LOCAL COOPERATION AGREEMENT & AMENDMENT #1

 

MOPR 12/31/03 Notes/Update:  Another "copy" of Amendment #1 with a completely legible Page 2 has been obtained & answers are being sought.  See Chief Leake's 9/5/97 letter & LCA Amendment #1 on the Documents page.

 

MOPR 8/31/03 Notes:  This re-type is consistent with the hardcopies of the LCA, Local Cooperation Agreement that I obtained from City VP & my atty, showing page #'s at the bottom of each & 2 different pages that are numbered as 17.  On this re-type, brackets indicate info that had been printed/written in. 

 

Page 2 of Amendment #1 is missing here because both hardcopies are missing half of the text;  after repeated inquiries, EM has told me that the city does not have a legible copy;  I wrote to the COE on 7/8/03 & they have yet to send it.  As soon as I receive it, it will be noted on What's New & added here. 


 

LOCAL COOPERATION AGREEMENT

BETWEEN

THE DEPARTMENT OF THE ARMY

AND

THE CITY OF VALLEY PARK, MISSOURI

FOR CONSTRUCTION OF THE

LOWER MERAMEC RIVER BASIN (VALLEY PARK), MISSOURI PROJECT

 

 

     THIS AGREEMENT is entered into this    [12th]    day of    [August]    , 1992, by and between the DEPARTMENT OF THE ARMY (hereinafter referred to as the "Government"), acting by and through the  Assistant Secretary of the Army (Civil Works), and the CITY OF VALLEY PARK, MISSOURI (hereinafter referred to as the "Local Sponsor"), acting by and through the Mayor.

 

     WITNESSETH THAT:

 

     WHEREAS, in Public Law 97-128, Section 2 (h) the Secretary of the Army, acting through the Chief of Engineers, was authorized and directed to undertake, at a cost not to exceed $20,000,000, such structural and nonstructural measures as he determines to be feasible, from an economic and engineering standpoint, to prevent flood damage to communities along the route of the Meramec River in Saint Louis and Jefferson Counties, Missouri, excluding the construction of any dams or reservoirs (hereinafter referred to as the "Authorized Project");

 

     WHEREAS, the Authorized Project includes as a separable element a levee and appurtenant works plus outdoor recreation features in the vicinity of Valley Park, Missouri, as generally described in the Plan Formulation Report and General Design Memorandum of the  District Engineer, St. Louis, dated March 1987 (hereinafter referred to as the "Project" defined in Article I.a. of this Agreement);

 

     WHEREAS,  the Chief of Engineers, under the supervision of the Secretary of the Army, is authorized to construct, maintain and operate public park and recreation facilities at water resources development projects under the control of the Department of the Army, under Section 4 of the Act of 22 December 1944, Public Law 534, 78th Congress, as amended;

 

     WHEREAS, Section 103 of the Water Resources Development Act of 1986, Public Law 99-662, as amended, specifies the cost-sharing requirements applicable to the Project;

 

     WHEREAS, Section 221 of the Flood Control Act of 1970, Public Law 91-611, as amended, provides that the construction of any water resources project by the Secretary of the Army shall not be commenced until each non-Federal interest has entered into a written agreement to furnish the Local Sponsor's required cooperation for the Project; 

 

      WHEREAS, Section 221 of the Flood Control Act of 1970, Public Law 91-611, as amended, provides that the construction of any water resources project by the Secretary of the Army shall not be commenced until each non-Federal interest has entered into a written agreement to furnish the Local Sponsor's required cooperation for the Project; 

 

((first page, but no #))

 

     WHEREAS, the Local Sponsor does not qualify for a reduction of the maximum non-Federal cost share pursuant to the guidelines which implement Section 103 (m) of the Water Resources Development Act of 1986, Public Law 99-662, published in 33 C.F.R., sections 241.1 - 6, entitled "Flood Control Cost-Sharing Requirements Under the Ability to Pay Provision";  and

 

     WHEREAS, the Local Sponsor has the authority and capability to furnish the cooperation hereinafter set forth and is willing to participate in Project cost-sharing and financing in accordance with the terms of this Agreement.

 

     NOW, THEREFORE, the parties agree as follows:

 

     ARTICLE I - DEFINITIONS AND GENERAL PROVISIONS

 

     For purposes of this Agreement:

 

     a.  The term "Project" shall mean the construction of the structural flood control features and the associated recreation features at Valley Park, Missouri, as further defined herein and as generally described in the Plan Formulation Report and General Design Memorandum of the District Engineer, St. Louis, dated March 1987.

 

          1.  The term "structural flood control features" shall mean the construction of an earthen levee 3.1 miles long and 15 to 20 feet high, complete with 1 or more pump stations, 4 gravity drains, 4 closure structures, interior ponding areas, relief wells, and mitigation features for the purpose of protecting much of the City of Valley Park against a flood event along the Meramec River that would have a recurrence interval of once in 100 years.

 

          2.  The term "associated recreation features" shall mean recreation lands and facilities associated with the structural flood control features, including standard play equipment, multi-use courts, play field areas, picnic tables, comfort stations, parking, hiking/biking trails, and any lands, easements, and rights-of-way required for public access, health, and safety.

 

     b.  The term "total Project costs" shall mean all costs incurred by the Local Sponsor and the Government directly related to construction of the Project.  Such costs shall include, but not necessarily be limited to:  continuing planning and engineering costs incurred after October 1, 1985;  costs of applicable engineering and design;  actual construction costs;  supervision and administration costs;  costs of contract dispute settlements or awards;  and the value of lands, easements, rights-of-way, utility and facility alterations and relocations, and suitable borrow areas and excavated material disposal areas

 

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provided for the structural flood control features by the Local Sponsor or required for access, parking, public health, and safety in connection with the associated recreation features, but shall not include any costs for betterments, operation, maintenance, repair, replacement, or rehabilitation or associated clean-up and response costs referred to in Article XIX.

 

          1.  The term "total cost of the structural flood control features" shall mean all total Project costs directly related to construction of the strucutral flood control features described in Article I.a.1. of this Agreement.  Such costs shall be determined by the Government using procedures customarily employed by the Government to allocate costs among project purposes.

 

          2.  The term "total cost of associated recreation features" shall mean all total Project costs directly related to construction of the associated recreation features described in Article I.a.2. of this Agreement.  Such costs shall be determined by the Government using procedures customarily employed by the Government to allocate costs among project purposes.

 

     c.  The term "period of construction" shall mean the time from the advertisement of the first construction contract to the time of acceptance of the Project by the Contracting Officer. 

 

     d.  The term "Contracting Officer" shall mean the U. S. Army Engineer for the St. Louis District, or his designee.

 

     e.  The term "highway" shall mean any highway, thoroughfare, roadway, street, or other public road or way.

 

     f.  The term "relocations" shall mean alterations, modifications, lowering or raising in place, and/or new construction related to, but not limited to, existing:  railroads, highways, bridges, railroad bridges and approaches thereto, pipelines, public utilities (such as municipal water and sanitary sewer lines, telephone lines, and storm drains), aerial utilities, cemeteries, and other facilities, structures, and improvements determined by the Government to be necessary for the construction, operation and maintenance of the Project.

 

     g.  The term "fiscal year" shall mean one fiscal year of the United States Government, unless otherwise specifically indicated.  The Government fiscal year begins on October 1 and ends on September 30.

 

     h.  The term "involuntary acquisition" shall mean the acquisition of lands, easements, and rights-of-way by eminent domain. 

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     i.  The term "functional portion of the Project" shall mean a completed portion of the Project as determined by the Contracting Officer to be suitable for tender to the Local Sponsor to operate, maintain, repair, replace, or rehabilitate in advance of completion of construction of the entire Project. 

 

     ARTICLE II - OBLIGATIONS OF THE PARTIES 

 

     a.  The Government, subject to and using funds provided by the Local Sponsor and appropriated by the Congress of the United States, shall expeditiously construct the Project (including relocations of railroad bridges and approaches thereto), applying those procedures usually followed or applied in Federal projects, pursuant to Federal laws, regulations, and policies.  The Local Sponsor shall be afforded the opportunity to review and comment on all contracts, including relevant plans and specifications, prior to the issuance of invitations for bids.  The Contracting Officer will notify the Local Sponsor where practicable of all contract modifications and change orders relative to the Project prior to issuance to the contractor of a Notice to Proceed.  In those cases where notification of the Local Sponsor of required contract modifications or change orders is not possible prior to the issuance of the Notice to Proceed, such notification will be provided at the earliest date possible.  The Government will consider the comments of the Local Sponsor, but award of the contracts, modifications or change orders, and performance of the work on the Project (whether the work is performed under contract or by Government personnel), shall be exclusively within the control of the Government.

 

     b.  When the Government determines that the Project or a functional portion of the Project is complete, the Government shall turn the completed Project or functional portion over to the Local Sponsor, which shall accept the Project or functional portion and be solely responsible for operating, repairing, maintaining, replacing, and rehabilitating the Project or functional portion in accordance with Article VIII hereof.

 

     c.  As further specified in Article VI hereof, the Local Sponsor shall provide, during the period of construction, a cash contribution of 5 percent of the total cost of the structural flood control features.

 

     d.  As further specified in Article III hereof, the Local Sponsor shall provide all lands, easements, rights-of-way, suitable borrow areas, and excavated material disposal areas and perform all relocations (excluding railroad bridges and approaches thereto) determined by the Government to be necessary for construction of the Project.  At its sole discretion, the Government may perform relocations in cases where it appears that the Local Sponsor's contributions will exceed the maximum Local Sponsor cost share set out in Article VI.f.

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     e.  If the value of the contributions provided under paragraphs c. and d. of this Article for the Project and allocated to the total cost of the structural flood control features represents less than 25 percent of the total cost of the structural flood control features, the Local Sponsor shall provide, during the period of construction of the structural flood control features, an additional cash contribution in the amount necessary to make the Local Sponsor's total contribution toward the total cost of the structural flood control features equal to 25 percent of the total cost of the structural flood control features.

 

     f.  As further specified in Article VI hereof, the Local Sponsor shall provide, during the period of construction, a cash contribution of 50 percent of the total cost of the associated recreation features.  Such contribution shall be reduced by the value of the contribution provided for the Project under paragraph d. of this Article and allocated to the total cost of the associated recreation features.

 

     g.  No Federal funds may be used to meet the Local Sponsor's share of total Project costs under this Agreement unless the expenditure of such funds is expressly authorized by statute as verified in writing by the granting Federal agency.

 

     h.  The Local Sponsor agrees to participate in and comply with applicable Federal flood plain management and flood insurance programs.

 

     i.  The Local Sponsor shall adopt and enforce appropriate measures to control development of floodway fringe areas to prevent obstruction or encroachment of flood plain storage areas.

 

     j.  The Local Sponsor shall at least annually publicize information to inform affected interests that the Project will not provide complete protection against flooding, and shall maintain an up-to-date emergency evacuation plan.

 

     ARTICLE III - LANDS, FACILITIES, AND PUBLIC LAW 91-646 RELOCATION ASSISTANCE

 

     a.  The Local Sponsor shall furnish to the Government all lands, easements, and rights-of-way, including suitable borrow and excavated material disposal areas, as may be determined by the Government to be necessary for the construction, operation, and maintenance of the Project, and shall furnish to the Government evidence supporting the Local Sponsor's legal authority to grant rights-of-entry to such lands.  The necessary lands, easements, and rights-of-way may be provided incrementally, but all lands, easements, and rights-of-way determined by the Government to be necessary for work to be

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performed under a construction contract must be furnished prior to the advertisement of the construction contract.

 

     b.  The Local Sponsor shall provide or pay to the Government the cost of providing all retaining dikes, wasteweirs, bulkheads, and embankments, including all monitoring features and stilling basins, that may be required at any excavated material disposal areas necessary for construction of the Project. 

 

     c.  Upon notification from the Government the Local Sponsor shall accomplish or arrange for accomplishment at no cost to the Government all relocations (excluding railroad bridges and approaches thereto) determined by the Government to be necessary for construction of the Project.

 

     d.  The Local 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 CFR Part 24, in acquiring lands, easements, and rights-of-way for construction and subsequent operation and maintenance of the Project, and inform all affected persons of applicable benefits, policies, and procedures in connection with said Act.

 

     ARTICLE IV - VALUE OF LANDS AND FACILITIES

 

     a.  The value of the lands, easements, and rights-of-way, including suitable borrow areas and excavated material disposal areas, to be included in total Project costs and credited towards the Local Sponsor's share of total Project costs will be determined in accordance with the following procedures:

 

          l.  If the lands, easements, or rights-of-way are owned by the Local Sponsor as of the date the first construction contract for the Project is awarded, the credit shall be the fair market value of the interest at the time of such award.  The fair market value shall be determined by an appraisal, to be obtained by the Local Sponsor, which has been prepared by a qualified appraiser who is acceptable to both the Local Sponsor and the Government.  The appraisal shall be reviewed and approved by the Government.

 

          2.  If the lands, easements, or rights-of-way are to be acquired by the Local Sponsor after the date of award of the first construction contract for the Project, the credit shall be the fair market value of the interest at the time such interest is acquired.  The fair market value shall be determined as specified in Article IV.a.1. of the Agreement.  If the Local Sponsor pays an amount in excess of the appraised fair market value, the Local Sponsor may be entitled to a credit for the

 

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excess if the Local Sponsor has secured prior written approval from the Government of the Local Sponsor's offer to purchase such interest.

 

          3.  If the Local Sponsor acquires more lands, easements, or rights-of-way than are necessary for Project purposes, as determined by the Government, then only the value of such portions of those acquisitions as are necessary for Project purposes shall be included in total Project costs and credited towards the Local Sponsor's share.

 

          4.  Credit for lands, easements, and rights-of-way in the case of involuntary acquisitions which occur within a one-year period preceding the date this Agreement is signed or which occur after the date this Agreement is signed will be based on court awards, or on stipulated settlements that have received prior written approval from the Government.

 

          5.  Credit for lands, easements, or rights-of-way accquired by the Local Sponsor within a five-year period preceding the date this Agreement is signed, or any time after the date this Agreement is signed, will also include the reasonable incidental costs of acquiring the interest, e.g., closing and title costs, appraisal costs, survey costs, attorney's fees, plat maps, and mapping costs, as well as the actual amounts expended for any Public Law 91-646 relocation assistance benefits provided in accordance with the obligations under this Agreement.

 

     b.  The costs of relocations which will be included in total Project costs and credited towards the Local Sponsor's share of total Project costs shall be that portion of the actual costs as set forth below, and approved by the Government:

 

          1.  Highways and Highway Bridges:  Only that portion of the cost as would be necessary to construct substitute bridges and highways to the design standard that the State of Missouri would use in constructing a new bridge or highway under similar conditions of geography and traffic loads. 

 

          2.  Utilities and Facilities (including railroads):  Actual relocation costs, less depreciation, less salvage value, plus the cost of removal, less the cost of betterments.  With respect to betterments, new materials shall not be used in any alteration or relocation if materials of value and usability equal to those in the existing facility are available or can be obtained as salvage from the existing facility or otherwise, unless the provision of new material is more economical.  If, despite the availability of used material, new material is used, where the use of such new material represents an additional cost, such cost will not be included in total Project costs.

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     ARTICLE V - CONSTRUCTION PHASING AND MANAGEMENT

 

     a.  To provide for consistent and effective communication between the Local Sponsor and the Government during the period of construction, the Local Sponsor and the Government shall appoint representatives to coordinate on scheduling, plans, specifications, modifications, contract costs, and other matters relating to construction of the Project.  The Local Sponsor will be informed of any changes in cost estimates.

 

     b.  The representatives appointed above shall meet as necessary during the period of construction and shall make such recommendations as they deem warranted to the Contracting Officer.

 

     c.  The Contracting Officer shall consider the recommendations of the representatives in all matters relating to construction of the Project, but the Contracting Officer, having ultimate responsibility for construction of the Project, has complete discretion to accept, reject, or modify the recommendations.

 

     ARTICLE VI - METHOD OF PAYMENT

 

     a.  The Local Sponsor shall provide, during the period of construction, the cash payments required to meet the Local Sponsor's obligations under Article II of this Agreement for construction of the structural flood control features and the associated recreation features.  Total Project costs are currently estimated to be $14,880,000.  In order to meet the Local Sponsor's share, the Local Sponsor must provide a total cash contribution currently estimated to be $875,000.  The dollar amounts set forth in this Article are based upon the Government's best estimates which will reflect projection of costs, price level changes, and anticipated inflation.  Such cost estimates are subject to adjustments based upon cost actually incurred and are not to be construed as the total financial responsibilities of the Government and the Local Sponsor.

 

     b.  The Local Sponsor shall provide the Local Sponsor's required cash contributions for the structural flood control features and the associated recreation features in accordance with the following provisions:

 

          1.  For purposes of budget planning, the Government shall notify the Local Sponsor by July 1st of each year of the estimated funds that will be required from the Local  Sponsor to meet the Local Sponsor's shares of the total cost of the structural flood control features and the total cost of the associated recreation features for the upcoming fiscal year.

 

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         2.  No later than 60 calendar days prior to the award of the first construction contract, the Government shall notify the Local Sponsor of the Local Sponsor's shares of the total cost of the structural flood control features and the total cost of the associated recreation features, including the Local Sponsor's share of costs attributable to the Project incurred prior to the initiation of construction, for the first fiscal year of construction.  No later than 30 calendar days thereafter, the Local Sponsor shall verify to the satisfaction of the Government that the Local Sponsor has deposited the requisite amount in an escrow account acceptable to the Government, with interest accruing to the Local Sponsor.

 

          3.  For the second and subsequent fiscal years of Project construction, the Government shall, no later than 60 calendar days prior to the beginning of the fiscal year, notify the Local Sponsor of the Local Sponsor's shares of the total cost of the structural flood control features and the total cost of the associated recreation features for that fiscal year.  No later than 30 calendar days prior to the beginning of the fiscal year, the Local Sponsor shall make the necessary funds available to the Government through the funding mechanism specified in Article VI.b.2. of this Agreement.  As construction of the Project proceeds, the Government shall adjust the amounts required to be provided under this paragraph to reflect actual costs.

 

          4.  If at any time during the period of construction the Government determines that additional funds will be needed from the Local Sponsor to meet the Local Sponsor's required share of the toal cost of the structural flood control features or of the total cost of the associated recreation features, the Government shall so notify the Local Sponsor, and the Local Sponsor, no later than 45 calendar days from receipt of notice, shall make the necessary funds available through the funding mechanism specified in Article VI.b.2 of this Agreement.

 

     c.  The Government will draw on the escrow account provided by the Local Sponsor such sums as the Government deems necessary to cover contractual and in-house fiscal obligations attributable to the Project as they are incurred, as well as costs incurred by the Government prior to the initiation of construction.

 

     d.  Upon completion of the Project and resolution of all relevant contract claims and appeals, the Government shall compute the total Project costs and tender to the Local Sponsor a final accounting of the Local Sponsor's share of total Project costs.  In the event the total contribution by the Local Sponsor is less than the Local Sponsor's minimum required share for the total cost of the structural flood control features and the total cost of the associated recreation features, as specified in

 

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Article II of this Agreement, the Local Sponsor shall, no later than 90 calendar days after receipt of written notice, make a cash payment to the Government of whatever sum is required to meet the Local Sponsor's minimum required share.

 

     e.  In the event the total contribution by the Local Sponsor is greater than the Local Sponsor's required share of the total cost of the structural flood control features and the total cost of the associated recreation features, as specified in Article II of this Agreement, the Government shall, no later than 90 calendar days after the final accounting is complete, subject to the availability of funds, return said excess to the Local Sponsor;  however, the Local Sponsor shall not be entitled to any refund of the 5 percent cash contribution required pursuant to Article II.c. of this Agreement.

 

     ARTICLE VII - DISPUTES

 

          Before any party to this Agreement may bring suit in any court concerning an issue relating to this Agreement, such party must first seek in good faith to resolve the issue through negotiation or other forms of nonbinding alternative dispute resolution mutually acceptable to the parties.

 

     ARTICLE VIII - OPERATION, MAINTENANCE, REPAIR, REPLACEMENT, AND REHABILITATION

 

     a.  After the Government has turned the completed Project, or functional portion of the Project, over to the Local Sponsor, the Local Sponsor shall operate, maintain, repair, replace, and rehabilitate the completed Project, or functional portion of the Project, in accordance with regulations or directions prescribed by the Government.

 

     b.  The Local Sponsor hereby gives the Government a right to enter, at reasonable times and in a reasonable manner, upon land which the Local Sponsor owns or controls for access to the Project for the purpose of inspection, and, if necessary, for the purpose of completing, operating, maintaining, repairing, replacing, or rehabilitating the Project.  If an inspection shows that the Local Sponsor for any reason is failing to fulfill the Local Sponsor's obligations under this Agreement without receiving prior written approval from the Government, the Government will send a written notice to the Local Sponsor.  If the Local Sponsor persists in such failure for 30 calendar days after receipt of the notice, then the Government shall have a right to enter, at reasonable times and in a reasonable manner, upon lands the Local Sponsor owns or controls for access to the Project for the purpose of completing, operating, maintaining, repairing, replacing, or rehabilitating the Project.  No completion, operation, maintenance, repair, replacement, or rehabilitation by the Government shall operate to relieve the

 

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Local Sponsor of responsibility to meet the Local Sponsor's obligations as set forth in this Agreement, or to preclude the Government from pursuing any other remedy at law or equity to assure faithful performance pursuant to this Agreement.

 

     ARTICLE IX - RELEASE OF CLAIMS

 

     The Local Sponsor shall hold and save the Government free from all damages arising from the construction, operation, maintenance, repair, replacement and rehabilitation of the Project, except for damages due to the fault or negligence of the Government or its contractors.

 

     ARTICLE X - MAINTENANCE OF RECORDS

 

     The Government and the Local Sponsor shall keep books, records, documents, and other evidence pertaining to costs and expenses incurred pursuant to this Agreement to the extent and in such detail as will properly reflect total Project costs.  The Government and the Local Sponsor shall maintain such books, records, documents, and other evidence for a minimum of three years after completion of construction of the Project and resolution of all relevant claims arising therefrom, and shall make available at their offices at reasonable times, such books, records, documents, and other evidence for inspection and audit by authorized representatives of the parties to this Agreement. 

 

     ARTICLE XI - GOVERNMENT AUDIT

 

     The Government shall conduct an audit when appropriate of the Local Sponsor's records for the Project to ascertain the allowability, reasonableness, and allocability of the Local Sponsor's costs for inclusion as credit against the Local Sponsor share of total Project costs.

 

     ARTICLE XII - FEDERAL AND STATE LAWS

 

     In acting under the Local Sponsor's rights and obligations hereunder, the Local Sponsor agrees to comply with all applicable Federal and state laws and regulations, including section 601 of Title VI of the  Civil Rights Act of 1964 (Public Law 88-352) and Department of Defense Directive 5500.II issued pursuant thereto and published in Part 300 of Title 32, Code of Federal Regulations, as well as Army Regulation 600-7, entitled "Nondiscrimination of the Basis of Handicap in Programs and Activities Assisted or Conducted by the Department of the Army."

 

     ARTICLE XIII - RELATIONSHIP OF PARTIES

 

     The parties to this Agreement act in an independent capacity in the performance of their respective functions under this

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Agreement, and neither party is to be considered the officer, agent, or employee of the other.

 

     ARTICLE XIV - OFFICIALS NOT TO BENFIT

 

     No member of or delegate to the Congress, or resident commissioner, shall be admitted to any share or part of this Agreement, or to any benefit that may arise therefrom. 

 

     ARTICLE XV - COVENANT AGAINST CONTINGENT FEES

 

     The Local Sponsor warrants that no person or selling agency has been employed or retained to solicit or secure this Agreement upon agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Local Sponsor for the purpose of securing business.  For breach or violation of this warranty, the Government shall have the right to annul this Agreement without liability, or, in its diescretion, to add to the Agreement or consideration, or otherwise recover, the full amount of such commission, percentage, brokerage, or contingent fee.

 

     ARTICLE XVI - TERMINATION OR SUSPENSION

 

     a.  If at any time the Local Sponsor fails to make the payments required under this Agreement, the Assistant Secretary of the Army (Civil Works) shall terminate or suspend work on the Project until the Local Sponsor is no longer in arrears, unless the Assistant Secretary of the Army (Civil Works) determines that continuation of work on the Project is in the interest of the United States or is necessary in order to satisfy agreements with any other non-Federal interests in connection with the Project.  Any delinquent payment shall be charged interest at a rate, to be determined by the Secretary of the Treasury, equal to 150 percentum of the average bond equivalent rate of the 13-week Treasury bills auctioned immediately prior to the date on which such payment became delinquent, or auctioned immediately prior to the beginning of each additional 3-month period if the period of delinquency exceeds 3 months.

 

     b.  If the Government fails to receive annual funds for the Project in amounts sufficient to meet Project expenditures for the then-current or upcoming fiscal year, the Government shall so notify the Local Sponsor.  After 60 calendar days either party may elect without penalty to terminate this Agreement pursuant to this Article or to defer future performance hereunder;  however, deferral of future performance under this Agreement shall not affect existing obligations or relieve the parties of liability for any obligation previously incurred.  In the event that either party elects to terminate this Agreement pursuant to this Article, both parties shall conclude their activities relating to

 

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the Project and proceed to a final accounting in accordance with Article VI. of this Agreement.  In the event that either party elects to defer future performance under this Agreement pursuant to this Article, such deferral shall remain in effect until such time as the Government receives sufficient funds or until either party elects to terminate this Agreement.

 

     ARTICLE XVII - NOTICES

 

     a.  All notices, requests, demands, and other communications required or permitted to be given under this Agreement shall be deemed to have been duly given if in writing and delivered personally, given by prepaid telegram, or mailed by first-class (postage-prepaid), registered, or certified mail, as follows:

               If to the Local Sponsor:

 

               Mayor

               City of Valley Park

               300 Benton Street [sic]

               Valley Park, Missouri  63088

 

               If to the Government:

 

               District Engineer

               U.S. Army Engineer District, St. Louis

               1222 Spruce Street

               St. Louis, Missouri  63103

 

     b.  A party may change the address to which such communications are to be directed by giving written notice to the other party in the manner provided in this Article.

 

     c.  Any notice, request, demand, or other communication made pursuant to this Article shall be deemed to have been received by the addressee at such time as it is personally delivered or seven calendar days after it is mailed, as the case may be.

 

     ARTICLE XVIII - CONFIDENTIALITY

 

     To the extent permitted by the laws governing each party, the parties agree to maintain the confidentiality of exchanged information when requested to do so by the providing party.

 

     ARTICLE XIX - HAZARDOUS SUBSTANCES

 

     a.  After execution of this Agreement and upon direction by the Contracting Officer, the Local Sponsor shall perform, or cause to be performed, such environmental investigations as are determined necessary by the Government or the Local Sponsor to identify the existence and extent of any hazardous substances

 

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regulated under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 USC 9601-9675, on lands necessary for Project construction, operation, and maintenance.  All actual costs incurred by the Local Sponsor which are properly allowable and allocable to performance of any such environmental investigations shall be included in total Project costs and cost shared as a construction cost in accordance with Section 103 of Public Law 99-662.

 

     b.  In the event it is discovered through an environmental investigation or other means that any lands, easements, rights-of-way, or disposal areas to be acquired or provided for the Project contain any hazardous substances regulated under CERCLA, the Local Sponsor and the Government shall provide prompt notice to each other, and the Local Sponsor shall not proceed with the acquisition of lands, easements, rights-of-way, or disposal areas until mutually agreed.

 

     c.  The Government and the Local Sponsor shall determine whether to initiate construction of the Project, or if already in construction, to continue with construction of the Project, or to terminate construction of the Project for the convenience of the Government in any case where hazardous substances regulated under CERCLA are found to exist on any lands necessary for the Project.  Should the Government and the Local Sponsor determine to proceed or continue with construction after considering any liability that may arise under CERCLA, the Local Sponsor shall be responsible, as between the Government and the Local Sponsor, for any and all necessary clean-up and response costs to include the costs of any studies and investigations necessary to determine an appropriate response to the contamination.  Such costs shall not be considered a part of total Project costs as defined in this Agreement.  In the event the Local Sponsor fails to provide any funds necessary to pay for clean-up and response costs or to otherwise discharge the Local Sponsor's responsibilities under this paragraph upon direction by the Government, the Government may either terminate or suspend work on the Project or proceed with further work as provided in Article XVI, Termination or Suspension, of this Agreement. 

 

     d.  The Local Sponsor and the Government shall consult with each other under Article V, Construction Phasing and Management, of this Agreement to assure that responsible parties bear any necessary clean-up and response costs as defined in CERCLA.  Any decision made pursuant to paragraph c. of this Article shall not relieve any party from any liability that may arise under CERCLA.

 

     e.  The Local Sponsor shall operate, maintain, repair, replace, and rehabilitate the Project in a manner so that liability will not arise under CERCLA.

 

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     IN WITNESS WHEREOF, the parties hereto have executed this Agreement, which shall become effective upon the date it is signed by the Assistant Secretary of the Army (Civil Works).

 

 THE DEPARTMENT OF THE ARMY

THE LOCAL SPONSOR

BY:                     [so signed]            
BY:       [so signed]      
Nancy P. Dorn
Fred L. Palmer, Jr.
         Assistant Secretary of the Army
Mayor
(Civil Works)
City of Valley Park, Missouri
DATE:   [12 Aug 92]           
DATE: [August 6, 1992] 

 

15

 

CERTIFICATION OF AUTHORITY

 

     I,     [ERIC M. MARTIN]      , do hereby certify that I am the principal legal officer of the City of Valley Park, Missouri, that the City of Valley Park, Missouri is a legally constituted public body with full authority and legal capability to perform the terms of the Agreement between the Department of the Army and the City of Valley Park, Missouri in connection with the Project and to pay damages, if necessary, in the event of failure to perform, in accordance with Section 221 of Public Law 91-611, and that the persons who have executed this Agreement on behalf of the City of Valley Park, Missouri, have acted within their statutory authority.

 

     IN WITNESS WHEREOF, I have made and executed this certification, this   [6th]   day of  [August], 1992.

 

                                                                                [signed Eric M. Martin]   

                                                                                Attorney for the City of

                                                                                  Valley Park, Missouri

 

16

 

CERTIFICATION REGARDING LOBBYING

 

      The undersigned certifies, to the best of his or her knowledge and belief that:

 

(1)  No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.

 

(2)  If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions.

 

(3)  The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontractors, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. 

 

This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into.  Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code.  Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.

 

                                                  [so signed]                     

                                              Fred L. Palmer, Jr., Mayor

                                             City of Valley Park, Missouri

 

17

 

CERTIFICATION OF LEGAL REVIEW

 

      The draft Local Cooperation Agreement for the Lower Meramec River Basin (Valley Park), Missouri Project has been fully reviewed by the Office of Counsel, USAED, St. Louis.

 

                                       [sig seems to read William P. Levins]       

                                           [Assistant]

                                         District Counsel

 

17

 

 

AMENDMENT NUMBER 1

OF THE

LOCAL COOPERATION AGREEMENT

BETWEEN

THE DEPARTMENT OF THE ARMY

AND THE

CITY OF VALLEY PARK, MISSOURI

FOR CONSTRUCTION OF THE

LOWER MERAMEC RIVER BASIN (VALLEY PARK), MISSOURI PROJECT

 

 

     THIS AMENDMENT is entered into this   [23rd]   day of   [September]   , 1997 by and between the DEPARTMENT OF THE ARMY (hereinafter the "Government"), represented by the District Engineer, U.S. Army Engineer District, St. Louis, and the CITY OF VALLEY PARK, MISSOURI (hereinafer the "Local Sponsor"), represented by the Mayor. 

 

     WITNESSETH, THAT:

 

     WHEREAS, construction of the Lower Meramec River Basin (Valley Park), Missouri Project at the City of Valley Park, Missouri was authorized by Public Law 97-128, Section 2 (h);

 

     WHEREAS, on August 12, 1992 the Government and the Local Sponsor entered into a Local Cooperation Agreement (hereinafter the "Agreement") for the construction of the Lower Meramec River Basin (Valley Park), Missouri Project;

 

     WHEREAS, the Government and the Local Sponsor have identified a desire to update the Agreement to incorporate some of the provisions contained in the latest Model Project Cooperation Agreement for Single-Purpose Structural Flood Control Projects and Separable Elements, particularly the provisions which relate to the Government accomplishing betterments and performing relocations on behalf of the Local Sponsor, including the provisions for handling all aspects of the funding for such betterments and relocations.

 

     NOW, THEREFORE, the Government and the Local Sponsor agree to amend the Agreement, as follows:

 

1.   ARTICLE I - DEFINITIONS AND GENERAL PROVISIONS

 

     a.  In paragraph c., last line, and in paragraph i., third line, replace the words "Contracting Officer" with the words "District Engineer".

 

1

 

 

((This is the illegible page referred to in the above MOPR Notes.))

 

((page # does not show))

 

 

the Government and the Local Sponsor, for the costs of cleanup and response in accordance with Article XV.f. of this Agreement."

 

     d.  Add a new paragraph m. as follows:

 

"m.  The Government shall perform a final accounting in accordance with Article VI.g. of this Agreement to determine the contributions provided by the Local Sponsor in accordance with paragraphs k. and l. of this Article and Articles X and XIX.a. of this Agreement and to determine whether the Local Sponsor has met its obligations under paragraphs k. and l. of this Article."

 

3.  ARTICLE V - CONSTRUCTION PHASING AND MANAGEMENT

 

     In paragraph b., third line, and in paragraph c., first and third lines, replace the words "Contracting Officer" with the words "District Engineer".

 

4.  ARTICLE VI - METHOD OF PAYMENT

 

     a.   Delete paragraph d. and replace with the following: 

 

"d.  In advance of the Government incurring any financial obligation associated with additional work under Article II.k. or II.1. of this Agreement, the Local Sponsor shall verify to the satisfaction of the Government that the Local Sponsor either has deposited the full amount of the funds required to pay for such additional work in an escrow or other account acceptable to the Government with interest accruing to the Local Sponsor, or by presenting to the Government an irrevocable letter of credit acceptable to the Government in an amount sufficient to meet the Local Sponsor's obligation.  The Government shall draw from the funds provided by the Local Sponsor such sums as the Government deems necessary to cover the Government's financial obligations for such additional work as they are incurred.  In the event the Government determines that the Local Sponsor must provide additional funds to meet its cash contribution, the Government shall notify the Local Sponsor in writing of the additional funds required.  Within 30 calendar days thereafter, the Local Sponsor shall provide the Government with a check for the full amount of the additional required funds."

 

     b.  Delete paragraph e. and replace with the following:

 

"e.  Upon completion of the Project or termination of this Agreement, and upon resolution of all relevant claims and appeals, the Government shall conduct a final accounting and furnish the Local Sponsor with the results of the final

 

3

 

accounting. The final accounting shall determine total project costs, each party's contribution provided thereto, and each party's required share thereof.  The final accounting also shall determine costs due to betterments and the Local Sponsor's cash contribution provided pursuant to Article II.k. of this Agreement.

 

          1.  In the event the final accounting shows that the total contribution provided by the Local Sponsor is less than its required share of total project costs plus costs due to any betterments provided in accordance with Article II.k. of this Agreement, the Local Sponsor shall, no later than 90 calendar days after receipt of written notice, make a cash payment to the Government of whatever sum is required to meet the Local Sponsor's required share of total project costs plus costs due to any betterments provided in accordance with Article II.k. of this Agreement.

 

          2.  In the event the final accounting shows that the total contribution provided by the Local Sponsor exceeds its required share of total project costs plus costs due to any betterments provided in accordance with Article II.k. of this Agreement, the Government shall, subject to the availability of funds, refund the excess to the Local Sponsor no later than 90 calendar days after the final accounting is complete;  however, the Local Sponsor shall not be entitled to any refund of the 5 percent cash contribution required pursuant to Article II.c. of this Agreement.  In the event existing funds are not available to refund the excess to the Local Sponsor, the Government shall seek such appropriations as are necessary to make the refund."

 

5.  ARTICLE XIX - HAZARDOUS SUBSTANCES

 

     Delete all of the text within this Article and replace with the following:

 

     "A.  After execution of this Agreement and upon direction by the District Engineer, the Local Sponsor shall perform, or cause to be performed, any investigations for hazardous substances that the Government or the Local Sponsor determines to be necessary 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.  Sections 9601-9675, that may exist in, on, or under lands, easements, and rights-of-way that the Government determines, pursuant to Article III of this Agreement, to be required for the construction, operation, and maintenance of the Project.  However, for lands that the Government determines to be subject to the navigation servitude, only the Government shall perform

4

 

such investigations unless the District Engineer provides the Local Sponsor with prior specific written direction, in which case the Local Sponsor shall perform such investigations in accordance with such written direction.  All actual costs incurred by the Local Sponsor for such investigations for hazardous substances shall be included in total project costs and cost shared in accordance with the provisions of this Agreement, subject to an audit in accordance with Article X of this Agreement to determine reasonableness, allocability, and allowability of costs.

 

     B.  In the event it is discovered through any investigation for hazardous substances or other means that hazardous subtances regulated under CERCLA exist in, on, or under any lands, easements, or rights-of-way that the Government determines, pursuant to Article III of this Agreement, to be required for the construction, operation, and maintenance of the Project, the Local Sponsor and the Government shall provide prompt written notice to each other, and the Local Sponsor shall not proceed with the acquisition of the real property interests until both parties agree that the Local Sponsor should proceed.   

 

     C.  The Government and the Local Sponsor shall determine whether to initiate construction of the Project, or, if already in construction, whether to continue with work on the Project, suspend future performance under this Agreement, or terminate this Agreement for the convenience of the Government, in any case where hazardous substances regulated under CERCLA are found to exist in, on, or under any lands, easements, or rights-of-way that the Government determines, pursuant to Article III of this Agreement, to be required for the construction, operation and maintenance of the Project.  Should the Government and the Local Sponsor determine to initiate or continue with construction after considering any liability that may arise under CERCLA, the Local Sponsor shall be responsible, as between the Government and the Local Sponsor, for the costs of clean-up and response, to include the costs of any studies and investigations necessary to determine an appropriate response to the contamination.  Such costs shall not be considered a part of total project costs.  In the event the Local Sponsor fails to provide any funds necessary to pay for clean up and response costs or to otherwise discharge the Local Sponsor's responsibilities under this paragraph upon direction by the Government, the Government may, in its sole discretion, either terminate this Agreement for the convenience of the Government, suspend future performance under this Agreement, or continue work on the Project.

 

     D.  The Local Sponsor and the Government shall consult with each other in an effort to ensure that responsible parties bear

5

 

any necessary clean up and response costs as defined in CERCLA.  Any decision made pursuant to paragraph C. of this Article shall not relieve any third party from any liability that may arise under CERCLA.

 

     E.  As between the Government and the Local Sponsor, the Local Sponsor shall be considered the operator of the Project for purposes of CERCLA liability.  To the maximum extent practicable, the Local Sponsor shall operater, maintain, repair, replace, and rehabilitate the Project in  a manner that will not cause liability to arise under CERCLA."

 

6.  NEW ARTICLE

 

     Add a new Article as follows:

 

"ARTICLE XX - HISTORIC PRESERVATION

 

     A.  The costs of identification, survey and evaluation of historic properties shall be included in total project costs and cost shared in accordance with the provisions of this Agreement.

 

     B.  As specified in Section 7 (a) of Public Law 93-291 (16 U.S.C. Section 469c(a)), the costs of mitigation and data recovery activities associated with historic preservation shall be borne entirely by the Government and shall not be included in total project costs, up to the statutory limit of one percent of the total amount authorized to be appropriated for the Project.

 

     C.  The Government shall not incurr costs for mitigation and data recovery that exceed the statutory one percent limit specified in paragraph B. of this Article unless and until the Assistant Secretary of the Army (Civil Works) has waived that limit in accordance with Section 208 (3) of Public Law 96-515 (16 U.S.C. Section 469c-2 (3)).  Any costs of mitigation and data recovery that exceed the one percent limit shall not be included in total project costs but shall be cost shared between the Local Sponsor and the Government consistent with the minimum non-Federal cost sharing requirements for the underlying flood control purpose, as follows:  25 percent borne by the Local Sponsor, and 75 percent borne by the Government."

 

7.  All other provisions of the Agreement remain unchanged.

 

6

 

     IN WITNESS WHEREOF, the parties hereto have executed this Amendment, which shall become effective upon the date it is signed by the District Engineer.

 

 

THE DEPARTMENT OF THE ARMY 
THE CITY OF VALLEY PARK,
MISSOURI
BY:       [so signed]           
BY:         [so signed]           
Thomas J. Hodgini
Joseph Harrington
Colonel, U.S. Army
Mayor                  
District Engineer    
City of Valley Park, 
DATE:      [23 Sep 97]         
DATE:       [9/23/97]           

 

7

 

CERTIFICATION OF AUTHORITY

 

     I,        [ERIC MARTIN]       , do hereby certify that I am the principal legal officer of the City of Valley Park, Missouri, that the City of Valley Park, Missouri is a legally constituted public body with full authority and legal capability to perform the terms of the Agreement between the Department of the Army and the City of Valley Park, Missouri in connection with the Project and to pay damages, if necessary, in the event of failure to perform, in accordance with Section 221 of Public Law 91-611, and that the persons who have executed this Agreement on behalf of the City of Valley Park, Missouri, have acted within their statutory authority.

 

     IN WITNESS WHEREOF, I have made and executed this certification, this   [23rd]   day of   [September]  ,  1997.

 

           [signed with title:  Eric M. Martin, Special Counsel]

                                                    Attorney for the City of

                                                    Valley Park, Missouri

 

8

 

CERTIFICATION REGARDING LOBBYING

 

     The undersigned certifies, to the best of his or her knowledge and belief that:

 

(1)  No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.

 

(2)  If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions.

 

(3)  The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontractors, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. 

 

This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into.  Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code.  Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.

 

      [signed with middle initial W]      

      JOSEPH HARRINGTON, Mayor

 City of Valley Park, Missouri

                                                                             

9

 

CERTIFICATE OF LEGAL REVIEW

 

This amendment, Amendment Number 1 of the Local Cooperation Agreement between the Department of the Army and the City of Valley Park, Missouri, dated August 12, 1992, which pertains to the Lower Meramec River Basin (Valley Park), Missouri Project, has been duly reviewed by the Office of Counsel, USAED, St. Louis and is legally sufficient.

 

           [so signed]              

Mark A. Wunsch

Assistant District Counsel

 

     [23 Sept. 1997]             

Date

 

(last page, but no #)