Chief Leake's 9/5/97 Letter &  LCA Amendment #1

 

MOPR 12/31/03 Notes:  Chief Leake's 9/5/97 letter & its enclosure, LCA Amendment #1, were recently copied from the 10/6/97 BOA Mtg Packet.  Amendment #1, Page 1, parag 1 states, "...Assistant Secretary of the Army (Civil Works)...";  the same title is reflected on P6 with the name H. Martin Lancaster;  no signatures or dates have been printed/written in on any page;  compared to Amendment #1 posted 8/31/03 with the LCA, "Leake's Amendment" has about 5 lines from P2 sort of squeezed onto P1;  about 10 lines from P3 onto P2 & so on;  & Lobbying Page 8 is the last since there is no Certificate of Legal Review. 

 

Whereas, P1, parag 1 of Amendment #1 posted 8/31/03 with the LCA, states, "...District Engineer, U.S. Army Engineer District, St. Louis...";  the same title is reflected on P7 with the name & signature of Colonel Thomas J. Hodgini;  & Lobbying Page 9 preceeds the last unnumbered Certificate of Legal Review page.

 


 

DEPARTMENT OF THE ARMY

ST. LOUIS DISTRICT, CORPS OF ENGINEERS

1222 SPRUCE STREET

ST. LOUIS, MISSIOURI  63103-2833

 

   REPLY TO

   ATTENTION OF

September 5, 1997

 

                                                                         EXHIBIT NO. [A-5-(GorQ?)-4]  

Programs and Project Management Division

Project Management Branch

 

Honorable Joseph Harrington

Mayor of Valley Park

300 Benton Street

Valley Park, Missouri  63088

 

Dear Mayor Harrington:

 

In accordance with the Local Cooperation Agreement signed on August 12, 1992, I am forwarding Amendment 1 to the Agreement.  On 15 August 1997, the St. Louis District Corps of Engineers was granted authority to execute the Amendment from the Office of the Assistant Secretary Civil Works.  Please review the document and complete the City of Valley Park requirements on pages 6, 7 and 8.  Please return the document to the Project Manager at the St. Louis District.

 

If you have any questions with regard to Amendment 1, or would like to discuss it in greater detail prior to signing please contact Captain Jim Wolak, Project Manager, at (314) 331-8801.

 

Sincerely,

[so signed]

David Leake

Chief, Project Management

Branch

 

Enclosure

Copy Furnished:

Mr. Eric Martin

1795 Clarkson, Suite 210

Chesterfield, Missouri  63017

_________________________________________________________

 

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         day of              , 1997 by and between the DEPARTMENT OF THE ARMY (hereinafter the "Government"), represented by the Assistant Secretary of the Army (Civil Works), 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".

     b.  Add a new paragraph j. as follows:

 

"j.  The term "betterment" shall mean a change in the design and construction of an element of the Project resulting from the application of standards that the Government determines exceed

 

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those that the Government would otherwise apply for accomplishing the design and construction of that element."

 

2.  ARTICLE II  -  OBLIGATIONS OF THE PARTIES

 

     a.  In paragraph a., ninth line, replace the words "Contracting Officer" with the words "District Engineer".

 

     b.  Add a new paragraph k. as follows:

 

"k.  The Local 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 Local 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 Local Sponsor shall be solely responsible for all costs due to the requested betterments and shall payall such costs due to the requested betterments and shall pay all such costs in accordance with Article VI.f. of this Agreement."

 

     c.  Add a new paragraph 1. as follows:

 

1.  The Local 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 Local 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 Local Sponsor in a witing 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 Local Sponsor shall be solely responsible for all costs of the requested services and shall pay all such costs in accordance with Article VI.f. 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 Local Sponsor shall be responsible, as between 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 1.  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 1.  of this Article."

 

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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 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

 

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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 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

 

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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 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.

 

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     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.

 

 

     IN WITNESS WHEREOF, the parties hereto have executed this Amendment, 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 CITY OF VALLEY PARK, MISSOURI
   
BY: __________________________ BY: ___________________________
    H. MARTIN LANCASTER    JOSEPH HARRINGTON
   Assistant Secretary     Mayor
   of the Army (Civil Works)     City of Valley Park,
   
DATE:  ________________________ DATE: __________________________

 

 

CERTIFICATION OF AUTHORITY

 

I, ________________________ , 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.

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     IN WITNESS WHEREOF, I have made and executed this certification, this          day of                          ,  1997.

________________________

Attorney for the City of

Valley Park, Missouri

 

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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.

                                                       

      JOSEPH HARRINGTON, Mayor

 City of Valley Park, Missouri

 

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