Loading...
HomeMy Public PortalAboutPL 115-123 Tybee Island PPA 08062019 ENCL 1.docxDRAFT AS OF AUGUST 6, 2019 PROJECT PARTNERSHIP AGREEMENT BETWEEN THE DEPARTMENT OF THE ARMY AND THE CITY OF TYBEE ISLAND, GEORGIA FOR A CYCLE OF PERIODIC NOURISHMENT FOR THE TYBEE ISLAND, GEORGIA BEACH EROSION CONTROL PROJECT THIS AGREEMENT is entered into this ________ day of ________, ____, by and between the Department of the Army (hereinafter the “Government”), represented by the [INSERT TITLE OF GOVERNMENT REPRESENTATIVE: i.e., Division Commander for the South Atlantic Division or District Commander for the Savannah District, if signature authority is delegated] and the City of Tybee Island (hereinafter the “Non-Federal Sponsor”), represented by the [INSERT TITLE]. WITNESSETH, THAT: WHEREAS, construction of the Tybee Island, Georgia project for beach erosion control at Tybee Island, Georgia was authorized by Section 201 of the Flood Control Act of 1965, Public Law 89-298, as modified by Section 301(b)(4) and Section 506 of the Water Resources Development Act of 1996, Public Law 104-303 (hereinafter the “Project”); WHEREAS, the Government and the Non-Federal Sponsor previously entered into a Project Cooperation Agreement on May 6, 1999 for construction and periodic nourishment of the Project; WHEREAS, the Government and Non-Federal Sponsor desire to enter into a Project Partnership Agreement to undertake a cycle of periodic nourishment for the Project (hereinafter the “periodic nourishment work”, as defined in Article I.A. of this Agreement), with an estimated total cost of $10,956,155, at full Federal expense to the extent that appropriations provided in Title IV, Division B of the Bipartisan Budget Act of 2018, Public Law 115-123, enacted February 9, 2018 (hereinafter “BBA 2018”), are available and used for such purpose; WHEREAS, the periodic nourishment work covered by this Agreement does not include the construction of new dunes, repair of damaged non-Federal dunes, or incorporation of existing non-Federal dunes into the Project; WHEREAS, no additional real property interests, relocations, or placement area improvements are required to undertake the periodic nourishment work; WHEREAS, the provisions of Section 902 of the Water Resources Development Act of 1986, as amended, do not apply to the funds provided in BBA 2018 that will be used to undertake the periodic nourishment work; WHEREAS, 33 U.S.C. 701h authorizes the Government to undertake, at the Non-Federal Sponsor’s full expense, additional work while the Government is carrying out the periodic nourishment work; and WHEREAS, the Government and the Non-Federal Sponsor have the full authority and capability to perform in accordance with the terms of this Agreement and acknowledge that Section 221 of the Flood Control Act of 1970, as amended (42 U.S.C. 1962d-5b), provides that this Agreement shall be enforceable in the appropriate district court of the United States. NOW, THEREFORE, the parties agree as follows: ARTICLE I  DEFINITIONS A. The term “periodic nourishment work” means the cycle of periodic nourishment for the Project covered by this Agreement consisting of [DESCRIBE THE PERIODIC NOURISHMENT TO BE PERFORMED], as generally described in the [INSERT THE TITLE OF EACH PRIOR DECISION DOCUMENT FOR THE PROJECT (WHICH EXCLUDES ANY OF THE DUNE WORK IDENTIFED IN THE APRIL 2019 EDR) ALONG WITH ITS DATE, TITLE OF THE APPROVING OFFICIAL, AND APPROVAL DATE AS SHOWN IN THE FOLLOWING PHRASE], dated __________, _____ and approved by the [TITLE OF APPROVING OFFICIAL, e.g., Chief of Engineers, Division Commander for South Atlantic Division, etc.] on [Month Day, Year] (hereinafter collectively referred to as the “Decision Document”). B. The term “functional portion thereof” means a portion of the periodic nourishment work that has been completed and that can function independently, as determined in writing by the District Commander, although the remainder of the periodic nourishment work is not yet complete. C. The term “betterment” means a difference in construction of an element of the periodic nourishment work that results from the application of standards that the Government determines exceed those that the Government would otherwise apply to construction of that element. D. The term “additional work” means items of work related to, but not cost shared as a part of, the Project that the Government will undertake on the Non-Federal Sponsor’s behalf while the Government is carrying out the periodic nourishment work, with the Non-Federal Sponsor responsible for all costs and any liabilities associated with such work. ARTICLE II  OBLIGATIONS OF THE PARTIES A. In accordance with Federal laws, regulations, and policies, the Government shall design and implement the periodic nourishment work using funds provided in BBA 2018, except that the Non-Federal Sponsor shall provide 100 percent of all costs allocated by the Government to beach improvements with exclusively private benefits and 100 percent of the improvements and other work located within the Coastal Barrier Resources System that the Government has determined are ineligible for Federal financial participation. Costs allocated to beach improvements with exclusively private benefits and improvements and other work located within the Coastal Barrier Resources System that the Government has determined are ineligible for Federal financial participation shall be paid by the Non-Federal Sponsor, in accordance with Article IV.B., in advance of the Government performing the work. In the event that there are insufficient BBA 2018 funds to complete the periodic nourishment work, completion shall be subject to cost-sharing otherwise applicable to periodic nourishment for the Project and amendment of this Agreement. In carrying out its obligations under this Agreement, the Non-Federal Sponsor shall comply with all the requirements of applicable Federal laws and implementing regulations. B. To the extent practicable and in accordance with Federal law, regulations, and policies, the Government shall afford the Non-Federal Sponsor the opportunity to review and comment on solicitations for contracts, including relevant plans and specifications, prior to the Government’s issuance of such solicitations; proposed contract modifications, including change orders; and contract claims prior to resolution thereof. Ultimately, the contents of solicitations, award of contracts, execution of contract modifications, and resolution of contract claims shall be exclusively within the control of the Government. C. The Government, as it determines necessary, shall undertake actions associated with historic preservation, including, but not limited to, the identification and treatment of historic properties as those properties are defined in the National Historic Preservation Act (NHPA) of 1966, as amended. All costs incurred by the Government for such work (including the mitigation of adverse effects other than data recovery) shall be included in construction costs and shared in accordance with the provisions of this Agreement. If historic properties are discovered during construction and the effect(s) of construction are determined to be adverse, strategies shall be developed to avoid, minimize or mitigate these adverse effects. In accordance with 54 U.S.C. 312507, up to 1 percent of the total amount authorized to be appropriated for the Project may be applied toward data recovery of historic properties and such costs shall be borne entirely by the Government. In the event that costs associated with data recovery of historic properties exceed 1 percent of the total amount authorized to be appropriated for the Project, in accordance with 54 U.S.C. 312508, the Government will seek a waiver from the 1 percent limitation under 54 U.S.C. 312507 and upon receiving the waiver, will proceed with data recovery at full Federal expense. Nothing in this Agreement shall limit or otherwise prevent the Non-Federal Sponsor from voluntarily contributing costs associated with data recovery that exceed 1 percent. D. The Government’s undertaking this cycle of periodic nourishment has no effect on the Non-Federal Sponsor’s continuing responsibility for operation, maintenance, repair, rehabilitation, and replacement of the Project. If this cycle of periodic nourishment changes those responsibilities, the Non-Federal Sponsor, at no cost to the Government, shall commence any additional responsibilities upon notification from the Government. The Government shall furnish the Non-Federal Sponsor with an updated Operation, Maintenance, Repair, Rehabilitation, and Replacement Manual (hereinafter the “OMRR&R Manual”) to include the periodic nourishment work and copies of all as-built drawings for such completed work. 1. The Non-Federal Sponsor shall conduct its operation, maintenance, repair, rehabilitation, and replacement responsibilities in a manner compatible with the authorized purpose of the Project and in accordance with applicable Federal laws and specific directions prescribed by the Government in the OMRR&R Manual. The Government and the Non-Federal Sponsor shall consult on any subsequent updates or amendments to the OMRR&R Manual. 2. The Government may enter, at reasonable times and in a reasonable manner, upon real property interests that the Non-Federal Sponsor now or hereafter owns or controls to inspect the Project, and, if necessary, to undertake any work necessary to the functioning of the Project for its authorized purpose. If the Government determines that the Non-Federal Sponsor is failing to perform its obligations under this Agreement and the Non-Federal Sponsor does not correct such failures within a reasonable time after notification by the Government, the Government, at its sole discretion, may undertake any operation, maintenance, repair, rehabilitation, or replacement of the Project. No operation, maintenance, repair, rehabilitation, or replacement by the Government shall relieve the Non-Federal Sponsor of its obligations under this Agreement or preclude the Government from pursuing any other remedy at law or equity to ensure faithful performance of this Agreement. E. At least annually and after storm events, the Non-Federal Sponsor, at no cost to the Government, shall perform surveillance of the Project to determine losses of material and provide results of such surveillance to the Government. F. For shores, other than Federal shores, protected pursuant to this Agreement using Federal funds, the Non-Federal Sponsor shall ensure the continued public use of such shores compatible with the authorized purpose of the Project. G. The Non-Federal Sponsor shall provide and maintain necessary access roads, parking areas, and other associated public use facilities, open and available to all on equal terms, for the Project. H. Not less than once each year, the Non-Federal Sponsor shall inform affected interests of the extent of risk reduction afforded by the Project. I. The Non-Federal Sponsor shall prevent obstructions or encroachments on the Project (including prescribing and enforcing regulations to prevent such obstructions or encroachments) that might reduce the level of coastal storm risk reduction the Project affords, hinder operation and maintenance of the Project, or interfere with the Project’s proper function. J. The Non-Federal Sponsor shall not use Federal program funds to meet any of its obligations under this Agreement unless the Federal agency providing the funds verifies in writing that the funds are authorized to be used for the periodic nourishment work. Federal program funds are those funds provided by a Federal agency, plus any non-Federal contribution required as a matching share therefor. K. In addition to the ongoing, regular discussions of the parties in the delivery of the periodic nourishment work, the Government and the Non-Federal Sponsor may establish a Project Coordination Team to discuss significant issues or actions. The Non-Federal Sponsor shall be solely responsible for any costs it incurs for participation in the Project Coordination Team, without reimbursement by the Government. L. The Non-Federal Sponsor may request in writing that the Government perform betterments or additional work on behalf of the Non-Federal Sponsor.  Each request shall be subject to review and written approval by the Division Commander for South Atlantic Division (hereinafter the “Division Commander”). If the Government agrees to such request, the Non-Federal, in accordance with Article IV.B., shall provide funds sufficient to cover such costs in advance of the Government performing the work. ARTICLE III - HAZARDOUS SUBSTANCES A. The Non-Federal Sponsor shall be responsible for undertaking any investigations to identify the existence and extent of any hazardous substances regulated under the Comprehensive Environmental Response, Compensation, and Liability Act (hereinafter “CERCLA”) (42 U.S.C. 96019675), that may exist in, on, or under real property interests required for the periodic nourishment work. However, for real property interests that the Government determines to be subject to the navigation servitude, only the Government shall perform such investigations unless the District Commander provides the Non-Federal Sponsor with prior specific written direction, in which case the Non-Federal Sponsor shall perform such investigations in accordance with such written direction. B. In the event it is discovered that hazardous substances regulated under CERCLA exist in, on, or under any of the required real property interests, within 15 calendar days of such discovery, the Non-Federal Sponsor and the Government, in addition to providing any other notice required by applicable law, shall provide written notice to each other. C. If hazardous substances regulated under CERCLA are found to exist in, on, or under any required real property interests, the parties shall consider any liability that might arise under CERCLA and determine whether to initiate construction, or if already initiated, whether to continue construction, suspend construction, or terminate construction. 1. Should the parties initiate or continue construction, the Non-Federal Sponsor shall be responsible, as between the Government and the Non-Federal Sponsor, for the costs of cleanup and response, including the costs of any studies and investigations necessary to determine an appropriate response to the contamination. Such costs shall be paid solely by the Non-Federal Sponsor without reimbursement by the Government.