OBLIGATIONS OF THE GOVERNMENT AND THE NON-FEDERAL SPONSOR. A. Using its funds, the Non-Federal Sponsor expeditiously shall design and construct the 1. The Non-Federal Sponsor shall require all contractors to whom it awards design contracts to provide 30 percent and 100 percent design information to enable in-progress review of the design. The Government may participate in the review of the design at each stage of completion and may provide technical assistance to the Non-Federal Sponsor on an as-needed basis until the end of the period of design and construction. The Government shall perform a final review to verify that the design is complete and is necessary for the Project. Upon completion of design, the Non-Federal Sponsor shall furnish the District Engineer with copies of the completed design. 2. Using information developed by the Non-Federal Sponsor, the Government shall develop and coordinate as required, an Environmental Assessment and Finding of No Significant Impact or an Environmental Impact Statement and Record of Decision, as necessary, to inform the public regarding the environmental impacts of the Project in accordance with the National Environmental Policy Act of 1969 (hereinafter “NEPA”). The Non-Federal Sponsor shall not issue the solicitation for the first construction contract for the Project or commence construction of the Project using the Non-Federal Sponsor’s own forces until all applicable environmental laws and regulations have been complied with, including, but not limited to NEPA and Section 401 of the Federal Water Pollution Control Act (33 U.S.C. 1341). 3. The Non-Federal Sponsor shall obtain all permits and licenses necessary for the design and construction of the Project and, in the exercise of its rights and obligations under this Agreement, shall comply with all applicable Federal, state, and local laws, regulations, ordinances, and policies including the laws and regulations specified in Article XI of this Agreement. As necessary to ensure compliance with such laws, regulations, ordinances, and policies, the Non-Federal Sponsor shall include appropriate provisions in its contracts for the design and construction of the Project. 4. The Non-Federal Sponsor shall afford the Government the opportunity to review and comment on the solicitations for all contracts for the Project, including relevant plans and specifications, prior to the Non-Federal Sponsor’s issuance of such solicitations. To the extent possible, the Non-Federal Sponsor shall afford the Government the opportunity to review and comment on all proposed contract modifications, including change orders. In any instance where providing the Government with notification of a contract modification is not possible prior to execution of the contract modification, 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. The Non-Federal Sponsor shall consider in good faith the comments of the Government, but the contents of solicitations, award of contracts or commencement of design or construction using the Non-Federal Sponsor’s own forces, execution of contract modifications, resolution of contract claims, and performance of all work on the Project shall be exclusively within the control of the Non-Federal Sponsor. 5. At the time the Non-Federal Sponsor furnishes a contractor with a notice of acceptance of completed work for each contract for the Project, the Non-Federal Sponsor shall furnish a copy thereof to the Government. 6. The Government may perform periodic inspections to verify the progress of construction and that the work is being performed in a satisfactory manner. In addition, the Government may provide technical assistance to the Non-Federal Sponsor on an as-needed basis until the end of the period of design and construction. Further, the Government shall perform a final inspection to verify the completion of construction of the entire Project or completed portion thereof as the case may be. The Non-Federal Sponsor hereby gives the Government a right to enter, at reasonable times and in a reasonable manner, upon property that the Non- Federal Sponsor now or hereafter owns or controls for the purpose of performing such inspections. B. In accordance with Article III of this Agreement, the Non-Federal Sponsor shall provide all lands, easements, and rights-of-way, including those required for relocations, the borrowing of material, and the disposal of dredged or excavated material, and shall perform or ensure performance of all relocations that the Non-Federal Sponsor and the Government jointly determine to be required or to be necessary for construction, operation, and maintenance of the Project. In addition, the Non-Federal Sponsor shall obtain all permits necessary for construction, operation, and maintenance of the Project on publicly owned or controlled lands. C. The Government shall determine and include in total project costs any costs incurred by the Non-Federal Sponsor that the District Engineer determines are directly related to design and construction of the Project, subject to the conditions and limitations of this paragraph. 1. Pursuant to paragraph A.6. of this Article, all work performed by the Non- Federal Sponsor for the Project is subject to on-site inspection and determination by the Government that the work was accomplished in a satisfactory manner and is suitable for inclusion in the Project. 2. The Non-Federal Sponsor’s costs for design and construction that may be eligible for inclusion in total project costs shall be subject to an audit in accordance with Article

Appears in 2 contracts

Samples: Design and Construction Assistance Agreement, Cost Allocation Agreement

Appears in 2 contracts

Samples: Project Partnership Agreement, Project Partnership Agreement

OBLIGATIONS OF THE GOVERNMENT AND THE NON-FEDERAL SPONSOR. A. ~~Using its funds~~The Government, subject to receiving funds appropriated by the Non-Federal Sponsor expeditiously shall design and construct the 1. The Non-Federal Sponsor shall require all contractors to whom it awards design contracts to provide 30 percent and 100 percent design information to enable in-progress review Congress of the ~~design. The Government may participate in~~ United States (hereinafter the ~~review of the design at each stage of completion~~ “Congress”) and ~~may provide technical assistance to the Non-Federal Sponsor on an as-needed basis until the end of the period of design~~ using those funds and construction. The Government shall perform a final review to verify that the design is complete and is necessary for the Project. Upon completion of design, the Non-Federal Sponsor shall furnish the District Engineer with copies of the completed design. 2. Using information developed funds provided by the Non-Federal Sponsor, expeditiously shall conduct the ~~Government shall develop and coordinate as required~~Study, ~~an Environmental Assessment and Finding of No Significant Impact or an Environmental Impact Statement and Record of Decision~~applying those procedures usually applied to Federal projects, ~~as necessary, to inform the public regarding the environmental impacts of the Project~~ in accordance with ~~the National Environmental Policy Act of 1969 (hereinafter “NEPA”)~~Federal laws, regulations, and policies. The Non-Federal Sponsor expeditiously shall perform or provide the non-Federal in-kind contributions in accordance with applicable Federal laws, regulations, and policies. 1. The Government shall not issue the solicitation for the first ~~construction~~ contract for the ~~Project~~ Study or commence ~~construction of~~ the ~~Project~~ Study using the Government’s own forces until the Non-Federal ~~Sponsor’s own forces until all applicable environmental laws and regulations have been complied with, including, but not limited~~ Sponsor has confirmed in writing its willingness to ~~NEPA and Section 401 of~~ proceed with the ~~Federal Water Pollution Control Act (33 U.S.C. 1341)~~Study. 32. ~~The Non-Federal Sponsor shall obtain all permits~~ To the extent possible, the Government and licenses necessary for the design and construction of the Project and, in the exercise of its rights and obligations under this Agreement, shall comply with all applicable Federal, state, and local laws, regulations, ordinances, and policies including the laws and regulations specified in Article XI of this Agreement. As necessary to ensure compliance with such laws, regulations, ordinances, and policies, the Non-Federal Sponsor shall ~~include appropriate provisions~~ conduct the Study in ~~its contracts for~~ accordance with the ~~design~~ PMP. 3. The Government shall afford the Non-Federal Sponsor the opportunity to review and ~~construction~~ comment on all products that are developed by contract or by Government personnel during the period of study. The Government shall consider in good faith the comments of the ~~Project~~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, including 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. In any instance where providing the Non-Federal Sponsor with notification of a contract modification is not possible prior to execution of the contract modification, the Government shall provide such notification in writing at the earliest date possible. To the extent possible, the Government also shall afford the Non-Federal Sponsor the opportunity to review and comment on all contract claims prior to resolution thereof. The Government shall consider in good faith the comments of the Non-Federal Sponsor, but the contents of solicitations, award of contracts or commencement of 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 non-Federal in-kind contributions, shall be exclusively within the control of the Government. 5. At the time the U.S. Army Engineer, St. Xxxx 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 Government for 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 for the ~~Project~~non-Federal in-kind contributions, including relevant ~~plans and specifications~~scopes of work, prior to the Non-Federal Sponsor’s issuance of such solicitations. To the extent possible, the Non-Federal Sponsor shall afford the Government the opportunity to review and comment on all proposed contract modifications, including change orders. In any instance where providing the Government with notification of a contract modification is not possible prior to execution of the contract modification, 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. The Non-Federal Sponsor shall consider in good faith the comments of the ~~Government,~~ Government but the contents of solicitations, award of contracts or commencement of ~~design or construction~~ work on the Study using the Non-Federal Sponsor’s own forces, execution of contract modifications, resolution of contract claims, and performance of all work on the ~~Project~~ non-Federal in-kind contributions shall be exclusively within the control of the Non-Federal Sponsor. 57. At the time the Non-Federal Sponsor ~~furnishes~~ furnish a contractor with a notice of acceptance of completed work for each contract awarded by the Non-Federal Sponsor for the ~~Project~~non-Federal in-kind contributions, the Non-Federal Sponsor shall furnish a copy thereof to the Government. 68. ~~The Government may perform periodic inspections to verify~~ Notwithstanding paragraph A.4. and paragraph A.6., if the ~~progress~~ award of ~~construction and that~~ any contract for work on the Study, or continuation of work ~~is being performed~~ on the Study using the Government’s or the Non-Federal Sponsor’s own forces, would result in ~~a satisfactory manner. In addition~~excess study costs, the Government ~~may~~ 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 six months. 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.E. of this Agreement. B. The Government shall allocate total study costs between study costs to be shared during the period of study and excess study costs. C. The Non-Federal Sponsor shall contribute 50 percent of study costs to be shared during the period of study in accordance with the provisions of this paragraph. 1. The Non-Federal Sponsor shall provide ~~technical assistance~~ a contribution of funds as determined below: a. If the Government projects at any time that the collective value of the Non-Federal Sponsor’s contributions under Article III and Article VI of this Agreement will be less than the Non-Federal Sponsor’s required share of 50 percent of study costs to be shared during the period of study, the Government shall determine the amount of funds that would be necessary to meet the Non-Federal Sponsor’s required share prior to any consideration of the credit the Government projects will be afforded for the non-Federal in-kind contributions pursuant to paragraph F. of this Article. b. The Non-Federal Sponsor shall provide funds in the amount determined by this paragraph in accordance with Article IV.B. of this Agreement. To determine the contribution of funds the Non-Federal Sponsor shall provide, the Government shall reduce the amount determined in accordance with paragraph C.1.a. of this Article by the amount of credit the Government projects will be afforded for the non-Federal in-kind contributions pursuant to paragraph F. of this Article. 2. The Government, subject to the availability of funds and as limited by paragraph G. of this Article, shall refund or reimburse to the Non-Federal Sponsor ~~on an as-needed basis until the end~~ any contributions in excess of 50 percent of study costs to be shared during the period of ~~design and construction. Further,~~ study if the Government ~~shall perform a final inspection to verify~~ determines at any time that the ~~completion of construction~~ collective value of the ~~entire Project or completed portion thereof as~~ following contributions has exceeded 50 percent of study costs to be shared during the ~~case may be~~period of study: (a) the value of the Non-Federal Sponsor’s contributions under paragraph C.1.b. of this Article; (b) the amount of credit to be afforded for the non-Federal in-kind contributions pursuant to paragraph F. of this Article; and (c) the value of the Non-Federal Sponsor’s contributions under Article III and Article VI of this Agreement. D. The Non-Federal Sponsor shall contribute 50 percent of excess study costs in accordance with the provisions of this paragraph. 1. The Government shall determine the amount of funds that would be necessary to meet the Non-Federal Sponsor’s required share prior to any consideration of the credit the Government projects will be afforded for the non-Federal in-kind contributions pursuant to paragraph F. of this Article. 2. The Non-Federal Sponsor ~~hereby gives~~ shall provide funds in the ~~Government a right to enter, at reasonable times and~~ amount determined by this paragraph in ~~a reasonable manner, upon property that the Non- Federal Sponsor now or hereafter owns or controls for the purpose of performing such inspections. B. In~~ accordance with Article ~~III~~ IV.C.3. of this Agreement, . To determine the contribution of funds the Non-Federal Sponsor shall ~~provide all lands, easements, and rights-of-way, including those required for relocations~~provide, the ~~borrowing~~ Government shall reduce the amount determined in accordance with paragraph D.1. of ~~material, and~~ this Article by the ~~disposal~~ amount of ~~dredged or excavated material, and shall perform or ensure performance of all relocations that~~ credit the ~~Non~~Government projects will be afforded for the non-Federal ~~Sponsor and the Government jointly determine~~ in-kind contributions pursuant to ~~be required or to be necessary for construction, operation, and maintenance~~ paragraph F. of ~~the Project. In addition, the Non-Federal Sponsor shall obtain all permits necessary for construction, operation, and maintenance of the Project on publicly owned or controlled lands~~this Article. C. E. The Government shall determine and include in total ~~project~~ study costs any costs incurred by the Non-Federal Sponsor ~~that the District Engineer determines are directly related to design and construction of the Project~~for non-Federal in-kind contributions, subject to the conditions and limitations of this paragraph. The Non-Federal Sponsor in a timely manner shall provide the Government with such documents as are sufficient to enable the Government to determine the amount of costs to be included in total study costs for non-Federal in-kind contributions. 1. ~~Pursuant to paragraph A.6. of this Article, all work performed by the Non- Federal Sponsor for the Project is subject to on-site inspection and determination~~ Acceptance by the Government of non-Federal in-kind contributions shall be subject to a review by the Government to verify that ~~the work was~~ all economic, engineering, real estate, and environmental analyses or other items performed or provided as non-Federal in-kind contributions are accomplished in a satisfactory manner and ~~is suitable~~ in accordance with applicable Federal laws, regulations, and policies, and to verify that all analyses, services, materials, supplies, and other in-kind services provided as non-Federal in-kind contributions are necessary for ~~inclusion in~~ the ~~Project~~Study. 2. The Non-Federal Sponsor’s costs for ~~design and construction~~ non-Federal in-kind contributions that may be eligible for inclusion in total ~~project~~ study costs pursuant to this Agreement shall be subject to an audit in accordance with Article VI.C. of this Agreement to determine the reasonableness, allocability, and allowability of such costs. 3. The Non-Federal Sponsor’s costs for non-Federal in-kind contributions that may be eligible for inclusion in total study costs pursuant to this Agreement are not subject to interest charges, nor are they subject to adjustment to reflect changes in price levels between the time the non-Federal in-kind contributions are provided and the time the costs are included in total study costs. 4. The Government shall not include in total study costs any costs for non- Federal in-kind contributions paid by the Non-Federal Sponsor using Federal program funds 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. 5. The Government shall not include in total study costs any costs for non- Federal in-kind contributions in excess of the Government’s estimate of the costs of the non- Federal in-kind contributions if the services, materials, supplies, and other in-kind services had been provided by the Government. F. The Government, in accordance with this paragraph, shall afford credit toward the amount of funds determined in accordance with paragraph C.1.a. and paragraph D.1. of this Article for the costs of the non-Federal in-kind contributions determined in accordance with paragraph E. of this Article. The credit for non-Federal in-kind contributions first shall be afforded toward the amount of funds determined in accordance with paragraph C.1.a. of this Article. If the amount of credit afforded exceeds the amount of funds determined in accordance with paragraph C.1.a. of this Article, the remaining portion of credit to be afforded shall be afforded toward the amount of funds determined in accordance with paragraph D.1. of this Article. However, the maximum amount of credit that can be afforded for the non-Federal in-kind contributions shall not exceed the least of the following amounts as determined by the Government: the amount of funds determined in accordance with paragraph C.1.a. and paragraph

Appears in 1 contract

Samples: Feasibility Study Agreement

OBLIGATIONS OF THE GOVERNMENT AND THE NON-FEDERAL SPONSOR. A. ~~Using its funds~~The Government, subject to receiving funds appropriated by the Congress of the United States (hereinafter, the ~~Non-Federal Sponsor expeditiously shall design~~ "Congress") and ~~construct the 1. The Non-Federal Sponsor shall require all contractors to whom it awards design contracts to provide 30 percent~~ using those funds and 100 percent design information to enable in-progress review of the design. The Government may participate in the review of the design at each stage of completion and may provide technical assistance to the Non-Federal Sponsor on an as-needed basis until the end of the period of design and construction. The Government shall perform a final review to verify that the design is complete and is necessary for the Project. Upon completion of design, the Non-Federal Sponsor shall furnish the District Engineer with copies of the completed design. 2. Using information developed funds provided by the Non-Federal Sponsor, ~~the Government~~ shall develop and coordinate as required, an Environmental Assessment and Finding of No Significant Impact or an Environmental Impact Statement and Record of Decision, as necessary, to inform the public regarding the environmental impacts of expeditiously construct the Project ~~in accordance with the National Environmental Policy Act~~ (including alteration, lowering, raising, or replacement and attendant removal of ~~1969 (hereinafter “NEPA”~~existing railroad bridges and approaches thereto)~~. The Non-~~, applying those procedures usually applied to Federal ~~Sponsor shall not issue the solicitation for the first construction contract for the Project or commence construction of the Project using the Non-~~projects, pursuant to Federal Sponsor’s own forces until all applicable environmental laws and regulations have been complied with, including, but not limited to NEPA and Section 401 of the Federal Water Pollution Control Act (33 U.S.C. 1341). 3. The Non-Federal Sponsor shall obtain all permits and licenses necessary for the design and construction of the Project and, in the exercise of its rights and obligations under this Agreement, shall comply with all applicable Federal, state, and local laws, regulations, ~~ordinances, and policies including the laws and regulations specified in Article XI of this Agreement. As necessary to ensure compliance with such laws, regulations, ordinances,~~ and policies, . 1. The Government shall afford the Non-Federal Sponsor ~~shall include appropriate provisions in its contracts for the design and construction of the Project. 4. The Non-Federal Sponsor shall afford the Government~~ the opportunity to review and comment on the solicitations for all ~~contracts for the Project~~contracts, including relevant plans and specifications, prior to the ~~Non-Federal Sponsor’s~~ Government's issuance of such solicitations. The Government shall not issue the solicitation for the first construction contract until the Non-Federal Sponsor has confirmed in writing its willingness to proceed with the Project. To the extent possible, the Government shall afford 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~~ Non-Federal Sponsor with notification of a contract modification or change order is not possible prior to ~~execution~~ issuance of the ~~contract modification~~Notice to Proceed, the ~~Non-Federal Sponsor~~ Government shall provide such notification in writing at the earliest date possible. To the extent possible, the Government also shall afford the Non-Federal Sponsor ~~also shall afford the Government~~ the opportunity to review and comment on all contract claims prior to resolution thereof. The ~~Non-Federal Sponsor~~ Government shall consider in good faith the comments of the ~~Government~~Non-Federal Sponsor, but the contents of solicitations, award of ~~contracts or commencement of design or construction using the Non-Federal Sponsor’s own forces~~contracts, execution of contract modifications, issuance of change orders, resolution of contract claims, and performance of all work on the Project (whether the work is performed under contract or by Government personnel), shall be exclusively within the control of the ~~Non-Federal Sponsor~~Government. 52. At Throughout the ~~time~~ period of construction, the District Engineer shall furnish the Non-Federal Sponsor ~~furnishes a contractor~~ with a ~~notice~~ copy of ~~acceptance~~ the Government's Written Notice of ~~completed work~~ Acceptance of Completed Work for each contract for the Project. 3. Notwithstanding paragraph A.1. of this Article, if, upon the award of any contract for construction of the Project, cumulative financial obligations for construction would exceed $4,500,000, the Government and the Non-Federal Sponsor agree to defer award of that contract and all subsequent contracts for construction of the Project until such time as the Government and the Non-Federal Sponsor agree to proceed with further contract awards for the Project, but in no event shall the award of contracts be deferred for more than three years. Notwithstanding this general provision for deferral of contract awards, the Government, after consultation with the Non-Federal Sponsor, may award a contract or contracts after the Assistant Secretary of the Army (Civil Works) makes a written determination that the award of such contract or contracts must proceed in order to comply with law or to protect life or property from imminent and substantial harm. B. The Non-Federal Sponsor may request the Government to accomplish betterments. Such requests shall be in writing and shall describe the betterments requested to be accomplished. If the Government in its sole discretion elects to accomplish the requested betterments or any portion thereof, it shall so notify the Non-Federal Sponsor in a writing that sets forth any applicable terms and conditions, which must be consistent with this Agreement. In the event of conflict between such a writing and this Agreement, this Agreement shall control. The Non-Federal Sponsor shall be solely responsible for all costs due to the requested betterments and shall pay all such costs in accordance with Article VI.C. of this Agreement. C. The Government shall assign all costs associated with the dredging of material from the dimensions, including over-depth, of any existing Federal navigation project to the costs of operation and maintenance of the existing Federal navigation project. D. When the District Engineer determines that the entire Project is complete or that a portion of the Project has become a functional portion of the Project, the District Engineer shall so notify the Non-Federal Sponsor in writing and furnish the Non-Federal Sponsor with an Operation, Maintenance, Repair, Replacement, and Rehabilitation Manual (hereinafter the "OMRR&R Manual") and with copies of all of the Government's Written Notices of Acceptance of Completed Work for all contracts for the Project or the functional portion of the Project that have not been provided previously. Upon such notification, the Non-Federal Sponsor shall ~~furnish a copy thereof to~~ operate, maintain, repair, replace, and rehabilitate the ~~Government~~entire Project or the functional portion of the Project in accordance with Article VIII of this Agreement. 6. E. The Government may perform periodic inspections to verify the progress of construction and that the work is being performed in a satisfactory manner. In addition, the Government may provide technical assistance to the Non-Federal Sponsor ~~on an as-needed basis until the end~~ shall contribute a portion of the ~~period of design and construction. Further,~~ total project costs in the ~~Government shall perform a final inspection~~ same proportion as the cost-sharing provisions applicable to ~~verify~~ the ~~completion of construction~~ feature of the ~~entire Project or completed portion thereof as~~ project for navigation causing the ~~case may be~~shore damage. 1. The Non-Federal Sponsor ~~hereby gives the Government~~ shall provide a ~~right~~ cash contribution equal to ~~enter, at reasonable times and~~ zero (0) percent of total project costs in ~~a reasonable manner, upon property that the Non- Federal Sponsor now or hereafter owns or controls for the purpose~~ accordance with Article VI.B. of ~~performing such inspections~~this Agreement. B. 2. In accordance with Article III of this Agreement, the Non-Federal Sponsor shall provide all lands, easements, ~~and~~ rights-of-way, ~~including those required for relocations, the borrowing of material,~~ and ~~the disposal of~~ suitable borrow and dredged or excavated ~~material~~material disposal areas that the Government determines the Non-Federal Sponsor must provide for the construction, operation, and maintenance of the Project, and shall perform or ensure performance of all relocations that the Government determines to be necessary for the construction, operation, and maintenance of the Project. 3. In the case of real property acquired in conjunction with non-structural mitigation measures, including beachfill, the Non-Federal Sponsor will operate and maintain the property for public purposes. F. The Non-Federal Sponsor may request the Government to provide lands, easements, rights-of-way, and suitable borrow and dredged or excavated material disposal areas or perform relocations on behalf of the Non-Federal Sponsor. Such requests shall be in writing and shall describe the services requested to be performed. If in its sole discretion the Government elects to perform the requested services or any portion thereof, it shall so notify the Non-Federal Sponsor in a writing that sets forth any applicable terms and conditions, which must be consistent with this Agreement. In the event of conflict between such a writing and this Agreement, this Agreement shall control. The Non-Federal Sponsor shall be solely responsible for all costs of the requested services and shall pay all such costs in accordance with Article VI.C. of this Agreement. Notwithstanding the provision of lands, easements, rights-of-way, and suitable borrow and dredged or excavated material disposal areas or performance of relocations by the Government, the Non-Federal Sponsor shall be responsible, as between the Government and the Non-Federal Sponsor, for the costs of cleanup and response in accordance with Article XV.C. of this Agreement. G. The Government ~~jointly~~ shall perform a final accounting in accordance with Article VI.D. of this Agreement to determine the contributions provided by the Non-Federal Sponsor in accordance with paragraphs B., D., E., and F. of this Article and Articles V, X, and XV.A. of this Agreement and to determine whether the Non-Federal Sponsor has met its obligations under paragraphs B., D., E., and F. of this Article. H. Crediting and/or reimbursement is subject to satisfactory compliance with applicable federal labor laws covering non-Federal construction, including, but not limited to the Xxxxx-Xxxxx Act (40 USC 276a et seq), the Contract Work Hours and Safety Standards Act (40 USC 327 et seq) and the Xxxxxxxx Anti-Kickback Act (40 USC 276c). Crediting and/or reimbursement 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. I. The Non-Federal Sponsor shall not use Federal funds to meet the Non-Federal Sponsor's share of total project costs under this Agreement unless the Federal granting agency verifies in writing that the expenditure of such funds is expressly authorized by statute. ARTICLE III -LANDS, RELOCATIONS, DISPOSAL AREAS, AND PUBLIC LAW 91-646 COMPLIANCE A. The Government, after consultation with the Non-Federal Sponsor, shall determine the lands, easements, and rights-of-way required for the construction, operation, and maintenance of the Project, including those required for relocations, borrow materials, and dredged or excavated material disposal. The Government in a timely manner shall provide the Non-Federal Sponsor with general written descriptions, including maps as appropriate, of the lands, easements, and rights-of-way that the Government determines the Non-Federal Sponsor must provide, in detail sufficient to enable the Non-Federal Sponsor to fulfill its obligations under this paragraph, and shall provide the Non-Federal Sponsor with a written notice to proceed with acquisition of such lands, easements, and rights-of-way. Prior to the end of the period of construction, the Non-Federal Sponsor shall acquire all lands, easements, and rights-of-way set forth in such descriptions. Furthermore, prior to issuance of the solicitation for each construction contract, the Non-Federal Sponsor shall provide the Government with authorization for entry to all lands, easements, and rights-of-way the Government determines the Non-Federal Sponsor must provide for that contract. For so long as the Project remains authorized, the Non-Federal Sponsor shall ensure that lands, easements, and rights-of-way that the Government determines to be required for the operation and maintenance of the Project and that were provided by the Non- Federal Sponsor 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 improvements required on lands, easements, and rights-of-way to enable the proper disposal of dredged or ~~to be necessary for~~ excavated material associated with the construction, operation, and maintenance of the Project. ~~In addition~~Such improvements may include, but are not necessarily limited to, retaining dikes, wasteweirs, bulkheads, embankments, monitoring features, stilling basins, and de-watering pumps and pipes. The Government in a timely manner shall provide the Non-Federal Sponsor with general written descriptions of such improvements in detail sufficient to enable the Non- Federal Sponsor to fulfill its obligations under this paragraph, and shall provide the Non-Federal Sponsor with a written notice to proceed with construction of such improvements. Prior to the end of the period of construction, the Non-Federal Sponsor shall ~~obtain~~ provide all ~~permits~~ improvements set forth in such descriptions. Furthermore, prior to issuance of the solicitation for each Government construction contract, the Non-Federal Sponsor shall prepare plans and specifications for all improvements the Government determines to be required for the proper disposal of dredged or excavated material under that contract, submit such plans and specifications to the Government for approval, and provide such improvements in accordance with the approved plans and specifications. C. The Government, after consultation with the Non-Federal Sponsor, shall determine the relocations necessary for the construction, operation, and maintenance of the ~~Project on publicly owned~~ Project, including those necessary to enable the removal of borrow materials and the proper disposal of dredged or ~~controlled lands. C.~~ excavated material. The Government in a timely manner shall ~~determine and include~~ provide the Non- Federal Sponsor with general written descriptions, including maps as appropriate, of such relocations in ~~total project costs any costs incurred by~~ detail sufficient to enable the Non-Federal Sponsor to fulfill its obligations under this paragraph, and shall provide the Non-Federal Sponsor with a written notice to proceed with such relocations. Prior to the end of the period of construction, the Non-Federal Sponsor shall perform or ensure the performance of all relocations as set forth in such descriptions. Furthermore, prior to issuance of the solicitation for each Government construction contract, the Non-Federal Sponsor shall prepare or ensure the preparation of plans and specifications for, and perform or ensure the performance of, all relocations the Government determines to be necessary for that contract. D. The Non-Federal Sponsor in a timely manner shall provide the ~~District Engineer determines~~ Government with such documents as are ~~directly related~~ sufficient to ~~design~~ enable the Government to determine the value of any contribution provided pursuant to paragraphs A., B., or C. of this Article. Upon receipt of such documents the Government, in accordance with Article IV of this Agreement and ~~construction~~ in a timely manner, shall determine the value of such contribution, include such value in total project costs, and afford credit for such value toward the Non-Federal Sponsor's share of total project costs. E. The Non-Federal Sponsor shall comply with the applicable provisions of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, Public Law 91-646, as amended by Title IV of the Surface Transportation and Uniform Relocation Assistance Act of 1987 (Public Law 100-17), and the Uniform Regulations contained in 49 C.F.R. Part 24, in acquiring lands, easements, and rights-of-way required for the construction, operation, and maintenance of the Project, ~~subject to the conditions~~ including those necessary for relocations, borrow materials, and ~~limitations~~ dredged or excavated material disposal, and shall inform all affected persons of ~~this paragraph~~applicable benefits, policies, and procedures in connection with said Act. 1. Pursuant to paragraph A.6. of this Article, all work performed by the Non- Federal Sponsor for the Project is subject to on-site inspection and determination by the Government that the work was accomplished in a satisfactory manner and is suitable for inclusion in the Project. 2. The Non-Federal Sponsor’s costs for design and construction that may be eligible for inclusion in total project costs shall be subject to an audit in accordance with Article

Appears in 1 contract

Samples: Project Cooperation Agreement

OBLIGATIONS OF THE GOVERNMENT AND THE NON-FEDERAL SPONSOR. A. Using its funds, the Non-Federal Sponsor expeditiously shall design the Project in accordance with Federal laws, regulations, and ~~construct the~~policies. 1. The Non-Federal Sponsor shall require all contractors to whom it awards design contracts to provide 30 percent and 100 percent design information to enable in-progress review of the design. The Government may participate in the review of the design at each stage of completion and may provide technical assistance to the Non-Federal Sponsor on an as-needed basis until the end of the period of ~~design and construction~~design. The Government shall perform a final review to verify that the design is complete and is necessary for the Project. Upon completion of design, the Non-Federal Sponsor shall furnish the District Engineer with copies of the completed design. 2. Using information developed by the Non-Federal Sponsor, the Government shall develop and coordinate as required, an Environmental Assessment and Finding of No Significant Impact or an Environmental Impact Statement and Record of Decision, as necessary, to inform the public regarding the environmental impacts of the Project in accordance with the National Environmental Policy Act of 1969 (hereinafter “NEPA”). The Non-Federal Sponsor shall not issue the solicitation for the first construction contract for the Project or commence construction of the Project using the Non-Federal Sponsor’s own forces until all applicable environmental laws and regulations have been complied with, including, but not limited to NEPA and Section 401 of the Federal Water Pollution Control Act (33 U.S.C. 1341)1969. 3. The Non-Federal Sponsor shall obtain all permits and licenses necessary for the design ~~and construction~~ of the Project and, in the exercise of its rights and obligations under this Agreement, shall comply with all applicable Federal, state, and local laws, regulations, ordinances, and policies including the laws and regulations specified in Article XI VIII of this Agreement. As necessary to ensure compliance with such laws, regulations, ordinances, and policies, the ~~Non-~~Non- Federal Sponsor shall include appropriate provisions in its contracts for the design ~~and construction~~ of the Project. 4. The Non-Federal Sponsor shall afford the Government the opportunity to review and comment on the solicitations for all contracts for the Project, including relevant plans and specifications, prior to the Non-Federal Sponsor’s issuance of such solicitations. To the extent possible, the Non-Federal Sponsor shall afford the Government the opportunity to review and comment on all proposed contract modifications, including change orders. In any instance where providing the Government with notification of a contract modification is not possible prior to execution of the contract modification, 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. The Non-Federal Sponsor shall consider in good faith the comments of the Government, but the contents of solicitations, award of contracts or commencement of design ~~or construction~~ using the Non-Federal Sponsor’s own forces, execution of contract modifications, resolution of contract claims, and performance of all ~~work~~ design on the Project shall be exclusively within the control of the Non-Federal Sponsor. 5. At the time the Non-Federal Sponsor furnishes a contractor with a notice of acceptance of completed work for each contract for the Project, the Non-Federal Sponsor shall furnish a copy thereof to the Government. 6. The Government may perform periodic inspections to verify the progress of construction and that the work is being performed in a satisfactory manner. In addition, the Government may provide technical assistance to the Non-Federal Sponsor on an as-needed basis until the end of the period of design and construction. Further, the Government shall perform a final inspection to verify the completion of construction of the entire Project or completed portion thereof as the case may be. The Non-Federal Sponsor hereby gives the Government a right to enter, at reasonable times and in a reasonable manner, upon property that the Non- Federal Sponsor now or hereafter owns or controls for the purpose of performing such inspections. B. In accordance with Article III of this Agreement, the Non-Federal Sponsor shall provide all lands, easements, and rights-of-way, including those required for relocations, the borrowing of material, and the disposal of dredged or excavated material, and shall perform or ensure performance of all relocations that the Non-Federal Sponsor and the Government jointly determine to be required or to be necessary for construction, operation, and maintenance of the Project. In addition, the Non-Federal Sponsor shall obtain all permits necessary for construction, operation, and maintenance of the Project on publicly owned or controlled lands. C. The Government shall determine and include in total ~~project~~ design costs any costs incurred by the Non-Federal Sponsor that the District Engineer determines are directly related to design ~~and construction~~ of the Project, subject to the conditions and limitations of this paragraph. 1. ~~Pursuant to paragraph A.6. of this Article, all~~ All design work performed by the ~~Non-~~ Non-Federal Sponsor for the Project is shall be subject to ~~on-site inspection and determination~~ a review by the Government to verify that the work was accomplished in a satisfactory manner and is ~~suitable~~ necessary for ~~inclusion in~~ the Project. 2. Where the Non-Federal Sponsor’s costs for design is expressed as fixed costs plus a percentage of construction costs, the Non-Federal Sponsor shall renegotiate such costs with its Architect-Engineer based on actual costs. 3. The Non-Federal Sponsor’s costs for design ~~and construction~~ that may be eligible for inclusion in total design costs shall be subject to an audit in accordance with Article VII.C. of this Agreement to determine the reasonableness, allocability and allowability of such costs. 4. The Non-Federal Sponsor’s costs for design that may be eligible for inclusion in total design costs pursuant to this Agreement are not subject to interest charges, nor are they subject to adjustment to reflect changes in price levels between the time the work is completed and the time the costs are included in total design costs. 5. The Government shall not include in total design costs any costs paid by the Non-Federal Sponsor using Federal program funds 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. C. The Government shall reimburse the Non-Federal Sponsor, in accordance with Article IV.B. of this Agreement, the amount necessary so that the Federal contribution towards total design costs equals 75 percent; however, any reimbursement by the Government is subject to the availability of funds and is limited by the Section 595 Program Limit for Idaho. D. Notwithstanding any other provision of this Agreement, Federal financial participation in the Project is limited by the following provisions of this paragraph. 1. As of the effective date of this Agreement, $31,206,000 of Federal funds have been provided by the Congress of the United States (hereinafter the “Congress”) for the Section 595 Program in Idaho of which $490,000 is currently projected to be available for the Project. The Government makes no commitment to request Congress to provide additional Federal funds for the Section 595 Program in Idaho or the Project. Further, the Government’s financial participation in the Project is limited to the Federal funds that the Government makes available to the Project. 2. In the event the Government projects that the amount of Federal funds the Government will make available to the Project through the then-current fiscal year, or the amount of Federal funds the Government will make available for the Project through the upcoming fiscal year, is not sufficient to meet the Federal share of total design costs that the Government projects to be incurred through the then-current or upcoming fiscal year, as applicable, the Government 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 Project will be exhausted. Upon the exhaustion of Federal funds made available by the Government to the Project, the Government’s future performance under this Agreement shall be suspended and the parties shall proceed in accordance with Article X.B. of this Agreement. However, if the Government cannot make available sufficient Federal funds to meet the Federal share of total project costs in the then-current fiscal year solely due to the Section 102 Limit, only the Government’s future performance related to reimbursement pursuant to paragraph C. of this Article shall be suspended. 3. If the Government determines that the total amount of Federal funds provided by Congress for the Section 595 Program in Idaho has reached the Section 595 Program Limit for Idaho, and the Government projects that the Federal funds the Government will make available to the Project within the Section 595 Program Limit for Idaho will not be sufficient to meet the Federal share of total design costs, the Government 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 Project will be exhausted. Upon the exhaustion of Federal funds made available by the Government to the Project within the Section 595 Program Limit for Idaho, the parties shall terminate this Agreement and proceed in accordance with Article X of this Agreement. E. Upon conclusion of the period of design, the Government shall conduct an accounting, in accordance with Article IV.C. of this Agreement, and furnish the results to the Non-Federal Sponsor. F. The Non-Federal Sponsor and the Government, in consultation with appropriate Federal and State officials, shall develop a facilities or resource protection and development plan. Such plan shall include necessary design, completion of all necessary NEPA compliance, preparation of appropriate engineering plans and specifications, and any other matters related to design of the Project in accordance with this Agreement. G. The Non-Federal Sponsor shall identify such legal and institutional structures as are necessary to ensure the effective long-term operation of the Project. The Non-Federal Sponsor shall provide to the Government a description of such legal and institutional structures. The Non-Federal Sponsor’s costs of identification of such legal and institutional structures shall be included in total design costs and shared in accordance with the provisions of this Agreement, subject to an audit in accordance with Article VII.C. of this Agreement to determine reasonableness, allocability, and allowability of costs. H. The Non-Federal Sponsor shall not use Federal program funds to meet any of its obligations for the Project 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. I. In the event that the Non-Federal Sponsor elects to include betterments in the design of the Project during the period of design, the Non-Federal Sponsor shall notify the Government in writing and describe the betterments it intends to design. The Non-Federal Sponsor shall be solely responsible for all costs due to betterments and shall pay all such costs without reimbursement by the Government. J. The Government shall determine and include in total design costs the reasonable costs incurred by the Non-Federal Sponsor for pre-Agreement design work, subject to the conditions and limitations of this paragraph, that have not been incurred pursuant to any other agreement for the Project. The Non-Federal Sponsor in a timely manner shall provide the Government with such documents as are sufficient to enable the Government to determine the amount of costs to be included in total design costs for pre-Agreement design work. 1. Pre-Agreement design work shall be subject to a review by the Government to verify that the work was accomplished in a satisfactory manner and is necessary for the Project. 2. Where the Non-Federal Sponsor’s cost for completed pre-Agreement design work is expressed as fixed costs plus a percentage of construction costs, the Non-Federal Sponsor shall renegotiate such costs with its Architect-Engineer based on actual costs. 3. The Non-Federal Sponsor’s costs for pre-Agreement design work that may be eligible for inclusion in total design costs shall be subject to an audit in accordance with Article

Appears in 1 contract

Samples: Project Agreement

Appears in 1 contract

Samples: Environmental Infrastructure Model Agreement for Construction Assistance

OBLIGATIONS OF THE GOVERNMENT AND THE NON-FEDERAL SPONSOR. A. ~~Using its funds~~The Government, subject to receiving funds appropriated by the Non-Federal Sponsor expeditiously shall design and construct the 1. The Non-Federal Sponsor shall require all contractors to whom it awards design contracts to provide 30 percent and 100 percent design information to enable in-progress review Congress of the ~~design. The Government may participate in~~ United States (hereinafter the ~~review of the design at each stage of completion~~ “Congress”) and ~~may provide technical assistance to the Non-Federal Sponsor on an as-needed basis until the end of the period of design~~ using those funds and construction. The Government shall perform a final review to verify that the design is complete and is necessary for the Project. Upon completion of design, the Non-Federal Sponsor shall furnish the District Engineer with copies of the completed design. 2. Using information developed funds provided by the Non-Federal Sponsor, expeditiously shall conduct the ~~Government shall develop and coordinate as required~~Study, ~~an Environmental Assessment and Finding of No Significant Impact or an Environmental Impact Statement and Record of Decision~~applying those procedures usually applied to Federal projects, ~~as necessary, to inform the public regarding the environmental impacts of the Project~~ in accordance with ~~the National Environmental Policy Act of 1969 (hereinafter “NEPA”)~~Federal laws, regulations, and policies. The Non-Federal Sponsor expeditiously shall perform or provide the non-Federal in-kind contributions in accordance with applicable Federal laws, regulations, and policies. 1. The Government shall not issue the solicitation for the first ~~construction~~ contract for the ~~Project~~ Study or commence ~~construction of~~ the ~~Project~~ Study using the Government’s own forces until the Non-Federal ~~Sponsor’s own forces until all applicable environmental laws and regulations have been complied with, including, but not limited~~ Sponsor has confirmed in writing its willingness to ~~NEPA and Section 401 of~~ proceed with the ~~Federal Water Pollution Control Act (33 U.S.C. 1341)~~Study. 32. ~~The Non-Federal Sponsor shall obtain all permits~~ To the extent possible, the Government and licenses necessary for the design and construction of the Project and, in the exercise of its rights and obligations under this Agreement, shall comply with all applicable Federal, state, and local laws, regulations, ordinances, and policies including the laws and regulations specified in Article XI of this Agreement. As necessary to ensure compliance with such laws, regulations, ordinances, and policies, the Non-Federal Sponsor shall ~~include appropriate provisions~~ conduct the Study in ~~its contracts for~~ accordance with the ~~design~~ PMP. 3. The Government shall afford the Non-Federal Sponsor the opportunity to review and ~~construction~~ comment on all products that are developed by contract or by Government personnel during the period of study. The Government shall consider in good faith the comments of the ~~Project~~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, including 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. In any instance where providing the Non-Federal Sponsor with notification of a contract modification is not possible prior to execution of the contract modification, the Government shall provide such notification in writing at the earliest date possible. To the extent possible, the Government also shall afford the Non-Federal Sponsor the opportunity to review and comment on all contract claims prior to resolution thereof. The Government shall consider in good faith the comments of the Non-Federal Sponsor, but the contents of solicitations, award of contracts or commencement of 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 non-Federal in-kind contributions, shall be exclusively within the control of the Government. 5. At the time the U.S. Army Engineer, Philadelphia 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 Government for 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 for the ~~Project~~non-Federal in-kind contributions, including relevant ~~plans and specifications~~scopes of work, prior to the Non-Federal Sponsor’s issuance of such solicitations. To the extent possible, the Non-Federal Sponsor shall afford the Government the opportunity to review and comment on all proposed contract modifications, including change orders. In any instance where providing the Government with notification of a contract modification is not possible prior to execution of the contract modification, 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. The Non-Federal Sponsor shall consider in good faith the comments of the ~~Government,~~ Government but the contents of solicitations, award of contracts or commencement of ~~design or construction~~ work on the Study using the Non-Federal Sponsor’s own forces, execution of contract modifications, resolution of contract claims, and performance of all work on the ~~Project~~ non-Federal in-kind contributions shall be exclusively within the control of the Non-Federal Sponsor. 57. 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 ~~Project~~non-Federal in-kind contributions, the Non-Federal Sponsor shall furnish a copy thereof to the Government. 6B. The Non-Federal Sponsor shall contribute 50 percent of total study costs in accordance with the provisions of this paragraph. 1. The Non-Federal Sponsor shall provide a contribution of funds as determined below: a. If the Government 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 without considering the credit the Government projects will be afforded for the non-Federal in-kind contributions pursuant to paragraph B.4. of this Article. The Government ~~may perform periodic inspections to verify~~ shall determine the ~~progress~~ amount of ~~construction~~ funds that would be necessary by subtracting from the Non-Federal Sponsor’s required share of 50 percent of total study costs the collective value of the Non-Federal Sponsor’s contributions under Article III and ~~that~~ Article VI of this Agreement. b. The Non-Federal Sponsor shall provide funds in the ~~work is being performed~~ amount determined by this paragraph in ~~a satisfactory manner~~accordance with Article IV.B. of this Agreement. ~~In addition~~To determine the contribution of funds the Non-Federal Sponsor shall provide, the Government ~~may provide technical assistance~~ shall reduce the amount determined in accordance with paragraph B.1.a. of this Article by the amount of credit the Government projects will be afforded for the non-Federal in-kind contributions pursuant to paragraph B.4. of this Article. 2. The Government, subject to the availability of funds and as limited by paragraph B.5. of this Article and the Section 205 Annual Program Limit, shall refund or reimburse to the Non-Federal Sponsor ~~on an as-needed basis until~~ any contributions in excess of 50 percent of total study costs if the ~~end~~ Government determines at any time that the collective value of the ~~period~~ following has exceeded 50 percent of ~~design~~ total study costs: (a) the Non-Federal Sponsor’s contribution of funds required by paragraph B.1.b. of this Article; (b) the amount of credit to be afforded for the non-Federal in-kind contributions pursuant to paragraph B.4. of this Article; and ~~construction~~(c) the value of the Non-Federal Sponsor’s contributions under Article III and Article VI of this Agreement. 3. ~~Further, the~~ The Government shall ~~perform a final inspection~~ determine and include in total study costs any costs incurred by the Non-Federal Sponsor for non-Federal in-kind contributions, subject to ~~verify~~ the ~~completion~~ conditions and limitations of ~~construction of the entire Project or completed portion thereof as the case may be~~this paragraph. The Non-Federal Sponsor ~~hereby gives~~ in a timely manner shall provide the Government with such documents as are sufficient to enable the Government to determine the amount of costs to be included in total study costs for non-Federal in-kind contributions. a. Acceptance by the Government of non-Federal in-kind contributions shall be subject to a ~~right~~ review by the Government to ~~enter~~verify that all economic, ~~at reasonable times~~ engineering, real estate, and environmental analyses or other items performed or provided as non-Federal in-kind contributions are accomplished in a satisfactory manner and in ~~a reasonable manner~~accordance with applicable Federal laws, ~~upon property~~ regulations, and policies, and to verify that ~~the Non-~~ all analyses, services, materials, supplies, and other in-kind services provided as non-Federal ~~Sponsor now or hereafter owns or controls~~ in-kind contributions are necessary for the ~~purpose of performing such inspections~~Study. ~~B. In~~ b. The Non-Federal Sponsor’s costs for non-Federal in-kind contributions that may be eligible for inclusion in total study costs pursuant to this Agreement shall be subject to an audit in accordance with Article ~~III~~ VI.C. of this Agreement to determine the reasonableness, allocability, and allowability of such costs. c. The Non-Federal Sponsor’s costs for non-Federal in-kind contributions that may be eligible for inclusion in total study costs pursuant to this Agreement are not subject to interest charges, nor are they subject to adjustment to reflect changes in price levels between the time the non-Federal in-kind contributions are provided and the time the costs are included in total study costs. d. The Government shall not include in total study costs any costs for non-Federal in-kind contributions paid by the Non-Federal Sponsor using Federal program funds 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. e. The Government shall not include in total study costs any costs for non-Federal in-kind contributions in excess of the Government’s estimate of the costs of the non-Federal in-kind contributions if the services, materials, supplies, and other in-kind services had been provided by the Government. 4. The Government, in accordance with this paragraph, shall afford credit toward the amount of funds determined in accordance with paragraph B.1.a. of this Article for the costs of the non-Federal in-kind contributions determined in accordance with paragraph B.3. of this Article. However, the maximum amount of credit that can be afforded for the non-Federal in- kind contributions shall not exceed the least of the following amounts as determined by the Government: the amount of funds determined in accordance with paragraph B.1.a. of this Article; the costs of the non-Federal in-kind contributions determined in accordance with paragraph B.3. of this Article; or 50 percent of total study costs. 5. Notwithstanding any other provision of this Agreement, the Non-Federal Sponsor shall ~~provide all lands, easements, and rights-of-way, including those required for relocations, the borrowing~~ not be entitled to reimbursement of ~~material, and the disposal~~ any costs of ~~dredged or excavated material, and shall perform or ensure performance of all relocations that the Non~~non-Federal ~~Sponsor~~ in-kind contributions determined in accordance with paragraph B.3. of this Article and included in total study costs that exceed the ~~Government jointly determine to be required or to be necessary~~ amount of credit afforded for ~~construction, operation,~~ the non-Federal in-kind contributions determined in accordance with paragraph B.4. of this Article and ~~maintenance of the Project. In addition,~~ the Non-Federal Sponsor shall ~~obtain~~ be responsible for 100 percent of all ~~permits necessary for construction, operation, and maintenance~~ costs of non-Federal in-kind contributions included in total study costs that exceed the ~~Project on publicly owned or controlled lands~~amount of credit afforded. C. ~~The Government shall determine and include~~ Notwithstanding any other provision of this Agreement, Federal financial participation in ~~total project costs any costs incurred~~ the Study is limited by the ~~Non-Federal Sponsor that the District Engineer determines are directly related to design and construction of the Project, subject to the conditions and limitations~~ following provisions of this paragraph. 1. ~~Pursuant~~ In the event the Government projects that the amount of Federal funds the Government will make available to ~~paragraph A.6.~~ the Study through the then-current fiscal year, or the amount of ~~this Article~~Federal funds the Government will make available for the Study through the upcoming fiscal year, ~~all work performed by~~ is not sufficient to meet the ~~Non-~~ Federal share of total study costs that the Government projects to be incurred through the then-current or upcoming fiscal year, as applicable, the Government shall notify the Non-Federal Sponsor ~~for~~ in writing of such insufficiency of funds and of the ~~Project is subject~~ date the Government projects that the Federal funds that will have been made available to ~~on-site inspection and determination~~ the Study will be exhausted. Upon the exhaustion of Federal funds made available by the Government ~~that~~ to the ~~work was accomplished~~ Study, future performance under this Agreement shall be suspended and the parties shall proceed in ~~a satisfactory manner and is suitable for inclusion in the Project~~accordance with Article IX.C. of this Agreement. 2. If the Government determines that the total amount of Federal funds provided by Congress for all studies and projects implemented pursuant to Section 205 has reached the Section 205 Annual Program Limit, and the Government projects that the Federal funds the Government will make available to the Study within the Section 205 Annual Program Limit will not be sufficient to meet the Federal share of total study costs, the Government 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 Government to the Study within the Section 205 Annual Program Limit, future performance under this Agreement shall be suspended and the parties shall proceed in accordance with Article IX.C. of this Agreement. 3. As of the effective date of this Agreement, $XXX,XXX(TBD) of Federal funds is currently projected to be available for the Study. The Government makes no commitment to request Congress to provide additional Federal funds for the Study. Further, the Government’s financial participation in the Study is limited to the Federal funds that the Government makes available to the Study. D. Upon conclusion of the period of study, the Government shall conduct an accounting, in accordance with Article IV.C. of this Agreement, and furnish the results to the Non-Federal Sponsor. E. The Non-Federal ~~Sponsor’s costs~~ Sponsor shall not use Federal program funds to meet any of its obligations for ~~design~~ 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. F. This Agreement shall not be construed as obligating either party to implement a project. Whether the Government proceeds with implementation of the project depends upon, among other things, the outcome of the Study and ~~construction that may be eligible~~ whether the proposed solution is consistent with the Economic and Environmental Principles and Guidelines for ~~inclusion in total project costs shall be subject to an audit in accordance~~ Water and Related Land Resources Implementation Studies and with ~~Article~~the budget priorities of the Administration.

Appears in 1 contract

Samples: Agreement Between the Department of the Army and Cheltenham Township for the Tookany Creek Project

Appears in 1 contract

Samples: Cost Sharing Agreement

Appears in 1 contract

Samples: Construction Assistance Agreement

OBLIGATIONS OF THE GOVERNMENT AND THE NON-FEDERAL SPONSOR. A. ~~Using its funds~~The Government, subject to receiving funds appropriated by the Non-Federal Sponsor expeditiously shall design and construct the 1. The Non-Federal Sponsor shall require all contractors to whom it awards design contracts to provide 30 percent and 100 percent design information to enable in-progress review Congress of the ~~design. The Government may participate in~~ United States (hereinafter the ~~review of the design at each stage of completion~~ “Congress”) and ~~may provide technical assistance to the Non-Federal Sponsor on an as-needed basis until the end of the period of design~~ using those funds and construction. The Government shall perform a final review to verify that the design is complete and is necessary for the Project. Upon completion of design, the Non-Federal Sponsor shall furnish the District Engineer with copies of the completed design. 2. Using information developed funds provided by the Non-Federal Sponsor, expeditiously shall conduct the ~~Government shall develop and coordinate as required~~Study, ~~an Environmental Assessment and Finding of No Significant Impact or an Environmental Impact Statement and Record of Decision~~applying those procedures usually applied to Federal projects, ~~as necessary, to inform the public regarding the environmental impacts of the Project~~ in accordance with ~~the National Environmental Policy Act of 1969 (hereinafter “NEPA”)~~Federal laws, regulations, and policies. The Non-Federal Sponsor expeditiously shall perform or provide the non-Federal in-kind contributions in accordance with applicable Federal laws, regulations, and policies. 1. The Government shall not issue the solicitation for the first ~~construction~~ contract for the ~~Project~~ Study or commence ~~construction of~~ the ~~Project~~ Study using the Government’s own forces until the Non-Federal ~~Sponsor’s own forces until all applicable environmental laws and regulations have been complied with, including, but not limited~~ Sponsor has confirmed in writing its willingness to ~~NEPA and Section 401 of~~ proceed with the ~~Federal Water Pollution Control Act (33 U.S.C. 1341)~~Study. 32. ~~The Non-Federal Sponsor shall obtain all permits~~ To the extent possible, the Government and licenses necessary for the design and construction of the Project and, in the exercise of its rights and obligations under this Agreement, shall comply with all applicable Federal, state, and local laws, regulations, ordinances, and policies including the laws and regulations specified in Article XI of this Agreement. As necessary to ensure compliance with such laws, regulations, ordinances, and policies, the Non-Federal Sponsor shall ~~include appropriate provisions~~ conduct the Study in ~~its contracts for~~ accordance with the ~~design~~ PMP. 3. The Government shall afford the Non-Federal Sponsor the opportunity to review and ~~construction~~ comment on all products that are developed by contract or by Government personnel during the period of study. The Government shall consider in good faith the comments of the ~~Project~~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, including 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. In any instance where providing the Non-Federal Sponsor with notification of a contract modification is not possible prior to execution of the contract modification, the Government shall provide such notification in writing at the earliest date possible. To the extent possible, the Government also shall afford the Non-Federal Sponsor the opportunity to review and comment on all contract claims prior to resolution thereof. The Government shall consider in good faith the comments of the Non-Federal Sponsor, but the contents of solicitations, award of contracts or commencement of 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 non-Federal in-kind contributions, shall be exclusively within the control of the Government. 5. At the time the U.S. Army Engineer, Philadelphia 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 Government for 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 for the ~~Project~~non-Federal in-kind contributions, including relevant ~~plans and specifications~~scopes of work, prior to the Non-Federal Sponsor’s issuance of such solicitations. To the extent possible, the Non-Federal Sponsor shall afford the Government the opportunity to review and comment on all proposed contract modifications, including change orders. In any instance where providing the Government with notification of a contract modification is not possible prior to execution of the contract modification, 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. The Non-Federal Sponsor shall consider in good faith the comments of the ~~Government,~~ Government but the contents of solicitations, award of contracts or commencement of ~~design or construction~~ work on the Study using the Non-Federal Sponsor’s own forces, execution of contract modifications, resolution of contract claims, and performance of all work on the ~~Project~~ non-Federal in-kind contributions shall be exclusively within the control of the Non-Federal Sponsor. 57. 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 ~~Project~~non-Federal in-kind contributions, the Non-Federal Sponsor shall furnish a copy thereof to the Government. 6B. The Non-Federal Sponsor shall contribute 50 percent of total study costs in accordance with the provisions of this paragraph. 1. The Non-Federal Sponsor shall provide a contribution of funds as determined below: a. If the Government 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 without considering the credit the Government projects will be afforded for the non-Federal in-kind contributions pursuant to paragraph B.4. of this Article. The Government ~~may perform periodic inspections to verify~~ shall determine the ~~progress~~ amount of ~~construction~~ funds that would be necessary by subtracting from the Non-Federal Sponsor’s required share of 50 percent of total study costs the collective value of the Non-Federal Sponsor’s contributions under Article III and ~~that~~ Article VI of this Agreement. b. The Non-Federal Sponsor shall provide funds in the ~~work is being performed~~ amount determined by this paragraph in ~~a satisfactory manner~~accordance with Article IV.B. of this Agreement. ~~In addition~~To determine the contribution of funds the Non-Federal Sponsor shall provide, the Government ~~may provide technical assistance~~ shall reduce the amount determined in accordance with paragraph B.1.a. of this Article by the amount of credit the Government projects will be afforded for the non-Federal in-kind contributions pursuant to paragraph B.4. of this Article. 2. The Government, subject to the availability of funds and as limited by paragraph B.5. of this Article and the Section 205 Annual Program Limit, shall refund or reimburse to the Non-Federal Sponsor ~~on an as-needed basis until~~ any contributions in excess of 50 percent of total study costs if the ~~end~~ Government determines at any time that the collective value of the ~~period~~ following has exceeded 50 percent of ~~design~~ total study costs: (a) the Non-Federal Sponsor’s contribution of funds required by paragraph B.1.b. of this Article; (b) the amount of credit to be afforded for the non-Federal in-kind contributions pursuant to paragraph B.4. of this Article; and ~~construction~~(c) the value of the Non-Federal Sponsor’s contributions under Article III and Article VI of this Agreement. 3. ~~Further, the~~ The Government shall ~~perform a final inspection~~ determine and include in total study costs any costs incurred by the Non-Federal Sponsor for non-Federal in-kind contributions, subject to ~~verify~~ the ~~completion~~ conditions and limitations of ~~construction of the entire Project or completed portion thereof as the case may be~~this paragraph. The Non-Federal Sponsor ~~hereby gives~~ in a timely manner shall provide the Government with such documents as are sufficient to enable the Government to determine the amount of costs to be included in total study costs for non-Federal in-kind contributions. a. Acceptance by the Government of non-Federal in-kind contributions shall be subject to a ~~right~~ review by the Government to ~~enter~~verify that all economic, ~~at reasonable times~~ engineering, real estate, and environmental analyses or other items performed or provided as non-Federal in-kind contributions are accomplished in a satisfactory manner and in ~~a reasonable manner~~accordance with applicable Federal laws, ~~upon property~~ regulations, and policies, and to verify that ~~the Non-~~ all analyses, services, materials, supplies, and other in-kind services provided as non-Federal ~~Sponsor now or hereafter owns or controls~~ in-kind contributions are necessary for the ~~purpose of performing such inspections~~Study. ~~B. In~~ b. The Non-Federal Sponsor’s costs for non-Federal in-kind contributions that may be eligible for inclusion in total study costs pursuant to this Agreement shall be subject to an audit in accordance with Article ~~III~~ VI.C. of this Agreement to determine the reasonableness, allocability, and allowability of such costs. c. The Non-Federal Sponsor’s costs for non-Federal in-kind contributions that may be eligible for inclusion in total study costs pursuant to this Agreement are not subject to interest charges, nor are they subject to adjustment to reflect changes in price levels between the time the non-Federal in-kind contributions are provided and the time the costs are included in total study costs. d. The Government shall not include in total study costs any costs for non-Federal in-kind contributions paid by the Non-Federal Sponsor using Federal program funds 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. e. The Government shall not include in total study costs any costs for non-Federal in-kind contributions in excess of the Government’s estimate of the costs of the non-Federal in-kind contributions if the services, materials, supplies, and other in-kind services had been provided by the Government. 4. The Government, in accordance with this paragraph, shall afford credit toward the amount of funds determined in accordance with paragraph B.1.a. of this Article for the costs of the non-Federal in-kind contributions determined in accordance with paragraph B.3. of this Article. However, the maximum amount of credit that can be afforded for the non-Federal in- kind contributions shall not exceed the least of the following amounts as determined by the Government: the amount of funds determined in accordance with paragraph B.1.a. of this Article; the costs of the non-Federal in-kind contributions determined in accordance with paragraph B.3. of this Article; or 50 percent of total study costs. 5. Notwithstanding any other provision of this Agreement, the Non-Federal Sponsor shall ~~provide all lands, easements, and rights-of-way, including those required for relocations, the borrowing~~ not be entitled to reimbursement of ~~material, and the disposal~~ any costs of ~~dredged or excavated material, and shall perform or ensure performance of all relocations that the Non~~non-Federal ~~Sponsor~~ in-kind contributions determined in accordance with paragraph B.3. of this Article and included in total study costs that exceed the ~~Government jointly determine to be required or to be necessary~~ amount of credit afforded for ~~construction, operation,~~ the non-Federal in-kind contributions determined in accordance with paragraph B.4. of this Article and ~~maintenance of the Project. In addition,~~ the Non-Federal Sponsor shall ~~obtain~~ be responsible for 100 percent of all ~~permits necessary for construction, operation, and maintenance~~ costs of non-Federal in-kind contributions included in total study costs that exceed the ~~Project on publicly owned or controlled lands~~amount of credit afforded. C. ~~The Government shall determine and include~~ Notwithstanding any other provision of this Agreement, Federal financial participation in ~~total project costs any costs incurred~~ the Study is limited by the ~~Non-Federal Sponsor that the District Engineer determines are directly related to design and construction of the Project, subject to the conditions and limitations~~ following provisions of this paragraph. 1. ~~Pursuant~~ In the event the Government projects that the amount of Federal funds the Government will make available to ~~paragraph A.6.~~ the Study through the then-current fiscal year, or the amount of ~~this Article~~Federal funds the Government will make available for the Study through the upcoming fiscal year, ~~all work performed by~~ is not sufficient to meet the ~~Non-~~ Federal share of total study costs that the Government projects to be incurred through the then-current or upcoming fiscal year, as applicable, the Government shall notify the Non-Federal Sponsor ~~for~~ in writing of such insufficiency of funds and of the ~~Project is subject~~ date the Government projects that the Federal funds that will have been made available to ~~on-site inspection and determination~~ the Study will be exhausted. Upon the exhaustion of Federal funds made available by the Government ~~that~~ to the ~~work was accomplished~~ Study, future performance under this Agreement shall be suspended and the parties shall proceed in ~~a satisfactory manner and is suitable for inclusion in the Project~~accordance with Article IX.C. of this Agreement. 2. If the Government determines that the total amount of Federal funds provided by Congress for all studies and projects implemented pursuant to Section 205 has reached the Section 205 Annual Program Limit, and the Government projects that the Federal funds the Government will make available to the Study within the Section 205 Annual Program Limit will not be sufficient to meet the Federal share of total study costs, the Government 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 Government to the Study within the Section 205 Annual Program Limit, future performance under this Agreement shall be suspended and the parties shall proceed in accordance with Article IX.C. of this Agreement. 3. As of the effective date of this Agreement, $199,300 of Federal funds is currently projected to be available for the Study. The Government makes no commitment to request Congress to provide additional Federal funds for the Study. Further, the Government’s financial participation in the Study is limited to the Federal funds that the Government makes available to the Study. D. Upon conclusion of the period of study, the Government shall conduct an accounting, in accordance with Article IV.C. of this Agreement, and furnish the results to the Non-Federal Sponsor. E. The Non-Federal ~~Sponsor’s costs~~ Sponsor shall not use Federal program funds to meet any of its obligations for ~~design~~ 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. F. This Agreement shall not be construed as obligating either party to implement a project. Whether the Government proceeds with implementation of the project depends upon, among other things, the outcome of the Study and ~~construction that may be eligible~~ whether the proposed solution is consistent with the Economic and Environmental Principles and Guidelines for ~~inclusion in total project costs shall be subject to an audit in accordance~~ Water and Related Land Resources Implementation Studies and with ~~Article~~the budget priorities of the Administration.

Appears in 1 contract

Samples: Cooperative Agreement

OBLIGATIONS OF THE GOVERNMENT AND THE NON-FEDERAL SPONSOR. A. Using its funds, the Non-Federal Sponsor expeditiously shall design the Project in accordance with Federal laws, regulations, and ~~construct the~~policies. 1. The Non-Federal Sponsor shall require all contractors to whom it awards design contracts to provide 30 percent and 100 percent design information to enable in-progress review of the design. The Government may participate in the review of the design at each stage of completion and may provide technical assistance to the Non-Federal Sponsor on an as-needed basis until the end of the period of ~~design and construction~~design. The Government shall perform a final review to verify that the design is complete and is necessary for the Project. Upon completion of design, the Non-Federal Sponsor shall furnish the District Engineer with copies of the completed design. 2. Using information developed by the Non-Federal Sponsor, the Government shall develop and coordinate as required, an Environmental Assessment and Finding of No Significant Impact or an Environmental Impact Statement and Record of Decision, as necessary, to inform the public regarding the environmental impacts of the Project in accordance with the National Environmental Policy Act of 1969 (hereinafter “NEPA”). The Non-Federal Sponsor shall not issue the solicitation for the first construction contract for the Project or commence construction of the Project using the Non-Federal Sponsor’s own forces until all applicable environmental laws and regulations have been complied with, including, but not limited to NEPA and Section 401 of the Federal Water Pollution Control Act (33 U.S.C. 1341)1969. 3. The Non-Federal Sponsor shall obtain all permits and licenses necessary for the design ~~and construction~~ of the Project and, in the exercise of its rights and obligations under this Agreement, shall comply with all applicable Federal, state, and local laws, regulations, ordinances, and policies including the laws and regulations specified in Article XI VIII of this Agreement. As necessary to ensure compliance with such laws, regulations, ordinances, and policies, the ~~Non-~~Non- Federal Sponsor shall include appropriate provisions in its contracts for the design ~~and construction~~ of the Project. 4. The Non-Federal Sponsor shall afford the Government the opportunity to review and comment on the solicitations for all contracts for the Project, including relevant plans and specifications, prior to the Non-Federal Sponsor’s issuance of such solicitations. To the extent possible, the Non-Federal Sponsor shall afford the Government the opportunity to review and comment on all proposed contract modifications, including change orders. In any instance where providing the Government with notification of a contract modification is not possible prior to execution of the contract modification, 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. The Non-Federal Sponsor shall consider in good faith the comments of the Government, but the contents of solicitations, award of contracts or commencement of design ~~or construction~~ using the Non-Federal Sponsor’s own forces, execution of contract modifications, resolution of contract claims, and performance of all ~~work~~ design on the Project shall be exclusively within the control of the Non-Federal Sponsor. 5. At the time the Non-Federal Sponsor furnishes a contractor with a notice of acceptance of completed work for each contract for the Project, the Non-Federal Sponsor shall furnish a copy thereof to the Government. 6. The Government may perform periodic inspections to verify the progress of construction and that the work is being performed in a satisfactory manner. In addition, the Government may provide technical assistance to the Non-Federal Sponsor on an as-needed basis until the end of the period of design and construction. Further, the Government shall perform a final inspection to verify the completion of construction of the entire Project or completed portion thereof as the case may be. The Non-Federal Sponsor hereby gives the Government a right to enter, at reasonable times and in a reasonable manner, upon property that the Non- Federal Sponsor now or hereafter owns or controls for the purpose of performing such inspections. B. In accordance with Article III of this Agreement, the Non-Federal Sponsor shall provide all lands, easements, and rights-of-way, including those required for relocations, the borrowing of material, and the disposal of dredged or excavated material, and shall perform or ensure performance of all relocations that the Non-Federal Sponsor and the Government jointly determine to be required or to be necessary for construction, operation, and maintenance of the Project. In addition, the Non-Federal Sponsor shall obtain all permits necessary for construction, operation, and maintenance of the Project on publicly owned or controlled lands. C. The Government shall determine and include in total ~~project~~ design costs any costs incurred by the Non-Federal Sponsor that the District Engineer determines are directly related to design ~~and construction~~ of the Project, subject to the conditions and limitations of this paragraph. 1. ~~Pursuant to paragraph A.6. of this Article, all~~ All design work performed by the ~~Non-~~ Non-Federal Sponsor for the Project is shall be subject to ~~on-site inspection and determination~~ a review by the Government to verify that the work was accomplished in a satisfactory manner and is ~~suitable~~ necessary for ~~inclusion in~~ the Project. 2. Where the Non-Federal Sponsor’s costs for design is expressed as fixed costs plus a percentage of construction costs, the Non-Federal Sponsor shall renegotiate such costs with its Architect-Engineer based on actual costs. 3. The Non-Federal Sponsor’s costs for design ~~and construction~~ that may be eligible for inclusion in total design costs shall be subject to an audit in accordance with Article VII.C. of this Agreement to determine the reasonableness, allocability and allowability of such costs. 4. The Non-Federal Sponsor’s costs for design that may be eligible for inclusion in total design costs pursuant to this Agreement are not subject to interest charges, nor are they subject to adjustment to reflect changes in price levels between the time the work is completed and the time the costs are included in total design costs. 5. The Government shall not include in total design costs any costs paid by the Non-Federal Sponsor using Federal program funds 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. C. The Government shall reimburse the Non-Federal Sponsor, in accordance with Article IV.B. of this Agreement, the amount necessary so that the Federal contribution towards total design costs equals 75 percent; however, any reimbursement by the Government is subject to the availability of funds and is limited by the Section 595 Program Limit for Idaho. D. Notwithstanding any other provision of this Agreement, Federal financial participation in the Project is limited by the following provisions of this paragraph. 1. As of the effective date of this Agreement, $33,406,000 of Federal funds have been provided by the Congress of the United States (hereinafter the “Congress”) for the Section 595 Program in Idaho of which $1,850,000 is currently projected to be available for the Project. The Government makes no commitment to request Congress to provide additional Federal funds for the Section 595 Program in Idaho or the Project. Further, the Government’s financial participation in the Project is limited to the Federal funds that the Government makes available to the Project. 2. In the event the Government projects that the amount of Federal funds the Government will make available to the Project through the then-current fiscal year, or the amount of Federal funds the Government will make available for the Project through the upcoming fiscal year, is not sufficient to meet the Federal share of total design costs that the Government projects to be incurred through the then-current or upcoming fiscal year, as applicable, the Government 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 Project will be exhausted. Upon the exhaustion of Federal funds made available by the Government to the Project, the Government’s future performance under this Agreement shall be suspended and the parties shall proceed in accordance with Article X.B. of this Agreement. However, if the Government cannot make available sufficient Federal funds to meet the Federal share of total project costs in the then-current fiscal year solely due to the Section 102 Limit, only the Government’s future performance related to reimbursement pursuant to paragraph C. of this Article shall be suspended. 3. If the Government determines that the total amount of Federal funds provided by Congress for the Section 595 Program in Idaho has reached the Section 595 Program Limit for Idaho, and the Government projects that the Federal funds the Government will make available to the Project within the Section 595 Program Limit for Idaho will not be sufficient to meet the Federal share of total design costs, the Government 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 Project will be exhausted. Upon the exhaustion of Federal funds made available by the Government to the Project within the Section 595 Program Limit for Idaho, the parties shall terminate this Agreement and proceed in accordance with Article X of this Agreement. E. Upon conclusion of the period of design, the Government shall conduct an accounting, in accordance with Article IV.C. of this Agreement, and furnish the results to the Non-Federal Sponsor. F. The Non-Federal Sponsor and the Government, in consultation with appropriate Federal and State officials, shall develop a facilities or resource protection and development plan. Such plan shall include necessary design, completion of all necessary NEPA compliance, preparation of appropriate engineering plans and specifications, and any other matters related to design of the Project in accordance with this Agreement. G. The Non-Federal Sponsor shall identify such legal and institutional structures as are necessary to ensure the effective long-term operation of the Project. The Non-Federal Sponsor shall provide to the Government a description of such legal and institutional structures. The Non-Federal Sponsor’s costs of identification of such legal and institutional structures shall be included in total design costs and shared in accordance with the provisions of this Agreement, subject to an audit in accordance with Article VII.C. of this Agreement to determine reasonableness, allocability, and allowability of costs. H. The Non-Federal Sponsor shall not use Federal program funds to meet any of its obligations for the Project 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. I. In the event that the Non-Federal Sponsor elects to include betterments in the design of the Project during the period of design, the Non-Federal Sponsor shall notify the Government in writing and describe the betterments it intends to design. The Non-Federal Sponsor shall be solely responsible for all costs due to betterments and shall pay all such costs without reimbursement by the Government. J. The Government shall determine and include in total design costs the reasonable costs incurred by the Non-Federal Sponsor for pre-Agreement design work, subject to the conditions and limitations of this paragraph, that have not been incurred pursuant to any other agreement for the Project. The Non-Federal Sponsor in a timely manner shall provide the Government with such documents as are sufficient to enable the Government to determine the amount of costs to be included in total design costs for pre-Agreement design work. 1. Pre-Agreement design work shall be subject to a review by the Government to verify that the work was accomplished in a satisfactory manner and is necessary for the Project. 2. Where the Non-Federal Sponsor’s cost for completed pre-Agreement design work is expressed as fixed costs plus a percentage of construction costs, the Non-Federal Sponsor shall renegotiate such costs with its Architect-Engineer based on actual costs. 3. The Non-Federal Sponsor’s costs for pre-Agreement design work that may be eligible for inclusion in total design costs shall be subject to an audit in accordance with Article

Appears in 1 contract

Samples: Project Agreement

OBLIGATIONS OF THE GOVERNMENT AND THE NON-FEDERAL SPONSOR. A. ~~Using its funds~~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, shall expeditiously design and construct the general navigation features (including alteration, lowering, raising, or replacement and attendant demolition of any bridge over navigable waters of the United States), applying those procedures usually applied to Federal projects, in accordance with Federal laws, regulations, and policies. 1. The Government shall not issue the solicitation for the first contract for design of the general navigation features or commence design of the general navigation features using the Government’s own forces until the Non-Federal Sponsor ~~expeditiously shall design~~ has confirmed in writing its willingness to proceed with the Project and ~~construct the 1. The Non-Federal Sponsor shall require all contractors to whom it awards design contracts to provide 30 percent and 100 percent design information to enable in-progress review of~~ the design. The Government may participate in the review of the design at each stage of completion and may provide technical assistance to the Non-Federal Sponsor on an as-needed basis until the end of the period of design and construction. The Government shall perform a final review to verify that the design is complete and is necessary for the Project. Upon completion of design, the Non-Federal Sponsor shall furnish the District Engineer with copies of the completed designlocal service facilities. 2. ~~Using information developed by the Non-Federal Sponsor, the~~ The Government shall develop and coordinate as required, an Environmental Assessment and Finding of No Significant Impact or an Environmental Impact Statement and Record of Decision, as necessary, to inform the public regarding the environmental impacts of the Project in accordance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321– 4347; hereinafter “NEPA”). ~~The Non-Federal Sponsor~~ However, the Government shall not issue the solicitation for the first construction contract for the ~~Project~~ general navigation features or commence construction of the ~~Project~~ general navigation features using the ~~Non-Federal Sponsor~~Government’s own forces until all applicable environmental laws and regulations have been complied with, including, but not limited to NEPA and Section 401 of the Federal Water Pollution Control Act (33 U.S.C. 1341). 3. The ~~Non-Federal Sponsor~~ Government shall obtain all permits and licenses necessary for the design and construction of the Project and, in the exercise of its rights and obligations under this Agreement, shall comply with all applicable Federal, state, and local laws, regulations, ordinances, and policies including the laws and regulations specified in Article XI of this Agreement. As necessary to ensure compliance with such laws, regulations, ordinances, and policies, afford the Non-Federal Sponsor ~~shall include appropriate provisions in its contracts for the design and construction of the Project. 4. The Non-Federal Sponsor shall afford the Government~~ the opportunity to review and comment on the solicitations for all ~~contracts for the Project~~contracts, including relevant plans and specifications, prior to the ~~Non-Federal Sponsor~~Government’s issuance of such solicitations. To the extent possible, the Government shall afford the Non-Federal Sponsor ~~shall afford the Government~~ the opportunity to review and comment on all proposed contract modifications, including change orders. In any instance where providing the ~~Government~~ Non-Federal Sponsor with notification of a contract modification is not possible prior to execution of the contract modification, the ~~Non-Federal Sponsor~~ Government shall provide such notification in writing at the earliest date possible. To the extent possible, the ~~Non-Federal Sponsor~~ Government also shall afford the ~~Government~~ Non- Federal Sponsor the opportunity to review and comment on all contract claims prior to resolution thereof. The ~~Non-Federal Sponsor~~ Government shall consider in good faith the comments of the ~~Government~~Non-Federal Sponsor, but the contents of solicitations, award of contracts or commencement of design or construction using the ~~Non-Federal Sponsor~~Government’s own forces, execution of contract modifications, resolution of contract claims, and performance of all work on the ~~Project~~ general navigation features shall be exclusively within the control of the ~~Non-Federal Sponsor~~Government. 54. At the time the ~~Non-Federal Sponsor~~ U.S. Army Engineer for the New England District (hereinafter the “District Engineer”) furnishes a the contractor with ~~a notice~~ the Government’s Written Notice of ~~acceptance~~ Acceptance of ~~completed work~~ Completed Work for each contract for the ~~Project~~general navigation features, the District Engineer shall furnish the Non-Federal Sponsor ~~shall furnish~~ with a copy thereof to the Government. 6. The Government may perform periodic inspections to verify the progress of construction and that the work is being performed in a satisfactory manner. In addition, the Government may provide technical assistance to the Non-Federal Sponsor on an as-needed basis until the end of the period of design and construction. Further, the Government shall perform a final inspection to verify the completion of construction of the entire Project or completed portion thereof as the case may be. The Non-Federal Sponsor hereby gives the Government a right to enter, at reasonable times and in a reasonable manner, upon property that the Non- Federal Sponsor now or hereafter owns or controls for the purpose of performing such inspectionsthereof. B. In accordance with Article III of this Agreement, the Non-Federal Sponsor shall provide all lands, easements, and rights-of-way, including those ~~required~~ necessary for ~~relocations,~~ the borrowing of ~~material, and~~ material or the disposal of dredged or excavated material, that the Government determines the Non-Federal Sponsor must provide for construction or operation and maintenance of the general navigation features, and shall perform or ensure performance of all relocations that the Government determines to be necessary for construction or operation and maintenance of the general navigation features. C. The Government shall allocate total costs of construction of the general navigation features to the final dredged depth, excluding associated over-depth and entrance channel wave allowances. Further, the Government shall allocate to any preexisting Federal or non-Federal navigation project all costs associated with the dredging, excavation, and disposal of material from the dimensions, including associated over-depth and entrance channel wave allowances, of such project. D. The Non-Federal Sponsor ~~and~~ shall contribute ten percent (10%) of total costs of construction of the general navigation features. If the Government ~~jointly determine to be required or to be necessary for construction~~projects that the Non-Federal Sponsor’s contributions under paragraph L.3. of this Article and under Articles V, ~~operation~~X, and ~~maintenance~~ XIV.A. of this Agreement that are allocated by the Government to total costs of construction of the ~~Project.~~ general navigation features will be less than the Non-Federal Sponsor’s share required by this paragraph, the Non-Federal Sponsor, in accordance with Article VI.B. of this Agreement, shall provide additional funds in the amount necessary to meet the Non-Federal Sponsor’s share required by this paragraph. E. In ~~addition~~accordance with Article VI.B. of this Agreement, the Non-Federal Sponsor shall ~~obtain all permits necessary for construction, operation, and maintenance~~ pay 100 percent of the ~~Project on publicly owned or controlled lands~~costs allocated by the Government pursuant to paragraph C. of this Article to a preexisting non-Federal navigation project. The Non-Federal Sponsor shall have no obligation under this Agreement to pay any costs allocated by the Government pursuant to paragraph C. of this Article to a preexisting Federal navigation project. ~~C. The Government shall determine and include in total project costs any costs incurred by~~ F. In accordance with Article VI.D. of this Agreement, the Non-Federal Sponsor ~~that the District Engineer determines are directly related~~ shall pay an additional amount equal to ~~design and~~ ten percent (10%) of total costs of construction of the ~~Project, subject to~~ general navigation features less the ~~conditions and limitations~~ amount of ~~this paragraph. 1. Pursuant to paragraph A.6. of this Article, all work performed by the Non- Federal Sponsor for the Project is subject to on-site inspection and determination~~ credit afforded by the Government ~~that~~ for the ~~work was accomplished in a satisfactory manner~~ value of the lands, easements, rights-of-way, and ~~is suitable for inclusion in the Project. 2~~relocations. The Non-Federal ~~Sponsor~~Sponsor shall not be entitled to reimbursement for any value of lands, easements, rights-of-way, and relocations provided or performed pursuant to Article III of this Agreement that exceeds ten percent (10%) of total costs of construction of the general navigation features. G. In accordance with Section 107 of Public Law 86-645, as amended (33 U.S.C. 577), the Government’s ~~costs~~ total financial obligations for ~~design~~ planning, design, and construction ~~that may be eligible~~ of the Project (except for ~~inclusion in total project~~ costs ~~shall be subject to an audit~~ incurred on behalf of the Non-Federal Sponsor in accordance with ~~Article~~II.M. of this Agreement) shall not exceed $7,000,000. Notwithstanding any other provision of this Agreement, the Non-Federal Sponsor shall be responsible for all costs in excess of this amount and shall pay any such costs in accordance with Article VI.B.

Appears in 1 contract

Samples: Project Agreement

Appears in 1 contract

Samples: Project Agreement

OBLIGATIONS OF THE GOVERNMENT AND THE NON-FEDERAL SPONSOR. A. Using its funds, the Non-Federal Sponsor expeditiously shall ~~design and~~ construct the 1. The Non-Federal Sponsor shall require all contractors to whom it awards design contracts to provide 30 percent and 100 percent design information to enable in-progress review of the design. The Government may participate in the review of the design at each stage of completion and may provide technical assistance to the Non-Federal Sponsor on an as-needed basis until the end of the period of design and construction. The Government shall perform a final review to verify that the design is complete and is necessary for the Project. Upon completion of design, the Non-Federal Sponsor shall furnish the District Engineer with copies of the completed design. 2. Using information developed by the Non-Federal Sponsor, the Government shall develop and coordinate as required, an Environmental Assessment and Finding of No Significant Impact or an Environmental Impact Statement and Record of Decision, as necessary, to inform the public regarding the environmental impacts of the Project in accordance with ~~the National Environmental Policy Act of 1969 (hereinafter “NEPA”). The Non-~~Federal Sponsor shall not issue the solicitation for the first construction contract for the Project or commence construction of the Project using the Non-Federal Sponsor’s own forces until all applicable environmental laws laws, regulations, and ~~regulations have been complied with, including, but not limited to NEPA and Section 401 of the Federal Water Pollution Control Act (33 U.S.C. 1341)~~policies. 31. The Non-Federal Sponsor shall obtain all permits and licenses necessary for the ~~design and~~ construction of the Project and, in the exercise of its rights and obligations under this Agreement, shall comply with all applicable Federal, state, and local laws, regulations, ordinances, and policies including the laws and regulations specified in Article XI of this Agreement. As necessary to ensure compliance with such laws, regulations, ordinances, and policies, the Non-Federal Sponsor shall include appropriate provisions in its contracts for the ~~design and~~ construction of the Project. 42. The Non-Federal Sponsor shall afford the Government the opportunity to review and comment on the solicitations for all contracts for the Project, including relevant plans and specifications, prior to the Non-Federal Sponsor’s issuance of such solicitations. To the extent possible, the Non-Federal Sponsor shall afford the Government the opportunity to review and comment on all proposed contract modifications, including change orders. In any instance where providing the Government with notification of a contract modification is not possible prior to execution of the contract modification, 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. The Non-Federal Sponsor shall consider in good faith the comments of the Government, but the contents of solicitations, award of contracts or commencement of ~~design or~~ construction using the Non-Federal Sponsor’s own forces, execution of contract modifications, resolution of contract claims, and performance of all work on the Project shall be exclusively within the control of the Non-Federal Sponsor. 53. At the time the Non-Federal Sponsor furnishes a contractor with a notice of acceptance of completed work for each contract for the Project, the Non-Federal Sponsor shall furnish a copy thereof to the Government. 64. The Government may perform periodic inspections to verify the progress of construction and that the work is being performed in a satisfactory manner. In addition, the Government may provide technical assistance to the Non-Federal Sponsor on an as-needed basis until the end of the period of ~~design and~~ construction. Further, the Government shall perform a final inspection to verify the completion of construction of the entire Project or completed portion thereof as the case may be. The Non-Federal Sponsor hereby gives the Government a right to enter, at reasonable times and in a reasonable manner, upon property that the ~~Non-~~ Non-Federal Sponsor now or hereafter owns or controls for the purpose of performing such inspections. B. In accordance with Article III of this Agreement, the Non-Federal Sponsor shall provide all lands, easements, and rights-of-way, including those required for relocations, the borrowing of material, and the disposal of dredged or excavated material, and shall perform or ensure performance of all relocations that the Non-Federal Sponsor and the Government jointly determine to be required or to be necessary for construction, operation, and maintenance of the Project. In addition, the Non-Federal Sponsor shall obtain all permits necessary for construction, operation, and maintenance of the Project on publicly owned or controlled lands. C. The Government shall determine and include in total project costs ~~any~~ the costs incurred by the Non-Federal Sponsor that the District Engineer determines are directly related to ~~design and~~ construction of the Project, subject to the conditions and limitations of this paragraph. 1. Pursuant to paragraph ~~A.6~~A.4. of this Article, all work performed by the Non- Federal Sponsor for the Project is subject to on-site inspection and determination by the Government that the work was accomplished in a satisfactory manner and is suitable for inclusion in the Project. 2. The Non-Federal Sponsor’s costs for ~~design and~~ construction that may be eligible for inclusion in total project costs shall be subject to an audit in accordance with Article X.C. of this Agreement to determine the reasonableness, allocability, and allowability of such costs. 3. In the performance of all work for the Project, the Non-Federal Sponsor must comply 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 (revising, codifying and enacting without substantive change the provisions of the Xxxxx-Xxxxx Act (formerly 40 U.S.C. 276a et seq.), the Contract Work Hours and Safety Standards Act (formerly 40 U.S.C. 327 et seq.), and the Xxxxxxxx Anti- Kickback Act (formerly 40 U.S.C. 276c)). Notwithstanding any other provision of this Agreement, inclusion of costs for construction in total project costs 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. 4. The Non-Federal Sponsor’s costs for construction that may be eligible for inclusion in total project costs pursuant to this Agreement are not subject to interest charges, nor are they subject to adjustment to reflect changes in price levels between the time the work is completed and the time the costs are included in total project costs. 5. The Government shall not include in total project costs any costs paid by the Non-Federal Sponsor using Federal program funds unless the Federal agency providing the funds verifies in writing that such funds are authorized to carry out the Project. D. The Government shall reimburse the Non-Federal Sponsor, in accordance with Article VI.B. of this Agreement, the amount necessary so that the Federal contribution towards total project costs equals 75 percent; however, any reimbursement by the Government is subject to the availability of funds and is limited by the Section 571 Program Limit. E. Notwithstanding any other provision of this Agreement, Federal financial participation in the Project is limited by the following provisions of this paragraph. 1. As of the effective date of this Agreement, $ of Federal funds have been provided by the Congress of the United States (hereinafter the “Congress”) for the Section 571 Program of which $_ is currently projected to be available for the Project. The Government makes no commitment to request Congress to provide additional Federal funds for the Section 571 Program or the Project. Further, the Government’s financial participation in the Project is limited to the Federal funds that the Government makes available to the Project. 2. In the event the Government projects that the amount of Federal funds the Government will make available to the Project through the then-current fiscal year, or the amount of Federal funds the Government will make available for the Project through the upcoming fiscal year, is not sufficient to meet the Federal share of total project costs and the Federal share of costs for data recovery activities associated with historic preservation in accordance with Article XVII.D. and Article XVII.E. of this Agreement that the Government projects will be incurred through the then-current or upcoming fiscal year, as applicable, the Government 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 Project will be exhausted. Upon the exhaustion of Federal funds made available by the Government to the Project, the Government’s future performance under this Agreement shall be suspended and the parties shall proceed in accordance with Article XIII.B. of this Agreement. However, if the Government cannot make available sufficient Federal funds to meet the Federal share of total project costs in the then-current fiscal year solely due to the Section 102 Limit, only the Government’s future performance related to reimbursement pursuant to paragraph D. of this Article shall be suspended. 3. If the Government determines that the total amount of Federal funds provided by Congress for the Section 571 Program has reached the Section 571 Program Limit, and the Government projects that the Federal funds the Government will make available to the Project within the Section 571 Program Limit will not be sufficient to meet the Federal share of total project costs and the Federal share of costs for data recovery activities associated with historic preservation in accordance with Article XVII.D. and Article XVII.E. of this Agreement, the Government 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 Project will be exhausted. Upon the exhaustion of Federal funds made available by the Government to the Project within the Section 571 Program Limit, the parties shall terminate this Agreement and proceed in accordance with Article XIII of this Agreement. F. During the period of construction, the Non-Federal Sponsor shall prepare and furnish to the Government for review a proposed Operation, Maintenance, Repair, Rehabilitation and Replacement Manual (hereinafter the “OMRR&R Manual”). The failure of the Non-Federal Sponsor to prepare an OMRR&R Manual acceptable to the Government shall not relieve the Non-Federal Sponsor of its responsibilities for operation, maintenance, repair, rehabilitation, and replacement of the entire completed Project, or any completed portion thereof as the case may be, in accordance with the provisions of this Agreement. G. Upon completion of construction and final inspection by the Government in accordance with paragraph A.4. of this Article, the Non-Federal Sponsor shall operate, maintain, repair, rehabilitate, and replace the entire Project, or a completed portion thereof as the case may be, in accordance with Article VIII of this Agreement. Further, after completion of all contracts for the Project, copies of all of the Non-Federal Sponsor’s Written Notices of Acceptance of Completed Work for all contracts for the Project that have not been provided previously shall be provided to the Government. H. Upon conclusion of the period of construction, the Government shall conduct an accounting, in accordance with Article VI.C. of this Agreement, and furnish the results to the Non-Federal Sponsor. I. The Non-Federal Sponsor and the Government, in consultation with appropriate Federal and State officials, shall develop a facilities or resource protection and development plan. Such plan shall include necessary design, completion of all necessary environmental coordination and documentation, preparation of appropriate engineering plans and specifications, preparation of an OMRR&R Manual, and any other matters related to design and construction of the Project in accordance with this Agreement [SEE NOTE - 9: and the Design Agreement]. J. The Non-Federal Sponsor shall identify, establish, and maintain such legal and institutional structures as are necessary to ensure the effective long-term operation of the Project. The Non-Federal Sponsor shall provide to the Government a written description of such legal and institutional structures and such descriptions shall be included in the OMRR&R Manual prepared by the Non-Federal Sponsor. The Non-Federal Sponsor’s costs of identification of such legal and institutional structures shall be included in total project costs and shared in accordance with the provisions of this Agreement, subject to an audit in accordance with Article X.C. of this Agreement to determine reasonableness, allocability, and allowability of such costs. The Government shall have no obligation under this Agreement for any costs of establishment and maintenance of such legal and institutional structures. K. The Non-Federal Sponsor shall not use Federal program funds to meet any of its obligations for the Project under this Agreement unless the Federal agency providing the funds verifies in writing that such funds are authorized to carry out the Project. L. The Non-Federal Sponsor may request the Government to acquire lands, easements, or rights-of-way or to perform relocations for the Project on behalf of the Non-Federal Sponsor. Such requests shall be in writing and shall describe the services requested to be performed or provided. If in its sole discretion the Government elects to perform or provide the requested services or any portion thereof, it shall so notify the Non-Federal Sponsor in a writing that sets forth any applicable terms and conditions, which must be consistent with this Agreement. In the event of conflict between such a writing and this Agreement, this Agreement shall control. The Non-Federal Sponsor shall be solely responsible for all costs of the services performed or provided by the Government under this paragraph and shall pay all such costs in accordance with Article VI.D. of this Agreement. Notwithstanding the acquisition of lands, easements, or rights- of-way or performance of relocations by the Government, the Non-Federal Sponsor shall be responsible, as between the Government and the Non-Federal Sponsor, for any costs of cleanup and response in accordance with Article XIV.C. of this Agreement. M. In the event that the Non-Federal Sponsor elects to include betterments in the design or construction of the Project during the period of construction, the Non-Federal Sponsor shall notify the Government in writing and describe the betterments it intends to design and construct. The Non-Federal Sponsor shall be solely responsible for all costs due to betterments, including costs associated with obtaining permits therefor, and shall pay all such costs without reimbursement by the Government. N. The Government shall determine and include in total project costs the reasonable costs incurred by the Non-Federal Sponsor for pre-Agreement design work, subject to the conditions and limitations of this paragraph, that have not been incurred pursuant to any other agreement for the Project but not to exceed 6 percent of total construction costs of the Project. The Non-Federal Sponsor in a timely manner shall provide the Government with such documents as are sufficient to enable the Government to determine the amount of costs to be included in total project costs for pre-Agreement design work. 1. Pre-Agreement design work shall be subject to a review by the Government to verify that the work was accomplished in a satisfactory manner and is necessary for the Project. 2. Where the Non-Federal Sponsor’s cost for completed pre-Agreement design work is expressed as fixed costs plus a percentage of construction costs, the Non-Federal Sponsor shall renegotiate such costs with its Architect-Engineer based on actual costs. 3. The Non-Federal Sponsor’s costs for pre-Agreement design work that may be eligible for inclusion in total project costs shall be subject to an audit in accordance with Article

Appears in 1 contract

Samples: Construction Assistance Agreement

OBLIGATIONS OF THE GOVERNMENT AND THE NON-FEDERAL SPONSOR. A. ~~Using its funds~~The Government, subject to receiving funds appropriated by the ~~Non-Federal Sponsor expeditiously shall design~~ Congress and ~~construct the 1. The Non-Federal Sponsor shall require all contractors to whom it awards design contracts to provide 30 percent~~ using those funds and 100 percent design information to enable in-progress review of the design. The Government may participate in the review of the design at each stage of completion and may provide technical assistance to the Non-Federal Sponsor on an as-needed basis until the end of the period of design and construction. The Government shall perform a final review to verify that the design is complete and is necessary for the Project. Upon completion of design, the Non-Federal Sponsor shall furnish the District Engineer with copies of the completed design. 2. Using information developed funds provided by the Non-Federal Sponsor, shall expeditiously design the Project, applying those procedures usually applied to the engineering and design of Federal projects, pursuant to Federal laws, regulations, and policies. 1. To the maximum extent possible, the Government shall develop and coordinate as required, an Environmental Assessment and Finding of No Significant Impact or an Environmental Impact Statement and Record of Decision, as necessary, to inform the public regarding the environmental impacts of design the Project in accordance with the ~~National Environmental Policy Act of 1969 (hereinafter “NEPA”). The Non-Federal Sponsor shall not issue the solicitation for the first construction contract~~ Project Management Plan for the Project ~~or commence construction of~~ and, if applicable, a Project Study Plan for any reevaluation during design, developed and updated as required by the ~~Project using~~ Government after consultation with the Non-Federal Sponsor’s own forces until all applicable environmental laws and regulations have been complied with, including, but not limited to NEPA and Section 401 of the Federal Water Pollution Control Act (33 U.S.C. 1341). 32. The ~~Non-Federal Sponsor~~ Government shall obtain all permits and licenses necessary for the design and construction of the Project and, in the exercise of its rights and obligations under this Agreement, shall comply with all applicable Federal, state, and local laws, regulations, ordinances, and policies including the laws and regulations specified in Article XI of this Agreement. As necessary to ensure compliance with such laws, regulations, ordinances, and policies, afford the Non-Federal Sponsor ~~shall include appropriate provisions in its contracts for the design and construction of the Project. 4. The Non-Federal Sponsor shall afford the Government~~ the opportunity to review and comment on the solicitations for all ~~contracts for the Project~~contracts, including relevant ~~plans and specifications~~scopes of work, prior to the ~~Non-Federal Sponsor~~Government’s issuance of such solicitations. To the extent possible, the Government shall afford the Non-Federal Sponsor ~~shall afford the Government~~ the opportunity to review and comment on all ~~proposed contract~~ contracts modifications, including change orders, prior to the issuance to the contractor of a Notice to Proceed. In any instance where providing the ~~Government~~ Non-Federal Sponsor with notification of a contract modification or change order is not possible prior to ~~execution~~ issuance of the ~~contract modification~~Notice to Proceed, the ~~Non-Federal Sponsor~~ Government shall provide such notification in writing at the earliest date possible. To the extent possible, the Government also shall afford the Non-Federal Sponsor ~~also shall afford the Government~~ the opportunity to review and comment on all contract claims prior to resolution thereof. The ~~Non-Federal Sponsor~~ Government shall consider in good faith the comments of the ~~Government~~Non-Federal Sponsor, but the contents of solicitations, award of ~~contracts or commencement of design or construction using the Non-Federal Sponsor’s own forces~~contracts, execution of contract modifications, issuance of change orders, resolution of contract claims, and performance of all design (whether the work ~~on the Project~~ is performed under contract or by Government personnel), shall be exclusively within the control of the ~~Non-Federal Sponsor~~Government. 53. At Notwithstanding paragraph A.1. of this Article, if the ~~time~~ award of any contract for design or continuation of design using the Government’s own forces would result in cumulative financial obligations for design exceeding $ , [NOTE: THIS AMOUNT MUST NOT BE LESS THAN ESTIMATE OF TOTAL DESIGN COSTS SHOWN IN ARTICLE IV.A.] the Government and the Non-Federal Sponsor ~~furnishes a contractor with a notice~~ agree to defer award of ~~acceptance of completed work~~ that contract, all subsequent contracts for ~~each contract for~~ design, and design using the ~~Project,~~ Government’s own forces until such time as the Government and the Non-Federal Sponsor ~~shall furnish a copy thereof~~ agree to proceed with further contract awards for design or the continuation of design using the Government’s own forces, but in no event shall the award of contracts or design using the Government’s own forces be deferred for more than three years. Notwithstanding this general provision for deferral of contract awards or design, the Government, after consultation with the Non-Federal Sponsor, may award a contract or contracts or continue with design using the Government’s own forces after the Assistant Secretary of the Army (Civil Works) makes a written determination that the award of such contract or contracts or continuation of design using the Government’s own forces must proceed in order to comply with law or to protect human life or property from imminent and substantial harm. 6. (1) This amount is less than the Federal share of projected total design costs, and the Government makes no commitment to budget for additional funds for the Federal share of total design costs. (2) The Government ~~may perform periodic inspections~~ makes no commitment to ~~verify~~ budget for additional funds for the ~~progress~~ Federal share of ~~construction and~~ total design costs.] Notwithstanding any other provision of this Agreement, the Government’s financial participation in design of the Project is limited to this amount together with any additional funds that the ~~work is being performed in a satisfactory manner~~Congress may appropriate for design of the Project. In ~~addition~~the event that the Congress does not appropriate funds sufficient to meet the Federal share of funds required to continue design in the then-current or upcoming fiscal year, the Government ~~may provide technical assistance to~~ shall notify the Non-Federal Sponsor ~~on an as-needed basis until the end~~ of the ~~period~~ insufficiency of funds and the parties, within the Federal and Non-Federal funds available for the Project, shall suspend design ~~and construction~~or terminate this Agreement in accordance with Article XI.B. of this Agreement. ~~Further~~To provide for this eventuality, the Government ~~shall perform~~ may reserve a ~~final inspection to verify the completion~~ percentage of ~~construction~~ total Federal funds available for design and an equal percentage of the ~~entire Project or completed portion thereof~~ total funds contributed by the Non-Federal Sponsor pursuant to Article II.B. of this Agreement as ~~the case may be.~~ a contingency to pay costs of termination, including any costs of contract claims and contract modifications. B. The Non-Federal Sponsor ~~hereby gives~~ shall provide, during the period of design a contribution equal to 25 percent of total design costs. If the Government ~~a right to enter, at reasonable times and in a reasonable manner, upon property~~ projects that the value of the Non- Federal ~~Sponsor now or hereafter owns or controls for the purpose~~ Sponsor’s contributions under Articles III and VII will be less than 25 percent of ~~performing such inspections. B. In accordance with Article III of this Agreement~~total design costs, the Non-Federal Sponsor shall provide ~~all lands~~a contribution, ~~easements~~in accordance with Article IV.B. of this Agreement, ~~and rights-of-way, including those required for relocations,~~ in the ~~borrowing~~ amount necessary to meet its 25 percent share of material, and the disposal of dredged or excavated material, and shall perform or ensure performance of all relocations that the Non-Federal Sponsor and the Government jointly determine to be required or to be necessary for construction, operation, and maintenance of the Project. In addition, the Non-Federal Sponsor shall obtain all permits necessary for construction, operation, and maintenance of the Project on publicly owned or controlled landstotal design costs. C. The Government shall perform a final accounting in accordance with Article IV.D. of this Agreement to determine ~~and include in total project costs any costs incurred~~ the contributions provided by the Non-Federal Sponsor ~~that the District Engineer determines are directly related to design~~ in accordance with paragraphs B. and ~~construction of the Project, subject to the conditions and limitations~~ E. of this ~~paragraph. 1. Pursuant~~ Article and Articles III and VII of this Agreement and to ~~paragraph A.6.~~ determine whether the Non-Federal Sponsor has met its obligations under paragraphs B. and E. of this Article~~, all work performed by the Non-~~ . D. The Non-Federal Sponsor ~~for~~ shall not use Federal funds to meet the ~~Project~~ Non-Federal Sponsor's share of total design costs under this Agreement unless the Federal granting agency verifies in writing that the expenditure of such funds is ~~subject to on~~expressly authorized by statute. E. The Non-~~site inspection and determination by~~ Federal Sponsor may request the Government ~~that~~ to design betterments. Such requests shall be in writing and shall describe the ~~work was accomplished~~ betterments requested to be designed. If the Government in its sole discretion elects to design the requested betterments or any portion thereof, it shall so notify the Non-Federal Sponsor in a ~~satisfactory manner~~ writing that sets forth any applicable terms and ~~is suitable for inclusion in~~ conditions, which must be consistent with this Agreement. In the ~~Project. 2~~event of conflict between such a writing and this Agreement, this Agreement shall control. The Non-Federal ~~Sponsor’s~~ Sponsor shall be solely responsible for all costs ~~for~~ due to the requested design of betterments and ~~construction that may be eligible for inclusion~~ shall pay all such costs in accordance with Article IV.C. of this Agreement. F. In accordance with Article IV.E. of this Agreement, the Government shall afford credit, toward the share of total project costs for the Project that is required of the non-Federal entity or entities executing the Project Cooperation Agreement or Agreements for the Project or separable element thereof, for the Non-Federal Sponsor’s 25 percent share of total design costs required under paragraph B. of this Article. G. This Agreement shall not be ~~subject~~ construed as obligating either party to ~~an audit in accordance with Article~~seek funds for, or to participate in, construction or implementation of the Project or a separable element thereof or as relieving the Non-Federal Sponsor of any future obligation under the terms of any Project Cooperation Agreement.

Appears in 1 contract

Samples: Design Agreement

Common use of OBLIGATIONS OF THE GOVERNMENT AND THE NON-FEDERAL SPONSOR Clause in Contracts