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.
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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.
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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