such investigations unless the District Commander provides the Non -
Federal Sponsor with prior specific written direction, in which case the Non -Federal Sponsor
a
shall perform such investigations in accordance with such written direction.
a
B. In the event it is discovered that hazardous substances regulated under CERCLA exist
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in, on, or under any of the required real property interests, within 15 calendar days of such
discovery, the Non -Federal Sponsor and the Government, in addition to providing any other
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notice required by applicable law, shall provide written notice to each other, and the Non -Federal
Sponsor shall not proceed with the acquisition of such real property interests until the parties
agree that the Non -Federal Sponsor should proceed.
Packet Pg. 386
11.A.3
C. If hazardous substances regulated under CERCLA are found to exist in, on, or under
any required real property interests, the parties shall consider any liability that might arise under
CERCLA and determine whether to initiate construction, or if already initiated, whether to
continue construction, suspend construction, or terminate construction.
1. Should the parties initiate or continue construction, the Non -Federal Sponsor
shall be responsible, as between the Government and the Non -Federal Sponsor, for the costs of
cleanup and response, including the costs of any studies and investigations necessary to
determine an appropriate response to the contamination. Such costs shall be paid solely by the
Non -Federal Sponsor without reimbursement or credit by the Government.
2. In the event the parties cannot reach agreement on how to proceed or the Non -
Federal Sponsor fails to provide any funds necessary to pay for cleanup and response costs or to
otherwise discharge the Non -Federal Sponsor's responsibilities under this Article upon direction
by the Government, the Government may suspend or terminate construction, but may undertake
any actions it determines necessary to avoid a release of such hazardous substances.
D. In the event of a discovery, the Non -Federal Sponsor and the Government shall
initiate consultation with each other within 15 calendar days in an effort to ensure that
responsible parties bear any necessary cleanup and response costs as defined in CERCLA. Any
decision made pursuant to this Article shall not relieve any third party from any liability that may
arise under CERCLA.
E. As between the Government and the Non -Federal Sponsor, the Non -Federal Sponsor
shall be considered the operator of the Project for purposes of CERCLA liability. To the
maximum extent practicable, the Non -Federal Sponsor shall operate, maintain, repair,
rehabilitate, and replace the Project in a manner that will not cause liability to arise under
CERCLA.
ARTICLE V - CREDIT FOR REAL PROPERTY INTERESTS, PLACEMENT AREA
IMPROVEMENTS, RELOCATIONS, AND IN -KIND CONTRIBUTIONS
as
A. The Government shall include in construction costs, and credit towards the Non-
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Federal Sponsor's share of such costs, the value of Non -Federal Sponsor provided real property
interests (except interests in lands subject to shore erosion that are publicly owned on the
a
effective date of this Agreement or, if required for in -kind contributions covered by an in -kind
a
Memorandum of Understanding (hereinafter "in -kind MOU"), that were publicly owned on the
effective date of the in -kind MOU), placement area improvements, and relocations, and the costs
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of in -kind contributions determined by the Government to be required for the Project.
B. To the maximum extent practicable, no later than 3 months after it provides the
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Government with authorization for entry onto a real property interest or pays compensation to
the owner, whichever occurs later, the Non -Federal Sponsor shall provide the Government with
documents sufficient to determine the amount of credit to be provided for the real property
interest in accordance with paragraphs C.1. of this Article. To the maximum extent practicable,
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11.A.3
no less frequently than on a quarterly basis, the Non -Federal Sponsor shall provide the
Government with documentation sufficient for the Government to determine the amount of credit
to be provided for other creditable items in accordance with paragraph C. of this Article.
C. The Government and the Non -Federal Sponsor agree that the amount of costs eligible
for credit that are allocated by the Government to construction costs shall be determined and
credited in accordance with the following procedures, requirements, and conditions. Such costs
shall be subject to audit in accordance with Article X.B. to determine reasonableness,
allocability, and allowability of costs.
1. Real Property Interests.
a. General Procedure. The Non -Federal Sponsor shall obtain, for each
real property interest (except interests in lands subject to shore erosion that are publicly owned
on the effective date of this Agreement), an appraisal of the fair market value of such interest that
is prepared by a qualified appraiser who is acceptable to the parties. Subject to valid
jurisdictional exceptions, the appraisal shall conform to the Uniform Standards of Professional
Appraisal Practice. The appraisal must be prepared in accordance with the applicable rules of
just compensation, as specified by the Government. For crediting purposes, appraisals of
interests in lands subject to shore erosion acquired from private parties after the effective date of
this Agreement must consider special benefits in accordance with the Uniform Appraisal
Standards for Federal Land Acquisition (2016) (hereinafter "Uniform Appraisal Standards").
(1) Date of Valuation. For any real property interests (other than
interests in lands subject to shore erosion) owned by the Non -Federal Sponsor on the effective
date of this Agreement and required for construction performed after the effective date of this
Agreement, the date the Non -Federal Sponsor provides the Government with authorization for
entry thereto shall be used to determine the fair market value. For any real property interests
required for in -kind contributions covered by an in -kind MOU (other than interests in lands
subject to shore erosion that were publicly owned on the effective date of the in -kind MOU), the
date of initiation of construction shall be used to determine fair market value. The fair market
value of real property interests acquired by the Non -Federal Sponsor after the effective date of
this Agreement shall be the fair market value of such real property interests at the time the
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interests are acquired.
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(2) Except for real property interests acquired through eminent
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domain proceedings instituted after the effective date of this Agreement, the Non -Federal
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Sponsor shall submit an appraisal for each real property interest to the Government for review
and approval no later than, to the maximum extent practicable, 60 calendar days after the Non -
Federal Sponsor provides the Government with an authorization for entry for such interest or
concludes the acquisition of the interest through negotiation or eminent domain proceedings,
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whichever occurs later. If, after coordination and consultation with the Government, the Non-
Federal Sponsor is unable to provide an appraisal that is acceptable to the Government, the
Government shall obtain an appraisal to determine the fair market value of the real property
interest for crediting purposes.
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11.A.3
(3) The Government shall credit the Non -Federal Sponsor the
appraised amount approved by the Government. Where the amount paid or proposed to be paid
by the Non -Federal Sponsor exceeds the approved appraised amount, the Government, at the
request of the Non -Federal Sponsor, shall consider all factors relevant to determining fair market
value and, in its sole discretion, after consultation with the Non -Federal Sponsor, may approve in
writing an amount greater than the appraised amount for crediting purposes.
b. Eminent Domain Procedure. For real property interests acquired by
eminent domain proceedings instituted after the effective date of this Agreement, the Non -
Federal Sponsor shall notify the Government in writing of its intent to institute such proceedings
and submit the appraisals of the specific real property interests to be acquired for review and
approval by the Government. If the Government provides written approval of the appraisals, the
Non -Federal Sponsor shall use the amount set forth in such appraisals as the estimate of just
compensation for the purpose of instituting the eminent domain proceeding.
(1) If the Government provides written disapproval of the
appraisals, the Government and the Non -Federal Sponsor shall consult to promptly resolve the
issues that are identified in the Government's written disapproval. In the event the issues cannot
be resolved, the Non -Federal Sponsor may use the amount set forth in its appraisal as the
estimate of just compensation for purpose of instituting the eminent domain proceeding. Except
as provided in paragraph C. l.b.(2) below, the fair market value for crediting purposes shall be
either the amount of the court award for the real property interests taken or the amount of any
stipulated settlement or portion thereof that the Government approves in writing.
(2) For interests in lands subject to shore erosion, the Government
will credit the amount of the court award or stipulated settlement only to the extent that the court
award or stipulated settlement considered special benefits in accordance with the Uniform
Appraisal Standards. If the court award or stipulated settlement did not consider special benefits,
fair market value for crediting purposes shall be the limited to the amount determined by an
appraisal that considers special benefits.
c. Waiver of Appraisal. Except as required by paragraph C.1.b. of this
Article, the Government may waive the requirement for an appraisal pursuant to this paragraph
if, in accordance with 49 C.F.R. Section 24.102(c)(2):
(1) the owner is donating the real property interest to the Non -
Federal Sponsor and releases the Non -Federal Sponsor in writing from its obligation to appraise
the real property interest, and the Non -Federal Sponsor submits to the Government a copy of the
owner's written release; or
(2) the Non -Federal Sponsor determines that an appraisal is
unnecessary because the valuation problem is uncomplicated and the anticipated value of the real
property interest proposed for acquisition is estimated at $25,000 or less, based on a review of
available data. When the Non -Federal Sponsor determines that an appraisal is unnecessary, the
Non -Federal Sponsor shall prepare the written waiver valuation required by 49 C.F.R. Section
24.102(c)(2) and submit a copy thereof to the Government for approval. When the anticipated
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value of the real property interest exceeds $10,000, the Non -Federal Sponsor must offer the
owner the option of having the Non -Federal Sponsor appraise the real property interest.
d. Incidental Costs. The Government shall include in construction costs
and credit towards the Non -Federal Sponsor's share of such costs, the incidental costs the Non -
Federal Sponsor incurred in acquiring any real property interests required pursuant to Article III
for the Project within a five-year period preceding the effective date of this Agreement, or at any
time after the effective date of this Agreement, that are documented to the satisfaction of the
Government. Such incidental costs shall include closing and title costs, appraisal costs, survey
costs, attorney's fees, plat maps, mapping costs, actual amounts expended for payment of any
relocation assistance benefits provided in accordance with Article III.E., and other payments by
the Non -Federal Sponsor for items that are generally recognized as compensable, and required to
be paid, by applicable state law due to the acquisition of a real property interest pursuant to
Article III.
2. Placement Area Improvements. The Government shall include in construction
costs and credit towards the Non -Federal Sponsor's share of such costs, the value of placement
area improvements required for the Project. The value shall be equivalent to the costs,
documented to the satisfaction of the Government, that the Non -Federal Sponsor incurred to
provide any placement area improvements required for the Project. Such costs shall include, but
not necessarily be limited to, actual costs of constructing the improvements; planning,
engineering, and design costs; supervision and administration costs; and documented incidental
costs associated with providing the improvements, but shall not include any costs associated with
betterments, as determined by the Government.
3. Relocations. The Government shall include in construction costs and credit
towards the Non -Federal Sponsor's share of such costs, the value of any relocations performed
by the Non -Federal Sponsor that are directly related to construction, operation, and maintenance
of the Project.
a. For a relocation other than a highway, the value shall be only that
portion of relocation costs that the Government determines is necessary to provide a functionally
equivalent facility, reduced by depreciation, as applicable, and by the salvage value of any
removed items.
b. For a relocation of a highway, which is any highway, roadway, or
street, including any bridge thereof, that is owned by a public entity, the value shall be only that
portion of relocation costs that would be necessary to accomplish the relocation in accordance
with the design standard that the [State of or Commonwealth of
] would apply under similar conditions of geography and traffic load,
reduced by the salvage value of any removed items.
c. Relocation costs include actual costs of performing the relocation;
planning, engineering, and design costs; supervision and administration costs; and documented
incidental costs associated with performance of the relocation, as determined by the Government.
Relocation costs do not include any costs associated with betterments, as determined by the
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Government, nor any additional cost of using new material when suitable used material is
available.
4. In -Kind Contributions. The Government shall include in construction costs
and credit towards the Non -Federal Sponsor's share of such costs, the value of in -kind
contributions that are integral to the Project.
a. The value shall be equivalent to the costs, documented to the
satisfaction of the Government, that the Non -Federal Sponsor incurred to provide the in -kind
contributions. Such costs shall include, but not necessarily be limited to, actual costs of
providing the in -kind contributions; engineering and design costs; supervision and administration
costs; and documented incidental costs associated with providing the in -kind contributions, but
shall not include any costs associated with betterments, as determined by the Government.
Appropriate documentation includes invoices and certification of specific payments to
contractors, suppliers, and the Non -Federal Sponsor's employees.
b. No credit shall be afforded for interest charges, or any adjustment to
reflect changes in price levels between the time the in -kind contributions are completed and
credit is afforded; for the value of in -kind contributions obtained at no cost to the Non -Federal
Sponsor; for any in -kind contributions performed prior to the effective date of this Agreement
unless covered by an in -kind MOU between the Government and Non -Federal Sponsor; or for
costs that exceed the Government's estimate of the cost for such in -kind contributions if they had
been provided by the Government.
5. Compliance with Federal Labor Laws. Any credit afforded under the terms of
this Agreement is subject to satisfactory compliance with applicable Federal labor laws covering
non -Federal construction, including, but not limited to, 40 U.S.C. 3141-3148 and 40 U.S.C.
3701-3708 (labor standards originally enacted as the Davis -Bacon Act, the Contract Work Hours
and Safety Standards Act, and the Copeland Anti -Kickback Act), and credit may be withheld, in
whole or in part, as a result of the Non -Federal Sponsor's failure to comply with its obligations
under these laws.
D. Notwithstanding any other provision of this Agreement, the Non -Federal Sponsor
shall not be entitled to credit for real property interests that were previously provided as an item
of local cooperation for another Federal project or that are required for beach improvements with
exclusively private benefits or improvements or other work located within the Coastal Barrier
Resources System that the Government has determined are ineligible for Federal financial
participation.
ARTICLE VI — PAYMENT OF FUNDS
A. As of the effective date of this Agreement, total construction costs are projected to be
$ , with the Government's share of such costs projected to be
_ and the Non -Federal Sponsor's share of such costs projected to be
Construction costs allocated to coastal storm risk management for initial
13
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11.A.3
construction are projected to be $ , with the Government's share of such
costs projected to be $ and the Non -Federal Sponsor's share of such costs
projected to be $ , which includes creditable real property interests,
relocations, and placement area improvements projected to be $ , creditable in -
kind contributions projected to be $ , and the amount of funds required to meet its
cost share projected to be $ Construction costs allocated to coastal storm risk
management for periodic nourishment are projected to be $ , with the
Government's share of such costs projected to be $ , and the Non -Federal
Sponsor's share of such costs projected to be $ , which includes creditable real
property interests, relocations, and placement area improvements projected to be
$ , creditable in -kind contributions projected to be $ , and the amount
of funds required to meet its cost share projected to be $ . Construction costs
allocated to beach improvements with exclusively private benefits are projected to be
$ for initial construction and $ for periodic nourishment.
Construction costs allocated to improvements or other work located within the Coastal Barrier
Resources System that the Government has determined are ineligible for Federal financial
participation are projected to be $ for initial construction and $ for
periodic nourishment. Costs for betterments are projected to be $ . These
amounts are estimates only that are subject to adjustment by the Government and are not to be
construed as the total financial responsibilities of the Government and the Non -Federal Sponsor.
B. While undertaking initial construction and periodic nourishment, the Government
shall provide the Non -Federal Sponsor with monthly reports setting forth the estimated
construction costs and the Government's and Non -Federal Sponsor's estimated shares of such
costs; costs incurred by the Government, using both Federal and Non -Federal Sponsor funds, to
date; the amount of funds provided by the Non -Federal Sponsor to date; the estimated amount of
any creditable real property interests, placement area improvements, and relocations; the
estimated amount of any creditable in -kind contributions; and the estimated amount of funds
required from the Non -Federal Sponsor during the upcoming fiscal year.
C. The Non -Federal Sponsor shall provide the funds required to meet its share of
to
construction costs allocated to coastal storm risk management by delivering a check payable to
"FAO, USAED, [INSERT DISTRICT AND EROC CODE, e.g., New Orleans (B2)1" to the;
District Commander, or verifying to the satisfaction of the Government that the Non -Federal
a
Sponsor has deposited such required funds in an escrow or other account acceptable to the
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Government, with interest accruing to the Non -Federal Sponsor, or by providing an Electronic
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Funds Transfer of such required funds in accordance with procedures established by the
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Government.
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D. The Government shall draw from the funds provided by the Non -Federal Sponsor to
cover the non -Federal share of construction costs allocated to coastal storm risk management as
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those costs are incurred. If the Government determines at any time that additional funds are
needed from the Non -Federal Sponsor to cover the Non -Federal Sponsor's required share of such
construction costs, the Government shall provide the Non -Federal Sponsor with written notice of
the amount of additional funds required. Within 60 calendar days from receipt of such notice,
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11.A.3
the Non -Federal Sponsor shall provide the Government with the full amount of such additional
required funds.
E. Upon completion of initial construction and each cycle of periodic nourishment,
including resolution of all relevant claims and appeals and eminent domain proceedings, the
Government shall conduct a final accounting and furnish the Non -Federal Sponsor with the
written results of such final accounting. Should such final accounting determine that additional
funds are required from the Non -Federal Sponsor, the Non -Federal Sponsor, within 60 calendar
days of receipt of written notice from the Government, shall provide the Government with the
full amount of such additional required funds. Such final accounting does not limit the Non -
Federal Sponsor's responsibility to pay its share of construction costs, including contract claims
or any other liability that may become known after the final accounting. If a final accounting
determines that funds provided by the Non -Federal Sponsor exceed the amount of funds required
to meet its share of construction costs, the Government shall refund such excess amount, subject
to the availability of funds for the refund. In addition, if such final accounting determines that
the Non -Federal Sponsor's credit for real property interests, placement area improvements, and
relocations combined with credit for in -kind contributions exceed its share of construction costs
for the Project, the Government, subject to the availability of funds, shall enter into a separate
agreement to reimburse the difference to the Non -Federal Sponsor.
F. If there are beach improvements with exclusively private benefits, improvements or y
other work located within the Coastal Barrier Resources System that the Government has W
determined are ineligible for Federal financial participation, or the Government agrees to acquire E
or provide, as applicable, real property interests, placement area improvements, relocations, or y
betterments on behalf of the Non -Federal Sponsor, the Government shall provide written notice
to the Non -Federal Sponsor of the amount of funds required to cover such costs. No later than 'o
60 calendar days of receipt of such written notice, the Non -Federal Sponsor shall make the full
L
amount of such required funds available to the Government by delivering a check payable to °'
"FAO, USAED, [INSERT DISTRICT AND EROC CODE, e.g., New Orleans (B2)1" to the
District Commander, or by providing an Electronic Funds Transfer of such funds in accordance o
with procedures established by the Government. If at any time the Government determines that to
additional funds are required to cover such costs, the Non -Federal Sponsor shall provide those
funds within 30 calendar days from receipt of written notice from the Government.
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ARTICLE VII - TERMINATION OR SUSPENSION a
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A. If at any time the Non -Federal Sponsor fails to fulfill its obligations under this
Agreement, the Government may suspend or terminate construction of the Project unless the
Assistant Secretary of the Army (Civil Works) determines that continuation of such work is in
the interest of the United States or is necessary in order to satisfy agreements with other
non -Federal interests. Q
B. If the Government determines at any time that the Federal funds made available for
construction of the Project are not sufficient to complete such work, the Government shall so
notify the Non -Federal Sponsor in writing within 30 calendar days, and upon exhaustion of such
15
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11.A.3
funds, the Government shall suspend construction until there are sufficient funds appropriated by
the Congress and funds provided by the Non -Federal Sponsor to allow construction to resume.
In addition, the Government may suspend construction if the Maximum Cost Limit is exceeded.
C. If hazardous substances regulated under CERCLA are found to exist in, on, or under
any required real property interests, the parties shall follow the procedures set forth in Article IV.
D. In the event of termination, the parties shall conclude their activities relating to
construction of the Project. To provide for this eventuality, the Government may reserve a
percentage of available funds as a contingency to pay the costs of termination, including any
costs of resolution of real property acquisition, resolution of contract claims, and resolution of
contract modifications.
E. Any suspension or termination shall not relieve the parties of liability for any
obligation incurred. Any delinquent payment owed by the Non -Federal Sponsor pursuant to this
Agreement shall be charged interest at a rate, to be determined by the Secretary of the Treasury,
equal to 150 per centum of the average bond equivalent rate of the 13 week Treasury bills
auctioned immediately prior to the date on which such payment became delinquent, or auctioned
immediately prior to the beginning of each additional 3 month period if the period of
delinquency exceeds 3 months.
ARTICLE VIII - HOLD AND SAVE
The Non -Federal Sponsor shall hold and save the Government free from all damages
arising from design, construction, operation, maintenance, repair, rehabilitation, and replacement
of the Project, except for damages due to the fault or negligence of the Government or its
contractors.
ARTICLE IX - DISPUTE RESOLUTION
As a condition precedent to a party bringing any suit for breach of this Agreement, that;
party must first notify the other party in writing of the nature of the purported breach and seek in a
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 a
dispute resolution with a qualified third party acceptable to the parties. Each party shall pay an a
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.
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ARTICLE X - MAINTENANCE OF RECORDS AND AUDITS
A. The parties shall develop procedures for the maintenance by the Non -Federal Sponsor
of books, records, documents, or other evidence pertaining to costs and expenses for a minimum
16
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11.A.3
of three years after the final accounting. The Non -Federal Sponsor shall assure that such
materials are reasonably available for examination, audit, or reproduction by the Government.
B. The Government may conduct, or arrange for the conduct of, audits of the Project.
Government audits shall be conducted in accordance with applicable Government cost principles
and regulations. The Government's costs of audits shall not be included in construction costs,
but shall be included in calculating the Maximum Cost Limit.
C. To the extent permitted under applicable Federal laws and regulations, the
Government shall allow the Non -Federal Sponsor to inspect books, records, documents, or other
evidence pertaining to costs and expenses maintained by the Government, or at the request of the
Non -Federal Sponsor, provide to the Non -Federal Sponsor or independent auditors any such
information necessary to enable an audit of the Non -Federal Sponsor's activities under this
Agreement. The costs of non -Federal audits shall be paid solely by the Non -Federal Sponsor
without reimbursement or credit by the Government.
ARTICLE XI - RELATIONSHIP OF PARTIES
In the exercise of their respective rights and obligations under this Agreement, the
Government and the Non -Federal Sponsor each act in an independent capacity, and neither is to
be considered the officer, agent, or employee of the other. Neither party shall provide, without
the consent of the other party, any contractor with a release that waives or purports to waive any
rights a party may have to seek relief or redress against that contractor.
ARTICLE XII - NOTICES
A. Any notice, request, demand, or other communication required or permitted to be
given under this Agreement shall be deemed to have been duly given if in writing and delivered
personally or mailed by registered or certified mail, with return receipt, as follows:
If to the Non -Federal Sponsor:
[TITLE]
[FULL NAME OF NON-FEDERAL SPONSOR]
[ADDRESS]
If to the Government:
District Commander
District
[ADDRESS]
B. A party may change the recipient or address to which such communications are to be
directed by giving written notice to the other party in the manner provided in this Article.
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ARTICLE XIII - CONFIDENTIALITY
To the extent permitted by the laws governing each party, the parties agree to maintain
the confidentiality of exchanged information when requested to do so by the providing party.
ARTICLE XIV - THIRD PARTY RIGHTS, BENEFITS, OR LIABILITIES
Nothing in this Agreement is intended, nor may be construed, to create any rights, confer
any benefits, or relieve any liability, of any kind whatsoever in any third person not a party to
this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, which shall
become effective upon the date it is signed by the [INSERT TITLE OF THE
GOVERNMENT REPRESENTATIVE].
DEPARTMENT OF THE ARMY [FULL NAME OF NON-FEDERAL SPONSOR]
[TYPED NAME] [TYPED NAME]
[FULL TITLE] [FULL TITLE]
DATE: DATE:
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Attachment
Option 1: Not An Obligation of Future Appropriations. Section 221(a) of the Flood Control
Act of 1970, as amended (42 U.S.C. 1962d-5b), provides that an agreement may reflect that it
does not obligate future appropriations when doing so is inconsistent with constitutional or
statutory limitations of a State or political subdivision thereof. However, Section 221(a) does
NOT provide that the Non -Federal Sponsor's performance and payments are subject to
appropriations of funds. The Government retains the right to exercise any legal rights it has to
protect the Government's interests. If applicable and requested by the Non -Federal Sponsor,
insert into the PPA as the last Article the following:
"ARTICLE XV - OBLIGATIONS OF FUTURE APPROPRIATIONS
The Non -Federal Sponsor intends to fulfill fully its obligations under this Agreement.
Nothing herein shall constitute, nor be deemed to constitute, an obligation of future
appropriations by the [Insert name of the legislative body that makes the appropriations,
e.g., legislature of the State of New York or the New York City Council], where creating
such an obligation would be inconsistent with [Insert the specific citation to the constitutional
or statutory limitation on committing future appropriations]. If the Non -Federal Sponsor is
unable to, or does not, fulfill its obligations under this Agreement, the Government may exercise
any legal rights it has to protect the Government's interests."
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Attachment
Option 2: Multiple Non -Federal Sponsors. It is strongly preferred that there is one party only
as the Non -Federal Sponsor for the PPA. Nonetheless, it is permissible to have more than one
Non -Federal Sponsor if the Non -Federal Sponsors are jointly and severally responsible for all
non -Federal obligations and responsibilities under the PPA. The PPA should be modified to
use the term "Non -Federal Sponsors" throughout along with the necessary modifications to
change, as appropriate, verbs and pronouns from singular to plural. In addition, insert into
the PPA as the last Article the following:
"ARTICLE XV - JOINT AND SEVERAL RESPONSIBILITY OF THE
NON-FEDERAL SPONSORS
The obligations and responsibilities of the Non -Federal Sponsors shall be joint and several,
such that each Non -Federal Sponsor shall be liable for the whole performance of the obligations and
responsibilities of the Non -Federal Sponsors under the terms and provisions of this Agreement. The
Government may demand the whole performance of said obligations and responsibilities from any
of the entities designated herein as one of the Non -Federal Sponsors."
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11.A.3
Attachment
Option 3: Accelerated Funds, following Committee notification. Following completion of
the Committee notification process, the PPA may include the following changes:
1. Delete the "and" at the end of the second WHEREAS clause and insert the following
WHEREAS clause after the second WHEREAS clause in the PPA:
"WHEREAS, the Non -Federal Sponsor proposes to accelerate its provision of funds
(hereinafter "accelerated funds") for the immediate use by the Government for the Project; and"
2. Add a new paragraph L. to Article I as follows:
"L. The term "accelerated funds" means non -Federal funds out of proportion with
Federal funds but within the ultimate non -Federal cash contribution."
3. Add a new paragraph Q. to Article II as follows:
"Q. In addition to providing the funds required by paragraph B. of this Article, the Non -
Federal Sponsor may provide accelerated funds for immediate use of the Government. The Non -
Federal Sponsor understands that use of accelerated funds shall not constitute any commitment
by the Government to budget, or the Congress to appropriate, funds for this Project or to match
any accelerated funds provided by the Non -Federal Sponsor; that any accelerated funds will be
credited toward the Non -Federal Sponsor's cost share only to the extent matching Federal funds
are provided; and that the Non -Federal Sponsor is not entitled to any repayment for any
accelerated funds obligated by the Government even if the Project ultimately is not completed."
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11.A.3
Attachment
Option 4: Contributed Funds, following Committee notification. The cost of work funded
with Contributed Funds is included in construction costs subject to cost sharing. Contributed
Funds are applied toward the Federal cost share.
Guidance on Contributed Funds is provided in CECW-P Memorandum, dated February 11,
2015, Subject: Implementation Guidance for Sections 1015 and 1023 of the Water Resources
Reform and Development Act of 2014 (WRRDA 2014), Contributed Funds. This memorandum
can be found on the Corps' "Project Partnership Agreements" website under the "Guidance" tab.
Following completion of the Committee notification process, the PPA may include the following
changes:
1. Delete the "and" at the end of the second WHEREAS clause and insert the following
WHEREAS clause after the second WHEREAS clause in the PPA:
"WHEREAS, in addition to providing the required non -Federal cost share, the Non -
Federal Sponsor considers it to be in its own interest to contribute funds voluntarily (hereinafter
the "Contributed Funds") to be used by the Government for the Project, as authorized pursuant to
33 U.S.C. 701h; and"
2. Add as the third sentence in Article I.C. the following:
"The term also includes the cost of work funded with Contributed Funds."
3. Add a new paragraph L. to Article I as follows:
"L. The term "Contributed Funds" means those funds above any statutorily required non -
Federal cost share that are provided voluntarily by the Non -Federal Sponsor for funding the
Project, with no credit or repayment authorized for such funds."
4. Add a new paragraph Q. to Article II as follows:
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"Q. In addition to providing the funds required pursuant to paragraph B. of this Article, a
the Non -Federal Sponsor will be providing Contributed Funds, currently estimated at E
$ , for the Project. The Non -Federal Sponsor shall make the full amount of such a
funds available to the Government by delivering a check payable to "FAO, USAED, [Insert a
a
District and EROC code, e.g., New Orleans (B2)1" to the District Commander, or by providing
an Electronic Funds Transfer of such funds in accordance with procedures established by the
Government. No credit or repayment is authorized, nor shall be provided, for any Contributed
Funds provided by the Non -Federal Sponsor that are obligated by the Government. In addition,
acceptance and use of Contributed Funds shall not constitute, represent, or imply any Q
commitment to budget or appropriate funds for the Project in the future."
Packet Pg. 400
11.A.3
Attachment
Option 5: Additional Work. If additional work for the Project is requested by the Non -Federal
Sponsor and approved by the Division Commander, make the following changes:
1. Delete the "and" at the end of the second WHEREAS clause and insert the following
WHEREAS clause after the second WHEREAS clause in the PPA:
"WHEREAS, 33 U.S.C. 701h authorizes the Government to undertake, at the Non -
Federal Sponsor's full expense, additional work while the Government is carrying out the
Project; and"
2. Replace the last sentence in Article I.C. with the following:
"The term does not include any costs for operation, maintenance, repair, rehabilitation, or
replacement; dispute resolution; participation by the Government and the Non -Federal Sponsor
in the Project Coordination Team to discuss significant issues and actions; audits; betterments; or
additional work; or the Non -Federal Sponsor's cost of negotiating this Agreement."
3. Add a new paragraph L. to Article I as follows:
"L. The term "additional work" means items of work related to, but not cost shared as a
part of, the Project that the Government will undertake on the Non -Federal Sponsor's behalf
while the Government is carrying out the Project, with the Non -Federal Sponsor responsible for
all costs and any liabilities associated with such work."
4. Replace the first sentence in Article II.P. with the following:
"The Non -Federal Sponsor may request in writing that the Government perform betterments or
additional work on behalf of the Non -Federal Sponsor."
5. Replace the first sentence in Article VI.F. with the following:
"If there are beach improvements with exclusively private benefits, improvements or other work
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located within the Coastal Barrier Resources System that the Government has determined are
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ineligible for Federal financial participation, or if the Government agrees to acquire or provide,
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as applicable, real property interests, placement area improvements, relocations, additional work,
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or betterments on behalf of the Non -Federal Sponsor, the Government shall provide written
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notice to the Non -Federal Sponsor of the amount of funds required to cover such costs."
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11.A.3
Attachment
Option 6: Projects with Recreation Features. For Projects that also include recreation
features, make the following changes:
1. Replace Article I.A. in its entirety with the following:
"A. The term "Project" means coastal storm risk management features consisting of
[DESCRIBE COASTAL STORM RISK MANAGEMENT FEATURES]; and recreation
features consisting of [DESCRIBE RECREATION FEATURES], as generally described in
the [FULL TITLE OF DECISION DOCUMENT], dated and approved by the
[TITLE OF APPROVING OFFICIAL, e.g., Chief of Engineers, Division Commander for
Mississippi Valley Division, etc.] on [Month Day, Year] (hereinafter the "Decision
Document")."
2. Replace Article II.B. in its entirety with the following:
`B. The Non -Federal Sponsor shall contribute 35 percent of construction costs for initial
construction and [Insert the Project's authorized cost share percentage for periodic
nourishment, typically 501 percent of construction costs for periodic nourishment, allocated by
the Government to coastal storm risk management; 50 percent of construction costs allocated by
the Government to recreation; 100 percent of construction costs allocated by the Government to
beach improvements with exclusively private benefits; and 100 percent of construction costs
allocated by the Government to improvements and other work located within the Coastal Barrier
Resources System that the Government has determined are ineligible for Federal financial
participation, as follows:
1. In accordance with Article III, the Non -Federal Sponsor shall provide the real
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property interests, placement area improvements, and relocations required for construction,
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operation, and maintenance of the Project. If the Government determines that the Non -Federal
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Sponsor's estimated credits for real property interests, placement area improvements, and
relocations will exceed 35 percent of construction costs for initial construction or [Insert the
to
Project's authorized cost share percentage for periodic nourishment, typically 501 percent
of construction costs for periodic nourishment allocated to coastal storm risk management, the,
Government, in its sole discretion, may acquire any of the remaining real property interests,
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construct any of the remaining placement area improvements, or perform any of the remaining
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relocations with the cost of such work included as a part of the Government's cost of
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construction. Nothing in this provision affects the Non -Federal Sponsor's responsibility under
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Article IV for the costs of any cleanup and response related thereto.
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2. In providing in -kind contributions, if any, the Non -Federal Sponsor shall
obtain all applicable licenses and permits necessary for such work. As functional portions of the
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work are completed, the Non -Federal Sponsor shall begin operation and maintenance of such
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work. Upon completion of the work, the Non -Federal Sponsor shall so notify the Government
within 30 calendar days and provide the Government with a copy of as -built drawings for the
work.
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11.A.3
Attachment
3. For construction costs allocated to coastal storm risk management for initial
construction and each cycle of periodic nourishment, and recreation, after considering the
estimated amount of credit based on costs allocated by project purpose that will be afforded to
the Non -Federal Sponsor pursuant to paragraphs B.1. and B.2., above, the Government shall
determine the estimated amount of funds required from the Non -Federal Sponsor to meet it cost
share by project purpose for the then -current fiscal year. No later than 60 calendar days after
receipt of notification from the Government, the Non -Federal Sponsor shall provide the full
amount of such funds to the Government in accordance with Article VI. For construction costs
allocated to beach improvements with exclusively private benefits and to improvements and
other work located within the Coastal Barrier Resources System that the Government has
determined are ineligible for Federal financial participation, the Non -Federal Sponsor, in
accordance with Article VI.F., must provide funds sufficient to cover the costs of such work in
advance of the Government performing the work.
4. No later than August lst prior to each subsequent fiscal year, the Government
shall provide the Non -Federal Sponsor with a written estimate of the full amount of funds
required from the Non -Federal Sponsor during that fiscal year to meet its cost share based on
costs allocated by project purpose. Not later than September I" prior to that fiscal year, the Non -
Federal Sponsor shall provide the full amount of such required funds to the Government in
accordance with Article VI."
3. Replace Article VI.A. in its entirety with the following:
"A. As of the effective date of this Agreement, total construction costs are projected to
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be $
, with the Government's share of such costs projected to be
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$
and the Non -Federal Sponsor's share of such costs projected to be
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$
Construction costs allocated to coastal storm risk management for initial
2
construction are projected to be $ , with the Government's share of such costs
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projected to be $
and the Non -Federal Sponsor's share of such costs projected
to be $
, which includes creditable real property interests, relocations, and
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placement area improvements projected to be $ , creditable in -kind contributions
projected to be $
, and the amount of funds required to meet its cost share projected,
to be $
Construction costs allocated to coastal storm risk management for periodic
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nourishment are projected to be $ , with the Government's share of such costs
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projected to be $
, and the Non -Federal Sponsor's share of such costs projected to
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be $
, which includes creditable real property interests, relocations, and
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placement area improvements
projected to be $ , creditable in -kind contributions
projected to be $
, and the amount of funds required to meet its cost share projected
to be $
Construction costs allocated to recreation are projected to be
$
, with the Government's share of such costs projected to be
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$
and the Non -Federal Sponsor's share of such costs projected to be
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$
Construction costs allocated to beach improvements with exclusively private
benefits are projected to be $ for initial construction and $ for
periodic nourishment. Construction costs allocated to improvements or other work located
within the Coastal Barrier Resources System that the Government has determined are ineligible
for Federal financial participation are projected to be $ for initial construction and
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11.A.3
Attachment
$ for periodic nourishment. Costs for betterments are projected to be
$ . These amounts are estimates only that are subject to adjustment by the
Government and are not to be construed as the total financial responsibilities of the Government
and the Non -Federal Sponsor."
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11.A.3
Attachment
Option 7: Projects in American Samoa, Guam, the Northern Mariana Islands, the Virgin
Islands, or Puerto Rico, or involving an Indian Tribe or tribal organization (as defined in
Section 4 of the Indian Self -Determination and Education Assistance Act, 25 U.S.C. 5304).
In accordance with Section 1156 of the Water Resources Development Act of 1986, Public Law
99-662, as amended (33 U.S.C. 2310), up to $484,000 in non -Federal cost -sharing is waived. The
following changes to the PPA should be made:
1. Replace Article II.B. with the following:
"B. The Non -Federal Sponsor shall contribute 35 percent of construction costs for initial
construction of the Project, and [Insert the Project's authorized cost share percentage for
periodic nourishment, typically 501 percent of construction costs for periodic nourishment,
allocated by the Government to coastal storm risk management, subject to a reduction of up to
$484,000; 100 percent of construction costs allocated by the Government to beach improvements
with exclusively private benefits; and 100 percent of construction costs allocated by the
Government to improvements and other work located within the Coastal Barrier Resources
System that the Government has determined are ineligible for Federal financial participation, as
follows:"
2. Replace Article II.B.3. in its entirety with the following:
"3. For construction costs allocated to coastal storm risk management for initial
construction and each cycle of periodic nourishment, after considering the estimated amount of
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credit that will be afforded to the Non -Federal Sponsor pursuant to paragraphs B.1. and B.2.,
above, the Government shall determine the estimated amount of funds required from the Non-
Federal Sponsor to meet its cost share for the then -current fiscal year. In accordance with
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Section 1156 of the Water Resources Development Act of 1986, as amended (33 U.S.C. 2310),
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the Government shall reduce the amount of such funds required from the Non -Federal Sponsor
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up to $484,000 total for both initial construction and periodic nourishment and notify the Non-
Federal Sponsor of all funds required for the then -current fiscal year. No later than 60 calendar
to
days after receipt of notification from the Government, the Non -Federal Sponsor shall provide
the full amount of such funds to the Government in accordance with Article VI. For construction
costs allocated to beach improvements with exclusively private benefits and to improvements
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and other work located within the Coastal Barrier Resources System that the Government has
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determined are ineligible for Federal financial participation, the Non -Federal Sponsor, in
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accordance with Article VLF., must provide funds sufficient to cover the costs of such work in
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advance of the Government performing the work."
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