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HomeMy WebLinkAboutMattituck InletRESOLUTION 2013-416 ADOPTED DOC ID: 8828 THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION NO. 2013-416 WAS ADOPTED AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON MAY 21, 2013: RESOLVED that the Town Board of the Town of Southold hereby authorizes and directs Supervisor Scott A. Russell to execute the Project Partnership Agreement between the Town of Southold and The Department of the Army for the Design and Construction of the Section 111 Project at Mattituck Inlet, for storm damage prevention or mitigation caused by Federal Navigation Project at Mattituck Inlet, subject to the approval of the Town Attorney. Elizabeth A. Neville Southold Town Clerk RESULT: ADOPTED [UNANIMOUS] MOVER: Louisa P. Evans, Justice SECONDER: Christopher Talbot, Councilman AYES: Dinizio Jr, Ruland, Doherty, Talbot, Evans, Russell PROJECT PARTNERSHIP AGREEMENT BETWEEN THE DEPARTMENT OF THE ARMY AND THE TOWN OF SOUTHOLD, NEW YORK FOR DESIGN AND CONSTRUCTION OF THE SECTION 111 PROJECT AT MATTITUCK INLET, NEW YORK ORIGINAL THIS AGREEMENT is entered into this 2 9 day of l~a ¥ 2013, by and between the DEPARTMENT OF THE ARMY (hereinafter the "Government"), represented by the U.S. Army Engineer, New York District and the TOWN OF SOUTHOLD, NEW YORK (hereinafter the "Non-Fedaral Sponsor"), represented by its Supervisor. WITNESSETH, THAT: WHEREAS, design and construction of the Section 111 Project at Mattituck Inlet, Suffolk County, New York (hereinafter the "Project", as defined in Article I.A. of this Agreement) for shore damage prevention or mitigation caused by the Federal navigation project at Mattituck Inlet, Suffolk County, New York was authorized pursuant to Section 111 of the River and Harbor Act of 1968, Public Law 90-483, as amended (33 U.S.C. 426i); WHEREAS, the Government and the Non-Federal Sponsor desire to enter into a Project Partnership Agreement (hereinafter the "Agreement") for design and construction oftbe Project; WHEREAS, in accordance with applicable law, the Federal navigation project at Mattituck Inlet, Suffolk County, New York, was constructed at full Federal expense, while non- Federal interests provided, at no cost to the Government, all lands, easements, and fights-of-way necessary for construction, operation, and maintenance of the Federal navigation project; WHEREAS, Section 101(c) of the Water Resources Development Act of 1986, Public Law 99-662, as amended (33 U.S.C. 2211 (e)), specifies the cost-sharing requirements applicable to the Project, including that the costs of constructing projects or measures for the prevention or mitigation of erosion or shoaling damages attributable to Federal navigation works shall be shared in the same proportion as the cost sharing provisions applicable to the project causing such erosion or shoaling; WHEREAS, Section 221 of the Flood Control Act of 1970, Public Law 91-611, as amended (42 U.S.C. 1962d-Sb), and Section 101 of the Water Resources Development Act of 1986, Public Law 99-662, as amended (33 U.S.C. 2211), provide, inter alia, that the Secretary of the Army shall not commence construction of any water resources project, or separable element thereof, until each non-Federal sponsor has entered into a written agreement to furnish its required cooperation for the project or separable element; WHEREAS, the Government and the Non-Federal Sponsor have the full authority and capability as hereinafter set forth and intend to cooperate in cost-sharing and financing of the design and construction of the Project in accordance with the terms of this Agreement; WHEREAS, the Government and the Non-Federal Sponsor, in connection with this Agreement, desire to foster a partnering strategy and a working relationship between the Government and the Non-Federal Sponsor through a mutually developed formal strategy of commitment and communication embodied herein, which creates an environment where trust and teamwork prevent disputes, foster a cooperative bond between the Government and the Non- Federal Sponsor, and facilitate the successful implementation of the Project. NOW, THEREFORE, the Government and the Non-Federal Sponsor agree as follows: ARTICLE 1- DEFrNITIONS AND GENERAL PROVISIONS A. The term "Project" shall mean a one time placement of approximately 100,000 cy of material removed from Mattituek Inlet and placed over an area extending approximately 4500 feet east of the east jetty to form a berm, approximately 20-fcot wide at an elevation +8 feet NGVD with a 1V: 15H slope as generally described in the "Mattituck Inlet New York Section 111 Study Final Detailed Project Report (DPR) & Environmental Assessment, at Mattituck Inlet, Southold, Suffolk County, New York", dated June 2011 and approved by the North Atlantic Division, District Support Team Leader on July 29, 2011 as modified by the addendum to the DPR dated September 5, 2012 and approved by the North Atlantic Division, District Support Team Leader on September 27, 2012. B. The term "totalproject costs" shall mean the sum of all costs incurred by the Government in accordance with the terms of this Agreement directly related to design and construction of the Project and any design costs of the Project incurred by the Government prior to the effective date of this Agreement. The term does not include any costs for operation, maintenance, repair, rehabilitation, or replacement of the Project; the value of any lands, easements, rights-of-way required for the Project; any costs of dispute resolution under Article V of this Agreement; or any costs incurred by the Non-Federal Sponsor. C. The term "period of design and construction" shall mean the time from the effective date of this Agreement to the date that construction of the Project is complete, as determined by the Government, or the date that construction under this Agreement is terminated in accordance with Article X or Article XI.C. of this Agreement, whichever is earlier. D. The term "functionalportion of the Project" shall mean a portion of the Project for which construction has been completed and that can function independently, as determined by the U.S. Army Engineer, New York District (hereinafter the "District Engineer") in writing, although the remainder of the Project is not complete. E. The term "Section 111 Project Limit" shall mean the $5,000,000 statutory limitation on the Government's financial participation in the design and construction of the Project as specified in Section 111 of the River and Harbor Act of 1968, Public Law 90-483, as amended (33 U.S.C. 426i). F. The term "fiscalyear" shall mean one year beginning on October 1 and ending on September 30. ARTICLE Il- OBLIGATION OF THE GOVERNMENT AND THE NON-FEDERAL SPONSOR A. The Government, subject to receiving funds appropriated by the Congress of the United States (hereinafter the "Congress") and using those funds, expeditiously shall design and construct the Project, applying those procedures usually applied to Federal projects, in accordance with Federal laws, regulations, and policies. 1. The Government shall develop and coordinate as required, an Environmental Assessment and Finding of No Significant Impact or an Environmental Impact Statement and Record of Decision, as necessary, to inform the public regarding the environmental impacts of the Project in accordance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321- 4347; hereinafter "NEPA"). However, the Government shall not issue the solicitation for the first construction contract for the Project or commence construction of the Project using the Government's own forces until all applicable environmental laws and regulations have been complied with, including, but not limited to NEPA and Section 401 of the Federal Water Pollution Control Act (33 U.S.C. 1341). 2. The Government shall afford the Non-Federal Sponsor the opportunity to review and comment on the solicitations for all contracts, including relevant plans and specifications, prior to the Government's issuance of such solicitations. To the extent possible, the Government shall afford the Non-Federal Sponsor the opportunity to review and comment on all proposed contract modifications, including change orders, prior to the issuance to the contractor ora Notice to Proceed. In any instance where providing the Non-Federal Sponsor with notification ora contract modification is not possible prior to execution of the contract modification, the Government shall provide such notification in writing at the earliest date possible. To the extent possible, the Government also shall afford the Non-Federal Sponsor the opportunity to review and comment on all contract claims prior to resolution thereof. In the event the Government performs all or some of the construction for the Project using its own forces, the Government shall afford the Non-Federal the opportunity to review and comment on the relevant plans and specifications prior to the commencement of such work using the Government's own forces. The Government shall consider in good faith the comments of the Non-Federal Sponsor, but the contents of solicitations, plans and specifications, award of contracts or commencement of design or construction using the Government's own forces, execution of contract modifications, resolution of contract claims, and performance of all work on the Project shall be exclusively within the control of the Government. 3. At the time the District Engineer furnishes the contractor with the Government's Written Notice of Acceptance of Completed Work for each contract awarded by the Government for the Project, the District Engineer shall furnish a copy thereof to the Non- Federal Sponsor. B. In accordance with Article I11 of this Agreement, the Non-Federal Sponsor shall provide, at no cost to the Government, all lands, easements, and rights.of-way that the Government determines are necessary for construction, operation, and maintenance of the Project. C. As of the effective date of this Agreement, totalproject costs are projected to be $3,197,000. Subject to the Section 111 Project Limit and the amount of Federal funds that the Government has made or will make available for the Project, the Government shall be responsible for 100 percent oftotalproject costs. Notwithstanding any other provision of this Agreement, Federal financial participation in the Project is limited by the following provisions of this paragraph. 1. As of the effective date of this Agreement, $496,801 of Federal funds is currently projected to be available for the Project. The Government's financial participation in the Project is limited to the Federal funds that the Government makes available to the Project. 2. In the event the Government projects that the amount of Federal funds the Government makes available for the Project is not sufficient to meet the totalproject costs, the Government shall notify the Non-Federal Sponsor in writing of such insufficiency of funds and of the date the Government projects that the Federal funds made available to the Project will be exhausted. Upon the exhaustion of Federal funds made available by the Government to the Project, future performance under this Agreement shall be suspended and the parties shall proceed in accordance with Article X.B. of this Agreement. 3. If the Government projects that totalproject costs will exceed the Section 111 Project Limit, the Government shall notify the Non-Federal Sponsor in writing of such determination and the parties shall conclude their activities related to construction of the Project. In no event shall the Government's total financial obligations for design and construction of the Project exceed the Section 111 Project Limit without specific Congressional authorization. D. When the District Engineer determines that the entire Project, or a functional portion of the Project, is complete, the District Engineer shall so notify the Non-Federal Sponsor in writing and furnish the Non-Federal Sponsor with a final Operation, Maintenance, Repair, Rehabilitation, and Replacement Manual (hereinafter the "OMRR&R Manual") or, if the final OMRR&R Manual is not available, an interim OMRR&R Manual for the entire Project or such completed portion. Upon such notification, the Government also shall furnish to the Non- Federal Sponsor a copy of all final as-built drawings for the entire Project or such completed portion if such drawings are available. Not later than 6 months after such notification by the Government that the entire Project is complete, the Government shall furnish the Non-Federal Sponsor with the final OMRR&R Manual and all final as-built drawings for the entire Project. In the event the final OMRR&R Manual or all final as-built drawings for the entire Project cannot be completed within the 6 month period, the Government shall provide written notice to the Non-Federal Sponsor, and the Government and the Non-Federal Sponsor shall negotiate an acceptable completion date for furnishing such documents. Further, at, er completion of all contracts for the Project, copies of all of the Government's Written Notices of Acceptance of Completed Work for all contracts for the Project that have not been provided previously shall be provided to the Non-Federal Sponsor. E. Upon notification from the District Engineer in accordance with paragraph D. of this Article, the Non-Federal Sponsor shall operate, maintain, repair, rehabilitate, and replace the entire Project, or the functional portion of the Project as the case may be, in accordance with Article VI of this Agreement. F. Not less than once each year the Non-Federal Sponsor shall inform affected interests of the extent of protection afforded by the Project. G. The Non-Federal Sponsor agrees to participate in and comply with applicable Federal floodplain management and flood insurance programs. H. The Non-Federal Sponsor shall comply with Section 402 of the Water Resources Development Act of 1986, as amended (33 U.S.C. 701b-12), which requires a non-Federal interest to prepare a floodplain management plan within one year at,er the date of signing this Agreement, and to implement such plan not later than one year at, er completion of construction of the Project. The plan shall be designed to reduce the impacts of future flood events in the project area, including but not limited to, addressing those measures to be undertaken by non- Federal interests to preserve the level of flood protection provided by the Project. The Non- Federal Sponsor shall provide an information copy of the plan to the Government upon its preparation. I. The Non-Federal Sponsor shall publicize floodplain information in the area concerned and shall provide this information to zoning and other regulatory agencies for their use in adopting regulations, or taking other actions, to prevent unwise future development and to ensure compatibility with protection levels provided by the Project. J. The Non-Federal Sponsor shall prevent obstructions or encroachments on the Project (including prescribing and enforcing regulations to prevent such obstructions or encroachments) such as any new developments on Project lands, easements, and rights-of-way or the addition of facilities which might reduce the level of protection the Project affords, hinder operation and maintenance of the Project, or interfere with the Project's proper function. K. For so long as the Project remains authorized, the Non-Federal Sponsor shall ensure conditions of public ownership and public use of the shores upon which the amount of Federal participation is based. L. The Non-Federal Sponsor shall not be entitled to reimbursement for any costs that it incurs in performing its responsibilities under this Agreement. 5 ARTICLE 111 - LANDS, EASEMENTS, RIGHTS-OF-WAY, AND PUBLIC LAW 91-646 COMPLIANCE A. The Government, after consultation with the Non-Federal Sponsor, shall determine the lands, easements, and rights-of-way required for construction, operation, and maintenance of the Project, including those required for relocations, the borrowing of material, and the disposal of dredged or excavated material. The Government in a timely manner shall provide the Non- Federal Sponsor with general written descriptions, including maps as appropriate, of the lands, easements, and rights-of-way that the Government determines the Non-Federal Sponsor must provide, in detail sufficient to enable the Non-Federal Sponsor to fulfill its obligations under this paragraph, and shall provide the Non-Federal Sponsor with a written notice to proceed with acquisition of such lands, easements, and rights-of-way. Prior to the issuance of the solicitation for each Government contract for construction of the Project, or prior to the Government initiating construction ora portion of the Project using the Government's own forces, the Non- Federal Sponsor shall acquire all lands, easements, and rights-of-way the Government determines the Non-Federal Sponsor must provide for that work and shall provide the Government with authorization for entry thereto. Furthermore, prior to the end of the period of design and construction, the Non-Federal Sponsor shall acquire all lands, easements, and rights- of-way required for construction, operation, and maintenance of the Project, as set forth in such descriptions, and shall provide the Government with authorization for entry thereto. The Non- Federal Sponsor shall ensure that lands, easements, and rights-of-way that the Government determines to be required for the Project and that were provided by the Non-Federal Sponsor are retained in public ownership for uses compatible with the authorized purposes of the Project. B. The Non-Federal Sponsor shall comply with the applicable provisions of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, Public Law 91-646, as amended (42 U.S.C. 4601-4655), and the Uniform Regulations contained in 49 C.F.R. Part 24, in acquiring lands, easements, and rights-of-way required for construction, operation, and maintenance of the Project, including those required for relocations, the borrowing of material, or the disposal of dredged or excavated material, and shall inform all affected persons of applicable benefits, policies, and procedures in connection with said Act. ARTICLE IV - PROJECT COORDINATION TEAM A. To provide for consistent and effective communication, the Non-Federal Sponsor and the Government, not later than 30 calendar days aiter the effective date of this Agreement, shall appoint named senior representatives to a Project Coordination Team. Thereat~er, the Project Coordination Team shall meet regularly until the end of the period of design and construction. The Government's Project Manager and a counterpart named by the Non-Federal Sponsor shall co-chair the Project Coordination Team. B. The Government's Project Manager and the Non-Federal Sponsor's counterpart shall keep the Project Coordination Team informed of the prngress of design and construction and of significant pending issues and actions, and shall seek the views of the Project Coordination Team on matters that the Project Coordination Team generally oversees. C. Until the end of the period of design and construction, the Project Coordination Team shall generally oversee the Project, including matters related to: design; completion of all necessary environmental coordination and documentation; plans and specifications; scheduling; real property and relocation requirements; real property acquisition; contract awards and modifications; contract costs; the investigations to identify the existence and extent of hazardous substances in accordance with Article XI.A. of this Agreement; historic preservation activities in accordance with Article XIV of this Agreement; the Government's cost projections; final inspection of the entire Project or functional portions of the Project; preparation of the proposed OMRR&R Manual; anticipated requirements and needed capabilities for performance of operation, maintenance, repair, rehabilitation, and replacement of the Project including issuance of permits; and other matters related to the Project. This oversight of the Project shall be consistent with a project management plan developed by the Government after consultation with the Non-Federal Sponsor. D. The Project Coordination Team may make recommendations to the District Engineer on matters related to the Project that the Project Coordination Team generally oversees, including suggestions to avoid potential sources of dispute. The Government in good faith shall consider the recommendations of the Project Coordination Team. The Government, having the legal authority and responsibility for design and construction of the Project, has the discretion to accept or reject, in whole or in part, the Project Coordination Team's recommendations. E. The Government's costs of participation in the Project Coordination Team shall be included in totalproject costs and the Non-Federal Sponsor shall pay for its own costs of Project Coordination Team participation. ARTICLE V - DISPUTE RESOLUTION As a condition precedent to a party bringing any suit for breach of this Agreement, that party must first notify the other party in writing of the nature of the purported breach and seek in good faith to resolve the dispute through negotiation. If the parties cannot resolve the dispute through negotiation, they may agree to a mutually acceptable method of non-binding alternative dispute resolution with a qualified third party acceptable to both parties. Each party shall pay an equal share of any costs for the services provided by such a third party as such costs are incurred. The existence ora dispute shall not excuse the parties from performance pursuant to this Agreement. ARTICLE VI - OPERATION, MAINTENANCE, REPAIR, REHABILITATION, AND REPLACEMENT (OMRR&R) A. Upon receipt of the notification from the District Engineer in accordance with Article II.D. of this Agreement and for so long as the Project remains authorized, the Non-Federal Sponsor, pursuant to Article II.E. of this Agreement, shall operate, maintain, repair, rehabilitate, and replace the entire Project or functional portion of the Project, at no cost to the Government. The Non-Federal Sponsor shall conduct its operation, maintenance, repair, rehabilitation, and replacement responsibilities in a manner compatible with the Project's authorized purposes and in accordance with applicable Federal and State laws as provided in Article VIII of this Agreement and specific directions prescribed by the Government in the interim or final OMRR&R Manual and any subsequent amendments thereto. B. The Non-Federal Sponsor hereby gives the Government a right to enter, at reasonable times and in a reasonable manner, upon property that the Non-Federal Sponsor now or hereafter owns or controls for access to the Project for the purpose of inspection and, if necessary, for the purpose of completing, operating, maintaining, repairing, rehabilitating, or replacing the Project. If an inspection shows that the Non-Federal Sponsor for any reason is failing to perform its obligations under this Agreement, the Government shall send a written notice describing the non- performance to the Non-Federal Sponsor. If, after 30 calendar days from receipt of such written notice by the Government, the Non-Federal Sponsor continues to fail to perform, then the Government shall have the right to enter, at reasonable times end in a reasonable manner, upon property that the Non-Federal Sponsor now or hereafter owns or controls for the purpose of completing, operating, maintaining, repairing, rehabilitating, or replacing the Project. No completion, operation, maintenance, repair, rehabilitation, or replacement by the Government shall relieve the Non-Federal Sponsor of rasponsibility to meet the Non-Federal Sponsor's obligations as set forth in this Agreement, or to preclude the Government from pursuing any other remedy at law or equity to ensure faithful performance pursuant to this Agreement. ARTICLE Vll - HOLD AND SAVE The Non-Federal Sponsor shall hold and save the Government free from all damages arising from design, construction, operation, maintenance, repair, rehabilitation, end replacement of the Project, except for damages due to the fault or negligence of the Government or its contractors. ARTICLE VIll - FEDERAL AND STATE LAWS In the exercise of their respective rights and obligations under this Agreement, the Non- Federal Sponsor and the Government shall comply with all applicable Federal and State laws and regulations, including, but not limited to: Section 601 of the Civil Rights Act of 1964, Public Law 88-352 (42 U.S.C. 2000d) and Department of Defense Directive 5500.11 issued pursuant thereto; Army Regulation 600-7, entitled "Nondiscrimination on the Basis of Handicap in Programs and Activities Assisted or Conducted by the Department of the Army"; and all 8 applicable Federal labor standards requirements including, but not limited to, 40 U.S.C. 3141- 3148 and 40 U.S.C. 3701-3708 (revising, codifying and enacting without substantive change the provisions of the Davis-Bacon Act (formerly 40 U.S.C. 276a et seq.), the Contract Work Hours and Safety Standards Act (formerly 40 U.S.C. 327 et seq.), and the Copeland Anti-Kickback Act (formerly 40 U.S.C. 276c)). ARTICLE IX - RELATIONSHIP OF PARTIES A. In the exercise of their respective rights and obligations under this Agreement, the Government and the Non-Federal Sponsor each a~t in an independent capacity, and neither is to bo considered the officer, agent, or employee of the other. B. In the exercise of its rights and obligations under this Agreement, neither party shall provide, without the consent of the other party, any contractor with a release that waives or purports to waive any fights the other party may have to seek rcliefor redress against that contractor either pursuant to any cause of action that the other party may have or for violation of any law. ARTICLE X - TERMINATION OR SUSPENSION A. If at any time the Non-Federal Sponsor fails to fulfill its obligations under this Agreement, the Assistant Secretary of the Army (Civil Works) shall terminate construction under this Agreement or suspend future performance under this Agreement 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. B. In the event future performance under this Agreement is suspended pursuant to Article ll.C.2, of this Agreement, such suspension shall remain in effect until such time that the Government notifies the Non-Federal Sponsor in writing that sufficient Federal funds are available to continue construction, or the Government elects to terminate further construction under this Agreement. C. In the event that the Government and the Non-Federal Sponsor determine to suspend future performance under this Agreement in accordance with Article XI.C. of this Agreement, such suspension shall remain in effect until the Government and the Non-Federal Sponsor agree to proceed or to terminate construction under this Agreement. In the event that the Government suspends future performance under this Agreement in accordance with Article XI.C. of this Agreement due to failure to reach agreement with the Non-Federal Sponsor on whether to proceed or to terminate construction under this Agreement, or the failure of the Non-Federal Sponsor to provide funds to pay for cleanup and response costs or to otherwise discharge the Non-Federal Sponsor's responsibilities under Article XI.C. of this Agreement, such suspension shall remain in effect until: I) the Government and Non-Federal Sponsor reanh agreement on how to proceed or to terminate construction under this Agreement; 2) the Non-Federal Sponsor provides funds necessary to pay for cleanup and response costs and otherwise discharges its 9 responsibilities under Article XI.C. of this Agreement; 3) the Government continues work on the Project; or 4) the Government terminates construction under this Agreement in accordance with the provisions of Article XI.C. of this Agreement. D. If after completion of the design portion of the Project the parties mutually agree in writing not to proceed with construction of the Project, the parties shall conclude their activities relating to the Project. E. In the event that construction under this Agreement is terminated pursuant to this Article or Article XI.C. of this Agreement, both parties shall conclude their activities relating to further construction of the Project. To provide for this eventuality, the Government may reserve a percentage of total Federal funds made available for the Project as a contingency to pay costs of termination, including any costs of resolution of contract claims and contract modifications. ARTICLE XI - HAZARDOUS SUBSTANCES A. After execution of this Agreement and upon direction by the District Engineer, the Non-Federal Sponsor shall perform, or ensure performance of, any investigations for hazardous substances that the Government or the Non-Federal 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 (42 U.S.C. 9601-9675; hereinafter "CERCLA"), 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 construction, operation, and maintenance of the Project. However, for lands, easements, and rights-of-way that the Government determines to be subject to the navigation servitude, only the Government shall perform such investigations unless the District Engineer provides the Non- Federal Sponsor with prior specific written direction, in which ease the Non-Federal Sponsor shall perform such investigations in accordance with such written direction. 1. All costs incurred by the Non-Federal Sponsor for such investigations for hazardous substances shall be borne entirely by the Non-Federal Sponsor. 2. All actual costs incurred by the Government for such investigations for hazardous substances before the end of the period of design and construction shall be included in total project costs. B. In the event it is discovered through any investigation for hazardous substances or other means that hazardous substances 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 construction, operation, and maintenance of the Project, the Non- Federal Sponsor and the Government, in addition to providing any other notice required by applicable law, shall provide prompt written notice to each other, and the Non-Federal Sponsor shall not proceed with the acquisition of the real p~;operty interests until the parties agree that the Non-Federal Sponsor should proceed. 10 C. The Government and the Non-Federal Sponsor shall determine whether to initiate construction of the Project, or, ifaiready in construction, whether to continue with construction of the Project, suspend future performance under this Agreement, or terminate this Agreement for the convenience of the Government, in any ease 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 Ill of this Agreement, to be required for construction, operation, and maintenance oftbe Project. Should the Government and the Non- Federal Sponsor determine to initiate or continue with construction of the Project after considering any liability that may arise under CERCLA, 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 not be considered a part of total project costs. In the event the Non-Federal Sponsor does not reach agreement with the Government on whether to proceed or to terminate this Agreement under this paragraph, or fails to provide any funds necessary to pay for cleanup and response costs or to otherwise discharge the Non-Federal Sponsor's responsibilities under this paragraph upon direction by the Government, the Government, in its sole discretion, may either terminate construction under this Agreement for the convenience of the Government, suspend future performance under this Agreement, or continue work on the Project. D. The Non-Federal Sponsor and the Government shall consult with each other in accordance with Article IV of this Agreement in an effort to ensure that responsible parties bear any necessary cleanup 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 Non-Federal Sponsor, the Non-Federal Sponsor shall be considered the operator of the Project for purposes of CERCLA liability. To the maximum extent practicable, the Non-Federal Sponsor shall operate, maintain, repair, rehabilitate, and replace the Project in a manner that will not cause liability to arise under CERCLA. ARTICLE XII - NOTICES A. Any notice, request, demand, or other communication required or permitted to be given under this Agreement shall be deemed to have duly given if in writing and either delivered personally or by telegram or mailed by first-class, registered, or certified mail, as follows: If to the Non-Federal Sponsor: Supervisor Town of Southold Town Hall 53095 Main Road Southold, NY 11971-0959 With copies to: Town Attorney Town of Southold 53095 Main Road Southold, NY 11971-0959 If to the Government: Deputy District Engineer for Programs and Project Management U.S. Army Corps of Engineers, New York District 26 Federal Plaza, Rm 2127 New York, NY 10278 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 in this Article shall be deemed to have received by the addressee at the earlier of such time as it us actually received or seven calendar days at,er it is mailed. ARTICLE Xill - CONFIDENTIALITY To the extent permitted by the laws governing each party, the parties agree to maintain the confidentiality of exchanged information when requested to do so by the providing party. ARTICLE XIV - HISTORIC PRESERVATION A. The Government, as it determines necessary for the Project, shall perform any identification, survey, or evaluation of historic properties. Any costs for such work incurred before the end of the period of design and construction shall be included in totalproject costs. B. The Government, as it determines necessary for the Project, shall perform or ensure the performance of any mitigation activities or actions for historic properties or that are otherwise associated with historic preservation including data recovery activities. 1. Any costs for such mitigation activities incurred before the end of the period of design and construction shall be included in total project costs. 2. As specified in Section 7(a) of Public Law 86-523, as amended by Public Law 93-291 (16 U.S.C. 469c(a)), the costs of data recovery activities associated with historic 12 preservation incurred before the end of the period of design and construction shall be included in totalproject costs, up to the statutory limit of one percent of the Section 111 Project Limit. 3. The Government shall not incur costs for data recovery activities associated with historic preservation that exceed the statutory one pement limit specified in paragraph B.2. of this Article unless and until the Assistant Secretary of the Army (Civil Works) has waived that limit and the Secretary of the Interior has concurred in the waiver in accordance with Section 208(3) of Public Law 96-515, as mended (16 U.S.C. 469c-2(3)). ARTICLE XV - THIRD PARTY RIGHTS, BENEFITS, OR LIABILITIES Nothing in this Agreement is intended, nor may be construed, to create any rights, confer any benefits, or relieve any liability, of any kind whatsoever in any third person not party to this Agreement. ARTICLE XVI - NON-LIABILITY OF OFFICERS AND EMPLOYEES No officer, agent, consultant, or employee of the Non-Federal Sponsor, nor any officer, agent, consultant, or employee of the Government, may be charged personally, or held liable, under the terms or provisions of this Agreement because of any breach, attempted breach, or alleged breach thereof, except as provided in Section 912(b) of the Water Resources Development Act of 1986, Public Law 99-662, as amended (42 U.S.C. 1962d-5b note), or other applicable law. IN WITNESS WHEREOF, the parties hereto have executed this Agreement, which shall become effective upon the date it is signed by the U.S. Army District Engineer. THE DEPARTMENT OF THE ARMY Colonel, U.S. Army District Engineer DATE: TOWN OF/1SOUTHOLD, ScottaRussell Supervisor Town of Southold DATE: Attest: El~ev-illd Town Clerk f~rm and correctness Town Attorney 14 CERTIFICATE OF AUTHORITY I, Martin D. Finnegan do hereby certify that I am the principal legal officer in the Town of Southold, New York, that the Town of Southold, New York 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 Town of Southold, New York in connection with the Town of Southold, New York Section 111 Project, and to pay damages in accordance with the terms of this Agreement, if necessary, in the event of the failure to perform, as required by Section 221 of Public Law 91-611 (42 U.S.C. Section 1962d-5b), and that the persons who have executed this Agreement on behalf of the Town of Southold, New York has acted within his statutory authority. IN WITNESS WHEREOF, i have made and exeeuted this certification this a,yof 2013. Southold, New York 1.5 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 subcontracts, 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 31 U.S.C. 1352. Any person who fails to file the required certification shall be subject to a civil penalt~f not less than $10,000 and not more than $100,000 for each such failure. // Scl~.ussell Supervisor Town of Southold, New York DATE: 16